Volume 114 — Kentucky Reports

Case 1 — Action by Victor C. Reiser to Recover Damages for Personal Injuries. — October 21. APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Defendant and Plaintiff Appeals.

<p>County Judges — Liability for Failing to Take Sufficient Surety on Guardian’s Bond.</p> <p>1. Kentucky Statutes, see. 2017, requires a guardian to execute a bond before acting; and section 2018 provides that if tbe court fails to take sueb covenant, or accepts such sureties as do not satisfy it of their sufficiency, the judge so in default and his sureties shall be liable to the ward for any damages he may sustain thereby. Held that, though the judge is only required to use reasonable care to ascertain that the sureties are sufficient, he is absolutely bound to' know that surety of some kind to the covenant is actually taken, and, if he accepts a bond to which the signature of the surety has been affixed under a power of attorney, not legally authenticated, he is liable-for resulting damages.</p>

Case 3 — Action by F. S. Burk Against J. C. B. Foster for Damages for Unskillful Surgical Treatment. — Oct. 21.. , APPEAL FROM OWEN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. On January 31, 1900, appellant, while driving a team hitched to a farm wagon, was thrown therefrom with great force, falling on his arm and shoulder, and was dragged some distance by reason of the lines being entangled around his leg.

<p>Settlement of Accounts — Mistake—Evidence—Interest—Bills of Exchange Discount — Tobacco Warehousemen— Pees— Bond —Statutes.</p> <p>Held: 1. Where one seeks to surcharge a settlement of account for mistake of facts not known to him when the settlement was made, it is incumbent on him to sustain the charge ■ clearly by a preponderance of evidence.</p> <p>2. In an action to foreclose a mortgage, wherein defendant contended that the mortgage note was by mistake given for a greater sum than due, evidence considered, and held not to sustain such defense.</p> <p>3. Defendant, in order to secure funds to purchase tobacco, was in the habit of drawing a draft on a factor, who paid the draft. Defendant then drew a bill of exchange with the factor as drawee and a certain national bank as payee; The factor then accepted and delivered the bill to the bank, which credited the factor with the net proceeds, deducting ten or eleven per cent, interest, the bill drawing six per cent, after maturity; and when due the factor paid it, charging the whole expense to defendant. Held, that defendant drew as an accommodation indorser to the factor, and the latter was the principal, and hence interest paid to the bank by the factor was not chargeable to defendant, but he was liable for the legal interest on the original draft until he paid the debt.</p> <p>4. Code Tenn., section 3381 (1880a) 2597, requires a tobacco warehouseman to give a bond to keep his warehouse in good condition. Held, that when a warehouseman gives a bond, and then moves his business to another warehouse, it is not necessary for him to give a new bond.</p> <p>5. Under Code Tenn., sections 3388, 3380, relative to inspectors of tobacco, and making warehousemen inspectors of tobacco, with authority to appoint deputies, it is not necessary that, the deputies should be warehousemen.</p> <p>6. Several warehousemen have the right to appoint the same deputy.</p> <p>7. Code Tenn.. section 3399 (1898a) 2615, provides the compensation of warehousekeepers for receiving, storing, inspecting, coopering, and selling tobacco shall be as follows, to-wit: To be paid by the seller, $2.50, and one per cent, commission on proceeds of sale; to be paid by buyer, $1.50, and for storage after sale, after the first thirty days, for each month or part thereof, twenty-five cents; and section 3400 (1899a) 2616 imposes a penalty for charging any more than is allowed in the preceding section. Held, that the fees specified in. section 3399 cover only the items enumerated, and on a resale of tobacco after a rejection of bids by the owner under authority of section 3400 the warehouseman on a resale may charge a fee of two dollars for his expenses for resampling and reselling, according to a custom prevailing for twenty years.</p>

Case 5 — Action by the Louisville Bridge Company against Gus. G. Coulter, Auditor, for an Injunction. — October 22. APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

Case 6 — Action by L. B. Waters, County Treasurer, against Jefferson County to Recover Salary. — October 22. APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Judgment for Plaintiff and Defendant Appeals. 1. In the absence of express statutory authority, a fiscal court can not allow a county treasurer expenses for clerical assistance. Am. & Eng. Ency. of Law, vol. 7, p. 926; Morgantown Dep.

Case 7 — Application by the Campbellsville Telephone Company against Charles Patteson, Cikcuit Judge, foe a Writ of Prohibition — Granted.—October 23.

Case 8 — Action to Recover Damages for tiie Death of Plaintiff’s Intestate. — October 23. APPEAL FROM MASON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 9 — Action by Jessie Northington against A. D. Sublette and Others for Mandamus. — October 23. APPEAL FROM BALLARD CIRCUIT COURT. Judgment Dismissing Plaintiff’s Petition and She Appeals. The question in this ease is, whether the appellant, Miss Jessie Northington, is bound by the second class certificate which was signed by the board of examiners and which she refused to accept. The proof shows that the examination in spelling is the bone of contention.

Case 10 — Election Contest for County Attorney. — October 28. APPEAL FROM BELL CIRCUIT COURT. Judgment Dismissing Contestant’s Appeal. We contend: 1.

Case 11 — Action by J. F. Wellman against the Tbiple-State Natural Gas & Oil Company, for Personal Injuries — October 29. APPEAL FROM LAWRENCE CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.

Case 12 — Action by Newport Natipnal Bank against Newport Board of Education for Breach of Contract for Purchase of Bonds. — October 81. APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. Reversed. The sole question arising on the demurrer, is whether or not the contract set out in the petition is or is not ultra vires.

<p>Case 13 — Action by W. G. Gardner against C. N. Ballard, &e. to Recover Money Bet Consolidated with Proceedings by the .Commonwealth against Said Defendants to Recover a Fine and Forfeiture — October 31.</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>Judgment of Forfeiture, and Dismissing Gardner’s Action and He Appeals.</p>

<p>Actions — Parties—Joinder*—Service of Process — Jurisdiction op Parties.</p> <p>Held: 1. Where an action alleged a breach of contract against a party residing and summoned in the county in which the action was brought, and therewith joined another party residing and summoned in another county alleging a separate cause of action against him, such cause of action being improperly joined, the court acquired no jurisdiction of the defendant so improperly joined by reason of service of process on him in another county under section 78 and section 85 civil code of practice.</p> <p>2. Where the quarterly court acquired no original jurisdiction of a party by service of process on him in a county other than that in which the suit was brought, in an action in which he was improperly joined with a party residing in the county in which the suit was brought, the fact that he was thereafter properly served with process on appeal to the circuit court, brings him before such court only to the extent that he was before the quarterly court.</p>

Case 15 — Action by Maby Petbie against S. H. Cartwbight, City Marshal, fob the Unlawful Killing of Heb Husband. November 12. APPEAL FROM TODD CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. Joe Petrie, while protecting his wife and sister from the most outrageous insults, was assaulted with a deadly weapon, and, being frightened, flees to save his life, and is deliberately shot down by a peace officer.

Case 16 — Election Contests — Wilkins against Duffy for County Judge and Gill against Mallory for- County Attorney. — November 12. v APPEALS FROM TODD CIRCUIT COURT. Petitions Dismissed and Contestants -Appeal. We maintain: 1. That the failure of the clerk to give appellants the benefit of their party title and device to which they were unquestionably entitled was to deny him the right guaranteed by the Constitution of a free and equal election. 2.

<p>Mortgages— Executions — J udicial Sales— Redemption!— Fraud— Husband and Wife — Dower—Attachment.</p> <p>Held: 1. Land subject to mortgage was sold under execution, and purchased by the execution creditors. .Subsequently the mortgage was foreclosed, and a decree was entered for a sale, to pay in order, the mortgage, the execution lien, and other claims held by H. and others, i The proceeds of the sale were sufficient-to discharge only the mortgage and .execution lien, and the mortgagor’s equity of redemption was then sold to plaintiff, under Kentucky Statutes, section 1686, providing that, though the equity of redemption may be sold, the debtor still has a right to redeem until the end of the year from the first sale. The debtor being unable to redeem. S. agreed to pay the sum to plaintiff who had exercised his right of redemption, and S. also agreed to pay the debtor’s wife a certain amount on her joining in a deed of the land to S., releasing her potential right ■of dower. Before consummation of this agreement, H. and others had caused executions to issue against the debtor, and on tlje day that the deed was executed to ,S., plaintiff brought-an attachment suit against the' debtor on another debt, and ■caused garnishee process to be served on S. Afterwards the outstanding executions of H. wer.e levied on the land. Held, •that the transaction between the debtor and S. was not a redemption by the debtor, whereby title revested in him, and became subject to the executions of H., but that -the debtor’s right to redeem was personal, and not an interest in the land, and the deed to S. was an assignment of this right, and redemption inured to the benefit of S.</p> <p>2. The transaction between the debtor and ¡S. was not fraudulent.</p> <p>3. The only right remaining in the debtor’s wife was to compensation for the value of her right of dower in that part of the land not necessary to the payment of the mortgage debt.</p> <p>4. By the extended opinion by Judge O’Rear granting a rehearing so far as the rights of the debtor’s wife, Mrs. Mamie Smith, •are concerned, it is held that after the sale of the debtor’s land under the original execution and the sale of his equity of redemption therein, and he had conveyed his equity of redemption in both sales to Skiles who was the purchaser thereof at both sales, the purchaser .Skiles, desiring to obtain a full •title thereto, procured from Mrs. Smith a release of her inchoate right of dower in the proceeds of the sale of the entire tract, after paying the mortgage debt for which it was sold, in which transaction the creditors oil the husband have no interest and can not require that the sum paid ur contracted to be paid the wife for such release shall be subjected to the payment of their debts, though the sum paid the wife may have been more than the actual value of her dower.</p>

<p>Counties — Towns—Poll Taxes — 'Right to Levy.</p> <p>Held: 1. Constitution, secs 180, which provides that “the General Assembly may authorize the counties, cities or towns to levy a poll tax not exceeding $1.50 per head,” does not by reason of the disjunctive “or” preclude the:levy of the tax by both a county and a town; the purpose of the section being to limit the levy in either county, city or town to $1.50 per head.</p> <p>2. Under the Constitution and enactments of the Legislature, a county, through its fiscal court, can levy an ad valorem tax within the constitutional limitations, on all property in the county, for county purposes outside or inside cities and towns, and in the same way may levy a poll tax for county purposes upon citizens both inside and outside of cities and towns located therein.</p>

Case 19 — Action by Jane K. Bridges against Susan Guier, &c. to Recover Land. — November 34. APPEAL PROM GRAVES CIRCUIT COURT. Judgment for Plaintiff and Defendants Appeal and Plaintiff Files Cross Appeal. In 1885 Luther L. Martin, an infant, eighteen years of age, died without issue, the owner of two tracts of land, one of forty acres, conveyed to him by H. Hodges in February, 1883, and the other, twenty-seven acres, conveyed by W. H. Martin, in November, 1884.

<p>Case 20 — 'Action by St. Bernard Coax, Company and Others against Hopkins County for the Expense of Guards in Protecting Property. — November 14.</p> <p>APPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants Appeal. Affirmed.</p> <p>SYNOPSIS.</p> <p>1. (a) The case as to the $1,928 should be reversed because no affidavit was made on which to base the order for guards.</p> <p>(b) The whole case should be reversed because no cause of action is shown against the county, because the contract of purchase of these county claims was illegal and ultra vires on the part of this corporation.</p> <p>(c) Because the purchase of these ninety-five claims was the doing indirectly the business of banking.</p> <p>2. (a) The order of the county judge was void because it left to the discretion of the sheriff the number of guards to be placed at each piece of property.</p> <p>(b) Because the limit of the county indebtedness had already been reached.</p> <p>3. (a) Because the act of the Legislature, under and by which these guards were appointed, is unconstitutional and void. The reasons and authorities are given under the appropriate head, in the following brief.</p> <p>SUMMARY.</p> <p>We ask a reversal, because as to the $1,928, no affidavit was filed, and the county judge had no jurisdiction to make the order. .See first amended answer, page 23 of record. Second. Because the contract of purchase of these claims by this coal corporation was unlawful and void. See* section 192 of the Constitution and secs. 567, 599 and 601, Kentucky .Statutes; Pollock on Contracts, pp. 251-257; Story on Contracts, sec 571; Benjamin on Sales, sec. 530; Beach on Contracts, secs. 1451-1443; Reese on Ultra Vires, secs. 56, 69 and 70; National Bank v. Norton, 3 A. K. Marshall, 428; Fray v. Rash, 91 Ky., 344; Bull v. Hagan, 17 B. M., 352. Murphey v. Simpson, 14 B. M., 337; Vannoy v. Balton, 5 B. M., 248; Twheat v. Spurrier, 94 Ky., 22; Franklin Ins. Co. v. L. A. Packet Co., 9 Bush, 456; Blitz v. Bank of Ky., 21 Ky. Law Rep., 1554; Thomas v. W. J. R. R„ 101 U. S., 71; F. & M. Bank v. Baldwin, 23 Minn., 186; Central Transportation Co. v. Pullman Parlor Car Co., 139 U. S., 25.</p> <p>3. The county judge had no jurisdiction to make the order for guards. See sec. 157 Constitution of Kentucky; also Con. of Bernard & Co. v.. Knox County, Mo., L. R. A., Book 13, p. 244; Board of Commission v. Rollins, 130 U. S., 662.</p> <p>4. Because the act of the Legislature is unconstitutional and void. See Cooley Constitution Limited, p. 196, 5th edition; Same author, pp. 61, 207-8, 453-4, 505-10, 432; City of Louisville v. Cochran, 82 Ky., 15; Muir v. Henry, 84 Ky., 6.</p> <p>SYNOPSIS.</p> <p>1. Chapter 20, Acts 1897 (section 1241a), Kentucky Statutes, is a constitutional exercise of the police power.</p> <p>2. The act was followed to the letter in every particular and this liability has accrued.</p> <p>3. The order for guards properly delegated discretion to the sheriff, as to the number of guards summoned within the limits of the act.</p> <p>4. The constitutional limitations on indebtedness created by section 157 of our Constitution does not apply to compulsory and involuntary liabilities imposed upon the county by the Legislature, but only applies to indebtedness contracted by the county, which its governing authorities had the option to incur or not to incur.</p> <p>5. The corporation plaintiffs may lawfully take assignment of these claims and maintain actions thereon in their own names; even were this not so the fact that the claims were assigned to the corporations in violation of law, would not help defendants’ case.</p> <p>6. Even if the constitutional limitations of section 157 applies to this liability, still the county must pay as that limitation has not been exceeded.</p> <p>AUTHORITIES CITED.</p> <p>Cahill v. Perrine, 20 Ky.. Law Rep., 1456; Beard v. Hopkinsville, 95 Ky., 237; Belknap v. City of Louisville, 99 Ky., 486; Sackett v. New Albany, 88 Ind., 45 Am. Rep., 461; Springfield v. Edwards, 84 111., 626; Lewis v. Widber, 99 California, 412; McCracken v. San Francisco, 16 Cal., 591; Bloomington v. Perdue, 99 111., 329; Rice v. Des Moines, 40 Iowa, 638; Congers v. Kirk, 78 Georgia, 480; Bartle v. Des Moines, 38 Iowa, 414; Chicago v. Sexton, 115 111., 230; Geo. D. Barnard & Co. v. Knox County, Mo., 2 L. R. A., 426; Crowder v. Sullivan, 128 Ind., 486; Rill v. Keokuk, 15 Iowa, 579; Tucker v. Raleigh, 75 N. C., 267; Haycock v. Baton Rouge, 35 L. R. A., 475; Doyer v. Brenham, 65 Texas, 526; Comstock v. Syracuse, 5 N. Y. Sup., 874; Capital City Water Co. v. Montgomery, 93 Ala., 366; Lott v. Waycross, 84 Ga., 681; Lehigh Coal & Navigation Co.’s App., 112 Pa., 360; State v. McCauley, 15 Cal., 430; Merrill Ry. & Lighting Co., v. Merrill, 80 Wis., 358; Smith v. Dedham, 144 Mass., 177; Rauch v. Chapman, Wash., 1897, 36 L. R. A., 408; Grant County v. Lake County, 17 Oregon, 453; Rauch v. Chapman, 16 Wash., 568; Potter v. Douglas County, 87 Mo., 239; Johnson y. Mason Lodge, No. 33, I. O. O,. F., 21 Ky. Law Rep., 493; Bank v. Matthews, 98 U. S.', 263; Miller v. Flemingsburgh & Fox Springs Turnpike Co., 22 Ky. Law Rep.. 1039; Culver v. Yocum, 9 Ky. Law Rep., 148; Ashuelot National Bank v. Lynn County, Iowa, 81 Fed., 121; Kelly v. Pierce County, 44 Pacific, 136; Council Bluffs v. Stewart, 51 Iowa, 385.</p>

<p>Case 21 — Action by Louisville Artificial Stone Company against P. A. Gaertner to Enforce the Lien of an Apportionment Warrant. — November 14.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY BRANCH, FIRST DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>1. The petition does not set out the terms- of the ordinance of February 5, 1894, nor does it aver that said ordinance was duly passed, nor is a copy thereof filed. This is a fatal defect. Nevin v. Gaertner, 20 Ky. Law Rep., 1022.</p> <p>2. Under the decision in Zabel v. Orphans’ Home, 92 Ky., 94, it is necessary to allege and prove an ordinance or resolution fixing the grade of the street. Defendant moved to require plaintiff to file a copy of this resolution but his motion, was overruled, anil no copy was ever filed.</p> <p>The answer traverses the whole allegation of the plaintiff on this subject, and no proof was taken by either party.</p> <p>3. But one day’s notice by publication in a newspaper was given of the engineeer’s inspection and reception of the work. This, we think was too short.</p> <p>AUTHORITIES CITED.</p> <p>1. Nevin v. Gaertner, 20 Ky. Law Rep., 1022.</p> <p>2. Zabel v. Orphans’ Home, 92 Ky., 94; Henderson v. Brown, 7 Ky. Law Rep., 609.</p> <p>3. Harris v. Zabel, 4 Ky. 'Law Rep., 1000; Boone v. Gleason, 5 Ky. Law Rep., 325; Ormsby v. Jamison, 9 Ky. Law Rep., 325; Henderson v. Lambert, 14 Bush, 24; Bogard v. O’Brien, 14 Ky. Law Rep., 648; Whitfield v. Hippie, 11 Ky. Law Rep., 386.</p>

<p>Taxation — Funds of Cemetery Company.</p> <p>Held: Funds of a cemetery company derived from the sale of lots therein, are not exempt from taxation under Constitution, section 170, and Kentucky Statutes, section 4026, exempting from taxation “places of hurial not held for private or corporate profit” and “institutions of purely public charity.”</p>

Case 23 — Action by Judy Belcher against C. B. Helton for Trespass to Land — November 18. APPEAL FROM LESLIE CIRCUIT COURT. JUDGAIENT FOR PLAINTIFF AND DEFENDANT APPEALS. This was an action of trespass in nature of an ejectment and appellee must rely on her own title which must be made out by competent testimony.

<p>Life Insurance — Fraudulent Representations — Application to Accompany Policy — Answer—Demurrer.</p> <p>1. Kentucky Statutes, sec. 679, requiring that the application, or charter and by-iaws of an insurance company doing business under the laws of the State, or a copy thereof, shall be attached to the policy before it can be treated as part of the contract and used in evidence, applies to assessment co-operative com-' panies doing business on the lodge plan.</p> <p>2. Where an answer in an action on a mutual benefit certificate did not allege reliance on any representations, except those made in the application, which were alleged to be fraudulent, and that part of the answer alleging such representations was properly stricken because the application was not made a part of the policy, as required by Kentucky Statutes, sec. 679, a demurrer to the answer was properly sustained.</p>

<p>Case 25 — Action by L. Y. Browning Against the Continental Insurance Company of New York on a Policy of Fire Insurance. — Dec. 2.</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

Case 26 — Action by Nannie O’Haloran v. City of Henderson for Damages for Contracting Smallpox from City Pest-House.— Dec. 2. APPEAL FROM HENDERSON CIRCUIT COURT. JUGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. 1. We submit that the plaintiff, being an adult, was guilty of the grossest contributory negligence in sleeping with a child supposed to have chicken-pox, which is itself an eruptive and contagious disease. 2.

<p>Bills and Notes — Leaving Blank Space Therein — Alteration by ~ Maker — Liability of Surety.</p> <p>One who signs a note as surety in which are written the words, “five hundred,” with spaces before and after them, which the maker fills up by writing “twenty” before and “fifty” after them, thereby making a note for $2,550, is liable thereon to a bona fide purchaser.</p>

Case 28 — Election Contest by J. T. Farmer against John C. Herndon for Justice of the Peace — Dec. 3. APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Contestant and Contestee Appeals. SYNOPSIS OF ARGUMENT AND AUTHORITIES. 1. The Fayette circuit court is without jurisdiction of this case because the election law of 1900 conferring jurisdiction upon such court is unconstitutional. Purnell v. Mann., 20 Ky. ■Law Rep., 1146; Pratt v. Breckinridge, 23 Ky.

Case 29 — Action by Nellie R. Hill against S. W.. Ragland on His Bond as Sheriff fob Wrongfully Levying an Attachment. — Dec. 3. APPEAL FROM WARREN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This is an appeal from a judgment of the lower court rendered in favor of appellee, notwithstanding the verdict of the jury in favor of appellant who was plaintiff below.

Case 30 — Election -Contest by W. C- Eversole v. Ira Combs for County Judge. — Dec. 3. APPEAL FROM PERRY CIRCUIT COURT. Judgment for Contestant, Contestbe Appeals. Our contention is: 1.

Case 31 — Election Contest by T. H. Little v. Philip Hall and ■Others for Justice of the Peace. — Dec. 3. APPEAL FROM JACKSON CIRCUIT COURT.. Judgment for Defendants and Plaintiff Appeals.

Case 32 — Prosecution against Caleb Powers as Accessory Before the Pact to the Murder of William Goebel. — Dec. 3. APPEAL FROM SCOTT CIRCUIT COURT. Defendant Convicted of Murder and Appeals. No brief is on file for the appellant and, as the brief of Mr. T. C. Campbell for appellee is altogether in response to the brief of appellant, it is not deemed proper to give his argument especially as it is not accompanied with an abstract of his points and citations. — Reporter.

<p>Dower — Purchase Money Lien — Surplus Proceeds — Vested Rights op Widow — Purchaser.</p> <p>1. Under Rev. .St., eh. 47, art. 3, see. 6, adopted in 1852, now Kentucky Statutes, sec. 2135, providing that a wife should not be endowed of land sold but not conveyed ¡by the husband before marriage, nor of land sold bona fide after marriage to satisfy a lien or incumbrance created before marriage, or created by deed in which she joined, or to satisfy a lien for purchase money, where the whole of the land was sold under a judgment for the balance of the purchase money due thereon, the wife is not entitled to dower therein, although she was married to her husband prior to the adoption of the Act of 1852.</p> <p>2. The wife’s inchoate right of dower is not a vested right in the sense that it is not subject to 'change or even abolishment by the Legislature so long as it remains in expectancy — that is, during the life of the husband.</p> <p>3. Tbe Act of 1852, providing that if there should he a surplus of the land or proceeds of sale, after satisfying the liens, she shall have dower or compensation out of such surplus, unless such surplus or proceeds were received or disposed of during the lifetime of her husband; the whole of the land having been sold, the widow’s right to dower must be satisfied out of the surplus proceeds of the sale, for which the land nor the purchaser thereof is not liable.</p>

<p>Life Insurance — Incontestable Policy — Fraud—Rescission— Laches — Deceit.</p> <p>Held: 1. Where an insurance policy was procured by fraud, the fact that by its terms it was incontestable did not preclude the insurance company from rescinding it within a reasonable time after discovering the fraud on surrendering the premiums received.</p> <p>2. Where an incontestable insurance policy was procured by fraud, and the company did not elect to rescind the same during the life of insured, and on her death, under an impression that it could not defend an action on the policy, paid the same, it was not entitled to maintain ah action against assured’s administrator for deceit to recover the amount of the policy paid and other damages.</p>

<p>Case 36' — Action by S. M. Payton, &c. against J. M. Craddock, &o.,. .Sureties on Administrator’s Bond for a Devastavit. — Deo. 4.</p> <p>APPEAL FROM HART CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The statute of limitations begins to run against the sureties in the bond of a fiduciary in favor of a distributee devisee or creditor, from the accrual of the cause of action and -not before; and a cause of action does not “accrue” in favor of any such claimant against the sureties on the bond of fiduciaries until a liability has been ascertained and adjudged against the-fiduciary himself by a court of competent jurisdiction. Section 2550, Kentucky Statutes; Clark v. Commonwealth for the use, &e., 5 Mon., p. 99-; Hobbs v. Middleton, 1 J. J. Marshall, 176; MeCalla’s Admr. v. Patterson, 18 B. M., p. 201; Lee v~ Waller, 3 Met., p. 61; Young v. Duhme, 4 Met., 244 and Emmerson’ Admr. v. Herriford, 8 Bush, p. 237.</p> <p>2. If the enforcement of a judgment be obstructed by an appeal. supersedeas or injunction, the time of such obstruction shall be disallowed in the computation of the limitations, sections 2550 and 2552 of the Kentucky Statutes.</p> <p>The original brief for appellant is not in the record, but the following extract is from appellant’s petition for a rehearing.</p> <p>The learned author of the opinion in this case, says:</p> <p>“In an unbroken line of decisions, this court had held that a suit upon a bond of a personal representative for a devastavit can not be maintained until there has been a judgment ascertaining the amount of the demand against the estate,and showing assets in the hands of the personal representative sufficient to pay tne demand or a part of it.”</p> <p>(Citing numerous early decisions.)</p> <p>All of which is true; however, with equal truth and propriety we might add that “since the year 1881, it has been universally held by this court that an action may be maintained against a personal representative and the sureties upon his official bond by the creditors and distributees of the estate nine months after his qualification,” and cite as directly in point. Murrell v. McAllister, 79 Ky., 311; Robinson v. Elam, 90 Ky., 300.</p> <p>Take the case cited in our brief: A personal representative -qualifies, reduces the assets of the estate to possession and departs to a foreign country leaving no property in this State. What is the remedy of the distributees and creditors? The sureties on the bond may be amply solvent, but as there has been no “judgment of the court ascertaining the amount of the demands against the estate and showing assets in the hands of the personal representative,” no suit can be maintained against them and the claims are lost.</p> <p>We insist that to revert to the ancient doctrine in this case, leaves us in utter confusion on the subject, with no standard of construction for similar statutes save the ipse dixit of the court. Why should we abandon the more recent salutary rule of construction and return to a rule so long discarded by this court? The opinion gives no reason thereflor, the learned author contenting himself with the citation above, “this court had decided.”</p>

<p>Case 37 — Action by W. B. Smith against M. J. Richmond and Othebs to Recover Money from His Associate Contributed to Procure Immunity from Prosecution for Bribery — Dec. 9.</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p>

Case 38 — Election Contest by M. M. Logan against E. W. Edwards for County Attorney. — Dec. 9. APPEAL FROM EDMONSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. We claim that the court erred: 1. In counting two ballots returned from Durbin precinct in an envelope each of which was marked “not counted, questioned, W. H. Hack.” No other statement was made.

Case 39 — Action by J. N. McNaughton against the City of Louisville to Recover foe Street Improvement. — Deo. 10. APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. ,W.e contend that appellee does not state a cause of action against appellant. By his own statement he was not the owner of the apportionment warrant at the institution of this suit as his assignees, the real parties in interest, were not made parties to the action.

<p>Wills — Construction—Devise to Children then Living — Death of .Devisee Leaving Children.</p> <p>Held: 1. Kentucky Statutes, section 2064, provides that when a devise is made to several as a class, or as joint tenants, if a devisee die before testator, leaving issue, the share of such devisee shall go to his descendants, unless a different disposition is made by the devisor, and that a devise to children embraces grandchildren, when there are no children, and no other construction will give effect to the devise. Section 4841 enacts that if a devisee dies before the testator, or is dead at the making of the will, leaving issue who survive, the testator, such issue shall take the estate of the deceased devisee, unless a different disposition is made or required by the will. Held, that where testator left an estate to his wife for life, then to be equally divided “between my children then living,” but one of his children died before1 testator’s death, leaving issue, such issue were entitled to the share of such child.</p> <p>2. The right to dispose of property by will is a statutory one and the language of the will must be considered in connection with the statutes; the use of the words “then living” by the testator does not manifest an intention to exclude the descendants of those who may be dead, and they are entitled to stand in the shoes of their ancestor in the division of the estate.</p>

<p>Corporations — 'Interstate Bridge — Franchise Tax — Valuation.</p> <p>Held: 1. Where, in an action involving the validity of a franchise tax on- an interstate bridge company, there was no showing that there was any difference in value between the part of the bridge within the limits of one State and that within the limits of ihe other, it will be- presumed that the value of the property in each State is in proportion to the length of the bridge therein.</p> <p>2. Where fifty-nine per cent, of the length of an interstate bridge was within the limits of Kentucky, the valuation of the bridge company’s franchise for taxation should be found by taking fifty-nine per cent, of the total value of the stock and bonded indebtedness, and 'deducting from this amount the assessed valuation of the tangible property of the bridge company in Kentucky.</p>

<p>Eminent Domain — Turnpike Roads — Condemnation—Just Compensation — Method of Ascertaining Value — Judgment of Chancellor.</p> <p>Held: 1. Where the evidence is conflicting the judgment of the chancellor will not be disturbed unless he has proceeded on an improper basis in determining the value of the property in controversy.</p> <p>2. In a proceeding under Kentucky Statutes, section 4748b, to condemn a turnpike r.oad, evidence of the fact that the 120,000 worth of stock of the turnpike company was selling at par, taken in connection with section 242, Kentucky Constitution, providing that just compensation must he made by corporations or individuals taking private property for public use, and the Act of March 17, 1896, providing for the appointment of county commissioners to determina the value of turnpike roads condemned by the county courts, the measure of just compensation to be paid a turnpike company is, its actual value at the time of. the condemnation and not what it would cost to construct a turnpike at that time.</p>

<p>Compromise — FRaud—Pleading-—Tender of Payment.</p> <p>Held: 1. Where plaintiff sued for personal injuries, admitting' that, he had received payment for his drug bill and loss of time, and •defendant pleaded payment in full under a compromise agreement set forth, a reply that this payment was the same as-that • admitted in the petition, and that the compromise agreement was signed by plaintiff at a time when he could not read, and under false representations that it was a receipt for payment only for drug bill and loss of time, was not demurrable for failing to tender repayment of the amount received, though plaintiff in such action can not ordinarily escape such agreement, by merely pleading fraud.</p>

<p>Case 44 — Proceedings by the Commonwealth to Disbar Charles G. Richie as an Attorney at Law. — Deo. 17.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment Dismissing Proceedings for Want of Jurisdiction and Commonwealth Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There are two classes of disbarment proceedings in Kentucky: (a) Proceedings contemplated by section 104 of the Kentucky Statutes, and (b) That class based upon the ancient common law right of the court to- protect itself against persons unfit to practice before it. Wilson v. Popham, 91 Ky., 330; Bar Association v. Greenhood, (.Mass.) 46 N. E. R., 574, S. C. 168, Mass., 183; In re Bowman, 7 Mo. Ap., 569; Delano’s Case, 42 Am. Rep., 555; In re Mills, 1 Mich., 392; State v. Harhin, ,29 Mo., 270.</p> <p>2. The right to disbar is possessed by any court authorized to grant licenses, admitting to the profession. Even an appellate court may have original jurisdiction. I.n re Woolley, 11 Bush, 95; Baker v. Commonwealth, 10 Bush, 592; People v. Green, 7 Col., 244; In re Whitehead, 38 Chan. Div., 614.</p> <p>3. A formal or technical description of-the act complained of, is not requisite, and it is not a criminal proceeding. Baker v. Commonwealth, „10 Bush, 592; Turner v. Commonwealth, 2 Met., 629; Rice v. -Commonwealth, 18 B. Mon., 482; In re 0., 42 N. W. Rep., 221; In re Whitehead, L. R., 38 Chan Div., 614; People v. Green, 7 Col., 237; Bar Association v. Greenhood, (Mass.) 46 N. E. Rep., 574; Flanders v. Keefe, 108 Wis., 441; .State v. Clark, 46 Iowa, 168; State v. Cardwell, 16 Mont., 119; In re Treadwell, Cal., 7 Pac., 724; In re Randall, (N. Y.)' 52 N. E., 1107; -S. -C., 158 N. Y., 216; State v. Winton, (Ore.) 5 Pac., 337; In re Evans, Utah 62, Pac., 919; Ex parte Wall, 107, U. S., 265; U. S. v. Costen, 38 Fed., 24; In’re Wood, 13'Fed., 814; State v. Burr, 28 N. W., 262; In re -Serfass, and note, 9 Atlantic, 674; vol 6 Ency. Pleading & Practice-, 709; In re Bowman, 7 Mo. Ap., 569; Randall v. Bingham, 7 Wallace, citing with approval; In re Randall, 11 Allen, Mass., 473, 11 Ore., 45-6; 36 N. Y., 651, 86 Fed., 321.'</p> <p>4. No constitutional requirements effect this proceeding, and loss -of moral character is sufficient. .107 U. S., 265; In re-.Wood, 13 Fed. Rep., 814; 1st Yng. Tenn., 230; 8 Col., 333; 93 Pa. St., 116; 71 Me., 289.</p> <p>5. Each judge of the Jefferson circuit court has all the powers of a cix-cuit judge (Kentucky Statutes, sec. 1022); having the power to admit to the practice of law, he has also the power to revoke the license- of the- practicing attorney. Baker v. Commonwealth, 10 Bush, and supra.</p> <p>6. A proceeding to disbar is neither an action nor a special proceeding within the meaning of the code. It is sui generis. 7 Mo. Ap., 569.</p> <p>ADDITIONAL POINTS BY APPELLANT.</p> <p>1. -Counsel for Charles G. Richie makes the point that if this proceeding is not criminal it ought to have been filed in the clerk’s office and allotted to one of the civil branches. This position grows out of a misconception of section 1 of the Civil Code which provides as follows; “Civil cases are actions or special proceedings.” This is neither an action nor a special proceeding within the meaning -of the code. It is sui generis. Its sole purpose is to bring to the attention of the court certain alleged acts of professional misconduct committed by an officer of the court in order that the court itself may be informed. The nature of a -proceeding to disbar being conceded, this point, it seems to us, falls to the ground. •</p> <p>2. Counsel makes the further point that the relator here is a bar association. This is not a fact. The- affidavit upon which the- information is based is made- by five individuals who state that the facts set out in the affidavit were admitted to them by Richie. The only purpose of the affidavit is to- base- the information upon it. The rule to show cause issues upon the filing of the information.</p> <p>This is an appeal by the Commonwealth from an order of the Jefferson circuit court, chancery division, refusing to allow affidavits to be filed or to take jurisdiction of this proceeding.</p> <p>We objected .to the filing of the affidavits and to the granting of the rule upon the following grounds:</p> <p>X. That the proceedings to disbar an attorney for failure to pay over money collected, or a series of such acts, if allowable under the law of this .State, is, in its nature and essence a criminal proceeding and within the jurisdiction of the criminal branch of said court.</p> <p>2. That the charges containing the information being all relative to the collection of money by Richie and failing to pay it .over until demand was made by attorneys, and then settling the same, are punishable only in this State by virtue of the provisions of section 104 of thei Kentucky .Statutes and do not authorize a rule for permanent disbarment that the statute is exclusive in cases of this character, and that all of the general allegations of the information and affidavit can be and should be, by a reasonable interpretation, construed to refer to a single series of acts consisting of the collection and non-payment of money, and therefore,, do not come within the general category of cases in which the court can protect itself against the dishonesty or misconduct of its officers, the members of the bar.</p> <p>3. That the information being based uipon a failure to account for money, due and received, can not be based upon the information and belief of members of the bar association, who have no knowledge of the facts, but must be based upon an affidavit of the person knowing the facts.</p> <p>CITATIONS.</p> <p>Constitution of Ky., sec. 137; Acts 1892, p. 139; Thomas v. State, &c., '58 Ala.; In re Hamilton Ballus, 28 Mich., 507; 1 Hun., 321; State v. Tunstall, 51 Texas, 81; Rice v. Com., 18 Ben Monroe, 482; Turner v. Com., 2 Met., 619; Walker v. Com., 8 Bush; Baker v. Com., 10 Bush, 592; Wilson v. Pop-ham, 91 Ky., 329; Sec. 104, Kentucky Statutes; People, ex rel. v. Noyes, &c., 16 111., 151; Ex parte Brown, 2 Col!, 553; Ex parte Smith, 28 Ind., 47; In re Eaton, 62 N. W. R., 697; Kane v. Haywood, 66 N. C.; In re Hudson, 36 Pac. Rep., 812; In re Sayre, 36 Pac., 813; People v. Lambron, 1 Scammons (111.) 123.</p>

<p>Case 45 — Prosecution op James B. Howard Charged with thp Murder op William Goebel. — Dec. 17.</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>Dependant Convicted and Appeals.</p>

<p>.Case 46 — Petition by Thomas F. Coleman and Others v. John D, O’Leary’s Exr. and Others, to have Certain Clauses of Decedent’s Will Declared Void. — Dec. 17.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW ANjD EQUITY DIVISION.</p> <p>From the Decree Rendered Plaintiffs Appeal.</p> <p>1. It is a well recognized principle of equity that no trust ■shall fail for the want of a trustee, so that when this provision was placed in' our statute of charities it was only declaring the law as already settled. It is an equally well settled principle that there can be no trust at all without a cestui que trust, or beneficiary. Without this element there is no trust for a. trustee to uphold. The indispensable elements of a trust are, (1), the declaration or creation of the trust by the donor, (2),, a fund or property to pass and (3), a beneficiary or cestui. The trustee is a secondary matter; he can always be supplied.. The beneficiary must either be pointed out with such certainty that his identity may be judicially determined, or the creative language of the trust must indicate some condition or circumstance from which a court may arrive at certainty. Id est certum quod redi potest certum. Now, upon-’ this general law. of private trusts has -been superimposed charitable trusts and public or merely humane trusts. The difference between a private trust and a charitable trust is simply this: In a private trust the individuals are named or so designated that they can be judicially ascertained as individuals; in other words individual personality characterizes the beneficiaries, while in the charitable trust personality is ignored and the misfortune or condition provided for is the prevailing idea, whenever it may be manifest in any individual who comes, within the class designated by the donor in a general way. In the latter the idea is civic and impersonal. A devise to any number of designated poor orphans in trust is merely a private trust and is void as a perpetuity, unless limited within the statutory period. A devise in support of one’s destitute descendants and their children is not a charity and is void as. a perpetuity. Kent v. Dunham, 142 Mass,, 216. There is great confusion in the decisions as to the extent of lax construction that courts .should adopt in upholding vague charitable devises. Sentimentality has too often taken the place of logic and law in the decisions of these questions. The question is not whether our courts will uphold indefinite charitable devises, for all charity devises are necessarily indefinite, but whether or not there is a limit in vagueness, beyond which our courts will refuse to go.</p> <p>2. The devise must name an object — as a church, orphan asylum, school or the poor of a certain municipality, or it must name a class of objects generally with power to some one to select the particular object or objects from a designated class as to the schools of a State or nation of a certain kind, or to the' charitable institutions of a State or municipality or didcese or church organization, with power to trustee to select the particular institution or institutions, etc. The reason for this is very clear.</p> <p>There must he that reasonable certainty necessary to enable a court judicially to enforce the charity. In other words some reasonable ascertainable beneficiary that can come into a court as plaintiff and ask for and have enforced the charity. There can be no trust without some sort of reasonably ascertainable cestui que trust. If the gift be to the poor of some municipality, either it or some poor person resident could ask the court to enforce the trust, but when no place, State, nation or town is named then this is no longer -possible, for if a Kentuckian asked the enforcement of the devise, a Hindoo or Chinese could appear and make equally as good a claim, hence such a vagueness renders the devise- void for the court could not know from the will what locality was to be the home of the beneficiaries. Even Perry in his .essay in favor of the English-Massa-, chusetts idea admits that such is the American rule, but he does ■so grudgingly. See recent edition, section 713.</p> <p>3. "We beg the court to notice- the material difference between ■the statute of Elizabeth and our own. In that statute the language is “for relief of aged, impotent and poor people;” while in our statute, the language is “for the relief or -benefit of aged, or impotent and poor people.” Now, the devise in question names a -home “for poor -Catholic men,” .and while it might have been upheld under the language of the old statute- it plainly can not be under ours. Our law makers very wisely determined to provide that the rich, though old or impotent, were not objects of charity, and especially, too, that the poor, unless they were also either old or impotent could not be objects of charity. The ma; terial difference renders the cy pres .authorities relied on entirely worthless.</p> <p>4. The court below in his thick and thin defense of cy pres overlooks 'the- obvious distinction between a gift to the organized charities of a church to an organized asylum, college, school •or to a State, county, city or town for public or charitable purposes. In all such cases the direct and legal object of the charity, the party who could come into court and have it enforced, is the organized body itself. In all such cases, as has been often decided, the donor is conclusively presumed to have given in harmony with the purposes of the organization, so that the individuals w.ho are taught in the churches or ¡schools or by the missionaries, or the orphans succored are the benefiiciaries only in a remote and secondary sense; but where as in case at bar a new and perpetual trust is made to establish a home for poor Catholic men, with neither home nor beneficiaries in any way designated or located, there is neither an organization, society or any individual who can come into court and enforce the trust at all, and, hence, it is void. This is the excess of vagueness that the law will not allow, except where cy pres rules prevail. This 'distinction is too obvious to need argument.</p> <p>5. In devise at bar the trustees are certain, but they are given no power at all, and no located or limited class is named from which selection could be made. This defect is absolutely fatal. The court says, further disposing of the authorities urged by counsel for appellees and court below: “If a devise is made to an association, voluntary or corporate, having its board of trustees, and organized for a known and legal purpose, such as a church or a theological institute, the law will presume that the testator intended that the trustees or regents of such association should administer the charity in furtherance of the purpose of such association, and when necessary, select the beneficiaries.” See Bridgesi v. Pleasants, 4 Ired. Eq., 26. This obvious distinction disposes of every case cited by appellee’s counsel in .support of the devise at bar.</p> <p>If it be possible that the trustees may misuse the fund and still, owing to vagueness, the court is unable to correct the abuse, then the1 devise is void, irrespective of what is or may be done. The law can not recognize a form of property that can not be controlled. It is otherwise where courts follow the cy pres rule, for there they can act paternally and devote the fund outright cy pres, and so. there can be no abuse. In this State where no cy pres rule exists, such devises must fail.</p> <p>6. We do not claim that the saying .of mass for any one is an illegal thing, on the contrary it is perfectly legal, but whenever a trust is attempted to be made the usual rules must be applied. There can be no trust, of course, without a living beneficiary or the possibility of one coming into being. This can never be so of the dead and there being no trust effectual the property is undevised.</p> <p>These devises are trusts or nothing. They are not charitable, first, because they name the specific disembodied souls, and, second, they name the testator’s own soul, and by all authority these are not charities, neither by statute or court finding, for it is of the very essence of a charity that no specific individual is pointed out.</p> <p>A dead person or persons can not be the cestui que trust, and, hence, the attempted trust is void. A trust will never fail for want of a trustee^ but there can be no trust without a cestui que trust.</p> <p>7. Finally, we insist we have shown from reason and authority that the residuary devise is void (1) because it does not name a charitable object under our statute, which require that the poor shall also be “aged or impotent,” contrary to that of Elizabeth; (2) because no power is given to any one to select the object of the so-called charity, a thing that is always fatal to such trusts; (3) because it fails to locate the home at any place or give any place from which the beneficiaries are to be selected; and (4) because it fails to empower any one to make such location or selection; that the mass clauses are void because they are not charity trusts at all, being mere private trusts void for want of a living cestui que trust; that devise to the bishop of Cork is void because no object or class of objects Is -named according to the rule in the Spalding case, and that the Jesuit devise is void, because, as held in the Tilden ease, no preference is expressed for alternate objects named, and even the classes referred to are too- vague for judicial enforcement. For these reasons a reversal is respectfully asked.</p> <p>AUTHORITIES CITED ON INDEFINITE DE-VISES.</p> <p>Grimes v. Harmon, 35 Ind., 198; Fifield v. Van Wyck, 94 Va., 557; Spalding v. St. J., Ind., S., 21 R., 1107; Cromie v. L. 0. H. Society, 3 Bush, 374; Moore- v. Moore, 4 Dana, 354; Johnsbn v. Johnson, 92 T-enn., 559; Rhodes v. Rhodes, 88 Tenn., 637; Bridges v. Pleasants, 4 Ired. (N. C.), 26; Gallego v. A. G., 3 ¡Leigh (Va.), 450; Janey v. Latane, 4 Leigh (Va.), 327; Carter v. Wolf, 13 Gratt. (Va.), 301; Tilden v. Green, 130 N. Y., 29; Read v. Williams, 125 N. Y., 560; Beckman v. Bonsor, 23 N. Y., 298; Prichard v. Thompson, 95 N. Y., 380; Kent v. Dunham, •142 Mass., 216; Dublin Case, 38 N. H„ 459; Kelly v. Nichols, 21 At. R., 840; Yungling v. Miller (Md.), 26 At. R., 491; Dulaney v. Middleton (Md.), 19 At. R., 146; Hoffman Will (Wis.), 36 N. W., 407; Moore v. Carpenter, 19 Vt., 613; Dashiel v. Attorney-General, 5 Har. & John., 392; Lepage v. McNamara, 5 Iowa, 124; Garrison v. Little, 75 111. App., 75 Hun., 298; 66 N. W. R., 955 Mich.; 147 N. Y., 104; 92 Hun., 96; 27 S. E. R., 446 (W. Va.), and 389; 154 N. Y., 199; 73 N. W. R., 617 (Iowa); 46 N. Y. S„ 1035; McHugh v. McCole, 12 N. W. R., 631 (Wis.); 72 N. W., 631 (Wis.); 19 N. J. Eq., 453; 5 Cranch, C. C., 632; 53 N. W. R., (Minn.), 648; Brennan v. Winkler (S. C.), 16 S. E. R., 190; Gambell v. Tripp, A. R. L.; 19 N. Y. S., 840; 19 N. -S. R., 801; 26 N. E. R„ 426; 26 N. E. R., 730; 44 N. W. R., 304; 7 N. Y. S., 861; Bristol v. Same, 53 Conn., 242; 64 .Md., 333; 31 Minn., 173; 56 Md., 362; Kain V. Gibbony, 101 U. S.; A. G. v. Soule, 28 Mich., 153; 8 Md., 557; 31 Conn., 407; 24 Conn., 350; 22 Conn., 31, 54 and 55; 30 Conn., 113; 4 C. E. Green (N. J.), 255; 40 Wis., 29; Wheeler v. Smith, 9 How., 55; 3 Fed. Cas., 783; 17 How. (U. S.), 368; (Masses: Festorazzi v. St. Jos. iCath. Ch., &c., 104 Ala., 327; Holland v. Alcock, 16 N. E., 305 (N. Y.); Swartz Will, N. Y. S., 134; McHugh y. McCole, supra; Morrow v.-McConville, L. R., Irish XI., 236; Dorrian v. Gilmore, L. R. Sr. XV., 69, and Dillon v. Reilly, I. R., 10 Eq., 152; Blundell’s Will, 30-Beavan, 360; Attorney-General v. Dulaney, Irish, 10 Com. Law; 104. School Devise: Goodell v. Un. Ass. &c., 29 N. J. Eq.,-32; Ky. Stat., Morehead & Brown, Stat. vol. 1, 308. As to one representing class: 17 B. M., 499; 4 Bush, 215; 8 B. M., 70,. and 1 Bush, 307; Civil Code, sec. 25.</p> <p>CLASSIFICATION REQUIRED BY RULE 17.</p> <p>1. What act in force. The present statute of charitable uses, and trusts was not in force at the death of testator, O’Leary. Therefore, the act found in the General Statutes, -page 242, must, govern. Crawford v. Thomas, 21 Ky. Law Rep., 1100.</p> <p>2. Effect of demurrers. The validity of the contested bequests was properly decided on the demurrers by appellant to defendants’ answers, as by a rule of pleading, universally recognized,, said demurre”s were carried back to the plaintiffs’ petition,, and sustained as to it. All works on pleadings so teach.</p> <p>3. Masses. The bequests for masses are valid public charitable bequests. The mass defined and sustained by overwhelming authority. Gass & Bonta v. Wilhite, 2 Dana, 182; Siebert’s Appeal (Penn.), 6 Atl. Rep., 105; Rhymer’s Appeal, 93 Penn.,. 142; Jas. Schouler, petitioner, 134 Mass., 426; Seda, et al. v. Huble, 75 Iowa, 429; Moran v. Moran, 104 Iowa, 216; Harrison v. Brophy (Kansas), 40 L. R. A., 721; Hoeffer v. Clogan, 171 111., 452, and cases cited by the court; Kerrigan v. Tabb- and others (New Jersey), 39 Atl. Rep., 701; Sherman v. Baker (R. I.), 40 L. R. A., 718; Kimball Webster, executor of Jas. Ryan v. Sughrow, etc. (N. Ham.), 48 L. R. A., 100; Elmsley v. Madden, 18 Grant’s Ohy. Rep., Ontario, 386; Atty. Gen. v. Hall, Ireland, decided in 1897; (Cited in- the Illinois case.)</p> <p>Contra. The eases of Festorazzi v. -St. Joseph’s Catholic Church, 104 Ala., 327, and McHugh v. McCole, Wisconsin, examined. The former (the chief justice dissenting) shown to be •based on a misapprehension, and the latter to be based entirely upon a local statute. But even that case- was disapproved and practically overruled by the same court in a very able opinion rendered in 1900 in the case of Harrington v. Pier, 50 L. ¡R. A., 318-319. I hope the court will find time to read the opinion. It sustains devises for masses, and indeed, so far as our clients are interested, every contested devise in this ease. It is true the chief justice dissented, but not on that point. The Festorazzi case is then the only one against the validity of .masses in the United 'States. And it was based upon two fatal mistakes, as shown in the brief.</p> <p>4. Bequest for “rewards of merit,” etc., 11th clause: “I give and bequeath to the Rt. Rev. Roman Catholic Bishop (for the time being) of Louisville the sum of $3,000, to be invested, and the income of which to be applied in rewards of merit for the pupils in the parochial poor schools of Louisville.”</p> <p>We have found no authority against this bequest, and can conceive of no reason which can be urged against its validity. We therefore only cite in support of it the will of Dr. Franklin, and the cases Almy v. Jones, 17 R. I., 270, and Palmer v. Union Bank, 17 R. I., 630. That it is a valid public charitable bequest there can be no doubt.</p> <p>5. Residuary clause, 20th clause: “All the remainder of my estate after the payment of the specified legacies and bequests I wish to be invested and placed in trust with the Rt. Rev. Bishop of the Catholic Diocese of Louisville and three others to be chosen by him for the establishment of a home for poor ■Catholic men, as soon as the proceeds of my estate may justify it.”</p> <p>(a) The power conferred upon the Bishop to appoint three associates valid. Dudley v. Weinhart, 93 Ky., 403; Crawford v. Thomas, 21 Ky. Law Rep., 1100; Lillard v. Robinson, 3 “Litt., 415; Herbert v. Herbert, Wright, etc., 85 Ky., 134; Miller v. Teachout, 24 Ohio St., 535; Hertz v. Abraham (Ga.), 50 L. R. A., 361.</p> <p>(b) This is a public charitable bequest, and is valid, both at the common law and by our statute. General Statutes, Charitable Uses, 242; Prof. Ames, 5 Plarvard Law Review, 390; Snug Plarbor Case, 3 Peters, 99; Russell v. Allen, 107 U. S., 168; Chambers v. St. Louis, 29 Mo.; Dye v. Beaver Creek ■Church (S. C.), 26 S. E. Rep., 717; Perry on Trusts, see. 687, ■etc.; Harrington v. Pier (Wisconsin, 1900), 50 L. R. A., 307; Moggridge v. Thackwell, 7 Vesey, 86; Porter’s Case, 1 Coke, 17; Judge Story in Appendix to 3 Peters, 499; Vidal v. Girard’s. Executors, 1 How., 183; Gass & Bonta v. Wilhite, 2 Dana, 170; Moore’s Heirs v. Moore’s Devisees, 4 Dana, 366; Curling’s Heirs v. Curling’s Administrator, 8 Dana, 38; Chambers v. Baptist Educational Society, 1 B. M., 214; Attorney General v. Wallace, i B. M., 617; Cromie’s Heirs' v. Louisville Orphan Home, 3 Bush, 365; Peynado v. Peynado, 82 Ky., 13; Leed’s v. ¡Shaw’s Admr., 82 Ky., 79; Kinney v. Kinney, 86 Ky.,'610; Peniek, Rector, v. Thom’s Trustee, 90 Ky., 668; Ford v. Ford, 91 Ky., 572; Given’s Adrar, v. Shouse, 5 Ky. Law Rep., 419; Tichenor v. Brewer, 17 Ky. Law Rep., 936; Bedford v. Bedford, 18 Ky. Law Rep., 195; Crawford v. Thomas, 21 Ky. Law Rep., 1100; Spalding’s Heirs v. St. Joseph’s Industrial School, 21 Ky. Law-Rep., 1107. This last case is cited only to show that it is entirely consistent with all the foregoing bequests.</p> <p>6. Charity generally, 12th clause: “I give and bequeath to-the Rt. Rev. Roman Catholic Bishop (for the time being) of' Cork, Ireland, the sum of $3,000, to be applied to any charitable uses and so as to do most good, in his judgment.”</p> <p>This is a valid bequest, sustained by all the Kentucky cases. ■(except the Spaulding case), including the case of Crawford v. Thomas. All the authorities cited under other heads¿ also Erskine v. Whitehead, 84 Ind., 358.</p> <p>7. Visitorial rights. Heirs will not be heard unless there has been “some abuse of the trust or some failure to execute it.” Atty Gen. v. Wallace, 7 Ben. Mon., 621. No such abuse or failure has been alleged, or -could have been truthfully alleged. The trust was executed before this suit was filed.</p> <p>á. The prerogative and cy pres doctrines. There is no reason whatever for invoking or discussing either of these doctrines in this ease. Neither of them has been invoked by us, for there is nothing in this case to call for the discussion or application of either. We have no need of them, nor any use for them, or for any English or American case influenced by either of them. All this is fully shown in the brief. All that has oeen said on this subject is therefore wholly irrelevant. I will not, however, complain of Brother Clements for calling every case against, him a “cy pres” and every law-writer who states the law against him 'another “cy pres,” provided he will solemnly promise never to be so angry with me as to call me a “cy pres.”</p> <p>As this “cy pres” doctrine is treated by Chief Justice Woods- and to the extent that it is purely “judicial,” it is not objectionable. He excludes prerogative from i-t and leaves it simply and “in effect a liberal rule of construction.” Erskine v. Whitehead, 84 Ind., 358; 2 Perry on Trusts, sec. 727.</p> <p>SYNOPSIS.</p> <p>1. A defendant can not be compelled against his will to-become a plaintiff and to sue himself and others. Code, section 25.</p> <p>2. A bequest to a priest for masses to be said is a valid charity. Cases cited in note to Moran v. Moran, 4 Am. and Eng. Ddc. in Equity, p. 41.</p> <p>The importance, always recognized, of protecting- the individual rights of every person to devote his private fortune to ■the public good so far1 as practicable without the violation of any legal principle, and of making all efforts to that end effective to accomplish the donor’s purpose, can not be overestimated. Few things occur in the administration of justice more lamentable than the occasional strangling of some wise and noble purpose to devote the savings, or part of them, of a life of industry, to the upbuilding of the human race at some point or in some field and the diversion of what was intended for some public benefit to private use, directly contrary to the will of him. whose last days were solaced with the -thought that- his public benefactions would build an enduring monument. to his memory in the hearts ,of grateful people, and the hope of eternal reward for such well doing, belie-ved to be waiting for bestowal. That idea prevailed when -the fathers of the common law so. far back that neither the memory of man nor judicial records; run to the1 contrary. It became crystallized as part-of the.common law of England long prior to the- statute of 43 ■ Elizabeth, chapter 4, to the effect that gifts to charitable uses- should be highly favored and construed by the most liberal judicial rules •that the nature of each case as presented would admit of, rathe-r than that the gift should fall and the intent of the donor fail of accomplishment.</p> <p>If it should be contended, which it is not, because the question is settled in Atty. Gen. v. Wallace, 7 B. Mon., that the trustee, of the Society of Jesus, is incapable of taking, it would not make the devise void, but the court would simply appoint a trustee, the doctrine applying that a trust for charity never fails for want of a valid or competent trustee; but this ques*tion is not raised.</p> <p>I was appointed warning order attorney also for the bishop of Cork, Ireland, one of the devisees, but as the executor has long since paid him, the plaintiff will have to go to Ireland to sue.</p> <p>But as far as the Society of Jesus and the bishop of Cork are concerned, their case is not before the court, because the warning order attorney filed demurrers for each to the- petitition, and while the court declared these devises good, the judgment neither overrules nor sustains either one of these demurrers, but only carries bock the demurrers of plaintiff to the petition of those who- filed answers, (viz., Hayes and Judge Muir’s clients), leaving the demurrers of the society and the bishop, undisposed. of. Undoubtedly, the plaintiff does not care to push these devises, but is interested mainly in the bulk of the estate which goes to Bishop McCloskey, trustee; therefore, all this court can do 'is to dismiss the appeal as to the Society of J'esus and the bishop of Cork, because it has never been perfected.</p> <p>AUTHORITIES CITED.</p> <p>Constitution of Ky., 1799, art. 6, sec. 8; Morehead and Brown Statutes, vol. 1, p. 612; Morehead and Brown Statutes, vol. 1, ■p. 308; General Statutes, 242; Pomeroy’s Eq. Juris., vol. 2, sec. 1028, note 3; Moore v. Moore, 4 Dana, 359; Spalding v. St. Jos. Ind. School, 2 Ky. Law Rep., 1107; Bispham Equity, p. 168; Pomeroy Equity, vol. 2, secs. 1023-1021; Bouvier Law Die-' tionary, for “or” and “and;” Lichfield v. Cudworth, 15 Biek., 27; U. S. v. Fisk, 3 Wall., 447; Dumont v. U. S., 98 U. S., 143; John v. Smith, 102 Fed. Rep., 218; Erskine v. Whitehead, 84. Ind., 359; Phillips v. Harrows, 93 Iowa, 92; Harrington v. Pier, 105 Wis., .485; In re Upham’s Estate, 59 Pac. Rep., 315; In re Upham’s Estate, 46 Ga., 88; In re Upham’s Estate, 83 Ala., 299; In re Upham’s Estate, 39 La., 1043; Kinney v. Kinney, 86 Ky., 610; Atty. Gen. v. Wallace, 7 B. Mon., 617.</p>

<p>Mandamus — Property Omitted from Taxation — Jurisdiction of County Court.</p> <p>Held: 1. Kentucky Statutes, section 4241, requires the sheriff or auditor’s agent to cause to he listed for taxation all property omitted by other officers, and to file in the office of the cler.k of the county a list of the property; provides that at the next regular term of the county court, if it shall appear to the court that the property is liable to taxation, and has not been assessed, it shall enter an order fixing its value, and, if not liable, it shall make an order to that effect; and that from so much of the order deciding whether the property is liable to assessment either party may appeal. Held that, where the court declines to consider the question of liability .of the property to taxation, there can be no appeal, so that mandamus will lie to compel the court to consider the matter.</p>

<p>Railroads — Tracks in the Street — Damages to Abutting Owners*' Limitation of Action — Measure of Damages.</p> <p>Held: 1. While the right to sue a railway company for damages, caused to abutting property, by reason of the construction and operation of a railway track in a street pursuant to legislative and municipal authority, is barred by the five years’ statutes of. limitations, in a like action for damages for the construction and operation of such track in a street without such authority, the-fifteen-year statute of limitation applies.</p> <p>2. Where a railroad company is authorized by legislative and municipal authority to construct and operate a single railway track in a street, and concurrently constructs two tracks in such street, an additional servitude is thereby imposed upon property abutting on said street, and damages can be recovered by the owner of such property for the construction and operation of the' double track by an action instituted within fifteen years from the construction of said tracks, and in such case the measure of recovery is, whatever damages the abutting property owners have sustained by reason of the- construction and operation of two tracks in said street, which they would not have sustained by the construction and prudent operation of one track therein.</p>

<p>Elections — Contest—Ballots—Irregular Marks — Election Officials — Duties—Returns—Failure to Sign — Clerk—Evidence.</p> <p>Held: 1. Election ballots, with stencil marks appearing in the circle under the device of the regular Republican ticket, and also in the circle under the device 'of the Independent Republican candidate for one of the offices, should not have been rejected on the count.</p> <p>2. Where the- clerk of election fails to sign his name on the back of the ballot, as required by the statute, whether by design or through inadvertence, the ballots should not he rejected merely on account of such failure.</p> <p>S. A ballot voted in the circle under the Republican device and a cross mark made in the blank under the name of one of the Democratic candidates should he counted- for the Republicans except as to such one office, as to which it should -he counted for the Democratic candidate.</p> <p>4. Ballots marked with a blurred figure, or with irregular black marks, in the circle under the device of one party, should he counted for such party.</p> <p>5. Ballots bearing devices for three sets of candidates, marked in the circles under two of the devices, should he rejected.</p> <p>6. A ballot marked under the Republican, device, but which was torn on the side, should be counted for the Republican candidates, for, having been counted by the officers, the presumption must he indulged that the tearing occurred subsequent to its consideration by them, upon the theory that the officers did their duty, even if the court on appeal were of opinion that such a tear as the one in question vitiated the ballot.</p> <p>7. The election returns from one precinct were signed only by the clerk of election representing the Democratic party, which was in the minority. The officers representing the other party appeared the following day, and demanded the' right to sign, and the balance of the Democratic officials admitted the correctness of the vote at the time it was taken. The ballots confirmed the accuracy of the count, and gave no evidence of having been tampered with. Held, that the failure of the officials to sign the return, as required by statute, did not invalidate the vote.</p> <p>8. A ballot should not be rejected because of ink blots on the back thereof, there being nothing to indicate that they were put there by the voter to distinguish the ballot.</p> <p>9. On the contest of an election the court will apply the same rules of evidence and draw the same deductions from the facts as would apply and be drawn in an ordinary contest over property rights.</p> <p>10. Ballots signed by the clerk of election, not with his own name. “George D. Lancaster,” but with the words “Hotel Lancaster,” will not be rejected for that reason alone.</p> <p>11. Where ballots were marked unmistakably in the circle under the Republican device with the .same kind of a stencil used in marking all the ballots that were counted in the precinct in question and in two other precincts, and the whole appearance of the ballots and the great weight of testimony tend to show that they were voted for the Republican ticket, the fact that there was a shadowy blur, together with marks, in the circle under the Democratic device, apparently fraudulently made by a rubber cross attached to a finger or thumb, will not prevent - the ballots from being counted for the Republican candidates.</p>

<p>Street Improvement — Intersections—Paving—Assessment of Cost.</p> <p>Held: 1. Kentucky Statutes, section 2833, provides that, if the territory to be charged with the cost of constructing a street improvement is bounded on all sides by principal streets, the cost must he apportioned among the lot owners in each one-fourth of the square contiguous to the improvement, and, if the territory contiguous to any public way is-not defined into squares by principal streets, the ordinance providing for the improvement must state the depth on both sides “fronting” the improvement, which is to be assessed according to the number of square feet owned by the parties within the depth set out in the ordinance. Held, that such statutes did not provide any mode of assessment for the improvement of a street intersection which was not surrounded by property hounded by streets-, nor had any property fronting thereon, and hence the cost thereof must be paid by the city.</p>

Case 51 — Action by T. P. Whitlow’s Admr. against Louisville & N. R. R. Co. to Recover. Damages fob Personal Injuries to Plaintiff’s Intestate Received in the State of Tennessee.— Deo. 10, 1897. appeal from the warren circuit court. Judgment for Pi.aintiff and Defendant Appeals.

<p>Case 52 — Action by Paulina Crawford’s Heirs v. W. J. Thomas, Trustee, and Others to Invalidate Part oe the Will of Paulina Crawford. — Deo. 9, 1899.</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>STATEMENT OP CASE.</p> <p>Paulina Crawford died a resident of Shelby county. Her will was admitted to record at the August term, 1889, of the .Shelby county court. An appeal was prosecuted to the Shelby circuit court from this judgment of the county court, and the will was finally established by a judgment of the Shelby eiruit. court on the 31st day of March, 1892. The testatrix left a large estate of more than $50,000. She never had any children; her husband had died many years previously, and her next of kin were the descendants of her brothers and sisters. After making sundry devises, the residuary estate consisting of over $27,000 she undertakes to dispose of by the 12th and ,13th clauses of her will.</p> <p>These clauses are as follows:</p> <p>Item 12th. “I give and bequeath to W. J. Thomas as trustee, the sum of five thousand dollars; the interest of which sum to be used in securing an evangelist in iShelby county, or any other section of the country said trustee may select. The said sum shall be held by him and his successors in perpetuity. The said W. J. Thomas may select his successor, who must give bonds and security approved, and said successor, or seccessors must in every instance be members of the Christian Church. And furthermore, the proceeds of said sum, or sums, shall be expended in the .advancement of the. principles of primitive Christianity as taught by the Christian Church.”</p> <p>Item 13 th. “I direct that my executor shall pay over to a trustee whom he may select, the residue of my estate, the interest of said sum to ,be used in the advancement of the principles of primitive Christianity as taught by the Christian church, subject to the same conditions as are mentioned in Item 12th.”</p> <p>The defendant, Ben. A. Thomas was nominated the executor in the will, and he duly entered and qualified. He paid out all the funds designated in the first twelve clauses of the will, and having some doubts as to the validity of the devise contained in the 13th clause, on account of no trustee. being named, and on account of the vagueness of the devise, filed a suit in this circuit court for the purpose of having the 'court to determine whether or not he could in safety pay over this residuary fund to a trustee, whom he might designate. The record of that suit is made part of the record in this case and is found from pages 37 to 76 inclusive. The executor in this suit asked that two of the heirs at law, J. W. Crawford and ~W\ J. Thomas, might defend for all of the heirs at law, inasmuch as it was alleged that they were quite numerous, and it was impracticable to bring all of them before the court within a reasonable time. The executor also in that suit designated three members of the Christian church, and asked that 'they be permitted to defend for the said church, and all of its membership. The court appointed the said J. W. Crawford and Oswald Thomas to defend the suit, but did not appoint W. 3'. Thomas, who was designated as one of the defendants in the petition. An answer and cross-petition was filed by these two heirs, J. "W. Crawford and Oswald Thomas in which they undertake to defend for themselves and the other heirs at law. There was in like manner an answer and cross-petition filed by three members of the church, in which they undertake to defend for themselves and all the other members of the said church. There was no process on tire original petition, either actual or constructive, against any of the other heirs. There was no affidavit or allegation as to who these heirs were, or as to how many of them there were. There was no warning order and no publication. Neither was there any actual or constructive service of process upon either of the answers or cross-petition. ■Some proof was taken, and in this condition the court rendefed a judgment, that the devise in clause 13 was not void for uncertainty. This judgment did not indicate any purposes to which the fund should be devoted, but left the entire management of the fund to the trustee, and directed the executor to pay over the residuary fund to W. J. Thomas, who was the trustee, designated by the executor. This trustee duly entered and qualified, and has received from the executor not only the $5,000, named in the 12th clause of the will but more than $22,000 named in the 13th clause of the will. This trustee has never made any settlement of his accounts, and this suit is instituted by most of the heirs at law of the testatrix claiming, that the devises in these two clauses of the will are void for uncertainty, and they are asking for a distribution of the fund among themselves, and the other heirs; and if this' can not be had, they are asking for an enforcement of the trust, &c.</p> <p>Now we contend for these propositions.</p> <p>1. That the former proceedings are not a bar to this suit.</p> <p>2. Even under the former statutes and decisions, these bequests are void for uncertainty.</p> <p>3. But the question as to whether these funds shall go to the heirs, or to the charity, is to he determined by the recent statute and not under the old law.</p> <p>4. Even if the bequests are held good as donations to charity, the plaintiffs as heirs of the donor have a right to institute this suit, and to see that the trust is faithfully executed.</p> <p>5. The present trustee has been unfaithful, and if the devises are upheld it is the duty of this court to designate the beneficiaries and to execute the trust.</p> <p>AUTHORITIES CITED.</p> <p>Johnson v. Morrison, 5 B. Mon., 106; Singleton v. Singleton, 8 B. Mon., 345; Smith v. Gowdner, &c., 3 Met., 175; Bank v. Cochran, 9 Dana, 395; 6 T. B. Mon., 205; Hays v. Mays, 1 J. J. M., 498; Taylor v. Bate, 4 Dana, 205; Boone v. Helm, 4 Dana,. 404; Thompson v. Peebles, 6 Dana, 391; Lewis 7. Outton, 3 B. Mon., 455; Craig v. McBride, 9 B. Mon., 15; Freeman on Judgments, sec 158; Tinsley v. Martin, &c., 80 Kentucky, 467; Perkins v. Fourniquet, 6 How., U. S., 206; Civil Code, sec. 96, subsec. 3; Civil Code, sec. 39;' Frazier’s Executors v. Page, 5 Ky. Law Rep., 790; Pennoyer v. Neff, 95 U. S., 570, 572; Smith v. Cutchen, 38 Mo., 415; Durance v. Preston, 18 Iowa, 396: Mitchell v. Gray, 18 Ind., 123; Thompson v. Whitman, 18 Wal. U. S., 457; Compton v. J'esup, 68 Fed. Rep., 263; Morgan, &c. v. Halsey, Trustee, &c., 17 Ky. Law Rep., 529; Williams v. Gibbs, &c., 17 How., 239; David v. Froud, 1 Mi. & K., 200; Greig v. Somerville, J. Russ & M., 338; Gillespie r. Alexander., 3 Russ., 130; Sawyer v. Birchmore, 1 Keen, 391; .Shine v. Gough; 1 Ball & B., 436; Finley v. Bank of TJ. S., 11 Wh., 304; Story’s Eq. PI. sec. 106; Wiswall v. Sampson, 14 How., 52-67; McArter v. Scott, 113 TJ. S., 340; Davour v. Fanning, 4 John’s Oh., 199; Dehart v. Dehart, 2 H. W. Green (N. I.) 471; Hawkins v. Hawkinsy 1 Hare, 543-545; Bradwin v. ¡Harper, A. M. B., 374; Harvey v. Harver, 5 Beav., 139; Willats v. Bushby, 5 Beav., 193-200; Powell v. Wright, 7 Beav., 444-450; Hallett v. Hallett, 2 Paige, 15; Hamilton v. Brown; The Mary, 13 TJ. S., 9, Cranch, 126, 144, (3, 678, 684); Scott v. McNeal, 154 TJ. S., 34 46, (38, 895, 901); Hilton v. Guyot, 159 TJ. S., 113, 167 (anle., 145, 151.); Phillips v. Moore, 100 TJ. S., 208-212, t25, 603, 204); Arnt v. Griggs, 134 TJ. S., 316, (33, 918); Hardy v. Beaty, 84 Tex., 562, 569; Penoyer v. Neff, 95 TJ. S., 714; Bardstown & Louisville R. R. Co. v. Metcalf, 4 Met., 205; Freeman on Judgments, sec. 159; Turnham v. Turriham, 3 B. Mon., >582; I. Pomeroy Eq. Juris., sec. 429; Freeman on Judgments, sec 606; Smith’s Leading Cases, vol 2, p. 585: Civil Code, see. 364; 12 Ky. Law Rep., 121; Bedford’s, &c. v. Bedford’s Admr., 18 Ky. Law Rep., 201; Penick, Rector, &c. v. Thomas’ Trustee, 12 Ky. Law Rep., 613; Kinney, &c. v. Kinney’s Executor, 9 Ky. Law Rep., 753; Peynodas Devisees v. Penodas Executors, 5 Ky. Law Rep., 753; Leeds v. ¡Shaw’s Adm., 6 Ky. Law Rep., 26; Baptist Church v. Presbyterian Church, 18 B. Mon., 630; Hadden, &c. v. Chorne, &c., 8 B. Mon., 78; Moore’s Heirs v. Moore’s Devices, 4 Dana, 355; •Cromie’s Heirs v. Louisville Orphans’ Home, 3 Bush, 365; Curling’s Adm. v. Curling’s Heirs, 8 Dana, 38; Attorney General v. Wallace, 7 B. Mon., 611; 2 Perry on rusts, sec 748, n. .1; Baptist Association v. Hart’s Executors, 4 Wh. 1, 17 Ky. Law Rep.. 532; Gambell v. Tripp, 75 Md., 252; 32 Am. St. Rep., 388; Johnson v. Johnson, 92 Tenn., 559; Tilden v. Green, Green, 130 N. Y.; Read v. Williams, 125 N. Y., 569; McBrayer, &c. v. McBrayer’s Exrs., 16 L. R., 18; Olliffe v. Wells, 130-Mass., 221; Lewdn on Trusts, 3 Ed., 75; Thayer v. Wellington, 9 Allen, 283; Heidenheimer v. Bauman, 84 Tex., 174; Wheeler v. Smith, etc., 9 How., U. S., 55; Fountain v. Revenel, 17 How., U. S., 369; Story’s Eq. Juris., secs. 1164 1155 and n.; Grimes v. Hammonds, 35 Ind., 198; Holland v. Peck, 2 Iradell Chan. Rep., 255; Green v. Allen, 5 Hun., 170; Bridges v. Pleasants, 4 Iradell Chan., 26; Colt v. Comstock, 51 Conn., 353; Attorney -General v. Soule, 28 Mich., 153; Pritchard v. Thompson, 95 N. Y., 76;; I. Stanton Rev. ¡Stat. chap. 14, sec. 1; Kentucky Statutes, sec. 317; Smith v. Stowell, Ch. Cas., 195; Collinson Case, Hob., 136; See Appendix to 4 Wheaton; Southerland Statutory on Construction, sec 206; Satterlee .v. Matthewson, 27 U. S., 380; Chas. River Br. v. Warrne Br., 36 tT. S., 417; Browson v. Kinzie, 42 U. S., 331; Balt. & O. R. R. Co. v. Nesbit, 51 U. -S., 401; Wilder v. Lampkin, 4 Ga, 209; Boston v Cummins, 16 Ga., 102; Davis v. Ballard, 1 J. J. M., 563; Bay v. Cage, 36 Barb., 447; L. St. L. & T. R. R. Co. v. Barrett, &c., 13 Ky. Law Rep., p. 57; 23 Am. & Eng. Ency. of Law, p. 298; Carpenter v. Penn., 17 How., U. S., 172; Drehman v. Stifle, 8 Wall., XT. S., 595; 2 Perry on Trusts, sec 618, etc.; Baptist Church v. Presbyterian Church, 18 B. Mon., 640; Chambers v. Baptist Education Society, 1 B. Mon., 220; Cromie v. Bull, etc., 5 Ky. Law' Rep., 735; Chap. 14, sec. 2 of Rev. Stat.; Kentucky Statutes, sec. 318; Page’s Executor v. Holman, 82 Ky., 576; Civil Code, sec. 472; 8 Pomeroy’s Eq., sec. 1421. ,See. 4706 of Kentucky Statutes.</p> <p>This case was decided December 9, 1899, and not marked to-be reported, but has recently been ordered to be reported, and is here inserted. Reporter.</p>

<p>Telephones — Wrongful Disconnection — Measure of Damages.</p> <p>Held: By mistake, a physician’s telephone was disconnected for non-payment of rent, when, in fact the rent had been paid. During the eighteen hours it had been disconnected, persons endeavoring to reach the physician hy telephone were informed that the telephone had been disconnected for non-payment of rent. Held, in an action by the physician against the company for damages, it appearing that, although considerably annoyed, he had suffered no pecuniary injury, he is not entitled to recover punitive damages — the measure of damages being the amount paid for the service for the time the ’phone was disconnected, taking for the basis the amount paid by the month.</p>

<p>Voluntary Conveyance — Creditors—Action to Set Aside — Defenses — Evidence—Transaction with Decedent.</p> <p>Held: 1. Under Kentucky Statutes, section 1907, providing that “every conveyance made by a debtor of any of his estate without valuable consideration therefor shall be void as to all his then existing liabilities ” in an action to subject property conveyed by a debtor in consideration of love and affection to the payment of a liability existing at the time of the conveyance, the fact that at that time he had other property subject to execution, more than sufficient, to pay his debts, constituted no defense.</p> <p>2. Under Civ. Code, section 606, providing that “no person shall testify for himself concerning any verbal statements of or any transactions with or any act dona by one who is dead when ■the testimony is offered,” in an action to subject land to the payment of debts of the grantor, where the conveyance, stating the consideration as love and affection, conveyed the property to two children, and, if they died without issue and before reaching majority, then to the mother, she was incompetent to testify to any transaction with deceased, to show that the conveyance was not voluntary.</p>

<p>Case 55 — Action by Commonwealth for Use of Nicholas County v. S. F. Stone and Others, Sureties on the Official Bond of the Sheriff to Recover Money Collected Under a Void Levy. — Jan. 18.</p> <p>APPEAL FROM NICHOLAS CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>The sureties on the bond sued on are liable for the wrong committed by both the sheriff and his deputy for the wrongful collection of money under tax process. Kentucky Statutes, sec. 4141; Johnson, &c. v. Williams’ Admr., 23 Ky. Law Rep., 658; Munfree on Sheriffs, sec. 60; State v. Shaeklett, 5 Am. Law Register, 664; Shields v. Pflang, 101 Ky., 407; Freeman on Executions, vol 2, 254; Com. for Use v. Stockton, 5 Mon., 193; Am. & Eng. Ency., vol. 25, (1st ed) 466, “note;” Meehem on Public Officers, sec. 285; Clancy v. Lenworthy, 74 Iowa, 743; Am. & Eng. Ency., vol. 25, (1st ed) 478.</p> <p>2. The sureties of a sheriff are liable for taxes actually collected under void process and hot paid over. Throop on Public Officers, secs. 289, 290, 220; Cooley on Taxation, secs. 705, 708; Pingree on Suretyship & Guarantee, secs. 337, 310; Mechera on Public Officers, sec. 694; Am. & Eng. Ency. of Law, vol. 24, 894, 879; Webb Co. v. Gonzules, &c., 6 S'. W. Rep., 782; Palmer v. Craddock Hugh (1st Ky.), 183; Inhabitant of Orono v. Wedgewood, 69 Am. Die., 82. •</p> <p>ADDITIONAL AUTHORITIES CITED FOR APPELLANT.</p> <p>1. Blair v. Carlisle J. T. Co., 4 Bush, 157; Com. for Use v. Scott, &c.„ 23 R., Js490; Kentucky Statutes, sec. 4556, 1715; Howard v. Com., 104 Ky., 492; Pingree on Suretyship & Guarantee, see. 337; Meehem on Public Officers, sec. 694; State v. ■Shaeklett, 5 Am. Law Reg., 168; Am. & Eng. Ency., vol. 24, 894; Ency. of Pleading & Practice, vol. 15, 154.</p> <p>2. Freeman on Executions, veis. 1, 100-102; Bouvier’s Just., vol. 3, 564; Meehem on Public Officers, secs. 767, 772; Am. & Eng. Ency. of Law, vols. 25, 478; Munfree on Sheriffs, sec. 68; Croker on Sheriffs, sec. 864; Anderson v. Thompson, 10 Bush, 135.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. The sureties upon the sheriff’s bond are bound only by the acts of the sheriff done by virtue of his office, and the petition in this case discloses that the acts here complained of, being done under void process, were not done by the sheriff by virtue of his office. Whaley, &c v. Commonwealth, for Use, &e., •23 Ky. Law Rep., 1292; Governor v. Perrine, 23 Ala., 807; State v. Mann., 21 Wise., 692; Turner v. Collier, 4 Heiskell, .89; Fitzpatrick v. Branch Bank, 14 Ala., 533; Dean v. Governor, 13 Ala., 526; Forward v. Marsh, 18 Ala. 645; Thomas v. Browder, 33 Tex., 783; Gerber v. Ackley, 37 Wise., 43, 19 Am. Rep., 751; Marquess v. Willard, 12 Wash., 528, 50 Am. St. Rep., 906; Allison v. People, 6 Col. Appeals, 80; McLenden v. State, 92 Tenn., 520; Brown v. Weaver, 76 Miss., 7, 71 Ain. St. Rep., 512 Poindexter v. Greenhow, 114 U. S., 282; Cooley on Taxation, 2d ed., 712; Leggett, v. Humphreys, 21 Howard, 66; Holiman v. Carroll’s Admr., 27 Tex., 23; People v. Schuyler, 4 N. Y., 173; State v. McDonnough, 9 Mo. App., 63; State v. Wade, 87 Md., 544; State v. Moore, (Neb.) 77 N. W. Rep., 474; Eaton v. Kelly, 72 N. C., 110; Hawkins v. Thomas, 3 Ind. App., 399; Chandler v. Rutherford, 101 Fed. Rep., 774.</p> <p>2. Of two innocent parties he whose negligence made the loss possible must bear the loss. And the loss, if any, in this case is due to the negligence of the tax-payers in paying a void levy.</p> <p>POINTS AND AUTHORITIES.</p> <p>The sureties on an official bond of a sheriff are not liable for an unconstitutional tax collected by the sheriff, and said tax is not covered by the undertakings of the sheriff’s sureties on his bond</p> <p>AUTHORITIES CITED.</p> <p>Hawkins v. Commonwealth, I. T. B. Monroe, 146; Brown v. Commonwealth, 6 J. J. Marshall, 636; Comonwealth for Arnold v. Summers, 3 Bush, 55; Mercer County v. Gabbard, Admr., 5 Bush, 438; Griffith v. Commonwealth for Use, &c.,' 10 Bush, 234-5; Hughes v. Cotton, 13 Bush, 600; Dawson v. Lee and Lee v. Hill, 83 Ky., 55; Hammond v. Crawford, 72 Ky., 76; Green-well v. Commonwealth for Use, &c., 78 Ky., 320; Osenton’s Admr. v. Burnett, 19 Ky. Law Rep., 610; H. Whaley, &e. v. Commonwealth, 23 Ky. Law Rep., 1292-1306.</p>

<p>Notaries — Fees—Contract for Services — Inclusion of Fees — Legality-Estoppel.</p> <p>Held: 1. A bank clerk by the contract of biring was to receive fifty dollars per month for his services, including notarial fees, and after receiving such compensation he sued for his notarial fees, which did not amount to fifty dollars per month, on the-ground that a contract by a public officer to accept less than his legal fees is illegal. Held, that the contract having been understood, and the lump sum accepted being greater than the fees, there was no contravention of public policy.</p> <p>2. Plaintiff having received and retained the fifty dollars per month in satisfaction of his services, and having remained in the employment, he was estopped from demanding further compensation.</p>

<p>Case 57 — Action by Sarah R. Boreing v. Vincent Boreing for*Divorce and Alimony. — Jan. 13.</p> <p>APPEAL FROM LAUREL CIRCUIT COURT.</p> <p>From so Muon of a Decree of Divorce as Refused to Allow -Plaintiff Maintenance or Alimony, She Appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Appellant entitled to divorce. Kentucky Statutes, sec. 2117; Newsome v. Newsome, 95 Ky., 393; Clark v. Clark, 21. R., 955; Irwin v. Irwin, 20 R., 1764; Lacey v. Lacey, 95 Ky., 110.</p> <p>2. As to letter of appellee preparing defense to suit., Fishli v. Fishli, 2 Littell, 341.</p> <p>3. Appellant entitled to attorney’s fee, taxed as costs. Kentucky Statutes, sec. 900; Dugan v. Dugan, 1 Duvall, 284; Ballard v. Caperton, 2 Met., 412; Meyer v. Meyer, 3 Met., 273; Williams v. Monroe, 18 B. M., 410; Callender v. Callender, 15 R., 64; Turner v. Turner, 23 R., 372.</p> <p>4. Fixing fee without hearing proof is error. Whitney v. Whitney, 7 Bush, 520; Schneider'v. Schneider, 23 R., 1154.</p> <p>5. Appellant entitled to alimony during pendency of suit. Kentucky Statutes, see. 2122; Whitsell v. Whitsell, 8 B. M., 50;' Caskey v. Caskey, 1 R., 280; Cravens v. Cravens, 4 Bush, 435; Lochnane v. Loehnane, 78 Ky., 467.</p> <p>6. Appellant entitled to permanent alimony. • Kentucky Statutes, sec 2122; Wilmore v. Wilmore, 15 B. M., 49; Hoaglañd v. Hoagland, 10 R., 241; Newsome v. Newsome, 95 Ky., 393; Hulett v. Hulett, 80 Ky!, 364.</p> <p>7. Not necessary that actual physical or threatened violence "be shown. Rice v. Rice, 6 Indiana, 100,■ Carpenter v. Carpenter, 30 Kansas, 744; Avery V. Avery, 33 Kansas, 1; Warner v. Warner, 54 Mich., 492; Irwin v. Irwin, 96 Ky., 318; Shrock v. :Shrock, 4 Bush, 684; Thornberry v. Thornberry, 4 Littell, 253.</p> <p>8. Wife entitled to alimony, although not entirely blameless. •■Griffin v. Griffin, 8 B. M., 120.</p> <p>9. Wife entitled to alimony where she is blameless, in one •case one-half, and in other one-third of 'husband’s estate. Quisenberry v. Quisenberry, 1 Duvall, 198; Thornberry v. Thorn-berry, 4 Littell, 253.</p> <p>10. When husband in fault, alimony allowed wife. Canine v. Canine, 13 R., 124; Davis v. Davis, 86 Ky., 32.</p> <p>11. When both husband and wife in fault, alimony allowed. Edwards v. Edwards, 84 Ala., 361; Russell v. Russell, 17 R., 798; Pore v. Pore, 20 R., 1981.</p> <p>12. When ground for divorce, five years’ separation, alimony allowed. Lacey v. Lacey, 95 Ky., 110; Newsome v. Newsome, ' 95 Ky., 383; Irwin v. Irwin, 20 R., 1761.</p> <p>13. Separation not required to be mutual and voluntary. Kentucky Statutes, 2117; Davis v. Davis, 19 R., 1520; Ferguson v. Ferguson, 8 R., 428; Clark v. Clark, 21 R., 955; Pile v. Pile, 94 Ky., 308. i</p> <p>14. Alimony an incident to divorce or may be obtained by independent action. Yol. 1 Ency. P. &• P., 417; Vol. 2 Bishop, Marriage, Divorce and Separation, secs. 488, 1067; Hulett v. Hulett, 80 Ky., 364; Tilton v. Tilton, 16 R., 538.</p> <p>Counsel for the appellee in their brief have referred to section 2122, Kentucky Statutes, that reads: “If the wife have not sufficient estate of her own she may, on a divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable, and be restored to the name she bore before her marriage if she desired it.”</p> <p>We are not insisting that this statute should, be so construed as to give to one alimony, although there has been a separation for five years, if she has left the husband without any cause, but we do maintain that, where the husband is possessed of an estate, and the pleadings and testimony show that the wife is penniless, the court, in granting a divorce, will allow alimony to the wife, in the absence of testimony showing the fault to be on the part of the wife. In other words, where there is an absence of testimony showing the wife to-' be in fault, that under this statute the burden is not upon her to. show that she was not in fault, nor was it necessary to so-allege.- The five years having elapsed the judgment for thedivcice necessarily followed, but the wife, claiming alimony, and alleging her penniless condition, and the ability of the husband to maintain her, the court would inquire into- the facts, to ascertain whether or not the wife left the home of the husband in order to obtain alimony, and that he was without, fault.</p> <p>If, as is contended, it was necessary under this five years’ statute to allege that the separation was without the fault of the wife, the failure to so allege is cured by the answer of theappellee, in which it is alleged the fault was not his, but that, of the wife, still it is not necessary to make any such averment, as the statute authorizes the divorce to either party where they have lived separate for five years, and alimony, being a mere incident of the divorce, the court may and will inquire -into the conduct of the parties in determining the-question of alimony, and in the exercise of a judicial discretion may limit the judgment to a mere question of costs, but we maintain that the discretion -in this case, on the part of the chancellor, was purely arbitrary, and the husband by the decree left in affluence and wealth, with the wife absolutely in want, but for her untiring efforts to earn a support. The testimony in this ease shows she is entirely blameless of any wrong.</p> <p>We are not insisting on the competency of the wife’s testimony, and only offered it to rebut the manufactured testimony in the shape of a letter, written by the appellee, inviting the wife to return to his home.</p> <p>The testimony of appellee’s own witnesses show the appellant to have been blameless, and whilst the wife of the appellee, no family discord was ever caused by any improper conduct on her part, but as was said by this court in Irwin v. Irwin, 96 Ky., and it applies to this case, “The coldness and indifference on the part of appellant towards his wife, etc., bordered on a degree of cruelty that must have- tended to destroy her peace of mind and render her an unhappy woman.” Page 323, section 900 of the Kentucky Statutes, providdes: “In actions' for alimony and divorce the husband shall pay the cost of each party, unless it shall be made to appear in the action the wife is in fault, and has ample estate to pay the same.”</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The wife was an incompetent witness and exceptions tu her evidence were properly sustained. Fight Master v. Fight Master, 22 Ky. Law Rep., 1512.</p> <p>2. Where the evidence tends to show no mistreatment on the' part of the husband, but on the contrary that he always treated; her well and provided for her, even though there was some evidence tending to show that she and his children did not get along well together for which he was not responsible, alimony will not be allowed. Springer v. Springer, 21 Rep., 1292.</p> <p>3. If the wife choose without cause to live separate and apart from her husband, he should not be required to contribute to her maintenance. A trivial excuse such as he would not build' a larger house, furnish no ground for her lleaving him. Wool-fork v. Woolfork, 96 Ky., 657.</p> <p>4. Exhibition of temper on the part of either husband or wife, or occasional quarrels between them that would render the marriage unpleasant; or language that would pain a sensitive woman or the manners of a husband that may appear rough in contrast with those educated in the refinement of social life, although established, constitute no ground of divorce. Beal v. Beal, 80 Ky., 676.</p> <p>5. No reasonable cause has been shown for her abandonment of her husband, and therefore, if she chooses to live separate and apart from him he should not be requirel to support her or contribute to her maintenance. Lee v. Lee, 1 Duvall, 196.</p> <p>6. It is the policy of the law to impress those who enter into the marriage relation with the idea that it is to be as permanent as their lives. Griffin v. Griffin, 8 B. M., 121.'</p> <p>7. The case of Newsome v. Newsome, 95 Ky., 383, is not at all in point with this. If the court will examine the record in that case it will see the parties had lived together till all their children were raised. The wife had helped to accumulate the estate and the separation was in effect by mutual consent for five years.</p> <p>I conclude from the examination I have made of the record:</p> <p>1. That the separation; that is; the continuous separation, created by Mrs. Boreing and existing in other States than Kentucky, was not a ground for. a divorce upon her petition; and if not, then she was not entitled to alimony in any event.</p> <p>2. Her pleadings having failed to allege that the supposititious cause of divorce had its original in the fault of the defendant, the court properly dismissed her action for alimony upon the pleadings themselves.</p> <p>3. If it should be held that this position is unsound, then there is an absolute failure of proof on .the part of Mrs. Boreing that the separation was the result of any fault at all on Vincent Boreing’s part.</p> <p>4. ' The testimony of Mrs. Boreing was so palpably incompetent that its injection into the record seems to have resulted from the hope that yoür honors would read it and be unable to disregard it in making up an opinion on the facts.</p> <p>For these reasons, it seems to me that the judgment of the court below ought to be affirmed.</p> <p>CITATIONS.</p> <p>Civil Code, sec. 423; Ferguson v. Ferguson, 8 Ky. Law Rep., 428; Pile v. Pile, 94 Ky., 308; Irwin v. Irwin, 20 Ky. Law Rep., 1761; Griffin v. Griffin, 12 B. M., 120; Lee V. Lee, 1 Duv., 196; Woolfolk v. Woolfolk, 96 Ky., 657; Cravens v. Cravens, 4 Bush, 435; Orr v. Orr, 8 Bush, 156; Bogus v. Bogus, 4 Dana, 307; Beall v. Beall, 80 Ky., '675; Lambert v. Lambert, 23 Ky. Law Rep., 592; Taylor v. Taylor (Iowa, May 12, 1890); Ñeff v. Neff, 20 Mo. App., 183; Alkire v. Alkire, 33 W. Va., '517; Martin v. Martin, Same, 695.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A wife can not legally testify against her husband.</p> <p>2. The living apart was not mutual or voluntary, and the divorce therefore was improperly granted.</p> <p>3. The living apart did not occur within the State of Kentucky, and for this reason the divorce was improperly granted.</p> <p>4. If the appellant had no cause of action for alimony when she left the home of appellee, mere lapse of time will not and can not develop or create such cause of action.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code of Practice, sec 606; Fightmaster v. Fightmaster, 22 R., 1512; Lambert v. Lambert, 23 R., -; Pile v. Pile, 94 Ky., 308; Ferguson v. Ferguson, 8 R., 428; Becket v. Becket, 17 B. M., 297; Hall v. Hall, 19 R., 1312; Tipton v. Tipton, 87 Ky., 426; Newsome v. Newsome, 96 Ky., 383; Canine v. Canine, 13 R., 124; Lee v. Lee, 1 Duv., 197; Woolfolk v. Wool-folk, 96 I<y., 657; Springer v. Springer, 19 R., 1292;1 Kentucky Statutes, sec. 2122; Irwin v. Irwin, 20 R., 1764; Lacy v. Lacy, 95 Ky., 113; Davis v. Davis, 86 Ky., 32; Beall v. Beall, 80 Ky., 675; Kent’s Com., vol. 2, p. 126; Finley v. Finley, 9 Dana, 52; Barreré v. Barrere, 4 Johnson’s Chan., 187; Logan v. Logan, 2 B. M., 146.</p>

<p>Execution Sale — Prior Incumbrances — Delay in Filing Pleading —Possession of Purchaser.</p> <p>Held; 1. Where an answer to a motion, under Kentucky Statutes, section 1689, by the execution purchaser for possession of land, was not tendered until the term succeeding .the motion, but an affidavit showed that respondent was between eighty-one ■and eighty-two years of age, and that his age and feebleness prevented an earlier offer to file the answer, refusal to permit the filing was error.</p> <p>2 Kentucky. Statutes, section 1689, provides that the purchaser of lands sold under execution, and not redeemed within one year, shall have the right, after obtaining a conveyance, to- enter a motion, on ten days’ notice, for possession of such lands. Section 1709, subsec. 1, provides that, if the lands so sold are incumbered, the purchaser at the sale shall acquire a lien for the .purchase money and interest, subject to prior incumbrances. Subsection 3 provides that the defendant in the execution may redeem the property so sold by paying the original incumbrance with legal interest, and by paying the purchaser his purchase money with interest. Held that, where land sold at an execution sale was incumbered, the- purchaser had no right to possession under section 1689, but that the execution defendant might redeeem at any time during the continuance of the original incumbrance; the execution purchaser acquiring only a lien subordinate to such incumbrance.</p>

<p>Case 59 — Action of Ohio Valley Banking & Trust Company as Assignee of J. H. McAllister, against J. H. McAllister, to .Subject the Remainder Interest of Assignor in Land, to His Creditors. — Jan. 15.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>PROPOSITIONS' DISCUSSED.</p> <p>1. A deed of general assignment for the benefit of creditors conveying “real and personal estate of every description” owned by assignor does not embrace or convey a contingent' remainder interest devised to the assignor.</p> <p>2. Where a contingent remainder in land is devised and the contingency happened, after an assignment has been made by the devisee for the benefit of his creditors, the title vests in the devisee on the happening of the contingency and is after acquired property.</p> <p>AUTHORITIES.</p> <p>Am. and Eng. Ency. of Law, 2d ed., p. 99; Am. and Eng. Ency. of Law, 2d ed., p. Ill and notes; Am. and Eng. Ency. of Law, 1st ed., vol 20, p. 969"and notes; Challis’ Real Prop., 58; Eearne on Remainders, 552; Matter of Ryder, 42 Am. Dec., 109; In re Benson, 16 N. B„ 377; 8 Biss, 116; Fed. Cas. 1, 328; Lepps v. Lee, 17 S. W., 146; Loeb v. Struck, et at, 42 S. W., 401; Goatley, etc. v. Crowe, etc., 66 S. W., 1030.</p> <p>Our contention is:</p> <p>That it does not matter whether appellant’s interest in the land in question be held to be a vested remainder or a contingent remainder, it was vendible, the subject of voluntary or compulsory sale and is such an interest in or claim to real estate as may be disposed of by deed or will in writing under section 2341, Kentucky Statutes, and beyond question passed to the assignee under the deed of assignment “of all other real and personal estate of every description owned by the assignor.”</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sec. 2341; Overton v. Means, 2 Ky. Law-Rep., 211; Kneiler v. Shrieve, 78 Ky., 297; White’s Trustee v. White, 86 Ky., 602; (9 Ky. Law Rep., 757, 7 S. W., 26.)</p>

Case 60 — Action by Milton Johnson against C. F. Zweigart for Legal Services, &c. — Jan. 16. APPEAL FROM MASON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. AUTHORITIES. 1. When a sale is made to secure the repayment of money advanced the law regards' it as a mortgage, whatever may be-its form and whatever name the parties may choose to give it. Flagg v. Mann, 2 Sumner, 486; Allen v. Brown, 23 Ky. Law Rep., 217. 2.

<p>Municipal Corporations — Street—Low Limbs of Trees — Employe of City — Contributory Negligence — Pleading—Liability of City.</p> <p>Held: 1. The fact that the appellee was the servant of the city, driving .a patrol wagqn, did not impose on him the duty to negative contributory negligence by «averring in his petition that he did not know the condition of .the street, where he was injured, as it was no part of his duty to examine the streets and report upon their condition.</p> <p>'2. A city is liable under its duty to keep its streets in good condition, for injury to one, who, without contributory negligence, is driving a wagon along a street, and is thrown therefrom by looming in contact with a large limb of a tree projecting over the street dangerously low.</p>

Case 62 — Action by City of Louisville against R. W. Wooley ani> Others to Recover Taxes. — Jan. 21. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Plaintiff and Defendants Appeals.

Case 63 — Action by Citizens’ .Savings Bank against J'. P. More-land's Admr. and Others on a Bill oe Exchange. — Jan. 21. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment fob Plaintiff and Defendants Appeal.

Case 64 — George Cook was Convicted of Murder and Appeals.— Jan. 23. APPEAL FROM BELL CIRCUIT COURT. Dependant Convicted op Murder and Appeals. 1. The writer of this brief was counsel for appellant at the time he was convicted and defended him on said trial, but he was not his original counsel in the case, although he was the-attorney for other defendants jointly indicted with appellant, some of whom had been previously tried and convicted and others acquitted.

Case 65 — Elliott Arnett was Indicted for Murder and Convicted of Voluntary Manslaughter and Appeals. — J'an. 28. APPEAL FROM MAGOFFIN CIRCUIT COURT. Defendant Convicted of Manslaughter and Appeals. — 1.

Case 66 — Hiram Jones was Indicted for Murder and prom an Order “Filing Away” the Indictment He Appeals. — Jan. 28. APPEAL PROM BELL CIRCUIT COURT. From an Order “Filing Away” an Indictment, Dependant Appeals. Reversed. The appellant was indicted in the Bell circuit court for murder.

<p>School Districts — Trustees—Acts or Board — Employment of Teacher — Notice of Meeting.</p> <p>Held: Under Kentucky Statutes, section 4445, providing that “the trustees in their corporate capacity at a meeting, called for that purpose, shall employ a qualified teacher and agree with him as to compensation,” a contract employing a teacher executed by two of the three trustees at a meeting in the county jail where one of them was confined, of which meeting the third trustee had no notice, is void.</p> <p>2. It is necessary that a contract, to be binding on the district, ■ should be executed at a board meeting at which all three of the trustees are present, and no' meeting can be held unless all 1 are present, or unless the absent member has had notice, provided the absent member is in the county and with reasonabl effort ' and diligence the notice could have been served on him.</p> <p>3. - The fact that the absent trustee had expressed himself in opposi- . tion to employing the person contracted with, did not render'. 1 a notice to him of the meeting unnecessary.</p>

<p>Held: 1. Plaintiff effected insurance on his property for a term -of years, the premiums to be paid annually. He paid the premium for the first year, and gave a note for the deferred premiums, the note and policy providing that, if any installment was not paid when due, the company should not be liable for loss during such default, and the policy should lapse until payment should be made. The first installment, due in June, was not paid, and the company sent the note to its nearest agent to collect. During the next six months the agent sent plaintiff three notices, each demanding payment of the full amount of the installment, and in January returned the note to the company as uncollectible. On March 19th plaintiff mailed a check for the full amount of the installment, which was never received. On March 23d the property was burned. Held, that the company, by demanding payment of tbe full amount of the installment long after it was due, waived the conditions providing for lapse ■of the policy during default, and -thereby continued the policy in force.</p> <p>2. The check was not received or accepted as payment, or pleaded as such, and was never paid, and plaintiff did not at that time ■or thereafter have sufficient funds in the bank on which it was drawn to have paid tbe check. Held, that the mailing of the check was not payment of the installment due, hut in an action to recover under the policy, evidence of the mailing of the check was relevant as tending to show that plaintiff had not abandoned his contract, and that he considered himself bound thereon.</p>

Case 69 — William McCarty was Convicted of Murder and Appeals, , — Jan. 28 APPEAL PROM PAYETTE CIRCUIT COURT. Judgment Fixing Death Penalty. Our contention is: 1. That at the time of the killing appellant was so mentally exercised over the discovery oí the infidelity of his wife as to be irresponsible for his acts. 2. At any rate, if guilty at all, he is only guilty of killing in sudden heat and passion and should not, under the evidence, have been found guilty of murder. 3.

Case 70 — Action by Charles Speakman against the Chesapeake & Nashville Railway for Personal Injuries. — Jan. 29. APPEAL FROM ALLEN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. An acknowledgment of a tort, accompanied by a promise to make amends therefor, does not suspend the operation of the statute of limitations, and is not such an obstruction of the .prosecution of an action as contemplated by section 2532, Kentucky Statutes.

Case 71 — Action by August Rodemer against George Rettig, Executor, and Another on a Note. — Jan. 29. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals. George Rettig being indebted to his wife’s mother, Mrs. Rodemer in the sum of $2,000, executed to her his note, as follows: “Covington, Ky., March 3, 1896. One day after date, I promise to pay to the order of Barbara Rodemer, $2,000, with interest at five per cent, per annum.

<p>Case 72 — Action by L. J. Moobe against Boabd of Education City of Lexington, &c. to Enjoin the Payment of an Increase Salary to City Treasurer. — Jan. 30.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>Our contention is that section 161 of the Constitution refers to a change made in the salary or compensation for services of an officer by the political body or authority charged with the duties of fixing such salary. The city did fix the compensation of the city treasurer for the services to he rendered to the city, but did not fix the compensation to be rendered by him for the Board of Education. He acted in a dual capacity, and each of the corporations deals with him in many respects as if the services performed by him were rendered by different persons. While the statute does not in express terms confer upon the Board of Education the power' to provide a salary to the city treasurer for services he is required to render the hoard, it is apparent that it contains no limitation upon its power to-make such provision, and we contend that the power given the board to require services to be rendered by tbe treasurer, carries with it an obligation to provide compensation for such services.</p> <p>Our contention is:</p> <p>1. That the act of the school board in giving the city -treasurer, ■Kaufman, the salary charged in the petition is not within the powers delegated to the board under the law creating it a corporation.</p> <p>2. If the act is not a violation of its charter, then it is a violation of the Constitution of the State.</p> <p>In the absence -of express authority, -the board of education can not legally pay out a-ny money as compensation to a treasurer.</p> <p>We claim that the law creating the said board does not give it the power to pay the city treasurer any salary in addition to that provided by the city council. Its duties are to conduct the public schools of the city.</p> <p>The act complained -of in the petition is in violation of the Constitution for two reasons, (1) because it- increases the salary of the city treasurer during his term of office, and (2) because it diverts the common school fund from the- purpose to which it is dedicated by the Constitution.</p> <p>The city treasurer is ex officio treasurer of the hoard of education, and no officer is entitled to compensation for performing ex officio services except that allowed as his stated salary or by express provision of some statute.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky 'Statutes, secs, 3-132, 3212, 3-214, 3215, 3219, 3220, 3226, 3227; Kentdcky Constitution, secs. 161, 235; Black on Interpretation of Laws, p. 319; Anderson v. City of Wellington, 10 Am. St. Rep., 175; Kneper v. City of Louisville, 7 Bush, 603; City of Covington v. Mayberry, 9 Bush, 304; Collins v. Henderson, &c., 11 Bush, 74; Halbert v. S'parks, 9 Bush, 259; Underwood v. Wood, &c., 14 Ky. Law Rep., 129; Posy, Supt., &c. v. Board Trustees, 19 Ky. Law Rep., 466.</p>

<p>Case 73 — An Action by J. L. Watkins against Pat Mooney, Involving THE TITLE TO THE OFFICE OF MEMBER OF THE BOARD OF Police and Fire Commissioners of the City of Lexington.— Jan. 30.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>From a Judgment Dismissing Plaintiff’s Petition, He Appeals.</p> <p>J. Soule Smith having resigned as a member of the board of police and fire commissioners of the city of Lexington, the mayor appointed the appellant, J. L. Watkins to fill the vacancy, who took the oath of office and entered upon his duties. A few days thereafter, the mayor went to the city of Frankfort, twenty-five miles distance, which is connected with the city of Lexington by train and by telephone and telegraph, and was gone about twenty-four hours. During this absence, certain members of the board of aldermen in pursuance of a prearrangement had the president of the board of aldermen, assuming to act as mayor, to call the general council together in special session at nine o’clock in the morning, to whom he reported the appointment of Watkins, previously made by the mayor, which appointment the board rejected, and the president of the said board then appointed the appellee, Mooney, to said office, which appointment the said hoard confirmed and then adjourned.</p> <p>When the mayor returned from Frankfort he repudiated everything that had been done in his absence, as illegal, refused to recognize the change that had been made and continued to recognize Watkins as a member of the board of police and fire commissioners.</p> <p>The appellant, Watkins, has filed his petition in the Fayette circuit court setting up these facts and asking that he be adjudged to be entitled to said office with a prayer for an injunction to which petition a demurrer was sustained by the lower court and his petition dismissed, from which judgment this appeal is prosecuted.</p> <p>Our contention is:</p> <p>1. That the president of the board of aldermen can never act as mayor unless the public interests require arid make it the duty of the mayor to act then, and he is unable to act; that when such an occasion is presented the right of the president of the board of aldermen to act is limited to the necessities of the particulai emergency; that his right to act does not draw to him all of the power of the mayor.</p> <p>2. That the word “absence” used in the statute doeis not mean mere physical absence, but such absence as will prevent the mayor from performing an urgent duty which the public interests require should not be delayed.</p> <p>3. Assuming for the sake of argument that the absence referred to means physical absence, the plaintiff could not be ousted from his office in the manner attempted.</p> <p>4. Assuming that the plaintiff is an officer de facto, and that there exisis a real and honest contention concerning the title to the office, is he not entitled to be protected in his .possession of the office by the writ of injunction?</p> <p>REFERENCES AND CITATIONS.</p> <p>Kentucky Statutes, .secs. 3203, 3204, 3049, 3137, 3108; High ■on Injunctions, 3d ed., secs. 1312, 1315 and cases cited; Meehem ■on Public Officers, sec. 994, and eases cited; Beach on Modern Equity Jurisprudence, sec. 671, and cases cited; Steiglen v. Beach,, Circuit Judge, (Mich. 1901), 87 N. W., 449; Rhodes v. Driver, (Ark. Nov., 1901), 65 S’. W., 106; People, ex rel. Tennant v„ Parker, 3 Nebraska, 409; s. c., 19 Am. Rep., 634; State ex rel. Warmouth v. Graham, 26 La. Ann., 568; s. e., 21 Am. Rep., 551; People v. La Combe (N. Y.) IN. E., 599; Mayor of Detroit v. Moran, (Mich.) 9 N. W., 252; O’Malley v. McGinn, (Wis.) 10 N. W., 515; State v. Byrne, (Wis.) 73 N. W., 320;. Lynde v. Winnebago County, 16 Wall., 6; In re Cleveland v. Mayor, (N. J.) 18 alt., 67; People v. Van Anden, (Mich.) 74 N. W., 1009; Bernard v. Taggart, (N. H.) 25 L. R. A., 613.-</p> <p>SUMMARY.</p> <p>1. The motives of a co-ordinate branch of government will not be inquired into by the judiciary, where the power exercised ■or the act done comes within the domain of its delegated or authorized powers or acts. Taylor v. Beckham, 21 Ky. Law Rep., 1743.</p> <p>2. Where a quorum is present, a majority of a quorum can do-any legal act, even though other persons present take no part. Wheeler v. Commonwealth, 98 Ky., p. 63; Launtz v. The People, ex rel. Sullivan, 113 111., 137; State, ex rel. Shinnich v. Green, 37 Ohio St., 227; Rushville Gas Company v. City of Rushville, 23 N. E. R., 72; State of Ohio, ex rel. Cline v. Wilkesville Township, 20 Ohio St., 288.</p> <p>• 3. Under the charter of cities of the second class the approval of the board of aldermen is necessary before the appointment of a person to the position of a member of the board of police and fire commissioners is complete. .S'ec. 3108, Kentucky Statutes; sec. 3137, Kentucky Statutes.</p> <p>4. Under the charter of the city of Lexington, the president of the board of aldermen has the right to act as mayor during the absence or disability of the mayor, and has the right to perform every act, which the mayor could have performed, if present. Secs. 3204 and 3203 of Kentucky Statutes; People,' ex rel. vennant v. Parker, 3 Neb., 409; Warmouth v. Graham, 26 La., 568, Mayor of Detroit v. Moran, 9 N. W., 252; O’Malley v. McGinn, 10 N. W., 517; State v. Byrne, 73 N. W., 320; People v. Van Anden, 74 N. W., 1009; Lynde v. Winnebago County, 16 Wall., 6; In re Cleveland, 18 Atl. Rep., 67.</p> <p>5. The injunction was properly refused by the court.</p>

Case 74 — Action by E. W. Blue, &c. against R. M. Waters fob Specific Performance of a Contract for the Sale of Real Estate. — Jan. 30. APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment fob Defendant and Plaintiffs Appeal. — Reversed. The questions to be considered by the court are: 1. Had the Louisville chancery court any jurisdiction to partition real estate at the suit of the executors of a decedent’s estate? 2.

Case 75 — Action by Thomas R. Hay against the City of Lexington foe Damages to his House and Lot by Raising the •Street and Thereby Throwing Water on His Premises.— Feb. 3. APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. POINTS AND CITATIONS. 1. The trial court erred in peremptorily Instructing the jury at the conclusion of the testimony for plaintiff to find for the defendant. 2.

<p>Assignment for ■ Creditors — Revocation of Trust — Death of Assignor — Discharge of Assignee — Effect—Appointment of Receiver — Sale of Bank Books. »</p> <p>Held: 1. Neither death of one who makes an assignment for the benefit of creditors nor an order of the court discharging the assignees from further connection with the trust estate and releasing their sureties from further liability revokes the trust, or deprives the creditors of any right they acquired by the assignment, but on petition of a creditor a receiver will be appointed to look after and apply assets which have not been collected.</p> <p>2. The bank books of a banker who has made an assignment for creditors, and which are the evidence of the assets of the trust estate, should not themselves be sold.</p>

<p>Primary Elections — Ballots—Recounting—Notice of Contest— Mandamus — Petition.</p> <p>Held: 1. Kentucky Statutes, section 1563, provides tkat in all cases of contest tlie governing authority of a political party holding a primary election shall have power to hear and determine the same in such manner as the committee shall determine. Held, that a written notice from a candidate to the committee that he proposed making a contest, where no contest had in fact been made, was not sufficient to require the committee to recount the ballots,</p> <p>2. Where a petition for a mandatory injunction to compel a committee of a political party to recount the ballots at primary election, averred that plaintiff, who was a defeated candidate, after notice to the committee, had demanded such recount; that he believed it would show that he had received a plurality of the votes; and that the committee refused his written request therefor, or to make any arrangement for deciding the contest which he proposed to make; but failed to allege any fraud, wrongdoing, or mistake on the part of the committee or any of the officers of the election,- — it was demurrable.</p>

<p>■Case 78 — Three Actions Heard Together Involving the Liability of the Various Parties on Certain Notes Including Usurious Interest and Questions of Evidence, &c. — Feb. 3.</p> <p>appeal from mercer circuit court.</p> <p>From the Judgments Edgar Alexander Individually and as Administrator of Artie Alexander Appeals.</p> <p>Appellants complain of the judgment herein:</p> <p>1. Because of the dismissal of the petition against First National Bank.</p> <p>2. Because it does not adjudge a recovery for double the amount of all of 'his claims against the- Mercer National Bank.</p> <p>3. Because it treats the transaction of April 23, 1895, as a novation.</p> <p>4. ÍJccause it renders the estate of Artie Wilson liable for the-debts.</p> <p>5. Because it directs a sale of the land to satisfy the judgments-rendered against appellant, Edgar Alexander, &c.</p> <p>6. Because it allows interest on appellee’s debts from the date-of filing their petition and cross-petition.</p> <p>(1) Our contention is that the forfeiture as to the First National Bank should extend to the note for $6,728.09 dated September 13, ' 1893, due in ninety days, and that judgment should have been rendered for this sum, only leaving out the sum of $3,024.74 of accumulated usurious interest by renewals.</p> <p>(2) The Mercer National Bank note was calculated upon. , an amount which contained over $500 of usurious interest, and under the statute authorizing such -recovery we think Alexander-was entitled to judgment for double the amount re-presented in this claim.</p> <p>(3) It is contended that the interest paid October 26, 1898, even if usurious was paid in consideration of a continuance of' a suit and therefore can not be recovered. We contend that the agreement shows that these sums were paid as interest upon ■the debts of plaintiff and defendant, Mercer National Bank, and that the calculation though at six per cent, was made upon amounts containing about $4,000 usury and that the transaction was therefore usurious.</p> <p>(4) The judgment against Artie Alexander’s administrator-is erroneous because there is no affidavit supporting the claim of either bank as required by law.</p> <p>We think the facts in this case show conclusively that the-transactions of April 23, 1895, were all made in view of a. settlement of T. F. Alexander’s estate and that the obligations. assumed by Edgar and bis sister constituted a mere continuance of an obligation already existing and should not be treated as a novation.</p> <p>AUTHORITIES CITED.</p> <p>Taul v. Sears, 11 Ky. Law Rep., 866; Stucky, assignee, v. Brown & Co., 11 Ky. Law Rep., 404; Worlhly v. Hammond, 13 Bush, 510; .Hill v. Cornwall, 16 Ky. Law Rep>;) 106; Rudd v. Anderson, 12 Ky. Law Rep., 489; Snyder v. Mt. Sterling Bank, 15 Ky. Law Rep., 4; Usher’s Exr. v. Flood, 12 Ky. Law Rep., 721.</p> <p>We claim that the record shows that the loan as made to> Edgar Alexander and Artie Alexander' by the First National Bank on April 23, 1895, of §8,502,20, and note that'day given, for §8,847.94 due in six months after date, was a new, independent and separate transaction; that Edgar Alexander cannot go back of that date for usury against the bank; that bylaw Artie Alexander as administrator of T. F. Alexander can; not renew a note; that when a note is assigned without recourse in law or equity, that is the end of it.</p> <p>2. That Edgar Alexander can not be relied on as a witness.</p> <p>3. That the payment of the §438.97 made by Ed. Alexander on October 25, 1898, was for time and indulgence.</p> <p>4. He who seeks equity must do equity. Edgar Alexander obtained more in the lower court than he was entitled to. He has had the use of T. F. Alexander’s 220 acres, Artie Alexander’s eighty acres and his own 200 acres since April, 1895, and we ask that the judgment be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>On .questions of novation or new note on 23 April, 1895. See Morse v. Wilcox, 17 Law Rep., pp. 19 and 30.</p> <p>2. On weight of testimony, see Humphrey & Co. v. Brown’s Administrator, Law Rep., vol. 23, No. 1, pp. 26 and 27.</p> <p>3. On questions as to time, interest should commence, see Second National Bank of Richmond v. Fitzpatrick, Law Rep., vol. 23, No. 7, p. 610, also, Citizen’s National Bank of Dan-ville v. Forman’s Assignee, Law Rep., 22, vol. 23, No. 7, p. 613.</p> <p>4. On questions of affidavit and demand as to Artie Alexander, deceased. See Coekrill & Co. v. Mize, 11 Law Rep., p. 637; Gay v. Marshall, 12 Law Rep., p. 103; Huffman v. Moore’s Administrator, 19 Law Rep., p. 461; Tipton v. Richardson, 21 Law-Reporter, p. 1195.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. A national bank that charges usury in violation of U. S. Rev. S't. section 5198, forfeits the entire interest the note carries with it, but in an action on the note, the bank is entitled to recover the original, principal debt with interest from the commencement of the suit. Brown v. Marion National Bank, 169 U. S., 416; Second National Bank v. Fitzpatrick, 23 R.</p> <p>2. As such forfeiture extends only to the interest that an existing note (which embraces every note of which the note in suit is proximately or ultimately a renewal) carries with it, or .which has been agreed to be paid thereon, it does not extend to such interest as may have been carried with, or agreed to be paid on, a note already cancelled, or extinguished, as</p> <p>(a) By payment. U. S. Rev. Stat., secs. 5197, 5198; Story on Prom. Notes, 2d ed., sec. 372; Brown v. Marion National Bank, 92 Ky., 607; Hendrick v. Lindsay, 93 U. S., 143.</p> <p>(b) By novation. 2 Bouv. Law Diet., “Novation, 241; Story on Prom. Notes, 2d ed., secs. 438 and 63; 16 A. & E. Ency. L. 1st ed., 862 and 876 and note; 11 A. & Eng. Ency. L., 2d ed.,. 914 and note, 932 and 973; 'Studebaker Mfg. Co. v. Montgomery, 74 Mo., 101; Hoagland v. Farmers’ and Mechanics’ Bank, 7 Fed. Rep., 159; Hyde v. Booraem, 16 Peters, 167 at p. 178; Smith v. Young, 11 Bush, 393; Webb on Usury, sec. 452; Lyman v. Bank U. S'., 12 How. (U. S.) 239, p. 243; S'pencer v. Society of Shakers, 23 R.; Culver v. Wilbern, 48 Iowa, 26; Morse v. Wilcoxson, 17 R., 29; Brown v. Marion National Bank, 92 Ky., 607 and 18 R., 186. Distinguishing. Snyder v. Mt. Sterling National Bank, 94 Ky., 231; Hill v. Cornwall, 95 Ky., '512; Rudd v. Anderson, 12 R., 489.</p> <p>3. Such forfeiture will not he declared unless the party seeking it make convincing proof of every fact essential to forfeiture. Wheeler v. Union National Bank, 96 U. S., 268.</p> <p>4. A doubt whether usury has been taken will be resolved in favor of the hank. Timberlake v. First National Bank, 43 Fed. Rep., 231.</p> <p>5. There can be no recovery under U. ,S. Stat., see. 5198 of the penalty of twice the amount of interest paid within two years unless it constitutes usury. Ruffner v. Hogg, 1 Black, U. S'., 115; Brown v. Marion National Bank, 169 U. S., 416; 27 A. & E. Ency. L., 1st ed., 922 note, and 1043; Webb on Usury, sec. 416; New Jersey, &e. Co. v. Turner, 14 N. J. Eq., 326; Graeme v. Adams, 23 Grat (Va.) 225; 1 Bouv. Law Diet., p. 598; Eddy’s Exr. v. Northrup, 15 R., 434.</p> <p>G. It is essential to recovery o£ such penalty that it should affirmatively appear that usury was knowingly received hy the bank. Wheeler v. Union National Bank, 9G U. S., 268.</p> <p>7. If there be a doubt whether a transaction is usurious the doubt must be resolved in favor of its validity. Timberlake v. First National Bank, 43 Fed. Itep., 231.</p> <p>8. Verification and demand of a claim against the estate of a decedent equally imperative under Kentucky Statutes, section 3S72, are equally unnecessary, where an action begun against the decedent in his lifetime is, after his death revived against his personal representative. In such a case the statute does not apply Kentucky Statutes, secs. 3870, 3872; Tipton’s Admr. v. Richardson, 21 R., 1195; Huffman v. Moore’s Admr., 19 R., 462. Overruling, Worthley v. Hammond, 13 Bush, 510; Stucky,. Assignee v. Brown and 11 R., 404; Taul v. Sears, 11 R., 366.</p> <p>9. But even if verification and demand, or verification alone,, were originally necessary, they, one and both, were waived.</p> <p>(a) By failure to make the objection in the court below.. Shire’s .Admr. v. Johnson, IS R., 853.</p> <p>(b) By completion of the issues and trial had upon the merits, without making the objection. Gray v. Marshall, 12 R., 103; Tipton’s Admr. v. Richardson, 21 R., 1195.</p>

Case 79 — Action by J'ohn F. Murphy against the B. & O. S'. W. R. R.' Company to Recover Damages for Personal Injury!— Feb. 3. APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. CLASSIFICATION OF QUESTIONS OF LAW. 1. Even if a brakeman discovers danger, where the whole transaction is the occurrence of a moment, he is not to be held responsible if he errs as to the estimate of danger that -confronts him.

<p>City Attorney — Compensation—Voluntary Service after Term Expired.</p> <p>Held: ■ 1. Under Kentucky Statutes, section 3314, providing that a city attorney shall be paid an adequate annual -salary, and, in addition, “ten per cent, on -all sums recovered and collected by him for the city,” where an action was brought against the city to enjoin the -collection of a tax, which action was successfully defended through the State courts by the city attorney, and judgment entered and affirmed -on appeal for a penalty- against the plaintiff in such action, such attorney was entitled to ten per cent, on the amount of .such penalty, but not on the amount of the tax.</p> <p>2. Where an action against a city, successfully defended by the city attorney through the State courts, was appealed to the supreme court of the United States, and, after such attorney’s term had expired, he, without the request of the city, went to Washington, and assisted hi.s successor in the case, the city was not liable to him for bis expenses so incurred, or for such services.</p> <p>3. Where a city attorney recovered a money judgment for the city in the county and -State supreme ¡courts, the fact that collection was delayed, until -after hi-s term expired, by an appeal to the supreme court of the United States, with supersedeas bond, -did not deprive him of his right to ten per cent, of the amount so recovered.</p>

<p>Case 81 — -Action by Mary J. Goodin against John H. Wilson to Enforce a Lien on Land on which Execution had Been Levied, but to which the Owner had Only an Equitable Title. — Feb. 4.</p> <p>APPEAL FROM KNOX CIRCUIT COURT.</p> <p>Judgment fob Defendant and Plaintiff Appeals.</p> <p>The contention of counsel for appellant is that where an execution debtor has purchased a traot of land at commission-er’s sale and said sale has been reported to court and confirmed by the court, that the title to the land thereby vests in the purchaser to such an extent that it is subject to a levy of an execution thereon against such purchaser, and that by the levy of such execution the execution creditor thereby acquires a lien on the land which a court of equity should enforce in an equitable action-therefor.</p> <p>AUTHORITIES CITED.</p> <p>Ball, &c. v. First Nat. Bank Covington, 80 Ky., 502; Hughes v. Swope, 88 Ky., 257; Robertson v. Robertson, 14 Ky. Law Rep., 505; Kentucky Statutes, 1681.</p> <p>Appellant admits that the sale of the appellee’s interest in the land acquired by reason of his purchase at commissioner’s sale and the confirmation of such sale, could not be sold under the levy of an execution thereon, but now comes into court and attempts to do indirectly what is admitted could not be done directly. In other words it is admitted that a sale of the land can not be made under the levy, yet it is contended that the levy gives a Hen which is enforceable by the courts.</p> <p>The appellee contends that as no levy upon landed interests can be made without statutory authority, therefore no Hen can be acquired under a levy not authorized by statute, and further, that there is no statute authorizing a levy on land to which the execution defendant has no legal -title and that the confirmation of a sale made by a commissioner does not invest the purchaser with the legal title.</p> <p>AUTHORITIES CI.TED.</p> <p>Sec. 1681, Kentucky Statutes; Newsom v. Kurtz, 86 Ky., 277;. Whitaker v. Cornett, 14 Ky. Law Rep., 871; 17 A. & E., 1029..</p>

Case 82 — Jonah Hardin was Indicted and Convicted of Maliciously Shooting and Wounding Another with Intent to Kill. APPEAL FROM LOGAN CIRCUIT COURT. Defendant Convicted and Appeals.

Case 83 — Prosecution against Robert Ingram for Seduction Under Promise of Marriage. — Feb. 5. APPEAL FROM METCALFE CIRCUIT COURT. Defendant Convicted and Appeals. The defendant admits the seduction and seeks to relieve himself of the law’s just penalty for the offense, by saying that he desired to marry her and offered to do so.

Case 84 — Action by Henry P. Raleigh against J. Edward Clark for Damages from Surface Water. — Feb. 6. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. The issues as joined by the parties were; 1.

<p>Case 85 — Action by James Conley against James E. Anglin to Set Aside an Alleged Fraudulent Conveyance. — Feb. 6.</p> <p>APPEAL FROM CARTER CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p>

Case 86 — -Action by W. E. Logsdon against L. & N. R. R. Co. for Personal Injuries. — Feb. 10. appeal from hart circuit court. Judgment for Plaintiff and Defendant Appeals. CLASSIFICATION OF POINTS DISCUSSED. 1. Many of the remarkable averments of the petition are either positively disproved by, or fail to be supported by, the evidence. 2. The evidence substantially stated and analyzed. 3.

<p>Malicious Prosecution — Probable Cause — Question for Court— Instructions — Malice.</p> <p>Held: 1. What facts are sufficient to constitute probable cause, in an action for malicious prosecution, is a question of law, for the court.</p> <p>2. Where, in an action for malicious prosecution, it was clearly proved that plaintiff had collected money for defendant insurance company, and had not charged himself with it or accounted therefor, and had failed to make good the amount after the default was discovered, it was error to fail to charge that, if the jury believed such facts, then there was probable cause for plaintiff’s arrest, and they should find for defendant.</p> <p>3. In an action for malicious prosecution, plaintiff must prove malice in fact, which is an evil or unlawful purpose in causing plaintiff’s arrest, as distinguished from a motive to promote justice.</p>

<p>Case 88 — Action by the City op Louisville against D. F. Murphy, Assessor op Said City to Enjoin Him from Assessing the Franchises of Certain Public Service Corporations for Taxation for City Purposes — Feb. 10.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Repeals by implication are not favored, and where the Legislature has had its attention called to a particular subject and provided for it, the Legislature can not reasonably he presumed to intend to alter the special provision by a subsequent general enactment. Endlich on Interpretation of Statutes, sec. 223; Sedgwick on Statutory Construction, .sees. 157, 158; Sutherland on Statutory Construction, see. 157; Cope v. Cope, 137, U. S„ 682; McChord v. L. & N. R. R. Co., 183 U. S„ 483; •Commonwealth v. Cain, 14 Bush, 583; Thorpe v. Adams, 1 L. R., 6, C. P., 135; Fitzgerald v. Champenys, 30 L. J. N. S. Eq., 782.</p> <p>2. The act of 1898 providing for the assessment of corporations therein named by the local assessor for local purposes is not in conflict with either sections 51, 60 or 156 of the Constitution. Purnell v. Mann., 20 Ky. Law Rep., 1146.</p> <p>Our contention is:</p> <p>1. The board of valuation and assessment alone has power to value and assess .the franchises of public service corporations for municipal taxation.</p> <p>2. The acts of March 19, 1898 and March 23, 1900, were and -are unconstitutional and void, being in violation of sections 51, 60 and 156 of the .State Constitution.</p> <p>AUTHORITIES CITED.</p> <p>STATEMENT.</p> <p>Sess. Acts 1898, pp. 96-102; Sess. Acts 1902, pp. 281-392; Sess. Acts 1900, pp. 89-90.</p> <p>1. Sess. Acts 1891-2-3, pp. 277-366; lb., 981-1002; Sess. Acts 1900, pp. 65-67; Lyddy v. Long Island City, 104 N. Y., 218; Co. Litt., 112; Shep. Touchst, 88; Sims. v. Doughy, 5 Ves., 243; Constantine v. Constantine, 6 Ves., 100; Morral v. Sutton, 1 Phila., 533; Ely v. Thompson, 3 A. K. Mar., 70; Graham v. Luckett, 6 B. Mon., 146; Endlich on the Interpretation of Statutes, see. 200, p. 269; People v. Lytle, 1 Idaho, 161; Commonwealth v. Kelliher, 12 Allen (Mass.), 480, 481; Herron v. Carson, 26 W. Va., 62; State v. Williamson, 44 N. J. L., 165; Endlich, sec. 206, p. 275; Payne v. .Connor, 3 Bibb, 180; Korah v. Ottawa, 32 111., 121; Gwinner v. R. R. Co., 65 Pa. St., 126; People v. Van Nort, 64 Barb. (N. Y.), 205; Endlich, sec. 231, pp. 310-11: Endlich, sec. 241, pp. 320-21; Long v. .Stone, 19 R., 246; Combs v. Crawford, Tb., 1510; Fultz v. Crofton, lb., 1921; Buebannon v. Commonwealth, 95 Ky., 334; Broaddus v. Broaddus, 10 Bush, 306-8; Adams v. Ashby, 2 Bibb, 97; Hickman v. Llttlepage, 2 Dana, 345; Dougherty v. Commonwealth, 14 B. Mon., 244.</p> <p>2. Act of March 19, 1898; Act of March 23, 1900; Secs. 51, 60, 156 of the State Constitution.</p>

<p>Case 89 — Action by Kentucky Chautauqua Assembly against City of Lexington, Etc., to Enforce Contract with the City fob. the Sale of Woodland Paek. — Feb. 10.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment Overruling General Demurrer to Plaintiff’s Petition and Defendants Appeal.</p> <p>This is a friendly suit to test the validity of an ordinance of the city of Lexington authorizing the submission to a popular vote the proposition to purchase the grounds of the Kentucky Chautauqua Assembly lying partly within and partly without the city, consisting of about twenty .acres, to be used by the city for a public park. The vote having carried, the mayor was called on to issue the bonds of the city for the agreed price, $38,000, and to accept the deed tendered by tne plaintiff, and. having some doubts as to the validity of the purchase, he declined to issue said bonds or to accept the deed, hence this suit to enforce the contract.</p> <p>A. petition was filed by the Kentucky Chautauqua Assembly setting out the facts above recited to which the city and mayor filed a general demurrer, which, being overruled by the court, the city declined to plead further and from the judgment entered enforcing said contract the city appeals to test the validity of said purchase.</p> <p>We submit:</p> <p>1. That the city has the .power to contract for and purchase the property in question for a public park .and pleasure grounds for the city.</p> <p>2. That the power in this case has been lawfully exercised.</p> <p>AUTHORITIES' CITED.</p> <p>Holder v. City of Yonkers, 56 N. Y. ,S., 912 (iS. C., 39, App. Dev., 1); Richmond, &c. v. Town of West Point, 94 Va., 668 (S. C., 27, S. E., 460); Modern Law Mun. Corp., see. 623; A. & E., vol. 20, p. 1184, Kentucky Statutes, sees. 2840, 2859, 3070, 3073, 3190, 3195, 3637, subsec. 1; Louisville v. Dupont, &c., 23 R., 106; In re Mayor, 99 N. Y., 569 (IS. C., 2 N. E. Rep., 642); St. Louis v. Griswold, &c., 58 Mo., 175, 15 Wend., N. Y., 374; Belknap v. City Louisville, &c., 99 Ky., 474; Montgomery Fiscal Court v. Trimble, 20 Rep., 827.</p>

<p>Case 90 — The Louisville & Nashville R. R. Co. was Indicted and Convicted op Unlawful Discrimination in Freight Charges Under the “Long and Short Haul” Statute. — Feb. 11.</p> <p>APPPEAL FROM MARION CIRCUIT COURT.</p> <p>Defendant Convicted and Appeals.</p> <p>POINTS AND CITATION.</p> <p>1. An indictment can not be properly found against a carrier, for violating the Constitution and ’Statutes prohibiting a carrier charging more for a short than a long haul, until after •the circumstances .and conditions incident to such transportation have been investigated by the railroad commission, and a recommendation to the grand jury that indictments be returned for offenses, which the commission refuses to exonerate. ■Constitution, sec. 218; Kentucky Statutes, sec. 820; L. & N. R. R. Co. v. Commonwealth, 20 Ky. Law Rep., 1386; L. & N. R. R. Co. v. Commonwealth, 21 Ky. Law Rep., 235; I. C. R. R. Co. v. Commonwealth, 23 Ky. ^,aw Rep., 1159.</p> <p>2. The railroad commission has control of all prosecutions by indictment for violating the long and short haul provisions of the Constitution and statutes, and may exonerate the carrier from the offense by a reconsideration of the circumstances and conditions under which the transportation was made, and if, after an indictment has been returned, the commission finds the circumstances and conditions of the long and short haul dissimilar and exonerates the carrier from the offense charged in the indictment the prosecution must fail. L. & N. R. R. Co., 21 Ky. Law Rep., 235.</p> <p>3. Before there can be a conviction under .an indictment charging that defendant had violated the .long and short haul law the Commonwealth must prove that the short haul was ■over the same line of railroad .and that the short haul was included in the long haul. L. & N. R. R. Co. v. Walker, 23 Ky. Law Rep., 433.</p> <p>4. Before there can be a conviction under the statute, the proof must show that the carrier charged and received less for transportation to the longer points named in the indictment as the longer distance than was charged and received for shipment to the point named in the indictment as the shorter distance.</p> <p>5. A witness by ■whom it is attempted to prove what a railroad rate tariff sheet showed, should not be allowed to tell what the tariff was, but the rate sheet, itself,, is the best evidence of what it shows and should be read to, or by the jury and filed as part of the record; unless the paper is lost or can not. be produced.</p> <p>A paper purporting to be a certified co-py of a lost record can not be read as evidence until after it has been supplied, as required by the statutes. Kentucky Statutes, secs. 1643, 3994 and 3995.</p> <p>1. The Commonwealth must prove the offense as alleged. Clark v. Com., 16 B. M., 211; Com v. Megowan, 1 Met.., 368.</p> <p>2. Evidences of other offenses is not admissible. Martin v. Com., 93 Ky., 189.</p> <p>3. A recommendation of the commission to indict for all future offenses would not suffice, but even if that would be sufficient it is clear that there was no such recommendation in this case.</p>

<p>Case 91 — Action by Frank Eblin and Others against the Illinois Central Railway Company to Recover Damages in. Transporting Two Carloads of Horses. — 'Feb. 11.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants Appeal.</p> <p>QUESTIONS' DISCUSSED.</p> <p>1. Where the contract for shipment of horses over a railroad is reduced to writing, parol evidence as to the statements of the agent of the railroad company, made at the time the contract was made, is not admissible to contradict or vary the terms of said contract.</p> <p>2. Where a shipper agrees with the railroad company to feed, water and take care of his stock at his own expense and risk; while it may be the. duty of the railroad to furnish facilities (a place) to feed, water and take care of said stock, if the railroad fails to furnish such facilities, it is the duty of the shipper to make some effort to obtain the requisite facilities and if he fails to do .so, and his stock suffers thereby, he is not entitled to recover any damages therefor of said railroad company on account thereof, and a peremptory instruction in favor of railroad company should he given.</p> <p>3. The burden is upon -the shipper to show that he tried to obtain, the proper facilities for feeding and watering stock at stopping place or that the same could not be had.</p> <p>4. When a railroad fails to furnish facilities for feedinging and watering horses at a stopping station when shipper has charge of stock it is the duty of the shipper to obtain same and the criterion of damages is the reasonable costs of such facilities.</p> <p>5. When shipper agrees that the railroad shall not be liable for any injury that horses may do each other (gross negligence of railroad excepted), and the horses are unloaded at a station for the purpose of being fed, watered and rested, if the shipper reloads his stock without having fed, watered or rested same, or made some effort to procure facilities for feeding, watering and resting stock, if the same are not furnished by the railroad and, especially if the .shipper knows by experience that the stock will injure each other, if not fed and. watered, the shipper is guilty of contributory negligence and not entitled to recover for any injury the stock may do each other by reason thereof.</p> <p>6. The verdict is contrary to the law and evidence.'</p> <p>7. The damages are excessive and must have been awarded by .passion and prejudice.</p> <p>AUTHORITIES CITED.</p> <p>2 Greenleaf, 15th ed., vol 1, sec. 275 and notes; 2 Green-leaf, 15th ed., vol 1, sec. 87; Am. & Eng. Ency. of Law, vol. 8, p. 604.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>Common carriers can not limit their liability for damages done by their own negligence to property they have in charge for transportation. L. & N. Ry. Co. v. Owen, 93 Ky., p. 203; Rhodes v. L. & N. Ry. Co. 9 Bush, p. 688; Baughman v. L. & iN. Ry. Co. 94 Ky., 150; L. & N. Ry. Co. v. Brownlee, 14 Bush, 600; Hart v. Pennsylvania Ry. Co., 113 U. S., p. 331; Elliott ■on Railroads, vol. 4, secs. 1511, 1557; /Sunderland on Damages, vol. 3, sec. 904; 9 Ky. Law Rep., 814; L. & N. Ry. 'Co. v. Hawley, 10 Rep., 117; Hármon & Crockett v. Norfolk R. R. Co., 295 and 296; Clark v. Rochester & L. R. R. Co., 67, Am. Dee., 205.</p> <p>It is the duty of common carriers of stock to provide proper facilities for resting, feeding and watering same while in transit, and a failure to provide such facilities is negligence. Elliott on Railroads, vol. 4, secs. 1552, 1553; White v. Cincinnati, •&c. Ry. Co., 89 Ky., 478; Owen & .McKinney v. L. & N. Ry. Co., 93 Ky., 626; .Hanmon & Crockett v. Norfolk and W. R. R. Co., 44 L. R. A., 290'; Walker, &c. v. Keenan, 34 IT. S'. App., 69:1, 73 Fed. Rep., 759; Gulf C. & F. R. R. Co. v. York, 2 Texas App. Civ. Case P., 813, p. 718; The Mo. P. & R. R. Co. v. Ivy, 79 Tex., 444; Covington Stock Yards Co. v. Keith, 139 U. S., 128; McCullough v. Wabash Western Ry. Co., 34 Mo. App., 23; Mason v. Mo. Ry. Co., 25 Mo. App., 473; Cooke v. Kansas City Ft. S. & M. R. R. Co., 57 Mo., App., 471; Kansas P. R. R. Co. v. Reynolds, 8 Kansas, 623.</p>

<p>Insurance Companies — Agent Soliciting Without License — Forming Domestic Corporation.</p> <p>Held: 1. Kentucky Statutes, section 633, makes it unlawful for any one to solicit applications for insurance on behalf of any foreign insurance company in this State without a license therefor from the insurance commissioner of this State, and sections 641 and 664, Kentucky Statutes, defines what are insurance companies in the meaning of the law. Held, that one who solicits insurance for any foreign insurance company in this State, though it be an assessment or co-operative company, without a license from the insurance commissioner, is liable to the penalty therefor prescribed in' said section 633.</p> <p>2. Under Kentucky Statutes, section 880, providing that “when articles of incorporation are filed and recorded as provided in section 779 and a certificate of that fact is issued by the secretary of State, the signers shall he deemed a body corporate,” , the filing of the articles of incorporation in the county, by the company represented by the defendant, does not constitute it a domestic corporation, as no copy thereof was ever filed in the office of the secretary of State as required by said section 880.</p>

<p>Case 93 — Action by Laurence Pfanmiller’s Administrator for a Settlement of His Intestate’s Estate. — Feb. 11.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>Laurence Pfanmiller was adjudged to be insane and a pauper and sent to Central Lunatic Asylum, where he was kept until he died, December 2, 1899. He had no estate except a homestead worth less than $1,000. Whilst he was in the asylum his wife died, leaving the homestead in the possession of one of his children. After his death his children, six sons and three daughters, sold and conveyed the homestead to appellant, William Holburn.</p> <p>John H. Weller, at the instance of the asylum, was appointed administrator of Pfanmiller, and brought this suit to pay the alleged debt of the asylum and taxes for 1900, making appellant, Holburn, a party defendant, and seeking to set aside the conveyance to him and subject the homestead to the payment of said alleged indebtedness.</p> <p>For appellant, Holburn, we contend:</p> <p>1. The verdict of the jury at the inquest that the decedent was a pauper lunatic, is binding on the asylum until the pauper acquires fresh estate, or unless he had property the existence of which was unknown to the asylum authorities.</p> <p>Decedent being entitled to homestead exemptions, the property descends to his children in fee simple, regardless of any debts, and consequently appellant can not be bound by any claim against the same.</p> <p>3. Appellant is the holder for value without notice of any lien or recorded claim of any kind against the property.</p> <p>4. Decedent left no estate to be administered upon and left no debts, consequently the appointment and qualification and subsequent actions of Weller as administrator, are utterly void.</p> <p>AUTHORITIES CITED..</p> <p>Schroer v. 'Central Asylum, 24 R., 150; Humber v. Asylum, 16 R., 755; Sweeney v. Auditor, 4 R., 837; Kentucky .Statutes, sec., 257, 1706; Meyers v. Meyers, 89 Ky., 442; Phillips v. Acton, 12 Bush, 375.</p> <p>More than three months after the death of decedent, his estate was, upon motion of the asylum, a creditor, referred to J. H. Weller, the public administrator of Jefferson county for settlement. The homestead of decedent was conveyed by his heirs to appellant, Holburn, March 19, 1900, and on March 20, 1900, this action was instituted. So that the said deed was made and delivered and this suit instituted within six months after the death of decedent.</p> <p>We contend:</p> <p>1. That the authorities cited by appellant do not support his contention'that “the verdict of the jury at the inquest is binding upon the asylum until the pauper acquires fresh estate or unless he had property the existence of which was unknown •to the asylum authorities.”</p> <p>2. “Jjecedent being entitled to homestead exemptions the property descended to his children in fee simple regardless of any debts, and consequently appellant can not be bound by any claim against the same,” is so absurd that we are. surprised that counsel for appellant should advance it with any sincerity.</p> <p>The facts disclosed by the record, are, that decedent did not leave a widow, his wife having died before him, and that all his children were at' date of his death over twenty-one years of age except Charles, who became of age a month or so after his father died, and we claim that under this state of facts all question of homestead exemption is eliminated;' further •that homestead was not pleaded in the lower court and was not an issue and can'not now be interposed.</p> <p>3. As to the question of notice we desire to say that the appointment of Weller as administrator was and is a matter of public record, and therefore notice to all the world — further •appellant is presumed to know the laws of his State" and he should have been familiar _with section 2087, Kentucky Statutes, which was designed to protect the creditors of deceased persons from such frauds as this.</p> <p>4. We contend that the taxes due the city of Louisville for the year 1900. and the claim of the Central Asylum for keeping deceased therein, are valid subsisting debts against his estate at the date of his death, and that under me laws of the State, the real estate of the decedent may be sold .to pay such debts where the personal estate was insufficient as is shown in this case, and that the administrator is the proper one and has authority to institute an action therefor, and the fact that there was no personal estate belonging to deceased does not prevent such an action.</p> <p>AUTHORITIES' CITED.</p> <p>Sweeney v. Auditor, 4 Rep., 837; Humber v. Asylum, 16 R., 755; Schroer v. Asylum, 24 R., 150; Kentucky Statutes, secs. 1706, 1707, 2087, 257, 3006, 3903 to 3906, 3984, 4849; Civil Code, sec. 428, 429; Courts’ Admr. v. Courts, 6 R., 512.</p>

<p>Case 94 — Action by Theophillts Conrad against W. J. Thomas and Others Involving a -Construction op a Lease. — Feb. 12.</p> <p>APPEAL FROM JEFI-'ERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Plaintiff ani> Defendants Appeal.</p> <p>This controversy involves the construction of a contract of lease executed by Conrad to Thomas and others, and by consent of the lessor .assigned by the lessees to the Louisville Tobacco Warehouse Company, which lease provides that the lessees were to “make all repairs on the said property during" the perfdency of the lease, and to keep the .property in good and substantial repair during the continuance thereof, as the same is in when certain improvements (named therein) are-completed by the first party, natural wear and tear excepted.” It further provided “that the lessees will take good care of said premises and suffer no waste to be committed or anything done to increase the insurance, and at the termination thereof the lessees will surrender peaceable possession of said premises,, in as good order as when received by them in its completed condition (the improvements herein stipulated having been made by the first party as aforesaid) natural wear and tear and natural decay and injury or destruction by fire or other cause not the fault of the'second parties, excepted.”</p> <p>It is alleged in the answer and not denied, that among other improvements placed on the premises by the landlord was a roof on the warehouse building. The lease by its terms was to run ten years from the fall of 1895.</p> <p>It is alleged and not denied -that at the end of five years, to-wit, in the fall of 1900, said roof on account o-f natural wear and tear and natural decay became so worn out and worthless as to endanger the tobacco and other (property 'stored therein, that it was incapable of being repaired, and that a. new roof was demanded for the needs of the warehouse, and that the landlord was notified thereof and requested "to place a. new roof thereon, which he refused to do, and thereupon the-lessees were compelled to put on a new roof in order to protect themselves and their patrons, at a cost of $842, which was a reasonable price for the work, which sum the lessees, appellants herein, claim to be entitled to deduct from their rent,' and tendered and offered to pay the balance due.</p> <p>The auestion therefore is, whether or not a fair and reasonable construction of the lease contract, contains an implied covenant on the part of the landlord to repair such parts oí the leased premises as might become impaired by natural wear and tear and natural decay.</p> <p>It is contended by appellee that in the absence of an express covenant on the part of the landlord to make good such impairment of the premises as might be caused by natural wear and tear and natural decay, the law implies no obligation on him whatever, and that the tenant must either make such repairs at his own cost or abandon the premises or endure tne damages resulting from the impaired condition of the premises.</p> <p>We do not believe that this cou-rli will put its stamp .of approval upon any such proposition.</p> <p>AUTHORITIES' CITED.</p> <p>Allen v. Fisher (New Jersey) 49 Atl. Rep., 477; Helburn v. Mofford, 7 Bush, 169.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Under the common law the tenant upon his covenant to pay rent is obliged to do so even though the premises are destroyed by inevitable casualty. Redding v. Hall, 1 Bibb, 539; Bohannon v. Lewis, 3 T. B. Mon., 380; Helburn v. Mefford, 7 Bush, 174; Taylor v. Landlord & Tenant, secs. 327, 328, 329 and 343; Am. & Eng. Ency. of Law, vol. 12, pp. 720, 721,^23.</p> <p>2. The tenant has no authority, express or implied, to place a new roof on a building and charge the same to the landlord. Warner v. Wagner, 75 Ala., 188; Biddle v. Reed, 33 Ind., 529; Wabash, et al. v. Brett, 25 Ind., 409; Womack v. McQuarry, 28 Ind., 475; Smith v. Kinkaid, 1 111. Ap., 620; Hess v. Newcomer, 7 Md., 336; Kline v. Jacobs, 68 P. St., 59; Taylor, v. Landlord & Tenant, secs. 358, 360, 361, 372 and 380.</p> <p>3. When the tenant covenants to repair and return the premises at the expiration of the term in substantially as good condition as when received his failure to do so will make him liable on his covenant. Brashear v. Chandler, 6 T. B. Mon., 150; Proctor v. Keith, 12 B. Mon., 254; Moore v. Townsend, N. J. L., 284; Petz v. Voigt Brewing Co., 116 Mich., 418; Kreuger v. Ferrant, 29 Minn., 385; Warner v. Hitchins, 5 Bar. (N. Y.) 667; Munford v. Brown, 6 Cowen (N. Y.) 476; Amer. & Eng. Ency. of Law, vol. 12, pp. 720, 721, 723.</p> <p>4.Construction of section 2297 of general statutes of Kentucky. Sun Insurance Office v. Varble, 103 Ky., 758; Suydam v. Jackson, 54 N. Y., 454.</p> <p>AUTHORITIES BY APPELLEE ON PETITION FOR REHEARING.</p> <p>1. Assignee of lease has no privity of contract with lessor ' and only holds by privity of estate. Taylor’s Landlord and Tenant, 8th ed., vol. 2, secs. 436, 438.</p> <p>2. Taylor approved by Kentucky 'Court. Myer Bros, Assignee v. Gaertner, 21 Ky. Law Rep., pp. 53, 54, 56, 57.</p> <p>3. “Privities in respect of contract are personal privities anil extend only to the persons of the lessor and lessee.” Rapalje and Lawrence’s Law Dictionary, vol. 2, S. S. 4 under Privies.</p> <p>4. When inconsistent pleas are allowed and how pleaded. Ky. Civil Code, sec. 113; S. S. 4.</p> <p>5. Assignee can relieve himself of lease on all covenants ■by assigning over. Muldoon v. Hite, 6 Ky. Law Rep., 663; Trabue v McAdams, 8 Bush, 78; Taylor Landlord and Tenant, vol. 2, sec. 452.</p> <p>6. To correct for mistake in drawing the contract mistake must be mutual and be between the parties to the contract. Reeder v. Lewis, 7 Ky. Law Rep., 373; Ky. Lumber Co. v. Mercantile F. & M. Ins. Co., 7 Ky. Law Rep., 832, 833; Stockhoff v. Brannin, 14 Ky. Law Rep., 717; Ovferstreet v. Mouser, 14 Ky. Law Rep., 480; Porter v. Rowe, 12 Ky. Law Rep., 139; Tandy v. Hatcher, 9 Ky. Law Rep., 151; Hill v. Pettit, 23 Ky. Law Rep., 2002.</p>

Case 95 — Action by Mercer County against the City of Habrodsbuug foe Damages for Removing Hitching Racks Erected by the County in Said City. — Feb. 13. appeal from mercer circuit court. Judgment for Defendant and Plaintiff Appeals. The county surrendered the ground and the title was in the city from that time, there being sufficient memorandum of the contract In writing. At the time of the wrongs complained of the city had been in possession for seventeen years.

<p>Case 96 — Action by Beatrice Moayon against her Husband, Max Moayon, to Enforce a Contract Made by Them to Avoid a Separation. — Feb. 13.</p> <p>APPEAL FROM CHRISTIAN CIRCUIT OOURT.</p> <p>JUBGMENT FOR DEFENDANT ANT PLAINTIFF APPEALS.</p> <p>This case is appealed from a judgment of the Christian circuit court dismissing on demurrer the petition of the appellants (plaintiffs below).</p> <p>Only propositions of law are involved. They are interesting, and, though novel in this State are well established by ■the decisions of other States. The questions involved may be generally stated thus:</p> <p>1. If a wife, having reasonable grounds for believing she has good cause for a divorce, separates from her husband, and, while living apart, in consideration of his promise to treat her according to the full measure of his marital obligations, and his agreement to convey one-third of his property to a trustee for the benefit of their children, condones his wrongs and returns to his home and makes him a dutiful wife, and he then refuses to make the transfer and conveyance of the property, — a court of equity will decree a specific- performance of the contract by compelling him to make the necessary conveyances.</p> <p>2. The general rule that a contract, to he specifically enforced in equity, must be mutual in its obligation and remedy does not apply where the contract has been fully executed by one party, and all that remains for full execution is performance by the other party.</p> <p>In conclusion we can only add that appellee stands in this •court without one redeeming feature to his position. He has accepted the benefits of an agreement with his wife and now refuses to comply with his part of the contract; he interposes no defense that rises above a technical quibble as to the possible effect of the agreement which was signed at the time he and his wife entered into the agreement whereby she became reconciled and returned to his home. Although he has been guilty of an actual fraud on his wife and children, he attempts to justify nis present position by some of his own shortcomings. . There is not one equitable claim in the stand he takes.</p> <p>On the other hand, appellant*comes into this court with clean hands.. She has performed her part of the contract sought by the appellee, and having fully performed, and having been deceived by the appellee, she appeals to this court in behalf of herself and her infant children to compel the appellee to fulfill, at the behest of the court, the promise so solemnly made and so faithlessly broken.</p> <p>Upon the whole case, we therefore submit to the court that none of the objections made to the specific enforcement of this contract is well taken. We submit:</p> <p>1. That the contract is founded upon a valuable consideration, and that its making and its enforcement are f'avored upon principles of public policy.</p> <p>2. That-the coniract is definite and certain, fair and reasonable, and that if there be any equitable reason against its enforcement such - is not apparent upon the 'contract itself or upon the face of the petition, and must be presented by answer.</p> <p>3. That the contract is not open to any defense of a lack of mutuality or obligation or remedy on the part of the wife, because she has performed.</p> <p>4. That the description of the property to be conveyed is sufficiently certain and sufficiently identified to satisfy the statute of frauds, and that extraneous evidence will only be necessary to apply the description, a necessary incident of all contracts and conveyances.</p> <p>5. That a wife is not precluded by the laws of this State from entering into an enforcible agreement settling the property rights between herself and her husband.</p> <p>AUTHORITIES' CITED.</p> <p>1. The consideration executed by appellant is a valuable one and sufficient to sustain an action for specific performance, and even were it only meritorious it would be sufficient under the Kentucky decisions. Gaines v. Poor, 3 Met., 503; Flood v. Flood, 5 Bush, 170; Loud v. Loud, 4 Bush, 455; Evans v. Evans, 93 Ky., 510; Bishop’s Marriage, Divorce and Separation, sec. 1279; Adams v. Adams, 91 N. Y., 381; Phillips v. Meyers, 82 111., 70; Barbour v. Barbour, 49 N. J. Eq. Rep., 429; Nelson on Divorce and Separation, vol. 1, see. 507; Rathmeier v. Beckwith, 35 Mich., 110; Reamey v. Bailey, 11 Atl. Rep., 439; Colame v. Same, 26 •N. J. Eq., 551; Butler v. Butler, 42 Atl., 755; Foote "v. Nicker-son, 53 Cen. Law J'ourn,, 146; Hart v. Hart, L. R., 18 Ch. Div., ■670; Stanes v. Stanes, L. R., 3 P. D., 42; iSmith v. Smith, 35 Hun., 378; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131-149; Wakeman v. Dodd, 27 N. J. Eq., 564; Sheperd v. Sheperd, 7 Johns. Ch. (N. Y.) 57; Casto v. Fry, 33 W. Va., 449; Par■sons on Contracts, vol. 3, p. 314; Stedman v. Guthrie, 4 Met., 146; Talbott v. Stemmon’s Exor.,' 89 Ky., 222; Allen v. Pryor, 3 A. K. Marshall, 305; Lancaster v. Burkhart, 2 Bibb, 30; Sanders v. Miller, 79 Ky., 520; Cotton v. Graham, 84 Ky., 672; McIntyre v. Hughes, 4 Bibb, 187; Stovall v. Barnett, 4 Litt, 207; Ford v. Ellingwood, 3 Met., 359; Arnold v. Park, 8 Bush, 3.</p> <p>2. The doctrine that there must be mutuality of obligation and remedy for the specific enforcement of a contract does not apply where the party seeking enforcement has performed. Pomeroy’s Eq. Jurisprudence (2d ed.) secs. 1405, 932, 1407, 1409; Green v. Richards, 23 N. J. Eq., 32, 35; Woodruff v. Woodruff, 44' N. J. Eq., 349; Wilkes v. Railroad, 79 Ala., 180; Welch v. Whelply, 62 Mich., 15; 4 Am. St. Rep., 810; Am. & Eng. Ency. of Law (1st ed.) vol. 22, pp. 1020-1022;Warvelle on Vendors. (2d ed.) vol. 2, sec. 739; Simon v. Wildt, 84 Ky., 157; Fry on Specific Performance, 207; Logan National Bank v. Townsend, 8 R., 694; Boucher v. Van Buskirk, 2 Marshall, 724.</p> <p>3. The contract here sought to be enforced is reasonable and fair both in law and in facts. Gooding v. Gooding, 20 Rep., 955; Irwin v. Irwin, Id., 1761.</p> <p>4. The contract sufficiently described the property to be conveyed. White v. Herman, 51 111., 243; Gerrish v. Towne, 3’ Gray (Mass.), 82; Nichols v. Johnson, 10 Conn., 199; 25 Pac. Rep., 728; 3 Starkey on Evidence, 1621; Johnson v. Ronalds, 4 ¡Muni, 77; Jackson v. Sill, 11 Johns. Rep., 201; Doolittle v. Blackislee, 4 Day, 265; Barry v. Coombie, 1 Peters, 640; Hurley v. Brown, 98 Mass., 545; 22 Am. and Eng. Ency. of Law (1st ed.), 965; Ragsdale v. Metz, 65 Tex., 255; Warvelle on Vendors, vol. 1, secs. 96, 135; Holcombe v. Hays, 23 Rep., 352.</p> <p>5. This action is not subject to any want of capacity in the appellants to sue. Evans v. Evans, 93 Ky., 510; Loud v. Loud, 4 *Bush. 453; Bohannon, &c. v. Travis, 94 Ky., 59; Story’s E'q. Jurisprudence, sec. 1372; Maraman v. Maraman, 4 Met., 84; Livingston v. Livingston, 2 Johns. Ch., 537; Ward v. Crotty, 4 Met., 59; Garliek v. Strong, 3 Paige, 440; Marshall v. Hutchinson, 5 B. Mon., 298; McCann v. Letcher, 8 B. Mon., 320; Athurly on M'arriage Settlements, 161; 2 Kent’s Com., 166; Barron v. Barron, 24 Vermont, 398; Sanders v. Miller, 79 Ky., 520; Kalfus v. Kalfus, 92 Ky., 542; Leahy v. Leahy, 97 Ky., 59; Campbell, &e. v. Galbreath, 12 Bush, 459; Kentucky Statutes, sec. 2128; Civil Code, sec. 34.</p> <p>PROPOSITIONS RELIED ON FOR APPELLEE.</p> <p>1. A married woman could not sue her husband at common law and that disability has not been removed by statute in Kentucky. Matson v. Matson, 4 Met., 262; Williamson v. Yeager, 13 R., 273; 14 R., 548; Bohannan v. Same, 14 R., 912; Kalfus v. Same, 92 Ky., 542; Leahy v. Same, 17 R., 187.</p> <p>Effect of Weissinger act:</p> <p>2. Specific performance will not be enforced when contract is wanting in definiteness, certainty or mutuality. Jones v. Noble, 3 Bush, 694; 2 Marshall, 345; Allen v. Roberts, 2 Bibb, 98; Burton v. Shotwell, 13 Bush, 282; 100 Ind., 482; 28 Am. Rep., 550: 124 111., 441.</p> <p>3. A contract to' create a trust being executory and incomplete, without a valuable consideration, can not be enforced. Story’s Equity Jurisprudence, vol. 1, sec. 433; Pomeroy, vol. 2, secs. 997-1000; Beach on Trustees, Ch. 7; Clark v. Lott, 11 111., 105; Badgeley v. Botfend, 68 111., 25; 14 R., 811; 19 R., 37.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The agreement, the specific enforcement of which in this case is sought, does not possess those essential elements and incidents which must exist in a contract before a court of equity will decree its enforcement in specie. (1) It is not reasonable or practicable. (2) It is not supported by a valuable and adequate, or even a “meritorious” consideration. (3) It is not mutual either in its obligation, or in the remedy for its enforcement, and (4). It is not certain and definite in regard to the property to be conveyed, and it would require parol testimony to identify it.</p> <p>2. The following authorities show what is the established doctrine with reference to contracts and agreements, the specific execution of which is sought to be enforced in equity, that they must possess the elements and incidents indicated, viz.: 3 Pomeroy’s Eq. .lur., (ed. 1887), secs. 1404, 1405; Woollums v. Horseley, 93 Ky. Rep., 582; Simon v. Wildt, &c., 84 Ky. Re.p., 157; Butt v. Bondurant, 7 Mon., 423; Petty v. Roberts, 7 Bush, 419; Bright’s Exr. v. Bright, 8 B. Mon., 197; Allen v. Roberts, 2 Bibb, 98; Jones v. Noble, 3 Bush, 697; McIntyre v. Hughes, 4 Bibb, 187; Stovall v. Barnett’s Exrs, 4 Littell, 207; Buford’s Heirs v. McKee, 1 Dana, 107; Ford v. Ellingwood, 3 Met., 359; Arnold v. Park, 8 Bush, 3; Cotton, Trustee, v. Graham, &c., 84 Ky. Rep., 672; Northup v. Ward, 12 Ky. Law Rep., 735; Northup v. Standifer, 15 Id., 740; Ray v. Talbott, 23 Ky. Law Rep., 572, decided June 7, 1901; Tyler v. Onzts, 93 Ky. Rep., 331; Jones v. Tye, Ibid., 390.</p>

<p>Appeal — Time fob Pbayíng — judgment when Final.</p> <p>Held: 1. A motion for new trial suspends .the judgment until the motion is overruled, and until such time there is no judgment,, within the meaning of Cr. Code, section 348, which provides that the appeal must he prayed during the term at which the judgment is rendered, and shall he granted if the record is lodged in. the clerk’s office of the .court of apipeals within sixty days after' the judgment.</p>

Case 98 — Action by E. A. Tuttle against H. S'. Harris and Others to Enforce a Mortgage Lien. — Feb. 17. APPEAL FROM BARREN CIRCUIT COURT. Judgment for Plaintiff and Defendant, Harris, Appeals. POINTS DISCUSSED. 1. The equitable lien of general creditors of a partnership on the partnership property is derivative only. They can only assert such Hen when the partners themselves can do so. 2.

Case 99 — Action by T. T. Metcalfe v. Julia A. Hall, &c. to Enforce a Mortgage Lien on Land. — Feb. 17. APPEAL FROM KENTON CIRCUIT COURT. Judgment fob Plaintiff and Defendants Appeal. This is a suit by appellee against the administrator of O. L. •Hall, deceased, and his widow and heirs and creditors, to settle bis estate and enforce a mortgage lien on a note for $500 owing to appellee by said decedent and in which the plaintiff asks his attorney’s fees and costs.

<p>Case 100 — Two Separate Actions Brought by the Louisville Home Telephone Company against the Cumberland Telephone and Telegraph Company for Injunction and Other Relief.-— Feb. 18.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

<p>Case 101 — Action by Mbs. Nannie W. Stapp against T. P. Mason & C. P. Cody to Recover of Them Money Lost by Her Husband Belonging to Her, at a Gaming Place Set and Run by Them and Her Husband as Partners. — Per. 18.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>The errors committed to the appellant’s prejudice were:</p> <p>1. The refusal of the court to strike from the answer the second paragraph, which charged that O. A. Stapp had an interest in the gambling house where the money was lost, and had an interest in other gambling houses, and lost money in other gambling houses.</p> <p>2. In permitting defendants to offer proof tending to prove these allegations.</p> <p>3. In refusing to give the instructions offered by plaintiff.</p> <p>4. In giving the instructions that were given.</p> <p>5. Particularly in instruction No. 3, as given, to-wit, that if the jury should believe that C. A. iStapp was interested in the gambling house, they would find for the defendant.</p> <p>The court proceeded upon the idea that the case was within the principle announced in the cases of Brown v. Thompson, 14 Bush, 538, and Elias v. Gill, 92 Ky., 569, and some others. These cases simply lay down the doctrine that one engaged in setting up or operating a gambling house can not recover back money won from the house by those who bet against it.</p> <p>Here the contention was that the husband’s alleged interest, if believed by the jury, prevents the wife from recovering. And this theory was continually presented to the jury by the court, over her objections.</p> <p>Our theory was that the plaintiff had not gambled herself, nor authorized her husband to gamble, — knowing nothing of his having gambled until after he had lost all her money, — • .and was not affected by these shortcomings of his. No pretense was made that she knew anything at all of his gambling.</p> <p>The weight of his sin was put upon her. She was made to take his place. The opprobium of being a common gambler, of setting up and operating gambling houses was poured out upon hc-r iust as though she had been the real culprit. This was prejudicial to her, and furnished absolutely no protection to the defendants.</p> <p>When she had shown that her husband had lost her money to the defendants, and that it had not been paid back to her, her case was made out, and she was entitled to recover on either of two grounds:</p> <p>1. Because the money was hers, and her husband had parted from it to another without her knowledge or consent; or</p> <p>2. By gambling off her money he became indebted to her, and she could sue to recover the money lost at gambling, under the statute, just as any other creditor might.</p> <p>They did not deny, or attempt to deny, that the money was hers. In fact, the checks introduced were all signed “Nannie W. Stapp, by C. A. Stapp, agent.” The money was not only hers, hut they had notice of it.</p> <p>They did not attempt to show that any part of it had been returned to her. Their defense was that they were no worse than C. A. Stapp, and the ruling of the court in the premises, said in effect, to the jury: “Gentlemen, if you believe that >0. A. Stapp is as bad as those defendants, you must find for them against his wife.”</p> <p>In this, I think an error to her prejudice was committed against her, and for this the ease should be reversed and remanded, and a new trial should be awarded, in which her claim against the defendants should be submitted to the jury with those objectionable features eliminated.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. A case within the letter, but not within the spirit of a remedial statute, is not embraced by it. The courts go beyond the letter to the legislative purpose and intent, and will not by a blind adherence permit the law to become a. shelter to those it was meant to punish. Brown v. Thompson, 14 Bush, 539; Elias & Shepherd v. Gill, 92 Ky., 573.</p> <p>2. The creditor of the loser can only recover where the loser himself could have recovered, his' interest being a contingent vested interest in the gamblers’ losses, of which he can not afterwards divest himself. ‘Caldwell v. Caldwell, 2 Bush, 448.</p> <p>3. Wber© a marriage is contracted and property acquired prior to the act of 1894, the husband’s rights in the property of his wife are governed by the old law and not the new statute.. Rose v. Rose, 20 Rep., 418; Mitchell v. Violett, 20 Rep., 378.</p> <p>4. Where a marriage occurs and property is acquired prior to the act of 1894, the husband who reduces the personal property of the wife to possession and converts it into cash, thereby acquires complete legal right to it. Hurt v. Courteney, 4 Met., 143; Bowling & Boucher v. Winslow’s Admr., 5 B. Mon., Lead. Cases, 351.</p>

<p>Asylums — Insurance—Authority to Make: — Superintendent—Certifying Premiums to Auditor.</p> <p>"Held: 1. Kentucky Statutes, section 224,. provides that the boards of commissioners of charitable institutions shall keep the building and furniture insured, and the amount of the premiums to he certified to the State auditor, who shall draw a warrant, etc. Section 230 provides that the steward of each institution, by the direction of the shperintendent, shall purchase all needed supplies of every description. Section 233 requires the steward to make monthly reports to the superintendent of his acts, the condition of the farms, and the stock, etc., and in the statutory form for this report are contained items representing certain fixed 'Charges with which the steward has nothing to do, such as “insurance,” “pay roll,” etc. Held, that it was the duty of the board of commissioners to contract for insurance for a State insane asylum, and for the su-, perintendent to certify the amount of premiums to the State auditor.</p>

Case 103 — Noah M. Reynolds was Convicted of Murder and he Appeals. — Feb. 24. APPEAL FROM BELL CIRCUIT COURT. Defendant Convicted of Murder and Appeals. 1. We claim that there are numerous errors committed by the trial court to the prejudice of appellant in admitting incompetent evidence and in refusing to admit competent and relevant evidence which we have pointed out in detail in this brief. 2.

<p>Wills — Undue Influence — Evidence—Declarations of Devisee— Practice.</p> <p>Held: 1. Statements or declarations of 'a testator, whether made before or after the execution of the will, are not competent as direct evidence of undue influence, but are only admissible to show the -mental condition of the testator at the time of making •the will, and his susceptibility to the influences by which he was surrounded at the time.</p> <p>2. ,In a will contest by heirs who alleged that the will was procured by the undue influence of testatrix’s husband, evidence that the husband had stated that he would see that contestants received no part of the wife’s estate was admissible.</p> <p>3. Where a finding that a will was procured by undue influence was found 'on appeal to he unsupported by the evidence, but it was also decided that certain evidence, which might have formed a basis for the finding was erroneously excluded, the case can not he remanded with an order to probate the will, hut must he remanded for a new trial.</p> <p>4. Where a husband was a beneficiary under his wife’s will, the fact that, as tenant by curtesy, he would have taken the same interest he took as devisee, did not render his declarations hearing on the question of undue influence inadmissible as against his co-devisees.</p> <p>5.In a will contest by a disinherited heir of testatrix, in which it was alleged that testatrix’s husband exercised undue influence to procure the will, questions to the husband as to whether he had ever said to his wife that one. of the contesting heirs was a spendthrift, who would dissipate the property, and for her to see that the matter was fixed in such a way that he could not get any part of it, were improperly excluded.</p>

<p>Case 105 — Action by C. J. Roach against Cadiz Railroad Company to Cancel a Writing Donating Land to Said Railroad Company. — Feb. 2r</p> <p>PPEAL FROM TRIGG CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>It appears from the uncontroverted allegations of the answer to plaintiff’s petition that numerous citizens of Cadiz and vicinity organized a company known as the Cadiz Railroad Company for the construction of a line of railway from Cadiz, Ky., to Gracey, by private subscription, and that appellee, with others, donated the right of way, to the company over their lands to aid in this reciprocal enterprise.</p> <p>The appellee donated the right of way over his land by a. writing as follows:</p> <p>“Cadiz, Ky., Feb. 21, 1901. I hereby donate to the Cadiz Railroad Company, a sixty foot right of way through my farm according to survey. C. J. Roach.”</p> <p>Of the many who contributed the right of way appellee alone seeks, in a court of equity, to avoid his contract.</p> <p>In his original petition he pleads that his signature was obtained by gross misrepresentation and fraud, but finding he could not sustain this plea, he, by an amended petition, pleads “no consideration.”</p> <p>We maintain that this plea can not be upheld for several reasons:</p> <p>1. Because “he who seeks equity must do equity.” This rule is correct in principle and in morals, else' the world would be victimized by pretenders in all branches of business in life.</p> <p>2. Another rule touching the law of contract is this, in substance: "Any advantage to promisor or prejudice to promisee,” is sufficient consideration to uphold the contract.</p> <p>3. Another rule is that “whenever several promise to contribute to a common object, desired by all, the promise by each is a good consideration for the promise of the others.” ></p> <p>4. And still another rule is, that, “An obligation executed for a donation to any lawful or beneficial object or enterprise is binding when there are agents or trustees authorized to receive or dedicate the donation to the purpose intended.”</p> <p>The appellee made no complaint or objection to the road until the right of way had been cleared off by the railroad crew along the line and graded for about seven miles from Cadiz out near to appellee’s land at an expense of $15,000 or $20,000, when he filed his suit and stopped the work.</p> <p>For these reasons and others not mentioned we ask a reversal of the judgment appealed from.</p> <p>AUTHORITIES' CITED.</p> <p>iStapp v. Anderson, 1 Marshall, 538; Overstreet v. Phillips, 1 •Littell, 121; Rudd v. Hanna, 4 Monroe, 532; Harrod v. Black, 1 Duv., 181; Twin Creek, & C. T. P. R. R. Co. v. Lancaster, 79 Ky., 552; Collier v. Baptist E. Society, 8 B. M., 68; Trustees Ky. F. O. School v. Fleming, 10 Bush, 238.</p> <p>The questions to be considered in this case are:</p> <p>1. Was the contract obtained by fraud?</p> <p>2. Was there any consideration for the contract?</p> <p>3. Right, of way being a gift, was possession ever delivered?</p> <p>Appellee was not one of a number of persons contributing to a common enterprise for mutual benefit, but as an outsider he promised a donation to the company after it was formed. The company could not have relied on the donation of right of way by appellee in the sense that it was in any way induced thereby to begin the construction of its road, for the reason that it had ■been formed independently of the right of way and to carry out the purpose for which it was organized it had to purchase the right of way if it was not given. .This, every stockholder and incorporator knew from the beginning. Appellee got no stock in the company, and therefore was not on a common level with other contributors and to receive mutual benefit with them.</p> <p>Possession of the land was never given by appellee], except after suit was filed it was agreed by the parties, that the road should be built on said land without either party waiving any rights in the premises. Twin Creek & C. Turnpike Co. v. Renaker, 3 Rep., 368; Henry Banks v. John Mays’ Heirs, &c., 1 Marshaii, 435.</p>

<p>Claims against the Government — Collection—Fee—Minister to Foreign Country — Attorney’s Fee.</p> <p>Held: 1. Under Rev. St. U. S., section 5498 [U. S. Comp. St„ 1901, p. 3707], prohibiting a person holding a place of trust cr profit under the government from acting as agent for the prosecution of a claim against the United States, a person who has entered into a contract with another to assist him in prosecuting the claims of a city against, the government, but who shortly afterwards accepts the post of minister to a foreign country, and holds such post during the prosecution of the claim, can not recover any fee for the prosecution of the claim.</p> <p>2. Where a minister to a foreign country had, before taking up his duties, entered into a contract with another to assist in the collection of certain claims against the government, which were prosecuted during his term of office, he can, upon payment of the claims, recover from his associate any attorney fees and costs advanced for his benefit, though he can not recover any fee for services.</p> <p>3. An attorney fee of $500 certain and $1,000 additional in case of success for the collection of a claim of $19,017.05 by suit, is reasonable.</p>

<p>Care 107 — Action by Sabah Jane Mooney against the Ancient Order of United Workmen Grand Lodge of Kentucky on a Benefit Certificate. — Feb. 26.</p> <p>APPEAL FROM WEBSTER CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals Reversed.</p> <p>POINTS DISCUSSED.</p> <p>The only defense is an alleged “suicide by-law.” This is unavailing for these reasons, viz.:</p> <p>1. There is no valid proof of adoption.</p> <p>2. It is admitted that the grand lodge did not adopt, but there is some incompetent evidence that the supreme lodge had adopted a suicide clause. The charter requires an adoption by the grand lodge. ■ Section 5 of charter controls, carrying into effect No. 6 of “objects,” and not section 4 of charter relating merely to relief fund meeting No. 5 of “objects.” Besides the powers and rights of supreme lodge under charter were repealed by act of April 3, 1898. The grand lodge can not delegate this legislative duty to the - supreme lodge or to the committee or other agency.</p> <p>3. The supposed by-law must be interpreted in the light of the report of the “representatives” and made to apply to those persons only who, at the time of obtaining membership had an intent to defraud the order by committing suicide. The pleadings make this issue. There is not a scintilla of evidence as to such intent.</p> <p>4. It is admitted by the pleadings and the journals show that the order intended the suicide clause if adopted to be binding only in the event it was in the application signed by the member.</p> <p>5. There should be recovery under the very terms of the bylaw for the proof is conclusive that the member killed himself in delirium resulting from disease.</p> <p>6. Under forfeiting clause for suicide, “sane or insane,” there can be recovery when the member is so insane when he committed the act as not to comprehend the physical nature and consequences of his act. This issue was made, there was strong evidence on both sides. The jury should have been permitted to pass upon it.</p> <p>7. A clear case of waiver. Appellee is estopped from setting up the suicide clause.</p> <p>8. Both the pleadings and the proof entitle plaintiff to her full demand.</p> <p>9. Plaintiff’s demand is just and meritorious. The defense is technical and inequitable. There should be reversal with directions to render judgment for plaintiff for her full claim</p> <p>AUTHORITIES.</p> <p>1. The fund in question must be controlled by “the corporar tion.” Grand Lodge Charter, sec. 5.</p> <p>The grand lodge can not delegate this duty. Knights of Pythias v. Stein, 37 L. R. A., 775; Knights of Pythias v. La Malta, 30 L. R. A., 838.</p> <p>3. Suicide clause not part of contract. Waiver. Estoppel. Woodmen of World v. Fraley, 51 L. R. A., 898; Davidson v. Benefit Soe., 1 L. R. A., 482; Manning v. A. O. U. W., 86 Ky., 136; Bacon Ben. Soe., see. 171, 179, 426; p. 214, 229, 636; Nib. Ben. Soe., sec. 147.</p> <p>4. Suicide, generally. Mut. Ben. Ins. Co. v. Daviess, 87 Ky., 541; Seiler v. Life Asso., '43 L. R. A., 537; Patterson v. Ins. iCo., 42 L. R. A., 253; Adkins v. Ins. Co., 35 Am. Rep., 410; 3 L. R. A., 486; 6 lb., 495; 32 lb., 473; 17 lb., 89 notes; 47 lb., 681; 17 Am. Rep., 372, 689; 19 lb., 623; 21 lb., 549; 46 lb., 17; 35 lb., 410; 59 Am. Dec., 482; 89 lb., 743; 15 Wall., 580; 3 Am. & Eng. Ency., 2d, p. 1016; 3 Joyce Ins., see. 2653; 2 May Ins. see. 392; Cooke Ins., sec. 70; Bliss Ins., see. 330; 2 Phillips’ Ins., p. 626.</p> <p>5. Read these leading cases. Woodmen of World v. Fraley, 51 L. R. A., p. 898; Davidson v. Ben. Soe., 1 L. R. A., p. 482; Manning v. A. O. U. W., 86 Ky., 136; Knights of Pythias v. Stein, 37 L. R. A., p. 775; Knights of Pythias v.- La Malta, 30 L. R. A., p. 838; Mut. Ben. Ins. Co. v. Daviess, 87 Ky., p. 541.</p> <p>THE CERTIFICATE SUED ON.</p> <p>Appellant sued appellee upon the following certificate:</p> <p>No. 11,777. Grand Lodge, $2,000.00</p> <p>Ancient Order op United Workmen of Kentucky.</p> <p>1. This certificate issued by the grand lodge of the Ancient Order of United Workmen of Kentucky, witnesseth that Brother John G. Mooney, a workman degree member of J. L. Dorsey Ledge No. 98, of said order, located at Dixon, in the State of Kentucky, is entitled to all the rights, benefits and privileges of membership in the Ancient Order of - United Workmen and to designate the beneficiary to whom the sum of two thousand ($2,000) dollars of the beneficiary fund of the order shall at his death be paid. This certificate is issued subject to and is to be construed and controlled by the laws of the order. He designates as beneficiary under the terms hereof Sarah Jane Mooney Rearing to him the relation of mother. In witness whereof the grand lodge has caused this to be signed by its grand master workman and grand recorder and the seal thereof to be attached this 29th day of November, 1899.</p> <p>John W. Baker, Grand Master Workman.</p> <p>Attest: J. G. Walker, Grand Recorder.</p> <p>2. The Defense. The defense was that the person to whom the certificate was issued, John G. Mooney, was admitted to appellee order under his agreement to be governed and to abide by its constitution, by-laws, rules and orders; that at the time of the issual of the certificate sued on, it was provided by said ■by-laws and constitution that if within two years after the issuai of said certificate the member to whom it was issued should come to his death by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, or after a judicial declaration of insanity; then the only sum that should be paid or which is payable to the beneficiary named in the certificate should be the amount that may have been paid into- the beneficiary fund of the order by such member. That said John G. Mooney in less than six months after the issual of said certificate came to his death while sane by voluntarily and intentionally committing suicide and destroying his own life by shooting himself with a pistol; that he was not at the time in delirium resulting from disease, nor under treatment for insanity; nor had there been any judicial declaration of his insanity; that during his membership he had paid into the order the sum of $4.80; which was tendered. It is further pleaded in defense:</p> <p>“That after the execution and issua’l of said certificate, he on the —— day of - 1900, and within six months after the certificate sued on was issued, while sane, voluntarily and intentionally, for the purpose of destroying his own life, shot and wounded himself with a pistol, of which shot and wound he soon thereafter died, so defendant says it is not true that said Mooney died a workman degree member of said order in good standing, nor that the defendant is justly indebted to the plaintiff in the sum of $2,000 or any sum.</p> <p>The clause in the constitution of the order referred to in the answer,, is as follows:</p> <p>“I further agree that if within two years after the date of my taking or receiving the said workman degree, my death should occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, or-after a judicial declaration of insanity, then the only sum which shall be paid, or which is payable to my beneficiaries named in my beneficiary certificate, shall be the amount which I may have paid into the beneficiary fund of the order during the term of my membership.” See page 22 of constitution of A. O. U. W. filed with transcripts.</p> <p>S. The instructions and verdict. The following instruction was given to the jury and a verdict returned accordingly:</p> <p>“The court instructs the jury that it is admitted that John G. Mooney committed suicide within two years after the issual of the certificate sued on, and there being no proof or claim that when he did so he was in a delirium resulting from disease, nor while under treatment for insanity, nor after a judicial declaration of insanity they can therefore only find for the plaintiff the sum of four dollars and eighty cents, the amount that had been ■paid into the beneficiary fund by the deceased, with interest thereon from March 2, 1900, the date of said Mooney’s death, and they will return a verdict for that sum.”</p> <p>4. No other instructions could have been given. The nature of the appellee order, and its constitution, the certificate in o.uestion, and the evidence as to the death of assured made any other instruction impossible. But if we leave out of view the nature of appellee order and its constitution, then the appellant would not have been entitled to the verdict for the $4.80, and the court should have instructed the jury to find for' the defendant.</p> <p>5. Mooney not insane. The evidence establishes the fact that John G. Mooney intentionally took his own life while sane; when he was “not in delirium resulting from disease, nor while under treatment for insanity nor after there had been a judicial declaration of insanity.” The act was deliberate, intentional, and perpetrated with a full knowledge of all the consequences.</p> <p>6. Laws of order a part of contract. The constitution of such an association is its fundamental law, to which all who come within its operation must conform, and the constitution of appellee in this case is to be read into, and becomes a part of the contract sued on. The very certificate sued on sets forth that it “is issued subject to and is to be construed and controlled by the laws of the order.” Am. & Eng. Ency. Law, 3d ed., vol. 3, p. 1059; Morawetz Priv. Cor., 2d ed., sec. 494; Presby’n •Mut’l Assn. Fund v. Allen, 106 Ind., 593; Burgman v. St. Paul Mut., &c., 29 Minn., 278; Sherry v. Plasterers' Union, 139 Pa. St., '470.</p> <p>The certificate of membership constitutes the contract, but it is to be construed and governed by the company’s charter— (The Presbyterian Mutual Assurance Fund). In fact it may be said that the charter is a part of the contract. Van Bibber’s Admr v. Van Bibber, 82 Ky., 184.</p> <p>And the charter or constitution will be construed liberally so as effectuate the objects of the order. Van Bibber’s Admr. v. Van Bibber, 82 Ky., 347; Woolford’s Appeal, 126 Pa. St., 47; Messen v. Mut. Ref, Sec., 102 N. Y., 523; Supreme Corny., &c. y. Ainsworth, 46 Am. Rep., 332.</p> <p>And by-laws enacted by .Mutual Benefit Asstaciation avoiding payment of a policy if the assured dies by suicide either sane or insane, binds its members jvhose contracts require compliance with all laws, “now in force or that may hereafter be enacted by the supreme lodge.” Supreme Lodge, &c., v. Trebble, 179 111., 348.</p> <p>7. Suicide raises no presumption of insanity. The law presumes sanity and insanity will not be presumed from the fact of suicide. “The burden of proving insanity is. upon the party offering it, and opinions of witnesses based upon their observations of the mental condition of the insured previous to the suicide, and not formed upon knowledge or observation of his facts or condition at the time of suicide, have no tendency to prove that the killing was involuntary.” Weed v. Mut. B. & L. Ins. Co., 70 N. Y., 561; Joyce on Ins., vol. 4, sec. 3775; Meacham v. N. Y. Mut. Assn., 120 N. Y., 237; MeCline v. Mut. L. Ins. Co., 55 N, Y., 65; Breasted v. L.„& T'. Co., Am. Dec., 496, and note 7, citing many cases.</p> <p>Mr. Justice Miller in his charge to the jury, says, “There is no presumption of law, prima facie or otherwise, that self destruction arises from insanity.” Terry v. Ins. Co., 1 Dill. (C. C.) 40, 15 Wall., 580; Merritt v. Cotton State Ins. Co., 55 Ga., 103; Knickerbocker Ins. Co. v. Peters, 42 Md., 414; Weed v. Mutual, &c., 35 N. Y. Super Ct., 386; Hathaway v. National, &c., 48 Vi., 335.</p>

<p>Case 108 — Action by Ann Dils as Executrix of Col. John Dils against W. J1. "Williamson to Enforce Specific Performance of a Contract for Sale of Dand. — Peb. 26.</p> <p>APPEAL FROM PIKE CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>STATEMENT OF THE 'CASE.</p> <p>This cause comes into this court on appeal from judgment decreeing specific execution of contract of 12 of December, 1891, between appellant and Colonel John Dils. The contract, specific execution of which was decreed in the judgment appealed from (Rec. 670) is set out in petition filed July 2, 1895, by Colonel John Dils, as plaintiff, against appellant as defendant.</p> <p>As the record is quite voluminous, counsel feel impelled to make a fuller statement of the issues and evidence than ordinarily pertains to a brief, deeming such course justified by the size of the record and conducive to a readier understanding of thp case hy the court.</p> <p>The contract is set out in the petition. (Rec. 6), and is for sale of real estate in Pike county, “it being the one-third interest in the Williamson-Dils and Joe Hall tract of land estimated to contain 18,000 acres, more or less, -which land lies on the waters of Knox and Peter creeks and Tug river, in Pike county, Ky. This land is to be surveyed by party of the second part, and at his expense, and when the amount of said land is ascertained by survey, deducting the proper exclusions, then the .party of the second part (Williamson) is to pay party of the first part two (!p2) per acre for party of the first part’s one-third interest in said lands. Said survey shall be completed by the first day of April, 1892, at which time the purchase money shall be paid by party of the second part, and deed of quitclaim free of dower shall be made by party of the first part; out m the event that said survey is not at that date completed, but is well under way, and the party of the second part makes to the party of the first part a good substantial payment on said purchase money, then party of the second part shall have a further reasonable time -to complete said survey, at which time the balance of the purchase money shall be paid and deed made as above stated.”</p> <p>It was further therein provided that Williamson should have thirty days to purchase land- at the price and upon the terms mentioned, if he should signify to Dils, or O. C. Bowles, whether or not he should take the land, and if decided to take the land, then tho two thousand dollars mentioned as consideration for execution of the contract, evidenced by his note due and payable thirty days from that date, should be considered', as part of the purchase price; otherwise should be forfeited; and further that Dils would carry out as to his one-third interest, ¡agreement between the said parties for conveyance to John Hardin of part of the land theretofore sold by the parties.</p> <p>PROPOSITION'S OF ARGUMENT AN/D 'CITATIONS- Oí AUTHORITY.</p> <p>1. The sale was by the acre, and the area to be ascertained by survey. Guess work or surmise can not afford basis of certain recovery, or justify departure from the standard measure of the contract.</p> <p>2. Specific execution of contracts in equity is matter not of absolute right in either party, but of sound and reasonable discretion of the court, and will never be adjudged unless equitable so to do. Coeanougher v. Greene, 98 Ky., 519; Woollums v. Horsley, Ibid, 582; Patterson v. Bloomer, 95 Am. Dec., 218; Stokes v. Stokes, 156 N. Y„ 571; 2 Story, 750A.</p> <p>The required element of certainty in specific execution of contract is lacking.</p> <p>3. The decree is not supported, because by it the vendee does not receive the title he contracted for. Fry Spec. Perf., 427; Pomeroy, 454, 203, 229, 231.</p> <p>The conditions supervening the date of contract and the attempt to make the survey, conceding they were- not brought about ¡by. act or omission of the parties, present a case of mistake of matter affecting' the subject matter of the contract, and defeats its specific execution. Pomeroy, 229, 231, 268, 371.</p> <p>4. The court will not specifically execute contract, and will give affirmative relief by rescission under the state of title disclosed by the record. Williams, &e. v. Carter, 3 Dana, 76; Beckwith • v. Kouns, 6 B. M., 222; Hightower v. Smith, 5 J. J. M., 542; Maupin on Marketable Land Titles, 284-290; G-ans v. Renshaw, 2 Pa. St., 34; 44 Am. Dec., 152. ■</p> <p>1. THE HOSTILITY SHOWN TO APPELLANT’S TITLE.</p> <p>The substance of this defense is, that because of hostility and threats of violence from others to appellant and those in his employ, he abandoned the work of surveying, failed to comply with, the obligation he assumed to ascertain the number of acres sold at bis expense; and on this default of himself, for which appellee never was responsible, he asks the court to rescind tne contract, pay him back the $2,000, and relieve him from all its obligations, There is no charge that appellee is responsible for any part of the opposition he has encountered in his feeble effort to have the land surveyed. To admit that he is excusable because of the violent threats complained of, even if they did go •to. the extent of endangering life; would be to acknowledge the inability of the law and government, which has the power of the people behind it,’ to protect a citizen in the enjoyment of his property and life, against the acts of a few violent men, who would use force rather than the law and the machinery it has provided. Courts can not confess any such, weakness or want of power in the law. It is amply able to protect the life and property of all citizens from the violent acts of others. For this purpose the government has at its command the entire military and-civil power; and when appealed to will exhaust its Whole force before permitting either loss of life or property. When all the resources of government are brought into action, and the violence is so strong it is unable to overcome it, a dissolution of government follows, and anarchy and violence reigns.</p> <p>If the threatened violence was such as' to endanger life, or to prevent the peaceful execution of the contract, appellant can not justify the course he has adopted, and make his failure the basis- and-groundwork of an action for a rescission of it against the other party who is not to any extent in fault. When he found the violence .and opposition too -great to be overcome by peaceful and persuasive means, if he did so find it he should have appealed to the law, which could and would have protected him, the men in his employ, and the property from all danger.</p> <p>To grant the rescission asked on the ground alleged would be equivalent to saying the law has no power to protect the life or property of a citizen against the violent and unlawful acts of a few, which would render courts useless and governments powerless</p> <p>Appellant well knew the nature and character of apposition with which he would be confronted. He was not deceived, misled, or lulled into any feeling of security respecting the title to the property that was not real. He contracted to take the expense and burden of surveying the land on himself; and when he asks the court to excuse him from this obligation because of threatened violence from some half dozen men, it is no answer to appellee’s response that the law is able to protect him, to say he is not required to call to his aid such extraordinary remedies. What is there so extraordinary about the plain simple process of the law that appellant could not resort to it? What other means or power could he have of guarding himself and •property from violence and wrong?</p> <p>When he met with the opposition complained of, if he did meet with' it, to call to his aid the power of the law was his only remedy. Had he selected some other means of enforcing his rights, and suppressing the opposition, it would have been an extraordinary remedy in the extreme.</p> <p>The court, or the clerk, if no court in session, would have granted him orders of survey at any time while the action was pending to the surveyor of Pike county, whose duty it would have been to execute them; and any unlawful interference to prevent their execution would have been a contempt of court; and the wrongdoer could have been put under bond sufficient to restrain him, or incarcerated in jail. Such a course would not have been quite so extraordinary, as the means used by appellant to get rid of the contract by refusing to perform the obligation he assumed without legal excuse, then making that refusal the groundwork for a rescission. If sending out a single surveyor clothed with the power of the law to do the work would have extended it through too long a period, then every one in the employment of appellant could have been made a special surveyor and armed with the same power.</p> <p>At first blush, on reading the testimony in regard to the violence charged, it appears to have been considerable; but when it is critically examined, the small number engaged in it considered, together with the depositions of those who were honored with the title of leadership in opposition, we are constrained to believe it was more a pretext to get rid of the bargain than anything else.</p> <p>We feél justified in saying there is more noise than substance in the charge of violence, alleged as an excuse for not surveying the land. Appellant seeks to magnify the opposition and make it look formidable by having each witness to state what the same party said, when the truth is, there were not more than two men proved to do anything — Blankenship and Hurley — and they both testify that the charges against them are false.</p> <p>2. THE CLAIM FOR. RESCISSION CONSIDERED.</p> <p>Before the court will decree a rescission it must appear the complaining party will be subjected to some loss, hardship, or inequitable result growing out of the contract he did not know, or which a reasonably prudent man would not have been expected to know at the time of making it. If all the circumstances and conditions surrounding and connected with it, or the subject-matter of it, are known to him, and he enters into it with his eyes fully open to all the facts, and to the whole truth, the other party not being to any extent in fault, he can not have a rescission because he has become dissatisfied with his bargain.</p> <p>A rescission is a cancellation or annulment of the contract, which must be promptly sought. The most essential prerequisite is the party seeking it must show his ability to return to the other all he received by it. Each party must be given back all he parted with by it. They must be placed in statu quo, which means both after the rescission must occupy the same relation to the subject-matter of it they did before it was made. If one parted with his right to a specific thing, the thing must be restored. If it was for the sale of land the land must be given back. This proposition is so self-evident that authority to support it is hardly necessary, but Chaplain v. Burton, 2 J. J. M., 216; Clark v. Finnell, 16 B. M., 338; 'Lacy v. MeMillian, 9 B. M., 525; Miller v. Johnson, 9 Dana, 48, and Black v. Old-ham, 4 Dana, 196, and many others which could be cited, are in point.</p> <p>The title to the thing given back must be as good and valuable when it is returned as when parted with by the contract.</p> <p>Can appellant place his vendor in statu quo? It is manifest from his own showing he can not, for he has already sold the land to another.</p> <p>3. THE RIGHT TO A SPECIFIC PERFORMANCE CONSIDERED.</p> <p>This is called an action for the specific performance of a contract. While this is in a measure true, it partakes no more strongly of the nature of such an action than any other proceeding by a vendor against his vendee to enforce a lien on the property for the purchase price. The rule that such remedies are never granted as a matter of right, but rest on the sound discretion of the court does not apply to a case like this. This statute giving the vendor a lien for the purchase price would be of no value if the enforcement of it was left alone to the discretion of the court. If appellant has failed to show a right to a rescission, he has failed to show why a specific performance should not be had.</p> <p>If appellant knew exactly the kind of title his vendor had, the difficulties that existed and surrounded it, the opposition' he would encounter from those who were unfriendly to his claim; and with a full knowledge of all these facts agreed to accept the title as it was, without warranty, and by a quitclaim deed, he took it at his own risk, and must now be contented with the thing he bought, and pay the price he agreed to pay.</p> <p>AUTHORITIES CITED IN THIS BRIEF.</p> <p>McMillan’s Heirs v. Hucheson, &c., 4 Bush, 611; Terry v. Johnson, 86 Ky., 95; Russell v. Doyle, &c., 84 Ky., 386; Chaplain v. Burton, 2 J. J. M., 216; Clark v. Finnell, 16 B. M., 338; Lacy v. MeMillian, 9 B. M., 525; Miller v. Johnson, 9 Dana, 48; Black v. Oldham, 4 Dana, 196;' Lyones v. Osborn, 7 B. M., 305; Harper v. C. N. O. & T. P. R. Co., 15 R., 225; Rawlins v. Timberlake, 6 Mon., 230; Cummins v. Boyle, 1 J. J. M., 480; Cataren v. Bell, 2 Dana, 328; Pom. on Con. Spe. Perl, sec. 346; Fry on Spe. Perl, sec. 857; Sugden on Ven., by J. C. Perkins, p. 505; Devlin on Deeds, vol. 1, sec. 27; Davis v. Bowland, 2 J. J. M., 27; Shackelford v. Wright, 13 R„ 62.</p>

<p>109 — -Action■ by W. E. Matthews against Illinois-. Centbal Ry. Co. to Recovee Damages foe Baggage Injured. — tFeb.,25.</p> <p>APPEAL FROM HICKMAN CIRCUIT COURT,</p> <p>Judgment foe Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Irrespective of the instructions, -plaintiff’s case is refuted by admissions in his reply, .and by his own testimony that he shipped the merchandise of other persons as his personal baggage.</p> <p>2. A passenger can not carry other persons’ property as baggage. Dunlap v. I. S. Co., 98 Mass., 371; Miss. Cen. R. Co. v. 'Kennedy, 41 Miss., 671; Pettigrew v. Barnum, 11 Md., 449; Doyle v. Kiser, 6 Ind., 242; Pardee v. Drew, 25 Wend., 460.</p> <p>Merchandise is not baggage, except sometimes drummers’ samples. Humphreys v. Perry, 148 U. S., 647.</p> <p>The authorities established that a passenger has no right to ■carry other peoples’ goods at the risk of the carrier. If others desire their goods carried they must pay for them in the usual way. Dunlap v. I. S. Co., 98 Miss., 371; Miss. Cen. R. Co. v. Kennedy, 41 Miss., 671; Pettigrew v. Barnum, 11 Md., 449; Doyle v. Kiser, 6 Ind., 242; Pardee v. Drew, 25 Wend., 460.</p> <p>If the case of a drummer with samples were accepted as an exception to this rule, this case would not be within the exception for merchandise of other persons can not by a passenger be carried for sale by intermingling with the same goods some samples. We, therefore, respectfully ask a reversal.</p> <p>It is contended by appellees that the defendant, Illinois Central Railroad Company, as established by the evidence, received the trunks and goods and instruments of plaintiffs, which are sued for in this action, at Martin, Tennessee, and for pay agreed to transport them to Clinton, Kentucky, and that after defendant had taken charge of said trunks and goods and loaded them on its car at Martin, Tennessee, it was the duty of defendant to take care of said trunks and goods and deliver them at place of destination, to-wit, Clinton, Kentucky, but on account of the negligence and carelessness of defendant’s agents and servants said trunks and goods were put off of the ear at. Fulton, Kentucky, and left there in' the rain all night, and until 8 or 9 o’clock next morning, and by so doing the defendant is responsible to plaintiffs for all damage done to trunks and goods. The defendant does not offer any excuse for putting the trunks and goods off of its car at Fulton, Kentucky, and leaving them out in the rain all night, but if the evidence shows it to be on account of the gross negligence and carelessness of defendant’s agents and servants, then defendant must pay plaintiffs for damage done to trunks and 'goods on .account of such negligence and carelessness.</p> <p>Defendant contends that because the plaintiff, W. E. Matthews, was a drummer, and his trunks contained samples of merchandise which were checked as baggage; that it is not liable for damage done to goods unless defendant had knowledge as to the kind of goods the trunks contained.</p> <p>The evidence shows that the defendant’s agent who checked and handled these trunks at Martin, Tennessee, when he took hold of them and lifted them asked the plaintiff, W. E. Matthews, what was in the trunks that made them so heavy, and that said Matthews told him there were dental goods and instruments in the trunks. The witness for defendant, the defendant’s agent at Martin, Tennessee, says that it is the custom of defendant to ship drummers’ trunks containing samples of merchandise as baggage, whether the drummer has one trunk or a dozen, and charge for the extra weight of trunks.</p> <p>If the evidence shows that plaintiff, W. E. Matthews, informed defendant’s agent whai was in the trunks; it shows that it is the custom of defendant to ship drummers’ trunks containing merchandise, and charge for the extra weight of trunks, and that said W. E. Matthews paid for the extra weight of ms trunks as other drummers were required to do, and that he was. only a drummer, then the court did right in refusing to give instruction “A,” which was offered by defendant; defendant has. nothing of which to complain.</p> <p>Wherefore the appellees earnestly ask this court to affirm the-judgment of the lower court in this case.</p>

Case 110 — Motion of Louisville Ry. Co. against Herman Albín for Judgment on a Bond for Costs. — March 12, 1902. APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The main question by this appeal is whether or not the appellee could rightfully require the appellant who was surety on the bond for costs, to pay the costs of the stenographic transcript of the evidence amounting to $92.60 and a partial transcript amounting to $7.20.