Volume 118 — Kentucky Reports

Case 1 — Prosecution aoainst James B. Howard eor the Murder of William Goebel — Third Trial — APPEAL FROM FRANKLIN CIRCUIT COURT-JAS. E. CANTRIDL, CIRCUIT JUDGE. Defendant Convicted and Given Life Sentence in Penitentiary, and Appeals. 1. The sole question in this case is Whether or not the accused, James B. Howard, fired the shot that killed Senator William Goebel. 2.

Case 2 — An Action by John and Geo. Graham’s Heirs and others, against Charles Kitchen and others, to recover land.— APPEAL PROM GREENUP CIRCUIT COURT-JAMBS P. HARBBSON, CIRCUIT JUDGE. Prom a Judgment Dismissing the Petition, Plaintiffs Appeal. We contend that there can be no defect of parties to this proceeding as long as the court’s commissioner is a party complainant.

<p>Case 3 — Proceeding in County Court by George B. Paynter, etc., against Isaac Miller to Establish' a Perry.</p> <p>APPEAL FROM GREENUP CIRCUIT COURT — JAMBS P. HARlBESON,CIRCUIT JUDGE.</p> <p>PROCEEDING DISMISSED AND PLAINTIFF’S APPEAL.</p> <p>1. No ferry right or privilege shall be granted hereafter for a longer period than twenty years. Section 1802, Kentucky Statutes, Potts v. Park, 106 Ky., 202; 20 Law Rep., 1774, Statutes of 1852.</p> <p>2. A ferry shall be established at the instance and for the benefit of the land owner on which it is located or of some one who has obtained from the owner the privilege of using the same fbr ■that purpose. Section 1803, Kentucky Statutes.</p> <p>3. No application to establish a ferry shall be heard unless notice of the "application shall have been posted at the court house door' of the county on the first day of the term of the court, next preceding that at which the application is made. Section 1804, Kentucky Statutes, Stall v. Brown, 84 Ky., 325, 8 Rep. 279.</p> <p>4. The county court has- no jurisdiction to establish or grant a ferry privilege for a period of twenty years until the required notice has been given, and an order granting the privilege before notice is void. Hazelip v. Lindsay, 93 Ky., 14, 13 R., 913, 86 Ky., 614.</p> <p>5. Our statute laws of Kentucky do not contemplate that a nonresident of the State shall be admitted to the privilege of holding a ferry .privilege granted under the laws of this State since the enactment of -the statute that took effect 1852, chapt. 49, sec. 1808, subsec. 3, Ky. Statutes, by purchase or grant, and the twelve months in which is allowed to sell has reference to eases of removal of residents, owners and rights accruing by inheritance.</p> <p>6. A nonresident owner of a ferry right or privilege shall sell the same to a resident citizen of this .State within one year after his removal or the accrual of his right with permission of the county court. Section 1808, subsec. 3, Kentucky Statutes.</p> <p>7. A ferry franchise may be granted before there has been a revocation of a former grant. 60 S. W., page 933; Combs v. Sewell, 22 R., 1026.</p> <p>8. Void orders or proceedings do not bind or estop any person whether parties, privies, or strangers. Estoppels are not favored. Hauson v. Buckner, 4 Dana, 255; De Wolf v. Mallett, 3 Dana, 216; Estill Heirs v. Clay, 2 Marshall, 497.</p> <p>9. A void order of the county court granting a ferry privilege ■can be questioned collaterally, Hazelip v. Lindsay, 93 Ky., 14; Blinco v. Head, 103 Ky., Ill; Jacobs v. L. & N. R. Bi. Co., 10 Bush, 263; Miller v. Swan, 91 Ky., 36, 12 R., 620.</p> <p>10. A purchaser of a ferry privilege which has partially expired before purchase and afterwards abandons the purchase grant, and elects to and does accept a void grant from the county court for a full period of twenty years, and proceeds and does operate said ferry for more than one year’s "time under the void grant can not avail himself of the unexpired time after .being assailed by other applicants for a ferry grant at the same •point of the purchase privilege.</p> <p>11. If a nonresident should become the owner of a ferry privilege ¡under the laws of Kentucky and fail to sell the same to a resident citizen of this State within one year as required by subsection 3 of section 1808, Kentucky Statutes, the year had expired after the accrual of his right and another citizen of -this /State had posted notice of his intended, application for a ferry privilege at the same point and after the said notice had been posted and then the nonresident owner sells his privilege to * a resident citizen, then no revocation is necessary before a grant is made to another who had complied with statutory requirements necessary to give the county- court jurisdiction. 60 S. W., page, 933, Sewell v. .Combs.</p> <p>12. The granting of a ferry franchise by a county court for a period of twenty years fixing rates of toll and the acceptance of bond is the establishment of a ferry in the meaning of section 1803, Kentucky Statutes, notwithstanding the granting of the franchise is at a point where there had been a ferry maintained for a number of years.</p> <p>13. The statute of Kentucky does not contemplate that ferries may be established or privilege granted by county courts at special terms.</p> <p>1. A ferry can not be established until the applicant establishes his right to the land on which it is located by purchase or lease from the owner.</p> <p>2. A ferry can not_be established on the Ohio river within less than a mile and a half in a straight line of an existing ferry.</p> <p>3. A ferry privilege granted to a citizen of this State and transferred by such citizen to a nonresident of this State can not be revoked without service of process on the nonresident or order posted at the court house door on a court day of a previous term of the county court and publication in some newspaper printed in the county as provided in section 1808, Kentucky ¡Statutes.</p> <p>d. The grant of a ferry right is a judgment of the county court, and can not be questioned in a collateral proceeding.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, secs. 1800, 1802, 1803, 1804, 1820; Waite on Actions and Defenses, vol. 3, pages 348-349; Kent’s Commentaries, vol. 3, top pages 590-591; Freeman on Judgments, secs. 122 and 132; Black on Judgments, vol. 1, secs. 271 and 282.</p> <p>KENTUCKY REPORTS'.</p> <p>Givens v. Ferguson’s Heirs, T. B. Monroe, page 186; Trustees of Jefferson Seminary v. Wagnon, 2 A. K. Marshall, page 379; [Trustees of. Maysville v. Boone, 2 J. J. Marshall, page 224; Lytle v. Breckinridge, 3 J. J. Marshall, page 963; Trustee of Newport v. Taylor, 6 J. J. Marshall, page 134; Eversión v. Sanders-, 6 J. J. Marshall, page 143; Churchill v. Grundy, 5 Dana, page 103; Carter v. Kalfus, 6 Dana, page 43; L. C. & L. R. R. Co. v. The Commonwealth, 10 Bush, page 47; C. & O. R. W. Co. v. Barren County Court, 10 Bush, page 609; -Stahl v. .Brown, 84 Ky., page 325; Dufo-ur v. Stacy, 90 Ky., page 288; Hazelip v. Lindsay, 93 Ky., page 14.</p>

Case 4 — Action by Moyner Bailey against the Provident Savings Lute Assurance Society of New York on a lire policy.— APPEAL PROM THE GRAVES CIRCUIT COURT — it. X BITG-G, CIRCUIT JUDGE. Judgment for- Plaintiff and Defendant Appeals. 1.

<p>Land — Equitable Title-Execution Levy — Recitals in Levy— (Sufficiency.</p> <p>1. Ky. St., 1903,' soc. 1709, provides that when an execution defendant owns a legal title to land incumbered by' a purchase-money lien, or the legal title in any real or personal estate, and shall have created a bona fide incumbrance thereon by mortgage deed of trust, or otherwise before an execution has created a lien on the same, the interest of the defendant may be levied on and sold subject to such incumbrance. Held, that the interest of an owner who had conveyed realty by a deed absolute on its face, taking a written defeasance, was subject to execution.</p> <p>2.Ky. S't., 1903, section 1709, authorizes levy of execution ion a mortgagor’s interest in realty. In levying on the interest of an owner in realty which he has conveyed by deed absolute on its face, with a written defeasance, the officer styled the interest an “equity of redemption,” but also 'recited the transaction. Held, that, if the use of the term “equity of redemption” is erroneous, it did not invalidate the levy.</p>

Cask 6 — Action by the Commonwealth against the Citizens’ Nat. ■Bank oe Lebanon to require it to list the shakes of its stockholders eob State, County, and Municipal Taxation.— APPEAL EROM BOYLE… Held: by its stockholders, for taxation for any purposes, for the years 1892 to 1898, inclusive, or .for either of those years. / 2.

<p>Case 7 — Action by O. E. O’Neal against the F. a. Neider Co. for Salary.</p> <p>APPEAL PROM BRACKEN CIRCUIT COURT — JAMES' P. HAKBESON, CIRCUIT JUDOE. t</p> <p>Judgment por Dependant and Plaintiff Appeals.</p> <p>On behalf of appellant we contend:</p> <p>1. That the employment of appellant was for a term of at least one year; that his dismissal was arbitrary, summary, and without cause or excuse.</p> <p>2. That if the corporation had a right to remove its treasurer on the ground that he had no franchise, but was a paid employe only, yet the corporation is liable on damages, just as a private citizen is for breach o'f contract.</p> <p>3. The damages are in this case the loss of salary for the unexpired term.</p> <p>4. If there is any difference in the understanding of the contract or the meaning of any of its terms, the understanding of the promisee prevails, especially where the promisor has knowledge or notice that promisee’s understanding is ■ different from that of the promisor.</p> <p>AUTHORITIES CITEID. ‘</p> <p>Kentucky Statutes, sec. 542; Am. & Eng. Ency. of Law vol. 17 (2d ed.), pages 17 and 20; Same vol. 2, p. 314; Thomson’s Corporátions, vol 1, sec. 805;.Jackson v. Tapping, 19 Am. Dee., 515; (1 Wendell, 388); State v. Kuchu, 34 Wis., 229; Hellwell on Stocks and Stockholders (1903 Ed.), sec. 261.</p> <p>Appellee contends that it had the right to remove appellant from office without cause for the following! reasons:</p> <p>1. Appellant was elected to serve until September following, hence he can not complain of being discharged at any time after the month of September, unless he first shows that he had a special contract to remain in its employment thereafter.</p> <p>2. The appellee’s articles of incorporation authorize it to appoint, remove or elect officers at any time.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stat., sec. 542; Am. Ency of Law (2 ed.), vol. 2, p. 316; 'Sun Mutual Ins. Co., 26 La. Ann., 13; Douglass v. Merchants Ins. Co., 118 N. Y., 484 (7 L. R. A., 822); Cook on Stocks and Stockholders and 'Corporation Law, sec. 711; Clark & Marshall on Private Corporations, vol. 3, sec. 666.</p>

Case 8 — Indictment against Thomas Mann and Edward Morris eob Burglary. APPEAL PROM MASON CIRCUIT COURT — J. P. HARBESON, CIRCUIT JUDGE.. ■Dependants Convicted and Appeal. The facts in this case are that the evidence shows that the defendants Mann and Morris and one Saunders broke into the dwelling house of John B. Farrow with intent to steal .therefrom: and when Farrow awoke and discovered them they shot him.

<p>JUrors — Drawing for Each Term — 'Holding Over — Continuous Sessions.</p> <p>It was improper for the trial judge of a court having continuous, sessions to select petit jurors for a certain month from names previously drawn from the wheel for previous months, instead of drawing new names from the wheel, as required hy Ky. St. 1903, sec. 2243.</p>

Case 10 — 'Action by Farmers’ Bank Against D. C. Roberts on a Note. APPEAL PROM CRITTENDEN CIRCUIT COURT-J. F. GORDON, CIRCUIT JUDGE. Judgment for Plaintiff and Defendant Appeals. 1. The holder of collateral paper, guilty of laches whereby the assignor is damaged, makes the paper his own, and he must account to the debtor for the sum, which he could have made by pursuing the maker of the paper with ordinary diligence. Shingler v. Hayden’s Adm’r., 8 R., 859 to 865. 2.

<p>Case 11 — Action by C. Y. Zimmerman Against C. C. Brooks, Involving. the Validity or the Act of the Legislature of Kentucky, CREATING THE COUNTY OF BECKHAM</p> <p>APPEAL FROM CARTER CIRCUIT COURT — iS. G. KINNER, CIRCUIT JUDGE.</p> <p>POINTS MADE AND AUTHORITIES CITED IN BRIEF.</p> <p>1. Carter and Lewis counties have a vital and material interest in the subject matter of the litigation as the validity of the law depriving them of a large portion of their territory, population, taxable .property, highways, bridges, and as to Lewis other public improvements were involved in the settlement of this question, and it was not only their legal right but their duty to intervene in the action to protect their constitutional' rights and privileges. Morris v. Barclay, &e., 2 J'. J. Mar., 374; Greenup County v. Mays-ville and Big Sandy Railroad Co., 88 Ky., 659; Lawrence'County v. Chattaroi Railroad Co., 81 Ky., 225; Christian County v. Rankin & Tharp, 2 Duval, 503; Lincoln County v. Magruder, 3 Mo. App., 314; Louisville and Nashville Railroad Co. v, Whitley County, 95 Ky., 215; Stearns County v. .St. Cloud Railroad ■Co., 36 Minn., 425; Commissioners Ct. v. Moore, 53 Ala., 25'; Pulaski County v. Lincoln, 9 Ark., 320; Modoc County v. Spencer, 103 Cal., 498; Paola, etc. v. Anderson'County, 16 Kan., 302.</p> <p>2. Carter county having tendered its verified petition to be made a party within two days after the action was filed, excepting to the judgment and its petition and application to file it being made part of the record by bill of exceptions, it had a. right to appeal from the judgment. Williams v. Hall, etc., 7 Ben. Mon., 295; Bicklin v. Kendall, 72 Iowa, 490; Tubba v. Doll, 15 Wis., 640; 1 Freeman on Judgments, 4 ed., see. 21.</p> <p>3. The courts have the power and arel charged with the duty to' construe the laws of the iState in any action litigated before them in which the construction of the law becomes essential and as .part of this power and duty they have the right to declare an act passed by the Legislature null and void when, in their judgment, it contraveues the organic law. 6 Am. and Eng. Ency. of Law, 2 Ed., 1036 and 1079; 26 same, 568; Cooley’s Con. Lim., 6 Ed., 57, 69 and 193; Marberry v. Madison, 1 Cranch, 138; Hanson v. Vernon, et ah, 27 Iowa, 28; Mauldrin v. City Council of Green-ville, 46 Am. St. Rep., 723; Opening of Ruan St., 132, Pa.; Bliss v. Commonwealth, 2 Kittell, 90; Lapsley v. Brashears, etc, 4 Little, 46; Purnell v. Mann, etc., 105 Ky., 87.</p> <p>4. Sections 63 and 64 of the Constitution are mandatory on the Legislature and no law enacted by it in violation of these sections can stand. Cooley’s Con. Lim., 6 ed., 93, 97, 98; Sutherland on Stat. Con., sec. 79; Varney v. Justice, 86 Ky., 596.</p> <p>5. The act of the Legislature creating Beckham county while presumptively valid and constitutional is not conclusive of that fact and the courts when the act "is questioned by any one oi* any county as violating his or its vested rights acquired under the Constitution may determine the area of the counties affected by the act, the area of the new county, the distance of its boundary line from the county seats of the counties affected by the act by an actual survey by its officers and agents and from such survey and other evidence find and determine the true and actual area of the counties and the distance of the county seats from the lines of the new county and if from such evidence the court is satisfied the organic law has been violated by the act declare it wholly invalid. '</p> <p>6. The .evidence of such actual survey is superior to and .overcomes the mere presumption arising from the ipassage of the act. Bradley v. Commissioners of Powell County, 2 Humphreys, 428; Goteher, et als., v. Burrows, et als., 9 Humphreys, 585; Maury County v. Lewis County, 1 Swan, 236; Bridgenor, et als. v. Rogers, et als., 1 Coldwater, 259; Humphreys County v. Houston County, 4 Jere Baxter, 593; State ex rel. v. Merriman, 6 Wis., 14; In the matter of Short, 47 Kan., 250; State, &c. v. Dorsey County, 28 Ark., 378; Banning v. Carpenter, 20 N. Y., 447; City of Covington v. Southgate, 15 B. Mon., 492; Trustees of Beattyville v. Daniels, 15 Ky. Law Rep., 793; Board of Trustees of Elkton w ■Gill, 94 Ky., 138;' Cheany v. Hoover, 9 B. Mon., 330; Mathews v. Shields, 2 Met., .553.</p> <p>7. The Legislature has not the power under the 'Constitution to> enact any law and either expressly or by implication preclude any judicial inquiry into the fact whether it violates the organic law or not. City of -Louisville v. Cochrane, 82 Ky., 15; Johnson, &.c. v. Ferrell, 8 Ky. Law Rep., 217.</p> <p>8. The courts must take judicial notice of the boundaries of the established counties of the State and their area and having this knowledge they know without any evidence other than the official records that it is a mathematical impossibility for the Legislature to create a new county with an area of 400 square miles out of the contents of Elliott, Carter and Lewis, or including Rowan and Greenup, without reducing all of these counties below their constitutional area and thereby violating their vested ■lights under the organic law of Kentucky. Woods, ex rel v. Henry, et als., 55 Mo., 560;-Board of Commissioners of Jasper Co. v. Spitler, 13 Ind., 239; Mode v. Beasley, 143 Ind., 324; Board of Commissioners of Jackson Co. v. State, et als., 147 Ind., 497; and oases there cited; Wright v. Hawkins, et al., 28 Texas; 452; 17 Am. and Eng. Ency. of Law, 2 ed., 912; same vol., 7, 90S; Report of Geological Survey; Bureau of Agriculture; Labor and Statistics; State Board of Equalization and the Assessors’s Books, and the laws creating and establishing the several counties of the State.</p> <p>9. The counties of Carter and Lewis and their inhabitants have erected court houses, jails, built highways and bridges, and have acquired vested rights in such improvements and the maintenance of their ancient territory undiminished and they can not be detached from their counties and by being attached to- a new county required to construct other public buildings except in strict compliance with the mandates of the Constitution.</p> <p>10. The act of February 9, 1904, creating Beckham county, is void on its face as it includes no- defined boundary, and does not close. Constitution, see. 51.</p> <p>POINTS RELIED ON BY APPELLANTS.</p> <p>STATEMENT OF CASE.</p> <p>On the 9th of February, 1904, the act of the Legislaturej to create Beckham county was approved by the. Governor, and containing an emergency clause, the Governor appointed C. C'. Brooks, as county judge, of Beckham county.</p> <p>The constitutionality of the act creating Beckham county being questioned, this action was instituted to determine the question.</p> <p>The original parties are residents of the part of Carter county proposed to be included in Beckham county, and favorable to. its creation. And, Carter county being vitally interested filed an intervening petition. The circuit judge sustained a demurrer to the petition and overruled the motion of Carter county to file its petition. To which rulings it and Brooks objected.</p> <p>This ruling was erroneous, because Carter county was vitally interested in the question. And public policy demanded as little litigation, and as speedy adjudication as possible, and- a fair and, full discussion of the questions involved.</p> <p>THE ACT UNCONSTITUTIONAL.</p> <p>The act creating Beckham county is. not constitutional because:</p> <p>1. It establishes a county called Beckham with an area of less than four hundred square miles.</p> <p>The demurrer confesses that the area of Beckham county is less than four hundred square miles.</p> <p>Section (13, of the Constitution of Kentucky reads: “No new county shall be created by the General Assembly which will reduce the county, or counties, or either of them, from which it is taken to less area than four hundred square miles, nor shall any county be formed of less area.” No county shall be created of less area than four hundred square miles. .Beckham county has a less area than four hundred square .miles'.</p> <p>Therefore the act creating Beckham, county is Unconstitutional. This logic is unanswerable.</p> <p>2. The area of Carter, Elliott and- Lewis counties are each reduced below four hundred square miles by the act creating Beck-ham county. The demurrer confesses the facts.</p> <p>The Constitution of Kentucky, section 68, says: “No- county shall be created by the General Assembly which .will;, reduce the county, or counties from which it shall be taken' to less area than four hundred square miles.”</p> <p>3. The boundary line of Beckham county, so-called, passes within less than ten miles of the city of Grayson, the county seat of Carter county, at three points, and within ten miles of the city of Yanceburg, the county seat of Lewis county.</p> <p>This is in plain violation of that part of section 63 of the Constitution of Kentucky which says that “no new county shall be created by the General Assembly where the boundary line thereof passes within less than ten miles of the county seat of the county or counties proposed to be divided.”</p> <p>4. Section. 64 of the Constitution of Kentucky forbids the General Assembly from establishing a new county which reduces any county from which it is taken to less than 12,000 inhabitants, in these words: “Nor shall any new county be established which Will reduce any county to less than twelve thousand inhabitants.”</p> <p>The act creating Beckham county reduces the population of Carter and Elliott and Lewis counties below 12,000 inhabitants. This is confessed by the demurrer.</p> <p>5. Section 64 of the Constitution of Kentucky forbids the creation . of any new county containing a population of less than 12,000 inhabitants, as follows: “Nor shall any new county be established which will reduce any county to less than- twelve thousand inhabitants, nor shall; any county be created containing a less population.” The demurrer confesses that the act in question establishes a county of less than 12,000 inhabitants.</p> <p>CASES CITED BY it. C. BURNS.</p> <p>S'ecs. 63, 64, Comt. of Ky.; Cooley’s Comt. Law, pp. 139-157; 1 Story Comt., see. 521; 1 BI. Com., pp. 146, 269; 3 Am. «fe Eng. Eney. of Law, 673; Bliss v. Commonwealth, 2 Lit., 90; Bradley v. Comrs., 2 Hum. (Tenn.), 432; Gateher et als. v. Burrows et als., Hum. (Tenn.), 585; Maury Co. v. Lewis Co., 1 Swan, 236; Humphreys Co. v. Houston Co., 4 Bax. (Tenn.), 598; The State ex rel Brayton & Waldo v. C. C. Merriam, 6 Wis., 14; Lumming v. Carpenter, 20 N. Y., 447.</p> <p>ADDITIONAL AUTHORITIES by H. CLAY BROWN, fob appellant — Authorities Cited and Classification — Extent of Admission on Demurrer.</p> <p>Norman v. Kentucky Board of Managers, &c., 93 Ky., 537 (Injunction); Am. & Eng. Eney. of Law, vol. 10, p. 779; Civil Code, sec. 271; Gates v. Barrett, 79 Ky., 295; Shinlde v. Covington, 83 Ky., 420; Brown v. Trustees, 11 Bush, 435; Newport v. Bridge Co., 90 Ky., 193; South Covington R. R. v. Berry, 93. Ky., 43; Constitutional Question, Kentucky Constitution, sec. 63; Montana v. Camp Sing, 32 L. R. A., 635; Mining Co. v. Haygood, 3 L. R. A., 841.</p> <p>SUMMARY AND AUTHORITIES'.</p> <p>1. A county is only a quasi corporation and differs in; many respects from corporations generally. It is one of the civil divisions of a country for judicial and political purposes, created •hy the sovereign power of the State of its own will, without particular solicitation; consent or concurrent action of the people who inhabit it; a local organization which, for the purpose of civil administration, is invested with certain functions of corporate existence. They are not corporations in the fullest sense; their functions are political and administrative, and their powers are duties imposed rather than privileges granted. While in this country the county partakes more of the powers of the corporation than in England, yet the idea of a government by counties comes down from the remotest period of AnglonSaxon history, and was imparted to the American colonies with the common law, and entered naturally and of course into the framing of all their iColonial government, from whence it passed by easy transition and necessary consequence into, the government of the States.</p> <p>2. In this American country a county may sue or he sued upon any contract it is authorized to make, and it may sue in regard to public buildings, such as the court house, or as to highways, such as the public roads, and may have an injunction to restrain threatened injury to them, as has been held by this court in Lawrence County v. Chat. Railroad Co., 81 Ky., 225; Christian County Court v. Rankin and Tharp, 2 Duv., 503; Louisville, &e., R. R. Co. v. Whitley County, 95 Ky., 215; Greenup County v. M. & B. S. R. R., 88 Ky., 659.</p> <p>3. But it never has been held or claimed heretofore ^that a) county may come into the suits >of private individuals and set up speculative matters, simply from the fact that the decision of some question in the case may be of general interest.</p> <p>4. The matter in controversy in this action is whether lor not appellant Zimmerman shall be sued before Brooks? As to this matter Carter county certainly can have no interest. That is the subject of the action, and that alone. As to the law involved, Carter county may be very much interested and very anxious to have it decided in a certain way, but this kind of interest does not authorize her intermeddling with this suit. She is not the guardian of the taxpayers of the county, or the citizens. That is not one of her official functions. It isi not sufficient that the matters presented by the pleadings raise a question of law of common or general interest. Oswald, &e. v. Morris, &c., 92 Ky., 48.</p> <p>5. It ought also to appear somewhere in the pleading or petition of the county that it was being offered by the authority of tihei fiscal, court or that the fiscal court had refused to act. Commonwealth, &c. v. Tilton, &c., 20 Rep., 1056. No one can institute an action for the county until that court refuses to do so. The petition of Carter county should show authority from the fiscal court to take the step, or that the court refused to take it, as explained by this court in response to' petition for rehearing, 20 Rep., 1216. None of these things appear.</p> <p>6. It is not one of the implied powers of counties that' they may interfere in suits between individuals, involving only individual rights, in) no way' affecting public property. The fact, if it be a fact, that Brooks is usurping the office of county judge can not be enquired into by Carter county in this action. The law •provides a remedy in such a case. Civil Code, sec. 480-483. This is by an ordinary action in favor of the party entitled to the office, or the Commonwealth. In addition to this remedy an individual who is being proceeded against by such usurper may test his title in’such action. Patterson v. 'Miller, 2 Met., 493; Commonwealth v. Jones, 10 Bush, 275.</p> <p>7. Carter county, can not get out an injunction to restrain an individual from interfering with, the county court, or the quarterly court. The courts have ample power to protect themselves. Neither can it interfere with individuals in reference to the collection of taxes. The sheriff has sole juris/diction in this matter, and is the real party in interest. He can summon the whole county to his aid.</p> <p>8. There is no multiplicity of suits’, or any suits that can arise to engage the attention of Carter county by reason of the allegations of her petition, as there is not one she w.ouldi be authorized to bring or coulld be brought against her on the charges set out. It does not show or claim that any damage will result tto it in any way by reason of the matters set out in its petition, or that it has sustained any damages, or tihat Brooks isi threatening to inflict any further damage.</p> <p>9. And, finally, it may be said, from no point of view does the petition state' any cause of action in favor of said county. Iti claims the act creating Beckham county is unconstitutional, and recites a state of facts upon which it bases its oonclusion that) the courts have no jurisdiction to enquire into. It, therefore, seems clear to us that the lower court was correct in refusing to: allow the petition to be filed.</p> <p>An affirmance of the judgment is respectfully asked.</p>

Case 12 — Action by G.- L. London Against the City of Franklin, &c,, to Recover the Fees of the Office of City Marshal. — * appeal from simpson circuit court — S. R. CKEÍWISDON, cntcum JUDGE. Judgment for Defendants and Plaintiff Appeals. POINTS AND AUTHORITIES'. 1. A city council can only speak by its records. iCity of Paris v. Lelleston, 22 Ky. Law Rep., 1506. 2. The city council can not summarily remove the marshal.

Case 13 — Action ey Willie Bowman Against S. B. D. Ray (County Superintendent) for Revoking School Teacher’s Certificate, &c. APPEAL FROM MONROE CIRCUIT COURT — W. W. JONES, CIRCUIT JUDGE. We contend: 1. That appellant has a vested right in his certificate to- teach school, and it is property that the law ought to, and- does} ret* spect against a conspiracy and the malicious acts -of all persons including the person holding the -office of county superintendent. 2.

Case 14 — Action by Sanders & Russell Against Cin., N. 0. & T. P. Ry. Co. for Damages in Shipping Live Stock. APPEAL FROM MERCER CIRCUIT COURT — M. C. SAUFLEY, CIRCUIT JUDGE. Judgment for Plaintiff:, and Defendant Appeals. 1. The grounds of the demurrer to. the second paragraph of the answer is that it presents a contract for relief fnom its common law liability, and .upon this ground alone it was sustained. 2.

<p>Contract to Efeect Location of Depot — Damages for Breach-Evidence.</p> <p>1. Where plaintiff conveyed a right of way ‘through his land to defendant in consideration of its agreement-'to erect a depot on his land and stop its cars there, the measure of damages for its breach of the agreement is the difference between the market value of the residue of his land with and without the depot.</p> <p>2. In an action for breach of defendant’s agreement, in consideration of the right of way conveyed it, -to erect a depot on plaintiff’s land and stop its cars there, evidence of the prices for which other lands contiguous to his, and situated, like it, on the defendant’s road, sold, and as to the advantages of' plaintiff’s land for business and suburban purposes, and' also as to what value the location of the depot would give the land, is admissible.</p>

<p>Taxation — Corporation—Personal Property — Constitutional Law —Equal Protection.</p> <p>1. All personal property of a corporation organized under the laws of the State, though having its principal place of business out of the State, is taxable in the State, under Kentucky ¡Statutes 1903, see. 4020, providing that all personal estate of dor-t ' porations organized under the laws of the State, whether the property be in or out of the State, shall be subject to taxation.</p> <p>2. Ky. St. 1903, sec. 4020,' making personal property of a corporation organized under the laws of the State subject to taxation in the State, though out of the State, does not contravene Const, sec. - 171, providing that taxes “shall be uniform on all property subject to taxation within the territorial limit's of the authority levying the tax.”</p> <p>3. .Ky. St. 1903, sec. 4020, making personal property of a corporation organized under the laws of the State taxable in the State, though it be out of the State, do'es not deny the equal protection of the laws, though, under the laws of another State, such property be also taxable there.</p> <p>4. Ky. St. 1903, sec. 4020, making personal property of a- corporation organized under the laws of the State taxable in the State, does not deny the equal protection of the laws, in the easel of a corporation owning cars outside of the State, though, in the case of a railroad company owning oars in use outside the State, it is not taxed therewith in the State; a special mode of taxing ing railroad companies being provided by the Constitution.</p>

<p>Master and Servant — Section Man — Strain in Moving Hand Car— Threatend Collision with Locomotive — Failure to Give Signals — Negligence—Assumption of Risk — Contributory Negligence — Proximate Cause — Jury Questions — Instructions— Conformat'ory to Pleadings — Continuance—Surprise—Presumption on Appeal.</p> <p>1. It will be presumed on appeal that it was proper to refuse defendant a continuance sought on the ground of surprise, in that in ruling on a demurrer to the .petition the court had indicated a different ground of liability from that on which it .proposed to submit the case to the jury, where there is nothing in the record to show defendant was misled' by the ruling on the demurrer.</p> <p>2. Ky. St. 1903, secs. 786, 466, requiring locomotives to sound a whistle and ring a bell on approaching highway crossings, and authorizing a recovery of damages by persons injured by a failure to do so, protects section men on a hand car near a highway crossing which a locomotive is approaching.</p> <p>5. A section man does not assume the risk of a collision of his hand car with a train, induced by the foreman’s going forward from a station on the train’s time, instead of waiting there for it to pass.</p> <p>4. Evidence in an action by a section man for injuries in removing a hand car from the track to avoid a collision with a train held to require submitting the question of contributory negligence to the jury.</p> <p>6. Also to require submitting to the jury the question of whether the injury was the proximate result of the foreman’s negligence in running on the tram’s time.</p> <p>6. Also to require submitting to the jury the question of the foreman’s gross negligence in running on the train’s time.</p> <p>7. Where a defendant understands from the court’s ruling on a demurrer to the petition that its liability is rested solely on a certain ground, its introduction of evidence will not be deemed a waiver of defects in alleging another ground of liability.</p> <p>8. In a section man’s action for injuries in removing a hand car from the track to avoid a collision with a train in the neighborhood of a highway crossing, plaintiff alleged negligence, in that the train was being run in a rapid, reckless, and dangerous manner, and “without giving proper signals.” ¡Held, insufficient to warrant an instruction that if the train approached the crossing without whistling or ringing the bell, whereby the hand car was led into dangerous proximity to the train, etc., such failure was the proximate cause of plaintiff’s injury.</p> <p>9. A train’s failure to give the statutory signals on its approach to a highway crossing is not the proximate cause of injuries, to-a section man in removing a loaded hand- car from the track to avoid a collision, where the presence of the hand car/ in the neighborhood was due to the section foreman’s negligence in running on the train’s time.</p> <p>10.Where by reason of the gross negligence of a section boss or the negligence of certain train men, a collision between -the train and. a hand car was imminent, and to avoid such collision the section foreman ordered the hands to take the hand car from the track, in doing which plaintiff, one of the section men, was ruptured, as a natural consequence of having to lift the loaded hand car from the track quickly to avoid the collision, the railroad company was liable therefor, in the absence of contributory negligence.</p>

Case. 18 — Action by William Jones’ Adm’b Against Illinois Cent. Ry. Co, fob Causing the Death of Plaintiff’s Intestate.— APPEAL FROM LYON CIRCUIT COURT — THOMAS. P. COOK, CIRCUIT JUDGE. Judgment for Plaintiff and Defendant Appeals. (The only brief in the record for appellant is a supplemental brief by Jrio. C. Gates.) Our contention is: 1.

<p>Foreign Corporations — Transaction of Business — Agents—Appointment — Contract — Construction — Statutes — Constitutional Law — Interstate Commerce — Evidence.</p> <p>1. Where the absence of an original contract was not accounted for and no notice was served on defendant, in possession thereof, to produce ft, an objection to the introduction of an alleged copy was properly sustained.</p> <p>2. Proof that a foreign corporation engaged in the manufacture ot farm implements appointed certain residents of T. county, having an established place of business, to sell implements shipped, kept and stored at such agents’ place of business, without filing-in the office of the Secretary of State a statement giving th& name of an agent, and the location of his place of business, where process might be served on the corporation, as required by Ky. S't., 1903, sec. 571, was sufficient to sustain an action for a penalty prescribed for violation of such section.</p> <p>3. A contract by a foreign corporation with residents of Kentucky, appointed the latter its agents to receive, keep, and sell farm implements manufactured by the corporation. The corporation, retained title to all goods until sold, and the contract contained minute provisions relating to the manner of sales, securities to be taken, etc., and for the rendition of regular accounts of sales. The price of the goods, however, was made to the agent according-to special agreement at the time they werei ordered; he being expected to obtain his profit by selling at an advanced price, together with the five per cent, commission on all cash remitted, for sales within a prescribed time. Held, a contract of agency only, and not a contract of sale by the owners, as wholesalers, to the alleged agents as retailers.</p> <p>4. Ky. -S't., 1903, sec. 571, requiring all corporations doing business within the 'State to file in the office of the Secretary of State a statement giving the name of an agent, and the location of his place of business, where process could be served on him for the corporation, in so far as it affected a foreign corporation engaged in selling farm implements through a resident agenty in Kentucky, and not through drummers, is not a regulation of interstate commerce. ■</p> <p>5. In an action against a foreign corporation to. recover a penalty for doing business within the State without first appointing, an agent on whom process may be served, as required by Ky. St. 1903, sec. 571, the record of a prior .proceeding in which defendant brought suit against the administrator of its former agent in Kentucky was irrelevant.</p>

<p>Elective Officers — Vacancy—State Officers — Presidental Electors.</p> <p>1. Presidential electors are State officers, within Const, sec. 152, providing for filling of a vacancy in an elective office at the next succeeding annual election at which either city, town, county, district, or State officers are to be elected.</p>

<p>Case 21 — Action by Maey McCullough's, Adm’b Against the Georgetown Telephone Co. for Causing the Death of Plaintiff’s Intestate.</p> <p>APPFAL FROM SCOTT CIRCUIT COURT-JAS. E. CANTRILL, CIRCUIT .JUDGE.</p> <p>Judgement for Plaintiff and Defendant Appeals.</p> <p>Our contention in this ease is:</p> <p>1. Appellee, fails utterly to show that the box of dynamite which exploded and killed plaintiff’s intestate was placed in the room where it was, by any of appellant’s employes or by appellant’s authority, or that any of appellant’s employes knew that it was there.</p> <p>2. That decedent was an employe of appellant, and she was under as much obligation to discover the fact that the dynamite was there as any of the other employes of appellant.</p> <p>■3. Even if appellant was guilty of negligence in having dynamite in the room, the negligence was not the proximate cause of decedent’s death. Woods Mayne on Damages, p. 71, note; Rucker v. Athens Mfg: Co., 54 Ga., 84; Digest of Am. Dec. & Rep. Rapalje’s, vol. 2, p. 2476; Tutew v. Hurley, 93 Am. Dee., 154; Am. & Eng. Ency. of Law, vol. 16, pp. 444, 445; McGahan v. Indianapolis, &c., Gas Co., Am. Rep., vol. 49, p. 199; Pickett v. Wilmonton, &c., Co., Idem, vol. 53, p. 611; Reed v. Evansville, &c., R. R. Co., Idem, vol. 53, p. 391; Towles v. Briggs, Idem, vol. 72, p. 537.</p> <p>4. The court improperly instructed the jury in giving it an instruction as to the probable duration of the life of decedent as determined by the mortuary tables. K-y. Law Rep., vol. 16, p. 722; 9 Bush, 736; 83 Ky., 128; Alabama, &c., R. ¡R. Co. v. Jones, Am. St. Rep., vol. 2, p. 121.</p> <p>5. The verdict of the jury is contrary to the evidence.</p> <p>6. Appellant’s motion for a peremptory instruction should have been sustained.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The question of what is the natural or proximate cause of particular injuries is a question of fact for the determination of the jury, dependent upon the circumstances of each case. Watson on Damages for Personal Injuries, sec. 166, and cases there cited; Owensboro City R. Co. v. Hill, 21 Rep., 1638.</p> <p>2. To excuse the defendant upon the ground of intervening act of third party, the act complained of must not have been merely negligent, but must have been criminal and willful, so that it would of itself have been sufficient to have produced the injury and without which the injury woulid not have happened. In such case the original wrongdoer is not liable, because his act was not the proximate cause of the injury. Bosworth' v. Brand, 1 Dana, 377.</p> <p>3. It is no defense that the negligence of a third party contributed to the injury. Baumeister v. Markham, 101 Ky., 122; Watson on Damages for Personal Injuries, sec. 71, and cases cited; Myers v. Malcolm, 6 Hill- (N. Y.), 292; Flora v. Pruett, 81 111. App., 161; Pastene v. Adams, 49 Cal., 87.</p> <p>4. The court did not err in telling the jury what the ex-i pectancy of life was under the American life annuity tables, as the jury were not told that they were bound by them, but that they were merely given to the jury as a basis upon which they 'might estimate the probable length of life from the facts in the case and within their knowledge. The expectation of lifg was .properly given as 34.59 years, as shown by the table, page 1688, Kentucky Statutes, and approved and discussed in 3 Bush, 667.</p> <p>5. If an error was committed in instructing the jury as to the measure of damages, it is not reversible unless the appellant’s substantial rights have been prejudiced, “and that it does so must as clearly appear as the error itself.” Williams v. Rogers, 14 Bush, 776.</p> <p>6. Instructions which are erroneous, but clearly not prejudicial to the appellant’s rights, will not authorize a reversal. North v. Ky. C. R. R. Co., 9 Rep., 993.</p> <p>7. This court will not reverse judgment for less than $5,000.00 for loss of life, because all of the law as to proper measure of damages is not given. .</p>

<p>Laborers’ Liens — Priority of Mortgage — Constitutionality of Statute.</p> <p>Kentucky Statutes 1003, secs. 2487, 2488, giving laborers in manufacturing establishments a lien for wages superior to that of mortgages, are constitutional.</p>

<p>Vendor and Vendee — Deed by Co-tenants — Conditional Delivery.</p> <p>Where co-tenants made a deed which was delivered in escrow under an agreement that it should he delivered) to. thel grantee on the payment of a certain sum to one of the grantors, the consent of this grantor to the delivery and recording of the deed on the payment to him of a less sum was not binding, on another co-tenant so as to, entitle the grantee, on rescission of the contract of sale to a lien on such other co-tenant’s interest for the amount of money which it paid when the deed was delivered.</p>

<p>Case 24 — Action by David Irvine Doty, by His Guardian Annie James against ti-ie Adm’r and Heirs At Law of Boyle Doty, Deceased, to Enforce a Contract</p> <p>APPEAL from MADISON CIRCUIT COURT-J. M. BENTON, CIRCUIT JUDGE.</p> <p>Prom tiie Judgment all Parties Appeal.</p> <p>POINTS AND AUTHORITIES' 'CITED.</p> <p>1. Annie James was an incompetent Witness.</p> <p>(a) A party to the action. Ency. P. & P. vol. 15, p. 163; Hunt v. Haven, 62 N. H., 162; Ency. P. & P., vol. 15, '594; Ency. P. & P., vol. 15, p. 617; Sub-section 2, section 37, Civil Code; Miller v. Cabell, 81 Ky., 178; Sub-section 1, section 36, .Civil Code; Subsection 1, section 38, Civil Codé; Hampton v. Hampton, 6 Monroe; Alexander’s Ex’or v. Alfred, 89 Ky., 105.</p> <p>(fa) She as guardian is interested in the result and liable for costs. Greenleaf on Evidence, sec. 347; Mason v. McCormick, 75 N. C., 263; Section -2063, Kentucky Statutes; Campbell v. Williams, 3 Mon., 182; Hughes v. Smith, '2 Dana, 251; Campbell v. Golden, 79 Ky., 544;' Haden v. Easton, 15 Ky. Haw Rep., 597; Apperson’s Ex’or v. Exchange Bank, 10 Ky. Haw Rep., 943; Smick’s Adm’r v. .Beswick’s Adm’r,' 24 Ky. Haw Rep., 276-9; Greenleaf on Evidence, sec. 391; Townsend v. Wilson, 24 Ky. Law Rep., 1276; Mix v. Mardes’ Ex’or.,-79 Ky., 13; Story v. Story’s Ex’of., 22 Ky. Law Rep., 1751; Greenleaf on Evidence, sec. 389; Beach v. Cumming’s Ex’ors., 13 Ky. Law Rep., 881.</p> <p>(c) She was a party to. the contract and a beneficiary thereunder. Townsend v. Wilson, supra; Swinebroad v. Bright, 21 Ky. Law’ Rep.; Swinebroad v. Bright, 25 Ky. Haw Rep., 743; Jones on Evidence, sec. 790; Slower v. Hollis, 83 Ky., 545; Mercer v. Mercer, 9 Ky. Law Rep., 884; Healy v. Healy, 66 N. Y., 82.</p> <p>2. Tlie contract and its consideration.</p> <p>(a) Not sufficient consideration to support a) contract. King’s Ex’ors. v. Hanna, 48 Ky., 369; Berry v. Graddy, 1 Met., 553; Scott v. Osborne, 2 Munf. (Va.), 413; Meacham v. McKee, 1 Hill L. (S. C., 374); Benge v. Hiatt’s Adm’r, 82 Ky., 666; Healy v. Healy, supra; Healy v. Simpson, 113 Mass., 340.</p> <p>3. Vice is part of the consideration for the contract and it is therefore void. 'Lytle v. Newell, 24 Ky. Law Rep., 188; McAdams on Landlord & Tenant, sec. 90; Chitty on Contracts, 654; Hall v. Cappell, 7 Wall., 542; Kent, 467; Brown’s Ex’or v. Lang-ford’s Adm’r, 3 Bibb, 97; Kimbrough v. Lane, 11 Bush, 556; Swann v. Chandler, 8 B. Monroe, 97; Chitty on Contracts, 692; 3 Bibb, 500; 6 Dana, 91; Cillins v. Merrell, 2 Met., 163; Am. & Eng. Ency. Law, vol. 15, p. 988 (2d ed.)</p> <p>4. The finding of the lower court that any such contract was «ver made or entered into between Annie James and the' decedent is flagrantly against the weight of evidence. Jones on Contract, secs. 350 and 351; Jones v. Jones, 19 Ky. Law Rep., 1516; 37 La. Ann. 873; Greenleaf on Evidence, sec. 200; Boener v. Helronymous, 19 Ky. Law Rep., 646; Mercer v. Mercer, supra.</p> <p>5. Review of the position of the appellee. The authorities ■cited by her are not in point and do not support her contention. Hiatt v. Benge, supra; Burgin v. Strougham, 7 J. J. Mar., 583; Clark v. McFarland’s Ex’or., 5 Dana, 215; Berry’s Adm’r v. Graddy, 1 Met.; Story v. Story, supra; Winnebrinner v. Weisenger, 3 T. B. Mon., 35; Mercer v. Mercer, supra; King’s Ex’or v. Hannah, 9 B. Mon., 372; Berry,v. Graddy, 1 Met., 556; Am. Si Eng. Ency. Daw (2d ed.), vol. 6, p. 718.</p> <p>6. The opinion of the lower court in the individual action of Annie James and in this suit are in conflict and inconsistent with each other. Woodram v. Cincinnati Railway) Co., 18 Ky. Rep., 245; Miller v. Cabell, supra.</p> <p>POINTS RELIED ON AND AUTHORITIES CITED.</p> <p>1. The petition not having alleged that the contract sued on was in writing, the presumption of law is that it was oral. The' general demurrer to the petition, and the denial of the contract in the answer, presented the defense of the Statute of Frauds. Biass v. Reece, 4 (Met.), 372; Hooker v. Gentry, 3d (Met), 474, Newman on Pleadings, 390; Smith v. Fah, 15 B. M., 444; Smith -v. Theobald, 86 Ky., 141.</p> <p>2. . The early Kentucky cases holding that an oral contract for the sale of land is voidable have long since been overruled, and the doctrine now is that they are void. Usher v. Flood, 83 Ky., 552; Asher v. Brock, 95 Ky., 272; Newberger v. Adams, 92 Ky., 27; White v. O’Bannon, 82 Ky., p.- 93; Duncan v. Duncan, 93 Ky., p. 37.</p> <p>3. Part performance is not now and never was the law in this State. An oral contract as to realty can not be enforced directly or indirectly. Hayden v. Mcllvain, 4 Bibb, 57; Spears v. Sewell, 4 Bush, -239; Usher v. Flood, 83 Ky., -552.</p> <p>4. Damages or compensation can not be recovered on an, oral contract. An action, if any lies, must 'be brought on the implied promisetorepay the purchase money paid or to pay for the reasonable value of services performed, or to restore, uninjured in value, any article, or even person, delivered in payment of the purchase price. Davis v. Jones’ Adm’r, 94 Ky., 320; Browne Statute Frauds, secs. 121, 124, 12-5, 126; Erben v. Lorillard, 19 N. Y., 299; Sans v. Arthur, 84 Pa. St., 479; Ham'ble v. Hamilton, 3 Dana, 501; Montague v. Garnet, 3 Bush, 297;' S'pears v. Sewell, 4 Bush, 239.</p> <p>5. The cause of action herein being on the contract, no recovery can be had on the implied promise. Price v. Price, 101 Ky., 28; Frankfort Bridge Co. v: Frankfort, 8 B. M., 424, 18 B. M., 34.</p> <p>6. The Benge-Hiatt case is out of harmony with all Kentucky authority; is an anomaly, and should»be- overruled. Wallace v. Long, 5 N. E., 670; Hertzogg v.-Hertzqgg, 34 Pa. St., 413; Ellis v. -Carey, 4 L. R.'A., 54; Erben v. Lorillard, 19 N. Y., 299, and the cases reviewed in said cases.</p> <p>7. A contract by a parent for the sale of the custody of a, child, or husband or his'wife, is against public policy and void. 15 Am. & Eng. Ency. Law (2d ed.), 958, and numerous cases cited in notes.</p> <p>8. The proof in this case fails completely to establish, part performance on the part of the mother by the delivery of the control of the child; or part performance on the part of Doty by delivering possession of the land: In either event such possession must be notorious, exclusive and in pursuance of and solely referable to the oral contract. Browne, sec. 473, and following: Baldwin v. Squires, 31 Kan., 283; Browne, sec. 454; Am. & Eng. Eney. Law, vol. 8, -744.</p> <p>■9. Part of the alleged contract being within the Statute of Frauds it is void, both as to the realty and as to the $2,500.00. Browne, sec. 151; Pond v. Shehan, 132 Ill., 312; Grant v. Grant, 63 Conn., 530; Ellis v. Carey, 74 (Wis.), 176; Debearhski v. Page, 36 N. Y., 537; Gould v. Mansfield, 103 (Mass.) 408.</p> <p>In England nearly two hundred years ago one of the “nobility” misled an innocent young woman and had a son by her. He lived with her a little while, but afterwards married another woman. But before doing so he executed a bond in which he promised to give the boy at his death $10,000, and died. Suit was brought upon the bond by the mother for the boy in the high court of chancery, and a motion was made to dismiss it upon the ground, “that it being a matter of turpitude, equity ought not to meddle and should not lend assistance.” The Lord Chancellor substantially said: “Turpitude consists in the doing of the wrong and not in making reparation.” So we say, this is a case of doing justice — making amends for wrong done to. the innocent. Justice is clean and appeals to the highest of all courts. To do justice — to make reparation for wrong done — requires the exercise of the highest function of this court, and that for which it was established. In that case the chancellor gave the mother judgment for the amount due the child, and the finding was approved by the House of Lords.</p> <p>In this case we submit:</p> <p>1. That the contract as alleged and proved by Annie James, mother of the infant plaintiff, who made the contract, is absolutely uncontradicted.</p> <p>2. Her testimony is clear and explicit and every part of the contract, as stated by her, is confirmed by disinterested witnesses, and by acts, “the subsequent conduct of the parties,” and by the. statements of the intestate.</p> <p>3. The contract was literally executed, with the exception that the intestate failed to make the conveyance of the land either by deed or will.</p> <p>4. The intestate definitely described the land and marked the boundary thereof, and built the house thereon, and put the appellee, his son, into possession.</p> <p>5. It is nowhere shown in the record that intestate, Boyle Doty, ever in any way repudiated the considerations of the contract.</p> <p>6. That which it is contended he agreed to do was the natural, sensible and right thing to. ,be done under the circumstances, and is creditable not only to his heart but to his head.</p> <p>7. He had given the boy his name, and his purpose, as declared by the contract, was to establish him, as his son, upon the land which he himself had owned, to educate and make him an intelligent and reputable citizen.</p> <p>*We furtlier submit that in contemplation of the law an “illegitimate” is the son of his mother, and the subject of contract between the mother and the father.</p> <p>The mother has the legal custody and control of the child, and any concessions she makes to the father as to her custody <or control is a sufficient consideration for the promise by the father to do something for the child.</p> <p>• We also insist that the mother is a- competent witness to prove the contract. She is not a party in interest and does not testify for herself. The infant is the only claimant, and the contract was made exclusively for his benefit. The fact that she is the infant’s guardian and may be liable for costs does not makei her an interested party in the meaning of the law.</p> <p>AUTHORITIES CITED.</p> <p>Benge v. Hiatt’s Admr., 82 Ky., 666; Burgen v. Stranghan, 7 J. J. Mar., 583; Clark.v. McFarland’s Exr., 5 Dana,'45; Belt, Admr., v. Graddy, 1 Met.; Ware v. Hylton, U. iS. Sup. Ct., 3 Dallas, 199; Mix v. Marder’s Exr., 79 Ky., 131; Story v. Story’s Admr., 22 R., 1731; Beach v. Cummins’ Exr., 13 Rep., 881; Winebrenner v. Weisenger, 3 T. B. Mon., 35; Lytle v. Newell, -24 R., 181; Slowers'v. Hollis, 83 Ky., 545; Mercer v. Mercer’s Admr., 9 R., 884; Healy v. Healy, 66 N. Y., 927.; Jones v. Jones, 19 R., 1516. ’ '</p>

<p>License Tax — City Ordinance — Penalty—Remedy—Action for Debt.</p> <p>1. Where a city ordinance imposing a license tax provides no adequate procedure for collecting, the city may maintain .an action as for a debt.</p> <p>2. An ordinance imposing a penalty for failure to take out a license, payment, of the penalty not discharging the claim for the license tax is not an adequate remedy for the collection of the lax.</p>

<p>Case 26 — Action by W. H. Harlin and Others Against the Town of Bardwell to Enjoin the Collection of a Tax.</p> <p>APPEAL FROM CARLISLE CIRCUIT COURT — J. E. ROBBINS, SPECIAL, .JUDGE.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>It is alleged in the petition, and is true, that in January, 1903, the hoard of trustees of Bardwell, a town of the sixth class, passed the following ordinances: (1) “Motion, made and seconded that the regular levy of 50 cents tax on all real estate and personal property, and also one dollar poll tax, is hereby levied.”</p> <p>(2) “Motion made and seconded that a special water tax of 50 cents per hundred he levied ion all real, estate and personal property in the town of Bardwell.” These two ordinances, taken together, levied a tax of one dollar on each one hundred dollars worth of taxable -property in Bardwell. This suit is brought to. enjoin the collection of 25 per cent, of that levy.</p> <p>Onr contention is:</p> <p>1. That the statute expressly confers upon towns of the sixth class the power to levy a tax of 50 cents on the $100. It is them expressly further provided that a vote may be had by which an indebtedness may be created. In that event the town is expressly .authorized to make an additional levy of 50 cents on the hundred doliars, which is to -be devoted solely to the payment of the interest on said debt, and the creation of a sinking fund to pay the principal.</p> <p>2. The town having voted a tax of 50 cents for the payment of interest on its debt, was not thereby disabled from discharging its ordinary duty to the public, to raise revenue sufficient to meet the current expenses of the town.</p> <p>AUTHORITIES CITED.</p> <p>Constitution, secs. 157, 158, 159; Com’rs v. Zimmerman, 41 S. W., 428: Missouri Const., art. 10, secs. 11, 12; State v. Town of Columbia, 20 S. W., 90; Lamar Water Co. v. City of Lamar, 31 S. W., 756; Ky. Stat., sec. 3490, sub-sec. 2; sec. 3637, sub-sec. 3; see. 3704, sub-sec. 3; sec. 3705.</p> <p>1. We contend that under section 157 of the Constitution the highest rate of taxation that may be imposed, for all purposes whatever (except two purposes expressly exempted from its operation by its term) is 75 cents on each $100 worth of taxable property, and that any rate in excess of this sum is void as to such excess.</p> <p>2. The two exceptions referred to are, (1) a levy for paying interest and providing a sinking fund for the extinction of indebtedness contracted prior to the adoption of the present Constitution; (2) an indebtedness for school purposes.</p> <p>3. It follows, therefore, that a tax of 50 cents on each $100 for paying the water tax, and 50 cents for the current expenses •of the town is in excess of the limit fixed by the Constitution, and as to such excess it is void.</p> <p>" AUTHORITIES CITED.</p> <p>U. S. Sup. Ct. Rep. (L. Co., op. No. 5), Feb. 1, p. 181; Black on Interpretation of Laws, p. 148; iCiooley’s Con. Lim., pp. 69-72; Whaley v. Com., 61 S. W., 35; O’Bryan, Clerk, v. City of Owensboro, 68 S. W., 85S; Sparks v. Robinson, 74 S. W., 176; Grady v. Pruett, 63 S. W., 285; Constitution, secs. 157, 159, 18C,</p>

<p>■Case 27 — Action by James L. Druien Against the ¡Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. for Damages in Shipping Live Stock.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS BRANCH, FIRST DIVISION — EMMET FIELD, CIRCUIT JUDGE.</p> <p>Judgment for Plaintiff and Defendant-Appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. The contract of carriage having been made in Illinois, and the contract having been partly performed in that 'State, the law of Illinois must govern the transaction. McDaniels, v. Chicago & N. W. Ry. Co., 24 la., 412; Hazel, &c., v. Chicago, M. & St. P. R. R. Co., 82 la., 477, 48 N. W., 926; Western & A. R. R. Co. v. Exposition Cotton Mills, 81 G-a., 522, 7 S. E., 916; Ryan v. Missouri, Kansas & Texas R. R. Co., -65 Tex., 13, 23 Am. & Eng. R. R. Cases, 704; Talbert v. Merchants’ Despatch Transportation Co., 41 la., 247, 20 Am. Rep., 589; 5 Am. & Eng. Ency. of Law (2d Ed.), 302; O’Regan v. Cunard Steamship Co., 160 Mass., 356, 35 N. E., 1070; Tecumseh Mills v. L. & N. R. R. Co., 22 Ky. Law Rep., 264; O. & M. R. Co. v. Tabor, 98 Ky., 504.</p> <p>2. Under the laws of Illinois this contract was valid. Adams Express Co. v. Haynes, 42 111., 89; Anchor Line v. Knowles, 66 111., 150; Merchants Despatch Co. v. Theilbar, 86 111., 71; Merchants Despatch Co. v. Leysor, 89 111., 43; Black v. Wabash Ry. Ill 111., 351; Brown v. Louisyille & Nashville R. R. Co., 36 111. App., 140; First National Bank of Hoopeston v. Lake Erie R. R.,. 65 111. App., 21; Oppenheimer v. United ‘States Express, 69 111., 68; York Co. v. Central R. R., 3 Wall., 107; Cau v. T. & P. R. R. Co., 113 F. R., 91; 6 Cyclopedia of Law and Procedure, 392; Louisville & Nashville R. R. Co. v. Brownlee, 14 Bush, 593.</p> <p>3. Section 196, when properly construed does not apply to this case. Louisville & Nashville R. R. Co. v. Eubank, 184 U. ,S., 27; Missouri Pacific Co. v. Sherwood & Co., 19 S W ¿65; 84 Texas, 125, 17 L. R. A., 643.</p> <p>4. To apply the second clause of section 196 to a shipment like the one here involved would be to contravene the Constitution of the United States giving power to Congress to regulate commerce between the States. Champion v. Ames (Lottery Casej, 188 U. S., 344; L. & N. v. Eubank, 184 U. S., 42; Chicago Railway v. Solan, 169 U. S., 133.</p> <p>5. The case should be reversed, with instructions to reinstate the judgment upon the first verdict. Richards v. L. & N. R. R. Co., 20 Ky. Law Rep., 1481; L. & N. R. R. Oo. v. Ricketts, 21 Ky. Law Rep., 664; Crowley v. L. & N., 21 Ky. Law Rep., 1434.</p> <p>6. In addition to the cases cited', we call the attention of the court to the following: Pennsylvania R. R. v. Hughes, 24 Sup." Ct. R., 132; Hughes v. Pennsylvania Co., 51 Atl., 990; S. C., 202 Pa., 222; Hudson v. Northern Pacific Co., 92 la., 231; S. C., 54 A. S. R„ 550; Davis v. C„ M. & St. P„ 93 Wis., 470; S'. C., 57 A. S. R., 935; Meuer v. C., M. & St. P., 5 South Dak., 568; S. C., 49 A. S. R, 898; McDonald v. Grand Trunk Ry., 59 L. R. A., 448; S. O., 52 Atl., 982; L. & N. v. Whitlow’s Adm’r., 105 Ky., 3; L. & J. Ferry Co. v. Kentucky, 188 U. S., 385.</p> <p>We cite these cases to show:</p> <p>1. That even if the law of Illinois is not to govern this case because it is the law of the place of contract, yet it is the law of the place where the accident happened, and the rule in reference to torts as well as contracts is that they are governed by the lex loci.</p> <p>2. That to give to Section 196 of the 'Constitution any effect in this case would be to give to the law of the State iof' Kentucky an extra territorial force, which would be to deprive the defendant of its property without due ,process of law and to deny to, it thd equal protection of the laws.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The contract limiting the liability of the carrier is against the public policy of the State of Kentucky, and will not be enforced by the courts of Kentucky, whatever may be the law of the place where the contract was made. Kentucky Constitution, Section 196; 9 Cyclopedia of Daw and Procedure, 669; Chatenay v. Brazilian Sub. Tel. Cio., .1 Q. B., 79; Roúsillon v. Rousillon, 14 Ch. D., 357; Armstrong v. Best, 112 N. C., 69,: Varnum v. Camp, 13 N. J. L., 326; Bearing v. McKinnon Dash, etc., Co., 165 N. Y., 78; Pope v. Hanke, 115 111., 617; Wight v. Rindskopf, 43 Wis., 344; Oscanyan v. Winchester Repeating Arms Co., 103 U. S., 261; Clark v. Tanner, 100 Ky., 275; Rogers v. Rains 100 Ky., 295; Chicago, Burlington & Quincy Railroad Co. v. Gardner, et al., 51 Neb., 71; The Kensington, 183 U. S., 263; Liverpool Steam Co. v. Phoenix Ins Co., 129 U. S., 397; Louisville & Nashville R. R. Co. v. Brownlee, 14 Bush, 590.</p> <p>2. Section 196 of the Constitution is inclusive of and applicable to a shipment from a point in another State to a point in this State. Ohio & Mississippi R. R. Co. v. Tabor, 98 Ky., 503; Tecumseh Mills v. L. & N. R. R. Co., 108 Ky., 572; G, B. & Q. R. R. Co. v. Gardner, 51 Neb., 71; Schulze-Berge v. The Guildhall, 58 F. R., 796; Spreckel’s Sugar Refining Co. v. The Glenmavis, 69 F. R., 472; Dyke v. Erie Railway, 45 N. Y., 113; Pennsylvania Co. v. Fairchild, 69 111., 260.</p> <p>3. To apply the provisions of Section. 196 to a shipment like the one here involved would not be to contravene the Constitution of the United States giving power to Congress to regulate commerce between the States, nor would it be to. deprive the defendant of its property without due process of law, nor to deny it the equal protection of tlie laws. Hart v. Chicago, etc., R. Co., 69 Iowa, 485; Pennsylvania R. Co. v. Hughes, 24 S. C. Rep., 132.</p> <p>4. The common carrier in this case, under the common law, is liable as an insurer. 4 ’Elliott on Railroads, 1545; Hall v. Renfro, 3 Met., 51; Louisville, etc., R. Co. v. Hedger, 9 Bush, 645.</p> <p>5. The motion for a new trial granted to the plaintiff by the court below was properly granted, aside from the questions raised ion this appeal, and in no event, even if the judgment shall be reversed, should the judgment on the first verdict be reinstated.</p>

Case 28 — Proceeding by the City of Georgetown to .Strike Certain Territory from its Corporate Limits. APPEAL FROM SCOTT CIRCUIT COURT-JAMES E. CANTRILL, CIRCUIT JUDGE. From the Judgment Z. R. Gaskin and Others Appeal. 1. Our contention is that under Ky.

<p>Case 29 — Action by Wm. S. Lowe against the L. & N. R. R. Co. for Personal Injuries.</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT-J. P. THOMPSON, SPECIAL JUDGE.</p> <p>Judgment fob Plaintiff and Defendant Appeals.</p> <p>The points complained of and relied on for reversal are as follows:</p> <p>1. The trial court should have given peremptory instructions to the jury to find for the defendant, -because on the uneontradicted facts proven appellee was guilty of such negligence, but for which the accident would not have happened.</p> <p>2. The peremptory instruction should have been given for the further reason that if there was any negligence on the part of the person running the engine that injured appellee, it was the negligence of his fellow servant for which appellant is not answerable. The master is not liable for thei negligence of one fellow servant resulting in injury .to another fellow servant, even though that negligence was gross,</p> <p>3. Instruction “A” given by the court to the jury is erroneous in that it assumes that appellee was on the track at the time and place he was injured, in the performance of his duty, which is not true. It is also erroneous in its'attempt to define the measure -of damages. It is also erroneous in that it assumes that there was evidence that appellee’s peril was discovered in time, by the use of reasonable diligence and. care to have avoided the injury. It was also vitally erroneous! in that it authorizes a recovery for the ordinary negligence of those running the switch engine.</p> <p>4. Instruction “B” is erroneous in that it abolishes the doctrine of contributory negligence. Clearly it was as much the duty of appellee to keep a lookout for his own safety, as it was for the person handling the engine to keep a lookout for him.</p> <p>5. Both instructions “A” and “B” are erroneous in that they altogether leave out of view the ordinary risks incident to the employment, which appellee took in entering and remaining in the service.</p> <p>6. A verdict for $13,000 for the loss of an arm of a person of very limited earning capacity is grossly excessive.</p> <p>AUTHORITIES CITED; .</p> <p>Shearman & Redfield on Negligence, Secs. 25, 26-235 (5th Ed.); 'Cooley on Torts, 674; Elliott on (Railroads, sec.’ 1702; Paducah & Memphis R. R. v. Hoehl, 12 Bush, 41; Illinois Central Ry. v. Dick, 91 Ky., 441; L. & N. R. R. Co. v. McCoy, 81 Ky., 415; Kentucky Central R. R. v. Thomas, 79 'Ky., 163; Havre v. L. & N. R. R. Co., 91 Ky., 545; Hughes v. Cincinnati, &c., R. R,, 91 Ky., 531; Johnson’s Adm’r v. L. & N. R. R. 'Co., 9'1 Ky., 65; 'Cahill v. Cincinnati, &c. Ry., 92 Ky., 349; Voltz. v. C. & O. R. R., 95 Ky., •189; L. & N. R. R. Co. v. Wwlf, 80 Ky., 850; L. & N. R. R. Co. v. Sehmetzer, 94 Ky., 432; Louisville, &c., R. R. v. Goetz, 79 Ky., 447; Bogenshutz v. Smith, 84 K Ky., 338; Hughes v. Cincinnati, &c., R. R., 91 Ky., 531; L. & N. R. R. Co., v. Brantley, 96 Ky., 31Ó;- L. •& N. R. R. Co. v. Crawley, 21 Ky. Law Rep., 1437; Gunn &e., v. Felton, Receiver, &c., 22 Ky. Law Rep., 268; Decision of January 10, 1901, Sandy, &c., Co. v. Caudill, 22 Ky. Law Rep; Clark’s Adm’r v. L. & N. R. R. Co., 18 Ky. Law Rep., 1082; Gatewood v. McHenry Coal Co., 14 Ky. Law Rep., 3i36; Wagner v. Wetmore, 12 Ky. Law Rep., 638; Kentucky Cent. R. R. v. Debus, 14 Bush, 522; Ramsey v. Louisville, Cin., &c., Ry. Co., 89 Ky., 102; Newport News, &c., Co. v. Deuser, 97 Ky., 96; D. & N. R. R. Co. v. Webb, 99 Ky., 343; Avery v. Meek, 96 Ky., 102; Cincinnati, &e., Ry. Co. v. Palmer, 98 Ky., 384; Wright v. Cincinnati .Southern Ry. Co., 94 Ky., 117; Priestly v. Fowler, 3 Mees. & W., 1; Farwel.1 v. Boston, &e„ Ry., 4 Met. (Mass.), 49; L. & N. R. R. Co. v. Collins’ Adm’r, 2 Duvall, 120; L. & N. R. R. Co. v. Cravens' Adm’r, 9 Bush, 565; Illinois Central Ry. v. Hillard, 560, 99 Ky.; RandalL v. Baltimore & Ohio R. R. Co., 100 'Supreme Court, U. S. Law Ed., 1004-5; Quebec Steamship Company v. Merchant, 133 Supreme Court, U. S>. Law Ed., 656; Parker v. Hannibal, &c. Ry. Co., 18 L. R. A., 802; Chicago, &c. Ry. Co. v. Moranda, 108 111., 576; Appeals, Chicago, &c. Ry. Co. v. O’Bryan, 15 111., 134; Illinois Cent. Ry. Co. v. Coleman, 22 Ky. Law Rep., 878.</p> <p>ADDITIONAL REFERENCES.</p> <p>Aerkfetz v. Humphreys, 145 U. S., 418; 3 Elliott on Railroads, See. 1258; Kansas City & R. Co. v. Cook, 28 L. R. A. , 181; Wabash R. R. Co. v. Skiles, 21 Am. & Eng. R. R. Cases, 881; L. & N. v. Cundiff, Adm’r., 90 Ky., 560,- III. Cent. v. Dick, 91 Ky., 434; L. & N. v. Robertson, 9 Heisk., 276; Elliott v. R. R., 150 TJ. S., 145.</p> <p>1. We submit that a railroad company has the exclusive use of its track for the purposes of its business, but at such places as the public is in the habit of using its track either by right or license, it has the right to its exclusive use only upon condition that its servants in charge use signals, and keep a vigilant lookout to discover persons on the track in time to warn them of their danger, especially at a junction where the public are invited and where employes bind themselves under their contract of employment to go and perform the,ir duties.</p> <p>2. The real issue submitted to the jury in this case wasi: Could the train men have prevented the accident by a reasonable performance of their duty-? If they could the law is for the appellee, otherwise it is for appellant.</p> <p>3. Appellee, as a car inspector, had nothing to. do with the running operation of the road, and was not in any sense of the word a iellow servant of those in charge of the engine, and tender that ran over him, but in a wholly and entirely different line of service.</p> <p>4. A railroad company is under an implied obligation to provide safe and sound cars and engines, and a competent and vigilant enginer, can not reasonably be responsible for the negligence or unskillfuiness of its engineer, as its controlling agent in the management of its locomotives, is graduated by the classes of persons injured by such neglect or want .of skill, and as ten employes in a different department of service, ordinary negligence is sufficient to hold the company responsible.</p> <p>5. It is the universal rule of the court, and it is the law ast defined in our Code, not to disturb a verdict as excessive, unless there is something to indicate passion or prejudice. The jury, being the constitutional triers, must fix the damages.</p> <p>6. In this case we insist that the jury were properly instructed, the trial was fair, and the compensatory damages awarded appellee, considering the pain of body and mind' that he endured and must continue to. endure, and his practically total disability to earn a livelihood, is in no sense excessive.</p> <p>LIST OF AUTHORITIES CITED'.</p> <p>L. & N. R. R. Co. v. Howard’s Adm’r, 82 Ky., 219; Shelby’s Adm’r v. C. N. O. & T. P. R. R. Co., 86 Ky., 227; L. & N. R. R. Co. v. Schuster, by etc., 102 L. R., 67; Ky. C. R. R. Co. v. .Smith, etc., 93 Ky., 453; L. & N. R. R. Co. v. Potts’ Adm’r., 13 Ky. Law Rep., 335; L. & N. R. R. Co. v. Popp, by, &c., 96 Ky., 109; Connelley’s Adm’r v. C. N. 0. & T. P. R. R. Co., 89 Ky., 406; R & M, R. R. Co." v. Hoehl, 12 Bush, 48; Spencer v. I. C. R. R. Co,, 29 Iowa, 60; P. & T. R. R. Co., v. Hagan, 47 Penn., 246; IL. & N. R. Rj. Co-., v_ Earle’s etc., 29 Ky., 374; L. & N. R. R, Co. v. McCoy; L. & N. R. R. Co. v. Krew, 16 Ky. Law Rep.; C. & Pi R, R. Co. v. Kuhn, 86 Ky., 578, 584; L. C. & L. R. R. Có. v. Goetz, 79 Ky., 442; Crawley v. L. & N. R. R. Co., 21 Ky. Law Rep., 1435; Gunn v. Felton, etc., 22 Ky. Law Rep., 268; Etieson v. Railway Co., 41 Minn., 500; W. R. Co. v. McDaniels, 107 TL S., 454; L. & N. R. R. Co. v. Collins, 2 Duvall, 118; Greer v. L. & N. R. R. Co., 89 Ky., 179; I. C. R. Co. v. Hillard, 99 Ky., 688; Ky. C. R. Co. v. Rylye, 13 R., 862; Ky. C. R. Co. v. Aaekley, 87 Ky., 282; L. C. & L. R. R. Co. v. Cravens, 9 Bush, 561; L. & N. R. R, Co. v. Moore, 83 Ky., 683; 83 Ky., 839; 88 Ky., 399; 91 Ky., 41; 16 R., 500; 79 Ky., 446; 21 R„ 1618; S. R. Co; v. Barr, 21 R.„ 1618; C. & O. R. R. Co. v. Perkins; I. C. R. R. Co. v. Mizel; C. R. R. Co. v. Palmer, 98 Ky., 391; N. M. & M. R. Co. v. Denteel, 91 Ky., 49; Promer v. Milwaukee R. R. Co., 90 Wis., 215; Swift v. Short, 92 Fed. R., 567; Mast v. Kern, 75 Am. St. Rep., 600; Dwyer y. Am. Ex. Co., 82 Wis., 307; Barb. Dig., vol. 3, 426; L. & N. R. R. Co. v. Mitchell, 87 Ky., 327; C. & O. R. R. Cio. v. Davis, 22 R., 748; City of Louisville v. Garr, 99 Ky., 583; C. & N. W. R. Co-, v. Jackson; Caldwell y. N. J. S. Co., 56 Barb., 426; Walker v. E. R. W. Co.,63 Barb, 206; Boyce v. C. S. Co., 35 Cal., 460; Shaw v. Bv W. R. R. Co., 8 Gray, 45; Choppin v. N. O; O. R. R. Co., 17 (La.,. 19; Barksdale v. Same, 23 La., 180; Chicago & Co., etc. v. Fisher, 30 111. App., 33; 50 N. W. 92; .Smith v. Whittier, 30 Pac. R., 529; I5. N. Y. S., 864; 35 Minn., 73; 32 N. Y. Sup., 915; 87 Wis., 257; 131 N. Y., 576; N. & O. & St. L. R. Co. v. Dudgeon, 83 111. Ap.p., 528; I. H. & I. C. v. Shuck, 56 N'ev., 434; B. & A. R. Co. v. Hausman, 548 S. W. R., 841; L. SI R. v. Tárbiff, O. Ct. R.,709; Williamson, v. Brok, H. R. Co., 65 N. Y. S‘., 1054, App. Div., 399; Rennee v. U. S. Leather Co., 83 N. W. Y., 473; 57 S. W. R., 912; 82 N. W. Y., 297; I. C. R. Co, v. Sonders, 79 111., App., 41; 79 111., App., 632; 33 111., App., 450; 13 Wash., 325; 50 Wis., 419; 37 S'. W. R., 829; 7 N. Y. S.,- 900; 14 N. Y. S., 336; 79 N. Y. S„ 1043; 50 S'. W. R,, 894; 149-Mo., 609; 48 N. Y. S., 640; 9 Mont., 108; 9 N. Y. SI, 506.</p>

<p>Telephones — Connecting Lines — Contract for Connections — Constitution — Duration of ’ Contract — Construction—Practical Construction by Parties.</p> <p>Held: 1. Const, see. 199, declares that telephone companies operating exchanges in different towns or cities shall receive and transmit each other’s messages without unreasonable delay or discrimination. Two telephone companies extended their lines and connected them pursuant to a contract which required them to transmit each other’s messages over the lines, so extended and connected. Held, that the duration of the contract was the oor■porate existence of the two companies, and it was not determinable at the will of either.</p> <p>2. Defendant telephone company and plaintiff telephone company contracted to connect their lines by extending them to a point midway between two cities, in one of which defendant maintained an exchange, and in the other of which plaintiff maintained an exchange; and it was provided that each company should have the right to send messages over the extended lines between the two cities, and, for more than eight years after the extension was made, messages originating elsewhere than in the two cities were received and passed over such lines. Held, that in view of the situation, and the practical construction given the contract by the parties, it should be construed as calling for the transmission of messages, irrespective of whether they originated in either of the two mentioned cities.</p>

<p>Appeal — Judgment—Costs—Damages—Assessment.</p> <p>Civil Code, see. 764, providing that 10 per cent, damages shall be allowed on the amount superseded against the ¡appellant on the affirmance of a judgment for the payment of money, the collection of which has been superseded, does not apply where the only pecuniary relief afforded by the judgment appealed from was an award of the costs of the action.</p>

<p>Mortgages — Enforcing Lien — Pleading—Conditions and Breaches— Averments — Appeal—Technical Errors Disregarded.</p> <p>1. A petition in a suit to enforce mortgage liens should set out both the conditions of the mortgage and the breach of the conditions, and the fact that the mortgage is filed with the petition can not supply omissions.</p> <p>2. Under Code of Practice, sec. 134, providing that no error in pleadings shall be considered on appeal that did not affect the substantial rights of the complaining party, where, in a suit to enforce mortgage liens the execution of the mortgage was admitted and the parties tried out the only issues presented, and the judgment on the merits was for the right parties, and was not questioned, such judgment should ngi be reversed because of the failure of the petition to set out the conditions of the mortgage or their breach.</p>

<p>Drains- — Proceedings—Liens—Subsequent Purchasers — Notice— Lis Pendens.</p> <p>Kentucky Statutes 1903, section 2380, provides for proceedings in the county court for the construction of drains and the assessment of the cost against the lands benefited, but the land owner himself is permitted to do the work, and, until he has neglected or refused for a certain period of time after the confirmation of the report of the viewers, the contract for the work can not he let to others. Held, that no lien arises on the land until the contract has been let, and one who purchases the property after the judgment of the county court directing the opening of the drain, hut before the contract has been let to a third person, can not resist the payment of the assessment against such property on the ground that no. notice of lis pendens has been filed by the third person, as provided in Kentucky .Statutes 1903, section 2358, which requires such notice, in all proceedings affecting the title to land, in order to affect the interest of “subsequent .purchasers.”</p>

<p>Infants — Actions—Guardians Ad Litem — Duties—Termination— Compensation — Allowance—By What Court — 'Measures.</p> <p>1.The duties of a guardian ad litem, do not terminate with the rendition of a judgment in the trial court, but' he may, when he thinks it to be to the interest of the infant defendants, take an appeal from such judgment, and his duties continue until the final termination of the cause, unless he is removed by the court, or the guardianship is terminated by the arriving of the infant at the age of majority.</p> <p>2. A suit! in which an appeal has been taken: to the Court of ¡Appeals, where the judgment is affirmed, is not terminated until) the mandate of affirmance is filed in the circuit court.</p> <p>3. The allowance to. a guardian ad litem for the services rendered by him in the entire case must be made by the court wherein he was appointed.</p> <p>4. Under Civ. Code, sec. 38, subsec. 4, providing-that the court shall allow a guardian ad litem a reasonable fee for his services, the lower court, on the filing of a mandate of affirmance from the Court of Appeals, has jurisdiction to entertain a motion for an. additional allowance to the guardian ad litem for services rendered in the Court of Appeals.</p> <p>5, Under Civ. Code, sec. 38, subsec. 4, authorizing the court to allow a guardian ad litem a reasonable fee for his services, the amount of which the court is to decide without reference to the opinions of the parties or other witnesses, the court should consider, in determining the amount of the guardian’s compensation, the character of the litigation, the amount involved, the labor performed, and the results achieved by the guardian.</p>

Case 35 — Action by Joseph McGee against the Kentucky Freestone Co. for Damages for Personal Injuries. APPEAL FROM ROCKCASTLE CIRCUIT COURT-M. L. JARVIS, CIRCUIT JUDGE. Judgment for Plaintiff and Defendant Appeals. We ask a reversal of this ease for five reasons: 1. The appellee failed to allege in his petition that he did not know of the obstruction, or by the use of ordinary diligence he could not have known of it. Judd’s Adm’r v. C. & O. R. R. Co., 18 R., ’47. 2.

Case 36 — Action by Auditor’s Agent against Adams Express Co. to Recover Franchise Tax. APPEAL FROM MASON CIRCUIT COURT-JAS. P. HARBESON, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals. The questions to be determined in this case are: (1) Whether it was the duty of the auditor’s agent to report under sections 4261 and 4262, Ky.

Case 37 — Will Contest by J. W. Henning and Others v. Richard T. Stevenson and Others of the Will of Fannie Speed. APPEAL FROM JEFFERSON CIRCUIT COURT — EMMET FIELD, JUDGE, COMMON PLEAS BRANCH, FIRST DIVISION. From the judgment sustaining the will, contestants appeal. The trial in the circuit court involved the right of the propounders to probate as the last will of Fannie Speed, deceased, certain papers offered as her will. It was not witnessed by any one.

Case 38 — Action by W. T. Threlkeld against Livingston County Fiscal Court for Fees as Jailer. APPEAL FROM LIVINGSTON CIRCUIT COURT-J. F. GORDON, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals. 1. A special term of the county court is a county court as much as a regular term. “When necessary special terms are proper,, and should be called, at which the jailer has the right to attend and receive pay. 2.

<p>Cabe 39 — Proceeding Between City of Louisville and the Louisville .Public Libbary as to Providing Fire Escapes.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS BRANCH, SECOND DIVISION — THOMAS R. GORDON, judge.</p> <p>.Judgment for the City and the Library Appeals.</p> <p>Under Ky. St., 1903, sec. 2758, which is a part of the act for government of cities of the first class, passed July 1, 1893, and which .provides that statutes previously enacted for the inspection of buildings shall continue in force until superseded by appropriate ordinances .passed by the general council, the whole question of building inspection is left to be regulated by ordinances passed by the general council; and an ordinance so. passed is valid, although it conflicts with Acts 1887-88, vol. 1, c. 124, which appears in Ky. St. 1903, secs. 1830, 1832 and which prescribes the conditions under which the owners of certain property shall place fire escapes thereon, and imposes a penalty for leaving the building unprovided with fire escapes.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. (a) If a city ordinance is repugnant to a general law of a State, it is necessarily null and void. Burlington v. Keller, 18 Iowa, 65; Wood v. Brooklyn, 14 Barbour, 425; Cullman v. New Orleans, 28 Lou. Ann., 102; Livingston v. Albany, 41 Ga., 21; Indianapolis v. The Gas Light & Coke Co., 66 Ind., 295; Pester-field v. Vickers, 3 Cold. (Tenn.), 205; Haywood v. Savannah, 12 Ga., 304; Davis v. City of Litchfield, 145 111., 314, s. e., 33 N. E’., 888; Judson v. Reardon, 16 Minn., 341; Com. v. Turner, 1 Cush., 493; Am. & Eng. Ency. of Law, vol. 21 (2d Ed.), pp. 980, et seq. and the authorities there cited; Thompson v. Schermerhorn, 6 N. Y., 95; Kentucky Statutes, sec. 2783; Bailey v. Com., 23 Ky. Law Rep., 1225; McQuillan’s Municipal Ordinances, section 219.</p> <p>(b) The ordinance of August 14, 1899, found in fourth bi-annual compilation of city of Louisville, page 187, is repugnant to. Kentucky Statutes, chapter 51, section 1832, et seq., Kemper v. Com. 85 Ky., 219; Cooley Constitutional 'Limitations, 7th Ed., 279; Constitution, Section 168.</p> <p>(e) Courts take judicial notices of the ordinances of the city of Louisville. Section 2775, Kentucky Statutes; Woolley v. Louisville, 24 Ky. Law Rep., 1457; Gaertner v. Louisville, 24 Ky. Law Rep., 940.</p> <p>2. Implied repeal of a law iá not favored. -Com. v. Grinstead, 108 Ky., 68; Conley v. Com.,-98 Ky., 131; Rash v. Holloway, 82 Ky., 677; - Adams Express Co. v. City of Lexington, 83 Ky., 657; Roberts v. Hackney, 109 Ky., 267.</p> <p>3. The act of 1888, relating to fire escapes was not repealed by the act of 1890, relating to same subject.</p> <p>4. Nor were either repealed by Kentucky Statutes, Section 2753.</p> <p>5. Even if the act of 1890 attempted to repeal the act- of 1888, relating to fire escapes, it was unconstitutional. Constitution -of 1850, article 2, section 37.</p> <p>6. Kentucky Statutes, section 2758, in so far as it attempts to repeal the acts of 1888 -or 1890, is unconstitutional. Section 51, Constitution; Dissenting opinion- in Stone v. Pryor, 103 Ky., 672.</p> <p>1. Our contention is the ordinance in controversy approved August 14, 1899, requiring certain buildings in the city of Louisville to be provided with one or more permanent approved fire escapes', when ordered by the inspector or his deputy, is valid and still in force, and is not in conflict with Ky. 'Statutes, secs. 1830 and 1832.</p> <p>2. That the police court of the city of Louisville has jurisdiction to enforce the penalty fixed by law for the failure to comply 'with said ordinance.</p> <p>AUTHORITIES'.</p> <p>Haims v. Central Ky. Asylum, 103 Ky., 562; Herr v. Same, 17 L. R., 320; Ky. Stat., sees. 229 to 231; Ky. Stat., secs. 217 to 237; Const, secs. 126. and 143; City v. Leatherman, 99 Ky., 213; Const, sec. 184; City v. MeNaughton, 19 L. R., 1695; Sinking Fund Com. v. Northern Bank of Ky., 1 Met., 174; Com’rs of Sinking Fund v. Theobold, 17 B. Mon., 459; Downing v. "Mason Co., 87 Ky., 208; Ordinance, 4th Biennial Comp., p. 187; Ky. Stat., secs 1830 and 1832; Ky. Constitution, 168; Acts February 27, 1890, Acts 1889 and 1890, p. 384; Ky. Stat., sec. 2758; Grigsby v. Barr, 14 Bush, 330; Payne v. Connor, 3 Bibb, 180; Patterson v. Caldwell, 1 Met., 489; Com. v. Watts, 84 Ky., 537; State v. Barrow, 30 La. Ann., 659; New York v. Broadway R. R. Co., 12 Hun., 571; Phillips v. Cov. & Cin. Bridge Co., 2 Met., 219; Constitution of 1850, sec. 37, art. 2; Constitution, sec. 156; Broaddus v. Broaddus, 10 Bush, 299.</p>

<p>Executors and Administrators — Settlement—Effect of Will-Actions — Parties .</p> <p>1. Under Civ. Code Prac., see. 428, providing that the representatives of the decedent, and all persons having an interest in the property left by the decedent, and all creditors, must he made parties to an action for the settlement of the estate, a petition which omits any of such persons is defective as to. parties.</p> <p>2. A testator may bind his devisees by designating a time> for the settlement of the accounts of his executor, greater than' that specified in Ky. St. 1903, sec. 3847, permitting actions for the settlement of an- estate to he brought withim less than six months from the appointment of the personal representatives.</p>

Case 41 — -Action by J W. Witt and Others Against the Singer Manufacturing Co. on Contract for Services. APPEAL FROM FULTON CIRCUIT COURT. R. J. BUGG-, CIRCUIT JUDGE. Judgment for Plaintiffs and Defendant Appeals. -Summarizing, our contentions herein are: I. That Witt, alone, is the plaintiff. ’ 2.

Case 42 — Pbosecution against John J. Fletcheb fob Feloniously Taking Lumbee fbom a ChUboi-i appeal fbom clay ciecuit coubt — H. Defendant Convicted and Appeals. 1.

<p>Case 43 — Action by Boaed of Education op Somerset Public Gbaded School against the XJ. S. Fidelity & Guabanty Co. on Bond op Tax Collectob.</p> <p>APPEAL FROM PULASKI CIRCUIT COURT-GEORGE E. STONE, SPECIAL JUDGE.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORITIES.</p> <p>1. A collector has no legal right to collect taxes unlawfully-levied, and his sureties are not liable either for invalid levies actually collected, or for invalid levies not collected. Greenwell v. Com, 78 Ky., 322; Dawson v. Lee, 83 Ky., 55; Com. v. Stone, 24 R., 1297; Whaley v. Com., 23 R., 1292.</p> <p>2. No assessment was made; therefore there were no valid taxes to collect. Turner v. Pewee, 100 Ky., 288; Town v. Peoples Bank, 23 R., 519; Davidson v. Sterrett, 13 R., 265.</p> <p>3. Appellee’s board of trustees never gave notice, by publication that they would sit to equalize levies, as section 14 of its charter requires. In fact, they held no sittings. There were consequently no valid taxes to collect. 'Slaughter v. Louisville, 89 Ky., 113; Town v. Peoples Bank, 23 R., 519; Davidson v. Sterrett, 13 R., 265.</p> <p>4. The demurrers to the petitions should have been sustained, as the petitions do not aver compliance with the steps indispenisible to constitute valid levies. City of Louisville v. Gas Co., 15 R„ 177; Dumesnil v. City, 4 R., 15; Com. v. City of Lebanon, 21 R., 969.</p> <p>5. The ordinance fixing the tax levy for 1899' is void because it failed to state the purposes for which it was attempted to be made. Constitution, sec. 180; City of Somerset v. Somerset Banking Co., 22 R., 1132.</p> <p>(a) Defects in the levy ordinance could not, and were not, attempted to be cured by parol evidence. Davidson v. Sterrett, 13 R., 265.</p> <p>6. Appellee’s charter, section 14, makes the collector’s surety liable only for taxes actually collected. No proof of collections was offered and the judgment so finds.</p> <p>7. The agreement in the bond, that the collector will collect, is not authorized by the statute, section 14, and is surplusage, and not binding on the surety. Walker v. Chapman, 22 Ala., 116; Wood v. State, 10 Mo., 698; U. S. v. Mynderse, 11 Blatch., 1, or Fed. Cases, 15851; Eng. & Am. Ency. -of Law, vol. 2, p. 4660, 1st Edition.</p> <p>(a) If the bond is partly statutory and partly common law, the agreement to collect is merely a common law obligation; for a breach of which appellee must sue for damages, averring and proving facts showing, first, that the alleged taxes are valid; second, that the taxpayers were solvent; third, that by diligence the collector oould have collected each amount. This is not an action for such damages and no other kind can be maintained for breach of the common law obligation.</p> <p>8. Where a general act treats of anj subject under a separate title, the general act repeals the special act and constitutes all the law on the subject. Parrish y. Ferguson, 83 Ky., 18; Broadus v. Broadus, 10 B., 229; Patterson A Com., 86 Ky., 318; 'Com. v. Watts, 84 Ky., 543; Kirk v. Roberson, Sheriff, 25 R., 635.</p> <p>(a) Act of 1893, for government of cities of fourth class, provides for a complete school system. Appellee’s charter, created by a prior special act, provides a different and wholly inconsistent system for the schools for the same territory. The general act repeals the special act, certainly, where the two are inconsistent. Therefore, appellee had no authority to levy excessive or any taxes, and the collector had no right to collect them. Such taxes could only be levied 'and collected at the rates and under said general act of 1893. .Sinking Fund v. Grainger, 98 Ky., 319; Trustees v. City of Vaneeburg, 20 R., 369; Mayor Eminence v. Wilson, 20 R., 29; City Hawesville v. Board Education, 18 R., 208; Clay v. Roberts, 19 R., 1047; Hickman College v. Trustees, 23 R., 1272; Board of Education of Elizabethtown v. Morris, 24 R., 1422; Board of Education of Somerset v. Trustees, 18 R., 103; Commissioners Sinking Fund v. Grainger, 98 Ky., 319.</p> <p>9. The power to tax being granted by the common school law, chapter 10, on graded school operates to revoke a similar grant in appellee’s charter. The two inconsistent provisions- can not exist at the same time. Trustee v. Vaneeburg, 20 R., 369; Mayor Eminence v. Wilson, 20 R., 29; 'Clay v. Roberts, 19 R., 1047; Hickman College v. Trustees, 23 R., 1272; Board of Education, Elizabethtown v. Morris, 23 R., 1422; Board of Education Somerset v. Trustees, 18 R., 103; Coib’rs Sinking Fund v. Grainger, 98 Ky., 319; McTigue v. Com., 17 R., 1418; City of Hawesville v. Board of Education, 18 R., 208.</p> <p>10. Appellee's charter is repealed, to the extent of power given to levy taxes, as the Constitution, section 171, forbids the collection of taxes except under general laws; and the schedule of the Constitution repeals all previous statutes inconsistent with the Constitution. This applies to “all taxes,” including school taxes. Board of Education, Elizabethtown v.- Morris, 24 R., 1422; Hickman College v. Trustees, 23 R., 1272; Richardson v. Boske, Sheriff, 23 R., 1209; Campbell County v. Bridge Co., 23 R., 2057; Board v. City of Hopkinsville, 95 Ky., 242; McTigue v. Com., 17 R„ 1420.</p> <p>11. Levies of taxes at a rate greater than authorized by law are void for the excess. Whaley v. Com., 23 R., 1292; Com. v. Stone, 24 R., 1297.</p> <p>1. Appellee is a common school district created under special act of the Legislature of Ky. Acts, 1877-88, vol. 8, p. 509, and Acts 1889-90, yol. 1, p. 446, to Be controlled by six pei'sons, to be called the Board of Education, with power to levy and collect taxes not exceeding $1.00 on the $100.00 of taxable property, and we contend that said charter is still in force.</p> <p>2. Sections 3588 and 3606, Ky. Statutes provide that establishment of public graded schools in cities of the fourth class must be done by ordinance, but they provide also, that until it is done the schools there existing shall continue as established. Sec. 3491 expressly provides for this.</p> <p>3. Sections 4433, 4488 and 4489, expressly exempt from the operation of the general school law, such district schools, or created public schools, organized under legislative, acts previously granted.</p> <p>4. There is no limit, in the Constitution, to the rate of taxation for school purposes.</p> <p>5. The principal in the bond, having been duly appointed collector, and accepted the office, and executed the bond, sued on, the fact that he failed to collect the taxes does not release him or his surety from liability, when he could have done so. Board of Ed., Elizabethtown v. Morris, 24 Ky. Law Rep., 1420; Constitution of Ky., secs. 157, 171; Ky. Stat., Secs. 3588, 3606, 3491, 4433, 4488, 4489, 4101; Acts, 1887-88, vol. 3, p. 509; Acts 1889-90, vol. 1, p. 446.</p>

<p>Judgment — Reversal—Restitution—Delay in Filing Briefs— Costs.</p> <p>1. On reversal of a judgment under which money was paid, restitution may be required of a party only to the amount received by him as his pro rata of the fund finally adjudged to the other parties.</p> <p>2. Court of Appeals Rule 3, providing that an appellee failing to file a brief by a certain time will be required to pay the costs up to the date of filing, will not be enforced in the absence of motion.</p>

<p>Case 45 — Action by W. A. Burkhart against the Trustees of Vine Grove Common School District for Mandamus to Compel Them to Levy a Tax to Pay His Judgment for Supplies Furnished by Him to Said School District.</p> <p>APPEAL FROM HARDIN CIRCUIT COURT — WEED S. OHEOLlF, CIRCUIT JUDGE.</p> <p>JUDGMENT EOT DEFENDANTS AND PLAINTIFF APPEALS.</p> <p>Our contention is that under sec. 4444, Ky. Statutes, providing that “unless sufficient funds are on hand which may be used to pay contingent expenses incident to conducting the school comfortably, etc., the trustees shall assess and the treasurer shall collect a capitation tax of $1.50 or less on all persons having children attending the common school of the district,” does not mean all persons having children attending the common school of the district for that year, and if not so assessed for that year that the right to collect is lost. Such construction would render the words at the beginning of the section “unless there are sufficient funds on hand which may be used, etc,” meaningless and of no effect.</p> <p>2. Appellant is not estopped from collecting his claim because he was one of the trustees for some of the years he furnished coal. He was only one member of the board and had no power except in common with the other members.</p> <p>CITATIONS.</p> <p>Com. v. Holidy, 98 Ky., 616; Smithers v. McGinnis, 18 R., 134; Newell v. Dunnegan, 1 R., 354; Abney v. Bell, 7 R., 143.</p> <p>1. The trustees of this district can not legally levy a tax on the patrons of the school, now, to pay for coal used for the years 1892 to 1902, inclusive. Ky. St., 4440, 4441, 4457, 4444, Barfield v. Gleason, 23 R., 129; Baptist Church v. McAtee, 8 Bush, 517; Grady v. Pruett, 23 R., 506; Constitution, secs. 157, 180.</p> <p>2. It is alleged in the answer, and not controverted, that none of the taxes levied for incidental purposes came into the hands of these appellees.</p>

Case 46 — Action by Hattie Reusch against the Licking Rolling Mill Co. bob Damages for Personal Injuries. APPEAL PROM KENTON CIRCUIT COURT — W. D. McSHAW, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals. 1. A demurrer was sustained and plaintiff’s petition dismissed in the lower court on the ground that the act of coasting on a street was per se such contributory negligence as would defeat a recovery. We submit that this is not the law. 2.

<p>Internal Revenue — Whisky in Bond — Interest—Officers—Laches —Estoppel—-Limitation.</p> <p>1.Ky. St. 1903, c. 108, art. 5, sec. 4109, provides that a person having possession of distilled spirits on September 15th in the year the assessment is made shall be liable for all taxes due thereon together with all interest and penalties which may accrue; section 4110, as existing prior to 1902 (Laws 1902, p. 321, e. 128, sec. 6), requires that the taxes on each year’s assessment shall bear interest as other taxes; section 41il declares that the proprietor of a warehouse shall pay alj. taxes and interest; section 4112, provides that, on failure of any owner or proprietor of any warehouse to pay the taxes and interest, he shall be deemed delinquent; and section 4143, directs that any persons failing to pay their taxes by December 1st in the'year following the assessment shall pay six per centum additional on the tax so due and unpaid. Held, that, though the taxes on distilled spirits in bond are not required to be paid until the bonded period is ended or • the United States Government taxes are paid, the warehouse man must pay interest at 6 per cent, from December 1st in the year following the assessment for the privilege of retaining the State’s money.</p> <p>2. Under Ky. St. 1903, c. 10S, art. 5. sec. 4109, providing that a person having possession of distilled spirits on September 15th in the year the assessment is made shall be liable for all taxes due thereon, together with all interest and penalties which may accrue, the State is not estopped from collecting the interest because the auditor received the principal of the taxes due, without interest, and the warehouseman permitted it to be carried away by the owner, and lost his lien by the wrongful act of the State’s fiscal officer.</p> <p>3. Actions by the State to collect interest on taxes are barred by the expiration of five years after the cause of action arose.</p>

Case 48 — Action by D. S. Price Against Frank Monroe and Others to Recover Rand. APPEAL from CLARK CIRCUIT COURT-J. M. BENTON, CIRCUIT JUDGE. Judgment for Plaintiff and Defendants Appeal. (No brief for appellant.) The action of appellee was an ejectment. In order to recover, he must (1) show title, and (2) he must be entitled to possession. 1.

<p>Replevin — Bond by Plaintiff — Liability fob Costs — Attorneys’ Fees — Breach of Bond — Dismissal of Suit — Failure to Prosecute.</p> <p>X. Where plaintiff in replevin gave a bond undertaking to pay to defendant such sums as might he adjudged against plaintiff in the action and the costs of the action, it was error in an. action on the bond to permit defendant in replevin to recover for loss of time and expenses incurred in defending the action., together with an attorney’s fee.</p> <p>2. The bond given by plaintiff in replevin in order to secure possession of the property obligated'him to pay defendant in replevin such sums as might he adjudged against plaintiff, or to return the property if a return thereof should be adjudged). Plaintiff dismissed the action, hut the court did not adjudge either a return of the property or the payment of any sum. Held, that the fact that plaintiff had not returned the property or paid the value thereof did not authorize an action on the bond.</p> <p>3. Where plaintiff in replevin, in order to. obtain possession of the property, gave a bond obligating him to prosecute the action, and thereafter plaintiff dismissed the action, defendant in replevin was entitled to recover on the bond the value of the property taken, with interest.</p>

Case 50 — Action by George W. S'oiian Against Annie M. Gibson and Others to Enforce Lien on Land for Purchase Money.— APPEAL FROM HARDIN CIRCUIT COURT-T. R. MCBEATH, CIRCUIT JUDGE. Judgment for Defendants and Plaintiff Appeals. POINTS AND AUTHORITIES. 1. The fact that appellee may have paid too much for thel land is not of itself ground for rescission. The chancellor is not a mere appraiser. McKinney v. Crady, 8 R., 259. 2.

<p>Judgment of Quarterly Court — Piling Certificate in Circuit Court — Failure to Record — Statutes—Effect.</p> <p>Civil Code of Practice, section 723, provides that, when an execution on a judgment of the quarterly court is returned “No property found,” the judge shall, on application, furnish a certified copy of the judgment, execution, and return, which, ¡on being filed in the office of the clerk of the circuit court, shall he recorded by him in a book kept for that purpose; and that thereupon the plaintiff shall he entitled to the same remedies as if the judgment had been rendered in the circuit court. Held, that an execution may not issue from the circuit court on a judgment of the quarterly court, though the certificate provided for has been filed, unless it has been recorded as required by the statute.</p>

<p>Deed — Construction—“Children” as a Word of Purchase.</p> <p>In a deed, the consideration of which was paid by H., and the parties to which were R., of the first part, and H., of the second part, the words “and her children” in the granting and habendum clauses to “H. and her children,” will be construed to-be words of purchase, so that H. will take a life estate only, and her children the remainder.</p>

<p>Intoxicating Liquors — License—Local Option — Cities—-Board of Council — Powers—Arbitrary Action — Mandamus.</p> <p>1. Kentucky Statutes, 1903, section 2554, provides that the question may be submitted to the voters as to whether or not any prohibition law in force in any county, city, town, district or precinct by virtue of any general or special act or acts shall become inoperative. Held, that where the local option, law had been put in force in a county including defendant city, an election at which a majority of the voters in the city voted that the local option law should, become inoperative in a certain precinct thereof was equivalent to a vote that liquors might be sold therein.</p> <p>2. Kentucky Statutes, 1903, section 3490, a part of the charters of cities of the fourth class, providing that the council shall have power by ordinance to license, permit, regulate or restrain the sale of all kinds of intoxicating liquors within the limits of the city, or to restrain or prohibit the sale thereof within a mile of the limits thereof, should be construed in connection with the local option law subsequently enacted; and hence, where it was voted that a local option law in force in a county containing a city of the fourth class should be' inoperative in a certain precinct of such city, the board of council had no power to arbitrarily refuse to grant a license for the sale of liquors therein.</p> <p>3. Where the board of council Of a city of the fourth class arbitrarily and wrongfully refused to grant a license for the sale of intoxicating liquors therein, mandamus was the -proper remedy to compel them to grant the same.</p>

Case 54 — Action by Mary Ellen Noonan, &c., against Elizabeth Klenke and others for an Interest in a House and Lcl - APPEAL PROM KENTON… Held: that it is to be inferred from the statement that the parties openly and mutually consented to a contract of present marriage, — then to become husband and wife, and thereafter cohabited as such, and that this constituted a legal marriage, and the man having then a wife living might upon proof of such second marriage, be properly…

<p>Lunatics — Illegal Inquest — 'Recovery by Asylum for Necessaries —Allowance for Services.</p> <p>An asylum to which an insane person was committed on an inquest is void because he had no notice thereof and was not present thereat, may recover for necessaries furnished him on a quantum meruit; he, however, being entitled to credit for services rendered by him.</p>

<p>Case 56 — 'Action by Chas. L. King against John Callus and Others Involving Mortgage Liens of Marie Huni and Others.—</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT-MALCOLM YEAMAN, SPECIAL JUDGE.</p> <p>From the Judgment King and Gallus Appeal.</p> <p>PROPOSITIONS' DISCUSSED.</p> <p>1. A moitgage does not embrace a note of different description from that described in the mortgage, unless there is an allegation of fraud or mistake.</p> <p>2. That under the Code, before a nonresident is entitled to have the case reopened, that he. must present a defense.</p> <p>3. Where first mortgagee brings suit to enforce his mortgage lien and purchases at the sale under judgment in said suit and subsequently, on petition of second mortgagee, the said ease is retried and resale ordered, the first mortgagee is entitled to his whole mortgage debt as against second mortgagee, although first mortgagee after his purchase at commissioner’s sale sells the property and receives payments from his vendee. The payments made by his vendee should ’not be credited on his original debt so as to reduce the lien ahead of the second mortgage.</p> <p>4. The vendee of the first mortgagee should, as to the payments to the first mortgagee, be substituted, to that extent, to the lien of the first mortgagee — and ahead of the second mortgagee.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Code, section 414; Williams v. Taylor, &c., 11 Bush, 375.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>1. Whatever is charged in a pleading and is not denied must be taken as true, and can not thereafter be made the subject of inquiry for the court.</p> <p>2. A note is but an evidence of a debt, of which a mortgage may be the security, and though the evidence (the note) be not perfectly or correctly described, or be changed as by renewal, still so long as the debt is unpaid and the mortgage is sufficiently definite in its terms or description to identify the debt, so long is the security good.</p> <p>3. A litigant’s recovery is limited to the amount prayed for, and on appeal this court will not inquire into that of which the appellant does not complain.</p> <p>4. Mrs. Gallus claiming to have made payments ton this property which -allegation Mrs. Huni denied, it was! incumbent on Mrs. Gallus to .prove her allegations, and having failed to do -so her claim must fail. Kellar v. Stanley, 86 Ky., 240; Williams v. Taylor, 11 Bush, 375; Civil Code, sections 414, 417.</p>

Case 57 — Mandamus by Finley Shuck against H M. Boswobth, State Treasurer, to Require Him to Pay Plaintiff fob Clerical Services in the Auditor’s Office of Public Accounts. appeal from franklin circuit court — -JAMES E. CANTRELL, circuit JUDGE. Judgment for Plaintiff and Defendant Appeals. (No briefs.)

Case 58 — Action by J. L. Wilson against the Alpine Coal Co., fob Personal Injuries. APPEAL FROM PULASKI CIRCUIT COURT — 'T. Z. MORROW, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals. Our contention is: 1.

Case 59 — Action by T. L. Floyd, &c. against G. B. Shindler, as County Judge and Others fob a Mandamus to Compel Them to Act as an Flection Contesting Board. appeal from spencer circuit court — WILLIAM CARROLL, circuit JUDGE. Judgment fob Plaintiffs and Defendants Appeal. 1.

Case 60 — Action by S. E. Proctor’s Admr. Against William Proctor to Enforce a Lien for Purchase Money on Land. appeal from mercer circuit court — M. C. SAUMjEY, circuit judge. Judgment for Plaintiff and Defendant Apeeals. PROPOSITIONS' AND AUTHORITIES. 1. A judgment is void for uncertainty unless by reference to the record its intended signification is made apparent. Stuart v. Troutman, 6 R., 447. 2.

<p>Case 61 — Proceeding by the Commonwealth at the Instance of the Attorney General to try the- Title of Thomas Stack to the Office of Councilman from the Fourth Ward of the City of Dayton.</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT — A. S. BERRY, CIRCUIT JUDGE.</p> <p>Judgment for Commonwealth and Stack Appeals.</p> <p>PROPOSITIONS IiJSCUSSED.</p> <p>1. The county board of election commissioners are authorized to determine by lot which of two candidates, receiving a tie vote therefor, is elected to the office of councilman for a ward in a city of the fourth class.</p> <p>2. In an action of usurpation brought by the Commonwealth under the provisions of the code against a defendant, the Commonwealth must show affirmatively the acts constituting usurpation on the parts of the defendant.</p> <p>3. It follows from the preceding propositions that the demurrer to the petition should have been sustained by the lower • court.</p> <p>1. The petition alleges that at the November election, 1903, appellant, who was a candidate for councilman for the fourth ward of the city of Dayton, Ky., did not receive a majority or plurality of the votes cast at said election, but that one P. A. Deetz received an equal number of votes with him; that notwithstanding said fact, the appellant took the oath of office, and entered said office and usurped the same, and, at the filing of the petition, was exei’cising the powers and privileges of the office.</p> <p>2. Appellant Claims that the county board of election commissioners had power to draw lots in such case, and that this court must presume that they did draw, where the vote was a tie, and must also presume that the lot fell to appellant, and that these presumptions are indulged for appellant until negatived by averment in the petition, and, therefore the demurrer to the petition was improperly overruled.</p> <p>3. Appellee contends that the Commonwealth is not required to set out particularly the fault in appellant’s title to the office he is in; that it is enough that it charges him with entering into an office without right and vfith usurping its powers and privileges and having, done this it has stated a cause of action against him.</p> <p>AUTHORITIES CITED.</p> <p>Meehem on Public Officers, section 491; Commonwealth v. City of Frankfort, &c., 13 Bush, 185; People, '&c. v. Thatcher, &c., 55 N. Y., 528; People, &c., v. Pease, 30 Barbour, 588; People, &e., v. Ridgley, 21 111., 67; Clark v. The People, &c., 15 111., 217; State v. Dahl, 65 Wis., 510; People, &c., v. Abbott, &c., 16 Cal., 358; The Commonwealth v. The Commercial Bank, 28 Pa. St., 387; The State v. The Commercial Bank, 10 Ohio, 541; State v. Harris, 3 Ark., 570; People v. DeMill, 15 Mich., 164; Hammock v. Barnes, 4 Bush, 390; Civil Code, section 483.</p>

■Case 62 — Action by Otto Batson’s Adm’b against the City of Lexington foe Causing the Death of Plaintiff’s Intestate.— APPEAL FROM FAYETTE CIRCUIT COURT-WATTS' PARKER, CIRCUIT JUDGE. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.

Case 63 — Condemnation Proceedings by the L. & N. R. R. Co. for Right of Way over the Farm: of A. J. Asher. APPEAL FROM BELL CIRCUIT COURT-D. W. SANDERS, SPECIAL JUDGE.

Case 64 — Prosecution of Martin Connor for Manslaughter. APPEAL FROM DAVIESS CIRCUIT COURT-T. F. BIRKHEAD, CIRCUIT JUDGE. Defendant Convicted and Appeals. We submit that on all the evidence the following facts are shown: 1. Appellant was sober, orderly and law abiding. 2. He had a legal right to be in the saloon, and no one had the right to assault him. 3. He was assaulted by* deceased without any provocation whatever. 4.

Case 65 — Suit by Elizabeth Rodman as Trustee and others against Johanna R. Murray and others for a Construction of the -Will of Thomas Rodman, Deceased, and for Sale and Reinvestment of Certain Real Estate. Appeal from franklin circuit court — JAMES E. CANTRILL, circuit judge. Erom the Judgment Confirming the Sale of Dand the Purchaser, Geneva B. Crutcher, Appeals.

Case 66 — Suit by W. P. Harvey and others against W. C. Bell and others for Land Involving the Construction of a Will. appeal from mercer circuit court — M. C. SAUFLEY, circuit judge. From the Judgment Harvey, &a, Appeal. W. S. PRYOR, W. G. WELSH and E. H. GAITHER, por appellees (No briefs — record misplaced.)

<p>Taxation — .Street .Railways — License on Cars — Ad Valorem Tax— Recovery — .Interest—Partial Payments.</p> <p>1. Where a street railway company in a city of the first class continued to pay the sum of $50 as a tax or license on each of its cars under an ordinance enacted before the enactment of the new Constitution and the statutes thereunder, and no such tax or license was required by any law or! ordinance subsequent to said new Constitution, in an action by the city to recover certain taxes imposed under the new laws the company was entitled to a credit for such payments, as the new act relating to the government of such cities was a substitute for the old charter' and all of its provisions.</p> <p>2. Where, in an action to recover taxes', the defendant impeached the record in the county clerk’s ofiice, and shows it was incorrect in placing defendant’s tax too. high, but in doing this it shows that it could have learned exactly what its tax was from the records made by the hoard of valuation and assessment, interest should be charged on the taxes for the years unpaid.</p> <p>3. Tax bills against a street railway under .an ordinance imposing a license tax for each car bear interest as other taxes under the charter of a city of the first class.</p> <p>4. Payments on a license tax are to be applied as of the date made, extinguishing principal and interest under the ordinary rule as to partial payments.</p>

<p>Wills — Construction—Estate Conveyed. •</p> <p>A will giving testator’s sister- property, and providing that if she should die without issue, and leave any of the property, it should go to another, gave the sister a fee with full power to convey; Kentucky Statutes 1903, section 2342, declaring that, unless a different purpose appears, every estate in land created by will without words of inheritance shall be deemed a fee simple, or such other estate as the grantor had.</p>

<p>Case 69 — Proceedings by the Commonwealth by Auditor’s Acient Against Bank of Commerce to List Certain Property tor Taxation.</p> <p>APPEAL FROM JEFEERSON CIRCUIT COURT, C. P BRANCH, FIRST DIVISION. UPTON W. MUIR, JUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Statutory authority. Ky. Stat., secs. 4241, 4260.</p> <p>2. Every species of property shall be taxed. Present Constitution of Kentucky, secs. 171, 172, 174; Ky. Stat, secs. 4020, 4022, 4058. Of these oonstitutional and statutory provisions this court said in the case of Scohee, Sheriff, v. Bean, 22 Ky. Law Rep., 1076, they “are sufficiently specific to authorize the taxation of every species of moneyed capital in the State.”</p> <p>3. The notes, bonds, accounts and .other chose in action of a bank are not exempt from taxation. Present Constitution of Kentucky, see. 3 (Bill of Rights), and sec. 170; Ky. Stat., sec. 4026.</p> <p>4. The burden' is on the hank to show the exemption, by clear ■and unmistaken authority. Cooley on Taxation (3d Ed.), 356; Board of Trustees v. Bell County C. & I. Co., 16 Ky. Law Rep.a 283; Newport v. Masonic Temple Assn., 103 Ky., 592, 20 Ky. Law Rep., 266; Bradley v. McAtee, 7 Busk, 667; Louisville Canal Co» v. Com., 7 B. Mon., 160; Deposit Bank of Owensboro v. Daviess Co., 102 Ky., 174, 19 Ky. Law Rep., 248; German Bank v. Louisville, 22 Ky. Law Rep., 9.</p> <p>6.Banks not only own tkeir notes, bonds, etc., but also tkeir deposit fund. Williams v. Rogers, 14 Busk, 778; Taylor v. Taylor, 78 Ky., 471; Keene v. Collier, 1 Mete., 417; Armstrong, Receiver v. National Bank of Boyertown, 90 Ky., 4)3'6; Morse on Banking, secs. 573, 578; Planters’ Bank v. Union Bank, 16 Wall., 483 (21 L. Ed., 473); Marine Bank v. Fulton Co. Bank, 2 Wall., 252 (17 L. Ed., 785); Oulton v. German S. & L. Soe., 17 Wall’., 109 (21 L. Ed., 618); Commercial N. B. v. Armstrong, 148 U. S., 50 (37 L. Ed., 363); Scammon v. Kimball, 2 Otto, 362 (23 L. Ed., 483); Thompson v. Riggs, 5 Wall., 663 (18 L. Ed., 704); State v. Shove, 96 Wis., 8, 65 Am. St. Rep., 19, 37 L. R. A., 145; Perley v. Muskegon Co., 32 Mick., 136, 20 Am. 'St. Rep., 639; Chesapeake Bank v. Swain, 29 Md., 498.</p> <p>6. Deposits are funds borrowed by the bank. The bank’s bonds, notes and other choses in action may have been acquired through the investment of borrowed funds. Assets are taxable, whether acquired by the investment of borrowed funds or not. Plenderson Bridge Co. v. Com., 99 Ky., 623, 17 Ky. Law Rep., 397 (a leading Kentucky case in point); Railroad Co. v. Jackson, 7 Wall., 263; The Cleveland. &c., R. R. Co. v. Com., 15 Wall., 300.</p> <p>7. Securities held by a bank are not transient, but If 'they were, transient property is taxable where found on assessment day. Meyers v. County Com., 55 Am. St. Rep., 349; Brown v. Houston, 114 U. S., 622, 29 L. Ed., 257.</p> <p>8. It is not double taxation to require the lender (the depositor) to pay on his credit and the borrower (the bank) on its assets. Henderson Bridge Co. v. Com., 99 Ky., 623, 17 Ky. Law Rep., 397; Nevada v. Carson City Saving Bank, 17 Nev., 146; Exchange Bank v. Hines, Treas., 3 Ohio St. Rep., 5; Savings Bank of New London v. Town of New London, 20 Conn., 111.</p> <p>9. Courts can not question wisdom of legislative acts, if they conform to the Constitution. In Deposit Bank of 'Owensboro v. Daviess County, 102 Ky., 174, 19 Ky. Law Rep., 248, this court said: “It is our business to obey the Constitution and respect the Statutes enacted in accordance therewith.” Common Council Y. Assessors. 91 Mich., 94; Robinson v. The Red Jacket, 1 Mich., 171; Green v. Graves, 1 Doug., 351; Attorney-General v. Preston. 56 Id., 177. •</p> <p>10. Franchise taxes are “in addition,” and therefore not a bar to property taxes. Ky. Stat., sec. 4077; Henderson Bridge Co. y. Com., 99 Ky., 623, 17 Ky. Law Rep., 397.</p> <p>11. Revenue agent's power to act independently of the auditor. Ky. Stat., secs. 4268, 4259; Sebree v. Com., 25 Ky. Law Rep., 121; Coulter, Auditor, &c. v. Denny, 23 Ky. Law Rep., 1619.</p> <p>POINTS DISCUSSED.</p> <p>1. "Whether Prank A. Lucas, as auditor’s agent, should be allowed to institute and prosecute these proceedings without the consent and over the protest of the auditor.</p> <p>2. Whether State banks should be required to pay taxes on the money deposited with them by their customers, and on assets which temporarily represent such deposits, .or on either.</p> <p>(a) Whether the measure of a State bank’s taxable estate is not limited to its capital stock, surplus funds, undivided .profits, franchise, and real estate or tangible property.</p> <p>(&) If the deposits be taxable against the bank, then on what basis or measure? Can the bank recoup itself by charging the same against its depositors under section 4033, Kentucky Statutes, and, if so, would it not be double taxation, against the same deposit, as the depositor is conclusively presumed to have already paid one full taxation for each year?</p> <p>. (e) Whether the statutes confer an inquisitorial or visitorial power to coerce the banks to furnish a list of their depositors and the balances belonging to them at any specified time?</p> <p>(S) If so, does this apply to nonresident -depositors! or to those whose deposits are exempt by law from taxation, such as Federal, State or subordinate governmental, county or municipal taxing sovereignties?</p> <p>1 AUTHORITIES.</p> <p>1. Authority of auditor’s .agent to institute and prosecute the proceedings. Ky. Stat., secs. 4258, 4260, 4261, 4262, 4263, 4267, 4058; Hoke v. Com., 79 Ky., 571.</p> <p>2. Are the deposits of depositors taxable against the bank? Deposit Bank of Owensboro v. Daviess County, 102 Ky., 214; Com. v. Gaines, 80 Ky., 495; Spalding v. Com., 88 Ky., 140; Youtsey v. Com., 110 Ky., 559, 560; Louisville & Evansville Mail Co. v. Barbour, 88 Ky., 73; Whitaker, Auditor’s Agent v. Brooks, 90 Ky., 68; Ky. Stat., secs. 584, 593, 4020, 4077, 4078, 4092; Coulter, Auditor v. Louisville Bridge Co., 24 Ky. Law Rep., 809; Henderson Bridge Co. v. Negley, 23 Ky. Law Rep., 747; Langdon-Creasy Co. v. Trustees, 25 Ky. Law Rep., 823.</p> <p>3. The bailee theory. Livingston v. City of Paducah, 80 Ky., 658; Com., by, &c. v. C. & O. Ry. Co., 25 Ky. Law Rep., 1X26-1130.</p> <p>4. Practical construction. Attorney General v. Drummond, 1 Dru. & Wal., 366 (2 H. L. Cas., 837); Chicago Ry. Co. v. Northern Pacific Ry. Co., 101 Fed Rep., 79-5; Louisville Tobacco ■Warehouse Co. v. Com., 106 Ky., 180; Aetna Life Ins. Co. v. Coulter, Auditor, 25 Ky. Law Rep., T97; Turnpike Company v. Shadburne, 1 Ky. Law Rep., 325; Henderson Bridge Co. v. Negley, Sheriff, 23 Ky. Law Rep.-, 747; Chicago v. Sheldon, 9 Wall., 54; Topliff v. Topliff, 122 U. S., 131; District v. Gallaher, 124 U. S., 510; Newton v. Wooley, 105 Fed. Rep., 546; Accumulator Co. v. Dubuque R. R. Co., 64 Fed. Rep., 74; Lumber Co, v. Stump, 18 C. C. A., 569; Publishing Co-, v. Swift, 97 Fed. Rep., 296; City of Westminster v. Westminster Bank, 92 Md., 66.</p>

<p>Case 70 — Action by M. F. -Phillips and J. H. Wilkerson to Attach the Interest op R. L. McClure in the Estate of Mrs. C. B. McClure, Deceased.</p> <p>APPEAL PliOM WARREN CIRCUIT COURT-B. W. BRADBURN, JUDGE;</p> <p>From the Judgment Wilkerson Appeals.</p> <p>(No brief for appellant in the record.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The institution of the action constitutes a Us pendens lien on the fund in controversy. Parsons v. Meyburg, 1 Duv., 206; Huffman v. Thomas, 2 Duv., 106; Murphy, &e. v. Cochran’s Trustee, 80 Ky., 239.</p> <p>2. Description necessary to make the Us pendens lien. Price y. Taylor, &c., 22 Ky. Law Rep.. 1945.</p> <p>3. Before the term at which J. C. Sims had the right to and before he did answer the garnishment he had the fund in controversy in his hands. Civil Code, Section 224.</p> <p>4. Appellant had both a Us pendens and attachment lien before the institution of appellee’s action and was therefore properly adjudged to have the prior and superior lien on the fund in question.</p>

Case 71 — Sep abate Actions by the City of Louisville against Jacob Gast and otiiees, and by Jacob Gast and othees against John H. Bkand and othees Involving the Question as to whetheb the City Council of Cities of the First Class have Authority to Pass Two ob Moee Separate Ordinances for Street Construction there being no objection thereto by ANY MEMBER. APPEAL FROM JEFFERSON CIRCUIT COURT CHANCERY BRANCH (1st DIV.)SHACKELFORD MILLER, judge.

<p>Wills — Construction—Estate Created.</p> <p>1. A will devising property to testator’s daughter and her children, gives the daughter an estate for life with remainder to her children.</p>

Case 73 — Prosecution against Lon Fuqua fob Murder. APPEAL FROM M’CRACKEN CIRCUIT COURT-W. M. REED, CIRCUIT JUDGE. Dependant Convicted and Appeals. (The brief of appellant’s attorney is not in the record, and the reporter inserts the following from appellant’s petition for rehearing.) 1.

<p>Case 74 — Suit between the Fidelity Trust Company and others and the Louisville Gas Co. and between George M. Boons and tiie Same Defendant as to the Right of the Defendant Gas Co. to Guaranty Certain Bonds of the Louisville Lighting Co.</p> <p>APPEAL FROM JFFFERSON CIRCUIT COURT CHANCERY DIVISION, NO. 2 — ' SAMUEL B. KIRBY, judge.</p> <p>From the Judgments Plaintiffs Appeal.</p> <p>POINTS.</p> <p>1. The endorsement proposed to he placed upon the bonds of the Louisville Lighting Company by the Louisville Gas Company as to the agreement to pay the principal of the bonds is not a guaranty in any sense of the word, hut creates a primary liability upon the Louisville Gas Company to pay the amount of money named in the bonds (not the principal of the bonds itself) to any one demanding payment thereof in writing sixty days prior to October 1, 1918.</p> <p>2. That by the charter of the Louisville Gas Company the Legislature intended to limit and did limit said gas company in the issue of bonds, whether secured or unsecured, to the extent of $250,000 in the original charter, and in the amendment to the amount of $250,000.</p> <p>3. That this transaction is equivalent to an issue by the Louis- • ville Gas Company of bonds and is in effect such an issue as was prohibited and intended to be prohibited by the charter of the Louisville Gas Company, in excess of '$250,000' in the original charter and $250,000 in the amendment.</p> <p>4. That the effect of this, transaction will bring upon the Louisville Gas Company all of the evils sought to be guarded against in its charter by the limitation on its bond issue above men-r tioned.</p> <p>5. That while we admit ordinarily the power of a corporation, to guarantee bonds of another corporation owned by it, in this case the contract not being one of guaranty, thei law applicable, to a guaranty of bonds has no application in this instance.</p> <p>6. That the Legislature, having provided a fund for repairs,, improvements and additions by a sale of stock and an issue of bonds, the implied power usually resident in. a corporation to borrow money for such .purpose is taken away by the provision of' such' fund, and this being an attempt to raise money for the same purpose is ultra vires and void.</p> <p>7. That to construe the second section of the charter of the Louisville Gas Company as only,intended as a limit on the bonded indebtedness secured by mortgage is to eliminate plain and •unmistakable language in the charter toy which a contrary intent is expressed, the purpose of said charter being to prevent' a bonded indebtedness, whether secured or unsecured, and the word “may” is permissive and not obligatory.</p> <p>8. That the endorsement proposed is not for the benefit of the Louisville Gas Company, but is highly detrimental to its interest; that no necessity exists for such a transaction as is proposed in the petition; that the company has ample funds to pay its debts, and that there is mo necessity for resorting to the bonds of the Louisville Lighting Company.</p> <p>9. That the Louisville Gas Company has issued $30,000 worth of bonds to persons other than those in this litigation an.d proposes to issue other bonds than the' $30,000 worth mentioned and. those mentioned herein, and that this action is. really intended, to get from the court a decision by which they may be enabled' to place this endorsement upon the entire issue of said bonds, or at least, a much greater part thereof than is embraced in the suit herein, and that may be and will be used for purposes other-than paying the debts of the company.</p> <p>AUTHORITIES.</p> <p>Ithaca Gas Light Co. v. Treman, 30 Hun., N. Y., 212; Am. & Eng. Ency. of Law, vol. 14, p. 1128; Brandt on Suretyship and Guaranty, vol. 1, sec. 1; Bouvier’s Law Dictionary, Definition of Guaranty; Gook on Stock and Stockholders 4 Ed., vol. 2, sec. 762; Ritchie v. Cralle, 22 Ky. Law Rep., 163; Daniel on Negotiable Instruments, vol. 2, secs. 1486, 1487^ 1500, 1501, 1501a; Code of Virginia, 1873, p. 987, sec. 7, also p. 989, sec. 17; Am. 6 Eng. Ency. of Law, title Corporation, vol. 7, p. 774.</p> <p>AUTHORITIES CITED.</p> <p>Louisville Gas Co. v. Kaufman, Straus & Co., 105 Ky., 160; Commercial Bank of Orleans v. Newport Manufacturing Co., 1 B. M., 14; Frankfort Bridge Co. v. City of Frankfort, 18 B. M., 45; Louisville & Nashville R. R. Co. v. Literary Society of Saint . Rose, 91 Ky., 400; National Bank of Cynthiana v. Mattingly & Sons, 18 Ky. Law Rep., 425; Rhorer, Receiver v. Middleshoro Town & Lands Co., 103 Ky., 148; Kentucky Citizens Association v. Lawrence, 106 Ky., 88; M. V. Monarch Co. v. Farmers’ Bank, 105 Ky., 436; Farmers’ Bank of Ky. v. Ohio. River Steamboat Co., 108 Ky., 449; Railroad Company v. Howard, 7 Wall., 412; 3 Cook on Corporations, 5th Ed., sec. 775; R. R. GO', v. .Howard,</p> <p>7 Wall., 412; Arnot v. Erie R. R.,.67 N. Y., 320'; Todd v. Kentucky Union Land Company, 57 F. R., 62; Marbury v. Kentucky Union Land Co., 62 F. R., 250; 10 Cyclopedia, 1101; 3 Cook on Corporations, sec. 760, pp. 1969, 1971; sec. 761, p. 19'80, sec. 760, p. 1972; 7 Thompson on Corporations, sec. 8340-; Merchants’ National Bank v. Citizens’ Gas Light Co., 159 Mass., .505; S. C., .34 N. E., 1084; Marshall National Bank v. O^Neal, 11 Texas Civil App., 640; S. C., 34 S. W. Rep., 344; Underhill v. Santa Barbara Go., 93 Cal., 300; S. C., 23 Pa., Rep., 1050.</p>

<p>Railroads — Right of Way — Trespassers—Injuries—Liability— Infants — Evidence.</p> <p>1. The rule that railroad men are not bound to keep a lookout for trespassers ion the track at points where the presence of persons on the track is not to be anticipated, but are o-nlybound to use all reasonable care to prevent injury to them after their peril is discovered, applies to the case of children on the track.</p> <p>2. In an action against railroad company for the death of a child on its right of way, evidence examined, and held to show no negligence on the part of the railway company.</p>

<p>Case 76 — Action by Ann E. Bent and Others Against Cora P. Davis and Others tor Sale of Lot and Division op Proceeds at which Sale Charles L. Hughes Becomes Purchaser —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION NO. 1 — ‘ SHACKELFORD MILLER, judge.</p> <p>From an Order Confirming Sale. Hughes Appeals.</p> <p>Our contention in this ease is that under the terms of the will of Mrs. Johnson the interest in the land in controversy is not in the possession of Mrs. Wooldridge’s children in the sense that it can- he sold under the provisions of the Civil Gode and the title pass, until the death of the testatrix’s husband.</p> <p>The will directs that at the death of Col. Johnson (who was the husband of testatrix) the property shall he “put in trust” for Mrs. Wooldridge’s children, that is, to a trustee to b© appointed for them, and we contend that there is nothing in this direction which enlarges Mrs. Wooldridge’s estate as trustee beyond an estate for the life of Col. Johnson.</p> <p>Nor can her estate he enlarged into the fee by the provision that she may “sell and reinvest,” for such power is confined to the term of her trusteeship, and it has been held that an estate limited for less than the fee will not be enlarged into a fee by a power to dispose of the fee. Such power remains coupled with the trust, but does not operate to enlarge the trust estate. Coates v. L. & N. R. R. Co., 92 Ky., 263; Duncan v. Hall, 23 Ky. Law Rep., 1615; Caldwell v. Caldwell, 7 Bush, 515; 1 Underhill on Wills, 153. ^</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. The interest of Mrs. Wooldridge’s children is a constructive trust, not enforceable against appellant. (1) Under the residuary clause of Mrs. Johnson’s will Mrs. Wooldridge takes an absolute legal title in fee' simple to the property in question. Ky. Stat., sec. 1828, sec. 2342; Cases collected in Barbour’s Digest, vol. 2, 1518, vol. 4, 1280; 2 Pomeroy Eq. .Juris., sec. 1034; Franck v. Franck, 24 Ky. Law Rep., 1790. (2) The parróle trust creates no estate in Mrs. Wooldridge’s children, but only constitutes evidence, upon which, coupled with proof of Mrs. Wooldridge’s knowledge thereof, a court of equity will afford the children a remedy against her and against any purchaser fnom her with notice. It would be enforced as a constructive, not as an express, trust. Ky. Stat., sec. 2342, sec. 4828; 1 Underhill on Wills, 153; 2 Pomeroy Eq. Juris., secs. 1044, 1054 and note; Perry on Trusts, sec. 166; McCormick v. Grogan, L. E.4E Ii., 82 (quoted .in 1 Pomeroy Eq. Juris., sec. 431); Hoge v. Hoge, 1 Watts (Pa.), 163 (26,Am. R., 52); Wehb v. Webb, 7 Mon., 626. (3) The purchaser at this sale is not in the attitude of 3 purchaser from Mrs. Wooldridge with notice, because he bought at a sale pro•cured by her co-tenants in exercise of a legal right existing in them before the creation of the secret trusts. Farmers & Drovers’ Bank v. Sherley, 12 Bush, 304. (4) Equity can fully protect the children by impressing a trust' upon Mrs. Wooldridge’s share of the proceeds.</p> <p>2. Dineen v. Hall, 23 Ky. Law Rep., 1615, has no application to this case. (1) Because the interest of the infants ihere is not in remainder, but a vested fee in possession. Bowling v. Dobyns, 5 Dana, 438-40. (2) Because the interest of the infants is an equitable, not a legal interest. Kean v. Tilford, 81 Ky., 600; Gray v. Cornwall, 95 Ky., 566. (3) Because'the interest of the infants, even if a remainder, was created by act of one of the parties, and not by act of the law, as in Dineen v. Hall, Kean v. Tilford, 81 Ky., 600, 603.</p> <p>3. Decisions denying the jurisdiction to sell under section 490, subsee. 2, ought not to be extended. Ky. Stat., sec. 2348; Civil Code, sec. 499; Freeman on Partition, secs. 424, 433; Turner v. Morgan, 8 Yes., 143; Coleman v. Hutchenson, 3 Bibb, 209.</p>

<p>Fiscal Court — Levying Taxes — Liability for Exceeding Constitutional Limit.</p> <p>The magistrates of a county, who-, ex officio, constitute the fiscal court, in. levying taxes as such court act in a legislative capacity, so that they are not liable on their official bonds foil levying a tax in excess of the constitutional limit.</p>

<p>■Gaming — Gaming Machines — Statutory Offenses — Indictment— Repetition of Averments.</p> <p>1: Ky. St. 1903, sec. 1960, provides that whoever snail keep, carry on, or manage a keno bank, faro bank, or other machine or contrivance used fn betting, whereby money or other things may be won or lost, shall be fined. Held, that, in order to sustain a conviction under such section, it must appear that the table, machine, or contrivance was such as is ordinarily used in gambling for money .or property, where the contrivance is not a keno or faro bank, or one of the things named in the section.</p> <p>'2. Where an indictment is for a statutory offense, it is sufficient if, in the accusative part, the offense is designated by a brief general description in the language of the statute, or sufficiently to apprise a person of .ordinary understanding of what is meant.</p> <p>3. Where other facts stated in the accusative part of an indictment for violating Ky. St. 1903, sec. 1967, prohibiting the keeping of a machine or contrivance used in betting, whereby money or other . things may be won. or lost, were sufficient to apprise a person of ■ordinary understanding that the slot machine with the keeping ■of which defendant was charged was a gambling contrivance, the Indictment was not fatally defective because such accusative part ■did not specifically state that such slot machine was such a contrivance.</p> <p>4. Where the accusative part of an indictment for keeping a gambling machine on premises occupied by defendant in violation of Ky. St. 1903, sec. 1967, alleged that the premises in question were in defendant’s occupation and under his control, it was not necessary that such fact should be again alleged in the descriptive part of the indictment.</p>

•Case 79 — Action by R. M. Stroud against the Heirs of His Deceased 'Wife to Enforce a Written Contract Made between Himself and Wife. APPEAL FROM DAVIESS CIRCUIT COURT — WILLIAM T. OWEN, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals. 1.

Case 80 — Prosecution against Ulysses Hicks as an Accessory before the Fact to the Suicide of Another. APPEAL FROM GRAVES CIRCUIT COURT — t-R. J. BÚGG, CIRCUIT JUDGE. From an Order Directing a Verdict in Favor of Defendant the Commonwealth Appeals. “An accessory before the fact is one who was absent when the act was committed, but who procured, counseled, commanded, or abetted ’the principal or actual doer of the act, to commit it.” Clark’s Crim. Law, sec. 48.

<p>Case 81 — Prosecution of Robert and Lula Vineyard for Larceny.</p> <p>APPEAL FROM CARLISLE CIRCUIT COURT-R. J. BUGG, CIRCUIT JUDGE.</p> <p>Judgment of Court Directing a Verdict for Defendants.</p> <p>We contend that in an indictment for larceny for stealing property belonging to the Columbus Stave Co. it is not necessary to allege in the indictment or prove on the trial that said Stave Co. was incorporated.</p> <p>LIST OP CASES CITED.</p> <p>Crim. Code, sec 128; Robertson’s Crim. Law and Pro. vol. 1, sec. 435; Smith v State, 28 Ind., 321; People v Barrick, 49 Cal., 342; Com. v. Philipburg, 10 Mass, 70; Pisher v. State, 40 N. L. J., 1.69; Johnson v. State, 65 Ind., 204; People v. Jackson, 8 Barb., 637; Com. v. Deadham, 16 Mass., 141; Porter v. Com., 22 Ky. Law Rep., 1658; Reed v. Com., 7 Bush, 642; McBride v. Com., 13 Bush, 338; Com. v. Jarboe, 11 Ky. Law Rep., 344; Johnson v. Com., 10 Ky. Law Rep., 101.</p> <p>It is a general rule of law that “all descriptive averments in an indictment must be proved as laid.”</p> <p>This indictment describes the alleged owner of the stolen rope to be a corporation. Under this general rule of law it became necessary tor appellant to prove that it was a corporation, and when it failed to so prove, it failed to prove one of the essential things to convict appellees. Clark v. Com., 16 B. Mon., 206; Hensley v. Com., 1 Bush, 11; Am. &Eng. Ency. of Law (1st Ed.), vol. 10, p. 557.</p>

Case 82 — Action by Dan Altsheler and others against Theophilus Conead for Breach of Contract. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 2-STERLING B. TONEY, judge. Judgment for Defendant and Plaitiff Appeals. 1.

Case 83 — ’Action by Henry Lewis and otiiebs against Daniel Bebby AND OTHERS FOE THE SALE AND PABTITION OF REAL ESTATE. APPEAL FROM M’CBACKEN CIRCUIT COURT-L. Di HUSBANDS, CIRCUIT JUDGE. Judgment fob Plaintiffs and Defendants Appeal. 1. It is the contention of appellants, ffiat in the sale of infant’s land owned jointly by them with others, it must not only appear that the property is indivisible, hut that the infants had a vested estate and were in possession.

Case 84 — Action by W. F. Hall against Lucy Hall to Enforce Mortgage Lien on Land. APPEAL FROM HABLAN CIRCUIT COURT — M. J. MOSS, CIRCUIT JUDGE. Judgment for Plaintiff and Defendant Appeals. L On the issue of fact the burden was on appellee.

<p>Conspiracy — Unfair Competition — Evidence—Admissibility—Sufficiency — ‘Malice and Bad Motive — Damages—Depositions— Statute — Instructions—Oral' Repetition — Inquiry by Jury— Answers by Court — Remarks of Counsel — Verdict—Inequality.</p> <p>1.Whether a conspiracy formed for the purpose of injuring or driving one out of business be lawful or unlawful, so. far as the purpose is concerned, where unlawful means ars used effectuating that purpose, the conspiracy becomes actionable.</p> <p>2. It is unlawful for those forming a conspiracy for the ¡purpose of injuring another’s business as oil merchant to harass and annoy his employes while selling and distributing oils to his customers.</p> <p>3. It is unlawful for those forming a conspiracy for the purpose of injuring another’s business as oil merchant to threaten his customers to shut them up in their business if they continue to deal in his oils.</p> <p>4. It is unlawful for those forming a conspiracy for the purpose of injuring another’s business as oil merchant to cause false and injurious reports concerning his business to be circulated in the city and its vicinity where he is doing business.</p> <p>5. It is unlawful for those forming a conspiracy for the purpose of injuring another’s business as oil merchant to procure his arrest and prosecution on false charges in connection with his business in the sale of oils to alienate his acquaintances and patrons.</p> <p>■6. In an action for damages for injuring plaintiff’s business as oil merchant, or driving him out of it, through a conspiracy of defendants, evidence examined, and whether a conspiracy was formed, held to be a question for the jury.</p> <p>7. In an action for damages resulting from the formation of a conspiracy, when the conspiracy is once established, or facts are adduced which justify the inference of a conspiracy, the acts and declarations of each conspirator made pursuant to .and in furtherance of the conspiracy after its formation and before its completion are competent evidence against all.</p> <p>8. The acts and declarations of a conspirator after the completion of the purpose for which the conspiracy was formed are competent evidence only against that particular conspirator.</p> <p>9. Civ. Code, sec. 583, provides that the officer before whom depositions are taken may send them by private conveyance in a sealed envelope directed to the clerk of the court in which the ac- ■ tion is pending, and make oath that they have not been opened in their transit, and that the clerk shall indorse on the depositions the time and mode of their reception, and the affidavit, if any, of the person delivering them. Held, that the requirements of the Code are met where depositions were sent through an express company, the officer taking them making affidavit as to the individual agent of the express company to whom she delivered the depositions, and such agent, with all others of the express company into whose hands the depositions passed to the time they were delivered to the clerk of the court making affidavits that the depositions had not been opened in transit, and the clerk making affidavit that the depositions reached him in a sealed envelope.</p> <p>10. In action for damages resulting from the formation of a conspiracy to injure plaintiff’s business as oil merchant, to which a corporation and two individuals were made parties defendant,, after the case had been submitted to the jury they returned to-the court room and asked for information whether, if they believed that three were in the conspiracy, could they find against two and leave the other out. Held, that the response of the court to the question to the effect that, if the evidence shows that three defendants were in the conspiracy, and that the plaintiff is entitled to a verdict against all three, the jury should so find, but, if the jury think that the verdict is warranted, they may find a verdict against the different defendants in different amounts, being but an' oral restatement of an undoubted proposition of law contained in the written instructions, was not cause for reversal.</p> <p>11. Nor was the oral statement subject to the objection that the last part was not responsive to the question.</p> <p>12. In an action for damages resulting from the formation of a conspiracy to injure plaintiff’s business as oil merchant, to which a corporation and certain individuals were made parties defendant, remarks of counsel for plaintiff, in argument toi the jury, the effect u'f which amounted only to his opinion as to the great desire of the corporation to relieve itself of a competitor in the oil business in the city where plaintiff had his place of business, are legitimate.</p> <p>13. In an action for damages resulting from the formation of a conspiracy to injure plaintiff’s business as oil merchant,- to which a corporation and two individuals were made parties defendant, it was within the province of the jury to determine from the evidence which of the conspirators was most in fault, and who. would be benefited most by the formation and success of the -conspiracy; and hence a verdict assessing $2,300 damages against the corporation, $300 against one of the individuals, and nothing against the other individual is no evidence of passion and prejudice on the part of the jury.</p>

<p>Elections — Qualifications of Voters — Production of Registration Certificates — Issuance by County Clerk — Preserving Affidavits.</p> <p>1. Act Feb. 11, 1904 (Acts 1904, p. 31, c. 6), requiring a voter, as a condition of voting, to produce to election officers, when he presents himself to vote, a certificate of registration-from the registration officers, or, in case of its loss, a duplicate certificate from the county clerk, for which latter certificate-he must pay fifty cents, does not add to the qualifications prescribed by Const., sec. 145, providing that every male citizen over twenty-one years old, having a residence for a certain time, and not an idiot, or insane, or convicted of certain crimes, shall be a voter, but is authorized by section 147, providing that the mode of registration shall be prescribed by the General Assembly,.</p> <p>2. Act Feb. 11, 1904 (Acts 1904, p. 31, c., 6), is not open to the objection of allowing the county clerk to issue a duplicate registration certificate in lieu of one lost by a voter, without other proof of such loss than his mere affidavit; the registration books being on file in the county clerk’s office from the time they are completed and returned by the registration officers, and it clearly being the clerk’s duty to refuse a certificate in lieu of one claimed to be lost if the name of applicant does toot appear therein.</p> <p>3. Under Act Feb. 11, 1904, (Acts 1904, p. 31, c., 6), providing that a voter, on filing before the county clerk an affidavit showing-loss of his registration certificate, may obtain a duplicate certificate, the affidavit on being filed becomes a record in the clerk’s-office, and is to be preserved like other records.</p> <p>4. Act Feb. 11, 1904 (Acts 1904, p. 31, c., 6), amending the statute for registration of voters, is not unconstitutional -because not providing penalties, though the penalties- provided by the amended. statute will not cover all offenses that may arise under the statute as.- amended.</p> <p>S. Act Feb. 11, 1904, (Acts 1904, p. 31, c., 6), relative to registration of voters, tí not invalid because failing to provide for issuance by the county clerk of original certificates of registration to persons registered by him during the three days of supplemental registration provided, for by Ky. St. 1903, secs. 1498, 1499. The county clerk being the only officbr authorized to register voters during such time, the statute may he construed as authorizing him to issue certificates of registration to the voters then admitted to registration by him.</p> <p>8. Const, sec. 147, requires the General Assembly to provide by law for the registration of voters in cities and towns having a population of $5,000 or more, and allows it to provide by general law for the registration of other voters in the State. Held, that such section did not require the Legislature to provide for the registration of all voters not residing in cities and towns having a population of 5,000 or more, in ease it required any of such voters to register, but that the Legislature was entitled to classify such voters by general laws, and to. exempt voters residing in the country from registration, while requiring those residing in cities and towns to be registered.</p>

Case 87 — Primary Election Contest by Annie R. Beasley against' C. C. Adams. APPEAL FROM GRANT CIRCUIT COURT-JOHN M. LASSING, CIRCUIT JUDGE. From the Judgment op the Circuit Court the Contestant Appeals. 1.

<p>Case 88 — Action by A. J. Asher against C. J. Johnson and others to Enforce a Contract.</p> <p>APPEAL FROM WHITLEY CIRCUIT COURT-M. L. JARVIS, CIRCUIT JUDGE.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>1. A writing by which C. agreed to allow A. to build and operate a tramway through C.’s field, not to exceed three years, at a rental of $35 per year is a lease and not a mere license.</p> <p>2. The relation of landlord and tenant having been created by the writing, and the tenant having held for a period greater than ninety days on the third year, was entitled under Ky 'Statutes, sec. 2295, to hold for the balance of said year.</p> <p>1. We contend that the writing sued on herein is a license and not a lease.</p> <p>2. Even though it be a lease, the land used by appellant was mot farming land, and does not come within the letter or spirit of section 2295, Ky. Statutes.</p> <p>AUTHORITIES CITED.</p> <p>Black’s Law Dietiionary; Bouvier’s Law Dictionary; Anderson’s Dictionary of Law; Washburn on Real Property (6th Ed.), secs. 619, 835, 836, 843, 844, 845, 846; 18 Am. & Eng. Ency. oí Law, (2d Ed.), pp. 1127, 1130, 1146 to 1150; Sec. 2295 Ky. Stat.; Wilkins v. Irvin, 33 Ohio St., 138; Waller v. Morgan, 18 B. Mon., 136; Lowell v. Straban, 145 Mass., 1; Cluett v. Sheppard, 131 111., 636; Malott v. Price, 109 Ind., 22; Ward v. Day, 4 Best & 5., 337; Doe v. Wood, 2 Barn. & Aid., 724; Carr v. Benson, 3 L. R. Ch. App., 524; Silsby v. Trotter, 29 N. J. Equity,'228; Dark v. Johnston, 55 Pa., 164; Shepherd v. McCalmont Oil Co., 38 Hunn, 37; Nunnelly v. Southern Iron Co., &c., 94 Tenn., 397; Wood v. Leadbitter; 13 M. & W., 838; Huff v. McCauley, 53 Penn. St., 209; Wiseman v. Lucksinger, 84 N. Y., 31.</p>

<p>Injunct ion — Staying execution — Damages—Remedy.</p> <p>1. An execution on a judgment is a proceeding to enforce it, within Civ. Code, see. 295, providing the remedy for assessing damages on dissolution of an injunction to stay proceedings, on a judgment.</p> <p>2. The remedy for assessment of special damages given hy Civ. Code, sec. 295, providing that on dissolution of an injunction to stay-proceedings on a judgment the damages shall he assessed by the court, and judgment shall be rendered against the party who obtained the injunction for the damages assessed, is exclusive.</p>

<p>Case 90 — Action by Lessie M. Milwabd against the Aetna Life . Ins. Co. on a Policy Insuring Her Husband against Accidental Death.</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT — -"WATTS PARKER, CIRBUrP JUDGE.</p> <p>JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.</p> <p>POINTS AND AUTHORITIES.</p> <p>1 In an action to recover for death under ani accident insurance policy the burden is upon the plaintiff to prove that the death of the insured was caused by accidental means, even though the defense claims that it was due to suicide 'Whitlateh v. Fidelity and Casualty Oo„ 149 N. Y., 45 (43 N. E., 405); Fidelity and Casualty Co. v. "Weise, 182 111., 496 (55 N. E., 540'); Taylor v. Pacific Mut. Life Insurance Co., 110 Iowa, 621 (82 N. W., 326); Aetna Life Ins. Co. v. Vandecar, 86 Fed., 286; National Masonic Accident Ass. v. Shryock, 73 Fed., 774; Insurance Co. v. Mc-Conkey, 127 U. S., 661 (32 L. Ed., 308); Laessig v. Travelers’ Protective Association, 169, Mo., 272 (69 S. W., 469); Aetna Life Ins. Co. v. Kaiser, 24 Ky. Law Rep., 2454 (74 S. W., 203.)</p> <p>2. A plaintiff does not succeed in successfully carrying the burden of proof where the case as made by his' testimony ¡is equally consistent with his own theory and that of the defendant. Hughes v. Cincinnati, &c., R. R. Co., 91 Ky,, 526; Wintuska; v. L. & N. R. R. Co, 14 Ky. Law Rep., 579; Louisville Gas Co. v. Kaufman, &c., 20 Id., 1069; L. & N. R. R. Co. v. Wathen, 22 Id., 85; Hughes v. L. & N. R. R. Co., 23 Id., 2288; Hurt v. L. & N. R. R. Co., 25 Id., 759; Merrett v. Preferred Masonic, &e., Association, 98 Mich., 338 (57 N. W., 169); Carnes v. Iowa Traveling; Men’s Association, 106 Iowa, 281.(76 N. W., 683.)</p> <p>3. The plaintiff failed to make out her case under the fore-going rules, and the peremptory instruction asked for by the defendant should have been given.</p> <p>4. The peremptory instruction should have been given upon the further ground that plaintiff had not, as required by the-policy, furnished affirmative proof that the death of the insured was the proximate result of accidental means.</p> <p>5. Even if defendant was not entitled to a peremptory instruc- , tion the verdict should be set aside as flagrantly contrary to the evidence; because the rule requiring a submission to the jury if there be a scintilla of evidence does not mean that a verdict may be sustained upon a mere scintilla. Hurt v. L. & N. R. Co., 25-Ky. Law Rep., 759; Civil Code, sec. 341.</p> <p>6. The.policy stipulated for different payments in the event of accidental death under different prescribed conditions, and also stipülated that even for accidental death under certain conditions there should be no liability. The plaintiff’s petition was, therefore, fatally defective by reason of its failure to allege under which of these various prescribed conditions/ the alleged accidental death occurred. American Accident Ins. Co. v. Carson, 99 Ky., 447.</p> <p>7. The coroner's inquest was competent testimony upon the> issue of suicide. Starkie on Evidence, side pages, 404, 288-9 and 405-7; Greenleaf on Evidence, sec. 556; U. S-. Life Ins. Co. vKielgast, 129 111., 557 (6 L. R. A, 65, 22 N. E., 467.)</p> <p>8. The lower court erred in permitting plaintiff, after the conclusion of all the evidence and the request for instructions, to file an amended reply,' changing a substantial issue;</p> <p>9. The lower court erred, after permitting said amendment to be filed, in overruling defendant’s motion to set aside the swearing of the jury and continue the case.</p> <p>10. Errors committed by the lower court in' giving and refusing instructions.</p> <p>11. Appellant was entitled to. a new trial upon thei ground of newly discovered evidence.</p> <p>1. We submit that the only facts necessary to be stated in the petition to entitle the. plaintiff to recover upon the face of the policy, which precedes a long list of conditions and exceptions ■attached thereto, are as follows:</p> <p>(1.) The execution and delivery of the contract of insurance, ■and the payment of the consideration expressed therein.</p> <p>(2.) That the policy was in full force and all premiums paid ■at the time of the death or injury of the insured.</p> <p>(3.) That the death resulted within ninety days from the time of the injury.</p> <p>(4.) That the injury, and consequent death, was the sole result of external, violent and accidental means.</p> <p>(5.) That proper notice of death, and the cause thereof, with accompanmg proof, was made to the person and at the place named in the policy.</p> <p>2. Where there is any evidence tending to support the alle•gations of the petition, the court can not properly peremptorily instruct the jury to find for the defendant. A jury selected from, all classes of business, and of different ages and experience, are better prepared to make fair deductions from a state/ of undisputed facts than even the judges on the bench.</p> <p>3. A coroner’s inquest, and the verdict of the jury thereon is not competent evidence to show whether or not the death of the insured was the result of suicide.</p> <p>4. A new trial was properly refused by the court, (1) because ■the evidence offered was merely cumulative, and (2) because ■ diligence was not shown m the effort to procure it on the trial.</p> <p>LIST OF AUTHORITIES</p> <p>.Enclyeopedia of Pleading & Practice, vol. 11, p. 418; Eneyclopoedia of Law & Procedure, vol. 1, p. 285; Richards v. The Travellers’ Insurance Co., 23, American State Reports, 457; 1 Am. & Eng. Ency. of Law, 272; Standard Oil Go. v. Eiler, 22 Ky. Law Rep., 1643; Aetna Life Ins. Co. v. Kaiser, 24 Ky. Law Rep., 2456; May on Insurance, sec. 325; Jones on the Law of Evideuce, p. 379; Supreme Lodge v. Beck, 94 Fed., 752; Home Benefit Association v. Sargent, 142 U. S., 697; Phillips vt>. Equitable Life Ins. Co., 26 La. A. R., 404; Campbell v. The Fidelity & Casualty Co., 22 Ky. Law Rep., 1304; Hutcheraft’s Exr. v. The Travellers’ Insurance Go., 87 Ky., 302; American Accident Co. v. Reigart, 94 Ky., 549; May on Insurance, 3d Ed., sec. 176; American Accident Co. v. Carson, 99 Ky., 445; Fidelity & Casualty Co. v. Johnson, 30 L. R. A., 206; Travellers Insurance Co. v. Clark, 22 Ky. Law Rep., 902; Miller v. Insurance Co., 20 L, R. A., 765; Insurance Co. v. Randolph, 78 Fed. Rep., 754; Burkhardt v. Inscrance Co., 102 Pa. State, 263; ' National Bank v. Insurance’ Co., 95 U. S., 673; Thompson v. Insurance Co., 136 U. S’, 287; Insurance Co. v. McConkey, 177 U. S., 661, Indemnity Co. v. Dorgan, 58 Fed. Rep., 945, Phillips on Code Pleading, sec; 340; Owensboro City Railway Co., v. Hill, 21 Ky. Law Rep., 1640;</p>

<p>Case 91 — Action by J. H. Button against tiie City op Louisville por an Injunction to Restrain the Collection op Certain Taxes.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT,CHANCERY DIVISION, NO. 1-SHACKELFORD MIDLER, judge.</p> <p>Judgmfnt for Plaintiff and Defendant Appeals..</p> <p>For the appellant and the information of the court it may be stated that the main legal question involved in this- appeal is whether or not the general council of the city of Louisville can by resolution authorize and direct the hoard of public works to sprinkle the streets of said city, or any of them, and appropriate a sum sufficient to pay therefor, out of the fund, arising from the levy for general purposes, when the statute authorizes a levy for street sprinkling, which was not in the levy ordinance for the current year.</p> <p>The construction placed upon itss own powers by the general council is entitled to some weight at least in construing the true intent and meaning of the statute pertaining to the objects for which specific levies may be made.</p> <p>The different purposes for which taxes may be assessed, levied and collected by cities of the first class, are specifically enumerated in the statute, and this enumeration excludes the power to levy ■or collect taxes unless the purpose is specified.</p> <p>AUTHORITIES CITED.</p> <p>Constitution sec. 180; Ky. Statutes, sees. 2980, 2982, 2816, 2820, 2821, 2825; City of Somerset v. Bank, 22 R., 1132; Cahill v. Perine, 20 R., 1457; Krakel v. Neumeyer, 23 R., 196; Board of Directors v. Board of Trustees, 24 R., 98.</p>

<p>'Case 92 — Action by A. M. Bradley against the City op Georgetown por Salary as Treasurer of Said City.</p> <p>-APPEAL PROM SCOTT CIRCUIT COURT-JAMES E¡. CANTRILL, CIRCUIT JUDGE.</p> <p>.Judgment for Dependant and Plaintiff Appeals.</p> <p>Our contention is that although the contest board (decided that. Wolfe, who was appellant’s opponent, was elected city treasurer, this court on appeal reversed that decision and held that appellant was legally elected, that therefore appellant is entitled to-the salary of the office- during the time he was deprived of it by the unlawful occupancy thereof by Wolfe.</p> <p>1. Wolfe having been adjudged the office of city treasurer by the contesting board and by the circuit court, and being in possession of, and discharged the duties of the office from January 1, 1902, until April 22, 1903, was, before the final judgment of May 4, 1903, paid for his services, $786.67, the salary allowed by law, we submit that the city can- not be required to-repay the salary to appellant.</p> <p>AUTHORITIES CITED.</p> <p>I. B. Nall v. Coulter, Auditor.; Civil Code, sec. 760; Cline v., Wrightso-n, 7 R., 215; Ky. Statutes (1903), sec. 12.</p>

<p>Case 93 — Action by Board of Trustees of Public Library of Covington against John L. Beitzer, City Treasurer, for Mandamus to Compel Him to Surrender Certain Funds.</p> <p>APPEAL FROM KENTON CIRCUIT COURT — O. P. SCHMIDT, SPECIAL JUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>The only question to be decided in this case is whether the defendant as treasurer of the city of Covington is ex officio treasurer of the board of trustees of the public library, or whether the trustees of the public library can elect their own treasurer, with the right to the custody of all the library funds?</p> <p>Our contention is that under section 3210, Ky. Statutes which provides that “said boat’d (of library trustees) shall have the custody, control, management and expenditure of all funds that may, heretofore, have been accumulated for free public library purposes, or that may hereafter be accumulated for, or devoted to said purposes,” there is nothing left to implication, but the natural and necessary construction, is that the Legislature gives to the library board the custody in connection with the control, management and expenditure of its funds.</p> <p>AUTHORITIES.</p> <p>Ky. Statutes, secs. 3210. 3143, 3132, 3225; Definition of word, Custody; Bouvier’s Law Dictionary; Black’s Law Dictionary; Webster’s Dictionary; Endlich Interpretation of Statutes, sees. 396. 52; Dillon on Mun. Corporations (3d Ed.), sec. 230.</p> <p>We contend:</p> <p>1. That the plain intention of the Legislature, in the absence of a charter provision creating the office of treasurer of the library board of trustees, or in the absence of a provision empowering the. board to create it, was that the treasurer of the city should be the actual custodian of the funds, just as he was when the school board bad control and custody under the previous act.</p> <p>2. That as a municipal body can only exercise those powers conferred upon it by its charter, in the absence ofi a¡ provision of its charter to that effect it can not create the office of treasurer.</p> <p>3. It is conceded that the defendant does not refuse to honor and pay all orders directed by the library trustees, except an order directing him to pay all funds to a so-called treiasurer of the board.</p>

Case 94 — Action between Mollie B. Stonestreet and others and Ella Jacobs and others, as to the Ownership op a Spring.— APPEAL PROM CARROLL CIRCUIT COURT — JOHN M. LAS'SING, CIRCUIT JUDGE. From the Judgment Stonestreet and others Appeal. 1. It is alleged in the petition and not denied that Mollie B. Stonestreet is the daughter of John T. Harris, Sr. 2. It is alleged and not denied that the land in controversy was formerly in Gallatin and is now in Carroll county. 3.

Case 95 — Proceeding between Wittie E. Hughes and others, and Edward Hughes, Trustee, and Executor and others, eob Construction of a Devise. APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY • DIVISION, NO. 1-SHACKELFORD MILLER, judge. From the Judgment, Edward Hughes and others Appeal. POINTS' AND AUTHORITIES. 1.

<p>Guardians — Removal—Proceedings—Ex Parte Affidavits — Recovery of Land — Receivers—'Security.</p> <p>1. Ky. St. 1903, sec. 2039, authorizing courts of chancery to remove guardians for neglect of breach of trust does not authorize suc-h removal on ex parte affidavits without proceedings instituted for that purpose in which the guardian is afforded an. opportunity to be heard.</p> <p>2. Where, in an action to recover certain real estate, an .issue was raised as to whether a minor was entitled to the same as a homestead, and' the minor’s guardian was removed on the ground that his interest was adverse to the minor, and also that he had transferred his property to his wife for the purpose of hindering and delaying his creditors, especially such minor, it was .error for the; court before the trial of the issue to direct a commissioner and receiver to take charge of and rent the property and apply such, rents to the benefit of the minor.</p> <p>3. Where, in an action to recover certain real estate in possession of defendant, who was also guardian of a minor interested therein, on. it being shown that the interests of such guardian were adverse to the minor, and that he had conveyed his property with intent to defraud his ward, the court should have fixed a day for trial of the issues, and taken a bond from such guardian to pay the rents which he might collect in accordance with any further order of the court, and, if he failed to give such bond, to direct the commissioner or a receiver to take possession and collect such rents, subject to the court’s future order.</p>

■Case 97 — Action by J. M. Fobsythe’s Executoks against the Southern Railway in Kentucky, for Damages, fob Negligent- ■ ly Killing a Colt. appeal from mercer circuit court — M. C. SAUFLEY, circuit JUDGE. Judgment foe Pla/ «tiffs and Defendants Appeal. 1.

<p>Primary Elections — Contest—Political Committees — Acts by Proxy — Failure to be Sworn — Effect—Assessments on Candidates — Constitutional Provision — Mandamus—Waiver.</p> <p>1. In calling and conducting a primary, election the members' of tbe committee, of the political party holding the same are not entitled to act by proxy.</p> <p>2. Where a judicial district was composed of four counties, and the regular chairman of a political party of three of such counties were present at a meeting at which a primary election was ordered, the fact that the chairman of the other county erroneously acted by proxy did not invalidate the acts of the committee.</p> <p>3. Where an election contestant alleged that the committee of the ■party calling the primary election erroneously failed to take the. oath required by statute before entering on their duties, which allegation was denied by the answer, tbe burden was on the contestant to prove.</p> <p>4. In the absence of fraud, wrongful act or intent, failure of the members of the governing committee of a political, party calling a primary election to take tbe oath before acting was insufficient to invalidate the election.</p> <p>5. An order of a political committee calling a primary election that all Democratic youths who would become of age by the time the-election was held should be permitted to vote at the primary, though erroneous, was insufficient to invalidate the election as-against a person who was not a candidate.</p> <p>6. Ky. St. 1903, sec. 1564, provides that all expenses of holding primary elections shall be borne by the political party holding the same, and shall be defrayed as provided by its committee or governing authority. Section 1561 provides that any person desiring to submit his name at a primary election shall apprise the committee, and on complying “with the conditions prescribed by the committee” shall be declared a. candidate, and that any person who has not given such notice, and “who has not complied with the conditions” prescribed, shall not have his name printed on the ballots used at such primary elections. Hf.ld, that the committee of a political party holding a primary election had authority under such sections to require that the candidates pay the expenses of holding the primary, and that candidates who had failed to pay their proportion of such expense should not be voted for.</p> <p>T. Const, sec. 6, providing that all elections shall be free and equal, has no application to primary elections.</p> <p>S. Where contestant, a candidate for nomination at a primary election, failed to proceed by mandamus to compel the governing committee bo place his name on the ballot notwithstanding his failure to pay his proportion of the cost of holding the election as required by such committee, and the other candidates submitted to the assessment, paid the same, and one of them was nominated, and thereafter elected, contestant, was not entitled to claim that the election was void on the ground that such assessment was erroneous.</p>

Case 99 — Prosecution against Illinois Central Railway Co., por Obstructing a Street. APPEAL PROM CARLISLE CIRCUIT COURT — R. J. BUGG, CIRCUIT JUDGE. Demurrer to Indictment Sustained and Commonwealth . Appeals. 1.

<p>Case 100 — Action by the Administration of Robert McManus against Illinois Central Railroad Co., job Causing the Death oj Plaintiff’s Intestate.</p> <p>APPEAL FROM M’CRACKEN CIRCUIT COURT-L. D. HUSBANDS, CIRCUIT JUDGE.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND' CITATIONS.</p> <p>1. Verdict not supported by evidence, and so palpably wrong as to show it was superinduced by passion «ir prejudice. See I. C. R. R. Co. y. McManus’ Admx., 24 Ky. Law Rep., part 1, 81.</p> <p>2. Error of court iu refusing peremptory instruction., and error of court in refusing to give an instruction defining the term “infamous witness.” See 6 Monroe, side page, 136.</p> <p>3. Collateral statements of witness can not he invoiced as substantive testimony to support testimony of infamous witness. See McLeod, Receiver v. Ginther’s Admr., 80 Ky., 399; Crittenden v. Tbe Commonwealth, 82 Ky., 164; L. & N. R. R. Co. v. Webb, 99 Ky., 332; C. & O. Ry. Co. v. Smith 101 Ky., Ill; beginning page 104; Embry v. L. & N„ 18 Ky. Law Rep., 434, 437.</p> <p>1. This court has long ago established the rule .that where there have been three verdicts for the same party in the same ease the court will not disturb the third verdict, although the judgments in the first two cases were reversed for errors of law, and the third verdict was against 'the weight of the evidence. L. & N. R. R. Co. v. Graves, Assignee, 78 Ky., 74; L. & N. R. R. Co. v. Adams, 10 Rep., 713; E. & JST. R. R. Co. v. Ballard, 88 Ky., 159.</p> <p>2. We submit that- it was error in the court to instruct the jury that the “unsupported evidence of an infamous witness is not •sufficient upon which to found a verdict,” especially where as in. this case there is much evidence to corroborate such witness.</p> <p>3. We understand the rule to be “that if there is any evidence to support a recovery the case must he submitted to the jury.” I. C. R. R. Co. v. Walters, 22 Rep., 137; Dick v. L. & N. R. R. Co., 23 Rep., 1068.</p>

Case 101 — Action by Jasper Owens against Magoffin County, to Set Aside a County Levy Order. APPEAL FROM MAGOFFIN CIRCUIT COURT — ROBERT RIDDLE, CIRCUIT' JUDGE. Judgment for Plaintiff and Defendant Appeals. 1. It is a well settled legal proposition that mandamus lies only to compel the performance of a duty purely ministerial in its motive and so clear and specific as not to call for the exercise of any discretion in its performance. 2.

■Case 102 — Action by Commonwealth against W. K. Vanderbilt, AND OTHERS, TO LIST OMITTED PROPERTY FOR TAXATION. APPEAL FROM MASON CIRCUIT COURT-JAMES P. HAJtBE-SON, CIRCUIT JUDGE. Judgment for Plaintiffs and Defendants Appeal. 1.

Case 103 — Action by Commonwealth against the Licking Valley Building Association, to Recover an Oeganization Tax. APPEAL FROM CAMPBELL CIRCUIT COURT-JOHN T. HODGE, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals.

Case 104 — Prosecution against James Mann, fob Murder APPEAL FROM BREATHITT CIRCUIT COJJRT-ROBERT RIDDLE, CIRCUIT JUDGE. Defendant Convicted of Manslaughter, and Appeals. 1. A sheriff or other ministerial officer has no- authority to deputize a private citizen to execute a warrant of arrest. Salisbury v. Com., 79 Ky., 428. 2.

Case 105 — Action by W. S. Davis against W. T. Monroe, fob ■Slander. APPEAL FROM. EDMONSON CIRCUIT COURT-B. W. BRADBURN, CIRCUIT JUDGE. Judgment for Plaintiff and Defendant Appeals. 1.

Case 106 — Action by F. M. Powers against J. F. Osbon, County Judge, for Services as County Assessor. APPEAL FROM MENIFEE CIRCUIT COURT-J. E. COOPER, CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals.

<p>Case 107 — Action by Jennie M. A. Trapp, a Minor, against Young & Humphrey for Damages for Personal Injuries.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION, NO. -THOMAS R. GORDON, judge.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>PROPOSITIONS OF LAW AND AUTHORITIES'.</p> <p>1. In a case where the evidence clearly shows that the injury complained of in the petition was the result of the negligence of an employe of an independent contractor in charge of the work, where the doing of the work would not. necessarily result in a nuisance, the chief contractor who made the contract with the independent contractor is not liable for the negligence of the employes of the independent subcontractor; and a peremptory instruction in behalf of the chief contractor is authorized by law. If the question of liability of the chief contractor in such a case is submitted to a jury proper instructions should be given as to the liability of such chief contractor for the acts of his own servants or employes only, if any there was, and as to the non-liability of such chief contractor for the negligence of the subconiractor, his servants or employes, unless the doing of the work would necessarily result in a nuisance. Robinson v. ÍWebb, 11 Bush, p. 477: Baumeister Brothers v. Markham, 19 Ky., Law Rep., 308, 101 Ky., 123; Matheny v. Wolff, 2 Duval, 139; Text. Am. & Eng. Ency. of Law, 2d Ed., vol 16, pp. 192 and 194; Pye v. Faxor., 156 Mass., 471; Engel v. Eureka Club, 32 N. E. Rep. N. Y. Court of Appeals, 1053; Conner v. Hennessey 112 Mass., 96, 97, 98; Brackett v. Lubke, 4 Allen (Mass.), 138; Mc-Cafferty v. S. D. & P. M. R. R. Co., 61 N. Y. Court of Appeals (16 Siekel), 181; Allen v. Ward, 57 Penn., 374; Robbins v. •Chicago, 4 Wallace, U. S., 679; Kinkead’s Commentaries on Tort (1903), vol. 1, p. 489.</p> <p>2. It is error to refuse to. instruct the jury in regard to a well •established custom. Huston v. Peters, 1 Met., 562; Caldwell v. Dawson, 4 Met.,'109.</p> <p>1. Our contention in this case is that building a brick wait on the very edge of a pavement in a city, with brick and mortar falling therefrom must necessarily result in a nuisance, unless it he prevented by proper precautionary measures, and that not only the general or original contractor, hut even the owner himself is hound to the exercise of such measures.</p> <p>AUTHORITIES CITED.</p> <p>Baumeister v. Markham, 101 Ky., 122 (19 R., 308); Matheny v. Wolff, 2 Duvall, 137; Dillon’s Mum Corp., sec. 1032; Shearman & Redfieid on Negligence, yol. 1 (5 Ed.), sec. 176; Bast v. Leonard, 15 Minn., 3of.</p>

Case 108 — Prosecution against Desha Lucas for Maintaining a> Nuisance. Defendant Convicted and Appeals. 1. Our contention is, that under the provision of the Constitution and statutes of this State, a conviction or acquittal under any properly framed ordinance, enacted in good faith, is a bar to any other prosecution for the same offense by the State whether the penalty is a statutory or common law (one. ' 2.

Case 109 — Action by Helen L. Smith against the Chesapeake & Ohio Ry. Co. eor Killing Horse. APPEAL PROM BOYD CIRCUIT COURT — S. G. KINNER, CIRCUIT JUDGE. Judgment eor Defendant a.nd Plaintiff Appfals.

<p>Personal Injury — Smallness of Verdict — Failure to Plead Special Damage — Verdict Defendant — Legal Effect — Electric Light Wire — Negligent Insulation — Painting of Building— Notice to Company — Custom—Admissibility of Evidence— Prejudicial Error.</p> <p>1. Under Code Civ. Prac., see. 341, providing that a new trial shall not he granted on account of the smallness of the damage in an action for an injury to the person or reputation, nor in any •other action in which the damages equal the actual pecuniary injury sustained, a verdict and judgment for one cent for personal injuries resulting in loss of time worth about $800 may be reversed.</p> <p>i2. Plaintiff in a personal injury action alleged that he had been and! was unable to do any kind of work. The evidence showed that the time lost to him in consequence of his injury would equal more than $S00. The jury gave him a verdict of one cent.. Held, that, as he had not pleaded special damages, he was not entitled to a reversal because of the smallness of the damages.</p> <p>3. A verdict of one cent, for personal injury consisting of a withered, arm, from which plaintiff appeals, will be treated by the court of appeals, in considering the errors alleged, as one for appellee.</p> <p>4 An electric light company, whose failure to properly insulate its wire on a building results in injury to a house painter at work thereon, is not relieved from the consequences of its negligence because the painter’s employer knew that the company desired. to cut the wire when, that portion of the building was tso be painted, or because there was a custom that contractors sihould notify the company when working on houses to which its wires were attached so they could be cut, though the company received no notice in this instance.</p> <p>5. Where an electric light company had actual notice that house painters were at work on a building to which its wires were attached, evidence of a custom to give it notice of the fact so tlhe wires could be cut is inadmissible in an action by a painter for injury from a defectively insulated wire.</p> <p>(6. The improper admission of evidence in a house painter’s action against an electric light company for injuries from a defectively insulated wire on the building he was! painting, that a custom existed to notify the company that painters were at work so its wires could be cut, is ground for reversal.</p> <p>7. Where an employe of an electric company, whose business it was to look after removing the electric current from houses that were being painted, knew that painters were at work on a certain house, his knowledge was notice of such fact to the corporation.</p>

■Case 111 — Action by the City of Louisville against George W. Norton’s Executors, for Taxes on Certain Real Estate. APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 2-SHACKELFORD MILLER, judge. Judgment for Plaintiff and Defendants Appeal. 1. It is conceded that all the property of the Louisville Baptist Orphans’ Home is exempt from taxation. 2.

<p>Case 112 — Action by Annie C. Reamer against L. H. Wood, to Enforce Contract fob S'ale of Land.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 1 — ' SHACKELFORD MILLER, judge.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court had no authority to set aside the deed of trust for the reason, that power to revoke same was not retained in the deed of trust, nor does the reason for the existence of the deed appear, and the court can not say that the reason no longer existed. Anderson v. Kemper, 25 R., 538; Middleton v. Shelby Co. Trust Co., 21 R., 183.</p> <p>2. The judgment of the Jefferson circuit court in the suit between the appellee and her trustee was not and will not be binding upon the descendants cr heirs of the appellee for the reason that they were not parties to that suit. Dembitz on Hand Titles, p. 1159; Petition of Lynan, 11 R. I., 157; Collins v. Lofftus, 10 Leigh (Va.), 5; Malone v. Schwing, 101 Ky., 256; Dorsey v. Maddox, 19 R., 1903; Lynberger v. Newkirk, 3.6 Atlantic, 193; Roberts v. Yansey, 94 Ky., 246; Morgan- v. Halsey, 96 Ky., 789; LeBeck v. Ft. Payne Bank, 22 Atlantic, 74.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The antenuptial contract is in the usual and ordinary form of such contracts where the husband agrees to join in a deed of trust creating a separate estate for the wife in her own property.</p> <p>The granting clause of the first deed of trust and the habendum clause of a subsequent deeds of trust follow the language of the ante nuptial contract except that they contain the additional provision, in reference to the descendants or, failing descendants, heirs.</p> <p>That nothing in either the deeds or the ante nuptial contract show any disposition to create a general trust limiting the use of Mrs. Reamer of her property. And that there is nothing inconsistent with the intent to create a separate estate in Mrs. Reamer. That to exclude the marital rights as to the descendants or heirs it was necessary to do so hy specific provision to that effect. And that the clause in said deeds in reference to heirs and descendants is in the usual form to effectuate! such intention.</p> <p>2. That the language of the deeds of trust with reference to descendants and heirs was necessary in the creation of a separate estate where it is intended to exclude the marital rights of the husband in the property of the wife in any event, and was put in the said deed for the purpose of preventing the marital rights of said Reamer taking effect as against descendants or heirs in the event of the death of Mrs. Reamer. Cox v. Coleman, 13 B. M.. p. 452; Hart v. Soward, 14 B. M., 243; Brown’s Admr. v. Brown’s Exr., 11 Ky. Law Rep., 799; Markwell’s Admr. v. Markwell, Exr., Ky. Law Rep., 908.</p> <p>3. The estate created by the antenuptial contract and the several deeds of trust made upon consideration thereof, being the separate estate oí a married woman, wasi terminated by operation of law on the termination of the coverture by the death of said Reamer, and its termination is not prevented or effected by the clause in reference to descendants or heirs. Wilkinson v. Wright, &e., 6 B. M., 576; Bush’s Appeal, 33 Penn. State Reip., p. 85; Moore v. Morris, Yice Chancellor’s Court, 3 Jurist, N. S., p. 552; Roberts v. Mosely, 51 Mo., 286.</p> <p>(a) 'Cases not concerning separate estate but illustrative of the tendency of the court to terminate a trust whenever its purpose has been fulfilled. Bloom v. Ray,- &c., 13 Ky. Law Rep., 168; Weekley, Trustee v. Buckner, &e., 91 Ky., 457; Webster's Trustee, v. Webster, 93 Ky., 632; Avery’s Trustee v. Avery, 90 Ky., 613; Thomas v. Harkness, and Wife, 13 Bush, 23,</p> <p>4. That the judgment of the chancellor in Sanders v. Reamer did not terminate the trust by its own force, but was merely declaratory that the trust had determined by operation of law.</p> <p>5. That the title of Mrs. Reamer to hold this property in fee simple is not dependent upon the validity or conclusiveness of the suit of Sanders v. Reamer, but that the fee simple title vested in. her by operation of law on the death of Reamer.</p> <p>6. That as the only interest of the heirs at law of Mrs. Reamer in the trust was to exclude the marital right of Reamer, after Reamer’s death they had not such interest in the estate oí Mrs. iReamer, as would make them either necessary or proper parties» to the suit of Sanders v. Reamer.</p> <p>7. That the trust is in no sense a voluntary settlement in general trust, and that the law applicable .to voluntary settlements in trust has no applicability to this case.</p>

Case 113 — Action by the Receiver of the Industrial Mutual Deposit Company against A. P. Taylor, to Recover Money Paid Preferentially in Contemplation of Insolvency. APPEAL FROM FAYETTE CIRCUIT CO CRT — WATTS PARKER, CIRCUIT JUDGE.

Case 114 — Prosecution against J. W. Bess foe Murder. APPEAL FROM FAYETTE CIRCUIT COURT — WATTS PARKER, CIRCUIT JUDGE. Defendant Convicted and Appeals (The questions discussed in the briefs are principally evidential ' and as no summary of the points has been made by counsel, the reporter deems it unnecessary to undertake to give a synopsis of them.)

Case 115 — Action by Ellsworth Woods, &c., against Rena Rich to. Enforce an Apportionment Warrant for S'ewer. APPEAL FROM KENTON CIRCUIT COURT — W. MCD. SHAW, CIRCUIT JUDGE. Judgment for Plaintiffs and Defendant Appeals. 1. Can the city of Covington require any property owner to pay more than $1.00 per foot toward sewer construction, abutting any single lot? 2.

Case 116 — Prosecution against Prank Merriweather for Murder.— APPEAL FROM CHRISTIAN CIRCUIT COURT-THOS. P. COOK, CIRCUIT JUDGE. Defendant Convicted and Appeals, 1. The appellant is charged with conspiring and confederating with other persons, defendants, to kill and murder a man whose name was unknown to the grand jury, and in pursuance thereof did kill him. 2.

Case 117 — Petition by W. H. Ingram against B. A. Fuson fob a Writ of Prohibition. appeal from the bell circuit court — M. J. MOSS, circuit judge. From an Order Sustaining a Demurrer, to the Petition, Plaintiff Appeals. 1. Sec. 3496, Ky. Statutes does not give to the police judge or city court any jurisdiction to try penal cases arising in any part •of the county outside of the city boundary. 2. Sec. 3517, Ky.

Case 118 — Action by James E. Mace against the Ashland Coal, & Iron Ry. Company, for Damages for Personal Injuries.— APPEAL FROM BOYD CIRCUIT COURT-S. G. KINNER. CIRCUIT JUDGE. Judgment for Defendant and Plaintiff Appeals.

<p>Case 119 — Petition by the Commonwealth by J. M. Huffaker, Commonwealth’s Attorney, 30th Judicial District against S. E. Jones, Judge of the Tenth Judicial District, fob a Writ of Prohibition.</p> <p>Petition Filed in Court of Appeals.</p> <p>SUMMARY.</p> <p>1. Barbour having been arrested first in Bullitt county, charged with maliciously shooting and wounding Hagan and there admitted to bail by the judge of the county court, sitting as an examining court, was thereafter and thereby actually in the custody of his bondsman, “his chosen jailer” and constructively in the custody of that court, and so held to answer any public offense of which he might reasonably be believed guilty, and, while so held was not legally liable to arrest in J’effersoni county on charge of the commission of said “felony or offense” or of any grade thereof.</p> <p>2. In cases where two or more courts have jurisdiction of the same controversy, and no step of any kind has been taken in either jurisdiction, the jurisdiction of all the courts is potential and not actual. The moment a proceeding is begun in any of the courts having potential jurisdiction, actual jurisdiction at once arises in the court where the proceeding is begun, and thenceforth all potential jurisdiction in the other courts is destroyed, and actual jurisdiction resides in the court where the proceeding is first begun to the exclusion of all other courts.</p> <p>3. The rule is universal, that where one of two courts having ■concurrent jurisdiction acquires actual jurisdiction by the beginning of proceedings, or takes possession of property which is the subject of litigation, the other court can not interfere with the first acquired actual jurisdiction.</p> <p>This rule is applicable as well to criminal, prosecutions as to civil suits, and there is no possible distinction to he cmade between the one and the other.</p> <p>1. If the eontention of the learned counsel for Barbour is correct, then there never can he any question upon which the statute, sec. 1147, and sec. 21, of the Code can apply in a case of homicide. Of the offense of malicious shooting and wounding by Barbour, Bullitt county had at the time of the arrest, exclusive jurisdiction; if Hagan had not died, the jurisdiction would have been in Bullitt, and no question could ever have arisen as to its jurisdiction. It was not until the death of Hagan that the charge of murder could he made, and it was not until then that Barbour could be arrested,- charged with that offense; and not until then that the statutes referred to could have any application.</p>

<p>Case 120 — Action by the City of Louisville against Sophia J. Woolley and others to Enforce a Tax Lien.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, NO. 1— SHACKELFORD MILLER, judge.</p> <p>Judgment for Plaintiff and Defendants Appeal.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. One who pays a judgment against him in whole or in part is entitled to. have satisfaction of it entered, on motion, and to .a recall of any execution or order of sale. 3 Bl. Com. chap., 25, p. 405; Chambers v. Garvin, 13 B. M., 236; Freeman on Judgments, sec. 95; Black on Judgments, sec. 297; Long v. Shackelford, 25 Miss., 559; Sandburg v. Papineau, 81 111., 446; 8 Ency J?l. & Pr., 464; 19 Ency. PI. & Pr., 126; Saltmarsh v. Bower, 34 Ala., 613; Smock v. Dade, 6 Rand., 639; 16 Am. Dec., 780; B. & ■O. R. R. v. Vanderwerker, 33 W. Va., 191; Smith v. Miller, 66 Texas, 78; Lockhart v. McElroy, 4 Ala., 572; Briggs v. Thompson, 25 Johnson, 294; Shaw v. Dwight, 27 N. Y., 244; Ludington v. Peck, 2 Conn., 700; Brackett v. Winston, 17 Mass., 152; <3-orsuch v. Thomas, 57 Md., 339. -</p> <p>2._ In Kentucky payment is ipso facto a satisfaction, and re-vests the legal title without action of the court. Armitage v. Wicklifie, 12 B. M., 438; Brown v. YanCleve, 86 Ky., 387.</p> <p>3. A sale under-decree for an amount substantially in excess -of the debt is irregular and an order confirming it is erroneous. .Blakey v. Abert, 1 Dana, 185; Dawson v. Litsey, 10 Bush, 408.</p> <p>4. Notice should have been given of the filing of the mandate on the former appeal. Mays v. Spalding, 17 Ky. Law Rep., 1124.</p> <p>5. Section 761, of the Civil Code, which provides for the filing in vacation of mandates of affirmance from this court, and the issuing of writs of execution thereon as if filed in court, applies only to the collection of judgments by ordinary execution, and not to the enforcement of a decree for the sale of real estate by a commissioner to satisfy a judgment. Mayes v. Spalding, 17 Rep., 1124.</p> <p>POINTS DISCUSSED AND MAINTAINED.</p> <p>1. The order of July 20, 1903, appealed from in the first appeal, was not a final order, and that appeal should be dismissed.</p> <p>2. Appellants were not entitled to have an order of satisfaction «entered as asked for in their motion.</p> <p>3. The amount paid into court was not the full amount of appellee’s lien claims, with interest and costs, against the remainder Interests of appellants.</p> <p>4. The court below properly overruled the motion of appellants and the mortgage lien-holders for the court to direct the commissioner not to execute their judgments.</p> <p>5. The payment into court of the sum claimed to he the amount of appellee’s lien claims against appellant’s remainder interests-afforded no cause for preventing the sale as made.</p> <p>6. The authorities cited by appellant’s counsel are inapplicable-to the facts in this case.</p> <p>7. Appellants had no interest in certain lots, and were, in no-event, prejudiced by the confirmation of the report of sale thereof.</p> <p>8. Appellants have not been deprived of their property, without due process of law, in violation of the Fourteenth Amendment, to the Constitution of the United States.</p> <p>AUTHORITIES CITED.</p> <p>1. Appellants were not entitled to an order of satisfaction entered as asked for in their motion. Freeman on Judgments, see. 30; Bondurant v. Apperson, 4 Met., 32; Hanson v. Boyer, 4 Met.» 107; Worthington v. Brooks-Waterfield Co., 20 R., 1432; Harris v. Tuttle, 23 R., 220.</p> <p>2. The payment into court of the sum claimed to be the amount of appellee’s lien claims against appellants’ remainder interests afforded no cause for preventing the sale as made. 24 R., Part 2, pp. 1367-8; Freeman on Judgments, sec. 96; Sibbald v. United Stales, 12 Peters, 492 (37 Co-operative Ed., p. 491); Kelly v. Keizer, 3 A. K. Mar., 268; McClannahan’s Heirs v. Henderson’s. Heirs, 1 T. B. Mon., 261; Phillips v. Phillips, 2 R., 217: Kimbrough v. Harbett, 22 R., 1578; Black on Judgments, sec. 1014; •Long v. Shackelford, 25 Miss., 559.</p> <p>3. The authorities cited by appellant’s counsel are inapplicable to the facts in this case. Black on Judgments, sec. 95; Section 393, Civil Code; B. & O. R. R. Co., v. Yanderwerker, 33 W. Va., 191; Smith v. Miller, 66 Texas, 74; Manlier v. Sine, 47 Neb., 736; Briggs v, Thompson, 20 Johns., 294; Shaw v. Dwight, 27 N. Y., 244; Luddington v. Peck, 2 Conn., 700; Brackett v. Winston, 17 Mass., 158; Armitage v. Wiekliffe, 12 B. M., 496; Chambers and Garvin v. Neal, 13 B. M., 256.</p>

Case 121 — Prosecution against Laurence Gross for Horse Stealing. APPEAL PROM OWEN CIRCUIT COURT — -JOHN M. LASSING, CIRCUIT JUDGE. Defendant Convicted and Appeals. POINTS. Defendant moved the court to set aside the verdict and judgment aforesaid, and in support of said motion filed grounds, -which we summarize and state as follows: 1.

<p>Militia — Expenses—Appropriation—Liability of State Auditor.</p> <p>1. Ky. St. 1903, see. 2705, fixes the amount of compensation to be received by the State militia when called into active service, and declares “the same to he paid out of the treasury” on warrant of the auditor. Section 2672- makes it the duty of the Governor when necessary to order the militia into active service. Sec •tion 2707, adopts the acts of Congress for the Government of the Federal army, so far as applicable to the State. Held, that the expenses of the militia, when called into active service, which exceed the general appropriation of section 2704, are payable out of’the treasury without any special appropriation.</p> <p>2. The State auditor is not liable on his bond for the amount paid for the expenses of the State militia on vouchers signed by persons purporting to be acting as governor and adjutant general, though such persons were wrongfully so acting, if the amount so paid was in fact a just claim against the State.</p> <p>3. Under Ky. St. 1903, sec. 2672, the governor has authority, when he deems it necessary, to order into service the militia of tho State. The acting governor, in his discretion, January 30, 1900, ordered into active service certain regiments of the mil'itia of the State. January 31st, a contestant for the office of governor issued a proclamation ordering such militia to return to their homes-which proclamation was not communicated to the officers in charge of the militia. February 2d, such claimant was declared duly elected by the Legislature. After such qualification, and after the assassination of the person qualifying, the lieutenant governor qualified as governor on February 3. The claims of the militia for compensation while in service and claims for supplies were approved by tbe acting governor who ordered the militia into service. Held, that the expenses of the militia while they remained in active service, and until regularly discharged from duty by tbe order of their superior officer, were valid and just claims against the State.</p>

<p>Taxation — Omitted Property — Auditor's Agents — Statements— Objections — Penalty—Officer Entitled — Statutes—Construction.</p> <p>1. Where a statement filed hy an auditor’s agent against the estate of a decedent to collect unpaid taxes was insufficient, the oh.ieetion could he raised only by motion to make it more definite and certain, and not by demurrer.</p> <p>2. As between an auditor's agent and the sheriff, the one first filing-an information or statement against a decedent’s estate to recover unpaid taxes under Ky. St. 1903, sec. 4241, is entitled to receive the penalty.</p> <p>3. Ky. St. 1903, sec. 4241, provides that it shall be the duty of the •sheriff or.auditor’s agent to list all omitted property for taxation whereupon a proceeding shall be instituted to collect the tax, and, if it be found that the property is liable to assessment, the county court shall certify to the auditor of .public accounts and the sheriff a description of the property, and the amount of the assessment, together with penalty and costs, and that as compensation for his services in causing the property to be assessed the officer filing the statement shall be entitled to the •penalty. Held, that such section applied to all State, county, and district taxes assessed from the list of taxable property returned by the county assessor.</p>

<p>Case 124 — Appeal by Boyd County, from Orders of Appropriations by the Fiscal Court of the County to Jack Arthur and others.</p> <p>APPEAL FROM BOYD CIRCUIT COURT — S. G. KINNER, CIRCUIT JUDGE.</p> <p>Action Dismissed by circuit court and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES FOR APPELLANTS.</p> <p>1. Misjoinder of causes of action.</p> <p>(a) “If causes of action can be joined they must be.” Powell y. Weiler & Co., 11 B. Monroe, p. 186; Newman’s Pleading & Practice, p. 486.</p> <p>(b) “Where a plaintiff refuses to elect which of several causes of action he will prosecute the court should not dismiss, but should strike out the cause improperly joined.” Civil Code, sec. 85; Bonny, &c. v. Reardin, 6 Bush, p. 634; Bale et al v. Crutch-field, &c., 8 Bush, p. 646; Shepard v. Stevens, &c., 8 Bush, p. 603.</p> <p>2. Orders of the fiscal court are not orders of the court merely but the “fiscal court is a legislative board 'invested with power iof making appropriation in the case where the needs of the county require it.” Highbaugh, &c. v. Hardin, 99 Ky., p. 20.</p> <p>3. The petition and amended petition set out grounds sufficient, if true to sustain an injunction against the appellees. South ■Covington, &e. v. Berry, Mayor, 93 Ky., 43; Brown & Co. v. Trustees, Catlettsburg, 11 Bush, 435.</p> <p>1. This court has wisely held that; “The statute was enacted to protect the public, by removing from its agent and representative every possible interest in the character of the public work under his supervision that could conflict with his public duty.”</p> <p>2. “The Legislature recognized the old truth that where the interest of the servant and the servedl came into conflict, the servant can not properly distcriminate between his interest and his duty; hence the temptation is siought to be removed.”</p> <p>3. “The protection is to the public against those who assume, under right of office, to serve it.”</p> <p>4. Any other construction of the law would open wide the door for fraud, and sooner or later prove ruinous to every county in. this grand old Commonwealth.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, secs. 978, 1844, 1845, 4315, 4313, 4444, 4332; Commonwealth v. Pate, 22 R., 1890; County of Jefferson v. Waters, 23 R., 669; Daviess County v. Goodwin, 77 S. W., 185; Pulaski Co. v. Sears, 25 R., 1381.</p> <p>5. There can be no question but what the orders appealed from were separate and distinct from each other, and are not prosecutions of two causes of action that might be joined, and there can be no justification in law or reason in allowing such double proceedings.</p> <p>2. The record discloses no exceptions taken to the orders or resolutions'complained of, except by the county judge, and no appeal except in the name of Boyd county, by this judge.</p> <p>3. Where the county’s interests are involved, the county attorney or some taxpayer are the only ones that can bring up an appeal.</p> <p>4. The county court has no authority over appeals, except to direct the county attorney to prosecute it when properly taken.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, sec. 1838; Peebles v. Chism, 5 Mon., 158; Crittenden v. Shanks, 88 Ky., 475; Com. v. Kimberlin, 8 Bush, 444; Montgomery Co. v. Tipton, &c., 12 R., 847; Barr, &e., v. Stevens, 1 Bibb., 292; Ront v. Montgomery, 3 B. Mon., 300; County of Jefferson v. Waters, 23 R., 669; Com. v. Tiltin, 2 R., 1056.</p>