Volume 115 — Kentucky Reports

<p>Case 1 — Action by Ben. Spaulding against C. .S. Hill to Recover a Percentage on Certain Judgments in Suits Instituted While Plaintipe was County Attorney.</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintive Appeals.</p> <p>The appellant, Ben. Spaulding, was certainly present and assisted in the prosecution of the L. & N. it. R. Co., in all the indictments that were procured against it. There are only two questions for the court to consider.</p> <p>1. Wer,© the judgments at the January term, 1902, entered in pursuance of the agreement made and entered into between the Commonwealth and the railroad company?</p> <p>2. Do, the judgments relate back to the date of that agreement?</p> <p>¡We think the court will have to answer both questions in the affirmative.</p> <p>In law and justice the man who does ithe work is entitled to ■the commission. It is not pretended that appellee, Hill, rendered any service whatever. If there had been ,a trial at the January term, 1902, after Hill went into office and he had been present and assisted, he would have been entitled to the commission; but there being no trial at that time, no assistance could •he rendered by him. 'The service had all been previously rendered by appellant, Spaulding, and the judgments were entered pursuant thereto.</p> <p>The court was not a party to the private agreement made, between the Commonwealth’s .attorney and the attorney ofi the railroad company, that if the appealed cases were affirmed, the company would confess judgment in three of the remaining indictments, and the other nine should be dismissed. Neither the court nor the attorney for the Commonwealth, nor the railroad, was bound by this agreement, although the court may, where it is satisfied such agreements have been made in good faith, allow the judgments to, be entered accordingly on the motion and consent of the parties making them.</p> <p>The right of the Commonwealth’s attorney as well as the ■county attorney to a per cent, of the fine does not accrue until the rendition of the judgment, and at the time the judgments were entered in these cases appellant was out of office and appellee was in office, and was present consulting and advising with the Commonwealth’s .attorney, and is clearly legally entitled to the commission.</p>

Case 2 — Action by W. B. Dudley against the City of Flemingsburg fob Personal Injuries, by Being Knocked Down' by a Coasting Bled on the Btreet. APPEAL FROM. FLEMING' CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Case 3 — Action by Walter EIarly’s Administrator against Louisville, H. & St. L. Ry. Co. to Recover for the Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>Railroads — Negligence—Accidental Killing — ■ Presumption— Res Gestae — 'Peremptory Instruction. J</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. Duty of engineer and those in charge of ia train when an object is seen on or near the track, which may be a human being. II. Thompson on Negligence, section 1740.</p> <p>2. In view of 'the fact that a small'object could be seen and identified seven hundred and fifty yards-distant, it was a question for the jury to determine whether or not the statements of the train crew, that they thought an objéet seen was a piece of paper, and could not stop the train when they learned it was a man, were true. Becker v. Louisville & Nashville R. R. Co., 61 S. W.. R.„ 997.</p> <p>3. In approaching places along the line of a railroad, where people may be expected upon the track and have the right to be there, .such as a neighborhood road used by the public generally, and kept in repair by the railroad company, it is the duty of those in charge of a train to keep a lookout, ascertain if the track is unobstructed, sound the alarm and avoid inflicting the injury if it can be done with due regard to the safety of those on the train, and their failure to do this is negligence. Ham-mil v. 1a & N. R. R. Co., 14 Ky. Law Rep., 292; L. & N. R, R. Co. v. Schuster, 10 Ky. Law Rep., 65; Paducah, etc., Ry. Co. v. Hoehl, 12 Bush, 50; Connell v. Ches. & Ohio R. R. Co., 68 S. W. R., 374; Cahill v. Cincinnati, etc., R. R. Co, 92 Ky., 345; II. Thompson on Negligence, sec. 1562; Beach on Cont. Negligence; sec. 212; 3 Elliott on Railroads, sec. 1252.</p> <p>4. It is never presumed that a man killed on a railroad at a place where he had the right to, be, recklessly or carelessly imperils his own life. Cahill v. Cincinnati, etc., R R. Co., 92 Ky., 345; Louisville, etc., R. R. Co. v. Goetz, 79 Ky., 442.</p> <p>5. Even if plaintiff was guilty of negligence, considering the long distance the deceased could have been seen, the question should have been submitted whether those in charge of the train did, or could, by reasonable diligence, have discovered the danger in time to prevent it. Cahill v. Cincinnati, etc., Ry. Co., 92 Ky., 345.</p> <p>■We do not think the statements of the train mein, under the •circumstances as detailed by John Patry, was a part of the res gestae. But if it was, and if the evidence was competent, then the appellant must stand by it. It is the plaintiff’s own evidence, by which it is proven that as soon as the man was discovered on the track everything was done that could have been done to avoid striking him.</p> <p>Here is a man walking either along the track, or attempting to cross the track. It is out in the country, where thei road runs through woods and cleared land. At the point where he was struck he could, when standing on the track, or within forty >or fifty feet of it, see up the track, towards Reed’s Station, whence the train was coming, for at least one mile. tSome of the plaintiff’s witnesses say they heard the rumbling of the train, saw the smoke and heard it whistle when it was several hundred yards from the crossing. Early was either walking in the same direction the train was coming and was overtaken by it, or was walking towards the train and they met, or he was attempting to cross the track immediately in front of the train and was struck, or he was lying flown on the track. The evidence does not disclose which state of case existed, except as the plaintiff brings out from the" witness, Patry — 'the statement of the conductor. If Early, was attempting to cross the track and stepped in front of the train he took his life in his" hands, and the plea of contributory negligence must prevail. If he was walking on the track and w8s either overtaken by the train, or met by the train, or wasJying down on the track, he was a trespasser, and. the defendant was not liable unless those in charge of the train discovered' his peril in time to avoid injuring him. Of that there is not -a syllable of proof except what the plaintiff introduces over the defendant’s objection, and that establishes the fact that when' he was discovered on the track they were too close to Him to stop the train or to avoid injuring him..</p> <p>As .stated, all negligence upon the" "part of the defendant is denied and contributory negligence is pleaded. There is no presumption of negligencei against the defendant, any mor© than there is a presumption of contributory negligence upon the part of the plaintiff. The burden was upon the plaintiff to show negligence upon the part of the defendant. The proof, we submit, wholly fails to establish any such fact, but taking all of the plaintiff’s evidence, it does establish the fact, either, (1), that he was overtaken by, or met by, the train at a point where he could see the train for at least a mile. The defendant had the right to presume that he would exercise his senses and get out of the way of the train. (2) Or, as stated, he stepped in front of the train in order to cross the track. (3) Or was lying down on the track. In .either case there is no proof that the defendant neglected any duty it owed, to him, but that his death was the result of his own reckless lack of care for his own safety.</p> <p>AUTHORITIES.</p> <p>Negligence upon the part of the defendant will not be presumed. It is as reasonable to presume contributory negligence upon the part of the deceased as it is to presume actionable negligence upon the part of .the, defendant. Hughes v. Cincinnati, &c., Ry. Co., 91 Ky., 526, 16 S. W., 275; Wintuska v. L. & N. R. R. Co. (Dec. 17, 1892), 14 Ky. Law Rep., 579, 20 S. "W.,. 819; L. & N. R. R. Co. v. Vittitoe’s -• Admr. (June 18, 1897), 19 Ky. Law Rep., 612, 41 S. W., 269; L. & N. R. R. Co. v. Humphrey’s Admr. (April 21, 1898), 20 Ky. Law Rep., 642, 45 S. W., 503; L., St. L. & T. R. R. Có. v. Terry’s Admr., (October 25, 1898), 47 S. W., 588, 20 Ky. Law Rep., 803; Louisville Gas Co. v. Kaufman, &e. (December 13, 1898), 20 Ky. Law Rep., 1069, 48 S. W., 434; L. & N. R. R. Co. v. Wathen (January 28, 1899), — Ky. Law Rep., 49 S. W., 185.</p> <p>The crossing at or near which Early was killed was not such a crossing as made it incumbent upon defendant to signal the approach of the train. To constitute a public crossing within the meaning of the rule requiring trains to signal upon approaching the road must have been established as a public road in a manner prescribed by the statute or must have been dedicated to the public and that the dedication accepted by the county court upon its records, or by the continued use and recognition of the ground as a public highway for such a length of time as would imply an acceptance. Railroad Company v. .Survant, 96 Ky., 197.</p> <p>The crossing in question was a mere path i'n a field. The train had whistled for the public crossing a short distance above this path.</p> <p>The defendant is not liable to trespassers except for a failure to use what means are in its power to avoid injury after the peril is discovered. It is not under obligation to be on the lookout for trespassers. Railroad v. Howard, 82 Ky., 212; Railroad Co. v. Gastineau, 83 Ky., 119; Shackelford v. Railroad Co., 84 Ky., 43; Railroad Co. v. Coleman, 86 Ky., 556; Johnson v. Railroad Co., 91 Ky., 651; MeDermont v. Railroad Co., 93 Ky., 408.</p> <p>RES' GESTAE.</p> <p>Declarations made by the engineer five or ten minutes after the accident were not -so nearly contemporaneous with the act as to make them admissible as part of the res gestae. Railroad 'Company v. Pox, 10 Ky. Law Rep., 399.</p> <p>APPELLANT’S AUTHORITIES.</p> <p>Becker v. L. & N., 61 S. W., 997.</p> <p>In that case five children were on the trestle or bridge, the oldest was fifteen, the youngest eight or nine yeans old. They could be seen by the- engineer nine hundred and sixty-two feet before reaching the trestle. In that case this court says; “If they had simply been on the railroad track in the open country it might be said that the defendant had a right to presume that they would step off the track and get out of the way of the train, but if a party, having started to cross a bridge of as much length as the one under consideration, had no means of escaping except to reach the J' -ruination of the bridge, common humanity demands, even if a trespasser, lie should not be wantonly run over, but should have a reasonable chancel to cross the bridge in safety.” The court then quotes from Shearman & Redfield on Negligence, section 483¿ as follows: “In general, an engineer has the right to assume'that a person walking upon the track is free to act, and is in possession of all ordinary faculties and will therefore act with ordinary prudence.”</p> <p>As .said in the Hoel Case, 12 Bush, 48: “No rule of negligence can be laid down that will apply toi all cases.” Each ease, in great part; stands upon its-own merits. In this case there was no question of negligence that the court could submit to the jury. Taking the plaintiff’s, own evidence as a whole, or taking testimony of any one witness by itself, ithere was no theory, or hypothesis, or presumable state of case, upon which the court could have predicated an instruction that would have authorized a verdict for the plaintiff. 'There was absolutely nothing for the court to do but to direct the jury to return a verdict for the defendant. And, we will add, that all the facts disclosed by the diagram, on the blackboard which is not made a part of the bill of exceptions, must be assumed to have justified the instruction of the court. - '</p> <p>An affirmance is asked.</p>

.Case 4 — Action by E. L. Shotjse against A. P. Taylor and Another to Quiet Title. APPEAL FROM SHELBY CIRCUIT COURT. Demurrer to Jurisdiction of the Court Sustained, and Plaintiff Appeals.

Case 5 — Action by W. R. Stephens against Charles Wilson and Others to Recover Damages fob False Imprisonment.— APPEAL FROM BATH CIRCUIT COURT. Petition Dismissed and Plaintiff Appeals. This action was brought by W. R. Stephens against Wilson, Bascom and Atchison, for unlawfully and by force and against ■his will, arresting and imprisoning him and detaining him in custody for more than five hours.

Case 6 — Action by David Hays and Another against J. B. MoLin and Others for Cutting and Removing Timber from Land. APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. POINTS DISCUSSED AND AUTHORITIES CITED FOR APPELLANTS. 1. After thirty years occupancy and actual possession, the law will presume a grant from the Commonwealth of Kentucky.

<p>Negligence of Connecting Carrier — Liability of Receiving Carrier —Bill of Lading — Corporation—Service of Process — Appearance by Appealing.</p> <p>Held: 1. Where a contract between a carrier receiving goods for transportation beyond its lines and the shipper provides that the agreement is between the-shipper, the carrier, and the connecting lines, and that no line shall he liable for the negligence of any other, and that the car in which shipment is made may he transferred to all necessary connecting lines, the receiving carrier is not liable for any negligence of other carriers.</p> <p>2. Civ. Code Prac. section 51, suhsecs. 3, 4, provide that, if defendant operates a railroad, summons may he served on its passenger or freight agent stationed at or nearest to the. county seat of the county where suit is brought Held, that the phrase “passenger or freight agent,” -etc., refers to a- person in the service of defendant, and stationed by it at Some point, and hence, in an action against the last of several connecting carriers by a shipper for negligence in transporting goods, service on the agent of the •first carrier is insufficient.</p> <p>3. Where thie service of process is insufficient to give the court jurisdiction, hut defendant appeals to'a reviewing court, it is, in effect, a general appearance- in the action. -</p>

Case 8 — Action by George W. Payton against Louisville & N. R. R. Co. to Compel Said Company to Restore Cattle Guards Removed by it APPEAL PROM HARDIN CIRCUIT COURT. Judgment for Dependant and Plaintive Appeals.

<p>Carriers — ¡Long and .Short Haul — -Joint Traffic Rate.</p> <p>Held: 1. A joint traffic arrangement, hy which connecting carriers haul from a point on one road to1 a point on the other road for less -than the first carrier charges from the same point on its road to its terminus, between the points, is not in violation of Kentucky Statutes, section 820, making it an offense for a carrier to charge more for hauling for a shorter than for a longer distance “over .the same line” in the same direction, the shorter being'included in the longer distance.</p>

Case 10 — Indictment against Jeff. Jenkins for Mayhem. APPEAL FROM BOYD CIRCUIT COURT. Judgment Quashing Bench Warrant and Discharging Defendant from Custody and the Commonwealth Appeals. It is manifest from the proceedings in this case, that the grand jury undertook to accuse Jeff. Jenkins- of the crime of mayhem, but in giving the name of the party accused, he was called Albert Jenkins inteasd of Jeff. Jenkins.

<p>¡Railroads — Mortgages—Bonds—'Foreclosure Sale — Bondholders— •Organization of Pool to Purchase Road — Right to Membership — Equal Equities.</p> <p>Held: 1. Prior to, the foreclosure sale of a railroad certain of the bondholders took steps to form u pool to buy the property at the •sale, an agreement by which the .bondholders signing the same appointed an .agent to purchase the property and agreed to advance a sum in cash proportionate to their holdings of bonds being circulated among the bondholders. Plaintiff bondholders •asked to sign the agreement, and were told to leave their bonds with a certain person, who would sign for themj Plaintiffs did ■so, and this person signed his name rto the agreement as the •owner of twelve bonds, nine of which were plaintiffs’; all of the bonds being signed for in the agent’s name, P. B. Reed, as an organizer of the .pool objected to plaintiffs becoming members thereof because of personal antipathy. This person, on learning that the agent’s signature included plaintiffs’ bonds, insisted upon the subscription being canceled, which was done, against plaintiffs’ protest. Held that, when the pool agreement was signed by plaintiffs' agent, they became members of tbe pool, and tbe subsequent withdrawal of tbeir names did not affect their rights.</p> <p>2. Under Kentucky Statutes, section 771, .providing that upon judicial sale of any railroad the purchaser shall ¡pay in cash, except that, if the property be purchased by the holders of securities issued by the company, the purchaser shall be required to pay only such amount as the court may deem sufficient to, insure compliance with 'the bid, and the purchaser shall therefore be entitled to pay the bid by payment of money or surrender of securities in proportion as such, securities shall be entitled to receive the purchase money, and that all holders of the same class of securities shall be entitled to have equal rights in such purchases, all holders of railroad bonds are entitled to membership in a pool organized among the bondholders to purchase the property at foreclosure sale.</p> <p>3. Where holders of railroad mortgage bonds are improperly excluded from a pool organized by bondholders to purchase the property at foreclosure sale, they are entitled, after the property has been sold by the pool to third parties, to an accounting, and to their proportionate share of the proceeds of the transaction.</p>

<p>Malicious Prosecution — Criminal, Libel — Indictment—Evidence— Justification — Instructions—Probable Cause.</p> <p>Held: 1. Where one was indicted for criminal libel under an indictment containing three paragraphs, hut the prosecuting attorney elected to prosecute on the first paragraph alone, in a subsequent action by accused for malicious prosecution it was error not to permit defendant to show that the second and third paragraphs of the libelous matter charged in the indictment were false.</p> <p>2. In an action for malicious prosecution, plaintiff having been indicted for a criminal libel, libelous matter that was laid before the grand jury, and which was not included in the indictment, because constituting a separate offense, and properly a .subject for another indictment, can not be introduced in evidence by defendant to justify his action in obtaining the indictment.</p> <p>3. The premiums payable on insurance policies issued by a certain company were according to a schedule 'of rates indorsed on the policies, less the dividends awarded, the rates increasing as the age of the insured advanced; and it was stated that the dividends would probably offset tbe increase, and give a level rate of premium. Plaintiff caused an article to be published charging an agent of such company with practicing fraud on its policy holders. He was indicted for criminal libel, and, after acquittal, sued the company for malicious prosecution. Held, that evidence that agents for the company deceived persons hy assuring them absolutely that there would he a level rate of premium was not objectionable as impeaching the printed statements of the policy, inasmuch as the rule forbidding evidence contrary to the terms of an instrument .only applies to the parties thereto.</p> <p>4. ’ The question as to what facts constitute probable cause for a prosecution is a question of law for the court.</p> <p>5. On malicious prosecution the question whether certain facts exist, which, if they do exist, show probable cause, is for the jury.</p> <p>6. A criminal libel is committed by any writing calculated to create disturbance of the peace, corrupt public morals, or lead to any act which, when done, is indictable.</p> <p>7. In an action for malicious prosecution plaintiff having been indicted for criminal libel, in defining “probable cause” the court should set out the matter charged as libelous, and instruct the jury that it is libelous if untrue, and that defendant had probable cause for the prosecution if its agents who procured the indictment believed, and had grounds such as would induce a man of ordinary prudence to believe, thát the matter published, or any substantial part of it, was materially false.</p>

Case 13 — 'Action by Mary J. Howerton against the Louisville & N. R. R. Co for Personal Injuries. APPEAL FROM SHELBY CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

Case 14 — Action by Morris Fred against W. H. Traylor for Slander APPEAL FROM LINCOLN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. POINTS AND AUTHORITIES. 1. Words spoken of a person respecting his occupation, that damage or tend to damage him, are actionable per se. Lawson on Rights & Remedies, vol, 3, secs. 1245, 1248-9 and 1257; Cooley on Torts, pp. 229, 236; Hargen v. Purdy, 93 Ky., 424. 2.

<p>Loan from Insurance Company — Policy as Collateral — Default—-1 Forfeiture.</p> <p>Held: 1. A provision in a contract of loan from an insurance company for which its paid-up policy is pledged as collateral, that on default in payment of interest for thirity days the policy shall, at the company’s option, he surrendered to it at the customary cash surrender value then allowed hy the company for the surrender of policies of that class, is void.</p>

Case 16 — Action by Bourbon County Court, against the Hartford Fire Insurance Company to Recover a Policy of Fire Insurance APPEAL FROM BOURBON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The court house of Bourbon county was insured for $50,000 in various companies, and was burned. A large portion of the building remained.

Case 17 — Action by Coleman Farthing against J. C. Carter on Purchase Money Land Notes. APPEAL FROM GRAVES CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES -CITED. 1. The amount of money assumed to be paid is one entire debt from the time it is agreed to be paid, notwithstanding it may be divided up into aliquot parts maturing at different times. Beard v. Hopkinsville, 95 Ky., 239; 44 Amer. -S. R., 222. 2.

<p>Guardian — Nomination by Minor — 'Compliance with Statute.</p> <p>J^xld: 1. Under Kentucky Statutes, section 2022, permitting a minor fourteen years of age to nominate his own guardian, either in the presence of the court or hy a writing signed in the presence of the judge, after a privy examination, an order appointing , a guardian on nomination hy writing is voidable where the Minor did not attach the signature in the .presence of the judge, and was not privately examined hy him.</p>

<p>Case 10 — Action by E. L. Hudgins against Caster County for Services as Physician in Smallpox Epidemic.</p> <p>appeal from carter circuit court.</p> <p>Judgment Dismissing Plaintiff’s Petition on Demurrer and He Appeals.</p> <p>This is an action by appellant against Carter county for a reasonable allowance for his services as health officer of said county.</p> <p>This appellant filed his petition setting out his appointment as health officer hy the State hoard of health, the prevalence of a smallpox epidemic in the county, and a statement of his services, time engaged, and his presentation of his claim to the fiscal court and its refusal to allow it. To this petition the defendant, without demurrer or objection, filed answer in which it attempts to traverse the allegations of the petition, and in another paragraph attempts to set out its liability to appellant, claiming that it had already allowed something, but was willing to confess judgment for $1,000 at that itme.</p> <p>Later on it filed a paper called a special demurrer, consisting of six grounds. (1) Because the account sued on is not the same presented to and passed on by the fiscal court. (2) Because said court had no opportunity to pass on the claim sued on. (3) Because plaintiff presented his claim to said court for $4,050, and it allowed him $700 for services between October, 1900, and October 15, 1902. (4) Because said allowance of $700 is, in effect, a judgment on plaintiff’s claim and binding on the county, and was allowed for all his services up to October 15, 1901. (5) Because plaintiff’s claim sued on is not an appeal from any judgment against Carter county. (6) Because the Carter circuit court has no jurisdiction to vacate or modify an order or judgment of the Carter fiscal court except on an appeal.</p> <p>The court overruled the demurrer on grounds 1, 2, 3, 4, and sustained it on 5 and 6. The plaintiff failing to plead further, his petition was dismissed, from which judgment this appeal is prosecuted.</p> <p>The code recognizes four grounds of special demurrer. (1) That the court has no jurisdiction of the defendant or of the subject matter of the action. (2) That the plaintiff has no capacity to sue. (3) That another action is pending in this ¡State between the same parties for the same cause. (4) That there is a defect of parties, plaintiff or defendant. ' Either of said grounds is waived unless distinctly specified by demurrer thereto, except the objection to the jurisdiction of the court. Section 92, Civil Code. No general demurrer was filed. The only question that can possibly be raised on this state of facts, is, do the facts stated create a liability on the county, and if so, is the remedy by appeal from the order of the -fiscal court exclusive of all other remedies?</p> <p>We contend that the remedy by appeal is cumulative and not exclusive, and there can be no question that the plaintiff had a valid subsisting claim against the county for his services.</p> <p>AUTHORITIES -CITED.</p> <p>Civil 'Code, secs. 92, 93; Kentucky Statutes, secs. 2047, 2055, 2060; Henderson County Board of Health v. Ward, &c., 21 R., 1193; Stephens v. Allen, 19 R., 1707; Washington County Court v. Thompson, &c., 13 Bush, 239.</p> <p>The question raised by special demurrer to the jurisdiction of the Carter circuit court, in this action, is, has an officer of the county a right to sue the county for services rendered . without first presenting his claim to the fiscal court for allowance?</p> <p>We contend that appellant’s suit is nothing more than a suit for his salary. He does not allege that he ever asked the court to fix his salary, but says his services are worth the amount' sired for.</p> <p>He says he presented his claim for $4,050 to the fiscal court for his services, yet he sues for $4,500. We claim that his remedy is by appeal. In this way he gives the county an opportunity to allow his claim without payment of costs.</p> <p>As to the demurrer filed we contend that it does not matter by what name a pleading is called. If it raises the proper question the court will name it.</p> <p>CITATIONS.</p> <p>- Kentucky Statutes, sees. 978, 2047, 2055, 2060, 1840; Com. of Kentucky, sec. 107; Boone County v. Dells, 5 R., 686; Garrard County v. McKee, 11 Bush, 234; Washington County Court v. Thompson, &c., 13 Bush, 239; Hughey v. Sidwell, .18 B. M., 259; Barton v. Barton, &c., 80 Ky., 212; B. & N. B. R. Co. v. Brantley, 16 R.</p>

<p>Taxation — Decedent’s Estate — Unlisted Property — Sufficiency of Description — Possession by Curator — Liability.</p> <p>Held: 1. Kentucky Statutes (1899), section 4052, provides that the person owning or possessing property on September 15th shall list it with the assessor, and. section 4241 requires the auditor’s agent to cause property omitted to he listed, and to file in the clerk’s office a statement containing a description and value of such property. Held, that a statement designating property sought to he taxed as “money, notes, bonds, mortgages, certificates, and national bank stock,” etc., sufficiently described it.</p> <p>2. Under Kentucky 'Statutes (1899), section 4052, providing that a person owning or possessing property on September 15th shall list it for taxation, and remain hound for the tax, though he may have sold or parted with it, the curators of an estate, who have failed to list the property thereof while in their possession, may he proceeded against, and the tax collected, even after they have parted with possession of the property.</p>

Case 21 — Action by William E. Bethel against a. Booth & Company fob Breach of Contract APPEAL FROM KENTON CIRCUIT COURT. Judgment fob Defendant and Plaintiff Appeals. In this ease the plaintiff alleges three elements of damage: 1. Inadequacy of price for his store obtained as part of the agreed consideration for which he was to remain out of business ten years and to have employment from defendant for that length of time. 2.

Case 22 — Action by D. C. Dawson and Others to Enjoin the Trustees oe Common School District No. 40 erom Collecting Taxes. APPEAL EROM LOGAN CIRCUIT COURT. Judgment Dissolving Injunction and Dismissing Petition, and Plaintiees Appeal. The authority for levying a school tax is found in section 4440, Kentucky .Statutes. The prerequisite to the levy must be: 1. The condemning of the school house by the county superintendent which must be done by record in his office. 2.

Case 23 — Action by the Consolidated Boat Store Company against Alexander Montgomery on a Judgment Rendered in the State oe Ohio. APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.

Case 24 — Two .Suits — One by J. M. Gilbert and One by James P. Crow against the City of Paducah and Others, to Restrain the City from Interfering witi-i Them in Their Official… Held: in the ease of Jernigan v. The City of Madisonville, 19 Ky. Law Rep., 412, that the act giving the courts jurisdiction was unconstitutional, and that the legislative department of the government must alone determine how and when this transfer from the one class to the other should be made.

<p>•Case 25 — 'Action by John L. Dodd and Others, Minority Stockholders in the Louisville Bridge Company against the Bridge Co., L. & N. R. R. Co., Jeffersonville, Madison & .Indianapolis R. R. Co., B. & 0. Sv W., as Successor of the O. & M. R. R. Co., and the P. C. C. & ST. L. R. R. Co., to Compel the Railroads Named to Provide, and the Bridge Company to Collect from Them a Sum ¡Sufficient to Pay the Deficit in Certain Dividends, and fob Breach of Contract.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiffs for Part of Their Demand and Defendants Appeal, and Pile Cross Appeal.</p> <p>(The brief of the attorneys for appellants being very elaborate, the reporter finds it difficult to condense it without taking up too much space, and as there is no brief in the record by the appellees will only give the conclusions of the attorney and authorities cited.)</p> <p>In conclusion we submit that we have shown:</p> <p>1. That the judgment against the appellants is erroneous in all of the respects complained of.</p> <p>.2. That the stockholders in this case have no right to maintain the suit, because there has been a total failure to show* that the acts complained of were either ultra vires or fraudulent.</p> <p>3. That even if they had been fraudulent, most of the acts committed occurred prior to the time when the plaintiffs acquired their stock.</p> <p>That appellees have been guilty of such gross laches ‘in waiting until all the principal parties are dead, and in now seeking to undo transactions consummated from fifteen to thirty years ago, they will not receive the aid of a court of equity.</p> <p>5. That their various claims, except their claims for dividends •on the basis of eight per cent., are all barred by limitation, and so far as their claim for a dividend deficit on a basis of •eight per cent, is concerned, appellants are not in default, nor •are they responsible for the defaults of other railroad companies.</p> <p>We respectfully ask that the judgment be reversed with directions to dismiss the petition.</p> <p>AUTHORITIES CITED.</p> <p>Construction of contract involved. Louisville Bridge Co. v. (Louisville & Nashville Railroad Co., 21 Ky. Law Rep., 272.</p> <p>Unless pleadings support judgment, it is void. Allsmiller v. Freutchenieht, 86 Ky., 198.</p> <p>Ten years’ statute applying to every ease not specifically provided for, applicable to this case, if other statutes cited are not. Allen v. Froman, 96 Ky., 316; Wright v. Gardner, 98 Ky., 460.</p> <p>iWho so seeks equity must do equity. Louisville Water Company v. Hamilton, Sheriff, 81 Ky., 517; Clark v. Water Co., 90 Ky., 524.</p> <p>Court of equity no jurisdiction to entertain suit of minority stockholders unless acts complained of are either ultra vires or dishonest. Cooke on 'Stockholders, secs. 683-4; Morawetz on Private Corporations, sec. 243; Hawes v. Oakland, 104 U. S., 450, reviewing English and American cases; Shaw v. Davis, 78 Md., 308; S. C., 28, Atl. Rep., 619; 23 L. R. A., 294; North American Land & Timber Co. v. Watkins, 109 Fed. Rep., 105.</p> <p>Minority stockholders can not force corporation into litigation deemed unwise by the majority, so long as the directors act in good faith and the acts of the corporation are intra vires. •Cooke on 'Corporations, sec. 750; Slattery v. St. D. & N. O. Transportation Co., - 91 Mo., 217; Louisville Trust Co. v. L., N. A. & C., 75 Fed. Rep., 449; Hoyt v. Thompson, 19 N. Y., 216; R. R. Co. v. Ailing, 99 IT. iS., 463.</p> <p>Owners of stock acquired subsequent to the act complained of have no standing in court. Hawes v. Oakland, 104 U. S., 450; Dimpfell v. 0. & M., 110 U. S>., 210; Alexander v. Searcy, 81 Ga., '536; Moore v. Sylvester Mining Co., 104 N. C., 534.</p> <p>Laches. Cooke on Corporations, secs. 728 and 729; Morawetz, •sec. 630; Johnson v. Standard Mining Co., 148 U. S., 370; Hammond v. Hopkins, 143 U. S., 250; Mackall v. Casilear, 137 U. S., 566; Johnson v. West India Transit Co., 156 XT. S., 646; Lansdale v. Smith, 106 IT. S., 219; Speidell v. Henrici, 120 U. S1., 377; Brown v. Buena Vista, 106 IT. S., 168; Richards V. McCall, 124 IT. .S., 183; Credit Co. v. Ark Cent., 15 Fed. Rep., 46; St. Paul v. Sage, 49 Fed. Rep., 324; Snow v. Boston, 33 N. •E. Rep., 538; Pinnis v. Minnesota, etc., 67 N. W. Rep., 644; 'Cullen v. Coal Creek Mining & Mfg. Co., 42 S. W. Rep., 697.</p> <p>Limitation. Kentucky Statutes, secs. 2515, 2519, 2522; Robinson v. Elam, 90 Ky., 300.</p>

Case 26 — Indictment against George Cosby rob Maliciously Striking and Wounding Another with a Club and Rock with Intent to Kill. APPEAL PROM NELSON CIRCUIIT COURT. Dependant ‘Convicted and Appeals. I prosecute this appeal as attorney for defendant by appointment, believing he has not had a fair trial, and that the verdict is excessive.

Case 27 — Action by Wickliffe against Morgan to Enforce a Mortgage Lien on Land. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. ¡Section 579, Civil Code, does not require misprisions to be indicated in notice. Appellant respectfully urges that his case be reversed: 1. Because the bond to • the non-resident defendant, Fannie C. Morgan, required by section 410, Civil Code, has not been executed.

Case 28 — Action by Auditor's Agent in the Name oe the Commonmonwealth against Mahala Nute, to have Certain Property Assessed for Taxation. APPEAL FROM FLEMING CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 29 — Proceeding for Mandamus by J. C. W. Beckham against Allie W. Young and Others, to Compel Defendants to Place the Name op Plaintiff on the Ballot as a Candidate… Held: and further decides that under the party law the State executive committee had the power to call the primary, then the committee has no- power to pass upon the eligibility or qualifications of the appellee. Therefore, the question as to the eligibility of the appellee is not involved in this appeal.

<p>Case 30 — Action by Wm. J. Jacob against W. W. Hill as Committee oe William Clark to Recover Three Times the Amount oe Certain Notes Executed by Cooke to Clark Alleged to have Been Given as the Result oe a Gaming Transaction.</p> <p>APPEAL FROM JEEFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>SYNOPSES.</p> <p>1. Money lost at gaming and paid may be recovered. Kentucky Statutes, secs. 1966 and 1958.</p> <p>2. The fact that the money is paid under a judgment does not alter this rule; the doctrine is akin to the doctrine in matters of usury as to which see Ross v. Ross, 3 Met., 274; Sherley v. Tr.abue, 85 Ky., 71; Paine v. Henderson, 20 Ky. Law Rep., 1739.</p> <p>3. A payment by a surety enures to the benefit of his principal and should be' regarded as a payment by the principal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The judgment rendered by t'he Jefferson circuit court under the direction of this court against J. Esten Cooke, for whom appellant was surety on the supersedeas bond, is conclusive ■as against Cooke as to the defense of. gaming consideration, although that plea was not urged in the suit in which judgment was originally rendered against him. Davis v. McCorkle, 14 Bush, 746-55; Civil Code, sec. 17; Herman on Estoppel, vol. 1, secs. 122, 123, 124, 125, 126, 127.</p> <p>2. The judgment against Cooke is conclusive as to. the appellant as surety in the supersedeas bond. Herman on Estoppel, vol. 1, sec. 145; West v. Carter, 25 111., App., 245-47; West v. Carter, 129 111., 256; Chicago Driving Park Assn. v. West, 35 111., App., 496; Van Fleet on Collateral Attack, sec. 559.</p> <p>.3. Under our present statute judgments based upon a gaming consideration are no longer void. .Such a defense must now be asserted before judgment. The rule' was different before the adoption of the Revised ¡Statutes in 1852. Kentucky Statutes, sec. 1955; Gen. Stat. chap. 47, art. 1, sec. 1. 1 Morehead & Brown’s Digest, 749-51; 2 Littell’s Laws, 103; 5 Littell’s Laws, 588; Civil Code, .sec. 17; Broaddus v. Broaddus., 10 Bush, 308.</p> <p>4. .Statutes against gaming are to be strictly construed. Great-house v. Throckmorton, 7 J. J. Mar., 28; English v. Young, 10 B. (Mon., 142; Barnes v. Turner, 4 Met., 114; West v. Carter, 129 111., 256.</p> <p>ADDITIONAL POINTS AND AUTHORITIES.</p> <p>1. Independently of express provisions of our statutes there can be no recovery 'in this case. Clay v. Fry, 3 Bibb, 248; •Downes v. Quarles, Litt. Sel. Cases, 489; Greathouse v. Throckmorton, 7 J. J. M., 28; McKinney v. Pope, 3 B. M., 93-101; 1 Morehead & Brown, 749-758; Revised Statutes, chap. 42, sees. 1-4; General Statutes, chap. 47, art. 1, secs. 1-4.</p> <p>2. The petition is fatally defective in that it does not aver that the alleged games of chance occurred in Kentucky. Heard v. Faris, 1 Litt., 245; Martin v. Richardson, 94 Ky., 183-187; ■Manz v. St. Louis, etc. Ry. Co., 87 Mo., 278; Cole v. "Smith, 4 Johnson (N. Y.), 193; 1 Encyclopedia of Plead, and Prae., 248, 275.</p> <p>3. The statute in this case, when properly construed, does not permit an action against either of these appellees in this sort of case. Greathouse v. Throckmorton, 7 J. J. M., 28.</p> <p>4. There has been no money paid in this case upon a gaming consideration. R. T. Jacob v. Hill, Committee, 23 Ky. Law Rep., 1529.</p>

<p>Case 31 — Action by Virginia Mayes against J. B. Karn and Others for a Construction of the Will of John F.„ Fuqua, Deceased, ■Her Former Husband.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>From the- Judgment Rendered Plaintiff Appeals.</p> <p>The purpose of this suit is to obtain a construction of the will of John P. Fuqua, deceased, former husband of appellant, .who died in 1864, leaving one child, a daughter, who married appellee, J. B. Karn and has since died leaving one child, a daughter, the appellee, Mrs. Eva L. Hardwick.</p> <p>At the date of the death of testator, his daughter, Mrs. Karn, was a minor and his sole heir, and she has since died intestate, leaving Mrs. Eva L. Hardwick as her sole heir.</p> <p>The single question is, what interest, right or title did the. appellant, Virginia Mayes taire under this will?</p> <p>The items under consideration are as follows, viz.:</p> <p>Item second. It is my will and desire that my wife and children shall be .supported from the proceeds and income of my estate, and that the sum of $1,145 which I have in money, shall be invested in real estate for the benefit of my wife and children.</p> <p>Item third. Having purchased of my brother, R. C. Fuqua, a tract of one hundred acres of land, it is my will that he convey the same to my wife and children.</p> <p>Item, fourth. It is my will that my wife shall not have the power of disposing of any portion of my estate, but that her support and the education of the children shall be from the income of the estate and from the nates on hand.</p> <p>Our contention is:</p> <p>1. 'That appellant took under the will, a life estate in all the real property owned by the testator at his death.</p> <p>2. That after the education of the children the appellant has the right to the entire income from the estate of which testator died seized and possessed during her natural life.</p> <p>It is a well settled rule of law that every item of a will must be construed from the intent of the testator to ¡be gathered from the whole will.</p> <p>AUTHORITIES CITED.</p> <p>Arnioild’s Executor v. Arnold’s Admr., 11 B. Mon., 81; 28 Am. ■& Eng. Ency., 1st ed., 403; Jarman on Wills, 5th ed., see. 908; 29 Am. & Eng. Ency., 1st ed., 404, and authorities cited in note 1; Jones v. Jones, 93 Ky., 53.2; Koenig v. Kraft, 87 Ky., 95 (9 R., 945); Ormsby v. Dumesnil, 91 Ky., 601; Reed v. Rowan, 1 Rep., 331; Prank v. Unz., 91 Ky., 621; Barth 'v. Barth, 2 R., 1246; Conner & Wile v. Downer, &c., 4 Bush, 631; Moore v. Oalver, &c., 6 Bush, 35¡6; Churchill v. Reamer, 8 Bush, 256.</p> <p>The appellee, J. B. Karn, contends that the testator devised a support for his widow and children out of his estate, and with this exception he died intestate. In other words that the testator made no disposition whatever of any of his property except that made in item second of his will, and that to all the rest of his estate he died intestate, and that it descended to his heirs under the laws of descent then in force.</p> <p>Item fourth of the will might be considered as surplusage, except as it tends to emphasize and reiterate the intention of the testator as expressed in item second.</p> <p>If it be true, as we contend, that the testator1 devised only a support .for his wife and children out of the estate or out of the income of -the estate, then there was no life estate created by the will, and at the death of" the daughter of testator, her surviving husband at once became invested with an estate by the curtesy.</p> <p>onwnroNs.</p> <p>iRev. Stat, sec. X, art. 4, ch. 47; Milner v. Calvert, X Met., 472; Yanlrey v. .Sweeney, 8 D. R., 945; Ellis v. Dlttey, X5 L. R., 378.</p>

Case 32 — Action by W. E. Davis against L. & N. R. R. Co. for Personal Injuries. APPEAL FROM EDMONSON CIRCUIT COURT. Judgment fo Plaintiff and Defendant Appeals. POINTS AND CITATIONS. 1. Plaintiff fails to make out his case if he shows merely a state of facts which is quite as consistent with the theory that ordinary care was used as with'the theory that there was a lack of such care. Wintuska v. L. & N. R. R. Co, 14 Rep, 579; Hughes v. Cincinnati, &c. R. R. Co, 91 Ky, 526;.

<p>Taxation — Railroad Bridge — Separate Franchise Value — Valuation by State Board — Conclusiveness—Omitted Property— Limitation — Removal to U. S. Court — Action by State.</p> <p>Held:. 1. Where a railroad bridge is part of one system, built and operated under one charter, and owned by the same company as the railway line with which it is connected, it does not have a separate franchise value for the purpose of assessment for taxation.</p> <p>2. Action of the State Board of Assessment and Valuation in fixing the valuation of property liable to assessment for taxation is conclusive alike on the State and on the property owner, after the expiration of thie time allowed for hearing complaints.</p> <p>3. Act May 23, 1890, which gives the right to the Commonwealth to institute actions to recover all taxes which have accrued or may accrue, and which can not be collected by the ordinary methods of distraint and sale, but provides that no .action .shall be instituted upon any claim for taxes that have been assessed more than five yiears, deals more directly ' with actions' to recover taxes, where the assessment and levy have been made, than with cases of omitted assessments.</p> <p>4. It is the policy of the law to put at rest stale demands, of whatever character, including demands for taxes.</p> <p>5. Kentucky Statutes, section 2523, provides that the “limitations prescribed in this chapter” shall apply to actions by the Commonwealth, as well as to actions by private persons, except where a different time is otherwise prescribed. One of the actions mentioned in the chapter is section 2515' — '“an action upon a liability created by statute, when no other time 'is fixed .by the statute creating the liability'.” .Section 469 declares that the term “action” shall include all proceedings in any court in the Commonwealth. Section 4021 provides, inter alia, that “when any lands or improvements shall not be assessed in any one year it may be assessed retrospectively, in the manner provided by law, 'for that year, at any time not later than five years thereafter.” Held, that a proceeding to compel a taxpayer to list property for any one year, if not begun within five years from the time when it could first have been instituted, is barred.</p> <p>6. A State is not a citizen, and an action by it is not removable into the Federal courts under Act Cong., August 13, 1888, 25 Stat., 433 [U. S. Comp. St., 1901, p. 508], which provides for removal of a suit “wholly between citizens of different States.”</p> <p>7. A proceeding commenced in the county court .to cause the assessment for taxation of omitted property is not siuch am action as might have originally been commenced in the United States circuit court, and is not removable thereto.</p>

<p>Case 34 — Action by John Whitworth, an Employe against ti-ie I. C. R. R. Co. to Recover Damages por Personal Injury.</p> <p>APPEAL PROM M’CRAOKEN CIRCUIT COURT.</p> <p>Judgment por Plaintipp and Dependant Appeals.</p>

<p>Case 35 — Proceeding by Auditor’s Agent of Mason County against •Christian F. Sweigart’s Admr. to Collect Taxes on Property of Decedent’s Estate Omitted to be Assessed.</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to Plaintiff’s Statement, Plaintiff Appeals.</p>

Case 36 — 'Indictment and Conviction op J. L. Cookebell pob Violating Local Option Law. APPEAL PROM BULLITT CIRCUIT COURT. Dependant Convicted and Appeals. The indictment charges that the defendant, without a license, sold to P. G. Trunnell, intoxicating liquors, to-wit: whisky, brandy, ale, beer and wine, a mixture thereof, etc. We submit that the language of this indictment is not sufficient under the code, and the court erred in overruling demurrer thereto.

<p>Case 37 — -Action by H. R. Wood against R. A. Care and Charles Newell, Judge of the Mason Quarterly Court to Prohibit the Collection oe a Judgment against Him by the Defendant, Carr in Said Court by the Sale of a Horse, &c.</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to Plaintiff’s Petition, He Appeals.</p> <p>The record shows that appellee brought suit in the police court of Maysville and attached a ¿arse belonging to- appellant. Within four months after the attachment, appellant filed his application in bankruptcy and was duly adjudged a bankrupt. ■He then appeared in the Mason quarterly court, to' which the case had been appealed and filed his discharge iin bankruptcy, and moved that the attachment proceedings and judgment he discharged. The court overruled his motion and he appealed to the circuit court which also overruled his motion and ha has appealed to this'court.</p> <p>We contend that under the bankruptcy act a discharge in bankruptcy annuls all proceedings had against the bankrupt within four1 months prior to his application to he discharged as a bankrupt, and that the lower court erred in sustaining a demurrer to his petition and in not adjudging all- the proceedings void that were had within said four months.</p> <p>AUTHORITIES CITED.</p> <p>Subsection “f” of sec. 67 of the Bankrupt Daw; In re Rhoads, volume 3, Am. Bankruptcy Reports, ,p. 381; In re Dobson, same, vol., p. 470; In re Holland v. Emslie & S'on, same vol., p. 516; Bank of Columbia v. Overstreet, 10 Bush, 148; . Therman v. Andrews, 10 Bush, 400; In re Hopkins, 1 Am. Bankruptcy Report, 212; In re Richard Richards, 2 Am. Bank R., 520; Devor v. .Seiter, 5 Am. Bank Court, 576.</p> <p>On September 23, 1899, a ten dollar suit was brought by ■Carr v. Wood in tbe police court in which a horse was attach:ed. Judgment was had on October 19, the attachment susi•tained, defendant’s plea of exemption denied, and the horse ordered sold. On October 25, 1899, Wood filed his petition in bankruptcy and appealed his suit to the quarterly court. Proceedings were stayed in the quarterly court until a final adjudication in bankruptcy, when tbe ease was tried .on April 17, 1901, in which Wood pleaded exemption under the bankruptcy act, which was considered by the court and the attachment sustained. Wood then appealed to the circuit court which dismissed hig appeal.</p> <p>We contend that in seeking the. jurisdiction of the quarterly court, he is estopped to deny its jurisdiction. He appealed from its decision to the circuit court and his appeal was dismissed, .and we claim tha't this was absolutely final in this case.</p>

<p>Case 38 — 'Indictment against J. Sidney Lynch, Jailer of Estill County, fob Wilful Neglect in the Discharge of His Official .Duty.</p> <p>APPEAL from estill circuit court.</p> <p>Defendant Convicted and Appeals.</p>

<p>Held: 1. Under Kentucky Statutes, 1899, section 107, giving attorneys a lien upon all claim or demands put into their hands for suit or collection, for the value of their services, and, in case of a recovery, a lien, upon, the judgment for money or property recovered,' a- lien does not attach to an appropriation made by the Legislature to reimburse a contestant in an election contest for bis expenses therein, in favor of the attorney conducting such contest.</p> <p>2. Where the authority of an attorney to represent a client in an election contest appeared to have terminated With such contest, authority in him to.collect a sum allowed by the Legislature. to reimburse his client for his expenses incurred in such contest will not he implied.</p>

Case 40 — ’Action by Robert Williams’ Admr. against the Southern Railway in Kentucky for Damages for Causing the Death of Plaintiff’s Intestate. APPEAL FROM JEFFERSON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Will — Restriction on Alienation — Effect as to Creditors.</p> <p>Held: 1. Under Kentucky Statutes, section 1681, providing that land to which the defendant has .a legal title in fee for life or for a term, whether in possession, reversion, or retaainder, may he sold under execution, and section 2355, making estates of every kind held in trust subject to the debts of the person for who.se benefit they are so held, just as they would be if those persons owned a like interest in the property itself, the title of a devisee may be subjected by his creditors, ■ notwithstanding a provision of the will restricting alienation by him until he arrives at a certain age.</p>

<p>Municipal Corporations — Street Improvements — 'Board of Public Works — 'Powers—Contracts—-Validity—Change in Specifications — 'Stifling Competition — Apportionment of Cost of Improvement — Method—Property Assessable — Laches.</p> <p>Held: 1. Ordinances providing for a street improvement declared that “said work shall bb done in -accordance with the plans and specifications on file in the office of the hoard of public works.” At the time of their passage there were general spcifications on file. It had been the uniform custom of the board, where an improvement had been ordered, to prepare, after the passage of the ordinance, plans and specification® as the exigencies of the particular work demanded. Held, that it must be presumed that the board, in recommending the ordinances, and the general council in passing them, acted in view of such custom, and did not refer to. the general specifications theretofore printed and on file.</p> <p>2. Kentucky Statutes, 1894, section 2826, provides that no public way shall be constructed, except by ordinance recommended by the board of public works. By section 2829, whenever the .board shall order any work to be done, which, according to law, is to be prepared by independent contract, the board Shall prepare and place on file in the office of that department com•plete drawings and specifications of the work, and thereupon shall cause notice to be published that the drawings and specifications are on file, and calling for sealed proposals for the work. By section 2830, when, in the opinion of the board, it becomes necessary, in the prosecution of any work, to make alterations or modifications in the specifications or plans of a contract, such alteration or modification shall be made only by order of the board, and the order shall be of no effect until the price to be paid shall be agreed on in writing, signed by the contractor, and approved by the board. Held to vest in the board of public works, where the council has directed an improvement in general terms, the power to prescribe the details of the work..</p> <p>3. The mere fact of the board of public works, in advertising for bids for asphalt paving, called for alternative bids on two different kinds of pavement, does not invalidate the contract let by it.</p> <p>4. Where the ordinance for a street improvement was silent as to ■how the gutters should be constructed, and the board of public works stipulated for flagstone guttering, but afterwards, as provided in Kentucky Statutes, 1894, section 2830, modified the. specifications, substituting asphalt guttering, and the asphalt, was cheaper, arid it did not appear that more than a fair price was paid therefor, or that the board had abused a sound discretion in malting the change, there was no ground for objection.</p> <p>5. It iis not unreasonable for a city to require a .contractor doing street paving to guaranty the pavement for five years, and such a requirement does not tend to stifle competition.</p> <p>6. It is not unreasonable to require the contractor to maintain a plant in the city during the five years.</p> <p>7. An unconstitutional ordinance requiring payment of a license fee by contractors could be ignored 'by them, or, if they had paid anything under it, they could recover it on demand.</p> <p>8. Unless it appears that under a different method of apportioning the cost oí a street improvement the party complaining will be required to pay less, the apportionment made will not be disturbed.</p> <p>9. Where the territory abutting a street -on which paving was to be done had not been defined into squares' by principal streets, the council was authorized in the ordinance to prescribe the depth on both sides to be assessed for the cost of making the improvement.</p> <p>10. Where the apportionment of the cost of a street improvement is wrong, it is incumbent on the court, under the express provisions of Kentucky Statutes, 1894, section 2834, to correct it so as to do justice to all parties concerned.</p> <p>11. Land within the limits of a city, though used for agricultural purposes, may be assessed for street improvements in a proper case.</p> <p>12. A property owner should not be permitted to stand by in silence, and allow a street improvement to be made, and then, by raising objections, escape payment for the benefit'his property has received.</p>

Case 43 — Action by J. ¡R. Gleason against Nannie M. Wilson and Others to Enforce a.Lien for a Street Improvement in which the City of Louisville and John ,á,- -Fulton as Assignee o.f Gleason are Made Parties. appeal from jefeerson, circuit court.

Case 44 — Action by John Oman and Others against the Bedford- ■ Bowling Green Stone Company and. L. .& N. E. B. Co. for the Use of a .Switch from said Bailroad to the Stone Quarry. appeal from warren CTROUIT COURT. Judgment for Plaintiffs and Both Defendants Appeal. .CLASSIFICATION OF QUESTIONS DISCUSSED. 1.

Case 45&emdash;Indictment against the City oe Georgetown eor Permitting a 'Nuisance Within the City Limits. APPEAL EROM SCOTT CIRCUIT COURT. Dependant Convicted and Appeals.

<p>Case 46 — Action by Edwards-Barnard Co. against John R. Pflanz, Sheriff, fob Damages foe Taking Insolvent Sureties on ai Forthcoming Bond.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION — SECOND DIVISION.</p> <p>Judgment Dismissing Petition and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. Sheriff is liable for negligently taking insufficient security on a bond. Mechem on Public Officers, sec. 762; Commonwealth v. Powell, 14 Ky. Law Rep., 892; Throop on Public Officers, sec. 754; Rowe v. Williams, 7 B. M., 206; Commonwealth v. Thompson, 3 Dana, 301; Noble v. Desmond, 14 Pac., 16 (Cal.); Carter v. Duggan, 10 N. E., 486 (Mass.); Mayer v. People, 60 N. E., 96 (111.); Walterson v. Fuellhart, 32 A., 597, (Pa.); Shearman & Redfield on Negligence, secs. 624-621; ■Conover v. Com., &c.,' 2 A. K. Mar., 566; Vicksburg Grocery ■Co. v. Brennan, 20 S., 845, (Miss.); Fisher v. Davis, Littell’s Sel. Cases, 132; People v. Robinson, 89 111., 159; Am. & Eng. Ency. of Law, vol. 22, p. 651; Kentucky Statutes, sees. 4141 and 4561; Fitzhugh v. Hackley, 66 S. W., 146, (Ark.)</p> <p>2. The defendant in this action can not attack the proceedings in the original attachment suit on a question in which he had no interest. Thomas v. Maihone, 9 Bush, 119; Lewis v. Quinker, 2 Mete., 284; Vicksburg Grocery Co. v. Brennan, 20 S., 845, (Miss.); Adams v. Weisberger, 87 N. W., 16; Omaha Carpet Co. v. Clapp, 89 N. W., 246.</p> <p>3. If proceedings in former action can be attacked, the record in this case shows no irregularity that will defeat a recovery, because (a) the attachment was binding. Carlisle v. Wathen, 78 Ky., 365; Lewis v. Quinker, 2 Mete.,- 284; Civil Code of Practice, sec. 203, subsec. 2; Bell v. Wood, 87 Ky., 56.</p> <p>4. Only sufficient evidence to. support a prima facia case of negligence is required, and has been produced in this case. Dobbs v. Justices of Inferior Courts, 17 Ga., 624; Com v. Powell, 14 Ky. Law Rep., 892; 2 Greenleaf on Evidence, sees. 527, 586; Fitzhugh v. Hackley, 66 S. W., 146 (Ark.); Shear-man & Redfield on Negligence, sec. 624 and secs. 58-59 Am. & Eng. Ency. of Law, vol. 5, p. 41; Hoskill v. Com., 3 B. M., 342; Selma, Rome & Dalton R. R. Co. v. U. S., 139 IT. S., 560; Runkle et al. v. Burnam, 153 U. S., 216; Rose v. Stevens & Conduit Trans. Co., 11 Fed., 438, cited with, approval in Warn, v. Davis Oil Co., 61 Fed., 631; Western Union v. Howell, 30 L. R. A., 158, 95 Ga., (194); Reed, &c. v. Western Union, 34 L. R. A., 492, (Mo.); Merchants’ Nat. Bank v. Garhart, 32 L. R. A., 775.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The judgment of the chancellor in a common law action submitted in equity will be treated as the verdict of a properly instructed jury, and will not he disturbed unless flagrantly against tho evidence.</p> <p>2. In taking a bond, an officer acts at least quasi judicially, and is liable for the insufficiency of the sureties only on the ground of negligence.</p> <p>3. The liability of a surety on a forthcoming bond is the value of the property to the attaching creditor, and therefore all prior liens are to be deducted in estimating the damage.</p> <p>4. There can be no liability on a forthcoming bond unless the attachment be sustained, if a personal judgment only is taken, it is equivalent to discharging the attachment.</p> <p>5. Garnishment process directed against money demands does not reach property demands. Where nothing is attached, a forthcoming bond is an idle ceremony.</p> <p>6. There is no authority for the taking of a forthcoming bond where property is attached only by garnishment process.</p> <p>7. Garnishment notice is process and must be issued and attested by some officer appointed by law. A notice signed only by an attorney at law is void,</p> <p>AUTHORITIES OITED.</p> <p>1. Railroad v. Woolley, 12 Bush, 451; Walker v. Leslie, 90. •Ky., 642; Fudge v. Braswell, 13 Bush, 67; Moore v. Estes, 79 Ky., 282; Whitlock v. Ledford, 82 Ky., 390; Mercer v. Mercer, 87 Ky., 30; Fraley v. Peters, 12 Bush, 469; Railroad v. Taylor, 96 Ky., 241; Farmers’ Bank v. Btapp, 100 Ky., 432; McCampbell v. McCampbell, 20 Rep., 552; Scott v. Mitchell, 19 Rep., 1223; 'Com. v. Tilton, 23 R., 755; Meacham on Public Officers, secs. 639, 640, 762; Fischer v. Davis, Litt. Select 'Cases, 132; People v. Robinson, 89 111., 159; Hayman v. Hallam, 79 Ky., 389; Connor v. Williams, 17 R., 73; Schwein v. Simms, 2 Met., 209; McNamara v. Mattei, 50 Atl., 35; Dayton v. Merrit, 33 Com., 184; Clark v. Gaylord, 24 Conn., 484; Jackson v. Emmons, 59 Conn., 493; 22 Atl., 296; 1 Sutherland on Damages, sec. 149.</p> <p>2. Bell v. Western River Co., 3 Met., 557; Hobson v. Hall, 13 R., 109; Hazelrigg v. Donaldson, 2 Mete., 445; Taylor v. Taylor, 3 Bush, 118; Inman v. Stratton, 4 Bush, 445; Brashears v. Wood, 19 R., 1324; Meyer v. Desha, 3 Bush, 212; Oppenheimer v. Riley, 6 Bush, 118; Kassel v. Snead, 21 R., 777; Frances v. Burnett, 84 Ky., 24; Ky. Civ. Code, secs. 263, 264, 262; S'hinn on Attachments, vol. ■ — , secs. 291, 292.</p> <p>3. Sabel v. Bank, 22 R., 1756; Drake on Attachments, sec. 245; Manderson v. Speckert, 79 Ky., 509; Bell v. Wood, 89 Ky., 56; Shinn on Attachments, sec. 600.</p> <p>4. Civil Code, secs. 203, 205, 223, 224, 225, 227; A. & E. Ency. of Daw, (2d ed.), 888; S'hinn on Attachments, vol. 2, sec. 615.</p> <p>5. Civil Code, sees. 39, 40, 196, 199, 203, 205, 223, 224, 225-6-7, Constitution, sec. 123; 14 A. & E. Ency of Daw, (2d ed.), 753, 755, 29 A. & E., (1st ed.), 996; 9 Ency. PI. & Pr., 823; Shinn on Attachments, vol. 1, secs. 196, 194, vol. 2, secs. 466, 467; Middleton Paper Co. v. Rock River Paper Co., 19 Fed., 252; .Stevenson v. Campbell, 30 Ga., 159; Banking Co. v. Robinson, Norton Co., 71 Miss., 141.</p>

<p>Case 47 — Action by Lizzie W. Davis v. the Mutual Benefit Life Ins. Co. on a Policy of Insurance on the Life of Her Deceased Husband.</p> <p>APPEAL FROM BARREN CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

Case 48 — Action by Charles Rosenheim 6 Co. against H. L. Meyer to Recover the Amount Collected by Meyer, by Forged Endorsements on Plaintiff’s Checks. APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. 1. We contend that the petition in this case is not good. It does not allege that plaintiffs lost any money by any act of Meyer because of having cashed the cheeks.

Case 49 — Action by Ben Newton and Others against the Southern Baptist Theological Seminary, &c., Involving the Construction of the Will of William Newton. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal.

<p>Vendor and Purchaser — Conditional Sale — Burden of Proof— ■Sale by Husband — Adverse Possession' — Limitations—Tenants in Common — Ouster.</p> <p>Held: 1. One who gives a note and receives a deed has the burden, when sued on the note, of showing, by a preponderance of the evidence, that the sale was not absolute, but on a condition which had not been fulfilled.</p> <p>2. Where the husband alone sells land in which his wife has an interest, the possession of the vendee is adverse to her, and with it commences to run against her the thirty-years’ statute of limitations.</p> <p>3. The running of the thirty years’ statute of limitations is not prevented by any disability if, but for the disability, a right of action would have existed.</p> <p>4. One who enters under a bond for title for all the land frtom one of the tenants in common, paying the full value of the land, then sells part of it, without recognizing his co-tenant or accounting to her, and has open and notorious possession of the remainder, claiming to be the exclusive owner, ousts his co-tenant, SO' that the thirty years’ statute of limitations begins to. run.</p>

Case 51 — Action by J. D. Reed and Others against W. H. Bates and Others on Apportionment Warrants for ©treet Improvement. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 2,, Judgment for Defendants and Plaintiffs Appeal. PROPOSITIONS INVOLVED. 1.

Case 52 — Action by Henry Rice and Others against the Town op Fredonia, to Prevent the Extension op the Corporate Limits of the Town. APPEAL FROM CALDWELL CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. Fredonia is a small town of tbe sixth class, with between 200 and 250 inhabitants and is an intelligent, substantial and public spirited community.

Case 53. — Action by D. J. Sullivan against the L. & N. R. R. Co. to Recoves Damages fob Personal Injury. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. Judgment for Defendant and Plaintiff Appeals- It is shown by the evidence! in this1 case that the foreman of a switching crew holds the! same relation to the switchmen under him that a conductor holds to a brakeman. The injury to decedent occurred in this way: The emginef had taken water and was ready, to start.

Case 54 — Action by C. W. Sparks fob Himself and Others against J. R. Robinson, Sheriff of Mason County to Recover a CuHf tain Tax Collected by Appellee. appeal from mason circuit court. Demurrer to Plaintiff’s Petition -Sustained and He Appeals. POINTS AND AUTHORITIES. 1.

<p>Chattel Mortgages — Cattle—Description—.Subsequent Purchaser —.Constructive Notice.</p> <p>Held: 1. A chattel mortgage on certain cattle, properly recorded,, described them as “thirty-six head of yearling cattle on the farm of L. D., said farm being now occupied by said D., near L. Station ,H. county, Ky.” At the time mortgage was -given, six^of the cattle were six months old, and thei 'others were from nine to eleven months old. Intervener purchased certain of the cattle eleven 'months thereafter, and, in an action ‘by the •mortgagee to recover the same, it was proved that at the time of the execution of the mortgage the cattle would! have been designated by stockmen as “short yearlings,” and at the lime of intervener’s purchase as “long yearlings.” Held, that the description in the mortgage was sufficient to charge intervener with constructive notiee of the mortgagee’s lien.,</p> <p>2. While) the mortgage under the foregoing description; was good as to thirty-six head -of the cattle, it appearing that there were forty-four head of cattle of the same description in the lot, including the thirty-six, and that the intervener purchased eighteen of che lot. Held that the mortgage only calling for thirty-six head, the intervener was entitled to eight head, the difference between thirty-six anid forty-four.-</p>

<p>Case 56 — ¡Prosecution against Coleman White fob -Sodomy.</p> <p>APPEAL FROM JEFFERSON CIRCUIT CO URT, CRIMINAL DIVISION.</p> <p>Defendant Convicted and Appeals.</p> <p>Sodomy — ¡Consummation of Offense — Necessity of Emission — Instruction- — Assault And Battery.</p> <p>We -rely on two- principal errors of the court fori a new trial. _</p> <p>1. Because the court refused to 'give the peremptory instruction! asked by appellant.</p> <p>2. Because the court did not in its instructions, -define the offense charged, and failed to give an instruction covering the offense of assault and battery.</p> <p>We contend, that in order to constitute this offense there must be .proof both of penetration and emission.</p> <p>The evidence did not show penetration exceeding half an inch and there was no proof of emission.</p> <p>We further insist that the court erred in failing to- give'instructions covering the law of assault and battery .included in ■the indictment. Under the instructions given the- jury were compelled to either acquit the defendant or find him guilty of the felony charged. Clark’s Cr. Law, p. 192; People v. William Hodgkin, 94 Mich., 27; State v. Wesley Gray, 8 Jones*, N. C.„ 170.</p> <p>1. The evidence in this case was sufficient and the necessary elements of the crime charged. It was not necessary to prove emis&ion; that the parts were injured or a physician was called or needed.</p> <p>2. The guilt of the accused is shown beyond a reasonable doubt, and! this court will not reverse if there; is any evidence to support the verdict.</p> <p>3. T.he instructions given cover the law of the offense, and there is nothing in the evidence authorizing an instruction for assault and battery.</p> <p>CITATIONS.</p> <p>Am. & Eng. Ency. of Law, vol. 22, p. 831; 73'. Ga., 76; Bishop’s New Cr. Proc., vol. 2, sec. 1018; 94 Mich., 27; Williams v. Com., 13 R., 753; Simmons v. Com., 13 R., 83®; Smith. v. Com., 16 R, 169; Travis v. Com., 96 Ky., 77.</p>

Case 57 — Indictment against Charles Babney for Fraudulently Converting the Property of Another' Without the Owner’s Consent. APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. Demurrer to Indictment Sustained and the Commonwealth Appeals. The act under which this indictment was found may be found on page 151, Acts 1902.

Case 58 — Action by the Anderson Telephone Company against the Hast Telephone Company and Others por an Injunction. APPEAL FROM ANDERSON CIRCUIT . COURT. Judgment for Plaintiff and Defendants Appeal. GENERAL -STATEMENT. The judgment herein appealed from is for damages on an injunction bond. The injunction complained .of wias granted on August 16, 1899, finally dissolved June 13, 1900, having been in force approximately ten months.

<p>Case 59 — Action by Henry L. Kremer against Margaret Pfaffingeb and Others to Enforce a Lien fob Street Improvements</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment fob Plaintiff and Defendants Appeal.</p> <p>PROPOSITIONS INVOLVED.</p> <p>1. When the amount apportioned or charged under the provisions of section 2833 of the Kentucky Statutes against a lot of land as its proportion of the cost of improving a public way along its front is as much or moré than such lot is worth, or could be made to bring at a fair sale thereof, the court will refuse to enforce the lien on such- lot in- discharge of the apportionment against it, because to do so -would deprive the owner of his1 lot and apply it to public use without compensation. .Sec. 283-3 of the Kentucky Statutes; Belknap v. Fidelity 22 Ky. Law Rep., 1875; Broadway v. McAtee, 8 Bush, 519; Preston v. Rudd, 84 Ky., 15-6; James v. Louisville, 19 Ky. Law Rep., 448; Louisville v. Louisville Rolling Mills, 12 Bush, 416.</p> <p>,2. It is not in- the power of the General Assembly to authorize the enforcement of the liability on any other property of the citizen to pay the cost of improving a ipublic way along its front, than the property receiving the benefit -of such improvement. There is no personal liability for any such charge, nor can such personal liability be constitutionally . imposed. ¡Meyer v. Covington, 20 Ky. Law Rep., 239; Barker v. The Southern Construction, 20 Ky, Law Rep., 796; Fehler v. Gosnell, 99 Ky., 380.</p> <p>3. It belongs exclusively to the legislative department ¡to prescribe the remedies for the enforcement or collection of taxes or assessments, and there is no power in the| court to supply a remedy where none exists, or to) amend thei remedy where one is defective, in a proceeding to enforce the collection of taxes or assessments. The court is as destitute of power to prescribe or furnish such remedies as ,it is to impose a tax. The remedy prescribed in all -such case's fixes the amount and extent of relief to which a party is entitled, and no other or different can be given by the courts. McLean v. Deposit,, 81 Ky., 258.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. If a part only of a city lot is assessed for street improvements it is not spoliation if the whole lot is worth morel than, the assessment, although the particular part assessed may be worth less, for in considering -the question of “benefits)” on “equivalents” the whole lot must be taken as a unit. Preston v. Rudd, 84 Ky., 154.</p> <p>2. Subsection 1, section 694,'Civil,Code, does not require-an allegation to be made in the pleadings to the effect t]hat: the property is divisible or indivisible. Sears, &c., v. Henry, 13 Bush, 413.</p> <p>3. Section 2833, Kentucky Statutes, which provides that when the territory contiguous to the improvement is not defined into squares the ordinance .shall fix the depth upon both sides: .fronting the improvement to be assessed, merely means' thait a district shall be fixed which - shall correspond with, the- quarter square where the territory is defined into squares; therefore it is only necessary that the district should bind upon the improvement. Boone v. Nevin, 15 R., 47; Fidelity Trust 'Safety Vault Co. v. Voris’ Exors., 22 R., 1875.</p> <p>4. The chief object to be attained in taxation is uniformity and equality. Preston v. Rudd, 84 Ky., 154; Preston v. Roberts, 12 Bush, 585.</p>

Case 60 — Action by J. B. Altemus and Another, Against W. N. Nickell to Recover Land. APPEAL FROM LETCHER CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. 1. A demurrer admits the truth of all facts well pleaded1, and every allowance and proper deduction therefrom. It therefore follows that if the petition state facts sufficient to constitute a cause of action the demurrer should he overruled. Norfnan v. Ky.

Case 61 — Action by Fred Kimbrough by His Guardian Against the L. & N. R. Co. for Damages for Personal Injuries. APPEAL FROM LOGAN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1. The Logan County Court has no jurisdiction to appoint a statutory guardian of a non-resident infant unlelss the infant owns real or personal estate situate in thei county. 2.

<p>Wills — Construction—Legitimate Heirs — (Land Purchased After Making Will — Partnership—Evidence.</p> <p>1. At the time testator made his will he owned tihe D: farm, which was his home place, an adjoining tract of 100 acres, known as the “P. Farm,” and another tract of ninety-five ¿eres. Prior to his death he purchased a fourth tract, adjoining the D. farm, of 111 acres. The will devised to plaintiff’s decedent .the home' farm, known as the “D. Farm,” and, after making certain specific bequests, provided that decedent was to have all the property bequeathed to him, except the home farm, which he 'Should hold his natural lifetime, and at his death onei-half thereof should be at his disposal to will as he ®aw fit. Testator devised the ninety-five acres to, another brother1, and provided that at his death such tract should revert to the testator’s then living heir®'. Held, that the devise to decedent passed tihel D. farm only, and did not include the 111-acre tract subsequently purchased.</p> <p>2. Where testator declared that at the death of his brothers, certain land conveyed to them should revert to his legitimate living heirs, such words were used in their literal sense, and applied to all the heirs of the testator at his; death and at tlhe death of the devisees.</p> <p>3. Evidence reviewed, and held insufficient to establish a partnership between plaintiff's decedent and testator, so as to entitle deceased to a partner’s share in land conveyed to testator, whq took title thereto in his own name.</p>

<p>Mandamus- — City Clerk — Refusal to Issue License — Ordinance.</p> <p>Hel-d: 1. Civ. -Code. 1900, section 477, defines “mandamus” as an order of court commanding an. executive or ministerial officer to perform an act enjoined by law, etc. A city, by 'ordinance, increased tbe rate of license charged laundry1 agents; and, on the afternoon of the day the new ordinance became effective, an agent, whose license had not yet expired, paid the city treasurer the former license fee, an-d demanded 'another license of the clerk. The ■ clerk was forbidden by the- council to issue a license unless 4he increased fees were paid. Held, that the issuance of the license for the smaller fee could 'not he compelled by mandamus.</p>

<p>Life Insurance — Cause of Death — Suicide—Circumstantial Evi dence — Competency—Relevancy.</p> <p>Held: 1. Defendant relied on suicide as a defense to an notion on an insurance polidy, and showed that the insured had; borrowed a revolver, stating he was going to a certain part of the city to make a collection, that directly afterward he had gone to a room in his mother's- house, and -then asked his sister to call his mother; that when his sister had gone a few feet from his room she heard a shot; -that, on ¡immediately returning to the room, she found him across' the held- with a mortal wound, from which he died in a few minutes; that the revolver was found not far from the right hand -of the deceased, with one chamber empty, and that his undershirt was powder-burned. The family relations of the deceased weme pleasa-nit, and his debts were inconsiderable. Held, that it was a question for the jury whether he had committed, suicide.-</p> <p>2. The defense to an action on an insurance policy was that thei insured bad' committed sucide, hut the evidence! on this point was all circumstantial. Held not competent for the coroner who had conducted the inquest to give his opinion as- to whether the insured’s death was self-inflicted.</p> <p>3. In .an action .on an insurance policy it wasi not' coimpeteint to show by a copy of the coroner’s inquest that the insured .had committed sucide, this being the defense relied on.</p> <p>4. In -an action on a life insurance policy the proof of death furnished by plaintiff in accordance with the stipulations in the policy was not relevant as substantive evidence to show1 the manner .of the insured’s death.</p>

<p>Case 65 — Action by J. J. Galvin, Guardian, for W. T. Galvin, against Union 'Central Life Ins. Co. to Recover on a Life Policy.</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment fob Defendant and Plaintiff Appeals.</p>

<p>Partnership — ¡Dissolution—Asset's—List op Customers.</p> <p>Held: 1. The list of names of customers of a firm, of insurance agents with the dates of the expiration of the policies, is not an asset, which, on dissolution, thei court may order fio he sold by itself.</p>

Case 67 — Action by John W. Jones against Edmund Waiter and Others to Enjoin the Collection of an Execution. APPEAL EEOM. MONTGOMERY CIRCUIT COURT. Demurrer to Plaintiff’s Petition Sustained and He Appeals. The .sole question to be determined on this appeal is whether, if .the allegations of the petition be true, the plaintiff wasi released from the debt in controversy by his discharge in .bankruptcy.

Cash 68 — (Action by Flora Edmonds against A. T. Hughes for Breach of His Contract to Marry Her. APPEAL PROM TODD CIRCUIT COURT. Judgment por Dependant and Plaintiff Appeals. This is a suit for damages on account of the breach by appellee of his contract to marry appellant. The contract is admitted and it is pleaded in avoidance: 1. That the consideration therefor was the agreement of plaintiff to 'Submit to sexual intercourse with the defendant. 2.

Case 69 — Action by W. H. Hail against the L. & N. R. R. Co. to Recover Damages for Personal Injuries. APPEAL FROM BULLITT CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES DISCUSSED. 1.

<p>Cask 70 — Action bx Thomas Wake’s Admr. against the City of Owensboro, Wkbtingiiouse, Church, Kerr & Co., and the Cumberland Telephone & Telegraph Co. for Concurring Negligence in Causing the Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiff against C. T. & T. Co. and it Appeals.</p> <p>BRIEF STATEMENT OF MATTERS DISCUSSED AND AUTHORITIES.</p> <p>1. To accurately understand the argument presented .in this brief, the pleadings should be critically considered. McLaughlin v. Louisville Electric Light Co., 18 Ky. Law Rep., 693; Overall v. Same, 20 Ky. Law Rep., 759; Mitchell’s Admrx., v. Raleigh Electric Co., 125 N. C., 166; (In 55 Lawyers R. A., 398.)</p> <p>2. Wlith an accurate knowledge of the pleadings aa contemplated in point one, the court’s attention is mow invited 1» the errors in some instructions of which appellant complains. McLaughlin v. Louisville Electric Light C'o., 18 Ky. Law Rep., 699-701.</p> <p>3. Instructions (Numbers 3, 4, 5, 6 and 13 are erroneous 'and prejudicial.</p> <p>4. The facts as they appear in the record. A correct conception of '.these facts is necessary .to emphasize fthie errors complained of in instructions.</p> <p>5. Instruction N.o. 5 considered. L. & N. R. R. <Oos. v. Berry, Admr:, 96 Ky., 610.</p> <p>6. The lower court erred to the prejudice of appellant in. refusing to grant its motion for a separate trial, and in denying to it the right to have a panel of the jury, [and the right to peremptorily challenge .three jur.ors therefrom. Thompson & Merriman on Juries, sec. 163; Strok, v. Hickman, 3T Mich., 490; Fraser v.- Jennings, 42 Mich., 206; Reynolds' v. Rowley, 2 La.. 890.</p> <p>7. The lower* court abused its discretion in arranging arguments and by (denying appellant its legal rights in that respect. Sandusky v. McGee, 4 J. J. Marshall, 271.</p> <p>8. The court erred to the substantial rights .of appellant in the admission and rejection .of evidence.</p> <p>9. Appellant is not legally liable for the death of appellee’s intestate' because the death was1 not the proximate result of appellant’s negligence, or .any negligence on its part. Aetna -Fire Insurance Co. v. Boone, 95 II. S., 130; Rogers v. Armstrong Co., 30 S. W., 848; Texas & Pac. Ry. Co. v. Stell, 61 ■S. W., 980; Himdhausen v. Atkins. 35 Wis., 582.-</p> <p>Our contention in this case is:</p> <p>1. That the petition though inaptly dr-awm, staites a cause of action against all three of the defendants'.</p> <p>2. - That the allegations, showing their 'Concurring ,aqis of negligence, make them jointly liable — -joint tort feasors.</p> <p>3. While they may each he severally liable .as well as jointly liable, it is not a misjoinder to sue them jointly.</p> <p>4. Whilst there are complaints of errors ,of (the court in admitting -and rejecting evidence we hold that the ruling of the trial court will be upheld by this court.</p> <p>.5. The complaint that the verdict of the jury is excessive, indicating a result of passion, and prejudice in the jury, is without foundation and has no reason to support it; the evidence .showing that the deceased was twenty-one years of age, in perfect health and earning $42.50 per month.</p> <p>6. The instructions of the court fairly amid fully presented the law to the jury, and we submit that .a properly instructed jury has passed upon this question and has found decedent's death w.as the immediate and proximate result .of the negligence of Rufus Lee, appellant’s foreman., and the verdict .should be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>¿Sutherland on Damages, vol. 1, pp. 62 and 214; Buckles v. Lambert, 4 Met., 430; Hill v. Harris, 4 Bush, 450; Swigext v. Graham, 7 B. M., 661; Emcy. PI. ■& Prae., vol. 15, p. 557; Pugh v. C. & 0. Ry. Co., 19 R., 149; C. & 0. Ry. Co, v, D'ixoin’s Actor., 20 R:, 793; C. & O. Ry. Co, v. Judd’s Admr., 20 R., 1978; L. & N. R. R. Co. v. Kelly’s Admr., 19 R., 69; Watson on Damages, secs. 41, 42, 326, 327, 360; L. & N. R. R. Co. v. Fox, 11 Bush, 516; L. & N. R. R. Co. v. Blair, 11 Bush, 579.</p>

Case 71 — Indictment against Frank Jones nob Bobbery. APPEAR FROM PAYETTE CIRCUIT COURT. Defendant Convicted and Appears. ■Our contention is, that in a prosecution for robbery, it must be shown that tbe violence or force used must either ¡precede or accompany the taking. Where money is taken by stealth and after it is ¡sew taken the owner discovers it and undertakes tc* recover it by force, ■which is forcibly resisted by the guilty party, it is ¡not robbery but larceny.

<p>Dower — Res Judicata — Mortgage Foreclosure — Effect on Widow’s Dower — 'Deeds—Wife’s Name Omitted — 'Signed and Acknowledged — Effect.</p> <p>Held: 1. Where the wife’s name does, not appear1 in the 'body of a mortgage, her .signature anid acknowledgment of this instrument are ineffectual to bar her right of dower.</p> <p>2. Actions were instituted against plaintiff and her huisband to foreclose mortgages executed by the husband, but not joined in by plaintiff. The petitions in such action made no mention of plaintiff’s inchoate dower interest, but alleged, in «substance, merely that plaintiff had no interest in the land under certain deeds of partition against the mortgages, except as wife, aad that she was, as to them, a mere volunteer. Plaintiff defaulted in such action, and judgment of foreclosure .and sale was entered, but without in .any way mentioning plaintiff’s inchoate ctower right, or seeking to bar it. Held, that such judgment did not preclude an .action by plaintiff, .on the death of her husband, to .recover her dower interest in the premises ■ sold.</p>

'Case 73 — 'Prosecution against Claude O’Brien for Murder. APPEAL FROM FAYETTE CIRCUIT COURT. Defendant (Convicted and Penalty Fixed at Death, and He Appeals. On thie night of October 11, 1902, the dwelling house of Br. A. B. Chinn, in the city of Lexington, Kentucky, w.as unlawfully entered by one Earl Whitney- and the appellant, Claude -O’Brien, and Mr. Chinn was killed.

<p>Summons — 'Service—Exemption.</p> <p>Held: 1. Civ. Code, section 81, provides that in certain 'actions a defendant who is summoned out of the. county in which such •an action is brought, and who had not resided therein when the. action waisl begun, can not be summoned in that or any other action of the plaintiff while visiting such county to defend the first-named .action. Section 542 provides that a witness shall not he liable to suit in a county in which he' does not reside, by being served with a summons in such county While going, returning, ot attending in obedience' to a summons. After -creating certain indebtedness, plaintiffs) father left the iStat-e without providing for the payment thereof, and la'ter died. Plaintiff was temporarily in the State to testify in an appeal which she had taken from the judgment probating her fathers will, and was served with summons in a suit against her by her father’s creditor, in which it was alleged that she had received more than the amount of the creditor’s claim from Eer father’s estate. Held, a valid service.</p>

Case 75 — Action by C. H. Little’s Admr. against the City National Bank of Fulton fob Money Owing Plaintiff’s Intestate. APPEAL FROM PULTON CIRCUIT COURT. Judgment Dismissing Plaintiff’s Action and He Appeals.

<p>Decretal Sale — Accepted Bidder — Liability por Taxes.</p> <p>Held: The acceptance by the commissioner making a decretal sale of'one’s hid, and his bond for purchase money, gives him thia ■equitable title to the property, .so that under Kentucky Statutes 1899, sections 4023, 4052, he is liable for taxes thereafter accruing against it.</p>

<p>Champerty — Adverse Possession — Contingent Remainder — Right to Mortgage — Purchaser Pendente IjIte — Settlement of a Suit — Rights of Mortgagee.</p> <p>Held: 1. Defendant’s grantor obtained a decree whereby a pant of his life ’estate was conveyed to him in fee to- -offset certain amounts his gu-ardian had expended out! of his feie in improving fide life estate, but be did not make two of the remaindermen, who were then infants, panties to this suit. The property thus conveyed by tbe decree was thereafter conveyed to grantor, who took posisiesslon thereof, and, when the remaindermen bad attained their majority, sued them to quiet his title. One of the remaindermen employed plaintiff as her counsel in this suit, and gave him a mortgage on her interest in the estate to secura his fee. A deereie for defendant waa reversed on appeal, and the claims of his opponents upheld, unless he could make a certain, showing on a new trial. No retrial of -the suit was had, but instead a settlement was effected, and an agreed judgment entered, quieting defendant’s title to tbe premises. Held, that at the time of giving the -mortgage defendant’s possession waisl not adversa to that of the mortgagor, he holding possession as a life tenant of the particular estate supporting the mortgagor’s remainder, and therefore the mortgage w'as not ehampertous and void under 'Kentucky .Statutes, 1899, chapter 1.5, sections 209-216, making ehampertous contracts for the recovery of lands held-adversely for the whole or part of the lands thus possessed.</p> <p>2. Under Kentucky -Statutes, 1899, section 2341, providing that any interest in real estate may he disposed of hy deed or will in writing, a contingent remainderman can mortgage her interest.</p> <p>3. Defendant sued to quiet title to certain property against parties who claimed a contingent remainder -interest therein, and one of these claimants' engaged plaintiff as her counsel, giving him a mortgage on her interest as security for- his fees. A decree in favor -of defendant was reversed on the ground that he had only a life -estate as against his adverse claimants, unless he could ■make a certain showing on a retrial. The suit was not retried, hut defendant effected a .settlement with his adverse claimants, without notice to plaintiff, whereby they agreed to a judgment quieting hiis title to, the premises. Subsequent to- this settlement the contingency .on which the remainder estate depended happened. Held, that as the agreed judgment was not based on the grounds for relief relied on in the suit to quiet title, it was. in reality only a quitclaim deed, and therefore plaintiff was not bound by it as a pendente _ lite purchaser, but could assert his rights under the mortgage against defendant.</p> <p>4. An attorney agreed to act for one of two defendants in a .suit to quiet title to an estate in which they claimed an interest, and took a mortgage on his client’s interest as security for his fees. The suit was never finally determined on its merits, but a settlement was effected by the parties, and an agreed judgment was entered in favor of plaintiff therein. Held-, that the attorney’s ■mortgage did not cover more than his client’s actual share in th-ei consideration for the settlement; though she was in fact pa-id the whole -sum.</p>

<p>Police Judges — 'Disqualification—Special Judge — Right to Remove Trial to Another Court — Authority of Town Trustees to Designate Person to Preside in Police Court — 'Constitutionality of Section 3711, Kentucky Statutes.</p> <p>1. Section 371Í, Kentucky Statutes, authorizing (the hoard of trustees of towns of the sixth class to provide by ordinance who shall act in the place of the police judge whein hel is .sworn off the bench, is not in conflict with the Constitution.</p> <p>2. Where a defendant is charged with a breach of ittuei peace and files an affidavit of prejudice against the police judge, he is not thereby entitled to .have his trial removed to another' court but must be tried before, the penson designated by the town ordinance to take the place of the police judge .as provided in section 3711, Kentucky Statutes.</p>

Case 79 — Action by’ Alice Campbell against Her Divorced Husband, B. B. Campbell for Alimony. APPEAL FROM HICKMAN CIRCUIT COURT. Prom a Judgment Dismissing Her Petition, Plaintiff Appeals.

<p>Oase 80 — Action by the Board of 'Council of the City of Frankfort against the Frankfort .Safety Vault & Trust Co. to Recover Taxes on Mortgage Bonds.</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to Plaintiff’s Petition, it Appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Tax collector may make a valid return of “mo property found” before the end of his official term. Kentucky Statutes, ■secs. 3389 and 3424; Dana, &c. y. Banks, &c., 6 J. J. M., 229; Cooley on Taxation, 2d ed., p. 283; .Same was donfe in Boajrd of Councilman v. Deposit Bank of Frankfort, 466 and 1384, and in many other cases.</p> <p>2. This suit in equity is maintainable independently1 of .any return by the tax collector. Present Comslt. Ky.„ sec. 14; Kentucky Statutes, sec. 4921; Dillon on Mumic. Corps., .see. 818; Louisville & Jeffersonville Ferry Co v. Commonwealth, 57 S. W., 624, 626; 'City of Newport v. Commonwealth, 59 iS. W., 845; Bath County v. Farmers’ Bank, 49 .S. W., 1115; Simpson County Bank v. City of Franklin, 19 Ky. Law Rep., 248; G-reer v. City of Covington, 83 Ky., 419.</p> <p>The appellant does not by the averments of the petition proceed .against the Frankfort Safety Vault & Trust Company as the trustee of the F. & 0. Railway Company. Nor do the ■averments .of the petition set out any cause of action (against ithe railway company nor ask any relief against it, hence the demurrer to the petition was properly sustained, .and] the petition mot having been amended was properly dismissed with costs.</p> <p>AUTHORITIES CITED.</p> <p>23 Ky. Law Rep., 998, and authorities therein cited; American Wire & Nail Co. v. Bayless, 91 Ky., 94; Trimble v. Lewis, 14 Ky. Law Rep., 527; Kentucky Statutes, secs. 3(396, 3422.</p> <p>POINTS AND CITATIONS.</p> <p>1. The judgment balow .should be affirmed because the appellant is prosecuting an appeal upon a partial transcript without notice of the filing of a schedule. Indeed, the .schedule hara not been filed at all before the clerk who granted t/ha appeal. Teirrill v. Roland, S6 Ky., 67; Brockle v. Brockle, 7 Ky. Law Rep., 760; Sacra’s Heirs v. Carter’s Exr., 22 Ky. Law Rep., 124; Mitchell v. .Stoddard County Bank, 23 Ky. Law Rep., 1562.</p> <p>2. If the court should reach the conclusion that the first /point herein is not well taken, then no action can he maintained .for the recovery of taxes without express statutory authority, and the express statutory authority does not exist in this ease. Thompson v. Allen County, 115 U. S., 550; Baldwin v. Hewitt, Auditor, 88 Ky., 673; McLean .County Precinct v. The Bank, 81 Ky., 254; Jones v. Gibson, 82 Ky., 5.61; Grand Rapids Schools Furniture Co. v. Trustees, &e., 19 Ky. Law Rep., 1601.</p> <p>3. Wherlel authority exists to maintain an action foort taxes upon a condition precedent, the right of notion, does mot exist until the condition has been completed. The condition in this case is a return of nulla hona to the clerk’s ofiioe and that 'return could only be made at the expiration of the term 'of office of the tax collector. Kentucky Statutes, secs. 3421, 3422, 342T4.</p>

Case 81 — Action by Commonwealth against Jennie Gray’s Trustee, to Recover Taxes on Property not Listed. APPEAL EROM MARION .CIRCUIT COURT. Judgment eor Deeendant and Plaintiee Appeals. ,Jan-e Gray died in 1860, -a resident of Boyle county, Kentucky, where her Will was probated.

Case 82 — Action by John Self and Othebs against the City of Catlettsburg and Others, fob an Injunction to Prevent the City from Taxing their Property for Street Improvement.— APPEAL FROM BOYD CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. PLAINTIFF’S CONTENTION.

Case 83 — Action by Charles N. Drury’s Admx. against the New . York Life Insurance Company on a Policy of Insurance.— APPEAL FROM UNION CIRCUIT COURT. Prom a Judgment Granting Insufficient Relief Plaintiff Appeals. ■The policy sued on was issued July 7, 1897,, and one year’s premium paid in advance, and the premiums due July 7, 1898, and July 7, 1899, were likewise paid in cash.

Case 84 — Test Case Between tiie Board of Pharmacy, &C., against R. J. Cassidy, &c., for an Adjudication of the Effect of an Act to “Regulate tiie Practice of Pharmacy in the Commonwealth of Kentucky.” APPEAL, FROM FAYETTE CIRCUIT COURT. Prom the .Judgment the Board Appeals.

<p>Pledges — Partial Payments — Retention of Collateral — Execution — Unfinished Beer — .-Mortgages—Prior Liens — Marshal-ling Assets — Attachment—Grounds—Evidence.</p> <p>Held: 1. Where iionds were deposited as collateral for notesi ‘in which no provision was made requiring a pro tanto ralease of the collateral on partial payment being made, the 'creditor was entitled to hold the entire collateral as security for the balance of the debt.</p> <p>2. Unfinished beer in a state of intermediate fermentation) 'i's not subject to execution or attachment.</p> <p>3. Where property mortgaged by a brewing company was insufficient to pay this mortgage, and overdue taxesi, and) deibtsi owing to laborers and material men, which were entitled to priority, and which were also liens on unincumbered .property, thei mortgagees were entitled to have such unmortgaged property first applied to such tax and labor liens before subjection.- of the mortgaged property thereto..</p> <p>4. Facts held sufficient to sustain an attachment on -the ground that defendant did not have enough property in (the (State subject to execution to satisfy plaintiff’s demand.</p> <p>5. Where, for .several years prior to the levy of -an attachment, defendant had been losing heavily, and for thia first ten. months of the year -of the attachment its net losses ware over $20,Q00. and the day after the attachment was levied, defendant assigned all his property for the benefit of creditors, and wias hopelessly insolvent, such facts were sufficient to warrant an attachment on bhe ground that the .collection of plaintiff’s idemamd would be endangered by del-ay in obtaining judgment or .return of no property found.</p> <p>6. Ordinary sales of beer in usual quantities, in the regular course of a brewer’s business, to customers outside the State, without anything to indicate a ¡purpose to remove> the property from the State, to get the same beyond the process of ¡the court and the reach of creditors', is insufficient to justify an attachment on the ground that the debtor has removed ibsi property, or a material part thereof, without the Staite, not leaving enough therein to'satisfy his creditors.</p>

<p>Public Roads — Grant to County — Easement—Additional Servitude — Gas Pipe — Compensation—Damages.</p> <p>Held: 1. Under a contract with a county, reciting that landowners bargain and sell to the county “a public roa'd over theiir lands,” the county takes an easement merely; and a natural gas company constructing a conduit under tbe roadway, under a grant from the county, thereby imposes an additional servitude upon the dominant estate, for which it must compensate the landowners,</p> <p>2. A landowner who has granted land ini feel to a county for a highway can not camp-lain that the county has granted to a natural gas company the right to construct .a conduit underneath the road.</p> <p>3. Where a natural gas company, under a grant frlom ia county, constructs a conduit underneath the land of a .private) owner burdened with an easement of a public highway, tbe landowner ia entitled to recover the value of the ©state ¡taken, not as damages but as compensation, and is) also entitled to whatever damage results to his adjacent premises, whether the laying of the conduit was negligently performed or not.</p>

(Case 87 — Action by James Angel against the Jellico Coal Mining Company fob Damages fob Personal Injuries APPEAL FROM WHITLEY CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. •Gross negligence is charged on the part of appellee in 'causing dynamite to he taken into the air shaft in the mine ¡and placed near the fire to dry without warning appellant ¡of its dangerous character.

<p>Case 88 — Action by Commonwealth:, by Auditor’s Agent, against J. C. B. Sebree to List Omitted Property for Taxation.</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>From a Judgment Dismissing Appellant’s Appeal From a Judgment by Default in the County Court He Appeals.</p> <p>As appellant and his attorney are one land itlhe same person, he may have a fool for a client, hut whatever1 may he the disadvantages attelnding the presentation of his case he is assured, that the court will have little or no difficulty 'in discovering at least two plump reversible errors ’in th'a record.</p> <p>The first error complained of is that the Auditor’s agent filed his .statement in the clerk’s office September 15, 1898, and no summons was issued thereon until January 26, 1891, and as the statute requires the summons to be issued ini five days after the filing of the statement there is no auttariity for -thei proceeding had in the county court.</p> <p>Appellant appealed from the judgment by default in the county court, to 'the circuit court, and when tihe case wete called in the circuit court appeared and movqd the court 'to dismiss- the action, which it refused to d-o, and dismissed the appeal.</p> <p>The court should have dismissed the action for the reason above stated, and also for tbe reason as appear® from the affidavit filed that at the time the summons was issued the term of Auditor .Sitone had expired and the authority of ithe agent acting under his appointment had ceased.</p> <p>2. The circuit court erred in dismissing the appeal because in so doing -appellant was deprived of the rights '-to file an answer and -contest the truth of the written statement filed, and thereby try the case on its merits.. I submit. that the judgment ,rdnder-ed iu the lower court is a personal judgment against fib© appellant, a thing unheard of in such a proceeding, and .the only way to get rid of it is a reversal of the judgment of the! circuit court dismissing the appeal. The circuit ico-urt did not dismiss the appeal for want of jurisdiction, hut because iu tha court’® opinion it was void and not emforcible, and therefore the appellant is placed in this awkward situation.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., secs. 4241, 978; Hok v. Com., 79 Ky., 567; 92 Ky., 227.</p> <p>A statement was filed by the auditor’s agent in 'Scott county in September, 1898. against appellant under section 4241, Kentucky Statutes, giving information that appellant ■ had not listed his pergonal property for taxation to the amount of $7,000, yearly during tha years 18S9 to 1898, .inclusive. No summons' was issued thereon! until January 26, 1901. After service of summons no 'attention was paid to .it by appellant or to any proceedings in the county court, and an order wag made '.in thei county court assessing the property ' for the years .indicated. From tbhis order an appeal was taken, to tha eitrcuit court.</p> <p>It ia contended that as summons did not issue in five days after filing the statement .thait the proceedings /thereafter are void. This contention should not he applicable even if the facts did not exist to which we mow caM attention, namely: By some collusion or understanding between thei -county court clerk and appellant, the latter being then county attorney- for Scott county, the clerk refused to issue summons on the statement. .Mandamus proceedings were instituted by the auditor’s agaoit in the Scott circuit court to compel 'the clerk to Issue the summons. To, this proceeding defense was 'made, the appellant in this case appearing as attorney fiolr the clerk. The clerk was ordered by the circuit court to issue the summons and from this order an appeal was prosecuted to the court of appeals.</p> <p>Appellant appeared in this court -as counsel for the clerk on this former appeal by brief; in fact, the clerk was a mere figurehead, -the appellant being the manipulator and regulator of the course taken by. the clerk, and the judglment of the lower court was affirmed.</p> <p>■ Now this same county attorney, by advice to thé clerk; by sexwing as counsel to the clerk withoixt pay; by assuming liability for costs in the mandamus proceeding; by every subterfuge he could invent in seeking to obstruct the collection of -taxes owing by him on notes, mortgages and money of his own, comes and asks this court to reverse this case because of the nonis.suanee of a summons and nonaction of the clerk, which nomaction he induced, and which he, as counsel, defaulted and exqaxsed.</p> <p>ÍWe claim, however, that the failxxre to issue the summons in five days, even if it had not been brought about 'in- this way, ■would be of no avail to appellant. When it did! issue and was ■served it brought appellaxxf before the court, and by Ms failure ■to appear and answer judgment was properly remd-ered by default.</p> <p>The circuit court did right in dismissing ithe appeal. There was nothing before the court to pass on; no .issue made in the county court, and therefore nothing to try.</p> <p>So much] of the oojumty court judgment as cam be conastrued as a personal judgment against appellant may be volid, but as -to that part assessing the property for taxation it ‘is valid.</p> <p>AUTHORITIES CITED.</p> <p>■Cassidy v. Young, County Judge, 92 Ky., 233; Baldwin v. Shine, Judge, 84 Ky., 513.</p>

<p>Case 89 — Proceeding to Fix the Salary of the Judge of the Bullitt County Court.</p> <p>APPEAL FROM BULLITT CIRCUIT COURT.</p> <p>From an Order Fixing the Salary at 8300 by the Fiscal Court, Daniel Appealed to the Circuit Court, Which Fixed it at Same Amount, and He Appealed to this Court.</p>

<p>Master and Servant — ¡Existence of Relation — Independent Contractor — 'Defective 'Appliances — Duty to Keep in Safe Condition.</p> <p>Held: A company employed a contractor toi sink a) shaft on its property under a contract requiring it to “furnish all necessary tools . . . for doing this work, and also a whim or hoist;” “all labor to be furnished by” the contractor. Pursuant to the Contract, the company furnished a whim or hoist, 'and, as a part thereof, the necessary rope All the employes were engaged and paid by the contractor, and the company did hot direct or control them in the performance of their duties. Held, that the relation of master and servant did not exist between the company and the employes, and it therefore owed them no duty to keep the nope in safe condition, and was not .liable for the death of one of them, caused by its having become defective.</p>

Case 91 — -Action by First National Bank of Louisville against Mutual Benefit Life Insurance Company, of Newark, N. J., AND W. A. SUDDUTH’S EXECUTOR ON A LIFE POLICY OF SUDDUTH Assigned to Said Bank. Held: the appellant’s rights were no greater than those of .any other parson loaning money on the policy. 9.

<p>Appeal — Final Order — Trustee—Right of Trustee to Fund — Interference of Cestui Que Trust.</p> <p>Held: 1. A judgment overruling a deimurrer to a response to ainotioin for a rule on a master commissioner of the ¡court, ¡procured to compel him to pay over to the movant asl trustee a certain trust fund held by such commissioner, is a final order, which the court of appeals has jurisdiction to review on the merits.</p> <p>2. A beneficiary sued for the appointment of a trustee to, hold a fund in accordance with the terms of her bequelsfc, and obtained, a judgment fov his appointment, and an order for the| master commissioner to pay 1;he fund in his hands elver to such trustee. Held, that the judgment was binding until reversed or modified by some subsequent judgment, and the beneficially could not prevent a compliance with such order by the commissioner.</p>

<p>Case 93 — ¡Suits by the Aetna Life Insurance Company, Connecticut Mutual Life Insurance Company, Equitable Life Assurance Company, Fidelity Mutual Life Insurance Company, Home Life Insurance Company, Mutual Life Insurance Company of New York, Mutual Benefit Life Insurance Company, Massachusetts Mutual Life Insurance Company, Metropolitan Life Insurance Company, Michigan Mutual Life Insurance Company, National Life Insurance Company, New York Life Insurance Company, Northwestern Mutual Life Insurance Company, New England Mutual Life Insurance Company, Provident Savings Life Assurance .Society, Prudential Insurance Company, Phoenix Mutual Life Insurance Company, Pacific Mutual Life Insurance Company, State Mutual Life Assurance Company, Mutual Life Travelers’ Insurance Company, United States Life Insurance Company, and Washington Life Insurance Company against Gus. C. Coulter and Others, to Restrain the Board of Valuation and Assessment from Proceeding to Assess Them for Franchise Tax for i’he.Year 1901, or for any Years Since 1898.</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiffs all Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A court of equity may enjoin a proposed illegal assessment. Baldwin v. Shine, 84 Ky., 502; Water Company v. Clarlte, 94 Ky., 47; Western Union. Tel. Co. v. Norman, &e., 77 Fed. Rep., 21.</p> <p>2. Foreign life insurance aojmpanies are not within the designation of the statute (section 40'i i); nor are 'they “like companies,” The word “like” refers to corporations that arel strictly ejusdem generis.</p> <p>It is a rule of legal construction that where particular words ®f a statute are followed by those of general character, the latter are to he restricted to the objects particularly mentioned. .Sec. 4077, et seq., Kentucky Statutes; Rapalje and Lawrence Law Dictionary, vol. 1, p. 435; Endllich on! Interpretation of Statutes, see. 405, p. 567; Kennedy v. Foster’s Exor., 14 Bush, 483; Barbour v. City of Louisville, 83 Ky., 100; Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. law Rep., 1740; vol 3 Am, .and Eng. Ency. of Law, (2d ed.), 789; Joyce on Insurance, vol. 1, sec. 7, p. 45; Kentucky .Statutes, teecs, 6T3, 723; Commonwealth v. Wyatt, 6 Ran. (Va.), 694; Huff v. Commonwealth, 14 Graft. (Va.), 648; Badger v. Daniels, 79 N. C., 379; Commonwealth v. Fontain, 137 Mass., 402; Hermann on Estoppel, secs. 114, 117; R. R. Co. v. •S'chutte,' 103 U. £3.: 118; Trustees v. .Stocker, 42 N. J. L., 115; Hawes v. Water Co., 5 Sawyer, (C. C.), 287.</p> <p>• -3. Foreign life insurance companies .do not exercise any special io(r exclusive privilege or franchise not allowed by law to natural persons, nor do they perform any public .service.</p> <p>(1) Very few corporations exercise any special or exclusive privileges or franchises not allowed by law to natural persons. Bouvier’s Law Dictionary, vol. 1, p. 553; Webster’s Dictionary, “Special;” Bank of Augusta v. -Earle, 13 Peters, 519; -Commonwealth v. City of Frankfort, 13 Bush, la-5; Louisville Tobacco Warehouse v. Commonwealth, 20 -Ky. Law Rep., 1749; Am. & Eng. Ency. of Law, veil. 2, p. 579, (2d -ed.)</p> <p>(2) Only public service corporations oan exercise such privileges or franchises! in Kentucky. 'Constitution -of} Kentucky, ■sec. 3, (Kentucky Statutes, S7); Gordon v. Winchester, 12 Bush, 114; Commonwealth v. Whipps, 80 Ky.,. 282; Williams v. -Cummoek, 61 Am. Dec., 513; Kenton Co. Oolurt v. Bank Lick, &c. -Co., 10 Bush, 532; Barbour v. Louisville Board of Trade, 82 Ky., 653; Board of'Councilmen v. Stone, 22 Ky. Law Rep., 27; Louisville Tobacco, &c. Go', v. Commonwealth, 20 Ky. Law Rep., 1749.</p> <p>(3) Hence the phrase in section 4077, “or performing any public service,” is really explanatory of what corporations w-ere •intended to be included in -the expression “having or -exercising any special or exclusive .privilege loir franchise not allowed by law to natural persons.”</p> <p>(4) Foreign life insurance companies ar-e private corpora*tions and do not perform any public seSrvi-ce. Am. & lEhg. Ency. of Law, (2d ed.), vol. 7, p. 638; Joyce on Insurance, vol. 1, sec. 7, p. 45; Arnold v. Covington, &c. Bridge Go-., 1 Duv., 374; Commonwealth v. Bacon, 13 Bush, 212; Barbour v. Board of Trade, 82 Ky., 653; Clayton v. Tiojwn of Lancaster, 86 Ky., 373; Clark, &c. v. Louisville Water Co., 90 Ky., 515; Com. v. Makibben, 90 Ky., 384.</p> <p>(5) An individual can -engage in ithe business of life insurance in Kentucky. Vo-1. 16, Aim. & Eng. Ency., (2d. ed.), p. -878; Kerr -on Insurance, pp. 20, 21; Doyle v. Continental Ins. Co., 94 IT. S., 535; 24 Law Ed., 148; -State v. -Scougel, 3 S. D„ 55; Commonwealth v. Vrooman, (Pa.), 25 L. R. A., 250; Kentucky Statutesi, sec. 641; State v. Stone, 118 Mo., 388, 40 Am. St. Rep., 3S8; Hoadley v. Purifoy (Ala.), 30 L. R. A., 301, 107 Ala., 276; Singer Mfg. Co. v. Wright, (Ga.), 25 S. E., 249; May on Insurance, p. 52, sec. 35; Joyce on Insurance, chap. 1; Richards on Insurance, ch-ap. 1; 'Security) Fire Ins. Go. v. Ky. Marine, &c., 7 Bush, 87.</p> <p>4. The -o-nlly franchise granted to) foreign life insurance companies in Kentucky is the right to do business in the State, and for this they pay a tax under section 4227. Gommonw-ealth v. Frankfort, 13 Bush, '189; Louisville Tobacco Warehouse v. Commonwealth, 20 Ky. Law Rep., 1749; Southern B. & L. Association v. Norman, 98 Ky., 299; Fidelity & Casualty Co, v. -City, 20 Ky. Law Rep., 1785; Levi v. iCity, 97 Ky., 40.</p> <p>5. To pay -a tax under -section 4227, which is, in a restricted sense, a franchise tax, and then a franchise tax under (section 4077 would be double taxation, and such 'taxation is .never presumed, but must be shown by clear legislative ilmtent, which ■does not exist in the case at bar. Cooley on Taxation, (2d ed.), p. 227; J-udson on Taxation, see. 425, p. 543; Livingston v. Paducah, 80 Ky., 656; Commonwealth v. Berkshire Life Ins, Co., 98 Mass., 25; Adams Express ICo. v. Com., 166 U. S., 174; 41 Law Ed., 964; McCullough v. Maryland, 4 Wheat, 316, 429.</p> <p>6. Former legislation and legislative proceedings show conclusively -that foreign life insurance companies were not 'intended to he included in section 4077. 2 House Journal ((Session, 1891-2), pp. 1982, 2029, 2259, 2262, 2291, 2293; Senate Journal, • (Session, 1891-2), pp. 2203, 2206, 2249, 2253, 2284, 2298; Acts 1843, p. 87; Revised Statutes, chap. 83 p. '246, Meyer’s Supip., p. 410; General Stats. (1888), Appendix, pp. 23, 45; First Report of Insurance Commissioner, p. 217; Louisville Tohacco fee., r. Com., 20 Ky. Law Rep., 1750.</p> <p>7. To assess foreign life insurance companies under isection 4227, and then to levy a franchise fax under section 4077 would he unequal, unjust, and 'in violation of tihe State and Federal Constitutions. The basis <of a levy* made under sections 4077 and 4227, must necessarily consider the same subject or property for taxation, and if in addition to levying a tax under section 4077 the (State of Kentucky .should attempt to impose a tax under section 4077, to the extent that the same subject is considered, the corporac-ions thus called upon- -would not be given tbe equal protection a'f the lalw. iSec. 656, Kentucky Statutes; See. 171, 'Constitution ofl Kentucky; Henderson Bridge Co. v. Commonwealth, 99 Ky., 623, 166 U. S'., 150; Adams Express Co. v. Com., 166 I). S., 171; Adams Express Co. v. Ohio, 166 U. S., 194; Kootper v. California, 155 U. S., 652; Rose’s Niotes, vol. 12, p. 673.</p> <p>8. The power of a State to tax property of non-residents is limited to -such property as is found within the State. Rays v. Pacific Mail C5&, 58 U. S., 17; St. Loiuis v. Wiggins Ferry Co., 78 U. S., 11; Cleveland, &c. Co. v. Penn., 82 11. ,S., 300; Gloucester Ferry Co. v. Penn., 114 U. S., 196; Northern, &e., !Co. v. Jackson, 74 U. S., 7.</p> <p>9. As foreign life insurance companies have noi property in thils State, if a franchise tax is asseslsed against them the Board must necessarily consider a 'franchise given 'by another State, and -such ;an effort would constitute tho faking of property without due process of law. Louisville, &e. Ferry Co. v. Com. of Kentucky, (decided February 23, 190i3), Advance Sheets Supreme Court Rep., vol. —, p. —.</p> <p>CONTEMPORANEOUS INTERPRETATION.</p> <p>10. AS to all statutes with a doubtful meaning, there must he ■interpretation, and the interpretation given by (those wbiotee duty it wias to. execute them is 'entitled to 'the 'highest consideration, and .sometimes such interpretation becomes conclusive. This is especially true 'where the law-malting power fails to enact ¡legislation changing the rules of interpretation as laid dloiwn by the officers.</p> <p>(In a number of cases cited the period is stated where the practical interpretation made by the aldjmini&trative officers <was held to control the meaning of the statute.) Adlmln'istrative Interpretation; Collins v. Henderson, 11 Bush, 92 (20 years); Barbour v. City of Louisville, 83 Ky., 102, (3 years); Harrison v. Commolnwealth, 83 Ky., 162, 170, (50 years); Louisville v. Louisville Water Co., 105 Ky., 754 (30 years); Louisville Tobacco Warehouse (Co. v. Commumwealith, 106 Ky., 165, 180, (5 years); Auditor v. Cain, 22 Ky. Law Rep., 1888, (27 years); Ross v. R. R. Co., Ill Mo., 25, (5 years); Union Ins. Oo1. v. Hoge, 21 How. U. S., 35 (4 years); Roibertson v. Bradbury, 132 U. S., 491, (6 years); U. S. v. Ala., &c. R. R., 142 Ü. S:, 615, .621, '(9 years); U. S. v. Johnson, 124 U. (S., 253, (11 years); In re 'Washington Street Ry. Co., 115 N. Y., 442, 447; People v. Dayton, 55 N. Y., 367, (20 years); U. iS.. v. Pugh, 99 U. S,, 269, (14 years); Kentucky (Statutes, sec. 4077; Cohens v. Va., 6 Wlheaton, 418; Sedgwick (Bojmeroy’'s Edition), p. 227; U. .S. v. Moore, 95 U. S., 763; Home Ins. Co. v. Augusta, 50 Ga., 543; Commonwealth v. R. R. Companies, 95 Ky., 72; Black on Interpretation of Laws, p. 215; Sutherland on Statutory ¡Construction, secs. 309, 333; End. on Int. of Stat.,. 360: Legislajtive Construction; Acts .of Kentucky Legislature, 1902, p. 305; Walton v. Riley, 85 Ky., 415; Commonwealth v. Miller, 5 Dana, 320; Commonwealth v. Poster, 3- Met., 2; Pennington v. Wood-folk, 79 Ky., 19; State Board v. Holliday, 150 Ind., 216; Easton v. Piekersgill, 55 N. Y., 310; Packard v. Richardson, 17 Mass., .122; McPherson v. Blacker, 146 U. S., 1, 27.</p> <p>11. A statute provides a certain method for faxing foreign life insurance companies. That statute excludes 'all other statutes upon the subject, unless there is a clear and express intention of some other statute allowing foreign life insurance companies to be taxed. Kentucky Statutes, secs. 4227, 4228, 4231, 4232, 4077; Broom’s Legal Maxims, 8th ed., p. 664; Louisville Tobacco Warehouse Co-, v. Commonwealth, 106 Ky., 171; Cooley on Taxation (1st ed.), pp. 165-166; Livingston v. City of Paducah, 80 Ky., 658; Thompson on Corporations, sec. 2814, (2 vol.); Lewiston Water Powor (Co. v. .Asotin County, 64 Pacific, 544, (Washington); Montgomery v. Montgomery Gas' Light, 64 Ala., 269; Tena. v. Whitworth, 117 U. S., 136; L..& N. R. R. Co. v. Wright, 116 Fed. R., 669; Acts of Kentucky Legislature, 1902, p. 368; Black on Interpretation of Laws, pp. 161, 162.</p> <p>12. Foreign life insurance companies are not named in the catalogue of franchise tax victims contained in section 4077. They are not like any of those named. They do not claim, nor exercise any .special or exclusive franchise or 'privilege not allowed by law to natural persons, nor ido they perform any public service. Am. & Eng. Eincy. of Law, 2d. ed., vol. 16, 878; Hoadley v. John Purifoy, 107 Ala., 276; Barnes v. People, 168 111., 425; May on Insurance, sees. 27 and 3,5; Fire Department v. Stanton, 159 N. Y., 225; Bliss on Life Insurance, p. 41; Richards on Insurance, p. 7; Joyce on Insurance, sec. 325; Marshall on Insurance, (1802), secs. 39, 40; Acts of 1902, p. 180; Weed v. Cumming, 198 Pa. St, 442; .Secsi 538,' 617, 577, -603, 611, 725, 4077, 4227, 641, Kentucky Statutes; Fort v. State, 92 Georgia, 8; Beach on Industrial Trusts and Monopolies, sec. 121.</p> <p>■13. When the statute (Kentucky Statutes, section 4077) says every railway company or corporation and every' incorporated bank, etc., “and every like company,” the latter expression does not include foreign life insurance Companies doing business in the State of Kentucky. Louisville 'Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 165; Bishop on Written Laws; sec. 245; Lincoln Center v. Linker, 7 Kafe. App., 282; s. e., 53 Pac. R., 788; Badger v. Daniell, 79 N. C., 387; Webster’s Dictionary, defining “Like;” Kenneday v. "Foster, 14 Bush, 482; In re Hermanee, 71 N. Y., 487; St. Louis v. Laughlin, 49 Mo., 559; State Board v. Holliday, 150 Inch, 216; Broom’s Legal Maxims, 8th ed., p. 593; Neal v. Clark, 95 U. S., 709; The Telegraph Co. v. Norman, 77 Fed. R., 13.</p> <p>14. Even if section 4077 taxes foreign insurance companies the judgment must be reversed.</p> <p>(1) Because it refuses to enjoin assessments though barred by limitation, C.. St. L. & N. O. R. R. v. 'Com., 72 ,S. W. R, 1119; Cam v. Nute, Court of Appeals, March 25, 1903.</p> <p>(2) Because it refuses' to enjoin threatened certification of assessments to local authorities. Frankfort v. Stone, Auditor 22 Ky. Law Rep., 25.</p> <p>15. Appellants are foreign insurance companies other than life and assessment casualty companies; as mentioned in 'section 4231, Kentucky Statutes, andi are not guarantee or 'security-companies' as designated in section 4077 of the Kentucky Stafcutes. ©ecs. 617 and 6S7, Kentucky Statutes; Vol. 16, Am. & Eng. Ency. ioif Law, (2d ed.), pip. 838 and 839; May on Insurancei (3d ed.), secs. 7 and 535; Vol. 11, Am. & Eng. Ency. of Law, (2d ed.), p. 9; Vol. 1, Am. & Eng. Ency. of Laiw, (2d ed.), p. 285; Employers’ Liability Assurance Corp. v. Merrill, 155 Mass., 404; Village of London West v. London1 Guarantee & Accident Co.., 26 Ont., 520; People, ex rel. American Surety Co. v. Wemple, 58 .Hun., 248, affirmed in 12B' N. V., 623; -State v. Phelan, 66 MO'. App., 548; Tibbetsi y. Mercantile Credit & Guaranty .Co., -73 Fed. Rep., 95, 19 O. C. A., 28; Claflin v. U. ©. Credit System C»l, 165 Mass-., 501; Shakman y. U. S. Credit System Co., 92 Wis., 366; 32 L. R. A., 383; In re Hogan. 78 N. W., 1051.</p> <p>.POINTS AND AUTHORITIES.</p> <p>1. The appellants ara guarantee or security companies, within the meaning of section 4077, Kentucky ©tafutes.</p> <p>2. A .State board can- not be enjoined from performing its functions in advance of action, if it can legally doi anything touching the subject-matter involved. Kentucky Railroad Commission Cas-es, (sub nom.), McOhord v. L. & N., etc., 183 U. S., 483; Chicago Ry. Co. v. Board of Equalization, 112 Fed., 6Ü7.</p> <p>3. Individuals, as well as corporations, doing thei business mentioned in section 4077 are liable t.o the tax there provided. 'State v. Stone, 118 Mo., 388; Providence Banking Co. v. Webster County, 22 Ky. Law Rep., 214; Latonia Stock ¡Company v. Donnelly, 20 Ky. Law Rep., 1891.</p> <p>4. Guarantee insurance embraces all classes of -insurance) other than life, fire and marine insurance, and a guarantee business included guarantee insurance. People y. Fidelity & Casualty Get, 15:3 111., 25; Ky. Statutes., secs. 643, 684, 687 and 723; (Encyclopedic Law Dictionary, terms guarantee and security; Brandt on Suretyship and Guarantee, sec. 1; Bouvier Law Dictionary, vol. 1, pp. 644, 508; Webster’s Unabridged Dictionary, terms guarantee and security; May on Insurance, seas. 1, 2, 540, 543, 544, 545, and 547; Joyce on Insurance, secs. 2 and 12; 9 A. & E. Ency. of Law, (1st ed.), 65.</p> <p>5. The ease of Warehouse Company y. Commonwealth, 20 Rep., 1747, does not decide .that no insurance .company is embraced by section 4077. The .expression in that case tending to that effect is -mere dictum and .entitled to no weight. Cohens Y. Virginia, 6 Wheat., 399; Ex parte City Bank, 3 How., (U. S.), 292; Peck v. Jenness, 7 How., (II. S.), 612; Carroll v. Carroll, 16 How., (IT. S.), 275; Frants v. Brown, 17 S. & K., (Pa.), 292.</p> <p>6. The constitutionality of section 4077, Kentucky 'Statutes, has heen fought out and decided by the courts, State and Federal. Henderson Bridge v. Commonwealth, 99 Ky., 623; Southern Ry. v. Coulter, 23 Ky. Law Rep., 203; cases there cited, and Coulter v. Bridge Co,, 24 Rep., 809; Commonwealth v. Bridge Go-., 24 Rep., 1177; Warehouse v. Commonwealth, 20 Rep., 1017, 1747; Ferry Co. v. Commonwealth, 20 Rep., 927; Newport v. Commonwealth, 21 Rep., 42; Banking Company v. Webster County, 22 Rep., 214; Latonia Stock Co. v. Donnelly, 20 Rep., 1891; Henderson Bridge v. Kentucky, 166 U. S., 154; Adams Express v. Kentucky, 166 U. S., 171; Adams Express v. Ohio, 165 IT. S., 194, lb., 166 IT. S., 185; American Express v. Indiana, 165 IT. S., 255; Warehouse v. Kentucky, (note in), 57 ¡L. R. A., 53; State Board v. Goggin, (note in), 58 L. R. A, 513.</p> <p>7. The rule of contemporaneous construction applies only to cases of doubtful comistiuetion arising on the fa¡ce of the instrument domsitrued. It callsi for active construction and is not invoked by mere inaction. Yattel’s Law of Nations, 244;, Ruggles v. Illinois, 108 IT. S'., 536; Southern Ry. v. Coulter, 24 Ky. Law Rep., 203; Coulter v. Bridge Co., 24 Ky. Law Hep., 809; City of Louisville v. Ry. Co., 23 Rep., 390; Fairbanks v. United States, 181 U. S., 2S3; Travelers’ Insurance Co. v. Fricke, 68 N. W., 959, lb., 74 N. W., 372, lb., 41 L. R. A., 557; Commonwealth v. Grinstead, 21 Ky. Law Rep., 1444.</p> <p>8. Section 4077 provides a property tax. Section 4231 provides ¡al privilege or exemption or income 'tax. The two¡ ara fundamentally consistent and are laid upon different properties and things. Neither provides strictly a franchise tax. Warehouse v. Commonwealth, 20 Rep., 1747; Adams Express v. Kentucky, 166 U. S., ISO; Crutcher v. Kentucky, 141 U. ¡S., 47; Judson Bin Taxation, secs. 147, 157 to 169; Joyce on Insurance, sec. 328; Iowa Insurance v. Lewis, 189 U. S. (S'p. iCt. U. S. Dec. 18, 1902); Southern Building Co. v. Norman, 98 ¡Ky., 284; Fidelity Go. v. Louisville, 20 Ky. Law Rep., 1785; South Covington Ry. v. Bellevue, 20 Ky. Law Rep., 1184; lb., 57 L. R. A., 50; Kentucky Constitution, secs. 174, 181; American. ¡Surety ¡Cot. v. Wemple, 58 Hun., 248, lb., 126 N. Y., 623; Postal Company v. Norfolk, 43 S. E. Rep., 207; Kenton Insurance Co. v. 'Covington, 86 Ky., 214; Knisely v. Cotterell, 196 Pa. ¡St., 614; 50 L. R. A., 86; City of Covington v. Woods, 98 Ky., 344; Elliott v. Louisville, 101 Ky., 262; Bowser v. Thompson, 103 Ky., 331.</p> <p>9. By sections 172 and 174 all property in this State is subjected to taxation, and can not be exempted by either omission in the act or by express legislation. That which can not be done directly, can not be done indirectly. State v. Keokuk, &e. R. R., 153 Mo., 157; Railroad Co. v. Worthem, Collector, 46 Ark., 312; C. & 0. Railroad Co. v. Miller, Auditor, 19 W. Va., 435; Railroad v. Wortben, 120 U. S., 102; People v. Eddy, 43 Cal., 330.</p> <p>Section 4077 taxes the intangible property of corporations, companies and associations. The tax is levied regardless of thef granting of a franchise to exist or to do, by the State. Providence Baking sCo. v. Webster County, 22 L. Rep., 214; Paducah .Street Railway Co. v. McCracken County, 49 S. W. Rep., 178.</p> <p>10. Appellants are “like” lotber corporations referred to in ■section 4077. Anderson v. Winfrey, 85 Ky., 605; .Sullivan v. Robertson, 37 Federal Reporter, 778; Great Western R. R. Co. v. Sutton, L. R., 4 H. L., 323; Ruff v. Commonwealth, 14 Gratton, 640; State v. Grider, 13 Ark., 297; S’ears v. State, 33 Ala., 347; Badger v. Daniel, 79 N. C., 379; Commonwealth v. Fontain, 137 Mass., 451; T. W. & W. R. ICo. v. People, 81 111.</p> <p>11. The excise imposed on foreign corporations by section 4227 doing business here is a mere license, such companies are subject to the tax imposed by section 4077, Kentucky Statutes in addition to such license fees rair excise, imposed by section 4227.</p> <p>12. 'The premiums paid to mutual companies, fo.r] the ¡purposes of ¡taxation, constitute capital or capital stoiak and. are subject to taxation under section 4077, Kentucky Statutes. iC’omimonwealth v. Milton, 12 B. Mon., 212; Phoenix Ins. Co. v. Commonwealth; &e., 5 Bush, 68; People, &c. v. Wemplle, &e., 131 N. Y., 66; Mutual Ins. Co. v. Erie County, 4 N. Y. 442; People of the State of New York v. Campbell, 77 N. Y., 507; People V. Equitable Trust Co., 96 N. Y., 383; Adams Express Company v. Ohio State Auditor, 105 U. S., 194; Adams Express ■Co. v. Kentucky, 171 U. S., 185; Same v. Ohio State Auditor, 185 U. S., 225; Henderson Bridge {Ja v. Commonwealth, 99 Ky., 623. The attention of the court, is especially directed to these cases.</p>

<p>Insurance Companies — Taxation—Guaranty Companies.</p> <p>Held: 1. A corporation in name an insurance company, hut which is dloiing a guaranty or security business, .is liable to a tax -on its franchise, -under Kentucky Statutes, 1899, section 4077, imposing such tax on guaranty or security companies and -every like company.</p> <p>2. A company which is doing a guaranty or security business- only, but has paid the tax of $2 on each §100 ,of gross premiums as an insurance oompany, is entitled to credit ‘therefor on. its franchise tax as a guaranty or security company, imposed by ■Kentucky Statutes, 1899, section 4077, hut, if it is doing both kinds loif business, it is liable for both taxes.</p>

<p>Intoxicating Liquors — Application for License to Retail — Protest — Refusal—Appeal to Circuit Court — How Tried — Bill of Exceptions — Renewal of Application— Limitation— Remonstrance — Evidence.</p> <p>Held: 1. Kentucky .Statutes, 1899, section 4203, Tequir.es licenses tot retail spirituous, vinous, or malt liquors to Be granted By Hue county court, and provides for notice of application fon such licenses, and for hearing of protests. Section 4211 reads: ■"‘An appeal may Be .prosecuted! By the county attorney or the d®fendant to the circuit court from any decision under .'this article; but the order of the county court shall not Be suspended until reversed By the circuit court.” .Section 4212 reads: “In such cases the court shall Be thie judge o.f the law and facts, and no. jury shall Be required.” Held, that' on appeals under section 4211 the circuit court must hear the case on thle Bill of exceptions, and on the same evidence that was Before the county court, and not d.e now.</p> <p>■2. Kentucky .Statutes, 1899, section 4203, provides that an application. to retail spirituous, vino.ua, or malt liquors shall Be refused if the majority of the legal voters in the neighborhood protest against it. ©eotion 4196 provides that no license shall Be granted for a longer term than one year. Section 460 requires that the provisions of the revision of the statutes are to be construed liberally, with a view’ to promote its objects. After denial of his application at one term of court, applicant renewed it at the -following term the next -month. Held, .that the -judgment -of the court was a conclusive’ determination against fhe granting lotf the license for the year covered By the .application, and it was not .error for the court on the second hearing to allow the remonstrance filed at the preceding tefim to Be -read, and to thereupon refuse the second application.</p>

Case 96 — Action by Maggie Reed against William Maley fob Assault and Trespass. APPEAL FROM FLEMING CIRCUIT COURT. From a Judgment Sustaining a Demurrer to Plaintiff’s ’Petition , She Appeals. This is an action by appellant to recover damages of the appellee by reason of bis coming to ber borne, in the absence of ber husband, and making an indecent proposal to have sexual intercourse with ber.

r.fifty 97 — Action by Exchange Bank on Kentucky against C. F. Thomas, &o., on a Note. APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment nor Defendants and Plaintiff Appeals. On September 14, 1902, T. W. Priest, with M. S. Tyler as surety, ¡executed -a note to the appellant bank for $1,160.80, due in four months. On January 15, 1894, Priest deposited in said bank to his credit $1,201.35. The cashier of the bank charged said note to said deposit which closed the account.

<p>Municipal Corporations — Street Improvements — “Lowest and Best Bidder” — Power to Reject Bid.</p> <p>Held; 1. Kentucky Statutes, 1899, section 3094, gives to the general council of cities of the second class exclusive control ove¡n streets, and the improvements thereof; and section 3096 prescribes that the general council may, by ordinance, provide for ■improvements, etc. A city of the second class enacted an ordinance which provided that in making improvements the work should be awarded to the “lowest and best bidder.” After-wards it undertook to reconstruct a street, and advertised, for bids both on brick .pavement and bituminous macadam. Held, that the fact that the bid of one proposing to do the wiolrk with-brick was the lowest in amount did not require an awardl to him; that fact not being conclusive that he was the “lowest and best bidder.”</p> <p>2< The ordinance having provided that the council should have ithe power to reject any and all bids, the bidder could not colmplairu of its action .in doing so.</p>

Case 99 — Action by E. M. Wooten and Others against Leslie County and Others for a Mandamus to Compel the County to Repair a Public Bridge. APPEAL FROM LESLIE CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal. 1. In this case the fiscal court! .properly refused the application to rebuild the bridge because the location was wholly inside the incorporate limits of the town of Hyden because it had no jurisdiction inside of said incorporation.

Case 100 — Action by S. S. Robertson against the Cincinnati, N. O. & T. P. Ry. Co. for Personal Injuries. APPEAL FROM MERCER CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The record having been transferred to tbe United States Circuit Court, there are no briefs in this court. — Reporter.

<p>Fidelity Bond — Default of Employe — Construction—Loss Covered —Raising Checks — Necessity fob Legal Conviction — Liability of Bank — Representations—Warranties.</p> <p>Held: 1. A bond conditioned to reimburse an employer for suoh pecuniary loss as he might sustain by any act of fraud or dishonesty, -amounting to larceny or embezzlement, committed by a -designated employe in the performance of his duties as bookkeeper, or in such other position as he might he called on toi fill, covered a loss sustained by the fraudulent act of the employe -in raising the amounts of cheeks which it was his duty to fill out, whether -such duty pertained to his office as bookkeeper, or -td any other capacity in his -employer’s .service-.</p> <p>2. In ord-er that liability might attach -on a bond conditioned to-insure an employer against larceny or embezzlement by an employe, it was not necessary1 for the employer to- introduce such ■proof as would convict the employe of the orimie of larceny or embezzlement as -defined by -the laws of the State.</p> <p>3. The contract expressed in an employe’s fidelity bond is a form of insurance), and any ambiguity is to be eo-nst-rued (most strongly against the company.</p> <p>4. Where it was-known to the officers of a bank that plaintiff’s- ampliotye was its- bookkeeper and trusted -agent, and that he (was required to fill out and cash his employer’s checks, -though without .authority to sign them, any -change in the amount -of' plaintiff’s checks appearing in such employe’s handwriting was within the apparent scope of his authority, and '.paymienít thereof by the bank would not impose any liability on it to reimburse -plaintiff for the amount thereof.</p> <p>5. 'The fact, though conceded, that a bank was liable for a loss resulting to- plaintiff through the) fraudulent act of his- employe! in raising the amount of checks drawn on the bank, would not release such employe's surety, on a fiduciary bond from liability to plaintiff.</p> <p>,6. .Statements by an employer in an application for a fiduciary bond for one of his employes that such employe’s position would be merely that of bookkeeper, and that the largest amount of cash likely to be in his custody would be but a few dollar's, did not amount to warranting, under Kentucky Statutes, 1899, section 639, providing that all statements or descriptions in an application for an insurance policy shall be deemed representations, and not warranties.</p> <p>7. "Where a bond insured am employer against any fraudulent conduct of an employe-, amounting ioi larceny or embezzlement, in hisi position as bookkeeper, or in any other -position to- which he might be -called, representations by the employer in his appiicar tion for a bond that the largest amount of money likely to be .in the employe's hands would be but a few dollars could not be considered fraudulent or material, but as mere promissory representations.</p>

Case 102 — Action by Robert Haueod against Louisville & N. R. R. Co. fob Personal Injuries. APPEAL FROM FRANKLIN CIECÍUIT COURT. Judgment for’Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. The court erred in overruling defendant’s demurrer to the petition. 2.

Case 103 — Action by Bernard Pelzer against South Covington & Cin. Street Ry. Co. to Recover Damages for Personal Injuries. APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Tho plaintiff, .an infant sixteen years of age^ who sues by his father and next friend, alleges that while driving a wagon across tfoei central bridge from Newport, Kentucky, to.

Case 104 — Action by J. R. Gleason against Andrew Barnett and Others to Enforce a Lien foe the Cost of Street Improvement. APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Held: as I shall maintain for the 'City of Louisville, that the improvement of said avenue by appellee Gleason, under bis contract, was reconstruction and not original construction. The opinion of the lower court will be found in the new transcript filed on this appeal (pp. 5h19).