Volume 117 — Kentucky Reports

<p>Case 1 — ¡Prosecution against Fred Sanders por Selling Mile;</p> <p>prom Animals ped upon “Still Slop.”</p> <p>APPEAL PRÓM JEPPERS0N CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>Dependant Convicted and Appeals.</p> <p>POINTS MADE AND AUTHORITIES CITED.</p> <p>1. Sanders -was indicted, convicted and fined for a violation of section 1274, Kentucky .StatuteSi which makes it an offense to “knowingly sell any milk . . . from animals fed upon ‘still slop,’ ‘brewers grain,’ or brewer’s stop.’ ”</p> <p>2. So much of the act as so provides is not a proper exercise of police power. There is not even a legislative declaration as to the purpose .of the act. It forbids the sale of milk so produced without reference to .its quality, good .or .bad, or its effect, wholesome or otherwise upon those who use it, and withiout reference to. the use to which it may be put. The indictment did not charge nor was any evidence introduced to show that milk so produced is improper as a food or injurious to. health.</p> <p>3. A conviction under this; statute deprived Sanders of his privileges., his liberty and his property without due process of law, within the meaning of the fourteenth amandment to the Constitution of the United States, and the statute itself is repugnant thereto,</p> <p>4. Before the courts will declare a statute to- he a proper exercise of the .police power, it must be able to see that its object tends towards the prevention of some offense or manifest evil, ®r that it has 'for its aim, the preservation of public health, morals, safety or welfare. Kentucky .Statutes, sec. 1274; Constitution of the United .States, Amendment 14; Am. & Eng. Bncy. of Law, vol 22, (2d ed.), 935, 936; Tiedeman Limitation Police Power, pp. 295-298; In re Jacobs, 98 N. Y., 98; Peo- • pie v. Mark, 99 N. Y., 377; .City of Helena v. Dwyer, 64 Ark., 424; City of Chicago v. Netcher, 183 111., 104; Frorer v. People, 141 111., 171; .Ramsey v. People, 142 III., 380; Braceville Coal Co. v. People, 147 111.. 66; Cooley Const. Lim., sec. 393; Frost v. City of Chicago, 178 111., 250; Rukstradt v. People, 49 L. R. A., 491; People v. Bieseker, 68 N. Y. Sup., 134; People v. Bisclnoff ('Sup. Ct.), 14 N. Y. ,St Rep., 581.</p> <p>5. The case at bar must be distinguished from that line of authorities holding it to be a proper exercise of the police power for the Legislature to prohibit the manufacture or sale of an article made in imitation of another and sold in. lieu thereof, e. gr., the manufacture or sale of oleomargarine made in imitation of butter. Powell v. Pennsylvania, 127 U. S., 678; Walker v. Pennsylvania, 127 U. S., 699; In re Brosnahan, 18 Fed. Rep., 62; Butler v. Chambers, 36 Minn., 69; .State v. Addington, 77 íMo., 110; Powell v. Commonwealth, 114 Pa., 268; Commonwealth ~v. Sherley, 152 Pa. St., 170; Am. & Eng. Eney. of Law, vol. 22, (2d ed), p. 934.</p> <p>6. The defendant was entitled to he peremptorily discharged because the evidence did not establish any sale of the milk. Cpmmonwealth v. S’chollenberger, 153 Pa. .St., 625;' Commonwealth v. Callahan, 1 Pa. Dist. Rep., 437.</p> <p>'The contention in this case is:</p> <p>CL. Whether the statute prohibiting the sale of milk from cattle fed on “still slop” is in violation of the Federal Constitution.</p> <p>2. Whether, if the statute is constitutional, the defendant can-•be convicted in the absence of any evidence that the milk he sold was impure or injurious to the health -oí those who used it.</p> <p>We submit:</p> <p>1. That under the police power of the iState, the use of property may be so regulated as to. insure the public health and. safety of the people.</p> <p>2. The Legislature of the IState, is competent to prohibit the-sale of an article if in- its judgment it be necessary to protect the lives, Realth and comfort wf the citizens -of the State.</p> <p>AUTHORITIES.</p> <p>Am. & Eng. Ency. of Law, vol 18, p. 748; Sarrls v. Commonwealth, 83 Ky., 327; Tiedeman’s Limitations of Police Power, p. 295; Johnson v. Simonton, 43 'Cal., 542; Brock v. Commonwealth, 17 S. W. R., 336; Dunn v. Commonwealth, 49 S. W. R., 813; Hawthorn v. People, 109 111., 302; Village of Carthage v. Frederick, 122 N. Y., 268; Pool v. Troxler, 76 N. C.,-.297; Commonwealth v. Pennsylvania 'Canal Co. 66 Pa., 41; Beer Co. v. State of .Massachusetts, 97 U. S., 25; People v. Girard, 73 Hundley, 457; In re Jacobs, 98 N. Y., 98; People v. Marx, 99 N. Y., 377; People v. Arensberg, 105 N. Y., 123;'Powell v. Commonwealth, 114 Pa., 265;. Po-well v. Pa., 127 U. S., 678.</p>

<p>Negligence — Injury from Fright — ¡Liability.</p> <p>Held: 1. No recovery can he .had for personal injury resulting from fright occasioned by the negligence of another, where there is no immediate personal injury, trespass -to real estate, or some contract relation.</p>

<p>Evidence — Competency—Wife of Joint Defendant — Tort—'Sever-able Judgment — 'Reversal in Part — 'Burden of Proof — Matter in Avoidance;</p> <p>Held: 1. The fact that the wife of one of the joint defendants in an action for tort testified for defendants could not furnish ground’ for reversal of the judgment in favor of defendants, except as to witness’s husband.</p> <p>% Under Code Prac., sections 605, 606, rendering all witnesses of sufficient understanding competent to testify,, except certain classes, among which are husband and wife for or. against the other, a wife of one of several defendants in an 'action for tort, in which, by Kentucky Statutes, 1899, section 12, the verdict may he for some defendants and- against others, is a competent witness for defendants other than her husband.</p> <p>3. In an action for tort, when the answer did not controvert the petition, but pleaded in avoidance, the burden of proof was on defendants.</p>

<p>Life Insurance — Forfeiture for Non-Payment — Waiver of Forfeiture — Revival.</p> <p>Held: 1.' Forfeiture of a life policy for non-payment of an annual premium when due is not (waived for the whole year by the company extending time for payment and taking a note therefor, payable four monthd after date, providing that, if it is not paid at maturity, the policy shall foe void.</p> <p>2. Forfeiture of .a life policy for non-payment at maturity of a note for a premium is not waived by a demand for payment of the note after its maturity, this being accompanied by a certificate of health, which showed that the company claimed there -was a -forfeiture, and insured being informed that the certificate would have to he sent to the home office for approval.</p> <p>3. Even if the statutory provision that no insurance company shall make any contract of insurance or agreement as to such contract other than is píainly expressed in the policy issued thereon applies to a note given for a premium on extension of time for payment thereof, and -providing that, if it is not paid at maturity, thef policy shall he void, all of the agreement is void; so. that there is no valid extension of time of payment and-■waiver of the forfeiture provided by the policy for non-payment of the premium then due.</p> <p>4. Insured can not complain that a certificate of health sent to the company for the purpose of -having the policy revived was kept six days, and then returned not approved-.</p>

<p>Natural Gas — Prevention of Waste — Legislative 'Control — Plugging Wells — Construction of Statutes — Legislative Intent —Evasion of iStatute.</p> <p>Held: 1. Acts 1891-93, pp. 60, 61 (Kentucky Statutes, 1899, sections 3910-3914) provide (1) for the confinement of gas in wells until its utilization; (-2) for the plugging of abandoned wells; (3) that landowners adjacent to wells, the owners'of which ■ fail to comply with section 1, may enter on their lands ,and plug the wells; (4) that owners oí land adjacent to abandoned welM may enter and plug them; (5) declare an emergency, on account of the number of abandoned wells in the iState. Held, that since sections 2 and 5 provide expressly and .sufficiently for abandoned wells, and sections 1 and 4 are not so limited, those latter sections provide for wells not abandoned, although the emergency was declared to exist only as to abandoned wells.</p> <p>2. Acts 1891-93, pp. 60, 61 (Ky. Statutes, 1899, sections 3910-3914), , enacted for the purpose of preventing the waste of gas, provide, in section 1, that owners, etc., of gas wells, Shall oonfine the gas until such time as it, shall he utilized, and in' section 4 that .owners of lands adjacent to unplugged well's may enter and plug the wells 'if their owners neglect to .do so. Abandoned wells are provided for in sections 2 and 5, and section 4 makes ho provision for a well that Is shut in, the gas escaping from another point than the well itself. Held, that section 1, being brtoader than section 4, imposes a duty on the owners to confine the gas, irrespective of the point of its escape, and'such owners are liable for permifting gas to escape through pipes at a point other than the! well, independently of the liability imposed by section 4 for permitting the gas to escape at the well.</p> <p>3. Under .Kentucky Statutes, 1899, sections 459, 460, providing tha'c statutes shall be construed to effectuate legislative intent, and providing for a liberal construction, in the light of the common and approved usage of language, except in the case of technical words and phrases, penal enactment must be construed as other statutes, with a view to carrying out the intention of the Legislature; all untechnical words and phrases being construed according to the common and approved use of language.</p> <p>4. In construing a statute, the court will look to the whole act, and the purpose of the makers in its enactment.</p> <p>5. Under Acts 1891-93, pp. 60, 61 (Kentucky Statutes, 1899, sections 3910-3914), enacted for the prevention of the waste of gas, and enjoining the plugging of wellsl not' in use, it can not be contended that the owners of wells may do as they please with gas after reduced to possession by them, for the gas coming from the gasometer is replaced by other gas coming from the well.</p> <p>6. Acts 1891-93, pp. 60, 61 (Kentucky Statutes, sections 3910-3914), enacted for the prevention of the waste of gas, and enjoining the plugging of wells not in use, was within the legislative power to enact, as a protection lof the natural resources of the State, to the rights of the public in which the rights of individual owners are subject. ^</p>

Case 6 — Action by W. F. Owsley. iSb., against W. F. Owsley, Jb., to Recover Land. APPEAL PROM CUMBERLAND CIRCUIT COURT. From an Order Setting Aside a Judgment por Plaintiff, he Appeals. POINTS AND AUTHORITIES. The original action. 1. Appellant’s own- evidence showed that he had not been continuously for fifteen years in the actual, adverse, and exclusive possession of the land in controversy.

<p>Corporations — Insolvency—■ Receivers — ■ Appointment-— Rights of Creditor — Judgment—Execution—Pleading.</p> <p>Held: 1. Where the assets of an insolvent corporation will probably be lost or fraudulently disposed of unless a receiver is appointed, and the creditor has no adequate remedy at law, he is entitled to the appointment of such receiver. before reducing his claim to judgment and obtaining a return of nulla dona.</p> <p>2. In an action by a creditor against an insolvent corporation, a petition and certain cross-petitions construed, and held to state sufficient facts to justify the appointment of a receiver, though plaintiff’s claim had hot been previously reduced to judgment, and a return of nulla dona obtained.</p>

<p>Case 8 — Action by the Kentucky Heating Company against the Louisville Gas Company, &o., and W. C. McGehee against the Calor Oil & Gas Company, to Enjoin the Defendants from Wasting Gas in Meade County, Kentucky.</p> <p>APPEAL FROM MEADE CIRCUIT COURT.</p> <p>From a Decree in Favor of Plaintiffs in each Case, Defendants Appeal.</p> <p>(No brief in the record for appellants.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The owners of land lying above a gas reservoir, or common source of supply, have a qualified property right in the gas and ■a common right to bore for and secure the gas for all useful purposes. These rights, like all .others, are within the protection of the law and of the court. Donahue on Petroleum and Gas, sec. 10; Amer. & Eng. Ency. of Law (2d ed.), vol. 21; Westmoreland, &c., Gas Co. v. DeWitt, 130 Pa., 235; Peoples’ Gas Co. v. Tyner, 130 Ind., 277; Brown v. Yandergrift, 80 Pa., 147.</p> <p>2. In the case of underground waters, an owner of superincumbent land has a right to obtain all the water he can, for ordinary and reasonable uses, but there is a limitation upon his right to negligently or maliciously injure his neighbors by affecting or destroying their supply of such water. Chesley v. King, 74 Me., 164; Roath v. Driscoll, 20 Conn., 533; 52 Am. Dec., 352; .Haldeman v. Bruckhart, 45 Pa. State, 514; 84 Am. Dec., 511; Wheatley v. Baugh, 25 Pa. State, 528; 68 Am. Dec., 721; Addison on Torts, p. 79, note.</p> <p>3. The element of malice has been recognized in Kentucky, as ■rendering actionable, what would, otherwise be damnum, absque injuria. Crisman v. Bruce, 1 Duvall, 63; Canefield v. Bullock, 18 B. Mon., 497; Morgan v. Dudley, 18 B. Mon., 711.</p> <p>4. Even in the ahsenee o’f malice, the use of undue propox’tion of underground water, without regard to. the rights of others, is actionable. Bassett v. Salisbury, 43 N. H., 569; Swett v. Cutts, 50 N. H., 439; Hart v. Jamaica Pond Aqueduct Co., 133 Mass., 488; Smith v. City of Brooklyn, 18 App. Div. N. Y., 340; Forbell v. City of N. Y., 164, N. Y., 522.</p> <p>5. While it has been said Chambers v. Baldwin, ■ 91 Ky.. 121, that an act lawful in itself, can not become actionable solely because it was done maliciously, this does not justify the use of what would otherwise be lawful means for the aeoomplishment of an unlawful design, much less does it justify his right to negligently or maliciously injure his neighbors by the use of unlawful means for an unlawful end. Avery & Sons v. Meikle & Co., 81 Ky., 107; Cyc. vol. 1, p. 647.</p> <p>6. Coux-ts of equity have jurisdiction to protect the source of a common supply of natural gas against the reckless and improvident uses or waste of ft by one owner of superincumbent land. State of Indiana v. Ohio Oil 'Co., 150 Ind., 21, 29 N. E. Rep., 809; 47 L. R. A., .647; Ohio Oil Co. v. State of Indiana, 20 Sup. Ct. Rep., 576, 177 II. S., 190; Townsend v. The State, 147 Ind., 127.</p> <p>7. The owners of superincumbent lands have the right to protect from destruction the source of the common supply of natural gas, and may enjoin any act of one owner which tends to such destruction. Mfg. Gas & Oil .Co. v. Indiana Natural Gas & Oil Co., 57 N. E. Rep., 912.</p> <p>8. The Legislature has declared it unlawful to waste natural gas, and limited the right of a proprietor to use his property in sudh a way as not to injure his neighbor, by wasting the common supply of gas. Act of iMay 14, 1892, Kentucky Statutes, sec. 3910; Hague v. Wheeler, 157 Pa. State, 324, 22 L. R. A., 141, (distinguished); Donahue on Petroleum and Gas, sec. 23, p. 19; Jones v. Forest Oil Co., 194 Pa. State, 369, 49 L. R. A., 748.</p> <p>9. A court of equity will not be deceived by a trick or device such as the pretended use iof gas in the allfeged manufacture of lamp black, but will look at the substance of things, and the real intent of parties. Pomeroy’s Eq. Juris., see. 378; Standard Dictionary, “Utilize.”</p> <p>10. Although the waste of gas complained of constitutes a public nuisance, the appellee who is specially injured by it can maintain an action to prevent it. Mfg. Gas & Oil Co. v. Ind. Natural Gas & Oil Co., supra; Corley v. Lancaster, 81 Ky., 171; Green v. Asher, 10 Ky. Law Rep., 1006; Dulaney v. L. & N. R. R. Co., 100 Ky., 628. Distinguished.</p>

<p>Case 9 — Prosecution against George Miller for Setting up a Faro Bank.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Defendant Convicted and Appeals.</p> <p>The appellant complains of the following errors of the lower court.on this trial:</p> <p>1.¡Error in overruling demurrer to the indictment because it charges more than one offense. Cr. 'Code, sec. 126; Ellis v. Com., 78 Ky., 130; Waddle v. Com., 84 Ky., 279; Com. v. Monarch, 6 Bush, 298; Com. v. Barnes, 4 J. J. M., 177; Ritter V. Com., 18 B. M., 35.</p> <p>'2. The court misinstrueted the jury.</p> <p>3. The court erred in impanelling the jury.</p> <p>4. The court erred in refusing to set aside the verdict of the jury because of its misconduct.</p> <p>5. The court erred in refusing to set aside the swearing of the jury on account of the conduct of the Commonwealth’s attorney.</p> <p>6. The court erred in refusing to set aside the swearing of the jury upon the motion of the defendant, because of misconduct of the attorney for the Commonwealth in his closing .argument before the jury, in making a statement to which the defendant objected, which objection was sustained, but the motion was overruled.</p> <p>1. The indictment did not charge but one distinct offense: the setting up, conducting and operating a faro, bank. The words “other machines and contrivances” in the indictment sfiould be treated as surplusage.</p> <p>2. Averments concerning which' there was a failure of proof, were not legally essential, to the charge or necessary for the identification of the person or thing described and hence should be treated as surplusage.</p> <p>3. The court properly overruled the demurrer to the indictment there being no motion to elect or strike out.</p> <p>4. The instructions were carefully drawn and the jury were authorized to find the defendant guilty, if they believe from the evidence, beyond a reasonable doubt that he conducted or operated a faro bank.</p> <p>5. Where the attorney for the iCommonwdalth makes improper statements to the jury, which are objected to by counsel for the defendant, and the court sustains the objection and admonishes the jury not to consider them, and that they were improper, it would be an abuse of discretion for the court to discharge the jury. Or. 'Code, sec. 192; Kentucky Statutes, sec. 226; Moore w. Corn., 18 R., 129; Paynter v. Com., 21 R., 1562; New Cent. Dictionary for definition of “faro” and “baccarat.”</p>

<p>Statute of Frauds — Contract of Sale of Real Estate — Validity.</p> <p>Held: 1. An option agreement for the sale of the shares of capital stock by the individual stockholders of a railroad corporation, and a subsequent agreement for the sale of the roadbed, rolling stock, and other property of the corporation, ,are independent transactions.</p> <p>2. A parol agreement for the sale by a railroad corporation of its roadbed, rolling stock, and other property, bejing an agreement for the sale of real estate, is void, within the statute of frauds.</p> <p>3. A resolution adopted by the directors' and stockholders of a railroad corporation declaring their willingness to sell! the roadbed, rolling stock, and the other corporate property at a fixed price, and empowering the president of the corporation to consummate the sale, though entered on the records of the oorporation, did not constitute a valid contract for the sale of real estate, within the statute of frauds.</p>

<p>Guardian and Ward — Guardian’s Bond — Sureties—Liability-—Actions — Limitation—Persons Entitled to Plead — Heirs—Suspension of Statute — Non-Residents..</p> <p>Held: 1. Where a judgment against a guardian imposed a lien on real estate, the court of appeals-had jurisdiction of an appeal therefrom without regard! to the amount of the judgment.</p> <p>2. Kentucky Statutes, 1899, section 2521, provides that a ward’s right of action on her guardian’s official bond ¿hall not he deemed to have accrued until the ward attains the age of twentyione years; and section 2550 declares that a surety for a guardian shall he discharged when the five years shall have elapsed without suit after the accruing of the cause, of action. Held that, where no suit was brought against sureties on a guardian’s bond for -his defalcation until more than five years had elapsed after the ward became of age, the sureties were discharged from liability.</p> <p>3. Where, at the time suit was brought ion a guardian’s bond, the claim was barred by limitations as against defendant’s deceased father, who was a surety on the guardian’s bond, defendant was entitled to interpose the plea .of limitations with th'e same effect that his father could if he had been living, in order to relieve from liability defendant’s interest in certain real estate which had descended to him from his father.</p> <p>i. Kentucky Statutes, 189b, section 2531, provides that where a cause of action accrues against a resident of the State, and Ihe, by departing therefrom, obstructs prosecution of the action, the time of the continuance of such absence from the State, or obstruction, shall not he computed asi any part of the period within which the action may he commenced. Held that, where a defendant was not a. resident of tbe State when plaintiff’s cause of action accrued, tbe fact that he had previously been a ■resident of the State, and had removed therefrom, did not prevent the running of limitations in his favor.</p>

<p>Forcible Entry — Judgment—Bar—Review—New Trial — Process —Substituted Service.</p> <p>Held: 1. 'Civil Code, section 463, regulating proceedings after trial of writs of forcible entry, provides that if either party conceive himself aggrieved he may file, a traverse within three days after the finding, and section 461 declares that if the party against whom the inquisition is found fail to file such traverse the judge shall issue execution for the costs, and, if the inquisition be in favor of the plaintiff, a warrant of restitution. Held, that section 463 provided the exclusive mod'e for reviewing proceedings of forcible entry, .and that Civil Code, section 714, authorizing the granting of a new trial on an application made within ten days after judgment, on reasonable notice to the adverse party, had no application to such proceedings.</p> <p>2. Under Kentucky Statutes, 1899, section 2294, and Civil Code, section 625, authorizing substituted service of process by leaving a copy with a member of defendant’s family over sixteen years of age, a notice of a writ of forcible entry was properly served by leaving a oopy wiith defendant’s wife, who was at the time a member of his family over sixteen years of age, defendant being absent and not found.</p> <p>3. A judgment rendered in proceedings of forcible entry to recover a possession of land is not a bar to an action in ejectment to recover the land.</p>

<p>Case 13 — Action by Bastin Telephone Company against Richmond and Cumberland Telephone Company for Breach of Contract.</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to the Petition, Plaintiff Appeals.</p> <p>The facts alleged in the petition and admitted by appellee’s demurrer to be true, show, that in March 1900, A. H. Bastin and the Richmond Telephone Company entered into a verbal contract wherein they agreed to erect a telephone line between the city of Lancaster and the city of Richmond, each to construct the line to a half way point between said cities, and the line to be completed by ’September 1, 1900, or as soon thereafter as practicable; and said lines could easily have been finished by November 1, 1900, at which time the Lancaster end of the line was finished. Bastin sold" his end of the line and the benefit of his contract to appellant. It was further provided in said contract that after the lines were completed, the parties thereto should have the privilege of usin$ the lines and connections that each party then had or might thereafter acquire, free of charge.</p> <p>We submit that it can not be successfully contended that the verbal contract to erect the line, which was clearly to be completed within a year, could be within the statute of frauds, because of the mere fact that the benefit of the contract extends beyond a period of one year.</p> <p>AUTHORITIES CITED.</p> <p>Constitution of Kentucky, sec. 199; Kentucky Statutes, sec. 470; Howard v. Burgin, 4 Dana, 437; Standard Oil Co. v. Denton, 70 S. W., 282.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The alleged parol contract between the parties to this action, that each should 'build a telephone line, one from Richmond, Kentucky, and the other from Lancaster, Kentucky, to a point half way between and there connect, and that each should then have the use and benefit of the other’s lines and connections, free of charge for a period of twenty years, is a contract not to be performed within one year, consequently, within the statute of frauds and not enforceable.</p> <p>2. The 'Cumberland Telephone & Telegraph -Company, is only a stockholder in the Richmond Telephone Company, and not liable for violation of the latter’-s contract.</p> <p>AUTHORITIES CITED -BY APPELLEE.</p> <p>Holloway v. Hampton, 4 B. M., 415; Beacb on Contracts, vol. 1, sec. 11; L. & N. R. R. Co. v. Howard, 15 R., 25; Kentucky Statutes, sec. 470.</p>

<p>Fidelity Insurance — Untrue Statement by Employer — Due Care to Ascertain Truth — Right to go to Jury — Speculation by Employe — Employer’s Knowledge — Special Instructions.</p> <p>Held: 1. In an action on a fidelity bond, defended on the ground that the plaintiff, in a statement required of him prior to the issuance of the bond, asserted that, to the best of his knowledge and belief, the employe’s accounts were correct, and that ■he was not in arrears, when, by due care in examining such ■accounts, a shortage could have beep, discovered, an instruction to find for plaintiff unless tbe statement was false when made, to the best of plaintiff’s knowledge and belief, was erroneous, since defendant was entitled to go to the jury on the issue of plaintiff’s clue care to ascertain the truth before making the statement.</p> <p>2. Defendant also alleged that plaintiff stated that nothing was known concerning the employe’s habits affecting his title to ■confidence, when in fact the employe was engaged in hazardous speculation, to plaintiff’s 'knowledge. Held, that this issue should have been submitted to the jury under special instructions applicable thereto.</p>

<p>Witnesses — Husband and Wife — Subsequent Divorce — Proof of Divorce— Presumption— Homicide— ¡Motive — ■ Rebutting Evidence — 'Self Defense — Instructions.</p> <p>Held: 1. Where, in a prosecution for homicide^ a witness testifies that she is the widow of the decedent, a presumption arises that she was divorced from accused, her former husband, before marrying decedent; and. hence parol proof iof the divorce, instead of the offer of the judgment record, is not ground for reversal.</p> <p>2. A witness in a homicide prosecution who testifies that she is the widow of decedent is presumed to have been divorced from ■accused, her former husband, before haying married decedent, and therefore, in thei absence of evidence rebutting such presumption, is a competent witness against accused as to matters occurring subsequent to the divorce.</p> <p>3. In a prosecution for homicide, where, to show motive, the State offers deceased’s widow, who testifies that she was frequently in accused’s company; under his compulsion, thereby incidentally charging him with the crime, denounced as a felony by Kentucky Statutes, 1899, section 1158, of unlawfully and forcibly 'detaining a woman against her will, it is error to exclude evidence for accused that the association between him and the witness arose at her solicitation, and without compulsion on his part.</p> <p>4. In a prosecution for homicide, it. is error to charge, as to self-defense, that accused had the right to kill, if there was, as it then appeared to him, no “reasonably” safe means of averting the danger of losing his life or suffering great bodily harm at the hands of the decedent, since accused would not be compelled to choose an alternative method of escaping danger unless it promised absolute safety.</p>

<p>Trunk Railroad — Meaning of Term, Municipal Corporations— Franchises.</p> <p>Held: 1. An electric railroad company authorized to, perform the duties of a carrier of freight and passengers between two cities in different States and all intermediate points is a trunk railway within Const., section 164, declaring that no city shall grant any franchise to street railways, gas, water, or certain other corporations, except to the highest and best bidder therefor, hut that the section shall not apply to a trunk railway.</p>

<p>Case 17 — Proceeding by the Commonwealth by Frank A. Lucas, Auditor’s Agent, against the Ayer & Lord Tie Company, to Enforce the Listing for Taxation of Certain Steamboats Owned by said Company Engaged in Interstate Commerce on Certain Rivers.</p> <p>APPEAL FROM M’CRACKEN CIRCUIT COURT.</p> <p>From a Judgment for Defendant the Relator Appeals.</p> <p>1. Are boats taxable where they are registered or where the owner resides?</p> <p>The appellee being a corporation, created under the laws of the State of Illinois, and having its chief office in the city of Chicago, must be deemed as a matter of law to have its domicile in that city and State.</p> <p>This court has held that boats are subject to taxation at their “home port.” Appellee, in its answer, admits that it has violated the laws of the United States by registering its vessels at another port, than that at which is located its chief office, and has painted upon the sterns of its boats the name of the port at which they are registered, viz., Paducah, Ky.; but contends that though it has held out Paducah to the world as the home port of these boats, it should now be permitted to take advantage of its own wrong and claim Chicago as their home port.</p> <p>We claim that the port of registry should control.</p> <p>2. Would the taxation of these boats by the Kentucky authorities constitute an interference with interstate commerce?</p> <p>We contend that while these boats are engaged in interstate commerce, as nearly all boats are that run upon our rivers, they are merely instruments by which commerce is carried on. No State can levy any tonnage tax, or lay any tax on interstate commerce itself, but the principle has always been recognized that the instruments by which commerce is carried on, were ■subject to taxation as property, wherever they might he situated, provided, only that they were not discriminated against because of their occupation.</p> <p>Where it is demonstrated that the “home port” of the vessels is in Paducah, and that their actual situsi for purposes of taxation is in that city, then they are taxable there as announced by this court in the city of Newport v. Berry, 14 R., 29.</p> <p>AUTHORITIES 'CITED.</p> <p>1. Aré boats taxable where they are registered, or where the owner resides? City of Newport v. Berry, 14 Ky. Law Rep., 29; Sec. 4141, Rév. Stats, of the U. S.; Sec. 4178, Idem.; Morgan v. Parham, 16 Wall., 47Í, (21 L. Ed., 303); Hays v. Steamship Co., 17 How., 596 (15 L. Ed., 254); Moran v. New Orleans, 112 U. S., 69 (28 L. Ed., 655); Transportation Co. v. Wheeling, 99 U. S., 273 (25 L. Ed., 412); Ferry Co. v. East St. Louis, 107 U. S., 365 (27 L. Ed., 419); Báttle v. Mobile, 9 Ala. (N. S.), 234 (44 Am. Dec., 438); Irvin v. New Orleans, Chicago & St. Louis R. R. Co., 94 111., 105, (34 Am. Rep., ^OS); St. Louis v. Ferry Co., 11 Wall., 423 (20 L. Ed., 192); Burroughs on Taxation, sec. 46; People v. Pacific Mail Steamship Co., 58 N. Y., 242.</p> <p>2. Would the taxation of these boats by the Kentucky authorities constitute an interference with interstate commerce? City of Newport v. Berry, 14 Ky. Law Rep., 29; Moran v. New Orleans, 112 U. S., 69 (28 L. Ed., 655); Lou. & Jeff. Ferry Co. v. Com., 22 Ky. Law Rep., 446; C. C. C. & St. L. Ry. Co. v. Backus, 154 U. S’., 439 (38 L. Ed., 1041); Henderson Bridge Co. v. Com., 17 Ky. Law Rep., 389; Henderson Bridge Co. v. Kentucky, 166 U. S., 150 (41 L. Ed., 953); Morgan v. Parham, 16 Wall., 471 (21 L. Ed., 303).</p> <p>1. Much stress is made in appellant’s argument on the fact that it is alleged and admitted that the. boats were enrolled in Paducah, and the words “Paducah, Ky.,” were painted on the stern of each vessel, and that these facts gave the property such a situs in Kentucky as made it liable to taxation in this State.</p> <p>We maintain that such a position is untenable, and that the statute fixing the home port as the place where the owner resides, can not be so readily repealed or evaded.</p> <p>We admit that tangible personal property capable of being and which is incorporated into the personal property of this State, can. be subject to taxation in this State, although the owner may reside in another State, but we insist that vessels which are here only temporarily for the purposes of commerce, and which belong to a corporation whose domicile is in the State of Illinois, and which are not tangible property, can not be held to have such a situs in this State as bo be subject to taxation.</p> <p>The following authorities ar.ei referred to: The .Schooner, Mary Chilton, 4 Fed. Rep., 847; Rev. Stat. U. S., secs. 4131, 4132, 4137, 4141, 4147, 4142, 4155, 4178, 4312, 4322, 4323; Pullman Palace Car Co. v. Pennsylvania, 141 U. S., 613; Wheeling, &c. Pkt. Co. v. City of Wheeling, 9 Otto, 273; Yost, Treasurer v. Lake Erie Trans. Go., 112 Fed. Rep., 746, 50 C. C. A. Rep., 511; St. Louis v. Ferry Co., 11 Wall., 423; Hays v. Pacific Mail Steamship Co., 17 Howard, 596; Morgan v. Parham, 16 Wall., 471; Myers Fed. Dee./vol. 23, Title, Lien. For Repairs and Supplies, and to following cases reported therein, viz.: The</p> <p>Albany, 4 Dillon, 439; The Lulu, 10 Wallace, 192. The St. Lawrence, 3 Ware, 211; The Plymouth Rock, 13 Blatchford, 505; City of Louisville v. Sherley, 80 Ky., 71; Com. v. Gaines, 80 Ky., 489; Thomas v. Mason Co. Ct., 4 Bush, 136; Boslte, Sheriff v. Security T. & S. Vault Co. Admr., 22 Rep., 181; City of Covington v. Whayne, 22 Rep., 826; Newport v. Berry, 14 Rep., 29.</p>

<p>Case IS — Action by John King against W. B. Creekmore for Damages for Personal Injuries.</p> <p>APPEAL FROM WHITLEY CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>QUESTIONS' DISCUSSED AND AUTHORITIES RELIED UPON.</p> <p>1. A man should use his own property so as not to injure the rights or the property of another. Buswell' .on Personal Injuries, sec. 130; Carter v. Town, 98 Mass., 567.</p> <p>2. A servant of a railroad company as lessee, who is injured by the negligence of such company alone, has no cause -of action against the lessor of said company. Swice’s Admx. v. M. & B. S. R. R. Cio., 25 R., 436.</p> <p>3. The question raised in this case has never been passed upon by the Kentucky court of appeals. Central Coal & Iron Co. v. Grider’s Admr., 25 R., 165.</p> <p>4. To establish a case of actionable negligence, it is not necessary that the relation of master and servant exist under the facts of this case. Ford v. Crigler, &c., 25 R., 57.</p> <p>5. The case of Bush v. Grant, 22 R., 1766, has been distinguished hy the Kentucky court of appeals from a case like the one at bar. Ford v. Crigler, &c., 25 R., 57.</p> <p>6. The defense that the plaintiff was an employe of an independent contractor, will not always avail. Jacobs v. Fuller & Hutsinpiller Co., 65 N. E. Rep., 617; 13 Am. Neg. Rep., 210.</p> <p>7. It is not always necessary for a plaintiff: to show his contractual relation with the defendant before he can have a cause of action against him for negligence, especially where the defendant knowingly puts defective machinery beyond his control, or furnishes said machinery to be used for the -purpose for which it was intended, without giving notice of its character or qualities. Huset v. J. I. Case Threshing Machine Co., 20 Fed. Rep., 865; Lewis v. Terry, 111 Cal., 39; Heaven v. Pender, 11 Q. B. D., 503-517; Heaven v. Pender, 19 English, Ruling Cases, 81; Sweeney v. Rozell, 31 Mise. Rep., 640 (64 N. Y. Supp., 721.)</p> <p>1. The petition as amended, presents the question simply whether or not the lessor of personal property is responsible by reason, of its defective condition while in the hands and under the control of the lessee, and to an employe of the lessee with whom no contractual relation existed with the lessor.</p> <p>2. The only basis of responsibility of one for the negligence of another is the relation of master and servant, and to incur the responsibility, the master must not only have the power to select the servant, but to direct the mode of executing the work, and to so control him in his acts in the course of the employment as to prevent injury to others, and that the master was under the duty to the servant to furnish him reasonably safe mar chinery in the performance of his duties.</p> <p>AUTHORITIES CITED.</p> <p>Robinson v. Webb, 11 Bush, 465; Bush v. Grant, 22 R.; 1766; Central Coal & Iron Co. v. Grider’s Admr., 25 Rep., 165; Wharton on Negligence, secs. 238 to 440; Curtin v. Somerset, 13 L. R. A., 322; Losee v. Clute, 10 Am. Rep., 638; Glynn v. Central R. R. N. X, 56 N. E. Rep., 698.</p>

<p>Case 19 — Action by Lou Bell Ballard and Others against R. M. Smith, for the Construction of the Will of James B. Ballard, Deceased.</p> <p>APPEAL FROM OLDHAM CIRCUIT COURT.</p> <p>From the Judgment R. M. Smith Appeals.</p> <p>(No briefs.)</p>

<p>Case 20 — Action by Joseph Denunzio’s Receiver against Charles Scholtz as in an Action on Lost Notes.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment for Defendant And Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES*</p> <p>MOTION FOR JUDGMENT NON OBSTANTE VERDICTO.</p> <p>1. The failure of defendant to plead in. his answer acceptance and delivery of the alleged gift entitles the plaintiff to judgment on the pleadings notwithstanding the verdict. Civil Code, sec. 386; Scollard’s Admr. v. Scollard, 22 Ky. Law Rep., 23.</p> <p>2. The stock was not the subject matter .of the gift, since on March 17, 1893, the date of the alleged gift, the stock belonged to Scholtz and not to Denunzio.</p> <p>3. The destruction of the notes without fraud on the part of the plaintiff did mot deprive Denunzio of his ownership of the debt nor dominion over the same. Civil Code, sec. 7.</p> <p>4. The allegation that Denunzio tore up the notes with the intention of making a gift of the debt, does not constitute a delivery of the subject matter of the gift. The gift must be perfected by as complete delivery as the nature of the property will permit. Payne v. Powell, 5 Bush, 250; Hutch v. Atkins, 96 Am. Dec., 465 (56 Ms., 324); Ashbnook v. Ryans, 2 Bush, 228; Butler v. Scofield, 4 J. J. Mar., 139; Knott v. Hogan, 4 Met., 101; Am. & Eng. Ency. of Law, vol. 8, p. 21; Gray v. Barton, 14 Am. Rep., 181, (.55 N. Y., 68); Justice v. Justice, 18 Atl., Rep., 674.</p> <p>5. The cases of Williamson v. Yeager, 91 Ky., 282; Roch v. George, 96 Ky., 339; Sutherland v. Sutherland, do not apply to this case. Here there is no trust involved and the court will not interpose to perfect a defective gift by converting the same into a trust unless it is clear that the donor intended .to create a trust. Young v. Young, 36 Am. Rep., 640 (80 N. Y., 422).</p> <p>In this case if Denunzio tore up the notes for the purpose of releasing Scholtz it is evident that he diid not intend to retain the title to the debt in him as trustee.</p> <p>6. Tearing up the notes with the intention to make a gift is •not good as a release, because without a valuable consideration. 20 Am. & Eng. Ency. of Law, 744; Strong v. Bird, 18 L. R. Eq., 315; Manakee v. McClosky, 23 Ky. 'Law Rep., 515; Jones v. Bullitt, 2 Litt., 51; Fenwick v. Phillips, 3 Met., 88; •String-fellow v. Williams, 6 Dana, 237.</p> <p>7. The authorities in this State are uniform to the effect that if a pleading .is defective in failing to allege an essential fact and no issue is formed to be tried as to the existence of that fact, judgment notwithstanding the verdict goes against him whose pleadings are so defective. The failure of defendant to allege the acceptance and delivery of the gift renders the pleadings fatally defective. Sousely v. Burns, 10 Bush, 87; Bogenschutz v. .Smith, 84 Ky., 337; Fry’s Exr. v. Lexington & Big Sandy R. R., 2 Met., 324; Fible v. 'Caplinger, 13 B. Mon., p. 456; 'Code of Practice, secs. 146, 147, 148, 149; Hanning v. Bassett, 12 Bush, 361; Callahan v. First Natl. Bank of Louisville, 78 Ky., 6,04; Tye v. Catching, 78 Ky., 463; Gore v. 111. Central R. R. Co., 17 Ky. Law Rep., p. 799; Phelps v. Elliott, 35 Fed., 461; .Murrell v. McAllister, 79 Ky., 315.</p> <p>MOTION ROB NEW TRIAL.</p> <p>1. The testimony of Mr. Aaron Kohn was improperly admitted, because at the time he received the communication concerning which he testified, he was being consulted by Denunzio as his attorney,- for the purpose of drawing up articles of incor-poration of the Denunzio Fruit Company and drawing his will. The true test of the admissibility of such evidence is whether «or not the attorney would have received the communication except for his professional employment. 'Civil Code, sec. 606, sub-sec. 4; Carter v. West, 93 Ky., 211; Greenleaf on Evidence, secs. 238, 240, 243, 245; Bank of Utica v. Mersereau, 49 Am. Dec., 220 (3 Burham Chy., 228); Parker v. Carter, 6 Am. Dec., 513 (4 Mansford, 1 vol., 273); Crisler v. Garland, 49 Am. Dec., 50 (11 Sims & Mon., Miss., 136); McLellan v. Longfellow, 54 Am. Dec., ,599; (32 Maine, 494); Loder v. Whelpley, 111 N. Y., 248; Paige v. Lewis, 18 L. R. A., 177 (89 Va., 1); Gurley v. Park, 135 Ind., 440; Bruce v. Osgoiod, 113 Ind., 360; Henderson v. Terry, 62 Texas, 281; Ferguson v. Beam, 91 Cal., 63.</p> <p>2. The cases of Hayden v. Easter, 15 Ky. Law Rep., 597, and Wicks v. Deane, 103 Ky., 69, have no application to the case at bar.</p> <p>3. It being admitted that Mr. Scholtz was Mr. Denunzio’s confidential adviser and manager, Mr. Denunzio leaned upon him in all matters, and Scholtz should not be permitted to reltain this gift unless he establish by the most ample and convincing proof the entire fairness of the transaction and possession by Denunzio of full information and knowledge concerning the gift, -and circumstances surrounding it, and of intentional action on the part of said Denunzio after competent and independent advice. Pomeroy’s Eq. Jur., secs. 956, 957; Rhodes v. Bates, 16 R. Ch., 252; Price v. Thompson, 84 Ky., 228; Nichols v. McCarthy, 55 Am. Rep., 108 (53 Com., 299); Haydock v. Haydock, 34 N. J. Eq., 575; Huguenin v. Bosley, 2 L. C. Eq., 1183, notes, 1192-1194; Reed v. Carroll, 82 Mo. App., 102; Am. & Eng. Ency. of Law, 2d ed., vol. 14, p. 1011; Boyd v. De La Montagnee, 29 Am. Rep., 197, (73 N. Y., 498); McGill’s Admr. v. Richards, 12 Ky. Law Rep., 717; Carter v. West, 93 Ky., 211.</p> <p>4. The above being the law the court erred in instructing the jury that they must find for defendant unless they found that Scholtz exerted an undue influence over Denunzio as a matter of fact, and in defining undue influence in this case to be such an influence exercised over the mind and acts of another as would induce him to do against his will a thing he would not do but for such dominant influence.</p> <p>5. The court erred in instructing the jury that if they believe from the evidence “that Joseph Denunzio delivered the certificate of twenty shares of stock to the defendant, Scholtz, and destroyed all of said notes for the purpose of and with the intention to make a gift of the said stock to the defendant, Scholtz,” they should find for the defendant, for the reason that said stock was not at said time owned by Denunzio, but was owned by 'S'choltz.</p> <p>For authorities, see point' number four, under motion for judgment non obstante verctioto.</p> <p>6. It being admitted that Scholtz stood in the most confidential relations to Denunzio in life, and after his death was the adviser of the executor, being appointed by Denunzio in his will, it was incumbent ripon him to make a full and fair disclosure of all his acts while occupying such relation, and all testimony which tended to show a design on his part to get possession ■of the stock of the Denunzio Fruit Company, whether before or after the death of Denunzio, is competent as showing a breach of the trust relation and the invalidity of the- gift. See authorities above cited.</p> <p>7. Evidence which but slightly tends to prove an issue is competent. Bland v. Gaither, 10 Ky. Law Rep., 1033; James v. Hayden, .10 Ky. Law Rep., 535; Mason v. Bruner, 10 Ky. Law Rep., 155; Jones v. Letcher, 13 B. Mon., 372; Lexington & Carter Mining Co. v. McNeal, 11 Ky. Law Rep., 135; Butler v. Scofield, 4 J. J. Mar., 139.</p> <p>8. A party’s conduct in so far as it indicates his own belief in the weakness of his ease may be used against him as an admission. Greenleaf on Evidence, sec. 195.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Judgment non obstante, and gift of debts. Watson v. Cushman’s Admr., 11 R., 181; Brown v. Brown, 11 ±i., 579; Brown v. Brown, 7 R., 376; Green v. Dudley, 6 R., 221; Lentz v. Park’s Admr., 1 R., 317; Collins v. Blackburn, 14 B. Mon., 251; Beggs v. Maltby, 2 Met., 88; Dodd v. King, 1 Met, 430; Huffaker v. Bank, 12 -Bush, 287; Crosthwait v. Misener, 13 Bush, 543; Callahan v. Bank, 78 Ky., 604; Fink v. Procter, 22 R., 1728; 14 A. & E. Ency. of Law (2d ed.), 1008, 1015, 1027, 1028, 1039, 1040; Bunnell v. Bunnell, 23 R„ 800 (64 S. W., 420); Hacker v. Hoover, 23 R., 1849; Pennington v. Lawson, 65 S. W., 120.</p> <p>2. A destruction of a note with an intention to give the debt to the debtor, constitutes a valid gift. Scollard’s Admr. v. Scollard, 23 R., 23; Darland v. Taylor, 52 Iowa, 503 (35 Am. Rep., 285); Gardner v. Gardner, 22 Wend., 522-525; Grampan v. Hardin, 10 Johnson, 292; McKenzie v. Harrison, 120 N. Y., 260 (17 Am. St. Rep., 638); Gray v. Barton, 55 N. Y., 68; Albert v. Albert, 74 Md., 526; Carpenter v.' Soule’s Exr., 88 N. Y., 251; (42 Am. Rep., 248); Ferry v. Stephens, 66 N. Y., 321; Nelson v. 'Cartmell’s Admr., 6 Dana, 8; Williamson v. Yager, 91 Ky., 282; Bispham’s Principles of Equity, 101; Roche v. George, 93 Ky., 609; Merriwether v. Morrison, 78 Ky., 572; Watson v. Carmín, 1 R., 268; Turpin v. Thompson, 2 Met., 420; Ashbroiok v. Ryan, 2 Bush, 228; Sutherland v. Sutherland, 5 Bush, 591; Jones v. Moore, 44 S'. W., 126 (Ky); Rabb v. Rabb, 64 S. W., 624 (Ky.); Sibley v. Summers, 50 Atl., 320; Payne v. Powell, 5 Bush, 248.</p> <p>3. Aider by verdict. Worthey v. Hammond, 13 Bush, 512; Railroad v. Theeman, 96 Ky., 507; Ins. 'Co. v. Reichart, 99 Ky., 302; Keener v. Baker, 93 Fed., 377; Davis v. Goodman, 62 Ark., 262 (35 S. W., 231); Mast v. Lehman, 100 Ky., 464; Hill v. Ragland, 24 R., 1053; Turner v. Prosper, 69 S. W., 1089 (Ky.).</p> <p>4. Competency of an attorney as a witness.</p> <p>Mr. Aaron Kohn was introduced as a witness by the appellee in his behalf, to prove statements made to him by Denunzio concerning the gift to appellee, to which appellant objects, on the ground that his testimony was the revelation of a confidential communication prohibited by statute.</p> <p>We contend his testimony was competent:</p> <p>(1) Because the communications were not made under the relation of attorney and client or in reference bo anything pertaining to the attornéy’s retainer.</p> <p>(2) Because, at the time the communication was made in the preparation, of the articles of incorporation, the relation of attorney and client between Denunzio and Mr. Kohn did not exist. Mr. Kohn, in that matter, was the attorney of the corporation, and the communication did not pertain to any of the corporate affairs.</p> <p>(3) Because, if the relation of attorney and client did exist between Denunzio and Mr. Kohn at that time, that that relation also existed at the same time between Mr. Kohn and the appellee, Scholtz, because both Denunziio were incorporators equally interested in the subject matter of the preparation of the articles, and therefore the communication could not be privileged as between them.</p> <p>('4) Because the communication concerning the will was made in the presence of a third person and was therefore not in fact confidential.</p> <p>(5) Because all of the communications concerning the gift, were, by necessary implication, if not expressly understood by the client, not as confidential or to be kept secret, but on the contrary, to be divulged for the purpose of carrying out the client’s desire and intentions.</p> <p>(6) Because the litigation here is not adverse to the client, but is between parties claiming under him by titles friendly to him, bath being of the same kind — one a donation by will, the other a donation by gift inter vivos. Russell v. Jackson, 8 Engish -Law & Equity, 89, 15 Jure 1117, 9 Hare, 387; Greenough v. Gaskell, 8 English Law & Equity, 93, 94, 98; Blackburn v. Crawford’s Lessee, 70 U. S., 175; Glover v. Patten, 165, U. S., 401; Appeal of Turner, 44 Atl., .314, 72 Conn., 305; Smith v. Caldwell 56 Pac., 590; Doheny v. Lacy, 61 N. E., 255, (166 N. Y., 213); Summer v. Oppenheimer, 44 N. Y., 401; Hibbard v. Haughton, 70 N. Y., 54; Covenny v. Tannehill, 1 Hill, 33; Aultman v. Daggs, 50 Mo, App., 298; Nelson Case, 64 Pac., 294 (132 Cal., 182); Curran v. 'Curran, 55 N. E., 1004 (154 Ind., 29); Sharon v. Sharon, 22 Pae., 26 (79 Cal., 633); Stallings v. Hullum, 15 S. W., 677; O’Brien v. iSpaulding, 31 S. E., 100 (102 Ga., 490); Doherty v. Callaghan, 157 Mass.,- 90 (31 N. E., 726); Layman’s Will, 42 N. W., 286 (40 Minn., 371); Coates v. 'Semper, 85 N. W., 217; Flood v. Pragoff, 79 Ky., 607; Henderson v. Ferry, 62 Tex., 281; Ferguson v. McBean, 91 Cal., 63; .'State v. McWhorter, 46 Iowa, 88; Greenleaf on Evidence, sec.. 239, 3 Jones on Evidence, 769; Hoar v. Tilden, 59 N. E., 641; Rossean v. Blean, 131 N. Y., 177; Hall v. Renfro, 3 Met., 52; Rice v. Rice, 14 B. Mon., 417; Carter v. West, 93 Ky., 211; Greenleaf on Ev. (16 ed.), vol. 1, sec. 244; Tayler v. Roulstone, 22 R., 1516 (Ky.); Haydon v. Easter, 15 R., 297; Wicks v. Dean, 103 Ky., 69; Smick’s Admr. v. Beswick, 24 R., 276.</p> <p>4. No presumption of undue influence or unfairness arises against a donee who occupies toward the donor the relation of friend and faithful servant. Morris v. Morton, 14 R., 360; Berry y. Branham, 3 R., 756; Tabler v. Jones, 12 R., 189; Brown v. Brown, 14 R., 893; Ragsdale v. Ezell, 15 R., 495; Ins. Co v. Kaiser, 13 R., 206; Ky. Tob. Assn. v. Ashley, 5 R., 184; Flood V. Pragoff, 79 Ky., 607; Com. v. Hourigan, 89 Ky., 305; Pomeroy’s Eq. Jur., secs. 956 to 963, 907, 951; Bispham on Prin. of Eq., p. 290; A. & E. Ency. of Law (2d ed.), 1012; Greenfield’s Estate, 24 Pa., 236; Jenkins v. Pye, 21 Peters, 241; Taylor v. Taylor, 8 How., 183; Jackson v. Ashton, 11 Peters, 229; Ccwee v. Cornwall, 75 N. Y., 91; Price v. Thompson, 84 Ky., 219; McGill v. Richards, 12 R., 717.</p>

<p>Case 21 — -Action by Wesley Vicboy against W. L. Moran fob Trespass to Land.</p> <p>APPEAL FROM MASON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>A general verdict in favor of a plaintiff in a suit where he is asserting several distinct claims, on any one of which the verdict might have been found, is not an estoppel' against the defendant in a subsequent action as to the validity of any one of those claims,- unless it be shown by extrinsic evidence that each lof those claims was decided in favor of the plaintiff. Russell v. Place, 94 U. S., 606; Sawyer v. Woodbury, 66 Am. Dec., 518; 1 Freeman on Judgments, sec. 276; 2 Black on- Judgments, see. 629; Stillwell v. Dunca-n, 23 R., 261.</p> <p>Although an action for trespass does not necessarily involve the question of title, yet’where the title is put in issue and relied on as a defense, the judgment is res adjudicata.</p> <p>AUTHORITIES CITED.</p> <p>High, on Injunctions, secs. 697, 698; Preston v. Preston, 85 Ky., 18; Stillwell v. Duncan, 23 R., 261; Walker v. Leslie, 90 • Ky., 642; Wheelock v. Bedford, 82 Ky., 392; Carlisle v. Howes, 19 R., 1240; Frances v. Wood, 81 Ky., 22; Davis v. MCCorkle, 14 Bush, 746; Freeman on Judgments, 260; Murrell v. Citizens Sav. Bank, 19 R., 694; Fitzpatrick v Board of Trustees, 87 Ky., 136; Preston v. Roberts, 12 Bush, 579; Boone on Code Pleading, sec. 11; Clark v. Hart, 98 Ky., 33; Spencer v. Parsons, 89 Ky., 582.</p>

Case 22 — Action by M. E. Boyd and Othebs against the Bgabd of 'Council of the City of Frankfort fob an Injunction to Prevent the Enforcement of an Ordinance. APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal.

<p>Husband and Wife — Competency as Witnesses — Agency.</p> <p>Held: 1. Civil Code Prac., section 606, subd. 1,' declaring husband and wife incompetent to testify for each other, except in an action for lost baggage, where “either or both may testify, and in an action which might have been brought by or against the wife, if she had been unmarried, where “either, but not both,” may testify, was amended by adding the further exception that, when a husband or a wife is acting as agent for his or her consort, “either” of them may ■ testify as to any matter connected with such agency. Held that, when part of the facts connected with the agency are within the knowledge .of one and part within the knowledge of the other exclusively, each may testify to the facts within his or her own knowledge, but both may not testify with reference to the same facts or matter.</p>

<p>Turnpike Roads — Taxes to Aid in Construction — ¡Statutes.</p> <p>Held: 1. Act March 9, 1867 (2 Acts, 1867, p. 539, c. 2035), incorporating a turnpike company, empowers it to construct a toll road in L. county; requires the county, when $5,000 is subscribed by the corporators, to subscribe $1,000 for each mile of road built; creates a taxing district within which a one per cent, tax is required to be levied; and provides that the tax shall he levied and collected to assist in building the road, and shall be collected till the road is completed for fifteen miles. Held, that the tax is only to “assist” in “building” the r.oad; that its maximum amount can not exceed the cost of building, less the solvent private subscriptions of $5,000 and the county aid; and can not be increased by losses after the road is built, or damage to any part after its completion, or by cost of management, or in the case of any taxpayer by mere failure to collect taxes from delinquents.</p>

<p>Case 25 — Action by National Building & Loan Association against George Craycraft, &c., for Specific Performance of Contract to Purchase Heal Estate.</p> <p>appeal from: Jefferson circuit court, chancery division.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>1. Our contention is, that a majority >of the stockholders of a corporation can not wind up its affairs by adopting a schema •or plan which simply seems fair to such majority.</p> <p>2. Every stockholder in such corporation that is being wound up, has the right to an absolute, equitable and equal distribution of all the surplus assets of the corporation after the pay-. ment of its debts and liabilities, and! not simply a near approach bo an equal distribution.</p> <p>3. Where, in such wind up there may not be money enough with which to make these stockholders who do not desire to, or who, for any reason, can not avail themselves of a plan of •exchanging stock of the association for its real estate equal to those who go into such plan, if this contingency should arise, then such stockholders who do not avail themselves of such plan, would have, as we contend, a right to look to that real estate with those who had availed themselves of such plan of exchange; otherwise a preference' would be given to those stockholders who had availed themselves of said plan.</p> <p>AUTHORITIES CITED.</p> <p>Economy, &e. Assn. v. Paris Ice Co., 24 R., 107; Washburn on Real Property, vol. 3 (5th ed.), p. 486; Mercantile Trust Co. v. South Park Residence Co., 94 Ky., 271, Kentucky Statutes, sec. 561; Eminence B. & L. Assn. v. Bohanan, 21 R., 589; Globe B. & L. Assn. v. Spellman, 23 R., 431; U. S. B. & L. Assn. v. Reed, 23 R., 342; Vinton v. Nat. B. & L. Assn., 23 R., 2021; Witts v. Paducah B. & L. Assn., 24 R., 21, 4 Am. & Eng. Ency. of Daw, p. 1080; Rogers v. Rains, 18 R., 768; Simrall v. Com. Bldg. Trust Assignee, 20 R., 1801; Forwood v. Eubank Assignee, 20 R., 1845; Bertch v. B. & L. Co., 48 S. W., 954; Allen v. Russell, 78 Ky., 105; Endlich on Bldg. Assns., sec. 526; Goodrich v. City Loan Assn., 54 Ga., 98, 48 Ga., 445.</p> <p>Appellee, by written agreement of over two-thirds of its Stockholders agreed to go into liquidation, its assets being mostly real estate of the book value of $140,000.</p> <p>It owed about $10,000 outside of what it owed the stockholders. Believing it could not sell its real estate for its book value, it was agreed that certain of the stockholders should take portions of the real estate in exchange for their stock, at its book value with eight per cent, added.</p> <p>The stockholders being numerous and the property large and valuable, this plan was adopted by a majority of the stockholders as the only one whereby the real estate could be disposed 'Of at near its value. Under this plan about $30,000 worth of the real estate was contracted for.</p> <p>One of the stockholders who made this agreement having doubts of its legality as against those stockholders who did not go into this plan, refused* to accept a deed to the real estate tendered to him in order to make a test case, and the lower court having upheld the plan adopted to be valid, the minority stockholders excepted and have appealed, claiming that such plan is inequitable and unfair.</p> <p>We submit that the majority in interest have the right to decide as to this question.</p> <p>AUTHORITIES CITED.</p> <p>Economy, &c. Association v. Paris Ice Co., 24 R., 107 (Ky.); See. 110, Thompson on Building Associations, 2d ed.; State v. Building Assn., 35 Ohio. -S't., 258; Wilson v. Proprietors of Central Bridge, &c., 9 R. I., 590; Thompson on Corp., vol. 7, sec. 8768; Booz’s Appeal, 109 Pa. St., 592; Thompson on Bldg. Assns., 289; Thompson on Bldg. Assns. sec. 291, p. 589; Thompson on Bldg. Assns. sec. 293, p. 593; Thompson on Bldg. Assns., sec. 295, p. 603; Sjoberg v. Security S. & L. Assn. (Minn.), 75 N. W. Rep., 1116, 84 Md., 625; William Dioodrieh v. City L. & B. Association of Augusta, 54 Ga., 98.</p>

<p>Wills — Interests Created — Contingent Remainder— Judgments against Remaindermen.</p> <p>Held: 1. A will giving testator’s widow property for life provided that at her death the property should' he sold, and divided among the children. The widow was empowered to disinherit any child unless she should marry, in which case they were all to take as heirs. She was to have no power to alienate or incumber the real estate, and the issue of a- deceased child were to stand in the place of their parent. Held, that the issue of a deceased child took merely a contingent remainder interest, -and were hound by a judgment and sale thereon,' obtained during their parent’s lifetime by a municipal lien claimant in an action to which they were not parties except as represented by their parent and testator’s widow.</p>

Case 27 — Action by James iSeabs against Pulaski County fob Services Superintending Road Working in his Magisterial District. APPEAL FROM PULASKI CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. Our contention is: 1. That the road supervisor and assistant road supervisor are officers. 2. That the offices of county judge and road supervisor are incompatible. 3.

<p>Corporation — Action Against — Incorrect Name — Change of Name —Pleading—Liability for Services of Laborer.</p> <p>Held: 1. In an action in which a defendant corporation is not correctly named, sheriff’s .return of service ¡of (process on it should not he quashed for that reason on an affidavit which does not show its true name; the proper method to take advantage of the defect being by plea-in abatement showing the true name. ,</p> <p>2. A petition alleged that plaintiff had been detained against her will by a corporation, and compelled by it to perform hard labor continuously from 1887 to 1900, and that it had been doing ¡business under various names, which referred to one and the same corporation. The answer alleged that the corporation sued was not organized till 1901, and was not guilty of the acts alleged. Held, that judgment should he given for the plaintiff on the face of the pleadings; the answer failing to specifically deny the acts alleged, or that the different corporations named were one and the same.</p> <p>3. An action against a corporation by its former name can not he defeated by showing that it has changed its name, unless it clearly appears that there has been a change in its membership.</p> <p>4. A change of a corporation’s name does not exonerate it from liabilities previously created, if it is substantially the same concern.</p>

<p>Case 29 — Action by ©eth W. Gill, &c. Against M. L. Fugate, &c. fob a New Trial.</p> <p>APPEAL FROM LOGAN CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>(No hriefs.)</p>

<p>Landlord and Tenant — Defective Premises — Injury to Tenant’s Property — Liability of Landlord — Notice of Defects — Pleading.</p> <p>Held: 1. A landlord is not liable to a tenant for injury to his property from a collapse of the building owing to inherent defects in the construction of the building at the time it was rented, of which the landlord did not have notice, but which he might have known by the exercise of reasonable diligence, and which the tenant did not know, and could not have discovered by ordinary diligence.</p> <p>2. "Where, in an action by a tenant for injuries to property owing to inherent defects in the construction of; the building at the time it was rented, of which the landlord had no notice, the petition averred that plaintiff only rented the lower floor of the house, but did not allege that the landlord retained control of any part thereof, or that the fall of the house was due to defects in other parts of the building than those held by plaintiff under her lease, the petition did not state a cause of action against the landlord.</p>

<p>Turnpike Tax — Assessment—Law of the Case — Effect of Invalidity — Taxation in TWo Districts — Company’s ■ Surrender of. Franchise — Unauthorized Indebtedness — Defenses to Tax— Different Assessments — Election—Railroad Property — 'Taxation Thereon.</p> <p>Held: 1. Where on .a former appeal the court of appeals has determined that the method of assessing a turnpike aid tax, provided in Acts 1889-90, vol. 2, p. 1385, o. 1034, is unconstitutional, the question can not he considered on the present appeal.</p> <p>Ü. A turnpike tax assessment, void because made by an unauthorized person, does not prevent a reassessment by the county assessor; the case standing merely as an omission by that officer of an assessment he should have made.</p> <p>3. The fact that a county assessor, in assessing turnpike aid taxes, after a void assessment thereof, does not again call on the taxpayers to list their property, does not invalidate the assessments; they having been called on each year when the regular county assessment was made for a list of their property.</p> <p>4. Kentucky .Statutes, 1903, section 4736, providing that, where property is situated in more than one turnpike taxing, district, it shall be liable only in the district whose turnpike affords it the greater benefit as determined by the fiscal court or county commissioners, does not prevent the collection of a turnpike •tax levied by the company’s charter on all property in the district, where the taxpayer has not applied to the fiscal court or board of county commissioners, and secured an adjudication exonerating his property.</p> <p>5. Kentucky Statutes, 1903, section 4748b, subsec. 8, provides that, when a turnpike is sold to the county, the company’s charter and franchise are at once at an end. Section 4306 gives the fiscal court general charge and supervision of the public roads in the county. Held, that the lease of a turnpike built partly on a county road to the county until the turnpike company should have sufficient funds to complete and maintain it did not terminate the company’s charter and franchise.</p> <p>6. The charter of a turnpike company provided that it should not issue any written obligations of indebtedness, or contract for the construction of any part of the road, until the aid tax, stock subscriptions, etc., should be sufficient to. meet such contract of construction, etc. Held, that the fact that the directors had borrowed money individually, which was used in constructing the road, before the company’s resources met the charter requirement, was not a defense to a taxpayer when sued, before' the road’s completion, for the .aid tax levied by the Legislature for the building of the road.</p> <p>7. In a suit to collect a turnpike aid tax on railroad property, the turnpike company set up an assessment for each year, both by the county commissioners, as authorized by its charter (Acts 1888-90, vol. 2, p. 1385, c. 1034), and by the railroad commission, as authorized by Acts 1891-93, -p. 308, and made applicable (section 7) to all assessments of railroads, and prayed the judgment of the court as to which was valid. Held, that the assessment by the railroad commission being under the later statute, and therefore valid, and the allegation as to the assessment by the county commissioners being merely surplusage, it was error to require the company to elect on which it would rely.</p> <p>8. Under Acts 1891-93, p. 308, art. 4, section 7, providing that the same rate of taxation levied on other realty in any year shall also be levied on railroad property, a turnpike aid tax can not be collected from a railroad for years in which no assessment thereof on individual property was made.</p>

<p>Case 32 — Proceedings by E. P. Bullock, Trustee, and Others against Mary E. Gudgell and Others to Secure an Order fob the Sale of Trust Property to said Gudgell.</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>From an Order Requiring Appellee to Pay all the Purchase Money into Court, the Guardian Ad Litem and the Shelby County Trust Company Appeals.</p> <p>(No briefs. Record misplaced.)</p>

Case 32 — Action by James P. York’s Admr. against the City of Owensboro for Causing the Death of Plaintiff’s Intestate. APPEAL FROM DAVIESS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. CLASSIFICATION OF QUESTIONS DISCUSSED. 1. The petition is defective in that it does not state facts showing the plaintiff’s right and the defendant’s duty. Maener v. Carrol, 46 Md., 212. .2.

<p>Slander — Insanity as Defense — Instructions—Death of Defendant — Disposition of Case on Reversal — Remittitur—Imposition of Terms.</p> <p>Held: 1. Total mental derangement, or an insane delusion on the subject to which slanderous words relate, is a complete defense to an action therefor.</p> <p>2. In an action for slander, in accusing plaintiff of being the mother of an illegitimate child, the evidence showed that defendant, a married woman, whose husband was exemplary in his conduct towards other women, became diseased, with the result that her mind gave way, and she 'became possessed of delusions, one of which was ■ that her husband was unfaithful. When told that her suspicions were groundless, she would cry out with rage. She believed her husband was the father of a child by a young woman harbored by plaintiff, and any woman she met with, a child became to her frenzied imagination the object of her husband’s love. This condition, was testified to by numerous witnesses, including experts and acquaintances. Held, that the court should have instructed that if the jury believed defendant, at the time of speaking the defamatory words, was insane, or under a delusion as to her husband’s relations with other women, incapacitating her from understanding their meaning, they should find for her.</p> <p>3. Where a judgment for slander is erroneous, after reversing it the appellate court has no jurisdiction to order a remittitur of an excessive portion of the recovery, because by reversal the judgment is rendered void.</p> <p>4. Where, after trial and judgment for plaintiff in an action of slander, defendant appeals and then dies, and the appellate court finds it necessary to reverse the judgment for error in instructions, it can not, to avoid an abatement of the action, impose terms on appellant (defendant’s personal representative) by which the judgment may stand as security for any future recovery.</p>

<p>Corporation — «Mortgage—Rents and Peofits — ¡Mortgaged Property —Rights of Purchaser — «Bonds—Peior Equities — «Assignment.</p> <p>Held: 1. Where, on an execution sale of property subject to a mortgage, it was held on appeal from an order confirming the sale that it should be confirmed unless the mortgagee should show that its security was thereby endangered, but no such showing was attempted, the sale was binding, and the purchasers are liable on their sale bond.</p> <p>2. The holder of mortgaged property is entitled to the rents and profits thereof while it is still in possession after the court’s refusal to appoint a receiver, though such appointment would have been proper.</p> <p>3. Though a court might properly have appointed a receiver of a mortgaged water-supply plant, it could not require the holder thereof over its objection, to operate the plant as receiver without compensation.</p> <p>4. 'Coupon bonds issued by a company incorporated under the general statutes are subject to prior equities in the hands of an •assignee, though he took them in due course of business, and without notice.</p> <p>5. Where a corporation, on the security of a mortgage, issues bonds, of which one creditor holds ten as security for $5,000, and another holds fifty-four as security for $10,000, the holders are entitled, as between each other, to share in the proceeds, on foreclosure of the mortgage, in proportion to the number of bonds, not in proportion to their claims.</p> <p>6. Where a corporation issues -bonds on the security of a mortgage, -and a creditor holds some of them as -security for -a claim equal to their face value, on foreclosure of the mortgage he is entitled to the payment of his entire claim .before any of the proceeds go to the corporation, though the proceeds of his share of the bonds are not sufficient for the purpose.</p> <p>7. To secure an issue of bonds, a corporation gave a mortgage on its water-supply plant, with a provision that worn-out machinery might-. be replaced, and the new machinery should be subject to the mortgage. The property was sold under execution subject to the mortgage. Held, that on foreclosure of the mortgage, after payment of such (portion of -the bonds as are a valid lien on the property, the execution purchaser is entitled to comipensation, before any -of the fund is paid to the corporation, for additions to the plant which might be removed without injuring the freehold, and which were not put in to- supply the place of what was originally mortgaged, but was sworn out, to the extent they increased the price brought at the foreclosure -sale.</p> <p>8. Where a corporation issues bonds on the mortgage security, the assignment of one of them by a -person who had no title to it, as security for a personal debt, will be treated, on foreclosure of the mortgage, as an assignment of a portion of his share of the proceeds sufficient to pay the debt.</p>

<p>Case 36 — Prosecution against L. & N. R. R. Co. for a Violation of the .Separate 'Coach Law.</p> <p>APPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND CITATIONS.</p> <p>1. The indictment is defective in.that it is not alleged that the baggage car in which the colored passenger referred to in the indictment was forced to ride was set apart for colored passengers. 'So far as appears from the indictment the conductor alone was responsible, for the passenger being compelled to travel in the baggage car, and for that act of the conductor the railroad company is not criminally responsible. Kentucky’ Statutes, secs. 795 to 801; L. & N. R. R. ‘Co. v. Commonwealth, 99 Ky., 663, (18 Rep., 492.)</p> <p>2. The train referred to in the indictment and in the evidence was a freight train with a caboose car attached within the meaning of the statute, and therefore the separate coach law does not apply.</p> <p>This appeal is from a judgment for $500 as a fine against the appellant for the violation of the provisions of the separate coach law, embraced in Kentucky Statutes, sees. 795, 796, 797, 798, 799, 800, 801.</p> <p>The facts in this case and in the case of the Illinois Central Railroad Company against the Commonwealth, 25 R., 295, are similar. In that case said company was indicted for the offense defined by section 795, Kentucky Statutes, while the ■proof showed the .company was guilty of the offense defined by section 796, and beea,use of the variance between the charge in the indictment and the proof said case was reversed. In the case at bar the indictment is under section 796 and the proof conforms to the charge in the indictment. The fine imposed was the lowest provided by law and the judgment of the lower court should be affirmed.</p> <p>The law requiring and imposing this, duty upon railway companies is comparatively of recent date. It has been held' constitutional, and yet from the number of times questions of this kind have been before this court demonstrates a desire upon ¡such companies to evade the provisions of this law. Two things go to make a law effective, first, the certainty of the penalty, and second, the severity thereof. The jury in this case failed to impose the latter' condition and the appellant has no reason for complaint. We respectfuly ask that the judgment of the lower court he affirmed.</p>

Case 37 — Indictment , against L. & N. R. R. Co. foe Maintaining a Nuisance. APPEAL FROM HOPKINS CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. 1.

Case’38 — Action by J. T. Day against-'the Exchange Bank of Kentucky for Fraud in the Sale to Him of Bank Stock.— APPEAL FROM MONTGOMERY CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

Case 39 — 'Action by Helen C. Smith and Others against L. & N. ■ R. R. Co. for a Mandatory Injunction to Restore a Railroad Crossing. APPEAL FROM BULLITT CIRCUIT COURT. Judgment for Plaintiffs and Defendant Appeals. ■What we here contend is: 1.

<p>Railroads — Negligence—Persons near the Tracks — Licensee—Evidence — -Statements of Engineer — Derailment of Train — Excessive Damages.</p> <p>Held: 1. Plaintiff’s intestate, a boy nine years of age, was killed, while standing in cooperage yards within the limits of a city, by a rick of staves falling over upon him. The rick was one of a series placed at intervals of some eight or ten feet, extending from the yard in which plaintiff was out onto defendant’s right of way. The accident was caused by the derailment of defendant’s train, which was backing around a curve at the rate of about twenty miles- an hour; the train striking the first rick, which fell over, striking the second one, which fell -and struck plaintiff’s intestate. There was evidence of negligence in the' condition of the track and speed of the train. Held, that a peremptory instruction for defendant was properly refused.</p> <p>2. In an action for negligent death of a person near the right of way, caused by the derailment of a train, evidence that witness said to the engineer about two minutes after the accident, “It looks like that engine could have been • stopped before that,” and that the engineer answered, “Well, . . . that won’t bring the boy back,” was improperly admitted, as what witness thought was immaterial, and the answer of the engineer was not a statement of fact.</p> <p>3. In an action for negligent death of one standing near a railroad right of way, caused by the derailment of a train, the fact that the watchman was absent from the crossing was immaterial, where deceased was not on the crossing, and the absence of the watchman had nothing to. do with his injury.</p> <p>4. In an action for negligent death of one standing near a railroad right of way, caused by the derailment of a train, evidence that the cars got off the track once in a while at other places than that of the accident w-as incompetent.</p> <p>5. In an action for negligent death of a boy nine years of age, a verdict of $18,000 was palpably excessive.</p>

Case 41 — -Action by J. D. Gardner against T. J. Winter & Co. for Deceit and Breach op Warranty in the Sale op Seed— APPEAL PROM MASON CIRCUIT COURT. Judgment por Dependants and Flaintipp Appeals. 1. Appellant had an undoubted right in his first paragraph to sue for a breach of warranty, and in his second paragraph to sue for fraud^and deceit, therefore, the motion to elect was properly overruled. McClintock v. Emick Stoner & Co., 87 Ky., 161. 2.

Case 42 — Action by Lena Foster against Cumberland Telephone & Telegraph Company for Injury to a Building. APPEAL FROM GREEN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. The damage sued for in this action is, that appellant, in the construction of its lines, sunk an anchor adjacent to the foundation of appellee’s building in a negligent manner, whereby the natural lateral support of the wall was weakened, causing the wall to crack.

<p>SYLLABUS.</p> <p>)1. C. Mattingly, who occupied a homestead with his wife and children, attempted, in the year 1888 to mortgage it to M. S. Mattingly, appellee’s assignor, but the wife did not join with him in that mortgage.</p> <p>The attempt of the husband, the wife not joining, to mortgage it was void.</p> <p>2. The attempted mortgage of the husband of the homestead, the wife not joining with him, attempted to be made in 1888, is void, and the mortgagee acquired under that instrument no lien whatever upon the land.</p> <p>3. In 1898, ten years after the date of the original attempt on the part of the husband to mortgage the homestead, the husband and the wife made, executed and acknowledged and delivered to appellants a mortgage upon the title to this land, and they thereby acquired .a first lien upon it, and on the issues presented in this case they* are entitled to be adjudged to have a first and superior lien .upon, the land sought to he sold. Lear, &c. v. Totten, &e., 14 Bush, 101-106; Tong, &c. v. Bifort, 80 Ky., 152; Hensey v. Hensey’s Admr., 92 Ky., 164; Ballinger v. Lester, 23 Ky. Law Rep., 2353.</p> <p>4. It is admitted in the pleadings in this case that the land which C. Mattingly attempted to mortgage to M. S. Mattingly in 1888, was then occupied by him, his wife and family, who. were citizens of this Commonwealth as a homestead, and that the land was then lOf less value than $1,000, and besides this land they had no other homestead.</p> <p>It is also admitted that at the time this land was mortgaged to appellants by C. Mattingly and his wife, that they were occupying the same as a homestead in Daviess county, Kentucky, being citizens of the Commonwealth of Kentucky, and that the land was then of less value than $1,000, and that besides it they had no other homestead.</p> <p>SYLLABUS AND AUTHORITIES CITED.</p> <p>1. A homestead is not an estate in land, but a mere privilege of occupancy by those who are entitled to exemption by Statutes of Kentucky. Kentucky Statutes; sec. 1702; Brame v. Craig, 12 Bush, 407; Gaines v. Casey, 10 Bush, 92.</p> <p>2. The right of homestead exemption being only a privilege of occupancy, the only persons who can claim the privileges are those mentioned in the statute for whom the benefit was created, viz., the husband, wife and infant children.</p> <p>■3. The right to claim a homestead is a personal right that can be only exercised by the husband, wife or infant children. This right may be waived by contract or neglect to claim the exemption. Waples on Homestead and Exemptions, p. 547; Thompson on Homestead and Exemptions, sec. 452; 10 Ency. Plead. & Prac., sec 4, pp. 66, 92, sec. 4; 2d ed. A. & E. Ency. of Law, vol. 15, p, 638; Honnaker v. Cecil, 84 Ky., p. 202; Belknap & Co. v. Carpenter, 8 Ky., p. 358.</p> <p>4. The husband being dead and there being no infant chil•dren, the wife of decedent waived her homestead right, and set up no claim to. same, there is no homestead privilege left for any one to assert. Gaines v. Casey, 10 Bush, p. 92.</p> <p>5. When those who are entitled to claim the homestead exemption under the statutes of Kentucky fail to do SO', the subsequent creditor can mot set up a homestead exemption for those who might have claimed same, and thus procure a preference as against the prior mortgage wherein the wife failed to unite in waiving tke exemption. . 'The creditor in any ease can not plead the exemption for his debtor. Taylor v. Disunites, 15 Ky. Law Rep., p. 703.</p> <p>6. In this case the wife, the) only one who has any right whatever to make the claim of homestead exemption, has, by a subsequent writing ratified the prior mortgage and waived her homestead right as to it, and also filed .her answer in this action, also ratifying the prior mortgage and asking the court to sell the land to satisfy same. The prior mortgage held by Hazel covers the legal estate of the decedent, and also the homestead by reason of said ratification of, and failure to claim same by the wife, and the mortgage executed to M. S. Mattingly. on November 10, 1888, and assigned to appellee "W. S. Hazel, is a first and superior lien on the land sought to be sold in this action.</p>

Case 44 — (Action by Maria W. Owens and Others against J. H. Meredith and Others -to Recover Land. APPEAL FROM EDMONSON CIRCUIT COURT. Judgment for Defendants and Plaintiffs Appeal. 'This is an action in ejectment to recover two tracts of land. The defendants denied plaintiff’s title and claim the land by adverse possession for more than fifteen years.

Case 45 — Action by Bessie Adams by Guardian, &c. against M. E. Harris’ Admr. to Surcharge a Settlement. APPEAL FROM TODD CIRCUIT ■ COURT. Judgment for Plaintiff and Defendant Appeals. Held: in construing the Kentucky Statutes and the General Statutes, the provisions of which are similar, that the exempted property was set apart to the widow, and that the title thereto vested absolutely in her.

Case 46 — -Action by William: Specht against Louisvuxe Water Company fob a Mandatory Injunction. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment fob ,-Defendant and Plaintiff Appeals. Our contention is: 1.

<p>Insurance— Certificates— By-Laws— Attachment — • Statutes — Construction — Suicide—Insanity.</p> <p>Held: 1. Kentucky Statutes 1903, section 679, provides that all policies issued to persons within, the Commonwealth by corporations transacting business therein, which contain only reference to the application of the insured or the by-laws, or to the rules of the corporation having any bearing on the contracts, shall contain or have attached a correct copy of the portions of the by-laws referred to, and, unless so attached, no such by-laws shall he received in evidence in any controversy between parties interested. Held that, where' a certificate issued before the enactment of such act- contained no. reference to suicide, but the insurer, after the passage of the act, passed a by-law that in case a member died by his own 'hand the company should be liable only for a proportionate amount of the policy, but such by-law was not called to. insured's attention nor attached to the policy, it was no defense to an action thereon.</p> <p>2. Kentucky Statutes, 1903, section 679, providing that the by-laws of any insurance company shall not be received in evidence nor considered a part of an insurance contract unless contained in or attached to the certificate, affects the remedy only to the interfering with contract rights.</p> <p>3. Though suicide by insured while sane is a breach of an implied extent of establishing a rule of evidence, and is not -invalid as condition in a policy that insured will not intentionally terminate his life, suicide while insured is insane is no defense to a policy containing no pnovisisom against suicide.</p>

Case 48 — Action by City on Lebanon against J. M. Biggers nor Taxes. APPEAL FROM MARION CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals.

<p>Railroads— .Street Crossings — ■ Accident— Negligence— Evidence — Sufficiency — Duties of Flagman.</p> <p>Held: 1. It is the duty of a railroad in running its trains through a city to give the usual signals of their approach to street crossings, and the failure to do so is .actionable negligence; and when gates and flagman have been maintained by a road at a street crossing the public may presume, in the absence of knowledge to the contrary, when the gates are open, or the flagman not in his accustomed place, that the gateman or flagman is properly discharging his duties, and that they will not be exposed to danger, and may act on that presumption without being guilty of negligence.</p> <p>2. It is negligence for a gatekeeper or flagman at a crossing to leave his post, knowing that an engine ia approaching the crossing, without giving some signal of danger.</p> <p>3. One driving on a street towards a railroad crossing must be on the lookout himself, and exercise ordinary care to prevent an accident.</p> <p>4. In an action, against a railroad flor negligence resulting in plaintiffs horses taking fright and throwing him (out of his buggy at a crossing, evidence held sufficient to authorize the submission of the issue of defendant’s negligence to the jury.</p>

<p>Case 50 — Action by the United Loan & Deposit Bank op CampBELLSVILLE AGAINST PETER BlTZER AND OTHERS TO ENFORCE A ■Mortgage Lien.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment for Defendant, Bitzer, and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An apportionment warrant in favor of M. Gleason against M. Gleason, and which gives M. Gleason a lien against the property of M. Gleason, is a nullity, since a person can not ■owe himself and can not have a lien in his own favor against his own property to secure a debt owing from himself to himself. Rapalje and Lawrence Law Dictionary, under head of “Liens;” Allin, &c. v. Shadburn, 1 Dana, 68;- Morrison v. S'tockwell, 9 Dana, 172; Debard v. Crow, 7 T. J. Mar., 7; Muhling v. Sattler, 3 Met., 285; Lytle v. Lytle, 2 Met., 128; Hicks ■V. Doty, 4 Bush, 422; Civil Code, sec. 18; Kentucky Statutes, sec. 474; Thomas v. Thomas, 3 Litt., 9 Saunders v. Saunders, 2 Litt., 32.</p> <p>2. Since Gleason could not have enforced these warrants against his own land, and especially as against his prior mortgage to appellant, neither can Bitzer, it matters not whether he holds the warrant as contract assignee od by subrogation as surety. United (States v. Buford, 3 Peters, 30; Am. & Eng. Ency. of Law (2d. ed.), vol. 2, p. 1079; Am. & Eng. Ency. tof Law (1st ed.), vol. 24, p. 192.</p> <p>3. These warrants having come rightfully into Gleason’s possession, and he being the person primarily, liable for their payment, they were paid and merged into the fee, and his subsequent assignment of them to Bitzer could not revive them. Logan County Natl. Bank v. Barclay, 104 Ky., 97; Long v. Bank of Cynthiana, 1 Litt., 290; Pomeroy’s Equity Jurisprudence, sec. 797.</p> <p>4. The agreement by Gleason to pay Bitzer in warrants, no particular warrants' being designated; and it being in Gleason’s power to select the warrants, -did not amount to an equitable assignment, and therefore, there was no equity at the time these warrants came into Gleason’s hands to prevent a merger. Christmas v. Russell, ,14 Wal., 69; Dillon v. Barnard, 21 Wal., 430; A. & Eng. Ency. of Law (2d ed.), vol. 2, p. 1068; Marshall v. Strange, 10 Ky. Law Rep., 410.</p> <p>5. But conceding .that Bitzer possessed an equity, his equity is subsequent in time, and therefore inferior in right to appellant’s mortgage. Eorepaugh v. Appold, 17 B. Mon., 625; Sweigert v. Bank of Kentucky, 17 B. Mon., 290. Especially is this true iof ,a surety who seeks subrogation. This remedy will not •be enforced in his favor, so as to defeat an interest acquired and held by a third party, when that interest, though subordinate to that of the creditor, is prior in date to the surety’s undertaking. Farmers’ & Drovers’ Bank v. Sherley, 12 Bush, 304; Fishback v. Bodeman, 14 Bush, 117; Am. & Eng. Ency. of Law (1st ed.), vol. 24, p. 199.</p> <p>“In a contest between equities, seniority prevails and notice is immaterial.” Stephens v. Benton, 1 Duv., 116; Hunt v. S'turdevant, 4 B. Mon., 464; Carlisle v. Jumper, 81 Ky., 282.</p> <p>POINTS MADE AND AUTHORITIES CITED.</p> <p>1. Michael Gleason owned a parcel of land on the east side of Floyd street, in Louisville, .Kentucky, and within the territory subject to assessment for .original improvements under the ordinance passed by the legislative authority of the city of Louisville for the construction of Floyd street.</p> <p>2. This parcel of land at the same time was subject (1) to unpaid taxes, State, county and city, (2), a vendor’s lien in favor of Temple Bodley, (3) a mortgage to George Everbaeh, and (4) a mortgage to John I. Callaway to. indemnify him for $2,000 which he had paid as surety for Gleason. This is the claim now owned by the appellant, the United Loan & Deposit Bank.</p> <p>3. When the bids for the improvement of Floyd .street were received under the above ordinance, Gleason was awarded the contract and entered into a contract in writing with the city of Louisville for its due performance, with Peter -Bitzer as his surety. Gleason failed to do any part of the work, and Bitzer as surety furnished the materialsi and labor necessary for and did complete the improvement.</p> <p>4. The warrants or assessments on the property subject to lien were necessarily issued in the name of the original contractor, Gleason, but instantly assigned and transferred in writing to the real contractor, Peter Bitzer.</p> <p>5. Michael Gleason never had any beneficial interest in these warrants and was the mere vehicle to pass them to the man who had furnished the materials and done the work.</p> <p>6! The appellants contend that Bitzer had no lien on the land ,of Michael Gleason for the amount of the .apportionment against his property, because Gleason was the contractor and the lien could not be raised on his own behalf against his own property and be superior to prior mortgages; that Bitzer being the mere assignee of the street warrant, his rights could not rise higher than his assignor’s.</p> <p>7. This contention can not be maintained, because Gleason did not do any of the work. It was all performed by Bitzer, who was bound directly to the city of Louisville for the completion of the work.</p> <p>8. It is conclusively presumed that this improvement was a benefit to the property and the cost thereof is represented by the price which it brought at the sale.</p> <p>9. The city of Louisville had an interest in this work being done and Peter Bitzer was bound to do the work, when Michael Gleason failed. It would be unjust to deprive him of the lien which would have existed in favor of any other contractor except Gleason himself. Gleason could not compel Bitzer to improve his property and deny him payment, and .since the mortgagees are conclusively presumed to have received the benefit of the work, and under the law have a lien inferior to that of street improvements, the mortgagee stands precisely in the same position that Gleason must stand toward Bitzer. The lien being valid against Gleason, it follows that it is valid against the United Loan & Deposit Bank and all mortgagees. Roe & Lyon v. Scanlan & Co., 98 Ky., 25; Noonan v. Hastings, 19 Ky. Law Rep., 485; Prairie State Bank v. United States, 164 U. S., 232; First Natl. Bank v. City Trust Co., 114 Fed. Rep., 529.</p> <p>10. There is no question of subrogation involved on this appeal.</p>

<p>Sale — Action for Price — .Defects in Material — Measure of Damages — Counter-claim—.Pleading—'Sufficiency.</p> <p>Held: 1. Where defects in yarn sold to manufacturers of hosiery could not he ascertained until it was used In the regular course of business, the .acceptance thereof does not preclude his right to counterclaim for the defects in an action for the price.</p> <p>2. Where yarn sold to manufacturers of hosiery proves defective, the measure of damages isi the difference in value of the yarn as it was contracted to be delivered and the yarn as it in fact was, and, in addition, such damage as was done to the machinery in giving it a fair trial, or such as occurred from loss of time in making the trial, provided ordinary care was exercised by -the purchaser, but no loss which might have been avoided thereby -should be allowed.</p> <p>3. In an action for the price of yarn sold to defendants, manufacturers of hosiery, special damages on account /of injury to the machinery from defects in the yarn, and 1-oss of time in making a trial thereof, were properly specially pleaded as a defense.</p>

<p>Bankruptcy — Preferences—(Suits tcx Set Aside — ¡Evidence—Depositions — 'Cancellation of Mortgages — Lrquor ¡Licenses— . Transfer by Insolvent — 'Effect.</p> <p>Held: 1. Under Bankr. Act July 1, 1898, c. 541, 30 Stat., 564, section 67e (U. 6. Comp. St. 1901, p. 3449), avoiding transfers made by a bankrupt within four months .prior to the filing of the petition, except as to purchasers in good faith, and giving the trustee the -right to recover the same, a transfer by a saloonkeeper of his stock and fixtures to a whosesaler, who knew of his insolvency, and applied a portion of the purchase money to the discharge of an unrecorded chattel mortgage held by another on the fixtures, and turned over the balance to the saloon-keeper, was void, and the stock and fixtures, or their value could be recovered of the wholesaler by the trustee, irrespective of the adequacy of consideration paid by such wholesaler, or of whether he himself secured any benefit by the transaction.</p> <p>2. Nor was the wholesaler entitled to any credit for the amount turned over by him to the saloonkeeper.</p> <p>3. In an action by a trustee in bankruptcy to set aside a sale of the bankrupt’s property, the proceeds of which sale were applied to the discharge of an unrecorded chattel mortgage of the bankrupt’s, it was error to adjudge that the mortgage be canceled, the mortgagee not being a party to the suit, and the mortgage not 'being void to the extent that it evidenced a debt, though it was not .a lien against subsequent creditors, and its validity being a subject for decision by' the bankrupt court.</p> <p>4. Under Kentucky Statutes, 1903, section 4203, et seq., relative to liquor licenses, which contemplate that a license he given to a 'definite ¡person to sell -at a definite place, although section. 4198 allows (but .dioes not compel) the authorities to renew a license in case of the death or transfer of business by the licensee to his personal .representative or the purchaser, a license is a mere personal privilege, and is not transferable, and an attempt by an insolvent licensee to transfer his license to a creditor does not render the creditor who acceptsi it liable to pay anything for the license to the licensee’s trustee in bankruptcy.</p> <p>5. In a suit by a trustee in bankruptcy to set aside a transfer made by the bankrupt, it was error to admit in evidence as part of a deposition of the -bankrupt a copy of his testimony * previously given before! the referee, which he .admitted to be true, and said that he adopted it as part of his deposition.</p>

Case 53 — Indictment against Ed. Gaddie for Housebreaking with Intent to Steal. APPEAL FROM HARDIN CIRCUIT COURT. Dependant Convicted and Appeals. We contend there was no “breaking” in this case in the meaning of the law. The evidence shows that one outside window strip had been hurst loose from the bottom and was hanging from the top, and that thei window remained unmoved in its place.

Case 54 — Action by B. F. Beard & 'Co. against Arthur Goodman hob the Price of Fertilizer Sold. APPEAL FROM BRECKINRIDGE CIRCUIT COURT. Judgment for Defendant and Plaintiffs Appeal. Appellants admit the existencel of the statute referred to and the decision, Van Meter v. -Spurrier, cited by appellee, but there are certain facts to which the attorney for appellee did not refer and it is well and prudent for this argument that he did not. What are they? 1.

<p>Factors — Advances—Liens—Character—Assignment of Debt.— Transfer of Lien.</p> <p>Held: 1. Where a corporation advanced money to a bankrupt with which to purchase tobacco to- be shipped to the corporation for sale under an agreement that the latter was to have a lien on the tobacco so purchased, and that the debt for advances, commissions, insurance, etc., should, be paid out of the proceeds of the sales when made, the lien- of the corporation was not a commondaw lien which was personal to it, but was an equitably lien, which attached to the claim, and therefore passed to the corporation’s successor, which purchased its assets on its insolvency, including the debt for which tobacco so purchased was pledged.</p>

Case 56 — 'Action by Kenton Water 'Company against South Covington District, &c., to Recover Balance Due tor Water Furnished. APPEAL FROM KENTON CIRCUIT COURT. From the Judgment said District and Plaintiep Appeal. Our contention is: 1.

Case 57 — Action by Henry Pfisterer against J. H. Peter & Co. for Personal Injury. APPEAL FROM JEFFERSON CIRCUIT COURT, -COMMON PLEAS DIVISION. Judgment for Defendant and Plaintiff Appeals. MASTER AND SERVANT. INJURY TO THE LATTER.

<p>Railroads — Injuries to Employes — Statutory Duties — Negligence —Question fob Jury — Injury in Another State — Raw Applicable</p> <p>Held: 1. Where an accident to a railroad employe happened in Tennessee, the law of that State must govern a recovery in-an action for the injury brought in Kentucky-.</p> <p>2. Thompson & S. Code, Tennessee, sections, 1298, 1299, provides that railroads shall keep an engineer or fireman on the lookout ahead, and that, when any persons or obstructions appear on the track, the alarm whistle shall be sounded and the brakes put down, and that for failure to observe the prescribed precautions the railroad shall he liable for the injury done. In construing the sections the supreme court of Tennessee held that they imposed an absolute liability for failure to observe the prescribed precautions, and that contributory negligencei -operated only to-mitigate damages. Held, in an action in Kentucky for injuries occurring in Tennessee to an employe who negligently attempted to remove a hand car from the track on the approach of a train, the evidence as- to- the failure of the fireman on the train to observe the prescribed precautions being sufficient to support a verdict, the employe could recover.</p> <p>3. Where the evidence is conflicting as to whether a railroad fireman, on- discovering plaintiff on the track, failed to sound the alarm whistle and put down the brakes, the question is for the jury.</p>

<p>Municipal Corporations — Governmental Functions — 'Negligence— Liability — iPublio Health — Contagious Diseases — 'Pesthouse —Removal—Patients—Statutes.</p> <p>Held: 1. Where a city was authorized to establish hospitals and make all necessary regulations for the protection of the public health, and, in- pursuance thereof, established a pesthouse for persons suffering from contagious diseases, acts ¡of the city’s officers in maintaining such house, and ini removing thereto plaintiff’s intestate, who had smallpox, and in caring for him there until he died, were acts performed by the city in its public, governmental capacity, and not in its corporate! and private capacity, and hence it was not liable for negligence in the performance thereof.</p> <p>2. Where a city, acting in its governmental capacity, passed ordinances for the care of persons having contagious diseases at the pesthouse, and. for their removal thereto, the city could not be a participant in the negligent acts of its officers who had charge of the enforcement of such ordinances.</p> <p>3. Kentucky Statutes, 1903, section 6, providing that, whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, damages may> be recovered from the person or persons, corporation or corporations, causing the same;, did not confer a right of action against a municipal corporation for the death of a person occurring as the result of an act done in the performance of a governmental function in removing and caring for such person, who was suffering from smallpox, at the pesthouse.</p>

Case 60 — Action by Lula P. Thompson against J. M. Thompson AND OTHEBS IN THE NATUBE OF A BILL OF APPEAL FROM LAUREL CIRCUIT COURT. From the Judgment Plaintiff Appeals.

<p>Case 61 — Petition by Jeeeeeson County against the Board oe Valuation and Assessment oe Kentucky fob a Mandamus.—</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>From a Judgment Dismissing the Petition, Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Under section 4081, Kentucky Statutes, it is not necessary that a railroad company should 'own its railroad tracks or have a lease for the exclusive use of the tracks or right of way to render it liable to taxation upon its franchise to the county in which it “operates.”</p> <p>A contract Sor a period of one hundred years for the joint use of a track and right of way with another railroad company is a “lease.” Kentucky Statutes, sec. 4081.</p> <p>A proceeding by a rail/road company to enjoin the board of valuation and assessment from apportioning franchise valuation to the counties and municipalities of the State, having been dismissed, can not be pleaded in bar to a subsequent action brought by a county against the members of said board to require them to apportion and certify the franchise valuation which may be due the county.</p> <p>The question is concluded by Henderson County v. Henderson Bridge Company, 25 Ky. Law Rep., 425.</p> <p>3. A judgment is conclusive only of the questions involved, and binds only parties and their privies. The record shows the parties to the injunction proceeding pleaded in bar, and also the questions considered. The various questions raised and the views of this court upon them are to be found in the opinion styled Southern Railway in Kentucky, et al v. Coulter, Auditor, 24 Ky. Law Rep., 203.</p> <p>4. The assessment .of the franchise of the Chesapeake & Ohio Railway Company having been made for (State purposes, having been acted upon and having stood for years, the finding of the board of valuation and assessment can not be questioned in a collateral proceeding. Henderson Bridge Co. v. Commonwealth, 17 Ky. Law Rep., 399.</p> <p>5. By sections 4083 and 4084, Kentucky Statutes, it is provided that the assessment of a franchise “shall be final” thirty days after the hearing therein provided and the fixing of the values.</p> <p>The powers lof the board are then exhausted, and the assessments so fixed can not be changed. Kentucky Statutes, secs. 4083, 4084.</p> <p>6. There is no provision in the statutes for reassessing a franchise after it has once been assessed by the board of valuation and assessment.</p> <p>7. It is the duty of the auditor to certify the valuation of the franchise of the railroad to the several counties, etc. Kentucky Statutes, sec. 4084; Southern Railway in Kentucky v. Coulter, 24 Ky. Law Rep., 203.</p> <p>POINTS AND CITATIONS.</p> <p>L Under section 4081 of the Kentucky Statutes, the Chesapeake & Ohio Railway Company did not “own, operate, lease or control” any line of track between Lexington and Louisville, and consequently it owed no franchise tax to any of these counties.</p> <p>2. This point was necessarily involved in an adjudication by this court in the case of Chesapeake & Ohio Railway Company V. the Board of Valuation and Assessment,J and the judgment therein involving the duty of a public official, binds the State and those claiming in privity with it. .Southern Ry. in Ky., et at v. Coulter, Auditor, &c., 24 Ky. Law Rep., 203.</p>

<p>Common 'Schools — Adoption of Graded System — 'Cities—Repeals— Exemptions.</p> <p>Held: 1. Kentucky Statutes, 1903, e. 113, art. 10, being part of tie general law on the. subject of common schools, placing it in tbe power of tbe people to control tbe question of tbe adoption of tbe graded school system, and providing that ‘‘any city of tbe first, second, third or fourth class may adopt the provision of this law,” does not repeal Laws 1891-92-93, p. 1211, c. 241, relating to cities of the fourth class, and permitting them to adopt the graded common system.</p> <p>2.Under Kentucky Statutes, 1903, section 4489, being part of the general law on the subject of common schools, placing it in the power of the people to 'Control the question of the adoption of the graded common school system, and providing that the article shall not affect or in any way interfere with any system of graded common .schools established by any city of the fourth class, a city of that class which has established the system and has it in use is exempt therefrom.</p>

<p>Case 63 — Action by Sarah B. Cronley’s Trustee and Others against Mary P. Stallcup and Others for Partition.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT.</p> <p>Judgment for Plaintiffs and Defendants Appeal.</p> <p>PROPOSITIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The d-eed from Mary P. Shelby to Edward Cronley, trustee, was not valid as an executed assignment. 2 Black. Com., 173; 4 Kent’s Com., 264-9; 2 Washburn Real Property, -secs. 173-3-1760; 2 Minor’s Inst., 430, 437, et seq.; Fearne Rem., 386, &c.; Bristol v. Atwater, 50 Conn., 402; Putnam v. Story, 132 Mass., 212.</p> <p>2. The rules governing the creation and transmission of ex-ecutory estates at common law apply equally to realty and personalty. 2 Minor’s Ins., 436; 2 Washburn’s Real Property, sec. 1779; 2 Kent’s Com., 332, 4 Kent’s 'Com., 268; 2 Black. Com., 398, 174-5; Fearne Rem., 5, note (c), 401 note (e), 416 note (a), 418; Lomax Dig., 311, 313, &e.; Grayson v. Tyler, 80 Ky., 359, 362.</p> <p>3. How far the rule of common law making executory limitations not assignable affected by statute. Kentucky Statutes, secs. 490, 2341, Geni. Stat., chap. '63, art. 1, sec. 6, 2 Rev. Stat. chap. 80, sec. 6; White v. White, 86 Ky., 60'2; McAllister v. Ohio Valley, &c. Co., 24 Ky. Law Rep., 1307.</p> <p>4. But the statute in termsi applies exclusively to real estate, and does not affect transfer of personalty. See statute itself, Kentucky ¡Statutes, see. 2341, 2 Rev, Stat. chap. 80, sec. 6; Grayson v. Tyler, 80 Ky., 359, 362.</p> <p>5. The instrument in coritroversy can not be aided by the doctrine of assignments in equity. 2 ¡Story’s Eq. Jur., sec. 1040b, 1040c, 4 Kent. Com., 261; Bailer v. Commonwealth, 40 Penn. ■St., 37; 20 Am. & Eng. Ency., 968, 970 and notes; Bispham Equity, sec. 165; Grayson v. Tyler, 80 Ky., 358; Buford v. McKee, 1 Dana, 107; Grigsby v. Grigsby, 8 Ky. Rep., 131; Perry on Trusts, see. 109; McCall v. .Hampton, 98 Ky., 166, 33 L. R. A., 266, and note.</p> <p>6. Construction of will and devise by implication. Metcalfe v. Framingham Parish, 128 Mass., 370; Chinn v. -Respass, 1 T. B. Mon., 25; 29 Am. & Eng. Ency., 382, 383, and notes; Jordon v. Fortesque, 10 Beav., 359; Farra v. St. Catherine College, L. R., 16 Eq., 19; Hall v. Leitch, L. R., 9 Eq., 376.</p> <p>POINTS.</p> <p>1. The interest acquired by Mary P. Shelby under Joseph Bruen’s will, which was assigned to Mrs. Cronley by the deed of July 9, 1870, was not a bare, naked possibility, neither was it in strictness merely an executory devise. It was a vested estate in a contingent remainder,, the remainder depending on the double contingency of Mary Shelby outliving Mrs. Cronley and of Mrs. Cronley dying without issue.</p> <p>2. The deed of July 9, 1870, was good as an executed conveyance, assignment or gift of so much of the estate affected as consisted of personalty.</p> <p>3. The deed of July 9, 1870, declared a trust in'favor of Sarah B. Cronley, and this was sufficient to establish a gift and to transfer the title to the personal property, even without delivery of possession andi without consideration,</p> <p>4. The seventh clause iof Mrs. Cronley’s will is not a devise by implication nor does it fix by implication the proportions in which her heirs shall take her undevised estate.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, secs. 490, 491, 2341; Nutter v. Russell, 3 Met., 163; Raab v. Raab, 23 'Ky. [Law Rep., 971; 2 -Schouler’s Personal Property, 2d ed., sec. 374; Wheeler v. Wheeler, 2 Met., 474; Alves v. Schlesinger, 81 Ky., 290; McCall v. Hampton, 98 Ky., 166; ¡Lee’s Exor. v. Lee, &e., 2 Duv., 134; McBee v. Myers, 4 Bush, 356; Grayson v. Tyler’s Admx, 80 Ky., 358; Story’s Eg. Juris., vol. 2, p. 234; Gen. Stats, chap. 63, art. 1, see. 6, Virginia Revision, p. 500; 2 Revised Stats., chap. 80, see. 6; Breckinridge v. Churchill, 3 J. J. Mar., 11; White’s Trustee v. White, 86 Ky., 602; McAllister v. Ohio Valley Banking & Trust Co., 24 Ky. Law Rep., 1307; Miller v. Henshaw & Co., 4 Dana, 325; Betty v. Moore, 1 Dana, 235; Keen & West v. Maeey, 3 Bihb, 39; Bank’s Admr. v. Marksberry, 3 Litt., 275; Timberlake, &c. v. Parrish’s Exor., 5 Dana, 345; Moore’s Trustee v. Howe’s Heirs, 4 T. B. Monroe, 199; Garland v. Denny & Colston, 3 B. M., 125; 24 Am. & Eng. Ency. Law, (2d ed.), 417; Smith Exec. Ints., 136; Watson v. Smith, 110 N. Car., 6; Washburn Real Property, vol. 2, p. 420, vol. 3. pp. 94, 95; Graves, &e. v. Spurr, 97 Ky., 651; 24 Am. & Eng. Ency. Law (2d ed.), p. 406, Title, “Remainders, Reversions and Executory Interests;” Schouler on Personal' Property, 3d ed., 1896, vol. 1, see. 76; Hooker v: English Bank, 30 N. Y., 83; Bohon v. Bobon, 78 Ky., 408; Miller v. Emans, 19 N. Y., 199; Kentucky Statutes, 491; Dumesnil v. Dumesnil, 92 Ky., 526, 24 Am. & ,Eng. Ency. of Law, vol. 27; Williamson v. Yager, &c., 91 Ky., 282.</p>

<p>Master and Servant — Dangerous Premises — Promise to Repair— Effect — Knowledge of ¡Servant — ¡Assumption of Risk — Contributory Negligence.</p> <p>Held: 1. Where plaintiff was injured by the falling of the roof of a pumping bouse which bad become so defective that it was unable to sustain plaintiff’s weight when, be went upon it to extinguish a fire, and plaintiff was the -only person employed by defendant at that place, plaintiff’s knowledge as to the condition of the roof was the knowledge of his employer.</p> <p>2. Where defendant promised to. repair a defective roof over a pumping station where plaintiff was the sole employe, such promise did not make defendant an insurer of plaintiff’s safety during the time reasonably necessary to make the repairs, but only relieved plaintiff from the charge of contributory negligence in continuing at bis work with knowledge of the defective conditions, unless such defects were So- obviously dangerous that none but a reckless person would venture on the roof until repaired.</p> <p>3. Wkere plaintiff, employed to operate a railroad pumping station, notified defendant of the defective condition of the roof over the same, and received a promise that it should be repaired, and plaintiff' was injured by the collapse of the roof while he was walking thereon within a week after the promise to repair, the expiration of such time was not so. unreasonable as to deprive plaintiff of the right to continue to work, relying on defendant’s promise to make repairs.</p> <p>4. Where plaintiff, who was injured by the falling of the roof of a pumping station at which he was employed while he was walking thereon in) extinguishing a fire, had notified defendant’s superintendent that the roof was defective, but there was no showing that such notice was to the effect that the roof was so defective as to be unsafe to go upon, it would be presumed that the notice referred only to the defects affecting its purpose as a roof, so that the promise to repair did not constitute an undertaking to make the roof safe to walk on.</p> <p>5. Where plaintiff had knowledge that the roof over defendant’s pumping station, in which plaintiff was the sole employe, was unsafe to go upon, defendant’s promise to repair the roof could not relieve plaintiff from contributory negligence in going on it before it had been repaired, in order to extinguish a fire which had been communicated to the roof.</p> <p>6. Where plaintiff was injured by the falling of the roof of a pumping station in which he was employed, which he knew to be defective and dangerous to go upon, the direction of defendant ■that if fire occurred on the roof, which plaintiff could not reach with a hose, he must go on the root and put out the fire, did not relieve plaintiff from contributory negligence in going on the roof, before it had been repaired, to extinguish a fire.</p>

<p>Case 65 — Action by Charles Wilson’s Admr. against the Chess & Wymond Co. for Damages for Personal Injuries.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>It is shown on the trial in this ease that the intestate, Wilson, was a boy, eighteen years iof age, who had been in appellee’s employ about three weeks.</p> <p>That a large vat filled with scalding water was used by appellee in its cooperage works for the purpose of steaming kegs, that it was without covering or guard of any kind for the protection of those whose work required them to he near and about it. That on the morning.of the accident the water .on the floor around the vat had frozen by reason .of the condition of the floor and the exposed construction .of the vat, the deceased, Wilson, in. performing his work fell into this vat of boiling water; only his head and part of one shoulder escaping uninjured. He lived in agony for eleven months and then death came to his relief.</p> <p>The defense was, that though these facts did actually exist, the intestate was at all times aware of the condition of the vat, that the danger was obvious to him, and therefore appellant’s recovery was thereby precluded. And, on the conclusion of the evidence, the lower court, taking this view of appellee’s liability, gave the jury peremptory instructions to find for appellee.</p> <p>In this we contend the lower court grossly erred.</p> <p>In the great charter of our liberties, life is enumerated as among the inalienable rights of man. It is the first in the sacred trinity, “life, liberty, and the pursuit of happiness,” to protect which, governments are instituted among men. If the right of life be, as it is declared to be, inalienable, it must follow that the right to all that is reasonably necessary to its possession, security and enjoyment, is necessarily embraced in the right of life itself. It follows, too, that the one can no more be the subject .of convention or contract than the other, that & man can no more license another to trifle with his life or limb than he can rightfully destroy his own life.</p> <p>Suicide 'and homicide are equally abhorrent to the law. A right which a man does not possess he can not confer.. It is of course monstrous to say that a man can acquire a right to d.o wrong. The consent, however, expressly given, of the person wronged can not change the character of the act.</p> <p>. We submit that, “the true rule as near as it can be stated, is, thait a servant can recover for an. injury suffered from defects due to the master’s fault, of which he had 'notice, if, under all the circumstances a servant of ordinary prudence acting with such prudence, would, under similar circumstances have continued the same work under the same risk, but not ■otherwise.”</p> <p>AUTIHORITIEIS CITED.</p> <p>O. V. Ry. Co. v. McKinley, 17 R., 1030; L. & H. Ry. Co. v. Vestal, 20 R., 1289; N. Pac. R. R. Co. v. Marrs, 123 U. S., 300; R. R. Co. v. Norment, 84 Va., 173; Lasch v. Stratton, 19 R., 889; Thorpe v. Mo. P. Ry. Co., 2 S. W., 3; Shearman & R. on Neg., secs. 210, 211; Snow v. Housatonic A. R. Co., 8 Allen, 446; Kane v. N. R. R. Co., 128, U. S. 94; Wood on Master & Servant, sec. 885.</p> <p>ADDITIONAL AUTHORITIES CITED.</p> <p>Wake & Co. v. Price, 22 Ky. Law Rep., 696; Lasch v. Stratton, 19 Ky. Law Rep., 889; Thorpe v. Mo. Pac. Ry. Co., 2 S. W. Rep., 3; Snow v. Housatonic R. R. Co., 8 Allen, 450; Compton v. O. K. C. & E. R. R. Co., 82 Mo., 175; Matson v. Qualey, Const Co., 90 Ills. App. —; Hough v. Ry. Co., 100 U. -S'., 213; Hess v. Rosenthal, 160 Ills., 621; L. & C. Packet Co. v. Samuels, 22 Ky. Law Rep., 977; Smith v. Pa. Cair Works, 60 Mich., 501; Shearman & Redfield on Neg., secs. 189, 194; Royer v. Tinkler, 16 Pa. Sup. Ct., 457; Goodwin v. Newcomb, 1 Ont, L. R., 525; Lafayette Bridge 'Co. v. Olsen, 54 L. R. A., 33; Lawrence v. Hagemeyer & Co., 93 Ky., 593;, Union Showcase Co. v. Blindauer, 175 111., 325; L. & N. R. R. Co. v. Richardson, 23 Ky. Law Rep., 2090; Dunivan v. O. S. & C. Co., 22 Ky. Law Rep., 777; Thompson v. Thompson, 17 B. Mon., 22; Buford V. L. & N. R. R. Co., 82 Ky., 286; Reliance T. & D. W. v. Martin, 23 Ky. Law Rep., 1625; Van Arsdel’s Admr v. L, & N. R. R. Oo., 23 Ky. Law Rep., 1668; Dick v. L. & N. ¡R. R. Co., 23 Ky. Law Rep., 1068; I. C. R. R. Co. v. Jackson’s Admr., 23 Ky. Law Rep., 1405; L. H. & St. L. Ry. Co. v. Morgan, 23 Ky. Law Rep., 121; Ind. & 111. R. R. Co. v. Beverly, 53 N. E. Rep., 175; Hennesy v. .Bingham, 58 Pac. Rep., 200; Wilson v. Williams, 22 Ky. Law Rep., 565; 'Standard Oil Co, v. Eiler, 22 Ky. Law Rep., 1642; L. & N. R. R. 'Co. v. Beltier, 20 Ky. Law Rep.. 169; Champion Ice Mfg. Co. v. Carter, 21 Ky. Law Rep., 210; C. & O. R. R. Co. v. Judd’s Admx., 2d Ky. Law Rep., 1978; Flahiff v. L. & N. R. R. Co., 9 Ky. Law Rep., 398; Ashland Coal & Iron Ry. Co. v. Wallace, 19 Ky. Law Rep., 854; Conroy v. Vulcan Iron Works, 62- Mb., 39; Cane v. N. C. Ry. Co., 128 Mo., 95; Daley v. American Printing Co. 15d Mass., 77; Myers v. Huddon Iron Co., 150 Mass., 125; Ohio Valley R. R. Co. v. McKinley, 17 Ky. Law Rep., 1028; Matthews v. Rilston, 156 U. S'., 399.</p> <p>LUST OF POINTS AND AUTHORITIES.</p> <p>1. There is mo action in court; there being no revivor for want of notice, and also because not prosecuted within the time permitted by Section 510, Civil Code.</p> <p>2. There was no negligence shown, the testimony failing to establish negligence.</p> <p>3. The master is not -compellable to furnish the safest applianees. McCormick, -&c. Co. v. Liter, 23 Ky. Law -Rep., 2154; Tuttle v.- Detroit, &e. Co., 122 U. S„ 189 (L. C. P., 30, p. 1114) Washington, &c. Co. v. MoDeada, 135 U. S., 570 (L. C. P., 34, X). 241); Kohn v. McNulta, 147 U. S., 238 (L. C. P., 37, p. 150.) . “Whatever danger attended the work of Wilson was open and -obvious, his means of knowledge were commensurate with those of the master, and therefore, assumed.” Kelley v. Barber Asphalt Co., 14 Ky. Law Rep., 356; C. 0. & S. W. R. R. Co. v. McDowell, 16 Ibid, 1; L. & N. R. R. -Co. v. .Hinder, Ibid 841; Bogenschutz v. -Smith, 84 Ky., 330; Mellott v. L. & N. R. R. Co., 101 Ky., 212; McGhee Rec. v. Bell, 19 Ky. Law Rep., 267; McCormick Harvesting -Go. v. Liter, 23 Ky. Law Rep., 2154; Tuttle v. Detroit, &c. 'Co., 122 U. S., 189 (L. C. P., 30, p. 1114); Washington., &e. Co. v. McDead, 135 U. S., 570 (L. C. P., 34, p. 241); Kohn v. McNulta, 147 U. a, 238 (L. C. P., 37, p. 150); Sou. Pac. Co. v. Seley, 152 U. S., 145 (L. C. P., 38, p. 391); Schroeder v. Car Co., 56 Mich., 132, Cooley, J.; Detroit -Crude Oil Co. v. Grable, 94 Fed. Rep., (C. .C. A.), 73; Lasch v. Stratton, 19 Ky. {Law Rep., 889 and Wake v. Price, 22 Ky. Law Rep., 696, like Bell, &e. v. Applegate, 2.3 Ky. Law Rep., 470-, are inapplicable, there having been no assurance of safety made to Wilson, nor any promise to repair defective machinery.</p>

<p>Case 66 — Action by Lucinda Comstock’s Adme. against P. G. Barlow’s Admr. for a Settlement of His Estate.</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED.</p> <p>1. Parol evidence is inadmissible to vary the terms of a written contract unless there is allegation of fraud or mistake. Wright v. 'S. R. R. Co., 16 B. M., 6; Brothers v. Proctor, 6 B. M., 109; Hibbard v. Smith, 17 B. M., 54; Spurrier v. Parker, 16 B. M., 284; Oastleman v. 'Southern Mutual Life Ins. Co., 14 Bush, 197; Vansant v. Runyon, 19 Ky. Law Rep., 1981; Mun-fords v. Green’s Admr., 103 Ky. Law Rep., 140.</p> <p>2. The rule of construction is the intention of the parties and the intention with which they contracted. Beach on Contracts, vol. 2, sec. 1299, same sec. 1637.</p> <p>3. The rule adopted in the oomstruotion of wills containing provisions of like character with covenants of antenuptial contract in question, may be applied analogously. Lusby, &e. v. Taylor, 17 Ky. Law Rep., 65; Hinklebein, &c. v. Totten’s Admr., 22 Law Rep., 1357, 1358; Powell’s Admr v. Meyers, 23 Ky. Law Rep., 795.</p> <p>"We submit that the antenuptial oontraet under which the administrator of Lucinda Barlow’s deceased husband, claims $500 of her deceased husband’s estate, is a direct and unqualified covenant to pay her said sum of $500 on the death of the obligor, and is expressly binding on the personal representatives of P. G. Barlow, deceased. Every thing else in the writing is merely descriptive of the consideration. In effect, the paper merely says: “In consideration of the fact that Mrs. Comstock surrenders her prospective rights in my estate, I agree to pay her at my death, $500.” The fact that she died first does not affect the contract. There is no contingency in it, and the fact that his death was named, and hers not, shows conclusively that the promise was absolute and in no way contingent on her ■survivorship.</p> <p>Where the consideration is valid and has passed according to law from the one party to the other, the law will never construe a contract .so as to deprive the party from whom the consideration has passed, of the thing for which it was given.</p> <p>AUTHORITIES.</p> <p>A. & E. Ency. of Law (New Ed.), vols. 19, 123, 1244; Williamson v. Yeager, 91 Ky., 282; Simpson v. S'impson, 94 Ky., 586; .Mudd -v. Mullican, 12 S. W., 263.</p>

<p>Case 67 — Action by G. W. Ragan against Charles Thompson, &c. on a Note, in which J. D. Smith Intervenes.</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>From an Order Denying the Petition of Smith as Trustee in Bankruptcy for Thompson to Vacate an Attachment, Smith Appeals.</p> <p>This, suit was instituted on February 24, 1900, and on March 7, 1900 the defendant below was adjudged a bankrupt, and the appellant, Jefferson D. Smith, was appointed trustee or assignee of said bankrupt, and filed his petition and answer herein, alleging that the attachment herein, “was procured to.be issued and levied while the defendant, Thompson, was insolvent, and the existence and enforcement of said attachment will' work a preference in favor of plaintiff as one of the creditors of said Thompson.”</p> <p>This allegation is undenied by any pleading of the plaintiff.</p> <p>Our contention is, that under the bankruptcy act, the attached property or its proceeds in this action, should have been ordered to pass into the hands of the trustee of said bankrupt for distribution under the orders of the bankruptcy court in Indiana, the said bankrupt being a citizen of said State.</p> <p>AUTHORITIES.'</p> <p>Collier on Bankruptcy (4th ed.), pp. 480, 489; In re Rhoads, 3 Am. B. R., 380, (98 Fed. Rep., 399); In re Friedman, 1 Am. B. R. 510; Pick, &e. Co. v. Mitchell, 95 Fed., 258; In re Richards, 2 Am. B. R., 518, (95 Fed., 258); In re Fellerath, 2 Am. B. R., 40, (95 Fed., 121); In re Dobson, 3 Am. B. R., 420, (96 Fed“ 86); In re Lessir, 3 Am. B. R., 8h5, (100 Fed., 433); In re Kemp, 4 Am. B. R., 242, (101 Fed., 689); Brown v. Case, 6 Am. B. R., 744, (61 N. E., 279); In re Benedict, 8 Am. B. R., 463.</p> <p>The defendant! Chas. Thompson, although .a non-resident, was served with summons in Henderson county, Kentucky, but filed noi answer and made no defense -to .plaintiff’s suit of any kind. •</p> <p>J. D. Smith filed his petition alleging that Thompson had filed his voluntary petition in bankruptcy and that he had been appointed his trustee, and asked that the proceeds of the attached property be paid to-him. The plaintiff by rejoinder alleged that Thompson was a citizen of Indiana, and a man of family, and under the laws of said 'State, $600 was exempted from the payment of his debts; that his entire assets would not amount to $600, and that nothing had or! would come into the hands of the trustee for the payment of the debts, and there was no denial of these allegations.</p> <p>We contend, that under section 70 of the bankruptcy act of 1898, which provides that “the trustee be vested by operation of law with the .title of. the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, etc.,” that the trustee has no title to exempt property; neither title nor right of possession. Collier on Bankruptcy, pp. 74, 75, 403.</p>

Case 68 — 'Action by S. Y. Thimble against the Hartford Fire Insurance Company on a Parol Contract fob Insurance.— APPEAL FROM LOGAN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS DIS'CUSaED. 1. The alleged executory parol agreement to insure appellee’s property is not established by the evidence. No such contract was ever made. 2.

<p>Taxation — Co-operative Insurance Companies — Double Taxation —Licenses—Municipal 'Corporations — Powers—Payment of License Tax — Creditor.</p> <p>Held: 1. Where a co-operative insurance company was organized without stock, as authorized by Kentucky .Statutes, 1903, c. 32, subd. 5, and its personal property consisted of money contributed by its members for the payment of losses, the fact that the members paid taxes on the property insured did not exempt the company from taxation on- its personalty on the ground of double taxation.</p> <p>2. Under Kentucky Statutes,- 1903, section 3011, authorizing the general council of cites of the first class to provide for licenses to he paid by insurance companies doing business within the city, the city of Louisville was .authorized to pass an ordinance imposing a license tax payable to the city sinking fund, on insurance companies doing business within the city, in addition to the ad valorem tax otherwise levied thereon.</p> <p>3. Where a city ordinance levied a license tax on- insurance companies doing business within the city, and provided that such tax should he in addition to the ad valorem tax otherwise assessed against the companies, an insurance company paying such license tax w-as not entitled to credit therefor on the ad valorem tax levied against it.</p> <p>4. The Legislature may properly ¡classify taxpayers in devising an equal system of taxation, and may properly authorize municipal corporations to provide different systems of taxation for different kinds of corporations.</p>

Case 70 — ‘Action by the Commonwealth against Strater Bros. Tobacco Co. for a License Tax. APPEAL FROM FRANKLIN CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals.

<p>Corporation — Subscription for Stock — -Release—What Raw Governs — Varying Written Agreement by Parol.</p> <p>Held: 1. Where one subscribed for stock jnerely to enable the other subscribers to incorporate, arid after such incorporation he was-released from the subscription by the unanimous consent of the other subscribers, and while the corporation had no outstanding debts, the release is valid, and subsequent creditors „ can not complain.</p> <p>2. The validity of the cancellation of a subscription to the stock of a corporation whose chief office ,is in the State is governed by the law of the State, though the incorporation' was under the laws of another State.</p> <p>3. It is immaterial whether a release of all liability under a written subscription for stock was in parol or otherwise.</p>

Case 72 — Application by S. B. .Hodges to the Metcalfe County Court por Liquor License APPEAL PROM METCALFE CIRCUIT COURT. Fbom a Judgment of the County Court, Applicant Appealed to the Circuit, and from the Circuit Court to the Appellate Court. Our contention is: 1. That upon the filing by the applicant for license of his affidavit that he could not have a fair trial before the county judge, it was the duty of said official to vacate the bench. 2.

Case 73 — Action by John A. Ewing’s Administratrix against L. & N. R. R. Co. for Causing the Death of Plaintiff’s Intestate. APPEAL FROM OLDHAM CIRCUIT COURT. Judgment for Plaintiff and Defendant Appeals. POINTS AND' AUTHORITIES • DISCUSSED. 1.

<p>Case 74 — Action by Elizabeth Jolly against I. C. R, R. Co. fob Personal Injuries.</p> <p>APPEAL FROM OHIO CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Proof to be available must be supported by the allegation. Kaufman, &c. v. Gas. Co., 105 Ky., 131; Shields v. Heard, 21 R., 992; Chun, By &e. v. Ky. & Ind. Bridge Co’s Receiver, 23 R., 1092; Thomas v. L. & N. R. R. Co., 18 R., 164; McCain v. L. & N. R. R. Co., 13 R., 334; Kerney v. City of Covington, 1 Met.. 339.</p> <p>2. A variance between averment and proof may be taken advantage of by motion as in cases of non-suit. Miteherson v. Grays, &e., 4 B. -Mon., 400; Price v. Price’s Executor, 101 Ky., 28.</p> <p>3. Instructions shall conform to the issues joined! by the pleadings. Henry v. L. & N. R. R. Co., 3 R., 695; Grogan & Kenny v. Allen, &e., 5 R., 251; Henderson -Hominy Mill Co. v. .Watkins, 15 R., 301; Bogenschutz - v. Smith, 84 Ky., 330; Shields V. Heard, 21 R., 992; L. & N. R. R. Co. v. Hall, 24 R., 2492.</p> <p>4. Plaintiff having pleaded specifically as to the ankle and leg, she is held to that plea. Davis v. Paducah & Light Co., 68 S. W., 140; Shaw v. Hollenbach, 65 S. W., 636; Louisville Ry. •Co. v. Park, 29 S. W., 455; L. & N. R. R. Co. v. McGary’s Ad-mr., 20 R., 691.</p> <p>5. Special damages, such as loss of time, which are for the ■natural, but not necessary results of the act complained of, must be specially pleaded. Am. & Eng. Ency., vols. 5, 50, see also note 1; Bliss on Code Pleading, 2d ed., sec. 297b; Shearman & Redfield on- Negligence, 4th ed., vol. 2, sec. 739; Hale on Damages, 223, 224; Hutchinson on Carriers, 2d éd., see. 796; L. & N. R. R. Co. v. Mason, 24 R., 1623; L. & N. R. R. Co. V. Reynolds, 24 R., 1402; Macon v. Paducah St. R. R. Go., 23 R., 46.</p> <p>-6. There was a decisive preponderance of evidence' in this case against the finding of the jury; it should have been set aside and a new trial awarded. L. & N. R. R. Co. v. Hall, 24 R., 2487, Ibid.; L. & N. R. R. Co. v. Reynolds, 24 R., 1402, Ibid.; D. & -B. Mail Co. v. Gilliland, 24 R., 2081; Singer Mfg. Co. v. • Howes, &c., 20 R., 1607; Newson v. Lycan, 3 J. ,J. Mar., 440.</p> <p>7. When the verdict is palpably against the evidence, a new» trial ■ should be awarded. Triple-State Natural Gas & Oil Co. v. Wellman, Ry, &c., 24 R., 851; Deposit Bank of Sulphur v. Peak, 23 R., 19; Bogard, &e. v.' Turner, &c., 23 R., 630.</p> <p>1. The evidence shows that the seat of the injury to appellee' was in the ankle, and that the ligaments of the ankle holding the bones together as well as those of the small bones of the instep, had been torn loose lor ruptured, causing discoloration and swelling of the foot, and was at her age (seventy-six years) a permanent one.</p> <p>2. We understand the rule to be that mere loss of time may be pleaded generally, unless the- time lost is of peculiar and unusual value, in which case it must be specifically pleaded.</p> <p>3. The evidence is amply sufficient to support the verdict, the jury being the sole judges thereof, and we contend that the damages given are not excessive.</p> <p>AUTHORITIES CITED.</p> <p>Parker v. Jenkins, 3 Bush, 587; Louisville, Cin. & Lex. R. R. Co. v. Case’s Admr., 9 Bush, 729; Second Greenleaf on Evidence, sec. 254; L. & N. R. R. Co. v. Reynolds, 71 S. W., 516; L. & N. R. R. Co. v. Mason, 72 S. W., 27.</p>

Case 75 — Action by John T. Underhill against Walter Murphy and Others for a Strike Injunction. APPEAL FROM KENTON CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. POINTS' DISCUSSED AND AUTHORITIES CITED. 1. The combination entered into for the purpose of inflicting injury upon the appellant was and is illegal. The acts done in furtherance of such' illegal purposes take characteir from that purpose.

<p>Case 76 — 'Action by Annie M. Moose against Metbopolitan Life Ins. Co, upon a Policy on the Life of Abram R. Moobe fob Heb Benefit.</p> <p>APPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>Judgment for Plaintiff. Defendant Appeals.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>The only question on appellant’s appeal arises as follows:</p> <p>1. Issues presented in pleadings were not tried hy court.</p> <p>2. Judgment was given on face of pleadings for plaintiff, while the defense that the breach of a condition precedent to the right to recover was still an issue and untried. ■</p> <p>3. 'Where a policy of life insurance provides that the obligation of the policy does not attach unless on the date «f delivery the insured is in sound health; and where such is set up in answer and it is alleged on that date the insured was .not in sound health, a valid defense to recovery on the policy is made. 19 Am. & Eng. Ency. Law, 2d ed., p. 61; M. L. I. Co. v. Howe, 62 O. S., 204; Carson v. M. L. I. Co., 1 Pa. Sup. Co., 572;, Plumb v. Penna M. L. U. Co., 108 Mich., 94; Packard v. M. L. I. Co.,. Jan. 6, 1903, 71 N. H.</p> <p>The sole question presented on this appeal is this: Did the lower court err in rendering judgment on the face of the papers without, according to defendant, a jury trial on its supposed defense that the policy never became a binding contract because insured was not in sound health when the policy was delivered?</p> <p>This attempted defense is not available for reasons shown on the face of the papers. .</p> <p>1. The provision as to the applicant being alive and in sound health when the policy is delivered, refers solelly to a change in condition from that existing at the time of application and medical examination, and! “sound health” is co-ordinate with “alive,” both in logical and grammatical connection. Condition No. 1, simply means, that there has been no material change in his health between the date of application, when the risk was accepted, and the date of the delivery of the policy. 42 L. R. A., p. 276.</p> <p>2. A condition like No. 1, will be strictly construed against the company. The delivery of the policy made a prima fade case for the plaintiff as all authorities now hold, and the company must allege and show, definitely and certainly, good reasons for enforcing such provisions inserted exclusively for its benefit. Forfeitures after the death of insured are peculiarly odious.</p> <p>3. Even admitting that insured was not in sound health when the policy was delivered, yet the pleadings admit that the company made its own investigation and assumed the risk, and charged a higher premium on the basis that he was not a sound risk.</p> <p>4. It is elementary that an insurance company can not collect and retain the premium, and claim there was no insurance. The defendant will not be permitted to say that the policy was. never binding until it shall pay back or tender back the premium collected., and this must appear in the pleading. This has not been done.</p> <p>5. The attempted defense is wholly devoid of merit either legal or equitable.</p> <p>[Note by Reporter. — The supplemental brief of appellee containing list pf authorities cited, is not in the record.]</p>

<p>Case 77 — Action bt Albert Jahn’s Admr. against William H. McKnight & Co. for Causing the Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment foe Defendants and Plaintiff Appeals.</p> <p>POINTS.</p> <p>1. The team owner was not an independent contractor.</p> <p>2. Whatever may have been the relation between the appellee and the team owner, the relation between appellee and the team driver was such as to render appellee liable for the team driver’s negligence,</p> <p>3. In any event, the lower court erred in giving a peremptory instruction to find for appellee.</p> <p>AUTHORITIES.</p> <p>Am. & Eng. Ency. of Law, 2d ed., vol. 16, pp. 187, 190, 191; Jenson v. Barbour, 15 Mont., 582; Montgomery Gas Light Co. v. Montgomery & E. Ry. Co., 86 Ala., 372; Campbell v. Lunsford, 83 Ala., 512; Linehan v. Rollins, 137 Mass., 123; Thompson on Negligence, vol. 1, p. 579; Alyell v. Tyrer, El. Bl., 906; Blake v. Thirst, 2d H. & C., 20; Texas, &c. R. R. Co. v. June-man, 71 Fed. Rep., 939; Tiffin v. McCormick, 34 Ohio St., 638; Waters v. Pioneer Fuel Co., 52 Minn., 474; Phila W. & B. Ry. Co. v. Hahn, 12 Atl., 479; Thompson on Negligence, vol. 1, sec. 579, p. 537; Kimball, v. Cushman, 103 Mass., 194; Adams Express Co. v. S'chofield, 23 Ky. Law Rep., 1120; Southern Express Co. v. Brown, 67 Miss., 260; Vary v. Ry. Co., 42 la., 246; Wichtrecht v. Fasnacht, 17 La. Ann., 166; L. & N. R. R. Co. v. Tow, &e., 23 Ky. Law Rep., 408; Rait v. New Eng. Fur. &c., 66 Minn., 76; Barg Bousfield, 65 Minn., 355; Sullivan v. Dunham, 35 N. Y. App. Div., 342; Hart v. Ryan, 6 .N. Y. Supp., 921; Brophy v. Bartlett, 108 N. Y., 632.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellees are merchants, having no delivery wagons; they contracted with Granville' Hooper to furnish them a horse, wagon and driver to carry and deliver as much as could be done with one team, for a stipulated price per week. By the contract Granville Hooper selected the horse and driver, retained exclusive control, paid his driver, was the only person who could discharge or give orders to his driver, paid expenses of maintaining team. Granville Hooper did not drive for appellees, except occasionally, but did other work, furnishing his son, John Hooper, as driver. Granville Hooper was free to send other persons with this team in spare time, and did so occasionally. Appellees, under contract, had no right to control John [Hooper in the means of doing work, did not pay him and could not discharge him. 'The horse was old and gentle. John .Hooper left it untied one day, backed to curbing, while he went fifteen feet away into the store for parcels; the horse was frightened by a drove of hogs and ran away, killing appellant’s infant son.</p> <p>John Hooper was the servant tof Granville Hooper. Gran-ville Hooper was independent contractor with appellees. Neither was the servant of appellees, and appellees are not liable. 16 Am. & Eng. Ency. of Law, 2d ed., 192, 187, 196; He Forrest v. Wright, 2 Mich., 368; 1 ..Shearman & Redfield on Negligence, sees. 160, 162, 164, 165, 168; Robinson v. Webb, 11 Bush, 464; 1 'Thompson’s Com. on Neg., secs. 621-2, 638, 629, 579, 549, 631, 581; .Salliotte v. King, Bridge, &e. Co., 122 Fed., 378; The Slingshy, 120 Fed., 748-753; Covington v. Geyler, 93 Ky., 275; Straus v. City of Louisville, 108 Ky., 155; Cen. Coal & Iron Co. Vj Grider’s Admr., 25 Ky. Law Rep., 165; Hall v. Concord, 57 Atl., 864-7; Dutton v. Amesbury Bank, 63 N. B., 405-6; Murray v. Dwight, 161 N. Y., 301-55 N. E., 901-8; Lewis v. Long Island, 56 N. E., 548; Little v. Hackett, 116 IT. S'., 581.</p> <p>2. Cases identical in their facts with case at bar. Reidel v. Moran, 103 Mich., 362, 51 N. W., 509; Fink v. Mo. Furn. Co., 82 Mo., 225; Driscoll v. Towle, 63 N. E., 922; Reagan v. Casey, 160 Mass., 374, 36 N. E., 58; Joslyn v. Grand Rapids Ice Co., 50 Mich., 576, 15 N. W., 887; Wadsworth-Howland Co. v. Foster, 50 111. Apps., 514; Foster v. Wadsworth-Howland Co., 68 111. Apps., 600, 168 111., 514, 48 N. E., 163; Wood v. Cobb, 13 Allen, 58.</p> <p>3. In the absence of any evidence that John Hooper was a servant of appellees, a peremptory instruction was proper. 1 Thompson on Neg., sec. 640; Lewis v. Long Island Ry., 56 N. E., 548; Reidel v. Moran, 61 N. W., .509; Wadsworth v. Foster, 50 111. Apps., 515; Foster v. Wadsworth, 168 111., 514, 48 N. E., 163. ;</p> <p>4. It was not per se negligence to leave an old, gentle horse untied while not more than fifteen feet away, in the absence of evidence of circumstances rendering it negligent. Dolfinger v. Fishhack, 12 Bush, 474-9; Potter v. N. Y. Cen., 48 N. Y. Supp., 446; Warner v. R. R. Co., 80 N. Y., 212.</p>

<p>Pleading — Petition —.Amendment ■ — ■ Partnership — Compromise— Evidence — Written Contract — Alteration or Modification by Oral Testimony.</p> <p>Held: 1. The court -did not abuse its discretion in refusing permission -to amend the petition after the issues had been made up for fully a year, and in the meantime defendant had died, and ■the conduct of his case was in the hands of his administrator.</p> <p>2. On an issue as to whether a defendant was a member ¡of a firm, mercantile reports were not admissible, where it was not shown that they were based on information given by him or by his authority, or that he knew the existence thereof, or of the general reputation that he was a member.</p> <p>3. Evidence of a compromise offered by plaintiffs was properly rejected where it did not appear that defendant himself made an offer of compromise, or authorized it, or that he knew that an offer was made.</p> <p>4. Where, to establish the existence of a firm, articles of dissolution are introduced in evidence by plaintiffs, evidence of declarations, made at the time of their execution, by the party sought to be bound, denying the existence of the firm, and asserting that he only signed the same on assurance of counsel that it was right to do so, and that they would not bind him, was thereafter properly admitted as a part of a transaction which plaintiffs themselves had undertaken to introduce in evidence.</p> <p>6. The ■ evidence was not a violation of the rule against oral testimony to alter or modify a written contract, in the absence of an allegation of fraud or mistake; the controversy not being between the parties to the instrument, but between strangers and a party thereto.</p> <p>6. Declarations made by one sought to be bound as a partner, to the effect that he was not a member of the firm in question, are inadmissible.</p>

<p>Case 79 — Action by Bardstown & Louisville Turnpike Co. against Nelson County for the ■Price of the Turnpike in said County.</p> <p>APPEAL FROM NELSON CIRCUIT COURT.</p> <p>From the Judgment Plaintiff Appeals.</p>

Case 80 — Action by Beattyville Bank against T. T. Roberts and Othebs on a Promissory Note. APPEAL FROM LEE CIRCUIT COURT. Judgment for Defendants and Plaintiff Appeals.

<p>Homestead — ©ale—Necessity of Joining Wife — Dower—Relin- ■ QUISHMENT — ELECTION TO TAKE — .EFFECT ON HOMESTEAD.</p> <p>Held:- 1. A married woman’s potential dower interest in her husband’s land can be relinquished only in the statutory modes; that is, by the execution of a deed with her husband, or by separate deed if he has already conveyed, and by privy acknowledgment before a pnoper officer. The execution of an assignment for- creditors by the husband, in which the wife does not join, has no effect on her interest.</p> <p>2. On the death of her -husband a widow’s inchoate dower becomes consummate, and she can then sell it by deed or contract.</p> <p>3. Where a widow voluntarily filed 'her answer in a suit for the specific performance of a contract made by her husband’s as-i signees for the sale of his property* and offered therein to conclude an agreement which she had made during marriage to release dower and homestead in the property, and executed a deed, and received the consideration stipulated in the contract, she divested herself of her dower in the land.</p> <p>4. Under Kentucky Statutes, 1903, section 1707, which declares homestead to be for the benefit of the widow and infant children of a decedent, where the widow elects to take dower in lieu of homestead, the infant children’s right to a homestead attaches to the land set apart as the widow’s dower.</p> <p>5. Although, by Kentucky Statutes, 1903, section 1706, a debtor can not mortgage his homestead without joining his wife, he may nevertheless sell it, whether she joins in the deed or contract or not, in which case, if he dies first, however, her dower right will to that extent prevail over the deed.</p> <p>6. Where a husband contracts and binds himself to convey all the title he has in land, he necessarily divests himself, and all others entitled thereto by relation, of a homestead in the land.</p>

<p>Clerk of Court of Appeals — 'Expiration of Term — Uncollected Fees —Right to Collect — How Appropriated.</p> <p>Held: 1. Acts 1893, p. 1157, c. 226, section 44, providing that, when the term of any chief officer shall expire, he or his personal representative, trustee or committee, as the case may be, shall at once deliver to his successor in office all accounts, claims, and fees due to such officer in his official capacity, applies only to those officers who are required monthly to report the amount in their hands, and pay it into the State treasury, and are allowed to draw hack from the treasury, for salaries and expenses, not exceeding seventy-five per cent, of the amount so paid in, and does not apply to the clerk of the court of appeals, who collects his fees, and pays the salaries and expenses of his office, and at the end of the year pays the balance into the treasury.</p> <p>2. When the term of the clerk of the court of appeals expires, his successor takes up the office where his predecessor put it down, and may properly collect any outstanding fees due the office and apply the money to the- conduct of the office, just as his predecessor might have done had he continued as clerk.</p>

Case 83 — 'Actions by the City oe Lexington against W. T. Wooleolk and J. Q. A. Hayman to Enifokce Liens eob Street Improvements. APPEAL EROM EAYETTE CIRCUIT COURT. Judgments eor Defendants and Plaintiee Appeals. SUMMARY. ' .Summarizing the argument in the .foregoing pages, our original and alternative propositions are as follows: 1. The court below has jurisdiction of the cause of action. 2.

Case 84 — Action by Henry Elliott against Levi Campbell to Recover Land. APPEAL FROM KNOX CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. •CLASSIFICATION OF QUESTIONS. 1. The evidence of appelee, Levi Campbell, relative to the location of the beginning corner of his tract of land’ and to a conversation had with Benjamin Eve and others, who are dead, was incompetent. Cited, subsec. 2, sec. 606, Civil Code; Whalen v. Nesbet, &c., 95 Ky., 464. 2.

Case 85 — 'Action by Dennis Higgins, &c. against Honora Higgins Involving the Right to a Homestead. APPEAL EROM JEEEERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 1. From the Judgment Dennis Higgins and Others Appeal. 1. Our contention is, that unless Bartholomew Higgins, the owner of the land in controversy, occupied it as a homestead in his life time and at the time of his death, his widow, Honora Higgins, could have no homestead right therein. 2.

<p>Case 86 — 'Indictment against Mollie Walker por Keeping a Bawdy House</p> <p>APPEAL PROM HENDERSON CIRCUIT COURT.</p> <p>Dependant Convicted and Appeals.</p>

Case 87 — Prosecution against Major Pearson fob Forgery. — > APPEAL FROM OWSLEY CIRCUIT COURT. Defendant Convicted and Appeals. 1. Our contention in this ease is that the indictment charges ¡no crime. The writing which appellant is charged with publishing, is as follows: “Green Hall, Kentucky, January 4, 1904. — This is to certify that I have given Major Pearson, or consented for him and my daughter, Fanny P. Eavans, to marry. You are authorized to issue license to him.

Case 88 — Action by City op Louisville against the Mengel Box Company fob City Taxes. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. Judgment for Plaintiff and Defendant Appeals. CLASSIFICATIONS. 1. The appellant is exempt from municipal taxation for a period of five years. Constitution of Ky., sec. 170; Kentucky Statutes, sec. 2980a; Ordinances of City of Louisville for 1899, pp. 310-11, quoted on pp. 22-3 of R. 2.

<p>Case 89 — Action by I. B. Nall against Gus G. Coulter as State Auditor to Compel Him to Bay Plaintiff His Salary as Commissioner of Agriculture During the Time said Office was Wrongfully Held by His Contestee.</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>AUTHORITIES.</p> <p>1. As to the change of the time of holding a State office or deduction ¡of .salary. Kentucky Constitution, s.ec. 235; Kentucky Statutes, sec. 3763; 79 Ky., 306, 6 Bush, 3, and 3 Met., 241.</p> <p>2. Actual qualification not necessary. 2 Atl. Rep., 505, 101 N. Y., 526, 77 Maine, 231; A Wyoming Case, 45 L. R. A., 295.</p> <p>3. The right to the emoluments of an office follows the legal right to the legal title, not the colorable possession of the office. People v. Tierman, 30 Barb. (N. Y.), 193; 28 Call., 21; 37 Cal., 193; The Opinion of Judge Cooley in 20 Mich. Rep., 186; 53 Miss., 721,.supporting the opinion of Judge Cooley, 79 Maine, 484. See also 101 N. Y., 526, 77 Maine, 231; A Wyoming Case, 45 L. R. A., 295.</p> <p>4. Definition of office. 6 Wall (U. S'.), 393.</p> <p>5. Salary is an incident to the office and can not be detached from it. 80 Va„ 492, 28 Cal., 21, 102 N. Y., 538.</p> <p>6. Payment to ate facto officer may be enjoined, statutes to same effect. 6 Abbott’s Pr. (N. Y. Sup. CL), 296; Arizona Rev. Stat., 3065, Cal. Polit. Code, -sec. 936; Idaho Rev. Stat., sec. 380.</p> <p>7. For collection of general authorities see, vol. 8, Am. & Eñg. Ency. of Law, 808, 45 L. R. A., 295, notes.</p> <p>MOTION TO DISMISS APPEAL.</p> <p>The appellee, by counsel, moves the court to, dismiss the appeal herein, for the following reasons:</p> <p>l! The court, from an examination of the petition, will see that there is no claim against Gus. G. Coulter, as an individual; that there is a total want of personal liability ion the part of said Coulter, either as an individual or as- auditor of the Commonwealth, and that he has not been appointed to defend this action on behalf of the Commonwealth; that there has neither been an act of the General Assembly, nor joint resolution, authorizing the appellant to sue. this Commonwealth.</p> <p>2. It is a rule of law that the Commonwealth is not embraced by these rules of litigation which are made to operate between individuals, unless she has given her consent by an act of the General Assembly, showing her intention to subject herself to the same rules of practice.</p> <p>3. Because this court judicially knows the Commonwealth can not be sued, and this court given jurisdiction over her, without legislative authority so to do. Constitution, sec. 231.</p> <p>4. That parties will not be permitted, as decided by this court by authorities cited below, “To evade this constitutional inhibition by ignoring the State in their suits, and proceeding directly against the public officer, having the custody of the moneys sought to be reached.” Divine v. Harvie, 7 Mon., 439; Tate v. Salmon, 79 Ky., 540; Shoemaker v. Grant County, 36 Ind., 175; Taylor v. Hall, 71 Texas, 206; Rodman v. Musselman,</p> <p>12 Bush, 354; Otawo County v. Alpins, 36 N. W. Rep.,- 702; League v. DeYoung, 2 Texas, 497.</p> <p>5. This is an action, asking a writ of mandamus against the appellee, Coulter, to issue his warrant to the appellant for an alleged sum of money, and in order to entitle him to said writ, it must appear, first, that the appellant has a legal right to demand the issual of said warrant to him; second, it must also appear that it is the legal duty of said Coulter to issue said warrant, but the question involved here is to determine whether or not the appellant has a legal right to make this demand against the Commonwealth of Kentucky, who is not a party to this proceeding, and to determine said right, the Commonwealth has, as yet, withheld her consent, without which ■neither this court nior any other court in this Commonwealth has jurisdiction to decide; and not until the right of the appellant has been so decided, have the courts of this Commonwealth jurisdiction to grant a writ of mandamus against the said appellee, and this whole proceeding is without due process of law. Cited, Lowe y. Phelps, 14 Bush, 645, Norman, Auditor v. Ky. Board of Managers, &c., 93 Ky., 538.</p> <p>6. Because this is not an action to compel an officer to perform either an executive or ministerial duty, but an action to judicially determine legal rights between the appellant and the Commonwealth of Kentucky by evading the constitutional inhibition, embraced in section 231. And therefore the writ of mandamus will not lie and this appeal should be dismissed.</p> <p>RESPONSE TO MOTION TO DISMISS.</p> <p>The State has done all it can do to give appellant his salary as commissioner of agriculture, and while it has not authorized a suit to he brought against itself, it has done better. It has actually appropriated the money with which to pay the salary. The auditor is the ministerial officer who is the stake-holder, and if he fails or refuses to pay it over, he may be proceeded against by mandamus.</p> <p>If it be said that the appellant must first establish his right to the money in some court of the State, we answer that such right has already been established, and judgment rendered in favor of Nall.</p> <p>Mandamus is the universal remedy adopted to test the right ■of the officer to his salary.</p> <p>CITATIONS.</p> <p>Pryor v. Stone, Auditor, 103 Ky., 645; Auditor v. Halbert, 78 Ky., 577; Auditor v. Adams, 13 B. M., 151.</p>

<p>Case 90 — Action bt Pat Carroll’s Admr. against Citt of Louisville and L. & N. R. R. Co. for Causing Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment for Defendants and Plaintiff Appeals.</p> <p>PEREMPTORY INSTRUCTION IMPROPER. WHEN.</p> <p>1. It is now elementary law in this -State that, “Where the evidence conduces in any degree to establish the right of recovery, it is improper to give a peremptory instruction for the defendant.” L. & N. R. R. Co. v. Howard, 82 Ky., 212; Shelby v. C. N. 0. & T. P. R. R. Co., 85 Ky., 224; Ziegler v. Robinson, 12 R., 558.</p> <p>2. Likewise, “A peremptory instruction for a defendant ought not to be given unless, after admitting every fact proven by plaintiff’s evidence to be true, as well as all reasonable inferences that can be drawn therefrom, the plaintiff has failed to establish his case.” Fugate v. City of Somerset, 16 R., 807.</p> <p>3. See also the very recent utterance of this court to the effect that, “It is a well established rule in this State that if there is any evidence conducing to show a right of recovery in the plaintiff, it is improper for the court to give a peremptory instruction for the defendant even though the court may be of the opinion that the verdict should be for the defendant. This' is a question of fact which must be left to the determination of the jury.” C. & N. Ry. Co. v. Ogles, 24 R., 2162.</p> <p>Applying the above proposition of law to the pleadings and proof in the case at bar, it follows that your Honors must necessarily reverse the judgment “appealed from.”</p> <p>AUTHORITIES CITED.</p> <p>■ 1. Peremptory instruction improper — when. L. & N. R. R. Co. v. Howard, 82 Ky., 2Í2; Shelby v. C. N. O. & T. P. R. R. Co., 85 Ky., 224; Ziegler v. Robinson, 12 R., 558; Fugate v. City of Somerset, 16 R., 807; C. & N. Ry. Co. v. Ogles, 24 R., 2162.</p> <p>2. Law governing the case at bar. Groves v. Louisville Ry. Go., 22 R., 599; Am. & Eng. Ency. of Law, p. 983; Pierce on R. R., p. 248; Wood on R. R., vol. 1; Gillette v. Western R. R. Corporation, 8 Allen, 560; Railway Co. v. Nolan, 53 Texas, 148, 149; Cline v. Crescent City R. R. Co., &«., 43 La., 332; Gould v. City of Topeka, 49 Am. Reports, 496 (3¡2 Kan., 485); Fugate v. City of Somerset, 97 Ky., 48; City of Evansville v. Decker, 84 Ind., 325.</p> <p>3. Evidence in the case. Town of Falmouth v. Woods, 16 R., 317; Robinson v. Belknap, 7 R., 605.</p> <p>STATEMENT OF POINTS.</p> <p>1. There is no evidence that the crossing was out of repair at the date of the accident, nor -that the character of crossing was dangerous.</p> <p>2. There is no evidence that the crossing caused the accident, but the contrary is shown by appellant’s evidence.</p> <p>3. The hoard of public works in the city of Louisville is vested by statute with exclusive control over the streets, and it in the exercise of this power, directed the L. & N. R. R. Co. to put in the character of crossing which was adopted and which is the subject of criticism in this case..</p> <p>The company had no option but to obey and is not responsible for any accident which results from the character of the crossing. Young v. Yarmouth, 9 Gray ('Mass.), 386; Commonwealth v. Boston, 97 Mass., 556;. C., iSt. L. & N. O. R. R. Co. v. L. & N. R. R, Co., 22 Law Rep., 660.</p>

Case 91 — ¡Prosecution against Church Brown pos Murder.— APPEAL- PROM SCOTT CIRCUIT COURT. 1. We submit that the evidence in this case is not sufficient to authorize the jury to find the defendant guilty, it being substantially the same that it was on the former trial, which this court said on reversing the case, “that at the conclusion of the testimony for the Commonwealth the.lower court ought to have peremptorily instructed the jury to find the defendant not guilty.” 2.

Case 92 — Action by June Monehan by Next Friend against South Covington and Cin. Street Ry. Co. for Personal Injuries.— APPEAL FROM CAMPBELL CIRCUIT COURT. Judgment for Defendant and Plaintiff Appeals. There are three -acts of negligence complained of in this action: 1.

<p>Municipal Corporations — Public Improvements — Special Assessments — Apportionment—Deviation from Specifications — STatj utes — Interest—Railroad Right of Way — Judgment in Rem —‘Damages.</p> <p>Held; 1. A railroad right of way is liable to assessment for a street improvement.</p> <p>2. Kentucky Statutes, 1899, section 2833, relative to street improvements, provides that the improvement shall he made at the cost of owners of lots in each fourth of a square according to the feet ■owned by them, respectively; that every subdivision bounded on all sides by principal streets shall be deemed a square, hut that, when the territory contiguous to the improvement is not defined into squares by principal streets, the ordinance shall state the depth on both sides fronting said improvement to he assessed, according to the number of square feet owned by the parties, respectively, within the depth. iSeetion 2834 provides that in no event shall a city be liable for an improvement, Without the right to enforce it, against the property receiving the benefit. An apportionment was erroneously made according to depth, when the territory was divided into squares by principal streets, and on appeal a new apportionment was ordered. Held, that the city was not liable to the contractor for interest from the time of the first apportionment, since the city had no right to enforce liability under such apportionment.</p> <p>3. Kentucky Statutes, 1899, section 2834, provides that the court in which suits may be pending relative to street improvements .shall make all corrections, rules, and orders to do justice to all parties concerned. Section 2833 provides that a street improvement shall be made at the cost of owners of lots in each fourth of a square, according to the number of feet owned by them, respectively; that every subdivision of territory bounded on all sides by principal streets shall be deemed a square; and that, when the territory is not so bounded, the ordinance shall state the depth on both sides fronting the improvement, and the apportionment be made according to the number of square feet owned by the parties, respectively, within the depth. Held, that where, on appeal, in an action to enforce apportionment warrants, founded on an apportionment made according to. the depth, the court found that the territory was bounded by principal streets, it had authority to order an apportionment on that basis.</p> <p>4. A street which was being improved crossed railroad tracks at an acute angle, and, by an agreement with the railroad company, the crossing was made at right angles, and constructed by the railroad. In order to reach the crossing, a slight deflection was made at the point of intersection; but, if the deflection led the improvement without the lines of the street, the ground was practically a part of the street, and no additional burden was placed on the property owner. Held, that the assessment was not invalid on the ground that there was a deviation from the contract.</p> <p>5. Kentucky Statutes, 1899, section 2830, provides that when, in the opinion of the board of public works, it becomes necessary to make any alterations in the specifications of a contract, the alteration shall be made only by order of the hoard, and that it shall be of no effect until the price to- be paid for the same' shall be agreed upon in writing. Held, that where a railroad crossed at an acute angle a street which was being improved, and, by agreement between the board of public works and the railroad, the crossing was constructed by the railroad, at its expense, at right angles, and the only change in the contractor’s work was in the slight deflection in the carriage way from a straight line, there was nothing to defeat the improvement lien.</p> <p>6. The fact’that the clerk of the board of public works failed to enter the order for the change in the crossing did not render the lien invalid.</p> <p>7. Where, in an action to enforce apportionment warrants for pub-lie improvement, the chancellor ordered the commissioner to charge the quarter squares contiguous to the improvement according to. the rule laid down in the statute, the presumption is that the commissioner did his duty, and that the judgment of the circuit court thereon was right.</p> <p>8. A proceeding to enforce an assesssment for a street improvement is .a proceeding in rem.</p> <p>9. Ten per cent, damages will not he awarded on the affirmance of a judgment in a proceeding strictly in rem, where the judgment has heen superseded.</p>

<p>Case 94 — Accounting by J. S. Cooper as Substituted Assignee of Houston & Adams.</p> <p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>From the Judgment Cooper Appeals.</p> <p>(No briefs, record misplaced.)</p>

<p>Taxation — Trust Personalty — Where Taxable — Retrospective Assessment.</p> <p>Held: 1. Personalty held by a testatmentary trustee is taxable at the domicile of the beneficiary.</p> <p>2. Where property -taxable in a city is not assessed there during the period prescribed by statute for making the assessment, the assessor -is authorized, independently of statute, to assess it retrospectively at any time before the right to assess and collect taxes is barred by the statute of limitations.</p>

<p>Case 96 — (Action by 'Mary L. Colston against Louisville Railway ■Company for Damages foe Personal Injuries.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>1. The undisputed facts in this case present the clearest possible case of contributory negligence, and the court should have given peremptory instructions to find for the defendant.</p> <p>2. If it be possible for the court to determine that it was not error to refuse a peremptory instruction to find for the defendant, then certainly the verdict should have been set aside by the trial court as being contrary to the evidence and the law, and its failure to do so is error.</p> <p>3. On the first trial of this case the court below granted a new trial on the ground that it had misdirected the jury with respect to the measure of damages, and refused to set the verdict aside on the second trial, although upon the second trial the court committed precisely the same error in directing the jury as to the measure of damages; in both instances turning the jury loose, without compass, and wholly uneonfined within the limits of the rules defining compensatory damages.</p> <p>4. The court below was in distinct error in directing the jury that if the defendant was guilty of any negligence they should find for the plaintiff, instead of directing the jury in respect to the negligence alleged in the petition.</p> <p>5. Upon the last trial there were two jurymen who could not read nor write. The verdict not being unanimous it had to be signed by those who agreed to it, and these two illiterate jurymen had to make their marks to their signatures. Thus on the trial there were but ten men who could read the instructions, and the defendant was entitled to a trial by twelve competent jurors.</p> <p>AUTHORITIES CITED.</p> <p>Butterfield v. Forrester, 11 East, 60; Beach on Contributory Negligence, sec. 4; L. & N. R. R. Co. v. Scanlan, 22 Rep., 1400; L. & N. R. R. Co. v. Fox’s Admr., 20 Rep., 81; Railroad Co. v. Minogue, 90 Ky., 374; Railroad Co. v. Case, 9 Bush, 736; Railroad Co. v. Ritter, 2 Rep., 386; Long v. Aldridge, 5 Rep., 180, 11 Eney. P. & P., 158, 162; Railroad Co. v. Penrod (Ky.), 56 S. W., 1; Railroad Co. v. Clark, 20 Rep., 1378; Railroad Co. v. Victory, 47 S. W., 442; Taylor v. Combs, 20 Rep., 1828; Thomas v. Railroad, 18 Rep., 164, 47 Cent. Law Journal, 451; Railroad Co. v. Park, 98 Ky., 590; Bogenschutz v. Smith, 84 Ky., 836; Bank v. Mattingly, 92 Ky., 660; Barker v. Railroad, 3 Rep., 695; Railroad v. Fox, 10 Rep., 399; Railroad v. Brennan, 16 Rep., 126; Graney v. Railroad, 57 iS. W., 276; Brown. v. Railroad, 21 Rep., 996; City of Cadiz v. Hillman, 20 Rep., 1776; Adkins v. Street Ry. Co., 14 Rep., 428; Shearman & Red-field on Negligence, sec. 872; Nicholas v. Ry., 6 S. W. (Ky.), 339; L. & N. v. Taaffe, 21 Rep., 64; Spooner v. Railroad, 21 N. E., 696; Rupard, &c. v. C. & O. R. R. Co., 88 Ky., 280.</p> <p>It is contended by appellee:</p> <p>1. That she had the right to cross the street at the point she did, and had the right to assume that the motorman would have his car under control and give the signal as he approached her; and it was the duty of the motorman in charge of the ear to use special care to avoid injuring her.</p> <p>2. That she was not guilty of contributory negligence in attempting to cross the street in front of the car.</p> <p>.3. That even though she had been guilty of contributory negligence, appellant is liable because the motorman in charge of appellant’s car saw, or by the exercise of ordinary care, could have seen her in time to have avoided injuring her.</p> <p>4. Appellant has no cause to complain of the instruction given by the court to the jury as to the measure of damages, as it restricts appellee to compensation for mental and physical suffering and permanent injury, when she was also entitled to compensation for loss of time and expenses of recovery.</p> <p>5. The law does not make it a necessary qualification of jurors that they should be able to write their names.</p> <p>AUTHORITIES CITED. ’</p> <p>Owensboro City Ry. Co. v. Hill, 21 Rep., 1639; Elliott on Roads & Streets, secs. 770, 811; Joyce Electric Law, secs. 570, 650; Central Passenger Ry. Co. v. Chatterson, 14 R., 663; Young v. Atlantic Ave. Ry. Co., 64 N. Y. State, 124; Nellis on Street Surface Railroads, pp. 371, 379; Bertsat v. Met. St. Ry. Co., 68 App. Div. (N. Y.), 228; Haight v. Hamilton St. Ry. Go., 29 Ont. R., 279; Wells v. Rochester Ry. Co., 92 Hun., (N. Y.), 531; Passamanecks v. Lou. Ry. Co., 98 Ky., 195; Denver City v. Sherrel, 88 Fed. Rep., 226; Thompson on Neg., sec. 1479; N. J. Elec. Ry. Co. v. Miller, 50 N. J. L„ 423; A. & E. Ry. Cases N. S., 519; Garrity v. Detroit St. Ry. Co., 112 Mich, 369; Zimmerman v. Union Ry. Co., N. Y. Supp., 362; McLain v. Brooklyn City Ry. Co., 116 N. Y., 459; Deck v. L. & N. R. R. Co., 23 R., 1069; Griffiths v. M. St. Ry. Co., 71 N. Y., 406; Doyle v. Swift Iron & Steel "Works, 5 R., 59; Red River Lumber Co. v. Newkirk, 12 R., 635; Cent. Pass. Ry. Co. v. Chatter-son, .14 R., 663; L. & N. R. R. v. McCoy, 81 Ky., 402; N. M. & M. V. R. R. Co. v. Bates, 13 R., 208; Johnson v. L. & N. R. R. Co., 91 Ky., 661; Louisville Ry. Co. v. Blaydes, 668; L. & N. R. R. Co. v. Mattingly, 32 R., 89; Ross v. Ross, ■5 B. Mon., 20; L. & N. R. R. v. Schumaker, &c., 23 R., 2458; Carson v. Singleton, 23 R., 1526; Cent. Pass Ry. Co. v. Kuhn, 86 Ky., 578; L. & N. R. R. Co. v. Mitchell, 87 Ky., 327; Ky. C. R. R. Co. v. MoMurtry, 3 R., 625; Lou. Southern Ry. v. Minogue, 90 Ky., 369; L. & N. R. R. Co. v. Abell, 14 R., 239; Alexander v. Humber, 86 Ky., 565.</p>

<p>Case 97 — ¡Proceedings by Rule by John E. Jones against T. P. .Sizemore to Determine who is Entitled to Hold the Office of .Sheriff of Lee County.</p> <p>APPEAL FROM LEE CIRCUIT COURT.</p> <p>From the Judgment Jones Appeals.</p> <p>The question in this case is whether a sheriff elected to fill an unexpired term where an incumbent is in tbe office by appointment, may enter upon the duties of his office and displace the incumbent before tbe first Monday in January succeeding his election.</p> <p>The Constitution creates the office of sheriff and provides the time for beginning the - duties after election, to-wit, on the first Monday in January thereafter, although he holds until the election and qualification of his successor. Const., section 99.</p> <p>We submit that, no shadow of reason is stated and none exists ior appellee to have any greater right to displace appellant between the election and the regular time for any elected sheriff to enter than if appellant had been appointed so as to fill the remainder cf the unexpired term.</p> <p>Hence, appellee is driven to one or the other of these alternatives:</p> <p>1. That there is some public necessity or policy in filling an unexpired term by • election for the person elected to have the right if he chooses to enter before the fixed date for the regular duties of the office to begin and displace the incumbent, if he choose to do so; or,</p> <p>2. That there is positive law prescribing for such entry on a fixed day and the termination of the incumbent’s duties before the regular period.</p> <p>Counsel for appellant respectfully submit that neither of the grounds have been or can possibly be shown by counsel for appellee and that section 152 of the Constitution, which only provides for the mann'er of filling vacancies, does not prescribe any time for the person elected to fill a -part thereof, to enter upon the office on any fixed day except the first Monday in January, or in the least support the latter alternative or any position of counsel for appellee. There is absolutely no day fixed for a sheriff elected to enter upon his office except the first Monday in January after his election.</p> <p>Section 99 of the Constitution, which is referred to and relied upon by appellant in his brief herein, provides that the first term of county officers immediately following the adoption of the Constitution should be for three years, beginning on the first Monday in January, 1895, and ending with the first Monday in January, 1898, and the next term begins with January, 1898, and ends with January, 1902, and the next begins with January, 1902, and ends with January, 1906, and so on. There is not, as appellant seems to contend, any term of office either beginning or ending on the first Monday in January, 1904. Except at the beginning and ending of the terms of the respective office, the first Monday in January has no more significance than the first Monday in February or August. The provisions of the Constitution and the statute referred to in appellant’s brief only apply to one who is elected for a full •term of office and not to one who is elected to fill the remainder of the unexpired term. It would be impossible- for the appellee to enter upon the duties of his office at the beginning of a term, for the reason that the term began on the first Monday in January, 1902, nearly two years before his election. The term of the office of sheriff is four years, no more and no less. The present term throughout the 'State began in January, 1902, and ends in January, 1906. It has but one beginning and one ending, -though there may be a dozen incumbents. The appellant was only appointed to fill a vacancy and that vacancy ceased when appellee was elected and qualified. After the people had spoken in the matter and elected the appellee, there was no longer any need either in fact or in contemplation of law for the further services of the appellant.</p>

<p>Case 98 — 'Suit by Woodson Harris against John E. Gbeenleab, &c., bob Specific Performance in Sale of Land.</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>From a Judgment Sustaining a Demurrer to and Dismissing the Petition, Plaintiff Appeals.</p> <p>Harris, an ignorant negro, bought, in January, 1898, three lots of Greenleaf, in an addition to Richmond at the price of seventy-five dollars', and he and his two children gave' their joint note for the price, for which Greenleaf gave his title bond claiming to be the exclusive owner. In March, 1899, Greenleaf brought suit on his note and for the enforcement of his lien.</p> <p>Pending this suit Evans comes into this case as a partner of Greenleaf, and gets Harris u> execute a new note for $100 for the lots, and has drawn up a new contract of sale for which there was no, consideration, Harris still being ■ in possession under his original purchase. In this new contract a penalty was inserted that if the $100 note was not paid at maturity the property should be surrendered. In January, 1900, Harris paid Greenleaf ten dollars, taking a receipt therefor to be credited on his note, and some time thereafter tendered the balance of the money, which was refused, and Greenleaf •agreed to give Harris more time for payment. Evans, disregarding this verbal agreement, forcibly took possession of the lots, and in September, 1903, Harris filed this suit asking for a specific enforcement of his original contract. The court sustained a demurrer to his petition and he appeals. We claim that the original tender by Harris of the balance due on the seventy-five dollar note to Greenleaf is a sufficient tender in equity to authorize a recovery of the lots), subject to a lien for ,such balance as is now due. The lots are now worth $375. Am. & Eng. Ency. of Law (1st ed.), vol. 22, p. 1036;</p> <p>Griffin, &c. v. Coffey, &e., 9 B. M., 452; Martin v. Martin, 16 B. M.t 8.</p> <p>■We claim that appellant in this ease fails to show in his petition that he has done any act or made any effort showing a ■ genuine desire on his part to carry out eithen of his contracts made an exhibit with his pleading.</p> <p>He says in his petition that he got the money and offered to •pay appellee, but he fails to say when he got it, or that he told either of them that he had it, or that Greenleaf in whom the title lay, refused to accept it.</p> <p>He fails to say how much he offered to pay, nor does he say under which of his contracts he was willing to settle or offered to pay.</p> <p>We submit that under the allegations of the petition the court properly sustained the demurrer thereto.</p>

<p>Factors— Advances— Contracts— Establishment— Sufficiency — Breach — Damages—Profits.</p> <p>Held: 1. In an action by plaintiffs for a balance due for money advanced to defendants with which to purchase tobacco to-ship to plaintiffs for sale, evidence held insufficient to sustain an- alleged counterclaim for plaintiffs’ failure tft account for all tobacco received and sold.</p> <p>2. In an action against defendants for a balance due for money advanced to them by plaintiffs, defendants alleged as a counterclaim that plaintiffs bad made an agreement to supply defendants with all the money they might need to continue purchasing tobacco to ship to plaintiffs for sale, and had broken the agreement. Held, that the evidence was insufficient to establish the contract.</p> <p>3. Profits which defendants might have made had money been advanced to them to buy tobacco were too precarious to constitute an element of damage, the price the tobacco would have been by the time that to be purchased could have been prepared and put on the market being conjectural, and it not appearing that it was worth more than defendants had agreed to pay for it.</p> <p>4. The breach of an agreement to lend' money furnishes no grounds for a recovery of damage for injury to the reputation of the borrower from not getting it.</p>

<p>¡Life Insurance — Non-Payment of Premium — ¡Election to Take Paid-up Term Policy — Infant Beneficiaries.</p> <p>Held: The provision of a life policy whereby failure for three months, after default in payment of a, premium, after two annual premiums have been paid, to surrender the policy and mgke application to have insured’s interest in the reserve fund used in purchasing a paid-up policy, payable when the original policy would have been payable, is an election to have such interest in the reserve fund applied to purchase of term insurance for the amount of the original policy, is not affected by the fact that the beneficiaries are minors; they have no longer .time for making the election.</p>

<p>Case 101 — -Action by Leo Keheb against City of Louisville fob Damages fob Personal Injuries.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION, NO. 1.</p> <p>Judgment for Plaintiff and City Appeals.</p> <p>•The errors complained of in this action are:</p> <p>1. The court erred in forcing appellant, city, into .a trial in the absence of the city attorney who was absent on business for the city, and who was familiar with the case, while the assistant city attorney who was -present had no familiarity with the case, and was not prepared to try it.</p> <p>2. The court erred in the instructions given to -the 'jury. "</p> <p>3. The damages awarded are excessive and appear to have been given by the jury under the influence of passion or prejudice.</p> <p>AUTHORITIES CITED.</p> <p>City of Covington v. Emma Asman, 68 S. W., 646; City of Henderson v. Reed, 62 -S. W., 1039; City of Covington v. Man-waring, 68 S. W., 625; City of Wichliffe v. Moring, 68 S. W., 641, 4th compilation of Ordinances City of Louisville, 107-120.</p> <p>1. A city is liable for the acts of its licensee.</p> <p>Whatever is done by its license or authorization is the same as though the city itself did the act, and any negligence in the doing of any authorized or licensed act,'ior'the omission of any duty charged by such license or authorization, is the negligence or omission of the city. District of Columbia v. Woodbury, 136 U. S., 450; Boncher v. City New Haven, 40 Cohn., 456; .Sutton v. Snohomish, 11 Wash., 28 (39 Pac., 275, 48 Am. St. Rep., 852); Anderson v. City of Wilmington, 19 Atl., 509; Stevens v. City of Macon, 83 Mo., 345; MeCallister v. City of Albany, 18 Ore., 426; Baumeister v. Markham, 101 Ky., 122; Pettengill v. City of Yonkers, 116 N. Y., 558; Nelson v. Counter, 100 N. Y., 89; Turner v. City of Newburg, 109 N. Y., 301; Jennings v. Van Schaick, 108 N. Y., 530; Cleveland v. St. Paul, 18 Minn., 279; Prentiss v. Boston, 112 Mass., 43; -City of Baltimore v. O’Donnell, 33 Md., 110; Grant v. Brooklyn, 41 Barb., 381; City of Seneca v. Jalinsky, 15 N. Y. Sup. Ct. Rep., 571; City of Indianapolis v. Dougherty, 71 Ind., 5; Bacon v. City of Boston, 3 Cush, 174; Wendell v. City of Trioy, 39 Barb., 329; Storrs v. Utica, 17 N. Y., 104; City of Glasgow v. Gillenwaters, 23 R., 2375 (67 S. W., 361); Fugate v. City ■of Somerset, 29 S. W., 970; City Covington v. Bryant, 7 Bush, 340; City of Louisville v. Brewer, 24 R., 1674; Dillon on Mun. Corp., see. 1027; May v. City of Anaconda, 66 Pac., 759; Deering on Negligence, sec. 16-3, City of Covington v. Asman, 24 R., 415; Jones on Neg. of Mun. Oorp., secs. 79, 86, 183, 184; Elliott on Roads & .Streets, secs. 611, 613; 614, 824.</p> <p>2. Contributory negligence. City of Glasgow v. Gillen waters, 23 R., 2375; (-67 S. W., 381); City of Davenport v. Ruckman, 37 N. Y.,-568; Pettengill v. City of Yonkers, 116 N. Y., 564; Jennings v. VanS’chaick, 108 N. Y., 531; Burt v. Legg, 110 Ind., 479; Turner v. Newburg, 109 N. Y., 301 ■ (4 Am.' S't. Rep.,</p> <p>'453); Garden- v. Richmond, 83 Va., 436; City of Dubuque v. Burwiek, .173 111., 553; Topeka Water Co. v. Whiting, 58 Kan., 639.</p> <p>3. The street was unsafe. Dillon on Mun. Corp., 1008; Turner v. King, 17 R., 872; Railroad v. Mangham, 69 S. W., 80; Lithgow Mfg. Co. v. Samuel, 24 R., 1590.</p> <p>4.. Doctrine, of--notice was submitted under general'instructions of negligence.</p> <p>5. Absence of counsel. Cook v. Commonwealth, 24 R., 1410; Douglass v. Douglass, 24 R., 2398.</p> <p>6. Excessive verdict. Constitution, sec. 54; Van Hell v. Great Northern Railroad, 96 N. W., '789; -City of Louisville v. Bailey, 25 R., 6.</p> <p>7. Courts do not busy themselves wifh harmless errors. Economy Light & Power Co. v.. Hiller, 68 N. E., 72; 'Lithgow Mfg. Co. v. Small, 24 R., 1590; L. & N. R. R. Co. v. Rogers, 24 R., H60.</p>

<p>Removal of Causes — Dismissal of Removed Cause — Effect.</p> <p>Held: An action removed from the State to the United States court stands on the same footing as one originally brought in the latter court, and may be dismissed without prejudice to a future action in the State court within the statutory period.</p>

<p>Case 103 — Action by Clara R. Barnes’ Admr. against Louisville & Evansville Mail Co. eor Causing Death; of Plaintiff’s In-</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES.</p> <p>1. The petition does not state a cause of action against appellant.</p> <p>The allegations on which appellee relies for his cause of ac-' tion against appellant are these:</p> <p>“The said' Marsden Company landed its said boat and barges at the wharfboat . . . for the purpose of discharging and letting off its passengers including plaintiff’s intestate, and the Louisville <S) Evansville Mail 'Company also landed one of its steamboats at said wharfboat in a careless and negligent manner and carelessly and negligently run its said steamboat against said wharfboat with great force so as to pull and ■ throw said wharfboat away from the said boat and barges of the defendant Marsden Company, plaintiff’s intestate being in the act <of leaving said boat and barges of said Marsden Company and alighting therefrom, that being her destination, and said drowning was caused by the joint and concurrent negligence of the Marsden Company and appellant.”</p> <p>There is nothing in the petition to show that appellee’s intestate was stepping towards or on to or standing on the wharf-boat which appellee alleges was struck with great force by appellant. To say that the boat landed at the wharfboat for the purpose of discharging its passengers does not necessarily mean that the passengers were discharged on to, or are stepping towards the wharfboat. Louisville & Cincinnati R. R. Co. v. Case’s Admr., 9 Bush, 728; Chiles v. Drake, 2 Metcalf, 149; Louisville & Portland Canal Co. v. Murphy Admr., 9 Bush, 527; Webster’s Unabridged Dictionary, definition of the word “at.”</p> <p>2. The court should have peremptorily instructed the j»ry to find for appellant at the conclusion of the evidence for appellee. First, because appellee’s intestate was a trespasser. She was attempting to disembark on to the wharfboat at an unusual, an unsafe, and an unprovided place, and appellant was under no duty to keep • a lookout for her, or to anticipate her presence on the forward end of the wharboat. Thompson on Negligence, vol. 1, sec. 990, p. 908; Thompson on Negligence, vol. 1, sec. 1006, p. 923; Lackat v. Lutz, 94 Ky., 287; Oatts v. C. N. 0. & T. P. R. R. Co., 15 Ky. Law Rep., 87; L. & N. R. R. Co. v. Kellem, 14 Ky. Law Rep., 734; Woodyard v. Ky. C. R. R. Co., 12 Ky. Law Rep., 800; Illinois Cpnt. R. R. Co. v. Dick, 91 Ky., 434; Gresham v. L. & N. R. R. Co., 15 Ky. Law Rep., 599; McDermott v. Ky. C. R. R. Co., 93 Ky., 408; Shackelford v. L. & N. R. R., 84 Ky., 43; L. & N. R. R. Co. v. Cox. 8 Ky. Law Rep., 961; Vertress v. Administrator Newport News, &c. Co., 95 Ky., 314; Thompson on Negligence, viol. 1, sec. 239, p. 228; Thompson on Negligence, sec. 238, p. 227.</p> <p>Because the proximate cause of the accident was the failure of the Marsden Company to provide gang planks or stages for its passengers to walk upon from the barges to the wharf-boat. Thompson <on Negligence, vol. 1, sec. 50, p. 54; Setter’s Admr v. City of Maysville, 69 S. W. R., 1074; Martin’s Admr. v. L. & N. R. R. Co., 95 Ky., 612; Shields v. L. & N. R. R. Co., 97 Ky., 103; L. & N. R. R. Co. v. Webb, 99 Ky., 332; Illinois Cent. R. • R. Co. v. Mizell, 100 Ky., 235; Franke v. Head, 19 Ky. Law Rep., 1128; Louisville Gas Co. v. Kaufman, Straus & Co., 20 Ky. Law Rep., 1069.</p> <p>3. The instructions given by the court were erroneous.</p> <p>(a) In the first instruction the court failed to submit to the jury the question of appellant’s! negligence, and the instruction did not follow the complaint of the petition. S'andy River Cannel Coal Company v. Caudill, 60 S. W. R., 180.</p> <p>(b) The court by the use of the words “in whole or in part” instructed’ the jury that appellant was liable if guilty of the slightest negligence. The law' of comparative negligence does not obtain in this State. Sandy River Cannel Coal Co. v. Caudill, 60 S. W. R., 180.</p> <p>(c) The court failed to. instruct the jury what their finding should he, if the appellee’s intestate herself was guilty of negligence, hut for which the accident would not have happened; and the court further failed to instruct the jury what their finding should be if the Marsden Company was guilty of negligence but for which the accident would not have happened.</p> <p>The questions of contributory negligence' and of the proximate cause of the accident, were thus taken from the jury. Paducah & Memphis R. R. Co. v. -Hoehl, 12 Bush, p. 41; 'Jacob’s Admr. v. L. & N. R. R. Co., 10 Bush, p. 267; L. & N. R. R. Co. v. Wolf, 80 Ky., p. 82; Johnson’s Admr v. L. & N. R. R. Co., 91 Ky., p. 651; 111. Cent. R. R. Co. v. Dick, 91 Ky., p. 434; Ky. Hotel Co. v. Camp, 97 Ky, p 424.</p> <p>(d) The court should have submitted to the jury the question whether or not the appellee accepted the promise of the Marsden Company to pay $1,000 in compromise settlement of the suit against it, because if the promise to pay was accepted by appellee, it was a present satisfaction, and such a promise that the appellee by suit could have compelled the Marsden Company to fulfill. Ellis v. Bitzer, 15 A. M. Dec., 534.</p> <p>(e) The court submitted to the jury the question as to whether or not the proposition of the Marsden Company to pay $1,000 in settlement of the suit had been declined when there was no claim by either appellee or appellant that such a proposition had been declined. The court should have instructed the jury on the issues involved, in the suit. 'Sandy River Cannel Coal Co. v. Caudill, 60 iS. W. R., 180.</p> <p>•5. There can be but one satisfaction for the same injury and the acceptance of the promise made by the Marsden Company, to pay appellee $1,000 was a present satisfaction, which, when followed by the dismissal of the suit as to the Marsden Company, was a r'elease as to the Marsden Company, and therefore a release as to appellant. Riley v. McGee, et dl, 1 A. K. Marshall, 482; Ellis v. Bitzer, 15 Am. Dec., 534, 2 Co. Litt., sec. 376; Bacon’s Abr. tit. “Release” B.; Patridge v. Emson (1597), Noy, 62; Cocks v. Jennor, Hobart, 66; Kiffin v. Willis (1695), 4 Mod., 380; Ellis v. Ellisson, 50 Wis., 138, 36 Am. Rep., 830, 6 N. W. R., 518; Urton v. Price, 57 Cal., 270; Rogers v. Cox, 66 N. J. L., 432, 50 Atl., 143; Brogan v. Hanan, 55 App. Div. 92, 66 N. Y. Supp., 1066; Brown v. Marsh, 7 Vt., 320; Eastman v. Grant, 34 Vt., 390; Long v. Long, 57 Iowa, 497, 10 N. W. R., 875; Aldrich v. Parnell, 147 Mass., 409-, 18 N. E. R., 170; Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec., 727; Stanley v'. Lehy, 87 111. App., 467; Ayer v. Ashmead, 31 Conn., 447, 83 Am. Dee., 154; Donaldson v. Carmichael, 102 Ga., 40, 29 S. E. Rep., 135; Gross v. Allison, 136 Mass., 503; Brown v. Cambridge, 3 Allen, 474; Tompkins v. Clay Street Hill Co., 66 Cal., 4 Pae., 1165; Bailey v. Berry (Ohio), 8 Am. L. Reg., N. S., 270; Snyder v. Witt, 42 S. W. R., 441; Warden v. McConnell, 25 Neb., 558, 41 N. W. R., 548; Gould v. Gould, 4</p> <p>N. H., 173; Brown v. Kencheloe, 3 Coldw., 162; Chetwood v. California National • Bank, 113 Cal., 414, 45 Pac. R., 704; Schramm v. Brooklyn Heights R. R. Co., 35 App. Div., 334, 54 N. Y. Supp., 945; Ransom v. Parish, 4 Cal., 386; Gilpatrick v. •Hunter, 24 Me., 18, 41 Am. Dec., 370; Johnson v. New York, 71 App. Div., 561, 76 N. Y. Supp., 119; Seither v. Philadelphia Traction Co., 4 L. R. A., 54; Ruble v. Turner, 2 Hen. and M., 38; Mitchell v. Allen, 25 Hun., 543; iSmith v. Consolidated Gas Co., 36 Mise., 131, 72 N. Y., Supp., 1084; Williams v. Le-Bar, 141 Pa., 139, 21 AtL, 525; Pugh v. Chesapeake & Ohio Ry. Co., 101 Ky., 77; Abb. v. Northern Pacific Ry. Co., 68 Pac. iRep., 954; .S'ellards v. Zomes, 5th Bush, 90; Kentucky .Statutes, sec. 12; Central Passenger Co. v. Kuhn, 86 Ky., 579; Bonte v. Postel, 58 S. W. R., 536.</p> <p>7. Even if the offer and promise of the Marsden Company to pay $1,000 was not accepted at the time the suit was dismissed, as t>o it, the payment and acceptance of the $1,000, while a motion for a new trial was pending against appellant was an election by appellee to accept the $1,000 in settlement of the damages to the estate of his intestate and was a cancellation and satisfaction of the judgment rendered against appellant. Pugh v. C. & O. Ry. Co., 101 Ky., 77; United Society of Shakers v. Underwood, &c., 11 Bush, 265; Gross v. Penn. P. & B. R. R. Co., 65 Hun., 191 20 N. Y. Supp., 2 G.; Lewy v. Eox, 22 Jones & S., 397; Hubbard v. St. L. & M. R. R. Co., 72 S. W., 1073; Dulaney v. Buffum, 73 S. W., 125.</p> <p>1. As to the failure of the court to instruct the jury on the subject of contributory negligence, there was no error, (1) Because there is nothing in the evidence to authorize such an in. struction, (2) Even if there was any color of evidence of contributory negligence, that question is sufficiently submitted to the jury in the first instruction, for the right of appellee bo recover all is based, in part, on the condition that his intestate, “without fault or negligence on her part contributing thereto, was drowned.”</p> <p>2. There is abundant evidence showing culpable negligence on the part of the servants of appellant, and there can be no doubt that their act in violently running appellant’s boat against the wharfboat was the proximate cause of the death of appellee’s intestate.</p> <p>3. The fact that appellee accepted $1,000 from the Marsden Company as a partial payment on the cause of action sued on herein, did not release this appellant from liability for the death/ of appellee’s intestate, as the Marsden Company and appellant were joint tort-feasors in causing her death, and the release of one does not excuse the other.</p> <p>4. This .question having been submitted to the jury in this, case, they in a separate general verdict, found, “We of the jury find that the Marsden Company has not paid $1,000 to the plaintiff in satisfaction of plaintiff’s claim asserted in this action.</p> <p>AUTHORITIES CITED.</p> <p>United Society of Shakers v. Underwood, 11 Bush, 265; Love-joy v. Murray, 3 Wallace, 1; Ellis v. Essin, 50 Wis., 138 (36 Am. Rep., 830); Snow v. Chandler, 10'N. H., 92; McCrillis v. Hawes, 38 Me., 568; S'pencer v. Williams, 2 Vt., 209; Chamberlin v. Murphy, 41 Vt., 110; Sloan v. Herrick, 49 Vt., 328; Matthews v. Chicopee Co., 3 Robt., 712; Bloss v. Plymale, 3 W. Va., 393; Shaw v. Pratt, 22 Pick, 307; Pond v. Williams, 1 Gray, 630-636; Bank v. Messenger, 9 Cow., 37; Line v. Nelson, 38 N. J. L., 358; Irwin v. Melbank, 15 Abb. Pr. (N. S.), 378; Solly v. Forbes, 6 Eng. Com. Law, 11; Thompson v. Lack, 54 Id., 551; Bank v. Curtess, 37 Barb, 319; Gunther v. Lee, 45 Md., 60-67 (S. C., 24 Am. Rep., 504); Sellard v. Ziomes, 5 Bush, 90; Cooley on Torts, top. pp. 160, 161 and notes; Russell v. McCall, 141 N. Y., 437 (38 Am. ’St. Rep.,. 814); Shear-man & Redfield on Negligence, sec. 31; Louisville & Cin. Packet Co. v. Mulligan, 77 S. W., 704; Danville, &c. v. .Stewart, 59 Ky., 119; Louisville, &c. R. R. Co. v. Case’s Admr., 72 Ky., 728, 7 Am. & Eng. Ency. of Law, 446, and cases cited.</p>

<p>Descent — Heirs—Liability for Debts — Settlement of Estate— Claimants — Nonparticipation—Contribution by Creditors.</p> <p>¡Held: 1. •'Where the amount paid to certain children from the estate tof their deceased father was received hy them as creditors of their father’s estate, and not as heirs, they were not bound hy the father’s knowledge of a claim against him which was not presented as a claim against his estate, in a suit to compel such children to refund for the benefit of such creditor.</p> <p>2. Civ. Code Prac. sections 428, 430, provide for the bringing of actions to settle decedent’s estates, in which all creditors known are directed to be made parties on notice hy advertisement, etc. Section 433 provides that creditors failing to appear shall have no claim against an administrator who has administered and distributed the estate, and section 434 provides that legatees and distributees shall be liable to a non-appearing creditor to the extent of the estate received hy them, etc. Held, that where a creditor failed to file her claim against a decedent’s estate, though she) had no actual notice of an action to settle ,the-same, in which judgment was rendered, and the entire estate distributed to participating creditors, she could not thereafter compel contribution from such creditors.</p>

<p>Case 105 — Indictment against Reinecke Coal Mining Co. for Facing to Pat Employes as Required by Statute.</p> <p>APPEAL FROM HOPKINS CIRCUIT COURT.</p> <p>From Judgment Dismissing the Indictment, Commonwealth Appeals.</p> <p>(No briefs, record misplaced.)</p>

<p>'Taxation — Board of Equalization — Legislative Court — Tax Bills —Authentication—Prima Facie Case — Assessments—Review.</p> <p>Held: 1. Where, in an action to recover taxes, the city proved the authenticity of the tax bills sued on by its assessor, who was required to make out the same hy Kentucky iStatutes, 1903, section 2996, it thereby established a prima fade case.</p> <p>2. Where, in action to recover taxes for several years, ]t did not appear that the assessment for years othefr than 1896 was increased over the amount fixed by the assessor, whether defendant appeared before the board of equalization for such other years was immaterial.</p> <p>:8. The fixing of an asesssment made by the hoard of equalization after hearing is not reviewable by a court unless the hoard proceeded corruptly or fraudulently.</p> <p>4. The hoard' lof equalization, in passing on the value of property listed for taxation,' is not a legislative court, in violation of Const., section 135, abolishing all courts except such as are established hy such Constitution.</p>

<p>Carriers — ■ Passengers — Ejection—■ Mistake of Ticket Agent— Pleading — Amendment—Damages—Excessive Verdict.</p> <p>Held: 1. Under Civ. Code, section 134, permitting amendments in furtherance of justice which do not substantially change the claim or defense, it was proper for the court, in an action against a railroad for the ejection of a passenger, to permit an amendment during trial setting up as an item of special damage loss of a contract for labor.</p> <p>2. While, as between the conductor and a passenger, the conductor may rely on the passenger’s ticket as it reads, and refuse to transport him beyond the destination designated thereon, yet the carrier is responsible for the ejection if the agent by mistake gave 'the passenger a wrong ticket.</p> <p>3. A party in. a civil -case can not complain of the court’s refusal to charge its theory of the case, where it offers no. instruction thereon.</p> <p>4. In an action for ejection of a passenger whose evidence established the loss of a contract to labor at twenty dollars a month during the crop season, and insulting language on the part of the conductor, who refused to look among the tickets to find plaintiff’s and led him off the train in a coach, full of people, a verdict for $350 was not excessive.</p>

<p>Schools — Treasurer —■ Duties — Compensation — ‘Statutes —'Construction.</p> <p>Held: 1. Kentucky Statutes, 1903, section 4443, enacted in 1893, provided ‘ that when a tax is levied in a school district -the trustees shall appoint a treasurer, who shall execute a bond to the trustees, and further prescribed -the treasurer’s duties in connection with the taxes. In 1894 the section was amended by allowing the treasurer ten per cent, commissions for collecting taxes. In 1898 another amendment permitted the trustees to dispense with the treasurer’s services, and to require the sheriff to collect the taxes and perform the treasurer’s duties. Kentucky Statutes, 1903, section 4479, also enacted in 1893, pro. vides that the trustee's shall appoint a treasurer, who shall give bond to the Commonwealth for the use of the trustees, “conditioned for the faithful performance of his duties under this article.” This section imposes. on the treasurer duties in connection with the proceeds of the sale of bonds, funds collected for annual expenses and for the payment of interest, money received by gift lor devise, etc., and directs the trustees to pay the treasurer such sum for his services/ as shall be deemed ■ reasonable and just. Held, that.the sections are not in conflict, but relate to distinct matters, and, while one person might fill the office of treasurer under both sections, in order to be qualified to perform the duties imposed by both he must give bonds under both, and one who has given bond under sectipn 4443 .alone is not entitled to compensation for any services ' other than in the collection of taxes.</p>

<p>Payment — Evidence—Books of Account.</p> <p>Held; "1. ’The mere showing by a debtor that money passed from him to the creditor does not show that it was a payment on ■the debt .sued on, in the absence of a showing by the creditor that it was for something else; but the debtor must show that ■the money was to he applied on such indebtedness, or at least, .that .there was no other indebtedness</p> <p>2. Defendant, by merely stating that a book of account was lost, dioes not show that he did not have other books showing the same things that were in the lost book, and constituting the. best evidence.</p> <p>3. Á storekeeper’s books are not evidence as to an account therein relative to purchase of land, and payment therefor; this not being connected with the business.</p>

<p>Case 110 — Action by John C. Pritchett against Continental Casualty Company on an Accident Policy.</p> <p>APPEAL prom: PAYETTE CIRCUIT COURT.</p> <p>Judgment por Dependant and Plaintipp Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The general demurrer to the answer should have been sustained:</p> <p>(a) Because the first provision in the “paymaster’s order” plead by defendant (appellee here) is in conflict with the provisions of the policy issued to appellant and with his application made therefor, and that construction should be adopted which will cover the loss and any doubt or ambiguity in the contract should be resolved in favor of appellant. American Accident Co. v. Reigart, 94 Ky„ 549; Mut. Ben. Life Ins. Co. v. First Natl. Bank, 24 Rep., 682; Traveler’s Ins. Co. v. Dunlap, 52 Am. 'St. Rep., 355; Dover, &c. Co. v. A. .F. Ins. Co., 65 Am. St. Rep., 264; Matthews v. Am. Ins. Co., 61 Am. St. Rep., 627; Turner v. Fidelity, &c. Co., 67 Am. St. Rep.; 428; Burliner v. Traveler’s Ins. Co., 66 Am. St. Rep., 49.</p> <p>(b) The construction of the contract contended for by appellant is more reasonable and fairer than that contended for by appellee; and is more consonant with the presumption that they' dealt with each other in good faith. The construction contended for by appellee causes an hiatus in the contract from the 7th day of January until the payment of the second installment, and would cause the policy to run. beyond the date fixed for its expiration.</p> <p>(c) Because no plea of default in the payment of any installment of the premium is made, and none existed, when the accident occurred. When appellant was injured no payment was due or payable to appellee, and it received all to which it was entitled at the time of the injury. When- the injury happened, the relationship -of the parties was changed from that of insurer and -insured to that of debtor and creditor. The excess was in favor of appellant, and he was- relieved from paying to appellee, or to the railway company the second installment to be held subject to the “paymaster’s order.” Even if the railway company had had in its hands the amount of the second installment belonging to appellant, he would have had the right to stop its payment to appellee.</p> <p>(d) No forfeiture was incurred under the second provision in the “paymaster’s order,” plead by appellee, for appellant left in the hands of the railway company, subject to the order, out of his December wages, the amount of the first installment premium, and same was paid to and received by appellee in January when it became due and payable, and no other installment ever became clue Before the happening of the injury. The purpose of the provision was to scure the payment of the first premium installment and is limited by its express language to the first installment alone. The end for which it was designed was accomplished, and it thenceforth became nugatory.</p> <p>(e) If a forfeiture was incurred (which is denied) under the said second provision, ft arises out of a breach of a condition subsequent which was not material to the nature of the risk, but affected only its continuation. The design of the condition •and purpose of its insertion was to strengthen and add efficacy to a security for debt. A breach thereof can be easily eompenstated for with absolute certainty and without injustice to. ap■pellee. The measure of damages is fixed by the contract, it being the annual premium. No damages, however, resulted as appellee got all it was entitled to up to the happening of the accident. Forfeitures incurred by breach of condition subse■quent, whose purpose was to secure payment of a debt, or the performance of some act, or the enjoyment of some right or benefit, will be relieved against by compensation being made therefor, because the payment, performance or enjoyment are considered as the real thing intended by the agreement, and the forfeiture as only an accessory. Pomeroy’s Eq. Jurisprudence, —• Ed., secs. 433, 456; and note therein citing, Steele v. (Branch, 40 Cal., 3; Henry v. Tupper, 29 Ver., 358; also note 86 Am. St. Rep., 48; Worthem v. Ratcliffe, 42 Ark., 330; Allison v. Coche, 21 Ky. Rep., 434.</p> <p>(f)- Even if a forfeiture was incurred under said provision, the conduct of appellee in accepting, retaining and not offering to pay hack any of the unearned part of the premium collected with full knowledge at the time of filing its answer herein of appellant’s discharge from the Norfolk & Western Railroad -Company, is tantamount to an express waiver of its right to claim or insist upon the penalty, as the provision in question ■does not provide for a forfeiture to appellee of premiums collected which carry the policy beyond the time the forfeiture Is claimed to have taken place. Appellee claims the forfeiture was incurred December 21, 1902, yet admits that the premium collected and retained by it was sufficient to carry the policy to January 7, 1903, seventeen days after the alleged forfeiture. No offer is made to return the amount collected for this seventeen •days. It is well settled that courts in furtherance of justice will relieve against penalties and forfeitures when there is the ■slightest circumstance in the conduct of the party claiming it lo indicate that there was or has been a waiver thereof.</p> <p>2. The demurrer to the' reply should have been overruled:</p> <p>(a) Because the contract sued on was made in and must be construed by the law of Illinois, and under the statute then. and now in force in Illinois it is mandatory that the policy should state the entire contract between insurer and insured-Both the provisions plead by appellee in bar are: contained in, the “paymaster’s order,” and do not appear in the policy; in-fact are in conflict with the stipulations of the policy. Appellant had no knowledge Of them and could not advise himself o£ them by reference to the policy, the only evidence furnished, him by appellee of the contract, therefore, appellee is estopped. from pleading same, otherwise it profits by its own wrong and. violation of the statute. See note 55 Am. S.t. -Rep., 52, citing •Ford v. Buckeye Co., 6 Bush, 135; North Hampton Co. v. Tuttle, 40 N. J. L., 476; Hyde v. Goodnow, 3 N. Y., 206; Western. v. Genesee Co., 12 N. Yl, 258; Tayloe v. Fire Ins. Co., 9 How.,, 390.</p> <p>(b) The State of Illinois had the right to impose such terms'- and conditions upon foreign and domestic insurance companies, desiring to transact business therein as it desired. Daggs v-Orient Ins. Co., 35 L. R. A., 227; Cravens v. N. Y. Life Ins-•Co., 71 Am. St. Rep., 628; Swing v. Munson, 71 Am. .St. Rep.s, 772.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The contract of insurance sued upon was terminated by the-failure of the plaintiff to notify the defendant’s secretary of the-, fact of his discharge, from- the N. & W. Railway Company within three days after such discharge, and to remit the premium, for the first insurance period. Bane' v. Travelers’ Ins. Co.,. 85 Ky., 682-5; Reed v. Same, 43 S. W., 433; 16 Am. & Eng-Ency. Law (2d ed.), 920.</p> <p>2. Where the contract is terminated by an act of the insured, himself the company does not waive its right to rely upon such: termination by its receipt thereafter of the premium for the insurance period during which the termination took place. Burner-v. German American Ins. Co., 103 Ky., 374; 16 Am. & Eng-Ency. Law (2d Ed.), 941; Smith v. Continental Ins. Co., 6-Dak., 433 (43 N. W., 810); Schimp v. Cedar Rapids Ins. Co.,. 124 111., 356 (16 N. E„ 229.)</p> <p>3. Where a contract of insurance is terminated by an act odT the insured the company is not required, in pleading such fact,, to tender back the premium which it has received or any part of same. 16 Am. & Eng. Ency. Law (2d Ed.), 954; Joyce on Insurance, secs. 1407, 1420; Farmers’ .Mut. Ins. Co. y. Home E. Ins. Co., 54 Neb., 740; Colby v. Cedar Rapids Ins. Co., 66 Iowa, 577 (24 N. W., 54); Pratt v. N. Y. Central Insurance Co., 55 N. Y., 511.</p> <p>4. The averments of the reply do not show that the insurance .contract in question was made in- the State of Illinois.</p> <p>5. The statute of Illinois relied on in the reply is not appli•cable to policies issued by companies other than those incorporated under that statute, and, therefore, does not embrace the policy in suit, which was issued by the defendant, an In-diana corporation.</p> <p>6. Even if the contract of insurance here were an Illinois •contract, and the statute of that State were applicable to same, the statute relied on does not prohibit nor make void such part of the contract as may not be written out in full on the face •of the policy, the provision in question being merely directory.</p> <p>7. The policy sued upon provides upon its face that it is issued in conformity with, and subject to the law of Indiana, and it is competent for the parties to the contract to stipulate that it shall be construed, both as to its validity and as to its terms, by the law of any State which they may select: Note to Me-Garry v. Nicklin, 55 Am. St. Rep., 53.</p>

<p>Intoxicating Liquors — ¡Local Option 'Law — Violation—Jurisdiction — Statutes.</p> <p>Heldr 1. Kentucky Statutes, 1903, section 198, declares that Kentucky’s jurisdiction covers the entire soil and waters within its boundaries, and that each county whose boundary 'isr de- ■ scribed in part by the-Ohio river shall be considered as bounded in that particular by the State line. .Sections 1078-1090 require the counties to be laid off into not less than three, nor more than eight, magisterial districts. The Cloverport magisterial district, in Breckinridge county, in which a local opton law is in force, is. bounded as “beginning at a point on the Ohio river,” and, in closing, “thence to the Ohio river; thence up the river to the place of beginning.” Defendant was charged with having rented on its steamboat a barroom to another, in which he sold liquors, with defendant’s knowledge and consent, to a person at the wharf in Cloverport while the boat was anchored to the wharf on the Ohio river, a navigable stream. Held, that the act charged took place within the Cloverport magisterial district.</p>

<p>Case 112 — Prosecution against Wilbur Hopkins for Murder.—</p> <p>APPEAL FROM KNOX CIRCUIT COURT.</p> <p>Defendant Convicted and Appeals.</p> <p>POINTS.</p> <p>The defendant was indicted for the crime of wilful murder, tried and convicted of voluntary manslaughter and given a sentence to the penitentiary of fifteen years. This appeal is prosecuted to reverse that judgment for the following reasons:</p> <p>1. Because the court refused to grant to the defendant a continuance of the case at the term of court at which it was tried, and at which time it was utterly impossible for him to secure the attendance of his witness, and was therefore deprived of the benefit of their testimony.</p> <p>2. Because the court misinstructed the jury as to the law of the case, and further did not give to the jury an instruction which covered the most material part of the defendant’s evidence in defense, viz., That which tended to prove that the death of the man shot was not caused by the infliction of the wound by defendant but from the disease known as consumption. Bush v. •Com., 78 Ky., 271.</p> <p>3. The defiitions of the word “feloniously” was improperly incorporate! into the instructions-, and is incorrect and misleading.</p> <p>■So also the definition of the words “malice aforethought” is incorporated and is incorrect.</p> <p>1. The complaint as- to instruction No. 1 is captious. The words, “so shot and wounded George 3VL Cole as to cause or hasten his death within a year,” was sufficiently plain to enable a jury of ordinary understanding to know that the death of Cole must have occurred within a year in order that said act of appellant be considered murder or manslaughter.</p> <p>2. Though deceased may have died of some other disease already operating on him, it is enough if the wound hastened his death. Bishop’s Crim. Law, vol. 2, page 639.; State v. Morea, 2 Ala., 275, .65 Cal., 532, 48 Cal., 61.</p> <p>3. No compulsory process was asked for the absent witness although he resided within the jurisdiction of the court, and the defendant’s affidavit as to what he would swear, if present, was read to the jury as his deposition.</p>

<p>Case 113 — Proceeding by the Commonwealth to have the Shakes-ox ti-ie Citizen’s National Bank ox Danville Assessed xok. Taxation.</p> <p>APPEAL XROM BOYLE CIRCUIT COUBT.</p> <p>From a Judgment Dismissing the Proceedings, the Commonwealth Appeal's.</p> <p>1. Our contention is, that under the act of the Legislature approved March 21, 1900, it' ig the duty of the president and cashier of national banks to list the shares of stock of their banks with the assessing officer, authorized to assess real- estate, for taxation, and that the bank shall he and remain Hablé to. the State, county, city, town and taxing district for the taxes upon said shares of stoclc.</p> <p>2. That the Legislature had the authority to determine and direct the manner in which, and by whom, these shares of stock in national banks should be listed for taxation.</p> <p>3. That as to property omitted from taxation, the statute of limitations do not apply at all The intention of the Legislature was to require all omitted property in any and all years, to be listed for taxation, not intending that there should be any limitation to bar this being done. Owensboro Natl. Bank v. City Owensboro, 19, vol. Supreme Court Rep., 537, i73 U. S., 663, U. S. Rev. St., .see. 5219, Kentucky Statutes, 4241; Scobee, Sher- ' iff v. Bean, &e., 22 R., 1078; Com., &c. v. Farmer’s Bank, &c., 97 Ky., 590; Dep. Bank Owensboro v. Daviess Co., — R., 248; Board Councilmen Frankfort v. City of Frankfort, 22 R., 466; Bohanan, Sheriff v. Bank Shelbyville, 23 R., 508; L. & N. R. R. Co. v. Com., 85 Ky., 198; 88 Ky., 73; Cooley on Taxation, 306, 307, 311, 312; Mattingly v. Dist of Columbia, 97 U. S., 687; Cooley’s Con. Limitations, 371.</p> <p>Our contention is, that the Act of March 21, 1900, is unconstitutional, and in contravention to the U. S. statutes, because:</p> <p>1. It deprives a person of his .property without due process of law, and hence is a violation of the Fourteenth Amendment to the Constitution of the United States.</p> <p>2. It empowers counties, towns and taxing districts toi assess shares of stock in national banks, and levy And collect taxes thereon, which is in contravention of section 5219, United, States Revised Statutes.</p> <p>3. It requires the president and cashier to list the shares of ■stock in national banks with the assessing officers in solido in the name of the bank, and makes the bank responsible for the tax which may be levied thereon, which is equivalent to levying a tax upon the capital of the bank, and requires all assessments of said shards lof stock to be entered upon the assessor’s books, certified and reported by the assessing officers as assessment of real estate are entered certified and reported, instead of requiring said shares to be included in the valuation of the personal property of the lowner and holder of such shares in assessing taxes imposed by authority of the State, all of which provisions of said act are directly in conflict with the terms of section 5219, afid violently in contravention thereof:</p> <p>4. It empowers State, counties, cities, towns, and taxing districts to assess shares of stock in national banks for a number</p> <p>of years prior to its enactment, and to levy and collect taxes thereon for these prior years, which is also violently in contravention of the terms of section 5219, United States Revised ■Statutes.</p> <p>AUTHORITIES CITED.</p> <p>U. S. Rev. 'St., sec. 5219; Owensboro Nat. Bank v. Owensboro, 173 U. S., 669, 676; Van Allen v. The Assessors, 3 Wallacg, 584; XT. 9. Rev. .St., sec. 5210; Owen County Ciourt v. Farmers’ Nat. Bank, 22 R., 916; Com. Nat. Bank of Ogden v. Alma D. Chambers, 21 Sup. Ct. Rep., 865; Holden v. Hardy, 169 XJ. S., 366; Palmer Vj McMahon, 133 XJ. S., 669; First Nat. Bank of Richmond v. City of Richmond, &c., 39 Fed. Rep., 313; Nat. Bank of Va. v. City .of Richmond, &e., 42 Fed. Rep., 877; Aberdeen Bank v. Chehalis County, 166 XJ. S., 440; Merchants’ & Manufacturers’ Bank v. Pa., 167 XJ. S., 461.</p>

<p>Case 114 — Action by City of Louisville against the German Gymnastic Association of Louisville for City Taxes.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY FIRST. DIVISION.</p> <p>From a Judgment for the City the Defendant Appeals.</p> <p>The only question in this case is this:</p> <p>Is or was not the property, of the appellant, association, exempt from taxation under the clause of the Constitution exempting “institutions of education not used or employed for .gain hy any person or corporation, and the income of which is ■devoted solely to the cause of education?”</p> <p>The above clause contains two requisites:</p> <p>1. The purpose must he education.</p> <p>2. There must he no gain dr profit to any person or corporation.</p> <p>(1) We submit that education is in the main threefold: physical, mental and intellectual.</p> <p>Among the ancient Greeks the palaestra or wrestling hall, was frequested as much as the grammata or reading and writing class. Among the Romans the two- indispensable accomplishments of every citizen were scribere et notare, to write and to swim; and as physical is the oldest branch of culture, so it is also the most favored in the present time and in our own country. Whether this is really necessary, is not for the ■courts to decide; it is enough for our purpose that a great number of persons honestly believe in the advantages of teaching physical culture to both boys and girls.</p> <p>In its broadest sense, the word education comprehends not merely the instruction received at school oh college, but the ■whole course of training, moral, intellectual and physical.</p> <p>2. The appellant, association, is not a share company. There are nio dividends, no stock. Nor are there any advantages to the members which would bear a money value.</p> <p>¡CITATIONS,</p> <p>Civil Engineers, .19 Q. B. Div., 610; 'Omaha College v. Rush, '22 Neb., 449; Bishop v. Treasurer,'60 Pac., (Col) 172; Herman Boys’ School v. Gill, 145 Mass., 146; Ruchs v. Backer, 6 Heisk Tenn., 395; Santa Clara Female Academy v. Sullivan, 116 111., 375; Orphan School v. City" Louisville, 100 Ky., 470; Russell v. Allen, 107 U. S., 172; Detroit Home School v. Detroit, 76 Mich., 521; Com. v. Gray, 25 R., 52; People, &c. v. Comr. of Taxes, 6 Hun., 109; -People, &c. v. Barber, 42 Hun., 27, 31; Hennepin County v. Grace, 27 Munn, 503; Cassiano v. Ursuline Academy, 64 Tex., 673; Barbour v. City Louisville, 83 "Ky., 95; Com. v. Owensboro R. R. Co., 95 Ky., 60.</p> <p>1. From the testimony it is clear that appellant is what its1, ■name imports, merely an association to promote physical culture, in other words, a social club whose members and their ■families obtain certain benefits or gain by the payment of fixed-dues .or charges per month or per annum.</p> <p>They have entertainments from time to time and nothing is. free to those who. can pay.</p> <p>Each member is required to pay six dollars per year in quarterly installments.</p> <p>We submit that under the facts in the record, no exemption, from city taxes within the meaning of section 1701 of the State-Constitution can be allowed the appellant in view" of the construction given to that section by this court in Bosworth, Sheriff v. Kentucky Chautauqua Assembly, 23 R., 1393.</p>

<p>Wills — Contest by Some of Legatees — Benefit of All — Costs.</p> <p>Held: 1. Kentucky Statutes, 1903, section 489, provides that if, in an action for the settlement of an estate, it shall appear that one or more of the legatees, devisees, distributees, or parties in interest have prosecuted fior the benefit of others interested with themselves, and, have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such persons reasonable compensation for such trouble, and for necessary expenses, in addition to the fees and costs; said allowance to be paid out of the funds recovered before distribution. Held that, where the effect of a contest by some of the legatees to set aside codicils was to increase the amount of legacies received by other legatees, their share of the estate should share the burden of the costs and expense of the contest.</p> <p>2. Though the contest resulted in certain legatees receiving less than they would have received under the codicils, the same having been procured by their fraud and undue influence, their share , should bear a portion of the expense.</p>

<p>Case 116 — Action by Louisville Banking Co. against Thomas S. Buchanan on a Note.</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS FIRST DIVISION.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. This is the second appeal upon an action, filed June 1, 1896, upon Buchanan’s four months’ note -of February 8, 1888, to the Louisville Banking Company for $G,700, borrowed money. Upon the former appeal this court held the note was not upon the footing of a foreign bill of exchange, and was not barred by limitation. Louisville Banking Co. v. Buchanan, 107 Ky., 125, 21 Ky. Law Rep., 756, 52 -S. W., 967.</p> <p>Upon the return of the case Buchanan plead his discharge in bankruptcy, to which plaintiff replied that this money was obtained by fraud, and therefore not included in the discharge by its terms, but was expressly excluded by the 17th section of the bankrupt act of July 1, 1898. Buchanan rejoined that the fraud was committed more than ten years before, and “more than ten years before the filing of said plaintiffs reply.” The circuit court sustained the plea and dismissed the action.</p> <p>2. “In construing statutes -of limitation the courts have inclined to follow the literal expresssion of the legislative will.” McDonald’s Exrs. v.- Underhill’s Exr., 10 Bush, 590; Sutherland on Statutory Construction, sec. 368.</p> <p>The statute in terms applies limitation to actions, not to defenses. Kentucky Statutes, secs. 2513, 2519, 19 Am. & Eng. Ency. of Law, p. 153; Rhea v. Bagley, 66 Ark., 93; Robinson v. Glass, 94 Ind., 211; 'Amaker v. New, 33 S. C., 28, 8 L. R. A., 687; Jackson v. Plyler, 38 S. C., 496, 37 Am. St., 782; Goforth v. Goforth, 47 S. C., 126; Hart v. Church, 126 Cal., 471; Grover’s Exr. v. Tingle, 21 Ky. Law Rep., 885, 53 S. W., 281; Avritt v. Russell, 22 Ky. Law Rep., 752, 58 S-. W., 281.</p> <p>Likewise, although a parol contract for the sale of land can not be enforced, it is good as a matter- of defense, because the statute of frauds forbids actions only upon parol contracts and not defenses. McCampbell v. McCampbell, 5 Litt., 94; Cornellison v. Cornellison, 1 Bush, 150; Hite v. Hise, 6 Ky. Law Rep., 363.</p> <p>3. If the statute of limitation could be so. construed as to apply to defenses, the institution of this action on June 1, 1896, stopped the running of the statute. 19 Am. & Eng. Ency. of Law, 182, 185; Walker v. Clements, 15 Q. B., 1046, 69 E. C. L., 1046; Williams v. Lenoir, 81 Baxt., 297; Perkins v. West Coast Lumber Oo., 120 Cal., 27; Campbell v. Hughes, 73 Hun., 14; Williams v. Gilchrist, 3 Bibb, 49; Gilchrist v. Williams, 3 A. K. M., 235; Hays v. Goodwin, 4 Met., 83 (citing Walker v. Clements, supra.)</p> <p>4. The question of limitation- having been decided upon the former appeal is res judicata. Louisville Banking Co. v. Buchanan, 107 Ky., 125; Davis v. MeCorkle, 14 Bush, 751; Williams v. Rogers, 14 Bush, 781; Jones Admr. v. Bank, 78 Ky., 424; Smith v. Brannin, 79 Ky., 119; Francis v. Wood, 81 Ky., 22; Far. & Ship. Tob. W. Co. v. Gibbons, 24 Ky. Law Rep., 1671.</p> <p>5.The plea of limitation was improperly allowed in the rejoinder. Bullitt’s Civil Code, sec. 99 and note (d), p. 142; Barbaroux v. Barker, 4 Met., 48; Gilmour v. Green, 14 Bush, 772.</p> <p>1. On the former appeal the question was whether or not the note sued on had been discounted and placed upon the footing of a bill of exchange, and if so, then the action was barred by the five years’ statute of limitations.</p> <p>2. On this appeal the question presented by the plea of limitation is, whether or not the Banking Company, more than ten years after the commission raf the alleged fraud, can avail itself, in a reply of this fraud, to defeat the effect of Buchanan’s discharge in bankruptcy. :</p> <p>3. It is not denied that more than ten years elapsed between the perpetration of the alleged fraud, and the filing of the reply herein.</p> <p>4. The plea of fraud is not interposed by Buchanan as a defense to the note; on the contrary the plea of fraud is interposed by the Banking Company in its effort to defeat the effect of the discharge in bankruptcy.</p> <p>5. Buchanan pleads his discharge as relief against the payment of the note. The Banking 'Company replies that Buchanan committed a fraud not in obtaining his! discharge, but in obtaining the money for which the note was executed.</p> <p>6. We insist that when new matter is introduced into the pleadings in any case, the statute of limitation may be relied on as to such new matter, and time computed until the introduction of the iiew matter.</p> <p>7. It can make no difference whether the bank pleaded the fraud by way of reply or by way of amended petition. The principle is the same: it is the interposition of new matter, and a new cause of action, and the statute applies.</p> <p>8. As to the question of res judicata. The only question de■cided on the former appeal was the question of limitation, but the limitation then and there decided was the five years’ limitation as a bar to an action on a note which had not been placed on the footing of a bill of exchange. Nov?, the question of limitation is as to the charge of fraud made by the bank in its effort to defeat the effect of the discharge in bankruptcy, and this question was not and could not have been presented in the former appeal, because on the former appeal the bank had not charged in the original petition that Buchanan had committed fraud in obtaining the money for which the note was executed.</p>

<p>Case 117 — Action by L. F. Piercy against S. G. Smith and Others-for Increase in His Salary as School Superintendent.—</p> <p>APPEAL FROM CLINTON CIRCUIT COURT.</p> <p>Judgment for -Defendant and Plaintiff Appeals.</p> <p>We contend:</p> <p>1. That the salary of the school superintendent must be fixed , annually, and at the end of the year for which the salary is to be paid, and the amount allowed for any one year can not have any influence on 'the amount of salary for the succeeding year. But the court must fix the salary for each year within the limits prescribed by law in force at the time the salary is fixed. Kentucky .Statutes, section .4419 as amended by the Act of March '21, 1902.</p> <p>2. Appellant is required under the amended' act to render additional services, and he is certainly entitled to a salary fixed within the limits of the act as amended. The additional services required certainly takes this case out of the inhibitions of sections 161 and 235, ®f the Constitution.</p> <p>Our contention is, that the fiscal court having fixed the salary of the appellant as county superintendent of schools at $275 annually as required by the law in force at the time of his election, it can not be changed during his term.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sec. 4419; Constitution, secs. 161, 235; Acts Gen. Assembly, 1902, vol. 1, p. 129 to 139; Com. by &e. v. Adams, Clerk, 16 Ky., 136; City Louisville v. Wilson, 18 Rep., 428; Bright v. Stone, Auditor, 20 Rep., 817.</p>

<p>Case 118 — Action by Susie C. Hudson Against the Baltimore & Ohio Southwestern Ry. Co, for Damages for Refusal of the Agent to Validate an Excursion Ticket.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT (C. P., 1ST. DIV.)</p> <p>Judgment fob Plaintiff and Defendant Appeals.</p> <p>POINTS.</p> <p>1. A condition in an.excursion ticket that the original purchaser must identify himself as such before starting on the return ticket by signing his name in the presence of the ticket agent, and otherwise if necessary, is reasonable.</p> <p>Boylan v. R. R. Co., 122 ü. -S., 290; Mosher v. R. R. Co., 127 IT. S„ 396; Edwards v. R. R. Co., 81 Mich., 364; Wenz v. R. R. Co. (Ga.), 33 S. E., 970; Dangerfield v. R. R. Co. (Kan.), 61 Pac., 405; Abram v. R. R. Co. (Tex.), 18 S. W., 321; R. R. Co. v. Barlow, 30 S. E., 732; Bethea v. R. R. Co., 26 S. C., 91; Bowers v. Penna. Go. (Pa.), 27 Atlanta Rep., 893.</p> <p>2. If the evidence of identity is not such as to satisfy a reasonable man, the ticket agent is justified in refusing to validate the ticket. Sinnott v. R. R. Co.. (Tenn.), 56 S. W., 836; Central of Ga. Ry. Co. v. Cannon, 14 Am. and Eng. R. R. Cases, N. S., 405; Morse v. Railway Co., 102 Ga., 302; Bethea v. R. R. Co., 26 S. C., 91.</p> <p>3. If the holder of the ticket, in attempting to identify himself as the original purchaser by signing his name in the presence of the agent, wrote a signature so palpably different from that of the original purchaser as to convince the agent and all experts who compared the two signatures, that they were not written by the same person, the agent was justified in refusing to validate the ticket.</p> <p>4. It was error to permit the jury to. determine for themselves whether the agent “wrongfully refused” to validate the ticket without any instruction to advise them what the reciprocal rights and duties of the parties were. The instruction left the agent without the right to exercise any judgment or discretion in the matter, but compelled him to act at his peril, even though he was satisfied the person presenting the ticket was not the original purchaser.</p> <p>5. The appellee, having sufficient money to buy a ticket (which she afterwards did), and being assured that the price of it would be refunded if she established her identity as the original purchaser of the excursion ticket, should have purchased a ticket and gone on her journey, instead of consulting a scalper and then exposing herself for several hours on an inclement night in search of a lawyer to institute a damage suit.</p> <p>6. It was unreasonable in any case .to ask a ticket agent at a union station in a large city bo leave his office and go. to the baggage room to afford further opportunity of identification, and especially so when he was already convinced the person offering the ticket was not the original purchaser.</p> <p>7. It was error not to instruct the jury that appellee could not recover for sickness caused by exposure while seeking a lawyer to institute a suit to recover damages because of the refusal of the ticket.</p> <p>Defendant below does not question the genuineness of the plaintiff or the bona fides of the transaction. It has, of course, turned the searchlight of investigation upon the plaintiff and her conduct through its detective or so-called “specials,” and of course it could find nothing to justify its action except the mere dissimilarity in signature. Its entire defense is builded upon this foundation. It does not plead that plaintiff did not purchase the ticket at St. Louis, nor does it plead that the original purchaser did not present it and offer it for validation. It knew that proof overwhelming would be produced to establish these facts. Its defense was not fair. It was almost sham. Denuded of all •extrinsic averments and conclusions, the defense presented by the pleadings is that the signatures were palpably dissimilar and that it based its action entirely upon this fact, refusing all other evidence. It well knew the ticket was genuine, and that Miss. Hudson had purchased it and was the proper owner of it, nevertheless it do constructed its pleadings as to admit it to put in evidence all sorts of innuendoes of forgery and -fraudulent ticket without actually standing upon that defense. An inspection of the record .will, it -is submitted, satisfy the court that appellant has had more than a fair trial below and has had the benefit 'of an instruction far 'more favorable to it than the proof entitled it to. No error to its prejudice was committed.</p> <p>An affirmance is respectfully asked.</p>

<p>Illegal Contract — Recovery of Sums Paid — 'Sale of Counterfeit Money — Intention of Parties — Evidence—Appeal—Jurisdiction.</p> <p>Held: 1. In an action to recover money advanced hy plaintiff to defendant for investment, and alleged to have been fraudulently converted by defendant, plaintiff testified that defendant told plaintiff that defendant would give plaintiff $3,000 in money, not counterfeit, in return for $300, and that the only thing wrong about the money was that, when deposited in a bank, two numbers running of the same date might be detected; that plaintiff paid the $300, but defendant failed to deliver any money. Held, that it was evident that plaintiff intended to purchase counterfeit money.</p> <p>2„ One who gives another consideration for the sale to him of counterfeit money, which is not delivered as agreed, can not recover the money paid.</p> <p>3. An appeal from a judgment for $175 is dismissible because less than the jurisdictional sum.</p>

Case 120. — Action by the Register Newspaper Co., &c., Against D. A. Yeiser, Mayor, &c., for Mandamus. appeal from m’cracken circuit court. Judgment for Defendants and Plaintiffs Appeal.