Volume 116 — Kentucky Reports

Case 1 — Motion op Hazelrigg & Chenault foe an Allowance of ' an Attorney’s Fee for Prosecuting James Sims fob Soliciting Life Insurance Without a License. APPEAL FROM DAVIESS CIRCUIT COURT. While we concede that the Court «sí Appeals is essentially an appellate court with appellate jurisdiction, still, at the) same time, we do not understand that the court is precluded from, fixing attorneys’ fees for non-resident attorneys, &e., where services are rendered in the court.

Case 2 — .Sophia Cross’ Admr. against Western Union Telegraph Co. for Failure to Deliver Telegram. APPEAL PROM HOPKINS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The telegram to Mrs. Sophia Cross from Kansas City, Missouri, announcing the death of her daughter, Emma Baxter, was received at Madisonville, Kentucky, about noon on 'October 21, 1899.

<p>Police Judges — Vacancies—Appointment—City Council — Powers-—Governor—Ministerial Duties — Mandamus.</p> <p>Held: 1. Constitution, section 152, provides that vacancies in all offices for the State at large, ¡or districts larger than a county, ■shall be filled by appointment o-f the Governor, and that all other appointments shall he made as prescribed hy law. Kentucky Statutes, section 3551, declares that if -a vacancy shall occur in any office which the city council has (the right toi fill hy appointment, such vacancy may be filled by it fo-r tEe remainder o-f the unexpired term; and section 3552 provides that if a vacancy -shall occur In any 'elective office, including the ■office of councilman, such vacancy shall be filled by ithei council, subject to the provisions of the Constitution. -Section 3758 requires the Governor to- issue commissions to certain officers, and provides that should a vacancy in any of such offices occur where there is no provision of law-- for filling the, saime, 'the vacancy shall he filled hy the Governor. Held, that since Kentucky -Statutes, section 3510, provides- that the office of police judge of a city may he filled hy election or hy appointment of the. council, as it may determine hy ordinance, where a vacancy occurred in the office of police judge the city council had authority to fill tile same under sections 3551, 3-552.</p> <p>2. Under Kentucky Statutes, section 3758, -providing that ¡police judges shall have commissions issued to -them hy the Governor, where a police judge was legally appointed hy ¡a city council to fill a vacancy, the Governor was under a ministerial duty to the appointee to issue such commission.</p> <p>3. .Where the Governor of a State refused ito perform the ministerial duty of issuing a commission to a police judge legally appointed by a city council, as required by Kentucky Statutes, section 3753, mandamus was maintainable against the Governor to compel the issuance of such commission.</p>

Case 4 — Action by H. B. Huelefeld Against ¡M. D. McInebney, Sherriff of Kenton County» to Enjoin the 'Collection of Certain Taxes. APPEAL FROM KENTON CIRCUIT COURT. Judgment fob Plaintiff and Defendant Appeals.

Case 5 — -Action by Warren Deposit Bank against Luther R. • Porter and The Fidelity & Deposit Co., of Maryland, on a Bond Given by Said… Held: as caish, to eoive|r isaid alleged deficit, or that loans or advances were made to Porter Bros, oir rather of ■its customers, not in th© regular, course of business, or upon notes or bills not appearing upon the plaintiff’s books.” The reply by its third paragraph denies that the bank made the answers to questions propounded by the…

<p>Case 6 — Action by F. D. Hussey against George W. Sargfn't andOtiiebs fob a Construction of the Wise of D. P. Hussey, Deceased.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION NO. 1.</p> <p>From the Judgment the Plaintiff and the Guardian ad litem of the Infant Defendants Appeal.</p> <p>The impracticability of requiring an accounting is well illustrated by this case. It is impossible for the court in Kentucky to bring before it ithe parties in inlterelsit, and the'city of Nashua, -which claims a legacy of $50,000, is not in a-ny way before the court, and can n'ot be brought before it, and the questions which will arise, on this claim will necessarily arise and be determined in the courts of New Hampshire. That city will undoubtedly seek to enforce the payment of the legacy. But how can it enforce it if the courts of ■Kentucky’ seize and distribute the estate, and what protection can it be- ¡to Webster P. Hussey, ithe foreign executor, who is not before- the court, that a court in Kentucky has assumed jurisdiction to -settle ¡the estate?</p> <p>■It is submitted that the decree should be reversed.</p> <p>SYNOPSIS.</p> <p>. 1. Order entering the -appearance of ithe infant appellees should be set -aside. Barrett v. Godshaw, 12 Bush, 592-599.</p> <p>2. It is not. the function of a guardian ad litem to pray an appeal or oros-s-appeal. -Civil Code, secs. 35, 36, 37, 33, 391, 745; .Williamson v. Johnson, 4 Mo-n., 253; Jameson v. Moseley 4 Mo-n., 414; Hannia v. S-poitt’s Heirs, 5 B. Mon., 362; Walker v. Smyser, 80 Ky., 633; Speak v. Mattingly, 4 Bush, 310; Moss v. Hall, 79 Ky., 40.</p> <p>3. The cross-appeal ought to he dismissed, because it does not properly bring before .the count panfciejs intehded in ithe question sought to be raised by it. Smith’s Admr. v. Northern Bank, 1 Met., 575, 5S0; Gaar v. Lou. Banking Co., 11 Bush, 180, 191; Home Ins Go. v. Gaddis, 3 Rep., 159, 163; Miller v. Miller, 7 Rep., 350; Worthington v. Covington, 30 Rep., 363, 364; Overby v. Rogers, 12 Rep.. 289, 290; McKay v. Mayers, 17 Rep., 827, 828; Marion National Bank v. Phillips, 16 Rep., 159 160; Gallaban v. Carr, 1 A. K. Mar., 22; Murphy v. O’Reilly, 78 Ky., 263.</p> <p>1. The principal of that portion of Daniel Hu-sseyis eistate, the in-come of which w-as to be accumulated and- distributed among his son’s children when Emily should béoom-e ¡thirty-five years of age, if living, -was not disposed of by the will, and ¡passes -to-Daniel Hussey’s heir-at-law. Augustus v. Seabol-t, 3 Met.,'155; Byers v. Byers, 6 Dana, 314; Traphogen v. Ifeivy, 45 N. J. Eq., 452; Gulick’s Extrs. v. Gulick, 27 N. J. Eq., 498.</p> <p>2. The provision directing the accumulation, ¡of inooime ajnd its distribution to his son’s children when Emily .should reaqh the age of thirtydive, or -would -have reached that age, ¡if living, is void, because it violaras the rule against perpetuities. If such bequest embraced .the principal toi be distributed likewise, then it is. for the same reason also void. Gray on Perpetuities, secs. 672, 369, 374; Jarman on Wills, p. 749, 797; Willett’s Admr. v. Rudder’s Admr., S4 Ky., 317; Comb’-s Devisees v. Branch, 4 Dana, 548; Roberts’ Exr.r. v. Brinfcer, 4 Da., 570; Briscoe’s Devisees v. Vickliffe, 6 Da., 158; Hocker v. Gentry, 3 Met., 463; 1 Perry on Trusts, secs. 379, 380, 381, 382, 393; Pos-diek v. Fos~ dick (-Mass.), 6.Allen, 41; Lo-rd Soutihataipiton v. Helreford, 2 Ves. & B. 54; Stewart v. Co-ckrell, 7 L. R. (Bq), 3-63; Smith v. -Smith, L. R., 5 Ch. Div., 342; Bentinck v. Duke of Portland, 7 Ch. Div., 693; -Seaman v. Wood, 22 Beav., 591; Hagen v. Hale, L. R., 3. Ch. D-iv., 643; Maratón, v. Carter, 12 N. H., 162; Downing v. Wehring, 19 N. H., 85; Gen. Stats., chap. 6-3, ant. 1, -sec. 27; (Ky. Stats., sec. 2360); G-ast v. Wilhite, 2 Da., 170; Moore v. Howe, 4 Mon.., 199; Bra-hear v. Macey, 3 J. J. Mar., 89; Steven-s v. Stevens-, 21 Ky. Law Rep., 1315; Bdgerly v. Barker, 66 N. H. 434; 28 L. R. A. 328; Rolfe Asylum v. Lefehre, 69 N. H. 238; 45 Atl. R. 1087.</p> <p>3.’ The chancellor erred in -diacreain-g an .accounting in this, action by the executors and trustees who qualified ¡in; Niew Hampshire. Vaughn v. Northup, 15 Pet. 1; Byeirs v. Maeauley, 149-U. iS. 608; Fletcher’s Admr. v. Slanders, 7 Da. 345; Pay v. Haven, 3 Mic-h (Mass.) 109; U. S. v. Hailey, 3 Pac. R. -263;. Woodruff 'v. Young, 43 Mich. 551; 6 N. W. Rep. 85; Burton v. Williamson (Neb, 1902), 88 N. W. Rap. 765; 'Story’s Conflict of Law, S,ec. 513.</p> <p>The large .interests involved, i-n this -case forbid an apology-far the extended argument submitted in this brief. Its length however, suggests the propriety ¡of concluding it with .a conoise' resume of the propositions discussed.</p> <p>If the writer has accomplished his purpose he has established:</p> <p>A. That this will is governed by, and to -to be interpreted according to, the law of New Hampshire, ¡the .testator's domicile.</p> <p>B. That the grandchildren were intended by .the testator -to take the carpus or capital that yields the income -given them as-well as the income.</p> <p>0. That the trust for ■acoumulatioai for ¡the ben-elfit of 'the testator’s grandchildren is valid for two -alternative ¡reasons, viz.:</p> <p>1. Because 'the grandchildren have a vested interest in the income -and in the capital from which the income -is derived, -and,. therefore, the rule against perpetuities has no application whatever to .this oas'e.</p> <p>2. Beeanse if the rule against perpetuities is appii cable, the trusts for the grandchildren are nevertheless enforceable ünder the cy pres doctrine as that doctrine is recognized and adopted by the Supreme Court of New Hampshire in the case of Edgerly ■v. Barker, 66 N. H. The case just referred to is in line with the cy preig principle as 'that principle hag bean lincorporated into the jurisprudence of other States and countries, notably England, the New England States, Pennsylvania and Nerw York.</p> <p>D. That the grandchildren were intended by' the testator to be residuary legatees of ail that part of his estate not otherwise specifically disposed of — this aooording to clauses 9 and 10 of the will; that in ithe residuary estate w-ill be included, principally, (1) the accumulations directed to be made for the benefit of the grandchildren, if those provisions of the will are void', for in case of a void legacy the property goes to tire residuary legatee, if there' ba one, and not to the next-of-kin; (2) tbiei capital .or corpus-yielding the income directed to be accumulated for the grandchildren, in the .event the court should not determine thiait such capital as well as the income wag intended by the testator to be taken by ithe grandchildren; (3) the .$50,000.00 conditional bequest to found a library at Nashua, N. H., should ithe conditions •imposed not be complied with by that city; (4) the $100,000.00 .given F. D. Hussey by -the 8th clause of the will oomditioimed upon his .surviving his mother, should he dia before his mother.</p> <p>E. That the motion of the appellant to dismiss the cross-appeal granted -the infant appellees should, be overruled.</p> <p>1. Because it has always been the practice of this court to •recognize .appeals taken iand prosecuted by guardian ad litem. If •a guardian ad litem .has authority to take, an original appeal (and of .necessity he must have such authority else a judgment adverse to an infant .could never, he' gdtibein to the. court of appeals fór review), then such guardian has the eajrme authority to pray and prosecute a cross- appeal, between which and an original appeal .there is no substantial difie.ren.oev</p> <p>2. Because the scope of the guardian ad literal’s responsibility and duty under the code requires that he ifcahei aill affirmative steps, as well as defensive measures, needful for the proper protection of the infant’s interests involved in the litigation. The counter-claim interposed on behalf of the infants in (this case was proper.</p> <p>It is asked that the judgment be affirmed on the original appeal; that appellant’s motion to dismiss the .infant appellees’ cross-appeal be overruled, and that there be a reversal on, and ■to the extent covered by, the cross-appeal.</p> <p>-AUTHORITIES.</p> <p>1. The grandchildren’s interest in th© income is a vested one. Bank v. Ballard, 88 Ky. 481; Turner v. Patterson, 5 Dana, 296; Underhill o.n “Wills, sec. 864; Parker v. Leach, 66 N. H., 416; Crosby v. Crosby, 64 N. H. 77; Thyng v. 'Lane, 69 N. H. 403; Collins v. Collins, 45 Am. Dee. 420; Cmverse v. Kellogg, 7 Barb. 792; Tucker v. Bishop, 16 N. Y. 404; 2 Jarman on “Wills, 707.</p> <p>2. The rule against perpetuities does not apply: Gray on Perpetuities, secs. 205 and 672; Lewin ,on Trusts, Supp., secs. 55 and 81; Josselyn v. Josselyn, 9 -'Sim. 63; Saunders ,v. Vautier, 4 Beav. 115; Hilton' v. Hilton, L. R., 14 Eq. 468; Gosling v. Gosling,, H. R. V. Johns. 272; Hawkin’s Wills (Lewin S'upp.), sec. 71; Stretch v. “Watkins, 1 Madd. 143.</p> <p>3.. The grandchildren are entitled to the principal asl well as the income. Stille’s Appeal, 4 W, N. C. 42; 1 Id. 249; Thellusison v, Woodford, 4 Ves. 329; Green v. Green, 125 N. “i. 512; Finley v. King’s Lessee, 3 Pet. 346; Opinion of the Justices, 66 N. H. C51; Stevens v. Underhill, 67 N. H. 71; Stratton v, Stratton, “68 N. H. 585; Page v. Eldridge Library, 69 N. H. 576; Whitcomb v. Rodman, 47 Am. Sit. 181; Weatherford v. Stoddard, 58 Vt. 623; Maberly v Strode, 3 Ves. 456; Mathes v. Smart, 51 N. H. 441; Trapkagen v. Levy, 45 N. J. Eq. 452; Craft v. Snook’s Ex., 2 Beas.' 121; Guiick’s Ex. v. Gulick, 10 C. E. Green, 324; Gulick’s Ex. v. Gulick, 27 IST. J. Eq. 498; WainewrigM v. Wainewrighf, 3 Vis. Jr. 558; Hale v. Seek, 2 Eden, 229; Stretch v. Watkins, 1 M.add., 143.</p> <p>4< If rule against perpetuities applies, trusts foh the grandchildren nevertheless valid under the cy pres dioctrine. Will to, •be construed according to law of New Hampshire. Page on Wills, See. 35; 3 Am. & Eng. Ency. Law, 633; Edigerly v. Barker, 66 N. H. 434; 2S L. R. A. 328; “Williams on Real P-roip., 240; Bouvieir Law Diet., 465; Griffiths v. Vero, 9 Ves. 127; Longdon v. (Simaon, 12 Ves. Jr. 295; Lady Rosslyn’s Trust, 16 Sim. 390; Eyre v. Jdaraden, 2 Keen, 564; Brown v. Williamson's Ex., 36 Pa. St. 338; Hull v. Hull, 24 N. Y. 647.</p> <p>5. The grandchildren are residuary legatees. 2 Redfield ,on Wills, 442; Vandewalker v. Rollins, 63 N. H., 463; Jenkins v. Fowler, 63 N. I-L, 244; Bentley v. Kaufman,, 29 Am. & Eng. Ency., 386; N., 3; Ex parte Rogers,, 2 Madd., 576.</p> <p>6. Chancellor should have passed on 'the question. 10 Ency. PI. & Prac., 674 N„ 3.</p> <p>7. Motion of appellant to dismiss infant’s crossJappeal should be overruled. Reed v. Lou. Bridge Go., 8 Bush, 69; Moss v. Hall, 79 Ky., 40; Brannin v. Sherley, 91 Ky., 450; Robinson v. Fidelity, &c., Co., 11 Ky. Law Rep., 313; 10 Ency. PI. & Pr., 729 N., 7, also 670 and G73; Thomas v. Levering, 73 Md., 461; Kentucky Code sec. 38, subsec. 3, also see. 96; Pomeroy, Eq. Juris., sec. 1063; Bis-ptoam’s Priin. Eq., secs. 371 and 479; Hublein v. Huhlein, 87 Ky., 247; Mason v. Mason, 5 Bush, 198; Tinsley v. Tinsley, 15 B. M., 454, 459; Helm v. Bentley, 1 Met., 510.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The law oí the testator’s domicil governs the construction, of Ilia will. .Story’s Conflict of Law, sec. 465; Wharton’s Conflict of Law, sees. 570, 596; Thomas v. Tanner, 6 Mon. 59; Chap-line v. Moore, 7 Mon. 175; Fletcher v. Sanders, 7 Dana, 340; Atchison v. Lindsey, 6 Mon. 86; Adams v. Adams, 11 B. M. 77; Townes v. Durbin, 3 Met. 355; 1 Jarman on Wills, p. 6; iDanelli v. Danelli, 4 Bush 57; 3 Am. & Eng. Ency. 633; Gray on Perpetuities, Sec. 260.</p> <p>■2. The will is valid under the law of New Hampshire. Edgerljr v. Edgerly, 66 N. H. 434.</p> <p>3» The will disposes of the whole property.- Ball v. Hancock, 82 Ky. 107; 29 Am. & Eng. Ency. 1st Ed., p. 404.</p> <p>4, The court had jurisdiction to compel appellant ito account. Atchison v. Lindsey, 6 Moil. 86; Adams v.' Adams, 11 B. M. 77.</p>

Case 7 — 'Action by People’s Electric Lioi-it & Power Co. against the Capital Gas & Electric Light Co. to Enjoin the Defendant Co. prom Interfering with Plaintiff's Alleged Exclusive Rights, &c. appeal prom, franklin circuit court. •From the judgment both parties appeal, Under the provisions ,of section 164 of the Constitution, the city council of Frankfort proceeded to advertise, and sold a franchise to the kpipsilant company, and ilt, is conceded, in strict conformity to…

<p>Infants — Conveyances—Disaffirmance — Conditions — Reconveyance of Property Received.</p> <p>Held: 1. A purchaser of land from a grantor who had,'during'infancy, made a pr.ior conveyance thereof to another, was not precluded fnom acquiring a good title by reason of his knowledge of such prior conveyance.</p> <p>2. One who has purchased land from an infant, and given in' part consideration therefor other land, which the infant lias also sold, can not demand of such infant a disaffirmance of the latter sale as a condition .of disaffirming the sale to him. ’</p> <p>3. A stepfather, standing to his stepdaughter in loco parentis, ■traded to her, when she was seventeen y.ears of age, for property belonging to her, property and money amounting in all to $550. When the daughter became of age, she elected to. dis-affirm her conveyance, and sold tliei property to another fop $1,100, her father having in the meantime cut $200 ■worth of •timber therefrom. Held, that the father could recover the land which he had conveyed, -so far as it or its representative -was still retained by the daughter, and would be charged with the "value of the timber which he bad cut, and the reasonable rental value of the land while in his possession.</p>

<p>Wills — Charitable Bequests — Beneficiables—Certainty.</p> <p>Held: A will devising testator’s property to her executor, to be by him distributed “to the poor in hisi discretion,” is sufficiently definite, under Kentucky Statutes, 1899, section 317, requiring that gifts for such -a purpose shall point out the purpose of the charity, and the beneficiaries thereof, with reasonable certainty.</p>

<p>Case 10 — 'Action by J. D. Shortell against Green County to Recover on Past Due Coupons on Green County Bonds Subscribed to the C. & O. R. R. Co.</p> <p>APPEAL FROM GREEN CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>CLASSIFICATION OF POINTS..</p> <p>1. Conditional subscriptions to stock in the Cumberland' & Ohio Railroad 'Company were expressly authorized by its charter. Shelby County Court v. Cumberland & Ohio R. R. Co., 8 Rush, 217. Such’ also is the general law in (tlhe- absence, from ’the charter or law authorizing the subscription, of a prohibition of conditional subscriptions tío stock,, the subscriber may impose such conditions as he .may ohoose. Jack v. (City of Helena, 41 Ark., ,218; Atchison;, &c., R. R. Co. v. Jefferson Co-., 21 Kan., 809; Portland, &c., R. R. Co. v. Hartford, 58 Me., 23; 2 Elliott R. R., sec. 852; Brown v. Gibsion Co., 73 In.d., 543'; People v. Holden, 91 111., 466; Coe v. Caledonia, &c., R. R. Co., 27 Minn., 197; Penobscot, &e., R. R. v. Dunn, 39 Me., 5S7; Milwaukee, &c., R. R. v. Field, 12 Wis.', 340; Hanover Junction-, &o., ¡R. R. v. Halde>man, 82 Pa. St., 36; Connecticut, &c., R. R. v. Baxter, 39 Vt.; Missouri P. R. R. v. Tygard, 84 No. 264.</p> <p>2. Where the .location and» construction of a railway i.s hot made as required by the conditions, bonds issued in payment are' invalid even in the hands of a Ixfna fide holder. Chicago, &e., R. R. r. Marseilles, 84 111., 145; .Mellen, v. Lansing, 19 Blatchfo-rd, 512; Buckspo-rt, &c,, R. R. v. Brewer, 67 Me.. 2"3a.</p> <p>3. The purchaser .of municipal bonds is bound Ito take notice of the law under which the bonds are issued. Barnett v. .Denison, 145 U. S., 139.</p> <p>4. The federal courts have established the ruiei that in the absence of a recital in a municipal bond that the conditions precedent to its validity have been performed, it is open to the municipality _ to show th.e( nonperformance of the conditions. County of Chambers v. Clews, SS TJ. S., 321; Citizens’ Savings Association v. Berry County, 156_U. S., 701; Buchanan v. Litchfield, 102 U. S., 292; Town of Coloma v. Eaves, 92 IT. S., 431, remarks of Justice Bradley; Provident Life and Trust Co. v. County of Mercer, 170 IT. S., 601; ICarroll County v. Smith, 111 U. S.. 556; S’chool District v. iStone, 106 U. S., 183-187; Hopper v. Town of Covington, 118 IT. S., 148.</p> <p>'5. "Where bonds purporting to have been issued by a municipality contain no recitals, but are mere naked promises to pay, every purchaser and holder of the securities is chargeable with notice of whatever appears upon the face of the records1. Lewis v. Commissioners of Bourbon Co., 12 Kan., 186; Marsh v. Fultom Co., 10 Wall., 676; Pendleton v. Amy, 13 Wall., 297; Commis■sioners of Knox .Co. v. Aspinwall, 21 How., 539; .Bissell v. City of Jeffersonville, 24 How., 2S7; Hopp v. Trustees of Brown Tp., 13 Ohio St., 311; State v. Trustees of Union Tp., 15 Ohio St., 437; Clark v. City of D'e^ Moinea, 19 Iowa, 199; Veeder v. Town of Lymion, 19 Wis., 298; Starin v. Town of Genoa, 23 N. Y., 439; Gould v. Town of Sterling, 23 N. Y., 456; The People v. Mead, 24 N. Y., 114; 36 N. Y., 2.24. '</p> <p>6. No municipal or political body can be' estopped by the acts or declarations of its officers from denying their authority to bind it. Justice-Bradley, in Chisholm, v. Montgomery, 2 Woods, 584. A person dealing with an agent must look [to hife authority. Snow v. Warner, 10 Met. (Mass.), 136; Reese v. Medloclc,. 27 Tex., 120. The rule is strictly applied to the powers of public officers. Mayor and City Co.uncil of Baltimore v. Reynolds, 20 Maryland, 1; Marsh v. Pulton Co., 10 Wall., 683; .State v. Daviess Co,, 64 Mo.. 30; People v. Supervisors, Town of Waynesville, 88 111., 469; Town of Plattsville v. Galena, &c., R.. R. Co., 43 Wis., 493; • Board, &c., of Douglass v. Walbridge, 38 Wis., 179.</p> <p>7. The validity and effect of .municipal bonds are determined .always by the law of -the place where the obligation isi made. .Dixon Co, v. Field, 111 IT. S., 83. This proposition seems to he 'assumed as a matter of course in the federal courts.</p> <p>8. The county judge could not delegate to the railroad the' duties confided to him by the people. “This is an official trust which neither a county court nor its successor, the board of supervisors, could delegate to strangers owing no obligation to the county.” Board of Jackson Co. v. Brush, 77 111., 59. He had mo right to issue bonds in a form, other than that voted, by the people.</p> <p>9. The word “through,” as used in the order submitting the vote to the people, meant from end to end amid from side to sida “Act to incorporate the Cumberland and Ohio Railroad Ciosnpany,” Acts of 1S69, vol. 1, pages 463-474, thie opening words- of .section 15; the language of section 18, showing a road was contemplated from “the Ohio River” through many maimed counties, including Green, “to a point on the bound,ary line between the .States of Kentucky and Tennessee” “with a view of 'connecting wi'tn the Southern system of railways converging at Nashville, Tennessee; ” .the condition read that the roadi shall “run tlir-ough Green oo-un'ty and within one mile of the town of Greenshurg.”' The whole conditional contract “is to be taken together, and to have a Reasonable construction according do tbei intent of the parties.” Peoples’ Perry Co. v. Baleh, 74 Mass., 303-312. All the -circumstances prove -that the people understood! thaft they were contracting ifor a complete line to run through the county from side -to side. The language elf the condition must ba construed according to its ordinary meaning;» that is, as it would, he understood by the voters. People v. Town of Clayton, SS. 111., 45.</p> <p>10. The payment of interest on the bonds flor a few years .doeia not estop the county from contesting the validity of 'the, bonds. Mercer Qoiu-nty v. Provident Life and Trust Co., 19' Circuit Court of Appeals, 58; Ashuelnt National Bank v. School' District, 41 Ped., 514; State v. School District, 16 Nebraska, 182; Graves v. Saline County, 161 XT. S., 373.</p> <p>11. The county judge without associating with hlimself the justices of the peace had no p-awer to act on the ipatitiomi. for subscription (or otherwise. 3d Proviso .to section 15 of the charter; Bowling Green and .Madisonville Railroad Co. v. Warren County,' 19 Bush, 711; “herein” in the proviso referred only to the powers therein given to the - county court. .Spring v. Cfollector, 78 111., 101; Exp. Partington, 6 Q. B., 649-653; McGill v. Municipal Council,' 12 U. ,C. Q. B., 44.</p> <p>12. If these bonds and coupons are to be treated as put up-on the footing of bills of exchange the five-year limitation should apply under our statutes.</p> <p>13. If the court should reverse th-e judgfmemit, which wasi given on the pleadings, and the amended -amswérlioif appellant contained! any defense, -the court below should be .«Unacted to enter judgment for Green- county, Civil Code, sec. 383; Eaves v. Stone, 80 Ky., 78; En-c. of Pleading and Prac., vo.l. 11, p. 914.</p> <p>A bond payable to the order oí the‘president of the railroad company and endorsed in blank is equivalent to making it payable to the bearer and renders it transferable by mere' delivery and thus converts it into, commercial papar. Daniel on Neg. Inste., sec. 693.</p> <p>The charter expressly required the Green county bonds io be issued in negotiable form. The language is: "'All said bonds shall be payable to bearer, with coupons attached, bearing any rate of interest not to exceed six per cent, p.er annum payable semi-annually in the city of 2few York, and payable at -such -tima as they may designate, not exceeding thirty years from date: . , .” No more appropriate world could have been selected than 'the word “bearer” to make the bonds negotiable. 'The Legislatura could have intended nothing else by the use of that word. A great number of the decisions of the Supreme Count of the United States, and all, or practically all, of the decisions of the State courts .had thqn declared that the .use of that word ■in municipal bonds enabled ¡them to be transferred by mera manual delivery like an ordinary greenback bill or national bank note, and clothed such instruments with all the qualities and incidents of commercial paper. Anid this court had more -than ten years before these bonds were issued decided the law to’ ba so in this State. And the law thus decflarad was re-affirmed by Judge Cofer ten years later.</p> <p>The statute (Ky. ,S'tats., sec. 474) relative to the assignment of bonds, notes, etc., has been in force more than fifty years, hut it has nev.er been supposed by .the bar or courts of this State that it had any application to municipal bonds. If so, it surely could not have escaped the attention of this court in considering the cases in 2d Metcalf and 78 Ky., ¿hove cited. In Virginia, a similar statute was held ‘to have no application ¡to county ponds payable to holders, such bonds being held to be negotiable, Arents v. 'Gommonwealth, 18 G,nation, 750.</p> <p>The decisions of this court; in the German-American Title ‘Company casesl do mot, as ¡counsel for appellant seem to .suppose, apply. It is sufficient to say of those bands that they were not municipal bonds. They were made by private persons and were not made negotiable at a bank, and were not negotiated.</p> <p>■What matters it, therefore, that the word “negotiable” was not used in the charter, when it prescribed in express, terms that ¡the bonds “shall be made payable to bearerf”</p> <p>The Green county bonds were issued and! delivered! to the railroad company and the railroad company placed them on the market and they were sold to the public, the plaintiff "buying some of them. The purchaser before parting with his money was bound ho ascertain whether there was legislative authority to issue the bonds. Having found the act it was next his duty to ascertain, whether the required election bad been held and whether '.a majority of the votes cast at that election were east in favor of the subscription. He would 'have ascertained that the election had been duly held according ta law and that a majority had voted for the subscription. That the fact was as-certained by the county court and so. defteottnined .and entered upon the order book of that court. .Having ascertained these facts, it was not necessary for him to look farther. These facts demonstrate conclusively and beyond controversy (that the power to issue the bonds had vested in the county judge. Whether a purchaser in fact went to the trouble of ascertaining these facts ■or not, he is chargeable with knowledge loif ithem, hurt chargeable with nothing .more. That thisi is the law in, this State,' amd this country is susceptible of absolute demonstration, if any proposition of law is so. Section 1537 iof Daniel on Negotiable Instruments, together with the authoritieisi eited¡ by the author, is sufficient.</p> <p>The law relative to recitals in municipal bonds has no place in this case. No court has ever held that any sort of recitals added any force or effect to the negotiability of a municipal bond. If municipal bonds are .payable -to bearer they are not .less negotiable because they contain no recitals. Recitals ‘ in municipal bonds are never of the slightest consequence except for the purpose of creating an estoppel against the municipality where the municipality undertakes to defend against such bonds by alleging the nonperformance of some precedent condition necessary to the vesting of the power to issue the bonds in the officer who executed them. It ha's been held in a number of cases that the municipalities we!ré estopped to show that the precedent fact or .act did not in fact exist ior had not] in fact been performed, where, according to the statute under which the bond was issued, the officer who executed the bond was also authorized to determine whether the fact or act existed, or had been performed.</p> <p>In this case power to issue the bonds, vesteid in the' county • judge of tbe Green county court and the bonds Issued were . within the scope of his delegated' authority. And the bonds issued being payable to bearer in conformity with the express provisions of the statute, and appellee, a third party, haying bought the bonds before maturity, for a valuable consideration, is a bona fide holder and entitled to recover.</p> <p>There is an attempt made in the answer at this late day, after a lapse of thirty years, and; in the face of the decisions of this court reported in eighth .and tenth of Bush, above cited, to show that the. Green county court had no power to subscriba for stock or issue bonds because, as defendant 'construes-the language of section 15 of the charter, .power to subscribe was confined to .counties through which Ithei “proposed roa® shall pass;” thalt is to say, the. contention Sis, that the railroad must first pass through the county, before1 the icoiunlty court of such county had jurisdiction .to submit the question, of malting a subscription to a vote or of subscribing for .stock or issuing bonds in discharge of the subscription.</p> <p>The proposed road according to) the charter, passed, through the counties of Henry, Shelby, Spencer, Nelson, Washington, Marion,, Taylor, Green, Barren, Allen, Metcalf and Larue. When the language of section 15 is read in connection with -other provisions of the charter, especially sections 1 an® 12 an® the whole scheme as disclosed ini the act is considered, it is manifest that the object of the Legislature was to authorize all oif -said counties -to subscribe for stock in, -the railroad- -company and issue their bonds respectively for the amount of stock subscribed. It was certainly not contemplated that the road should be built through a county before the county court had junis'diction under the act to submit the question of subscribing stock to a popular vote anld making a subscription if the vote was favorable- thereto and issuing the bonds of the county. In the eases before this court, heretofore 'referred to, no such construction, was) ever contended for. If remained alone far the learned counlsel who are representing the appellant in thiiis case to -originate -a theory which the learned and astute lawyers who practiced the case reported in 8 Bush, and 'the trwo cases in 10 Bush1 entirely overlooked. '</p> <p>■When this case was here before ion. -appeal, after the decision was rendered, the county file® a petition for a rehearing in which much stress was laid on the fact that the bond contained no recital of the various steps necessary to the vesting of the power to isslue the bonds in the county court. That i®, that the bonds do not recite that an election had been held under the act at which a majority of the votesl caalt were in favor of the subscription, that a subscription for stock bad been made and* that the bonds were issued in 'discharge or payment of the subscription, etc.</p> <p>The recital of the -existence of those facts or the due performance of those acts, -in the face- of t'he bonJds, is not at ,afll necessary to their validity.</p> <p>It is essential to the validity of the) bond® 'that an- election, should have been held and that a majority of the votes -cast should be in favor of making a subscription; otherwise, the power conferred by the act could not vest in the county court. It is sufficient if the facts 'appear upon the{ records: rof the county court. And the existence of all the precedent 'conditions necessary to the vesting of the power in the .oo>ututy count appears by express averments of the answer and the copies of the orders of the county court filad with it and made part of it. The county court ascertained and determined that the election was duly held at the several voting places) in Gnaen county aoeording • to law, on July 3, 1869; that a majority of -the qualified voters ■decided at that election chat the counity should subscribe for $250,000 of the capital stock of thei railr'oad company and the ¡subscription was made on the order book of the county court •as were also the orders for the issual of the bonds.</p> <p>There were no recitals in the Davietas county bonds, but they were all held valid, except the over-issue. The order of ike county court in that case submitted the question of subscribing for $250,000 of stock in the railroad company and the 'order! of the county court directed the issual of $250,000 of bond? in discharge of that subscription. But the aoiumty judge issued bonds to the amount of $320,000, being $70,450 in excess of the •amount authorized. This excess was held void by ¡this, court ■and by the Supreme Court of the United States ion ¡the ground that no power vested under the act and vote to issue more than $250,000 of bonds. (Daviess County Court v. Howard, 13 Bush, Id, a¿nd Daviess County v. Dickinson, 117 U. S., 657.)</p> <p>•There is a line of cases in the supreme court and. those .oases have been generally followed, holding that in a contest between •a bona fide holder of municipal bonds payable to bearer and the municipality, .if the bond contains a recital that a precedent- condition has been performed or exists, and the officer who 'executes ■the bond is authorized by law to ascertain ianid decide, whether the condition has been performed, or the fact exists and he •certifies in the face of the bonds that it does exist or has been performed, then the municipality will he estopped!, as against such holder, to deny or dispute the recital, though the recital may be in fact untrue. See Lydne v. Counity, 16 Wallace, 13, and the other oases collected in the opinion in the National Life Ins. Co. v. Board of Education, 62 Fed. Rep., 792.</p> <p>Learned 'counsel for the county seem to snippo-se that in the absence of recitals in the bonds which 'Create an estoppel that then in such case, notwithstanding the fact that the bonds are ■negotiable in form and are conclusively shown to harve been issued by authority of law, are nevertheless no more than mere ■promissory notes, and are now open to lall the defenses which might be made against such contracts. ■ But this la no;t law. If there was power to issue the bonds they are perfect obligations and being negotiable in for,m the holder is entitled to recover except as 'there was lack of power to issue Itihei bond© and “bad •faith,” and no want of power is .shown or bad faith alleged. Daniel so states the law and supports his statement, by thei highest English and American authorities.</p> <p>It- is only in those cases where in fact 'the power' to) issue .the bonds did not vest in 'the municipal agency, hut where, that agency wais authorized -to determine and delclare whether or not the act ior condition upon which the vesting of itihe power wa© made to depend, had been performed or existed, and did determine that the act or fact existed, and sio- certified in the. face of the bonds and being the agency authorized to execute and .deliver the bonds, that the municipality has been held 'to be estopped toi dispute the fact certified in the bonds as against a bona fide holder.</p> <p>The only .defense open ito a municipality when sued onj its bonds, payable to hearer, is that of want of power to issue them. If power to issue 'the bonds is shown to have vested in thei .agency of the .municipality, and that agency executes the power ■conferred, and does not exceed it, thalt 4s the end (of the controversy, and the contracts are perfect obligations of the municipality.</p> <p>The county, as the court sees, is here presenting ¡two- inconsistent defenses: First, it coatelnds that the county court -did not make any subscription or issue .any -bonds of the county; then, it .turns about and in the next breath says the- county made a subscription and issued the- bonds, but it did so upon conditions, which conditions have never been performed and the bonds for that reason are void.</p> <p>It does not even take the trouble to ©ay that .either .one of these .supposed defenses is true, or that it does not know which of .them i's true.</p> <p>They are utterly inconsistent. It can not be (that there was no power and at the same time Ibhat there was power.</p> <p>If the county judge sitting alone as the county court .had- ho power to receive and -entertain the request o,f the railroad commissioners to submit the question to- a vote of the people of subscribing the stock, no power to order an election to be held, no power to make the subscription, and no power to issue: (the bonds, he -certainly had no power to impose the conditions. If he had power as contended by 'the county, to imptose the conditions, he must have had power to have done .all the other acts which are now assailed as ultra vires and void.</p> <p>Counsel for appellant in the oral argument expressly admitted and conceded it to be .a fact that Green county for .several years immediately after the issual of .these bonds had levied and collected taxes for the payment of the interest and had regularly paid the interest on them. And in the brief, signed by .all the counsel for appellant, it is conceded as .a fact ‘ithat the .coupons for interest were for a few years paid.”</p> <p>■It is true that if there was no power in thie Green cotmity court to issue the bonds, 'the levy of taxes .to pay the interest en the bonds and the payment of the taxes by the people and the disbursement of the .taxes .collected in the payment of the coupons “for a few years,” or .any ifim®, would not 'amount to cur constitute a ratification, or. create an estoppel, that would -preclude the county frolm .afterwards showing that there was no power to issue the bonds. To hold -otherwise would bel equivalent to saying .that the county might by such indirect acts' malice a contract which it had not the power to make directly. Marsh v. Fulton 'Co., 10 Wallace, 696.</p> <p>But the levy and collection of taxes far Itjhe1 purpose -of paying interest o>n the bonds arud the payment of the taxes 'by’ ithel people and the disbursement of the tax so collected in -payment of the interest coupons “for a few years,” does amount to an effectual ratification, and does create an estoppel in pais, if' power to issue the bonds vested in the county court and judge and that .delegated authority was .executed in an 'irregular or imperfect manner.</p> <p>As there was undoubtedly power, under the charter .and vote ■to issue -the bonds, vested in .the Greeln county court and Judge Barnett,, if the power was in any respect -irregularly executed or performed, the levy of taxes by the 'county court to pay interest on them, and the collection and disbursement o-f it in payment of the interest on the bonds “'for a few years” after their issue, ratifies -such irregular execution of the power, and effectually estops the county .to set up or rely upon such irregularities, no matter what they Imay be. Marshal County v. SctLanek, 5 Wallace, 772; Campbell- v. 'City of Kenosha, 5 Wallace, 195; Burr v. Chariton County, 12 Fed. Rep., 604; Mills v. Gleason, 11 Wis., 470, 78 Am. Decs., 721; Brown v. Bon Hotoime County, 46 N. W. Rep., 173; Beach on Pub. Corps., sec. 904.</p> <p>It seems to us that public polioy, tbe highest considerations for the public welfare and the commercial credit of the State,, all dictatei that there should be no modification »f ithe law relative to the integrity of municipal bonds as it has existed in the. ■State since 'the decision of this court in Maddox v. Graham and Knox, supra. If it were now held ithat bonds payable to> bearer,. bought by a third person, before maturity, for a valuable- consideration, where there was legislative authority and a ivoite ol the people- authorising their issue, and not ultra vires, were, in effect nonnegotiable, were open to defenses, it would' impair the credit of every municipality in the State. It would render difficult if not impracticable the sale of any such securities in the commercial markets of the- country. Certainly no such paper could ever hereafter be negotiated at all except, as there had been prior ta the issue of suck. bonds a 'litigation, either by proceedings for a mandamus to compel their issue, tor by a suit in equity to enjoin their issue, whereby every question touching ■the validity of their issue could be rendered res adjudicata. No doubt the excellent credit noiw enjoyed by the municipalities of Kentucky lis due mainly, if not entirely, bo- the fact that ever since the -decision -of this court in Maddox v. Graham and Knox, the principles of that -case have been steadily .adhered toi and the law of Kentucky relating to municipal1 bonds considered to be substantially the same as the law relating to such securities as declared by the Supreme Court of the United States.</p> <p>Many (of the cities and counties of this State have within the past five years negotiated their bonds for very large amounlts, bearing four per cent, interest at a price from one to five per -cent, above par.; The city nf Louisville during the present month (April, 1903) has negotiated a large amount of its bonds bearing three and one-half per cent, interest at a price above par. These facts are so notorious that, it is presumed, ■though (¡hey do not appear in the record, a statement of them is not inappropriate.</p> <p>Therefore, nob only does the law, but public policy, - also, as Iwe most respectfully .submit, require an affirmance of the judgment .of the Green 'Circuit Court in this ease.</p> <p>■CITATIONS.</p> <p>An act to incorporate the Cumberland and Ohio Railroad Company, approved February 24, 1869. Acts 1869, vol. 1, pp. 463, 474; Shorten v. Green County, 22 Ky. Law Rep., 1010, 23 Ky. Law Rep., 144; Mercer County Court and Canrard County Court v. Ky. River Navigation -Co., 8 Bush, 300; Slack v. Maysville, &c., R. R. Co., 13 B. Mon., 1; Shelby County Corirt v. C. & O. R. R. Co., 8 Bush, 209; C. & O. R. R. ¡Co. v. Washington Gounty •Court, 10 Bush, 564; C. & O. R. R. Co. v. Barren County Court, 10 Bush, 604: Bowling Green, &c., R. R. Co. v. Warren ¡County Court, 10 Bush, 711; Provident Trust Co. v. Mercer County, 170 U. S., 302; Daviess County Court v. Hdward, 13 Bush, 101; Daviess County Court v. Dickinson, 117 U. S’., 657; Gill v. ICubi'tt,3’ Barn. & Ores., 466; Goodman v. Harvey, 4 Aid. & El., 870; Swift v. Tyson, iff Peters, 1; Goodman v. Simotnds, 22 How., 96; Murray v. Gardner, 2 Wall, 110; Lynde v. County, 16 Wallace, 13; National Life Insurance Co. v. Board lof' Education, 62 Fed. Rep.; 792, court of appeals case, and the au'tlhioriitliies cited; Mercer County v. Hackett, 1 Wallace, 83; .Thompson v. Lee County, 3 Wallace, 331; Lexington v. Butler, 14 Wallace,. .295; Daniel on Negotiable Instruments, sees. 1500, 1501, 1508» 1537; Maddox v. Graham and Knox, 2 Met., 56; Greenwell v. Hayden, 78 Ky., 333; Arente v. Commonwealth IS Graitton, 750; Marsh v. Fulton Co., 10 Wallace, 676; Marshall Co. v. Schenck,. 5 Wallace, 772; Campbell v. City of Kenoisiha, 5 Wallace; 196; Burr v. .Chariton Co., 12 B’ed. Rep., 604; Mills v. Gleason, 11 Wi's., 470, 78 Am. Dec., 721; Brown v. Bon HommeS Co., 46. N. W. Rep., 173; Beach on Pub. Corp., eec. 904.</p>

<p>Case 11 — Action by the City of Louisville against thu Louisville & N. R. R. ICo. and L. R. Figg for Cost of Street Improvement.</p> <p>ATPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>From the Judgment Figg and the City of Louisville .Separately Appeal.</p> <p>The question involved in this appeal isi whether -or hot the property or right of way of the L. & N. R. R. Co. within -the area defined by the city ordinance is subject to the statutory lien in favor of -the contractor for street improvements.</p> <p>The railroad company contends that it is not (1) because ft~: properly was not benettited by the improvement; (2) because it .had been withdrawn from the ordinary use for which town lots are -appropriated and had become a pailt of the railway essential to its operation, and it is not wiithin the ¿policy of the law subjecting town lots to such local burdens.</p> <p>In the City ol Ludlow v. Trustees of the Cincinnati .Southern Railway, 78 Ky., 357, decided March 4, 1880, this court in an opinion hy Judge Himes held that a lot upon the street owned 'by the .said railway company was subject to an assessment fo,r the iimproveiment of such street by the city of Ludlow, and the fact that Ithe lot was the property of the railroad company and used for railroad purposes furnished mo .more rea,sota, why it should he exempt from an assessment than if it belonged to a natural person. The same contentions were made in that case as are made by defendant, L. & N. R. R. 'Co. in its answer, viz.; (1) That its property was molt benefited by .the improvement, and it had been, withdrawn from the ordinary uisei fop which town lots are appropriated and had become, a part of 'the railway essential to its operation, and it was not within, the policy of the law subjecting town lots to such local burden. There it appeared that the lot supported a portion of the masonry of the, road-hed, and was- essential to the proiper drainage of the track. T(h,e assessment was made ion the lots in proportion to, the number of front feeit and in accordance with the provision» of the 'Charteipof ithe city of Ludlow. As to the first objection the court sai-cL “that the lot was not benefited1 by the improvement of the street is sufficiently answered by. the action- of iMcFerram v. A’lloway, 14 Bush, 580.’’ Judge Hines quotes with approval the language in the case referred to as follows:</p> <p>“This court has so often -detemmined that such piower exlisteft in the Legislature that it is no longer am open question, and the benefits to be derived by those living 'in the locality of the improvement, having been determined by the Legislature! in passing the act under which the tax was imposed, this court has no revisory power over ft.- In the judgment of the Legislature -this .taxing district is benefited by the (improvement, ,amd the fa,ct that an actual benefit -is not derived by one living in a ngmolte part of the district, or where it i-s difficult to approach the road or highway, is no -argument against the imposition of the burden.” Furtherimore, Judge Hines said (lb., 360)':</p> <p>“The passage iof the ordinance by Ithe cilby 'council, under the power granted In the charter, is conclusive of the propriety of ■the improvement, amd of the question of benefit to Ithe owners of abutting property.” (Northern Ind. R. R. Go. v. Connelly, 10 Ohio S't., 164.)</p> <p>"With reference to the -second position .contetaded for; by the railroad company’s counsel, that the lot was necessary for the operation of the railway, and it is contrary -to public policy to, subject it to such burden, the court after 'reviewing the authorities cited by the railroad company’s counsel, holding that the property of a -railroad company could not be sodd in parcels to satisfy a lien or tax, said (lb., 362):</p> <p>“These cases bear upon the casei under coñisideraitiion in so far as Ito furnish a rule of construction, for statutes laying local burdens upon such quasi public corporations as railroads!, but •when the rule is -applied to assessments for local improvements, where the statute directs, that the property assessed be sold to satisfy the claim, and directs the manner in which it shall he sold, it will be found not to forhid the fragmentmy sales -against which those cases are directed.”</p> <p>Still further, in support of the conclusion reached, Judge Hines states (lb., 362-63):</p> <p>“But if there were any doubt on this' point, we would not 'hesitate, on the authority of the L., C. & Lex. R. R. Co., and ■the Louisville Transfer Co. v. O'bsf & Stengel, decided by this ■court in February, 1875, to -hold that the property of the company should be .sold to satisfyHhe assessment. In -that oaise the •ioad-hed and the grounds belonging to the company were directed to • he sold to satisfy a sum assessed against- the companies for street improvement, and under a charter of thei city of Louisville* similar in this respect to the- charter of the city of Ludlow. In the opinion in that ease], which was delivered By Judge Liudsay, who delivered the> opinion in the Elizabethtown and Paducah railroad case it is said: ‘Real property held by railroad companies within the Corporate limits of the city of Louisville is not exempt from street -taxation. The terms of the grant of the power to tax for such purposes includes all real estate, and that held hy railroad companies, like that held ■by churches, colleges, hospitals and other institutions of like character, must bear ifcs proportion of the local burden. There is no constitutional restriction upon the power of the Legislature to Impose local taxation upon railroad companies. It is a mere question of policy.’ ”</p> <p>Judge .Hines then proceeds to- quote authorities in dither States, many o.f which have already been cited' in ith-is brief, and the opinion is concluded as follows:</p> <p>“We think that, both upon reason and authority, a lot held and owned hy the railway company, .as this’ is held and used, is as mufch subject to -assessment for Street improvement* (as if it .belonged to a natural person. In, the law authorizing the ■assessment there is no exemption of railroad property, nor exemption ,of property because of its application to certain uses.”</p> <p>It will be observed by .the court that the authorities cited and approved hy -this court 1m the opinion rendered <by Judge Hines, nearly all aie cases where, the right of way of the railroad company was sought to¡ be subjected to. the assessment for’ local improvements.. In the Ludlow' case the lot sought toi be aibjeoted relal-ly formed a part of the railway company’s right of way, as it supported the masonry that upheld the tracks of the railroad company in the city of Ludlow. In other wordsi, if it had been .sold under the lien for the local 'assessment and purchased by a stranger, the railroad company’s operation of its railroad would have been materially 'interfered with, but! that appears not to have, formed any valid objection to the enforcement of the lien.</p> <p>It will be observed that said railroad company by its answer (lb., 36) expressly alleges and claims that it owns and holds a perpetual right of way for railroad purposes from its station in Louisville, Kentucky, to Nashville, Tennessee, over -a strip 'of land 185 miles in length and 66 feeit or more .in. width and that this right of way includes the portion of land described in the petition in this action. This perpetual right of way practically, and to all intents and purposes! amounts to itttie fea simple title. But it is unimportant what kind of title the said railroad company owns or holds. All real .esit&tei within the .area of the district subject to this local assessment must .stand the burden thereof, and the lien of the con.tr,actor for the cost of the -original improvement of Magnolia .avenue attached therer to, and ¡should, under the statute, ordinance and apportionment of itihe cost, as shown by this record, be enforced by the court. •</p> <p>■The question of the right of way of thd railroad company being liable for the municipal assessment, counsel wishes' to call attention to the recent book published in 1900, “The Modem Law of Municipal Corporation,” by John Wl 'Smith. Id voL 2, sec. 1239, the author says:</p> <p>“Where the statute- authorizes assessment for local liimprovemen-ts .against abutting property the right of way ¡of .a railroad company is assessable. . . . The right of way of a railroad company is subject to' siieoial taxation for a local improvement.”</p> <p>To support the foregoing tetxt, the author1 cites) the following cases:</p> <p>“Indianapolis & R. !Co. v.. Capitol Paving Co., 24 Ind. App., 114; s. e., 54 N. B., 1076; Chicago & R. Co. v. City of Milwaukee, 89 Wi.s,, 506; s. e., 62 N. W., 417; Peru & R. Co: v. Hanna,. 68 Ind., 562; Pittsburg & R. Co. v. Hays), 17 Ind. App., 26Í,-s. c., 44 N. E„ 375; 45 N. E., 675; 46 N. E., 597; 'State v.'Ci’ty of Passaic, 54 N. J'. L., 340; a. c., 23 Atl., 945; Louisville & R. Co-, v. State, 8 Ind. App., 377; s. e., 35 N. E., 916; Lake Erie & ¡R. Co. v. Bowker, 9 Ind. App., 428; s. c., 36 'N. B., 864; Louisville & R. Co. v. Boney, 117 Ind., 501; s. c., 20 N. E., 432.”'</p> <p>“Chicago & R. Co. v. Village of Emhurst," 165 111., 148; s. c., 46 N. E., 437; Chicago & R. Co. v. City of Joliet, 153 111., 649; s. c., 39 N. E., 1077; Chicago ¿ R. Co. v. Feople, 120 111., 104; s. c., 11 N. E., 418; Payne v. Village of South Springfield, 181 111., 285; s. c., 43 N. E., 1105; Illinois & R. Co. v. City of Mattoon, 141 111., 32; s. c., 30 N. E,, 773; Illinois & R. Co. v. City of Chicago, 141 111., 509; s. c., 30 N. E., 1036; Kuehmer v. City of Freeport, 143 111., 92; s. c., 32 N. E., 372; Rich v. City of Chicago, 152 111., IS; s. c., 38 N. E.,‘255; Illinois & R. Co. v. Commissioners, 129 III., 417; s. e., 38 N. B., 925; Drainage Comrs. v. Illinois & R. Co., 158 111., 353; s. c., 41 N. E.; 1037; Illinois & R. Co. v. City of Decatur, 126 111., 92; s. c., 18 N. E., 315; Illinois & R. Co. v. City of Decatur, 147 U. a, 190; s. c., 1.3 S. St., 293; Illinois & R. Co. v. City of Decatur, 154 111., 173; s. c., 38 N. E., 626; Chicago & R. Co. v. City of Quincy, 136 111., 663; s. e., 27 N. E,. 192; Chicago & R. Co. v. City of Moline, 158 111., 64; 's. o., 41 N. E., 877; Freepprt S't. R. Co. v. City of Freeport, 151 111., 451; s. e., 38 N. E., 137; Pittsburg & R. •Co. v. Hays, 17 lad. App., 261; s. c., 44 N. E., 375.”</p> <p>If the judgment against the city of Louisville is affirmed, o? •course the contractor, L. R. Figg, is not much interested in the remaining question, hut should the judgment against the city of Louisville he reversed, then, we think the judgment agaitost the railroad company would also he reversed and the company held for the assessment.</p> <p>CONCLUSION.</p> <p>In conclusion, therefore, we submit the following propositions viz.:</p> <p>1. The property of the railroad company sought 'to bel subjected to this special tax is only an easement, viz., a right of way.</p> <p>,2. It is not benefited, hut rather is injured, by the ümprovememt of the street in question.</p> <p>3. A railroad right of way is not a “lot" within the meaning of the statute governing staeet 'improvements.</p> <p>4. To require the owner of this right of way, which is not benefited, hut rather is .injured, by the improvement of this street, to pay part of the cost thereof, would b© to deprive him of his property without due process of law.</p> <p>AUTHORITIES.</p> <p>1. Title of L. & N. R. Co. is only to an easement, viz., a right of way. 3'Elliott on Railroads, sec. 972; Kelly v. Donahue, 2 Met., 482; Morris v. Schollsville, &c., Turnpike Co., 6 Bush, G7l; Washington Cemeteiry Co. v. Prospect Park E. R., 68 N. Y., 593; Clark v. Worcester, 125 Mas®., 230; L. & N. R. iCto. Ghauter, Acts 1849-50, p. 427.</p> <p>2. A railroad right of way is not a “lot” within the meaning ■of the assessment statute. Ky. Stats., seca. 2833 and 2834; L. & N. R. R. Co. v. Com., 106 Ky., 638; Owen Tyler v. L. &. N. R. R. Co., 23 Ky. Law Rep., 827; 'City of Allegheny y. West Pa. R. Co., 138 Pa. St., 375; 21 Atl. Rep., 763; Chicago, &c., Ry. Co. v. City of Ottumwa, 112 Iowa, 300; 83 N. W., 107-1.</p> <p>3. No constitutional power to assess part of the cost of- i approving a street upon a railroad right of way mot benefited thereby. Norwood v. Baker, 172 U. S., 269; French v. Barber Asphalt Co-., 181 U. S., 325; White v. City lof .Tacoim-a, 109 Fed. Rep., 32; Barfield v. Gleason, 23 Ky. Law Rep., 128; Chicago', &c., Ry. Co-. v. City of Milwaukee, 89 Wis., 506; 62 N. W., 417; Detroit, &e., R. Co. v. City of Grand Rapids, 106 Mich., 13; 63 N. W., 1007; N. Y. & N. H. R. Co. v. City of New Haven, 42 Conn., 279; 19 Am. Rep., 535; New Jersey, &e., R. Co. v. City of Elizabeth, 37 N. J. L„ 330.</p> <p>AUTHORITIES EXAMINED.</p> <p>111. Cent. R. Co. v. Decatur, 147 U. S., 190; City of Blooming-ton v. 'Chicago, &c., Ry. Co., 134 111., 451; 26 N. E., 366; Northern Indiana R. Co. v. Connelly, 10 Ohio St., 159; Peru, &c., R. Co. v. Hanna, 68 Ind., 567; City of New Haven v. Fair Haven, &c., R. Co., 38 Conn., 422; 9 Am. Rep., 399; Paterson, &c., R. Co. v. City of Passaic, 54 N. J. L., 340; (City of Ludlow v. Cin. Sou. Ry. Co., 78 Ky., 357; L. C. & L. Ry. Co. v. Obst &'Stengel, Mss. Op.</p>

Case 12 — Action by Henrietta Davis’ Admr. against Chesapeake & Ohio Ry. Co. and Others to Recover Damages for the Death op Plaintiff’s Intestate. APPEAL FROM LEWIS CIRCUIT COURT. Held: at first, tlhat it was) necessary to aver that all the stockholders of the corporation, were citizens of a State different from the opposite party to the suit. Bank v. Deveaux, 5 Cramch, 86; Bank v. Slocumb, 14 Peters, 60. 4.

<p>•Case 13 — Action by C. B. Lowery against the City op Lexington to Test the Validity of an Ordinance op Said City.</p> <p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>.Judgment por Dependant and Plaintiff Appeals.</p> <p>In the -charier of cities of the second class is the following section, to-wit, section 3J05:</p> <p>'“The general council shall havet power to construct sewers along or under any of the streets, alleysi or highways of the city, and may assess the entire cast, including intersections, oí constructing the same to an amount not exceeding one dollar per front foot of the abutting property upon the lots and lands bounding or abutting upon said streets, alleys or highways in, under or along which the sewers shall have been constructed; tha cost of the construction of sewers, not exceeding said sum of one dollar per front foot of the abutting property, shall be apportioned equally on the said abutting lot owners, .according to the fnont feet. "When the amount of the quotient, after dividing the entire cost of the construction of the sewer, as estimated and computed to the general council by the .engineer by number .of front or .abutting feet, exceeds tha sum of one/ dollar per front or abutting foot, then, and in that- event, .the entire cost of construction of said sewer shall be assessed upon the lots and: -lauda im the neighborhood of said sewer which may he benefited thereby according to the benefits received; and .in every isuc/h case the-council .shall, by ordinance, fix and determine the amount of ■tax to he levied upon the .several lots or land-s so benefited. Tha general council may, however, out of 'the general fund, contribute and pay towards the construction of such sewer such part thereof as may to the council seem proper. The tax provided for in, this section shall be a lien upon ¡such abutting or benefited property, as t'he case may be, and may be collected -and enforced as street improvement liens are collected and enforced; but .the amount of sewer tax assessed against any lot or land shall in no event exceed one dollar per front or abutting foot.”</p> <p>The general council of the city of Lexington adopted ordinance 1N0. 1372, which is copied ,in the record, “to. provide for the construction -of a system of sewers in the city of Lexington1, and to. order an election to determine the question of issuing $150,(TOO of bonds of the city of Lexington.</p> <p>As we understand there were two questions upon 'which the circuit court doubted, and upon- eomsideiration decided them, against the validity io,f -the ordinance.</p> <p>1. That the ordinance creates in section 7 an office or offices, and^ that the persons therein named are in law officers. This we respectfully deny. That section i.s as follows, to-wit:</p> <p>“GeorgsS S. Shamlilin, L. G. Cox, R. P. Stoll, J. R. Barr, Judge Mat Walton and Gus -Straus are hereby employed by the city 'of Lexingtoh to superintend and supervise the construction of' the sanitary sewer system of said city, as provided for in this, •ordinance. And the general council is hereby authorized to pay .to said named persons a sum not to exceed $800 each.”</p> <p>"We respectfully contend (1) that no office, is created by this ordinance; that the persons named in section .7 are merely employes and servants, who, at any time, may be discharged by the -city, or who may at any time decline further employment. (2) that under the powers granted to the city council it 'has the power to adopt and construct a system of sewers, and to contribute and pay towards the construction thereof such sum1 as may be necessary, or as the council /may determine is necessary, out of a fund to be raised by 'the1 'issuance and sale of bonds.</p> <p>(3) But before it can issue or sell these bonds it must obtain authority by an election duly held, at which election suchJ authority is legally granted.</p> <p>‘This is ,a matter of immeasurable importance to the city of .Lexington. A system of sewers is an absolute necessity to the health and growth of the city. For years' the council has been .unable to agree upon what action it would take. Finally, it has agreed /upon this ordinance. The vast majority of the people of Lexington in our judgment desired its passage. It is of the-utmost importance that if it has the power this court will isay so that i-t may exercise it. If 'it hais not the power to do tfus that the court say so, indicating what is the defect, w'hat is the omission --in the powers granted, iso that the Legislature may be .appealed to to remedy the defect and supply that omission.</p> <p>W:e contend that ordinance No. 1372 is illegal and void;</p> <p>-First, Because it séeks to 'establish new offices, and we ¡might lengthen this argument indefinitely were we not unwilling to impose upon the patience of this, honorable court by showing not only does it seek to create new offices, but attempts to have officers appointed with an indefinite term, which is directly contrary to the Constitution.</p> <p>Second, It seeks to delegate legislative power belonging exclusively to the general council, which can be exercised by no. other body or agent.</p> <p>Third, It seeks to impose a general taxation for ithe construction of sewer,a, when the law clearly provides that such a public work .shall be paid for by the abutting property owners.</p> <p>For these various reasons, twe ask that, the judgment of the lower court be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Lowery v. City of Lexington, 24 R., 516; Ky. Stats., secs. 3094, 3105, 3118, 3144; Cooley on Con. Lira., 6th. ed., p. 248; Dillon on Mun. Corp., vol. 1 (3d ed.), sec. 96, vol. 2, sec. 779; Murray, &c., v. Tucker, &c., 10 Bush, 240; Byrne v. City of Covington, 15 R., 33.</p>

<p>Judgment — Enjoining Collection of Tax by Sheriff — Conclusive Against (County — Subsequent Action by County.</p> <p>Held: 1. Kentucky Statutes (1899), section 4129, makes thei sheriff collector, of all taxes, unless otherwise .provided. Sections 4148, 4151, 4184, point out the mode inf collection by levy on land, &e. Section 4131 provides that when the office of sheriff is vacant the county court may appoint a collector of taxes. Coneltitution, section 144, provides that each county shall have a fiscal court, and Kentucky Statutes (1899), section 1834, (provides that the corporate powers of ithe county shall he) exercised by the fiscal courts. Section 1840 gives the court control of ithe fiscal affairs lof the county, and provides that it shall have jurisdiction of all matters relating to the levying of taxes, &c. Held, that as, under .the statutes, the sheriff of a county, so far as his powers affect taxation, is merely a tax collector, a default judgment against him in suit by a taxpayer to enjoin the collection of taxes, in Which the county is noli a party, is mot binding on the county in a .subsequent action by it to collect the taxes.</p>

<p>CORPORATIONS-INTEREST ON PAID-UP CORPORATE STOCKS-STOCK DIVIDEND — ¡Effect—Estoppel—Corporate Records — Presumptions.</p> <p>Held: 1. Under 2 Acts 1S50-51, page 414, chapter 505, section 5, which provides that a certain railroad “shall allow to all subscribers and holders of stock under the company, interest on the same from the time of paying for said stock” up to' the time of making the first dividend, interest did not begin to 'run- on the stock from the date on which a county subscribing therefor issued bonds in payment thereof, but from the date of the delivery of the bonds to thei company, though .the .bonds bore date anterior to their delivery, and the purchasers thereof would be entitled to interest from their date.</p> <p>.2. Evidence that counties, as subscribers of stock in a railway corporation, frequently delivered their bonds .in payment of stock subscriptions after the time the bonds bore data, tend® to- overcome the presumption that bonds issued) by a 'particular1 county in payment of -stock subscribed by it were delivered to thei corporation the day they were dated.</p> <p>3. Where there was no evidence to impeach the correfctne'sls of th-e record of a corporation showing the 'transactions) between iit -and their stockholders, had about fifty years before, its record .showing the date a subscriber paid for stock by delivering to it bonds is the best evidence ás to the date when the 'stock was .paid for.</p> <p>4. Under Acts 1851-52, page 742, chapter 429, section 15, which -provides ffiat a certain raiiroad shall, on the date of the first dividend, and thereafter on presentation and 'surrender at the company’s office of tax receipts for taxes paid to- deifray interest on bonds given by a county in payment of corporate stock, issue to the holders of tax receipts stock for the same, and 1 Acts 1865-56, page 188, chapter 20, section 4, which declares that the1 holdsirs of stock issued to such taxpayers shall be entitled too. all the rights and privileges of stockholders, except that such stock shaU- not bear interest, a taxpayer paying taxes to defray interest on county bonds issued in payment of corporate stock is entitled to an amount of stock equal to the tax receipt, together with all cash and stock dividends, ’declared on such stock.</p> <p>5-. A corporation was required to allow to all stock subscribers interest from the time raf paying for the stock to the timel of malting the first cash dividend. In 1861 it declared a stock dividend as of April 1st following. A stock subscriber denied the right of the corporation to stop the running of interest, except hy its declaring a cash dividend. At the meeting declaring this dividend, a county, as stock subscriber, was represented, ■by a sinking-fund commissioner. At a subsequent meeting of stockholders, the county wras represented by two sinking-fund, commissioners, who joined with other stockholders ini declaring invalid the claim of the stockholder denying the right to stop interest except hy a cash dividend. Subsequently the corporation declared and paid several cash dividends on the basis that interest stopped hy the payment in 1862 of the dividend declared in 1861, and the county acquiesced therein. Held, ’that the county was estopped from claiming thait interest icontiinued to the time the corporation declared the first caishl dividend.</p> <p>6. A transferee (of corporate stock acquires the right to any interest due on the stock, though payable in stock instead of cash.</p>

<p>Municipal Corporations — Ordinances—Varidity—Title—Sufficien- . cy — Adoption—'Records—Police Powers — Intoxicating Liquors. —'Closing Saloons — Penalties—Action—Pleading.</p> <p>Held: .1. An ordinance entitled an ordinance prohibiting the dispensing vof spirituous liquors during certain hours;, iclosing .saloons, coffee bouses, and like places of business during such period, ,and requiring the removal of obstructions to the interior view from saloons, coffee houses, of like placdsl lotf business!, iis not repugnant .to Kentucky Statutes, section 3059, providing that no. ordinance shall embrace more than one subject which, .shall be expressed in the title.</p> <p>2. Under Kentucky Statutes, section C058, conferring power on certain cities to regulate the selling or giving away of.,spirituous liquors by any person within the city other than those! duly licensed, and to pass such ordinances as may be expedient in maintaining the peace, good government, health, and welfar'e of the. city, an ordinance prohibiting the dispensing of spirituous liquors between certain hours of the night, requiring the closing of saloons, and the removal of obstructions from the' interior view ,o£ saloons, is authorized.-</p> <p>3. A provision in the ordinance prohibiting druggists from dispensing spirituous liquors between certain ho-urs of the night is invalid, a -druggist not being permitted to. dispense1 liquors at any time as a drink.</p> <p>4. The ordinance, in prohibiting wholesale liquor dealers from dispensing liquorsi during certain hours, is invalid.</p> <p>5. An ordinance, in declaring that the entrance or exit .of any person from any saloon during the hours specified that same should be closed 'Should be prima facie evidence of its violation is invalid, as an attempt to legislate on the weight and -effefot of e-videitce.</p> <p>6. Where the invalid provisions of an ordinance can he 'eliminated: without affecting the remainder, it will not-be invalid in fcoto.</p> <p>7. In an action for the penalty for violating an ordinance requiring the closing of saloons, an answer controverting the validity wf the ordinance because it had not been published as required by Kentucky Statutes,. section 3045, .may be filed, and the1 questioá of fact investigated.</p> <p>S. Under Kentucky Statutes, section 3063, providing that the general council shall cause all ordinances passed by thetm toi be fairly recorded in .the journal of proceedings-, an answer in an action for the penalty for violating an ordinance awerrinigi that the ordinance was not recorded in the journal on the days it passed the' respective houses is insufficient, as" it does not aver that thel ¡proceedings •of the board were not recorded at all.</p>

Case 17 — Action by tiie Commonwealth against Terry McGovern to Prevent a Prize-eight in this State. APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. From a Judgment Dismissing the Petition the Commonwealth Appeals. 'STATEMENT. The judgment appealed from was rendferad in a suit brought ‘by the Commonwealth of Kentucky on relation of the Attorney-General against Terry McGovern and others to restrain the holding — pulling off — of a prize-fight in the city of Louisville.

<p>Case 18 — Action by Jacob Culver's Admr. to .Settle the Estate of His Intestate.</p> <p>appeal from nelson circuit coubt.</p> <p>From a Judgment Subjecting to Creditor’s Claims Certain Lands Sold by the Heirs op Decedent to John S. Kelly. Kelly Appeals.</p> <p>STATEMENT.</p> <p>Jacob Culver died intestate In Nelson county, Kentucky, in April, 1896, owning no .personal estate except such as was exempt, and was .set apart .to his surviving widow; but was fha owner in fee of two .adjacent tracts of land, com-prisingi 124 acre?, of an inferior quality, and upon one of which tracts he> was resident at the time of his death.</p> <p>He left surviving him a widow and quite a large family .of adult -children, as his sole heirs at law. The intesit-ata owed very f-eiw debts, amounting in the aggregate to $51.25, as shown by commissioner’s report, in excess 10-f a note due- his- w-ife, amounting to $450, including accrued interest, the payment of which was secured by a mortgage on one of the two tracts, in which mortgage she had herself united. Appellee, N. W. Hal-stead, was duly appointed and qualified* aa the administrator of the intestate, -and within about three months after the intestate’s death, to-wit, Jhly 7, 1896, instituted this action in the Nelson Circuit 'Court making the'widow, heirs and alleged ■creditors, including appellees, Bowling & Greenwell, defendants thereto, and sought a sale of so much of the realty as might be neccessary to pay the mortgage lien and other debts as well as a settlement of his trust.</p> <p>Upon a reference to the commissioner to audit and report claims, the action progressed until a report was made showing the necessity of a sale of the land, or at least a large part thereof, to pay debts and costs of administration, which were reported in the aggregate on May 29, 1897, at $601.25, including an attorney’s fee of one hundred dollars, allowed plaintiff as attorney for* himself as administrator, to settle the estate upon which he was administering. Upon a confirmation of this report, a decree rof sale was adjudged of a sufficiency of the land to pay said sum and costs. This sale was made by the commissioner on August 9th succeeding (August 9, 1897), at which sale the widow became the purchaser of the entire land. Upon exceptions filed by a part of the heirs to this reported sale, because they were not before the .court, the report and sale were set aside, and a re-sale ordered, which was again made'by the commissioner on May 9, 1898, being nine months subsequent to the first sale. At this second sale the widow again became the ■purchaser of sixty acres of the land for the amount neccessary to pay all debts presented, and costs, and producing a surplus of $28, and a homestead exemption for her life as widow was adjudged her in the residue of sixty-four acres, leaving the remainder therein to descend to the children and heirs at law of Jacob Culver.</p> <p>The second sale was reported and confirmed at the May term, 1898,'more than two years after the date of the death of the intestate, and twenty-two months after the institution of the suit to settle the estate, to which suit the appellees, Bowling & Greenwell, as alleged creditors, had been made parties defendant, and brought before the court by process, as alleged in the exceptions, and the plea of the appellant Kelly. On the 5th day of October, 1898, being five months after the second sale, and being two years apd three months after the institution of the suit, appellant, John S. Kelly, in good faith and relying upon all creditors having presented, or been paid, their claims, if any they had, purchased from the heirs at law their remainder interests in the sixty-four acres of land, in which the widow had a homestead exemption right for her life, and at the same time he paid as alleged by him the full value of such remainder interest, viz., $302.50. A deed of conveyance was made him by all said parties for this remainder on the same day, October 5, 1898, and it was immediately placed to registration 'by him, as shown by the certificate attached to his deed on- page 103 of this transcript,</p> <p>Up to- this time Bowling & Greenwell, appellees, had never presented any claim whatever against the estate of decedent and in fact as the record will show, had never even attempted to prepare or verify one 'until in May, 1898, at which time it now appears from their claim presented, for the first time in. November, 1898, that they' merely made a statement “of balance on account” and verified the same without ever presenting, ■or offering to present the same in court or elsewhere, until after appellant Kelly had purchased and paid for this remainder and placed his deed to record in October, 1898.</p> <p>The master commissioner of the court, long after there had been a final judgment rendered in the cause directing a sale of the lands, and long after the second sale had been made, and his report thereof confirmed, and without there being then any reference of the case before him for further action, volunteers at the November term, 1898, to report this claim of appellees Bowling & Greenwell, and the administrator then seeks to subject this remainder interest which had been acquired by appellant as stated, to the payment of this claim of Bowling & Green-well so long withheld by them, while the suit was pending, and so done without any excuse, cause or explanation for their delay, except an admission iof their own neglect. The record will show they resided within two miles of the decedent’s home; that they were apprised of his death by furnishing as they claim, in an itemized account, a coffin of $30, and burial suit $10, charged to have been furnished April 24, 1896. As will be seen by an inspection of their claim, much of it is claimed to have been sold after April 24, 1896, the first items being November, 1896, and then they charge up to the intestate’s account $48.48, of an indebtedness incurred and created by a son, ■Sylvester Culver, for his own use, a large part being the summer and fall of 1896, long after the death of the intestate. (See account bn pages 65 and 66 of transcript.)</p> <p>When the administrator upon the presentation of this account for the first time in 1898 after Kelly’s purchase and payment undertakes to subject this remainder interest to the payment of this claim, appellant Kell'y interpleads, setting np 'his purchase, payment conveyance, registration of his -deed, and pleads that, this was ail done by him in good- faith without any information, knowledge or notice that .Bowling & Greenwell held any claim, and relies upon the reports of the commissioner^ orders, and final judgments entered in the cause, -and alleges his purchase and payment were made by him in the best of faith.</p> <p>He then pleads and relies upon the culpable neglect of claimants by th6ir failure to prepare- or present any claim as against' the claimed lis pendens lien, if any ever existed, and. also- as-an estoppel .against claimants. The deposition .of appellant Kelly is the only testimony taken upon this' issue and will be found upon page 96, &c., of the transcript. His testimony •supports his plea to the fullest extent.' Upon final hearing, as-shown by the judgment appealed from, the court -overrule#? the exceptions filed to the claim of Bowling & Greenwell and allowed same as a proper one against the .estate of Jacob Culver and then further adjudged that the said tract of sixty-fo-ur acres of land in which the widow, Mary Culver, had a homestead) right, during -her natural life, and in which appellant Kelly owned the. remainder, is liable to the payment of Bowling & Greenwell’s debt as well as ,the surplus of the $28.50 in court, ajafo. purchased by appellant Kelly, and further adjudged .a sale of so much of said land as was necessary to pay .said claim of Bowling & Greenwell “and the costs of this suit,” thereby depriving appellant of his .title to said land to that extent, and putting the entire ooists of this suit upon him, .being a suit to settle-the estate In which the costs including attorney’s fee is more than $175. The judgment further dismissed the petition -of said Kelly, to all of which he excepted and prayed this appeal.</p> <p>It is the contention of appellant that if the institution of the suit by the administrator .within six month® after the death of his intestate, seeking a sale of the land to pay debts, &c., created a lis pendens lien in favor of the creditors,- that such lien ior Us pendens has been lost to appellees, Bowling & Greenwell by their laches and own culpable negligence when it is sought to- he enforced against the appellant as an innocent purchaser' for a. valuable consideration.</p> <p>AUTHORITIES CITED.</p> <p>Ky; Btats., sec. 2087; Herman on Estoppel, v-ol. 1, chap. 1, sec. 5, subsec. 6, p. 4; see. 7, subsec. 4, p. 6; "Watson v. Wilson,. 2 Dana, 406-411; Clarkson v. Morgan’s Dev., 6 B. Mon., 447-8;. S'ugden on Vendors, p. 537; 3d P. Williams, 482; Erhman v. Kendrick, 1 Met., 146-7-8, &c.; Cook v. Clemens, 87 Ky., 570; Staith’s Admr. v. ¡Cotton, 63 S. W. R., 473.</p> <p>STATEMENTS OB’ PROPOSITIONS DISCUSSED.</p> <p>1. A Us pendens in suit to settle a decedent’s estate is created not by filing a 'Commissioner's' report oí estate and claims, nor by a creditor filing a claim against the estate, but by institution ol the suit to settle filed within six months from death .of decedent and before alienation by the heirs in the court having jurisdiction of the property .and of the ¡parities; the property sought to be subjected being real estate and being property described, and all the parties in interest being duly? brought before the court, the heirs at, law and creditors) in so far as known, all this being done in- the case ,at bar there is a Us pendens .and the judgment appealed from isboulld have beeta. affirmed. 103 Ky., 403; 91 Ky., 324.</p> <p>2. T.he $28 being in the possession of the court by being in the hands of the receiver was within the ¡power of the court and as to. it a Us pendens manifestly ¡existed and appellant, a stranger to this record, in undertaking ,to purchase the right to this $28 is clearly a pendente lite purchaser. 91 Ky., 325.</p> <p>3. The petition set out ¡the existence of the debt now in controversy in the case by name and described the! 'Character of the debt, to-wit, funeral expenses, and aske'd the sale of the real estate to pay that debt, and described accurately ¡the property sought to be subjected being real estate, and having before the court by the execution of process the persons, claiming title to the property, then appellant having acquired an interest in the property during the pendency of the .siuit, acquired ¡such interest as a pendente lite purchaser-.</p> <p>4. A lis pendens is created if the averments ¡of a .petition taken in connection with the exhibits are ¡sufficient i:f enough is alleged to enable a party, upon reasonable enquiry, toi identify the property and ascertain the object of the suit. 103 Ky., 403.</p> <p>5. >The legal maxim “that that is certain which may be made certain,-’ applies to the question as to whether1 property is sufficiently described as to create a lis pendens, the rule is that there is lis pendens whenever there is enough ,in the proceeding to lead a vigilant mind to identify the property involved and to warn the world that they intermeddle at their own peril. 103 Ky., 403.</p>

<p>Bailroads — 'Lease of Lines — Liability of Lessor — Servant’s Injuries.</p> <p>Held: Where a railroad company, under valid legislative authority, leases its lines to another road, it is not liable) ais an employed for injuries caused to employes of the lessee through the lessee’s negligence.</p>

<p>Case 20 — Action by the Louisville & N. R. Co. against the Louisville Bridge Co. and the Pittsburg, C. C. & St. L. Ry. Co., for Breach of Contract.</p> <p>APPEAL FROM JEFFERSON CIRC D IT COURT, LAW AND EQUITY DIVISION.</p> <p>From ti-ie Judgment Rendered Defendants Separately Appeal, and Plaintiff Prosecutes a Cross Appeal.</p> <p>.STATEMENT.</p> <p>lOn Novelmber 22, 1892, the appellee, the Louisville & Nashville Railroad Company, brought a suit in what was then the Louisville Law and Equity Court, thei case] being numbered ion the docket 5205. The apipeillánts, the Louisville! Bridge Company, and the Pittsburg, Cincinnati, 'Chicago. & iSIt. Louis .Railway Company, and certain other railroad companies were made partied defendant. The Louisville & Nashville Railroad Company sought to recover against the Louisville Bridge (Company and the other defendants a certain amount of money1 alleged to have been wrongfully collected from it and retained by the Louisville Bridge Company or wrongful!y paid over1 to. the other .defendants. The suit involved a written contract dated June 5, 1872, and the sums sought to be recovered were those so wrongfully rehated or wrongfully paid over since January 1, 1892.</p> <p>A judgment in the sum of $192,478.44, including interest, was entered in favor of the Louisville & Nashville Railroad Company against the Louisville Bridge Company by the lower court June 27, 1896. It included the tolls found to havei been illeigally exacted from the Louisville & Nashville' Railroad Company for the four years — 1892, 1893, 1894 and 1895. This judgment was affirmed by this court on. May 24, 1899. The Opinion of the court is reported under the style of Louisville Bridge Company v. Louisville & Nashville Railroad .Company, 21 Ky. Law Rep., 272. This opinion states the! ¡history of that cause and of the contentions of the! parties therein.</p> <p>On December 28, 1892, a little, more than a .month after the above suit was filed, the Louisville & Nashville Railroad Company filed another -suit in the Louisville Law and Equity Court, numbered upon its docket 5249. This suit was upon exactly the same contentions as were made in the ease decided by this court, and the claim was for tolls alleged to have been illegally exacted düring the eleven years ending December 31, 1891. (E. vol. 1, pp. 1 to 10.)</p> <p>It will thus be seen that the Louisville & Nashville Railroad Company, having claims against the Louisville Bridge Company and certain railroad companies for tolls exacted contrary to the provisions of a written contract dated June 5, 1872, brought two suits. In one of them the tolls were alleged to have been illegally exacted during the four years after January 1, 1892, and :n the other the tolls were alleged to have been illegally exacted during eleven years prior to January 1, 1892.</p> <p>1 In the first of these suits, as stated above, the Louisville & Nashville Railroad Company recovered a judgment against tli© Louisville Bridge Company, and this judgment wais subsequently affirmed by this court.</p> <p>In the second suit, which is norw before the court on this appeal, the Louisville & Nashville Railroad Company secured a judgment for $259,280.61 against the Louisville Bridge ¡Company and for $140,311.10 against the other appellant.</p> <p>We are seeking a reversal of these judgments ohl various .grounds.</p> <p>POINTS AND CITATION OF AUTHORITIES.</p> <p>1. Where two suits are brought involving breaches of the game contract, all of which breaches had been suffered prior to the bringing of either suit, the defendant in the second suit may .plead the pendency of the first -in abatement, or may plead to the merits in both, and, one of the causes being determined, may plead ¡the judgment in that cause as in bar of a further prosecution of the otfiew cause.</p> <p>2. A right of action can not be split into two suits: Freeman on Judgments, sec. 240; Black on Judgments, secs. 734, 735, 747; 1 Ency. Plead, and Prac., 148, 153, 154, 155; Bliss' on, Cod© Pleading, sec. 118; Powell v. Weiler, 11 B. Mon., 186; Winestock v. Bellwood, 12 Bush, 139; Pilcher v. Ligón, 91 Ky., 228; Bendernagle v. .Cocks, 19 Wend., 207; S. C., 32 Am. Dec., 448; S'ecor v. Sturgis, 16 N. Y., 583; Camp v. Morgan, 21 111., 255; Casselberry v. Forquer, 27 111., 170; Rosenmueller -v. Lampfcei, 89 111., 212; S. C., 31 Am. Rep., 75; Richardson v. Eagle Machine Works, 78 Ind., 422; ,S. C., 41 Am. Rep., 584; Whittaker v. Hawley, 30 Kansas, 317; S. C., 1 P. R., 508.</p> <p>3. Failing to plead in abatement does not prevent plea in bar. Black on Judgments, sec. 734; Siaeor v. iSturgi's, 16 N. Y., 554; Warren v. Cummings, 16 Cush., 104; Hughes v. Dundee Mortgage Co., 20 Fed. Rep., 832; Baird v. United States'. 98 U. S., 430; Farrington v. Payne, 15 Johnson, 432; Lucaá- v. Laaompte, 42 111., 303; Oliver v. Holt, 11 Ala., 574; S. C., 4? Am. Dee., 228; Wichita R. R. v. Beebe, 39 Kansas, 465; S. C., 18 P. R., 502; Bolling Coal Co. v. Whittaker Brick Co., 52 Kansas, 747; S. C., 36 P. R., 810.</p> <p>4. Judgment should be reversed on the merits. Louisville Bridge Co. v. Louisville & Nashville. R. R. Co., 21 Ky. Law Rep., 271.</p> <p>■5. Exceptions to depositions-of witnesses on ground! of incompetency.. Price v. Earl of Torrington, 1 iS. L. C., 7 Am. Ed., 542; star page 397; also at page 552, star page 407; 1 Wharton on Evidence, secs. 238 239, 240, 241, 661, 662; 2 Jones on Evidence, secs. 323, 325; Poor v. Robinson, 13 Bush, 291; Chaffee v. United States, 18 Wall., 517; Merrill v. Ithaca R. R., 16 Weed., 5S6.</p> <p>6. Reconsigned traffic.</p> <p>7. Tolls on reconsigned traffic in judgment against second appellant.</p> <p>8. interest. Moore v. Pendergrast, 6 J. J. M., 535; Adams Express Co. v. Milton, 11 Bush, 50; Neal v. Keel's Executors,</p> <p>4 Monr., 163; Henderson Cotton Co. v. Lowell Shops, 86 Ky., 668.</p> <p>POINTS.</p> <p>■In .addition to the two propositions, discussed by our colleagues, we respectfully submit that, on the basis of the) .adimiA sions made in the pleadings, when read in connection with the agreed facts and all of the evidence, the following meritorious propositions clearly apply to this case and .show the judgment to be erroneous, to-wit:</p> <p>1. That on the admissions made in the pleadings and stipulated in the agreed facts the appellee's petition should have been dismissed.</p> <p>2. That the laches and acquiescence of the appellee for more' than fifteen years in the practica! and iconifcemporaneous construction given by the parties to the said contract, and its o.wn acknowledged violations of the terms thereof during the .period covered by this suit, should bar and estop it frota assenting its presen! defmands against the bridge company.</p> <p>,3. That the five-year limitation statute logically applies to a part, if not to all, of the appellee’s claim, because its re-formed petition, styled by it to he “in lieu lof the (original) petition heretofore filed and the amendments thereto,” was not filed until February 11, 1895, and its alleged new cause of action, bhemein attempted to be stated, was not completed by amendment until March. 20, 1807 \(Ree. 49 and 122), and was them allowed to .remain dormant, without preparation iot) prosecution, from 1897 pntil 1901 (Rec. 175).</p> <p>4. That the Louisville Bridge Company never received nor had the use and benefit of any ipart of the pirincipal sum óf $150,775.88 and $108,504.73 interest with which it is primarily charged in solido in the judgment complained of, nor ever at any time had in its treasury or under its nonitrol any .sum in excess of the fixed charges enumerated in the contract, and that, if required to pay this judgment, it would have to) do eo> out of its corpus, and this, too, at a time when the appellee Louisville & Nashville Railroad Co., and appellant, Pittsburg, 'Cincinnati, Chicago & iSt. Louis Ry. Co. are .still in the possession of its properties under the contract of 1872, alii .of which is contrary to the plain meaning of the said contract.</p> <p>5. That the tolls charged by appellee on reconsigned freight traffic, which said reconsignanentsi did not pass' over .nor .pay any bolls to the bridge company, aggregate, during the four years prior' to January 1, 1892, the following principal sums, to-wit:</p> <p>1888 .....*......................$23,860.59</p> <p>1889 ............................ 41,377.41</p> <p>1890- ............................ 27,771.24'</p> <p>1891 ............................ 29,203.51</p> <p>$122,212.75 (Rec. 343).</p> <p>' If this neconsigned traffic, which never passed lover the bridge, mor paid any tolls thereon, be Eliminated it would reduce the principal sum of $150,775.8S by the sum of at least $35,.653.10, exclusive of interest to the date of the judgment (Rec. 350).</p> <p>We insist that, alter the payment -of the tolls on the original consignments which passed over the bridge, these reconsignments, over a different line of road than the original consignments and not passing over tlw bridge, should not be charged against the, bridge company even if they had been properly reported, which was not the case.</p> <p>6.That of the $150,775.88, principal of the judgment rendered, the four northern co-tenants of the appellee as! its iconnecting .carriers were suffered and permitted by the appellee to cofleet, report, and! retain as parts of their own traffic, and without the knowledge or consent of the bridge company of appellee’s claim to any interest therein, the'following respective sums:</p> <p>Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co.. .$81,785.94 Louisville, New Albany & Chicago R. R. Co........ 27,085.25</p> <p>Louisville, Evansville & St. Louis R. R. Co., ......37,485.38</p> <p>Ohio & Mississippi R. R. Co........................ 3,539.08</p> <p>“Route not given” ........................:......... 880.23</p> <p>Aggregating the principal sum of .............$150,775.88</p> <p>(Ree. 362).</p> <p>No part of the above sums were ever paid over to or received •by the Louisville Bridge Company.</p> <p>In the face of these admitted, facts the judgment, as drafted and entered by the lower court herein, recited that these several sums were “primarily due and payable to said pJainiiff by the defendant, Louisville Bridge Company,” atnd refused tjo subrogate the Louisville Bridge Company, upo-n'the payment thereof, •to any of the rights of the appellee against any of the other tenants, or to make them contribute any part thereof.</p> <p>7. That the judgment, in action No. 5205, rendered June 27, 1896, is not a precedent or an adjudication against the appellant Bridge Company in this case. The patent evidential differences between the facts in the two cases are briefly pointed out.</p> <p>S. That in no event should interest, prior1 to the rendition of the judgment, March 11, 1902, aggregating the large sum of $108,504.73, have been allowed under the facts in this case.</p> <p>AUTHORITIES CITED.</p> <p>On Practical Construction ^ and Laches. Louisville Turnpike Co. v. Shadburn, 1 Ky. Law Rep., 325; Chicago v. Sheldon, 9 Wall., 51; Topliff v. Topliff, 122 U. S., 510; Attorney General v. Drummond, 1 Dru. & Wal., 366 (2 H. L. \Cas., 837); Chicago Ry. Co. v. Northern Pac. Ry. Co., 101 Fed. Rep., 795 (42 C. C. A., 2S); Newton v. Wooley, 105 Fed. Rep., 546; Accumulator Co. v. Dubuque Ry. Co., 64 Fed. Rep., 74 (12 C. 1C. A., 40); Lumber Co. v. Btump, 86 Fed. Rep., 578 (18 C. C. A., 569); Publishing Co. v. Swift, 97 Fed. Rep., 296 (38 C. |C. A., 192); Hammond v. Hopkins, 143 U. S., 250; Johnson v. Mining Co., 148 U. S., 370; Martin v. Letty, 18 B. Mon., 582; Harwood v. Railroad Co., 17 Wall., 87.</p> <p>On Limitation: Hyatt v. Bank of Ky., 8 Bush, 200; Ky. Cent. R. R. Co. v. Campbell, 7 Ky. Law Rep., 525; Leatherman v. Times Co., 88 Ky., 291; Tate v. Hawkins, 1 Pet., 360.</p> <p>On Landlord and Tenant; Trabue v. Ramage, 80 Ky., 323.</p> <p>On suretyship and Subrogation: Secs. 486, 4665 and 4666 Ky. Stats.; Veaeh v. Wiekersham, 11 Bush, 261; Elbert v. Jacoby, 8 Bush, 545; Evans v. Rhea, 12 Ky. Law Rep., 224; Bickel v. Judah, 3 Ky. Law Rep., 728; Curry v. Curry, 87 Ky., 671; Warfield v. Brand, 13 Bush, 93; Givens v. Flannery, 105 Ky., 451.</p> <p>On Differentiation and Interest: Louisville Bridge Co. v. L. & N. R. R. Co., 21 Ky. Law Rep., 271-278; Louisville Gas Co. v. Hargis & Eastin, 17 'Ky. Law Rep., 1190.</p> <p>POINTS AND AUTHORITIES.</p> <p>' 1. Where two actions are brought upon a continuing account, with separate items of the account involved in each action, an objection to maintaining the two suits must be made by demurrer if the fact appears upon the face of thei 'adversary’s pleading, and if not by plea in abatement, and the failure to> thus object is a waiver of all objections to the prosecution to a final conclusion of both actions. .Miles v. Garrison, 3 Keyes (N. Y.), 40; Boyle v. Robbins, 71 N. Y., 132; Civil •'Codei, secs. 92 and 118; Gunn v. Gudehus, 15 B. Mon., 449; Curd v. Lewis. 1 Dana., 351; Warren v. Glynn, 33 N. Y., 340; Baker & Rubel v. Whipps, 6 Ky. Law Rep., 307.</p> <p>2. Entries in books of original entry have been allowed to be introduced in deference to the business “world;, and to the fact ■that when made contemporaneously with the transactions which they purport to record, they are suppose to speak the truth, because there is every motive ordinarily for verity and none for falsity. In the same way, if an account is kept of large business transactions, not by entries in* the books, but by the preservation of the original -data, they should have the same self-deserving effect and influence as original book entries.</p> <p>3. The reason for the rule -that in order to introduce entries in books of original entry you must produce the man who made them, or account satisfactorily for his absence and prove his handwriting, is based upon the theory that if the party relying upon the evidence does not do so, he is supposed to have some sinister motive for failing to do so. Whenever, therefore,, for any good reason this can not he done, it is competent to prove the original entries by any competent person, .and in the same way it is competent to prove the original daita preserved in any proper way. Greenleaf on Evidence, 1 vol., 15th ed., sec. 120; Greenleaf on Evidence, 16th ed., sec. 120a; Taloei v. Riggs, 1 •Pet., 596; 1 Greenleaf on Evidence, sec. 82; Chisholm et al. v. Beeman Medicine Co., 43 N. E., 796; Donovan v. Boston M. R. Co., S3 N. E., 583; Northern Pacific Railway Co. v. Keyes et al., 91 Fed.. 47; Commonwealth v. Tate, 89 Ky., 587.</p> <p>4. Wherever an amount is due, and it is the duty of the debtor to know tbe .amount of ¡the debt, 'then interest runs on the amount from the time it should have beem paid. Henderson Bridge Co. v. O’Connor & McCulloch, 86 Ky., 303; Schmidt, Trustee, v. L. & N., 85 Ky., 289.</p> <p>5. This is essentially a suit for an accounting, and the prayer in this ease is the usual prayer in such easesi, and thalt is to have the 'accounts .stated, .and for a judgment for the amount which might be shown to bei due. In such a case such a prayer is sufficient for the recovery of interest, that being a part of the amount due as much as the principal itself.</p> <p>Under our Code, section 90, wherever there is a defense made to the action judgment should go for whatever upon the whole record the plaintiff is shown to be entitled to, and if the record in this ease shows that appellee was entitled to interest under the authorities, the prayer under section 90, in view of the1 fact that there was a defense, is sufficient. Banik of Russell-ville v. Coke, 20 Ky. Raw Rap., 291.</p>

<p>Case 21 — Indictment against Charles J. Barclay for Procuring one Without Authority to Solemnize a Marriage.</p> <p>APPEAL FROM FULTON CIRCUIT COURT.</p> <p>Beb’endant Convicted and Appeals.</p> <p>1. The indictnient is defective. .The accusative part of it uses the words “wilfully and feloniously,” while said, words are omitted from the charging part thereof.</p> <p>2. It does not appear from the indictment but what the marriage ceremony was performed simply as an innocent amusement between the person performing and the defendant and Adeline Chandler, and if it was thus done, no offense was committed.</p> <p>3. It does not charge conspiracy between the defendant and the one who performed the ceremony, falsely and fraudulently to seduce from virtue and carnally know an unmarried female, by producing a pretended marriage license, and -thereby deceiving and cohabiting with her.</p> <p>4. To make a good indictment it was necessary to charge such facts as were necessary at common law. to charge a conspiracy to seduce.</p> <p>5. It is not sufficient always to follow the language of the statute in setting forth the olfense in the indictment.</p> <p>'6. The court erred in admitting Adeline Chandler and Bob Lee Chandler to detail what was said and done by them ‘ in the absence of defendant.</p> <p>7. The court erred in admitting a statement detailed by Dr. Earribo as to what defendant said to him about seeing the young! lady and know if she would marry him, as they might -put him. in the pen.</p> <p>8. There is no testimony to show that the man who, performed the ceremony was not qualified to do so.</p> <p>9. The court erred in failing to instruct the jury that “a confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other1, prloof that such' offense was committed.” .</p> <p>10. The court erred in refusing to allow defendant to introduce a witness whose evidence was important, and (had just been discovered, after the argument of the case had begun.</p> <p>11. The court erred in not granting the defendant a continuanee. Juries pay no attention to .affidavits read as depositions •of absent witnesses.</p> <p>AUTHORITIES CITED.</p> <p>1. The demurrer to the indictment ought to hav® been sustained. See Mitchell v. Com., 21 Ky. Law Rap., 222; Wharton’s Aimer. Crim. Law, Sth ed., vol. 2, sec. 1362; Wharton’s Crim. Prac. & Plead., sec. 221, subsecs. 1, 2 and 3; Ky. Stats., sec. 2103; 1 Bishop 'Crim. Procedure, sec. 277; Tully v. 'Com., 11 Bush, 158 at seq.; The Com. v. McCrory, 3 Ky. Law Rep., 241; Same v. Sohurer, 4 Ky. Law Rep., 342; Same v. Greene, 3 Ky, La,w Rep., 659; Same v. Stout, 7 B. M., 247; Taylor v. Com., 1 Duv.,. 161; Com. v. Monarch, 6 Bush, 298; Same v. Monarch, 6 Bush,. 301; Ritte v. Com., 18 B. M., 40; Com. v. Kammerer, 11 Ky. Law Rep., 777; Obannon v. Com., 15 Ky. Law Rep., 654; Com. v. Starling & Ramsey, 24 Ky. Law Rep., 492; Same v. Bowman, IB Ky. Law Rep., 222; see, also, U. S. v. Hess, 124 U. ,S. (!S. C. Rep.), 516; Evans v. United States, 153 U. S. ,(S. C. Rep.), 831; U. S. v. Carrol, 105 U. S. (S. C. Rep.), 611 (Book 26,113¡5); U. S. v. Cruikshank, S2 U. S'. (S. C. Rep.), 593 and 594; U. S. v. Walter Mann, 95 U. S. (S. C. Rep.), 53.1; Darter v. Com., 9 Ky. Law Rep., 277;- Richie v. The Com., 23 Ky. Law Rep., 1237.</p> <p>2. The admission of incompetent evidence. Ky- .Stats., secs. 2100, 2102, 2115, also 2105; Bassett v. Bassett, 9 Bush, 697; Robinson v. Tbe Com., 6 Bush, 310; Demarsley v. Fishley, 3 Mar., 368, 369, 370, &c.; Tompert v. Tompert’s Exor., 13 Bush, 326; Civil Code of Practice, sec. 635; William E. Bassett v. United States, 137 U. S. (Supreme Court Reports), 762.</p> <p>3. Failure to give proper instructions. Ky. .Stats., sec. 2105; Crim. 'Code, sec. 240; Cunningham v. The Com., 9 Bush, 149; Patterson v. Com., 86 Ky., 313; Wigginton v. Cam., 92 Ky-, 282; Kelley v. Com., 21 Ky. .Law Rep., 1306; Dugan v. Com., 19 Ky. Law Rep., 1277-8; Bush v. Com., 13 Ky. Law Rep., 425.</p> <p>1. This is a purely statutory offense, and is not an act fixing a punishment to a common law offense, aind in such ,a case it is only necessary in defining the offense to follow the language of the statute, and in a statutory offense it is not necessary to charge that the act was done “wilfully and feloniously.”</p> <p>2. Adeline Chandler was a competent witness because she was not the wife of the defendant, the pretended marriage being void,, not merely voidable.</p> <p>3. It is manifest from the- evidence heard that the result of the! trial would not have been changed if defendant’s absent -witness had been present.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec. 2110; Com. v. Carter, 15 R., 253, or 94 Ky., 527 and authorities cited; Wharton’s Crim. Pleading -and Prae., 9 ed., sec. 231; 'Mitchell v. ‘Com., 10 R., 911; Bay-liter v. Com., 21 R., 1562; Hinkle v. Com., 23 R., 1989; Cam. v. C. & O. R. K. Co., 19 R., 329; Com. v. Turner, 8 Bush, 2; Com. v. Schurer, 4 R., 342; sec. 6, art. 1, chap. 47, Rev. Stats.; sec. 1960, Ky. Stats.; sec. 2103, Ky. S'tats.; Com. v. 7 B. M., 2; 'Cam. v. Bell, 17 R., 277; Howard v. Com., 17 R., 1195; Conner v. Cam., 13 Bush, 261 and 2; Com. v. Slaughter, 12 R., 893; Com. v. Benge, 13 R., 591; Com. v. Greenwell, 8 R., 609; 'Com. v. Smithers, 8 ,R., 602; Ky. Stats., sec. 1338; Wharton’s Crim-. Law, 9th ed., sec. 1672 to 1C75, inclusive; Higgins v. Com., 14 R., 730; Cunffiff v. Com., 9 R., 537; Ky. Stats., sec. 2097; sec. 2, chap. 47, p. 42, 2 vol., Rev. Stats.; Estill v. Rogers, 1 Bush, 63; -Stewart v. Munchandler, 2 Bush, 279; Jane Ewing v. Elizabeth Bibb, 7 oBush, 556; 1st ed. Am. & Eng. Ency. of Law, 14th yol'., 4-85; Tompert’s Exrs. v. Toimpert, 13 Bush, 327; Dugan v. Com., ID R., 1277; Patterson v. Com., $6 Ky., 313; Wiggiaton v. Com., 92 Ky., 282; Gilbert v. Com., 23 R., 1094; Keelin v. Com., 84, Ky., 3-54; Adkins v. Com., 17 R., 1092.</p>

<p>Libel and Slandek-'-Criminai, Responsibility — Words Imputing Disposition to Commit Crime — Privileged Communications.</p> <p>Held: 1. A written communication charging that a certain person would purloin a printing outfit if he had a. chance at it, being calculated to bring him into contempt in the community in which he lives, is per se • actionable, and sufficient to support an indictment for' criminal libel.</p> <p>2. A written communication charging that a certain 'person would purloin a printing outfit if he had a chance, and requesting the addressee to protect it, can not he held privileged without the showing of any facts which reasonably induced the writer to ibelieve his property was in danger, -or, any necessity for his communication in reference thereto.</p>

<p>■Case 23 — Action by Vallandingham & Gentry against the Continental Ins. Co., &c., on a Policy op Fire Insurance.</p> <p>APPEAL PROM OWEN CIRCUIT COURT.</p> <p>Judgment por Plaintipps and Dependants Appeal.</p> <p>PROPOSITIONS' AND AUTHORITIES.</p> <p>1. The conditions ol forfeiture in a policy of insurance, as indeed the -entire instrument, are to be construed' most strongly against the company. The company prepares! i't and is familiar with its details, and many conditions. Its ambiguities are to be resolved against the company; and must be) liberally construed in favor of the insured, and! when words are without violence susceptible of two interpretations, that which will corver the loss must in preference be adopted, the rule being to avoid a forfeiture. Text-book authorities: May on Insurance (2d ed.), secs. 174, 175, 176 and 367; Wood on Insurance,, sec. 61. Kentucky authorities/ Mutual Benefit Life Ins. 'Co. v. First Nait. Bank, 24 R., 5S0; Phoenix Ins. Co. v. Spiers & Thoma-sl, 79 Ky., i294; American Accident Co. v. Rugert, 94 Ky., 580; American Central Ins. Co. v. Hughes, 22 R., 15-19; American Central Ins. Co. v. Heaverin, 18 R., 190. Authorities of other -States 'and!. United States courts: Calbon v. Springfield Fixe Ins. 'Co., 1 ■Sumn. (U. S.), 434; Dow v. Hope Ins. Co., 1 Hall (N. Y.), 174; ■Lamb v. F. C. Bluff Ins. Co., 70 Iowa, 228; Hoffman v. Aetna, F. Ins. Co., 32 (N. Y.), 405; Western Ins. Co. v. Cropper, 32 Pa. S't., 351; Riply v. Aetna Ins. 'Co., 29 Barb. (N. Y.), 552; Westfall v. Hudson River F. Ins. Co., 2 Dun (N. Y.), 490; Loud v. Citizens’ Mut. Ins. 'Co., 2 Gray (Mass.), 221; Galveston Mfg. Co. v. Howard F. Ins. Co., 5 Gray (¡Mass.), 497; Albion Lead Co. v. Williamsburg I,ns. Co., 2 Fed. Rep., 479; Sayles v. N. W. Ins. Co., 2 Curt (IT. S.), 612.</p> <p>¡2. The provision in the -policy, “in the event of disagreement as to the amount of loss the same shall,, -as ,above provided, bel .ascertained by two competent and disinterested appraiser®, the insured and this company each selecting one, .andi the two so chosen shall first select a competent -and. •disinterested -umpire; the appraisers together shall then estimate and 'appraise .the loss, stating separately sound value and damage,, and failing to agree shall 'submit their -differences to the umpire; and- the ¡award in writing of any two shall determin'd the amount of such losts .and the loss shall not become .payable until sixty ¡days) after the notice, ascertainment, estimate and satisfactory ¡proof lof -the ■ loss herein required -have been received- by this company, including -an award by appraisers) when an appraisal hag been re-quired,” is -not a condition precedent. Bergman & Co. v. Commercial Union Ins. Co., 12 R., 942; Sun Mutual Ins. Co. v. Crist, 19 R., 308; Chenowith v. Phoenix Ins. Co., 12 R., 232; Biodenfield v. Massachusetts M. A. Co., i-3 L. R. A., 263- Authorities upon those conditions of the .policy which rest atad' abide upon) the ¡same basis as the above condition: Scottish Un-icm & National Ins. Co. v. -S-train, 24 R., 958; American -Central Ins. Gw. v. Heaverin, 16 R., 95; Citizens’ Ins. Go. v. Great, 22 R., 47; Niagara Fire Ins. Co. v. Heflin, 22 R., 1212; Mechanics’ & Traders’ Ins. ■Go. v. Floyd, 20 R., 1538.</p> <p>3. The provision in the policy that “in the event ¡of disagreement as to the -amoiunt of loss -the same shall, -a-s ¡above provided, he ascertained by 'two competent and disinterested -appraisers, the insured and this company each selecting lone, and the two so chosen shall first select a competent and -disinterested umpire; the appraisers -together shall then estimate atad appraise the loss, stating separately sound value and damage, -and! failing to. agree, shall submit ¡their .differences to the Umpire; and ithe award in writing of any two shall determine the amount of sudh loss the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expensed of ithe .api-' praisal and umpire,” coupled with the provision that “noi suit or action on this policy, for the recovery of any claim, shall be su-stainable in any court -of law .or equity, until after full compliance by the insured with all thei foregoing requirement's, nor1 unless commenced within twelve months next after'the fire;” “this company shall not be held to have waived- any provision or condition of this policy or any forfeiture thereof by .any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, •ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award ■by appraisers when appraisal has been required,” is a condition which is absolutely void, null and ¡of no effect.</p> <p>(a) It is contrary to the law of appraisal under laws o>E (Kentucky, viz.: Civil Code, sec. 451; Ky. Stats., secs. 69, 70, 71, 72 73; Germania Ins. Co. v. Rudwig, SO Ky., 223; Imperial Ins. .Co. v. Kiernan, S3 Ky., 474; Mutual B. L. Ins. Co. v. Daviess’ Exrs., 87 Ky., 547.</p> <p>(bl It ousts the counts of their jurisdiction/ on the Subject of appraisal as provided in the statutes and code, supra.</p> <p>(c) It is intended to, and does, oust the couritsl of their jurisdiction, and goes farther — it substitutes a tribunal to Ibe erected by the parties (really the company) is agaiiist public policy and void. Story's Equity Jurisprudence, sec. 670; -May on Insurance, sec. 492; Leach v. Republic Ins. Co. (N. H.), 9 Rep., 181; Street v. Rigby, 6 Ves.. 815, S18; Thompson v. Charnock, 8 T. R., 139; 'Connor v. Drake, 1 Ohio St., 168; Waters v. Taylor, 15 Ves., 10; Home Ins. Co. v. Mass., 20 Wall.., 445; Wellington v. Mackintosh, .2 Atk., 569.</p> <p>(d) It places the court in the very awkward -position by compelling the parties to come into court for the purpose .of having •decided the question, Shall we keep each other' out of court?</p> <p>(o) It does not, and it should not, prevent an' adjustment in court of competent jurisdiction. German-American Ins. Co. v. Etherton, 41 N. W. Rep., 406.</p> <p>4. While still insisting that the provision ita. the policy relativa to an appraisal is not a condition precedent nor is it a condition, any violation of which could furnish the appeljants any defense whatever, yet, if this court should so hold, it by no means follows that the judgments are erroneous, for that the obligation, if -any resting upon the appellees was waived by the/ appel](mts in the following respects, viz.;</p> <p>(a) “Before the appellants could insist upon any suchl condition they must show ¡that they admitted the validity of the policy and their liability under it, and that the only question open between the parties was the question of damages.” Wood on Insurance; sec. 430, p. 748; Hickerson v. German-American Ins. Co., 32 L. R. A., 173; Mentz v. Armenia E. Ins. Co., 7S Penn. St, 478.</p> <p>(b) A denial of liability waives condition as to appraisal. Ins. Oo. of America v. Forwood, &c., 12 R., S4C; Same v. S’ame, 13 R., 261; Hickerson v. German-American Ins. Co., 32 L. R. A., 173.</p> <p>(c) Failure of arbitrators to agree upon an umpire is an abandonment, especially so when the fault is upon the part of the appraiser appointed by the company, and prevents the; companies from objecting that the action was .brought before ‘appraisal. Brock v. Dwelling House Ins. Co., 26 L. R. A., 623; McCullough v. Phoenix Ins. Co., 113 Mo., 606; Bishop v. Agricultural Ins. ■Co., 130 N. Y., 48S; Uhrig v. Williamsburgh C. F. Ins. Co., 101 N. Y., 362; Bradshaw v. Agricultural Ins. 'Co., 137 N. Y., 137.</p> <p>■ (d) An arbitration having failed by reason of the appraisers having failed to agree upon an umpire, the insured is not bound to enter into a new attempt at tarbitration even if 'the insurers are willing. Chapman v. Rcckford Ins. Co., 28 D. R. A., 405; Uhrig v. Williamsburgh F. Ins. Co., 101 N. Y., 362; Bishop v. Agricultural Ins. Co.; 130 N. Y., 488; Davenport v. Long Island Ins. Co., 10 Daly, 538, 539; Howard Ins. Qo. v. Hocking, 115 Pa., 416.</p> <p>(e) An appraiser chosep by the insurer cam not demand that an umpire be selected who does not live in the vicinity of the property nor one wholly incompetert, and when done is a waiver! of the condition. Hiekerson v. German-American Insurance 'Co., 32 L. R. A., 172; McCullough v. Phoenix Ins. Co., 113 Mo1., 606; Niagara F. Ins. Co. v. Bishop, 154 111., 9; Uhrig v. Williamsburglh C, F. Ins. Co., 101 N. Y., 362; Chapman v. Rockford Ins. Co., 89 Wis., 572; cases cited under (d).</p> <p>(f) The appraiser for the insurer must be free.from bias as must also be the appraiser for the insured, but when it is shown and known that the appraiser for the insurer was not free from bias, but was not only willing; for the companies to misrepresent the facts as to him, but did himself so do he was not in law an appraiser and therefore the company not having selected an appraiser can not demand an appraisal. ‘Chapman v„ Rockford Ins. Co., 89 Wis., 572; Brock v. Dwelling House Ins. Co., 102 Midh., 583.</p> <p>(g) After the appraisers -failed to select ;an umpire the fact that the adjuster for th-e appellant companies did then and there demand of the appellees that they make out and furnish to each of the appellant companies an itemized list showing sound value and losis of each .and every article, knowing that so to do required much time, expense and loss, and which was done -was a waiver of the condition to arbitrate. Pretzfelder v. Merchants’ Ins. Co., 44 L. R. A., 424; 123 N. C., 164; Manhattan Ins. Co. v. Stien, 5 Bush, 657; Aetna F. Ins. Oo. v. Tyler, 16 Wend. (N. Y.), 85; Bodle v. Chenango C. M. Ins. Co., 2 'Comst. (N. Y.), 53; ■St. Louis Ins. Co. v. Kyle, Í1 Mo., 278; O’Niél v. Buffalo F. Ins. 'Co., 3 Comat. (N. Y.), 122; Clark v. New England Ins. Co.,, 6 Cush. (Mass.), 342; Ins. Co. v. Connor, 5 Harris (Pa.), 136; •McMasters v. West Chester C. M. Ins. Co., 25 Wend. (N. Y.), 383; Hibernia Ins. Co. v. Meyer, 39 N. J., 482; Mercantile Ins. Co. v. Holtliaus, 43 Mich., 423; Planters’ Ins. Co. v. 3>eford, 38 ¡Md., 382; 'Tisdale v. Mut. Benefit Ins. Go., 91 U. S., 238; Mason v. Citizens’ Ins. Co., 10 W. Va., 572; Madsden v. Phoenix Ins. Co., 1 S. C„ n. s., 24.</p> <p>(h) The appellants having in their several answers denied all the allegations of the petition, especially all liability and all damage, any and all objections as to the arbitration clause of the policy became and was thereby waived. Hicksi v. British America A. Co., 162 N. Y., 284; 32 L. R. A, 424; White; v. Middlesex R. Co., 135 Mass., 21G; Horton v. Sayer*, 4 Hurlst & N. •643; Lee v. Page, 30 L. J. Ch., 857; Edwards v. Aberayron Mut. S. Ins. Soc, L- R- Q- B. Div., 5G3.</p> <p>The learned counsel for appellee, who for th'e first time appeared in this case in this court, was ¡doubtless impressed with-the fact that the damage's; claimed by appellees, and far which judgment was rendered in the lower court, was somewhat extravagant, to say the least of, it, when he was confriointed with the fact that this was a stock of goods -and merchandise in a small country store, in a Small country town or village of only thirty or forty, people, where merchants as a general thing Wouldl not think of carrying stock of goods, &c, of greater value than five or six thousand dollars; the trade, the business, would not justify more, but when he realized that this was not a 'claim for the destruction of the goods or any part thereof, but only for the damage to this stock by moving it out of 'the house, across the street and carrying hack again, no damages by fire or water used in/ putting out the fire, he felt' cal)ed 'upon both in his written ■brief and oral argument to labor the question as to the value of the goods and the amount oí damage. Counsel was also doubtless impressed with the peculiar circumstances and the peculiar relationship existing between the parties Vallandingham & Gentry, and the panties they selected to appraise, arbitrate and umpire this matter.</p> <p>Counsel for appellees did not tell the doiuirt that Boerner, the man they selected first as appraiser lived within three ¡or four miles of this store and in ¡partner with Alexander; also running a‘country store, playing magistrate and trading generally. Whether he carried the same amount of insurance, in proportion to the amount of goods that VaUanding'ham did, the record does not show. Nor did counsel say anything about the fact that Boerner went over to 'the. appellee's store after the„ night of the; lire and actually, in connection with Hill & Wood!, who. ca'me ■froim Carrollton, some fifteen o,r twenty miles, in,’another county, agreed on an amount of damage and stated in! writing what they would do or say as to1 the amount of damage, and gave said' writing to appellee; nor did counsel for appellees tell' you -that afterward when the insurance compañías demande'd that the question as to the amount of damage .should be settled by arbitration that the appellees selected as their arbitrator Mr. Boerner, this man who had so interested himself as to coma over from his place and agree with Vallanidtngbam & Gentry as to what he would say the damage should be,-nor did the counsel for appellees tell the court that when the insurance companies sent their adjuster .alone to meet with the appellees and together with the arbitrator selected by tbe companies and Mr. Boerner, this disinterested arbitrator and appraiser selected by .the appellee that the appellee appeared at that time and place, not only in person, but by attorney; that the appellee had .actually then employed a Skillful and .artful attorney and hadi him there on the ground to manage, control and direct what should be done, nor did the ■counsel for appellee tell the court that when the appellees were called on as per agreement to select or indicate the name of some disinterested, impartial, unbiased, good man who had no opinion in the matter or any bias at all, these appellees, or rather their chosen arbitrator, Boerner, suggested the names) of Hill and Wood, and his partner, Alexander, .the very .men wh© had coma voluntarily, or at least had come before; this, some fifteen or1 twenty miles and together with him had already not only agreed as to what .they would say and do, but had stated it in writing to these appellees, all of which was at that time unknown to, these appellants or their adjuster or appraiser; nor did the counsel for appellee tell you why or give any explanation why it was that Hill and Wiood were selected and -brought or came from Carrollton beforehand to where these goods were* in order to? qualify themselves either as arbitrators or umpires, nor has any explanation been given as to why they! were required to give to appellees a written; statement as to what they thought ought to be done as regards the amount of damage, or what they would do, nor has .any explanation beefa given as to- why this examination and inspection was secretly made (so far as appellants are concerned) by Boerner, Hill .& Wooid and the secret guarded so well that the appellants nor their -adjuster did not know anything about it until these' names were suggested, ■and. before accepting, the adjuster made inquiry and learned from outsiders that such was the fact. There were several good men, storekeepers, well qualified to estimate and fix the value and amount of damages, much nearer tfce place where these goods were than Hill and Wood. Why were not some of these selected and why were they rejected when suggested' by the appellants ,for umpire, and what explanation has been given why judgment in this case was rendered for the extreme amount, in fact, the whole .amount claimed over $4,000, when, in 'addition, to the facts and circumstances proven and not denied, showing that if is contrary to custom and in conflict .with1 the experience of men in a little haimlet or villiage to carry ,a stock of goods or merchandise of any such value as claimed by appellees, but it is actually proven that the said stock of goods, &c., was not damaged moré than $500 or $600. if that, and the whole lot of goods not of greater value than $5,000 or $6,000? So it la incumbent upon my distinguished friends, the counsel for appellees, to show or explain how it is that such an amount o.f damage has been sustained by the carrying out and' taking back said stock of goods, wares, &c., even if it rained when 'so- much of the stock was composed of articles (harness; hardware, &c.), that could not have been seriously injured.</p> <p>We now call the attention of the court to all ithesei facts as shown by the record, some that there i-si really no dispute about, viz.: That this was a 'stock of goods, wares and merchandise in a small village of only thirty or forty people; that there were a number of country stores similar to this situated within five or ten miles of this store, and that usually merchants in country towns and stores like this carry stock of nob greater value than $5,000 or $6,000; that this stock was composed of hardware, harness, dry goods, but the dry goods consisted in greater part of overalls and goods that as a general thing would not be seriously injured or damaged by rain and that not an article was burnt, destroyed or injured by the fire in any way, or any water used in putting out the fire, no articles were even. lost, but the whole damage claimed is such as was sustained in carrying the stock out of the building a short distance across the street and: them carrying it back; while the stock was being carried back there was a sprinkle of rain, not what we ordinarily- calf a shower, but a drizzle, not enough to wet the goods- and do any serious damage-.</p> <p>Now the counsel for appellants insist that in the very nature of the case it was utterly impossible for the stock to have been damaged or injured to anything like the amount claimed, and when you consider these facts and circumstances in connection with the sworn statement of the witness! who examined thoroughly the stock .after the fire and who says that the whole damage would not exceed five .or six hundred (dollars,, we do not' believe this court will hesitate to say that the judgment rendered by the lower court was ,not only exorbitant, bult that it is .an outrage ion, the interest of these appellants, and Should be ¡?et aside for that reason, if for no other.</p> <p>If the appellees had any standing in court, if there were no ■conditions in the policy to be complied with which preceded their right to file suit, or if they had- complied fully with all the conditions, yet we insist that this judgment slioulsd not be permitted ■to stand and the appellees reap a clear profit of at least $3,000 or $3,500 simply because these .several insurance companies are the parties on one side and the appellees, Yallandingham & Gentry, country merchants, with a lot of relationsi and friends living in the county of Owen and adjacent counties, are .on the other side.</p> <p>We insist that a fair administration of justice as between these parties not only authorizes, but' demands that thig judgment should he set aside. ,</p>

<p>Case 24 — Action by Commonwealth against Bob Elkins to Recover a Penalty for Violation of Local Option Law.</p> <p>APPEAL FROM TODD CIRCUIT COURT.</p> <p>Judgment fc® Defendant and Plaintiff Appeals.</p> <p>Appellee was indicted on the 7th day of .December, 1901, charged with selling by retail spirituousl liquor to Sid Cherry, in the. town of Trenton, county of Todd, during the month of May or June, 1901.</p> <p>On the 16th day of July, 1902, the court entered an torder. dismissing the indictment.</p> <p>On the 10th day of November, 1902, -a ¡petition was filed in ths Todd Circuit Court in the name of the Commonwealth v. BobElkins, in which the Commonwealth sought to recover aigainst. Elkins the sum lof two hundred ($200) dollars and the cost of the action. The lower count sustained a demurrer to the petition and the 'Commonwealth appealed.</p> <p>The question presented is whether or-not the -prosecution was barred by section 1188, Kentucky Statutes.</p> <p>•The above section provides, in part: “Prosecutions . by the Commonwealth for felony, unless otherwise specially provided, shall not be barred by lapse of tima or any law of limitations. Prosecutions by the Commonwealth to recover a penality for a violation of any penal statute or law, and. an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penality accrued, and not after, unless a different time is allowed by the law imposing the penalty.”</p> <p>We contend that the statute did -not run again-st the .prosecution by petition as long as the indictment was pending. The filing of the petition wasi a continuation- of the prosecution by indictment and was a matter of right vested in the Commonwealth to proceed -by petition.</p> <p>The original action was brought within the time provided in the statute, and section 1138 of the Kentucky Statutes contemplates that the prosecution be brought within one year.</p> <p>We oontend that this -section applies to the original prosecution and the indictment having been brought within the time prescribed, it was error upon the part of the lower count to susitain a demurrer to the petition.</p> <p>We respectfully ask a reversal, with direction to the lower court to overrule the demurrer. 101 Ky., 195; 20 R., 1639.</p> <p>The only question presented in this case is whether or -not the alleged crime tor which this penal action was -brought was barred by-the Statute of Limitation. The petitioni filed by the Common-, [wealth’s attorney in this case shows that it was barred by Hie Statute of Limitation, and therefore the lower court did not err in. sustaining the demurrer filed by the defendant. Section 1138 of the Kentucky Statutes says: “Prosecutions by the Commonwealth to recover a penalty for a violation of any penal statute or law, and an action or procedure at the instance of any person to recover any such penalty, shall be commenced within one year after the right to such penalty accrued, and not after, unless a different time is allowed by the law imposing the penalty.” Moro than one year elapsed after the sale of the whisky complained of in this case and the filing of this penal action.</p> <p>Appellee respectfully asks for an affirmance of the judgment in the court below.</p>

<p>Case 25 — Action bt F. B. Mills against L. & N. B. Co. fob Burning Residence.</p> <p>APPEAL FROM LOGAN CIRCUIT COURT.</p> <p>Judgment fob Defendant and Plaintiff Appeals.</p> <p>Appellant’s dwelling house and outhouses and some of the contents were destroyed by fire.-about June 20, 18S9, as he claims, by sparks emitted from one of defendant’s engines.</p> <p>Our contention is:</p> <p>1. That although the house was 17,1 feet from the railroad track, the evidence shows it was a physical impossibility that the fire should ¡have originated otherwise than from sparks from the train, for these reasons:</p> <p>(a) The fire was first discovered in the roof on the side next to the railroad track.</p> <p>(b) A freight train had passed the house a short time before the fire was discovered.</p> <p>(c) There was a heavy grade on the railroad in the direction the train was going.</p> <p>(dl 'A strong wind was blowing at the time from the train in the direction of Hie house.</p> <p>(e) Large eindere, and many of them, were found in the direction of and near the house.</p> <p>(f) Trees and fences were shown to have been set on fire the same day or about the same time by the train, as far away from the track as was plaintiff’s house.</p> <p>2. The court erred in not permitting the! plaintiff to prove the following facts:</p> <p>(a) That’ a short time after this house) was burned, a fence1 over in the field as far from the track as this house took fire from spanks from the engine.</p> <p>(,b) Th'at a few days before this fire, and near by, fences were set on fire as far away as plaintiff’s house from the track, by sparks from the engine and that the defendant paid for the fence.</p> <p>This evidence was) competent for two reasons: (1) That it rwas possible_ for a coal lor spark from an engine to live long enough to set fire to objects as far from the train as was plaintiff’s .house. (2) That it was a circumstance showilng that defendant’s spark arresters were not in good condition or were not properly adjusted.</p> <p>3. The court erred in its instructions to the jury th'at the spark arresters should he suitable and| approved and’ in reasonably good condition, when it should have told them that the law required them to be the best aind most effectual appliances 'Sbo this purpose in general use.</p> <p>AUTHORITIES CITED.</p> <p>1. The evidence which was excluded Should havei .been heard. Kentucky Central R. R. Co. v. Barrow, 89 Ky., 643; Sheldon v. The Hudson River R. R. Go., 14 N. Y., 218; Field v. N. Y. C. ¡R. R. Co., 22 N. Y., 339; L. & N. R. R. Co-., v. ©amueFsi Ex., 22 Ky. Law Rep., 303.</p> <p>2. The instructions were clearly erroneous. L. & N. R. R. Co. v. iSamuels’ -Ex., supra; L. & N. R. R. Go. v. Reese, 7 Am. (St. Rep., 66; Burlington, &c., R. R. Co. v. Westover, 4 Neb., 268; iCarson y. Milwaukee, &c., Ry. Go-., 29 Minn., 12; Illinois -Central R. R. Go. v. Mills, 42 111., 407; Goats v. Missouri, &c., Ry. Co., 61 Mo., 38; Burk v. Louisville, &e., R. R. Co., 7 Heiak., 451; -Case v. North Central Ry. Go., 59 Barb., 644; Sparaiding v. Chicago, &c., Ry. Co., 30 Wis., 110; Shearman & Redfield on Negligence, sec. 333; Burroughs v. Housatonic R. R. Co., 38 Am. Dec., 71 (note); 1 Thompson on Negligence, 153.</p> <p>POINTS AND CITATIONS.</p> <p>1. The excluded evidence as to other fires would have been, -cumulative merely, and therefore its rejection was not prejudicial.</p> <p>2. S'uch evidence was competent only for the purpose of -s)howing that it was -possible for escaping sparks to causei the fire, and so even if all tha-t evidence had been admitted there' would, havei been no evidence of negligence. It is only where other fires have been caused by sparks escaping in unusual quantities or of unusual size that they are evidence that the fire in question was caused by defendant’s negligence. Ky. Stats., sec. 782; Ky. Cent. ■R. Co. v. Barrow, 89 Ky., 638; L. & N. R. Co. v. Tayltor, 92 Ky., 55; L. & N. R. Co. v. Samuels’ Exors., 22 Rep., 303; Sheldon v. Hudson River R. Co., 14 N. Y., 218; Field v. -N. Y. C. R. Co., 32 N Y„ '3-39.</p> <p>3. The burden was on plaintiff to sthow negligence. (Cases cited above.)</p> <p>4. A part of the evidence is omitted -from the stenographer’s transcript, and for that reason' the judgment should be -affirmed.</p> <p>5. The errors, if -any, in instructions we-re harmless.</p>

<p>Case 26 — Action by Thomas J. Langan aoainst Illinois Central Ry. Co. for Personal Injuries.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p>

<p>Case 27 — Action bt Melton Wheeler against Henderson Tobacco Extracts Works for Personal Injuries.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals:</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. The master is not an insurer of the servant (against accidents. Shearman & Redfield, Neg., 203; 24 Ky. Law Rep., 1318.</p> <p>■2, The master's duty is to provide reasonably safe machinery with reasonably safe approach to reasonably safe place to work. Shearman & Redfield, Neg., 194; 24 Ky. Law Rep., 1318.</p> <p>3. The servant's duty is to use reasonable care'in going to and doing his work; to use hia eyes and ears, and his judgment. Wood’s Master and Servant, 326; 24 Ky. Law Rep., 776.</p> <p>4. The duty of inspection is east upon. -the servant by his knowledge of any fact that would put one of ordinary prudence, and of his circumstances and capacity -upon inquiry. Shearman fs Redfield, Neg., 217; 81 Ky., 330.</p> <p>5. It is the duty of the servant to give notice of .defects) and to complain; and his failure to do so is contributory negiect. Shear. & Red., Neg., 221; 84 Ky., 330.</p> <p>6. The master is not liable for any defects o-f which he had no notice and could not discover by ordinary care. ©hear. & Red., Neg., 195; 24 Ky. Law'Rep., 1318; 84 Ky., 330.</p> <p>7. The master is not liable for consequences o.f a condition which were unexpected and could not be contemplated. Watson’s Pers. Inj., pp. 28, 180, 189; 94 U. S., 469; 105 U. S., 249; 56 S. W. Rep., 21.</p> <p>8. Past experience and condition may be shown by which to judge of what might be expected. Watson’s Pers. Inj., pp. 199 ct soq., 208; 16S U. S., 185.</p> <p>9. Negligence is a question oil proximate cause and contemplation of consequences. Watson’s Pers. Inj., p. 204; 56 S. W., 21.</p> <p>10. Non-suit is proper when the evidence! gives only ground for conjecture. Watson’s Pers. Inj., 219, 367; 47 S. W., 440; 48 S. W., 434; Shear. & Red., Neg., 223.</p> <p>11. The servant assumes the ordinary risk of his employment. Wood’s Master and Servant, 326, 385; 23 .Ky. Law Rep., 2154; 50 Am. St. Rep., 202; 53 Am. S't. Rep., 129; 84 Ky., 330; 69 Am. St. Rep., 538.</p> <p>12. It is contributory neglect for the servant to disregard the risk of his employment, and it may he pleaded generally. 101 Ky., 106.</p> <p>13. The servant’s failure to give notice of defects is contributory neglect. Shear. & Red., Neg., 221.</p> <p>14. No negligence is inferred from accident, anld to Show liability of the master, there must he affirmative proof of his fault. Shear. & Red., Neg., 223; Wood's Master and Servant, 382; 84 Ky., 330; 24 Ky. Law Rep., 131S.</p> <p>.15. Evidence that machinery worked properly before and after an accident is competent to disprove neglect of the mastei’. .Shear. & Red., Neg., 223.</p> <p>16. A peremptory instruction for the defendant should have! been given. 54 L. R. A., 258; 23 Ky. Law Rep., 2154; 24 Ky. Law Rep., 253; 24 Ky. Law Rep., 796; 24 Ky. Law Rep., 1318.</p> <p>17. Evidence of changes made after an accident was improper. Watson’s Pers. Inj., 778, 762, 764; 13 Ky. Law Rep., 626; Shear. i& Red., Neg., 60c.</p> <p>1. It is admitted that the law requires the employer to furnish, employe a reasonably safe place in which to work and reasonably safe tools and appliances to work with. By the expenditure of five dollars the place where appellee was at work aould have been made entirely safe.</p> <p>2. But it is contended that aDDellee knew of this danger antf assumed the risk. He had been at work only a day when the accident occurred and had not been about it for a year before. ■He was no carpenter. He was not required tio inspect the steps or the approach to the machine or to repair them. The superintendent was superior in knowledge and authority! toi appellee, and, it was his duty to see that the steps were secure and a guard .rail put up and nut leave the matter for a! poor negro to .determine the existence of the 'danger ,or assumption of the risk.</p> <p>AUTHORITIES CITED.</p> <p>Wake -v. Price, 58 S. W., 519; C. N. O. & T. P. R. Co. v. Simpson’s Admr., 30 S. W., 13; Brooks v. ¡U & N. R. Co., 71 S. W., 507; Crabtree Coal & Mining Co-, v. Sample’s Admr., 24 R., 1703; 20 Am. & Eng. Ency. lof Law, 71; L. & N. R. Co. v. Howard’s Admr., 82 Ky., 212; Shelby v. C. N. O'. &' T. P. R. Co., 85 Ky., 224; 98 Ky., 367 and 587.</p>

<p>Case 28 — Proceeding by the Commonwealth against Zachariah Phillips and His Surety on a Forfeited Bail Bond.</p> <p>APPEAL FROM BOYD CIRCUIT COURT.</p> <p>Proceeding Dismissed and Commonwealth Appeals.</p> <p>The material question in the case is as to the sufficiency of the bail bond. It has been held by this court that “it is essential to the validity of a recognizance or bail bond that it appear that the defendant was, when recognized or bailed, legally in; custody,, charged with a public offense, and was discharged therefrom by reason of giving the bond or recognizance and that it loan be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate' for an examination of the charge or -before a court for the trial thereof.” Henry v. Com., 4 Bush, 427; Com. v. Cummins, 18 B. Mon., 26.</p> <p>It is also provided in section 85, Criminal Code that: “No bail bond or bail or recognizances shall be) deemed to- 'be invalid by reason of any variance between its stipulations 'and the1 provisions of this Code, nor by failure of the magistrate or officer to transmit or deliver the same, at the times herein provided, nor by any .other irregularity, provided it be made to appear that the defendant was legally in custody, charged with -a -public offense, and that he was discharged by reason of the giving of the bond or recognizance, and provided that it can be ascertained from the bond or recognizance, that the bail 'undertook that the defendant should appear before a magistrate for the examination of the charge, or before a court for the trial thereof.”</p> <p>The bond refers to the warrant of arresit, and says “to answer! the charge in the within warrant.” The warrant and the -return thereon should therefore be read in connection with this warrant; and in that way the bond shows that Phillips was legally in custody; it shows that he was charged with a public offense, namely, the offense named in the warrant; that the bail -undertook that the defendant should appear before the police judge at Catlettsburg on the 1st of September, 1902, to .answer said charge named in the warrant. Hence, we conclude that the lowef court was in error in sustaining a demurrer to. the warrant, in quashing the same and in discharging said) James Hatcher from his liability thereon. We therefore respectfully ask that the judgment .below be reversed, with directions to render a judg'ment on said bond in favor of the 'Commonwealth against the said surety.</p> <p>AUTHORITIES CITED.</p> <p>98 Ky., 593; 75 Ky., 84; 11 R., 401; 8 Bush, 463; Code, secs. 27, 28, 29-33, 71, 46, 47, 48-85; 4 Bush, 427; 18 B. Mon., 26.</p> <p>On the 28th day of July, 1902, J. H. McConnell, judge of the Callettsburg police court, issued a warrant charging Zaehariah Phillips with obtaining money under false pretense.. Said warrant was directed and sent to the sheriff of Pike county for! execution. At the time of issuing the warrant the said police judge made the following endorsement thereon;, “Defendants may give bond for their appearance to answer the above charge in the sum of $300.” The sheriff of Pike county arrested said Phillips under said warrant and took-bond for his. appearance before said McConnell, police judge of the city of Catlettsburg with James Hatcher as surety and returned the warrant and bond to said police judge. Phillips did not appear before said police judge and he thereupon made the following endorsement on one corner of the warrant, viz.: “Forfeited. J. H. McConnell, P. J., C. C.,” and ini this condition the warrant was transmitted to the circuit court and there the said forfeiture is attempted to' be enforced. I respectfully submit that siuch proceeding is not only unauthorized by law, but is absolutely] void anid should no,t he tolerated.</p> <p>In the first place the police judge had absolutely no authority to fix bail at the time of issuing the warrant, the charge being a felony. By reference to section 28, Criminal Code, it will be seen that only in misdemeanor cases can bail be endorsed by the police judge when issuing the warrant. The warrant in this «ase as well as all other warrants ijn felony cases requires the arresting officer to bring the defendant before the police judge, and until that is done no hail can be allowed and no one save the court is allowed to take bond. In this easel it is not and can not he claimed that the police judge ever had the defendant before him, or held an examining trial, or that he ever made the slightest record of any proceedings relative thereto), land hence had no power or authority to fix .bail.</p> <p>Tlie case of Morgan, &c., v. The Commonwealth, 12 Bush, 84, seems conclusive of this matter. Quoting therefrom:'' “It is indispensable to the validity of the bail bond taken by, or in pursuance of an examining] ciourt that some judgment be entered, or memorandum made in writing, signed by the magistrate or justice, showing that an examining court was held and that the accused was admitted to bail.” Quoting further: “It is indisipensable that the decision of the examining court, requiring the accused to give bail, shall be filed in the trial court at least before there is a forfeiture of the bail biond.”</p> <p>In the case at bar ¡no examining trial was ever had, no bail ever fixed, and no record ever transmitted toi the circuit court, except the warrant, and this we contend is not -siufficient. Then, <too, the forfeiture should have been taken in the circuit court and mot in the police court: the latter court has ¡no1 power to« take the forfeiture, but must transmit his records toi the trial court where all other steps must be taken.</p> <p>It will also be observed from the record that when the indictment was returned it was not against Zachar|ah Phillips, hut •against J. C. and W. P. Phillips. It seems that the style of the prosecution was changed and subsequently the entire prosecution was dismissed. I submit that under the proceedings in this case it would be a great injustice, as well as unlawful, to require Mr. Hatcher to pay $300 as surety herein.</p> <p>¡Wherefore an affirmance is respectfully asked.</p>

<p>Rape — Indictment—Scienter—Disjunctives.</p> <p>Held: 1. An indictment charging that defendant wilfully and feloniously had intercourse with a female against her will, or consent, or while she'was insensible, or incapable of exercising hen will, a drug having been administered to. her, need not allege that he knew she was incapable .of giving consent by reason of the administration of a drug.</p> <p>2. An indictment charging that defendant feloniously had intercourse with a female against’ her will or oonsent, or while she was insensible or incapable 'of exercising her will, a drug having been administered to her, is not duplicitous, hut is proper, uikler Criminal Code, section 12G, providing that an indictment -must ..charge hut one offense; but if it may have been committed in different anodes, or by different means, the indictment m'ay allege the modes and means in the .alternative.</p>

<p>Case 30 — Action by Brown-Anderson against Eouisa A'. Kemper for the Termination of a Trust.</p> <p>Appeal from Jefferson cirouit court, chancery division.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>STATEMENT OF QUESTION© DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The statute of limitation does not bar aj -subsisting and continuing trust. Sec. 2543, Ky. Stats.</p> <p>2. A judgment on demurrer does not bar a subsequent suit based upon a cause of action. Birch v. Funk, .2 Met., 544.</p> <p>.3. Advice given hy a chancellor to a trustee where the basis of the trust is not before him, is no justification of the acts of the trustee pursuant to such advicel, nor will the approval of the -acts of a trustee hy th-e chancellor based upon such imperfect 'information relieve the trustee from liability, when the true state of the case is brought before the court of equity in. a subséquent proceeding.</p> <p>4. Lasting and permanent buildings 'made upon real estate ought not to he charged exclusively upon the income of a life tenant.</p> <p>5. A trustee without express/ power has no right to borrow money to make permanent buildings on real estate land charge the income with exclusive expense.</p> <p>6. The chancellor' ought not to appoint trustees; who' are unfriendly to the beneficiary and whose interest it is to keep up the remainder at the expense of a life estate, especially where the remaindermen derive their title through the benevolence of the-life tenant.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>Res adjudicata. Maize v. Bowtaan, 93 Ky., 205; 17 R., 81; Pepper v. Donnelly, 87 Ky., 259; Birch v. Punk, 2 Met., 544.</p> <p>.Statute of limitations. Beach v. Cummins, 13 Rep-., '831; Schwartz v. Castlen» 22 Rep., 1063; Caldwell v. Hampden, 21 Rap., 793; Spalding’s Heirs v. I. S. Reform, 21 Rep., 1107; Kerr on Fraud and Mistake, pp. 308-310 land notes; Salme, pp. 155-6-7-164; 3 Redfield on -Wills, p. 601; 2 Story’s Equity, sec. 1520 (a); Angelí on Limitations, 183-191; Adams’ Equity, pp. 613-4; Mitchell V. Tyler, 20 Rep. (Ky.), 1250.</p> <p>Dealings between fiduciaries and .cestui que trust void. Kerr-on Fraud and Mistake, 158 and notes; Pomeroy’s E'q. Jur., 956; Perry on Trusts. 2d ed., sec. 104; Willard’s Eq. .T., pp. 169-176; ■Sehouler’s Dom. Relations, sec. 389; Hill oto. Trustees, 159, 536; Brannin v. Sherley, 91 Ky., 455; Webster v. Bush, 19 Rep.; 2 Story’s Eq., -sec. 1316; Longest v. Tyler, i Duval, 193.</p> <p>Remaindermen Sutton, &e., can not profit by conduct -of trustees. 3 Redfield on Wills, p. 601; Thomas v. Hite, .5 B» Mon., 598..</p>

<p>Wills — Construction—Rights of Creditors — Bona Fide Purchasers of Devised Estate — Lien of Creditor Under the Will.</p> <p>Field: 1. Where a will directs the executor to sell the real- and per- • sonal estate, and from the proceeds to pay the testator’sl debts and a sufficient amount to his widow for her1 support, andl to distribute the remainder to his children, the children can not, by agreeing among themselves on a division of the real estate, instead of taking its proceeds), defeat the rights of the creditors to he paid before anything passes to the children.</p> <p>2. Where a will directs the executor to sell the real estate, and distribute the proceeds, after making certain payments, beftweieh. the children of the testator, the mére partition of the land by the children among themselves does not constitute them hona fide purchasers, within Kentucky Statutes', 1899, section 2087, providing that a devised estate, when sold, shall not he liablei to the creditor's of the testator1 in the hands of hona fide purchasers, unless action is instituted within six months after the estate is devised.</p> <p>3. Kentucky Statutes, 1899; section 2087, which.provides that a devised estate, when sold, shall not he liable to the creditors of the testator in1 the hands of a hona fide purchaser unless action is instituted within six months after the estate is devised, being intended to protect a devisee in the sales of what is devised, has no application where a will directs the executor to sell the real estate, and distribute the remainder of the proceeds, after the-•payment of debts and a sufficient amount to support the widow, between the testator’s children.</p> <p>4. Under Kentucky Statutes, 1899, section '2066, providing that when any property is devised subject to the1 payment by the devisee to another of a -sum -of money, the latter shall have a lien on the legacy for the sum to be paid, and section 467, providing that the word “legacy’’’ includes either real or’ personal' estate, the creditors of a testator, which directs by his will that his executor shall sell his real and (personal estate], and -from the proceeds to pay his debts, etc., and distribute the remainder between his children, have, on the recording of the will, a lien of record on the land for their debts.</p>

<p>Birtiis and Deaths — Registry—Duty of Physicians — Title of Statute — Sufficiency of Indictment.</p> <p>Held; 1. The title of an act, “An act to provide for the registration of marriages, births and death” (Acts 1873-74, p. 13, chap. 134), is sufficient to authorize the provision in. the act requiring physicians to keep a registry of births and deaths' at which they have professionally attended, and to deposit a copy in the county clerk’s office.</p> <p>2. Acts 1873-74, p. 13, chap. 134, is niot unconstitutional because requiring physicians, without compensation, to keep a registry- of births and deaths at which they have attended 'professionally, and to deposit a copy in the county clerk's' office; this being within the police -power.</p> <p>3. An indictment against a physician under Acts 1873-74, p. 13, chap. 134, for failure to keep a registry .of births and deaths at which he has attended professionally, and to deposit a copy in the county clerk’s office, is defective in not charging that ’he ever attended at any birth or death.</p> <p>4. The allegation of an indictment under Acts 1873-74, p. 13, chap. 134, requiring physicians to keep a registry of births and deaths at which they have attended) professionally, that .defendant “is a physician,” speaks from the time of the indictment, and is not a sufficient allegation that he was a physician during) th$ year then ended, for which it was charged he .failed to do his duty.</p>

<p>Case 33 — Action by the Columbia Finance & Trust Company against the First National Bank.</p> <p>Appeal prom Jefferson circuit court.</p> <p>Judgment Sob Defendant and Plaintiff Appeals.</p> <p>We submit that the rule in this case, which, is decisive of the whole controversy, is a very simple one. To adopt an analogy from mathematics, we may put it in this form:</p> <p>Where one quantity, A, is greater, than another quantity, B, which in turn is greater than1 a third quantity, C, the fir^t quantity, A, must be greater than the smallest quantity, C. The claim oh appellant, hy' reason of the assignments to it of the. entire fund by the united action of all the partners was greater,, better, and superior to the claim of members of' the firm- and. of tbe firm creditors. Tbe claim of firm creditors to- tbe fund was admittedly greater than the claim of the assignee or transferee of a single member of the firm; that is, the firm creditors had a better right to the fund than did the hank, by reason o-f its assignments from Sudduth alone. If, 'then, the! claim Of appellant i£ better, superior, and greater than the claim of firm creditors, and the claim of firm creditors is better, greater, and superior to the claim of the hank, it follows by the rigor of a demonstration that the claim of appellant must he greater, superior, and better than that of the bank. All other matters simply becloud this one question, but they can not remove it nor take from it the fact that in it is the real solution of the/ controversy here presented. There ismo way if which the claim of the bank can rise higher than its source; and S'udduth had no power to vest his assignee with a right or property equal in strength or in security to that with which all the partners joining by their united action invested the appellant.</p> <p>For the reasons urged and upon the authorities cited, we respectfully submit that the judgment appealed from should h® reversed with direction to the court belo-w to enter judgment for appellant against the appellee for the amount of the checks sued on, with interest thereon from the dates! the same were presented and payment thereof demanded.</p> <p>AUTHORITIES CITED.</p> <p>1. Appellant’s rightvtw maintain this action as the holder of the cheeks sued on. Lester & Co. v. Given, Jones & Co., 8 Bush, 357; Chambers v. Northern Bank of Ky., 5 R., 123; Herndon v. Louisville Banking Co., 10 R., 585; Merchants’ National Bank v. Robinson, 97 Ky., 552; Kentucky Flour Co.’S' Assignee v. -Merchants 'National Bank, 90 Ky., 225; Weiands’ Admr. v. State National Bank, 23 R., 1517; 5 Am. & Eng. Ency. of Law 2d ed., p. 1061; Weinstock v. Bellwood, 12 Bush, 139.</p> <p>2. 'The insufficiency of the defenses interposed by appellee. Pomeroy’s Equity Jurisprudence, vol. 1, sec. 414; sec. 1277, note 1; secs. 683, 684, 685; Rice v. Rice, 2 Drew, 73; Mamdeville v. Welsh, 5 Wheat., 277; Weinstock v. Bellwoo.d, 12 Bush, 139; Bullitt’s Civil Code, note to sec. 18; Hayward v. Andrews, 106 U. S., 672; New York Guaranty & Ind. Co. v. Memphis 'Water Co., 107 U. S., 214; Smith y. Bourbon County, 127 U. 'S., Ill; Glenn v. Marbury, 145 U. S., 508; Bay v. -Coddington, .'5 Johns Oh. Rep., 54; Swift v. Tyson, 16 Peters, 1; Lee’s Admr. ■y. Shiead, Collard & Hughes, 1 Met., 628'; May v. Quimby & -Co., 3 Bush, 96; Greenwell v. Haycton, 78 Ky., 332; People's .Savings Bank v. Bates, 120 U. S., 556; Fourth National Bank v. Hew Orleans & Carrollton Railroad Co., 11 Wallace, 624; Couchman v. Maupin, 7S Ky., 33; Jiones v. Lusk, 2 Met., 301; King v. Shaw, 9 R., 577; J'adkson v. Holloway, 14 B. Mon., 1(3B-112; Kincaid v. National Wall Paper Co. (Kan)., 54 ¡L. R. A., 412; Annotation in 29 L. R. .A., 681, 692, to assigned estate of Edwards & Wigginton, 122 Mo., 426.</p> <p>3. The appellee bank had, no right to set off the individual debt of Sudduth due to it against any1 part of the) deposit to the credit of H. L. Stone, W. A. Sudduth and Bennett H. Young, president. 3 Am. & Eng. Ency. of Law, 2d ed., 835; Farmers’ Bank v. Farwell, 58 Fed. Rep., 634; Coiote v. Bank, 3 Cranchi (C. C.), 95; Morse on Banks and Banking, 2d ed., 48; Zane-on Banks and Banking, par. 140; Hodgin v. People’s National Bank, 124 N. C., 543'.(1899); Watts v. Christie, 11 Beav., 555; Reynes v/ Dumont, 130 U. S'., 354; Masonic Savings Bank v. Bang’s Admit, 84 Ky., 135; Raymond, &c., v. Palmer, &c., 41 La. Ann.,-432; Lindley on Partnership, p. 292, ed. 1888; Williams v. Brimhall, 13 Gray, 45:2; Cotzhausen v. Judd, 43 ¡Wis., 213; McNair(v. Platt, 45 111., 211; -Brewster v. Mott, 3 Scam., 378; Hilliard' v. Walker, 11 111., 644; Thomas v. Stetson,. 62 la., 537; Witheringlon v. Huntsman, 44 S. W., 74; 64 Ark., 551; Smith v. Branmon, 51 S.'W., 128; 21 R., 267; West v. Armstrong, 4 R., S98; Cochran & Fulton v. Anderson Co., National Bank, 6 R.,'168; Flanagan v. Shuck, 82 Ky., 617; Eubank v.. Vance, 6 R., 303; Pennell v. Deffell, 4 DeGex, M. & G., 372, 383; Firth v. Cartland; 2 Hem. & M., 420; Van Alen v. American, National Bank, 52 N. Y., 1; Sfeilman v. Miller, 7 Bush, 428.</p> <p>4. Sudduth had''no power or authority as aj memheir and in the name of the law firm Iof .Stone & Sudduth to discount oi; endorse the Story; note to the appellee bank, or to waive protest or notice of protest thereon so as to bind the firm or Stone, the other member of said firm. Breckinridge v. Shreve, 4.Dana, 375; Judge v. Braswell, 13 Bush, 67; 3 Am. & Eng. Ehcy. of Law, 2d ed., 473; AIsop y. Central Trust Company, 100 Ky., 375; Hedly v. Bainbridge, 3 Ad. & El., 315; Garland v. Jacomb, L. Rep., 8 Exch., 216; Dickinson v. Valpy, 10 Barn. & Cress., 128; Levy v. Pyne, 1 Car. & Marsh, 453; Smith V. Sloane, 37 Wis., 285; Chalmet’s Digest iof the Laws of Bills of Exchange, Promissory Note's and Checks, pp. 68, 69; Randall v. Lee, 68 Mo. App., 565; Moynahan v. Prentiss, 51 Pac., 94; Friend v. Duryee,. 17 Flor., 11.6; Cowles v. McVicker, 3 Wis., 637-643; 'Nicholson v.. Bank of New Orleans, 92 Ky., 255.</p> <p>5. Appellee violated the agreement upon which the deposit was made when it appropriated the sum of $6,72:5.86 out of said, deposit upon Sudiduth’s1 individual de^t to appellee. Sec. 133 of Zane on Banks and Banking; Morse on Banks and Banking, p. 4.2. ,</p> <p>6. As to the accounting. Lindley on Partnership, star page 340; Bates on Partnership, sec. 185, p. 188; Mutual Benefit Bife Insurance Co. v. First National Bank, 24 R., 580.</p> <p>1. Suddhth’s authority and direction to appelle^ to apply the fees in its hands to the satisfaction of his and Stonefsl obligations to the appellee, and the application thereof made by the appellee pursuant thereto, and without any notice of appellant’s claim amounted to a payment of the money by Sudduth to appellee.</p> <p>The controversy here is- not therefore between two holders of conflicting assignments, but between the holder of a melre assignment and one to whom the mioney has been paid.</p> <p>2. If the assignments to appellant were1 binding on the construction company, as contended for by appellant’s counsel, then appellant has a claim against that company1 but not against appellee. The appellant had no lien upon the fund. Money has no ear marks.</p> <p>8. Sudduth had undoubted right to. direct the application of his one-half of the fees in appellee’s hands to the payment of his .obligations to appellee. The appellee, with or without Sudduth’s direction, had the right to apply the moneys of Stone and 'Sudduth, or of either of them, in its hands to the payment of the Story discount.</p> <p>■ 4. The appellant can not question Sudduth’s right to discount the S'tory note. Sudduth’s partner only, Stone, could raise the question at all. Stone is not a party to the action, and if ha were, and the question was presented by him, it would, be decided in appellee’s favor. Stone could not even raise the question unless and until upon a final settlement of the partnership of .Stone and Sudduth it should appear that 'Sudduth is indebted to him, and then only to the amount of said indebtedness.</p> <p>5. The appellant has .failed to show by averment or prloof that -Sudduth’9 note of $3,000, or Stone’s' note of $4,000 is unpaid, while the exhibits filed by appellant show affirmatively that 'Sudduth’s note is paid.</p> <p>6. The appellant did not receive the checks sued, on in the usual course of business.' It is not a lona flete holder thereof for value or without notice. Treating them as' attempted assignments of the moneys in appellee’s hands, they were received by appellant with full notice lof the prior assignment of the moneys to appellee and of their appropriation and payment to appellee. The checks on their face called for^“Sudduth’s one-half of the fee” and “Stone’s one-half of the fed of' (Stone & rS'udduth,” and appellant know when it received the checks that the fees in question had been paid to appellee and that the checks would not be paid. The facts do not bring the case within the rule established by Lester & Co. v. Given, Jones & Co., 8 Bush, 861, which 'enables the bona fi&o holder of a check received' in the ordinary course of business to sue the bank in case of a wanton or fraudulent refusal to pay a check so received.</p> <p>The refusal of the bank to honor the checks sued on in this case was neither wanton nor fraudulent, but was precisely what appellant knew wnuld occur when it received and presented the checks to appellee.</p> <p>We earnestly and confidently ask an affirmance of the judgment.</p> <p>AUTHORITIES CITtED.</p> <p>.Spencer’s Equity Maxim; Buckner v'. Sayre, 18 B. .M., 756; Winlock v. Bellwood, 12 Bush, 139; Mandeville v. Welsh, 5 Wheaton, 283 (opinion U. S. S'. Ct.); Beach on Mod. Equity Jur., sec. 233; Newly et al. v. Hull, 2 Met., 532; Purcefull v. Pineville Bank, 17 R., 38; Herndon v. Lou. Banking Co., 10 R., 584; Bank v. Bongs, S-R., IS; Jackson v. Holloway, 14 B. M., 136; Bank of Rep. v. Millard, 10 .Wall (U. S.), 152; .First Nat. Bk. v. Whitman, 94 U. S., 343; Seventh Nat. Bk. v. Cook,’ 73 Penn. St., 483; Etna Nat. Bk. v. Fourth Nat. Bk., 46 N. Y., 82; Carr v. Security Bk., 107 Mass., 45; Criveling v. Bloomsberg Nat. Bit., 46 N. J. L., 25'5; Commercial Bk. v. Miller, 77 Ala., 16S; 2 Parson on Bills and Notes, p. 81; Breckinridge v. Shreve, 4 Dana, 371; Judge et al. v. Braswell, 13 Bush, 70; Breckinridge y. Shreve, 4 Dana, 377; Ky. Stats., sec. 483; .Moody v. Wiley, 3 R., 315; LaCompt v. Litcher, 11 Ky. R., 362; Roberts v. Armstrong’s Admr., 1 Bush, 263; Ky. Stats., sec. 374; Civil Code, sec. 19; Am. & Eng. Ency., vol. 13, pp. 575-7; Boetcher v. Colorado Nat. Bk., 15 Col., 16; Spain v. Brent, 1 Wall (U. S.), 604; Schupp & Schmidt v. Tliomasson’s Exr., 9 R., 360; Bank of Ky. v. Vance, 4 Litt., 175; Swigert v. Bank of Ky., Í7 B. M., 285; Glass v. Pullen, 6 Bush, 349; Carlisle v. Jumper, &c., 81 Ky., 285; Garrott v. Jaifrey & Co., 10 Bush, 417; Voorhis, &e., v. Eiting, 15 R., 162.</p>

<p>Case 34 — Action by P. P. Wyles, Commissioner, against Bailey D. Berry on a Promissory Note.</p> <p>APPEAL PROM HARRISON CIRCUIT COURT.</p> <p>Judgment eor Dependant and Plaintipp Appeals.</p> <p>The appellant as master commissioner lof the Harrjson Circuit Court, and on the order of said court brought this suit on a note for $1,313.10 against appellee, B.erry, and J. I. Blanton, which was executed by said Berry as principal, with Blanton as surety to said commissioner.</p> <p>Blanton made no defense. Berry filed an answer which he withdrew and then filed another pleading non eat factum. The answer was in three paragraphs. The second was' "no consideration received by him.” He claims that Blanton got the proceeds for which the bon,d was executed. The thir/di was. a plea of estoppel, because interest ’ had been paid and because the suit had not been brought sooner; to both ofi these the court sustained a demurrer, but the1 plea of non eat factum was sustained and a verdict rendered for defendant Berry.</p> <p>■In the first paragraph of the answer he admits the allegations of the petition, that the money sued flor was part of the proceeds of dower land sold under a judgment of the chancery court in an action pending therein; that said .fund was in the custody of the court who made an order directing the commissioner to loan said fund and pay the interest to Mrs. .Mary C. Desha. But he denies that, the. commissioner filed his report that he loaned the money to Berry and took the bond sued omi, amd denies that the report was approved or confirmed by the court and finally pleads non eat factum.</p> <p>IWe submit that the evidence eoncitasively shows that the commissioner reported the loan to the court and same was1 confirmed and that Berry signed the bond sued on as principal land is bound thereby, and Berry in his own evidence admits that the signature looks like his.. The only thing that Berry relies on was that Blanton got the money and that he, Berry, did not get it.</p> <p>• .We contend that it was ernor in the court to allow the defendant Berry to withdraw his original answer from the record; that having once been filed, it could not be taken out of the record, and that by reason of the fact that it had been so" taken out and che defendant refused to pnoduce it the appellant had the right to prove its contents to show that the defendant therein made an admission or a statement differing from -what be swears to on the stand.</p> <p>If we leave out Blanton and add to this admission the fact that the writing sued ion is in regular form, and that there is nothing about it to lead to a suspicion that jt is not what it purports to be, as will be seen by an inspection of the papen itself, we find the overwhelming preponderance! of the evidence is against the truth of the verdict.</p>

<p>Trusts — Construction—Rights of Cestui Que Trust — Liability of Fund fob Cestoi’s Debts.</p> <p>Held: 1. A trust deed conveyed the residue of the trust fund to be invested by the trustee, and the net income paid in equal monthly installments of $5ü each, and, in ease the income .'did not amount to such sum, the principal should be liable therefor, to ,S., to he by him expended for the benefit of his. children and family, without liability to account therefor, and on his death the principal to pass in fee to his children, with power in S. t<J appoint same among his children by will, and, if S. should survive his present children, he might elect to, demand and receive from the trustee the principal of the fund, provided that at any time after the previous life estate had been terminated, if S. affir- - matively showed to the trustee that he was not indebted to any person, the income should he paid to him for his exclusive use and benefit. Held, that such deed vested in S. the fee in the income and-principal of the estate to the extent of $50 per month, which amount was liable for his debts.</p>

Case 36 — Action by Commonwealth against W. B. Roabk an» Othees as Sureties on a Bail Bond. APPEAL FROM ALLEN CIRCUIT COURT. Judgment for Defendants and Commonwealth Appeals. In presenting a .power of attorney signed by three and falsely-purporting to have been signed by the fourth, M. G. Brown,” W. B. Roark practiced, a fraud upon the court and he can not escape liability by his own fraud.

Case 87 — Action by August Wukth against the City of Paducah to Recover on Five City Bonds and Coupons Attached. APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. This suit was brought on five bonds of the city) of Paducah with coupons attached, dated November 13, 1868, and due at any time after January 1, 1873. The suit was filed April 11, 1900. The defendant in its answer pleads (first) forgery amdl (second) limitation. 1.

<p>Local Option Law — Validity of Amendment — Requiring Bond for Good Behavior.</p> <p>Held: 1. Act March 11, 1902 (Acts 1902, p. 41, chap. 14), entitled “An act for the better enforcement of” the local, option act of March 10, 1894 (Acts 1894, p. 123, chap. 52), “and to amend section 4” thereof, and which defines the essentials of an indictment for a violation of the law, makes it unlawful for any person i.o furnish another liquor in a local) option district, declares that the .possession of a United States license shall he prima facie evidence of guilt, authorises the court to require lone on a second conviction to give a bond for his good behavior, provides that the place of sale of liquors shipped into, a local, option district shall be the place where the money Xs paid or goods delivered, and prohibits the sale of liquor in any local option district, relates only to one subject, which is expressed in its title, within Constitution, section 51.</p> <p>2. Act March 11, 1902, section 3 (Acts 1902, p. 42, chap. 14), providing that on che second or any subsequent conviction for, a violation of the local option law the court shall require; the defendant to execute a bond for; his “good behavior” for twelve months, is not void for uncertainty because of the use> of the phrase “good behavior.”</p> <p>3. The section is, not unconstitutional as imposing double punishment, the requirement of the giving iqf the bond, if' regarded as a • punishment, being not for the former offenses, but such former ‘offenses merely aggravating the last offense, and the provision being merely declaratory of the common law.</p> <p>4. Act March 11, 1902, section 3 (Acts 1902, p. 42, chap. 14), providing that ‘ion the second or any subsequent conviction for a violation” of the local option law the court shall require defendant to execute a bond for his good behavior, refers to a conviction of defendant tor an offense committed after his conviction for a previous offense.</p>

<p>Assignment for Benefit of Creditors — Action by Assignee — National Bankruptcy Act — Limitation of Actions — Attorney and Client — Notice to Attorney — Effect on Client.</p> <p>Held: 1. Kentucky Statutes, 1899, section 84, provides that if an assignor for the benefit of creditors, before making the deed, shall have made a preferential or fraudulent transfer of any of his property, it shall vest in the assignee, who shall have thd remedies of a creditor. Act 1856 (Kentucky Statutes, 1899, section 1910) enacts that every sale made by a debtor in contemplation of insolvency, and with a design to. prefer one creditor, shall operate as an assignment for the benefit of his creditors; and by section 1911 such transferís arel subject to the control of equity on petition of any one interested. The national bankruptcy act makes it an act of bankruptcy for1 a debtor to make an assignment for the benefit of his creditors,- or to -prefer one creditor over another. Held, that the fact that when an insolvent made a conveyance of real estate and when he subsequently made an assignment for the benefit of creditors the national bankruptcy act was in force did not preclude the assignee from suing to bring the property conveyed into the trust fund, the act of 1856 not being an insolvency act which' could he superseded by the bankruptcy actj, and the transaction being within the jurisdiction of the State courts under its statutes until attacked in the Federal courts as an act of bankruptcy.</p> <p>2. Kentucky .Statutes, 1899, section 1911, makes a transfer by a debtob in contemplation of insolvency subject to the control of equity on a petition of any one interested who -filéis a petition within six months after the «delivery of the property. Held, that “delivery of the property” means a visible change of possession, and, where a house was conveyed, the mere fact tnat the tenant therein attorned to the grantee, and thereafter paid her rent, did not constitute a delivery sufficient to set the statute in motion.</p> <p>3. Where the attorneys for an insolvent learned from him that he had conveyed certain land, and subsequently they were employed by the insolvent’s assignee for the benefit of creditors, their knowledge of the deed was not chargeable to the assignee.</p>

Case '40 — Action by Abe Bogaud against Illinois Central Ry. Co. for Personal Injuries. APPEAL PROM M’ORACKEN CIRCUIT COURT. Judgment Dismissing Plaintiff's Action' and He Appeals.

Case 41 — Action by Maey Hunt against T. J. Sanderson for Slander. appeal from graves circuit court. Judgment for Plaintiff and Defendant Appeals.

<p>Case 42 — Action by R. D. Johnson and Others against B. F. ■Creech and Others Involving Title to Land and the Timber Thereon.</p> <p>appeal from bell circuit court.</p> <p>Judgment foe Plaintiffs and Defendants Appeal.</p> <p>This is not the first time the location of patent No. 6975 for 86,000 acres of land- to Smith, -Skidmore & Ledford has been before the courts. .</p> <p>The same question arose in the case of Davis v. Parmer, pending in the United States Circuit Court for the District of Kentucky in the year 1894, when Judge Barr’, in his opinion, held that the “fourth corner of said patent was at -or in 'Cumberland Gap, and that the survey could not legally go beyond the Kentucky line.” The same question again arose in the ease o¡f Davis’ Heirs v. Hinckley in the same court in the year 1900 when Judge Evans held the same.</p> <p>In the case at bar the circuit court before whom the law and facts were tried repudiates the fixing of the fourth corner in Cumberland Gap, giving -as a reason fob such -repudiation that as the word “near” is of equivocal import it ought no-t to overcomei the call for course and distance which, fixed the) point called for definitely.</p> <p>Our contention is that the fourth corner of siaid ¡patent ¡is in Cumberland Gap, as held by Judge Barr and Judge Evans, and that the next call of said patent must run its full 'length of 3,200 poles on the degree north, 15 east; that the surveyor who •made the original survey had not -authority to go outside, and did not go outside of Kentucky in making the survey, but fob. lowed the Kentucky line from, the third' corner to the center of Cumberland Gap.</p> <p>We insist that the rules laid down by this court in -Pearson v. Baker, 4 Dana, 323, do not apply to this ease; that the rule as to contracting or extending the distances must be subordinate at all times to the State lines, and in' no event can the lines be extended beyond the boundary of the State of Kentucky.</p> <p>And we insist, moreover, that the quantity of land embraced by any particular location oí the patent in controversy is not to be considered when it is conceded that the said patent, however located, will not hold more .than S6,000 acres that was vacant and unappropriated at the time the survey was made on which the patent was issued.</p> <p>It seems to us that it would be ai useless task to speculate ais to the different locations that may be given to said patent if we once depart from the idea that the fourth corner thereof is located in Cumberland Gap, and we shall not therefore consume time in noticing ‘the reasoning by which the lower court in its findings arrived at a conclusion which militates! a'gainst our contention as well as against the former judgment of the court in Asher & .Sons v. Howard.</p> <p>The proper location of patent No. <6975 was considered by this court in the case of Asher & -Sons v. Howard, anid the court refused to fix the location upon the ground that the case! had not been sufficiently prepared to enable it to do so.</p> <p>The contention oí the appellants is that the call for ai stake at Cumberland Gap fixes Cumberland Gap as the fourth corner and that the proper manner of locating the patent) is by running the calls of the patent from that point to the! beginning, increasing the length of the fifth and sixth Unes to close.</p> <p>The circuit judge held, upon the! authority of Pearson v. Baker and Others, 4 Dana, 328, and the authorities cite'd therein, that as the patent will not close upon its courses by .any method of location’ unless the distance of the third and fourth lines ■ax'e contracted, or the distance of the fifth and sixth lines are extended it was proper in the, absence of evidence’ showing in which lines the mistake was made, to contract the third and fourth lines by "reversing the .patent from the first cornea- pursuing the courses of the patent to the beginning.</p> <p>By this method of location the number of acres by the patent in Kentucky (93,552 acres) is nearer to the number called for than by any of the other locations.</p> <p>By the location adopted by the circuit oourt the fourth line' crosses Cumberland mountain about five miles east of Cumberland Gap. As stated by the circuit judge, the word “near” is an ’ indefinite term, its. exact meaning depending upon the circumstances under which it is used.</p> <p>Such indefinite words of description ought only to 'be resorted to, in fixing boundaries, in the absence of more definite’ and exact description. But in this patent the courses ’and distances are given; they fix the location of the corner definitely and! show just how near it is to Cumberland Gap. The courses and distances control in the'absence of marked lines and corners.</p> <p>The Federal judges, in their opinions filed with appellants brief, have treated the stake corner, near Cumberland Gap, as a natural object and have, in effect, made the third call of the patent read as follows: “Thence with the State line S. 60, W. 8,320 poles to the State line monument in Cumberland Gap.”</p> <p>For-such a change in the calls of. the patent there is no warrant of law, and it would do^ violence to the instrument in several particulars.</p> <p>1. The State line at this point is not a straight line, (but a very crooked one.</p> <p>2. It does not at any point run south 60 west.</p> <p>3. To locate the fourth corner at Cumberland Gap, we must travel three and .one-fourth miles north from the point fixed for the corner by courses and distances, and to make the survey close we must extend the fifth line 1,858 poles and the closing line 1,840 poles.</p> <p>4. To locate this corner at Cumberland Gap we must increase the acreage of the patent from 86,000 acres to 182,184 acres!</p> <p>Surely these are reasons enough why the court should not follow the Federal judges in altering the language of the patent and substituting for it something so wholly different.</p> <p>The location of a patent is the act .of the patentee and: not that of the State. If he so locates it as to, make his patent void it is his own lookout. There is no warranty ini law or morals in a public grant.</p> <p>Assuming that the fourth corner is what it purports to be — a stake corner — all difficulties disappear.</p> <p>If we run from the first to the last corner by courses and distances, the patent will contain 113,722 acres in Kentucky. If we reverse and run from, the last call to the first it will contain 93,552 acres.</p> <p>Under these circumstances the rule is to reverse (4 Dana, 323). If thus located, appellees’ seventeen acres will; ibe .outside the Ledford patent, and the judgment should be affirmed.</p> <p>AUTHORITIES.</p> <p>.Patent Should be reversed. Asher & Sons v. Howard, 70 S. W., 277, and 72 S. W. R., 1105; Pearson v. Baker and Others, 4 Dana, 328; Thornbury v. Churchill, 4 T. B. Mon., 32; Simpson v. Wells, 26 S. W. Rep., 587; Beckley v. Bryan, Sneed 91; Bryan v. Beckley, 5 Litt., 91; Preston’s Heirs v. Boraar, 2 Bibb., 493; Am. & Eng. Ency., vol. 4, p. 789, 2d ed.</p> <p>Course and distance control further call as being near. Harry V. Graham, 1 Dev. & B. L., 76-27 Am. Dec., 226.</p>

Case 43 — Action by H. L. Knox’s Admr. against City of Owensboro’ fob Personal Injury to Plaintiff’s Intestate. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment fob Plaintiff and Defendants Appeal. This is an action first brought by H. L. Knox by bis mother and next friend for injuries received hy him in coming in contact with a live wire charged with electricity, hy which he was. • burned, and having since died of natural causes, it wias revived in the name of his administrator.

Case 44 — Action by Lydia Roark against J. J. C. Bach and Other: Involving Title to a Homestead. APPEAL 'FROM PERRY CHÍCUT COURT. JUDGMENT FOR DEFENDANTS AND PLAINTIFF APPEALS. The evidence in this record shows that L. C. Roark came in possession of a tract of land in the division of hisi reputed father’s estate. Whether he was a legitimate child] on not is not material, as he acquired it by reason of his claim.' así an heir.

Case 45 — Action by Albert R. Clark against Covington .Sawmill & Mfg. Co. to Recover Damages for Personal Injuries.— APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Husband and Wife — Mortgage by Wife — Husband Not Joining— Judgment Against Wife — Binding on Wipe — Effect on Heirs— Estoppel.</p> <p>Held: 1. Under Kentucky .Statutes, section ,2128, authorizing a-married woman to make contracts as though She Iwas single, except that she may not mortgage her real estatd without joinder ■of her husband, a married woman’s mortgage of her real estate in which her husband did not join is void.</p> <p>2. Under Kentucky Statutes, section 2128, providing that a married woman may sue and be sued as a single -woman, a judgment against a married woman alone, in an action to- foreclose a mortgage given by her in which her husband did not join as required by said section, is binding on her and her heirs.</p> <p>3. The children of the wife take only sluch rights ais she [hald1, and they are likewise bound by the judgment against her.</p> <p>4. In conferring upon married women the power to. siue and be sued alone, the Legislature relieved them from the .power of theifi husbands in all actions, and the estoppel of a judgment operates upon them in all cases as though they were unmarried.</p>

■Case 47 — Action by Cincinnati, N. O. & T. P. Ry. Co. v, M. S. Baughman to Recover the Possession of a Car. APPEAL FfOM LINCOLN CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. The only question involved in this casie> is whdther or not. under section 4335, Kentucky Statutes, a justice of the peace-has jurisdiction ¡of prosecution for the offenses therein prescribed, one of which is that of wilfully obstructing a public road.

<p>Case 48 — Action by N. K. Foster against the Board op Education op Winchester por a Mandamus to Admit a Pupil Without Payment op Tuition Fees.</p> <p>APPEAL PROM CLARK CIRCUIT COURT.</p> <p>From Order Granting Writ Dependant Appeals.</p> <p>The appellee's petition alleges that Gertrude N. Price was an infant within the school age; that her parents resided in the State o-f Virginia; that she had no guardian, curator or committee residing in this State, and that she is residing with her uncle, N. K. Poster, in Winchester; that he has undertaken to clothe, support and maintain her as a member of his family until she is twenty-one years of age, and that she. has agreed, with the consent of her parents, to live with him until s’he is twenty-one years of age; and upon this -allegation: he asks a mandamus requiring appellant to admit her to the public schools of Winchester without payment of tuition fees which had been' demanded of her.</p> <p>Under the statutes applicable to fourth class cities, the appellant board has power to a-d-mit pupil® to said schools “from beyond the limits o-f the city, and may collect therefrom tuition fees for the benefit of the -schools, of the city, making deduction of taxes for school purposes ion property in said city paid by parents of said children, and/ no children of persons residing beyond said limits sh-alll be admitted as pupils in any of said schools except on payment of such tuition feed as said board may require.” Ky. Stats., sec. 3605.</p> <p>.Gertrude Price is in no «sense a resident of Winchester or Kentucky. Mr. Foster is not her guardian. -She may leave at any time -and he can not restrain her. He admits he has undertaken to educate her, but' this he is not doing when he undertakes to force her into the public schools where he lives' without the payment of tuition fees which the plain letter of ths> law requires. Rogers v. Trustees, 11 R., 935.</p>

<p>Taxation — Collection—Auditor’s Agent — Special Authority— Commissions — Collector de Facto.</p> <p>Held: 1. A county auditor’s agent, whose duty isi limited to collection of omitted taxes, was appointed under special! authority to collect such of certain back taxes as to which the sheriff had been exonerated and such as were due the county separately from the State, for which the agent was to receive á certain commission. Held, that he was not entitled to collect taxes due the county on distilled spirits in bonded warehouses, as Kentucky Statutes, 1899, sections 4105-4114, governing the collection of taxes on suck spirits, make them payable to the officer entitled to receive the same, and by section 4129 the sheriff is the collector of county taxes if he has executed the proper bond.</p> <p>2. An 'auditor's agent, in collecting taxes which it was the sheriff’s •duty to collect, was, as to the taxpayers, á de facto official acting under color of office, and the county could sue to compel him to' pay over such tax without thereby admitting his authority to act.</p>

<p>Municipal ‘Corporations — Street Improvements — Necessity oe Bids — Ordinances—Monopolies.</p> <p>Held: 1. An ordinance requiring a contract for construction of streets to be let, after advertising, to the lowest and best bidder, passed pursuant to a charter provision that the council shall by ordinance adopt a uniform system to govern street construction, is binding till duly modified ior repealed.</p> <p>2. Requirement of an ordinance for competitive bidding tCorl construction of a street is not satisfied where, as knoiwin to the . council, there is but one bona fide bid.</p> <p>3. Under an ordinance requiring contracts for construction of streets to be let to the “lowest and best bidder,” an ordinance providing that a street shall be constructed with a certain material, which! can be done by only one party, without placing the work in competition with other like or equally good material, is void. ‘</p>

Case 51 — 'Action by McCormick Harvesting Machine Co. against W. A. Arnold and Another on Notes. APPEAL* FROM. GARRARD CIRCUIT COURT. .Judgment for Defendants and Plaintiff Appeals. 1.

<p>Legacies — Ademption—Pleading—Transaction With Decedent-Witnesses — Competency.</p> <p>Held: 1. The allegation of the answer, in an action for legacy, that a ■payment by testator after the date of the will was intended by him in satisfaction of the legacy is an allegation that it was so intended by him when it was made.</p> <p>2. The executor and his surety, in an action against him for a legacy, are not incompetent, under Civil Code, section 606, to testify to declarations of testator to show that a payment by him was intended in satisfaction of the legacy; they not being interested in the result, the controversy being really between such legatee and the residuary legatee. Not so, however, the legatee or her husband, or the residuary legatee.</p> <p>3. One interested in the result of the action may not testify to a transaction between him and deceased in the presence of another though such other testify for the other party1 in. regard thereto.</p>

<p>■Executors and Administrators — Real Estate — Lease by Administrator — Accruing Rents — Rights of Heirs.</p> <p>Held: Rent accruing after iniestate’s death under a lease of his real estate by the administrator, 'under order of court to raise funds necessary to pay debts, belongs to the heirs and not to the administrator, though the administrator could have sold the land to pay the debts.</p>

Case 54 — Application op R. C. Hodoes for a License to APPEAL FROM METCALF CIRCUIT COURT. From Part of ti-ie Judgment of the Circuit Court Applicant Appeals. Appellant filed notice and made application in due form before the county judge for a license to retail spirituous liquors in Metcalfe county and introduced proof showing that he was qualified in all respects to carry on said business as required by the statutes.

Case 55 — Action by.J. Morgan Gentry against the City of Lexington to Recover Fees as Jailer of Fayette County. APPEAL FROM FAYETTE CIRCUIT COURT. Judgment for plaintiff and Defendant Appeals. To sum up our conclusion on the question involved, we find: 1. Under section 143 of the Constitution a .police court is established. 2. It has penal jurisdiction concurrent with the magisterial courts. 3.

<p>Final Judgment — Judgment on Rote — Res Judicata.</p> <p>Held: Land having been sold under a judgment, andi paid for, the judgment was afterwards vacated, a new trial ordered, the sale set aside, and the purchaser adjudged to have a lien on the land, for the price paid. The petitioners for the new trial took out a rule requiring a party in the action to pay into court the sum received by him under the judgment. A demurrer to the rule was sustained on the ground that the .part of the order adjudging a lien on the land was interlocutory, and the petitioners were not affected thereby. Held, That this decision, though erroneous, was final, and ’ effective in bar of a later rule for the same pulpóse.</p>

<p>Betting on Election — Offense—.Warrant Charging Crime — iSufFtCIENCT.</p> <p>Held: 1. A bet on the result of an election, made after'the holding of the election and< after the announcement of the result, is not a violation of Kentucky Statutes, 1899, section 1975, punishing the betting on any election held under the State or Federal Constitutions.</p> <p>2. A warrant charging defendant with having on November 20, 1901, bet on the result of the election for Governor on November 7, 1901, is fatally defective, in the absence of a specific allegation that the result of the election was not known, where, as a matter of fact, no election for Governor was held in 1901, and the last election preceding the issuance'of the warrant, in 1902, was .held in 1900, as it will be presumed that the result of the election had been determined and announced at the time of the alleged bet.</p>

Case 58 — Action by Calvin I. Hurt against the L. & N. R. R. Co. por Personal Injuries. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS BRANCH, FIRST DIVISION. Judgment for Defendant and Plaintiff Appeals. This is the third trial of this case. On the first trial there was a hung jury. On the second' trial on precisely the same evidence that was heard on the last trial, the jury returned a verdict for the plaintiff for $10,000 damages, which was set aside by the court.

Case 59 — Action by Walter Martin’s Admr. against the Cumberland Telegraph and Telephone Co. for Causing Death oe Plaintiff's Intestate. APPEAL FROM LINCOLN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The deceased was killed by a stroke of lightning while sitting upon a box under the porch of a store building belonging to a man named Ike- Hamilton. The store was not occupied, but deceased had gone there with others to get shelter from a storm.

<p>Case 60 — Action by the Langdon-Creasy Company against the-Trustees of Owenton Common School District to Prevent its Property From Being Assessed for Taxation for Said .School District.</p> <p>APPEAL FROM 'OWEN CIRCUIT COURT.</p> <p>JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS.</p> <p>The sole purpose of this action is to obtain a deliverance from the court on the question of the situs for taxation of personal property belonging to a private corporation.</p> <p>It is admitted for the purposes of the demurrer that the property assessed is a stock of groceries in Owenton, Ky., and that appellant owns similar stocks of goods located ini some twenty-odd counties in this State, all of which, including the stock at Owen-ton, appellant lists for taxation for all purposes in Kenton county, Ky., and there pays its taxes, and we maintain that Kenton county being the legal residence of appellant, is the proper and only legal place at which it should list and pay said tax.</p> <p>The law requiring railroad companies to pay taxes at the place of its legal residence and likewise in municipalities and ¡school districts through which it runs, applies to real estate only and is true because of special provision of law.</p> <p>AUTHORITIES CITED.</p> <p>City of Newport v. Ringo, 87 Ky., 635; ¡Gates v. Barrett, 2 R., 318; Milwaukee Ship Co. v. City of 'Milwaukee, vol. 18, L. R. A., 353.</p> <p>The question in this-case is: “Does the situs of personal property ever control its taxation?” Appellant owns a stock of groceries in the town of Owenton worth $900. It has “twenty or more stores” scattered over Kentucky, each of which owes its protection to the officers where it is situated.</p> <p>If the contention of appellant prevails it eouSd locate its twenty or more stores in Louisville, Lexington and other‘towns and cities where taxes are high, and claim its chief place ¡of business and home at a small town like Burlington in Boone county, where very little taxes are paid, and thereby force its competitors in business to pay much more taxes than it pays, leaving it to enjoy the benefits of its location in other places without sharing the burdens thereof. The assessing officers at its “home place” could not know or estimate the value of its stock in other places, and in this way it may practice a fraud in its assessments and escape its share ¡of the public burden.</p> <p>■While the situs of personal property is usually with the owner, this is not always the case, and if not always the case, .surely this is one instance in which the situs will control.</p> <p>AUTHORITIES CITED.</p> <p>Louisville v. Tatum, Embry & Co., 23 R„ 1014; Lawyers’ Reports Annotated, vol. 37, p. 385, 386, 387; Herron v. Keenon, 59 Ind., 472 (26 Am. Rep., 87); Cooley on Taxation (2d ed.), p. 374; Desty on Taxation, vol. 1, see. 62.</p>

'Case 61 — Action by A. C. Mayes, &c., against J. E. Lane and Others on a Contract for Building a Church. APPEAL FROM M’CRACKEN CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. Appellants contend: ,1.

Case 62 — Action by E. P. James against Butler County for Salary as County Judge. APPEAL FROM BUTLER CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1. The question raised by special demurrer is that of jurisdiction. Appellant county contends that the fiscal court of the county was a court of competent jurisdiction that this: matter was .brought before that court, adjudicated, and; that appellees’ .remedy was by appeal to the circuit court from that judgment. 2.

Case 63 — Action by the American Steel Hoop Company against Harry Guenti-ier to Recover for a- Carload of Iron S'old and Shipped to Defendant APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1.

Case 64 — Claim by Henry Engle eor Work Done by Him on a Public Highway in Perry County. APPEAL PROM PERRY CIRCUIT COURT. Claim Allowed by Circuit Court and Perry County Appeals.

<p>Case 65 — Suit by James A. Wallace against J. H. Hardwick as. Guardian of Floyd G. Clay, an Infant, Asking for the Sale, of a House and Lot Under Section 490 of the Civil Code.-^</p> <p>APPEAL FROM ESTILL CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>'This is a proceeding seeking a sale of ¡a house and lot in Irvine, Ky., under section 490 of the Civil Code, the property being owned by appellee, Wallace, and the infant, Floyd G. Clay. • |The appellee, Wallace, and the infant’s, Floyd 'Clay’s, mother were married in 1901. A short time thereafter the wife furnished 81,000 to 'build a house on a lot in Irvine, then owned by appellee, in consideration of which sum appellee made a deed to-his wife for a thousand-dollar interest in said house and lot. Mrs. Wallace died in May, 1902, leaving her infant son, Floyd G.. Clay, as her only child and heir. At the time of her death the house and lot was occupied by her and her husband and) the infant, Floyd, as their home. The infant, Floyd, and appellee are therefore joint owners of said house and lot, the infant having a thousand-dollar interest therein, and appellee owning the 'remaining interest therein. The court adjudged that the appellee has a homestead right in the interest of his deceased wife in said property and at the same time decreeing a sale of the entire property and permitting appellee to retain the $1,000 of the proceeds of the sale which belongs to the infant by executing bond1 for the repayment of same to the infant at the death of appellee.</p> <p>We submit that this is error.</p> <p>, Cur contention is that a homestead right is' simply a right to occupy, and a sale of same is an abandonment of such right. The statute provides that the “termination of the surviving consort’s right to the use of the homestead shall in no wise affect the right of the infant children,” and the judgment decreeing a sale of the property if the homestead right did exist, is absolutely void and the purchaser at such sale would take the property subject to the infant’s right to occupy same until the infant becomes of age.</p> <p>This property being owned jointly by the husband and wife and occupied by them at her death as their home, and the proof showing that it is worth $1,500, our contention is that the husband could not claim homestead in the $1,000 interest of his wife, but if he claimed a homestead in the joint property his own interest would be estimated in making up that exemption.</p> <p>We rest the case upon the ground that the infant can not be deprived of his right to occupy the homestead by the sale procured by appellee; and that a sale of it is. void as to the infant; and that appellee has lost his homestead right by procuring a 'sale thereof; that the interest of the surviving consort can not be sold except by agreement; and the infant can not agree; and if appellee is entitled to a homestead therein his own interest must be considered in making up that exemption; that he, having procured the sale, he is only entitled to curtesy in the proceeds; that the homestead could not be sold except for reinvestment; and it is not shown that a sale and reinvestment would be beneficial to the infant. Ky. .Stats., secs. 1707, 1708; S'aulsbury v. Sims, 79 I£y„ 527; Phipps v. Acton, 12 Bush, 375; Miles v. Hall, 12 Bush, 105; Civil Code, sec. 489, subsecs. 5, 490, 491, 492, sub-sec. 4.</p> <p>The real and only contention is as to what interest appellee has in the $1,000 put in by his deceased wife. He is entitled to a homestead, and as the property was sold without objection appellee is entitled to the use of the money during his life upon his making the payment to the infant safe so that the money will •be forthcoming at the death of appellee. The infant Floyd G. ‘Clay, does not reside with appellee, nor does the record show that he at any time resided with appellee. His father is alive and divorced from his mother, and is entitled to the custody, care and control of him, and there is no obligation on appellee to care and provide for him and hence he has no interest in the homestead.</p> <p>The act of 1894, now article 3, chapter 66, Kentucky Statutes, does not change the homestead right of the husband in the property occupied by the husband and wife jointly as a homestead, and he is not divested of his homestead right by a sale.</p>

Case 66 — Action by W. J. Loughridge, &c., against Moses Burkhart to Recover Land. APPEAL FROM HARLAN CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. This suit was instituted by appellees against appellant and his tenaut to recover possession of 100 acres of land. Appellant in ■his answer denies title in appellees and alleges that he is the owner of the whole 100 acres by purchase from Isaac Ingle, who purchased same from Wm.

Case 67 — Action by Peck-Williamson Heating and Ventilating-Company against the City of Ludlow foe Breach of Contract. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. We base our right to have this verdict and judgment set aside because: 1. The court erred in fixing the measure of damages. 2. The court erred in refusing to permit the introduction of evidence on the part of appellant as to the costs of making repairs on the furnace. 3.

<p>Case fiS — Prosecution against William Rowsey for Murder.—</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>Dependant Convicted and Appeals.</p> <p>The grounds on which we rely for a reversal in this ease are:</p> <p>1. Because the verdict is flagrantly against the law and testimony.</p> <p>2. Because the court erred in giving instructions Nos. 1 to 5 to the jury over appellant’s objections.</p> <p>3. Because the court erred in admitting the * affidavit called dying declarations of Sam Mastín to be read as evidence to the jury over appellant’s objection.</p> <p>' 4. Because the court permitted, over appellant’s objection, 'the witnesses Ella Glasscock, Mr. Glasscock, and Jess Mastin to testify and detail conversations they claim to have had with Rowsey, which in no way relate to the deceased or this case, and are highly prejudicial to appellant.</p> <p>5. Because of the discovery of new testimony after the trial that is of material benefit to appellant’s case.</p> <p>We submit that it was error in the court to give an instruction to the jury on the question of murder, in' the absence of any evidence showing malice or any ill feeling prior to the shooting, such instruction being misleading to the jury and prejudicial to the appellant. •</p> <p>The dying declarations were written at a tfme when deceased was in no ■ immediate danger of dying. They were written on the 14th of May, 1902, and he died on the 9th day of June thereafter. He says in it: “I have given up all hope of getting well. I make this as' a dying declaration. 'I am soon to meet my ¡Maker.”</p> <p>We submit that a verdict for twenty-one years in the penitentiary under the 'evidence in this case is harsh and cruel in the extreme, and entirely1 unwarranted by the testimony in the record.</p> <p>We do not deem it necessary to recite the testimony for the Commonwealth, which,“to our minds, thoroughly justifies the verdict.</p> <p>The jury were the judges of the testimony and have found the defendant guilty, and this court has frequently held that it will not reverse a verdict of guilty if there is any evidence to support it.</p> <p>We insist that there is ample evidence in.the record to warrant the giving of the instruction for murder. The appellant sought the difliculty and made threats against the deceased, after inviting the attack, and also evidence showing that appellant fired! the first shot.</p> <p>The dying declarations were made with full consciousness of impending death and hence admissible. Kennedy v. Com., 77 Ky., 353; Farris v. Com., 77 Ky., 363; Meredith v. Com., 57 Ky., 76; Ireland v. Com., 22 R., 478. ,</p>

<p>Passway — Dedication—Estoppel—Implied Acceptance — Long User —Private Way — Prescription.</p> <p>'Held: 1. A private passway can be acquired by prescription only by adverse user by the claimant or his predecessor ior at least fifteen years.</p> <p>2. An owner of realty, who allows the public to use it as a highway, , under a notorious claim of right, for a long period of years, is estopp’ed from denying a dedication to the public.</p> <p>.3. A dedication of a highway may be impliedly accepted by long-continued user by the public.</p>

<p>■Case 70 — Action by Knox against Goodpaster & Riohart for the Value of a Crop of Tobacco.</p> <p>APPEAL FROM BATH CIRCUIT COURT.</p> <p>.Judgment for Plaintiff and Defendant Richaet Appeals.</p> <p>SYNOPSIS OF QUESTIONS RAISED BY THIS BRIEF AND AUTHORITY CITED.</p> <p>1. All of the facts alleged by the appellant’s answer and amended answer are to be considered as admitted by the appellees’ demurrer.</p> <p>2. That the reception of and levy of the execution by the constable was valid and created a lien in favor of the appellant upon. Knox's one-half of the tobacco. Civ. Code, sec. 660; Ky. Stats-., sec. 1660.</p> <p>3. That the appellees were estopped by their acts from denying, the levy of the execution and creation1 of the lien. Foster v. Shreene, 6 Bush, 529-530.</p> <p>4. That the' appellee Goodpaster Was the bailee of the constable and could not set up a want of title as a justification of his refusal to deliver the. property. That his unauthorized sale of the property was a conversion of the property. Am. & Eng. Ency., vol. 3, 2d ed., pp. 758-759, 773-734.</p> <p>5. The appellant being the party in interest representing the bailor could ratify the sale and demand the proceeds of the sale and maintain his action of assumpsit therefor. Am. & Eng. Ency., vol. 3, 2d ed., p. 734.</p> <p>The constable who had and levied the execution of! appellant Richart on the interest of Knox in the. tobacco owned jointly by Knox and Goodpaster, failed to inventory and appraise the tobacco- pursuant to section 646, Civil Code, and failed to return-such inventory and appraisement with the execution to the office from which it issued. The answer .of the appellant failing to show that the constable performed his duty as required by the, code, the demurrer thereto was properly sustained.</p> <p>The amended answer alleging that Goodpaster told the constable that he would hold Knox’s tobacco and that Knox requested the constable not to sell it until he, Knox, commenced housekeeping and could claim the tobacco as exempt, and that Knox was thereby estopped to deny that a lien had been created by the attempted levy of the constable on Knox’s interest in the tobacco, did not cure the original answer, and the demurrer was property sustained to it also, and we submit that under the pleadings no lien is shown to have been created by the attempted levy ion. the interest of Knox in said tobacco. Civil Code, secs. 660, 646; Bedford v. Kesler, 15 R., 31; Victory v. iStrausbaugh, 78 Ky., 426; Dils v. Hatcher, 24 R., 827.</p>

<p>Husband and Wtfe — Married Woman’s Will — Right to Bequeath Personalty — Husband’s Consent — Fraud on Creditors — Remainders.</p> <p>Held: 1. General Statutes, article 4, chapter 52, section 15, provides that corporate stock transferred to a feme sole, and' expressed on the transfer book to be for ber 'use, could be disposed of by will with the consent of her husband, or without his consent if so expressed in the deed or will creating the trust. Kentucky Statutes, 1899, section 2147, converts all personalty of married women into separate estate, and confers power of deposition hy will, subject to the provisions of the act. ÍIeld, That a married woman can dispose of her personal estate by will, with the consent of her husband; the right having existed at common law, and not having been abridged by statute.</p> <p>2. Kentucky Statutes, 1899, section 1906, provides that every gift, conveyance, etc., of any estate, with intent to delay, hinder and defraud, shall be void as against creditors. Held, That the statute refers to property owned by the debtor, and it is no fraud as to his creditors Lor a husband to consent to a wife’s testamentary disposition of her personalty. •</p> <p>3. \Vhere a will gives testatrix’s daughter a bequest, with a provision that if the daughter die before testatrix or the daughter’s husband the legacy shall vest in the husband, the bequest in remainder takes effect pnly in the event of the death of the first taker before testatrix.</p>

<p>Married Woman — Right to Sue — Limitation—'Statutes—Implied Repeal. '</p> <p>Held: Kentucky Statutes, 1899, section 2506, providing that if, at the time the right of any person to bring an' action, for the recovery of real property accrued, such person was a married woman, she may, though the period of fifteen years has expired, bring an action within three years after such disability is removed, is not repealed by section 2128, providing that a married woman may take, acquire, and hold property, make contracts, and sue and be •sued, as a single woman, etc.</p>

<p>■Case 73 — 'Action by Martha Higgins against 'Clint Stokes and Others to Recover Land.</p> <p>APPEAL FROM GRAVES CIRCUIT COURT.</p> <p>From an Order Dismissing the Petition Plaintiff Appeals.</p> <p>The plaintiff, Martha Higgins, is the widow of .John Higgins, who died January 16, 1900. In December, 1876, her husbandl sold and conveyed a tract of land belonging to her in which she .refused to join, or in any manner release her interest therein.</p> <p>After the death of her husband she brought this suit for thei land upon the idea that limitation began to run against her at the death of her husband in January, 1900.</p> <p>The appellees in their answer plead that more than three years has elapsed since March 15, 1894, and claim that the statute of that date relative to the rights of married women, removed her disability and that she had but three years thereafter in which to bring her suit, more than fifteen years in all having elapsed since the sale of the land by her husband.</p> <p>Our contention is that said statute does not remove the wife’s disability in the sale of her land, and that her disability continued until the death of her husband.</p> <p>AUTHORITIES CITED.</p> <p>Onions v. Covington & Cin. Ry. Co., &c., 107 Ky., 154;'Bransom v. Thompson, 81 Ky., 387; Gregory v. Ford, 5 B. M., 471.</p> <p>Our contention is that under.our Married Woman’s Act of March 15, 1894, the wife holds and owns all her lands to her separate and exclusive use, free from the control of her husband, and may sue and be sued, concerning it, as a single woman; whereby, as a married woman, her “disability is removed,” not only authorizing', but requiring her to sue and to recover any such property she may claim to own as though such disability .had been removed by death or divorce of her husband, or by a judgment empowering her to sue and be sued as a femle sole. And in this case adverse possession having been held against appellant, and her cause of action having accrued for more than fifteen years prior to March 15, 1894, continuing ever since and for more than three years since her disability was removed, hen cause of action is barred by limitation beyond any 'saving clause of our statute.</p> <p>AUTHORITIES CITED.</p> <p>■Ky. >Stats., secs. 2127, 2128, 2505, 2508, 2525; 13 Am. & Eng. Ency. of Law (1st ed.., 739, 740 and authorities cited in note 6; Wood on Limitation (3d ed.) (by Gould, 1901), sec. 240; Cameron v. -Smith, 50 Cal., 303; Brown v. Cousens, 51 Me., 301; Acker v. Acker, 81 N. Y., 143; McDan'ell v. Landrum, 87 Ky., 407; .Bankston v. Crabtree Coal Mining Co., 95 Ky., 455; L. & N. R. R. Co. v. Thompson, 2 R., 1110; Sharp v. Stephens Committee, 21 R., 687; Bishop on the Written Laws, secs. 86, 113a, 118a, 123, 165; Kebbe v. Ditto, 93 U. S., 674, 680; Percy v. Cockrell, 4 U. S. (C. C. A. R.), 82-3, 85-6-7-8; Lowe v. Pox, 152 B. Duv., 667.</p>

<p>•Case 74 — ^Action by De Pauw University against Henry M. Johnson to Recover Property Claimed by .Plaintiffs Under the Will of William Holman, Deceased.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>'The record in this case discloses these facts:</p> <p>William Holman died in 1867, testate, leaving several pieces of real estate in Louisville, Ky. The lot on Jackson street, sold under judgment herein, was devised to two colored people, by name of Morgan, for life, and testator’s other estate was devised to his wife for life. The will then reads: “And after the death -of my beloved wife, Rachael M. Holman, everything given into the hands of the trustees of the -Grejencastle University in the State of Indiana, in trust, the proceeds of which may be used .only for the purposes of education of the descendants of George iHolman and Jacob Meek.”</p> <p>Greencastle University is now De Pauw University. The lot on Broadway was deeded to Rachael M. Solman for life, remainder to Asbury University (now De Pauw University) in. 1869, by deed of .Willis Francis and wife, “to be held in trust as required by the provisions of the null of William Holman, deceased.” It appears that-the property was purchased with the. proceeds of other property devised by the will of William Holman which had been sold by tha devisees, so that both piece's of property bought by the appellant, Johnson, are held by De Pauw University under the trust set out in William Holman’s will above set out.</p> <p>The effect of this devise is to create a perpetuity, and the devise is void unless the object is a charity. The property iS' to be held in trust “for the purposes of education of the descendants of George Holman and Jacob Meek.” We do not believe that this is^a charitable use, it being' for the benefit of a particular class of relatives of the testator. A title to the property soldi herein can not be supported except on the ground that this devise is valid. If the devise is void the title to the property sold is vested in the heirs of William Holman, deceased, and they are not before the court so as to be divested of title.</p> <p>These lots were sold by the commissioner of the J’efferson Circuit Court and purchased by appellant, Henry M. Johnson, and he has filed exceptions to the sale in order to test the title to the property.</p> <p>It further appears that in 1890 suit was filed by three of the heirs-at-law of William Holman, attacking the will on the ground that the trust was void as a perpetuity and was not a charity, but a mere private trust, to which a geineral demurrer was sustained, the court holding in a written opinion that the trust was-a charitable use and valid, and judgment was entered dismissing the petition, from which an appeal was prayed but never taken.</p> <p>We submit that the judgment in that case would mot make the matter res judicata on this appeal, as the three plaintiffs whof brought that suit for the benefit of all were not by any order of court allowed to so prosecute it for all. It is ®n account of this uncertainty that the appellant is unwilling to take title to the property until this court has passed upon the validity of this devise.</p> <p>The objection made to the title in this case is that the devise: to Greencastle (nów De Pauw) University is not a charitable use and hence is void for perpetuity. To this we reply:</p> <p>1. Res adjudicata. In the case of Holman v. De Pauw University, the record of which is embraced in this one, two of the heirs of William Holman, the 'devisor of the first estate, brought suit against De Pauw University for the benefit of themselves and all the heirs, making the allegations required by section 25 of the code and seeking to recover the property embraced in the ■trust on the ground that the will was void for .perpetuity. In this case Chancellor Edwards delivered an elaborate opinion holding the will valid and judgment was rendered dismissing the petition.</p> <p>The only objection made to the conclusiveness of this judgment, is that there was no order .authorizing the plaintiffs to sue on behalf of all the heirs. No authority was necessary. The code provides as follows:</p> <p>“.Section 25.' If the question involve a common or general interest of many persons, or if the parties b'e numerous and it is impracticable to bring all of them before! the court within a reasonable time, one or more may sue or defend for the benefit of all.”</p> <p>The right thus given is absolute and does not require any permission of court. The presumption in such cases is that the absent plaintiffs approve of and assent to the bringing of the suit. .Flint v. Sparr, 17 B. M., 499.</p> <p>2. The devise is a charitable use. In support of this proposition we refer to the able opinion of Chancellor Edwards which is copied into the record.</p> <p>As to the objection that the trust is “for the benefit of a particular class of relatives of the testator” we also refer to the cases of Gass v. Wilhite, 2 Dana, 170, and Ford v. Ford, 91 Ky., 572.</p> <p>In the first ease a trust for the benefit of the Society of Shakers was held to be a charitable use even though the creator of it was himself one of the beneficiaries. (</p> <p>In the Ford case it was held that a devise for the erection of a monument over the graves of the testator and his wife was a. charitable devise.</p> <p>We submit that the judgment below ought to be affirmed.</p>

<p>Case 75 — Action by Benjamin Johnson against, Charles M. Fleming, Commissioner, to Recover Plaintiff’s Share of .Money Raid Into Court. —</p> <p>APPEAL FROM FLEMING CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>The appellee as commissioner and receiver of the Fleming Circuit Court, received $482.90 for the appellant and deposited it in the Exchange Bank of David Wilson &' Co. The order of distribution was made January 18, 1896. The Exchange Bank broke February 13, 1896. Said bank was a private bank owned ■by David Wilson. We submit that the appellee was not diligent in paying out this money. There were three daily mails to the appellant’s postoffice, only five and a half miles from where appellee resided, and he could have sent a check for the money any day, which'is the usual way to pay out money. The appellee had no office in Flemingshurg, no place of business where appellant could find him. There was mo order of court requiring or directing him to put the money in bank. Section 411 of the Code says that the court may designate, by order, a bank — State or national — in which such money may he deposited, vyhich shall give bond with good 'security, &c. This was not done, hut the money was deposited in a private) hank without any bond or security.</p> <p>We claim that by the neglect of a plain duty and taking the law in his own hands, appellee has caused this loss to appellant. ■He has no right to' part with the custody of the money, 'save at his own ■ risk.</p> <p>AUTHORITIES CITED.</p> <p>Ky. .Stats., secs. 414, 411; Robinson v. Fleming, 90 D., 713; Wilson v. Mayer, 43 D., 719; Fieener v. Botts, 20 R., 633.</p> <p>The facts are as follows:</p> <p>By the sale of some land in a suit pending in the Fleming Circuit Court, the sum of $3,670.55 was realized and ordered to be distributed by the master commissioner of said court to the parties entitled thereto, the plaintiff being one of the number, his share being $482.90. The heirs being widely scattered, this money was, by the commissioner, on February 6, 1896, the same day it was received, deposited in the Exchange Bank ¡of David Wilson & Co. Notice was 'sent by appellee to plaintiff to call and get his money. On February 13, 1896, said bank made an as; signment for the benefit of its creditors, said fund being to the credit of appellee as commissioner. Said bank was, up to the time of its assignment, regarded, as solvent in the community and as a safe depository for money, and was the bank in whicE appellee deposited his individual money.</p> <p>We claim that appellee used reasonable care and diligence in the performance of his duty as commissioner, the same that he used or that any prudent person would use in transacting his own business, and is not liable for the loss of this money. The case was tried by a jury under proper instructions of the court as to appellee’s care and diligence and liability, and) the jury found that the appellee was not liable, and we submit that this finding should he affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Am. & Eng. Eucy. of Law, vol. 27, pp. 155, 156; Lewis on. Trust, vol. 1, p. 412; Gilmore v. Guenther, 4 Ky, Law Rep. 524.</p>

<p>Case 76 — Action by Lee Baskett and Others asainst R. C. Arnold iand the Farmers’ Bank and Tbust^ Co. as Trustee for Rankin Eastin to Enforce a Mortgage Lien on Boat and .Barges.</p> <p>■APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>From the Judgment Basket and Arnold Appeal and Eastin’s Trustee Prosecutes a Cross-Appeal.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>1. A barge is not such a vessel as is required to be registered under the maritime laws of the United States; is simply a chattel, and a mortgage given thereon should be recorded in the office .of the clerk of the county court in the county in which the said ■barge is kept. Rev. Stats. U. S., :sec. 4X32.</p> <p>2. A mortgage recorded in the proper office before proceedings in bankruptcy are instituted and before a creditor has acquired title to the mortgaged property is notice! to the world and good against a bankrupt, bis trustee or creditor. Com. v. Robinson, 96 Ky., 553.</p> <p>■3. An unrecorded mortgage is valid as against a bankrupt, his trustee or antecedent creditors. Rev. Stats. U. S., sec. 4192; Ky. Stats., sec. 496; Bridgford, Trustee, v. Barbour, etc., 78 Ky., 536; Todd v. Jiohnson, 90 Ky., 548; Bank of Commerce v. Payne, 10 Ky. Law Rep., 354; Milburn W.agon Co. v. Edwards, 7 Ky. Law Rep.,'835; Tandy v. Robbins, 8 Ky. Law Rep., 265 Cyc. of Law and Procedure, vol. 4, p. 218; In re Boazman, 2 Am. Bankr. Rep., 809; Kelley v. 49 N. Y., 595; Cook v. Tullis, 18 Wall. (U. S.), 332;'Ex parte Dalb j, 1 Lowell (U. S1.), 431; Cyc. of Law and Procedure, vol. 5, p. 342; Exchange and Deposit Bank of Owingsviile v. Slone, 78 Ky., 121; Casey v. La iSociete De Credit Mobilter, 2 Woods (U. S.), 77; Donaldson v. Farwell, 93 U. -S., 631; Winson v. McLellan, 2 .Story (U. S.), 492; Potter v. Coggeshall, 19 Fed. Cas. No. 11, 322; Lorzeas v. Porier, 7 'Rep. (Pa.), 216;-Baldwin v. Crow, 86 Ky., 679; Klein v. Bensent, 0.6 R., 349; Jones Stationery Go. v. Jeffrey, 9 R., 148.</p> <p>4. Where a creditor has endeavored to obtain a fraudulent preference by joining in the conveyance of the insolvent debtor’s estate, such conveyances being void, bis claim should be postponed to claims of other creditors. Parker v. Wilcox, 3 R., 386.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. Acts of bankruptcy do not invalidate sales, mortgages or assignments made in good faith and for a valuable consideration, though recorded within four months of the adjudication in bank- ’ ruptcy. Clark v. Hezakiak, 24 Fed. Rep., 663; Goss v. Coffin, 22-A. R., 585; Stuart v. Platt, 101 U. S., 818, L. C. ed.; Dudley v. Eastin, 104 U. S., 669; 95 U. S., 590; 14 Wal., Book 20, 800; ,15'Wal., 198; Collier on Bankruptcy, 299, 312, 321, 375, 381, 40"8, 422; In re Wright, 96 Fed. Rep., 187; In re Adams, 97 Fed. Rep., 188; SI Ky., 123; 86 Ky., 679; 101 Fed. Rep., 413; Bordes v. First National Bank, 178 U. S., 1177, L. C. Ed.; Bankrupt Act of 1898, secs. 67, 70.</p> <p>2. Fraud. Notice. Summers v. Taylor, 80 Ky., 429; Beckett v. Sawyers, 91 Ky., 106; Ky. S'tats., sec. 1906; Edwards v. Tandy, 78 Ky., 168,</p> <p>3. Liens. 9 N. E., 707, Winchester Wagon Works v. iCarmen, 107 Ind.;,Short v. Tinsley, 1 Met, 397; Southworth v. Casey, 78 Ky., 395, 105.</p> <p>4. Judgment for use of boat and barges. Lillard v. Whittaker, 3 Bibb., 92; Green v. Powell, 1 B„ 499; 14 Bush, 658; 78 Ky., 42; Sutherland on Damages, yol. 3, sec. 114.</p> <p>5. Recording. IT. S. Rev. Stats., sec. 4192; 74 U. S., 211, L. C. Ed.; 75 U. S., 473; 100 U. S., 520; 53 A. R., 436.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where the vendor and vendee of certain personal property were close friends; proposing to stick to each other; in constant correspondence with each other; the one the debtor, the other his creditor; the debtor insolvent; and an instrument of writing was executed purporting to be a bill of sale of a boat and barges worth $9,000 to $14,000, the consideration being $2,500 cash and $538 old debt; the vendee being a boat builder, skilled in the knowledge of the' values thereof and having built some of said barges; .there being no delivery of said bill of sale or said boat and barges to the vendee, the vendor remaining in p>osse.s>sion, and there being no visible change of possession; the said hill of sale, with a policy of insurance payable to the vendor, with loss clause payable to the vendee, as .hisi interest might appear, being placed in' escrow with a third party, deliverable only on the joint order of the vendor and vendee; the said bill of sale and insurance policy, with the consent of the vendee being subsequently withdrawn froml the hand of the escrowant; the loss clause on the policy which had been made payable to the vendee, as his interest might appear, being then canceled, the vendee having no, further interest therein; the continued possession of said bill of sale and 'boat and barges by said vendor for eight months — until after his failure; his then delivery of the, boat and barges to a receiver, appointed on the ground of insolvency, to take charge of certain of his property, with a statement under oath that said boat and barges belonged to him, the vendor; his subsequent delivery of the bill of sale to the vendee; with letters from the vendor to the vendee about that time, saying the vendor would “tie” to the vendee throughout the whole matter; keeping the vendee advised in all details of the attacks to he made upon the bill of sale by creditors and all details of the business; the vendee taking possession of the boat and barges, because the receiver was not entitled to hold them under the order of his appointment; the vendee buying in the’ other-property of the vendor, sold at the trustee’s sale, the vendor then appearing in the role of manager thereof in the employment of the vendee; books and letters of the vendor disclosing a loan, if anything, instead of a sale of the boats; both vendor and vendee making contradictory statements in material matters, dodging, evading and not remembering important matters and details — with other incidental facts concerning -the transaction, the allegations that a transfer was made under that bill of sale with intent to hinder’, delay and defraud the creditors of the vendor, and that the facts were known to the vendee, and that he participated in the fraud, are 'sustained.</p> <p>Whether the bankruptcy act, the statutes! of Indiana, or the ■statutes of Kentucky are applied to such a case, the facts show such fraud as will avoid the transfer of the vendor to the vendee in favor of the trustee in bankruptcy for the benefit of creditors, and that without restitution to the vendee. 8 Am. &-Eng. Ency. of Law (1st ed.), title “Fraudulent Debtors,” pp. 781-4; Bump’s Fraud. Con., 4th- (Gray) ed.,- secs. 612-614; Bankruptcy Act .1898, sees. 70a, 4, 67e, 60-a, b, 57g, 1(25) 67a, d, 1 (15) 3a, 3b, 1; Brandenburg on Bankruptcy, 3d ed. sec. 1104, and cases cited'; Collier on Bankruptcy, 3d ed., 32, and cases cited; ,Ke Nugent, ■184 II. S., 1; He David A. Sachs, Sup. Ct., advance sheets Law. Co-op. Ed., June 15, 1903; Rev. Stats. II. S., secs. 4141, 4192; White’s Bank v. Smith, 7 Wall., 646; Morgan v. Parham, 16 Wall., 476; Burns’ Ind. Statutes, secs. 6638, 6636, 6649; Granger v. Adams, 90 Ind., 87; Seidner v. Bible, 43 Ind., 230; State v. Griffin, 16 Ind. App. Rep., 558; Ames v. Warren, 76 Ind., 512; Geisendorff v. Eagles, 70 Ind., 414; Rose v. Collier, 76 'ind., 591; Powell v. Stiekney, SO Ind., 310 (citing Bump’s Fraud. Con., 62; Kane v. Drake, 27 Ind., 29); Seavey v. Walker, 108 Ind., 78; St. Joseph, &c,. v. Wilson, 133 Ind., 465; Stinson v. Minor, 34 Ind., 89; Ky. S'tats., sec. 1906; Wood v. Goff’s Curator, 7 Bush, 63; Short v. Tinsley, 1 Met. (Ky.), 397; Whitaker v. Garnett, 3 Bush, 402; 1 Johnson’s Chy. Rep., 478; Huffman v. Leslie, 22 Ky. Law Rep., 1982; Violett v. Violett, 2 Dana, 323; Summers v. Taylor, 80 Ky., 429; White v. Graves, 7 J. J. Mar., ■527; Ky. cases under Act of 1867: Anderson’s Assignee v. Anderson, 80 Ky., 03S; Stark’s v. Curd, 88 Ky., 164; Eversole v. Adams, 10 Bush, 83; Linthicum v. Fenley, 11 Bush, 131; Boone v. Hall, 7 Bush, 67; Northern Bank v. Cooke, 13 Bush, 340.</p> <p>2. A creditor guilty of hctu'al fraud in receiving a preference is not allowed to share in the estate till the other creditors are satisfied. White v. Graves, 7 J. J. Mar., 527.</p> <p>3. Indiana statute as to sale of “goods” in fraud of creditors includes horses, cows, buildings and steamboats. .St. Joseph, &c., V. Wilson, 133' Ind., 465; Stinson v. Minor, 34 Ind., 89.</p> <p>4.. Sales in fraud of creditors under Indiana statutes set aside: iGeisendorff v. Eagles, 70 Ind., 414; Rose v. Collier, 7-6 Ind., 591; Powell v. Stickney, 80 Ind., 310; Kane y. Drake, 27 Ind., 29; Seavey v. Walker, 108 Ind., 78. ■</p> <p>5. Mortgage under Indiana statutes is void as to creditors unless recorded within ten days, as required by the statute. Granger v. Adams, 90 Ind., 87; Seidner v. Bible, 43 Ind., 230; State v. Griffin, 16 Ind. App. Rep., 558; Ames v. Warren, 76 Ind., 512.</p> <p>6. Sales in fraud of creditors under -Kentucky statutes set aside. Ky. ©tats., 1906; Wood v. Goff’s Curator, 7 Bush, 63; Short v. Tinsley, 1 Met., 397;'’' Whitaker v. Garnett, 3 Bush, 402; 1 Johnson’s Chy. Rep., 478; Huffman v. Leslie, Ky. Law Rep., 1982; Violett y. Violett, 2 Dana, 323; Summers v. Taylor, 80 Ky.; 429.</p> <p>7. The date of the record of the instrument is the date from which the limitation of four months begins to run as to preferences and fraudulent conveyances under the bankruptcy act. But transfers void under State laws) as in- fraud of creditors may be attacked and set aside under those laws. Bankruptcy Act, IS98, secs. 67e, 60a, b, 57g, 1 (25), 3b (1), 67a, 67d; Collier on Bankruptcy (3d ed.), 44.</p> <p>8. Statutes as to recording must be followed to the letter under section 67e, Bankruptcy Act. Chesapeake, &c., Co. v. Seidner, 122 Fed., 592.</p> <p>9. The failure to record a mortgage, executed many months before, ■until after the debtor has gone into the hands of a receiver on the ground of insolvency when the effect of the enforcement of the instrument will be to give to the person claiming thereunder a greater percentage of his indebtedness than other creditors of the sarnie class, is fatal to thie instrument as security for the ¡debt under the provisions of the bankrupt act, where -the State laws “¡require” ¡or “permit” such instruments to be recorded in order to impart notice, and it must be -deemed a -preference thereunder and therefore set aside. Bankrupt Act, 1898, secs. 57g, 60a and b, 67a, d, e; Pirie v. -Chicago, &c., Co., 182 TJ. S., 438; Chesapeake, &c., Co. v. -Seidner, 122 Fed., 692.</p> <p>10. ’Tugs and barges are “vessels” within thei provisions of the statutes of the United States. Seo. 3, R. S. U. S.; 1 Am. and Eng. Ency. of Law (2d ed.), 655; Disbrow v. Walsh, 36 Fed., 607.</p> <p>¿1. Vessels of the United States must be enrolled at the home port of the owner. Bills of sale, mortgages, etc., must also be there recorded. That port is the one nearest the residence of the owner or managing owner of the craft. Evansville is ' the home port for a resident of 'Evansville, while ¡Louisville is the home port for a resident of Leavenworth, Indiana. Sec. 2568, R. S. U. .S.; sec. 4141, R. S. U. S.; sec. 4192, R.¡ ,S. U. S.-, ¡White’s Bank v. Smith, '7 Wall., 646; Morgan v. Parham, 16 Wall., 476.</p> <p>12. Courts will take judicial cognizance of geographical positions and distances. II. .9. v. La Vengeance, 8 Dali., 297; The Appollon, 9 Wheat., 374; Peyroux v. Howard, 7 Pet., 342; Brown v. Piper, 91 U. S., 37.</p> <p>13. One can not be a claimant to the ownership and a claimant to lien upon the same property at the same time in the same suit unless he shall plead alternatively, such a state of .facts as makes his relationship to the property doubtful, and thereby* entitle him to aid from the court to determine his relationship. In the absence of suSh state 'of facts, a party can not prosecute an appeal from a judgment dismissing his claim to title% and at the same time by amended pleading set up liens against the property, and the objection to the amended! pleading should have been sustained. 19 Am. & Eng. Ency. Law, 2d ed., 11; Arnold v. Delano, 4 Cush.. (Mass.), 38; Lickborrow v. Mason, 6 East., 21 (note).</p> <p>14. To recover rentals, demand is unnecessary in a suit to •set aside a fraudulent conveyance. A lease containing a clause preserving all rights of both parties as to ownership of the property in dispute makes demand unnecessary, as such clause gives notice and constitutes the essential element of demand. But even if necessary, demand! was waived by pleading and going to the •proof and judgment without, objection that demand! was not alleged. Farmers’ & Traders’ Bank v. F. & D. Co., 22 Ky. Law Rep., 22.</p> <p>.15. The administration of - a bankrupt’s estate is exclusively within the jurisdiction of the bankruptcy courts. On adjudication all the bankrupt’s property vests in the trustee, except that which is exempt under iState laws. Re Nugent, 184 U. -S., 1; Re David A. Sachs (Sup. Ct.), Advance Sheets Law Co-op., Ed. June 15, 1903; Boone v. Hall, 7 Bush, 67.</p> <p>16. Where a court cam not have jurisdiction over* the subject-matter of the action, consent can not give .jurisdiction. Brown v. McKee, 1 J. J. Mar., 472; Barton v. Barton, 80 Ky., 214; Newman's PL & Pr„ 47-53.</p> <p>17. The State court has no jurisdiction to> enforce maritime liens. It has jurisdiction to try the question raf title under fraudulent conveyances; and also over a mortgage upon the craft which is a mere security for a debt. Taylor v. Carryl, 61 U. .S., 583; Moran v. Sturges, 154 U. S., 258; The Glide, 167 TJ. S., 606; 2 Jones on Liens (2d ed.), ¡sees. 1729-30; The John Jay,. 17- How., 399; Schuchardt v. Babbage, 19 How., 239. ' ■</p> <p>18. State courts have jurisdiction of suits by trustees! in bankruptcy to recover property fraudulently conveyed and preferences in fraud of the act. Anderson’s Assignee v. Anderson, 80 Ky., 638; ¡Starks v. Curd, 88 Ky., 164; Eversole & McCarty v. Adams, 10 Bush, 83; Linthicum-v. Fenley, 11 Bush, 131; Boone v. Hall, 7 Bush, 67; Northern Bank v. Cooke, 13 Bush, 340.</p> <p>19. The defense of a dona fide purchaser for value must allege specifically the facts constituting the dona fides, and must .make out his case in the proof. Boone v. Chiles, 10 Pet., 211.</p> <p>1. The transfer of the property involved in this suit was contrary to subdivisions 1 and 2, section 3, of the Bankruptcy Act, which are as follows:</p> <p>“Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed .or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay ¡or defraud his creditors or any of them; or,</p> <p>(2) transferred while insolvent any portion of his property to one or more of his creditors, with intent to prefer such creditors over his other creditors.”</p> <p>The intent of the debtor is conclusively .presumed. from the result. Sec. 60a.</p> <p>It is only necessary that the creditor s’halfo have reasonable-cause to believe that a preference was intended. ,Sec. 60b. “Claims which for want of -record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens' against his estate.” Sec. 67a.</p> <p>,, Liens in good faith upon a present consideration! are not good unless reco-rded, if record thereof was necessary to impart notice.. ¡See. 67c.</p> <p>Such record was necessary. -Sec. 4192 U. IS. ¡Statutes. Property transferred in violation of the act “remains a part of the assets, etc., of the bankrupt, and passes to- the trustee.” •Sec. 67e. ,</p> <p>¡Section 57g: “The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences. Carson-, Pirie & Co. v. Chicago Title, &e., Co., 182 U. S., 438; 45 1. ed., 1171, 21 Sup. Ct. Rep., 906.</p> <p>In section 60a, it is provided: “A person ¡shall be deemed to-hare given a preference, if, being solvent, he has procured or suffered a judgment to be entered against him in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage ¡of his debts than any other of such creditors of the same class.” Sub-division b. provides that if the person receiving such preference, or to be benefited thereby, shall have' had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.</p> <p>" 2. Insolvency. 'Sec. 1, subdiv. 15, of the Bankruptcy Act.</p> <p>8. What is sufficient notice to a creditor. Toof v. .Martin, 13 Wall., 40; Rice v. Melendy, 41 la., 399; iScammon v. ¡Cole, 3 Clie. 472, Fed. Cas. No. 12, 432; Grant v. Bank, 97 U. S., 80; .Stucky v. Bank, 108 U. S., 74; May v. 'Le Claire, 18 Fed., 164; Otis v. Hadley, 112 Mass., 100.</p> <p>. (Cases cited in section 60 and 199 and succeeding pages of Black on Bankruptcy.</p> <p>The bill of sale of the boat should have been recorded as required by section 4192 of the U. S. Statutes.</p> <p>No bill of sale is valid under the foregoing section except as to the grantor, his heirs and devisees, and persons having actual notice unless recorded.</p> <p>4. The Edgar should have bean -registered at Louisville instead -of Evansville. U. S. Revised Statutes, sec. 441; White’s Bank v. Smith, 7 Wall., 646; Morgan v. Parham, 17 Wall., 476.</p> <p>,5. Registration at Evansville was a nullity and was insufficient to impart notice. 20 Ency. (1st ed.), 548, 549; Astor v. Wells, 4 Wheat. (U. S.), 466; Garrison v. Haydon, 1 J. J. Marsh. (Ky.),*222; 19 Am. Dec., 70; .Stewart v. MeSweney, 14 Wis., 468; Bell v. Fry, 5 Dana. (Ky.), 344; Bither v. Buswell, 51 Me., 601; ■Cohen v. Barton (Md. 1891), 21 Atl. Rep., 63; London v. You-mans, 31 S. Car., 147; Davis v. Loftin 6 Tex., 489; Vaughn y. Bell, 9 B. Mon. (Ky.), 477; Singleton v. Young, 3 Dana (Ky.), 559; /Reynolds v. Case, 60 Mich., 76; Powers v. Freeman, 2 Lams. (N. Y.), 127.</p> <p>6. The transfer to Arnold is void under subdivision 2, sec. 67 of the Bankruptcy Act.</p> <p>7. Notice of fraudulent intent. 14 Ency. (2d ed.), 289; Bump on Fraud. Con., sec. 183; 'see collection of eases on page 210, Bump; McFadden v. Ross, 126 Ind., 341.</p> <p>8. Knowledge by Arnold of lEastin’s intention is sufficient without former’s participation. Huffman v. Leslie, 66 S'. W., 822, late Ky. case; Bump, sec. 184.</p> <p>9. Knowledge of facts sufficient to excite the suspicions of a prudent man, and to- put him on 'inquiry. Mills v. Howeth, 19 Tex., 257, 70 Am. Dec., 331; Green v. Tantum, 19 N. J. Eq., .105, s. c., 21 N. J. Eq., 364; Jackson v. Mather 7 -Cow., 301; Smith v. Henry, 2 Bailey, 118, s. c., 1 Hill, 16; Avery v. Johann, 27 Wis., 246; Hathaway v. Brown, 18 Minn., 414; Nichiols v. Crittenden, 55 Geo., 497; Phillips v. Reitz, 16 Kans., 396; Burnham - v. Brennan, 42 N. Y. Sup., 49; Massie v. Engart, 32 Ark., 251; State v. Eertel, 6 Mo. App., 6; Simms v. Morse, 2 Fed. Rep., 325; ¡Stix v. Keith, 85 Ala., 465, 5 So., 1S4; Hatchings-v. Harcrow, 49 Ark., 20, 3 S. W., 884; Knower v. Hadden Clothing Co., 57 Conn., 202, 17 Atl., 580; Heaton v. Prather, 84 111., 330; Redhead v. ¡Pratt, 72 la., 99, 33 N. W., 3S2; Gollober v. Martin, 33 Kans.,. 252, 6 Pac., 267; Biddinger v. Wiland, 67 Md., 259, 10 Atl., 202; ‘Shaw v. -Spencer, 100 Mass., 390; Kitch v. St. L. K. H. & N.^Ry. Co., 69 Mo., 224; Holcombe v. Ehrmauntraut, 46 Minn., 397, 49 N. W., 191; McVeigh v. Baxter, 82 Mo., 518; Frederic v. All-gaier, 88 Mo., 598; Moore v. Williamson, 44 N. J. Eq., 496; 1 L. R. A., 336, 15 Atl., 587; Beels v. Flynn, 28 Neb., 575, 44 N. W., ■732; Bollman v. Lucas, 22 Neb., 796, 36 N. W., 465; Edwards v. Ried, 39 Neb., 645, 58 N. W-, 202; Blum v. Simpson, 71 Tex., 628, 9 S. W., 662; Hickman v. Trout, 83 Va., 478, S. E., 131; Batchelder v. White, 80 Va., 103; Rindskopf v. Myers, 87 Wis., 80, 57 N. W, 967; Bartles v. Gibson, 17 Fed., 597; .Singer v. Jacobs, 11 Fed.. 361.</p> <p>10. This transaction was had at Leavenworth, Indiana. The law ¡of that State as to means of knowledge should, be consulted, Wright v. Brandis, 1 Ind., 336; Pow v. Beekner, 3 Ind., 476; Peck v. Hunter, 7 Ind., 299; see specifications following.</p> <p>11. Badges of frauds. Secs. 63-65, Bump.</p> <p>(1) Failure to pay taxes. Bulkley v. -Buffington, 5 McLean,, 457; Judge v. Vogel, 38 Mich., 569; Greenback v. Ferguson, 58 Fed., IS; S'hober 'v. Wheeler, 113 N. H., 370, 18 S. E., 328.</p> <p>(2) Inadequacy of consideration. Sec. 57, Bump; Yoder v. Standiford, 7 Mon., 478; -Bowles v. Shoenberger, 2 B. Mon., 372; Trimble v. Ratcliffe, 9 B. Mon., 511; 12 B. Mon., 32; Twine’s Case, 3 Rep., 80b; May on Fraud. Con., p. 87; 14 Ency. (2d ed.), 516, 517, 518; Oppenheimer v. Guckenheimer, 39 Fla., 617.</p> <p>(3) Subsequent employment of Eastin by Arnold. 14 Ency., p. 516 (2d ed.).</p> <p>(4) Retention iof possession by Eastin. Dale v. Arnold, 2 Bibb.. (Ky.), 605; Hughes v. Eastin, 4 J-. J. Marsh. (Ky.), 572, 20 Am. Dec., 230; Arnold v. Com., 8 B. Mon. (Ky.), Ill; Neal v. Robertson, 2 Dana (Ky.), 87; Meredith v. Sanders, 2 Bibb. (Ky.), 101; Enders v. Williams, 1 Met. (Ky.), 346; Foster v. Griggsby, 1 Bush. (Ky.)., 86; Dan,iel v. Morrison, 6 Dana, (Ky.), 182; Kennedy v. Covington, 4 J. J. Marsh. (Ky.), 538; Stephens v. Barnett, 7 Dana (Ky.), 257; Vanmeter v. Estill, 78 Ky., 456; Morton v. Ragan, 5 Bush (Ky.), 334; Kenton v. Ratcliff (Ky., 1899), 49 S. W. Rep., 14; Jarvis v. Davis, 14 B. Mon. Ky., 124; "Waller v. Cralle, 8 B. Mon. (Ky.), 11; Brummel v. Stockton, 3 Dana (Ky.), 135; Robbins v. Oldham, 1 Duv. (Ky.), 28; Cummins v. Griggs, 2 Duv. (Ky.), 87, 87 Am. Dec., 482; Anthony v. Wade, 1 Bush. (Ky.), 110; Allen v. Johnson, 4 J. J. Marsh. (Ky.), 235; Woodrow v. Davis, 2 B. Mon. (Ky.), 298; Kendall v. Hughes, 7 B. Mon. (Ky.), 36S; Wash v. Medley, 1 Dana (Ky.), 269; Van Meter v. Estill, 78 Ky., 456.</p> <p>(5) Buying .property for which the purchaser has no apparent use. 14 Ency., p. 516 (2d ed.); Grubbs v. Greer, 5 Coldw. (Tenn.), 160; Mobile Bank v. Harris, 6 La., 811.</p> <p>12. (Sufficiency of evidence. Lutkenhoffl v. Lutkenhoff (Ky., 1891), 17 S'. W. Rep., 863; Daniel v. Brandenby (Ky., 1891), 20 S. W. Rep., 255; Carroll v. Ward (Ky., 1894), 25 S. W. Rep., 6; BurgrofE v. Bagby (Ky., 1893), 32 S. W. Rep., 940; Brandenburg v. Louisville, &c., Co. (Ky., 1896), 36 S. W. Rep., 7; Hirseh v. Norion, 115 Ind., 541; Long v. Stockwell, 55 N. H., 561.</p>

<p>Case 77 — ¡Separate Actions by the Commonwealth and by the City op Louisville against the Young Men’s Christian Association to Recover Taxes on Property Owned by .Said Association.—</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>From Judgments foe Defendants in Each Case Plaintiffs Appeal.</p> <p>The only question which the pleadings raise for the determination of the court is whether appellee’s property, or either parcel thereof, is exempt from! taxation under the provisions of the 'Constitution, and the statute enacted in pursuance thereof.</p> <p>The appellee’s contention is that it is exempt from taxation on three separate and'distinct grounds: (1) Because it is a place actually used for religious worship; (2) because it is an institution of education not used or employed for gain, &c., and (3) because it is an institution of purely public charity.</p> <p>•1. Is it exempt for religious uses? The language of the 'Constitution is:</p> <p>“There shall be exempt from taxation . . . places actually used for religious worship, with: the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one-half acre in cities and towns. . . .</p> <p>The language of the response pertinent is:</p> <p>‘‘Since the association has occupied its present building ¡above mentioned, said services! (religious) have been conducted usually in a large room known as the chapel on the second floor . . . but :said services have lately been held, and during the summer ■months of the year will perhaps generally be held, in the room situated in the basement of said building-, and occupying the whole of the northeast part of the building, and known as the “gymnasium.”</p> <p>■I wish to draw the 'court’s attention sharply to two points: (I) The response does not say that it was so used on the 15th day of September of the years mentioned in the statement. It does not claim that it had two rooms in use at the same time for religious purposes, and the s15th day of .September fixes the liability of the room, that was not in use; and (2)' it does not show that the same room, for instance the gymnasium, is not concurrently used for other than religious purposes, and construing against the pleader we assume that other uses were made of the rooms in which religious devotions' were conducted. We submit, therefore, that the response does not bring a single room within the exception.</p> <p>■Certainly no other room than that used for' religious purposes would be exempt, for it is- the use and. not the ownership that determines. ,</p> <p>It makes no difference whether business rooms or business houses are built on the same half-acre lot under different roofs; or under the same roof. Although the store rooms and gymnasium and school rooms, belong toi the. defendant, and are even under the same roof as the room; in which they hold religious services, yet when they have a different use they are liable for taxation. We think that the exception in the Constitution refers to churches only, certainly not to sewing machine stores, dry goods stores, &c„ which can not be said to be appurtenant to a house of religious worship. At most, the defendant would have to value the room in which the religious worship was con- ' ducted, and have that much of its property,, exempted.</p> <p>2. Is the appellee an institution of purelly public charity?</p> <p>We submit that the evidence shows (1) that the payroll of the officers and employes of appellee approximate $590 a month; (2) the total receipts of the institution for the year ending June 30, 1900, were $21,361.12; (3) the lockers in. the gymnasium are rented to the members, for which they pay extra $1 per year; (4) the towels are charged for extra also .to the members; (5) none of the privileges of the gymnasium are open gratuitously to the public at large; (6) the privileges of tjie barber shop are open to the public and thoise who.- patronize it must pay for the service rendered.</p> <p>From this statement of -facts it is impossible to reach the conclusion that the appellee is an institution of purely or wholly public charity.</p> <p>AUTHORITIES CITED.</p> <p>Trustees of Ky. Female Orphans’ School v. City of Louisville, 100 Ky., 470; City of Newport v. Masonic Temple Assn., 21 R., 1785; Young ’Men’s Protestant Temperance and Benevolent Assn. v. Fall River, 160 Mass., 409; Young Men’s Christian Assn. v. Paterson, 61 N. J. L., 420; - Auburn v. Young Men’s Christian Assn., 86 Me.,. 244; Philadelphia v. Masonic Home of Philadelphia, 160 'Pa., 572; Barbee v. City of Dallas, 64 S. W., 1018; Book Agents of the Methodist Episcopal Church v. Hinton, 21 S. W., 321; Bosworth, Sheriff, v. Chautauqua Assembly, 65 S. W., 602; Broadway Christian Church v. Commonwealth, Trustees -of Broadway Christian Church v. Gross, 66 S. W., 32; Widows’ and Orphans' Home of Odd Fellows -of Kentucky v. Bosworth, Sheriff, 70 S. W., 280.</p> <p>AUTHORITIES CITED.</p> <p>1. The exemption from taxation of public property and the property of churches, schools and other/ institutions devoted exclusively to the public good is not the exception but the rule; and statutes to this effect ought to receive a fair and reasonable construction. Yale University v.1 New Haven, 71 Conn., 316, 42 Alt. Rep., 87, 92; State v. Collector of Jersey City, 24 N. J. ¡L., 108, 120; Association for Colored Orphans v. Mayor of N. Y., 104 N. Y„ 581, 586, 12 N. E. R„ 279, 281.</p> <p>2. The Young Men’s Christian Association is an “institution of purely public charity.” Trustees of Ky. Female Orphan School v. City of Louisville, 100 Ky., 470;' City of Louisville v. Board of Nazareth, &c., 100 Ky., 518; Gerke v. Purcell, 25 Ohio St., 240; Episcopal Academy v. Philadelphia; 150 Pa. St., 565; Philadelphia v. Women’s Christian Association, 125 Pa. St, 579.</p> <p>3. Contemporaneous construction. Clark’s Run Turnpike 'Co. v. Com., 96 Ky., 525.</p> <p>4. Authorities explained. City of Newport v. Masonic Temple Assn., 21 Ky. Law Rep., 1785; Odd Fellows v. Bosworth, 23 ■Ky. Law R®P-, 1505; Com. v. Lexington Cemetery, 24 Ky. Law Rep., 924; Gray St. Infirmary v. City of Louisville, 23 Ky. Law Rep., 1274; Auburn v. Y. M. C. A., 86 Me., 244, 29 Atl. Rep., 992; State v. Patterson, 61 N. J. L., 420, 39 Atl. Rep., 655;</p> <p>SYNOPSIS AND LIST OF AUTHORITIES.</p> <p>1. The building of appellee is “a place actually used for religious worship.” Const, of Ky., sec. .170; Opinion, of J'udge .Sterling B. Toney in City of Louisville v. Y. M. C. A.</p> <p>2. The appellee is in an important sense an institution of ■education. Bosworth, Sheriff, v. Ky. Chautauqua Assembly, 23 R„ 1393.</p> <p>3. Appellee is an institution of purely public charity.</p> <p>(1) Definitions of purely public charities. Trustees of Ky. Female Orphan School v. City of Louisville, 100 Ky., 470; Am. & Eng. Ency. of Law, 2d ed., vol. 5, p. 894; Ibid., p. 897; Vidal v. Girard, 2 How. (U. S.), 127; Ford, &c„ v. Ford’s Ex’r, 91 Ky., 572.</p> <p>(2) The facts of this case show clearly that appellee comes within the approved definitions of a purely public charity.</p> <p>(3) The charges made by appellee do not deprive it of this character. Philadelphia v. Women’s Christian Assn., 125 Pa. iSt., 572.</p> <p>(4) Appellee’s membership regulation does not destroy its character as a purely public charity. Donnahugh’s Appeal, 86 Pa. >St„ .306.</p> <p>(5) Appellee contrasted with .mutual' benefit associations. City of Newport v. Masonic Temple Assn., 21 R., 1785.</p> <p>(6) The property of appellee does not belong to the so-called members, and would not go to them upon a dissolution of the association, and the public has the right (which would be'protected by the courts) to have the charity properly applied. Ky. ©tats., sec. 323; Ency. PI. & Pr„ vol. 22, pp. 204 and 205; Chambers v. Baptist Educational Society, 1 B. Mon., 215? Bap. Church v. Presbyterian Church, 18 B. Mon., 635; Fitterer v. Crawford, .50 L. R, A.. 191.</p> <p>(7) All of appellee’s property is exempt. Trustees of Ky. Female Orphan School v. City of Louisville, supra; Methodist Episcopal Church /South v. Hinton (Tenn.), 19 L. R. A., 289.</p> <p>(8) It would be competent to support by taxation such an institution as the appellee.</p> <p>(9) The cases following the leading case in Kentucky strengthen our contention. City of Louisville v. Nazareth Literary and ¡Benevolent Institution and other cases heard with it, 100 Ky., 518.</p> <p>(10) In other States the Young Men’s Christian Association is regarded as a charitable institution. American /Sunday-school Union v. Taylor, 161 Pa., 307, 23 L. R. A., 695; Y. M. C. A. of Omaha v. Douglass County, 60 Neb., 642, 52 L. R. A., 123; City of Auburn v. Y. M. C. A., 29 Atl., 992; State v. Patterson, 39 Atl., 655, distinguished.</p> <p>(11) The rule that exempxions from taxation are strictly construed is not applicable to this case. Trustees Female Orphan 'School v. City of Louisville, supra; 12'Am. & Eng. Ency. of Law, 2d ed., 306; Yale University v. New Haven, 71 Conn., 316, 43 L. R. A., 490.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. The preamble to the act incorporating appellee shows the religious, moral and intellectual purposes and gives character to the entire act of incorporation. Sutherland on Statutory Construction-, secs. 212-213-247.</p> <p>2. Contemporary .construction and official usage for a long ■period by the persons charged with the administration of a law .are among the legitimate aids in thei interpretation of statutes. /Sutherland on Statutory Construction, sec. 309. Cases criticized and explained: City of Newport v. Masonic Temple Co., 21 R., 1785; Morningstar v. Hazelip, 23 Ohio ,St., 144; Philadelphia. v. Masonic Home, 160 Pa., 752; Delaware County Institute v. Delaware County, 94 Pa.; Bangor v. Masonic Lodge, 73 Me., 428; Babb v. Reed, 28 Am. Dee., 650; Young Men’s Pro. Ben. See. v. Fall River, 160 Mass., 409; State v. Patterson, 39 Atl., •655; Auburn v. Y. M. C. A., 29 Atl., 992.</p> <p>3. Appellee is an. institution of purely public charity and is exempt as such an institution from taxation on all of its property.</p> <p>4. It is an institution of education not used, or employed for gain by any person or corporation.</p> <p>5. Appellee’s property and ground is a place actually used for religious worship and upon any and all of these grounds is exempt from taxation. Gerke v. Purcell, 25 Ohio S't., 229, 120 Mass., 43-2; Episcopal Academy v. Philadelphia, 150 Pa. St., 565; Donohugh’s Appeal, 86 Pa. St., 312; Boyd v. Fire Ins. Patrol, 120 Pa. St., 624; Philadelphia v. Women’s Christion Assn., 125 Pa. St., 572; Bird Orphan Asylum v. School District, 90 Pa. iSt., 21; Methodist Episcopal Church South v. Hinton, 92. Tenn., 188; State v. Fisk University, 3 Pick., 333; Trustees Ky. Female Orphan School w. Louisville, 100 Ky., 470; Louisville v. Board of Nazareth, &c., 100 Ky., 518.</p>

<p>Case 78 — Action by Herman X- Herzog against the City oe Covington to Prevent it Prom Requiring Him to Pay a License Tax as Real Estate Agent in .Said City.</p> <p>APPEAL EROM KENTON CIRCUIT COURT.</p> <p>Prom a Judgment Overruling its Demurrer to the Petition Dependant Appeals.-</p> <p>The constitutionality of the following ordinance is involved in this case:</p> <p>“Each and every person or firm engaged in the capacity of, or following the business ¡of, real estate shall pay a license annually of $25. By a real estate dealer or .agent (for the purpost of this section), is meant each and every person; or firm, who buys or sells real estate, either at auction or private sale for a commission, or who loiams miomey on real estate, rents houses or collects rents therefrom, or sells mortgage or lien notes for commission, 'shall be considered as engaged in the real estate business, and a such must ,pay the license herein prescribed.”</p> <p>“Any perón, firm or corporation violating any of the provisions of this ordinance shall, upon conviction in the police court in the city of Covington, be fined in any sum mot less than $10 or more tha $50, and the costs of prosecution.”</p> <p>.Section 181 of the present Constitution of Kentucky provides in part as follows, to-wit:</p> <p>“The General Assembly may, by general law only, provide for the payent of license fees on franchises, stock used for (breeding purposes, and the various trades, occupations! and professions, or a special or excise tax; and may by general laws delegate the power to counties, towns, cities and other municipal corporations, to impose and collect license feesi on stock used for breeding purposes, on franchises, trades occupations and professions.”</p> <p>The General Assembly pursuant to this authority, granted by ihe Constitution of the State, did, by an act of March 19, 1894, grant and empower cities of the scomd class to levy-a license tax upon all real estate agents,* as will be found under section 3(158, Revised Statutes, (subsection 2, which provides, in part, as follows:</p> <p>“The general' council shall have power by ordinance to license, tax and regulate undertakers, auctioneers, real estate agents and brokers, financial agents an,d brokers, commission merchants, house agents, lightning-rod agents, rental agents, etc.” iSubsection 23 of section 3058 provides as follows:</p> <p>“The general council shall have power by ordinance to im- ■ pose, enforce and collect fines, forfeitures and penalties for the - breach of any provision of this act or any ordinance; to1 punish the violation of any provision of thiá act or any ordinance of this city by fine or imprisonment, or by both fine and imprisonment; and no ordinance (shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense.”</p> <p>The court will observe that the amended ordinance of April 25, 1901, provides:</p> <p>“That each and every person or firm engaged in the capacity of, or following the business of, real! estate agents, shall pay a license annually of $25.”</p> <p>It is respectfully submitted that the license in question requiring “each and every person or firm engaged in the capacity of, or following the business of real estate agent shall pay a license annually of $25,” is constitutional and valid; and is a reasonable exercise of the power granted under the charter to cities of the second class. The license is upon all real estate agents, and the ordinance defines specifically wlio a real estate agent is, and the nature of his business!. The license is not oppressive, but on the contrary is reasonable and fair.</p> <p>AUTHORITIES CITED.</p> <p>iCity of Covington v. Woods, 98 -Ky., 344; Elliott v. City of iLouisville, 19 Ky. Law Rep., 414; Bullitt v. City of Paducah, 8 Ky. Law Rep., 870; Levi v. City of Louisville, 97 Ky., 394; Hall v. Commonwealth, 19 Ky. Law Rep., 578; Bowser, &c., v. Thompson, 20 Rep., 31; Wilson & Bro. v. City of Lexington, 20 Rep., 1593; Fidelity Casualty Co. v. City of Louisville, 20 Ky. -Law Rep., 1785; Baker v. City of Lexington, 21 Ky. Law Rep., 809; 1 Dillon, p. 4Í0, &c..; see 338-341; Ky. Stats., sec. 3058, subsec. 23; Const., see. 161; Ky. S'tats., sec. 3058, subsec. 2.</p> <p>The amended petition recites more fully and clearly the basis of the action. From its reading it will be seen that appellee’s contention is threefold:</p> <p>(1) That the amount of the tax levied is oppressive, unequal, unjust and disproportionate to those borne by tradesmen and professional men generally within the city of Covington, and is disproportionate and unequal to the license or occupation taxes levied generally in said ordinance by the city of Covington, and is an unauthorized taking of private property for public use.</p> <p>(2) That the license ordinance in question and~.subsection .2 of section 3058 of the Kentucky Statutes, the same being a provision of charters of cities of the second class, are invalid and void because they and each of them have divided and ¡subdivided appellee’s occupation into six occupations, said section 3058 authorizing said divisions and subdivisions and said ordinance levying a license tax for each of said, divisions -and subdivisions1 or limiting appellee to the following of one-sixth of his 'occupation in consideration of the payment of the one license fee.</p> <p>(3) Thai the city has no right to fine or imprison appellee for a failure to pay a license or occupation tax,</p> <p>A municipal corporation has no power or right to do anything other than what it is expressly given the right to do under its charter. The charter of a municipal corporation is a delegation of powers to its governing authority by the legislative branch of the government, and no powers will be presumed to have been ■granted, that are not mentioned or mot necessarily included in a general grant of power. This is particularly true of its right to tax.</p> <p>The charter of appellant very fully states the procedure necessary to assess, levy and collect ad valorem taxes, biit is silent •as to the manner of the collection of license or occupation taxes and its right to proceed by arrest and fine is ,an implied one. It is our contention that least the same degree of care and exactness is required of the governing authority in levying, assessing and collecting license or occupation taxes that is required in assessing, levying and collecting ad valorem taxes. One is as much a tax as the other.</p> <p>AUTHORITIES CITED.</p> <p>Elliott v. City of Louisville, 19 R.,' 415; Simrall v. City of Covington, 90 Ky., 444; 1 Dillon on Mun. Corp., sec. 322; Mayor of Mobile v. Yuille, 3 Ala., 137; Robinson v. Mayor of Franklin, 1 Hump., 156; Anderson v. City of Wellington, 40 Kan., 173; Ex parte Frank, 52 Cal., 606; Mayor, &c., of Nashville v. Althrop, 5 Cold., 554; Cooley on Taxation, pp. 437, 570; Am. & Eng. Ency. of Law, vol. 25, ,p. 311; St. Louis v. Green, 7 Mo. App., 468; Marshall v. Wadsworth, 64 N. H., 386; St. Louis v. Stern-berg, 4 Mo. App., 453; .S'haw v. Pickett, 26 Vt,. 482.</p>

<p>Judgments — Execution—Suspending Statute of Limitations.</p> <p>Held: An execution 'issued in the name of a foreign administrator o-n a judgment rendered in favor of 'the'' decedent suspends the running of the limitations fixed. by Kentucky Statutes, 1899, section 2514, providing thát an action ion a judgment shall1 be commenced within fifteen years from the date of the last execution, though the administrator failed to give the bond required by Civil Code Practice., section 404, requiring a foreign administrator tio give a bond conditioned on his disposing according to law of any property received on the execution.</p>

Case 80 — Action by J. F.. Lanham. and Others against W. J. Mc-Conathy and Others to Enforce a Written Contract. APPEAL FROM CRITTENDEN CIRCUIT COURT. Judgment for Plaintiffs and Defendants Appeal.

<p>Case 81 — ‘Action by Francis M. O’Neil and Others against the (Mutual Life Insurance Company of Kentucky for a Paid-up 'Policy. —</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>Judgment for Plainthuts and Defendant Appeals.</p>

<p>Case 82 — Indictment against W. R. Wood for Malfeasance in Office as County Clerk for Unlawfully Issuing Liquor License.</p> <p>APPEAL FROM TODD CIRCUIT COURT.</p> <p>Judgment Sustaining Demurrer to Indictment and Commonwealth Appeals.</p> <p>Appellee was indicted as clerk of the Todd County Court for unlawfully issuing a license to Cyrus Greenfield to retail spirituous liquors in the town of Trenton in said county after a certificate had been filed in his oifice by the canvassing board of said town certifying that the local option law had been adopted in said town. We contend that the appellee having this official information in his office, and knowingly issued a license to an applicant to sell liquors in a town where the sale has been prohibited by the expressed will of the voters therein at an election held for that purpose, is guilty of misfeasance in office ,m failing to obey and discharge a.known duty by refusing to issue the license.</p> <p>We contend that it is not necessary to allege that he was actuated by a corrupt motive in doing this act, but that: the failure to discharge a known duty is a sufficient allegation to reader him liable for misfeasance in office. ■</p> <p>We further contend that though the license mayI have been granted by him upon the order or by the direction of the trustees of the town of Trenton will, not excuse him, for the reason that he had before him a record in his office saying it was unlawful to sell liquor in said town and he owed it to the public and it was his duty t'o recognize said record.</p> <p>W'e further contend that an allegation that the appellee unlawfully and w'illfully issued such license without legal or rightful authority so to do is sufficient to include; corrupt motive and criminal intent.</p> <p>14 Bush, 161; 19 Am. & Eng. E-ncy. of Law, 502; 2 Am. Dec., 629; Ky. Const., secs. 124, 227; Ky. Stats., sec. 3748; Bishop’s statutory Crimes, sec. 164, .p. 155; 23 Ky. Law Rep., 1718.</p> <p>POINTS ANiD AUTHORITIES.</p> <p>1. It is neeessiary to charge- in -the indictment that appellee issued the license corruptly, or with a knowledge that it was unlawful for him to do so. The indictment does- not charge that appellee acted from a corrupt or improper motive. Scott v. 'Cook, 1 Duvall, p. 315; Com. v. Arnold, 3 Litt., 309; ¡Com. v. Barney, 24 Ky. Law Rep., p. 2352; Lynch v. Com., 25 Ky. Law Rep., p. 2180; Com. v. McPeek, 14 Ky. Law Rep., 215.</p> <p>2. The indictment having attempted to set forth -all of the material steps required by the statute in order to make a valid option law, and having failed to set forth certain material requirements- of. the statute, is bad.</p> <p>(a) It attempts to set fortb^not only every order taken in regard to the election, but all the acts ¡of the sheriff. Having attempted to set forth the acts of the sheriff, it should have alleged that notice of the holding of the election was given by him as required by statute, and the failure to- charge -this is fatal to the indictment. Com. v. Cope, 21 -Ky. Law Rep., 845.</p> <p>(b) The local option law requires’the certificate of the -board of canvassers to be placed on the order book at the next regular term of the county court after it is completed; the indictment •discloses that it was not so placed on record until nearly tw» years after the holding of said election. This long delay is fatal to the indictment, especially when unexplained.</p> <p>' 3. The allegations of the indictment do not charge a public offense. Young v. Com., 14 Bush, 161; Payne v. -Com., 14 R., 303; Schweaman v. Com., 99 Ky., 296; ‘Com. v. Hélback, 19 Rep., 278-; Adams v. Stephens, 88 Ky.,- 443..</p> <p>4. Appellee as clerk of the Todd County -Court is not subject to indictment for malfeasance .in office. (Const., sec. 227; Broaddus v. Broaddus, 10 Bush, 299; Patterson v. Commonwealth, 86 Ky., 314; Parrish, &c., v. Ferguson, &c., 83 Ky., 18; Com. v. Chambers, 1 J. J. Marsh., 108; Ky. Stats., sec. 3748; Com. v. Williams, 79 Ky., 43; Consti., sec. 124.</p>

Case S3 — Action by V?. E. Grubbs against S'. P. McDowell, 'Sheriff, for an injunction to prevent the sale of his homestead under an execution levy. — APPEAL FROM BOYLE CIRCUIT COURT.

¡Case 84 — Action by the Gamewell Fire Alarm Telegrapi-i Co., against the Fire & Police Telegrapi-i Cq., and the New Gaynor Electric -Co., for the appointment of a receiver of both companies, and the payment of plaintiff’s debt of $8,000. APPEAL FROM JEFFERSON CIRCUIT COUÉT. CHANCERY DIVISION. From the Judgment Plaintiff Appeals. POINTS AND AUTHORITIES. 1.

<p>Bills and Notes — Actions—Non-Residents—Jurisdiction—Attachment — Objections—Appearance—Waiver— Foreign Judgments —Conclusiveness—-Determination—Limitation.</p> <p>1. Civil Code, section 194, provides that a plaintiff may at or after the commencement of an -action, have an attachment against the property of the defendant as a security for the satisfaction of any judgment he may recover against a defendant who is a non-resident of the State. Held, that where a non-resident defendant had property within the State, a circuit court of a county where such property was located- acquired jurisdiction of the defendant to the extent of the value of such property by the levy of an attachment thereon.</p> <p>2. Where a non-resident sued by attachment appeared and demurred to the petition for alleged want of jurisdiction of the court, and, after his demurrer was overruled, he appeared and -pleaded to the merits, the court thereby acquired jurisdiction of his person.</p> <p>3. Constitution United States, article 4, section 1, requires full faith and credit to be given in each' State to the judicial proceedings of every other State, and Rev. St. U. S. sec. 905 (U. S. Comp. St., 1901, p. 677), provides that the judgment of any court of any 'State shall have the same force and effect in any other -State as in the State where rendered. Held, that whether a judgment dismissing an action on a note in New Yiork on the ground that it was barred by limitations of that State was a determination on the merits of the case, and therefore barred another action on the note in Kentucky, depended on the effect which would he given to such judgment by the courts of New York.</p> <p>4. Plaintiff held a note against defendant, who was a resident of New York, and for the purpose of collection only assigned it to G., who brought suit thereon in. New York, in. which the court directed judgment for defendant ion the ground that the action was barred by the New York statute iof limitations. Thereafter plaintiff brought suit on the note in Kentucky, and. defendant pleaded the New York judgment as a bar. Held, that since, under the decisions of New York, a judgment based siolely on the statute of limitations is held to affect the remedy only, and not the cause of action, such judgment was no bar to plaintiff’s, action in Kentucky, where a different statute of limitations pre-' vailed.</p>

<p>Case 86 — -Application of Anse Warner to Madison 'County Court for a ferry license and also proceeding in the Clark County COURT BY OTHER PARTIES FOR LICENSE FOR SAME FERRY.</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>PROHIBITION GRANTED ON THE PETITION OF ANSE WARNER TO RESTRAIN IClark County Court from granting the ferry license, and 'Clark County -Court and others appeal.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES.</p> <p>1. The 'Clark county court had jurisdiction, and the writ of prohibition was, therefore, improperly granted. If error was committed, the remedy was by appeal, and not by writ of prohibition. Arnold and Parrish v. Shields, 5 Dana, 18; Scott v. Tully, 20 Ky. Law Rep., 1734; Bank Lick Turnpike Co., v. '.Phelps, 81 Ky., 613; Goldsmith v. Owen, 95 Ky., 420; Walcott v. Wells, 37 Amer. St. Rep., 480, and 9 L. R. A., 59; City of •Owenboro v. Sparks, 18 Ky. Law Rep., 269; 'Sehobarg v. Manson, 22 Ky. Law Rep., 1892; 23 Amer. & Eng. Ency., (2 Ed.), 200, 210, 222; 16 Ency. PI. & Pr., 1126, 1126; Stahl v. Brown, 84 Ky., 325.</p> <p>2. The appellant could, not be denied jurisdiction on a plea entered by appellee of a former suit pending; or, by reason of a special demurrer to its jurisdiction, under sub-section 3, section 79, of the Civil Code, because the parties were not the same. .S'ub-sec. 3, sec. 92, Civ. Code; Moore’s Adm’r., v. Sheppard, 1 Met, 100; Gist v. Shean, S Ky. Law Rep., 509; Adams v. Gardiner, 13 B. Mon., 198; Mary Bashee, etc., v. James Boyce, 7 L. R. A., 272; 1 Ency. PI. & Pr., 23.</p> <p>3. The Madison circuit court had no jurisdiction over appellant. .Stahl v. Brown, 84 Ky., 325.</p> <p>4. The temporary preventive order was made by the court, before any notice of the motion for the writ had been given and before any motion was pending, and' was, therefore, void. ■Code, sees., 476, 445, 474; City of Cynthiana v. Board of Education of Cynthiana, etc., 21 Ky. Law Rep., 731,</p> <p>QUESTIONS DISCUSSED.</p> <p>1. Has a circuit court which has first acquired jurisdiction of an application for a ferry privilege by appeal from the county court, power to prohibit the county court of another county from hearing and,' determining a motion to grant the same privilege to the privy of .a party before it, said privy having full notice of the application still pending in the first named court?</p> <p>2. When the jurisdiction of two courts is concurred or coordinate, is not the jurisdiction of the one before which it first comes exclusive to the extent that the other court can have no jurisdiction so long as the matter is pending in the court that first acquired control?</p> <p>AUTHORITIES CITED.</p> <p>Sasseen v. Hammond, 18 OB. Mon., 673; 'Constitution, (state), ■110; Hindman v. 'Toney, 97 Ky., 4.13; 6 Bacon’s Abridgement, •647; 3 Blackstone, 112; 2 Bouvier’s Law Diict., title, Prohibition; fWliatton’s 'Law Diet, title 'Prohibition; Havemeyer v. Superior Court, 10 L. R A., 646; ¡State v. Aloe, 47 L. R. A., 399; N. & W. Ry. Co. v. Pin Coal Co., 41 L. R. A., 415; Bullard v. Thorpe, 25 L. R. A., 606; Hughes v. Recorder's Court, 4 L. R. A., 864; Weaver v. Toney, -21 Ky. Law Rep., 1157; McCann v. City ioi Louisville, 23 Ky. Law Rep., 558; ¡State v. Com. of Roads, 12 Am. Dee., 602; Civil Code, 479; Kentucky 'Statutes, secs. 1803, 1805, 1806; Am. & Eng. Emcy. Law, (1st. ed.), vols. 12 292; Wells on Jurisdiction of-Courts, 156; Ober v. Galla-Gher, 93 U. S., 199; Brooks v. Dela-plaine, 1 Md. Ch. Dee., 351; Stahl v. Brown, 84 Ky., 328; Combs v. Sewell, 23 Ky. Law Rep., 172; Taylor v. Taiubor, 83 U. S., 370; Hawes v. Orr, 10 Bush, 439; Mason v. Chambers, 4 J. J. 11., 410; Massie v. Com., 90 Ky., 486.</p>

Case 87 — Proceedings by Warrant in the Name oe the City oe Louisville, and in the Police Court oe the City oe Louisville against Henry Wehmhoee, Ed. Alvey, James S. Pirtle and Charles .Smith, for the Violation oe a City Ordinance by Operating Poolrooms. appeal from jeeeerson circuit court, criminal division. Prom an Order Dismissing ti-ie City’s Appeal to the Circuit Court erom Judgments Sustaining Demurrers to the Warrants, the .City Appeals. AUTHORITIES CITED.

Case 88 — Action by Rosamond Ernst against the City of West Covington fob Personal Injuries. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Case 89 — 'Action by Barbee Asphalt Paving Co. and Others against L. & N. R. B. Co. to Subject its Property to a Claim for .Street Improvement.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Judgment for Plaintiffs and Defendant Appeals.</p>

Case 90 — Indictment againt Eh. Moben fob Bbeach of the Peace. APPEAL FROM: LAUREL CIRCUIT COURT. Defendant Convicted and Appeals. Appellant was indicted, tried and convicted in the Baurel -circuit court, ¡of the offense of a breach of the peace, and fined fifty-one dollars. .

<p>Descent — Proceeds of the Sale of Real Estate — Conversion—Parties — 'Dismissal.</p> <p>Held: 1. Kentucky Statutes, 1899, section 1401, provides that if an. infant die without issue, having the title to real estate by descent from one parent, the whiole shall descend to that parent and Ms or her» kindred. Civil Code Prac., ch. 14, section 494, subsec. 6, relating to the sale of real estate of persons under disability, provides that if the owner of real estate which has been sold under the provisions of the chapter die during infancy the person who would have been entitled to the property shall be entitled to the proceeds. One died in infancy leaving the proceeds of sale of real estate inherited from her father. Held, that her paternal uncles and aunts were entitled to the proceeds, to the exclusion of her mother.</p> <p>2. Where defendant had illegally converted the proceeds of her infant daughter’s real estate, the persons entitled thereto had a right to sue defendant alone to recover it, and to dismiss as to others whom they had sued with her.</p>

<p>Foreclosure Sale — Notice—.Publication in Daily Paper.</p> <p>Held: 1. Where a decree directs a .sale of mortgaged property to satisfy the debt, and requires an advertisement of the sale in a certain paper for three consecutive days next preceding the day of sale, in. compliance with Act March 24, 1902 (Acts 1902, ■p. 213, e. 92), an, advertisement on Thursday, Friday and Saturday in a paper published daily except Sunday, where the sale was made on the following Monday, was sufficient.</p>

Case. 93 — Action by Claude Thomas against F. & C. Railway Company for the Possession of Certain Cattle. appeal from bourbon circuit court. Judgment for Defendant and Plaintiff Appeals. The plaintiff contends: 1. That the court erred in sustaining a demurrer to his reply which contained a traverse of material allegations in the answer — for example, a traverse of the allegation that appellee bad paid freight charges' to its connecting railroad line. 2.

Case 94 — 'Action by W. W. Maydwell, and Others against the City of Louisville, to Enjoin the Collection of a Tax for Sprinkling Streets of the City. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION Judgment for Defendant and Plaintiffs Appeal. 1. The levy of a tax for sprinkling streets is valid, because for a public or governmental purpose. 2.

<p>Road Supervisor — County Judge — Eligibility to Office — Taxpayer — Right to Maintain .Suit — ¡Fiscal Court — Authority.</p> <p>Held: 1. Kentucky Statutes, 1899, sections 4306, 4339, relative to roads, vest the control ¡of roads ¡ini the fiscal Court. The general scheme there provided is for the appointment of a supervisor, whose duty it is to report to the county judge under whose immediate control he is placed, and in whose court he must execute hand, and from wiblose court warrants may issue for violations ,of duties by the supervisor. In' mjaipy instances the concurrent action 'Of the county judge and supervisor is required, and in ease of a Vacancy in 'the supervisor’s lofiice the county judge miay appoint islome one to fill it until the next term of the fiscal court. Held, that it was contemplated by the statute that the county judge and ¡supervisor should he different persons, although, under slectiom 4315, lit is .provided that the fiscal court, instead of appointing the supervisor, may authorize the county judge to let out the working of roads, the other duties o'f the office being discharged by road ¡overseers, in which ease, however, the county judge acts as judge, and nor as supervisor, and is. entitled to nio adiditional compensation for his services.</p> <p>2. The fiscal court is a body of limited authority, and its action in, appointing a county judge as supervisor of roads is void, and vests in the judge no right to the ¡office.</p> <p>3. A citizen and taxpayer of a county suing for himself and .all Other taxpayers may, as such, maintain an ¡action to ¡prevent the payment to the county judge of a salary ¡as ¡supervisor of roads, to which office he was illegally appointed by the fiscal court.</p>

Case 96 — Action by Isaac Goodman’s Admr. against L. & N. R. R. Co. for Causing Death of Plaintiff’s Intestate. APPEAL FROM HART CIRCUIT COURT. From a Judgment Dismissing the Action, Plaintiff Appeals. SYNOPSIS' OF BRIEF. 1. The peremptory instruction! to find for the defendant, ought not to have been given.

Case 97 — 'Indictment against the Southern ¿Railway in Kentucky fob Discrimination in Freight .Rates. appeal from merger circuit court. Judgment for ¿Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. A through rate which is less than the sum of the local rates between the point of shipment and the point of destination, ¡does ¡not constitute .a discrimination undelr section 215, of the Constitution of Kentucky. 2.

<p>Case 98 — Action by Sabah M. Robertson against the Daviess Gravel Road 'Company eor Injury to Her Land by Causing Surface Water to Accumulate Thereon.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>Subface Water-JRights of Dominant Owners — Acquisition of Basement — Extent.</p> <p>■Appellant claims that she, having .constructed & ditch through her land to the county -road which drained -her land through a ditch which had been, constructed and maintained by Daviess county along said public road fior more 'than fifteen years, that the appellant, Daviess Gravel Road Company ha'd no right -to fill up the ditch -on the public road, land thereby prevent and obstruct the flow .of the water from her land through her ditch into -and through the ditch -along the public 'highway which bad been maintained by the county for more than, fifteen years.,</p> <p>AUTHORITIES 'CITED.</p> <p>Kemper & Wife v. City of Louisville, 14 Bush, 89; Stith v. L. & N. R. R. -Co., 22 R., 653.</p> <p>The -following proposition® are self-evident when viewed in the light of the plaintiff’s -original ¡petition.</p> <p>1. It is not averred that the grade ictf the public road complained of, was established within fifteen years before the institution of this action; the court will therefore conclude most strongly -against the pleader, that it was established more than fifteen years before the institution of this suit, -and if it was, plaintiff has not manifested a ca-use of action.</p> <p>2. The allegation of the petition, that on ¡account lofi the grade of the road the water thus artificially collected by appellant in her ditch was not permitted to flow over the road, is -not good, because it is not averred that she or her ancestors ‘at any time ever enjoyed such right.</p> <p>3. We insist that under the) (pleadings ineliudling the two amended petitioas, if appellant was collecting the siurface water upon her own land and, that of her neighbor, and throwing it upon the lower proprietor, that lower proprietor had the right to dam it up and prevent lits flow across its premises, though such' premises may ihave been no more than a public highway.</p> <p>AUTHORITIES CITED.</p> <p>Kemper v. 'City o£ Louisville, 14 Bush, 8‘9; Kelasey v. Louisville, 4 Dana, 554; 29 Am. & Eng. Ency., 1st ed., 325; Wolf v. Covington R. R. Co., 15 B. M., 408; Louisville Ry. Go. v. Round, 17 B. M., 777; Hahn v. Thornsberry, 7 Bush, 403; Gould on Waters, secs. 267, 268; Barkley v. Wilcox, 40 Am. Rep., 519; Grin-stead v. Sanders, 22 Ky. .Law Rep., 51.</p>

•Case 99 — Action by B. W. Tucker and Others against Wayne Hogan, to Rescind a 'Contract for the ¡Sale of a Flour Mill. APPEAL FROM TAYLOR CIRCUIT COURT. .Judgment for Plaintiffs and Defendants Appeal. We take the ground: 1.

Case 100 — Indictment against J. W. Bess fob Muedeb. APPEAL EBOM PAYETTE CIRCUIT COURT. Defendant Convicted oe Mueder and Appeals. On the trial of this case we complain of the following errors to appellant’s prejudice: 1. On December 23, 1902, deceased had taken a policy of insurance on her house for $225. The house was burned January 20, 1903.

<p>Drainage Ditches — ¡Special Assessments — Lien— Enforcement— Individual Liability of Landowner.</p> <p>Held: 1. Act March 23, 1900; Laws 1900, p. 110, c. 30 (Kentucky Statutes, section, 2400), relative to the construction' of drainage ditches, etc., provides that on the completion of an allotment of a ditch the county surveyor shall give the land owner a certificate, which shall state the amount due the contractor for constructing the ditch, which amount shall be a lien on the land; and that, if any land against which an assessment (has been made shall, change hands, the sheriff shall give the new owner notice of the amount due, and on failure to pay, that the land shall be sold to- satisfy the tax. Held, that the assessment is not a claim against the owner individually, but against the land itself, which is liable to sale for satisfaction ' of an assessment, notwithstanding that the one to whom it was assessed has personal property from which the assessment might be satisfied.</p>

<p>Case 102 — Action by Commonwealth by S. T. Bailey, Sheriff op Greenup County to Collect Taxes on Property op the C. & O. Railway iCo., Omitted.</p> <p>APPEAL PROM GREENUP CIRCUIT COURT.</p> <p>Prom a Judgment’ in the Circuit Court por Dependant, the Commonwealth Appeals.</p> <p>(Nio briefs, record misplaced.)</p>

Case 103 — Action by W. T. McCullough against Clifford S'hinkle fob Personal Injuries. — appeal from kenton circuit court. Judgment fob Plaintiff and Defendant Appeals. POINTS AND AUTHORITIES. 1. Instruction to the jury.

<p>Case 104 — Action by the United States .Savings & (Loan Com-, paky against George Gray on' Notes, and to Enforce Mortgage Lien.</p> <p>APPEAL FROM CLARK CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>(No briefs in tbe record.)</p>

<p>Gifts — Delivery—Acceptance—Vendor and Purchaser — Recorded Liens.</p> <p>Held: 1. Where a deed recited -that part of the consideration was a note, with interest payable aniiuualKy, for the use) of a certain person, during her life, there was a valid gift of the interest, though the note was not delivered to the donee.</p> <p>2. Where thel donee of a gift inter vivos is of unsound mind, the law will presume an acceptance.</p> <p>3. Where a recorded deed showed that -part of the consideration was a note, the interest on which was payable for the use of a certain person during her life, and a lien was reserved as security for the note, a subsequent purchaser was hound in the same manner as the first purchaser.</p>