Volume 119 — Kentucky Reports

<p>Case 1 — Prosecution against the Standard Oil Company fob Retailing Oil Without a License.</p> <p>APPEAL FROM OLDHAM CIRCUIT COURT-R. F. PEAK, CIRCUIT JUDGE.</p> <p>Defendant Convicted and Appeals.</p> <p>(No briefs — record misplaced.)</p>

Case 2 — Action by Julius Berends against the Bellevue Water & Fuel Gaslight Co. for Construction of Water Sut-ply Contract. appeal from camfbell circuit court — A. S. BERRY, circuit judge. Judgment' for Defendant and Plaintiff Appeals. (No brief in the record.) POINTS AND AUTHORITIES. 1. Injunction to prosecute an action will not lie upon the ground that no appeal lies therefrom. High on Injunctions, see. 93; Blair v. McCann, 23 Ky. Law Rep., 1228; Scott v. Tulley, 20 Ky.

<p>Deeds — Acknowledgment—Liability for False Certificate.</p> <p>A purchaser of land receiving a deed, the purported signature and acknowledgment of which hy C., the owner, before W., deputy clerk, were forged hy C.’s husband, can rely on the genuine certificate thereon of the clerk that the deed was acknowledged by C. before the deputy clerk; and the clerk; is liable to him for his loss in paying the purchase price in reliance thereon.</p>

<p>Master and Servant — -Fellow Servants — Applicability of Doctrine —Strangers to Relation — Negligence-—Comparative Negligence — Discovered Peril — Joint Tort Feasors.</p> <p>1. In an action for injuries, a charge to find for plaintiff unless the jury believe that plaintiff, by his negligence, so far contributed to his injury that, but for said negligence, he would not have been injured, is not open to the objection of injecting into the ease the doctrine of comparative negligence.</p> <p>2. It is the duty of the servants of a switch company operating trains in its yards to keep a lookout for car repairers employed by railroad companies, who are permitted by the switch company to repair the cars of their employers in the switch yard.</p> <p>3. Where operatives of a switch train could, by ordinary care, have discovered a signal placed on the track to notify them of the presence of a ear' repairer working under some cars in time to have averted injury to such car repairer, but negligently failed to so discover it, in consequence of which the car repairer was injured, their employer was liable, although the car repairer was negligent in not having placed the signal in a more conspicuous place.</p> <p>4. The doctrine of nonliability of a master for injury to a servant caused by the negligence of a fellow servant is based upon the implied contract of the servant to assume the risk of his fellow servant’s negligence, and does not extend to a stranger to the relation, who in conjunction with a servant injures a fellow servant of the latter, but he is liable like any other joint tort feasor.</p>

<p>Forcible Entry and Detainer — Traverse Bond — defenses—Title— Damages — Rents and Profits — Appeal—Jurisdiction—Amount Involved.</p> <p>1. Since a forcible entry and detainer proceedings as authorized by Civ. Code Prac., sec. 452, subsec. 2, in case of an entry without the consent of the person having actual .possession, does not involve the title to the land in dispute, it was no defense to a traverse bond executed by the defendant in such proceeding that the plaintiff had no title to the property.</p> <p>2. Civ Code Prac., sec. 464, provides that if the traverser in forcible entry and1 detainer fail to prosecute his traverse1 with effect, he and his surety on his bond' shall he liable for damages for withholding the possession, as well as reasonable expenses of the1 traversee. Held, that, in an. action on such bond, the traverser was liable for1 the reasonable value of the rents and profits of the land illegally detained.</p> <p>?>. Where only $100 damages was demanded in a suit on a traverse bond filed in forcible entry and detainer proceedings, the amount was insufficient to confer jurisdiction of an appeal on the court of appeals.</p>

<p>Case 6 — Action by G. M. Williams Against the Maysville Telephone Co. foe a Mandamus to Compel said Company to Put a Telephone in Plaintiff’s House.</p> <p>APPEAL FROM MASON CIRCUIT COURT-JAS. P. HARBESON, CIRCUIT •TUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>1. We -submit that under sec. 199, of the Constitution, telephone companies are recognized as common carriers, and in dependent of the Constitution, they owe to the public the duties of a common carrier according to the principles of the common law.</p> <p>2. Telephone companies are affected witli the public interest and are; bound to serve impartially and without unjust discrimination all who apply for their service, and offer compliance with their reasonable regulations.</p> <p>3. A remedy by mandamus is the appropriate one, and the duty is of a public character, and there is no other adequate mode o£ relief.</p> <p>- POINTS AND AUTHORITIES.</p> <p>MANDAMUS.</p> <p>1. In the remedy of mandamus the petition must clearly show that plaintiff has a clear legal right to have the act done. Merrill on Mandamus, secs. 56, 57; Atchison v. Lucas, 83 Ky., 460; Lowe v. Phelps, 14 B., 645.</p> <p>2. A telephone company has a right to make reasonable rules and regulations. And the fixing of rates is a legislative, not a judicial matter, and a court will not by mandamus fix the rates. Joyce on Electric Law, secs. 521, 680, 730; Louisville Gas Co. v. Dulaney, 100 Ky., 408; Nebraska Tel. Co. v. Yeiser, 55 Nebraska, 627 (45 L. R. A., 113); Bayles v. Kansas Pacific R. Go., 5 L. R. A., 482; Hewlett v. W. Ü. Tel. Co., 28 Fed. Rep., 183.</p>

Case 7 — Action by John Hunt against F. M. Hunt for Construction of a Deed. appeal from pike circuit court-A. J. KIRK, CIRCUIT judge. From a Judgment Dismissing, Plaintiff's Petition, He Appeals — (No brief in the record for appellant.) 1. This is a case where a father made a deed to his son, reserving to himself a life estate, and now since a second marriage desires to have the deed construed to be a will. 2.

Case 8 — Action by A. B. Asher, &c. against G. A. Brewer, for the Collection of a Note, in which Appellant Reuben Maggard Intervened. APPEAL FROM LESLIE CIRCUIT COURT — H.’ C. FAULKNER, circuit judge. Judgment for Plaintiff and Defendant, Maggard Appeals. The facts from which appellant’s lien arises is set out in his intervening petition, .and not denied.

<p>Appeal — Bonds—Conditions—Defective Bond — (Substitution of Sufficient Bond — Statutes — Elections — Contests — Evidence— Mutilated Ballots — Presumptions.</p> <p>1 An appeal bond in an election contest, conditioned that appellant will perform the judgment, if affirmed, does not make the surety responsible for anything more than the surrender of the office if the judgment is affirmed.</p> <p>2. Under Ky. St. 1903, sec. 1596, subsec. 12, providing that either party to an election contest may appeal to the court of appeals, by giving bond “conditioned for the, payment of all costs and. damages the other party may sustain by reason of the appeal,” and further providing that, on the production of the copy of a final judgment, the successful party shall be permitted to qualify or be commissioned, or -a writ of new election shall be issued, and that the unsuccessful party shall pay all costs, the bond operates as a supersedeas, so that the appellee can not qualify or, be commissioned until, the appeal is determined, and the damages he sustains consist in his being kept out of his office during the pendency of the appeal; and a bond covenanting that the appellant will pay the damages that may be adjudged against him on the appeal, and that he will satisfy and perform the judgment in the event o-f its affirmance, is not a bond conditioned to pay the damages which appellee sustains within the meaning of the statute, and he is, hence, defective.</p> <p>3. Civ. Code Prac., see. 682, authorizing the execution of a sufficient bond in case a bond “provided for by this Code” be adjudged to be defective; section 683, providing that an officer whose duty it is to take a surety “in any bond provided for by this Code” may require an affidavit of qualification; and section 684, providing the qualifications of sureties “in every bond provided for by this Code” — all apply to bonds provided for in the Civil Code of Practice, and have no application to an appeal bond given in an election contest pursuant to the provisions of Ky. St. 1903, sec. 1596, subsec. 12.</p> <p>4. A re-enactment of an old1 statute-is simply a continuance of the old rule.</p> <p>5. Act Feb. 12, 1828 (1 Morehead & B. Ky. St., p. 137), regulating appeals and appeal bonds, and providing for the substitution of sufficient bonds in case the bond given be declared defective, is not repealed by Civ. Code Prac., sec. 682, which makes a similar provision for bonds “provided for by this Code,” nor by the Code of 1877, which contains the same provision as the Code of 1851, but is still in force as to bonds not provided for by Civil-Code of Practice, and hence authorizes the substitution, of a sufficient appeal bond in an election contest, where the bond given does not comply with the requirements of Ky. St. 1903, sec. 1596, subsec. 12.</p> <p>6. Civ. Code Prac., sec. 134, providing that the court may at any time permit a pleading or mistake in any other respect to be amended authorizes the substitution of a sufficient appeal bond in an election contest, where the appeal bond given failed to comply with Ky. St. 1903, sec. 1596, subsee. 12.</p> <p>7. In an election contest the court may receive evidence that the ballots have been tampered with since they left the hands of the election officers, and summarily determine- the question, although the time for taking evidence in the case has passed.</p> <p>8. A' certificate of the officers of election is yrlma facie correct, and the presumption of the -proper discharge of official duty in. counting ballots is not overthrown where the ballots have been tampered with after being deposited in the ballot box.</p>

<p>Executors and Administrators — Real Estate — Sale to Pay Debts— Vacation — Grants—Inadequacy of Price — Sale of Equity of Redemption — Rents and Profits — Liability of Purchaser— Receivers.</p> <p>1. Mere inadequacy of price is insufficient to justify the vacation of a sale of decedent’s real estate ordered to pay debts.</p> <p>2. After a sale of decedent’s real estate to ,pay debts has been confirmed, the court is without power to set the same aside, except on one of the grounds provided by Civ. Code Prac., sec. 518, for the vacation or modification of a judgment after1 the expiration of the term.</p> <p>3. A sale .of a decedent’s real, estate to pay debts in an action for the settlement of the estate, was not invalidated by reason of the fact that a party claiming to he a creditor was not made a party to the proceedings, where he failed to establish his claim.</p> <p>4. Where the equity of redemption in a decedent’s real estate which had been sold to pay a mortgage thereon, and other debts of a decedent for a sum only sufficient to pay the mortgage, was-ordered sold to pay debts, the failure 'lo sell the same did not prevent the termination of the statutory right to redeem at the expiration of the year from the date of sale of the property.</p> <p>5. Where a purchaser of a decedent’s real estate sold to pay a mortgage and other debts took possession before the expiration of the time for redemption from the mortgage- sale, he became liable for rents to the deceased owner’s spouse and heirs at law, and not to the estate, since such rents and profits were not assets.</p> <p>C. Owners of a decedent’s real estate sold for the payment of a mortgage and other debts are entitled to possession until a receiver is appointed- or the period of redemption as to the mortgage sale has expired.</p>

<p>Taxation — Property Taxes — Franchise Taxes — License Taxes— Statutes — Construction.</p> <p>1. Under Const., secs. 171, 172, 174, requiring taxes to be uniform and property to be assessed at its fair cash value, and-taxed in proportion to that value, Ky. St., sec. 4224, imposing a tax of $10 on oil depots wherein petroleum or other pite are stored in hulk or tank, can not be upheld as1 234a valid! property tax.</p> <p>2. Ky. St., see. 4077, requiring certain enumerated corporations, such as railroads, hanks, express companies, turnpike companies, etc., and every other corporation having or- exercising any special or exclusive privileges or franchise not allowed to natural persons, to pay an annual tax on its franchise does not include in its requirements mere trading corporations. ':</p> <p>3. Prohibitory license taxes are permissible only in ease of such pursuits or indulgences as in their general effect are believed to. he more harmful than beneficial to society, and which the public interest requires to have ended.</p> <p>4. Under the constitutional provisions requiring uniformity 'of taxation, and the provision of the Bill of Rights relative to’the acquisition and protection of property, Ky. St., see. 4224, imposing a tax of $10 on each oil depot in the State, can not he upheld as a license tax if the subject of the license is construed to be-the oil depot or building.</p> <p>5. In construing statutes, the courts will never adopt a construction that makes them violate the Constitution, ifl any. other is susceptible from their words.</p> <p>6. When the possession or the use or vending of a particular kind of property is dangerous or deleterious to thei health or safety of the community, such possession, use, or vending may be regulated by the State under the exercise of its police power, and inflammable oils kept in large quantities are within the class of property the possession or disposition of which may be so regulated.</p> <p>7. Ky. St., sec. 4224, imposing á tax of $10 on each oil depot in the •State wherein petroleum or other' oils are stored, in bulk or tank, is to be construed as a police regulation, licensing the storing of oils in bulk or tank, the tax imposed being an incident of the regulation.</p> <p>8. Any warehouse or place where oils are stored in large quantity is a depot within the meaning of Ky. St., sec. 4224, imposing a tax on oil depots wherein petroleum or other oils are stored inbuilt or tank.</p> <p>9. Under Ky St., sec. 460, requiring words and phrases to be construed according to the .common and approved usage of language and technical words according to their technical mean- • ing, the words “in bulk or tank,” found in Ky. St., see. 4224, imposing a tax on oil depots- wherein oils are stored in- bulk or tank, are to be construed as referring to oil stored' in large oil tanks, holding hundreds or thousands of barrels of oil, which are in common use, and not to oil stored in barrels in warehouses or sheds.</p>

<p>Adverse Possession by Life Tenant — Limitation of Actions — Renunciation of Trust — Constructive Notice.</p> <p>1. Where testatrix, who devised land for life, with remainder . over, died before acquiring the legal title to the land, and the life tenant afterwards obtained such title, his possession there-1 under was a renunciation of his holding as life tenant, -and hence adverse to the remaindermen.</p> <p>2. A will gave testatrix’s land to her son for life, and provided that if the son should die without issue the land should go- to the State, to he held in trust for a specified purpose. Testatrix died before acquiring the legal title to the land, and that title was afterward acquired by the son. Held, that the recording of the deed to the son was constructive notice to the State, as remainderman, of the son’s renunciation of the trust created by testatrix’s will.</p> <p>3. Testatrix, after devising land to her son for life-, with remainder, if he should die without heirs, to the State in trust, died before acquiring the legal title to the land. The son afterwards acquired such title and held thereunder during his life. Held, that the son, on acquiring the legal title, became a constructive trustee, and the statute of limitations began at once to run- in his favor, and against the State as beneficiary.</p>

Case 13 — Action by E. A. Green against Wm. P. Green’s Executor to Recover for Work Done for Decedent appeal from grant circuit court — JOHN M. LASSING, circuit JUDGE. From the Judgment both Parties Appeal. 1. We submit that all the statements made hy the plaintiff in support of his claim for services rendered for the decedent are incompetent. 2. There ts no evidence that the' deceased ever agreed or. promised to pay for the plaintiff’s services. 3.

<p>Case 14 — Action by Patrick J. Collopy and Others Against Thomas Gilchrist and .Others por an Injunction to Prevent the Defendants from acting as Directors of a Corporation.</p> <p>APPEAL FROM KENTON CIRCUIT COURT — WM. MUD. S'HAW, CIRCUIT JUDGE.</p> <p>Judgment for Plaintiffs and Defendants Appeal.</p> <p>We maintain that appellees do not state a cause of action against appellants:</p> <p>1. Because therq was no meeting of the stockholders and therefore no election of directors.</p> <p>(a) The petition shows that all the stock in the bridge company is owned in equal amounts hy the cities of Covington and Newport.</p> <p>(b) Therefore it is clear that there were two stockholders only.</p> <p>(c) Charter • provides that- the- stockholders;;.¡shfill. annually elect five directors., ,i!</p> <p>• (d) Therefore one of the stockholders could not;in the,-absence of the other-elect.thr.ee directors.</p> <p>2. The action for injunction is not .the remedy,1 we insist that an officer can not be removed by injunction, that his title to the office must be tried out. Civil Code, secs.,.480, .483; B¡oyd y. Chambers, 78 Ky., 140; Toney v. Harris, 85 Ky., 453; Tillman v. Otter, 93 . Ky,, 600; Collopy v. Cloherty,,.95.;^,,..£3,0;-,-Stei-n v. Berry, 96 Ky., 63; Patterson v. Miller, 2 Met., 49'3; Tupper v. Dart, 104 Ga., 179; Cosart v. Fleming, 123 NV C.',1;547;' Marshall v Board of Managers, 111. State Reformatory,¡¡1-Q3 111. App¡-,¡¡65; Deenar v. Boyne, 103 111-. App., 489. . ,, , '</p> <p>3. Appellees can not obtain any relief ’ in this action by a general prayer for proper relief. Meak vJ McCall',1 80’-Ky.'; 371; Graves v. Walker, 4 R., 452; Martin v. McKinney,.-4 Itep., 452.</p> <p>4. There must be some property right involyed to entitle a person to a summary remedy by injunction, and'this is never the case where the question merely of title to ¡offifek1' i&n’at; ¡-issue. Clark v. Wallace, 20 R., 154; Schmidt ,v. Lodge,.j^.c,, ,84 I£y., 490; Huston v. Reutlinger, 91 Ky., 338; Hitter v. Geo. R. Cath, &c., 4 R., 972; L.& N-. R. R. Co. v. McVeen, 17 R.,’ f¿&3.' ’ r</p> <p>CLASSIFICATION OF QUESTIONS' DISCUSSED;: WITH AUTHORITIES. . . ..</p> <p>1. An appeal of a moot case will not be entertained. . John- , son, Mayor v. Smith, 24 Ky. Law Rep., 883; Bartmeyer v. Iowa, 18 Wall., .129. '</p> <p>2. It is not essential to the validity of an election at- a ¡stockholder’s meeting that a majority of the stock be represented. Morawetz on Corporations (2d. Ed.), see. 476; Cook on Corporations (4th Ed.), secs. 607, 608; Kent’s Commentaríés,' sec. 293. ■ . ¡.¡i'i ..</p> <p>3. Intermeddlers in the affairs- of a private corporation may be enjoined, in a proper case, even though they claim to be de facto officers — the rule of public policy to the contrary applying to public officers only. Morawetz on Corporations; (2d. E'd.), sees. 640, 543a.</p> <p>4. Where suit'is brought erroneously on the" eijuity side of the court, advantage of this error can be .taken only by a motion to transfer. Code See. 8; Turner v. Newman, 19 Ky. .Law Rep., 231; Greenup Co. v. R. R. Co., 88 Ky., ¿59; Frazer v. Naylor, 1 Met., 593-;- Foster v. Watson, 16 B. Moh., 3711' ‘ :</p> <p>5. It is the. general rule, prevalent in all the Code States, that ■plaintiff shall have all the relief to which his allegations entitle him, whether legal or equitable, or both, notwithstanding that he prays for one kind of relief only. Getty v. R. R. Co., 6 How. Pr., 269; Ice Co. v. Ins. Co., 23 N. Y., 357.</p>

<p>Commissioner — Allowance—Proof of Time Engaged.</p> <p>The affidavit by a commissioner, under Ky. St., sec. 396, declaring that no allowance shall be made to a commissioner to whom a cause has been referred until he has filed a statement under oath of the number of days he has acted, is sufficient, if not rebutted, to prove the number of days he has acted, so as to entille him to the compensation o'f $3 per- day, as fixed by section 1740.</p>

<p>Carkiep.s — Contract Dim iting Liability — Effect—Construction— What Law Governs — Limitation.</p> <p>1. An agreement in a contract of shipment that no suit for damages should be brought, unless commenced within six months after the loss, is in effect an attempt to vary' the statute of limitations,. and against public policy and unenforceable.</p> <p>2. Limitation is governed by tbe law of the forum, and the courts of this State will not, as a matter of comity, enforce a contract made in another State, fixing the time within which a suit arising • out of such contract shall be brought.</p> <p>3. Where three dogs, securely crated, were delivered to a carrier, and only two remained in the crate when it was delivered at its destination, and no account was given by the carrier of the missing dog, negligence upon the part of the carrier will be presumed.</p> <p>4. Where a contract for the carriage of a dog, mads in Ohio, limiting the carrier’s common law liability, would have been invalid in Kentucky, under Const., sec. 196, forbidding carriers to contract away their common-law liability, the carrier should show; in order to protect itself under such contract, not only that the ■ contract was valid under the law of Ohio, but that the loss of the dog, constituting the nonperformance of the contract, also occurred there.</p> <p>5. Under Const., sec. 196, forbidding common carriers to contract away their common-law liability, a contract providing for the release and discharge of a carrier from all liability for the loss of dogs, unless caused by the negligence .of the agents or employes of the carrier, and restricting the carrier’s liability to $2'5 on account of the loss of any of the dogs, is invalid.</p>

<p>Covenants — 'Warranty of Title — Eviction by Paramount Title— Petition^ — 'Sufficiency—Notice of Action Resulting in Eviction — Measure of Da mages — Witnesses—-Competency—Transactions with Deceased Person.</p> <p>1. In an action for breach of warranty of title, allegations that, in a suit against plaintiff, it had been determined that’ defendants' did not, at the time of their conveyance to plaintiff, own the interest which they conveyed, and that plaintiff was thus evicted from a part of the land, were sufficient to ¿how that the eviction was by paramount title.</p> <p>2. In an action for breach of warranty of title, evidence that defendants were parties to the action in which plaintiff was evicted, together with a certified copy of the cross-petition filed against the present defendants in the former case, a letter as to' tho management of the defense from an attorney representing them, and an execution issued against defendants on affirmance of the former case on appeal, sufficiently showed that defendants had notice of the action in which plaintiff was evicted, and were liable for costs and attorney’s fees therein-.</p> <p>3. In an action for’ breach of warranty of title to land for which plaintiff exchanged city lots, defendant was not prejudiced by the adoption of the value of the lots as the measure of damages, there being no evidence as to the cash value of the land.</p> <p>4. Civil Code Practice, see. 606, providing that no1 person shall testify for himself concerning any verbal statement of, or transaction with or act done or omitted by, a person who is dead w/hen the testimony is offered, does not prevent plaintiff in an action against a decedent’s representatives from testifying in his own behalf, if his testimony relates to none of the matters mentioned.</p> <p>o. Where an action is brought for breach of warranty of title by eviction under paramount title, and not for deficiency in the estimated acreage, the right of action accrues at the time of eviction, though the tract conveyed did not contain as many acres as estimated.</p>

<p>Ferries — Maintenance by Railroad — Lease to Nonresidents — Liability for Injuries — Pleading—Presumptions,</p> <p>1. Session Acts 1853-54, vol. 1, p. 358, c. 178, authorized a certain railroad to acquire ferry franchises, and to use the same in the , same manner and under the same legal restrictions as apply to individual holders of ferry franchises. Kentucky Statutes 1903, sec. 1808, provides that a sale or lease of a ferry franchise must be with leave of the county court, and that a nonresident owner of a ferry right shall sell the same to a resident citizen, of the .State within a year after the accrual of his rights, subject to a, revocation of his grant upon his failure so to do. Held, that the railroad could not lease a ferry franchise acquired by it to a foreign railroad corporation, and, where it attempted to do so, was liable for injuries received by a passenger on a ferryboat, in the same manner as if the lease had not been made.</p> <p>2. A railroad was authorized by Sess. Acts 1853-54, vol. 1, p. 358, e. 178, to. acquire ferry franchises, and to use the same under the same restrictions as apply to individual' holders of such franchises. Kentucky Statutes 1903, sec. 1808, requires a sale' and lease of a ferry franchise to be made with leave of the county cipurt, and requires nonresident owners of such franchises to sell the same to. resident citizens within a year after the accrual of their rights. In an action against the railroad for injuries to a passenger on its ferry, a foreign railroad corporation, to which the lines of the first mentioned road were leased, and a person who was acting as trustee for both roads in the management of the ferry, were made defendants. The petition alleged that all three defendants operated the ferry, but contained no allegation that any lease to the foreign corporation had ever been ratified by the county court. Held, that it would be presumed that the foreign railroad corporation was operating the ferry under the authority granted to the railroad first mentioned.</p> <p>8. Acts 1865-66, p. 664, c. 755, authorizing a certain railroad company to make contracts with individuals, corporations, and other' railroads for the building, completion, and operation of its road, did not authorize such railroad to divest itself of its franchises and exempt itself from any liability attaching to it by a lease to a foreign railroad corporation.</p>

<p>Case 19 — Action by the City or Clinton against J. L. Franklin-to Enforce a Lien A.gainst Defendant’s House and Lot for the Cost of Constructing a Plank Sidewalk in Front of His Property.</p> <p>APPEAL FROM IIICKMAN CIRCUIT COURT-R. J. BUGG,1 ■ CIRCUIT JUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>1. Our contention is that a city of the fifth class is entitled to recover the cost of a sidewalk built in front of the owner’s property from the owner after giving him an opportunity to build' it and he fails to do. Ky. Stat, sec. 3643; Porter v. City of Clinton, 24 R., 2455 (74 S. W., 232).</p> <p>2. In an equitable action it is the duty of the chancellor to do equity between the parties, and when there' is relief demanded and a right to relief shown it is the duty of the chancellor to determine what equity is and see that equity is done</p> <p>1. We admit the authority of the city to have erected this sidewalk on the street in front of appellee’s lot and to make him pay for it, but we deny the right of the city to place a sidewalk on appellee’s lot, leaving a strip of appellee’s land between the sidewalk as constructed and the street, which was! done in this case, as shown by the evidence.</p>

Case 20 — Action by Roy Crabtree Against John T. Dawson fop. Assault and Battery. APPEAL FROM DAVIESS CIRCUIT COURT-T. F. BIRKHEAD, CIRCUIT JUDGE. ' , Judgment forVplaintifjv'aniT IMÍendppeals. 1,The verdict of the jury was not sustained by the evidence, and was contrary to law, and it should have been for appellant.

Case 21 — Action by Santford C. Lyne and Others Against the Washington Life Insurance Co. for a Paid-up Policy. APPEAL-:FROM FAYETTE CIRCUIT COURT-WATTS. PARKER, CIRCUIT JUDGE. Judgment fop. Plaintiffs and Defendant Appeals. 1. We submit that under the terms of the contract of insurance Mrs. Lyne and her children are now, and always were, the only parties who could have sued on this contract.

Case- 22 — Action by Eastern Kentucky Timber and Lumber Co. Against E. C. Chenault and Others to Quiet Title to Land — APPEAL FROM POWELL CIRCUIT COURT-J. M. BENTON, CIRCUIT JUDGE. Judgment for Pi. untiff and Defendants Appeal. • 1.

<p>Case 23 — Action by J. T. Ramsey, &c. Against the City of Siifxbyviixe, &c. to Test the Validity of an Ordinance Levying a Tax foe Maintaining a Public Library.</p> <p>APPEAL FROM SIIELBY CIRCUIT COURT, R. F. PEAK, CIRCUIT JUDGE.</p> <p>Judgment for Defendants and Plaintiffs Appeal.</p> <p>1. We insist that section 3490, subsection 22, does not authorize a city of the fourth class to levy a tax in aid of a puhlio library; the language is; “To establish, maintain and regulate a local public library and raise subscriptions, donations and gifts thereto.” But if the power claimed by the city of Shelbyville is granted in the statute above quoted, we insist that the statute itself, if so construed, is without constitutional authority.</p> <p>2. Section 187 of the Constitution provides that in “distributing the school fund no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained.” ¥e repeat that if a tax can be imposed lor a public library, it must be because it is authorized by that parti of our Constitution relating to education, 'and the section just quoted (187) makes it imperative tha.t in our educationál system the two races, white and colored, must be kept distinct and provided for separately. No such provision is found in this statute.</p> <p>2. To sum up, by no fair construction of this statute can it be said that it, either expressly or impliedly, grants the power to tax; if it does grant such power, then the Legislature exceeded its constitutional authority.</p> <p>1. Residents and taxpayers! of a city have a right to invoke the power of the chancellor to prevent an illegal disposition of the resources of the city and to resfrain officials of the city from proceeding to enforce an illegal ordinance. Roberts v. City of Louisville, &c., 92 Ky., 97; Keith v. Johnson, &e., 109 Ky., 421; Ludlow, &e., Coal Co. v. City of Ludlow, 19 Ky. Law Rep., 1382; Adams v. Brenan, 42 L. R. A., 720; Mauldin v. Greenville, 8 L. R. A., 293.</p> <p>2. The effort to escape a decision upon the merits of this controversy by the allegation that the city had not proceeded to enforce the ordinance and had not and would not collect the tax will not avail. The illegal ordinance has been passed and is recorded on- the books of the city. It has not been repealed, and no allegation or proof that the city council intend to repeal it. Roberts, &c. v. City of Louisville, 92 Ky., 108.</p> <p>3. The ordinance attacked in the case at bar is so confused and contradictory in its terms that it is difficult to< determine whether it takes effect from its; passage or at a future date, but at all events it does attempt to create a binding obligation upon the part of the city for a longer period than twenty years, and if valid it is a contract with reference to a privilege expressly prohibited by the Constitution. City of ..Somerset v. Smith, 105 Ky., 681; Insurance Co. v. Darenkamp, 23 Ky. Law Rep., 2251.</p> <p>4. The amount of debt which a city of the fourth class can contract is ascertained by multiplying the amount of the'' debt by the number of years for which this debt -is to be paid. City of Shelbyville v. Shelbyville Water and Light Co., 16 Ky. Law Rep.,, 176; City of Richmond v. Powell, 16 Ky. Law Rep., 174; Board v. City of Hopkinsville, 15 Ky. Law Rep., 756; Constitution, sees. 157, 15S, 164; O’Bryan v. City of Owensboro, 24 Ky. Lajv Rep., 645.'</p> <p>5, 5i[e say further that the ordinance now in dispute is in violation'oí section 157 of the Constitution.</p> <p>6. Furthermore, appellants insist that there is no. authority in the charter of cities of the fourth class authorizing the passage of this ordinance. The maintenance of a public library is not one of the ordinary expenses incident to the maintenance of a city government.</p> <p>1. The city of Shelbyville has not contracted any indebtedness to or with anybody. It has not contracted that it would pay to Andrew Carnegie one cent, nor to any agent of Andrew Carnegie one cent. It has not contracted that it would pay to its board of directors one cent for any certain time, or any definite time; it has only provided that it will support one of its own institutions and departments with a specified sum as long as that institution or department is in existence, and no longer. It is no more an indebtedness1 than its annual appropriations to its fire department is an indebtedness, or its annual appropriations to. its police department is an indebtedness, or its annual appropriations to its poor house, work house, station- house and pest house is an indebtedness.</p> <p>2. This record shows that the building that is now being completed is on a lot belonging to the city of Shelbyville, and that the city of Shelbyville has not parted with the title thereto, but still maintains the control thereof through its council.</p> <p>4. There is no real issue before the court. Counsel for plaintiff is wanting the court to decide the rights of their client unde'r an ordinance that no one has ever yet undertaken to enforce. They are wanting the court to adjudge a tax illegal and invalid that has. never been levied, and the allegations of the answer and proof show never will be levied. They are asking the court to decide that a tax is burdensome, or beyond a certain limit, when the uncontradicted1 proof shows that the city in the exercise of its. legal functions' and powers- has for years been appropriating five hundred dollars a year toward the maintenance of this department of its government, and has been regulating and controlling it.</p> <p>5. Now the question and the only question in this ease is, is this provision on the part of the city of Shelbyville to support and maintain one of its departments, such an indebtedness as is contemplated by section 157 of the Constitution. Upon that subject the Kentucky authorities are barren and, of no assistance except by way of analogy.</p> <p>6. There is no money contracted to be paid to anybody; the city of Shelbyville under the ordinance under consideration does not propose to sell a bond; it has not contracted with anybody to render it any service; it has not contracted to pay anybody anything; it has only resolved through .its board of council, that it will maintain a certain department of its city government, and will pay to itself or its agent so much money for its maintenance.</p> <p>AUTHORITIES CITED..</p> <p>Kentucky Statutes, sec.-3490, subsee. 22;. Acts 1902, p. 147; Constitution, sec. 157; City of Ashland v. Culbertson, 103 Ky., 164; Combs v. Letcher County, 21 R., 1057; Black’s Law Dictionary; Amer. & Eng. Ency. of Law, vol. 10, p. 399; Grant v. Davenport, 36 Iowa, 395; State v. Atlantic City, 9 Atl. Rep., 765; Smith’s Commentaries on the Modern Law of 'Municipal Corporations, sec. 866.</p>

Case 24 — Action by Henry Hyden Against S'. V. Perkins, &c., to Enforce a Contract for the Purchase of Land.. APPEAL FROM PULASKI CIRCUIT COURT-M. L. JARVIS,- CIRCUIT JUDGE. Judgment fob Defendants and Plaintiff Appeals. The ruling of the court below was based on the idea that the instrument executed by Perkins did not give a sufficient description of the land to take the contract out of the statute of frauds, and that is the single question here for review. 1.

<p>Case" 25’ — Proceeding by the Commonwealth by Auditor's Agent to Collect from the Cincinnati, N. O. & T. P. Ry. Co. a Tax on .Its Capital Stock.</p> <p>Appeal from franklin circuit court — JAMBS B. CANTRILL, circuit JUDGE. .</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. This suit was instituted in February, 1903, prior to modification of the opinion in Davis’ Admr. v. C. & 0. Ry. Co., in July, 1903, and counsel for Commonwealth misapprehended proper effect of section 841, Kentucky Statutes. Davis’ Adrar, v. Commonwealth, 24 Ky. Law Rep., 1125, and same case, 25, Ky. Law Rep., 342.</p> <p>2. It was never the intention of the Legislature that sectioin 4225, Kentucky Statutes, should be applied to foreign railroad companies (already doing business in Kentucky), that filed their articles of incorporation in the office of Secretary of State .under section 841, Kentucky Statutes.</p> <p>(a) Because section 841 was not in existence when section 4225 was enacted'.</p> <p>(b) Because the contemporaneous construction of section 4225 for a period of ten years — through three State administrations in Kentucky — has been that said Act did not apply to the •foreign corporations domesticated under section 841. Mobile & Ohio R. .R. Co. v. Commonwealth, 23 Ky. Law Rep., 784.</p> <p>(e] Because of the position of section 4225 in the revenue law •of the State — its context and title — showing.it only applied to corporations originally incorporated in this State.</p> <p>(d) Because the application of section 4225 to appellani would be unreasonable and unjust. Sutherland on Stat. Con., see. 152.</p> <p>(e) Because such companies as already had their railroads ■constructed through Kentucky, and operating same, acquired no new or additional right, or the right of eminent domain, by complying with section 841.</p> <p>3. If section 4225 be construed to apply to foreign railroad companies like appellant,. it would be void because a tax on interstate commerce and repugnant to Federal Constitution. Commonwealth v. Smith, .92 Ky., 38; Norfolk & Western R. R. Co. v. Pa., 136 U. S., 114; Crutcher v. Kentucky, 141 U. S., 58; ' Leioup v. Mobile, 127 U. S’„ 640; McCall v. California, 136 U. S., 104; Lyng v. Michigan, 135 II. S., 161.</p> <p>4. Whenever one construction renders a statute unconstitutional, and another construction makes it valid, the courts will adopt the construction which makes the act valid. Waller v. Martin, 17 B. M., 190; State v. W. U. Tel. Co., 73 Maine] 518.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An incorporation of a foreign corporation under section 841, Kentucky Statutes, is an incorporation within the meaning of section 4226, and the tax there called for must be paid. Constitution, secs. 202, 190, 211; Ky. Stat., secs. 841, 4226; Railroad v. MicDonald, 109 Ky., 418; Davis v. Railroad, 25 Rep., 343; Com. v. Railroad, 23 Rep., 784; Minnesota v. Railroad, 43 Minn., 17; 44 N. W., 1033; State v. Railroad, 2 L. R. A., 564; Ashley v. Ryan, 49 Ohio St., 504, 31 N. E., 721, 153 U. S., 435; People v. Cook, 47 Hun., 467; 110 N. Y., 443; 148 U. S„ 397; Taylor v. Railroad, 89 Fed., 119.</p> <p>2. The incorporation tax required by section 4226 is imposed upon the incorporation of a company, and not upon making it a citizen of Kentucky, for jurisdictional purposes. There is a decided distinction between the incorporation of a 'company and its citizenship. Railroad v. J'ames, 161 U. S., 562; Louisville Trust Company v. Railroad, 174 XJ. S., 565; S. C.,"75 Fed., .433; Davis v. Railroad, 25 Rep., 343; Taylor v. Railroad, 89 Fed., 119.</p> <p>3. The doctrine of contemporaneous construction has no application where there is merely a failure of a public official to act. Railroad v, Coulter, 24 Rep., 203; Coulter v. Bridge Company, 24 Rep., 809, Louisville v. Railway, 23 Rep., 390; Fairbank v. United States, 181 U. S., 283; Insurance Company v. Fricke, 68 N. XV, 95?; 74 N. XV., 372; 41 L. R. A., 557.</p> <p>4. The payment of an incorporation tax by a foreign corporation incorporated under section 841, Kentucky Statutes, is not an infraction of the commerce clause or the fourteenth amend-ment of the Federal Constitution. Commonwealth v. Railroad, 23 Rep., 788; Ashley v. Ryan, 153 U. S., 435; New York v. Cook, 148 U. S., 397; Diamond Glue Company v. United States Glue Company, 187 U. S., 611; Railroad v. Indiana, 51 N. E., 924; Commonwealth v. Parlin Company, 26 Rep., 58.</p> <p>POINTS.</p> <p>. 1. By filing copies of its articles of incorporation in the offices of Secretary of State .and railroad commission, which is author- .- ized .by section 765, Kentucky Statutes, and by section 841, Kentucky Statutes, in identical terms, appellant became liable ito pay an incorporation tax under section 4226.</p> <p>: .2. .A re-incorporation is an organization by the authority of and under the laws of this State, so as to render such reorganized corporation. liable to pay an incorporation tax under section. 4226. Commonwealth, by, &c. v. Licking Valley Building Assn., decided October, 1904.</p>

<p>Taxation — Exemptions—Church Property — Charities—Shares of ■' Stock — Recovery of Back Taxes — Limitations.</p> <p>1.Constitution, section 5, prohibits the giving of a preference to ¿ny religious sect or ecclesiastical system, and provides that no person shall he compelled to attend worship, contribute to the erection of a place of worship, or to the salary of a minister of religion, and that the civil rights of no person shall he in any way diminished or enlarged on account of his belief or disbelief ■ .of any religious teaching. Section. 189 provides that no portion of any fund that may he raised for educational, purposes shall he appropriated to any sectarian school. Section 170 exempts ■ from taxation places actually used for religious worship, with the. grounds attached thereto’, and parsonages or residences owned by any religious society and occupied as a home by its minister. HeUd, that a trust fund devoted to the propagation of the principles of primitive Christianity, as taught by the Christian church ■by means of the employment of an' evangelist- and' otherwise, is not exempt from taxation on the ground that it is church prop- ' erty.</p> <p>2. A trust fund devoted to the propagation of the principles of .primitive Christianity,' as1 taught by the Christian' church, ' '‘is not a “purely public charity,” within the meaning of Constitution,' sec. 170, exempting such charities from taxation-.</p> <p>3. Under .Kentucky Statutes 1903, sec. 4088, exempting the individual stockholders of a corporation, from taxes on, their stock where the corporation is required to pay taxes upon the corporate franchise, a trust fund' invested in the stocks of corporations which have paid the tax required by law can not he taxed again in a proceeding to recover hack taxes.</p> <p>4. In proceedings to recover hack taxes, the property sought to he reached can only he assessed for the five years next preceding the institution of the action.</p>

<p>Highways — Erection of Gates — Removal—Powers of County Court —Evidence—Compensation.</p> <p>i The power of the.- county. courts to abolish 'gates erected across a road under Kentucky Statutes. 1903, section 4297, authorizing such action after ten days’ notice to the occupant of the ' . premises, is limited to cases in which the gates were originally erected by permission of the county court under the provisions • of said section and section 4289., .providing for applications for the privilege of erecting gates across .roads, v.n.-'.</p> <p>2. In proceedings to abolish gates, erected across- a--' roadmmdcr •Kentucky Statutes 1908, section. 4297, authorizing such action on - the part of the county court, as to gates erected by its permission, uncontradicted evidence that the gates1 were erected when the road was established and had been, maintained for thirty years or more without objection, created a strong presumption that when the road was established the landowner granted- the right of way upon tbe condition that he was to he permitted to erect and. maintain the gates.</p> <p>3. In proceedings under Kentucky Statutes 1903, section 4297, authorizing the county court to abolish gates erected across a road by its permission, the best evidence of an agreement .between the viewers who laid out the road and the landowner that the latter should have the right to maintain gatesl across the road was the report of the viewers to the county court,' and, in the absence ‘of evidence showing the destruction or1 loss of such report, or of evidence that the agreement was. not reduced to writing, parol proof of such agreement was inadmissible.</p> <p>4. The heirs of one who, in surrendering to the public a right of way through hisi land, reserved the right of erecting gates across the same can not he deprived of that right in a proceeding under Kentucky Statutes 1903, section 4297, providing for the removal of gates established across a road by permission of the county court, hut are entitled to be compensated for their loss under section 4292, providing for thel assessment of damages for land taken in laying out or altering a road.</p> <p>5. A proceeding under .Kentucky Statutes 1903, section 4297, to abolish gates erected across a public road, in which the relief sought is denied on the .ground that the gates were not shown to have been erected under permission of the county court, and hence within the scope of the proceedings, is no bar toi another proceeding brought for the same purpose, if the read was in fact erected by permission of the county court.</p>

<p>Contempt — Appeal—Supersedeas—Insufficient Undertaking — Issuance of Execution.</p> <p>I. The issuance of an execution in disobedience of a supersedeas from the court of appeals is not excused by a showing that the clerk of the trial court accepted the surety on the appeal bond under the mistaken belief that the bond was only for the costs on appeal, and that he would not otherwise have accepted it, because the surety was not the owner of sufficient property to make him good for any greater sum than the costs.</p> <p>Where an appellee regards the surety in the appeal bond as insufficient, hi^ remedy is a motion and rule' for additional security. „</p>

<p>Municipal Corporations — Powers—Construction—Electric Light Plants.</p> <p>1. .A statute conferring sovereign and governmental powers upon a city must be strictly construed, but powers given a city for the private advantage of it and -its inhabitants, are to be construed in accordance with the general rules that apply to private individuals or corporations.</p> <p>2. In the management and operation of an electric plant a city is not exercising governmental or legislative powers, but mere business powers, and it may conduct such plant in the manner which, in the judgment.of the city council, promises the greatest benefit to the city and its inhabitants, and courts will not interfere with the reasonable discretion, of the council in such matters.</p> <p>3. Kentucky Statutes 1903, section 3290, subsection 5, authorizing cities of the third class to provide “the 'city and the inhabitants thereof’’.with light, etc., does not prohibit the city from extending its electric light service to points without the city limits, where it can do so with very little additional expense, and in such a way as to result in advantage to the city and its inhabitants.</p>

Case 30 — Action by W. W. Yates Against the City of Covington fob Personal Injuries by Reason of Defective Sidewalks.— APPEAL FROM KENTON CIRCUIT COURT-JAMES P. TARYIN, CIRCUIT judge; Judgment for Defendant and Plaintiff Appeals. 1.

Case 31 — Controversy • Between S. W. Hager, Auditor,' and the Kentucky Children’s Home Society, Involving the Constitutionality of an Act of the Kentucky Legislature Appropriating $15,000 Annually… Held: to be constitutional, it fastens on the taxpayers an annual debt of $15,000' for all time to come, and then it will require the co-operation of both houses of the General Assembly and the Governor to repeal it. 3.

<p>Case 32 — Auiion by Chas. X Kuhling, &c. Against the Ludlow Lumber Co. for Damages for Defective Work in Building a House.</p> <p>APPEAL FROM KENTON CIRCUIT COURT — JAMES' P. TARVIN, CIRCUIT JUDGE.</p> <p>JUDGMENT FOR PLAINTIFFS AND DEFENDANTS APPEAL.</p> <p>If a building may he accepted by the owner from the contractor or builder after having full opportunity to inspect, or if it be accepted without opportunity to inspect, and occupied for a period' of several months without any objection on the part ,. of the owner, he has then lost bis right of action, to recover against the contractor for any imperfections in the building.</p> <p>CASES CITED.</p> <p>Morford v. Masten & Ambrose, 6 B. Munroe, 609; Eseott & S’on v. White, &q., 10 Bush, 173; Taulbee v. Moore, 21 Ky. Law Rep., 378; Short v. Moore, 19 Ky. Law Rep., 1225.</p> <p>Upon the trial of this case the jury gave appellees the sum of $338.95, the amount out for repairs, and $200 for depreciation in the value of the property. The court set aside the verdict in so far as it allowed the $200 depreciation in value.</p> <p>We submit that under the plea and the evidence in this case, after the sum of $338.95 was expended by appellees in repairing the house, still it was not as valuable in the market as it would have been if it had been properly constructed, and appellees should have been allowed to recover this additional value.</p> <p>AUTHORITIES CITED.</p> <p>Morford v. Masten, 6 B. Mon., 609; Eseott v. White, 10 Bush, 169; Taulbee v. Moore, &c., 21 R., ?78; Short v. Moore, 19 R., 1225; Crooks & Co. v. Dillon, 1 R., 62; E. L. & B. S.'R. R. Co, v, Combs, 10 Bush, 392.</p>

<p>Case 33 — Action by Helen Schwabacher Aoainst Mary Miller, fee., to Foreclose a Mortgage on Real Estate, of Which W. S. Montz Became the Purchaser, and Filed Exceptions to the Sale.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY BRANCH, FIRST DIVISION — SHACKELFORD MILLER, judge.</p> <p>From the Judgment Confirming the Sale Montz Appeals.</p> <p>POINTS' AND AUTHORITIES.</p> <p>1. Where a defendant, owner of real estate, dies after a judgment enforcing a mortgage lien on same and sale has been made, but prior to confirmation, leaving infant children, a revivor of the action by consent of the infants’ guardian-, under section 507, Civil Code, is not a sufficient revivor of the judgment to pass title of the infants under a commissioner’s deed in said action. The revivor must be by rule or action, pursuant to subsections 3 and 4 of section 407 of the Civil Code. Civil Code, see. 507; Civil Code, sec. 407, subsees. 3 and 4; Hughes, &c. v. Shreve, &c., 3 Met., 547; Gray’s Exr., &c. v. Patton's Admr., 3 Ky. Law Rep,, 393.</p> <p>2. Where a married woman, owning real- estate, mortgages same and subsequently dies intestate, and the husband takes ■possession of the property and subsequently dies intestate, leaving a wife, and a daughter by a former marriage, and where the mortgagee institutes his action against the surviving wife and daughter of the husband alone as sole owners of the property, and they permit judgment to go by default, the presumption of law that the deceased wife left heirs is not rebutted by a mere allegation in the petition that at the time of her death, there survived her no heirs or kindred of any kind or degree, except her said husband, and that by virtue of the laws of Kentucky in such cases made and provided, the title to said lot or parcel of land became vested in fee simple in her said husband.</p> <p>That such allegation is but a conclusion of the pleader and is not an allegation of fact, and it is not admitted by a failure to deny; that in this case the presumption of law is that the deceased wife left heirs and that said heirs should have been made defendants as unknown defendants; and a failure to do so renders the title of the purchaser herein uncertain and unmarketable and he should be released from his purchase. Amer. & Eng. Ency. of Law, vol. 22, p. 1291, title "Presumptions”; Bank of Louisville v. Board of Trustees of Public Schools, 83 Ky., 231; Montgomery v. White, &c., 10 Ky. Law Rep., 905; Nickell, &e. v. Fallen, 11 Ky. Law Rep., 621.</p> <p>1. To apply section 407, Civil Code, to cases where a revivor is asked, in order to have a confirmation of the sale, would not only fail in serving any reasonable or salutary purpose, but would work a pronounced injury to those interests which are to be protected. It is certainly not the law that a purchaser will be held in court twelve months and then forced to abide the termsi of his purchase.</p> <p>2. A petition which sets forth specifically that at the time of the death of said Eliza Miller there' survived no heirs or kindred of any kind or degree except her husband; that by virtue of the laws of Kentucky in such cases made and provided the title to the said lot became vested in fee simple in her said husband, Chess Miller, who survived her, is a sufficient allegation of heirship. Montgomery v. White, 10 Ky. Law Rep., 905.</p>

<p>Life Insurance — Failure to Pay Premium Note — Waiver—Action on Policy — Provisions of Limitation — Validity—Public Policy — Deduction of Premium Note.</p> <p>1. A life policy provided that premium notes should he- paid on or before maturity, and that a violation of any condition of the policy should render it void. Insured in December, 1897, gave a six months’ note for the premium on his policy for the ensuing yeah, and defaulted in payment of the same in June, 1898. After such default, and a notice of cancellation of the •policy therefor, the insurer attempted to enforce the note. Ths insured died in September, 1S98. Held, that the enforcement of such note was a waiver by the insured of the condition of forfeiture.</p> <p>2. A provision in a life policy to the effect that no suit shall he maintained thereon, unless begun within one year from the death of insured, is void, as in contravention of .public policy; the statute prescribing a period of fifteen years for actions on such contracts.</p> <p>3. Where a life insurance policy provided that any debt of assured to the company should be deducted from the face of the policy if it became a claim against the company, insurer vms entitled to credit on the amount payable thereunder for an unpaid premium note outstanding at the time of insured’s death.</p>

Case 35 — Prosecution Against Henry Smith, Alias Henry Williams, for Rape. APPEAL FROM JEFFERSON ’CIRCUIT COURT, CRIMINAL DIVISION--JOSEPH PRYOR, JUDGE., Defendant Convicted .and Appeals. 1. The testimony fails to show such resistance on the part of the prosecutrix as would constitute the offense of rape. All she testifies to may be true and still the act not have been against her will. 2.

<p>Case 3G — Action by Adolph L. Schmidt, Individually and as Trustee, &c., and Others Against Louisville, Cincinnati & Lexinoton Railway Co., &c. for an Accounting of Eabnings to the Parties Entitled Thereto.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION-STERLING B. TONEY, judge.</p> <p>From the Judgment Sciimidt and Others Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The net earnings of a railroad are ascertained by deducting from the gross earnings the expenses of operating the road by which the receipts are earned. The cost of transportation is ascertained by proportion and the proper percentage charged to the business in question — “all, of course, aside from and exclusive of the expenditure of capital laid out in constructing and equipping the works themselves.” If this rule had been followed in the lower court, the appellants would lmvei recovered a judgment for $139,961.90. Schmidt v. L. & N. R. B. Co., 95 Ky., 289, 300; Union Pacific B. R. Co. v. U. S., 99 U. S., 420.</p> <p>2. The appellees had no right to charge against the net earnings covered by appellants’ mortgage the enormous expense of reconstructing the <Shelby Branch Railroad and oonverting it from a country road into a trunk line.</p> <p>3. The appellees had no right to impose upon the appellants the burden of appellees’ own fixed charges, such, asi rents and taxes, by deducting same from the net earnings* covered by appellants’ mortgage.</p> <p>4. The argument of appellees’ counsel upon the question of res judicata is wholly untenable. The subject matter of this appeal is not the same as the subject matter of the former appeal, nor is the cause of action to recover earnings accrued since 1890-identical with the cause, of action to recover earnings accrued prior to 1880. The questions involved upon this appeal were not raised or discussed or decided on the former appeal, and this court is not precluded upon this appeal from making a full inquiry into the facts of this casle and rendering judgment in favor of the appellants, according to the uncontradicted testimony. Schmidt v. L. & N. R. R., 95 Ky., 289, 300; Bridges v. McAlister, 106 Ky., 791, 802; Black on Judgments, vol. 2, sees. 504, 506, 609, 610; Outram v. Morewood, 3 East, 346; Cromwell v. Sac County, 94 U. S., 351, 360; Davis v. Brown, 94 U. S., 423; Boyd v. Ala., 94 U. S., 645, 650; Wiggins Ferry Co. v. O. & M. Ry. Co., 142 U. S., 140; Nesbit v. Riverside District, 144 XT. S., 610, 621; Board of Commissioners v. Sutcliffe, C. C. A.,. 8th Cir., 97 Fed. R., 270, 280; Aetna Life Ins. Co. v. Board of Commissioners, C. C. A., 8th Cir., 117- Fed. R., 8289; Denison. Mfg. Co. v. Soharf Co., C. C. A., 6th Cir., 121 Fed. Rep., 318; Linton v. Insurance Co., 104 Fed. R., 584; Commissioners v.. Platt, 79 Fed. R., 567; South Minn. Ry. Co. v. St. Paul Ry. Co., 55 Fed, R., 690; Philadelphia v. Ridge Ave. Ry. Co., 142 Pa. St., 484, 495.</p> <p>See, also, tax cases from this court, viz: Newport.v. Com., 106 Ky., 434; Masonic Temple Assn. v. Newport, 103 Ky., 592; Louisville Bridge Co. v. City of Louisville, 22 Ky. Law Rep., 704; Henderson Bridge Co. v. City of Henderson, 105 Ky., 32, 173 U. S., 592.</p> <p>POINTS AND. AUTHORITIES.</p> <p>1. The obligation of the appellee to account for net profits is dependent under the lease and mortgage upon it being made to appear that the net earnings from the Northern .Division Road should prove insufficient to pay the interest and provide for the sinking fund on the mortgage bonds, and upon it being, made further to appear that all other sources of raising money by that company should fail. Therefore it ife essential that these conditions precedent should be allegetT in order to show a right of recovery. Averback v. Hall, 14 Bush, 505; Ormsby v. Louisville, 79 Ky., 197.</p> <p>2.. These conditions precedent are by appropriate plealdings shewn to exist up to the time of the first judgment, to-wit, July, 1890, but they are not shown to exist, indeed there is¡ mr pleading of any kind relating to the period between 1890' and 1898, and this court can not assume because those conditions existed prior to 1890 that they necessarily existed after 1890.</p> <p>3. It is claimed in the brief of counsel for appellant that the attempt to secure the net profits of the L. & N. subsequent to the first judgment is in the nature of an entirely separate and. independent suit, and that therefore the judgment rendered' on the first appeal of this case, covering the period from 1883 to 1890, should not be treated as a bar on the present appeal. Assuming this to be true, then there is no pleading of any character upon which to base a recovery for the period since July, 1890.</p> <p>4. Upon the first appeal of this case the collateral contract which provided for the accounting by the L., C. & L. of net earn ings in certain contingencies, for the payment of interest, was construed by this court to mean- that in order to ascertain net profits there should, -among other things,, he deducted (a) the construction account, (h) the amount paid for taxes, and (c) the amount paid for rents. Upon the second appeal that same contract being involved between the same parties, the same conclusion should he reached, and the judgment upon the first appeal is conclusive upon this appeal, without reference to whether it was right or wrong. Bank v. Beverly, 1 How., 134; Tioga R. Co. v. Blossburg, &c., R. Co., 20 Wai.. 137; Mason Lumber Go. v. Beuchtel, 101 U. S., 638; New Orleans v. Citizens’ Bank, 167 U. S., 396; Henderson v. Henderson, 3 Hare, 115; Davis v. McCorkhill, 14 Bush, 754; 'Jones v. Commercial Bank, 78 Ky., 424; Smith v. Brannon, 79 Ky., 119; Francis v. Wood, 81 Ky., 22.</p> <p>5. The character of the charges which appear under construction account are really such charges as should be put under the “maintenance of way” account, and are not chargeable to capital account. Southern Pacific R. R. Co. v. Board of Railroad Commissioners, 78 Fed., 264; Union Pacific case, 99 U. -S., 455; U. S. v. Central Pacific, 99 U. S’., 402; Regan v. Farmers’ Loan & Trust Co., 154 U. S., 407; Metropolitan Trust Co. v. H. & T. C. R. Co.. 90 Fed., 683.</p> <p>6. The claim that the coupons now involved are different from the coupons involved on the first appeal is not well founded in fact, because it is demonstrable that the coupons which were due at the time of the entry of the first judgment welre not more than one-third paid by the recovery up to that time, and .the interest on those same coupons (or, rather, those which were then due and not paid) up to this time, makes the total claim thereon greater than the amount reported by the commissioner. But even if the coupons were different, it could make no difference, because the court was not called on- to construe any contract in the coupons, but in a collateral contract which applied to them all alike.</p>

<p>Wills — Construction—Lapsed Gift — Intestate Property — Conditional Bequest.</p> <p>1. The will of testatrix declared that if her brother in a lunatic asylum should he restored to his right mind, and discharged as cured, he should have ?2,000. She gave the residue of her estate to a third person. The brother died, in the lifetime of the testatrix, without being restored to reason. Held, that the gift to the brother passed as in case of intestacy, under Kentucky •Statutes 1903, sec. 4843, providing that, unless a contrary intention shall appear, devises which fail shall pass as in case of intestacy, and not to the residuary legatee, on the theory that the devise failed and remained a part of the estate, under section 4839, declaring that a will shall take effect as if executed immediately before the death of the testator unless a contrary intention appears, there being nothing in the will indicating an intention that, in case the devise to the brother failed it should ' go to the residuary legatee.</p> <p>2.A bequest to a person on condition that be be restored to his right mind is, on his dying without restoration, within Kentucky Statutes 1903, section 4843, providing that, in the absence of an expressed contrary intention, property embraced in a bequest which shall “fail, or he void, or otherwise incapable of taking effect” shall not be included in the residuary bequest, but shall pass as in case of intestacy.</p>

Case 38 — Proceedings by J. C. Leszinsky and Others Against Penn LeGrand, Involving Sale of Land for TKxes. APPEAL FROM BRECKENRIDGTS CIRCUIT COURT — •‘WEED S. CHELF, CIRCUIT JUDGE. Judgment for Defendant and Plaintiffs Appeal. 1.

Case 40 — Prosecution Against Thomas Burkhart for Shooting at a Railroad Passenger Coach in which Were Passengers and Employes. appeal from lee circuit court — ROBERT RIDDELL, circuit judge. Defendant Convicted and Appeals. 1. The offense is a statutory -one and consists of shooting at' a railroad passenger coach in-which passengers are, and which is a felony. 2.

<p>Case 41 — Action by the Security Mutual Life Ins. Co. and by the Travelers Ins. Co. Against Henry R. Prewitt, Insurance Commissioner, for an Injunction Compelling Him to Revoke an Order Suspending Their License to Transact Business in This State.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION NO. 2 — THOS. R. GORDON, judge.</p> <p>Judgment for Plaintiff in First Suit. Defendant Appeals.</p> <p>Judgment for Dependant in Second Suit. Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An injunction against a State officer threatening action under an unconstitutional statute is maintainable where complainant’s safety and immunity from the hazard of enormous penalties makes it remediable only in equity, and renders its remedy at law inadequate. Bank v. Stone, 88 Fed. Rep., 383 (Harlan, Taft and Lurton); Met. Life Ins. Co. v. McNall, 81 F'ed. Rep., 888; Mut. Life Ins. Co. v. Boyle, 82 Fed. Rep., 705; etc. •</p> <p>(This question, however, is not raised, Ihe insurance commissioner uniting with us in submission for decision only of the question of bis power.)</p> <p>• 2.' A 'State! statute requiring surrender or forbearance; of a right of removal or resort to the Federal courts infringes the Federal Constitution and is unconstitutional and void. See cases cited under the next succeeding head.</p> <p>3. A State statute, however contrived, seeking to prevent removal or resort to the Federal courts is unconstitutional and void, and whenever imposing the requirement of the surrender or forbearance of the right of such removal or resort as a condition upon admission of a foreign corporation to transact business within the State the requirement or permission to transact business becomes itself void and the corporation at liberty to transact business without the permit. Com. v. East Tenn. Coal Co., 97 Ky., 238; Com. v. Jellico Coal Co., 97 Ky., 244; Ins. Co. v. French, 18 How.,.404, L. Ed., xi. 451; Ins. Co. v. Morse, 87 U. S., 20 Wall., 445; L. Ed., 22, 365; Barron v. Burnside, 121 U. S., 186; Sou. Pac. Co. v. Denton, 146 U. S., 202, Book 36, 942; Martin v. B. & O. R. R., 156 U. S., 684, Book 30, 519; Barrow S. S. Co. v. Kane, 170 U. S., 100 (42 L. Ed., 964); Blake v. McClung, 172 U. S., 239 (43 L. Ed., 438); Dayton C. & I. Co. v. Barton, 183 U. S., 23, 25; L. Ed., 46, pp. 61, 64; Bigelow v. Nickerson, 70 Fed., 121; Met. L. Ins. Co. v. McNall, 81 Fed., 888; Mut. L. Ins. Co. v. Boyle, 82 Fed., 705.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Kentucky Statutes, section 573 and 631, are unconstitutional and void, because repugnant to the Constitution ' and laws of the United States; and the insurance commissioner could not take any lawful action thereunder. Commonwealth v. East Tennessee Coal Co., 97 I<y., 238; Commonwealth v. Jellico Coal Co., 97 Ky., 246; Norton v. Shelby Co., 118 U. S., 442; Hildreth v. Mclntire, 1 J. J. Marsh., 206; Cooley’s Constitutional Limitations, 188.</p> <p>2. Although a State may exclude a foreign corporation entirely, yet If it undertakes to prescribe conditions on which it may enter the State can not—</p> <p>(1) Make as_ a condition of its admittance that it will not remove a case to the federal court; nor</p> <p>(2) Make as a condition of permitting it to remain in the State that it will abstain from removing cases to the Federal court.</p> <p>In short, a State can not make the right to continue within its limits dependent upon the surrender or abandonment of, or abstention from the right of removal to the Federal court. LaFayette Ins. Co. v. French, 18 How., 404 (1855); Insurance Co. v. Morse, 20 Wall., 445 (1874); Barron v. Burnside, 121 U. S., 186 (1887); Southern Pacific Co. v. Denton, 146 U. S., 202 (1892); Barrow Steamship Co. v. Kane, 170 U. S., 100 (1898); Blake v. McClung, 172 U. S., 239 (1898).</p> <p>3. The case of Doyle v.’ Continental Insurance Co., 94 TJ. S., 535, is no longer an authority in support of appellant’s contention. Doyle v. Continental Ins. Co.', 94 U. S., 535 (1876); Barron v. Burnside, 121 U. S., 186 (1887); Commonwealth v. East Tennessee Coal Co., 97 Ky., 238 (1895); Metropolitan Ins. Co. v. McNall, 81 F. R., 888 (1897); Moon on Removal of Causes, 29, 31 (1901).</p> <p>4. The judgment should be affirmed in accordance with the opinion of this court declaring that so much, and only so much, of Kentucky Statutes, section 631, as provides that if a case is removed to the Federal court the license shall be revoked, is unconstitutional.</p> <p>POINTS AND AUTHORITIES.’</p> <p>1. This State has a valid license law and which is not based on any non-enforcible or unconstitutional conditions.</p> <p>2. The provision against removal' to a Federal court is not, as in some States, provided as a condition precedent to the right to a license. Ky. Stat., secs. 634, 631, 649, 657, 761; Franklin Ins. Co. v. L. & A. Packet, 9 Bush, 590.</p> <p>3. The clause of see. 631 of our statute was not intended to admittedly, and can not .prevent removal of causes. Home Ins. Co. v. Morse, 20 Wall. 445 (22, 367); Commonwealth v. East Tenn. Coal Co., 97 Ky.,' -38.</p> <p>4. Notwithstanding this, the statute is a valid exercise of the power of the State to exclude foreign corporations for any reason whatever. The State may withdraw a license at pleasure, as it might refuse the license in the first instance. 13 A. & E. Equity of Law (2d Ed.), S67; Doyle v. Continental Ins. Co., 94 U. S., 535 (24, 148); Barron v. Burnside, 121 U. S., 186 (30, 919).</p> <p>5: The insurance commissioner may by mandamus be compelled to obey this statute. The People v. Pavey, Auditor, 151, 111, 101.</p> <p>6. The State has 'full power to admit or not admit foreign corporations within her borders, except where the business is of a Federal nature. Paul v. California, 155 U. S., 650, 39, 299; '9 Rose’s Notes, 143-4; State v. Phipps (Ks.), 18 L. R. A., 662; Fire Association, Philadelphia, v. New York, 119 IT. S., 110, 30, 346; The Doyle case not overruled; Marrón v. Burnside, supra; United States v. DesMoines, 142 U. S., 546; Pope, &c., v. Gormully, 144 U. S., 238; New Orleans v. Warner, 175 IT. B., 3 47: Fire Association, Philadelphia, v. New York, supra; State v. Phipps (Ks.), supra.</p>

Case 42 — Petition by J. O. Jenkins and others for a Writ of Prohibition Against A. S. Berry, Judge of the Campbell Circuit Court, and C. L. Raison to Prevent Them from Interfering With the Plaintiff’s Control of ti-ie Speers Hospital and from Removing Them as Trustees. 1. The chancellor has no visitorial powers, and he must act according to the ancient rules of equity, practice. Moore v. Moore, 4 Dana, 3C5; Chambers v. Bap. Ed. Soc., 1.

<p>Elections — Contest—Petition—Sufficiency—Amendment of Petition — Commonwealth’s Attorney — Eligibility to Office— Change of District.</p> <p>1 Under Kentucky Statutes 1903, section 1591, concerning proceedings to prevent fraud in elections, and providing that the chapter shall be liberally construed so as to prevent any evasion of the prohibitions and penalties by any shift or device, á petition in an election contest on the ground of fraud, etc., which necessarily imports that the fraud entered into the result as certified to the State board, was sufficient though it ‘fails to charge such fact in terms.</p> <p>2. Kentucky Statutes, 1903, section 1596a, subsection 12, provides that in an election contest a reply may be filed, and that no subsequent pleading shall be allowed. Held, that where anything occurs after the commencement of a contest and after the time of pleadings, which is a relevant and necessary fact in aid of the original grounds, it may be asserted as an amendment of the petition, though after the reply.</p> <p>3. Constitution, section 100, provides that no person .shall be eligible to the office of Commonwealth’s attorney who has not resided in the county and district in which he is a candidate one year. Section 132 empowers the General Assembly to establish additional judicial districts. After the election of an attorney for the Twenty-third Judicial District, the county of M., in which he resided, was made part of a new district by Acts 1904, p. 125, c. 51. HelDj that the change in the district did not disqualify him for the office, since, if the Constitution required a continuous residence, failing which an abandonment would follow, the officer might change his residence to a place within the district, and the statute could not deprive him of his office without violating the Constitution, which protects an officer from removal by the Legislature other than by impeachment</p> <p>4. Though the Legislature is given power' to abolish the office of Commonwealth’s attorney, it can not abolish the tenure.of any rightful incumbent of the office.</p> <p>5. Under Kentucky Statutes, 1903, section 1596a, subsection 12,' limiting an election contest to a determination as to which candidate was elected, the question whether the eligibility of the one elected has been affected by a subsequent event can not be considered.</p>

Case 44 — Action by U. L. Taylor Against Adair County for Services as a Member of the Board of Health of Said County.— APPEAL FROM ADAIR CIRCUIT COURT — H. G. BAKER, CIRCUIT JUDGE. Judgment for Defendant. Plaintiff Appeals.

<p>Highways — Compensation of Overseers — Power of Fiscal Courts.</p> <p>Under Kentucky Statutes 1903, section 1840, giving the fiscal court authority to appropriate money only when authorized by law, and in view of section 4310, exempting road overseers from service on juries and from poll tax for road and bridge purposes as compensation for services as such overseer, the fiscal court has no authority to appropriate county funds for salary or compensation of a road overseer, unless his services are performed by direction of the fiscal court, under section 4315, when there is no supervisor, or he is appointed assistant supervisor for special services, as authorized by sections 4344, 4346.</p>

Case 46. — Prosecution Against William Underwood for Murder. — ■ APPEAL FROM LAUREL CIRCUIT COURT — H. C. FAULKNER, CIRCUIT JUDGE. Defendant Convicted of Voluntary Manslaughter and Appeals. 1.

<p>Case 47. — 'Action by The Kentucky Live Stock Breeders Assn., &c., Against H. W. Miller and Others to Recover a Loss, which the Defendants Agreed to Pay, In Holding a Pair at Owensboro.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT-T. P. BIRKHEAD, CIRCUIT JUDGE.</p> <p>Judgment for Defendants. Plaintiffs Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The balance due the Citizens National Bank was lost in the fair, and is a loss which has been paid by the Breeders’ AsSociation. This we should recover whether the contract be one-of indemnity or not.</p> <p>2. The contract sued on is not an indemnity contract, but a contract to pay the losses incurred. Where there is such a contract the loss is recoverable as soon as incurred. Johnson v.' Risk, 135 TJ. S., 303; In re Negus, 7 Wend., 499; Kohler v. Matlage, 72 N. Y., 266; Salmon v. Leyser, 116 Mo., 51; Walker v. Hoppock, 6 Wall., 94; Gage v. Lewis, 68 111., 606; Gunel v. Cue, 62 Ind., 34; Baylies on Sureties and Guarantys, 191; 16 Am. & Eng. Ency. of Law, 178.</p> <p>3. A covenant to indemnify against a future liability is actionable -as1 soon as the liability matures. Lewis v. Crockett, 3 Bibb, 197; Pond v. Warner, 2 Vt., 532.</p> <p>4. A covenant to indemnify against liability is actionable as soon as the liability matures. Mills v. Dow, 133 II. S., 423; Showers v. Wadsworth, 81 Cal., 270; Jones v. Chiles, 8 Nev., 121; National -Bank v. Beyler, 83 N. Y., 51.</p> <p>5. Persons severally liable on the same contract may be sued jointly. Civil Code, sec. 26; Wilde v. Haycraft, 2 Duv., 309; Louisville v. .Henderson, 5 Bush, -518.</p> <p>6. The action was properly brought in equity. Civil Code, sec. 10, amendment 1890; Pomeroy’s Equity, secs. 1420-1421; Breckinridge v. Brooks, 2 A. K. M., 335; Bruce v. Burdet, 1 J. J. M., 82; Powell v. Powell, 7 Dana, 12; O’Connor v. Bridge Co., 95 Ky., 642; Hely v. Hoertz, 26 K. L. R., 644.</p> <p>SYNOPSIS.</p> <p>1. The contract is one -of indemnity, and appellant can not maintain an action for a breach of the covenant against the indemnitors until payment, which alone can evidence any loss. 16 Am. & Eng. Ency. of Law (2d ed.), 168, 169, 176, 177; Central Trust Co. v. Louisville Trust Co., .100 Fed. Rep., 545, 546, 548, 549, 550, 551, 552; Campbell v. Rotering (Minn.), 6 L. R. A., 280.</p> <p>2. The indemnitors may require the indemnitee to resist each debt included in the estimate of loss, or may do so themselves1. Brandt’s .Ex’r. v. Donnelly, 94 Ky., 129, 132, 134; 16 Am. & Eng. Ency. of Law (2d ed.), 180; Reynolds v. Magness, 2 Ired. (24 N. Car.), 26.</p> <p>Appellant avers appellees “are disputing the said accounts and the accuracy and validity of them.” Ante. 4. This they have the right to do, and can not be sued on their covenant until the correctness and validity of the cliaims are fixed by judgments in actions against the indemnitee, of -which they must have notice.</p> <p>3. The contract is several as to its obligation, and for the- ' pro raía payable by each indemnitor the action must be distinct and separate. Damall v. -Lyon (Tex.), 19 S. W., 507, 22 Id., 304; McFarland v. Lyon (Tex.), 35 Id., 554, 555; Batsell v. St. Louis, A. & T. Ry. Co. (Tex.), 23 Id., 552, 553; 27 Ain. & Eng. Ency. of Law (2d ed.), 283, and cases cited; State v. Powers, 52 Miss., 198; Davis & Rankin Bldg. & M£g. Co. v. Barber, 51 Fed. Rep., 148, 152.</p> <p>Wilde & Co. v. Haycraft, &c., 2 Duv., 309, is not in conflict, where the question was as to jurisdiction.</p> <p>4. A third person can not proceed directly against the indemnitors. 16 Am. & Eng. Ency. of Law (2d ed.), 176.</p> <p>5. It is not material, in this record, that the judgment simply dismisses the petition. Dodds v. Combs, 3 Met., 29; Morrison v. Beckham, 96 Ky., 72.</p>

<p>Case 48. — Proceeding by D. B. Weaver Against R. B. Cowper to Recover Damages for Defendant’s Failure to Perform His Bid at a Judicial Sale of Land.</p> <p>APPEAL FROM LIVINGSTON CIRCUIT COURT-J. F. GORDON, CIRCUIT JUDGE.</p> <p>Judgment for Plaintiff, Defendant Appeals.</p> <p>The response, by proper allegation, makes the following points:</p> <p>1. That the decedent, D. B. Weaver, at the time of his1 death was hot the owner of any of the lots sold, and wad without title to any or either of them.</p> <p>2. That the court had no power to sell same, because no title papers were filed.</p> <p>3. That the pleadings show that the decedent had no possessorytitle, never having resided upon or cultivated any or either of said lots, and none of them having been inclosed.</p> <p>4. That there is nothing in the record to show that the surveyor was directed to survey any1 specific property, and nothing to indicate that he did survey any .property belonging to the decedent, or that any of the property sold was ever ordered by the court to be surveyed.</p> <p>5. That the only allegation in plaintiff’s pleadings in reference of the lots sold, was made by the amended petition filed April 13, 1903, and that at the time the warning order of February 11, 1903, was made, there was absolutely nothing in the pleadings to indicate that either or any of the lots bid for by the appellant would be sold, or showing that' the decedent had any title, or claimed any interest or ownership therein, and that the warning order was, therefore, premature, it having been spread before there was a reference in the pleadings to the lots in controversy.</p> <p>6. That the affidavit for a warning order did not show that the unknown defendants and heirs' were absent from the State, or believed to be absent therefrom; and that the warning order was, therefore, null and void.</p> <p>7. That the amended petition, in which these lots were attempted to be claimed as the property of the decedent, was filed April 13, 1903, and the judgment directing their sale was filed on the 23d day of the same month, just ten days after they had been embraced by the pleadings; and up to the said 23d day of April no claim had been made in the pleadings to any of said lots.</p> <p>8. That, prior to said sale, no proof was taken as to the number or non-residency of any of the defendants, nor was any bond executed as required by section 410 of the Civil Code.</p> <p>9. That the court, of its own motion, on the 25th day of September, 1903, before any rule had been executed on this appellant, or even asked for, entered an order treating the sale of the lots to the appellant as a nullity, and directing the commissioner so to treat said sale, and to resell the said lots.</p> <p>10. That before any rule was taken against him the lots in controversy had been resold, and the sale thereof had been confirmed, and that, therefore, at the time he was notified that an attempt would be made to hold him responsible fori the difference in the bids upon said lots, the plaintiffs in the court by their action and orders! had placed it beyond the power of the respondent to execute the bond or accept deeds thereto, even if any' title could have been conveyed to him.</p> <p>Brownfield v. Dyer, 7 Bush,'507; Griggs v. Barr, 14 Bush, 330; Arthurs v. Harlan, 78 Ky., 138; Redwine v. Underwood, &c., 101 Ky., 190; Code, secs. 691, 126, 409; Jackson v. McElroy, 2 Bush, 132; Code, see. 410; White v. Moyers, 18 R„ 402; Tatum v. Gibbs, 19 R., 695; Hogue v. Yeager, 21 R., 1299; Morgan v. Wiekliffe, 24 R., 1040; Civil Code, sec. 375; Mitchell v. Kinnaird, 17 R., 1250; Maloeson v. Brawn, 18 R., 584.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Necessary averments of petition to sell decedent’s real estate for debt. . Civil Code, sec. 429.</p> <p>2. Court may, at any time, admit any-amendment which does not change, substantially, the claim or defense. . Civil Code, sec. 134.</p> <p>3. Requisites of affidavit for warning order for unknown defendants. Sec. 57, subsec. 7, Civil Code; Hogue and Others v. Yeager and Others, 21 R., 1299.</p> <p>4. Verified pleadings, equivalent to affidavits. Wilson v. Teague, 95 Ky., 47.</p> <p>5. Judgment, not void, although defective and reversed, does not affect purchaser’s title to the land. Bailey v. Fanning Orphan. School, 12 R., 644.</p> <p>6. Cases in which title .papers áre required to be filed. Sec. 492, Civil Code; Rodgers, &c., By, &e. v. Rodgers, Admr., &c., 17 R., 358.</p> <p>7. Affidavit, unless controverted, is sufficient evidence to support. an action,- as well as warning order. Sec. 58, subsec. 6, Civil Code.</p> <p>8. When no bond given, court may preserve undistributed proceeds until properly applied for. Sec. 411, Civil Code; Hogue and Others v. Yeager, &c., 21 R., 1299.</p> <p>9. Failure to appoint attorney or take bond, reversible errors, Jurisdiction being complete, judgment not void. Sec. 410 (formerly 440), Civil Code; Thomas v. Mahone, 9 Bush, 111,</p> <p>10. S’ale under decree is valid, unless decree be void, although it may he reversed. Gos-som v. Donaldson, 18 B. M., 230; Harrison v. Hord, 12 B. M., 472; Yocum v. Foreman, 14 Bush, 494.</p> <p>11. Measure of damages, where a purchaser of land at public auction failed to comply with the terms and accept land, is difference between price hid at first sale and the amount of second sale, together with costs and expense of second sale. Mc-Brayer v. Cohen, 13 R., 667; Sherley v. Shewmaker’s Assignee, 23 R., 452; Tyler and Others v. Guthrie and Others, 17 R., 1193; Brasfield, &c. v. Burgess, &c., 10 R., 660; Page v. Hughes’ Heirs, 9 B. M., 115; Lloyd, Trustee, v. Wagoner, Assignee, &c., 93 -. 653.</p>

<p>School Fund — Tax on Foreign Insurance Companies.</p> <p>The $2 on each $100 of premiums paid by foreign insurance companies doing business in the State, -which is required to he paid into the State treasury, is ño part of the 22 cents on each $100 -valuation of property or’ corporate franchises directed to be assessed for taxation for the school fund by Kentucky Statutes 1903, see. 4370, subd. 5, nor is it a fine, forfeiture-or license within subdivision 6, providing that a portion of such revenues be paid into the school fund.</p>

<p>■ Appeal- — Death of Appellee — Absence of Revivor — Effect on Appellate Judgment.</p> <p>The death of an appellee after appeal and before submission, without any suggestion of the death, or revivor against his personal representative, did not render a reversal void, but only irregular and erroneous, and it could be made perfect by a revivor.</p>

Case 51 — Action by Susan E. Sutton, &c., Against Nannie R. Gibson and Others to Cancel a Deed. APPEAL PROM HENDERSON CIRCUIT COURT — J. W. HENSON, CIRCUIT JUDGE. Judgment por Dependants. Plaintiffs Appeal. 1. It will be sufficient for the purpose of this appeal to consider the one question as to whether the deed was ever delivered to, or accepted by, any of the grantees. 2. Our contention is that the deed was never delivered.

Case 52 — Action by Logan County Against the Fidelity & Deposit Co. of Maryland as Surety on the Sheriff’s Bond of Said County, to Recover Taxes for Which the Sheriff Had Defaulted. appeal from logan circuit court — W. P. SANDIDGE, cifcuit judge. From the Judgment Both Parties Appeal.

Case 53 — Prosecution of Henry Hellard for Manslaughter. APPEAL FROM ROCKCASTLE CIRCUIT COURT-M. D. JARVIS, CIRCUIT JUDGE. Defendant Convicted and Appeals. 1.

<p>Trial — Remarks of Counsel — -Argument to Jury — Appeal.</p> <p>1. Remarks of counsel for plaintiff in argument that the plaintiff had obtained a judgment on a former trial, that it had been reversed by the higher court on a technicality, and that defendant was then preparing to appeal from any verdict that might be rendered and obtain another reversal, were improper.</p> <p>2. On trial of an action -against a railroad for personal injuries, where there was evidence that when accidents occurred the railroad employes were furnished with prepared statements, which they were required to sign, a comment on such fact in the argument by counsel for plaintiff was not erroneous, except as to a statement therein that the employes must answer “Yes” in order to hold their jobs, and, if they answered “No,” they “walk the plank.”</p>

<p>Housebreaking — Smokehouse—‘Indictment—Sufficiency—Evidence —Admissions—Competency—Witnesses-—Impeachment.</p> <p>1. Under Kentucky Statutes 1903, section 1162, making it a crime to feloniously break into a dwelling house, or any bouse belonging to or used with any dwelling house, etc., an indictment charging defendant with having feloniously broken into and entered the smokehouse of a certain person, but failing to allege that such smokehouse belonged to or was used with any dwelling house, was insufficient.</p> <p>2. Admissions of accused corroborating the testimony of a witness are admissible against him.</p> <p>3. Under Civil Code of Practice, section’ 597, providing that a witness may be impeached by evidence that his general reputation for untruthfulness renders him unworthy of belief, a witness called to1 impeach another witness by proof of bad moral character may be himself impeached by an attack on his general character.</p>

<p>Case 56 — Action by the Mt. Cabmel Telephone Co. Against the Mt. Cabmel & Flemingsburg Telephone Co. to Determine the Rights oe the Parties as to the Ownership oe Certain Property.</p> <p>APPEAL FROM FLEMING CIRCUIT COURT — JAS'.-P. HARRESON, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>We submit that the facts on demurrer warrant the following premises:</p> <p>1. That the parties acting together before incorporation were a partnership.</p> <p>2. That the moment they ceased to be a partnership they became a corporation.</p> <p>3. That as a partnership, or corporation, they at all times had the right to sue for their property.</p> <p>4. As a necessary sequence, the moment they ceased to be a partnership’ and began an existence as a corporation, such a corporation had the right to bring any suit necessary to protect its life or property.</p> <p>AUTHORITIES CITED.</p> <p>Twin Creek & Colmansville Turnpike Co. v. Lancaster, 79 Ky., 553; Lackey v. R. & L. Turnpike Co., 17 B. M., 44; Ky. Stat., sec. 542, 566; Gen. Stat., sec. 6, chap. 56; Walton v. Riley, 85' Ky., 414; P. & G. Turnpike Co. v. Babb, 88 Ky., 229; Brooksville R. R. Co. v. Byron, 50 S. W., 530; Thompson on Corp., vol. 1, secs. 1157, 1158, 501; Ky. Stat., 539, 540, 763, 555, 556; Hughes v. Bank of Somerset, 5 Lit., 45; Wright v. Shelby R. R. Co., 16 B. M., 7.</p> <p>POINTS AND AUTHORITIES.</p> <p>A corporation formed under chapter 32, Kentucky Statutes. can not acquire a right to the possession of property and maintain an action therefor until it has elected a board of directors. Ky. Stat., sees. 551, 541, 542; 6 Thompson on Corporations, see. 7374; Angelí & Ames (11th ed.), secs. 81, 369; Morawetz, vol. 1, see. 21; Thompson, vol. 1, sec. 52; Thompson, vol. 3, sec. 2969; Thompson, vol. 6, sees. 7361, 7368, 7374; Thompson, vol. 7, see. 8160; Civil Code, sec. 180; Ky. Stat, secs. 538, 576.</p> <p>CASES 'CITED.</p> <p>Warring v. Arthur, 98 Ky., 34; Lail v. Mt. Sterling Coal Road Co., 13 Bush, 34; Breathitt Coal, Iron and Lumber Co. v. Gregory, 25 Ky. Law Rep., 1507.</p>

<p>Case 57 — Action by Andrew J. Steele Against Louise M. Steele for a Divorce.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Judgment for Plaintiff. Defendant Appeals.</p>

<p>Case 58 — Action by Cumberland Telephone & Telegraph Co. Against the Rough River Telephone Co. for an Injunction.—</p> <p>APPEAL FROM OHIO CIRCUIT COURT — W. T. OWEN, CIRCUIT JUDGE.</p> <p>JUDGMENT FOR PLAINTIFF. ' DEFENDANT APPEALS.</p> <p>POINTS CONTENDED FOR.</p> <p>1. Injunction does not lie where the injury complained of is trifling or inconsequential. And where the injury can he measured in damages and the full aDd adequate remedy had at law, the court will not award injunction.</p> <p>2. A telephone company occupying the public streets of a town, or city is an additional burden upon the streets, and even where it enjoys a franchise (which is not the case here) injunction will not lie to restrain others engaged in like or similar public enterprises from mere interference with the property or conduct of such complaining company. Where there is no actual destruction of property but mere inconvenience, as in this case, the court will not grant an injunction, hut the parties must seek reparation in a court of law. Cincinnati Inclined Plane R. Co. v. City and Suburban Telephone Assn., 12 L. R. A., 534; Cumberland Tel. & Tel. Co. v. United Electric Ry. et at, 12 L. R. A., 544; Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 17 L. R. A., 674; Cumberland Tel. & Tel. Co. v. United Electric R. Co., 27 ■h. R. A., 236; Bronson v. Albion Tel. Co., 60 L. R. A., 426.</p> <p>3. The appellee, Cumberland Telephone & Telegraph Co., has not, and never had, any franchise or right of entry upon the, streets of Hartford, and is a trespasser and wrongdoer. It does not plead any title in itself to the franchise or right to occupy the streets, and it appears fully from the record that it has no> such right.</p> <p>4. One -who invokes the aid of equity must first show a clear’ legal right. A court of equity will not lend its aid to a wrongdoer either to relieve him’ from his own situation or in an assertion of any claim growing out of his own wrongful acts. Plaintiff seeking an injunction must state a cause which rebuts all, inferences against him and must show that he is in no wise at fault. “He must come into equity with clean hands,” and this rule is to be strictly enforced. East Tenn. Tel. Co. v. Anderson County Tel. Co., 57 S. W., 457; East Tenn. Tel. Co. v. City of Russellville, 51 S. W., 30S; ’Constitution of Kentucky, see. 163; East Tenn. Tel. Co. v. Anderson County Tel. .Co., 74 S. W., •218; Gilmore v. Puller, 60 L. R. A., 286; Hall v. Coppell, 74 U. S., 542, book 19 L. Ed., 244; Hall v. Corcoran, 107 Mass.; Bney. of Plead. & Prac. vol. 10, 931 et seq.; Same, 944-946; Loudon v. Warfield, 5 J. J. M., 196; Cumberland Tel. & Tel. Co. v. Louisville Home Tel. Co., 72 S. W., 4.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. Appellee, being first in possession, is first in law and equity. Pomeroy Eq. Jur., sec. 414.</p> <p>2. Appellee, being first in point of time in the occupancy of the street, did not obtain an exclusive right to use the street, but it does have a right to use so much space as is reasonably required for the successful operation of its works, and an injunction will lie to prevent the material molestation of this right by a subsequent company. Elliott (2d ed.), Roads and Streets, sec. 827; Cumberland Tel. Co. v. Louisville Tel. Co., 78 S.-W., 6; Paris Electric Light & R. Co. v. S. W. Tel. & Tel. Co., 27 S. W., 902; Am. & Eng. Ency. of La.w, vol. 25, p. 764; Nebraska Tel. Co. v. York Gas Light Co., 27 Neb., 284; Keasby on Electric Wii’es (2d ed.), sec. 202; Noyes v. Hemphill, 58 N. H., 536, and 56 N. H., 130.</p> <p>3. A court of equity will interfere and enjoin the use of the mode by which the rights of others are injuriously affected. Hickok v. Hiñe, 13 Am. Rep., 255; Gas Light & C. Co. v. St-Mary’s Vestry, L. R., 152, B. Div. 1.</p> <p>4. It is no defense to say that appellant’s wires are so established that they facilitate the injury. Cook v. Chaplain, Cal. 1st Denio, 91; Fero v. Buffalo, S. L. R., 22 N. Y., 209.</p> <p>5. A multiplicity of suits must necessarily follow before adequate qompensation could be awarded for such continual invasion of appellee’s property rights. High on Inj., 708; Kreneger v. Wisconsin Tel. Co., 50 L. R. A., 298, 81 N. W., 1047;' Donovan v. Allert, 58 L. R. A., 775; McCloskey v. Daugherty, 97 Ky., 300.</p> <p>6. The license granted by the town of Hartford to appellee is not a nullity, but is good as far as it goes, especially if the consideration for the grant consists in the public duty which the company assumes. N. W. Tel. Exchange Co. v. Minneapolis, 53 L. R. A., 175; Bell Tel. Co. v. Warwick, 185 Pa., 623; Louisville Trust Co. v. Cincinnati; Rutland Elec. Light Co. v. Marble City Elec. Light Co., 20 L. R. A., 821; Cooley 'Const. Lin. (5th ed.), sec. 337; Coast Line R. Co. v. Savannah, 30 Fed., 649; Hockett v. State, 105 Ind., 250," 5 N. -E., 721.</p> <p>7. And when such grant is accepted and acted upon, by the company which requires an outlay of money and labor to sub-serve the public interests of its citizens-, it becomes- a contract between the city and the corporation who- relied upon it, and the grantee can not be arbitrarily deprived of the rights' thus secured. Certainly not without due process of law. Cincinnati St. R. Co. v. S'mith, 29 Ohio S-t., 292; N. O. Waterworks Co. v. Rivers, 115 U. S., 675; St. Paul v. Chicago, M. & S’t. P. R. Co., 63 Minn., 330, 34 L. R. A., 184.</p> <p>8. The municipality, in granting the appellee the right to use its streets, so far as it possessed the power to do so, and thus furnishing its citzens the convenience of intercommunication, exercised a business power by which it may be firmly bound. 111. Trust & Savings Bank v. Kansas City, 34 L. R. A., 518; National Foundry and Pipe Works v. Oconto Water Co., 52 Fed., 34; Indianapolis v. Ind. Gas Light and Coke Co., 66 Ind., 396; New York v. Second Ave. R. Co., 32 N. Y., 261; Safety Insulated Wire and Cable' Co. v. Baltimore, 13 C. C. A., 375; San Francisco Gas Co. v. San Francisco, 9 'Cal., 469; Cincinnati v. Cameron, 33 Ohio S’t., 367.</p> <p>9. Constitutional protection is not to be meted out in cases where pecuniary damages are large and denied if they are small. Donovan v. Allert, supra; Collen v. Columbus Edison Electric Light Co., 58 L. R. A.</p> <p>10. One who receives its license or grant from the city to aper-, ate its system of telephones, it is impliedly agreed to operate it in such a way as not to affect the rights of others. Port Jarvis v. First Nat. Bank, 96 N.Y., 557.</p> <p>11. And if there are two modes in which the work can he done, one of which will create a nuisance and the other not, they are bound to choose the method which will obviate the nuisance. Wood, Nuisance, 784-785; Weideman v. N. Y. Elev. R. Co., 114 N. Y., 462.</p> <p>12. The rule that both parties to an ultra vires contract are in pari delicto, and therefore a court of equity will not interpose to restore to one of them rights which it has thus parted with, is inapplicable to a municipal corporation whose trustees attempt to make an invalid grant. See 56 Fed. Rep., 867.</p>

Case 59 — Prosecution Against Joseph Koch for Retailing Liquor Without a License. APPEAL FROM KENTON CIRCUIT COURT — R. C. SIMMONS, SPECIAL JUDGE. Defendant Convicted and Appeals. Our contention is: 1. That a county court has no right to refuse to grant a license to a retail dealer in spirituous, vinous and malt liquors who: has a license from the trustees of the town in which he resides* and is doing business as such dealer. 2.

<p>Actions — Survival—Infant—Compromise by Parents.</p> <p>1. Under Kentucky Statutes 1903, section 10, providing tliat no right of action for personal injury shall die with the person injuring or injured except in specified eases, and that for any injury other than those excepted, an action may be brought by or against a persona representative in the same manner as actions founded on contract, an action to recover damages for pain endured by a child from the time of an injury until the date of his death survives to the personal representatives of the child, and does not belong to his parents as such, so that an, attempted compromise of the right of action by the parents prior to the death of the child, and before they had even a beneficial interest in any recovery which might be obtained in the action, was void, and did not preclude the maintenance of the action by the administrator after the child’s death.</p> <p>2. It will be presumed that a settlement made by the parents of a child with a person responsible for injury to him, before the child died from the result of the injuries, covered merely the parent’s claim for nursing, attention and medical bills, for which the parents had a right to recover, and did not cover the right of the child, or his administrator after the child’s death, to recover for suffering and anguish endured by the child, for which the parents had no right of action.</p>

<p>Case 61 — Action by W. D. Fletcheb Against O. A. Morrison and Others to Recover a House and Lot.-</p> <p>APPEAL PROM HARDIN CIRCUIT COURT-T. R. MCBEATH, CIRCUIT JUDGE.</p> <p>Judgment for Plaintiff. Defendants Appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>The appellants contend that:</p> <p>1. The pleadings of the plaintiff below, appellee here, do1 not authorize the relief granted. Ky. Stat., sec. 11.</p> <p>2. The probate of Mary M. Morrison’s will can not be collaterally attacked in this case. Ky. Stat., sec. 4852; Johnson v. Bard et al., 54 S. W., 721; Whalen v. Nisbet, 95 Ky., 464.</p> <p>3. The deed made by Mary M. Morrison to Georgie A. Morrison was never delivered to or accepted by Georgie A. Morrison. Jackson v. Leek, 12 Wend., 107; Herbert v. Herbert, 12 Am. Dec., 192; Taylor et at. v. Street, 5 L. R. A., note p. 121; Peck et al. v. Rees, 13 L. R. A., 714, quoting Young v. Guilbeau, 70 U. S., 3 Wall., 636; Weber v. Christian, 2 Am. St. Rep., 68; Thompson v. Jackson, 10 Bush, 429; Bell v. Farmers’* Bank of Kentucky, 11 Bush, 34; Coiee v. Colee, 17 Am. St. Rep., 347; Jones’ Evidence, secs. 300, 502; Devlin’s Deeds (2d ed.), vol. 1, sec, 289.</p> <p>4. Georgie A. Morrison elected to take under the will of her mother, Mary M. Morrison, and so, even had the deed heen delivered to and accepted by her, she could not now take this property. Pomeroy’s Equity Jur. (2d ed.), vol. 1, sec. 472; Story’s Equity Jur. (Gth ed.), vol. 2, secs. 1093, 1094, 1095; Bigelow on Estoppel, 503, 504; Gore v. Stephens, 1 Dana, 203.</p> <p>5. If the deed was effective and Georgie A. Morrison elected to hold the house and lot under this deed, then having taken property under the will, compensation is due these appellants; and if she did not elect, or elected in ignorance of her rights, and •her devisee can now elect, which is denied, then these appellants are entitled to compensation for the said property, which compensation has become the value of the fee simple, before the court will adjudge the appellee the said house and lot. Pomeroy’s Eq. Jur., secs. 467, 468, 469, 512, 516; Story’s Eq. Jur., secs. 1083, 1084, 1085, 1098; William’s Exors., 5th Am. Ed., vol. 2, pt. 3, b. 3, c. 4, s. 9; Smart v. Baugh, 3 J. J. Mar., 365; Cox v. Rogers, 77 Pa. St., 160; Waterbury v. Netherland, 6 Heisk., 512; Am. & Eng. Bncy. of Law (2d ed.), Equitable Election, pp. 107, 108; Pickersgill v. Rodger, 5 Ch. Div., 163.</p> <p>6. The property has not been continuously occupied and controlled adversely to appellants by Georgie A. Morrison, by her and her tenants, under a claim of title of record for more than fifteen years prior to the filing of this suit, and limitation does not bar these appellants. Ky. Stat., sec. 2505; Simrall’s Admr. v. Graham, 1 Dana, 575; McQuerry v. Gilliland, 89 Ky., 440; Am. & Eng. Ency. of Law, Equitable Election, p. 110; Story’s Eq. Jur., sec. 1084; Spread v. Morgan, 11 H. L. Cas., 588.</p> <p>1. Where a deed is made by a mother to her daughter, who are living together in the same house, and same is put to record in the county where the property is situated, the law presumes an acceptance of the deed by the grantee, unless there is proof to the contrary. And especially js this true when the deed is beneficial to the grantee.</p> <p>2. A will made and probated in the State of Arkansas, does not and can not pass any title to real estate in this State, unless probated according to the provisions of our law relating to wills of nonresidents, and this has not been done by appellant.</p> <p>3. The doctrine of election does not apply to the case at bar, inasmuch as the devisee was never called upon to make an election or rejection under the paper called “Mary H. Morrison’s will,” and the fact that she took and held the property in controversy under the deed from her mother more than eighteen years, and still claims and holds the property under said deed, was and is an election to claim under the‘deed.</p> <p>4. The failure of the appellants to probate the will in contest in this State and in the county where the land lies, for more than fifteen years after the death of the testator, is a bar to a recovery of the land in controversy by appellant. And we further claim that the record of the attempted probation of the will in the State of Arkansas, does not present such a state of facts a:i would authorize .the same to be probated in this State.</p> <p>AUTHORITIES' CITED.</p> <p>Pennington v. Lawson, &e.,'23 Ky. Law Rep., 1340; Bunnell, &c. v. Bunnell, &e., 23 Ky. Law Rep., 800; Am. & Eng. Dec. in Eg., 379; Ky. Stat., sec. 4849; Ky. Stat., sec. 4854; Sneed v. Ewing, 5 J. J. Mar., 460; Robertson v. Barbour, 6 Mon., 523; Dupoyster v. Gagani, 84 Ky., 403; Helm v. Rookesby, 1 Met., 49; Whalen v. Nisbet, $5 Ky., 464; Allen v. Froman, 96 Ky., 313; .Ky. Stat., sec. 2514; Williams v. Jones, &e., 14 Bush, 418; Stephenson v. Bannister, 3 Bibb, 369.</p>

<p>Case 62 — 'Action by Commonwealth on Bei-iale of Charles Lin- ' thicum, Esci-ieatob, Against the Wisconsin Chair Co. to Forfeit the Title to Certain Land to the State.</p> <p>APPEAL FROM BALLARD CIRCUIT COURT — It. J. BUGG, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p>

<p>Case 63 — Proceedings by Jacob Gast Against S. W. Hager, Auditor, for a Mandamus to Compel Him: to Pay a Street Assessment Against the Property of ti-ie State on Which is Situated the Blind Asylum.</p> <p>appeal from franklin circuit court — JOHN D. CARROLL, special JUDGE.</p> <p>Judgment Awarding the Writ, and the Defendant Appeals.</p> <p>It is the contention of the State that the act in controversy, section 2833a, Kentucky Statutes, is unconstitutional, because it is in conflict with section 59, subsection 29, and section 60.</p> <p>1. Because it specially provides that the taxpayers of the State pay for the construction and improvement of the streets in the city of Louisville adjacent to the property of the State, while they are not required to do so for the improvement of like property situated in cities of the second, third and fourth classes; and it seems to us this is prohibited by section 59, subsection 29, of the 'Constitution of Kentucky.</p> <p>2. Because it is in conflict with section 60, which provides that the General Assembly shall not indirectly enact any special act exempting from the operation of a general act any city. By section 4026 public property used for public purposes is exempt from taxation of any kind, including apportionment warrants; and this act, in so far asi it attempts to tax said property, is void.</p> <p>3. The act is in' conflict with sections 49 and 50' of the Constitution.</p> <p>4. It is our contention that said property is not and can not be made liable for said debt under section 170 of the present Constitution, and said act being in conflict with said section, is void. There is a difference between the exemption from taxation of public property used for public (governmental) purpose, and property used for religious worship or institutions of purely public charity, etc.</p> <p>5. We further contend that said section 2833a, in so far as it attempts to impose a lien on the State’s property and to impose a tax on it by assessment warrants, is in conflict with subsection 22, of section 69, and section 170 of the Constitution.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The act of February 28, 1902, being section 2833a of the Kentucky Statutes, which provides that when a street is constructed in a city of the first class, and any real estate within the taxable limits is owned or held in trust by the State of Kentucky, that the pro rata part of the cost of making the street shall be ascertained and apportioned against such real estate, in like manner as against the other lots of ground within'the taxable limits, and the amount being certified to the auditor of public accounts, he shall draw his warrant on the State Treasurer for the amount thereof, and said treasurer shall pay said warrant out of any. money in the treasury not otherwise appropriated, does not violate sections 49 and 50 of the present Constitution. Lindsay v. Auditor, 3 Bush, 231; Auditor v. Haycraft, 14 Bush, 284; Com. v. Collins, 12 Bush, 386.</p> <p>2. The act of February 28, 1902, does not create a debt against the Commonwealth of Kentucky, within the meaning of sections 49 and 50 of the Constitution. It provides only for the payment of claims against the Commonwealth, arising in the manner specified in the act, and which must be paid out of any money in the treasury not otherwise appropriated. Building streets and roads leading to public buildings and institutions is one ofthe ordinary expenses of the Government and is included in the annual levy of State taxes of fifteen cents on each one hundred dollars of value of all property assessed for taxation, which is levied and collected for the ordinary expenses of the Government. Section 4019, Ky. Stat.</p>

Case 64 — Prosecution Against Hiram Denham fob an Assault with Intent to Kill. APPEAL FROM LINCOLN CIRCUIT COURT — 'W. C. BELL, CIRCUIT JUDGE. Dependant Convicted and Appeals. 1.

<p>Case 65 — Action Between W. F. Owsley, Sr., and Sarah A. Owsley, and by W. F. Owsley, Sk., Against W. F. Owsley, Jr.</p> <p>APPEAL FROM CUMBERLAND CIRCUIT COURT.</p> <p>On Motion to Correct Taxation of Costs.</p>

<p>Carriers — Duty to Furnish Separate Coaches for Different Races. -^Statutes — .Excuse—Unavoidable Accident — Jury Question— Indictment — Sufficiency.</p> <p>1 Under Kentucky Statutes 1903, section 795, providing that railroads doing business in the State shall furnish separate coaches for white and colored passengers; section 796, declaring that no discrimination shall be made in the .quality of such ■coaches, and section 797, providing that the failure of a railroad to comply with such provisions shall be deemed a misdemeanor— an indictment substantially following the words of the statute and alleging that defendant willfully and unlawfully failed to furnish such coaches on a particular occasion, sufficiently charges the commission of a public offense.</p> <p>2. On a prosecution of a railroad under Kentucky Statutes 1903, sections 795-797, for failure to furnish separate coaches for white and colored passengers, where defendant alleged that such failure was caused by an accident preventing the attachment of a separate coach to the train, an instruction that if the jury believed that the operation of a train without a separate coach, marked and provided as required by law, was caused by an unavoidable accident, which defendant, by ordinary prudence, could not have guarded against, they should find defendant not guilty, should have been given.</p>

<p>Case 67 — Action by H. P. Thompson Against Archer Habmon and Others for Breach of Contract in the Sale of Town Lots.—</p> <p>APPEAL FROM CLARK CIRCUIT COURT-J. SMITH HAYS', SPECIAL JUDGE.</p> <p>Judgment for Plaintiff. Defendant Harmon Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. If this is an action suing for the purchase price or for specific performance to enforce a vendor’s lien, the demurrer to the petition should have been sustained, as appellee failed to allege that he was ready, willing and able to convey or tender a deed for same. Calvin v. Duncan, 12 Bush, 101; Williams v. Abrahams, 3 Bush, 186; Phillips v. Buck’s Exr., 79 Ky., 465; Faulkner’s Admr. v. Williman, 13 Ky. Law' Rep., 107; Newman’s Pleading and Practice, 371.</p> <p>2. If it is a suit for- damages sustained by appellee for failure of appellant to take and pay for the property, the petition should have alleged that appellee was ready, willing and able to convey a good title according to the terms of the contract. McBrayer v. Cohen, 92 Ky., 479.</p> <p>3. The contract sued on being ambiguous, the court should have permitted parol evidence to show the intentions of the parties or the construction which they had put upon it. Breckinridge v. Duncan, 2 A. K. Mar., 50; Am. and Eng. Ency. of Law (2d ed.), vol. 2, p. 291; Henry’s Exrs. v. Henry’s Heirs, 81 Ky., 343; Ynncen. v. Citizens’ G. L. and Coke Co., 16 L. R. A., 488; Topliff v. Topliff, 122 U. S., 1110; Chicago v. Sheldon, 76 U. S., 595; Thomson v. Thomson, 2 B. Mon., 166.</p> <p>4. The acts of appellee in mortgaging to the Farmers’ Tobacco Warehouse Company the property which he claims to have sold appellant was a repudiation of the contract by appellee. Wilhelm v. Fimple, 31 Iowa, 131.</p> <p>5. It was error for the lower court to enter an order on October 24th, one day after the trial, and have that order written on the order book as of October 17th, in which he adjudged that appellant had repudiated the contract. 15 Ehcy. Plead. & Prac., pp. 316 and 331; Smith v. Spalding, 3 Robert (N. Y.), 615; 30 Howards (N. Y.), 339; S'chultz v. Winter, 7 Nevada, 130; Russell’s Heirs v. -Claxton’s Heirs, 12 Bush, 558.</p> <p>6. Peremptory instructions should have been given to find for appellant.</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. If the petition sounds in damages, the fact that it is filed in a court of equity does not change its aspect, or make it any the less a suit for damages; and the question of the proper forum for trial can not be raised by demurrer to. the petition, it should be presented by motion to transfer to the proper docket. Ky. Mutual Co. v. Turner, 89 Ky.. 665; Turner v. Newman, 19 Ky. .Law Rep., 231.</p> <p>2. The payment of the purchase price and the performance of other conditions by appellant, and the delivery of the deed by ■appellee were not mutual, and concurrent conditions. The appellant was required to perform certain precedent conditions, including the payment of the purchase price, prior to the delivery of the deed by the appellee, and upon the failure of appellant to perform the conditions precedent and pay the purchase price, at the appointed time, appellee had a right to institute his suit without having tendered a deed or alleging in his petition that he was ready, able and willing to convey a gooda title. 7 Amer. & Eng. Ency. of Law, pp. 118 and 121; Pass-more v. Moore, 1 J. J. M., 591; Spriggs v. Alvin, 6 J. J\ M., 161; Williams v. Henry, 3 Den. (N. Y.), 366; 4 Ency. of PI. & Pr., 627, 636, 639; Sousley v. Burns’ Admr., 10 Bush, 90.</p> <p>3. Even if appellee had carried the burden of the condition precedent, and had failed to allege performance, or offer or ability to perform, the appellant did not stand on his- demurrer, but answered to the merits and tried out the case on the issues, and the objections raised by the demurrer were waived and the defects cured by the verdict. 4 Ency. of PI. & Pr., 662, and cases there cited; Duncan- v. Brown, 15 B. M., 196; Roundtree v. Hendrick’s Admr., 1 B. M., 189.</p> <p>4. Appellee was not only willing and able to convey a' good title to appellant, but did convey acceptable titles to all those to whom appellant sold lots, and appellant took possession of the property, and thus accepted appellee’s title, and vouched for same in the sales to others.</p> <p>5. The contract not being ambiguous, it is not open to interpretation or -construction, either by showing the acts' of the ■parties or other facts.</p> <p>6. Upon the breach of a contract for the sale of property, occasioned by the buyer, the seller can keep or dispose of his property at his pleasure. If appellant had not repudiated the contract at the time appellee’s action was instituted, appellee had no cause of action. On the other hand, if appellant had repudiated the contract, he was not interested in any disposition of the property thereafter made by appellee.</p> <p>7. The defendants being obligated to sell plaintiff’s land, and to open such streets and alleys as they thought proper, they have been properly charged with their share of the expenses incurred in advertising the sale of lots, because the advertising expense is a necessary incident to the undertaking to sell; and they can not complain that there was no mutual agreement as to the location and cost of the streets, because it was their duty to open the streets, and- primarily pay for same, and they did open and locate these streets through their engineer, for which work the plaintiff paid.</p> <p>8. The defendants admittedly failed and refused to carry out the contract as construed by the court, and the question of abandonment was a question of law for the court and not an issue for the jury.</p> <p>9. The judgment of a court is a judicial act, and the act of the clerk in entering it is merely ministerial, and the validity of the judgment is not affected by the failure of the clerk to enter it. When a judgment has been rendered and same lias not been entered through neglect of the clerk, the court has power to have same entered as of the date when rendered. 18 Ency. PI. & Pr., 452, 453; Newman v. Cincinnati, 18 Ohio, 323; Black on Judgments, yol. 1, secs. 130, 131, 153.</p>

<p>Case 68 — Action by Robert B. Franklin Against S. W. Hager, Auditor, to Test the Question of the Percentage of Commonwealth’s Attorneys in Fines and Forfeitures as Affecting His Salary as Such Official.</p> <p>appeal from franklin circuit court.</p> <p>From the Judgment in Favor of the Plaintiff the Auditor Appeals</p> <p>1. The Commonwealth’s attorney, under the law (Constitution, section 97), goes into office on the first Monday in January, and his term of office is fixed at six years. Hence, we contend that the phrase “for any one year,” in Kentucky Statutes, section 125, means from the first Monday in January in any year, to the corresponding day in the succeeding year, and that ■ the 50 per centum of all judgments for fines and forfeitures rendered in favor o the Commonwealth in the several counties of his district, provided for in sections 124 and 125 of Kentucky Statutes, means the judgments for fines and forfeitures rendered between the first Monday in January of any year and the corresponding day of the succeeding year, and that the Commonwealth’s attorney gets 50 per cent of said judgments rendered between said dates, until he has received for said year the said sum of $4,000 provided by law.</p> <p>2. The Commonwealth’s attorney has a vested interest in 50 per centum of all such judgments until his compensation of $4,000 has been paid, and this interest becomes fixed at the moment the judgment becomes final; and the date of their rendition fixes the year’s compensation, to which 50 per centum must be applied. The Peacock judgment and the Bluegrass Traction Co. judgment, the 50 per cent, of which is in controversy herein, were both rendered in 1903, and that fixed the year to which they must be applied in the payment of appellee’s salary or compensation; but for that year, he admits he has been paid said $4,000, and that there is nothing due him for the year 1903. Hence, we contend that, under section 125, they must be left in the State treasury. 87 Ky., 434; Berry v. Sheehan; Stone v. Riddle, 5 Bush, 349; Williams v. Shelburn, 102 Ky., 579; Spalding v. Hill, 24 R., 1802.</p> <p>3. If the auditor had paid appellee on these two judgments when his demand was made about the first of April, appellee would then have received about $2,000 of the $4,000 due him at the end of the year, while he had only performed the duties of his office three months, and if .appellee should have then died the State would have been required to pay another to perform the services for which it had already paid the appellee.</p> <p>1. I submit that the legislative intent, in the enactment of the statute, was to give to the officer, not the office, a vested right to or interest in the judgment, inchoate, the instant it was rendered, which ripened into a valid demand the moment it was collected and paid into the State treasury, and this property right is in the incumbent of the office at the time the judgment is rendered, and he can not be deprived of this right or interest in the judgment in but one way, and that is by his having received, for the year in which the judgment was rendered, the full limit fixed by the statute, viz.: $4,000; and his having gone out of office before its collection can have nothing to do with, nor in any wise affect his right to,-the commissions in such judgments.</p> <p>1. Our contention is that upon the entry of the judgment the Commonwealth’s attorney for the time being acquired a vested right to his commission out of the amount adjudicated against the defendant. He has no right to collect this amount by the express terms of the statute until the judgment has been paid into the State treasury. The.payment into the treasury is the fact which determines his right to commission, and until, that fact occurs that which was merely inchoate does not become a complete right.</p> <p>2. The fees pertain to the office and not to the individual.</p> <p>AUTHORITIES CITED.</p> <p>Constitution, sec. 98; Ky. Stat., secs. 124, 125, 133; Berry v. Shehan, 87 Ky., 434; Chinn v. Shackelford, 25 Ky. Law Rep., 1813; Spalding v. Hill, 24 R., 1802.</p>

Case 69. — Action by W. S. Jones Against Sophia Crawford, Involving the Right of an Infant Married Woman to the Occupancy of Her Deceased Father’s Homestead. APPEAL FROM HENRY CIRCUIT COURT — R. F. PEAK, CIRCUIT JUDGE. 1. We insist that appellee was never entitled to a homestead in the tract of land in controversy. 2.

<p>Case 70 — Action by Henry Poulter’s Adm’r Against The Louisville & E. R. R. Co. for Causing the Death of Plaintiff’s Intestate.</p> <p>APPEAL FROM OLDHAM CIRCUIT COURT — G. ALLISON HOLLAND, SPECIAL JUDGE.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>POINTS AND AUTHORITIES DISCUSSED.</p> <p>1. The peremptory instruction should have been given, because no negligence against appellant was established, and for the further reason that, even if the scaffold was not braced, or the outrigger had a knot in it, such condition was not, even if negligent, the proximate cause of the accident. 1 Thompson’s Commentaries on the Law of Negligence, secs. 44, 45; L. & N. ■R. R. Co. v. Ewing’s Admx., 25 Ky. Law Rep., 1712.</p> <p>2. The burden was on appellee to establish negligence, and he failed to do so. Louisville Gas Co. v. K. S. & Co. and cases cited therein, 105 Ky., 156, 157; L. & N. R. R. Co. v. Wathen, 22 Ky. Law Rep., 82; Hurt v. L. & N. R. R. Co., 25 Ky. Law Rep., 755; Central Coal & Iron Co. v. Pierce, 26 Ky. Law Rep., 2271; Kentucky Freestone Co. v. McGhee, 25 Ky. Law Rep., 2212; Adams Express Co. v. Smith, 24 Ky. Law Rep., 1915; Pfisterer v. Peter & Co., 25 Ky. Law Rep., 1605; Shemwell v. Owensboro & N. R. R. Co., 25 Ky. Law Rep., 1671; Wilson v. Chess & Wymond, 25 Ky. Law Rep., 1655; In Hary v. Cumb. Tel. & Tel. Co., 25 Ky. Law Rep., 2133; C. & O. & T. P. R. Co. v. Cook’s Adm’r., 2152.</p> <p>3. Poulter was guilty of contributory negligence. L. & N. R. R. Co. v. Fox, Adm’r, 20 Ky. Law Rep., —; Bush v. Grant, 27 Ky. Law Rep., 1766; P. & M. R. R. Co. v. Hoehl, 12 Bush, 41; 1. C. R. R. Co. v. Dick, 91 Ky., 434; L. & N. R. R. Co. v. Cummins,'Adm’r, 23 Ky. Law Rep., 681; Cain’s Adm’r v. The Ohio Yal. Tel. Co., 20 R., 858; L. & N. R. R. Co. v. Ewing’s Admx., 25 Ky. Law Rep., 1712.</p> <p>4. The verdict is not sustained by sufficient evidence. Sec. 340, subsec. 6, Civil Code; Hurt v. L. & N. R. R. Co., 25 Ky. Law Rep., 755; L. & N. R. R. Co. v. Hall, 24 Ky. Law Rep., 2487; L. & E. M. Co. v. Gilliland, 24 Ky. Law Rep., 2081; L. & N. R. R. Co. v. McGary’s Adm’r, 104 Ky., 509; L. & N. R. R. Co. v. Carter, 23 Ky. Law Rep., 2020.</p> <p>5. The court erred in giving and refusing instructions. Shan, non’s Adm’r v. L. & N. R. R. Co., 24 Ky. Law Rep., 1083; Central Coal & Iron Co. v. Peter & Co., 25 Ky. Law Rep., 2271; Pfisterer v. Peter & Co., 25 Ky. Law Rep., 1609.</p> <p>6. A continuance and change of venue should have been granted. Sec. 1103, Ky. Stat; Asher v. Beckner, 19 Ky. Law Rep., 536, 537; Middlesboro Waterworks v. Neal, 20 Ky. Law Rep., 1408; Wall v. Muster’s Exors., 23 Ky. Law Rep., 556; Newcomb v. Baskett, 14 Bush, 667.</p> <p>7. The jury should have been discharged.</p> <p>8. The'defendant did not obtain a fair trial.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A peremptory instruction should not have been given.</p> <p>2. It is for the jury to say whether or not the negligence complained of was the proximate cause of the injury. L. & N. R. R. Co. v. Ewing’s Admx., 78 S. W., 461.</p> <p>3. There is no evidence in the case at bar that could bring it within the rule that where the question is one of negligence or no negligence, a peremptory instruction should be given.</p> <p>4. Appellant’s evidence shows that the accident resulting in Poulter’s death could not have happened according to their theory.</p> <p>5. Poulter did not know, and it was not his duty to know of the defects and dangers in the scaffold, unless such defects and dangers were obvious and patent. Pfisterer v. Peter, &c., 25 Ky. Law Rep., 1605; Kentucky Freestone Co. v. McGhee, 25 Ky. Law Rep., 2212, and other cases cited.</p> <p>6. Appellant company could have known, and it was its duty to know, of defects and dangers in said scaffold. Harp v. Cumb. Tel. & Tel. Co., 25 Ky. Law Rep., 2133; Pfisterer v. Peter, &c., supra.</p> <p>7. It was the duty of appellant to furnish Poulter with a reasonably safe place in which to work, and to keep it safe. Harp v. Cumb. Tel. & Tel. Co., supra; Pfisterer v. Peter, &c., supra, and cases therein cited.</p> <p>8. The doctrine of equal means of knowledge is not recognized by the courts of this State, and if it were, it would not be applicable to the facts in the case at bar. Pfisterer v. Peter, &c., supra; L, & N. R. R. Co. v. Vestal, 105 Ky., 461.</p> <p>9. A change of venue should not have been granted. Secs. 1095, 1096 and 1103, Ky. Stat.</p> <p>10. Instructions 3 and 5 given by the court were proper. Vandyke v. Memphis, &c., Co., 24 Ky. Law Rep., 1284.</p> <p>11. Appellee’s evidence shows all the facts necessary to constitute a clear case of negligence on the part of appellant, and to entitle appellee to recover.</p> <p>12. The evidence does not show that Poulter was guilty of contributory negligence, and even if he was, that is a question for the jury to determine.</p> <p>13. The testimony of appellant’s witnesses, Fountain and Jennings, is contradictory, inconsistent and can not be reconciled. .</p>

<p>Municipal Corporations — Local Improvements — Tax Bills — Estates Liable — Particular Estates and Remainders — Actions— Pleadings — -Exhibits-—Effect.</p> <p>1. Under Kentucky Statutes 1903, section 2990, providing that, where remainders and reversions are outstanding, the holder of the particular estate shall be assessed with the words “holder of the present estate” added to his name, and section 2996, providing that authenticated tax bills shall be prima facie proof that all steps have been taken to constitute a valid tax bill against the person and property therein named, a recital in a tax bill against A. and B. that A. is “holder present estate” controls an allegation of a pleading, with which it is filed as an exhibit,, that A. and B. are joint owners of the land, and shows instead that A. is the holder of the particular estate and B. the remainderman.</p> <p>2. Where the life tenant is not brought before the court in a suit against the remainderman on a tax bill, no interest of the life tenant passes under the judgment or sale.</p> <p>3. Where both a life estate and an estate in remainder coexist in land subject to a tax bill, the particular es'tate is primarily liable for the claim, and the tenant thereof should be brought before the court, and his interest first sold, so that the remainderman may protect himself by buying in the life estate, instead of first selling the remainder interest, and leaving the holder of the particular estate in full possession of his property free from the tax lien.</p>

<p>Case 72 — Action by ti-ie Louisville School Board Against the City of Louisville to Recover a Share of the Interest Collected by the City on Delinquent Taxes.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION NO. 1— SHACKELFORD MILLER, judge.</p> <p>Judgment for Plaintiff and Defendant Appeals.</p> <p>The “one-half of one per cent, for every month or fraction of a month” provided for by section 2998, Kentucky Statutes, on the amount of tax bills due the city of Louisville after the first day of May succeeding the date they are listed with the tax receiver for collection is not “interest,” although so called, but a penalty for non-payment, which is imposed by the General Assembly, and constitutes no part of the tax itself, which, under section 181 of the Constitution, can be imposed only by the local authorities of the citj, nor .should such penalty, when collected, be apportioned among the several departments and institutions of the city, including the school board, according to the levies made therefor, but the same belongs to the city proper, and is properly placed to the credit of .the fund for general purposes, subject to the appropriation by the general council.</p> <p>AUTHORITIES CITED.</p> <p>Secs. 2969, 299S, 3004-6, Ky. Stat; Kentucky Central Railroad Co. v. Pendleton County, S R., 517; Ormsby v. City of Louisville, 79 Ky., 202; L. & N. R. R. Co. v. Hopkins Co., 87 Ky., 615; L. & N. R. R. Co. v. Commonwealth, for the use of Marion County, 89 Ky., 539; Walston, Trustee, v. City of Louisville, 23 R., 1852; Owensboro Water Works Co. v. City of Owensboro, 25 R., 434; Cooley on Taxation, 2d ed., pp. 17, 456, 2d ed„ pp. 457, 458; City of Louisville v. Louisville Railway Co., 23 R., 390; Desty on Taxation, sec. 130, vol. 2, pp. 763-767; Union Ins. Co. v. Hoge, 21 How., 35; Matthew's v. Shores, 24 111., 27; Solomon v. Commissioners, &e., 41 Ga., 157; Plummer v. Plummer, 37 Miss., 185; United States v. Pugh, 99 U. S., 269; Clark’s Run & Salt River Turnpike Road Co. v. Com., 96 Ky., 525; Harrison v. Com., 83 Ky., 170.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Interest on tax bills, distinguished from penalties, and not appropriated for the benefit of city. Ky. Stat., secs. 2998, 2981, 2999, 3001, 3003, 3004, 3005, 3006. Taxes, except by statute, not a debt, and do not bear interest. Jones v. Gibson, 82 Ky., 561; 27 A. & E. Ency. of Law (2d ed.), 577; Cooley on Tax., 13; Cent. R. R. v. Pendleton Co., 8 R., 517.</p> <p>2. Interest on tax’ bills, not appropriated by statute, apportioned. Board Hancock Co. v. State, 119 Ind., 473 (22 N. E., 10); State v. Huffaker, 11 Nev., 300; State v. Bowker, 4 Kan., 116; Kansas Ry. Co. v. Amrine, 10 Kan., 318; People v. Reis, 76 Cal., 272 (18 P., 309); Board of Prowers Co. v. People, 69 P., 73 (Col.); City of New Whatcom v. Roderer, 61 F:, 657 (Wash., 1900); Board of Co. Comm’rs v. Wichita, 64 P., 621 (Kan.); Tacoma School Dist. v. Hedges, 42 P., 522 (Wash.).</p> <p>3. Interest on taxes for educational purposes is a sum raised by taxation within the Constitution, and can not be diverted by a statute of limitation or laches. (1) Money produced by taxation for educational purposes can not be appropriated to any other purpose under Constitution. Constitution 1850, art. 11, Ky. Stat. p. 80; Constitution 1891, secs. 180, 184, 186. (2) Legislature has no power to divert school fund. Halbert v. Sparks, 9 B., 259; Collins v. Henderson, 11 B., 74; Auditor v. Holland, 14 B., 147; Underwood v. Wood, 98 Ky., 77; City v. Leatherman, 99 Ky., 213; Board v. Board of Trustees, 24 R., 102; Auditor v. Trustees Frankfort, 81 Ky., 681. (3) Any part of school fund diverted must be returned. City v. Louisville School Board, 17' R., 697; City of Cynthiana v. Board, 21 R., 731; Board of Library v. Board of Education, 25 R., 341. (4) Interest attaches to principal debt from which it accrues. Rate of tax for city schools, Chart. 1870, sec. 80, Chart, and Ord. 1869-72; Acts 1879, vol. 1, p. 556; Ky. Stat., secs. 2969-2981; Bien. Comp. Ord. 1901, pp. 391-423; State v. Bowker, 4 Kan., 114; Kansas v. Amrine, 10 Kan., 325; 27 A. & E. Eney of Law (2d ed.), 778-9; Burlington v. Burlington, 41 Iowa, 142. (5) Diversion of school fund by statute of limitations or laches nullifies the Constitution. Ky. Stat., secs. 2515-43; Const., secs. 180-184. Laches, (a) Agent or trustee can not set up adverse title. Perry on Tr., sec. 863. (b) Adverse title must be hostile. Perry on Tr., see. 866; City v. Louisville School Board, 17 R., 697. (c) Can not make profit out of trust estate. Perry on Tr., 427-8, 468, 869; Mechem on Agency, sec. 467. (6) One department of government can not plead limitation against another. Board v. Auditor, 80 Ky., 336.</p>

Case 73 — Action by E. A. Carpenter Against E. A. Carpenter’s Trustee to Vacate the Trust. APPEAL FROM HART CIRCUIT COURT-S. E. JONES, CIRCUIT JUDGE. From a Decree Dismissing the Petition Plaintiff Appeals.

<p>Case 74 — Action by Albert Silva Against The City of Newport to Test the Validity of a City Ordinance.</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT — A. S. BERRY, CIRCUIT JUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A municipal corporation can only exercise those powers expressly granted, or those necessarily or fairly implied or incident to the powers granted, or essential to the declared objects and purposes of the corporation. And the powers granted are strictly construed. Dillon Munic. Corp., secs. 89, 90, 91; Simrall v. City of Covington, 90 Ky., 448; Bellevue v. Hahn, 82 Ky., 4; Covington St. Ry. v. Covington, 9 Bush, 127; Louisville St. Ry. Co. v. Louisville, 8 Bush, 420; Broadway Baptist Church v. McAtee, 8 Bush, 500; Wheatley v. Covington, 11 Bush, 19; Johnson v. Louisville, 7 Bush, 603; Johnson v. Louisville, 11 Bush, 562; Com. v. Vorheis, 12 B. M., 362; Henderson v. Covington, 14 Bush, 312; Kniper v. Louisville, 7 Bush, 599; Ruttle v. Covington, 10 Ky. Law Rep., 766.</p> <p>2. The granting the control of its streets to a municipal corporation does not empower the city to grant any franchise for the use of said streets. Louisville St. Ry. Co. v. Louisville, 8 Bush, 420; Covington St. Ry. Co. v. Covington, 9 Bush, 127.</p> <p>3. The right to use the streets of a city for laying mhins for gas, steam, hot water, etc., is a franchise that can only be granted by the Legislature or some local or municipal authority authorized to confer it. Newport Light Co. v. Newport, 84 Ky., 176; Dillon Munic. Corp., sec. 691.</p> <p>4. Courts will declare an ordinance invalid if the ordinance is uncertain or unreasonable. Simrall &. Co. v. City of Covington, 90 Ky., 444; Doyle v. Trustees of Bellevue, 1 Ky. Law Rep., 168.</p> <p>5. The ordinance and advertisement do not call for the highest and best bidder, but states that the franchise will be awarded to the highest bidder. The provision of section 164 of the Constitution is mandatory. Keith v. Johnson, 22 Ky. Law Rep., 947; Sec. 164, Ky. Const.</p> <p>6. The Constitution treats “steam-heating” franchises as a distinct franchise, for the granting whereof the city must be expressly empowered by the Legislature. Sec. 163, Ky Const.; Sec. 158, Ky. Const.</p> <p>Our contention is as follows:</p> <p>The present Constitution of Kentucky says, “No gas, steam, heating, etc. company shall lay its pipes and mains in the •streets of a city without consent of proper legislation by said cities.” The converse of this proposition is true, that with the consent of such bodies they may. The ordinance in question does not authorize a sale of, nor undertake to grant any franchise to, any company except for the purpose of entering in and upon the streets, alleys and public places of the city of Newport, Ky.; that to the highest bidder, subject to the right of the general council to reject any and all bids, as contemplated in section 164 of the present Constitution of Kentucky, no city shall grant any franchise for a term of years exceeding twenty; and that after due advertisement. Nor has- appellee undertaken, anything contrary hereto.</p> <p>The undersigned, the bidder for the franchise involved in the action here, respectfully asks the court to permit him to intervene herein by brief.</p> <p>1. We submit that the language of the ordinance is clear and explicit, and its meaning not in any wise clouded or hidden; that, while bidders were authorized to bid for gas in combination with either hot water or steam, bids were invited also> for “gas alone.”</p> <p>2. The person desiring to bid for the other rights could have easily have done so by setting forth in his bid the franchise desired, and the ordinance in that respect is capable of clear understanding.</p> <p>3. Two bona ficle bids were received, as shown by the eopies. filed. Both these bids were for the franchise for supplying to> the city of Newport and its consumers “gas alone,” and neither of the bids is complicated with the bid for hot water or steam-</p> <p>4. The makers of the Constitution provided that no hot water or steam heating company should lay its pipes or mains under or over the streets of the city without the consent of the proper legislative bodies or boards of such city -being first obtained,. thereby intending to confer, and did confer, upon such companies to occupy the streets when the consent of the proper' authorities had been first obtained.</p> <p>5. By the general rules of construction it is the duty of the court to effectuate a law, if it can be done, without strained construction.</p> <p>AUTHORITIES CITED.</p> <p>Const., sec. 163; A. & E. Ency. of Law, vol. 26 (2d ed.), p. 570; Rogers v. Jacobs, 8S Ky., 570; Gilbert v. Paducali, 72 S. W., 816; Southern Ry. in Ky. v. Coulter, 68 S. W., 877; Jernigan v. City of Madisonville, 102 Ky., 313; Com. v. Slierman, 85 Ky., 691; Peacock & Co. v. Pratt, 121 Fed., 77S; Huntington v. Worthen, 120 U. S., 97; Busch v. Webb, 122 Fed., 655; Comm’rs of Wilks Co. v. Coler, 113 Fed., 725: ,U. S. v. Freeman, 113 Fed., 373; In re New York & L. I. Bridge Co., 90 Hun., N. Y., 312; Ried v. Morton, 119 111., 118; Heinz v. The People, 92 111., 424.</p>

<p>Case 75 — Action by Eliza Shade’s Adm’b Against the CovingtonCincinnati Elevated R. R. & Transfer & Bridge Co. fob Damages foe Causing the Death of Plaintiff’s' Intestate.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-W. McD. SHAW, CIRCUIT JUDGE.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>We contend:</p> <p>1. Where the proof shows that appellant’s intestate was in sound and robust health, able to do all her own house-work, and that immediately after the action complained of she was found in an almost helpless condition, was taken to her home, treated for the injuries received on this occasion, and within a few days thereafter died, if such facts did not conclusively prove that death was the result of injuries received, they were certainly sufficient to warrant a submission of the case to the jury as to the cause of her death.</p> <p>2. Declarations made by the intestate to her physician while suffering pain resulting directly from the injuries, received, though made at a different place from that at which the in-' jury occurred, and after an interval of time had elapsed, furnishes the necessary connection between the transaction and the statement that will authorize the admissibility of the statement in evidence as to how the accident occurred.</p> <p>3. The rule is well settled in this State that if a prima facie case is made out, or the evidence tends in any degree to support a right of recovery, it is error to give peremptory instructions. If the ease were open to douht as to the manner in which the accident to Mrs. Shade happened, or, as the authorities aptly express it, when the evidence is as consistent with the non-existence of negligence as it is with its existence, then the peremptory instruction in this case would have been proper-But when a very reasonable inference from the evidence points unerringly to the negligence of appellee, the peremptory instruction was an error.</p> <p>AUTHORITIES CITED.</p> <p>Shelby’s Adm’r v. Railroad Co., 85 Ky., 225; Shackelford’s Adm’r v. Railroad Co., 84 Ky., 44; Gregory v. Nesbit, 5 Dana, 421; Shay v. R. & L. T. Co., 1-, 109; Easley v. Easley, 18 B. M., 93; Trotter v. Sandei's, 7 J. J. Mar.,'321; Slaughter v. Morgan, 1 Met., 29; Stephen v. Brook, 2 Bush, 138; Eskridge Exors. v. Cincinnati, &c., R. R. Co., 89 Ky.</p> <p>1. We submit that evidence of statements made by appellant’s intestate to her attending physician, not testified to by the physician, but by other witnesses who were present and claiming to have heard them, and which were made some days after the accident occurred, are not part of the res gestae, and therefore not competent.</p> <p>2. There is absolutely no proof that decedent fell upon ice or that she fell at all, unless the statements of the two women as to declarations made by her to the doctor are admitted.</p> <p>3. The rule is too well established in this State to need more than to call attention to some of the cases, that the burden of showing neglect in'a ease of this kind rests upon complainant, and that if the evidence shows that the injury may have resulted from any one of two or more causes, only one of which was due to defendant’s negligence, and the inference that the injury resulted from the one cause is no stronger than that it resulted from the other, plaintiff has failed to make out a case, and it is not competent for the court to leave the question to the jury.</p> <p>4. We agree absolutely with the statement of counsel for appellant in closing their brief, “that if the case were open to doubt as to the manner in which the accident to Mrs. Shade happened, or, as the authorities aptly express it, when the evideuce is as consistent with a non-existence of negligence as it is with its existence, then the peremptory instruction in the case would have been proper.”</p> <p>AUTHORITIES CITED.</p> <p>Vol. 4, Am. & Eng. Ency. of Law (2d ed.), 943, 945, 951; Prank-fort Bridge Co. v. Williams, 9 Dana, 403; Shearman & Redfield on Negligence (5th ed.), secs. 397, 363; Sehaefler v. Sandusky,. 33 O. S., 246; The Village of Leipsic v. Gei'deman, 68 O. S., 1; Hughes v. Cincinnati, &c., R. R. Co., 91 Ky., 526; Hughes’ Adm’r v. L. & N. R. R. Co., 23 Ky. Law Rep., 2288; Dame v. Laconia Car Co., 71 N. H., 407; Omberg v. U. S. Mutual Accident Ass’n,. 101 Ky., 303; Travelers’ Insurance'Co. v. Moseley, 75 U. S., 397; Dabbert v. Travelers’ Insurance Co., 2 Cin. Sup. Ct. Rep., 98; Northern Pacific R. R. Co. v. Urlin, 15S U. S., 271; Williams v. The Great Northern R. R. Co., 37 Lawyers’ Rep., Annotated, 199; Chapin v. The Inhabitants of Marlborough, 9 Gray (Mass.), 244; Denton v. The State, 1 Swan (Tenn.), 279; L. & N. R. R. Co. v. Ellis’ Adm’r, 97 Ky., 330; Brown v. The Louisville Ry. Co., 21 Ky. Law Rep., 995; C., C. & C. R. R. Co. v. Mara, 2G O. S., 185; Guild v. Pringle, 130 Fed., 419; B. & O. R. R. Co. v. McClellan, 69 O. S., 143, at 159. “The law demands proof and not surmises.” Hughes v. R. R., 91 Ky., supra; Hughes’ Adm’r v. L. & X. R. R. Co., 23 Ky. Law Rep., supra; U. S. v. Ross, 92 U. S., 281, 283, 2S4; Bond v. Smith, 113 N. Y., 378, 385; Dame v. Laconia Car Co., 71 N. H., supra.</p>

<p>Water Companies — Contract with City — Construction—Breach— Liability to Individual Property Owners — Evidence.</p> <p>1. For breach of a contract between a water company and a city, whereby the company is allowed to lay water mains, and stipulates to furnish a certain pressure for fire hydrants, the company is liable to an individual property owner for damages by fire from lack of the stipulated pressure; and this though the contract provides that the failure of the company to comply with it shall, at the option of the city, work a forfeiture of the company’s right to rentals, and, if continued for thirty days, shall authorize the city to terminate the contract.</p> <p>2. A contract of a water company, with a city that it shall lay mains of sufficient length to properly connect the two hundred fire hydrants stipulated for, and of capacity to deliver the requisite quantity of water for fire protection and domestic supply as stipulated; that the main pipe leading from the pumps shall be 16 inches in diameter, and the remainder 12, 10, 8, 6, and 4 inches in diameter; that, in the construction of the waterworks, the machinery and hydrants shall be of a certain make or of equal efficiency, and shall have two separate boilers, which machinery and boilers shall throw, if necessary, six streams ■of water at one time out of 214-inch hose, with 1-inch nozzles, to a height of 80 to 100 feet — does not require a pressure sufficient to throw six streams of the prescribed force at one time and on one main, but merely to throw six such streams from six hydrants at different points on the system, where a pressure sufficient to throw six such streams from a 4-inch main would burst it and all the plumbing, in the city.</p> <p>3. On the question of the construction- to be put on the part of a contract of a water company with a city for installing a water' system, as to the pressure required, a map showing location of the mains and hydrants, and the acceptance by the city of the system as shown by the maps, should be admitted in evidence.</p>

<p>Judicial Sales — Wauer of Advf.rtisement in Newspaper — Consent of Infants — Validity.</p> <p>Under Kentucky Statutes -1903, section 14a, providing that judicial sales shall, ‘ unless otherwise agreed upon by the parties,” he advertised in a newspaper, an infant party to proceedings for the sale of real estate of which such infant is part owner may, with the chancellor’s approval, consent, through his statutory •guardian, to a sale without newspaper advertisement.</p>

<p>Case 78 — Controversy Between John F. Butler ano A. B. Stephens, to Determine Which of Them Shall Perform the Duties of Commonwealth’s Attorney for Floyd County.</p> <p>APPEAL FROM FLOYD 'CIRCUIT COURT.</p> <p>D. W. Gardner, Circuit Judoe, Judgment for Stephens. Butler Appeals .</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. The Constitution prohibits the formation of .any judicial district aside from these 'in counties where cities are situated which contain less than 60,000 inhabitants. Sections 128, 129, 132, 134, 137, 138. Public Acts, page 325, 1904.</p> <p>2. The court will take judicial knowledge of who the officers of the State are, the judicial districts, their territory and population, of the public acts of public officers, of distances, of the history or geography of the country. Russell v. Sargeant, 7 111. App., 7 Bradw., 9S; Cincinnati I. St. L. & C. Ry. Co. v. Grame, 8 Ind. App., 112,( 34 N. E., 613); State v. Ray, 97 N. C., 510 (1 S. E., 876); Kilpatrick v. Comth., 33 Penn. St., (7 Casey), 198; Hancock v. Town of Worcester, 62 Vt., 106 (18 At., 1041); Yahle v. Brackensieck, 145 111., 231, 34 N. “E., 524, In re Hackley, 21 How. Prac., 103; C., B. & Q. R. Co. v. Plyatt, 48 Neb., 161, 61 N. W„ 8; State v. Ray, 97 N. C., 510, 1'S. E., 876; Armstrong v. U. S., 80 US. (13 Wall.), 154, L. Ed., 614; Jenkins v. Collard, 145 U. S., 546, 12 Sup. Court, 868, 36 L. Ed., 812; Dunning v. New Albany, &c., 2 Ind. (2 Cart), 437; Wells v. Missouri P. Ry., 110 Mo., 286, 19 S. W., 530, 15 L. R. A., 547; Jones v. U. S., 137, U. S., 202, 11 Sup. Ct., 80, 34 Law Ed., 691; Smith v. Same, 137 U. S., 224, 11 Sup. Ct., 88, 34 L. Ed., 700; Key v. Same, Id.; McConnell v. Bowdry, 4 Mon., 394; Hart v. Bodley, Hard., 98; Creighton v. Bilbo, 1 Mon., 140; Barnett v. Godshaw, 12 Bush, 597; Powers v. Commonwealth, 22 Ky. Law Rep., 1807; Kennedy v. Commonwealth, 78 Ky., 447; Powers v. Commonwealth, 22 Ky. Law Rep.,. 3 807.</p> <p>ADDITIONAL AUTHORITIES CITED BY JAMES GOBLE.</p> <p>Present Constitution sections 97, 98, 235, 59, sub. .see. 18, 161, 120, 132, 138; Kentucky Statutes sec. 124;- Comth. v. Addams, 95 Ky., 588; San Juan County v. Oliver, 7 Colo. App., 515; Fulgham v. Lightíoot, 1 Call. Va., 225; Vol. 23 2d ed. Am. & Eng. Ene., p. 385; Windmill v. People, 78 111., 273; Hamberger v. Marcius, 157 Pa.; Commonwealth v. Butler, 99 Pa. St%, 542; Debates in Con. pp. 4202, 4203, 4236, vol. 3; Col. on Con. Lim., page 78; Bouvier Diet, word Salary and Special; L. R. A., Vol. 21, p. 634; Thompson v. Carr, 13 Bush, 216; Vol. 6, Am .& Eng. Enc., p. 926; Marbury v. Madison, 1 Cranch U. S., 174; People v. Angle, N. Y., 564; Hoke v. Comth., 79 Ky., 567; Gayle v. Owen County Court, 83, Ky., 61; McArthur v. Nelson, 81 Ky., 67; Rigers v. Jacob, 88 Ky., 502.</p> <p>1. We submit that the question sought to be decided is not presented in this record in such form as to authorize this court to judicially pass upon it. The action of the lower court in the absence of issues presented to it by the contending parties, could not be the subject of an appeal. There must be a case or a proceeding in court which tangibly presents the issues of law and fact to the court for decision. No such proceeding is shown here, and we insist there is no judgment, below, from which an appeal lies.</p> <p>2. There is no such thing in our practice as presumptive pleadings, and unless a party shall state his case by a proper pleading the court can not upon its presumed knowledge of the facts, grant him any relief.</p> <p>3. Assuming, however, that there is an issuable controversy before the court, it is apparent that the bone of contention in this case is not the right to act as Commonwealth attorney in the Floyd Circuit Court, but to have the act creating the 31st Judicial District declared unconstitutional. If that question was ever an open or debatable one, it is now firmly settled by this court in the recent case of Adams v. Roberts.</p> <p>4. It could not have been intended by the framers of the Constitution that mere possibilities of loss of fees should prevent wholesome legislation for the good of the State, when expressly authorized by that instrument.</p> <p>5. As the office of Commonwealth’s Attorney might under the Constitution be entirely abolished (see sec. 108), the taking away from a judicial district of one county by the Legislature may be regarded as an abolishment oi said office to that extent, and although the term of the office, which is fixed by the Constitution at six years, can not be abridged, yet it is well settled that the Legislature, when authorized to create new political organizations, as counties, towns, &c., may abolish old organizations, although the effect is to abolish offices existing under the old political organizations, whose terms are fixed by the Constitution, and this, though such offices are abolished during the term of the existing incumbents People v. Morrell, 21 Wend. (N. Y.), 563; Gertum v. Kings County, 109 N. Y., 170.</p> <p>6. While it sometimes devolves on the courts to abrogate an enactment of the legislative department of the government, this duty is always approached with caution, and the power is never exercised unless deemed imperative when the question is so presented as to leave a judiciary no escape from deciding it.</p> <p>CITATIONS.</p> <p>Louisville Canal Co. v. Murphey, 72 Ky., 552; Stevens v. Baker, 87 Ky., 508; Murphey v. Estes, 69 Ky., 532; Murrill v. McAllister, 79 Ky., -; Boone v. Chiles, 10th Peters, 399; Gentry v. II. S., 101 Fed. Rep., 51; Patterson v. Miller, 59 Ky., 497; Taylor v. Comm., 26 Ky., 401; Newcum v. Curtley, 52 Ky., 416; Cooley on Con. Lim., pages 67 to 71; Sedgwick on the Statutory and Con. Lim., pages 51-53; Jones v. Sizemore, 25 R., 1957; Thompson v. Carr, 13 Bush, 215; Comm. v. Adams, 95 Ky., 588; Lapsby v. Brashears, 4 Litt, 52.</p>

<p>Case 79 — Action by John E. Howard Against the Western Union Telegraph Co., for Damages in Failing to Deliver a Telegram.</p> <p>APPEAL FROM BELL CIRCUIT COURT-M. J. MOSS, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>A. G. PATTERSON, attorney for appellant.</p> <p>1. We contend that the court improperly overruled appellant’s-, demurrer to the second paraghaph of the answer herein, which paragraph sets out in detail and pleads a rule which is claimed among other rules to be printed on the back of each of appellee’s messages as follows: “The message will be delivered free, within the established free delivery limits of the terminal office.” And in which paragraph appellee pleads that the city of Pineville is a town of less than 5,000 inhabitants, and that under a rule made by appellee the free delivery limits established by it in such towns is confined to a radius of one-half mile from the office of appellee.</p> <p>2. We contend that it was sufficient for appellant to prove-that he had received the message within a reasonable time after • it was delivered to appellee at its Devon office, that in the ordinary course and manner of travel he had ample time in which to reach the bedside of his son before his death This fact was-proven by appellant and stands uncontroverted.</p> <p>AUTHORITIES CITED.</p> <p>Western Union Telegraph Co. v. Cross, Admr., 25 Ky. Law. Rep., 268;'Western Union Telegraph Co. v. Cross, Admr., 25 Ky. Law Rep., 646; Howard v. Western Unión Telegraph Co.,. 25 Ky. Law Rep., -; Greenhood on Public Policy, page 526; Western Union Telegraph Co., v. Blanchard, 68 Ga., 299, 145. Am. Rep., 484; Man- v. Telegraph Co., 85 Tenn., 545; Ayer v. Western Union Tel. Co., 79 Me., 493; 1 Am. St Rep., 353; Paducah & Memphis R. R. Co. v. Holhl, 12 Bush, 46; Louisville & Portland Canal Co. v. Murphey, Admr., 9 Bush, 522; Bartlett v; Western Union Tel. Co. 62 Me., 209, 16 Ana. Rep., 437; Western Union Tel. Co., v. Eubanks & Russell, 100 Ky, page 591; Amer. & Eng. Encyc. of Law, Vol. 3, page 561, 1st Ed.; Goddin v. Shipley, 7 B. M., 575; Tyler v. Trabue, 8 B. M., page 306; Amer. & Eng. Encyc. of Law, 2nd Ed., Vol. 22, page 1325; Stevens v. Gregg, S9 Ky., page 461; 6 Cyc., page 412; Davis v. Morton’Galt & Co., 5 Bush, 166; Kent, Lectures, 29, 2nd Vol., Commentaries 462; Gault v. Equitable Trust Co., 100 Ky. Rep., 578; Balme v. Wonbrough, 38 Barbour, 362; Chapman v. West. Union Tel. Co., 90 Ky., 268; West. Union Tel. Co. v. VanCleave, 22 Ky. Law Rep., 53; Story’s Conflict of Laws, page 469; Amer. & Eng. Encyc. of Law, 2nd Ed., Vol. 27, page 1079; Western Union Tel. Co., v. Blake, 68 S. W., 526; Bishop on Contracts, Sec. 1394; Gray v. Western Union Tel. Co., Amer. State Rep., 706, 64 S. W., 1063; Western Union Tel. Co., v. James, 162 U. S., 651, 16 Sup. Ct. Rep., 934; Steele v. Curl, 4 Dana, 381; Short & Co., v. Trabue & Co., 4 Met., 299; Beard’s Executor v. Basye, 7 B. M., 144; Ford v. Buckeye State Ins. Co., 6 Bush, 140; Woodson v. Bank of Gallipolis, 4 B. M., 205; Grubbs v. Harris, Assignee, 1 Bibb, 567; Western Union Tel. Co. v. Lydon, 82 Texas, 364; Loper v. Western U. Tel. Co., 70 Texas, 689, 6 Am. St. Rep., 864.</p> <p>We respectfully submit:</p> <p>1. That a contract for the transmission of an interstate telegram is governed by the laws of the State where the contract is made and partially performed.</p> <p>2. (a) That there is no evidence that any of the trains in question ran on October 4th, or 5th, 1902, so as to allow plaintiff to reach the bedside of his son before his death. The fact that a train ran according to a certain schedule in one month raises no presumption that the same schedule was in force several months prior thereto.</p> <p>(b) There is no evidence that any of said trains ran on Sunday, October 5th, 1902. The court will take judicial knowledge of the fact that not all trains run on Sunday</p> <p>’ (c) There is no evidence of the fact that any of said trains were on time,, or made their connections at the three points at which plaintiff had to change cars on the date in question. Plaintiff testifies that when he made the journey, so as to arrive at Devon a little after midnight, the trains made “close connections.” The presumption is that if any of them had been late he would not have made such connections.</p> <p>(d) There is no evidence that the train or trains upon which plaintiff claims lie would have reached Devon arrived in time on October 5th, 1902. If they had been a very few minutes late, according to his own theory, he could not have reached the bedside of his son before his death.</p> <p>(e) There'is no evidence that if plaintiff had arrived at Hurley at the time he claims he would have arrived, he could have made the journey from the terminus of the railroad at Hurley to the bedside of his son in the brief space of time (about seventeen minutes) remaining for the journey This trip may have required minutes or hours.</p> <p>AUTHORITIES.</p> <p>Ohio & Miss Ry. Co. v. Tabor, 98 Ky., 503; Davis v. Morton, 5 Bush, 106; McDaniel-v. Chicago &c., R. R. Co., 24 Iowa, 416; Liverpool & Great Western Steam Co. v. Phcenix Ins. Co., 129 U. S., 464; Reed v. W. U. Tel. Co., 135 Mo., 761; W. U. Tel. Co. v. Christensen, 78 S. W., 745; W. U. Tel. Co., v. Buchanan, 80 S. W., 561; Bryan v. W. Union Tel. Co., 45 S. E., 938; Shaw v. Postal Cable Co., 79 Miss., 670; W. U. Tel. Co. v. Eubanks- & Russell, 100 Ky., 591; Hartmann v. L. & N. R. R. Co., 39 Mo. App., S8; W. U. Tel. Co. v. Hendricks, 63 S. W., 341; W. U. Tel. Co. v. Parsons, 72 S. W., 800; Paducah & Memphis- R. R. Co., v. Hoehl, 12 Bush, 46; W. U. Tel. Co., Daniels, 15 Ky. Daw Rep., 813; W. U. Tel. Co. v. Matthews, 55 S. W., 427; W. U. Tel. Co. v. Cross, Adm’r, 74 S. W., 1098.</p>

<p>Case 80 — Action by J. D. Tyler’s Admr., &c. against W. A. Bogard and War. Parks, on a Timber Contract.</p> <p>APPEAL FROM TRIGG CIRCUIT COL'RT-THOMAS P. COOK, CIRCUIT JUDGE.</p> <p>Prom a Judgment Sustaining Attachments Defendant Bogard Appeals.</p>

<p>Case SI — Action by Raymond Davis by His Guardian, Mary Davis, Against tiie Chesapeake & Onro Ry. Co. and the Cincinnati Elevated R. R. and Transfer and Bridge Co., for Damages foe Personal Injuries to said Infant.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-JAMES P. TARVIN, CIRCUIT J UDGE.</p> <p>Judgment for Plaintiff, Defendant Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1st. Statement of case.</p> <p>2d. Excessive damages.</p> <p>3d. The verdict is not sustained by evidence, and is contrary to the weight of the evidence^ The verdict and judgment of the court is contrary to law. L. & N. Railroad v. Wiade, 18 Ky. Law Rep., 549; C. & O. Ry. Co., v. Perkins, 20 Ky. Law Rep., 60S.</p> <p>4th. Error in admission of evidence. Greene v. Southern Pacific Ry. Co., 13 Am. & Eng. R. R. Cases, 511.</p> <p>5th. Error in permitting plaintiff to testify after other witnesses had been introduced in his behalf. Section 606, paragraph 4, Civil Code of Kentucky.</p> <p>6th. Error in admitting evidence in rebuttal, impeaching witnesses without laying proper foundation therefor.</p> <p>. 7th. Error in refusing to give peremptory instructions. L. & N. Railroad v. Wade, 18 Ky. Law Rep., 549; C. & 0. Ry. Co. v. Perkins, 20 Ky. Law Rep., 608.</p> <p>8th. Error in instructions given. C. & O. Ry. Co. v. Perkins, 20 Ky. Law Rep., 608; Brown’s Admr. v. L. & N. R. R. Co., 17 Ky Law Rep., 145; Railroad v. Tinkham’s Admr., 19 Ky. Law Rep., 1784; Louisville & Nashville R. R. Co. v. Wade, 18 Ky. Law Rep., 549; Louisville & Nashville R. R. Co. v. Clark’s Admr., 20 Ky. Law Rep., 1375. at 1379.</p> <p>9th. The instruction as to measure of damages enabled the minor to recover what belonged to his parents, viz., the impairment of his earning capacity, before he arrived at twenty-one years of age. Shearman and Redfield on the Law of Negligence, 5th edition, sections 760 and 763; Peppercorn v Black River Falls, 89 Wisconsin, 38: Texas Pacific Ry. Co. v. Morin, 66 Texas, 225; Same case, IS Southwestern Reporter, 503; Covington Street Ry. Co. v. Packer, 9th Bush., 455; Union News Company v. Morrow, 20 Ky. Law Rep., 302; South Covington & Cincinnati St. Ry. Co. v. Herklotz, Jr., by his next friend, 20 Ky. Law Rep., 750.</p> <p>1. Ten thousand dollars for the loss of a limb of a bright boy nine or ten years old can not be said to be excessive. The damages awarded are purely compensatory, a fair equivalent in money for the pain and suffering of body and mind and for the impairment to earn money.</p> <p>2. The question as to the boy’s ability to earn money or his damage from that source is one purely conjectural, and like the damages for pain and suffering, the right to fix it must reside somewhere, and the law has decreed that it shall be with the jury.</p> <p>3. It was unquestionable negligence on the part .of appellants to send a car through the city with an overhanging obstacle at its side. The contention that the railroad company owed no duty to appellee is not sound. It owed a duty in this regard to strangers.</p> <p>4. For an injury to the person of a minor his guardian or next friend may institute an action in thé name of the infant to recover damages for the injury and the loss of service to the extent that it impairs the ability of the infant to earn a living ■after he arrives at maturity, bur if the parent, as the next friend or as guardian, includes in his action the loss of service to which he, the parent, is entitled, that is the value of his services during the child’s minority; it is a waiver of the parent’s right and an assignment of all the parent’s interest to the infant ■ for such services. The infant is emancipated to that extent. - This is neither a novel or new doctrine. Abeles v. Bransfield, 19 Kansas, 16; Baker v. Flint & Pere Marquette R. R. Co., 91 Mich., 298.</p> <p>AUTHORITIES CITED BY APPELLEE.</p> <p>Jenkins v. L. & N. R. R. Co., 47 S. W., 761; L. & N. R. R. Co. v. Grubbs, 49 S. W., 3; Graney v. St. L. I. M. & S. Rwy. Co. (1897), 41 S. W., 246; C. & 0. Rwy. Co. v. Perkins, 20 Ky. Law Rep., 60S; N. N. & M. Y. Co. v. Deutzell, 12 R., 626; Shearman & Redfield, sections 457-548-413 (and note); Central Passenger R. R. Co. v. Kuhn, 86 Ky., 593; Loving v. Commonwealth to use, 45 S. \V., 773; L. & N. R. R. Co. v. Mioore, S3 Ky., 675; L. & N. R. R. Co. v. Mitchell, 87 Ky., 324.</p>

<p>Case 82 — Action by Jennie Shearer and Her Husband Against the L. & N. R. R. Co., for Damages for Personal Injuries to Her</p> <p>APPEAL FROM CLARK CIRCUIT COURT — T. J. SCOTT, CIRCUIT JUDGE.</p> <p>.Judgment for Plaintiff. Defendant Appeals.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. Neither the failure to give notice of a train’s approach to an overhead bridge, nor the sounding of a whistle under such bridge, is an act of negligence per se, but is only negligent if the circumstances under which the omission occurs or the act is done make either a violation of a duty, owing by the defendant to the plaintiff at the time. Parley v. Harris, etc., 40 Atlantic Rep., 798.</p> <p>2. If the foregoing proposition be comet, then the defendant was entitled to a peremptory instruction, as there was no testimony- adduced by plaintiff showing that the act of omission complained of was negligence, i. e., a violation of the duty owing by the defendant.</p> <p>3. The court erred in the theory embodied in its instructions, that the petition charged two distinct grounds of negligence, proof of either one of which authorized a recovery</p> <p>4. The verdict of the jury is so palpably against the evidence, that it ought to be set aside.</p> <p>(No brief for appellees.)</p>

<p>Case 83 — Action by Tennessee Paving Brick Co., Against Barker and Others, to Enforce a Lien for Constructing a Sidewalk Under Contract with the City of Somerset.</p> <p>APPEAL FROM PULASKI CIRCUIT COURT — T. Z. MORROW, CIRCUIT judge.</p> <p>Judgment for Defendant and Plaintiff Appeals.</p> <p>POINTS AND CITATIONS.</p> <p>1. In an action to foreclose a lien for street improvements the substantive matters are: First. Did the city have power to make the improvements at the cost of the owner? Sec. 3567, Haekworth v. The Louisville Artificial Stone Co., 20 Ky. Law Rep., 1789. Second. Did the city pass an ordinance looking to that end? Sec. 3567, Preston v. Roberts, 12 Bush, 570. Third. Did the city make a contract pursuant to the statute? Fourth. Was the work done pursuant to contract? And fifth. Was the cost of it apportioned? Sec. 3569.</p> <p>2. A bond from the contractor was not necessary, because sec. 3572 is not applicable to sidewalk construction or reconstruction, but if necessary, it was certainly not necessary to allege because section 3569 and section 3571 make such an allegation unnecessary.</p> <p>3. The city of Somerset not having any board of public works, so much of the statute as requires that board to report to the council is clearly not applicable to the case at bar.</p> <p>(No brief for appellees.)</p>

<p>Cask 84 — Prosecution Against Mont Burton for Murder.</p> <p>APPEAL FROM CASEY CIRCUIT COURT-W. W. JONES, CIRCUIT JUDGE.</p> <p>Defendant Convicted of Manslaughter and Appeals.</p> <p>A reversal of the case is asked for the following reasons:</p> <p>1. The court erred in admitting evidence of what occurred between defendant and the brother of deceased in the road prior to the shooting, as we claim it was not part of the res gestae and was prejudicial to defendant. %The time which divides the two acts is not the controlling element in determining the question of res gestae.</p> <p>2. The court erred in its instructions to the jury. As the court admitted the testimony with reference to the subsidiary act, as part of the res gestae and to show motive in the accused we claim that the jury should have been told the purpose for which it was admitted, and that they should consider it only in determining the question of motive on the part of the accused to commit the crime.</p> <p>AUTHORITIES CITED.</p> <p>Bishop’s Cr. Procedure, vol. 1, sec. 1081, 978, 979, 980, vol. 2, sec. 604; Bouvier’s Law Dictionary, the word Affray; Owen v. Com., 89 Ky., 363; York v. Com., 82 Ky., 360; Mitchell v. Com., 78 Ky., 219; Ritte v. Com., 18 B. Mon., 35; Moore v. Com., 7 Bush, 192; Barnett v. Com., 84 Ky., 449; Brook v. Com., 16 R., 356; Trimble v. Com., 78 Ky., 176; Helman v. Com., 84 Ky., 457; Martin v. Com., 93 Ky., 198; Com. v. Blackwell, 93 Ky., 309; Allen v. Com., 86 Ky., 646.</p> <p>1. While we insist that the occurrence in the road between accused and the brother of deceased a few minutes before the shooting at the house was a part of the res gestae, and therefore admissible in evidence the defendant waived his objection to it by bringing out the same matter in his own testimony.</p> <p>2. The phrase “and not in his self defense” is not part of ■the definition of voluntary manslaughter. To insert this phrase in the instruction, as asked by counsel for accused would require the Commonwealth to prove beyond a reasonable doubt —a negative — that the homicide was not committed in his self defense.</p> <p>3. We submit that the instructions 'given by the court as a whole present the whole law of the case. Sugg v. Com., 6 R., 50; Hamlet v. Com., 9 R., 418; Baldwin v. Com., 2 R., 439.</p>

<p>(Omitted in former reports.)</p> <p>Criminal Law — Increase of Penalty Upon Third Conviction— Indictment- — Right to Manslaughter Instruction Under Indictment for Murder.</p> <p>1. Under Kentucky Statutes, section 1130, providing that a person convicted the second time of felony, shall be confined in the penitentiary not less than double the time of the first conviction, and, if convicted a third time of felony, shall he confined in the penitentiary for life, to authorize the infliction of the increased penalty it must appear from the ’ indictment that the offense charged was committed subsequent to the former conviction or convictions; hut it is not necessary to specifically allege that fact, it being sufficient that it appears from the dates given.</p> <p>2. To authorize confinement in the penitentiary for life by reason of a third conviction of felony, it is .not necessary that the penalty should have been increased upon the second conviction.</p> <p>3. Uuder an indictment for murder accused is not entitled to an instruction as to manslaughter, where there is no evidence tending to reduce the crime from murder to manslaughter.</p>

<p>Case S6 — Proceedings by Rule, by Louisville Banking Co. and Others Against Fidelity Trust and Safety Vault Co. and Others to Pay Back Certain Money Received 3y Them.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, C. P. DIVISION-EMMET FIELD, judge.</p> <p>From a Judgment Sustaining the Rule Defendants Appeal.</p> <p>SYNOPSIS.</p> <p>A party authorized by a valid judgment to withdraw money from court withdrew same and paid debts of his own when no appeal was pending; these creditors ought not to be required to repay the money withdrawn by him.</p> <p>1. Garnishment of a debt does not give a lien upon any specific fund, but simply imposes a personal liability upon the .garnishee. Wade on Attachment, secs. 325 and 334; Rood on Garnishments, sec. 193 and note; Hully v. Chedic, 36 Pac. Rep., 733 (22 Nevada, 127); Mooar v. Walker, 46 la., 164; McConnell ir. Dunham, 72 la., 494; Maish v. Byrd, 48 Fed. Rep., 607; Civil Code, sec. 223.</p> <p>2. Upon the reversal of a judgment plaintiff in the judgment may be required to repay all that he has received under the judgment; but persons to whom he has made payments can not be so required. Little v. Bunce, 7 N. H., 485; MeJilton v. Love, 13 111., 495; Bank of United States v. Bank of Washington, 6 Peters, 8; Clark v. Pinney, 6 Cowen, 297; Green v. Stone, 1 H. & J., 405; McLogan v. Brown, 11 111., 519; Steelman v. Checsman, Penington, 120; Rubbell v. Broadwell, 8 Ohio, 120; Langley v. Warner, 3 Comst, 327; Green v. Brangle, 84 Va., 913; Freeman on Judgments, 4th Edition, sec. 484; Bank of United States v. Bank of Washington, 6 Peters, 19; Freeman on Executions, sec. 346; Rhorer on Judicial Sales, sec. 576; Gondy v. Hall, 36 111., 319; Hayes v. Griffith, 85 Ky., 381; Forstman v. Schulting, 108 N. Y., 110; Butcher v. Henning, 90 Hun, 565.</p> <p>3. Process by rule of attachment does not lie against persons not parties to the action. Daniell’s Chancery Practice, 461 and 1060; Code, sec. 2; Code, sec. 444; Tull v..Gohagon, 3 J. J. M., 378; Miller v. Humphrey, 9 Ky. Law Rep., 359.</p> <p>4. Interest is not recoverable in a case like this.</p> <p>5. None of appellants were parties to the reversed judgment; appellant, Mutual Life Insurance Company of Kentucky, had no knowledge nor notice of the judgment, and did not know where Etheridge got the money with which he paid the premiums to it.</p> <p>1. That Etheridge had no valid title to the $6,900 which he withdrew from the registry was declared by this court on the the original appeal and that it was subject to the liens of the attaching creditors, the mandate expressly ordered ‘'"that the attachment liens must be modified so as to conform to the opinion.</p> <p>2. The rule as to an attachment lien is, that when once completed it can not be divested except by some act of Lie plaintiff or his attorney in the attachment which will operate by way of estoppel.</p> <p>3. The lien on the attached fund in the case at bar having, become “complete,” we contend that the fund must remain in lien and be subject to the final or ultimate orders of the court of last resort.</p> <p>4. This lien was not a contract lien, but- it was a legal' or statutory lien, and no claim is made that appellees1 ..have waived it.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, sec. 212; Hobson v. Hall, 13 R., 109; Drake on Attachments, sec. 227a, 453;. Wright v. Rowland, 4 Abbott-Court of Appeals; Fishback v. Ambrose, 13 R., 303; Thomas y... Feese, &e., 21 R., 206; Noonan v. City Newport, &e. (April 27, 1900).</p>

Case 87 — Action by Kate B. Swinebroad Against George P. Bright and Others, to Recover a Legacy. APPEAL PROM LINCOLN CIRCUIT COURT — M. C. SAUFLEY, CIRCUIT judge. Judgment for Defendants. Plaintiff Appeals. Our contention is; 1.

<p>(Omitted In former reports.)</p> <p>Appeals — Dismissal—Failure to File Transcript in Time. ■ .</p> <p>Where a motion is made by appellee in the court of appeals to dismiss the appeal on the ground that the transcript is not filed twenty days before the first day of the second term of the court of appeals «after the rendition of the judgment in the lower court, appellant can not impeach the record by filing the affidavit of the deputy clerk of the court to the effect that the judgment appealed from was not handed into the clerk’s office and entered of record until a date later than that shown by the record. If appellant was delayed in obtaining a transcript by the delay of the court he should have obtained an extension in this court for filing it.</p>

<p>(Omitted in former reports.)</p> <p>Rape — Third Trial — New Witness — Surprise — Affidavit for Continuance — Refusal—Evidence—Contradictory Statements —Detaining Woman — Degree of Offense — Instructions.</p> <p>1. Where in' a prosecution for rape two juries had disagreed, and on the third trial a new witness L. was introduced who swore that defendant had told him that he had committed a rape upon a woman, whereupon defendant filed his affidavit that he was surprised at the testimony of said witness and that he could prove hy another witness H. that L. told him that defendant did not tell him L. that he had committed rape upon a woman, and asked that the jury he discharged and the case continued, which motion was overruled. Held, this was error, and -the court should have granted a continuance under the affidavit.</p> <p>2. After a witness was introduced hy defendant to contradict a statement made hy the prosecuting witness, it was error for the prosecution to he allowed to prove on cross examination that the prosecuting witness had in the same conversation told him that the defendant had committed the offense, as the question was not what the prosecuting witness said in the presence of defendant’s witness, hut the sole question was, did she make the statement which she denied.</p> <p>3. The statutory offense of detaining a woman against her will with intent to have carnal knowledge of her, is not a degree of the offense of rape, and on the trial of one for rape, an instruction to the jury authorizing them to find the defendant guilty of the statutory offense was prejudicial to the defendant though the jury found him guilty of rape.</p>

<p>Case 90 — Action by Greek Machinery Company Against J. L. Sears, &c., on a Contract of Guaranty.</p> <p>APPEAL FROM PULASKI CIRCUIT COURT — T. Z. MORROW, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>1. We concede that as a general proposition, in order to hold a guarantor bound he must be notified that his offer of guaranty has been accepted, but we submit that the case here is excepted from that rule because it is not an offer upon the ¡part of the guarantor, but an express understanding. Rere appellant made a proposal to Chandler and he accepted it. This made a complete contract as soon as signed by the president of the Greer Machinery Co.</p> <p>2. Again we contend that it is taken out of the ordinary rule requiring notice of acceptance because it is made for a consideration, and the fact that the consideration is small (1.00) does not change the legal status of the parties.</p> <p>AUTHORITIES CITED.</p> <p>Am. & Eng. Ency. of Law (1 edO, 78; 104 U. S., 159; 11 How., 452; 5 Bing N C., 575; A. & E., vol. 14 (2 ed.), 1141, 1145; Baker v. Warehouse Co., 90 Ky., 419; Thompson v. Glover, 78 Ky., 193; Kincheloe v. Holmes, &c., 7. B. Mon., 6; Bell v. Kelly, 13 B. M., 834; Steadman v. Guthrie, &c., 4 Met.c., 157.</p> <p>1. Our contention is that the contract was not signed by the president of Greer Machinery Co., and the contract providing that it should not be binding until signed by the president, no contract existed between the parties.</p> <p>2. No legal responsibility arose against appellee conceding the contract to have been signed by the president of appellant company unless appellant company, within a reasonable time after the acceptance of the contract, notified appellee (guarantor) of such acceptance, and not only this, it was bound to notify him of the amount of goods they had furnished to Chandler under the contract.</p> <p>3. The obligation assumed by appellee was a collateral guarantee of a debt to be created and the amount of the indebtedness at that time was uncertain and not ascertainable, and being a continuing contract the guarantor is not liable without notice of the acceptance of the' contract within a reasonable time. Brandt on Suretyship and Guaranty, sec. 159; Melroy v. Quinn, 35 Am. Rep., '227.</p>

<p>Case 91 — Action by W. T. Grant, Assignee of ti-ie Southern Contract Co. Against Alice Newhouse and Others, Stockholders, to Recoiek Dividends Paid to Them by Mistake.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, L. AND E. DIV.-STERLING B. TONEY, judge.</p> <p>From the Judgment Dismissing the Petition the Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. If an action is based on mistake, limitation is suspended during the 'time the defendant obstructs the action, and that appellant might have attached the non-resident’s property does not alter the rule. Kentucky Statutes, 2532, 2515 and 2519; Posten v. Smith’s Extrs., 8 Bush, 589; Craig v. Anderson, 96 Ky., 425.</p> <p>2. There is no new cause of action against the devisee, but only a new remedy. Trustee, Ky., etc. v. Fleming, 10 Bush, 239.</p> <p>3. Even if the statute did not contain an express exception, broad equity principles would estop the appellee from pleading the statute where her conduct has been such that the plaintiff has been obstructed in the pursuit of his remedy. Am. & Eng. Ency. of Law, vol. 13, p. 736; U. S. v. Wiley, 11 Wal., 508; Braun v. Sauerwein, 10 Wal., 218.</p> <p>4. The defendant, Jackson & Sharpe Company, being unable to bring Alice S. Newhouse before the court as executrix, has a right in equity to pursue its remedy against her as a devisee. (She having entered her appearance in the action.) Hagan v. Patterson, 10 Bush, 441.</p> <p>5. No cause of action arose in behalf of Jackson & Sharpe Company against appellee until a judgment and a return of, “No property found.” Cook on Stockholders, see. 200 and 225 F.</p> <p>6. Removing representative. Murray v. Oliver, 3 B.'M., p. 1.</p> <p>1. We submit that under the facts appearing in this record the following conclusions are established:</p> <p>(a) That the cause of action accrued against the testator, Robert A. Newhouse, in May, 1889.</p> <p>(bj That the action against Alice S. Newhouse individually was not begun until June 29, 1899, the day the amended petition against her was filed.</p> <p>(e) That the action against Alice S. Newhouse, executrix of the will of R. A. Newhouse, deceased, was not begun until January 26, 1891, the day on which she filed her answer.</p> <p>2. We have shown conclusively that the action is not only barred in every aspect against Alice S. Newhouse as executrix, but also that it is completely barred against her individually and as devisee. ,</p> <p>AUTHORITIES CITED.</p> <p>Brant, Assignee, v. Ross, IS R., 597; Grant, Assignee, v. Southern Confract Co., 20 R., 960.; Reynolds v. Stockton, 140 U. S., 255; Revill’s Heirs v. Claxon’s Heiz-s, 12 Bush, 558; Bz’own v. Bi’own, 91 Ky., 639; Nones v. Taylor & Williazns, 91 Ky., 461; Read v. Hamilton, 92 Ky., 619; Hagan v. Patterson, 10 Bush, 441.</p>

<p>Case 92 — 'Action by the City of Dayton Against the Bellevue Water and Fuel Gaslight Co., to Recover Taxes!</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT — JOHN T. HODGE, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES.</p> <p>1. A municipal corporation has no inherent power to exempt property from taxation by contract or otherwise. Cooley, Taxn., 200; Dillon, Mun. Corp., sec. 776; Lancaster v. Clayton, 86 Ky., 373; Whiting v. Town of W. Point, 15 Ky. Law Rep., 860; City of Tampa v. Kannitz, 63 A. S. R., 222; City of Austin v. Austin G. L. & C. Co., 69 Texas, 180.</p> <p>2. Exemption clause in contract does not form part consideration for water furnished city for fird purposes only, and the cases of the City of Frankfort v. Capital G. & E. L. Co., 16 L. R„ 780, and Grant v. City of Davenport, 36 Iowa, 396, do not apply. Lancaster v. Clayton, &c., 86 Ky., 373.</p> <p>3. The taxes sued for were assessed and levied under laws governing cities of the fourth class. The contract involved is something entirely independent of the power to -tax. The breach of an independent contract or agreement can not be plead in bar of an action for the collection of taxes. Hamilton v. Home Insurance Co., 137 U. S., 370-386; Saunders v. Beal’s Administrator, 4 Bibb, 342; Louisville Water Co. v. Hamilton, 81 Ky., page 517; Louisville Water Co. ads. Clerk, 90 Ky., 519; Grant v. Davenport, 36 Iowa, 396.</p> <p>AUTHORITIES CITED.</p> <p>1. The city had power conferred upon it to contract for water, in unqualified terms, and thereunder had the power to make the taxes part consideration for the water furnished it for public purposes. Session acts of 1887 and 1888, vol. 2, page 803; Constitution of 1850, art. 13, sec. 1; Atlantic City Water Co. v. Atlantic City, 48 N. J., 378; Board of Council v. Capital Gas Co., 16 L. R., 780; Lancaster v. Clayton, 86 Ky., 373.</p> <p>2. It is a public service to provide water for security against fire, etc. Owensboro v. Commonwealth, 20 L. R., 1281; Nicholas-ville Water Co. v. Nicholasville, 18 L. R., 593; Newport v. Newport Light Co., 84 Ky., 175; Franks v. Paducah Supply Co., 88 Ky., 471.'</p> <p>3. The contract is not an exemption, but a fixing of the price of water furnished it. Board of Council v. Capital Gas Co., 16 L. R., 780; Grant v. Davenport, 36 Iowa, 396; Bartholemew v. ■Austin, 29 C. C. A., 568; Portland v. Portland Water Co., 67 Me., 135; Utica Water Works v. Utica, 31 Hun., 431; Ludington Water Co, v. Ludington, 119 Mich., 480.</p> <p>4. The ci^y having accepted the water under the contract must pay for same as stipulated in the contract or its equivalent. Nicholasville Water Co. v. Nicholasville, 18 L. R., 592; New Orleans v. New Orleans Water Co., 36 L. An., 432.</p> <p>5. The parties construed the taxes to be part of the consideration and this construction governs. Board of Council v. Capital Gas Co., 16 L R., 780; Louisville Turnpike Co. v. Shadbourne, 1 L. R., 325.</p> <p>6. The company can plead the contract as a defense and is not relegated to an independent action. Civil Code, sec. 95, subsections 2 and 3; Anderson County Court v. Stone, 18 B. Mon., 854.</p>

<p>Case 93 — Action by John Mason Brown Against the Republican County Executive Committee for Jefi-'ebson County, to Restrain it from Holding a Primary Election.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, OHY. DIV. — SHACKELFORD MILLER, judge.</p> <p>Judgment for Plaintiff. Defendant Appeals.</p> <p>POINTS AND CITATIONS OF AUTHORITIES.</p> <p>1. No primary election can he held except under the statute. Kentucky Statutes, sections 1550, 1551, 1552, 1553, 1559, 1561, 1565; Schneider v. McGill, 23 Ky. Law Rep., 589; Eagen v. Germe, &c., 23 Ky. Law Rep., 1496.</p> <p>2. An injunction may he granted to restrain the holding of a primary election not in accordance with the statutes on petition of the candidate. 23 Ky, Law Rep., 1495.</p> <p>(No brief for appellee.)</p>

<p>Case 94 — Action by the Covington Perpetual Building and Loan Association, oe Covington, Ky., Against Theodore Kleimeir, &c., to Recover a Balance Due on a Loan and to Enforce a Mortgage Lien Tiierefor.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-JAMES P. TARVIN, CIRCUIT-JUDGE.</p> <p>Judgment for Plaintiff. Defendants Appeal.</p> <p>POINTS AND AUTHORITIES. '</p> <p>1. Right to amend answer. Civil Code, section 134.</p> <p>2. Partial payments. Sub-sec. 3 of sec. 2219, Kentucky Statutes; Riddle, &c. v. Lewis, 7th Bush, 197; Dowell v. Safety Bldg, and Loan Ass’n Co., Ky. Law Rep., vol. 21, page 1267, and cases cited; Safety Bldg, and Loan Co. v. Eckler, 20th Ky. Law Rep., page 1770.</p> <p>3. Liability of stockholders for expenses. Nat’l Bldg. & Loan Ass’n v. Bybee, &e., 21 Ky. Law Rep., No. 13, page 1021; The Safety Bldg. & Loan Ass’n Co. v. Montjoy, 21 Ky. Law Rep., No. 15, page 1189; U. S. Building & Loan Ass’n’s Assignee v. Same, 21 Ky. Law Rep., No. 23, page 1763; Dowell, &e. v. Safety Bldg. & Loan Co., 21 Ky. Law Rep., No. 16, page 1267.</p> <p>1. The court did not err in refusing the filing of the amended answer offered September, 1900.</p> <p>2. The court properly denied appellant the right to claim dividends on his payments and interest thereon. Williams, &c. v. Nat. Bldg. & Loan Ass’n, 22 R., 962; U. S. Bldg. & Loan Association’s Assignee v. Rowland, 22 R., 1423; Safety Bldg. & Loan Association v. Eckler, 20 R., 1770.</p>

<p>Case 95 — Prosecution Against A. P. Taylor, for Embezzlement. — *</p> <p>APPEAL FROM FAYETTE CIRCUIT COURT-WATTS PARKER, CIRCUIT JUDGE.</p> <p>Defendant Convicted and Appeals.</p>

<p>Case 96 — Action by Joseph Muir Against Thixton, Millett & Co., to Recover Damages for the Death of a Horse.</p> <p>APPEAL FROM NELSON CIRCUIT COURT--SAMUEL E. JONES, CIRCUIT JUDGE,</p> <p>Judgment for Defendants. Plaintiff- Appeals.</p> <p>Principles -of law involved in this appeal.</p> <p>1st. Owners of real property must so use it as not to injure others.</p> <p>2nd. In Kentucky, cattle can lawfully wander over uninelosed prpoerty.</p> <p>3rd. Where an artificial pitfall or cistern, dangerous- to animals, is maintained without cover or barrier, on uninclosed premises, near a public road, to which the stock of others have-access; the owner of the premises is liable in damages for stock drowned therein, particularly when the stock is invited or allured or tempted to come upon said premises.</p> <p>' AUTHORITIES CITED.</p> <p>Amer. and Eng. Ency. of Law, 1st ed., vol. 7, pages 890-891, vol. 16, pages 403-417; Thompson on Negligence, chapter 35, sec. • 957, 1031 and 1032; Kentucky Statutes, sec. 43, 46 and 1474; Bransome, Admr. v. Labrot and Graham, 81 Ky., 642; Macon R. R. Co. v. Lester, 30 Ga., 914; Suley v. Peters-, 5th Gilm. (111.), 130; Jones v. Nicholls, 46 Ark., 207; Haughey v. Hart, 62 Iowa, 96; Young v. Harvey, 16 Ind., 314; Townsend v. Wathen, 9< East, -277; Price v. Atchison- Water Co., 58 Kan., 551; Biggs v. Consolidated Barb. Wire Co., Lawyers’ Reports Annotated, vol. 44, page 655.</p> <p>Our contention is:</p> <p>1. That the plaintiff’s horse was a trespasser upon the premises of defendants, and although the premises were uninclosed and the cistern into which the horse fell was uncovered the de^ fendants were under no legal obligation to keep their premises in a safe condition against a trespasser.</p> <p>2. The defendants (appellees) are not guilty of negligence in failing to do that which the law does not require them to do,</p> <p>3. The plaintiff, in suffering his stock to run at large, was guilty of negligence and can not recover because of contributory negligence.</p> <p>4. There ’is no proof that the horse went on the premises for food or water, and the claim that he was allured on the premises by grain being left there is without any foundation.</p> <p>AUTHORITIES.</p> <p>Shearman v. Redfleld, on Neg., vol. 2 (5 ed.), sec. 418, 705; L. & F. R. Co. v. Melton, 14 B. Mon., 80; L. & P. R. Co. v. Ballard, 2 Mete., 180; Kentucky Statutes, sec. 4654; Yanderbeck v. Hendry, 34 N. J. Law, 467; Galveston Oil Co. v. Merton, 70 Tex., 400 (7 S. W., 756); Thompson on Negligence, sec. 559, 945, 955, 956; 46 L. R. A., 60, see note.</p>

<p>Case 97 — Action by Daisy Montgomery Against H. P. Montgomery, on Assumpsit to Recover $170.00.</p> <p>APPEAL FROM SCOTT CIRCUIT COURT-JAMES E. CANTRILL, CIRCUIT ‘ JUDGE.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The consideration named in the deed from appellee to appellant could not be impeached or denied except hy pleading verified by oath. Ky. Stat., sec. 472.</p> <p>2. In the absence ot an allegation of fraud or mistake in the execution of this deed, parol testimony was not admissable to contradict its recitals. 103 Ky., 140, and cases therein discussed. (We regard this proposition so well settled that we decline to cite further authorities.)</p> <p>3. The court erred in sustaining demurrer to appellants claim for appellee’s part of the taxes paid by him on the land while owned jointly by them. As between themselves, it was her duty to pay taxes to the extent of her equitable ownership of the land. Ky. Stat., 4023. And after he paid the taxes on the whole farm, he had the right to recover of her her part of the taxes. Ky. Stat., 4033.</p> <p>1. When it is shown on the face of the pleadings that the amount in controversy is less than ?20Q the court of appeals has no jurisdiction, although the party claims more.</p>

<p>(Omitted in former reports.)</p> <p>Dying Declarations — Conflicting Evidence — Jury Question.</p> <p>1. "Where, in a prosecution for murder, a witness testifies that decedent said to him, “I am killed, and can not recover,” and, being asked who shot Eim, replied that accused did so, it is error to exclude the dying declaration because two witnesses for accused subsequently testify that they were present at the time, and no dying declaration was made; the question on conflicting evidence as to whether the declaration was made being one for the jury.</p>

<p>Case 99 — Prosecution Against R. H. Wilson, for Violating the Dental Law.</p> <p>APPEAL FROM HARDIN CIRCUIT COURT-WEED S. CHELE, CIRCUIT JUDGE.</p> <p>Defendant Convicted on Three Indictments and Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The provisions of the acts regulating dentistry in this State place an arbitrary requirement and restriction on dentists who engaged in the practice prior to the passage of said acts. That said acts in so far as the same apply to such dentists deprive them of liberty and property without due process of law and deny them the equal protection of the law and are void. State v. Goodwill, 33 W. Va. 25 Am. St. Rep., 863, and the notes •thereto and cases cited; People v. Gillson, 109 N. Y., 398; Butcher’s Union Co. v. City, 111 U. S., 775; State v. Peel, &c., Co., 36 W. Va.,856; Williams v. Pears, '21 Sup. Ct. Rep., 129; Slaughter House Cases, 16 Wall., 87 ;• Lawton v. Steele, 152 U. S., 153; Soon Hing v. Crowley, 113 U. S., 703; Yick Wo v. Hopkins, 118 U. S., 356; State v. Hinmian, 65 N. H., 103; State v. Pennoyer, 65 N. H., 113.</p> <p>2. But should it he held that the dental statutes, in so far as the same 'apply to persons legally engaged in the profession prior to the passage of the acts, are hot unconstitutional, yet the offense for which the appellant was indicted was of a continuous nature, he was indicted three times for the same offense, and his pleas of former conviction'should have been sustained. Apothecaries Co. v. Jones, 1 Law Rep. (Eng.), 19; Crepps v. Durden (Eng.), Cowp. 640; In re Snow, 120 U. S., 274; Freidenborn v. Com., 113 Pa. St., 242 (57 Am. Rep., 464); vol. 13 (2nd ed.), Am. & Eng. Enc. of Law, 63; Cawein v. Com. (Ky.), 61 Southwestern Rep., 275 (22 L. R., 1734).</p> <p>3. If each act is a separate offense the Legislature did not provide a penalty for “each and every offense” and but one penalty can be imposed. Parks v. R. R. Co. (Tenn.), 13 Lea, 1 (49 Am. Rep./655); Sturgis v. Spofford, 45 N. Y., 446; Fisher v. R. R. Co., 46 N. Y., 644; Fritsche v. R. R. Co., 47 N. Y., 660; 'Mix v. R. R. Co'., 47 N. Y., 678; Micks v. R. R. Co., 49 N. Y., 654; Foote v. R. R. Co., 50 N. Y., 693; Baker v. R. R. Co., 61 N. Y., 655; Watson v. R. R. Co., 54 N. Y., 201.</p> <p>1. We submit that the law of this State requires that one desiring to practice the profession of dentistry in this State should do more than merely pay five dollars to the Kentucky Dental Association for his certificate; he must show that he has the qualifications prescribed by law.</p> <p>The right of practising a profession is a privilege which may ¡be granted or withheld by the General Assembly, through the police power of the State, whereby it may fix the qualifications, and place reasonable restraints and burdens upon those engaged in such professions.</p> <p>3. Section 2642, Kentucky Statutes, fixing the penalty for a violation of the act in question provides, that any person failing to comply with, or who shall in violation of any of the provisions of this ’aw, practice dentistry or dental surgery in this State for fee or reward, shall for each offense, be guilty of a misdemeanor, anil fined not less than fifty nor more than two hundred dollars for each offense.</p> <p>4. That the Legislature intended to prescribe a penalty for each separate act of practice, is, we think, plain from the words used.</p>

<p>Case 100 — Action by G. Clarence Pettit, &c. Against Joanna Nob- ’ man, a Lunatic, and Her Committee, por the Sale of Real Estate Jointly Owned by Her and the Plaintiffs.</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CHY. DIV. NO. 1,-SHACKEL-FORD MILLER, JUDGE.</p> <p>Judgment for Defendants. Plaintiffs Appeal.</p> <p>LEGAL PROPOSITION AND AUTHORITIES.</p> <p>A conveyance by the husband to his wife, for life, with remainder to her children, at her death, should not be construed to embrace a child born to the wife, during a second marriage; a child of'a second -husband. “The conveyance must be read in the light of surrounding circumstances.” “Her children” means “their children.” Davis v. Hardin, etc., 80 Ky;, 672; Thurman v. White, 18 B. Mon., 576; Smith v. Upton, 12 Law Reporter, 27; Bullock v. Caldwell, 81 Ky., 566; Blankenbaker v. Snyder, etc., 18 Ky. Law Rep., 437; Tucker v. Tucker, 78 Ky., 503; Webb v. Harris and Holmes, 3d Ben. Monroe, 404; Matter of Hallett, Trustee, 8th Paige, N. Y., 875; Lawrence v. Hubbard, 1 Bradf. N. Y., 255; Kurtz Estate, 145 Pa. State, 638; Bolton v. Bolton, 73d Maine, 309; Dorin v. Dorin, L. R., 7 H. L., 568; See v. Deer, 57 Mich., 369; Tharp v. Yarbrough, 79 Ga., 382; Continental Life Insurance Company v. Webb, 54th Ala., 703; Barth v. Barth, 23 Ky. Law Rep., 1246; Adams v. Adams, 20 Ky. Law Rep., 665; Kent and wife v. Barker, 2nd Gray Mass., 536; Collins v. Hoxie, 9 Paige N. Y., 81; 1st Bradf. N. L., 252; 1st Edw. N. Y„ 41; 8th Paige N. Y„ 275; 23rd Wenzel N. Y., 513; Frazer v. Frazer,. 24 Ky. Law Rep., 2517; Koenig, etc. v. Kroft, 9 Ky. Law Rep., 946; Mayes v. Kahn, 24 Ky. Law Rep., 2112; 1st Jarman on Wills, 598, citing; 10th Modern, 371, 8th Vin. Abr., 309.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A conveyance “in trust for Mildred J. Pettit, and her children forever after her” (the acknowledgement to the deed showing that Mildred J. Pettit is the grantor’s wife, and Mildred J. Pettit joining in the deed to release her right of dower) in-eludes all of Mildred J. Pettit’s children, both by the 'grantor and by a second husband. Evans v. King, 3 Jones Eq. (N. C.), 387; Atherton v. Roche, 192 111., 252; (Jotra v. Sanasack, 53 111., 456; Allen v. Van Meter, 1 Met., 279; Hollingsworth v. Hollingsworth, 65 Ala., 321; Spurrier v. Parker, 16 B. Mon., 284; L. & N. R. R. v. L. S. R. R., 100 Ky., 694.</p> <p>2. The court will declare the meaning of the words used. Its object is to ascertain, not the intention simply, but his expressed intention. It will not conjecturally interpret the meaning of what was intended to have been written," or what would have been written had a particular event occurred to the writer. Roper on Legacies; Wigram, Ext. Ev. PI., 126, &e.; Allen v. Van Meter, 1 Met., 276; Shore v. Wilson, 9 Cl. & F., 555 per Baron Parke; A. & E. Enc. Law, 2 ed., 17, 2-4; Hawkins’ Construction of Wills, pp. 1-4, prop. 1; Thayer, Cases on Evidence, 928, note; Long v. Duvall, 6 B. M., 220.</p> <p>(a) In construing wills the scope of inquiry to determine the meaning of the words used is. much broader than in deeds. Grant v. Grant, L. R., 5 C. P., pp. 728-729, per Lord Blackburn; Blackburn on Sales, p. 50, note.</p> <p>3. If the words in their usual and primary sense are sensible with reference to extrinsic circumstances, they shall be interpreted in that sense and no other, regardless of the actual intention manifest from extrinsic circumstances. Wigram, Treatise on Extrinsic Evidence in aid of the Interpretation of Wills; Spurrier v. Parker, 16 B. M., 284; Churchill v. Reamer, 8 Bush, 260; Allen v. Van Meter, 1 Met., 279; L. & N. R. R. v. L. S. R. R., 100 Ky., 694; Breclcenridge v. Duncan, 2. A. K. Marsh, 506; Long v. Duvall, 6 B. M., 220; Timberlake v. Parish, 5 Dana, 352.</p> <p>(a) In other words, where the plain meaning of a provision uncontradicted by any other provision of the same instrument applies expressly or with reasonable certainty to a particular case or object, that meaning will not %be disregarded unless its -application be so monstrous and absurd that no one could so intend.- Cromie’s Heirs v. Louisville Orphans’ Home Society, 3 Bush, 379. per J. Robertson; Sturges v. Crowninshield, 4 Wheat, 202, per G. J. Marshall.</p> <p>4. The words of a document will, in case of doubt, should be construed most strongly against the party using them. A. & E. Enc. Law., 2d ed., 17, 14 and cases cited.</p>

<p>■Case 101 — Action op O. J'. Carpenter, &c., Against the Town op Central Covington, &c., to Determine Plaintiffs’ Liability for a Turnpike Tax.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-JAMES P. TARYIN, CIRCUIT JUDGE.</p> <p>JTrom a Judgment for Defendants, Plaintiffs Appeal.</p> <p>CLASSIFICATION AS REQUIRED BY RULE XVLI.</p> <p>CENTRAL COVINGTON BRANCH.</p> <p>First. The charter of sixth class towns, section 3667, Kentucky Statutes, requiring towns annexing to assume the indebtedness of “incorporated towns.” so clearly indicates the purpose of the Legislature, to require uniformity and equality in taxation, that by implication it will be extended to all territory annexed, incorporated or unincorporated. Cooley, Con. Lim., p. 45; Endlich Inter, of Statutes, sec. 417; Burke v. Monroe Co., 77 111., 610; Gas Co. v. Wheeling, 8 W. Va., 358; Duvosseau v. United States, 6 Cranch, 313; Phillips1 v. Pope’s Heirs, 10 B. Hon., 172; L. & N. R. R. Co., v. Com., 97 Ky., 675; Trustees, &c. v. Flemingburg, 97, Ky., 707; Sutherland Statutory Construction, sec. 334; Williams v. Com., 14 Bush, 539.</p> <p>Second. "Citizens and property in the annexed territory are liable for all the burdens in the form of taxation, which are imposed upon the residents of the city making the annexation.” Pence v. Frankfort, 19 Ky. Law Rep., 726.</p> <p>Third. The territory - annexed to Central Covington, being a part of Kenton county, as well as of a taxing district, and subject to a tax for a bonded indebtedness, with certain governmental rights, to pay taxes, build roads, etc., the policy of the law should bring it within the definition of the words “incorporated town,” in order to effect the clearly defined purpose of the Legislature, set out in the act itself. Burke v. Monroe Co., 77 Ills., 610.</p> <p>Fourth. Section 171 of the Constitution requires all taxation to be equal and uniform within the, territorial limits of the ’authority levying the tax. This section being in effect when the charter law for sixth class towns was* passed, it was beyond the power of the Legislature to grant sixth class towns a right of annexation, which would in effect be violating the provisions of the Constitution. Cooley’s Con. Lim., 618; Don-ally' v. Carpenter, 20 Ky. Law Rep., 679; Broux v. Maysville, 41 N. Y., 358, Thompson v. Abbott, 61 Mo., 176.</p> <p>KENTON COUNTY BRANCH.</p> <p>First. Act of May 13, 1890 (Acts 1889-90, vol. 8, page 674.</p> <p>Second. The General Fiscal Court Law did not repeal the Act of May 13, 1890, to the extent that authority was given the fiscal to levy taxes for turnpike bond purposes. Mauget v. Plummer, 21 Ky. Law Rep., 641; Campbell Co. v. N. & C. Bridge Co., 23 Ky. Law Rep., 2060.</p> <p>Third. The charter law of sixth class towns, wherein the right of annexation was given, operated to reduce the limits of the general taxing district, and to exempt the territory of appellants from taxation, for all turnpikes constructed subsequent to annexation, all of Central Covington being exempted from the tax by the Act of May 13, 1890. Donally v. Carpenter, 20 Ky. Law Rep., 675.</p> <p>Fourth. Section 171 of the Constitution, being prospective in its action, did not operate to so repeal the act of May 13, 1890, as to confer upon the fiscal court the right to exempt the local district from taxation for turnpike purposes, and at the same time to double the taxes .for the same end, on the general district. Both districts being created by the same act, must continue subject to taxation under this act, until all indebtedness created by the act is paid off and extinguished. O’Mahoney v. Bullock, 97 Ky., 774; Pearce v. Mason Co., 99 Ky., 365; Long v. City of Louisville, 17 Ky. Law Rep., 256; Campbell Co. v. N. & C. Bridge Co., 23 Ky. Law Rep., 2056; Covington v. District of Highlands, 24 Ky. Law Rep., 435.</p> <p>Fifth. The Act of May 13, 1890, is and was constitutional. Devou v. Boske, 23 Ky. Law Rep., 365; Devou v. Com’r, 16 Ky.. Law Rep., 286; Ludlow v. Cleveland, 20 Ky. Law Rep., 174.</p> <p>Sixth. The tax as laid is illegal and void. If the appellants' owe any part of the tax when properly levied, the illegal part of same, being altogether inseparable from the legal part, no tender was necessary. Thompson v. Lexington, 24 Ky. Law Rep., 460; Clark v. Leathers, 9 Ky., Law Rep., 557; New Orleans-Canal Co. v. New Orleans, 30 La. An., 1371; Cooley on Taxation,. 2d ed., 235; Cooley, Idem., 640; State v. Hodges,'14 Rich., 256; Santa Clara Co. v. Sou. Pac. R. R. Co., 118 II. S.; High on Injunctions, secs. 497, 499.</p> <p>Seventh. The bonds issued for turnpike purposes, were neither the bonds of Kenton county nor the general turnpike taxing district. Kenton county only acted as agent for the two’, districts created by the act. These bonds must be paid for as provided by the terms of the Act of May 13, 1890. City of Catlettsburg v. Self, 25 Ky. Law Rep., 164.</p> <p>Eighth. The facts upon which appellee alleges “Laches” upon, part of appellant do not appear in the record. The appellee having failed to present them by answer, there is no foundation for the claim of “Laches.”</p> <p>Ninth. -The schedule of the- Constitution, secs. 1 and 2, prohibit the Constitution from having a retrospective operation. Schedule, secs. 1 and 2.</p> <p>Tenth. The trial court has no authority to require a petition to be reformed after a demurrer had been filed and overruled, and answer filed, and especially after a reference has been made to the master, under which a report has been made, which report had been confirmed, without objection and exception. Under such conditions, the court to serve the ends of justice will consider the entire record. See argument.</p> <p>CLASSIFICATION AS REQUIRED BY RULE XVII.</p> <p>CENTRAL COVINGTON BRANCH.</p> <p>First. When a town of the sixth class so extends its corporate limits as to take in property which was part of a taxing distriet burdened with a bonded debt, such town must assume ■that part of the indebtedness for which the property annexed,, was liable. The phrase, “When one town annexes the territory of another,” and “other municipal corporation,” as used in the charters of said towns, section 3667, Kentucky Statutes, embraces within its meaning unincorporated taxing districts, or parts thereof. Pomeroy’s Equity Jur., secs. 411-412; Spencer v. State, 5th Ind., 41; State v. Miller, 106th Ind., 241; Endlich on Interpretation of Statutes, sec. 73; Village of Iuka v. Schlosser, 97th Ills., 222; Trustees of Common School District,. 96th Ky., 705; Potter’s Dwarris on Statutes, 144; City Park v.. Monroe Co., 77th Ills., 610; McIntyre v. Ingraham, 35 Miss., 25; Secs. 157 and 159, Constitution of Kentucky; Harsham v. Bates Co., 92 U. S., 573; Sutherland on Statutory Construction, secs. 244 and 245; Re. Bryant Deady, 188; State v. King, 44th Mo., 283; Rex v. Bullock, 1st Taunt, 80.</p> <p>Second. Even though charters may be silent as to assuming liabilities of annexed territory, yet upon principles of equity and justice, said liabilities should be assumed by the annexing town. Bronx Gas Co. v. Mayer, 31st N. Y., 338; Clochester v. Seaber,, 3d Bur, 1868; Thompson v. Board of Education of Springfield, Mo., 61 Mo., 177.</p> <p>Third. Section 3666 of Kentucky Statutes, a section of the charters of sixth class towns, providing that territory annexed to towns shall not be liable to a tax for any preexisting debts of said towns, is clearly unconstitutional. Kentucky Statutes, sec. 3673; Pearce v. City of Frankfort, 10 Ky. Law Rep., 727; Layton v. City of New Orleans, 12th Annl., 515; Slauson v. Racine, 13th Wis., 398; Constitution of Kentucky, sec. 171.</p> <p>Fourth. Assuming liability of annexed territory would not bring town within the taxing district, nor is the vote of the people necesary for that purpose.</p> <p>KENTON COUNTY BRANCH.</p> <p>First. Act of May 13, 1890. Local turnpike road districts provided for in said act must remain intact until the cost of their respective roads is fully paid. Campbell Co. v. C. V. 'N. & C. Bridge Co., 23d Rep., 2060; McFerran, &c. v. Halloway, 14th Bush, 583; Cooley on Constitutional Lim., 633; Hill v. Higdon, 5th Ohio St., 243-245; Gordon v. Corns, 4th N. Y., 608-611; Ale v. Drew, 44th Vt, 174-1S7; Alcrom v. Hamer, 32 Miss., 652-761; Litchfield v. Vernon, 41 N. Y., 123-133; Cooley on Taxation, 151.</p> <p>Second. Section 171, Constitution, did not repeal or modify Act of 1890 in such a way as to relieve or exempt the local districts from the tax provided in said act. Desty on Taxation, 475; Clark v. Leathers, 9 Ky. Law Rep., 561; Mecham on Public Officers, secs. 5 to 14; Clark v. Des Moines, 19th Iowa, 199; Dillon on Municipal Cor., 769-820; City of Paris v. Moran, 5 Ky. Law Rep., 333; sec. 1839, Kentucky Statutes; sec. 52, Constitution of Kentucky; Devon v. Boske, 23 Ky. Law Rep., 364; Yeatman v. Crondall, 11th La. Ann!., 220; Denver v. Knowls, 17th_ Colo., 220; City of Lexington v. McQuillan’s Heirs, 9th Dana, 513; Howell v. Bristol, 8th Bush, 493; Hclzhauer v. City of Newport, 15 Ky; Law Rep., 188; Pearson v. Zable, 78 Ky. 173; Cooley Constitutional Lim., 495.</p> <p>Third. Section 171 of Constitution not retrospective in its operation. Slack v. Lexington and Maysville R. R. Co., 13th B. Monroe, 19; Long v. City of Lou., 97 Ky., 364; Evans v. Phillipi, 117 Pa., 226; Shreveport v. Cole, 129th U. S., '36; Eugene Cuttling, Tr. of Pierre City, v. Taylor, Auditor, 15th L. R. A., 1691; Allbayer v. State, 10th Ohio State, 588; Cooley on Constitutional Lim., 77; L. & N. R. R. v. Sharp, 9th Ky. R., 411; Lawrence v. City of Louisville, 96 Ky., 595; Williams v. Detroit, 2d Mich., 560; sec. 152, schedule to Constitution of Kentucky.</p> <p>Fourth. Bonds can only be funded upon clear legislative authority, and taxes, therefore, can only be imposed as is authorized by the Legislature. Act of August 16, 1892, Kentucky Statutes, sec. 1852; Act of March 5, 1892, Kentucky Statutes, -see. 1857; Act of June 23, 3 893, sec. 914, Kentucky Statutes; Brown’s Legal Maxims, 3; Dean v. Diamond, 4th B. & C., 245; Cooley on Taxation, 200; Desty on Taxation, 102; sec. 158 Constitution of Kentucky; Cooley on Consti. Lim., 206; Daviess Co. Court v. Howard, 13th Bush, 108.</p> <p>Fifth. Annexed territory not liable for any liability for turnpike road debt which did not exist prior to said annexation to Central Covington. Carpenter v. Donnelly, 20 Ky. Law Rep., 675.</p> <p>Sixth. Tender of taxes is not a necessary condition precedent to institution of action, where the levy in question is inseparable. State v. Hodges, 14th Rich., 256; Dean v. Lufkin, 54th Texas, 265; Dorland v. Bergson, 68 Cal., 637; Walker v. District of Columbia, 6th Mackey D. C.), 352; Am. & Eng. Enc. of Law, 21, page T571; Santa Clair Co., v. Southern Pac. R. R. Co., 118th U. S., 394; Lawler v. Brett, 20th Fed. R., 219.</p> <p>Seventh. Grounds specified in Code are not the only grounds upon which courts of equity in Kentucky grant injunctions, Norma v. Boaz, 85 Ky., 560; Gates v. Barrett, 79 Ky., 297; L. & N. R. R. Co. v. Warren Co., 5th Bush, 244; Beach on Injunctions, page 1233.</p> <p>Eighth. Kenton Co. proper party defendant. Jordan v. Cass Co., Mo., 13 Fed. Cases, 1086. \</p> <p>CLASSIFICATIONS OF QUESTIONS DISCUSSED, AND AUTHORITIES CITED IN SUPPORT OF EACH QUESTION.</p> <p>1st. The property of plaintiffs in this case is still a part of the Kenton County Turnpike Taxing District created by the Act of May 13, 1890, notwithstanding its annexation to the town of Central Covington, and is subject to the burdens imposed by that act. Donnelly, Tax Collector, v. Carpenter, 20 Ky. Law Rep., 675, 679; De Las Casas, et al.,. Petitioner, 178 Mass., 213; Kentucky Statutes, sections 3667, 3666; Constitution of Kentucky, section 157.</p> <p>2d. The provisions of sections 6 and 7 of the Act of May 13, 1890, in regard to the manner of levying taxes for the payment of county bonds issued and sold for the construction of turnpikes in the Kenton county, did not create a contract or prevent the Constitutional Convention or the General Assembly from readjusting the burden of taxation in the county district; and the levying by the fiscal authorities of Kenton county of an equal and uniform ad valorem tax upon all property in the County Turnpike Taxing District, in order to provide a fund with which to pay the interest on and raise a sinking fund for the ultimate payment of the county bonds issued and sold for the construction of turnpike roads in the county district, is legal and is required by section 171 of the Constitution, which is mandatory. Kentucky Constitution, section 171; Schedule of Constitution, section 1; Kentucky Statutes, sections 1833, 1839, 1840, 1S41; Levi v. City of Louisville; 97 Ky., 394, 401, 408; Campbell Co. v. N. & C. Bridge Co., 23 Ky. Law Rep., 2056, 2057, 2058, 2059; Layton v. City of N. O., 12 La. An. Rep., 515; McArthur v. Nelson, SI Ky., 67, 70; Arkenberg v. Hudson, 7 Ky. Law Rep., 517; City of Covington v. District of Highlands, 24 Ky. Law Rep., 433, 437; Desty on Taxation, vol. 2, p. 1132; Cambridge v. Lexington, 17 Pick., 222; Att’y Gen’l v. Cambridge, 16 Gray, 247; Scituate v. Weymouth, 108 Mass., 12S; King, etc. Petitioners, 153 Mass., 566; Kingman, et al., Petitioners, 170 Mass.,'Ill; Boston & Lowell R. R. Co. v. Inhabitants of Winchester, 156 Mass., 217, 219; Prince v. Crocker, 166 Mass., 347, 359; Sears v. Boston, 173 Mass., 71, 78; Cash v. Town of,Douglasville, 94 Ga., 557; Desty on Taxation, vol. 1, pp. 257, 272.</p> <p>3d. That the refunding by the fiscal authorities of Kenton county of county bonds issued under the provisions of section 5 of the Act of May 13, 1890, is legal, and the. funding bonds issued and sold are valid; and that this is true whether the refunding bonds were sold before or after the annexation of the property of plaintiffs to the town of South Covington. Kentucky Statutes, section 914; Kentucky Constitution, section 158; Dillon on Municipal Corporations (4th ed.), section 127; Faison v. Comm’rs of Sinking Fund, 97 Ky., 119, 126; Rogers v. City of Burlington, 3 Wall., 654, 672; Seibert v. Mayor, etc., of Pittsburg, 1 Wall., 272, 274; Com. v. City of Pittsburg, 41 Pa., 278; Middleton v. Alleghany Co., 37 Pa., 241; Myer v. City of Muscatine, 1 Wall., 384, 398; Beach on Public Corporations, section 928;; Portland Savings Bank v. City of Evansville, 25 Fed. Rep., 389, 392; Rogan v. Watertown, 30 Wis., 259, 268; City of Galena v. Cornwith, 48 III., 423; Portsmouth Savings Bank v. City of Springfield, 4 Fed. Rep., 276, 281; Slack v. Mays-ville & Lexington R. R. Co., 13 B. M., 1, 27; Arkenberg v. Hudson, 7 Ky. Law Rep., 517, 518; City of Covington v. District of Highlands, 24 Ky. Law Rep., 433, 437.</p> <p>4th. That the old Board of .Commisioners of Kenton county in office at the time of the taking effect of the Act of May 13, 1890, are not continued in office by that act until the county bonds issued thereunder are paid and extingúished, and that the Fiscal Court of Kenton county, composed of the county judge and the justices of the peace of the county, has authority to levy the taxes provided for by the said act. Dillon on Municipal Corporations (2d ed.), section 168; Cooley on Consti-tutional Limitations, marg. page 276; Standiford v. Wingate, 2 Duv., 443; Williams v. City of Newport, 12 Bush, 439; Ken-lucky Statutes, sections 1833, 1839, 1840, 1841; Mclnerney, Sheriff, v. Huelefeld, 25 Ky. Law Rep., 272.</p> <p>5th. That the fact that the Fiscal Court of Kenton county in the year 1902 was composed not only of the justices of the peace within the county turnpike district, but also of two justices of the peace from magisterial districts lying within the City of Covington, does not affect the validity of the tax levied- for that year to pay the interest upon the bonds issued for the construction of turnpikes under the Act of May 13, 1890. Clark v. Leathers, 9 Ky. Law Rep., 558, 562.</p> <p>6th. That the Act of May 13, 1890, is not repealed by the new Constitution of Kentucky. Shelby Co. v. Shelby R. R. Co., 5 Bush, 225; Malehus v. District of Highlands, 4 Bush, 547; McArthur v. Nelson, 81 Ky., 67; McFerran v. Alloway, 14 Bush, 580; People v. Lawrence, 36 Barb. (N. Y.), 177; Desty on Taxation, vol. 2, p. 1131; Constitution of Kentucky, sections 69, 157, 158, 159, 171, 179; City of Covington v. Districts of Highlands, 24 Ky. Law Rep., 433; Bird v. Board of Comm’rs of Kenton County, 95 Ky., 194; Devou v. Comm’rs- Pleasant Run Tp. Co., 16 Ky. Law Rep., 286; Ludlow v. Cleveland, 20 Ky. Law Rep., 174; Donnelly, Tax Collector, v. Carpenter, 20 Ky. Law Rep., 675; Devou v. Boske, Sheriff, 23 Ky. Law Rep., 364, 365; Richardson v. Boske, 23 Ky. Law Rep., 1209, 1214; Pearce v'. Mason Co., et al., 99 Ky., 357, 366.</p> <p>7th. That the Act of May 13, 1890, is not repealed by the law with reference to roads and passways, chap. 110 of the Kentucky Statutes. O’Mahoney v. Bullock, et al., 97 Ky., 774.</p> <p>8th. That the turnpike bonds issued under the Act of May 13, 1890, and the bonds in which they were refunded, are not a liability of the entire county, but only to that portion of the county lying outside of the corporate limits of the towns and cities of Covington, Central Covington, West Covington and Ludlow as they existed at the time of the passage of the act. Clark v. Leathers, 9 Ky. Law _Rep., 558, 561, 562.</p> <p>9th. That a part of the tax required to be levied for the payment of turnpikes constructed under the Act of May 13, 1890, being admittedly due and payable, as appears from the amended petition, it was the duty of the appellants to tender, or offer to pay the portion of the tax admitted to be due, and so alleged in their amended petition; and that the appellants having failed so to do their amended petition is demurrable and was properly dismissed. City of Louisville v. Board of Trade, 90 Ky., 409, 418; Thompson v. City of Lexington, 20 Ky. Law Rep., 457, 460; White v. Cates, 7 Dana, 358; Cooley on Taxation, 536, 537; Taylor v. Secor, 2 Otto (U. S.), 575; German Nat’l Bank of Chicago v. Kimball, 13 Otto (TJ. S.), 732, 735; High on Injunctions (3d ed.), sections 498, 497, 491, 489; Comm’rs of Osborne Co. v. Blake, 19 Kan., 299; Hagaman v. Comm’rs of Cloud Co., 19 Kan., 394; Swinney ,v. Beard, 71 111., 27; L. & N. R. R. Co. v. Warren Co. Ct., 5 Bush, 243; Gates v. Barrett, 79 Ky., 295; Baldwin v. Shine, 84 Ky., 502.</p> <p>10th. That the appellauts have been guilty of such laches that they are not entitled to relief, for that they stood by, permitted the issue and sale of the refunding bonds, and paid the taxes levied to pay the interest thereon for a number of years prior to the bringing of their action, when it was' within their power to have prevented the issue and sale of said bonds if the fiscal authorities of Kenton County Taxing District had been proceeding illegally. The appellants have been silent when they should have spoken, and in equity and good conscience they are now estopped from speaking, and can not be permitted to claim that the bonds in controversy are not the valid obligations of the Kenton County Turnpike Taxing District Ferguson v. Landram, 1 Bush, 565; Ferguson v. Landram, 5 Bush, 235; Richard v. Mackall, 124 TJ. S., 183; Lane & B. Co. v. Locke, 150 TJ. S., 193; Galliher v. Cadwell, 145 TJ. S., 368; Martin v. Gray, 142 TJ. S., 236; People’s Bk. of Belleville v. Manufacturers’ Nat’l Bank of Chicago, 101 U. S., 181; Kinsman v. Parkhurst, 18 How., 289; Daniels v. Tierney, 102 U. S., 415; Johnston v. Standard Mining Co., 148 U. S., 360; Board of Comm’rs of Anderson Co. v. Beal, 113 U. S„ 227.</p> <p>. 11th. That the Kenton County Turnpike Taxing District, created by the Act of May 13, 1890, is a valid and existing district for the purposes for which it was created, except in so far as said act may be affected by the provisions of the new Constitution or by subsequent legislation. City of Covington v. District of Highlands, 24 Ky. Law Rep., 433, 435, 436, 437; Campbell Co. v..N. & C. Bridge Co., 23 Ky. Law.Rep., 2056; Richardson v. Boske, 23 Ky. Law Rep., 1209; Campbell Co. v. Commissioners of the Court House District, 19 Ky. Law Rep., 860; Pearce v. Mason County, et al., 99 Ky., 357; O’Mahoney v. Bullock, et al., 97 Ky., 774-</p> <p>12th. That no cause of action is stated in the amended petition against Kenton county, which is improperly made a party defendant to this action. The eause of action, if any, is not against Kenton county, but against the fiscal court of Kenton county, which is also the governing authority of the Kenton County Turnpike Taxing District, and the body authorized by law to levy the tax to pay for turnpikes constructed under the Act of May 13, 1890.</p> <p>13th. That Jennie S. Holmes, R. B. Wallace, Elizabeth W. Morton, C. W. Simrall and B. Simrall, named in the statement for appeal herein as appellants, were not parties to the action in the lower court, are improperly joined as appellants and that this appeal should be dismissed as to them.</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES, XII.</p> <p>We respectfully submit that we have established the following points beyond contradiction, to-wit:</p> <p>1. Appellants seek to enjoin the collection of the regular town taxes upon the sole ground that the town has failed to pay their turnpike tax for them.</p> <p>2. There is no statute or law requiring or authorizing the town to assume or pay this turnpike tax for the appellants</p> <p>3. Sections 3666-3667, when read and construed together, show by necessary implication that, where a town of the sixth class annexes territory other than a town or municipality, it does not become bound for the debt or liabilities of such annexed territory; neither does the annexed territory become liable for any .antecedent debts or liabilities of such annexing town.</p> <p>4. The tax sought to be enjoined is equal and uniform' throughout the town, including the annexed territory.</p> <p>5. The municipal taxes in the original town and annexed territory are absolutely equal and uniform each section being equally taxed to carry on the municipal government, and each section being required to pay its respective debts and liabilities created prior to the annexation, which approximates equality and uniformity as closely as human laws could be ex-peceted to approximate them.</p> <p>6. Where one town annexes another, it becomes the owner of all the corporate property, franchises and rights of the annexed town, in consideration of assuming the debts and liabilities of the annexed town, and the taxes thereby become equal and uniform.</p> <p>7. The first paragraph of the condensed petition, being the paragraph aimed at the town of Central Covington, does not state facts sufficient to constitute a cause of action against the town, and the judgment of the lower court, sustaining a demurrer to it, was correct upon its face.</p> <p>8. As the alleged ground upon which the collection of the regular town taxes was enjoined and restrained is not a legal or valid ground in law, the several restraining orders and temporary injunctions were rightly dissolved, and should not be continued in force by this honorable court.</p> <p>9. The collection of the regular revenue of a State or municipality should not be interfered with by a court of equity, except for the clearest reasons, and to prevent great and irreparable injury. Cooley on Taxation, pp. 536-537; High on Injunctions, sec. 537; Dillon on Municipal Corporations; p.</p> <p>10. The mere fact that appellants are still legally bound to pay their just proportion of this special turnpike tax, levied to pay a bonded liability incurred long before they were annexed to Central Covington, constitutes no legal reason why the town should assume said liability, and constitutes no legal reason why they should refuse to pay their regular town taxes in common with every other taxpayer in the town. Donnelly v. Carpenter, 20 Ky. Law Rep., 697; Chambers v. Adair, 23 Ky. Law Rep., 373; Kentucky Statutes, secs. 3666-3667.</p> <p>11. The town could not assume this liability, even if it were so inclined, without the affirmative vote of two-thirds of all the qualified voters of the town. Kentucky Statutes, sec. 3705.</p> <p>12. Appellants admit that they were in the taxing district ■when the turnpikes were built and the bonded indebtedness incurred, and that they were not annexed by the town until nearly four years afterward.</p> <p>Under section 171 of the present Constitution this court has laid down the doctrine that the tax levy of a town must be uniform upon all the property situated within its limits, including agricultural lands presumably not benefitted by the tax. Board of Councilmen of Frankfort v. Scott, 10 Ky. Law Rep., 1068; Board of Councilmen of Nicholasville v. Rarrick, 19 Ky. Law Rep., 1415; City of Richmond v. Gibson, 20 Ky. Law Rep., 858. Under these decisions it was the duty of the town of Central Covington to levy the tax complained of upon the property of appellants, as well as all other property situated in the town.</p> <p>Wherefore, it is respectfully submitted that the motion of appellants to continue in force the temporary injunction should be refused, for the reason that no grounds for an injunction exist and the further reason that the “ends of justice” do not “require” such continuance.</p>

Case 102' — Action by P. S. Damron Against W. J. Damron, fob an Injunction! APPEAL FROM PIKE CIRCUIT COURT — A. J. KIRK, CIRCUIT JUDGE Judgment for Plaintiff. Defendant Appeals. Appellant affirms: 1. That the court erred in sustaining the demurrer to his answer. 2. That the circuit court has no jurisdiction to locate and establish road£ and passways. 3.

<p>Infants — Title of Action — Carriers—Contract to Furnish Transportation — Damages for Delay.</p> <p>1. Where an action is for damages .to an infant, it should he brought in his name by his statutory guardian.</p> <p>2. Where a railroad company merely contracts to furnish transportation, without being notified what the trip is for, the measure of damages for its negligent delay in furnishing it is merely compensation for the loss of time and for any expense incurred during the delay.</p>

<p>Deed — Recording—Notice—Failure to Index Record.</p> <p>1. Kentucky Statutes, 1903, section 500, and preceding sections, relative to the recording of conveyances, only requires a grantee, in order to give notice to subsequent purchasers, to present his deed and have it recorded; and section 513 requires the county clerk to make and keep an alphabetical cross-index of conveyances. Held, that the record of a deed is notice, though the clerk fails to index it, and the grantee withdraws his deed without seeing that the proper index has been made.</p>

<p>Case 105 — Prosecution Against Joseph Beckett, for Obtaining Money Under False Pretenses.</p> <p>APPEAL FROM BRACKEN CIRCUIT COURT-JAMES P. HARBESON, CIRCUIT JUDGE.</p> <p>From an Order Sustaining a Demurrer to the Indictment the Commonwealth Appeals.</p> <p>1. The offering and giving of the $10 bill, constitutes a representation by words, action and conduct that the bill is a good bill, lawful money of the United States of America and passing currency of such, which said representation is strengthened by appellee accepting the $2.50 in lawful and good silver coin in change from the witness-.</p> <p>2. The appellee did not have to say in words to the prosecuting witness when he handed or offered to hand him the bill: “Here is a $10 bill which represents good and lawful money of the United States of America and is of the value of $10,” in order to make it false pretense. The language of the statute is broad enought to include all cheats punishable at common law, for it is plain, that whatever is a false symbol or false token is also a false pretense. (2 Bishop Criminal Law, 7 ed., sec. 416.)</p> <p>3. Under section 1208 of the Kentucky Statutes for obtaining money or property under false pretense, it is not now indispensable that there should be a false statement in words of a past occurrence or existing fact in order to make the offense, but it is sufficient if there be a false pretense by conduct or conversation, direct or indirect, whereby one with intention to commit a fraud obtains money or property of another. (Corn. v. Murphy, 16 R., 224.)</p> <p>4. It is not necessary, to constitute the offense, that the owner has been induced to part with his property solely and entirely by pretens'es or statements which are false; nor need the statements or pretenses be the paramount cause of the delivery of the money or property to the appellee. It is sufficient if they are a part of the moving cause, and without them the defrauded party would not have parted with the property.</p> <p>In the case at bar, the appellee by his act and conversation, saying, “here is a ten dollar bill,” and handing a ten dollar Confederate bill to witness, and at the same time saying, “give me $2.50,” and the witness giving him said $2.50 and the same is accepted by the appellee, created a belief in the mind of his dupe that the ten dollar bill so handed him was good, lawful and representative money of the United States and passing currency as such and of value of ten dollars as represented and pretended by the appellee, and thus as> effectually accomplished his fraudulent purpose of obtaining $2.50 good money and the . horse from' the witness.</p>

<p>Case 106 — Action by the Jefferson Southern Pond Draining Co. Against George Hoertz, to Collect an Assessment for Draining Purfoses.</p> <p>AFPEAL FROM JEFFERSON CIRCUIT COURT, CI-IY. DIV. NO. 2-STERLING B. TONEY, judge.</p> <p>Judgment for Plaintiffs. Defendant Appeals.</p> <p>1. The appellants who bought the land in controversy long after the assessment had been made under the act ot 1888 can not be said to have been benefited by it, for whatever benefit had accrued to the land had accrued long prior to their purchase, and it follows that they paid for these benefits in the increased price of the land.</p> <p>2. The appellee admits by the allegations of its petition that the grantors participated in procuring 'the original act, and this statement or admission necessarily excludes the idea that the subsequent grantors who came into the title at a later period (i. e. appellants), could have participated in the original act, and therefore, this admission is sufficient to dispense with proof of the allegations of appellants in the fourth paragraph of their answer.</p> <p>3. There is no proof in the ease that the appellants in person took any part in or consented to the action of the president and directors in imposing this tax, and under the rule as laid down in Harttage case appellee has not made out the estoppal against the appellants.</p> <p>4. We contend that the court can not add language to a legislative act to give it a meaning which the Legislature and the the parties who procured the act, with all the lights before them,' chose not to give it. If the language is used but is doubtful, the courts can construe it.</p> <p>5. In the process of showing how the taxes in the case were due the essential facts are what boundary did the corporation have the right to tax, where it was located, and was- the land of appellant within this boundary and liable to be assessed for this tax?</p> <p>6. In the absence of any description or reference to a taxing boundary in tlie petitions, an exhibit, if one should be filed, will not supply the missing allegation. But when neither the proceedings of the Jefferson Circuit Court with the survey, nor the act of 1868 establishing a boundary are referred to or filed, a fatal defect in these petitions appears.</p> <p>7. Even if these special acts do not have to be pleaded, yet as appellee has undertaken to plead them, and rely on them, it is bound by the admission that the ones named are the only ones it relies on. In the nature of the ease a specified territorial limit is -absolutely essential to the right to tax, otherwise the right to tax would be co-extensive with the State. The Constitution recognizes this,necessity when it says in section 171 “that the taxes shall be uniform within the -territorial' limits of the power imposing the tax.”</p> <p>POINTS AND AUTHORITIES.</p> <p>' 1. Charter of Jefferson Pond Draining Co., Act Feb. 16, 1838, chap. 922; amendment to charter, Act Feb. 20, 1839, chap. 1298; Charter Jefferson Southern Pond Draining Co., Act Feb. 15, 1858, chap. 518; amendment to charter, Act March 9, 1868, chap. 1164: amendment to charter, Act March 8, 1872, chap. 485; amendment to charter, Act Feb. 26, 1873, chap. 248; amendment to charter, Act March 6, 1878, chap. 287; amendment to charter, Act April 15, 1884, chap. 788; amendment to charter, Act March 26, 1886, chap. 426; amendment to charter, Act May 4, 1888, chap. 1552.</p> <p>2. Appellants are estopped from attacking the validity of .the legislative acts under which the taxes and assessments sued for were imposed and apportioned. Cypress Pond Draining Co. v. Hooper, 2 Met., 350; Scuffletown Fence Co. v. McAllister, 12 Bush, 315; Ferguson v. Landrum, 1 Bush, 548; Same v. Same, 5 Bush, 230.</p> <p>3. The drainage of pond or swamp lands to promote the public health or public welfare or convenience is within the power of the Legislature, and the cost thereof may be imposed upon the lands benefited thereby. Cooley on Taxation; 10 Amer. & Eng. Ency. Law, 222, 223; Scuffletown Fence Co. v. McAllister, 12 Bush, 315; Duke v. O’Bryan, 100 Ky., 710; Hagar v. Reclamation Dist., Ill U. S., '509; Davidson v. New Orleans, 96 TJ. S., 97.</p> <p>4. The Legislature may create the taxing district and delegate the power, to construct the improvement and apportion the cost to an agency, as a corporation created for that purpose. O’Reilly v. Kankakee Valley Draining Co., 32 Ind„ 169.</p> <p>5. The statute creating the district and authorizing the drainage need not declare the public benefit, this being a judicial question to be determined in the proceedings-. McReynalds v. Smallhouse, 8 Bush, 456; Allison v. Louisville, &c., Railroad, 10 Bush, 1; Duke v. O’Bryan, 100 Ky., 710.</p> <p>6. The amendment of May 4, 1888, affords the property owner an opportunity to be heard, upon notice of publication, before the tax or assessment becomes binding, and does not take his property without due process of law. Davidson v. New Orleans, 96 TJ. S., 97; Hagar v. Reclamation Disk, 111 TJ. S., 509; Lent v. Tillson, 140 TJ. 8., 316; Spencer v. Merchant, 125 TJ. S., 345; Fallbrook Irrigation Dist. v. Bradley, 164 TJ. S., 113, 174; Bauman v. Ross, 167 TJ. S., 548; Paulsen v. Portland, 149 TJ. S., 30; Cooley on Taxation, 3d ed., 629, 68.</p> <p>7. The review of an assessment or apportionment for taxes or the cost of local improvements is a judicial proceeding and could properly, under the Kentucky Constitution of 1850, be imposed upon the Louisville Chancery Court. Cooley on Taxation, p. 786; Burroughs, Taxation, p. 238; Wilson v. Karle, 42 N. J. L., 612; Cin. &c. R. R. v. Com., 81 Ky., 511; Cassidy, Aud’s Ag’t v. Young, 92 Ky., 227; Louisville Water Co. v. Clark, 94 Ky., 53.</p> <p>8. The adoption of the Constitution of 1891 of the enactment of the statutes thereunder did not repeal the charter of appellee or deprive it of the right to enforce the taxes or assessments levied and made a lien in the year 1888. Constitution of 1891, schedule 1, 2; Long v. City of Louisville, 97 Ky., 364.</p> <p>9. Acts of the General Assembly constituting the charter of the appellee need not be specially pleaded, for the courts are required to take judicial notice of them. Kentucky Statutes, sec. 1624; Town of Central Covington v. Weighaus, 19 Ky. Daw Rep., 1979.</p> <p>10. The judgments ought to be affirmed because the records on appeal are incomplete in that they do not contain a material part of the evidence in the court below, and because the transcripts were not prepared on schedules as prescribed by sec. 737 of the Civil Code. Terrell v. Rowland, 86 Ky., 75; Beau v. Meguiar, &c., 16 Ky. Daw Rép., 715; Huffaker v. Bank, 13 Bush, 648; Bowman v. Holloway, 14 Bush, 426; Sacra's Heirs v. Carter, 22 R., 124.</p>

<p>Case 107 — Prosecution Against Henry Combs, for Selling Liquor Without a License.</p> <p>APPEAL l'ROM KNOTT CIRCUIT COURT — D. W. GARDNER, CIRCUIT JUDGE.</p> <p>Defendant Convicted and Appeals.</p> <p>Appellant was tried and fined $100 on each of six indictments for selling liquor without a license, two of which were filed July 20, 1904, and four on July 21, 1904, in each of which the following or "similar language occurs: “This indictment is in lieu of a former one filed on the .... day of March, 1904, and which' has been lost, and can not now be found.”</p> <p>1. We insist that in neither case is there such a statement •of the facts constituting the offense, and the manner and time of its commission, as to enable a person of common understanding to know what is intended.</p> <p>2. There is no allegation that the offense was committed within twelve months before the finding of the original indictment, but on the other hand it seems that the defendant is indicted in November, 1903, and March, 1904, for an offense committed in July, 1904.</p> <p>3. We submit that the indictments are misleading, uncertain and inconsistent and the demurrer to each of them should have been sustained.</p> <p>AUTHORITIES CITED.</p> <p>Crim. Code, sec. 122, 124, 129; Williams v. Com., 37 S. W., 839; Com. v. Taylor Co., 43 S. W., 3991; Com. v. McGill & Co., 40 S. W„ 695; N. N. &c. Co. v Com., .14 R., 197; Tully v. Com., 13 Bush, 153.</p> <p>(No brief in the record.)</p>

<p>Municipal Corporations — Street Improvements — Special Assessments — Mode of Payment — Proceeding to Enforce — Statute of Limitations — Estoppel—Practice.</p> <p>1. Under Act Kentucky, April 13, 1890 (2 Acts 1889-90, p. 899, c. 902), amending the charter of the city of Lexington, and authorizing the levy of a special tax on property benefited by street improvements, sufficient to pay for two-thirds of the cost, the balance .to be paid by the city, and authorizing the general council, at the request of parties liable for such special taxes, to lend such parties the credit of the city for a period not exceeding ten years, for an amount sufficient to pay the entire cost of said improvements, the same to be paid in ten equal annual payments, a property owner who, knowing that the city was acting on the idea that he had requested such a ten-year plan, fails to object, and who, after the city has issued its bonds and paid the entire cost of the improvement, pays without objection two annual installments assessed on that basis, is.estopped to deny that he made such request, and, after five years, rely on limitations as a bar to the enforcement of the lien for the balance of instalments.</p> <p>2. Proceeding to enforce the payment of assessments on property for street improvements are governed by the same rules as other actions.</p>

Case 109 — Action by S. W. HAGER, Auditor, Against the Kentucky Title Co., to Recover a Franchise Tax. appeal prom franklin circuit court — JAMES CANTRILL, circuit judge. Judgment for Defendant. Plaintiffs Appeal. The question in the case is: Is the tangible property of' appellee subject to taxation under sections 171, 172 and 174 of the Constitution, and section 4077, Kentucky Statutes? 1.

Case 110 — Motion by Commonwealth for the Use of Certain Tax Payers for a Capias ad Satisfaciendum Against S. A. Rat-cliff. APPEAL FROM NICHOLAS CIRCUIT COURT-L. P. FRYER, CIRCUIT JUDGE. Motion Denied. Plaintiff Appeals. At the May term, 1902, of the Nicholas* circuit court the appellants obtained a judgment against appellee Ratcliff for $3,242.79 and costs, which was, in accordance with the mandate of the court of appeals, modified by crediting the same with $122.14.

<p>Insurance — Insurable Interests — Wagering Contracts — Payment to Beneficiaries — Action by Insured’s Administrator.</p> <p>1. Where insurance policies were procured hy false and fraudulent representations of the beneficiaries and the insured that the former were creditors of the latter, the transaction constituted a speculation upon the hazard of human life, which rendered the policies void as against public policy, and precluded the maintenance of any action upon them against the insurance company hy the insured’s administrator. ■</p> <p>2. Life insurance policies taken -without the knowledge or consent of the insured are void, but premiums paid thereon in good faith may be recovered.</p> <p>3. Under the express provisions of the Kentucky Statutes, 1903, sec. tion 679, applications for insurance policies can not be received as evidence when not attached to or made to accompany the policies.</p> <p>4. Where policies made out to beneficiaries1 who have no insurable interest in the life of the insured are, under the circumstanoes, not absolutely void as wagering contracts, and the insurer settles the insurance with the persons named in the policies as beneficiaries without knowledge of their want of insurable interest, and without notice of the claim of the insured’s administrator, the insurer can not be compeled to pay the amount of the policies a second time to the administrator, but the nominal beneficiaries' to whom the insurance money is paid' will be treated in equity as having received the same as assignees or appointees for the persons legally entitled thereto, and any action on the part of the administrator is against -such beneficiaries.</p>

Case 112 — Action by Gus Greene Against the Louisville Ry. Co-for Damages for Personal Injuries. APPEAL FROM JEFFERSON CIRCUIT COURT, L. & E. DIV.-STERLING B. TONEY, JUDGE. Judgment for Defendant. Plaintiff Appeals. 1.

<p>Slander — Bribery—Pleading.</p> <p>1. To render words actionable, unless special damages are shown, they must import that the person to whom they are spoken is guilty of a felony, or some crime of such turpitude as to render him liable on an indictment.</p> <p>2. Kentucky Statutes, 1903, section 1366, -makes it an offense for any ministerial officer to take or agree to take any bribe to do or to omit to do any act in his official capacity. Held, that, to make one guilty under the statute, the taking of the bribe or agreement to take it, must occur while the person is an officer; and words charging that defendant furnished money to elect plaintiff a justice of the peace in consideration of his agreeing to vote for the dismissal of a certain suit then pending, and in which the county was plaintiff, and that after his election he so voted, were not slanderous per se.</p> <p>8. In slander, plaintiff must prove his words as alleged, and not other words of like import, and defendant is not allowed to plead that he used other words, and justify them.</p>

<p>Carriers of Passengers — Use of Abusive Language by Employes— Evidence — Question for Jury- — Admission of Employe.</p> <p>1. In an action against a railroad company for the use of abusive and threatening language by one of its employes- to a passenger, evidence held to justify submission to the jury of the question whether the employe or the passenger was the aggressor.</p> <p>2. The law implies a contract on the part of the carrier to protect a passenger from the the insults and wanton interference of strangers, fellow passengers, and the carrier and its servants.</p> <p>3. In an action against a railroad company for the use of threatening and abusive language by a brakeman .to a passenger, evidence that the brakeman, some time after the occurrence, said to witness that he started to slap plaintiff, and was sorry he did not do so, was incompetent.</p> <p>4. In an action against a railroad company for abusive and threatening language used by an employe to a passenger, the em: ploye admitted the use of the language, hut contradicted plain- . tiff’s testimony that he started towards plaintiff as if to assault him. Held, that this admission did not render harmless the introduction of incompetent evidence that the employe had afterwards said that he started to slap plaintiff, and wished he had done so.</p>

<p>Case 115 — Action by H. N. Fisher Against the Western Union Telegraph Co., for Damages for Mistake in Telegram.</p> <p>APPEAL FROM GREENUP CIRCUIT COURT-JAMES P. HARBESON, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>Our contention is that an action will lie against a telegraph company for failure to use reasonable care and diligence to correctly transmit and deliver messages delivered to them for transmission, when such failure is the proximate cause of injury to the party complaining.</p> <p>CITATIONS.</p> <p>Thompson on Negligence, vol. 2, pages 932,-995, 998; A. & E. Ency., Plead., Pr., vol. 21, page 507; Taliaferro v. Western Union. Tel. Co., 54 S. W., 825; Postal Tel. Cable Co. v. Scbafer & Sons, 110 Ky., 907.</p> <p>1. We insist tliat plaintiff was under no legal obligation to deliver to N. Fisiier the lumber at the price of $25 per thousand, ■as by reason of the mistake in the message the minds of the parties had never m'et, and there was no binding contract between them.</p> <p>(a) There was no allegation in the petition that the mistake Was not discovered until after the delivery of the lumber.</p> <p>Cb) Even if Fisher was allowed to receive the lumber before ■the error was discovered, there being no contract between the plaintiff and Fisher, the latter was chargeable with the reasonable market value of the lumber at the time he took it.</p> <p>(c) It is nowhere alleged in the petition that the market value of the lumber was' less than $35 per thousand or that this sum could not be realized for it.</p> <p>(d) There is no allegation that said lumber was not worth or could not have been sold at $35 per thousand feet when plaintiff ascertained the mistake in the message, and so failing to show that the market price was less than the contract price, or that he suffered any loss by reason of the error, he fails to state a cause of action.</p>

<p>Case 116 — Proceedings by Edward W. Ward and Others Against Margaret E. Putnam, &c., to Probate the Alleged Will oe Margaret E. Ward, Deceased.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-WM. MOD. SHAW, CIRCUIT JUDGE.</p> <p>From the Judgment of the Circuit Court Refusing to Probate Edward W. Ward and Others Appeal.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED AND AUTHORITIES CITED IN SUPPORT OF EACH QUESTION.</p> <p>1st. The intention of testatrix should be given effect, if possible to do so. Price v. Hutchins, 98 Ky., 656; Crozier v. Cundall, 99 Ky., 202, 209: Upchurch v. Upchurch, 16 B. Mon., 102; Porter, etc., v. Ford, etc., 82 Ky., 191.</p> <p>2d. The object and spirit of the statutes prescribing the mode of executing wills were to prevent fraud, but there can be no fraud in this case. Porter, etc., v. Ford, etc., 82 Ky., 191, 195; Schouler on Wills, 2d ed., sec. 312.</p> <p>3d. A will must be considered as ending with the close of the dispositive parts, and if the signature is attached there, the will is valid as to those parts. Schouler on Wills, sec. 1 and notes; Bouvier’s Law Dictionary, “Wills;” Rockel’s Ohio Probate Practice, see. 1037; Woerner, Amer. Law. of Administration, (2d ed.), vol. 1, sec. 39; Schouler on Wills, sec. 297 and notes; Williams on Executors, vol. 1, p. 6, Estate o'f Jno. McCullough, Myr. Prob. (Cal.), 76; Schouler on Executors and Administrators, sec. 3; Kentucky Statutes, secs. 3891-3892.</p> <p>4th. The present will was attested in substantial compliance with the statutes, and that is sufficient. Soward v. Soward, 1 Duvall, 132; Matter of Acker, 5 Dem. (N. Y.), 19.</p> <p>. 5th. The Kentucky authorities relied upon by appellees are not in conflict with the will. Soward v. Soward, 1 Duvall, 132; Flood v. Pragoff, 79 Ky., 607; Baker v. Baker, 51 O. S., 217, 223; Brady v. McCrosson, 5 Redf., 431.</p> <p>We contend:</p> <p>1. That the attempted execution of this will was in violation of section 4828, Kentucky Statutes.</p> <p>2. That the Legislature’s intent and not the testator’s intent is controlling on the question of admission of a will to probate. And also if testator’s clear intent were relevant at this time, there is no way of knowing what this particular testator’s intent was.</p> <p>3. That the citations in appellant’s able brief to text writers and decisions are not relevant to this question, and would neither control nor vary the rule in Kentucky if they were.</p> <p>CLASSIFICATION OF AUTHORITIES.</p> <p>1. The Kentucky law of wills. Section 4828, Kentucky Statutes; Soward v. Soward,. 1 Duvall, 126.</p> <p>2. The right to make a will is statutory, not inherent. Page on Wills, section 21; Moorev. Howe, 4 Monroe, 198, on p. 201; Schouler on Wills, section 16.</p> <p>3. Execution and subscription on wills must be in accordance with express terms of statute. Upchurch v. Upchurch, 16 B. Monroe, 302; Soward v. Soward, 1 Duval, 126; Sisters, etc., v. Kelly, 67 N. Y., 409; Wineland’s Appeal, 118 Pa. St., 37; Schouler’s Executors & Administrators, section 63, pp. 78 and 79; Rockels’ Ohio Probate Proceedings, pp. 936 and 937.</p>

<p>Case 117 — Action by T. J. Smith and Others Against Elise Smith and Others, for a Construction of the Will of T. J. Smith, Deceased.</p> <p>APPEAL FROM MADISON CIRCUIT COURT — J. M. BENTON, CIRCUIT JUDGE.</p> <p>Judgment for Defendants. Plaintiffs Appeal.</p> <p>1. We respectfully suggest that a practical business man, as testator is shown to have been, would never for a moment have meant that bank stock should be tied up to use only during two lives and then belong to grandchildren, unborn, and who may not be born for thirty-five or forty years after his death, and who could not come into possession of it until they had reached lawful age, thereby postponing the lawful ownership fifty-five or sixty years, especially when no provision is made for a trustee to hold or sell the same or .to reinvest it when the interest of the beneficiary required a sale.</p> <p>2. It is evident that the testator only intended the devise as a convenient income for his wife and then to belong to his son absolutely.</p> <p>1. It is contended for infant appellee that the word “children,” used in the will are words of purchase, and the bank stock and Uollins place go to them under the will, after the death of testator’s wife and the death of his son, the father of appellees, the devise being, “to my wife and at her death this property goes to my son and his children.”</p> <p>2. The word “children” in devise is used as a word of purchase, and not of limitation, unless there is1 some qualifying word or phrase in juxtaposition thereto to show that it is a word of limitation, or unless in some other part of the writing which explain that the testator used the word in the latter sense.</p> <p>AUTHORITIES.</p> <p>Mefford v. Daugherty, 11 R., 157; Carr v. Estell, 16 B. Mon., 245; Adams v. Adams, 20 R., 655; Poland v. Chism, 23 R., 1072; Dunlap v. Shreve’s Exr., 2 Duv., 334; Moran-v. Dilehay, 8 Bush, 434; Lackland v. Downing, 11 B. Mon., 32; Williams v. Duncan, 92 Ky., 125; Bradley v. Skillman, 3 R., 734; Hood v. Dawson, 17 R., 880.</p>

<p>Taxes — Suits to Collect — Enforcement Against Fiduciary — Limitations.</p> <p>1. Under Kentucky Statutes, 1903,- section 3003, providing that every fiduciary appointed under the laws, who has the management of lands in a city of the first class, shall pay the city taxes, and in default shall be liable for the taxes to the amount of the-income from the lands which he might have applied to its payment; and section 3005, providing that in suits to recover taxes the city shall obtain a personal judgment against the person assessed, a -personal judgment may be rendered against an executor in a suit to enforce the payment of tax bills on the lands of his decedent, the rents and profits of which the executor has collected.</p> <p>2. A city, in 1900, instituted suit for a personal judgment against an executor for taxes assessed for 1S96 against the land of his decedent under Kentucky Statutes, 1903, sections 3003, 3005. In 1902 a supplemental petition was filed against the executor and all other parties interested. The added parties and the executor then pleaded five-year limitations, whereupon the city filed an amended pleading, alleging that the executor had collected the rents and income from the property and enjoyed the profits thereof, and had not settled 'his accounts. Held, that the plea of limitations was properly sustained as to the defendants other than the executor, but as to him limitations had not run, as the amendments- filed in 1902 did not introduce a new cause of action against him, but merely stated additional reasons to those stated in the original petition, which stopped the running of limitations, why he should be compelled, to pay the . taxes.</p>

<p>Case 119 — Action by Charles E. Voices Against George F. Eaton and Others to Recover Money Procured to be Invested by Him by False and Fraudulent Representations.</p> <p>APPEAL FROM KENTON CIRCUIT COURT-WM. McD. SHAW, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>CLASSIFICATION UNDER RULE 17 OF THE COURT, OF THE QUESTIONS DISCUSSED.</p> <p>1. A corporation can not be formed for the purpose of accomplishing a fraud or other illegal act. Clark & Marshall on Private Corporations, volume 1, pages 22 and 248. McGrew v. City Produce Exchange S5 Tenn., 582.</p> <p>2. To constitute a valid corporation, there must be a valid law authorizing the organization of a corporation for the purpose for which it was organized, and if a corporation is not organized under such laws, it does not acquire a de facto corporate existence, and such corporation may be attacked collaterally by creditors, as well as directly by the State. Clark & Marshall on Private Corporations, vol. 1, pages 129, 241 and 248. Davis, etc., v. Stevens, etc., 104 Fed. Rep., 235; Eaton v. Walker, etc., 76 Mich., 597, G L. A. R., 102; Cincinnati Cooperage Co. v. Bate, 14 Ky. Law Rep., 469.</p> <p>3. Where certain things are enumerated, and followed by general words, but does not specify what other things are intended thereby, such general words relate only to things1 that are of a kindred nature to the things specified. Clark & Marshall on Private Corporations, vol. 1, page 135; State of Wisconsin v. Interstate Investment Co., 88 Wis., 512; Kennedy v. Foster, 14 Bush, 479.</p> <p>4. Contracts of investment securities, and debentures which can not reasonably' accumulate a reserve fund equal to the specified endowments within the time specified in contracts, without the aid of lapses and forfeitures, and appropriations of premiums on new business, are deceptive and fraudulent, and intrinsically unequal, and, therefore, against public policy. McLaughlin v. The National Mutual Bond & Investment Company, 64 Fed. Rep., 908; State of Ohio v. Intei’state Savings & Investment Company, 64 Ohio St., 283; In re National Indemnity & Endowment Co., 142 Pa. St., 450; State of Louisiana v. New Orleans Debenture & Redemption Company, 26 Southern Reporter*,, 586; State of Louisiana v. Louisiana Debenture Company, 26 Southern Reporter*, 592; State of Kentucky v. Taylox*, 25 Ky. LawtRep.,</p> <p>5. Where parties to a transaction are to some extent in pari delicto, or in some degree affected with the unlawful taint, but -not in pari delicto, or where'the contract is illegal and intrinsically unequal, a court of equity in the furtherance oE public policy may aid the one most innocent. Pomeroy on Equity Jurisprudence, sections 941 and 942; Tracy v. Talmage, 14 N. Y., 162, 67 Am. Dec., 132.</p> <p>6. Sufficiency of allegation of fraud. Newman’ Pleading & Practice, pages 262 and 543.</p> <p>CLASSIFICATION UNDER RULE 17, AND CASES CITED.</p> <p>1. A corporation can not he attacked until there is a judicial finding, at the instance of the State, that the corporation is not legally formed, and is without authority to act. Harrison v. Lexington & Frankfort R. R. Co., 9 B. Mon., 471; Gill v. Kentucky & Colorado Gold & Silver Mining Company, 7 Bush, 539; Hughes v. Bank of Somerset, 5 Littell, 546; Wright v. Shelby Railroad Company, 16 B. Mon., 5; Whitney v. Wyman, 101 U. S., p. 392; Gilbert v. Hole, 2 S. Dak., 165; Building & Loan Association of Dakota v. Chamberlain, 6 S. Dak., 273, etc.; section 3804 of the Statutes of South Dakota; School District No. 61 v. Alderman, 6 Dak., 145, etc.; Wright v. Lee, 2 Dak-, 597; Thompson’s Commentaries on Corporations, sec. 503.</p> <p>Cases distinguished;</p> <p>McLaughlin v. National Mutual Bond & Investment Company, 64 Fed. Rep., 908; State of Ohio v. Interstate Savings & Investment Company, 64 O. S., 283.</p> <p>2. Appellant can not maintain his action because he partid- - pated in the fraud. Davezac v. Siler, 14 Ky., Law Rep., 497; Farmers Bank v. Unser, 13 Ky., Law Rep., 965; Bispham on Equity, sec. 225, p. 319 (5th ed.); Howard v. Current, 9 B. Mon., 495; Bispham on Equity, sec. 42, p. 67; Dows v. Glasfel, 6 Dak., 257.</p> <p>3. The corporation attacked was a legal corporation. Section 3812, Statutes of South Dakot/a, Kennedy v. Foster’s Executor, 14 Bush, 479; State v. Walker, 123 Mo. (1894), p. 56. Sutherland on Statutory Construction, sections 278, 279, 240, etc.</p> <p>4. The corporation attacked was at least a cle facto corporation. Thompson’s Commentaries on Corporations, sec. 503; Cook on Corporations, section 234.</p>

<p>Case 120 — Action by Theodore Letzler's Admr. Against Pacific Mutual Life Ins. Co. of California, to Recover on a Policy of Life Insurance.</p> <p>APPEAL FROM .JEFFERSON CIRCUIT COURT, C. P. DIVISION — EMMETT FIELD, JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The policy provides for terms of whole years only and could not terminate or lapse before the expiration of the whole of such term unless a forfeiture is provided for, and the contract will be construed most strongly against the appellee. Joyce on Insurance, vol. 1, sec. 220; Aetna Ins. Co. v. Jackson, Ac., 16 B. Mon., 259; Louisville M. A F. Ins. Co. v. Bland, 9 Dana, 151; Phoenix Ins. Co. v. Spiers; Ac., 87 Ky., 294; American Accident Co. v. Riegart, 94 Ky., 547; The Mut. Ben. Life Ins. Co. v. Dunn, 21 R., 216; May on Insurance, sec. 1175; Mouler v. American Life- Ins. Co., Ill U. S., 335; Orient Mut. Ins. Co. v. Wright, 1 Wall. (U. S.), 456; Cotten v. Fidelity A Casualty Co., 41 Fed., 509; Merth v. Schickenborg, 11 R., 233; Norris v. Philpot, 12 R., 557; Bluegrass Cordage Co. v. Luthy A Co., 98 Ky., 583; Dent v. Steamship Co., 49 N. Y., 390; Clark on Contracts, secs. 15 and 24; Am. A Eng. Enc. of Law, vol. 6, page 727; Crawford v. Beard, 4 J. J. M., 1S7; McLure v. Rush, 9 Dana, 65; Addison on Contracts, sec. 18; Taylor on Landlord A Tenant, sec. 489;- Jacks on v. Tepping, 1 Wend., 388; Dennison v. Reed, 3 Dana, 586; Am. A Eng. Enc. of Law, vol. 18, p. 370.</p> <p>2. The contract contains no provision for forfeiture except in the application, and the provision therein is invalid and does not affect the contract because it is printed in type smaller than brevier. Kentucky Statutes, secs. 656 and 679; Provident Savings' L. Ins. Co. v. Puryear’s Admr., 22 R., 982; Same v. Beyer, 28 R., 2462; Manhattan Life Ins. Co. v. Meyers, 22 R., 877; Cotton v. Fidelity A Cas. Co., 41 Fed., 509; DeLancy v. Rockingham Mut. Fire Ins. Co., 52 N. H., 581; Hunziker v. Supreme Lodge K. of P., 25 R., 1510.</p> <p>3. The policy not expiring until the end of the third insurance year, it was in force three full years and the extended insurance attached under its provisions</p> <p>1. It is not alleged in the pleadings1 in this case that after the insured made default in the payment of his premiums that the appellee ever demanded payment of either of the quarterly premiums; nor is it intimated that the company did -anything more than remain passive. It is alleged in the answer that after default in the payment of the quarterly premium, due April 1, 1901, that the company marked the policy on its books as lapsed, and that there was never any further negotiation between appellee and insured until this suit was brought about ten months after the death of the insured.</p> <p>2. The language of the policy is meaningless unless it means that if the insured shall elect to pay his premiums quarterly they must be paid in advance, and that each payment covers- only three months of insurance and not one year’s insurance, and that if he fails to pay in advance at the beginning of each quarter the policy will ipso facto lapse and become of no value.</p> <p>3. There is no pretense in the pleadings or in the evidence in . this case, that the insured did' not read or that he could not read, or that he did not understand or that he could not understand all that is contained in the printed application. And yet appellant comes into court and without any excuse whatever askes the court to deprive the company of its use of that part of the contract contained in the application because it is printed in type smaller than brevier. We respectfully submit that this plea ought not to appeal to a court of justice.</p>

<p>Homicide — Mitigating Circumstances — Adultery—Evidence—Priveleged Communications — Trial—Argument to Jury.</p> <p>1. On a trial for homicide, evidence that defendant had committed other crimes, that he had possibly been guilty of adultery, that he had shot another man, or that he had said that deceased was the third man that he had shot, was improperly admitted.</p> <p>2. Whether the fact that deceased had estranged the affections of defendant’s wife, had debauched her person, and had threatened defendant’s life if he interfered with deceased’s continuance of his illicit relations, created in defendant an emotional insanity, so as for the time to dethrone his reason, or whether it merely reduced the homicide to manslaughter, was a question for the jury.</p> <p>3. On a trial for homicide, testimony that defendant’s wife told him immediately before the shooting that deceased, who was occupying illicit relations towards her, had threatened defendant’^ life, and would kill him rather than let his wife return with him,' ”is competent, and is not within the prohibition of Civil Code, sec. 606, declaring the wife incompetent to testify to any confidential communications made during marriage.</p> <p>4.On a trial for homicide, defendant moved for a continuance on ■the ground of absence of witnesses. The Commonwealth consented that the affidavit should be read, under the provisions of the Code, whereupon the continuance.was denied, and the affidavit admitted as evidence. In closing to the jury, the Commonwealth’s attorney stated that the supposed testimony of the absent witnesses was not in fact their sworn testimony, but was merely an affidavit filed on defendant’s behalf, and argued, or at least invited the inference, that the testimony was not to be received by the jury as evidence. Held, that the argument was improper, and defendant’s objection thereto should have been sustained, and the jury should have been properly admon-' ■ished.</p>

<p>Case 122 — Action by R. Monarch and Others Against the Owensboro City Railroad Co., for a Specific Performance of a Contract.</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT-W. T. OWENS, CIRCUIT JUDGE.</p> <p>Judgment for Defendant. Plaintiff Appeals.</p> <p>POINTS CONTENDED FOR.</p> <p>1. Time was not an essence of the contract between the parties. 3 Parsons on Contracts, 339.</p> <p>2. Where there is no stipulation that time shall be of the essence of the contract — and the contract is in reference to realty — and one party performs in part the consideration for the undertaking of the other party, the latter can not retain such consideration and evade the performance of his part; or escape liability'</p> <p>3. It was competent for appellant to prove his expenditures in obtaining the right of way, where appellee had agreed to share such expense.</p> <p>POINTS DISCUSSED AND AUTHORITIES.</p> <p>1. Statement of the case.</p> <p>2. The charter of appellee company, and the powers therein conferred considered. Session Acts, 1883-4, vol. 1, see. 1300.</p> <p>3. A franchise can not be sold or transferred by the grantee without consent of the sovereign power granting it. Farmers & Laborers Union of Kentucky v. National Union Co., 19 Ky. Law Rep., 1235.</p> <p>4. There was no consideration for the contract sued on. Constitution of Kentucky, section 164.</p> <p>5. The president of a corporation has no authority to act as agent. 76 American St. Rep., 634; Wait v. Nashua Armory Asso., 49 A. St. Rep., 630; Mt. Sterling Turnpike Co. v. Looney, 1 Metcalf, 550, 71 American, sec. 491 and notes cited in that ■case.</p> <p>6. The contract sued on was ultra vires. Re-Assignment Insurance Co., 80 American St. Rep., 164-165.</p> <p>7. The doctrine that a franchise can not be transferred without consent of the power granting it further considered. Brunswick Gas Light Co. v. United Gas Light Co., 34 Am. St. Rep., 390; Central Transportation Co. v. Pullman Car Co., 139 U. S., 24; 35 Am. St. Rep., pp. 392-95 and authorities cited.</p> <p>8. The contract sued ou was void because it was an attempt to consolidate rival or competing corporations. Kentucky Constitution, see. 201; Kentucky Statutes, sec. 555; L. & N. R. R. Co. v. Commonwealth, 97 Ky., 675; Wood, &c., v. City of Seattle, Lawyers Rep. Annotated, vol. 52, p. 370.</p> <p>9. Those who deal with a corporation are held to take notice of powers conferred on it by its charter. First National Bank of Covington v. Milling Co., 95 Ky., 9S; Bell. &c., v. Ky. Glass Works, 20 Ky. Law Rep., 1089; William Tan’ Co. v. Kimbrough, 17 Ky. Law Rep., 1285.</p> <p>10. The State will not grant any part of its sovereignty to an individual.</p> <p>11. A modern business method 'considered.</p> <p>12. The contract of June 12, 1S93, was modified by the parties on September 18, 1893.</p> <p>13. The performance of appellant’s contract within the time specified was a condition precedent. 7 American & Eng. Ency. of Law, 2 ed., 121, note 2; 7 American & Eng. Ency., 2 ed., 119, note; Passmore v. Moore, 1 J. J. M., 591; Sprigg v. Albin, 6 J. J. M., 161; 7 American & Eng. Ency., 2 ed., 121, note 2; Taylor Manufacturing Co. v. Hatcher Co., &c., 3 Lawyers Rep. Annotated, 5S7.</p>

Care 123 — Action by Otto Wiij.ik Against the Maysville & B. S. R. R. Co., &o., for Damages fob Personal Injuries. APPEAL FROM GREENUP CIRCUIT COURT — JAMBS P. HARBBSON, CIRCUIT JUDGE. Judgment for Defendant. Plaintiff Appeals. 1.

<p>Railroads — Duty to Drunken Trespasser.</p> <p>Where the yardmaster and the foreman of the switch crew of a railroad company saw a passenger of .another railroad company aroused from his drunken stupor and put out of the car on the the depot platform, and a few minutes later found him drunk and sleeping between the tracks, in their switchyard, it was their duty either to see him safely out of the yard, or to watch out for him as the engine was moved about; and, having done neither, but merely aroused him and started him walking in the direction of the road, and shortly after run over him on a track, where he had again gone to sleep, their employer railroad company is liable for his death.</p>