Volume 112 — Kentucky Reports

Case 1 — Action by Robert J. Breckinridge against Clifton J. Pratt to Recover an Office APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Plaintiff and ' Defendant Appeals. 1. In so far as the statute undertakes to make the board of election commissioners, a board of contest, it is unconstitutional, and a title derived from its action is worthless. 2. The board has no jurisdiction to render a decision.

Case 2—Action by J. A. Barlow and Another against the City of Lexington, the Home Construction Company and others, to test the Validity of an Ordinance APPEAL FROM FAYETTE CIRCUIT COURT. Judgment Dismissing Petition and tiie City of Lexington Appeals.

Case 3 — Indictment for Unjust Discrimination APPEAL FROM GARRARD CIRCUIT COURT. Judgment Dismissing Indictment and Commonwealth Appeals.’ The indictment in this case charges appellee with a willful violation of section 215 of the Constitution. The indictment was dismissed by the lower court on the motion of appellee, upon the ground that it was not alleged that the railroad commission Bad recommended the finding of said indictment.

Case 4 — Action to Enforce a Judgment APPEAL FROM TAYLOR CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. ■ This appeal is from .a judgment sustaining a general demurrer-to appellant’s answer, which states all the facts relied on to support appellant’s contention.

<p>Corporations — Jurisdiction of Action Against — Right of Creditors to Question Jurisdiction — Waiver of Objection.</p> <p>Held: 1. Where plaintiff sought, by his action against a corporation, to recover compensation for services rendered, and asked: the appointment of a receiver, a settlement of the corporate business, and the enforcement of a lien on the land of defendant, the circuit court of a county which was not the’county in which defendant had its chief office, or in which its business was conducted, or in which the land described was located, had no jurisdiction of the action; and, as the action was local except to the extent it sought a personal judgment, creditors of the corporation being interested had the right to question the jurisdiction of the court except as to that matter, especially as they pleaded that the corporation waived objection to the jurisdiction as part of a collusive agreement between plaintiff and the officers of the corporation, and the receiver for the purpose of an unfair distribution - of the assets of the corporation.</p> <p>2. Défendants, by pleading to the merits after their plea to the jurisdiction was adjudged insufficient, did not waive .that plea, as their pleading all recited that the plea was not waived, and, besides, there was an agreement by counsel for plaintiff that the entry of judgment should not in any way affect the right of defendants to make any motion or take .any steps to perfect their appeal from the order sustaining the demurrer to their plea to the jurisdiction.</p>

Case 6 — Action to Recover Damages for the Death of Plaintiff’s Husband APPEAL FROM GREENUP CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals This i.s the second time this case has been before this court.

Case 7- — Action to Recover Damages for the Death of Plaintiff’s Intestate APPEAL FROM SHELBY CIRCUIT COURT. Judgment fob Defendant and Plaintiff Appeals.

Case 8 — Agreed Case between H. M. Bosworth, Sheriff, and the Kentucky Chautauqua Assembly, for the Purpose of Determining Whether the Property of said Assembly is Subject to Taxation APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for the Assembly and Bosworth Appeals.

<p>Appeal and Error — Special Statute Regulating Appeals in Ferry Cases — Failure to File Transcript in 'Time.</p> <p>Held: Under Kentucky Statutes, see. 1801, providing that an appeal from any order concerning a ferry or ferry rates shall “be taken at the time of making the order or during the term, and prosecuted to the circuit court within three years from the making of the order, and to the court of appeals within one year from the making of the -order in the circuit court,” an appeal from the circuit court must be granted during the term at which the order is made in that court, and the transcript may be filed in the -office of the- clerk of the court of appeals at any time within one year from the making of the order; the provision of the Civil Code of Practice requiring transcript to be filed at least twenty d-ays before the second term .after the-granting of the appeal, -having no application in ferry cases.</p>

Case 10 — Action on Bond of Road Contractor for Injuries Received by Reason of Defect in Culvert APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal.

Case 11 — Action by the Louisville Banking Company against the Union National Bank of Louisville and Others, Praying the Defendants be… Held: the balance would then have been only $3,538.70, or $890.13 less than the sum actually allowed. C. 3. If the Runyon notes and the Hull note be excluded, the correctness of the balance of $1,370.40 on July 28, 1893, as shown by the books of the Louisville Banking Co., is admitted and adopted by Asher in his answer and counterclaim.

Case 12 — Action-to Recover Borrowed Money, by Building and Loan: Company’s Assignee APPEAL'PROM ALLEN CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. Held: in Rogers v. Rains, 18 Ky. Law Rep., 768, that this can not be done. It seems clear, therefore, that the court erred in giving defendants credit for the $6.00 per month paid on their stock.

<p>Dead Bodies — Right of Widow to Se^ct and Change Place of Burial of Deceased Husband.</p> <p>Held: The wife and children of a deceased person have the right, in preference to his brothers and sisters, to select the place of hurial of his body, and to change it at pleasure, in the absence of any testamentary disposition of the body.</p>

Case 14 — Action to Recover Usury Paid APPEAL FROM HARRISON CIRCUIT COURT. JUDSMENT FOR PLAINTIFF AND DEFENDANT APPEALS. In the lower court appellee sued appellant for $260.92, alleged to be due him, as usury paid appellant, on a loan of $1,000 made June 28, 1895.

<p>Case 15 — Action by Board of Trustees of House of Reform against City of Lexington to Compel Defendant- to make Provisions for Paying an Appropriation</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. While it is true a municipal corporation can only exercise powers granted in express words; second, those necessarily or fairly implied in or incident to powers expressly granted, and, third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.</p> <p>Still, “it has long been an established principle in the law of corporations, that they may exercise -all the powers within the fair intent and purpose of their creation, which are reasonably proper to give effect to powers expressly granted. In doing this, they must (unless restricted in .this respect) have a choice of mea,ns adapted to ends, and are not to be confined to any one mode of operation.” Dillon on Municipal Corp. (3d Ed.), sec. 115; Dillon on Municipal Corp. (3d Ed.), sec. 91; Dillon on Municipal Corp. (3d Ed.), see. 446; City of Cold-water v. Tucker (Mich.), 24 Am. Rep., 601; Zigler v. Menges (Ind.), 16 Am. .St. Rep., 35*7; Van Sicklen v. Burlington, 27 Vt., 70; State v. Cage, 34 La. Ann., 506; Daily v. Swope, 47 Miss., 367; Egyptian Levee Co. v. Hardin, 27- Mo., 495 (72 Am. Dec., 276); Cooley on Taxation, p. 129; Charter Cities Second Class in’ Kentucky, chap. 89, Kentucky Statutes, particularly section 3058 and subsecs. 3, 16, 25; Walker v. Jameson (140 Ind., 591), 49 Am. St. Rep., 230; Dillon, sec. 94, and cases there "cited; McBean v. Fresno (112 Cal., 159), 53 Am. St. Rep., 191.</p> <p>2. The appellee secured a valuable property right in procuring the permanent and convenient location of the houses of reform in Fayette county, which location is not common to the balance of the State, and in doing so acted wisely and economically, and courts will not interfere with such an exercise of discretion unless the action was founded in fraud or tends to the oppression of the 'taxpayers, and neither such objection is pretended to exist in this case. Dillon, sec: .94, and cases cited; Shepherd’s .Fold, &c. v. Mayor of N. Y., &c., 96 N. Y. Court of Appeals, 137; City of Crawfordsville v. Braden (130 Ind., 149), 30 Am. St. Rep., 214; Jacksonville Elec. Light Co. v. Jacksonville (36 Fla., 229), 51 Am. St. Rep., 24; Rockebraudt v. Madison (9 Ind. Appeal, 227), 53 Am. St. Rep., 348; Cooley on Taxation, p. 103.</p> <p>3. Express power to erect ,and maintain within or without the city, >at her own proper cost, a house of refuge, carries with it the power to do less, provided in the doing less the same end is accomplished, upon the axiomatic principle the whole is greater than and inclusive of all its parts. Mt. Carmel v. Shaw (155 111., 37), 46 Am. St. Rep., 311.</p> <p>4. The appropriation is not inhibited by any provision of the Constitution of Kentucky. Sections 177 and 179, Kentucky Constitution; Norman, Auditor, v. Ky. Board of Managers, 93 Ky., 541; Sixepherd’s Fold, &c. v. Mayor of N. Y., &c., 96 N. Y. Court of Appeals, 137.</p> <p>5. Because appellee, for a short period of time, assumes to pay a greater rate of taxation for the support of the houses of reform than other taxing districts, presents no valid objection in view of the special benefits derived by appellee in the way of location, etc. County Judge of Shelby County v. Shelby R. R. Co., 5 Bush, 225; Cooley on Taxation, p. 149, and cases cited; Cooley on Taxation, p. 622; Zigler v. Menges, 16 Am. St. Rep., 371, particularly note to said case, page 371, under title “Local Assessments,” citing some fifty or more cases; Am. & Eng. Ency. Law, vol. 25, p, 99, first edition.</p> <p>In an agreed ease submitted to the judge of the Payette circuit court by the parties hereto, a decision was rendered holding that it was unconstitutional for the city of Lexington to appropriate or donate any sum of money to the trustees of the School of Reform of Kentucky, while the city stands ready and willing to pay the sum promised, provided such an act is permissible under tbe Constitution -of the State. We regret to say that we do not believe such a step can legally be taken by any municipality under the laws of Kentucky.</p> <p>Section 179 of the Constitution is .so clear and emphatic on this proposition that we 4o not consider it necessary to file any extended brief, nor to refer to any additional authorities. That section makes it plain and unmistakable that only in one single instance, to-wit, ithat of locating and building the capítol, can a municipality collect or appropriate any funds for the purpose of aiding any company, association or corporation. If such an act he permitted with reference to the school of reform, then the same would be permitted with reference to the establishment of various “homes” that are being established by secret orders, asylums, orphan and other charitable institutions. We would be glad to know that the city could make the appropriation -if it can legally he done, which we seriously doubt.</p>

Case 16 — Action to Recover upon an Accident Insurance Policy— APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals The Railway Officials and Employes’ Accident Association, on November 12, 1897, issued and delivered to appellqe a' certificate of membership in said association.

Case 17 — Action to Recover Commissions for Selling Land APPEAL FROM OWSLEY CIRCUIT COURT. Judgment for Defendants and Plaintiff appeals. This is a suit -of John C. Eversole against White & Harrison to recover commissions as purchasing agent for that firm upon 6,860 acres of land. Appellant sues for $1,022.40 and admits credits of $672:35 leaving a balance due him of $350.05. The jury returned a verdict in favor of the defendants in the sum of $24.

Case 18 — Action by Widows’ and Obehans’ Home oe Odd Fellows, to Enjoin the Collection oe Taxes on its Property — APPL'AL FROM' FAYETTE CIRCUIT COURT. JUDSMENT FOE DEFENDANT AND PLAINTIFF APPEALS. The lower court sustained a demurrer to plaintiff’s petition upon the ground that the petition shows on its face that appellant institution'is not one of purely public charity.” We contend the court erred in this ruling, and that our contention is sustained by abundant authority.

Case 19 — Action to Recover Damages for Personal Injuries against Turnpike Co. and,County APPEAL EROM MERCER CIRCUIT COURT. Judgment for Defendants and Plaintiff appeals.

Case 20 — Action to Recover Money Paid APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION Judgment fcir Defendants and Plaintiffs Appeal. This is the second time these causes have been in this court. (Allison, &c. v. Cocke’s Exr., &c., 21 Ky. Law Rep., 434.) On each appeal, Allison and Fawcett, who were the plaintiffs below, have been the appellants.

Case 21 — Action fob a Mandamus APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. A primary election to nominate candidates for State senator, and other offices, had been duly ordered for Oct. 15, 1897, by the committee or governing authority of the party holding -such primary.

Case 22 — Action to Recover Money Alleged to be due by Contract eor Services Rendered APPEAL PROM HARRISON CIRCUIT COURT. Judgment por Dependant and Plaintiff Appeals. The pleadings- show a contract naming a specified sum to be paid, for services to be rendered and which were rendered according to the contract.

Case 23 — Action fob a Mandamus APPEAL FROM TAYLOR CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. On April 1, 1871, Taylor county issued its bonds for $250,-000, due twenty years after date, bearing interest at six per cent from date, payable semi-annually, to pay its subscription to the Cumberland and Ohio Railroad. The bonds were sold and the proceeds used to pay the subscription.

'Case 24 — Action to Recover Monet Paid as Taxes APPEAL FROM FLEMING CIRCUIT COURT. Judgment for Defendants and¿ Plaintiff Appeals. The name of M. F. Daugherty was improperly stricken out of the petition.

Case 25 — Action by C. C. Ohenault, Receiver, upon the Bond of R. A. Mitchell, as Assignee APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal.

Case 26 — Action for Sale of Infant’s Real Estate APPEAL FROM KENTON CIRCUIT COURT. Judgment Confirming Sale and the Purchaser, Ellen Dineen, Appeals. Appellant purchased ait commissioner’s sale the real estate sold by order of court in the case of Ronan v. John H. Hall and Prances Hall, a minor under 14 years of age, which was an action for the sale of said real estate and division of the proceeds between Wm.

Case 27 — Action to Recover Possession of a Piano APPEAL FROM MERCER CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This action was brought under sections 180 and 181 of the Civil Code, to recover the possession of a piano from appellee, which he purchased from one- J. W. Sparks, a local agent of'the -appellants, with limited .authority to sell-pianos sub- - ject to the approval of the appellants.

<p>Homestead — Loss of Debtor’s Family — Mortgage Embracing Homestead Operating as an Assignment for Creditors — Validity of Mortgage to Extent of Homestead — Attorneys’ Fees Payable out of Trust Estate.</p> <p>Held: 1. Where a debtor acquired the night to the homestead exemption by the occupancy" of 1-and with h-is family, he did not lose the right by the .death of his wife and the marriage of his children, as he.continued to live on the land with his sister.</p> <p>2. A judgment declaring a mortgage to he a preference, and to operate as an assignment for the benefit of creditor, did not defeat the debtor’s homestead right in the mortgaged land, and therefore the mortgage lien .is valid to the extent of the homestead; creditors having no right to complain of any disposition which the debtor may make of his homestead. Gideon v. Struve, 78 Ky., 134, overruled.</p> <p>3. A creditor who succeeds in an action brought by him to have a transfer made by the debtor declared to operate as an assignment for the benefit of creditors is entitled to the allowance of an attorney’s fee, for attacking the fraudulent conveyance, to be paid out of the estate.</p> <p>By agreement of parties, the oases of James Davis, &c. v. The H. Feltman Co., &c., Walker & Sengstak v. The H. Feltman Co., &c., and the H. Feltman Co. v. James Davis. &c., were heard together in the court of appeals.</p> <p>(The brief of Wall & Worthington referred to is not in the record. — Reporter.)</p>

Case 29 — Action on a Policy of FiSe Insurance — APPEAL FROM MUHLENBERG CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. Appellant presents the following authorities, and discusses propositions: (1) Its motion to quash service of summons should have been sustained. Sec. 631, Kentucky Statutes, provides that the delivery of a summons to the commissioner of insurance, of a foreign insurance company shall bind it.

<p>Banks — Check—What Constitutes — Exceeding Deposit — Election not to Pay — Reconsideration—Revocation of Check — Death of Drawer.</p> <p>Held: 1. An order addressed to a bank to pay a certain sum of money is .a check.</p> <p>2. Where a bank, upon which a check was drawn in excess of the.amount the drawer had on deposit, elected, as it had the •right to do, to refuse to pay any part of the check, and returned it to the payee .protested for non-payment, it had no right thereafter, to reconsider and pay the check, especially after the administrator of the drawer, notified it of the death of his intestate, and directed it not to make payment.</p> <p>3. The drawer of a check may revoke it at any time before its presentation for payment.</p> <p>4. The death of the drawer operates as a revocation of a check, so that if a bank pays it after notice- of that fact, it does so at its peril.</p>

<p>Incompetent Persons — Inquest—Insufficiency of Verdict — Void Judgment — Want of Notice.</p> <p>Held: 1. Kentucky Statutes, sections 2149, 2162, conferring on circuit and county courts jurisdiction over the, persons and estates of “those whose minds, on account of any infirmity or weight of ¡age, have become so imbecile or unsound” as to be incompetent, and providing for an inquest on persons of “unsound mind,” apply only to persons of unsound mind, and jurisdiction of the circuit and county courts to assume the care and custody of .the estate of persons incompetent to manage their estates is limited to those whose incompetency is due to mental unsoundness or imbecility; and therefore the verdict of a jury that a woman charged to be of unsound mind “is, by reason of great age and physical infirmity, unable to control and manage her estate and care for same,” is void.</p> <p>2. In courts of limited or special jurisdiction the jurisdictional facts must appear upon the record, or the judgment is a nullity.</p> <p>3. An inquest without the presence of the person charged to be of unsound mind, and without notice to him, is void.</p>

Case 32 — Action for an Injunction — APPEAL FROM MARION CIRCUIT COURT. JUDGMENT FOB DEFENDANTS AND PLAINTIFFS APPEAL. Held: had heretofore used the hollow path adversely for any length of time; The proof tended to show that there were roads all up the various hollows in these knobs, including the one in controversy, which were cut and used by various persons hauling timber therefrom.

<p>Venue of Action Against Carrier — Residence of Railroad Corporation.</p> <p>Under Civil Code Practice, section 73, providing that an action against a common carrier for personal injuries must be brought in the county in which the defendant resides, or in which plaintiff is injured, or in which he resides, if he resides in the county through which the carrier passes; and Id., section 732, 'Subsec. 32, providing that “the words ‘residence,’ ‘reside,’ mean, with reference to a corporation, its chief office or place of business,” — an action by a nonresident against a railroad corporation for personal injuries received in another State must be brought in the county in which the chief officer resides, or in the county in which it has its chief office.</p>

Case 34 — Action foe Partition — APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Defendant and Plaintiff-Appeals. One hundred and sixty acres of land was allotted to Elizabeth Eakins in 1863 as her dower. She subsequently married one Thompson. There were eight heirs in remainder. The appellant owned two-eighths, having purchased J. W. Eakin’s interest in 1883.

<p>Case 35 — Indictment fob Maintaining a Common Public Nuisance.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to the Indictment the Commonwealth Appeals.</p>

Case 36 — Action to Recover Monet Paid as License Tax — appeal from pike circuit court.

<p>County Officers — Death of Person Elected Before Qualification— Right of Incumbent to Hold Over — Power of Governor to Pill Vacancy.</p> <p>1. Under Constitution, section 99, providing that certain county officers, including justices of the peace, shall hold their offices four years, “and until the election and qualification of their successors,” where one who was elected justice of the peace died before qualifying, the incumbent had no right to hold for .another term, hut there was a vacancy in the office to he filled by appointment of the governor.</p> <p>2. The governor alone has authority to fill a vacancy in the office of justice of the peace.</p>

Case 38 — Action to Recover Damages for Personal Injuries- APPEAL FROM DAVIESS CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. POINTS AND AUTHORITIES. 1. Wood, the appellee, a coal miner, recovered a verdict and judgment for an alleged injury, alleged to be the result of the gross negligence of -the appellants, mine owners, in permitting the mines to be out -of repair and in a dangerous condition. , 2.

'Case 39 — Action foe a Settlement of the Estate of Plaintiff’s Intestate — APPEAL FROM CHRISTIAN CIRCUIT COURT. Judgment Making Absolute, Rule in Favoe of W. T. Fowler against Thos. H. Elliott to .pat Monet, and Elliott Appeals. 1. We hold that the court had no jurisdiction to sell any more of the infant’s real estate, than was necessary to pay the debts against it, and that the judgment of Dec. 7, 1889, i-s,. as against the infant, and to that extent, null and void. 2.

<p>Case 40 — Application by A. M. Miller for License to sell Brandy of His own Manufacture in His Distillery —</p> <p>APPEAL FROM BARREN CIRCUIT COURT.</p> <p>Judgment Refusing License and He Appeals.</p>

<p>Case 41 — Action for an Injunction —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p>

<p>Held: 1. On May 9, 1891, D. W. Gatlin, clerk oí the Hopkins circuit court, granted a temporary restraining order in accordance with the prayer of the petition. A motion to dissolve the order wias heard by the circuit judge on June 1st, and he made an order dissolving the injunction, but in order to give the plaintiff an opportunity to apply to the court of appeals for a reinstatement, granted a temporary injunction, and then on .his own motion dissolved the same. Held, by a majority of ■the^ court that no injunction was ever granted by the circuit judge; that his order was .a refusal to grant it and for this .reason there is nothing to reinstate.</p> <p>'2. The alleged order of injunction .is fatally defective for the reason that it does not appear from the record that any bond ■was given, or that any injunction was ever issued.</p> <p>■3. In so far as the opinion in the case of Poyntz v. Shackelford holds otherwise .and sanctions the practice of- granting and refusing .an order of injunction at ithe same time and in .the same order it is overruled.</p>

<p>Case 43 — Action to Enforce Specific Performance of Contract. — •</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>Judrment for Defendant and Plaintiff Appeals.</p>

<p>Case 44 — Action to Recover Damages for Death of Plaintiff’s Intestate —</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals</p>

<p>Street Assessments — Change of Street Level — Liability of Abutting Property for Extraordinary Improvement — Subway Crossing — Discretion of City Council.</p> <p>Held: 1. The fact that the city- may be held liable in damages as the result of the change of the street level, can not be pleaded in bar of the contractor’s claim for making the ■street.</p> <p>2. TO' the extent that the cost of the improvement was occas- • ioned by the subway crossing of the railroad, it was not such .a construction of the street, which oould be charged to the abutting property, but should be borne by the city itself.</p> <p>8, While the cost of altering the grade of a street, so as to carry the street under a railroad, can not be imposed upon abutting property, yet the city council has legislative discretion to fix the grade, and the building of the street at the grade thus fixed can he made a charge upon the abutting property.</p> <p>[This case should have appeared in a former report, but was not marked “to be reported," at the time, .and was overlooked. Reporter.]</p>

Case 46 — Action to Recover Damages for the Death of Plaintiff’s Intestate — APPEAL FROM BULLITT CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. Wm. A. Van Vactor' was an employe of appellee and was so injured hy the rebound of a jack-handle used in elevating a bridge on February 28, 1899, ‘that he died from the effects of it on August 28, 1899. He left as his only heirs his wife, then an infant and an infant child two years of age.

<p>Taxation — Exemption of Church Parsonage — Collection of Taxes by Garnishment.</p> <p>Held: 1. Under Constitution, .section 170, exempting from taxation “places actually used far religious worship, with the grounds attached thereto and used and appurtenant to the house of worship,” and '“all parsonages or residences owned by any religious society and occupied as a home, and for no other purpose, by the minister .of any religion,” a church .parsonage which is not occupied by the minister, but is rented to another, is not ■ exempt, though erected on the church lot, .and though' the rent .is pal'd to the minister.</p> <p>2. Under Kentucky Statutes, section 4184, authorizing the sheriff to (institute a garnishment proceeding for the collection of taxes if he, “believes he can not otherwise collect the tax,” it will ■be presumed, 'in .support of euch .a proceeding, that the sheriff ■did so believe, where the taxes were past due, and the taxpayer was denying liability.</p>

Case 48 — Action on a Policy of Life Insurance — APPEAL FROM M’CRACKEN CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. George P. Beard in .September, 1897, procured a policy on Ms life, in'the Manhattan Life Insurance Company.

<p>Case 49 — Motion .by the L. & N. R. R. Co., against Judge Shackelford Miller for a Writ of Prohibition —</p> <p>This oase comes out to the count on the application of the railroad company for a w.rit of prohibition against' Judge Miller.</p> <p>The question involved lies between very narrow limits, and involves simply a construction of an order of court.</p> <p>A suit was brought in the Jefferson circuit court, and fell to the_ chancery division, by the Central Stock Yards Company against the L. & N. R. R. Oo., seeking to have certain stock delivered at the Central Stock Yards Company. The case being fully prepared by affidavits, the court entered an order which contains two ideas, one is that the railroad company should •receive at stations in Kentucky, all stock offered to it, and should consign that stock to the Central Stock Yards Company if required ,by the shipper, and should deliver the stock accordingly. The other idea is, that if stock be delivered to •the company for shipment outside of Kentucky, (that it shall he delivered according to the consignment. The language of the order iis as follows:</p> <p>“The court being advised, delivered a written opinion- herein which is ordered to be and 'is now filed and made part of the record herein.</p> <p>And in pursuance of said opinion it is ordered and adjudged that t!he defendant, Louisville & Nashville Railroad Company, be enjoined .and restrained from neglecting or refusing to receive, and said Louisville & Nashville Railroad Company is hereby required .and compelled, until further order of the court herein, to .receive at any and all of its stations in Kentucky, and to bill, transport, transfer, ©witch and deliver in the customary way, 'at its most convenient .and practical point of physical connection between its tracks in Louisville, Kentucky, ¡and the ¡tracks of the Southern Railway in Kentucky, at Louisville, Kentucky, and at their Seventh and Magnolia street connection, ¡any ,and all live stock and other freight consigned ito the 'Southern Railway Company in Kentucky at Louisville, Kentucky, for the Central Stock Yards Company for transportation and delivery by said Southern Railway iCompany in Kentucky to plaintiff at Central Stock Yards, Kentucky, or any other person or persons at said station or in care of said Central Stock Yard Company at said station, and to so transfer, ¡switch and deliver to said Southern Railway Company in Kentucky, at Louisville, Kentucky, and at said point of physical connection, any and all live stock and other freight coming over its lines ,in Kentucky consigned to the Central Stock Yards Company at Central Stock Yards, Kentucky, or any person or persons at said station or in care of said Central Stock Yards Company at said station for transportation and delivery by said Southern Railway Company in Kentucky, at Louisville, Kentucky, as so hilled and consigned.” “The foregoing order will be issued by (the clerk and become effective from and after (the execution of bond by the plaintiff to the defendant to be approved by the clerk of this court and conditioned as required by law, in .the sum of ten thousand dollars.” After this order was entered, certain stock was offered to the L. & N. R. R. Co. ¡at Columbia, Tennessee, .and the, company was requested to consign it to the Central Stock Yards via Southern Railway, but the company refused to so consign the goods, and then a contract was made between the .shipper and the railroad company by which the stock was consigned to Louisville, Kentucky, and being so consigned was delivered at the regularly established live stock depot, in Louisville, Kentucky, viz. the Bourbon Stock Yards. The Central Stock Yards Company contends that its stock yards are not in - Louisville. When the stock reached South Louisville, the consignee under the authority of the consignor demanded that the cars of the L. & N. R. R. Co. should be stopped at that point and delivered to the Southern Railway Company to be carried on its track to the Central Stock Yards, and this the L. & N. R. R. C.o. refused to°do, but carried the stock on to the Bourbon Stock Yards and there delivered .it. When this was done ¡a rule was obtained from the Jefferson circuit court, chancery division, against the L. & N. R. R. Co. to show cause why it should not he punished for contempt for disobeying the order of the court quoted above. The company responded showing the facts above stated, which facts are shown by the affidavits which served as the foundation for the rule. And now the question is, How can the acts of the L. & N. R. R. Co on the facts stated, possibly be a violation of the’ order of injunction? If it is not a violation then we submit that ithe court has no right to cut off the company from the remedy given by law to all litigants when an injunction is granted or modified, of going to a judge of this court and asking him to dissolve or modify it. We do not think it is now proper to discuss the merits of the question, because we concede that we could not on this application, question the correctness of Judge Miller’s decision upon the merits. The only question is whether or not the acts complained of are violative of the order already granted. If they are not, then we respectfully insist that Judge Miller, holding to the view he does, should have granted an injunction againslt us in which event we would have had the legal remedy of coming to this court, but when he adopted the course he does and declares that that is violative of the injunction, which on the face of it does not in spirit or in letter cover the 'act, the effect is to cut us off from the remedy given by law.</p> <p>On the question of the right of this court to grant the writ, in view of the fact that the lower court had jurisdiction, we refer to the cases of Hindman v. Toney, 97 Ky., 4X3; and Weaver v. Toney, 2X Ky. Law Rep., 1157. If the facts constitute a violation of the first section of -the order of injunction, then the last section of the order is without value. Can it be said that the L. & N. received the freight at Souith Louisville when it had had charge of the freight ever since it left Columbia, Tennessee? There was no surrender of the original bill of lading, nor an offer to rebill the stock at South Louisville. Under all the circumstances we submit that the company ought not to be cut off from the legal remedies provided by law. This will be the result if all shipments' until the final hearing in this court shall be controlled by adjudging that acts come within the order which in fact do not come within it. If the court thinks there was no violation of the order we submit that it is its duty to grant the writ and let us have a new injunction and .then let us resort to the remedies given by law to all litigants.</p> <p>1. The defendant demurs to the petition and says it does not state facts sufficient to constitute any cause of action, against him.</p> <p>2. The petition does not contain any true and complete transcript of the record upon which it is sought to subject him to a prohibition; the court has no way of determining from the petition and exhibits tha grounds and reasons upon which he acted in making the judgment complained of by uncertified scraps of the record.</p> <p>3. The exhibit “K” filed with the petition which purports to be a copy of the order of the, court, is neither a true or correct copy, and it is not certified by the clerk of the court, and further he says that on January 4, 1902, no order was entered in said case, and in evidence thereof he filed herewith as part 'hereof ,an affidavit of the clerk of the chancery division of the Jefferson circuit court.</p> <p>4. At the time the order was made imposing a fine for contempt of court, no copy of which is exhibited with the petition, the L. & N. R. R. Co. was before the court on service of process, and entered its appearance and resisted (1) the issuing of any -injunction, and (2) to the imposition of the fine complained of, and the court thereby had full jurisdiction over the parties and over the subject matter and rendered a judgment, not exhibited with the petition, according to the best lights he -had, and, as he believes, in accordance with law.</p> <p>5. He objected .most strenuously to the plaintiff in this case, attempting in substance to prosecuting an appeal from an interlocutory order, when no transcript is exhibited to the court, ,so that it may .see and judge whether the matter is subject to reversal on appeal by way of a prohibition.</p> <p>6. The plaintiff does not disclose the fact in the petition, that it had formerly been proceeded against and fined the moderate sum- of $10 for contempt of court, and that when the second offense came along that fine was .doubled.</p>

Case 50 — Action to Recover Damages fob being Ejected from Defendant’s Train — ARREAD FROM HOPKINS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. SYNOPSIS. 1. The Hopkins circuit court had no jurisdiction to try this case, because .plaintiff was a non-resident of the county, and her alleged injury occurred in Christian county, .and the “residence of the carrier” is in Jefferson county.

Case 51 — Indictment for Malfeasance in Office — APPEAL FROM DAVIESS CIRCUIT COURT. Judgment Dismissing Indictment on Demurrer and Commonwealth 'Appeals. The appellee, J. Edwin Rowe, who is the Commonwealth’s attorney for the Sixth Judicial District of Ky., was indicted at the April term, 1901, of ithe Daviess circuit court, for the common law offense of malfeasance .in office.

<p>Case 52 — Indictment for Carrying on Business of Retail Druggist and Pharmacist without Obtaining the Certificate Required by Section 2620 Kentucky Statutes.</p> <p>APPEAL FROM RUSSELL CIRCUIT COURT.</p> <p>Judgment Dismissing Indictment and Commonwealth Appeals.</p> <p>R. D. Hovious was indicted under section 2620, Kentucky Statutes, and on trial pleaded as a defense that he was a licensed practicing physician, and that he was exempted by section 2632, Kentucky Statute, which provides that “nothing in this act shall .apply to or in any manner interfere with ithe business of any licensed practicing physician, or prevent him from supply, ling to his patients such articles as may seem -to him proper, or with compounding his own prescriptions.”</p> <p>If the Legislature had intended to permit -physicians to -carry on a retail drug business, by virtue -of his license as a physician, it would have said that nothing in this act shall be construed to -apply to a licensed practicing physician.</p> <p>The exception is specific, -and says the business of a licensed practicing physician, and clearly limits his privileges ito that of a physician. He can compound his own prescriptions, but not those of other physicians.</p>

<p>Case 53 — Action to Enforce a Judgment —</p> <p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals —</p> <p>In March 9, 1896, appellee recovered a judgment against the the Kentucky Central Railway Company for $500 with interest and $125 costs, upon which execution was issued and upon a return of no property found, this suit was filed on May 9, 1898, against the L. & N. R. R. Co. to recover the amount of said judgment.</p> <p>It is alleged in the petition as amended, that the Kentucky Central Ry. Co., sold all of its property to the appellant for a valuable consideration on Sept. 22, 1891, by deed which was recorded in the Harrison county clerk’s office, Oct. 15, 1891, and further alleges that on Sept. 22, the day the deed was executed, and for a long time prior thereto, the appellant had been actually in control of and operating said road and knew of the injuries inflicted upon appellees by being carried past their station a distance of two and one- half miles, and that the object of the deed was merely to consolidate the two companies and enable the appellant to control and operate the Kentucky Central Ry. Co. for the benefit of appellant.</p> <p>The said decree contains the following language: “The railroad company (appellant) now owns the entire capital stock of the railway company and this conveyance and transfer is made subject to all the bonded indebtedness and other indebtedness of said railway company and the said other companies without in any manner affecting the same or the rights of creditors therein, which said railway company and property hereby conveyed, are to be operated as required by the laws of the State of Kentucky.”</p> <p>The court overruled a demurrer to the petition as amended.</p> <p>The appellate’s answer denies that it undertook to be responsible for or agreed to pay all of the indebtedness or liabilities of the Ky. Central, but says it purchased same .in good faith subject to its bonded indebtedness as well as the other .indebtedness of the Ky. Central Ry. Co.</p> <p>By the first paragraph it is contended that an action for damages is not, an indebtedness against the Ky. Central and that therefore appellant took the property free from any claims for torbs or injuries, and that appellees had no cause of action against appellant unless it was alleged and proven that appellant held assets belonging to the Ky. Central Ry. Co.</p> <p>The second paragraph pleads the one year statute of limitation, alleging that at no time within one year, did she institute suit against appellant, though .having notice of said purchase.</p> <p>The third paragraph pleads the five year statute of limitation against the alleged claims. The contention of appellant is, ■that even if it did .assume the indebtedness of the Ky. Central, suit to recover that indebtedness must be brought within five years next after the cause of action accrued.</p> <p>The fourth paragraph is a plea in bar, and the fifth denies that appellant was operating the road or controlling any property of the K. Central, prior to Sept. 22, 1891, and further denies the transfer was a consolidation, but was a purchase in good faith, and that .the stock of the railway company was transferred to appellant the same day of the purchase.</p> <p>AUTHORITIES CITED.</p> <p>Vol. 8 Am. & Eng. Ency. of Law, page 987; L. & N. R. R. Co. v. Brantley’s Admr., 96 Ky., 308; Ridgeway v. Griswold, 1 McCrary, 151; C. & O. R. R. Co. v. McLean, 12 R., 989; L. & N. R. R. Co. v. Zaeharist'z, 13 R., 141; C. & 0. & S. W. R. R. Co. v. Crest, 85 Ky., 619; Board Trustee v. C. & O. R. R. Co., 94 Ky., 381; Morawetz on Corporations, p. 558; K. C. R. R. Co. v. Biddle, 17 R., 1363; L. & N. R. R. Co. v. Orr, 91 Ky., 114.</p>

Case 54 — Action foe Specific Performance of a Contract— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. PROPOSITIONS AND AUTHORITIES. First. That proceedings against non-residents are ecu varte and in derogation of the common law. Second. That a substantial compliance with every requisite of the code is mandatory. Third. A case is not commenced against the defendant until a summons is issued or a warning order made on the petition. Fourth.

Case 55 — Action foe an Injunction — APPEAL FROM CLINTON CIRCUIT COURT. Judgment foe Defendant and Plaintiff Appeals. This is an action seeking to restrain appellee from erecting and occupying a stable on appellee’s lot within twenty-seven feet of the Albany Christian -Chprch house, said stable to be forty-five feet long and thirty-two feet wide.

Case 56 — Action foe an Injunction — APPEAL FROM GRAVES CIRCUIT COURT. JUGMENT FOR PLAINTIFFS AND DEFENDANTS APPEAL. This is an action instituted in the Graves circuit court by the appellees who claim to be members of the Bethel Church in Graves county, and that they have been appointed a committee to sue for the use and benefit of the congregation.

<p>Case 57 — 'Motion to Dismiss Appeal —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p>

Case 58. — Action to Surcharge Sheriff’s Settlement — appeal from marshall circuit court. Judgment for Plaintiffs and Defendant Appeals. J. H. Little as sheriff of Marshall county collected taxes from the tax payers of Civil District No. 6 of said county which includes the town of Benton for the years 1895-96 and 97, which district had voted and subscribed for $15,000 of stock in the Paducah and Tennessee Railroad for which subscription bonds had been issued.

Case 59 — Action foe Sale of Infant’s Real Estate and Reinvestment of the Proceeds — APPEAL FROM BALLARD CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The judgment appealed from was rendered in the Ballard circuit court, April 22, 1899, ordering the sale of certain real estate which appellant, Bettie Womble nee Bettie Trice inherited from her father who died only a short time before the filing of the petition.

<p>Injunction — Reinstatement by Court of Appeals Pending Appeal-—Failure to Give Notice of Motion to Reinstate.</p> <p>Held: 1. Under Civ. Code Prac. section 747, the court of appeals-has no power, upon appeal from an order dissolving an injunction on final hearing, to reinstate the injunction pending the appeal, except after reasonable notice to appellee of the motion to reinstate.</p> <p>2. Where final judgment dissolving an injunction was rendered December 18th, and twenty days was given appellant in which to apply to the court of appeals to reinstate the injunction pending the appeal, a motion filed in the clerk’s office of the court, of appeals January 6th, but not entered in court until January 8th, was too late.</p>

<p>Criminal Law — Appeal—Time for Filing Transcript.</p> <p>Held: Under Cr. Code Prae. section 336, the sixty days allowed for filing transcript of the record in the clerk’s office of the . court of appeals in a felony case runs from the date of the judgment, and not from the date of the filing of the bill of exceptions, unless the time for filing bill of exceptions is extended to a subsequent term; the extension of time for filing bill to a subsequent day in the same term at which the judgment was rendered not being sufficient to extend time for filing transcript.</p>

Case 62 — Action on Guardian’s Bond — appeal from pike circuit court. Judgment for Plaintiffs and Defendants Appeal. The .appellees by their guardian S. J. Salyer on Aug. 25, 1898, instituted an action in the Pike circuit court against Jas. Matney, as the former guardian of appellees, and his sureties on two separate bonds executed by him at different times, to recover tbe sum of $1,666.66 which went into said Matney’s hands as such guardian.

Case 63 — Action foe an Injunction — APPEAL FROM HE^RY CIRCUIT COURT. Judgment fob Defendants and Plaintiff Appeals. The appellees, trustees of Eminence graded school district, sought to compel appellant to pay taxes on all his land, both within and without the district, because his residence is within the district, and he files this action to enjoin them from selling property to pay taxes on land outside the district.

Case 64 — Action to Enjoin the Collection of a Pee Bill — APPEAL FROM MARION CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Action foe Causing Death — Death of Administrator and Beneficiary Pending Action — Revival.</p> <p>Held An action by a father, as administrator, under Kentucky Statutes section 6, to recover damages for the death of his child, did not abate upon the death of the father, hut the action should have been revived in the name of his successor as administrator; the recovery, after the payment of funeral expenses, costs of administration, and costs of recovery, being for the benefit of the father’s estate, plaintiff’s intestate haying left no widow, child, or mother.</p>

Case 66 — Action for Mandamus — APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 67. — Action to Recover Damages for the Death of Plaintiff’s Intestate — APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Plaintiff for only part of what she claims and she appeals.

■Case 68 — Action by Greenwich Insurance Co. against the L. & N. R. R. Co. and the Frank Fehr Brewing Co. to Recover Damage for Loss by Fire — APPEAL FROM MARION CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. On July 13, 1899, at noon the plaintiff Greenwich Ins. Co. insured for Frank Fehr Brewing Co. in the sum of $300 on a one-story frame cold storage building.

Case 69 — Action for a Settlement of Partnership Accounts.— APPEAL FROM KENTON CIRCUIT COURT. Judgment Granting Relief Sought and Defendant’s Appeal. POINTS AND AUTHORITIES. 1. Death of a partner terminates the partnership, and the survivor can not create new liabilities against the firm: Cook v. Carson, 45 Tex., 429, 430; Remick v. Ewing, 42 111., 342; Forrester v. Oliver, 1 111. App., 259; Story on Partnership, section 343. 2.

Case 70 — Action to Enforce a Mortgage Lien. — APPEAL FROM ROWAN CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals.

Case 71 — 'Action for Libel. — APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Paintiff and Defendant Appeíals.

Case 72 — Action by the Commonwealth against the L. & N. R. R. Co. to Recover a Penalty for the Offense of Suffering Gaming. — APPEAL FROM TODD CIRCUIT, COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Principal and Agent — Delegation of Agent’s Authority to Sell Land — Estoppel of Married Woman 'to Deny Agent’s Authority — Purchaser’s Right to Compensation for Improvements.</p> <p>Held: 1. An agent to sell land had no power to delegate his authority to his son, and the principal is not bound by a sale made by the son.</p> <p>2. While the active participation of a married woman in the perpetration of a fraud may operate, by way of estoppel, to divest her of her interest in real estate, yet a married woman is not estopped to deny the authority of one who sold her land, where she never received any part of the purchase money, or the notes executed therefor, or in any other way ratified or approved the sale.</p> <p>3. As the purchaser acted in good faith, he is entitled -to compensation for his improvements, to the extent they have enhanced ' the vendible value of the property; and the chancellor should require him either to surrender the land upon receiving payment for improvements, or to pay the purchase money, with interest from the day of sale — the rents being equivalent to the interest.</p>

Case 74 — -Actions to Recover Taxes. — APPEAL PROM CAMPBELL CIRCUIT COURT. Judgment por Dependants and Plaintiffs Appeal. These cases, two against the Newport and Cincinnati Bridge Co., one against the Louisville & Nashville R. R. Co. and one against the Maysville & Big Sandy R. R. Co., were all . brought by Campbell county to enforce the collection of franchise and ad valorem taxes due and owing the county including penalties and interest.

<p>Case 75. — Action to Recover Tolls Lost by Reason of the Operation of a Rival Ferry by Defendants. —</p> <p>appeal from m’lean circuit court.</p> <p>Judgment for Plaintiffs and Defendants Appeal, and Plaintiffs Prosecute a Cross Appeal.</p> <p>.SYNOPSIS OF POINTS DISCUSSED AND AUTHORITIES.</p> <p>1. There is a misjoinder of parties plaintiff. The court should have sustained the motion of defendants to require the plaintiffs to elect which one of them would prosecute the cause of action.</p> <p>2. The damages sought to be recovered are so remote, contingent and uncertain as to furnish no cause of action. It can not certainly be ascertained by any rule what plaintiffs’ damages, if any, were, by reason of the operation by appellants of their ferry boat, hence no cause of action lies. Kentucky Tobacco Association v. Ashby, 9 Ky. Law Rep., 109.</p> <p>3. Damages for profits (even in the case of a tort) are not recoverable except for the breach of an express or implied contract.</p> <p>4. The only relief which appellants in this case were ever or are now entitled to is to prohibit the further joint use by appellants of the boat owned by them.</p> <p>5. Authorities defining instances in which damages for profits may be recovered. Sutherland on Damages, vol. 1, page 112; 38 American Reports, 407; Griffin v. Glover, 69 American Decisions, 718; 53 American State Reports, 139; Kimball v. Hannon & Burch, 6 Am. Rep., 343; Wellington v. Small, 50 Am. Dec., 719; Com. v. Hunt, 38 Am. Dee.; Huttley v. Simonds, 1,2, B. D. (English); De Wolf v. Dix, 81 N. W. Rep., 781; Carew v. Rutherford, 8 Am. R., 287; Delf v. Winfree, 80 Texas, 400; Payne v. Western R. R. Co. Am. Rep., 666.%</p> <p>CLASSIFICATION OF THE QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. There was no misjoinder of parties plaintiff. Bliss on Code Pleadings, sec. 62; Civil Code, secs 18, 22, and 25; 1 .Mar.., 441, 1 Mon., 13, 8 B. M„ 55; 10 B. M„ 373. Same as to defendants. 4 Met. 333, Bliss on C. P., secs; 82-9.</p> <p>2. The objection as to misjoinder waived unless taken advantage of in circuit court. Wilson v. Thompson, 1 Met., 127; Gill v. Johnson, 1 Met., 651; Justice v. Phillips, 3 Bush, 200; Graves v. Lebanon Nat. Bank, 10 Bush, 25; Waits v. McLure, 10 Bush, 763; Williams v. Horn, 4 Rep., 736.</p> <p>3. The damages resulting to appellees, by the operation of a rival ferry, within about two yards their ferry, are not “re-, mote, contingent or uncertain.” A. & E. Eng. Law, (1st ed.) vol. 7, 951, 1104, Taylor v. Wilmington R., 4 Jones (N. Car.) 277; Owens v. Roberts, 6 Bush, 609; Newport, &e. v. Taylor’s Exrs. &e., 16 B. M., 779; City of New York v. Stark, 12 N. E., 631; Lawson’s Rights, Rem., &c., vol. 6, secs. 29, 58; Kent, vol. 3, (11th ed. 590; C. D. B. Co. v. Geisse, 38 N. X, 39; Chenango Bridge Co. v. Paige, 38 Am. Rep., 407; Broadax v. Baker, 94 N. C., 675.</p> <p>4. May damages not be recoverable except for a breach of an express or implied contract. Wood’s Mayne. on Damages, .see. 52; Chenango Bridge Co. v. Paige, 38 Am. Rep., 414.</p> <p>■5. Questions on cross appeal: Does section 1820, chapter 49, refer to unlicensed as well as licensed rival ferries. Kentucky ¡Statutes, sec. 1820, Warren, &e. v. Tanner, &c.„ Ky. Law Rep., 1678.</p> <p>6. Common law remedies and statutory penalties may be united in one action. Lawson’s Rights, Remedies, &c., vol. 6, 29, 58; A'. & E. En. L. (1 ed.) vol. 18, 271; Pearres v. Freer, 9 Cal., 642; Kansas City,, &e., R. R. v. Spiner, 72 Miss., 491; 17 South, 169.</p> <p>7. Several causes of action for penalties may be united. State v. Hughes, 21 S. B., 971; Cincinnati, S., & R. Co. v. Cook, 37 Ohio St., 265; Snow v. Mast., 65 Fed., 995; State v. Kansas City R. R. Co., 32 Fed., Rep., 722; People v. McFadden, 13 Wend. (N. Y. 396); L. & N. R. R. Co. v. Com., 19 R., 1466; Com. V. L. & N. R. R. Co., 19 R„ 610.</p>

<p>Void. Land Patent — Disclaimer of Title to Land — Judgment Operating by Way of Estoppel as Against Strangers to Action — ■ Extent of Possession — Effect of Creating New County.</p> <p>Held: 1. Patents embracing land not vacant are void.</p> <p>2. In an action by tbe grantee in a deed against tbe grantor to quiet title to 'land claimed by plaintiff as embraced in the deed, in which defendant denied that he claimed the land, and admitted that he had conveyed it to plaintiff, a judgment quieting plaintiff’s title creates an estoppel running with the land, operating to vest in plaintiff all of defendant’s title, without regard to the construction of the deed, even as against persons not parties to that action unless they claim under a deed executed by defendant prior to the institution of the action.</p> <p>S. A patentee who actually settled on .the land embraced in his patent was in possession to the extent of his boundary, and the subsequent creation of a new county including a part of the land did not interrupt this possession.</p>

<p>Case 77 — Action Asking that Plaintiff be Ordered to Sell Certain Real Estate Held by Plaintiff as Trustee for Defendants and to Reinvest the Proceeds. —</p> <p>APPEAL FROM OLDHAM CIRCUIT COURT.</p> <p>Judgment Granting Relief Sought, and the Defendant, A. W. Burge, Appeals.</p> <p>Richardson Burge died many years ago a resident of Louisville, ICy., leaving a will by which he devised property to John T. Moore in trust for his son A. W. Burge and Rena Burge his wife, during their lives, with remainder to any child or children born to them, and in the event no child was born to them and survived Rena Burge, or in the event such child or children did survive, and die under twenty-one years of age, the property at the termination of the lives of A. W. and Rena should go to the brothers and sisters of A. "Wt Burge. By a codicil it was provided that after the death of A. W..and Rena, the estate should go to any child horn to A. "W. by any other wife than his wife Rena. Rena died leaving as her only child by appellant, A. W. Burge, Hallie Louise É. Burge, who is ove> twenty-one years of age, and so the entire estate is now beneficially owned by A. W. Burge and Hallie Louise‘E. Burge. A. W. is now fifty-five years of age. The codicil makes this contingency in the title: that A. W. may hereafter marry and have children in which event such children shall share equal-, ly with Hallie.</p> <p>In 1894 John T. Moore resigned as trustee, and appellee, Fidelity Trust and Safety Vault Co., was appointed his successor.</p> <p>The estate consists of several pieces of real estate, one lot lying in Pewee Valley, Ky., which Judge Holt desired to buy and appellants and appellee were anxious to sell. The price was agreed on at $7,800 and a written contract was entered into and signed by appellants and appellee and Judge Holt but on account of said contingency .Judge Holt preferred that a judgment of the circuit court ordering the trustee to sell be had and, then to have the court of appeals pass on the title, and the $7,800 was deposited with, the Trust Co. to await the decision of the court of appeals. In accordance with this contract this suit was brought. Appellants filed answer admitting they had signed the contract, and that the sale was beneficial to all parties interested, and in fact necessary, but they deny the power of the court to order the trustee to make the sale, claiming that the sale could only be made by the court through its commissioner. Evidence was taken showing the necessity for the sale and that the price agreed on was the full value of the property. Upon this record the lower court directed the trustee to make the sale to Judge Holt at $7,800, and from this judgment this appeal- is prosecuted. Civil Code, sec. 498-</p>

Case 78 — Motion to Dismiss Appeal for Want of Jurisdiction. APPEAL FROM LIVINGSTON CIRCUIT COURT. The motion to dismiss this appeal is based entirely upon'the idea that appellant admitted, in its answer, that it was indebted to appellee in the sum of $1.40 and because the court instructed the jury that they should find for appellee in said sum of $1.40, that, therefore, the matter in controversy is only $198.60, the verdict having been for plaintiff for $200.

Case 79 — Prosecution eor Robbery — APPEAL FROM HARRISON CIRCUIT COURT. Defendant Convicted and he Appeals. Appellant, Matt Jones was indicted for highway robbery and convicted and sent to the. penitentiary for two and one-half years.. There was no evidence in- this case to the effect that the victim was put in fear of bodily harm or other injury or that any force or violence was used by accused, at the time of the taking of the poeketbook from him.

Case 80 — Action foe Damages against Illinois Central R. R. Co. for Refusing to Admit Plaintiff to a Hospital. — Judgment for Plaintiff and Defendant Appeals. In September, 1898, appellee bruised his hand while in the employ of appellant driving steel, and he claims that by reason of the, delay of appellant in refusing to admit him into the employes’ hospital at Paducah, his hand had gotten in such condition that 'it became necessary to have three of his fingers amputated.

<p>Case 81 — Exceptions to Report of Settlement of John P. Morton’s Estate. —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment Sustaining Exceptions and John P. Morton’s Executors Appeal.</p>

Case 82 — Action to Settle Estate oe James H. Leslie, Deceased. APPEAL FROM PIKE CIRCUIT COURT. Judgment Allowing Claim oe York & Auxieb, and Kate Leslie, and Others’ Appeal.

Case 83 — Action to Recover Damages for Breach of a Covenant in a Lease. — APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. POINTS AND AUTHORITIES.- 1. A mortgagee can not maintain an action -against the tenant of his mortgagor on a covenant in the tenant’s lease hy which he agrees to restore the property to his landlord in good •order at the termination of the lease. 2.

<p>Held: Under Kentucky Statutes, section 4644, providing that a stenographer’s transcript of testimony, “when attested by the judge before whom the trial was had, may be taken, without being copied, to the court of appeals to be used .upon an appeal,” a stenographer’s transcript not attested by the judge will be stricken from the record on appeal, though there was an order by the trial court reciting that it was approved and signed, made a part of the' record, and ordered to be transmitted to the clerk ' of the court of appeals without copying; but the appellee may withdraw such transcript for the purpose of having it properly attested, if it can be done, and then refile it as a part of the record.</p>

Case 85 — Action for a Mandamus. APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. At the November election, 1901, appellant was elected justice of the peace for the third district of Henderson county, and was duly commissioned by the governor, November 18, 1901.

Case 86 — Action to Recover Alleged Balance Due on Bonds.— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Plaintiff and Defendant Appeals. Held: if at all, for the market value of the bonds at the time of the alleged .conversion, and could not be held for the results of Krieger’s assignee’s own contract to deliver them to somebody else.' 5.

-Case. 87 — Action against the Washington Life Insurance Co. for a Paid-up Policy — appeal from franklin circuit court. Judgment for Plaintiffs and Defendant Appeals. This is an appeal from a judgment of the Franklin circuit court at.-its September term, 1899, under which appellant, the Washington Life Insurance Co., is directed to issue to appellee, Samuel I. Miles, for the benefit of his sister, Alma Miles, a non-participating paid-up policy for $240.

■Case 88 — Action for Settlement of the Estate of Plaintiff’s Intestate, and to Recover Her Interest Therein, as Widow. APPEAL FROM MASON CIRCUIT COURT. .Judgment for Defendants and Plaintiffs Appeal. Appellant’s intestate and late husband, James Redmond, died in 1895, leaving surviving him-, his widow Margaret Redmond, and two sons and three daughters all by a former marriage.

Case 89 — Action on a Promissory Note. — APPEAL FROM WARREN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This action is upon a note drawn by J. I. Younglove and J. I. Younglove & Bro. (a firm composed of J. I. and John E. Younglove) payable to the order of Robert Underwood, sixty days after date, at Warren deposit bank, and which was discounted by said bank before maturity, thereby being placed upon the footing of a foreign hill of exchange.

<p>Case 90 — Action to Enforce a Judgment. —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.</p>

Case 91 — Action to Recover Damages for Breach of Contract— APPEAL FROM GRAVES CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals.

Case 92 — Action by the Commonwealth of Kentucky against the L. & N. R. R. Co. and C. & O. Ry. to Recover a Penalty and to Obtain a Forfeiture of the Charters of Defendants — APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. But two questions are presented by this appeal: 1. The construction of section 772a of the Kentucky Statutes. 2. Did the defendants or either of them comply' with the letter or spirit of said statute?

Case 93 — Action to set Aside an Execution Sale — APPEAL FROM LEE CIRCUIT COURT. Judgment Quashing Sale and Defendant Appeals. In this ease there are a number of irregularities complained of which have been excepted to but the principal question to be decided is, whether the land sold is exempt to the execution debtor as a homestead. The land sold is in Madison county and had been occupied by plaintiff as a homestead, but we claim he had abandoned it and moved to Lee county.

<p>Case 94 — Action by Jos. C. Dupoyster in His own Bight and as Administrator of Ben S. Dupoyster against the Ft. Jefferson Improvement Co. and Others to Enforce a Purchase Money Lien on Land. —</p> <p>APPEAL FROM BALLARD CIRCUIT COURT.</p> <p>Judgment Rescinding Contract of Sale and Adjusting Equities, and the Ft. Jefferson Improvement Co. and Others Appeal.</p> <p>This is the second appeal of this case. The opinion of the court when the ease was here before, is reported in 108 Ky., 792 (21 R., 515) (51 S. W„ 810) on the return of the case J. M, Benton filed proof of his appointment as receiver of the Ft. Jefferson Improvement Co., and was admitted as a party to the cause to represent its interests.</p> <p>On lodging, the transcript of the present appeal, counsel for the appellant company, and the receiver requested'the clerk of this court to place the transcript of the former appeal with this one. It has been stipulated by counsel that any portion of the first' transcript may be made use of to elucidate any proposition presented on this appeal..</p> <p>We contend on this appeal:</p> <p>1. Appellees should recover nothing except one-half of the land which Thomas Dupoyster owned, and the company’s lien should cover the interest of J. C. Dupoyster and wife therein.</p> <p>2. The company’s rights should be held to be superior to the deed of 1883.</p> <p>3. The company’s lien should cover the Norton lands and the Terrell lands and all the other lands bought by J. C. Dupoyster.</p> <p>4. There should be no subrogation to the Harkless mortgage.</p> <p>5. The Jackson heirs should have all the lots conveyed to them.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellees should not recover any lands not owned by /Thomas Dupoyster. . .Smith v. Brannin, 79 Ky., 119; Kirk v. Nichols, 2 J. J. Mar., 469; Venable v. Thompson, 3 Dana, 324; Upsham v. McBride, 10 B. Mon., 205; Morgan v. Brown, 4 Mon., 297; Freeman on Co-tenancy, sec. 154; Coleman v. Coleman, 3 Dana, 403; Sneed v. Atherton, 6 Id., 279-280; Bullock v. Bemis, 3 Mar., 287; Gundy v. Jackson, l.Litt., 11; Fowler v. Craven, 3 J. J. Mar., 429; Lunsford v. Turner, 5 Id., 105; Nolan v. Feltman, 12 Bush, 121; Foster v. Morris, 3 A. K. Mar., side p. 609; Wood’s Landlord and Tenant (Ed. 1888), vol, 1, p. 498; Martin Heirs v. Reynolds, 9 Dana, 328.</p> <p>2. Appellant’s lien should be held to cover the Norton and Terrell tracts. Jones on Mortgages, vol 1 (5th Ed.) sec 736, p. 683; Wadsworth v. Lyon, 93 N. Y., 201; Graham v. King, 96 Ky., 346; Burke v. Burke, 7 Ky. Law Rep., 434; Greer v. Wintersmith, 85 Ky., 516; McCullon v. Boughton, 132 Mo., 601.</p> <p>3. Appellees were not entitled to subrogation to the Harkless mortgage.</p> <p>1. They had not paid all the debt. Lusk v. Hopper, 3 Bush, 185; Hover v. Epler, 52 Pa. St. 522; In re Alleghaney Bankj 7 Atl. (Pa.) 788; 24 Amer. & Eng. Ency. Law (1st ed.), p. 200.</p> <p>2. They were volunteers. Dawson v. Lee, 83 Ky., 50; Ferguson .v. Quinn, 97 Tenn., 46; 36 S. W., 576; 33 L. R. A., 688; Ins. Co. v. Middleport, 124 U. .S., 534; McNutt v. Miller, 29 W. Va., 480; 24 Amer. & Eng. Ency. Law (1st ed.), 281.</p> <p>(a). Parol evidence to vary the contract between appellees and Harkless was not admissible. Benefit Assn. v. Hickman, 86 Ky., 254; More v. Parker, 15 Ky. Law Rep., 125, Bowers v. Linn, 14 Id., 889; Ry. Co. v. Godin, 12 Id., 508.</p> <p>3. A surety is not entitled to subrogation as against a prior surety. Bank v. Rudy, 2 Bush, 326; Patterson v. Pope, 5 Dana, 241; Brandenburg v. Flynn’s Admr., 12 B. Mon., 397; Bank v. Sherley, 12 Bush, 304; Ins. Co. v. Beaman, 48 Pac., 1007.</p> <p>4. The lien of the original Harkless mortgage was released by the extension granted on the execution of the mortgage by appellees. Chandler’s Admr. v. Scully, 7.Ky. Law Rep., 374; McGoodwin v. Williams, 14 Id., 204; 15 Amer. & Eng. Eney. Law (1st ed.), 838.</p> <p>4. The ruling of the trial court as to lands sold and waste committed by J. C. Dupoyster was correct. .Stone v. Lasley, 2 Duv., 267; Burch v. Burch, 62 Ky., 622; Dennison v. Foster, 9 Ohio, 126.</p> <p>5. The ruling of the trial court that the interest of Rebecca Dupoyster was subject to the lien of the company was correct. Kennedy v. Ten Broeek, 11 Bush, 241; Halley v. Winchester Lodge, 30 S. W., 9S9.</p> <p>6. The deed of 1883 was not notice to the company because not indexed, not delivered, and voluntary. Enders v. Williams, 1 Met., 348; Elliott v. Harris, 81 Ky., 470; Miller v. Bradford, 12 Iowa,. 14; Barney v. McCarty, 15 -Id., 510; Gwynne v. Turner, 18 Id., 1; Howe v. Thayer, 49 Id., 134; Peters v. Ham, 62 Id., 656; Frost v. Wood, 20 Ohio, 261; Lowbaid v. Culbertson, 59 Wis., 433; Speer v. Evans, 47 Pa. St., 141.</p> <p>SUBJECTS DISCUSSED AND AUTHORITIES.</p> <p>Deed of joint tenant for specific portion of joint lands by metes and bounds is not void, but may be ratified by the other joint tenants. Freeman Co-tenancy, secs. 199 to 220; Alve’s Exr. v. Town Henderson, 16 B. M., 165; Barnhart v. Campbell, 50 Mo., 598; Holcomb v. Coryell, 11 N. J. Eq., 548; Boggess v. 'Meredith, 16 W. Va., 1; Robinett v. Preston, 2 Robinson (Ya.) 276; Groolt v. Vandevort, 13 Neb., 505; Hagan v. Bickerton, 17 R. I., 483; Soutter v. Porter, 22 Me., 405; March v. Huyter, 50 Tex., 243; 60 Tex., 447; Emeric v. Alvarado, 90 Cal., 444; Goodwin v. Keny, 49 Conn., 563; Kimball v. Street, 173 Mass., 152; Frost v. Curtis, 172 Mass., 401; Dennison v. Foster, 9 Ohio, 126 and numerous cases therein cited.</p> <p>Mrs. Rebecca Dupoyster’s interest is not subject to any lien, for the reason that the deed as to her was never delivered or became effective, it being placed in escrow, and the condition wad never performed nor waived. Mudd v. Green, 11 Rep., 359; Devlin on Deeds, secs. 322-304.</p> <p>Upon rescission where interest is allowed the purchaser rents for the land should be charged him. In no event should the owner of lands be charged with rents and interest, as here.</p> <p>All questions as to Jacksons are res judicata by the first judgment from which they did not appeal. Former Opinion, 108 Ky., 792; (51 S. W. Rep., 810; 21'R., 515.)</p> <p>As to the question of subrogation we claim that the Improvement Co. has not lost anything by the judgment to J. B. Dupoyster the full benefit of the purchase of the Terrell land but in fact has been benefiited by the $400 'that was paid on its debt.</p> <p>There is no theory of the law that would give the company a lien on any property of B. A. Dupoyster except the land bought of him upon rescission.</p> <p>J. B. Dupoyster wás an infant when the deed from B. S. Dupoyster to him was made, and could not contract, and so did not agree to pay the Terrell debt and has done nothing .since his majority to bind himself to pay it except his purchase of the property at decretal sale. The company has paid nothing on the faith of said deed and is in no position to claim an equity. There can be no subrogation without a payment or a liability. We repeat that the Terrell land was sold under a decree in this case, and bought at public sale by J. B. Dupoyster who has paid the purchase price out of which these appellants have been paid over $400.</p> <p>As to appellee’s right to subrogation to the Harkless mortgage:</p> <p>In this case there was a judgment rendered that the Hark-less de.bt was superior to the claim of every person and this judgment was rendered at the solicitation of counsel who then and now represents the Improvement Company. By the opinion of the former appeal this judgment lien covers the joint tenancy of J. B. Dupoyster and Mrs. Edwards with their father. J. B. D. pays off part of this lien in money and gives with security for the balance and absolutely discharges that debt and release the joint property from the judgment and mortgage lien. There is no better settled principle of subrogation than that he is entitled to the lien of the judgment and prior mortgage even if there was no agreement that he should have such a lien. Selden on Subrogation, see. 173; Hai-ris, 796; and cases cited.</p> <p>We respectfully submit to this honorable court the following'</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The ruling of the court below sustaining the demurrer to the amended and supplemental answer and cross petition of J. B. Dupoyster and Dalva D. Edwards filed April 20, 1900, was error. 30 S. W. Rep., 702 Texas; Alves v. Henderson, 16 B. Monroe, 165; Kistner v. Sidlinger, 33 Ind., 117; Ross v. Henderson, 77 N. C:, 170; 15 Amer. Dec., 395; 65 Amer. Dec., 283; 55 Amer. Dec., 234; 24 Amer. Dec., 121; 60 Amer. Dec., 264; Jackson v. More, 6 Cow., 723; Young v. Edwards, 33 S. C., 404; Packard v. Moss, 7 "W. C. Rep., 310; Hartford & S. O. Co., v. Miller, 41 Conn., 112; Sutter v. Porter, 27 Me., 417;' Doll v. Brown, 5 Cush., 291; Barnes v. Lynch, 21 Amer. St. Rep., 470; Johnson v. Johnson, 2 Hill Ch. 277; Graham v. Pierce, 19 Gratt. Ch. 28; Nelson v. Clay, 7 J. J. M. Ky., 138; Sec. 197, Freeman, co-tenancy and partition; Sec. 199 Freeman co-tenancy and partition; sec 206, Freeman co-tenancy and partition; Thomas et al., v. Turner, et al., 18 Ky. Law Rep., 209.</p> <p>2. The court erred in subjecting the interest of Mrs. R. S.. Dupoyster to sale to satisfy appellant’s lien against J. C. Dupoyster. Fink, etc. v. Nolen, etc., 54 S. W., 948; Curd v. Dodds, 6 Bush, 681; Gwens v. Snodgrass, 6 Dana, 229; 2 Hilliard on Torts, 590; Falmouth Bridge Co. v. Tibbatts, 16 B. M., 637.</p> <p>3. The allotment of three blocks of these lands to the heirs of Fannie C. Jackson was also error. See authorities under point one.</p> <p>4. The court erred in appointing a receiver and directing the collecting and adjudging rents in favor of appellants: 60 -S. W.„ Rep., 185; 21 S. W., Rep., 1054; 15 Ky. Law Rep., 12; 20 Ky. Law Rep., 593; 5 S. W., Rep., 448.</p> <p>5. Appellees were entitled to be subrogated to the lien of Harkless because of the settlement of Harkless mortgage: Acer v. Hotchkiss, 97 N. Y., 402; Ostermier v. Ostermier, 29 S. W., 221; 18 Ky. Law Rep., 1024; Crippen v. Chappell, 25 Kan., 495; 57 Amer. Rep., 687; Gans v. Theme, 93 N. Y., 225; Emmett v. Thompson, 52 N. W, Rep.. 31 Min.; Milton v. Mayberry, et at, 75 Wis., 191; Levi v. Martin, 48 Wis., 198; Valiskins v. Flemmings Tr., 29 Mo., 152; 77 Amer. Rep., 557; Blodgett v. Hitt, 29 Wis., 184; Perry v. Adams, 2 Amer.' St. Rep., 326; Hall v. Hall, 35 W. Va., 155; 39 Amer. St. Rep., 800; Amer. v. Boyer, 89 Ala., 273; 7 S. W., Rep., 663; Pom. Eg. Jur., sec. 729.</p>

<p>Case 95 — Action to Settle the Estate of Jacob Roederer, Deceased, and for Allotment of Dower.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Sustaining Exceptions to the Report of Sale of Land and David Roederer and Others Appeal.</p>

Case 96 — Action to Enforce a Mortgage Lien APPEAL FROM CLAY CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. In March, 188, T. T. Reid died, a bachelor, domiciled in Clay county, about thirty years of age. His will was probated in 1895 in the Clay county court. His father survived him. His mother was dead. In 1890 his father executed to appellee, E. J. Benge a mortgage on alb or about all, the land decedent owned at his death, to secure a loan of $600.

Case 97 — Action por a Mandamus. APPEAL from MARSHALL ■ CIRCUIT COURT. The question presented by this appeal is, the sufficiency of appellant’s petition which seeks to compel the board of trustees of the town of Benton, a town of the sixth class, under the laws of this Commonwealth by mandamus proceedings, to grant him a license to continue in his business, that of a saloon keeper, in which he has' been engaged for several years, and which had been refused by said board.

Case 98 — Action by County Judge fob Salary. APPEAL FROM MARION CIRCUIT COURT. Judgment fob Plaintiff and Defendant Appeals. The contention of appellee’s counsel is based wholly upon section 161 of the Constitution. Section 1072, Kentucky Statutes, says: “The county judge shall receive an annual salary to he fixed at a reasonable' amount by the fiscal court.” How are you going to fix a reasonable salary unless you fix it each year according to the work done?

Case 99 — Action for Sale of Land and Division of Proceeds.— APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for a Sale of the Land and Defendant, Amos Phillips, Appeals. Appellant, Amos Phillips, was married to Miss Susie B. Farley in 1893. In January, 1894 the land in controversy was conveyed to her in fee simple. In 1895 a child was born of the marriage and died in a few days, its mother, Mrs. Phillips, also dying a few months later.

Case 100 — Action to Recover Dower. — APPEAL FROM BOYD CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. The plaintiff's husband died in July 1897, and she brings these suits against. L. C. .Hazlett, W. R. Fisher and W. H. White in March 1900, to have dower assigned to her in the land conveyed to them by her husband in 1S73 and 1877 in which conveyances she did not join, she being his wife at the time said conveyances were made, and his widow now.

Case 101 — Action to Recover Damages for the Death oe Plaintiff’s Intestate. — APPEAL FROM OHIO CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. 'This suit was brought by the administrator of decedent to recover $15,000 in damages. The lower court sustained a demurrer to the petition — plaintiff declined to plead further and his petition was dismissed, and he appeals. 1. Petition does not state a cause of action.

Case 102 — Action to Surcharge a Settlement Made by a Guardian. APPEAL FROM HARDIN CIRCUIT COURT. Judgment foe Plaintiffs and Defendant Appeals. This appeal is taken by reason of the errors of the court below in not sustaining the special demurrer of J. E. Dawkins for himself and those for whom he stood as trustee. (1.) Because the court had no jurisdiction of the defendants.

Case 103 — Action to Recover Damages por the Death op Plaintipp’s Intestate. — APPEAL prom mason circuit,court. Judgment Removing Cause to United States Circuit Court and Plaintive Appeals. We submit that the court erred in directing this ease to be transferred to the federal court for the following reasons: 1.

Case 104 — Action to Recover Land. — APPEAL PROM MARION CIRCUIT - COURT. Judgment for Plaintiff and Defendant Appeals. Lafe Atkins, a widower with, some five children, married Lucy Baker, sister of appellee, who died without having had any children. 'Lafe Atkins then married Geneva Atkins by whom he had two children, both mow infants. Lafe dieid leaving no estate except the twelve acres of land named in the petition, on which he lived and died.

Case 105 — Action foe an Injunction. — APPEAL FROM ALLEN CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. In this suit the plaintiffs seek an injunction against Wilson Graham restraining him from teaching the common school in district No. 52 in Allen county.

Case 106. Action fob Partition of Band and Allotment of Dower. — APPEAL FROM HARLAN CIRCUIT COURT. JUDSMENT FOB DEFENDANT AND PLAINTIFF APPEALS.

<p>Principal and Agent — Making of Bill of Exchange by Agent in His Own Name — Release of Agent by Election to Proceed against Principal — Subrogation.</p> <p>Held: Where the holder of a bill of exchange, upon discovering that A., the maker, had acted as agent, or for the accommodation, of Y. in executing the bill, presented the paper as a claim against the insolvent estate of Y., and received a dividend thereon, there was not such an election on his part to look to the undisclosed principal as precludes him from looking to A. for the balance due, as he sought merely by presenting his claim against the estate of Y. to be subrogated to the rights of A. against that estate.</p>

Case 108 — Action to Enforce .Liens fob Street Improvement.— APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. JUDGMENT FOR PLAINTIFFS AND DEFENDANTS APPEAL. Held: liable. See. 2829 Kentucky -Statutes; Richardson v. Mehler, 23 Ky. Law Rep., 917; sec. 4, Endlish on Interpretation of Statutes; Koch v. Bridges, 45 Miss., 258; Dwarris on Statutes, page 228; Sedgwick on Constitutional and Statutory Construction, page 325; Murray v. Tucker, 10 Bush, 240. 2.

Case 109 — Action to Recover Damages for Personal Injuries.— appeal from carter circuit court. Judgment for Plaintiff and Defendant Appeals. PROPOSITIONS AND CITATIONS. 1. Defendant had the right and it was its duty, in view ÓT the plaintiif’s conduct, to put him off the train at Aden: Kentucky Statutes, sec., 806; L. & N. R. R. Co. v. Logan, 88 Ky., 232, 239-41; Smith v. L. & N. R. R. Co., 95 Id., 14-15. 2.

Case 110 — Indictment for Combining to Raise the Price of Beer. — APPEAL FROM KENTON CIRCUIT COURT. Indictment Dismissed and Commonwealth Appeals. The indictment herein, was drawn under sections 3915 and 3917, Kentucky Statutes, preventing the formation of pools, trusts, combinations, conspiracies, etc., and to provide punishments therefor.

Case 111 — Actkjn on a Contract of Guaranty — APPEAL FROM JEFFERSON CIRCUIT COURT. CHANCERY DIVISION. Judgment for Plaintiff and Defendant Appeals. This is an appeal from a personal judgment against appellant for $438 upon his alleged liability, upon the guaranty endorsed upon four lien notes for $500 each given September 2, 1897, by Henry Gauss and wife to appellee due in one, two, three and four years, from date, respectively.

Cáse 112. — Action foe an Injunction. — APPEAL FROM FAYETTE CIRCUIT COURT. Judgment foe; Defendant and Plaintiff Appeals. The appellant sought by tbe remedy of injunction, in the lower court, protection in tbe use of its corporate nalme, and tbe prevention of injury to its business. The remedy sought was refused, the court holding, on demurrer that the facts stated in the petition did not authorize the remedy invoked.