Volume 113 — Kentucky Reports

<p>Action for Causing Death — Distribution of Amount Recovered.</p> <p>Held: 1. Under Const., section 241, giving a right of action for the death of a person resulting from any injury inflicted by negligence or wrongful act, and providing that “the General Assembly may provide how the recovery shall go and to whom belong, and until such provision is made the same shall form part of the personal estate of the deceased person,” the Legislature had power to'provide, ajs it has done hy Kentucky Statutes, section 6, that “the amount recovered, less funeral expenses and the cost of administration and such cost about the recovery, including attorney’s fees, as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased,” naming the order in which they shall take.</p> <p>2. Under that statute only the ftmea-al expenses! and the cost of recovering and administering the particular fund are to he paid out of the fund before the distribution to the kindred of deceased, all other costs of administration being payable out of the general estate.</p> <p>3. Funeral expenses having been paid out of the- fund, the kindred of deceased entitled to the remainder of the fund, ate not entitled to be reimbursed out of the general estate.</p>

Case 2 — Action Upon a Contract APPEAL FROM HENDERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. This suit grows out of raising the roadbed of the appellant under a written contract of March 6, 1899. The work do be done under the direction of the engineer, who had power to reject any part of it, and who was to determine, the amount done, for which appellee was to receive 13% cents per cubic yard.

Cask 3 — Action to Recover Damages .for Personal Injuries.— APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiff Appeals. POINTS AND AUTHORITIES. 1. Street railway companies are not obliged to make safe landing places, but to select them. Augusta Railway Co v. Glover, 92 Ga., 146. Such companies are liable for stopping their cars in the dark at places where it is dangerous for passengers to alight when injury results therefrom.

<p>Case 4 — Defendant Convicted of Manslaughter Under an Indictment for Murder.</p> <p>APPEAL FROM BELL CIRCUIT COURT.</p> <p>Defendant Convicted of Manslaughter and Appeals.</p>

Case 5 — Action Between Two Factions of a Society Over the Property oe the Society.' APPEAL PROM FAYETTE CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. After a careful reading of the charter.the Union Benevolent Society, vol. 1, page 464, Session Acts of 1878 of the Kentucky Legislature, we find nowhere, the authority given by which the grand lodge could turn itself into a secret organization.

Case 6- — Action by Commonwealth against the Read Phosphate Company to Recover a Penalty. appeal prom logan circuit court. Judgment por Dependant and Plaintiff Appeals.

Case 7 — Action to Enforce a Mortgage Lien APPEAL FROM JEFFERSON CIRCUIT COURT,- CHANCERY DIVISION. Judgment against Amelia Sci-iaf.fer and She Appeals. The object of this appeal, is, by reversing the judgment of the lower court, to relieve appellant’s land from a lien of about $1,500 adjudged against it to pay the debts of appellees. This result was reached by thé trial court through a misconception that an executed deed, inter vivos, may be revoked by a will.

Case 8 — Action on a Policy of Insurance. appeal from jessamine circuit court. Judgment for Defendant and Plaintiffs Appeal. Affirmed. This is a suit upon an insurance policy upon the life of Charles M. Boulden for $10,000.

■Case 9 — Action p.y Carrie Taylor against Phoenix National Bank to Recover a Deposit. APPEAL FROM kAYETTE CIRCUIT COURT. Judgment por Plaintive and Defendant Appeals. The question in this case is, whether a check for $450 purporting to have been signed by Carrie Taylor on the Phoenix National Bank, and which the bank paid was in fact signed by her or by another for her or with her consent or authority. She claims that said check was a forgery.

Case 10 — Action fob a Mandamus. APPEAL FROM FRANKLIN CIRCUIT COURT Judgment for Defendant and Plaintiff Appeals. This is one of a series -of actions instituted by clerks of the State auditor’s office in the Franklin circuit court to recover salary for services rendered by virtue of appointment by J. S. Sweeney, auditor of public accounts for Kentucky. It is alleged, not denied, and conceded that J. S. Sweeney was auditor for Kentucky during the month of January, 1900.

Case 11 — Action by the Executor óf the Will of Mbs. Fannie Heyser and fob Direction as to Plaintiff’s Duties Thereunder. APPEAL FROM GRAYSON CIRCUIT COURT. Judgment Distributing Estate of Testatrix and Defendants Smoot Appeal. The question in this case is, can a married woman make a will and bequeath nothing to her husband?

<p>Fire Insurance — Partial Loss — Validity of Provision Requiring Insured to Maintain Certain Amount of Insurance.</p> <p>Held: Under Kentucky' Statutes, section 700, providing that fire • insurance companies shall be liable for the full estimated value of real -property insured, as the value thereof is "fixed in the face of the policy, and that in eases of partial loss the liability of the company shall not exceed the actual loss of the insured, a provision in a policy requiring insured to maintain insurance to ■the extent of at least eighty per cent, of the actual cash value of the property, and providing that in the event he fails to do so he shall be á co-insurer-to the extent of such deficit, is void, and in ease of partial loss the company is liable for the full ■amount of the damage sustained; though insured has' failed to maintain the required amount of insurance.</p>

Case 13 — Action to Enforce a Mortgage Lien. APPEAL FROM RUSSELL CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The questions for the consideration of this court are: 1. Plea of no consideration.

<p>Care 14 — Contest of Will.</p> <p>APPEAL FROM WEBSTER CIRCUIT COURT.</p> <p>Judgment for Contestees and Contestants Appeal.</p>

Case 15 — Action to Recover Damages for Injury to Property.— APPEAL FROM HOPKINS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. SYNOPSIS. 1. The petition of appellee as plaintiff below states a cause of action in his favor, at common law, and it was error for the lower court to sustain the demurrer as to it. Note to 16 Lawyer’s Reports Annotated, 395; Prather v. Lexington, 52 Ky. Reps., 559; Ward v. Louisville, 55 Ky.

<p>Inspection of Oils — Gasoline—Fees of Inspector.</p> <p>Held: Under Kentucky Statutes, section 2202, providing l'or the. inspection of “all oils and fluids, the product of coal, petroleum, or other bituminous substances, by whatever name called, which may or can be used for illuminating purposes,” gasoline, being an oil which may be used for illuminating purposes, though it jnust first be transformed into -vapor, is subject to inspection; and one who sends such oil into the State for sale is liable for the inspector’s fees, though the oil is not sold for illuminating purposes, and though the statute, after providing for the inspection of various articles, provides that, “except the article, of oil for illuminating purposes, no penalty shall be incurred for the sale or exportation thereof without inspection.”</p>

Case 17 — Action to Recover Compensation for Services. APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. On December 21, 1897 the fiscal court of Campbell county elected G! L. Trapp, bridge commissioner of said county, for a term of four years. On January 5, 1898 a new fiscal court (which had been elected) at a special meeting removed Trapp from said office and ■ discontinued the office.

Case 18 — Action by Commonwealth to Recover a Penalty for: Making Discrimination in Rates APPEAL FROM TODD CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

Case 19 — Action to Enforce a Mortgage Lien. — APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Plaintiff and Defendant, Maria B. Birchett Appeals. This suit is on' a note for $4;000 secured by mortgage on the wife's real estate. The appellant, Maria B. Birchett is before the court on summons, her husband, Dr. J. G-. Birchett, by warning order.

<p>Municipal Corporations — Dangerous Obstruction in Street — Independent Contractor — Contributory Negligence.</p> <p>Held: 1. A barbed wire stretched across a street to prevent travel on the part of the street undergoing repairs is a nuisance, and the city is liable for an injury to one, who in the absence of any light or other warning, runs against the wire in the night time.</p> <p>2. The fact that a city has placed the work of repairing a street in. charge of an independent contractor does not relieve it of the duty to see that proper precautions are taken to warn travelers of Ihe danger.</p> <p>3. It is the duty of a city to see that all parts of a street are kept in safe condition for pedestrians, and therefore a pedestrian is not chargeable with contributory negligence in unnecessarily leaving the sidewalk to cross the street at any point.</p> <p>i. A verdict for $220 for the cutting of plaintiff’s lips and gums by a barbed wire is not excessive.</p>

Case 21 — Action to Hold Defendants Liable Upon their Indorsement of a Promissory Note. APPEAL FROM WARREN CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. This action was based upon the indorsement by C. G. Small-house of a promissory note for $5,000 payable to appellant bank. The note became due June 21, 1900; part of the makers were adjudged bankrupts in December 1900, and the remainder prosecuted to insolvency at the February term, 1901.

<p>Case 22 — Action for a Settlement of the Estate of Plaintiff’s Intestate.</p> <p>APPEAL FROM-TRIGG CIRCUIT COURT.</p> <p>Judgment Denying the Right of Defendant, H. O. Crews, to a Part of the Proceeds of an Insurance Policy and She Appeals.</p> <p>W. W. Crews owed J'as. T. Coleman about $375 -and to secure liim in payment of same, and to provide a limited protection to his wife, had his life insured for $1,000. The policy was dated December 10, 1889, made payable to said Coleman and delivered to him by the insured, first to indemnify Coleman for all that Crews owed him at his death, the remainder for the benefit of Crews’ wife.</p> <p>W. W. Crews died and appellee Hillee qualified as his administrator and brought this suit to settle the estate. The appellant, being made a defendant, filed her answer claiming the residue of the policy after Coleman was first paid. Coleman filed his answer, denying that appellant was entitled to the residue of the policy after deducting a sufficiency to pay him, and alleged if there was more than, enough to pay him, the remainder belonged to H. O. Crews by direction of W. W. Crews at the time he delivered the policy to Coleman. Appellee denied the residue belonged to áppellant and claimed it belonged to the creditors of the deceased, said balance being $591.77. The court adjudged said balance belonged to the creditors, and H. O. Crews has appealed.</p> <p>The evidence heard, proved beyond a doubt that the policy was taken out by deceased for his wife’s benefit after paying the Coleman debt, and the only question is. whether a trust or a trust estate, in personal property, may he created by parol declaration and proved and sustained by parol evidence as against the creditors of the insured?</p> <p>Our contention 13 that such a trust may be created by parol and sustained by parol evidence.</p> <p>AUTHORITIES CITED.</p> <p>Hill on Trustees, 55, 60; Berry v. Norris, 1 Duv., 303; Barkly, &c. v. Lane’s Exrs., &c., 6 Bush, 5S7; Perry v. Redding, 9 R„ 536; Roche v. George; 93 Ky., 609; U. S. Sup. Ct., 4 R., 67 (Warnock v. Davis) Kentucky Statutes, sees. 654, 655; Hess v.‘ Hartford Ins. Co., 90 Ky., 101; Thompson v. Oundiff, 11 Bush, 567; Meadows v. Meadows, 13 R., 495.</p> <p>The appellant, Mrs. H. O. Crews claims the balance of the insurance money, after paying Coleman’s debt, for the reason that the policy was made payable to Coleman to secure his debt, which has been paid, and that W. W. Crews said that the remainder of the policy was for the use and-benefit of his wife, and the policy was so delivered to Coleman, and thereby such remainder was transferred to Coleman .in trust for her independently of her husband’s creditors, and that it equitably belongs to her. Our contention is, that the fact that insured told Coleman to pay the balance to his wife after paying his debt, and that the two other witnesses testified they heard insured say' he intended the balance of the policy after the payment of Coleman’s debt, to go to his wife, if competent evidence, is not sufficient to create a trust fund in the hands of Coleman for the benefit of appellant. The policy was made payable to Coleman, delivered to and held by him; no endorsement or transfer on same, and no writing or memorandum evidencing any transfer of assignment of the remainder after paying Coleman's debt, and we claim such balance belonged to Crews’ estate and is subject to the. payment of his debts. Stokes v. Coffey, 8 Bush, 540; Kentucky Statutes, secs. 354, 2128.</p>

Case 23 — Action by Central Kentucky Asylum against Anna M. . Knighton to Recover for Board and Maintenance of Her Daughter APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Defendant and Plaintiff Appeals. POINTS AND AUTHORITIES. 1.

<p>Case 24 — Action to Recover Damages foe the Death of Plaintiff’s. Intestate.</p> <p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

Case 25 — Action by George B. Nelson against Thomas L. Sewell to Quiet Title APPEAL PROM BREATHITT CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND' AUTHORITIES. 1. Deeds — Sufficiency of Description. If, instead of containing the description of the land conveyed, the deed refers,to other deeds, the description of the later deed will by such reference become a part of the former, and has the same effect as if it had been inserted in the subsequent deed.

<p>Case 2G — Action of Meyer’s Exrs. against Hennig, &c., to Enforce a Mortgage Lien.'</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Overruling the Exceptions of Adam Oster, the Purchaser, to Commissioner’s Report of Sale and He Appeals.</p> <p>This is an appeal from an order of the Jefferson circuit court, chancery division, overruling exceptions to commissioner’s re-pert of sale and confirming same, in an action by the executors of A. J. Meyer, deceased, to enforce a mortgage lien upon real estate executed to decedent by August Hennig. The appellee, August Hennig was proceeded against as a person of unsound mind and service of process was had upon him and his alleged committee and an answer filed by said committee stating that it could make no defense to the action. Judgment was rendered ordering the sale and same was sold by the commissioner of the court and purchased by appellant. Appellant filed exceptions to said sale on the following grounds to-wit:</p> <p>1. The interest’d’ the defendant, August Hennig, did not pass ■by the sale because he was not, before: the court, the service of process upon him being as a lunatic and upon the Fidelity Trust and 'Safety Vault Co., as his alleged committee, when said company was not his committee, because its appointment was void, having been made in the criminal, division of the Jefferson circuit court, which had no jurisdiction over the estate of said Hennig, and had no authority to appoint a committee for his estate.</p> <p>2. Because said alleged appointment of said company as committee was made in a proceeding had without any service of process upon or notice to the said Hennig.</p> <p>The record in the proceeding in which Hennig was adjudged a lunatic, shows that on November 26, 1901, he was adjudged •a lunatic on information filed by the Commonwealth’s attorney and a verdict of a jury.</p> <p>On the trial of the question of his sanity he was not personally present in court and the record shows that two physicians testified on the trial that it would be injurious to him to bring him personally into court — said oath was not reduced to writing and it does not appear the said physicians had examined the alleged lunatic and that the^ believed him to be a lunatic.</p> <p>The only notice given Hennig, was what purports to be a notice that an inquisition would on the. date named therein, be held to determine the question of his sanity, and this notice was addressed to said Hennig personally and signed by the Commonwealth’s attorney, and duly served.</p> <p>In the- same proceeding and without any further notiee and without the presence of Hennig, said criminal court appointed said alleged committee.</p> <p>.Appellant contends:</p> <p>1. That said court had no jurisdiction or authority to appoint a committee for the estate of a lunatic.</p> <p>2. That the entire proceedings were void on account of the insufficiency of the notice to Hennig, and the irregularity of the proceedings and appointment of the committee.</p> <p>AUTHORITIES CITED.</p> <p>Con. of Ky., secs. 123 and 137; Kentucky Statutes, secs. 2149, 1030, 2156, 2151, 2157; Taylor v. Barker, Judge, 20 R., 382; Mengel v. Jackson, Judge, 94 Ky., 472; Stewart v. Taylor, 23 R., 577; McAfee v. Com., 3 B. Mon., 305; Yeager v. Groves, 78 Ky., 278; Mason v. Beazley, 10 R., 154; Bunnell v. Thompson, 12 Bush, 116; Smith v. Wells, &c., 80 Ky., 305;% Sharpe v. Roso, 13 Bush, 461; Civil Code, secs. 466-624; Menifee Committee v. Ends, 97 Ky., 394.</p> <p>The record in the lunacy .proceeding Shows that notice of the inquest u:as served on August Hennig and also upon Fred Hen-< nig in tohose custody he was, and Walter Darby, a practicing attorney was appointed to defend for him, and the jury after hearing the evidence found him to be of unsound mind, seventy-two years of age and had an estate worth $3,000 with an incumbrance thereon of $2,000 and the court thereupon appointed a committee who executed bond as required by law.</p> <p>The statute provides “that it shall be the duty of the judge presiding at such inquest to make all necesssary orders for the appointment of a committee and the security of the estate and care of the person found to be of unsound mind, etc.”</p> <p>We insist that there can be no doubt of the jurisdiction of the court, and the regularity of the proceedings. Kentucky Statutes, secs. 2156, 2157, Con. of Ky., sec. 137; Taylor v. Barker, 20 R., 582; Stewart v. Taylor, 23 R., 517; Newcomb, &c., v. Newcomb, 13 Bush, 544; Swope v. Frazier, 37 S. W. R., 495.</p>

'' Cáse 27 — Action by Fa,nny Matthews against the Western Union Telegraph Co., to Recover Damages for Delay in Delivering a Message. APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The contention of the appellant is:- 1.

Case 28 — -Action by Mbs. Wills against ti-ie Paducah Building & Loan Association fob the Cancellation op a Mortgage, Consolidated with an Action by the Assignee of Loan Association fob a Settlement of the Assigned Estate. appeal from m’cracken circuit court. Judgment Refusing to Cancel Mortgage and Mrs. Wills Appeals.

<p>Case 29 — Contest by George H. Davidson of tiie Election of W. A. Johnson to tiie Office of Mayor of the City op Covington.</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>Judgment por Contestee and Contestant Appeals.</p> <p>QUESTIONS DISCUSSED.</p> <p>1. The election of November 7th, 1899, in the city of Covington was not “free and equal.”</p> <p>2. The mandatory requirements of the Kentucky Statutes essential to a fair election, particularly sections 1470 and 1481 of the Kentucky Statutes, were recklessly disregarded.</p> <p>3. There was fraud in the conduct of the election and in the counting of the ballots and in the making of the returns.</p> <p>4. The neglect of mandatory provisions of the law essential to a “free and equal” election, the intimidation and fraud practiced, in the precincts mentioned in the notice of contest herein, were such as to discredit entirely the returns from the said precincts, -particularly the returns from precinct A. of the first ward, precinct C. of the second ward, and precinct E. of the third ward; and the returns from those precincts must be rejected.-</p> <p>The rejection of the returns from the three precincts mentioned, viz.: that is, A. of the first ward, C. of the second ward, and E. of the third ward will result in a large plurality for the appellant, Davidson. The rejection of the returns fotn precinct C. of the second ward alone will also elect Davidson by a considerable plurality.</p> <p>5. The returns from precinct A. of the first ward, precinct C. of the second ward, and'precinct E. of the third ward being invalid and unworthy of credit by reason of neglect of mandatory provision and of fraud practiced, and the appellee, Johnson, haying failed to establish his election by evidence other than that afforded by the returns, the judgment of this court must be in' favor of Davidson, the appellant.</p> <p>LIST OF AUTHORITIES CITED IN BRIEF.</p> <p>' Sec. 6 of Constitution of Kentucky; Secs. 1470 and 1481 of K. ,S.; Hooker v. Pendleton, 100 Ky., 727; “On Mandatory and Directory Statutes,” Ky. Law Rep. vol. 2, 166, 167, 168; Kock v. Bridges, 45 Miss., 258; Hines v. Lockport, 5 Lansing (N. Y.), 162; Sedgwick on Const. Law, p. 317, note; Cooley on Const. Limitations (2d ed.), marg. p. 77; Hogan v. Devlin, 2 Daly, p. 184; People v. San Francisco, 36 Cal., 595; Supervisors of Nlagra v. People, 7 Hill, 511; Vattel’s Rule, Rule 30 in Potter’s Dwarris on Statutes, p. 130; Tebbs v. Smith, 108 Cal., 101; Am. & Eng. Ency. of Law (2d ed.), vol. 10, p. 588; Com v. Miller, 98 Ky. pp. 446, 449, 450; Com. v. Barry, 98 Ky., p. 316; Kentucky Statutes, secs. 1484, 1577; 1578, 1588, 1591; Kentucky Statutes, sec. 1482; Covode v. Foster, 2 Bartlett’s Election Cases, 600; Howard v. Cooper, 1 Bartlett’s Election Cases, 275; Mc-Crary on Elections (4th ed.), secs. 569, 570, 571, 574, 575, 576, 578, 579, 580, 582a, 583; Atty. Gen. v. Stillson, 108 Mich., 419; Am. & Eng. Ency. of Law, (2d ed.), vol. 10, pp. 690, 774, S32; Russell v. McDowell, 83 Cal., 77; Am. & Eng. Ency. of Law (2d ed.), vol. 10, pp. 766, 767; Atkinson v. Lorber, 111 Cal., 419; Gaston v. Lamkin, 115, Mo., £0; Am. & Eng. Ency. of Law (2d ed), vol. 10, p. 696; Smith v. Shelley, 2 Ellsworth’s Election Cases, 18; In re Duffy, 4 Brewster (Pa.), 531; Oliver v. Bode, et al., 3 Ohio 2Hsi Prius, Rep., 298; Reed v. Kneass, 2 Parsons (Phila.), 584; McCrary on Elections (4th ed.), 502.</p> <p>The contestant, George H. Davidson, through his attorney has endeavored to give live reasons for the disfranchisement of votes in precinct A. of first ward, C. of the second ward and E. of the third ward — claiming (1) that the election was not free and equal, (2) that the election law was disregarded, (3) that there was fraud in the conduct of the election and in the counting of the ballots, (4) that the election was not free and equal and was fraudulent and there appears a repetition of the first three reasons, and (5) that the contestant, W. A. Johnson, had failed to show by proof that the election in precinct A. of the first, C. of the second and E. of the third was fair.</p> <p>The only essential proposition advanced by contestant to be met, is, was the count made by certain election officers in the three precincts above mentioned fairly made or not?</p> <p>Our contention is, that before this court can invalidate or annul the election of contestee, W. A. Johnson, as mayor of the •city of Covington, there must be:</p> <p>1. Positive proof that the election in these three precincta, and the returns made by these officers, were false; that the presumption is in favor of the regularity of the acts of public officers.'</p> <p>2. The burden of proof is upon the party alleging any irregularity.</p> <p>3. The result of the election must be affected by the irregularity.</p> <p>4. The maxim that fraud is not to be presumed, applies to election officers, making returns, as it does to individuals in other matters.</p> <p>5. That the presumption is against fraud, and is greater on account of the acts of public officers, rather than individuals, acting as they do under the sanction of their official oaths.</p> <p>6. That nothing but the most credible, positive and unequivocal evidence should be permitted to destroy the credit of official returns.</p> <p>7. That it is not sufficient to cast suspicion on them.</p> <p>8. They must be proven fraudulent before they can be rejected. 9. The burden of proof is upon the contestant to prove as above set out, the fraud and have the precincts rejected because of irregularities.</p> <p>CITATIONS.</p> <p>Pratt v. Breckinridge, 23 Kentucky Law Rep., p. —; Civil Code, see. 92, subsec. 4; Civil Code, sec. 118; sec. 13 Election Law of 1898; Act of 1894, article 7, sec. 1; Hugh’s Admr. v. Hardesty, 13 Bush, 366; Hughey v. Sidwell’s Heirs, 18 Ben Monroe, (p. 209 at bottom) Pidler v. Hall, 2. Met., p. 262; Grant v. Tams & Co., 7 T. B. Monroe, p. 150 (at bottom); Amer. & Eng. Ency. of Law, vol. 12, pages 301-2-2-306; Elliott v. Pier-sol, 1 Pet. (TJ. S.) 328; Hickey’s Lessee v. Stewart, 3 How. (IT. ,S.) 750; Penny wit v. Foote, 27 Ohio St., 600; Nazro v. Cragin, 3 Dillen, (IJ. S.) 474; Gormly v. McIntosh, 22 Barb., 271; Barton v. Barton, 80 Ky., page 214; Amer. & Eng. Ency. of Law, vols. 6, 326, 354, and 433; Anderson v. Winfree, 85 Ky., page 609.</p>

Case 30 — Action by C. L. Smith against the Kentucky State Board of Dental Examiners for a Mandamus. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendants and Plaintiff Appeals.

Case 31 — Indictment por Forger* against Grant Brewer Dismissed appeal prom lewis circuit court. Indictment Dismissed and Commonwealth Appeals. The court below sustained a demurrer to the indictment and we ask a reversal for the following reasons: 1. The proper way to set aside an indictment is by motion, and not by demurrer. On motion to quash, because the witnesses’ names were not at the foot of or on the Indictment, the court could hear proof.

<p>Case 32 — Action by Willis Layman against George Beeler, &c. to Recover Damages for Injury to Land.</p> <p>APPEAL FROM LARUE CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>- Appellant filed a petition in the Larue circuit court alleging that he was the owner of a tract of land in said county through which passed a county road dividing his land in two equal parts and that the county of Larue and the other defendants had dug ditches and erected embankments so as to prevent him from crossing the road or approaching his house or other buildings and gates.</p> <p>The county filed a general demurrer to the petition which the court sustained, and appellant declined to plead further and his petition being dismissed, he appeals. ¡The only question in this case is, is the petition good against the county? My brothers contend that a county is not liable for a tort.</p> <p>Our contention is that, under section 242 of -the present Constitution, a county is liable for talcing, injuring or destroying private property.</p> <p>The words injured or destroyed do not occur in the old Constitution, only the word talcen is there used.</p> <p>Under the former Constitution, if the county had talcen property for a public road without making compensation, its action woulc] have been absolutely void, and all its officers and agents would have been wrongdoers. Under the present Constitution, section 242, injuring, and destroying are put on the same footing as talcing. Compensation, therefore, must be paid or secured to be paid before the injury or destruction; if not so paid or secured, then those injuring or destroying are wrongdoers, ah initio.</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. The demurrer of the county should havje been overruled. Constitution of Kentucky, sec. 242; Constitution of 1849, Bill of Rights, 14; E. & P. R. R. v. Helms’ Heirs, 8 Bush, 681; Weir v. O. & N. R. R. Co., 14 Ky., 875 and kindred cases cited by appellees are not in point. 22 Ky. Law Rep., 664; Tiedeman on Municipal Corporations, 330.</p> <p>2. Damage will be presumed from the doing of an act positively forbidden and plaintiff was entitled as a matter of law to at least nominal damages. Hale on Damages, page 15; Ashby v. White, 2 Ld. Raym., 955; Webb v. Portland Manufacturing Co., 3 Summ., 189; Fed. Cases; Mechem Cas. Dam., 3.</p> <p>Section 242 of our present Constitution reads as follows:</p> <p>"Municipal and other corporations and individuals invested with the privilege of taking .private property for public úse, shall make just compensation for property taken, injured, or destroyed by them, which compensation shall be paid before such taking, or paid or secured at the election of such corporation or individual, before such injury or destruction.”</p> <p>It does not appear that counties are embraced in the words, “municipal and other corporations.” We can perceive no material change in the present Constitution and the one of 1850, and . under that of 1850 it has been repeatedly held that counties are a branch or arm of the -State government, and _that they are no more liable to be sued for the negligence of their officers than the State.</p> <p>We can nowhere- find any statute authorizing such a suit as this, or imposing any liability on a -county for the wrongful acts of its officers or agents.</p> <p>A. & E. Ency. of Law, 359; 81 Ky., 168; Downing v. Mason County, 87 Ky., 208; 10 R., .105; Shephard v. Pulaski County, 13 R., 672; Sup. Ct., Iowa, 1 R., 200; -Sup. Ct. 111., 1 R., 198</p> <p>These appellees, in their answer after admitting that Jhey entered upon the highway and cut down, graded and gravelled the hill adjacent to appellant’s premises, say.</p> <p>“That these are the acts and happenings complained of in the petition, and that each and every act done by them was such and only such as had been authorized by the fiscal court, and was for the improvement of the county road.”</p> <p>The court below held, -on demurrer, that the county was not liable, and gave the jury the following instruction, No. 3: “If</p> <p>the jury believe from the evidence that the defendants were appointed by the fiscal -court to grade, gravel and cut down the hill adjacent to the plaintiff’s premises, and that in doing said work, the defendants used due and proper care and did no other or greater damage to plaintiff’s property than was necessary to complete the work which they were appointed to do, then the law is for the defendants and the jury should so find.”</p> <p>The argument of counsel for the appellant that the action of ■ the fiscal court in directing this work to be done, can have no force except upon the idea that the county is a municipal or other corporation. We fail to find in the debates of the last constitutional convention, any intimati-on that section 242 of the present' Constitution was intended to embrace counties. Prior to the adoption of the present Constitution it was held that counties are not corporations, but subordinate political divisions, and that no liability existed upon the part of a county unless it was authorized expressly or by necessary implication of statute.</p> <p>Provision is made in our statutes for compensation for taking lands for new roads, or for change in existing roads or for drains from county roads over private property. But we conceive it to be the true principle of law, that when a road has been ones opened by the county, the citizen can recover no damages by reason of injury to his property by any improvement in the highway, so long as the improvement is confined to the road itself and there is no trespass on the lands of the citizen.</p> <p>CITATIONS.</p> <p>Constitution, sec. 242; Pool v. Atkisson, 1 Dana, 112; Kentucky Statutes, secs. 4306, 4339; Weir v. O. & N. R. R. Co., 14 R., 875; Downing v. Mason- County,' 87 Ky., 208; Henderson v. Winstead, 58 S. W., 777.</p>

Case 33 — George Oliver, was Convicted of tiie Offense of Maliciously Cutting and Wounding Another with Intent to Kill and He Appeals. APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. Defendant Appeals. This appeal is prosecuted for review of the two following points: 1. The demurrer to the second count of the indictment which sought to charge a previous conviction for a felony.

<p>Taxation — Constitutionality oe Statute — Appropriation to Other Purposes oe Tax Levied eor Schools — -Public Library not Part oe School System. „</p> <p>Held: 1. Under Const, section 180, providing that every act of the General Assembly and every ordinance levying a tax' “shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall -ever be devoted, to another purpose,” a tax annually levied and collected by the general council of a city of the second class under Kentucky Statutes, section 3219 (part of an act for the government of cities of that class), by reguest of the board of education, upon a report made by it as to the needs of the public schools, and which tax, it is provided by the statute, shall not exceed ■ a certain per cent, of the assessed valuation-, and shall “be used for the benefit of 'the common schools and for the purpose of paying off the indebtedness of said board,” is a tax levied and collected for school purposes; and the Legislature had 'no power, even by the statute 'imposing the tax, to provide that a part of it should be devoted to another purpose.</p> <p>2. A tax levied and collected by the common council of a city for school purposes can not be appropriated by act of the Legislature to maintain a public library which is open to the pupils of the common schools only as a part of the general public, and which is not under the control of the board of education or of the common schools.</p>

Case 35 — Action by Paris Ice Manufacturing Co. against Economy Building & Loan Association, &c. to Recover Usury Paid APPEAL FROM BOURBON CIRCUIT COURT. Judgment for Plaintiff and Defendant and John T. Hinton Appeals.

Cask 36 — Proceeding by Eden againt Vice, &c. to Establish a Passway. APPEAL FROM NICHOLAS CIRCUIT COURT. Judgment fob Applicant and Defendants Appeal. The appellee who is suing for a private passway over appellants’ land, testified in his own behalf that he owns and resides upon a large tract of land and that this land adjoins “The Mt. Zion Turnpike Road” on one side-and “The Little Flat County Road” on the other side and hence testified that he already had two outlets.

Case 37 — Agreed Case Between Thomas B. Smith and Abethei. Wallace, &c. to Enforce a Contract for the -Sale of Land AND FOR THE CONSTRUCTION OF A WILL. APPEAL FROM TRIGG CIRCUIT COURT. Judgment for Smith and Wallace and Others Appeal.

Case 38 — Action to Recover Damages por Personal Injuries.— APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. POINTS DISCUSSED AND AUTHORITIES. 1. Good faith is no part of the definition of negligence. 2. Contributory negligence, to be available as a defense, must be alleged in the plea. L. & N. R. R. 'Co. v. Schuster, 10th L. R., 65; and though plaintiff contribute to his injury, it will not bar a recovery unless he is in fault in so doing.

Case 39 — Action to Enforce Lien on Land. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS CONSIDERED AND AUTHORITIES CITED TO SUSTAIN THEM. 1. The note sued on to the extent of $1,205.69 is without con- ■ sideration. 2. The doctrine of estoppel is not applicable to the facts of this ease. Rice on Evidence, sec. 302 and authorities cited. Pickard v. Sears, 6 Ad. El., 469; Rice on Evidence, sec. 302, subsec. G-. 3.

<p>Insane Persons — Confinement in Asylums — Pauper Lunatic— CONCLUiSIVENESS OF FINDING-LIABILITY. FOR BOARD IN ASYLUM— Exemptions for His Family.</p> <p>Held: L The finding of a jury that a lunatic is a pauper, so as to entitle him to be admitted to a State asylum without payment in advance, as provided by Kentucky Statutes, section 256, is not such an adjudication between the lunatic and the State as to ■preclude further inquiry as to the ability of the lunatic to pay; express provision being made by Id. section 257, for the recovery of the patient’s board where he has, or subsequently acquires, estate.</p> <p>2. Kentucky Statutes, section 257, authorizing a, suit to subject the estate of a lunatic who has been committed as a pauper in the event that he has or shall acquire “estate which can be subjected to debt,” is to be read in connection with Id., section 256,. which provides that the lunatic shall, if married, be admitted as a pauper if he is unable to pay the board “besides providing for others naturally dependent;” and therefore, where the income of the estate acquired was not more than sufficient to support the patient’s wife and child, he had no estate which could be subjected to debt, within the meaning of the statute.</p>

<p>Case 41 — Action by Central Kentucky Asylum to Subject ti-ie. Interest of Certain Real Estate oe Defendant Schroer to-the Payment of His Board.</p> <p>APPEAL FROM JEFFERSON CIRCUIr COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

Case 42 — H. L. Asher was Convicted of hie Offense of Standing a Stud Without a License. APPEAL FROM FAYETTE CIRCUIT COURT. Defendant Convicted and Appeals. The indictment alleges that the defendant' did unlawfully stand for service to mares a certain stud horse called Alfred G., and did charge money and property and other things of value for said service without a license authorizing him so to do.

Case 43 — Action by Maggie Bramlette against the L. & N. R. R. Co. to Recover Damages for Injury to Property. APPEAL PROM HARDIN CIRCUIT COURT. Judgment for Defendant ane Plaintiff Appeals. This action was brought by 'Mrs. Maggie Bramlette against the appellee for damages suffered by her in consequence of the building of a new stock pen near her residence for the reception and detention of live stock placed therein for shipment on appellee’s, railroad.

Case 44 — Action by John Ryan and Others against J. D. Wyatt,, County Judge, eor a Writ oe Mandamus. APPEAL PROM ELEMING CIRCUIT COURT. Judgment eor Plaintiees and Dependant Appeals.

Case 45 — Action by South, &c. against Deaton to Recover Land. APPEAL FROM BREATHITT CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. The first and only inquiry we think is whether the, appellants jmade out a prima facie case? We think this was conceded by appellee for there- was no motion at the close of appellant’s testimony for a peremptory instruction to find for the appellee. The appellants, who were plaintiffs below, relied solely on title by prescription.

■Case 46 — Indictment against Boyle County Fiscal Court for Suffering a Nuisance on the Public Highway. APPEAL FROM BOYLE CIRCUIT COURT. Indictment Dismissed and Commonwealth Appeals. There can be no question that-the indictment is definite and certain as to the particular circumstances of the alleged offense, and that such an offense is punishable by indictment at common law.

Case 47 — Action by the Commonwealth against Ben Bramlage on His Bond as Trustee of the Jury Fund. APPEAL PROM FRANKLIN CIRCUIT COURT. Judgment por Plaintipp and Dependants Appeal. This was an agreed case in the court below. The only question presented is, whether the trustee of the jury fund is entitled to a commission on the money paid by him into the treasury.

<p>Case 48 — Action by the Executor of Florence Irvin Botto, Deceased, against Louisville Presbyterian Theological Seminary for a Construction of the Testatrix’ Will.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment Construing Will and Defendants Appeal.</p> <p>This is an appeal from a judgment construing (at the executor’s request) certain clauses in the last will of Mrs. Florence Irvin, afterwards Florence Irvin Botto.</p> <p>STATEMENT OF THE CASE.</p> <p>By the will of Jas. F. Irvin, his widow, Florence Irvin, was given the power by last will -to dispose of his estate.</p> <p>Acting under that general power of appointment, Florence Irvin, on January 8, 1896, executed her last will. Thereafter on July 1, 1897, she married ¥m. M. Botto, and died childless on February 12, 1900; and her will was duly probated under her then married name of Florence Irvin Botto.</p> <p>On April 13, 1901, the Fidelity Trust & Safety Vault Co. as executor of that will brought this action for a settlement of the estate, and among other things set forth a question that had arisen, prayed for a construction of the will and for directions as to its action thereunder. The averments of the petition were admitted by all parties.</p> <p>Á purely legal question being thus presented, the lower court rendered judgment fixing the rights of the parties, from which this appeal is taken.</p> <p>For convenience (and to distinguish her from Mrs. Cloteal Bot-to, mother of ¥m. Botto) the testatrix, Florence Irvin Botto, will be designated as Mrs. Irvin — the name under which her will was executed.</p> <p>TERMS'OF MRS. IRVIN’S WILL. '</p> <p>She left legacies to twenty-one persons and corporations aggregating $236,000.</p> <p>Clauses 1-2 direct the payments of debts and care o£ the family burial vault.</p> <p>Clause 3 makes various specific legacies of ^furniture, jewelry, plate, personal effects, etc.</p> <p>Clauses 4-19 give sixteen general or pecuniary legacies, aggre-</p> <p>gating $182,000, as follows:</p> <p>Belle C. McVay.......................................$15,000</p> <p>Philip T. Chinn..................... 3,000</p> <p>Second Presbyterian Church............................ 10,000</p> <p>Chas. R. Hemphill..................................... 15,000</p> <p>Home of the Innocents............................... 5,000</p> <p>Young Men’s Christian Association..................... 10,000</p> <p>Louisvile Presbyterian Theological Seminary............ 10.000</p> <p>Polytechnic Society of Kentucky....................... 10,000</p> <p>Cloteal B. Botto....................................... 15,000</p> <p>Rodman Grubbs ....................................... 15,000</p> <p>Irvin Lindenberger ..................... ".............. 10,000</p> <p>Anna Foster ..........................................$ 8,000</p> <p>Louisville Presbyterian Orphanage (in trust)............ 10,000</p> <p>Home for Infirm Colored People (in trust)............. 1,000</p> <p>Norton Memorial Infirmary (iri trust).................. 10,000-</p> <p>Wm. M. Botto (in trust).............................. 35,000</p> <p>$182,000</p> <p>Clauses 20-24, in exactly similar language, give to the Fidelity Trust & Safety Vault Co., as trustee, the following sums in trust to pay the income thereof to the following named persons.</p> <p>during their respective lives:</p> <p>Clause 20 to Jane Ballard on.........................$ 6,000</p> <p>Clause 21 to Alex. McHarry on..................■........ 12,000</p> <p>Clause 22 to Jane. Jackson on ......................... 12,000</p> <p>Clause 23 to Jemima Johnson on......................... 12,000</p> <p>Clause 24 to Mary Costello on....,.................... 12,000</p> <p>Total ...............................................$54,000</p> <p>With the further provision in each clause that “At her (or his) death said fund shall go to Mrs. Belle McVay, Mrs. Cloteal Botto, and the Louisville Presbyterian Theological Seminary as part of the residuum under the 26th clause of this will.”</p> <p>Clause 26 reads as follows:</p> <p>“All the balance of said estate in possession, reversion, and remainder, including both my own and the estate which I have the right to dispose of under the will of my said husband, I devise and bequeath to Mrs. Belle McVay, Mrs. Cloteal Botto, and the Louisville Presbyterian Theological .Seminary, in fee simple absolute, in the proportions of one-eighth (%) to Mrs. Belle McVay, one-eighth (%) to Mrs. Cloteal Botto, and three-fourths (%) to the Louisville Presbyterian Theological Seminary.”</p> <p>Jane Jackson (life tenant under clause 22) died before Mrs. Irvin.</p> <p>Alex. McHarry (life tenant under Clause 21) died after Mrs. Irvin and after the filing of the petition herein.</p> <p>Jane Ballard, Jemima Johnson, and Mary Costello (the other life tenants) are still alive.</p> <p>THE QUESTION INVOLVED.</p> <p>The legacies given to the twenty-one legatees aggregate $236,-000, while the net value of the estate (after payment of debts, costs, -expenses, etc) will be less than $1-60,000.</p> <p>It is therefore obvious that none of the legacies will be paid in full, and that there must be an abatement all around.</p> <p>On behalf of Mrs. MeVay and the seminary as “remainder-men” under clauses 20 to 24 it was insisted that at the deaths of the respective “life tenants” (Jane Jackson, Alex. MeHarry, ■etc.) the funds named therein went absolutely to Mrs. MeVay, Mrs. Cloteal Botto, and the seminary in the proportions designated in clause 26, viz.: Mrs. MeVay, one-eighth, Mrs. 'Botto, one-eighth, seminary, three-fourths.</p> <p>On the other hand, the other legatees (Norton Infirmary, etc.) insisted that as each life tenant died the fund was to be used to make a further dividend on all the remaining legacies (including the other trust funds) until they should have been paid in full — and that only after the whole $236,000 of legacies were paid in full (which will never be) should Mrs. MeVay and the seminary receive the “remainder” of the trust funds.</p> <p>In view of those conflicting claims, the executor was in doubt as to whom it should pay the “remainder” of the trust funds after the respective deaths of the “life tenants,” and therefore in its suit for a settlement of the estate, the executor asked for a construction of the will and for direction on the following points:</p> <p>First. Whether the $12,000 (or rather the abated pro rata thereof) left to Jane J'ackson for- life (she being already dead) should go to Mrs. MeVay, Mrs. Botto, and the seminary in the proportions named in clause 26, or whether it should become a part of the estate generally for distribution among all the legatee® ratably.</p> <p>Second. Whether the several “trust funds” set apart for Jane Ballard, Alex. MeHarry, Jemima Johnson, and Mary Costello under clauses 20, 21, 23, and 24 'should at the respective deaths of those' “life tenants” go to Mrs. MeVay, Mrs. Botto, and the seminary in the proportions named in clause 26, or whether they should be distributed as an additional dividend on all the legacies (including such of the “trust funds” as should still be alive.)</p> <p>The lower court decided:</p> <p>(1) That as to the Jane Jackson fund (under clause 22) Mrs. MeVay, Mrs. Botto, and the seminary should take nothing, and that no such fund should be set aside at all.</p> <p>(2) That as to the Alex. MeHarry fund (under clause 31) Mrs. MeVay et al. should take nothing, and that from the date of Alex. MeHarry’s death the fund set apart for him should be treated as a part of the estate for general distribution among all the remaining legatees.</p> <p>3. That as to the J'ane Ballard, Jemima Johnson, and Mary Costello funds (under clauses 20, 23, 24) at their respective deaths the funds should be applied to the further payment of all other legacies (including such life tenants as may be alive at the date of such death), with interest in full.</p> <p>The result of the decision is that Mrs. McVay et ol. will get nothing under clauses 20-24, although each one expressly declares that at the death of the life tenant “said fund shall go-to Mrs. Belle McVay, etc.”</p> <p>Prom that judgment Mrs. McVay and the seminary have appealed.</p> <p>Mrs. Cloteal Botto declines to unite in the appeal for the obvious reason that the dividend from these “trust funds” on the $50,000 of legacies to herself and her son, Wm. M. Botto, will greatly exceed the one-eighth which she would receive as legatee under those clauses respectively.</p> <p>Our contention is as follows:</p> <p>In ’ clauses 20-24 of her will Mrs. Irvin directs, respecting, the funds set apart for the use of. five persons during life, that as the life tenants respectively shall die “said funds shall go to-Mrs. McVay, Mrs. Botto, and the seminary as part of the residuum under the 26th clause of this will.”</p> <p>First. Appellees claim that the “remainder” in these respective funds are thus required to pass as residuary estate (in the purely technical sense) under and by force of the 26th, that is, the residuary, clause of the will.</p> <p>Appellants object that this construction is untenable, because:</p> <p>(1) In effect, it nullifies and treats as surplusage the bequests of those remainders as contained in said clauses 20-24.</p> <p>(2) It implies a contradiction between the former and latter parts of the several bequests of the trust funds in said clauses-20-24.</p> <p>The will first directs that these funds, as a whole, shall go to the legatees named.</p> <p>According to appellees’ construction the subsequent words “as part of the residuum” nullifies the previous direction and requires that only a part, that is, the residue after payment of all other legacies, shall go to those legatees.</p> <p>.Second. Appellants’ claim:</p> <p>(11 That, as the natural construction of the language used (apart from the context of the will), the “remainders” of the trust funds pass by force and operation of clauses 20-24, and not under the residuary clause; that they pass not “as a part o’f the residuum” in the sense of being restored to the “general estate.” for payment of abated legacies, but as an addition to what Mrs. Irvin contemplated would be a certain and substantial, though indeterminate, residuum .of her general estate, independently of the trust funds.</p> <p>(2) That this construction is emphasized and enforced by the fact, shown by other clauses of her will, that Mrs. Irvin executed her will in the clear conviction that, after payment'of all general legacies (including payment to the trustee of the principal of the trust estates), there would be a substantial residue of her general estate for division between her residuary legatees; and that, in giving the trust funds “as a part of the residuum,” she contemplated that ‘residuum’ as a certain, substantial fund, to which the trust funds would be added.</p> <p>(3) That appellants’ construction is enforced and emphasized by the following facts gathered from the other clauses of the will, viz.:</p> <p>She gave to Mrs. McVay, Mrs. Botto, and the seminary, each, a general legacy (apart from these remainders) equal to or larger than any other general legacy, and she expected and intended that the bequest of the $54,000 (in remainder) should be in addition to the general legacies.</p> <p>To illlustrate, she expected and intended that Norton Infirmary should receive $10,000; and that the seminary should receive, not only a similar sum of $10,000, but, in addition thereto and in addition to the general residuary, the further sum of three-fourths of $54,000 equal $40,500.</p> <p>If the estate had been what Mrs. Irvin believed and contemplated, the seminary would have received that additional sum.</p> <p>Mrs. Irvin did not contemplate nor intend that because of an unexpected deficiency in her estate to pay all legacies in full, the seminary should receive nothing in excess of the Norton Infirmary. If she had contemplated such deficiency, it is more natural to suppose that she would proportionately have reduced the general legacies and have left the seminary still a favored legatee.</p> <p>But in any event the will should be construed in the light of what it shows that Mrs. Irvin in fact believed and contemplated. It shows that she used the term “residuum” as representing a positive, certain balance, and that, as such, she expected the trust, funds to become a “part” thereof, increasing iti by thei sum of $54,000.</p> <p>Third. Authorities.</p> <p>Farmer v. Mills is a distinct authority in favor of appellants.,</p> <p>The logical deduction from In re,Lyne’s estate is likewise distinctly favorable to appellants’ claim.</p> <p>In Re Tootal’s Estate is clearly distinguishable from the case at bar, and in principle is not hostile to our contention.</p> <p>The Wetmore cases, the only American cases cited, are, if accepted as sound, conclusive in favor of appellants.</p> <p>They are sound in that they enforce the real intention of the testatrix.</p> <p>AUTHORITIES CITED BY APPELLANT,</p> <p>Farmer v. Mills, 4 Russ, 86-87; Re Lyne’s Estate, 8 L. R. v Eq., 482; Re Tootal’s Estate, 2 L. R. Chy. Div., 628; Wetmore v. N. Y. Institution, &c., 3 N. Y. Sup., 179; Wetmore v. N. Y. Institution, &c., 56 Hun., 313; U. S. Trust Co. v. Black, 9 •Misa, 653, 30 N. Y., 453; 83 Hun., 612; 146 N. Y., 1.</p> <p>In Kentucky it is settled that a residuary clause can become operative only after all debts and legacies are paid. Cunningham v. Cunningham, 18 Ben. Mon., 22.</p> <p>Counsel for the residuary legatees contend, that this money is specifically bequeathed to the residuary legatees. To make their contention available, it would be necessary to strike out the words, “as a part of the residuum under the twenty-sixth clause of the will,” from the fifth clause, in which these words occur. We claim that the wording of clauses 20, 21, etc of the will, refer to and are absolutely governed by clause 26, and that clause 26' is and can be the only clause that governs. Kennon v. McRoberts, 1 Am. Dec., 426; Beckman v. Bronson, 23 N. Y., 298; Winston v. Webb, Philips Equity, 1.</p> <p>The question involved in this appeal depends upon the construction of the 26th clause of the will.</p> <p>It is manifest, from the face of the entire will, that the testatrix intended to specifically dispose of several sums aggregating $236,--000, before anything could vest under the 26th or residuary clause.</p> <p>It is further manifest that of this $236,000, $54,000 was intended to be paid over by her executor to the Fidelity Trust & Safety Vault Co., in trust; and that the remainder interests in these $54,000 life legacies, should go directly to the residuary legatees in the proportion named, and that the referee' in the last clause of each of the several specific bequests to the 26th clause, was merely to indicate the proportions that these three parties should share in the said remainder, after the termination of the life estate of the specific legatees.</p> <p>Where a testator directs that a certain amount shall be set aside, the income from which is to be paid to one for life, and thereafter the principal fund to go to three others as part of the residuum under the general residuary clause, the latter can take nothing thereunder until the debts and general legacies are first paid.</p> <p>The bequests to Mrs. McVay, Mrs. Botto, and the seminary in each of the five clauses in question, are given to them as residuary legatees and not as specific legacies.</p> <p>Our construction would distribute the funds pro rata among the general legatees including the appellants.</p> <p>We claim that Mrs. Botto, Mrs. McVay, and the seminary are not “favored legatees” to the exclusion of the other general legatees, as urged by their counsel.</p> <p>AUTHORITIES CITED. -</p> <p>Nickerson v. Bragg (1899) 21 R. I., 296; Wetmore v. New York Institution for the Blind, 3 N. Y. Sup., 179; In re Tootal’s Estate, 2 Ch. Div., 628; Porter v. Howe, 173 Mass., 521 (54 N. E., 255) ni re Lyne’s Estate, L. R., 8 Eq., 482 (Eng). Arnold v. Arnold, 8 Eng., Ch., 441; Parmer v. Mills, 4 Russ, 86; Page on Wills, 919; Churchill v. Reamer, 8 Bush, 260; Childress v. Logan, 23 R., 1239.</p>

<p>Fire Insurance — Waiver of Proofs — Condition against Additional Insurance — Insurance of Mortgagee’s Interest — Misrepresentation as to Amount of Mortgage.</p> <p>Held: 1. A denial by the insurer of all liability for the loss was a waiver of proofs of loss.</p> <p>2. Where a policy procured by the owner provides that it shall be void “if now or hereafter there be other insurance on any property hereby insured,” the fact that a mortgagee subsequently procures insurance upon his interest does not render the policy void, the interest thus insured being distinct from the owner’s interest; and especially is this true where neither the owner nor the mortgagee has any knowledge of the insurance procured by the other.</p> <p>3. The burden was on defendant insurance company to show that a misrepresentation by insured as to the amount he owed on the mortgage was material to the risk, there being no fraudulent motive; and, the insured having testified that he stated a minimum and a maximum amount in his representation to the agent as to the amount due, the chancellor was authorized to accept the maximum amount as the amount stated by insured to be due.</p> <p>4. A misrepresentation by insured as to the amount due on the mortgage was not material to the risk, and therefore did not avoid the policy, where there was no considerable difference between. the true balance due and the balance represented, especially when the form in which the representation was made showed that insured did not pretend to be accurate.</p> <p>5. Where the owner and a mortgagee have effected insurance on their separate interests, in an action by the owner on his policy defendant is not entitled to maintain a cross action for contribution against the company insuring the mortgagee’s interest.</p>

Case 50 — Action by Norton Iron Works v. The Bates Machine Comban y to Recover Damages for Breach of Contract.— APPEAL FROM BOYD CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Appellant is a non-resident corporation, having its principal place of business at Joliet, Illinois, and appellee is a corpora^ tion having its principal place of business at Ashland, Kentucky.

•Case 51 — Action of Joseph Beiser v. The 'Scripps-McRae Publishing Company fob Libel. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Contract for Benefit of Third Person — Deed Providing for Lien in Favor of Stranger — Creation of Lien on Married Woman’s Land.</p> <p>Held: 1. As a third person may enforce a contract made between others for his benefit/ agleed conveying land, which provides that a certain surety of the grantee shall have a lien on the land to indemnify him, creates a lien in favor of the surety, which may be enforced by him, though he is a stranger to the deed.</p> <p>2. As a married woman who accepts a deed conveying land takes the land with the burdens thereby imposed, a provision in such a deed for a lien in favor of a third person is valid; the statute providing that a married woman shall not incumber her land, except by the execution of a deed in which her husband unites, having no application.</p>

Cake 53 — Action by J'oiin O. Adams against W. H. Blakeley and Hbttie S. Blakeley Upon a Promissory Note and to Enforce a Mortgage Lien. APPEAL FROM WARREN CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. Appellee in his petition alleges that the consideration of the note for $3,908.35 sued on, was the payment by him as surety for appellants and upon no part of which lie was bound except as surety.

<p>Case 54 — Action by Grocery Co. against Wasson and Others on a Bond.-</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Judgment for Plaintiff against Wasson and Dismissing Petition as to Other Defendants and Plaintiff Appeals.</p>

Case 55 — Action by Browinski, &c. against Pickett, &c. to Enforce a Material Man’s Lien. APPEAL FROM CARROLL CIRCUIT COURT. Judgment for Plaintiffs for Part oi Their Claim and Browinski Appeals. 1. Appellants say the court erred in not adjudging that they had a lien on the real estate described for the full amount of $856.53 with interest from February 20, 1899 and costs. 2.

<p>Municipal Corporations — Levy of Tax — Discretion of City Council — Tax for Local Purposes — 'Imposition—Power of Legislature.</p> <p>Held: 1. Under Kentucky .Statutes, sections 2981, 2982, part of charter'of cities of the first class, providing that “in the ordinance fixing for any year the tax rate the general council shall subdivide its levy as follows,” stating as one of the subdivisions “a levy for deficit taxes-,” and further providing that if, in any year, less than ninety-five per cent, of the estimated -revenue shall be collected, any deficiency within ninety-five per cent, “may” he provided for in the levy of the next year, and shall he called the “Deficit Tax,” the levy of a deficit tax is left to the sound discretion of the general council.</p> <p>2. Const., section 181, providing that “the General Assembly shall not impose taxes for the purpose of any county, city or other municipal corporation, but may by general laws, coufer on the proper authorities thereof, respectively, the power to assess and collect such taxes,” has taken from the General Assembly the power to impose taxes for pui'ely local purposes, and while that body can prescribe the purposes for which such taxes may be levied, and fix a maximum rate therefor, the assessment and collection of taxes are left to the discretion of the local authorities; and. therefore the amendment of March 16, 1900, to- the charter of cities of the first class is unconstitutional, to the extent that it requires the general council to levy a specified tax to create a . fund for pensioning crippled and disabled members of the fire department and the families of deceased members.</p>

Case 57 — Action of Besvvick’s Admb. against Smick’s Admb. to Enforce an Alleged Trust. APPEAL FROM BOYLE CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Parties to Actions — Capacity to Sue — Objections Waived — Validity of Judgment — Presumption in Favor of Jurisdiction— Absence of Affidavit for Warning Order — Sale of Land by Heirs Subject to Ancestors’ Debts — Purchaser with Notice.</p> <p>Held: 1. Whether the committee of a lunatic could maintain an action for the sale of his ward’s land to pay debts, and whether, after the lunatic’s death, the curator of his estate could maintain an action for the settlement of the estate, and whether the curator was properly appointed, were all matters going to the capacity of plaintiff to sue, and, not being pleaded at the proper time, were waived.</p> <p>2. In an action to vacate a judgment in which jurisdiction of defendant’s person was based on a warning order, it will be presumed that an affidavit for the warning order was filed, though none appears in the record.</p> <p>S. Where heirs in selling land stipulated as part of the consideration that the purchaser was to pay all legal liabilities of the ancestor, and when the purchaser conveyed to, another he stipulated in the deed that the grantee should ‘pay not only all such liabilities but the cost of a pending suit to settle, the ancestor’s estate, a subsequent purchaser took the land with notice that it was charged with the ancestor’s debts and with the cost of the suit referred to, and he can not complain, of irregularities in that suit which were waived by the heirs with a view to having the estate settled as speedily as possible without unnecessary cost.</p>

Case 59 — Action by A. A. Wadswoeti-i against City of Maysville to Recover Compensation for His Services as Police Judge. appeal from mason circuit court. Judgment for Defendant and Plaintiff Appeals.

<p>Appeal from County Court — Establishment of Private Passway —Manner of Taking Appeal.</p> <p>Held: The manner of taking an appeal from a judgment of the - county court establishing a private passway is not governed by the provisions of the Civil Code, but by Kentucky Statutes, section 4303, providing that “the party aggrieved may prosecute an appeal within sixty days by executing bond as required in other cases to the circuit cdurt of the eopnty,” and therefore . the appellant need not produce a copy of the judgment and taxation of costs at the time he executes the bon_d, it being sufficient to file them after the expiration of the sixty days allowed for the execution of bond.</p>

Case G1 — Action by Howes, &c. agatnst Bayes, &c. to Recover Real and Personal Property. APPEAL FROM JOHNSON CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. S. T. Bayes died August 4, 1890, leaving a widow who has since married one H. S. Howes, and who, with her said husband, are the plaintiffs in this action.

Case 62 — Action by J. H. Mingo against Colored Common School District A. or Garrard County to Recover Damages for Breach of Contract. APPEAL FROM GARRARD CIRCUIT COURT. Judgment for Defendants and. Plaintiff Appeals.

-Case 63 — Action by Elliott, &c. against Burke, &c. for an Injunction, Consolidated with Action of Burke, &c. against Elliott, &c. for an Injunction. APPEAL FROM KENTON CIRCUIT COURT.

<p>Embezzlement — Misappropriation by Sheriff -of Taxes Collected —¡Sufficiency of Indictment — Allegation of Demand.</p> <p>Held: 1. Under Kentucky Statutes, 'section 1205, providing that if any person having the control, custody, or distinct possession of any money belonging to or for the use of any county, and under any trust or duty “to keep, return, deliver, cancel, destroy or specifically apply the same, or any ©art thereof, shall, in violation of such ¡trust or duty, willfully misapply, misappropriate, conceal, use, loan or oltherwise wrongfully and fraudulently dispose of such money ... for his own purposes or use of another, with intent to deprive the owner or authority of the same, or of any part thereof, for the hen-fit of the wrongdoer or of any other person,” such person shall be confine*} in the penitentiary, an indictment against a sheriff for embezzlement alleged to have been committed by misappropriating the county levy collected by him need not allege that there had been a settlement with the defendant or any demand upon or 'direction to him to pay over the money in his hands.</p> <p>2. An officer may be guilty of embezzlement though he was entitled to a commission out of the money collected and used by him.</p>

Case 65 — Action by Stewart against Rose, Praying that Plaintiff be Adjudged Duly Elected Police Judge of the' Town of Jellico. APPEAL FROM WHITLEY CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Case 66 — Action by J. A. Morrison’s Assignee against P. A. Miller and Others for a Settlement of ti-ie Assigned Estate.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment Denying the Claim of Mary G-. Morrison to Land and ■She ArPEALs.</p> <p>SYNOPSIS AND LIST OF AUTHORITIES.</p> <p>1. The chief question stated. A married woman could not, under the general statutes, convey 'her separate estate to her ■ husband.</p> <p>2 An historical view of separate estate. Revised Statutes, vol. 2, page 28, chap. 47, art. 4, sec. 17; General' Statutes, chap. 52, art. 4, sec. 17.</p> <p>3. Separate estate under the general statutes. (1) Could not be mortgaged for the benefit of the husband. Hirschman v. Brashears, 79 Ky., 258; Merchants, &c. B. & L. Assn. v. Jarvis, 92 Ky., 566.</p> <p>(2) The reason for this is that it would defeat the estate of the wife in the proceeds. Magill, &c. v. Mercantile Trust Co., 81 Ky., 129; Merchants, &c. B. & L. Assn. v. Jarvis, supra.</p> <p>(3) A conveyance would more certainly defeat the light of the wife than would a mortgage .Hughes v. Shannon, 13 R., 782; Baird, &c. v. Bruuing, &c., 84- Ky., 645-,</p> <p>4. Authorities cited by opposing counsel discussed. (1) The following cases distinguished: Kennedy, &c. v. Ten Broeclr, 11 Bush, 241,; Scarborough v. Watkins, 9 B. Mon., 540; Riley v. Wilson, 24 S. W., Rep., 394; Cain v. Ligón, 71 Ga., 692; 51 Am. R., 281.</p> <p>(2) Confusion resulting from the use of the term separate estate in two senses. Bishop on Married Women, vol. 1, sec. 796; 2 Story's Equity, sec. 1395.</p> <p>5. The provision of the general statutes certainly applicable. The ease of Chrismas v. Hahn, 10 Ky. Law Rep., 377 Distinguished.</p> <p>6. The transaction a deed in form only. 2 Story’s Equity, sec. 1395.</p> <p>7. The question of estoppel. (1) No estoppel in pais. 11 Am. & Eng. Ency. Law, 2d ed., pp. 421-435.</p> <p>(2) No estoppel by deed. Ibid, p. 393, Bohannon v. Travis, 94 Ky., 59; Louisville, &e. Railway Co. v. Stephens, 96 Ky., 401.</p> <p>(3) The doctrine of estoppel 'wholly inapplicable. Merchant, &e. B. & L. Assn.. v. Jarvis, supra. The following cases distinguished; Connolly v. Branstler, 3 Bush, 702; Rusk v. Fen-ton, 14 Bush, 490; Wright v. Arnold, 14 B. Mon., 638; Davis v. Tingle, 8 B. Mon., 542.</p> <p>8. The mortgage debt of the appellee, Mrs. P. A. Miller. (1) No change made by the present married woman’s act. Kentucky Statutes, sees. 2127 and 2128; O’Donoghue v. Akin, 2 Duvall, 178; Watts v. • Commonwealth, 78 Ky., 329; L. & N. R. R. v. Sharp, 91 Ky., 411; Lawrence v. City of Louisville, 96 Ky., 595; Long &c. v. City of Louisville, 97 Ky., 372; Kentucky Statutes, see. 459; Sutherland Statutory Constru'ction, sec. 164; Kentucky Statutes, sec. 465; Cooley’s Constitutional Law, pp. 329 and 344; Green v. Biddle, 8 Wheat., 84; Planters’ Bank v. Sharp, 6 How., -372; Pearce’s Heirs v. Patton, 7 B. Mon., 162; Collins v. Collins, 79 Ky., 88; Mitchell, &c. v. Yiolett, &c., 20 Ky. Law Rep., 378; Rose, &e. v. Rose, Ibid., 417; Mundo & McGraw v. Anderson 22 Ky. Law Rep., 663.</p> <p>ADDITIONAL SYNOPSIS AND AUTHORITIES CITED.</p> <p>See. .17, art. 4, chap. 52, of the General Statutes applies to this case.</p> <p>1. This proposition is upheld by the reason of the subject. Chrismas v. Hahn, 10 R., 377; and Bryan v.' Bohannan, MSS. Opin., Distinguished.</p> <p>2. This proposition, is established by the decisions of this court. Stuart v. Wilder, 17 B. Mon., 55, and Hanly v. Downing, 4 Metcalf, 95.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Money paid by appellant and which she owned alone and in her own right, is her general estate. 2 Blackstone Commentaries, p. 433; 1st vol. Minor’s Institutes, p. 325; 1st vol. Mi-, nor’s Institutes, p. 327.</p> <p>2. The provisions of the general statutes prohibiting the alienation of the separate estates of married women where she receives no consideration' for her conveyance, do not apply where the married woman herself created the separate estate out of her general estate. iSec. 17, art. 4, chap. 52, General Statutes; sec. 17, art. 4, chap. 47, Revised Statutes; Baird v. Bruuing, 84 Ky., p. 645; Chrismas v. Hahn, 10 Ky. Law Rep., p. 377; Duvall v. Graves, 7 Bush, 467; Bryan v. Bohannan, 1856 MS. Opinion; Bell v. Rodgers, Jan. 24, 1877, MS. Opinion.</p> <p>3. To create a separate estate in a married woman it is need-ful that an intention to invest the property in the wife to the exclusion of the husband shall clearly appear. Bank of Louisville, v. Gray, &c., 84 Ky., p. 5G5; Schwartz v. Griffith, 7 Ky. Law Rep., p. 531.</p> <p>4. In the following cases some one other than the feme herself created the separate estate. Hirschman v. Brashears, 79 Ky., p. 258; Merchants’ Building & Loan Association v. Jarvis, 92 Ky., 566; Megill v. Mercantile Trust Co., 81 Ky., p. 129; Hughes v. Shannon, 13 Ky. Law Rep., p. 782.</p> <p>5. The appellant is estopped to claim the land in controversy. 1 Story’s Equity, p. 368; 2 Story’s Equity, p. 756; Stone and Wife v. Werts, 3' Bush, p. 486; Pryse v. McGuire, 81 Ky., p. 609; Kennady v. Ten Broeclc, 11 Bush, p. 241; Scarborough v. Watkins, 9 B. M., p. 540; Connally v. Branstler, 3 Bush, 702; Rusk v. Fenton, 14 Bush, 490; Wright v. Arnold, 14 Bush, 638; Davis v. Tingle, 8 B. M., 542.</p> <p>On April 19, 1898, Mrs. P. A. Miller loaned to appellant, Mary G. Morrison, $5,123 due three year's after date, and took her note therefor with her husband, James A. Morrison, as surety. To secure this note, Mary G. Morrison and her husband made to Mrs. Miller a mortgage on eighty-four acres of land in Daviess county, conveyed to her by W. W. Hays and wife, March 10, 1874, and by her and her husband conveyed to W. T. Ellis, trustee and by W. T. Ellis, trustee, conveyed to’ the husband, J. A. Morrison.'</p> <p>On December 28, 1899, J. A Morrison, the husband, made a deed of assignment, conveying to one J'. H. Harsh, in trust,, for the benefit of his creditors, the property embraced in the mortgage to Mrs. Miller among other property. On January 8, 1900, J. IT. Harsh, assignee, brought a suit in the Daviess circuit court for a settlement, of the estate committed to- his hands as trustee, and for a sale of the property to pay Mrs. Miller’s debt and after the payment of her debt whatever might be left to the payment of debts of creditors.</p> <p>In the petition he made the appellee, Mrs. Miller and the appellant, Mary G. Morrison, defendants, and in this suit a sale of the land was adjudged to pay the debt of Mrs. Miller and then to pay creditors.</p> <p>Mrs. Morrison, defended the suit, claiming that the property was hers, and that the conveyance made by her and her husband to Ellis, trustee and by him to her husband did not divest her of title and that same was void.</p> <p>We claim that the law in force at the date of the mortgage, substantially made a married woman’s real estate her separate estate, and gave to her the riPht to pledge the same “for the debt, default and misdoing of another, including her husband, if such estate should 'have been set apart for that purpose by-deed of mortgage or other conveyance.”</p> <p>In our judgment it is immaterial whether she was the owner of the land or not, for if she was the owner, by making the mortgage, she set apart the land embraced in it to the payment of the debt. If she was principal in the debt she could bind lier estate. We insist, however, that she is liable as principal as to the appellee, Miller, and that she so regarded herself is shown by her answer filed to the assignee’s petition in. which she says “that as to the plaintiff and as to all other creditors of her husband except the defendant, Mrs. P. A. Miller, this defendant is entitled to hold said property as her own and free from any claim on account of her said indebtedness.”*</p> <p>AUTHORITIES CITED.</p> <p>Miller v. Sanders, 98 Ky., 525; Lane v. Traders Deposit Bank, 14 R., 873; Tipton v. Traders Dep. Bank, 17 R., 960; New Farmers’ Bank’s Trustee v. Blythe, 21 R., 1033.</p>

Case 67 — Action of Bath County, &c. against John A. Daugherty, Commissioner, for a Mandamus. APPEAL FROM BATH CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 68 — Action for Injury to Cattle in Transportation. APPEAL FROM IIARDIN CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. QUESTIONS RAISED AND AUTHORITIES CITED. The contract, between .plaintiffs and this defendant below for the transportation of this stock was not made in Hardin county. The stock were not injured in that county, nor did this defendant reside in said county. Therefore, the court had no jurisdiction of the subject matter of the action.

Case 69 — Action by Ed. Thompson against the City of Lexington fob Services as a Fireman. APPEAL FROM. FAYETTE CIRCUIT COURT. ' Judgment for Plaintiffs and Defendant Appeals. On March 15, 1900, appellee, Ed. Thompson was in the employ of the city of Lexington, as an ordinary fireman, at a salary bf fifty dollars per month, which salary had been previously fixed by ordinance.

Case 70 — Action to Recover Damages for Delay in the Shipment of a Corpse APPEAL FROM .WEBSTER CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. SUMMARY AND AUTHORITIES. 1. Appellee sued and recovered $1,640 for delay in delivering a casket containing the remains of his wife. 2. There can be no property in a human corpse. Keys v. Konkeíl, 119 Mich., 550, 75 Am. St. Rep., 423. 3. The petition states no cause of action. 4.

Case 71 — An Indictment against L. R. Pouter for Embezzlement was Dismissed and tiie Commonwealth Appeals.' APPEAL FROM WARREN CIRCUIT COURT. Indictment Dismissed and Commonwealth Appeals. QUESTIONS DISCUSSED.

<p>Case 72 — Action by Abbai-iam Stowers against Samuel R. Singer to Recover Damages for the Seduction of Plaintiff’s Daughter.</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals. Reversed. Petition for Rehearing Granted. Former Opinion Withdrawn for Formef, Report.</p> <p>STATEMENTS OF POINTS DISCUSSED AND ‘ AUTHORITIES CITED.</p> <p>1. The petition states a cause of action. .The action is a statutory one. Kentucky Statutes, chap. 1, sec. 2, Gen. Stat. chap 1, sec. 2; 1 Rev. Stat. chap. 1, sec. 2; Pence v. Dozier, 7 Bush, 134; Burks v. Shain, 2 Bibb, 343; Hancock v. Wilhoite, 1 Duv., 313; Wilhoite v. Hancock, 5 Bush, 568, 572; Woodward v. Anderson, 9 Bush, 624, et seq.; Lawyer v. Fritcher, 14 L. R. A., 700; Shellman v. Frymire, 9 Ky. Law Rep., 894; Covington St. Railway Co. v. Packer, 9 Bush, 459, 2 Waite’s Actions and Defenses, 445, 450, 451 and cases cited; Waite’s Actions and Defenses, 658, sec. 2; Briggs v. Evans, 5 Ired. (N. C.) 16.</p> <p>2. Measure of Damages. _ Exemplary may be awarded. 2 Waite’s Actions and Defenses, 450, 451, 446, 447, 448; Stevenson v. Belknap, 6’ Iowa, 97; Like v. Eisenlord, 32 N. Y., (5 Tiff.) 229; Ball v. Bruce, 21 111., 161; Chiles v. Drake, 2 Met., 146; Day v. Woodworth, IS How. (U. S.) 363; Conrad v. Pacific Ins. Co., 6 Pe. (U. $.) 262; .Stimson v. The Railroads, 1 Wall, (U. S.) 164.</p> <p>3. New trial should have been granted. Price’s Admr. v. Thompson, &c'., 84 Ky., 224; Civil Code, sec. 340; McFarland’s Admr. v. Clark, 9 Dana, 134, &c.;' iShellman v. Frymire, 9 Ky. Law Rep., 894; Graham & Co. v. Clark, &c., 18 Ky. Law Rep., 866, 867; Miller v. Field, 3 Mar., 110; Barrett v. Belshe, 4 Bibb, 348; Clark v. Ruttledge, 2 Mar., 381; Finley v. Tyler, 1 Litt., 162; Higdon v. Higdon, 2 Mar., 42; McCall v. Hitchcock, 9 Bush, 71, 72v; Lambert v. Hicks, 15 Ky. Law Rep., 240; McKinney v. Commonwealth, 1 J. J. Mar., 319, 320; Haggin v. Christian, 1 Mar., 579; Mahan v. Jane, 2 Bibb, 33; Boyce v. Yoder, 2 J. J. Mar., 515; Holmes v. McKinney, 4 Mon., 4, 5; Hunt v. Owings, &c., 4 Mon., 22; Fleet & Semple v. Hollen-r kamp, 13 B. Mon., 223; Klein v. Gibson, 8 Ky. Law Rep., 343; Elliott v. Harris, &c., 81 Ky., 423; L. & N. R. R. Co. v. Whitley County Court, 100 Ky., 413, &c.; Allen v. Perry, 6 Bush, 91; Adams Oil Co. v. Stout, 19 Ky. Law Rep., 758, &c.; Johnson v. Stivers, 95 Ky., 128; Braimel v. Clark, 6 Ky. Law Rep., 220.</p> <p>4. Unchastity of daughter no defense. Shellman v. Frymire, 9 Ky. Law Rep., 894.</p> <p>5.“Seduetion” should have been defined in the instructions of the court.</p> <p>The only point really involved in this case is, Is the plaintiff entitled to a new trial because of newly discovered evidence?</p> <p>This action was brought against Prof. Samuel R. Singer by the appellant for damages, for the alleged seduction of his daughter. The issues were made, a trial was had before a jury who returned a verdict for the defendant. During the trial one or two witnesses testified as to statements made by Estella Stowers admitting her intimacy with other persons, and other immodest statements. Mary Rice was a regularly subpoenaed witness. Appellant knew the witnesses he would have to confront. Estella Stowers admitted some of these statements and denied others. The jury saw the witnesses and heard them and believed the statements made by appellee’s witnesses and their verdict should not be disturbed.</p> <p>This court, in an unbroken line of decisions for the past thirty years, has decided that a “new trial shall not be granted upon the grounds of newly discovered evidence to a point which was in issue on the former trial,” unless the newly discovered evidence is of such permanent and unerring character as to preponderate greatly, or to have, a decisive influence upon the evidence to be overturned by it.</p> <p>CITATIONS.</p> <p>Wells v. Phelps, 4 Bibb., 563; Chambers v. Chambers, 2 Mar., 349; Miller v. Field, 3 Mar., 109; Daniel v. Daniel, 2 J. J. Mar., 52; Ewing v. Price, 3 J. J. M., 522; Withers v. Butts, 7 Dana, 3É9; Fleet v. Hollenkamp, 13 B. M., 225; McFarland v. Clark, 9 Dana, 135; Leonhart v. Stalzenberger, 7 Bush, 210; Ripperdon v. Scott, 1 Mar., 152; Hargis v. Price, 4 Dana, 81; Respass v. McClanahan, Hard, 345; E-ccles v. Shackleford, 1 Lite., 08; Yancey v. Downer, 5 Litt., 10; Berry v. Branham, 3 R., 756; Marshall v. Senour, 3 R., 756; Mercer v. Mercer, 87 Ky., 21.</p>

<p>Municipal Corporations — Injury from Defect in Sidewalk — Notice to Plaintive op Defect.</p> <p>Held: 1. Where plaintiff had worked in a store for five or six months, and it was a .part of his business to sweep off the sidewalk in front of the store, he was charged with notice of the fact that the- walk had become uneven and his statement that he did not know that the bricks were raised, or the pavement was in a bad condition, must he taken as meaning that he had never thought of the pavement as dangerous.</p> <p>2. A city is only required to use proper care to see that its sidewalks ■are reasonabljr safe for persons exercising ordinary care and prudence; and, therefore, where one who was charged with ■notice that some of the Bricks in a sidewalk had been raised By the roots of a tree stumbled against the raised bricks in daylight, from inadvertence, the city was not liable for the injury resulting.</p>

Case 74 — Action to Recover Damages for Personal Injuries— APPEAL FROM BALLARD CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The appellee claims that she was walking along on the sidewalk on Front street, when one of the planks of the walk tilted and threw her to the ground and injured her permanently. The sidewalks of cities of the fifth class are under the supervision of the maypr and co-uncilmen of the city.

Case 75 — In the Matter oe the Sale of Certain Real Estate by the Admr. of W. A. Moore, Sr., to W. E. Sleet, Mabel C. Moore, Intervened, Claiming Said Estate. APPEAL FROM WOODFORD CIRCUIT COURT. Judgment for Mabel C. Moore and the Admr. Appeals. The only question in this ease, comes up, upon the construction of the will of Wm.

Case 76 — Action by Emma Asman against ti-ie City of Covington to Recover Damages for Personal Injuries. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The plaintiff, appellee, recovered a verdict of $535 against the city of Covington, for injuries alleged to have been sustained by falling in a bole on a defective sidewalk of said city.

Case 77 — ’Action by the District of Highlands of Campbell ¡County, against the City of Covington for the Appointment of a Receiver and the Enforcement of a Lien fob Taxes.— APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Fire Insurance — -Parol Contracts — Selection of Company by Agent — -Right of Agent to Cancel Policy Without Notice to Insured — Additional Insurance- — Notice to Agent.</p> <p>Held: 1. Parol contracts of insurance are valid.</p> <p>2. Where insured authorized one who was agent for several companies to select the- companies in which to place insurance of a certain amount, the agent had no authority, ai'tdr selecting the companies and issuing the policies, to cancel one of the policies without notice to insured, and substitute- for it a policy in another company, though the canceled policy had not been actually delivered, since an elnforcea-ble contract would have existed if no policy had been issued at all; and therefore the canceled policy remained in force.</p> <p>3. Where insured notified the agent that he desired to procure additional insurance, the company wa-s bound to issue a policy which allowed him to do so, and therefore a provision in the policy issued which was never actually delivered, prohibiting additional insurance, was void.</p>

<p>Case 79 — Actions by S. A. Pannell and Others against the ■Louisville -Tobacco Warehouse Co. to Recover Penalties for a Violation of a Statute, Consolidated with an Action by the Louisville Tobacco Warehouse Co. against S. A. Pannell and Others, to Enjoin the Prosecution of Such Actions.—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment Dismissing the Actions Brought by S. A. Pannell and Others, and Granting the Louisville Tobacco Warehouse Co. an Injunction, and S. A. Pannell and Others Appeal.</p>

<p>Case 80 — Action by Vernon Richardson against the Evening Post Oo., for Libel.-</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

Case 81 — William Williams was Convicted of the Offense of False Swearing. APPEAL FROM FULTON CIRCUIT COURT. Dependant Convicted And Appeals.

■Case 82 — Action by Southern Railway in Kentucky, and Others against Gus G. Coulter and Others, fOR an Injunction.— APPEAL PROM FRANKLIN CIRCUIT COURT. JUGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. 'POINTS RELIED ON. 1. The letter of the law requires a deduction which, when made, leaves nothing to be taxed. This letter is plain and unambiguous and there is no room for construction.

<p>Case 83 — Action ey the City op Owensboro against W. N. O’Bryan, City Clerk, por a Writ of Mandamus.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Adpeals.</p>

Case 84 — Action by John B. Hurst against Skidmore, &C. for a Mandamus. APPEAL PROM HARLAN CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal. This appeal involves the construction of the law of this State governing elections.

Case 85 — Action by John B. Hurst against W. R. Bailey, Contesting an Election. APPEAL FROM HARLAN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. This is an election contest for the office of county judge of Harlan county at the November election, 1901. The certificate of election was given to the appellant, who, by the official count received 701 votes, while appellee, Hurst, received 546 votes, giving Bailey, the appellant, a majority of 155 votes.

<p>Hes Judicata — Judgment 'Enjoining Use of Corporate Name in Particular Way — Evidence as to Transaction with Person •Since Deceased — Dissolution of Corporation- — -Trade Name.</p> <p>Held: 1. Where plaintiff sought to enjoin defendants from using a corporate name consisting of his name with the addition of the word “company,”, and especially from using- his autograph signature as a part thereof, a judgment enjoining defendants from using the script fac simile of the autograph signature of plaintiff was in effect a determination that defendants had the right to use the corporate name in roman letters, and therefore the right of defendants to uise the-corporate name in that way is res judicata.</p> <p>2. Plaintiffs were not competent witnesses for themselves to establish the fact that one who was dead when the testimony was offered agreed, when one of the plaintiffs transferred to him his interest in a corporation, that the corporation should cease to do business.</p> <p>3. Where a corporation organized for “the purchase, erection, and leasing of whisky distilleries and warehouses, the manuiacturing of whisky, and the purchase and sale thereof as owners, agents, or merchants, and the keeping, -fattening, and dealing m live stock in connection with said business of distilling,” sold the distilleries which it owned, but continued -to maintain its organization and to own property, the fact that a single person became the owner of all the stock did not cause the corporation to cease to exist, as the purposes for which it was organized had not ceased to exist; and therefore one who transferred his interest in the- corporation can not complain of the use of the coi-porate name by defendants by authority of the corporation, though that name consists of his name with the addition of the word “company,” and though the effect may be to injure his business.</p>

Case 87 — James Spriggs was Convicted of tiie Offense of Manslaughter and He Appeals. APPEAI FROM M’CRACKEN CIRCUIT COURT. Defendant Convicted and Appeals. POINTS DISCUSSED AND AUTHORITIES CITED. 1.

Case 88 — 'Action by Sam. C. Hardin, &c. against W. R. Cress and-Others to Contest an Election APPEAL FROM WAYNE CIRCUIT COURT. Judgment for. Defendants and Plaintiffs Appeal. Appellants and appellees were respective candidates for various county offices at the election held in Wayne county in November, 1901. On the face of the returns the appellees received a small majority, and were awarded the certificates of election.

Case 89 — Actions by Gbaiiam against Graham and Edwards against Loy on Motion to Docket and Advance and for Oral Argument. APPEAL from green circuit court. Motions to Docket and for Oral Argument Sustained.

<p>Elections — Name of Candidate Written on Ballot by Clerk-— Contestant Need not Prove Undenied Allegations of Petition — Costs.</p> <p>Held: 1. Under Kentucky Statutes, section 1471, a voter who desires to vote for a person whose name is not printed on the ballot must write the name himself, and stamp in the square opposite the name; and therefore ballots stamped only in a device at the head of a column were improperly counted for one whose name was written in the column by the clerk- before .handing the ballot to the voter.</p> <p>2. A candidate, though receiving only fortyJwo votes for a county office, was entitled to the certificate of election, no votes being cast for any other person for that office'.</p> <p>3. The plaintiff in an action t'o contest am election need not prove the allegations of his petition, where there is no denial of them, though defendant was not a candidate for the office in contest, and refuses to accept the certificate1 or to qualify, and is therefore only a nominal party.</p> <p>4. The defendant in such an action, being only a nominal party, should not be required to pay costs.</p>

<p>Case 91 — Rule against J. C. Metcalfe in-Case of Kentucky National Bank, &c. v. Commonwealth Land & Lumber Co. &c., ■ to Show Cause Why He Should not Surrender a Certain Lot to the Receiver, &c.</p> <p>APPEAL FROM JEFFERSON' CIRCUIT COURT.</p> <p>Judgment Making Rule Absolute and Metcalfe Appeals.</p> <p>' POINTS AND AUTHORITIES. .</p> <p>1. Fee simple title vests in the - purchaser at tax sale, if land he not redeemed within two years. Kentucky Statutes, sec. 4154.</p> <p>Sheriff’s deed, in pursuance of a sale for taxes, is prima facie evidence of regularity of sala and all prior proceedings. Kentucky Statutes, sec. 4030.</p> <p>Duty of purchaser at tax sale to give notice to former owner within fifty days after sale. Kentucky Statutes, sec. 4153.</p> <p>2. Purchaser other than State shall have right of possession Of lands purchased' at tax sale at any time after six months from giving such notice. Kentucky Statutes, sec. 4152. The right of entry is a substantial and practical right. Tribble v. Frame, 7 J. J. M.ar., 599; Tucker v. Phillips, 2 Met., 416.</p> <p>'3. A tenant who has been dispossessed and, not the landlord is the only person entitled to sue for 'possession during the ■term. Trabue v. Talbott, 6 J. J. Mar., 602; Pogue v. McKee, 4 Mar., 128; Steele v. Logan, 3 Mar., 394; Buford v. Cox, 5 J. J. Mar.,'586; Yoder v. Easley, 2 Dana, 245; Hudgins v. Temple, 12 B. M., 211.</p> <p>4. (1) Appellant was guilty of no intentional contempt.</p> <p>i(2) Property rights can not be-adjudicated in contempt proceedings. Beach on Receivers, sac. 258, Smith on Receivers, sec. 51; Ex parte William Hollis, 59 Cal., 412; Baldwin v. Hosmer, 59 N. W. Reporter, 452 (Mich. 1894).</p> <p>(3) The court can not in contempt proceedings compel adverse claimant to surrender property to a receiver.</p> <p>(4) Tax lien not affected, by a receivership. Smith on Receivers, sec. 54.</p> <p>The Louisville Trust Co. was appointed receiver by an order of the Jefferson circuit court, chancery division, November 12, 1898, and directed toi take forthwith possession of the twenty-seven and one-half acres now in controversy, and rent out ■ime. He took possession and rented it for -the year 1900, ■and had contracted it for 1901, but in December 1900, appellant, Metcalfe, took possession of it and has held it ever since. It is agreed that the receiver demanded possession thereof of Metcalfe and he refused to surrender possession.</p> <p>After the receiver had demanded possession of Metcalfe, on his petition and motion, a rule was granted against Metcalfe to show cause why he should not be compelled to restore the possession of said land, &c.</p> <p>1. We contend that Me.tcalfe’s act in taking possession and •withholding same from the receiver, after demand was made in the name of the receiver, was clearly a contempt of the court.</p> <p>2. Any act preventing the receiver from carrying out the order of the court was a contempt.</p> <p>3. Whether Metcalfe owned- the land or not he had no right to' take possession of it, in the face of the order directing the receiver to rent it out.</p> <p>4. That a receiver may he in possession through tenants, is recognized by the authorities.</p> <p>5. We admit that the court can not, in a contempt proceeding, compel an adverse claimant to surrender his property to a receiver, but it does not mean by adverse claimant, one whose idaim arose or who acquired possession of the property after the receiver ^ad taken possession, and was in possession by tenants.</p> <p>6. If appellant entered in December, 1900, he entered upon property in the actual possession of the receiver. This was contempt. If he entered January 1, 1901, then he prevented the receiver from entering and placing in .possession his tenant for the year, 1901. This was contempt.</p> <p>7. If appellant had a valid claim, his proper course was to apply to the court for permission to sue the receiver. He had no right to take the law in his own hands.</p> <p>AUTHORITIES CITED.</p> <p>Hazelrigg v. Bronaugh, 78 Ky., 12; Louisville v. Lou. Gas Co., 15 R., 177; Parker v. Overman, 18 Howard, 143; Beach on Receivers, secs, 239, 258; Smith on Same, secs. 47, 54; Hinton v. Fox, 3 Litt.,- 382; Lee v. McDaniel, 1 Mar., 234; Jones v. Chiles, 2 Dana, 26; MeLaurin v. Salmons, 11 B. M., 98; Chiles v. Jones, 7 Dana, 538; -Brumfield v. Reynolds, 4 Bibb, 388; Canine v. Westerfield, 3 Mar., 1172; Young v. Ringo, 1 Litt., 226; Young v. Young, 22 Rep., 627.</p>

Case 92 — Action by Helmbold against Krinn to Contest an Election. APPEAL PROM CAMPBELL CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The sole question involved in the motion to dismiss the appeal, is whether the ordinary provisions of the code are a,p-’ plicable to tbe .suing out of appeals, in the court of appeals, in election contest or are they repealed by implication. Such repeals are not favored.

<p>Case 93 — Action by Lowry against City of Lexington to Test the Validity of an Ordinance.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>PROPOSITIONS AND AUTHORITIES CITED.</p> <p>Introductory. Present Const, of Ky., secs. 51, 156; Const, of Ky., of 1850, art. 2, sec. 37; Act of March 19, 1894, art. 3, chap. 89, Kentucky Statutes (secs. 3038 to 3235 inclusive); Secs. 3059, 3061, 3196, Kentucky Statutes.</p> <p>1. Title to Ordinance No. 1113 insufficient. Kentucky Statutes, sec. 3059; Pennington v. Woolfolk, &c., 79 Ky., 13.</p> <p>2. Ordinance No. 1113 embraces a plurality of subjects, and none of these subjects agree with the title. There is no subject covered by the title, which stands alone or is severable from the rest of the ordinance. Carter County v. Sinton, 120 U. S., 517; Phillips v. Cov. & Cin. Bridge Co., 2 Met., 221; Dillon Munic. Corps. (4th ed.) vol. 1, secs. 51, 47, 87, 91; Astor & Bailey v. N. Y. Arcade Ry. Co., cited by Dillon Munc. Corp., vol. 1, p. 89; Cooley on Const. Lim., 1st ed., pp. 141-151; Varney v. Justice, 86 Ky., 596; Horr & Bemis, “Munic. Police Ordinances,” sec. 35 of Chap. 5, and sec. 71; Howland Coal & Iron Works, &c. v. Brown, 13 Bush, 681; Beach on Public Corps., yol. 1, secs. 504, 77; sec. 8 of Act of February 26, 1886, Amending Lex. Charter; Elliott v. City of Louisville, &c., 101 Ky., 262; s. c., 19 Ky. Law Rep., 414; Kentucky Statutes, sec. 2777; Town of Cantrill v. Sanier, 59 Iowa, 26; Stebbins v. Mayer, (Kansas) 16 Pac. Rep., 745; Lincoln Land Co. v. Village of Grant, (Nebraska) 77 N. W. Rep., 349; Bergman & Wife v. St. Louis, I. M. & S. R. R. Co. (Missouri), 1 S. W. Rep., 384; Missouri Pac. Ry. Co. v. City of Wyandotte et al., (Kansas) 23 Pac. Rep., 950; Note to Bobel v. People, 173 111., 19; s. c. 64 Am. St. Rep., 64; Conley v. Comth., 98 Ky., 125.</p> <p>3. Ordinance No. 1113 is bad, because it creates offices unauthorized by charter, and does this in an irregular way. At least, bad to the extent that such offices are created. Kentucky Statutes, secs. 3172, 3049, 3131, 3144, 3145, 3132, 3133-3136, 3114, 3157, 3177; Present Const, of Ky., secs. 156, 166, 160, 249, and sec. 59, subsec. 18; Act of June 10, 1882, sec. 45; sec. 3 of Act of February 20, 1890; East St. Louis v. Thomas, 11 111., App., 283; Kniper v. City of Louisville, 7 Bush, 599.</p> <p>4. No power in council to digest or codify ordinances or to amend such digest or codification by reference to its chapters and sections merely. Secs. 8 and 10 of Act of February 26, 1886; sec. 7 of Act of May 17, 1886; Compilations of Lex. City Ordinances of the years 1851, 1870, 1883 and 1897; Kentucky Statutes, secs. 3059, 3061, 3196, 2751; Be Jo. E. Haskell, 112 Cal., 412; s. c. 32 L. R. A., 527; Vessant v. Knox, 27 Ark., 272; Cent. Die. and Webster’s Internat. Diet, definitions of “Revise” and “Revision;” Compiled Ordinances of Louisville, Covington and Newport; Sedgwick on Construction, Stat. and Const. Law, pp. 338, 466; 15 Am. & Eng. Ency. Law, p. 1041 (1st ed.) Henderson, &c. v. City of Covington, &c., 14 Bush, 312.</p> <p>ADDITIONAL POINTS AND AUTHORITIES.</p> <p>1. No inherent or implied power in cities of second class to create offices or deputy offices, such as those complained of by appellant. Kentucky Statutes, secs. 3038, 3172, 3058, subsec. 25; Dillon on Municipal Corporations (4th ed.) vol. 1, secs. 39, 89, 91, 206, 207, and foot note to sec. 207; Hoboken v. Harrison, 1 Vroom (30 N. J. L.) 73; Costello v. Mayor, &c. of n/y., 63 N. Y., 48; Sullivan v. Mayor, &c. of N. Y., 53 N. Y., 652, s. c. 47 How. Pr. R., 491; Henderson, &c. v. City of Covington, &e., 14 Bush, 312; Patton, &c. v. Stephens, &c., '14 Bush, 324; City of Covington v. Mayberry, 9 Bush, 304; Brissenden v. Clay County, 161 111., 216; s. c. 43 N. E. Rep., 977.</p> <p>2. The assistants, deputies or clerks provided for in ordinance No. 1113 are officers and not mere employes. City of Louisville v. Wilson, 99 Ky., 598; s. c. 18 Ky. Law Rep., 427.</p> <p>3. True meaning of last clause of section 3049, Kentucky Statutes.</p> <p>4. Legality of the publication styled “The Revised Ordinances of the (City of Lexington.” Cons, of I860, art. 2, sec. 37; art. 8, sec. 22; Cons, of 1891, secs. 51, 245; Kentucky Statutes, secs.1 3059, 3061; He Jo. E. Haskell, 112 Cal., 412; s. c. 32 L. R. A., 527; Compiled Ordinances of Louisville, Newport and Covington.</p> <p>5. As to the city clerk and his deputy. Kentucky Statutes, secs. 3133, 3172; Time of meeting of two boards of general council in Newport and Covington referred to; Act of March 19, 1894 (Charter of Cities of .Second Class); Lexington Charter of April 19, 1882, sec. 8; Sec. 5 of Act of February 26, 1886, Amending Act of April 19, 1882; sec. 5 of Act of May 17, 1886, Amending Act of February 26, 1886.</p> <p>6. In conclusion. Horr & Bemis’ Municipal Police Ordinances, sec. 17.</p> <p>It would be absurd to say that either the framers of the Constitution or the members of the Legislature would attempt to enumerate to the minutest detail the powers and limitations of the various municipal corporations, or that eithea- body would attempt to lay down an absolute rule of law, that there should be certain officers and no others, no matter what the progress or growth of the city might require; and we contend that whenever the needs and requirements become such that the officers specifically mentioned can not perform the duties of their respective offices, by themselves, then it becomes a part of prudence, economy and good government to allow them assistants; calling them deputies makes no difference. They are not officers in the sense of officers called for in the Constitution, which the city is required to fill, but are such assistants and employes, as are needed from time to- time, who can be discharged at any time, and whose salaries can be changed at any time; in other words, they are not constitutional officers, but needful and useful employes, made- necessary by the needs of the city; and these assistants may be- appointed by the officers, if authorized so to do by a city ordinance.</p> <p>The only point, that we believe calls for the< serious consideration of the court,. made by counsel for appellant in his interesting brief from a literary standpoint, is, whether or not .the title of the ordinance No. 1113, is sufficient. "</p> <p>IWe take it for granted that no one who voted for it could have been misled or deceived, as it had to be passed, and was passed and published, under the provision of section 3059, Kentucky Statutes, which provides that “no ordinance and no resolution shall be passed unless a majority of the members-elect in each board shall vote therefor on a vive voce vote, which shall be en tered in full on the journals of the two boards, and until it shall have been read in each hoard at tioo several meetings and free discussion allowed thereon, cGc.”</p> <p>This provision having been complied with the principles of the law were certainly observed in putting all members of the legislative board on their guard, as to what was being passed.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, secs. 3038, 3133, 3049, 3059; Collins v. ■Henderson, 11 Bush, 74; Com. v. Bailey, 81 Ky., 395; Allen v. Hall, 14 Bush, 85;. Com. v. Cain, 14 Bush, 525; Burnside v. Lincoln Co. Ct., 86 Ky., 423.</p>

Case 94 — Action by Thomas Pettit against Martin Yewell to Contest an Election. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORITIES CITED. 1. The petition stated a canse of action, and the demurrer was properly overruled. McCrary on Elections, secs. 50213; Kentucky Election Laws, sec. 79; Am. & En. Ency. PI. & Pr. vols. 7, 381, 385; Thayer v. Greenbank, 1 Brews.

Case 95 — Action by George Denny and Others against H. M. Bosworth and Others for a Mandatory Injunction. APPEAL FROM FAYETTE CIRCUIT COURT. JUDGMENT. FOR DEFENDANTS AND PLAINTIFFS APPEAL.

Case 96 — Harlan Buckles was Convicted of Murder and He Appeals. APPEAL FROM HARDIN CIRCUIT COURT. Defendant Convicted of Murder and Punishment Fixed at Death and He Appeals. Harlan Buckles, a negro boy about twenty-five years of age, was tried at November term 1901, of the Hardin circuit court and convicted of the crime of murder and his punishment fixed at death.

Case 97 — Action by Jesse Long’s Admr. to Recover Damages for the Death of Plaintiff’s Intestate. APPEAL FROM HARDIN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This is an appeal from a verdict and judgment entered under and in conformity to a peremptory instruction erroneously given a's I contend, and from an order denying a motion for a new trial.

Case 98 — Action by J'ames Walker against Cus G. Coulter for a Mandamus. APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Dependant and Plaintiff Appeals. It is admitted by the demurrer that the claim of appellant for services is a contingent expense. The official certificate of the clerk of the Senate is also to that effect and the cireumstances detailed in the amended petition showing why the services were necessary, show it to he a contingent expense.

Case 99 — Indictment against G. W. Wait and R. G. Hail for Conspiracy to Defraud. APPEAL FROM PULASKI CIRCUIT COURT. Defendants Convicted and Appeal. The appellants, George W. Wait and R. G. Hail, were indicted jointly with L. E. Hunt and Cy. Wait for a criminal conspiracy to defraud the Somerset Banking Co., and the public generally.

<p>Bastards — Judgment for Support not Satisfied by Marriage of Parents — Divorce—Abandonment—‘Liability of Wife for Costs —Alimony.</p> <p>Held: 1.- Tt constitutes no defense to an action to enforce a judgment against tlie putative father for the support of a bastard that the defendant has married the mother, and thus rendered the child legitimate.</p> <p>2. Though a judgment of divorce can not be reviewed on appeal, the action of the chancellor in the matter of adjudging -the costs and as to alimony and maintenance can be reviewed.</p> <p>3. In granting the husband a divorce if” was error, under Kentucky Statutes, section 900, to adjudge the costs against the wife, where she had no estate to pay the same, and, besides, was not in fault; but the husband should instead have been adjudged to pay the costs of the wife, including a reasonable attorney’s fee.</p> <p>4. Where the husband married the wife to end a prosecution against him for her seduction, and it is apparent that his offer to marry her was not made in good faith, but for the purpose of obtaining an improper advantage of her, the fact that under the exciting circumstances attending the marriage she refused to live with him did not entitle him to a divorce on the ground of abandonment, as she offered in a few days thereafter to live with him as his wife; and she is therefore entitled to maintenance and alimony and to the custody of the child.</p>

Case 101 — Action to Cancel a Deed. APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Dependants and Plaintiff Appeals.

Case 102 — -Action for a Divorce. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This is an action for divorce from bed and board, for the custody of the children and for alimony. The ground for separation is such cruel and inhuman treatment for not less than six months as indicates in appellee a settled aversion to appellant without fault on her part. The parties have four bhildren, the youngest, one year old.

<p>Municipal Corporations — Location of Pestiiouse — Liability for Injury to Property — Ultra Vires — Failure to Prohibit Nuisance.</p> <p>Held: 1. In an action against a city to recover 'damages for injury to plaintiffs property resulting from the location by the. city of a pesthouse near it, the petition, even if otherwise sufficient, is not good in the absence of an averment that defendant, by action of its council in adopting an ordinance or resolution to that effect, directed the act complained of, or that the council, by ordinance or resolution, ratified the act; as a city in such, matters acts by its council only.</p> <p>2. As cities of the first, second, third, and fourth classes are each expressly empowered to establish or maintain pesthouses or hospitals for the treatment of eruptive diseases, the omission to confer that power on cities of the fifth class manifests a legislative determination to withhold .the power.</p> <p>3. As Kentucky Statutes, section 3909, expressly forbids the location of a pesthouse for the treatment of eruptive or contagious diseases within the corporate limits of any incorporated city, and provides a penalty against the “officer” or “person” who shall violate the section, the council can not bind the city, even by an ordinance providing for the erection of a pest-house w'ithin the city limits, as such ¡an ordinance would be ultra vires; and therefore a city of the fifth class is not liable for injury to property-from the erection of a pesthouse within the city limits, whether there was or was not an ordinance-providing therefor.</p> <p>4. A city is not liable for injury to property resulting from its failure to enact and execute ordinances for the prevention of a nuisance, as the failure of a city to discharge its political duties docs not render it liable.</p>

Case 104 — Action to Recover Damages for Defendant’s Wrongful Refusal to Honor Plaintiff’s Check. APPEAL FROM JEFFERSON CIRCUIT COURT. COMMON PLEAS DIVISION. Judgment for Plaintiff and Defendant Appeals. POINTS. 1. The motive with which a contract to pay money is violated, is not material, and, ought not to authorize the infliction of punitive damages. 2.

<p>Case 105 — Indictment against W. N. Loose for Violating Local Option Law.</p> <p>appeal from barren circuit court.</p> <p>Defendant Convicted and Appeals.</p>

Cask 103 — Action to Enforce a Mortgage I.ien. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Plaintiffs and Defendant Appeals. AUTHORITIES CITED. 1. A gift by appellant to her husband of the property in controversy is not authorized by statute. General Statutes, chap. 52, art 4, sec. 17; Hirshman v. Brash-ears, 79 Ky., 258. 2.

<p>Fraudulent -Conveyances — Re-conveyance by Grantee to Grantor —Rights of Grantee’s Creditors.</p> <p>Held: Though property in the hands of a grantee, to whom it has been conveyed in secret trust for the purpose of defeating the grantor’s creditors, may he subjected by the creditors of the grantee, yet the -creditors of the grantee can not complain of a reconveyance of .the property by the grantee to the g'rantor prior, to any attempt on their part to subject it.</p>

Case 108 — Action to Recover Damages for Personal Injuries.— APPEAL FROM MUIILENBICRff CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1. The evidence relied upon is not to be pleaded. Section 119. 1 Civil Code. 2.

Case 109 — Action by Robert Connelly on Bond of Policeman fob Wrongful Arrest, &c. APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 110 — Action by J'. G-. Crenshaw against Edmund Duff’s Executor to Recover Usury Alleged to Have Been Paid. appeal from barren circuit court. Judgment for Defendants and Plaintiff Appeals.

■Case 111 — Action by W. E. Pepper against the Order of United Commercial Travelers of' America. APPEAL FROM MASON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>•Case 112 — Action fob Trespass to Land and Involving the Title Thereto</p> <p>APPEAL FROM LEE CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p>

Case 113 — Separate Actions oe Deposit Bank, Claude Mimms, and Bank of Adairville against J. A. Rose, &c., Consolidated. APPEAL FROM LOGAN CIRCUIT COURT. Judgment fob Defendants and Plaintiffs Appeal. J. A. Rose and Billie Rose were married prior to 1894, She owned 428 acres of land which was her general estate.

Case 114 — Action by Charles Pointer, Admr., to Recover Damages for the Death of Plaintiff’s Intestate. APPEAL FROM IVHITLEY CIRCUIT COURT. Judgment fob Plaintiff and Defendant Appeals. The plaintiff’s original petition showed that the death of plaintiff’s intestate occurred in Virginia, but it contained no reference whatever, to any law of that State which gives a right of action for damages for the death of a person by reason of a negligent or wrongful act of another.