Volume 120 — Kentucky Reports

<p>Case 1. — ACTION BY JOHN C. MANION AGAINST PETER MANION FOR MONEY ADVANCED.</p> <p>Appeal from Henderson Circnit Court.</p> <p>J. L. Dorsey, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>1. Upon the petition, answer and reply the motion to transfer was made; no affidavits were filed in support of the motion; no oral proof was heard. The court passed on the motion from the information gathered from the pleadings.</p> <p>The court will observe that the demand is purely legal, nor does the answer contain a single equitable defense. In the 1st and 2d paragraphs he picks out about 96 items from the 600 sued .on, and say's: “These I did not get; the rest is admitted, but these the plaintiff must prove.” Here is a legal issue — matter for the jury — not an accountant or chancellor. The items are well defined, exactly set out, no investigation is necessary; one says: “I paid this money out for you.” The other says: “You did not do that.” Purely a question of fact, to be 'passed on by the jury.</p> <p>2. The third paragraph. denies that plaintiff worked for defendant six months at $100 per month, and says that he worked only five months, and under an express contract that defendant" was to fix the wage, and it was not worth over $25 per month.</p> <p>The issue presented is, was the service performed under an express contract that defendant was to fix the wage; if not, then what was the service worth? A jury is the proper tribunal to settle this question. The chancellor has no right to pass on this question over defendant’s objections.</p> <p>3. The fourth paragraph sets out that plaintiff had in his employ Annie Wright and Joe Clayton,.and paid them $199.55 out of defendant’s money, and that plaintiff justly owed him that sum, and he asked judgment for it.</p> <p>Here the issue is, who did these people work for? There is no question as to the amount paid them. If they worked for the plaintiff, he should refund the $199.55; if they worked for the defendant, the payment was proper. Where does the equitable question come into this issue? It is purely legal.</p> <p>The fifth paragraph alleges that defendant furnished* plaintiff with about $2,000 worth of feed; that plaintiff neglected his business anu allowed great quantities of the feed to be wasted, to defendant’s damage in the sum of $500.</p> <p>Here the claim sounds in damages; no contract, but negligence. Was plaintiff guilty of negligently wasting defendant’s feed? A jury should have been allowed to pass on the question. The chancellor had no right to assume this jurisdiction over plaintiff’s objection.</p> <p>5. The sixth paragraph alleges that plaintiff had sold $125 worth of whisky out there; that he paid no license, and he should not recover from defendant that sum.</p> <p>Plaintiff says he did not sell any whisky. Surely the chancellor has no jurisdiction here. Did he sell the whisky? It is for the jury to say.</p> <p>6. The seventh paragraph is an omnibus plea of payment — a kind of “quantum meruit” plea of payment, and “quantum meruit” is always for the jury.</p> <p>Nowhere is there any suggestion of complicated accounts between the parties. And if such was the case, the complicated accounts are not an issue here. The issues in this suit are clear cut. The plaintiff files a bill of particulars; the defendant takes it up, accepts it, sifts it, and says; “About 94 of the items in your bill are bad." Ño intimation that a jury could not hear proof and pass on them. If a jury could not pass on this question here, where there is a bill of particulars of 94 items, one could not pass on any suit brought on a grocer’s account, a butcher’s account, or a dry goods merchant’s account.1</p> <p>7. There is in this record ño single fact tending to justify the transfer to equity, in the first place; or the refusal to re-transfer, in the second place.</p> <p>CASES CITED.</p> <p>Code, section’ 10; O’Connor v. Henderson Bridge Co., 95 Ky., 441; Breckinridge v. Brook, 1 A. K. M., 335; Bruce v. Burdett, 1 J. J. M., 80; Power v. Rieder, 9 Dana, 6; Pomeroy’s Equity Juris., section 1412; Batchellor, &c. v. Planter’s National Bank of Louisville, 78 Ky., 441; Meek v. McCall, 80 Ky., 374; Code, section 131.</p> <p>1. This appeal appears to be prosecuted, not because the judgment is not a just settlement of the rights of the parties, and a fair adjustment of the accounts between them, but because the court below erred, as appellant alleges, in transferring the case to equity and referring it to the commissioner to report upon the accounts in dispute.</p> <p>2. Some. stress is laid by appellant upon the fact that when the motion to transfer was made the defendant (appellee) did not file an affidavit as the basis of the motion. The language of the provision in question is: “The court may, in its discretion, on motion of either party, or without motion, order the transfer of an action from the ordinary to the equity docket, &c.”</p> <p>3. When the order of transfer was made in this case the court below had before it the pleadings, including the plaintiff’s account of over 600 disputed items and covering many pages, and it also had the 10 or 15 account books crudely kept by plaintiff; it looked into these matters, saw the complication of accounts, the great detail of facts, and that it would be impracticable for a jury to intelligently try the case, and, so seeing, transferred the case on motion of defendant, just as it would have been entirely justified in doing witnout any motion from either side.</p> <p>4. If the court will look into the carefully prepared report of the commissioner, covering 60 pages, and upon which he was engaged 30 days, and then look into the books copied into this transcript, it will appear, not only that the trial court did not abuse its discretion in transferring the case to the equity docket and referring it to the commissioner, .but that it would have abused its discretion had it refused to do so.</p> <p>5. We submit that this court will not reverse upon the ground that the court below abused its discretion in transferring the case.</p> <p>A careful reading of the record will show that the court did right. No jury, however intelligent, 'could have threaded through the tangled mazes of 10 or 15 badly kept books, disputed accounts, and contradictory testimony, and reached any result otherwise than by mere guess.</p> <p>CASES CITED.</p> <p>O’Connor v. Henderson Bridge Co., 95 Ky., 641; City of Covington v. Limerick, 19 Ky. Law Rep., 330; Civil Code, section 10, sub-section 4. '</p>

<p>Land — Judicial Sale — Misdescription of Property — Ambiguous Judgment — Reference to Pleadings.</p> <p>1. Land — Judicial Sale — Misdescription of Property — In an action to enforce a purchase-money lien oh a dwelling house and lot and two adjoining lots, the pleading described all three of the lots, and the judgment directed the sale of the dwelling house and the two vacant lots adjoining, hut in giving the boundary the decree omitted the boundary of the dwelling house lot. The commissioner sold all three of the lots, but in his deed to the purchaser he gave the boundary of the vacant lots and omitted the boundary of the dwelling house lot. Held — That in an action by the former owner to recover the dwelling house that the purchaser at such sale was entitled to hold the entire property.</p> <p>2. Ambiguous Judgment — Reference to Pleadings — Where the entry of a judgment is ambiguous, or so obscure as not to clearly express the exact determination of the court, reference may he had to the pleadings and other proceedings, and if with this light thrown upon the entry its obscurity is dispelled and its intended significance made apparent, the judgment will be upheld and carried into effect as it was intended.</p>

<p>Removable of Causes — Joint Action — Concurring Negligence-Separable Causes — Petition for Removal — Conclusions of Pleader — Jurisdictional Facts — Wrongdoers—Joint and Several Liability.</p> <p>1. Joint Action — Concurring Negligence — Separable causes — Petition for Removal — Conclusion of Pleader — Where a joint action for personal injuries was filed against a foreign corporation and three of its resident employes, alleging that the injuries were caused by the joint and concurring negligence of the Company and its co-defendants, as its agents and employes, in the operation of a railroad train, on which plaintiff was a passenger, a petition by the corporation for removal of the cause to the United States Circuit Court, which alleges that its co-defendants were joined with it, for the sole and fraudulent purpose of preventing a removal of the action from the State court, and that all the statements in the petition as to such co-defendants are untrue, amounts to nothing more than a conclusion of the pleader, and does not state a single fact from which the court might determine that the cause of'action is separable.</p> <p>2. Jurisdictional Pacts — In a petition by a non-resident defendant, sued jointly with resident defendants, for the removal of the action from the State court to the United States Circuit Court, a denial therein of the alleged negligence of its co-defendants, and an allegation of the purpose of the plaintiff in joining its agents and servants as defendants with it, was for the fraudulent and wrongful purpose of defeating the jurisdiction of the United States Circuit Court, are conclusions of the pleader; and do not state a single jurisdiction'al fact.</p> <p>3. Wrongdoers — Liability—Joint and Several — It is a well-established rule that for an injury inflicted by two or more wrongdoers an action may be maintained against one or all oi them. The liability is joint and several, and the injured party can elect whether he will proceed against one or all of them. ,</p>

<p>Case 4. — ACTION BY NANNIE SUTTON’S ADM’R. AGAINST GLENN C. WOOD AND OTHERS FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE BY SELLING HER 'POISON.</p> <p>Appeal from Washington Circuit Court.</p> <p>Charles Patteson, Circuit Judge.</p> <p>Judgment for defendants, and plaintiff appeals.</p> <p>1. The first error which we contend the trial court committed was in striking from the petition, on motion of defendants, that portion thereof embraced in brackets and underscored by us that the court may at a glance see the portion striken out, which context is as follows:</p> <p>“Defendant Mudd, instead of selling and furnishing morphine as called for, with gross carelessness and negligence sold and delivered to intestate’s son a' package containing one-eighth of an ounce, an unusual quantity, of strychnine, wrapped in a paper, without any mark or label on th.e outside of said package designating the name of the poison contained therein, or the name of any antidote for such poison; that at the time said strychnine was so sold and delivered by defendant, Herman Mudd, he was not a regular pharmacist, nor did- he have a certificate of registration from the Kentucky State Board of Pharmacists, authorizing him to sell or dispense drugs, medicines or poisons. Plaintiff says that at said time defendant Mudd did not make any inquiry as to the purpose for which said strychnine was to be used, nor did he satisfy himself that said posion was to be used for a legitimate purpose.”</p> <p>2. By sec, 2690, Ky, Stats,, it is made unlawful for any person other than a registered and licensed pharmacist to vend at retail any drug or poison for medicinal use. Sec. 2622, Ky. Stats, provides that only those are licensed by the State Board of Pharmacists shall vend poisons, etc. This court in the case of South v. Middleton, 23 Ky. Law Rep., 2012, said in referring to the business of druggists, or vendors of drugs, poisons, etc.:</p> <p>“That it is a business so hazardous, having to do so directly and frequently with the health and lives of so great a number of people, the highest degree of care and prudence for the safety of those dealing with such dealers is required.”</p> <p>For these reasons the Legislature of Kentucky has prescribed certain rules, for the government of those who sell drugs and poisons:</p> <p>First — By requiring that none but persons who understand the' nature and effect of these drugs shall sell themi and then those who are skilled in their profession shall not vend such articles until they have manifested their skill on an examination by a board of experts; organized by law for that special purpose, and a license issued by this board. The law goes still further in its effort to protect the people, by laying down strict rules which licensed pharmacists shall comply with before delivering poisons.</p> <p>3. It was contended before the court below, and the court so held in striking from the petition the portion designated, that while Mudd may have been liable to prosecution by indictment for failing to comply with sec. 2630 of the statutes, and fined $10 as provided by this statute, yet the person injured could not recover damages sustained by reason of the violation of the law by Mudd.</p> <p>In response to this argument we beg to call the attention of the court to section 466 of the Ky. Stats., which is directly in conflict with the position contended for by appellees. Said section is as follows: “A person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed.”</p> <p>AUTHORITIES CITED.</p> <p>South v. Middleton, 23 Ky. Law Rep., 2012; Ky. Stats., see. 2630; Ky. Stats., sec. 466; City of Henderson v. Clayton, 22 Ky. Law Rep., 283; Monteith v. Kokomo Wood Co., Ind. Supreme Court, 58 L. R. A., 944; Wharton on Negligence, 443; Thompson on Negligence, 1st Ed., sec. 8, p. 508; Cooley on Torts, 654; Thompson on Negligence, sec. 211; Louisville Gas Company v. Gutenkuntz, 82 Ky., 438; Jones’ Adm’r v. L. & N. R. R. Co., 82 Ky., 615; Shearman & Redfield on Negligence, sec. 25, 5th Ed.; 8th Am. & Eng. Ency. of Daw, p. 569; 1st Sedgwick on Damages, sec. 734.</p> <p>1. The court is asked to reverse because the court below struck out a part of the petition setting out the statute regulating druggists’ duties; the striking of the part as to suffering is not even questioned in argument.</p> <p>In the first place, the matter was struck out, and thereupon ceased to be a part of the record herein, for it was not preserved in the bill of exceptions or otherwise, and this court can not consider it, and the instructions asked, based on it, must for this be taken as properly refused.</p> <p>2. But on the merits the ruling of the court was proper. The suit is for a negligent selling of one poison when another was called for. This broad claim embraces everything that could come into the case, by violating every provision of the statute. The value of the life lost and vindictive damages was all that could be claimed or recovered in any event, and these were considered and passed on under the pleadings and instructions.</p> <p>3. The conclusive fact is they sued for the negligent causing of a death, not by want of license, registery or questionings, but by giving strychnine when morphine was called for. This made the other stuff mere surplusage, properly stricken out. For these petty, violations the statute- fixes the .only penalty a $10 fine. If giving the wrong drug caused it, then the other matters did not; and if they did then the other act did not.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats, as to ground of recovery, sec. 6; Sup. Stat. (Act 1898) p. 63-4.</p> <p>Failure to include stricken matter in bill of exceptions fatal. (Ency. Pldg. & Practice, vol. 21, p. 305; St. Louis, &c. v. Valirins, 56 Ind., 511; 23 Ky. Law Rep., 11; 23 Ky. Rep., 1291; 19 Ky. Law Rep., 155, 1800.)</p>

<p>Case 5. — ACTION BY JAMES T. AVRITT, &c„ AGAINST THE CUMBERLAND TELEPHONE & TELEGRAPH CO., &c., FOR DAMAGES TO PLAINTIFFS LAND IN BUILDING A TELEPHONE LINE ON THE PUBLIC HIGHWAY WHICH HAD BEEN GRANTED BY THE PLAINTIFFS’ ANCESTOR.</p> <p>Appeal from Marion Circuit Court.</p> <p>Chas. Pattbson, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A telephone line on a rural public -highway is not an additional servitude. (Kentucky Constitution, section 199, 163’; Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289; Louisvilie Bagging Mfg. Co. v. Central Passenger Railway Co., 95 Ky., 50; Georgetown & Lexington. Traction Co. v. Mulholland, 25 Ky. Law Rep., 578; Eels v. American Telephone & Telegraph Co., 143 N. Y., 133, 25 L. R. A., 640; Carter v. Northwestern Telephone Exchange Co., 28 L. R. A., 310; Pierce v. Drew, 136 Mass., 75, 49 Am. Rep., 7; Boston v. Richardson, 13 Allen, 146; People v. Eaton, 100 Mich., 208; Julia Bldg. Association v. Bell Telephone Co., 88 Mo., 258, 57 Am. Rep., 398; Magee v. Overshiner, 150 Ind., 127, 40 L. R. A., 370; Herschfield v. Rocky Mountain Bell Telephone Co., 12 Mont., 103; Southern Bell Telephone Co. v. Frances, 109 Ala.; Kirby v. Citizens Telephone Co. (South Dakota), 97 N. W., 3; Irwin v. Great Southern Telephone Co., 37 Louisana, 63; East Tennessee Telephone Co. v. City of Russellville, 21 Ky. Law Rep., 306;' Ward v. Triple-State Natural Gas & Oil Co., 25 Ky. Law Rep., 116; Kincaid v. Indianapolis Natural Gas Co., 124 Ind., 577.)</p> <p>2. An abutting landowner can not resort -to a mandatory injunction to require the removal of a telephone line from a public highway; and especially not after the line has been built for a period of eight years, and has been continuously used without objection by such landowner. (Holloway v. Louisville, etc., Ry. Co., 92 Ky., 245.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The Lebanon & Bradfordsville Turnpike Company had only an easement over the land of appellees and the county of Marion as its successor has no more: (Cynthiana T. P. Co. v. Hutcheson, 22 Ky Law Rep., 1236; Kelly & Co. v. Donahoe & Co., 2 Met., 482-485; Lexington, Harrodsburg & Perryville Turnpike Road Co. v. McMurtry, 3 Ben Mon., 516; West Covington v. Freking 8 Bush, 126; Angelí on Highways, 301.)</p> <p>2. Erection of telephone poles and wires is an additional servitude: (Present Constitution of Kentucky, secs. 163-164; East, Tenn. Telephone Co. v. City of Russellville, 21 Ky. Rep., 305; Board of Trade Tel. Co. v. Painter, 47 Am. Rep., 453, 107 111., 507; Broome v. New York & New Jersey Telephone Co., 42 N. J. Eg,, 141; Western Union Telegraph Co. v. Williams, 86, Va., 696; Stowers v. Postal .Telepraph Cable Co., 24 Am. St., Rep., 290; Pacific Postal Telegraph Cable Co. v. Irvine, &c., 49 Fed. Rep., 113; Ward v. Triple-State Natural Gas & Oil Co., 25 Ky. Law Rep., 116; Kincaid v. Indianapolis Natural Gas Co., 124 Ind., 577; Georgetown & Lexington Traction Co. v. Mulholland, 25 Ky. Law Rep., 578; Louisville Bagging Manufacturing Co. v. Central Passenger Ry. Co., 95 Ky., 50; Joyce on Electric Law, secs. 296-300-301-302-303-304^305-321; Penn. R. Co. v. Montgomery Pass. Ry. Co., 167 Penn. St., 62; Elliott on Roads and Streets, 299; Postal Telepraph Cable Co v. Eaton, 170 111., 513, Lawyers’ Report Ann., 722; American Telegraph & Telephone Co. v. Jones, 78 111. App., 372; Chesapeake & Potomac Telegraph Co. v. McKenzie, 74 Md., 36, 3 Am. Elec. Cases, 196; Williams v. Erie Telegraph & Telephone Co., 37 Minn., 347; Halsey v. Rapid Transit St. Ry. Co., 47 N. Y. Eg., 380, 3 Am. Elec. Cases, 296; People v. Metropolitan Telephone & Telegraph Co., 31 Hun, N. Y., 604,. 11 Abb. N. C., 304, 64 How., 66; Eels v. American Telephone & Telegraph Co., 143 N. Y., 133, L. R. A., Book 25, p. 640.)</p> <p>3. It is proper to resort to injunction to prevent continuing and repeated trespasses; (McCloskey v. Doherty, &c., 17 Ky. Law Rep., 178; Musselman v. Marguis, 1 Bush, 463; Peak v. Hayden, 3 Bush, 125; Murphy v. Lincoln, 63 Vt., 278; High on Corporation, 702; Holloway, &c., v. Louisville, &c., Railway Co., 92 Ky Rep., p. 247.)</p>

<p>Case 6. — ACTION BY THE SPRINGFIELD FIRE & MARINE INS. CO., &c. AGAINST THE GRAVES COUNTY WATER & LIGHT CO. FOR DAMAGES FOR FAILURE TO FURNISH WATER UNDER ITS CONTRACT TO EXTINGUISH FIRE.</p> <p>Appeal! from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff’s appeal.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Rights of citizens to sue on contract made by the water company with the city. (.Graves County Water & Light Co. v. Ligón, Allen & Co., 23 Ky. Law Rep., 2149; Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky., 340; Patch v. City of Covington, 17 B. Monroe, 722; Duncan v. Owensboro Waterworks, 12 Ky. Law Rep., 335; Duncan’s Ex’rs v. Owensboro Waterworks, 12 Ky. Law Rep., 824; Owensboro Waterworks v. Duncan’s Administrator, 17 Ky. Law Rep., 755; Ostrander on Fire Insurance, 2 Ed., pp. 331-348; Lampert v. Gas Light Co., 4 Mo. App., 376; Robt. Hayes v. Michigan Central R. R. Co., Ill U. S., 228 (410); R R. v. Terhune,-50 111., 151; Schmidt v. Milwaukee & S. P. R. R. Co., 23 Wis., 188; Seimers v. Eisen 54 Col., 418; Galena'& C. U. R. R Co. v. Loomis, 13 111., 548; O. & M. R. R. Co. v. McClellan, 25 111., 120; St. L., Y. & T. H. R. R. Co., v. Dunn, 78 III., 197; Massoth v. P, & B. Co,, 64 N. Y,, 524; B. & O, R. R. Co. y. State, 29 Md„ 252; Pollock v. Eastern R. R. Co., 124 Mass., 158; Cooley on Torts, 657; Taylor v. Lake Shore E. R. Co., 40 American Reports, 457; New Orleans, N. E. R. v. Meridian Waterworks Co., 72 Fed. Rep., 227; Davis, Moody & Co. v. Urley, 3 Ky. Law Rep., 317; Smith v. Lewis, 3 B. Mon., 229; Lucas v. Chamberlin, 8 B. Monroe, 276; Allen v. Thomas, 3 Met., 198; Story on Bailments, sec. 103; 1 Chitty on Pleadings, p. 4; Joyce on Electric Law, sec. 234; City of Freeport v. Isabella, 83 111., 440; 25 American Reports, 470; Thompson’s Commentaries on the Law of Creditors, vol. 5, sec. 6357; Robertson v. Chamberlin, 90 American Decisions, 713.)</p> <p>2. The right of insurer to subrogation. (Joyce on Insurance, vol. 4, sec. 3572; Chicago & St. L. & N. O. R. R. Co. v. Pullman, &c., 139 U. S., 79; Newcomb v. Cincinnati Ins. Co., 10 American Reports, 746; Richards on Insurance, sec. 25, pp. 31, 32, 33; Connecticut Fire Ins. Co. v. Erie Railway Co., 29 American Reports, 171; Mobile Ins. Co. v. Columbia R. R. Co., 44 American State Reports, 725; Wager v. Insurance Co., 150 U. S., 97; Providence & Washington Ins. Co. v. Sydney, et al, 27 Federal Reporter, 119.)</p> <p>3. Party bound to comply with terms of contract regardless of accident, &c. (Harrimen v. Emrick, 76 U. S. 629, 9 Wallace, 161-175; Bohannans v. Lewis, 3 T. B. Monroe, 376; Singleton v. Carroll and others, 6 J. J. Mar. 527; Helburn & Co. v. Mofford, 7 Bush, 170.)</p> <p>4. Where no time is fixed for performance and no demand made, can not be pleaded as a defense. (Worley v. Mourning, 1 Bibb, 254; Adkins v. Ferrell’s Ex., 19 Ky. Law Rep., 1082.)</p> <p>5. Where the contract is in writing, court must construe. (Excelsior Coal Mining Co. v. Va. Iron & Coal Co., 23 Ky. Law Rep., 1834.)</p> <p>POINTS AND AUTHORITIES CITED,</p> <p>1. Howsoever much there may have been a deficiency of water, unless an able, competent and well equipped- fire company arrived upon the scene in time to have extinguished the fire the appellant can not recover. ' (Owensboro Water Co. v. Duncan, 17 Ky. Law Rep., 755.)</p> <p>2. In construing contracts, all parts thereof must be looked at, and the intention of the parties arrived at from the entire contract, the court putting itself in the situation of the parties at the time the contract was executed. (Bishop on Contracts, secs. 380, 382 and 404; Beach on Contracts, secs. 702, 708, 711, 712 and 719; McGrath v. Grinstead, 9 Ky. Law Rep., 373.)</p> <p>1. The plaintiff in this case can not be subrogated to the rights of Ligón, Allen & Co., and the demurrer to the petition should have been sustained. (Federal Cases, case No. -96; 59 Federal Reporter, 984; 93 Michigan, 139; 26 La. Ann., 447; 66 Federal Reporter, 446; 42 Missouri Appeals, 118.)</p> <p>2. Under the contract in this case the absence of negligence on the part of the waterworks company is a defense, and instructions B and C, submitting that question, were proper. (5 Littell, 66; 4 J. J. Mar., 217; 5 B. Monroe, 497; Century Digest, vol. 11, title “Contracts,” sec. 730, sub-secs, b, d, h, 1, r and ss; sec. 735, sub-secs, a, b, c, d, f, k and 1; sec. 736; sec. 737, sub-sec. a; Black on Interpretation of Laws, pp. 132, 166 and 169; Bishop on Contracts, secs. 380, 382 and 404; Beach on Contracts, secs. 702, 708, 711, 712 and 719; 9 Ky. Law Rep., 373; 17 Ky. Law Rep., 755.)</p>

<p>Accounts — Pleading—Burden of Proof — Entry by Bookkeeper— Evidence of Character — Account Stated — Proof—Variance— Hearsay Evidence — Implied Promise.</p> <p>1. Accounts — Pleading—Burden of Proof — In an action on an account, part of which is denied and payment of the balance pleaded, the burden on the whole case is on the defendant, who is entitled to the closing' argument.</p> <p>2. Entry by Bookkeeper — Evidence of Character — An entry on the books of the employer by his bookkeeper of a transaction between them, in the way the bookkeeper understood, it, and which differs from the understanding of the employer, is an issue of a civil and not of a criminal nature, and does not put the character of the bookkeeper in issue so as to permit him, in a controversy over the transaction, to introduce evidence, over the objection of the employer, of his general reputation for honesty.</p> <p>3. Account Stated — Proof—Variance—"Where an account is stated between a debtor and creditor and a balance struck and agreed upon, this constitutes the cause of action, and must be proved, as alleged, and if not so proved, there will be a variance unless the pleadings are amended.</p> <p>4. Hearsay Evidence — Competency—An entry made by a bookkeeper upon his employer’s books, of statements made to him by another concerning the transaction, is not competent evidence for the bookkeeper. Such statements were mere hearsay, and the fact that the bookkeeper had entered them upon his employer’s books added nothing to their competency.</p> <p>5. Implied Promise — Where there is a subsisting claim for services rendered, the amount of which is definitely ascertained by stating an account, the law implies a promise to pay, which is not qualified or rendered conditional by a promise on the part of the debtor to pay “when able;” but such promise binds him to pay at once, and proof thereof is not a variance from a petition alleging an unconditional promise.</p>

<p>Case 8 — PROCEEDING BY THE COMMONWEALTH OP KENTUCKY TO THE USE OP A. J. BIZOT AS REVENUE AGENT AGAINST W. R. BELKNAP, &c., TO COLLECT TAXES ON OMITTED PROPERTY</p> <p>Appeal from Jefferson Circuit Court (Common Pleas, 2d Division).</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Section 4241 provides for assessing specific property known to the revenue agent and not for an inquisition:</p> <p>a. Analysis of section.</p> <p>b. This has been the uniform practical construction.</p> <p>c. The proposed inquisitorial procedure necessitates resort to a palpable subterfuge.</p> <p>d. The summons to show cause is no mandate for an inquisition.</p> <p>e. Procedure according to the Civil Code is not required, and the procedure is purely ministerial and not judicial. (Pennington v. Woodfolk, 79 Ky., 13; Hoke v. Commonwealth, 79 Ky., 567; Baldwin v. Shine, 84 Ky., 502; Baldwin v. Hewitt, 8S Ky., 673.)</p> <p>f. The county court has only such powers of assessor as are expressly conferred.</p> <p>g. What is proposed necessarily involves an effort to compel incrimination.</p> <p>h. Decisions of this court examined. (Commonwealth v. Singer Manufacturing Co., 14 Ky. Law Rep., 732; Commonwealth v. Riley’s Curators, 24 Ky. Law Rep., 2005; Commonwealth v. Collins, 24 Ky. Law Rep., 2042; Commonwealth v. Zweigart’s Adm’r, 24 Ky. Law Rep., 2147; Sebree v. Commonwealth, 25 Ky. Law Rep., 121; Commonwealth v. Adams Express Co., 26 Ky. Law Rep., 190.)</p> <p>i. Indiana system discussed. Co-operative Association, etc., v. State, 156 Ind., 463.</p> <p>j. Express legislative authority would be necessary for the purposed inquisitorial proceeding. (Turner v. Pewee Valley, 100 Ky., 288.)</p> <p>k. Grave questions of policy involved, which the Legislature would have to meet and provide for if it undertook to authorize the inquisitorial procedure.</p> <p>l. Proposed inquisitorial procedure is a radical departure from the uniform practice which the legislature has not attempted to change. (Butler, Sheriff, v. Watkins’ Executors, 16 Ky. Law Rep., 302.)</p> <p>2. Section 4241 is itself penal; therefore, defendants can not be required to furnish any evidence either by pleading or testifying. (Johnson v. Commonwealth, 7 Dana, 338; Boyd v. United States, 116 U. S., 616-637; Commonwealth v. Neat, 89 Ky. 241; L. & N. v. Commonwealth, 112 Ky., 635-644.)</p> <p>3. Independent of the meaning or character of ike statute, the defendant saould not be compelled to file a pleading which, if it discloses any omitted property, will supply evidence tending to sustain a criminal prosecution. (Wyles v. Berry, 25 Ky. Law Rep., 606; Counselman v. Hitchcock, 142 U. S., 547; Atterberry v. Knox, 8 Dana, 282; Brown v. Walker, 161 U. S., 591.)</p> <p>POINTS AND AUTHORITIES.</p> <p>Section 4241, Kentucky Statutes.</p> <p>1. The Commonwealth’s construction of the statute. (5th Ed. Cooley Constitutional Limitations, p. 220.)</p> <p>a. Renders the act unconstitutional. (Section 171 Constitution of Kentucky; 14th Amendment to U. S. Constitution; 1 Cooley on Taxation, 3d Ed., p. 254; Magoun v. 111. Trust and S. B. Co., 170, U. S., 293;Louisville Tobacco Wh’se. Co. v. Commonwealth, 20 Ky. Law Rep., 1747-50; Hays v. Commonwealth, 21 Ky. Law Rep., 1418; Crocket v. Village of Barre, 29 Atl. R., 147; Hoke v. Commonwealth, 79 Ky., 574; Cooley on Taxation, 2 Ed., p. 1359; Cassidy v. Young, 92 Ky., 229; 20 Am. and Eng. Ency. of Law, p. 793; Commonwealth v. Newall, Judge, 24 Ky. Law Rep., 1197.</p> <p>b. Delegates to agent a power greater than legislature possesses. (Pembina Mining Co. v. Penna., 125 U. S., 188.)</p> <p>2. The true interpretation of the act renders it constitutional.</p> <p>3. The act gives the auditor’s agent and county court only ministerial powers and thereby insures the true interpretation of the law. (Baldwin v. Hewitt, 88 Ky., 673; Cassidy v. Young, 92' Ky., 227; Baldwin v. Shine, 84 Ky., 502; Lou. Water Co. v. Clark, 94 Ky., 886; Commonwealth v. Newell, 24 Ky. Law Rep., 1197; Commonwealth v. Morehead, 24 Ky. Law Rep., 1927; Butler, Sheriff, v. Watkins’ Ex’rs, 16 Ky. Law Rep., 302.)</p> <p>We are not to be understood as contending that an action by the Commonwealth simply to assess a citizen and collect its taxes is penal, or that in such an action it may not mak® him a witness in its behalf and against himself, nor do we contend that it is prohibited by the Constitution from enforcing its tax laws by penalties; but we do contend that when it selects the penal method of enforcing its tax laws it is prohibited by the Constitution from the aid of a discovery from the accused, person in its courts. Merely to sue for an assessment as a basis for the collection of its taxes is to appear in its courts as an ordinary litigant, but to enforce this by the imposition of a penalty, and include such penalty in its suit, is to appear as a sovereign, and the suit is inquisitorial and therefore adherent to principles of free government.</p> <p>The twenty per cent, fee to the Revenue Agent under the present law, like treble taxes under the law in the Johnson case, 7 Dana, is intended as a punishment to the delinquent for his failure to list all his property, and to compel him, by fear of the penalty, to omit nothing taxable. Under the present law,, upon every dollar of omission he pays a penalty of twenty per cent.; in the Jonhson case he paid three hundred per cent. The difference is one of degree. Both laws are equally penal; the difference is only in the extent of the punishment.</p> <p>POINTS AND AUTHORITIES.</p> <p>This is a civil proceeding, based upon a remedial statute; therefore the plea of “not guilty” does not lie. (Ky. Stats., secs. 1138-4120-4241-4260; Marion County v. Wilson, 105 Ky. Reps., 302; Com-of Ky., by, &c. v. Adams Express Co., 26 Ky. Law Rep., 190; Com. v. Nute, 24 Ky. Law Rep., 2138; Com. of Ky., by, &c., v. Singer Mfg. Co., 14 Ky. Law Rep., 732; Sebree v Com., 25 Ky. Law Rep., 121; Fleming ,v. Sinclair, Auditor’s Agent, 22 Ky. Law Rep., 499.)</p> <p>Let us present a brief resume of the case.</p> <p>(1.) The act provides that the defendant must show cause against tax proposed.</p> <p>(2.) The act provides that the proceeding is to he as in other civil cases.</p> <p>(3.) Criminal offenses and penal prosecutions are provided by other sections than 4241. _____</p> <p>(4.) The old statute provided that the property owner should pay ten per cent, interest per annum on taxes due upon omitted property, and the State pay the Revenue Agent twenty per cent, of the amount collected. The present law requires no interest of the tax payer, but provides that he must compensate the revenue agent with a commission of twenty per cent.</p> <p>(5.) The proceeding is intended to search the conscience of the taxpayer.</p> <p>(6.) In the event no answer is filed by the defendants, the allegations of the statement are taken as confessed as in civil cases, and not considered as denied as where an accused fails to plead.</p> <p>(7.) The proceeding does not abate with the death of the defendant, but continues against his administrator. It may be filed originally against an estate and the penalty collected.</p> <p>(8.) Where the defendant is successful, the Commonwealth may appeal and hold him under reversal.</p> <p>(9.) Laws imposing punishment for offenses against the public are such as the executive of the State has power to pardon. No such feature about section 4241.</p> <p>(10.) The limitation on actions under the statute is fixed as provided in civil, not criminal, cases.</p> <p>(11.) The proceedings under sections 4241 and 4260 contemplate only the assessment of property omitted by the assessor. Nothing in statute or statement seeks to surcharge or falsify a sworn schedule.</p> <p>(12.) The county court does nothing more than exercise the usual and ordinary powers of an assessor, which involves the right to examine the taxpayer. It even possesses, under section 4241, the extraordinary authority of the State Board of Valuation and Assessment.</p> <p>(13.) If possible preference be a defense, then no assessor can. lawfully act. It is equally' destructive of all correct assessment to deny the Commonwealth the right to question a schedule.</p> <p>(14.) The law, the reason and the justice of the case dictate that section 4241 should be liberally construed as an act in aid of the public revenues, and not strictly interpreted as a mere punishment provision.</p> <p>(15.) A writ of prohibition ought not to be invoked in this court when the circuit court has plenary power to hear and determine the question submitted.</p> <p>(1G.) The writ, of prohibition is not proper to test the correctness of a ruling by a subordinate court; it can not be employed as a substitute for an appeal; it is never used to legislate into a statute the right of appeal where the law-making power has granted none.</p> <p>(17.) Adequate provisions for an appeal exist.</p> <p>(18.) The added twenty per cent, may be considered interest, costs, commission or liquidated damages. In no aspect is it a fine, or its purpose punishment.</p>

<p>Occupation Tax — City Ordinance — Validity—Discrimination—A city ordinance requiring attorneys at law, physicians, surgeons, oculists and opticians practicing their profession in the city to pay an occupation tax of $10 per annum is not unreasonable, and is not invalid because no license is required of such as are temporarily in the city on specific professional business.</p>

<p>Roads and Passways — Falling of Bridge — Injury to Traveler— Liability of Builder — Counties—Sovereignty.</p> <p>1. Roads and Passways — Falling of Bridge — -Injury to Traveler-Liability of Builder — Where $75 was appropriated by the fiscal court for the building of a bridge on a public road anil a special commissioner appointed to let out the contract and superintend, its construction, such commissioner is not liable in an action for damages to one who was injured by the falling of such bridge by reason of its -defective construction, the provision of section 4320, Kentucky Statutes, referring to his bond and his liability, must be held to protect the county and not to include causes of action by persons damaged.</p> <p>2. Counties — Sovereignty—The rule in Kentucky is that as a county is but an integral part of the State, and the fiscal court is a part of the machinery of the State government, no action lies against the county or the fiscal court, or the judge or justices composing it, for injuries done to a traveler by the falling of a bridge constituting part of a highway and under the control of the court, although guilty of gross negligence in failing to repair it.</p>

<p>School Books — Publishers—Discrimination in Sale — Execution of Bond — Acceptance—Authority of Assistant Secretary of State • — Presumptions.</p> <p>School Books — Publishers—Discrimination in Sale — Execution of Bond — Authority to Accept — Action on Bond — Presumptions— Section 448, Kentucky Statutes, provides that “where an act is required to be done by three or more, when done by a majority of them it will he deemed the act of all.” Section 4541 provides “that the Secretary of State, with the assent of the Governor, may appoint an Assistant Secretary, who, in case of absence or indisposition of the principal, may do the business of the office in his name.” By sec. 4377 “the Superintendent of Public Instruction, together with the Secretary of State and the Attorney General, shall constitute the State Board of Education,” of which board, by section 4379, the superintendent is made chairman. Section 4424 requires “the publishers of school books to execute before the ex-officio members of the State Board of Education the bond therein required.” In an action by the Commonwealth on the bond of appellees, Ginn & Co., school book publishers, to recover the penalty for its breach, which was filed with and approved and accepted by the superintendent of public instruction and Assistant Secretary of State, the presumption that at the time of such approval the Secretary of State was absent or indisposed is not overcome by the filing of an answer by. the appellees, Ginn & Co., that “the bond was approved on October 20, 1896, not later than 9:30 o’clock, a. m., in the city of Frankfort, and that the Secretary of State left said city on that day at 9:50 o’clock, a. m., for a temporary purpose only, viz., to make speeches in a political campaign, and would certainly return in a few days, and there was no occasion in passing immediately on the acceptance of the bond; that the schools throughout the State for that year had begun, and the books for that year had been adopted and were being used at that time,” the pleading must be taken against the pleader, and it must be presumed, from the facts stated, that the Secretary of State was not at his office when the bond was accepted, but was preparing to leave Frankfort, and had absented himself from his office with the purpose of not returning for a few days, and a demurrer to this plea should have been sustained.,</p>

<p>Railroads — Insufficient Traffic Facilities — Power of Courts to Enforce — Leasing Roads to Another Company — Effect—Daily; Trains — Publife Duties — Escaping Public Duty.</p> <p>1. Railroads — Insufficient Traffic Facilities — Power of Courts to Enforce — It is shown by this record that the Louisville '& Nashville Railroad Company owns and operates a line of railroad from Louisville to Lexington, a part of which runs through Shelby county, from Anchorage to Christiansburg, a distance of 27.60 miles, one of the most prosperous, fertile and thickly settled portions of the State; only 19.10 miles of this distance is operated for local public traffic, the remaining 8% miles he* ing entirely without such accommodation; that the public along said line has applied to said company for such local accommodation for its traffic, both passenger and freight, which has been refused, and that the railroad commission of this State, upon proper application to it, has directed and ordered that additional facilities be afforded to the public, which have also been refused and ignored by said company. In an action by the Commonwealth of Kentucky v. Louisville & Nashville Railroad Company to compel it to grant such additional facilities, Held —that the citizens of Shelbyville and Christiansburg, and those of the communities contiguous thereto, are entitled to better facilities for the transportation of passengers and freight between the places named than have been afforded them, and that the powers of the court were properly invoked in their behalf.</p> <p>{2. Leasing Road to Another Company — Effect—The fact that the appellee, L. & N. R. R. Co., has made a contract with the Chesapeake & Ohio Railroad Company, leasing its road to said company under certain restrictions and privileges as to running of trains over that part of the line in controversy, does not relieve it from affording the facilities necessary for the needs of the public.</p> <p>3. Daily Trains — The fact that the Chesapeake & Ohio Railroad Company, as lessee of the Louisville & Nashville Railroad, runs a train daily over said line of railroad, does not meet the requirements of the law and of the public, when such trains do not stop at the way stations or afford local accommodations. It is to accommodate the entire public that both through and local trains are operated by railroad companies.</p> <p>4. Public Duties — Jurisdiction of Courts — Railroads are creatures of the law, invested with certain powers, to promote the public interest, for which reason they may be required to conduct their affairs in furtherance of the public objects of their creation, and it is because of this public character that courts assume jurisdiction to enforce the public duties required of them.</p> <p>5. Escaping Public Duty — A railroad company can not be permitted to escape the performance of any duty or .obligation imposed by its charter or by the general laws of the State by transferring its road, or any part thereof, to a lessee, or upon the ground that its own operation thereof will occasion loss to it.</p>

<p>Statute of Frauds — Dealing in Real Estate- — -Auction Sale of Lots— Purchase by Partners — Verbal Agreement — Written Memorandum by Auctioneer — Agency—Enforcement of Contract.</p> <p>1. Auction Sale of Lots — Purchase by Partners — Verbal Agreement — Written Memorandum by Auctioneer — Enforcement of Contract — Where two persons verbally agreed to form a co-partnership and to attend an auction sale of town lots and each was to buy in his own name certain lots, and both were thereafter to pay for and own all of them as co-partners, and in pursuance thereof each of them did attend said sale and bid in certain lots, of each of which bids a memorandum was kept and signed by the auctioneer, such agreement constituted a co-partnership, and the owner of the lots having tendered them a joint deed for said lots and demanded a compliance on their part with the terms of the sale, which they refused, was entitled in a joint action against them to enforce a specific execm tion of the contract.</p> <p>2. Statute of Frauds — -Dealing in Real Estate — An agreement to become' partners in dealing in real estate is not a contract to buy nor a contract to sell real estate as between the parties to it, and is not within the statute of frauds, and, therefore, need not be in writing if to be begun, and may not end within a year, although as a fact it may not be terminated for more than a year.</p> <p>3. Auctioneers — Agency—The auctioneer’s memorandum, signed by him, describing the lots sold and stating the terms of the sale, was sufficient to bind both seller and buyer, and was a compliance with the statute.</p>

<p>Case 14. — ACTION BY L. OBERDORFER AGAINST THE LOUISVILLE SCHOOL BOARD, FOR SALARY AS JANITOR OF SAID BOARD.</p> <p>Appeal from Jefferson Circuit Court, (Common Pleas, 1st Division).</p> <p>Em:met Field, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There is a distinction between an office and employment. (Amer. & Eng. Ency. of Law, vol. 23, p. 324.)</p> <p>2. A master commissioner is not a public officer. (Goodloe v. Pox, 96 Ky., 627.)</p> <p>3. A fireman is not a public officer. (People v. Pinckney, 32 N. Y., 377; State v. Jennings, 57 Ohio State, 415.)</p> <p>4. A janitor of a school building is not a public officer, but an employe merely.</p> <p>5. The Louisville School Board is authorized to have employes. (Gen. Stats., secs. 2949-2967-2956.)</p> <p>6. Unearned salaries may be assigned and collection enforced by assignee. (Holt v. Thurman, 23 Ky. Law Rep., 93.)</p> <p>7. Earned salaries of public offioers can be assigned and enforced. (Holt v. Thurman, 23 Ky. Law Rep., 93, Meechem v. Pub. Off., sec. 874.)</p> <p>8.' The Louisville School Board is empowered to contrapt and be contracted with, sue and be sued, and to fix the salaries and terms of officers, teachers and employes. (Ky. Stats.)</p> <p>9. The petition states a cause of action, and demurrer was improperly sustained.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The school Board is an agent of the State government, and can only be sued for school purposes. Payment of appellant’s demand against an,employe of the board is not a school purpose. (Con., 183; Ky. Stats., chap. 113, sec. 4349 and sec. 2949: Board v.Auditor, 80 Ky., 341; City v. Leatherman, 99 Ky., 213; Roberts v. Louisville School Board, 16 Ky. Law Rep., 183.)</p> <p>2. The School Board, as agent of the State, unlike Municipalities, is not subject to attachment, garnishment or process on an assigned claim, on grounds of public policy. (Speed v. Brown, 10 B. M., Ill; Holt v. Thurman, 23 R., 92; Devine v. Harvey, 7 Mon., 440; Tracy v. Bornbuckle, 8 B., 336; Allen v. Russell, 78 Ky., 118; Heilbronner v. Posey, 20 Ky. Law Rep., 156; Board v. Supt. Pub. In., 102 Ky., 394; City v. Leatherman, 99 Ky., 213; Collins v. Henderson, 11 B., 88; Auditor v. Holland, 14 B., 151; Tiller v. Burke, 19 Ky. Law Rep., 1151.)</p> <p>3. Funds in hands of School Board is an inviolable trust, for school purposes, and can not be diverted by the Legislature, process of court, or individual assignment. (Con.,, sec. 184; City v. Leather-man, 99 Ky., 213; Board of Trust, v. Board of Ed., 24 Ky. Law Rep., 102; City v. Louisville School Board, 17 Ky. Law Rep., 697; City of Cynthiana v. Board, 21 Ky. Law Rep., 731; Board of Trust, v. Board of Ed., 25 Ky. Law Rep.,341; Auditor v. Frankfort, 81 Ky., 681; Underwood v. Wood, 93 Ky., 179; Higgins v. Prater, 91 Ky., 6; Halbert v. Sparks, 9 B., 259; Williamstown v. Webb, 89 Ky., 265.)</p>

<p>Case 15. — ACTION FOR PERSONAL INJURIES BY ALME SIMONS AGAINST JAMES P. GREGORY AND OTHERS.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas, 2d Division.)</p> <p>Thomas R. Gordon, Judge. •</p> <p>Prom judgment for defendants. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. That the exemption of Jefferson county in this case for liability for the tort set out in the pleadings because it is an arm of the State, is not founded in real justice, is not in harmony with the current decisions of many of the most learned courts of this country. That Jefferson county is not as important an arm of the State as the Central Lunatic Asylum, which this court has decided can be sued for tort, and that in the greatly enlarged extension of the powers, duties and functions of counties there should be an abridgement of this doctrine of exemption from liability for torts and that as now maintained by the former decisions of this court it is an unjust and grievous wrong against a private citizen.</p> <p>2. That even if this court should maintain in its present form, its conclusion that counties, as an arm of the State should be exempt from liability for torts, yet even if this be so, the court should limit this doctrine so as not to exempt counties when they have no legal authority to do or perform certain acts, and yet have done these, and accepted work done or appliances constructed under them, and declare that when counties without authority, commit themselves to such undertaking, and do work or receive and use such appliances without warrant of law, that under these conditions of the citzen be wronged he shall not be debarred from remedy against the wrongdoer, even though it be a county.</p> <p>3. That where, as in this case,1 county officers do a thing admitted by them to be without legislative warrant, they can not plead an exemption from liability for such injuries as result to those who without fault on their part are injured by the operation of such agencies as may thus be created or -organized without legislative right — and that where such officers knowingly and deliberately undertake the erection of appliances for public comfort, which they confess and declare are not authorized by any law, that they are liable as individuals for injury to innocent parties who may suffer damages in the operation of such appliances, and that the law will not exempt from responsibility any one who in any capacity whatever does or attempts to do that which he is not authorized or required to do in the performance of any duty.</p> <p>4. That when a jailer undertakes for pay, to keep in proper repair and to operate in a reasonably safe vjay machinery in a courthouse, which machinery is placed there, not in accordance but in violation of law, that to those? injured by his negligence and carelessness, he is personally liable.</p> <p>5. That where one who undertakes to install and construct for public use at public expense an elevator in a courthouse, and does deliberately and knowingly install and construct a machine which is dangerous and defective, and the dangers and defects of which are not or could not be known to those ordinarily using it, he is liable to these parties for such injuries as may be suffered by them in the proper use thereof.</p> <p>AUTHORITIES CITED.</p> <p>Union Central Life Insurance Co. v. Spinks, 83 S. W., 615; Walton, &c. v. Riley &c., 85 Ky., 413; Hexter v. U. S. Life Insurance Co., ,91 Ky., 356; Mutual Life Ins. Co. v. Jarboe, &c., 102 Ky., 80; Fidelity Trust Co. v. Morganfield, 96 Ky., 563; Belknap v. City of Louisville, 99, Ky., 477; Montgomery Co., &c. v. Trimble, 104 Ky., 629; McGoodwin v. City of Franklin, 18 Ky. Law Rep., 752; City of Owensboro v. Barker, 18 Ky. Law Rep., 324; Commonwealth v. Farmers Bank, 97 Ky., 619; Deposit Bank v. Daviess County, 102 Ky., 175; Lawrence Co. v. Chattaroi R. R. Co., 81 Ky., 225; Kentucky Statutes, sec. 1839; Hampshire v. Franklin, 16 Mass., 87; Hauns v. Ky. Cent. Lunatic Asylum, 103 Ky., 562; Hannon v. St. Louis Co., 62 Mo., 313; Wheatly v. Mercer, 9 Bush., 704; Kmeard v. Hardin, 36 Am. Rep., 239, 53 Iowa, 430; May v. County of Mercer, 30 Fed. Rep., 248; Colburn v. San Mato Co., 75 Fed. Rep., 521; Bigelow v. Inhabitants of Randolph, 14 Gray (Mass.), 541; Thomas and Wife v. Winchester, 6 N. Y., 396; Devlin’s Adm’r v. Smith, 89 N. Y., 470; Huset v. J. I. Case Machine Co., 120 Fed. Rep., 865; C., St. P, M.& O. R R. Co. v. Elliott, 55 Fed. Rep., 949; Norton v. Sewall, 106 Mass., 143; Elkins v. McKean, 79 Penn., 493; Bishop v. Webber, 139 Mass., 411; Peters v. Johnson, 41 S. E., 190 (W. Va.), Coughtry v. Glove Woolen Co., 56 N. Y., 124; Bright v. Barnett, 60 N. W., 418, 26 L. R. A., 524; Roddy v. Railway Co., 104 Mo., 234, 15 S. W., 1121; Wellington v. Oil Co., 104 Mass., 64, 67; Lewis v. Terry, 43 Pac., 398 (Cal.); Stowell v. Standard Oil Co., (Mich.), 102 N. W., 227.</p> <p>POINTS'AND AUTHORITIES.</p> <p>1. In the absence of a statute providing for liability, no action can be maintained against a county court, as such or against a county for an injury arising from mere neglect or even from positive act. (Yol. 1, Shearman & Redfield on Negligence [5 Ed.], sec. 256; Wheatley v. Mercer County, &c., 9 Bush, 704; Moherly v. Carter County, 5 Ky. Law Rep., 694; Downing v. Mason County; 87 Ky., 208; Hite v. Whitley County, 91 Ky., 168; Sheppard v. Pulaski County, 13 Ky. Law Rep., 672; Sinkhorn v. Lexington, Harrodsburg, &c., T. R. R. Co., &c., 23 Ky. Law Rep., 1479.)</p> <p>2. Jefferson county is authorized by law to install elevators in courthouse. (Sec. 1833, Ky Stats.; sec. 1834, Ky Stats.; sec. 1840, Ky. Stats.; sec. 927, Ky. Stats.)</p> <p>3. If Jefferson county was not authorized nor required by law to install elevators in the courthouse, its agents were acting “ultra vires” and the county can not be held liable for tort in the prosecution of a work not authorized or required by law. (Downing v. Mason County, 87 Ky., 208; City of Columbus v. Sims, 94 Ga., 483.)</p> <p>4. The appellant is not a party to the contract between Jefferson county and the Fidelity & Casualty Company of New York, and she can not bring an action against the Fidelity & Casualty Company, because there is no privity between them. (Hawkins v. McCalla, et al., 22 S. E. Rep. [Ga.], 141, 142; Buffalo Cement Co. v. McNaughton, 90 Hun., 78; Embler v. Hartford Steam Boiler Ins. Co., et al., 158 N. Y.,-481, 44 L. R. A., 512; Mobile Ins. Co. v. Brame, 95 U. S'., 580, 24 L. Ed., 585; Broadway, Adm’x v. Conn. M. L. Ins. Co., 29 Fed. Rep., 766; Employers Liability Assurance Corp. v. Merrill, 155 Mass., 404; Smith v. The Aetna Ins. Co., 5 Lansing, 549; National Bank v. Grand Lodge, 98 U. S., 123; Wheat v. Rice, 97 N. Y., 296; Lake Ontario R. R. Co. v. Curtis, 80 N. Y., 219; Wright v. Terry, 23 Florida, 160; Burton v. Larkin, 36 Kansas, 249; Anderson v. Fitzgerald, 21 Fed. Rep., 294; Electric Appliance Co. v. U. S. Fidelity & Guaranty Co., 53 L. R. A., 609; Wolf v. Downey, 164 N. Y., 30; Bain v. Atkins, 57 L. R. A., 791.)</p> <p>5. The policy or contract of insurance upon which the action is brought is, according to the allegations of the petition, one of indemnity solely, and an indemnitor can not be charged unless the party to be indemnified becomes liable, therefore, it necessarily follows that if Jefferson county be not liable, the Fidelity & Casualty Company can not be held liable.</p> <p>6. The Fidelity & Casualty Company’s liability if any, does not attach until it shall have been judicially determined that the plaintiff has a valid demand for damages against Jefferson county, and its amount fixed by a verdict; and then its liability, if any, is to the county and not to the plaintiff.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The vendor of an article not imminently dangerous in itself is not liable for injuries resulting to third parties from defects in construction when the injury is received after the article has passed into the hands of the vendee. (King v. Creekmcre, 25 Ky. Law Rep., 1292; Winterbottom v. Wright, 10 M. & W., 109; Huset v. Case Threshing Machine Co., 120 Fed. Rep., 865, and cases cited.)</p> <p>2. A passenger elevator is not, per se, something imminently dangerous, that is, an injury is not the natural or probable consequence of using it, and the vendor is not responsible for injuries to third parties caused by defective construction, when the injury occurs after the elevator passes under the control of the vendee. (Necker v. Harvey, 49 Mich., 517; Ziemann v. Elevator Co., 63 N. W., 1021; Thompson on Negligence, sec. 1095.)</p> <p>3. The vendor of articles which are imminently dangerous is not liable for injuries to third parties if the vendee is aware of the imminently dangerous character or condition of the article when he receives it. (Huset v.‘ Case Threshing Machine Co., 120 Fed. Rep., 865; Heizer v. Manufacturing Co., 110 Mo., 617; Wellington v. Oil Co., 104 Mass., 64.)</p> <p>4. The owner of a defective passenger elevator, who knowing its unsafe condition, puts it in use under the control of incompetent operators and invites the public to use it, acts independently in creating, as well as maintaining, a public nuisance. The vendor’s breach of duty in not supplying a safe elevator is not a concurrent act, and he is not responsible for injuries resulting to third parties, the direct and immediate cause of which is the act of the owner in knowingly putting the unsafe elevator in use under the control of incompetent operators. (Huset v. Case Threshing Machine Co., 120 Fed. Rep., 865; Heizer v. Manufacturing Co., 110 Mo., 617; Wellington v. Oil Co., 104 Mass., 64.)</p>

<p>Case 16. — ACTION BY KENTUCKY LIVE STOCK BREEDERS’ ASSOCIATION AGAINST S. W. HAGER, AUDITOR, FOR A MANDAMUS TO PAY $15,000 APPROPRIATED TO THE STATE FAIR.</p> <p>. Appeal from Franklin Circuit Court.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The expenditure of public funds for the purpose of exhibiting the various resources of the State, either at a State Fair or at a great national or world’s exposition, tends to develop the material resources of the State; to stimulate commercial enterprise; to educate the people to enlightened methods of agriculture, stock raising, &c., and serves a great and necessary purpose to the public in keeping the State and its people abreast of the times in the march of civilization, enlightenment and material developement, and is, therefore, in the truest sense of the word, an expenditure of public funds for public purposes. Consequently such an expenditure of public funds does not violate sec. 171 of the Constitution, which declares that * * * “taxes shall be levied and collected for public purposes only.” * * * (Norman, Auditor v. Ky. Board of Managers, 93 Ky., 537; Hager, Auditor v. Ky. Children’s Home Society, 26 Ky. Law Rep., 1133; State v. Cornell, 53 Neb., 556, 74 N. W., 59; Downing, et al. v. Ind. St. Board Agriculture, 28 N. E., 123; Minneapolis v. Janney [Minn.], 90 N. W., 312; Town of Pennington v. Park, 50 Vt., 178; Shelby County, et al. v. Tenn. Centennial Exposition, 36 S. W., 694; Daggett Y. Colgan, 92 Cal., 53, 28 Pac., 51; Sharpless v. Mayor of Philadelphia, 21 Pa. St., 147.)</p> <p>2. To justify a court in declaring a tax invalid or an appropriation unconstitutional on the ground that the tax was not imposed or the appropriation made for a public purpose, the absence of a public interest, in the purpose for which the tax was imposed or the appropriation made, must be so clear and palpable as to be immediately perceptible to every mind. (State v. Cornell, supra; Sharpless v. Mayor, supra; Chaney v. Hooser, 9 B. Monroe, 345; Walker v. City of Cinn. 21st Ohio St. R., 14; Cooley’s Constitutional Lim., 128, 129, 171;. Broadhead v. City of Milwaukee, 19 Wis., 658; People v. East Saginaw, 33 Mich., 164; Stockton & V. R. Co. v. Stockton, 41 Cal., 147; Loan Association v. Topeka, 20 Wall, 664; Weismer v. Village of Douglass, 64 N. Y., 91; Amer. & Eng. Ency. of Law, 1st Ed., vol. 25, p. 90, notes.)</p> <p>3. If the object and purpose for which the tax is levied or the appropriation is made is a public one, it is immaterial whether the money is applied through the agency of the public officials of the State or through private persons and corporations; and the expenditures of public funds in this manner is not a giving, pledging or loaning of the State’s credit, nor a donation of public funds to any company, corporation or association in violation of sec. 177 of the Constitution. (Hager v. Ky. Children’s Home, supra; Downing v. Ind. St. Board of Agriculure, supra; Minneapolis v. Janney, supra; Sharpless v. Mayor, and Daggett v. Colgan, supra; Amer. & Eng Enc. of Law, vol. 25, p. 88, notes.)</p> <p>4. The General Assembly has all power not expressly withheld from it by the Constitution. (Norris v. Climer,-2 Barr, 285; Tatham v. Philadelphia, 11 Pa., 276; Hill v. East Hampton, 140 Mass., 381, 5 N. E., 157; Hubbard v. Tauntor, 140 Mass., 467, 5 N. E., 157; Daggett v. Colgan, supra.)</p> <p>5. The only limitation on the power of the Legislature to levy taxes or appropriate public funds is that the object or purpose for which it is done shall be a public one. (Supported by authorities cited above.)</p> <p>6. The Legislature is the sole judge of the propriety and wisdom of appropriations like the one under consideration, and if the object and purpose of the appropriation is to serve a public end, the court will not inquire- as to whether that end has, in fact, been served or not; or whether the advantages and benefits have been commensurate with the expenditure. That matter is one for the people to deal with through their representatives. Where there is a doubt about the constitutionality of a statute the presumption is in favor of its legality, and the courts will not declare it invalid unless its invalidity is apparent and flagrant. (Supported by authorities cited above.)</p> <p>Our contention is that the act is unconstitutional for the reasons hereinafter assigned:</p> <p>1. It is in conflict with sub-secs. 17 and 29 of sec. 59 of the present Constitution, which reads thus:</p> <p>“Sec. 59. The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following reasons, namely: * * *</p> <p>“Subsec. 17. To grant a charter to any corporation, or to amend the chapter of any existing corporation. * * *</p> <p>“Sub-sec. 29. In all other cases where a general law can be made applicable, no special law shall be enacted.”</p> <p>This act purports to create a State Pair — which is a myth — and to constitute the appellant the agent of the Commonwealth to manage the affairs of this myth, which is nothing more or less than the “Kentucky Live Stock Breeders’ Association,” and the act is 'one in fact appropriating $15,000 to said association under the specious name of a “State Pair.” •</p> <p>We believe, also, that the said act is unconstitutional — if it is entitled to the consideration due to legislative acts — for the further reason of its being in conflict with sec. 51 of the Constitution.</p> <p>“Sec. 51. No law enacted by the General Assembly shall relate to more than one subject, and'that shall be expressed in the title.”</p> <p>A public purpose which will authorize the appropriation of public money to promote it mitSt be a general and common public benefit.</p> <p>2. The appropriation under said act is in conflict with, and contrary to, sec. 3 of the Bill of Rights. Sec. 3 of said Bill of Rights is as follows, in part:</p> <p>“Sec. 3. All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public service.”</p> <p>The legislative power of taxation is not without limit, and the courts may examine and determine whether the Legislature has acted within its powers and scope.</p> <p>3. For the third reason, we say that the act is in conflict with, and in direct violation of sec. 177 of the present Constitution. This section in full is as follows:</p> <p>“Sec. 177. The Commonwealth Not to Lend Its Credit or Become Stockholder in Corporation. — The Credit of the Commonwealth shall not be given, pledged or loaned to any individual, company, corporation or association, municipality or political sub-division of the State;- nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway.”</p> <p>It seems to us that the Constitutional Convention, and the people of Kentucky, 'could not have prohibited such measures as this in plainer and stronger words than those used in the said section.</p> <p>In conclusion it is the contention of the State that the appropriation in question was not, and is not, for a public purpose or use, but that it is a gift pure and simple, by the toiling masses of this Commonwealth, through the same, and under cover of law, to advance the interests of the Kentucky Breeders’ Association, and that the Legislature had no constitutional right to levy a tax upon the people of Kentucky, in order to raise funds for this private corporation.</p> <p>AUTHORITIES CITED.</p> <p>Michigan Sugar Co. v. The Auditor General, 83 Am. St. Rep., 354; People v. Township Board of Salem, 20 Mich., 452, 4 Am. Rep., 400; Weismer v. Village of Douglas, 19 N. Y., 98; Dodge v. Mission Township, 107 Fed. Rep., 829; Allen v. Inhabitants of Jay, 60 Me., 124; Tyler v. Beecher, 44 Vt., 648; in re Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Cypress Pond Draining Co. v. Hooper, &c., 2 Mete., 350.</p>

<p>Taxation — Non-resident—Personal Property in This State.</p> <p>Taxation — Non-resident—Personal Property in This State — Under Kentucky Statutes, section 4020, providing that “all real and personal estate within this State, and all personal estate of persons residing in this State, * * * shall he subject to taxation, unless the same be exempt by the Constitution,” railroad cross ties owned by a foreign corporation which were piled on a river bank in this State for the purpose, when a boat was secured, of being shipped by the owner out of the State, are liable to taxation in this State, both for State and county purposes, and there is no constitutional provision, State or Federal, which forbids it.</p>

<p>Case 18. — ACTION BY PHILIP RISSBERGER AGAINST ELI PI. BROWN AND THE CITY OP LOUISVILLE TO RECOVER TAXES</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (1st Division).</p> <p>Shackelford Miller, Judgé.</p> <p>Prom the judgment rendered plaintiff appeals.</p>

<p>Land — Execution Sale — Purchase hy One for Another — Consideration — Payment—Relief- for Equitable Owner — Constructive Trust — Estoppel—Statute of Frauds.</p> <p>1. Land — Execution Sale — Purchase By One For Another — Consideration Paid by Purchaser — Conveyance to Purchaser — Relief Sought by Equitable Owner — Where appellee and his brother jointly owned a tract of land and upon his brother’s death his undivided interest was ordered sold to pay his debts, and at the request of appellee was bought hy appellant at said sale for appellee’s benefit, and after the time for redemption had expired appellant, against the objection of appellee, caused a deed to be made to himself for the land, in an action by appellee against appellant to set aside said deed, alleging that appellant held the title in trust for him, he having all the time been jn the actual possession thereof, the comt properly decreed the relief sought upon the repayment by appellee to appellant of the money he had paid in the purchase thereof.</p> <p>2. Constructive Trust — Estoppel—Statute of Frauds — In such a case a constructive trust results by implication in favor of the equitable owner, which rests upon the idea that the purchaser holds the land in trust for his principal. Constructive trusts are held not to be within the statute because they rest in the end on the doctrine of estoppel, and the operation of an estoppel is never affected by the statute of frauds.</p> <p>3. Same — The fact that the purchaser of the land paid the consideration himself does not destroy the trust, where the purchase was made for another, who offered to pay it, and was kept from paying it by the act of the purchaser, who refused to accept it, and had the deed made to himself.</p>

Case 20. — ACTION BY E.'L. WARREN AND OTHERS FOR THE PARTITION OP PROPERTY, AT THE SALE OP WHICH P. L. ATHERTON BECAME THE PURCHASER. Held: First. That there was no joint ownership between Mrs. Mattingly and her children in the lands adjudged to be sold, and no law authorizing such a sale. Second.

<p>Lease — Term of Years — Damage by Fire — Remodeling—Agreement to Re-occupy — Tenable Condition — Where premises are leased for a drug store for five years, under a contract providing “that in the event the owner should desire to remodel the building so far as it would necessitate the tenant removing from the building, he is to receive a certain reduction of the. rent, with, the right to re-occupy the premises after the building is remodeled at the same rental until expiration of the lease,” such tenant is entitled to hold the premises where they have been damaged by fire without his fault, where the damage is not such as to render them untenable, and such lessee may elect to retain them unless the lessor will agree that he shall re-occupy them after they are remodeled as specified in the written contract.</p>

<p>Turnpike Bonds — Bonds for Building — Sale of Road to County — ■ Action to Subject Road to Bonds — Limitation—Pleading— Valuable Consideration — Selling Franchise — Constitutional Prohibition — Insufficient Allegations.</p> <p>1. Turnpike Roads — Bonds for Building — Sale of Road to County —Action to Subject Road to Bonds — Limitation,—'Where parties owning bonds issued by a turnpike company for its construction sued the turnpike company and the county, after a sale of the turnpike to the county under the free turd-pike act March 17, 1896, asking to subject the road to the pay- ' ment of such bonds, and more than five years after such sale and transfer filed an amended.petition, alleging that the turnpike company, while indebted to plaintiffs and insolvent, without valuable consideration and with intent to defraud plaintiffs in the collection of their debt, conveyed to the county, by writing, ail the property of the company, which the county has received and has since used and operated, such amendment was an abandonment of the original action, and sets up a new action, which shows on its face that it is barred by the five years’ statute of limitation.</p> <p>2. Pleading — Valuable Consideration — An allegation in a petition that a conveyance was made without a valuable consideration states merely the pleaders conclusion of the law, and is bad on demurrer.</p> <p>3. Selling Franchise — Constitutional Prohibition — A sale of a turnpike road made under the free turnpike act of March 17, 1896, where a majority of the voters and taxpayers have voted in favor of such sale, is not in violation of Kentucky Constitution, section 203, prohibiting a corporation from selling or leasing its franchise so as to relieve the franchise or property held thereunder from corporate debts.</p> <p>4. Insufficient Allegations — The petition, as amended, Laving failed to show any bad faith in the turnpike company in disposing of the proceeds of the sale of the road to the county, or that the county had not, in good faith, paid full value for it, or that the consideration paid is not yet on hand, available for the payment of its debts, or that the proceeding by which the county acquired it were not in conformity to the statute, no cause of action was stated against the county, and the lower court properly sustained the demurrer of the county and dismissed it from the case, but it was error to dismiss the petition as against the turnpike company.</p>

Case 23 — PROSECUTION AGAINST THOMAS WHITE FOR THE MURDER OF J. B. MARCUM. Appeal from Harrison Circuit Court. J. J Osbukn, Circuit Judge. Defendant convicted and appeals. We submit: 1. Tinder sec. 1118, Ky.

<p>Case 24 — ACTION BY ELISHA HILL’S ADM’R AGAINST THE PENN. MUTUAL LIFE INS. CO. ON MOTION TO STRIKE BILL OF EXCEPTIONS.</p> <p>Appeal from Warren Circuit Court.</p> <p>Motion heard in Court of Appeals.</p>

<p>Case 25 — ACTION BY MOLLIE THOMAS AGAINST THE WESTERN UNION TELEGRAPH CO. FOR DAMAGES FOR FAILING TO DELIVER TELEGRAM.</p> <p>Appeal from Hickman Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED.</p> <p>1. ' Error of the court in sustaining motion made by attorney for appellee (defendant in court below) to strike words from petition.</p> <p>2. Error of the court at the conclusion of the plaintiff’s evidence in giving to the jury instruction marked “A.”</p> <p>3. The appellee, the Western Union Telegraph Company, is liable in damages for failing to deliver a telegram within a reasonable time after its reception by the company.</p> <p>4. A delay of 28 hours is an unreasonable delay in delivering a telegram as in this case.</p> <p>5. The appellant is entitled to recover damages for injuries to feeling, and mental anguish for failing to deliver a message in a reasonable time after the reception of the telegram, announcing the death of her father.</p> <p>AUTHORITIES CITED.</p> <p>W. U. Tel. Co. v. Fisher, 54 S. W., 830; W. U. Tel Co. v. Mathews, 67 S. W., 849; W. U. Tel. Co. v. Gross’ Adm’r, 74 S. W., 1098; Chapman v. W. U. Tel. Co., 13 S. W. 880; W. U. Tel. Co. v. Davidson, 21 Ky. Law Kep., 1293; 21 Ky. Law Rep., 1405; 90 Ky., 265; 25 Ky. Law Rep., 268, 646; 22 Ky. Law Rep., 53.</p> <p>1. We contend there can be no recovery for mental anguish for being deprived of attendance for any specific time on the body of a dead relative by one who arrived in time and was actually present at the funeral and interment.</p> <p>2. The damages sought to be recovered were not, and could not, reasonably have been expected to be in contemplation by the parties at the time the contract was made. They are two remote, and a recovery therefor should not be permitted.</p> <p>3. Plaintiff’s own proof shows that she was guilty of contributory negligence, in that she failed to take any steps to minimize her injuries or damages, and if she had done so she would have suffered no injury whatever.</p> <p>AUTHORITIES CITED.</p> <p>Robinson v. W. U. Tel. Co., 24 Ky. Law Rep., 452; Hadley v. Baxindate, 9 .Exc., 341; W. U. Tel. Co. v. VanCIeave, 21 Ky. Law Rep., 53; Taliferro v. W. U. Tel. Co., 21 Ky. Law R'ep., 1290; W. U. Tel Co. v. Mathews, 67 S. W., 849.</p>

<p>Taxation — Injunction—Burden of Proof — Retrospective Assessment — Listing- Property — Duty of Taxpayer- — -Omitted Property — Notice—City Ordinance — Validity—Rule of Equity.</p> <p>1. Taxation — Injunction—Burden of Proof — Retrospective Assessment — When one comes into equity to enjoin the collection of a tax which has been officially ascertained to be due by .the assessor or by the retrospective assessor, the burden of proof is upon the plaintiffs, and to do this he is required to allege and prove, if controverted, every feet, whether it be negative or affirmative, necessary to show the invalidity of the tax assailed.</p> <p>2. Listing Property — Duty of Taxpayer — Omitted Property — It is incumbent o,n the taxpayer in listing his property for taxation to make, under oath, a full and fair disclosure, by items, of all his property subject to taxation, and if he does this and the assessor places a valuation on it that is too low, the city or State is bound by it; but if he fails to do this, and gives its valuation in a lump without being sworn and without disclosing the items, to the extent that the property is thereby underestimated, it is omitted property in the meaning of the law, and the negligence of the officer in not requiring such disclosure will not avail the delinquent taxpayer.</p> <p>3. Notice — In an action to enjoin the collection of a tax made by an officer who is required to make retrospective assessments, it is not incumbent on such officer to show that he has given notice to the taxpayer of the assessment. As the law presumes the officer did his duty, if such notice was necessary, it will be presumed to have been given.</p> <p>4. Validity of Assessment — City Ordinance — Assuming that the city ordinance establishing a back-tax collector is valid, there is nothing in the ordinance which indicates that he shall be more than an additional aid to the regular assessor, whose duty it is to retrospectively assess omitted property, just as it is made the duty of the sheriff and auditor’s agent to look up and have assessed omitted property for State taxation.</p> <p>5. The Rule of Equity — The rule is that when one Comes into equity asking relief against taxation, it is incumbent on him to show clearly that he has paid, or is willing to pay, all that he justly owes toward the public burden; he must make a full, fair and complete disclosure of the property he has, or that his ward has, subject to taxation, so that the court may judge whether he is unjustly taxed; he must come not only with clean but open hands.</p>

Case 27. — PROCEEDINGS TO PROBATE THE WILL OP JOHN MCDONALD; TO'WHICH. JOE MCDONALD AND OTHERS PILED OBJECTIONS. Appeal from Woodford Circuit Court. James E, Cantrill, Circuit Judge, Prom a judgment denying probate the executors and others appeal. 1. There is not a scintilla of evidence tending to show a lack of testamentary capacity in testator, and a peremptory instruction should have been given. 2. The verdict of the jury was flagrantly against the evidence. 3.

Case 28. — ACTION BY THE HENDERSON COTTON MILLS AGAINST THE TRAVELERS INS. CO., ON AN EMPLOYER’S INDEMNITY POLICY OP INSURANCE Appeal from Henderson Circuit Court. J. W. Henson, Circuit Judge. Judgment for plaintiff. Defendant appeals. The age of John Warren was a vital and material issue in the case.

<p>Case 29. — ACTION BY THE ASSIGNEE OF THE KENTUCKY MUTUAL INVESTMENT CO. AND OTHERS AGAINST F. W. SCHAEFER AND OTHERS, TO HOLD THEM LIABLE ON AN ALLEGED SUBSCRIPTION TO THE CAPITAL STOCK OF THAT COMPANY.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (2d Division).</p> <p>Samuel B. Kirby, Judge.</p>

<p>Case 30. — ACTION BY JOB A. REID AGAINST THE WESTERN UNION TELEGRAPH CO. FOR NEGLIGENCE IN FAILING TO DELIVER A TELEGRAM.</p> <p>Appeal from Calloway Circuit Court.</p> <p>Thos. P. Cook, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>1. Damages for mental anguish occasioned by reason of witnessing the pain and suffering of another are too remote'to be recovered.</p> <p>Chapman v. W. U. Tel. Co., 90 Ky., 265, is in conflict with the recent decisions of this court, and so much thereof as allows a recovery for mental anguish, unaccompanied by physicial injury, should be overruled.</p> <p>AUTHORITIES CITED.</p> <p>Chapman v. Western Union Tel. Co., 90 Ky., 265; W. U. Tel. Co. v. Van Cleave, 54 S. W., 827; Robinson v. W. U. Tel. Co., 68 S. W., 656; Cashim v. W. U. Tel. Co., 124 N. C., 459; Telegraph Co. v. Cooper, 71 Tex., 507; W. U. Tel.'Co. v. Lovett, 58 S W., 204; W. U. Tel. Co. v. Proctor, 25 S. W., 811; W. U. Tel. Co. v. Burchfield, 36 S. W., 636; Telegraph Co. v. Rowell, 75 Tex., 26; Johnson v. Telegraph Co., 38 S. W., 64; W. U. Tel., Co. v. Stratemeir, 32 N. E., 871; Howard v. Adams, 16 Mich., ISO; Black v. Railway Co., 10 La. Ann., 33; W. U. Tel. Co. v. Matthews, 67 S. W., 849; Reed v. Malley, 25 Ky. Law Rep., 209; L. & N. v. Hull, 68 S. W., 433; Hockenhammer y. Lex. & Eastern Ry, Co., 74 S. W., 222; Wads-worth v. W. U. Tel. Co., 86 Tenn., 65, and cases collected in body of brief.</p> <p>2. The text-book writers, the English decisions and the decisions of the Federal courts in this country are all against such a recovery; also are the decisions of most of the State courts. To quote from them would extend this brief to an unwarranted length We submit a list below:</p> <p>FEDERAL DECISIONS.</p> <p>Supreme Court, Kennon v. Gilmer, 131 TJ. S-, 622; Arkansas, Crawson v. W. TJ. Tel. Co., 47 Fed. Rep., 544; Georgia, Chase v. W. TJ. Tel. Co., 44 Fed. Rep., 554; Kansas, Cobb v. W. TJ. Tel. Co., TJ. S. Dist. Court, Kansas, 1883; Minnesota, Gahan v. W. TJ. Tel. Co., 59 Fed. Rep., 433; Oklahoma,-Rulmer v. W. TJ. Tel. Co., 37 Pac. Rep., 1087; Ohio, Kester v. W. TJ. Tel. Co., 55 Fed. Rep., 603; Texas, Wood v. W. TJ. Tel. Co., 57 Fed. Rep., 471; Tennessee, W. TJ. Tel. Co. v. Sklar, 126 Fed. Rep., 296; Virginia, Tyler v. W. TJ. Tel. Co., 54 Fed. Rep., 634.</p> <p>STATE DECISIONS.</p> <p>Arkansas, Peay v. W. TJ. Tel. Co., 64 Ark., 538; California, Morgan v. Co. P. R. R., 95 Cal., 510; Connecticut, Masters v. Warren, 27 Conn., 293; Dakota, Russell v. W. TJ. Tel. Co., 3 Dakota, 315; Florida, I. O. Tel. Co. v. Saunders, 32 Fla., 434; Georgia, Chapman, v. W. TJ. Tel. Co., 80 Ga., 763; Illinois, Logan v. W. TJ. Tel. Co., 84 111., 468; Iowa, Ferguson v. Davis Co., 57 Iowa, 601; Indiana, W. TJ. Tel. Co. v. Ferguson, 157 Ind., 64; Kansas, W. TJ. Tel. Co., v. Howell, 38 Kan., 635; Louisiana, Black v. Railroad Co., 10 La. Ann., 33; Maine, Smith v. Grant, 56 Me., 255; Massachusetts, Davidson v. Nicholas, 11 Allen, 514; Michigan, Clinton v. Lansing, 61 Mich., 355; Minnesota, Purcell v. St. Paul R. R. Co., 50 N. W. Rep., 1034; Mississippi, Dorrah v. Illinois Central Co., 65 Miss., 11; Missouri, Connell v. W. TJ. Tel. Co., 116 Mo., 34; Nevada, Johnson v. Wells-Fargo Co., 6 Nevada, 224; New Jersey, Talfer v. Ry. Co., 30 N. J. L., 138; New York, Mitchell v. W. TJ. Tel. Co., 151 N. Y„ 107; Ohio, Morton v. W. TJ. Tel. Co., 53 Ohio St., 431; Oklahoma, Butner v. W. TJ. Tel: Co., 2 Okla., 234; Pennsylvania, Ewing v. Ry. Co., 147 Pa. St., 40; South Carolina, Lewis v. W. TJ. Tel. Co., 57 S. C., 325; Utah, Webb v. Ry. Co., 14 A. & E. R. R. Cases, 189; Vermont, Bovee v. Danville, 53 Vt., 183; Virginia, Connelly v. W. U. Tel., Co., 40 S. E. Rep., 618; West Virginia, Davis v. W. U. Tel. Co., 46 W. Va., 48; Washington, Turner v. Great Northern, 15 Wash., 213; Wisconsin, Summerfleld v, W. U. Tel. Co,, 87 WÍB; X,</p> <p>ENGLISH AUTHORITIES.</p> <p>Lynch v. Knight, 9 House of Lords Cases, 598; Hamlin v. Gt. & N. Ry. Co., I. H. & N., 411; Hobhs v. London Ry. Co., L. R., 10 Q. B., 122; Allsop v. Allsop, 5 Hurl. & N., 534.</p> <p>Alabama, Iowa, Kentucky, North Carolina, Tennessee and Texas hold to the contrary.</p> <p>STATEMENT OE POINTS DISCUSSED AND AUTHORITIES.</p> <p>1. A father may recover damages for his mental pain and suffering caused by the delay of a telegraph company in transmitting a message to a physician stating that his child is sick and asking him to come at once. (W. U. Tel. Co. v. Richardson, 15 S. W. R., 689; W. U. Tel. Co. v. Henderson, 18 A. S. R., 148; W. U. Tel. Co. v. Kenzóra, 26 S. W. R., 245; W. U. Tel. Co. v. Cav-in, 70 S. W. R-, 229; W. U. Tel. Co. v. Stephens, 21 S. W. R., 148; 57 L. R. A., 905; 34 L. R. A., 431.)</p> <p>2. A judgment of the circuit court will not be reversed for failing to strike out irrelevant and redundant matter in a pleading, if it do' not appear to have prejudiced the rights of the appellant. (18 Ky. Law Rep., 632; 4 Met., 330; 2 Bibb, 295; 5 Litt., 235; 1 J. J. M., 37.)</p> <p>3. The circuit court of Calloway county has jurisdiction of actions for damages arising in that county. (Ky. Stats., secs., 996, 1086 and 3651; Civ. Code, secs. 72 and 51.)</p> <p>4. Evidence of a physician showing that the child would probably have recovered if the proper medical aid had arrived in time is admissible. (1 L. R. A., 728; 9 S. W. R., 598.)</p> <p>5. Evidence that the plaintiff felt and exhibited mental anguish is admissible. (6 L. R. A., 844; 1. Greenleaf, Ev., sec. 102; 1 Wharten, Ev., secs. 268 and 269; 15 S. W. R., 689; 18 A. S. R., 148)</p> <p>6. Proof that the child suffered increased pain on'account of the delay of the message is competent evidence, if such facts- tend to show that plaintiff’s suffering was increased thereby. (1 L. R. A., 728.)</p> <p>7. Evidence that tne doctor could and would have gone immediately by land, if not by rail, if the message had been promptly delivered is admissible. (24 Ky. Law Rep., 2008.)</p> <p>8. The evidence concerning the treatment given the child was proper, because it was the duty of the plaintiff to make his injury as small as possible and by this evidence this fact was shown. (Gray Communication by Telegram, sec. 100; Joyce on Electricity, sec, 972.)</p>

<p>Railroads — Causing Death — Venue of Action — Negligence of Intestate — Knowledge of Danger — Risk — Emergency — Decision — Prompt Action — Precaution—Rules—Negligence of Approaching Train- — Question for Jury — -Tests of Air Brakes — Competency.</p> <p>1. Railroads — Causing Death — Action by Personal Representative — -Venue—Under Civil Code, section 73, providing that “an action against a carrier for an injury to a passenger or to other person or his property must be brought in the county in which the defendant, or either of several defendants, resides, or in which the plaintiff, or his property, is injured, or in which he resides, if he resides in a county into which the carrier passes,” a personal representative who resides in Hardin county, into which county the carrier passes, may bring an action in said county against the carrier for negligently causing the death of her intestate, though he was killed in Grayson county, and at the time of his death resided in Jefferson county.</p> <p>2. Negligence of Intestate — Knowledge of Danger-^Risk — Right of Protection — While plaintiff’s intestate was guilty of negligence in taking his engine on the main track of the railroad in violation of the rules of the company at a station where there' was at the time no telegraph operator, in order to supply his engine with water, and when he knew a fast through passenger train was then due to pass said station, and which was entitled to the right of way, it does not necessarily follow that he cut himself off from all right of protection, considering the steps and precaution he took to notify the approaching train of his situation.</p> <p>3. Situation of Intestate — Emergency—Decision—Prompt Action— Precautions — Rules of Company — Negligence of Approaching Train — Question for Jury — Where deceased, who ' was the engineer of a work train, was awakened early in the morning by his night watch and found his engine leaking and nearly dry, which he was compelled to supply with water from the tank nearby on the main line, or draw his fire and let his engine die, and in the emergency decided to move his engine on the main track to the water tank, and flag the fast passenger train, which was then past due, but was usually from a half hour to four hours late, but before doing so sent his flagman with his red light and a torpedo to a curve 1,120 yards from the water tank and left the switch open with its red light shining squarely down the track in the direction of the approaching train, 905 yards from the curve on a straight line to the curve, the rules of the company being for “engineers to keep a constant lookout for signals and the position of switches while running, and not to pass red signals and red lights on the switches, but must stop and ascertain the cause,” the only question that should have been submitted to the jury was whether those in charge of the fast train saw, or by the exercise of ordinary care could have seen, the train in charge of deceased in time to have stopped or checked their train and saved deceased from injury and death. If so, plaintiff should recover, otherwise the finding should be for defendant.</p> <p>4. Tests of Air Brakes — Competency—Advertisements of professed tests of air brakes in the back of a book of instructions with reference to the use and operation of such brakes were incompetent as evidence in the case as they seem not to have been prepared and issued by the defendant company.</p>

<p>Wills — Construction—Contingent Remainders — Alienation—Perpetuities — Judicial Sales — Statutes.</p> <p>1. Wills — 'Construction—Testator devised his homestead to his two cousins, M. and G., together with two store buildings, and directed that the income of the stores should be used to maintain them and the homestead; that the home should never be mortgaged or sold, and, that in event of the death of either of the cousins, the interest of that one should belong to the other; that, if G. should be the last to die, the home should be the property of his daughter, but, if M. should be the last to die, the- property should go to her halfsister. Pleld — That the remainder to G.’s daughter was not limited on the death of M. before G. in the testator’s lifetime, but depended on her ultimate death before G.</p> <p>2. Contingent Remainders — The interest of G.’s daughter was such as, in the event of her death before her father and before coming into possession of the property, would descend to her children, or, in the absence of children, to her heirs at law, at the death of her father surviving him.</p> <p>3. Alienation' — The daughter’s interest under such will was not limited to “the family home,” but included the two. stores devised by testator for the purpose of maintaining such home while in the possession of his own relatives and devisees.</p> <p>A. Perpetuities — Judicial Sales — Where testator devised certain property to his" cousins for life, remainder to the survivor, and then over to others, and declared that the same'should never be sold, such provision was void in so far as it attempted to prohibit a sale after the vesting of the estate in the remaindermen, under St. 1903, sec. 2300, providing that the absolute power of alienation shall 'not be suspended for more than the life or lives in being at the creation of the estáte and 21 years and 10 months thereafter.</p> <p>5. Life Estates — Sale of — Civil Code, sec. 491, authorizes the sale of a remainder or reversion in certain cases in a civil action, but section 492 declares that no sale shall be ordered if forbidden by the deed, will or contract under which the property is held. Held — That the provisions of section 492 are mandatory, so that no sale of real estate held under a will expressly prohibiting a sale .thereof could be had during the life estates, though consented to by both the life tenants and remaindermen.</p>

<p>Case 33. — ACTION BY FRANCES WOLFE AND OTHERS FOR A JUDICIAL SALE OF LAND AND DIVISION OF THE PROCEEDS AMONG THOSE IN INTEREST.</p> <p>Appeal from Shelby Circuit Court.</p> <p>R. F. Peak, Circuit Judge.</p> <p>From the Judgment overruling exceptions to the sale the purchaser, E. IT. Wise, appeals.</p> <p>SYNOPSIS OF ARGUMENT AND AUTHORITIES.</p> <p>1. Appellant Wise did not know, and was never informed, that there would be special term of Shelby Circuit Court held February 20, 1904.</p> <p>2. The order of Shelby Circuit Court of February 6, 1904, calling for a special term of. that court on February 20, 1904, was not constructive notice to appellant Wise of the calling of such term as he was not a party to the suit at the time such order was made.</p> <p>3. Confirmation of the sale in this case at special term held on February 20, 1904, was not binding on appellant Wise, and should not prevent his filing exceptions to report of sale, and the doctrines in Kincaid v. Tutt, 88 Ky., 392, do not apply to the facts in this case.</p> <p>4. Court erred in not allowing report of sale to lie over for exceptions.</p> <p>5. Sale should have been set aside because of encumbrances and defects noted in exceptions, and paticularly because the court had no jurisdiction to make the sale in the way it did make it. Sub-sec. 2 of sec. 490 authorizes the sale of a vested estate in possession, and does not authorize the sale of two or more vested estates in possession, together, at least in those' cases where selling two or more such estates together will result in an inability to divide the proceeds according to the interests of the parties.</p> <p>G. The purchaser is not estopped to question the title because the pleadings disclose the defects complained of, there being nothing in the judgment of sale or advertisement informing the public that the title to be sold was defective or encumbered.</p> <p>AUTHORITIES CITED.</p> <p>3 B. M., 414, Johnson, &c. v. Lyle’s Adm’r; 5 B. M., 155, Sharp v. Pike, Adm’r; 18 B. M., 33, Commonwealth v. Graves and Clary; 7 Bush, 320, Blimm v. Commonwealth; 7 Bush, 591, Huber v. Armstrong; 13 Bush, 239, Washington Co. v. Thompson, &c.; 7 Ky. Law Rep., 666, Shelby v. Welch; 11 Ky. Law Rep., 297, Bales v. Commonwealth; 94 Ky., 529, Toler v. Commonwealth; sec. 964, Ky. Stats.; 16 B. M., 290, Carpenter v. Strother’s Heirs; 10 Ky. Law Rep., 456, Jenkins v. Croften.</p> <p>1. "It is a welhsettled principle that in judicial sales there is no warranty. The principle holds good in all those sales of real estate made in equitable proceedings under the direction and control of the courts * * * in proceedings for partition.”</p> <p>“The rule caveat emptor applies in all its rigor to judicial sales of real property.” (Rorer on Judicial Sales, sec. 459.)</p> <p>2. According to our conception the description given fairly bounds the land in such a way that they can be identified with reasonable certainty. And which must have been identified by appellant, for acting upon these descriptions he appeared at the sale, bid upon the land and became the purchaser.</p> <p>3. The appellant's contention that the allegation in the petition that “the property can not be divided without materially impairing its value and the value of plaintiff’s interest,” should be supported by evidence, is, we think, amply refuted by the authorities he cites, viz; Friddle v. Konn, 14 Ky. Law Rep., 312; Perkins v. McCarley, 16 Ky. Law Rep., 901.</p> <p>4. What difference does it make to the purchaser whether the proceeds of the sale are distributed accurately or not, whether it is distributed in a day, or the parties choose to- litigate over the distribution through interminable ages?</p> <p>5. The court had jurisdiction to order the sale; the parties were all properly before the court. The sale was properly advertised and conducted; the appellant voluntarily became the purchaser at the sale, thereby becoming a party to the suit, and was bound to take cognizance of the entire record in the case, in which a special term had been properly called; the sale was properly confirmed at the special term; no exceptions were filed at the special term, nor at either of the three rule days that intervened between that time and the May term of court; the purchaser took immediate possession of the property under the order of court' entered at the special term, granting him possession thereof, and placed it in the care and custody of a tenant of his own choosing; the dwelling house on the premises was burned, presumably by the negligence or carelessness of this tenant, or of some member of his family. Whether he had actual notice, or knew that there would be a special term of court held on the 20th day of February, 1904, to confirm this sale or not, acting under the orders entered at that term, he ratified what the court' had done, and if is now too late for him to complain.</p> <p>AUTHORITIES CITED.</p> <p>Todd v. Dowd, 1 Met., 284; Megowan v. Pennebaker, 3 Met., 502; Vanbus-sum v. Maloney, 2 Met., 551; Kincaid v. Tutt, 88 Ky., 392; Yocum v. Foreman, 14 Bush, 500; Anderson v. Anderson, 18 B. Mon., 97; Rorer on Judicial Sales, secs. 458 and 459; The Monte Allegre Case, 9 Wheat., 616; Puckett v. United States, 4 Am. Law Reg., 460; Bingham v. Mancey, 15 111., 295; Farmers Bank of Ky. v. Peter, 13 Bush, 591; Humphrey’s Ex’or v. Wade, 84 Ky., 400 and 401; Taylor v. Helm, 5 Ky. Law Rep., 324; Fearons v. Gallegher, 7 Ky. Law Rep., 298; Friddle v. Konn, 14 Ky. Law Rep., 312; Perkins v. McCarley, 16 Ky. Law Rep., 901; Holland v. Holland, 21 Ky. Law Rep., 105; Civil Code, secs. 518 and 520.</p>

Case 34. — ACTION BY J. N. SODEN AND OTHERS AGAINST J. M. GRAY TO RECOVER LAND. Appeal from Lyon Circuit Court. Thos. P. Cook, Circuit Judge. Judgment for plaintiffs. Defendant appeals. We contend: 1. The court erred in adjudging the heirs of Jacob Stephens to be the owners of the land. Jacob Stephens may have possession of the land for over thirty years, but that did not bar the Commonwealth’s right of entry upon it as he could not hold adversely to the Commonwealth.

<p>Case 35. — ACTION BY CITY SAVINGS BANK, AS GUARDIAN OF VIRGIL THOMAS AGAINST W. E. GARTH, AS GUARDIAN FOR SAME.</p> <p>Appeal from Warren Circuit Court.</p> <p>B. W. Bradburn, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Jurisdiction of a court to appoint a guardian. (Tiffany’s Persons and Domestic Relations, sec. 158; Schouler’s Domestic Relations, sec. 303.)</p> <p>2. Right of natural guardian to' custody of ward. (Ky. Stats., sec. 2033; Tiffany’s Persons and Domestic Relations, p. 308.)</p> <p>3. Right of natural guardian to change domicile of infant child. (Am. & Eng. Ency. Law, 1st Ed., vol. 5, p. 866; Am. &' Eng. Ency. Law, 2d Ed., vol. 10, p. 30, and notes; Tiffany’s Persons and Domestic Relations, p. 292; Schouler’s Domestic Relations, sec. 230; School Directors v. James, 37 American Decisions, 525-527;Lamar v. Micou, 112 U. S., 470-471; Woodward v. Woodward, 11 S. W. Rep., 896; Van Matre v. Sankey, 39 American State Reps., 204; Allen, Adm’r v. Thomasson, 54 American Decisions, 57.)</p> <p>4. Upon death of natural guardian domicile of infant becomes fixed, remaining same as- that of last surviving parent. (City of Louisville v. Sherley, 80 Ky., 74; Mills’ Gd’n v. City of Hopkins-ville, 11 Ky. Law Rep., 166; School Directors v. James, supra; In matter Affiick, 3 Mac Arthur (D. C.), 95; Lewis v. Costello, 17 Mo. Apps., 593; Van Matre v. Sankey, supra.)</p> <p>5. Authorizing personal judgment against guardian. (Am. & Eng. Ency. Law, 2d Ed.', vol. 15, p. 79; Hemphill v. Lewis, 7 Bush, 216.)</p>

<p>Case 36. — ACTION BY S. H. DEES, GUARDIAN OP GRAY A. GATLIN AND ANOTHER, AGAINST PROVIDENCE SAVINGS LIFE ASSURANCE CO., ON POLICY OP INSURANCE.</p> <p>Appeal from Calloway Circuit Court.</p> <p>Tiros. P. Cook, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>SYNOPSIS OF BRIEF AND ARGUMENT.</p> <p>We will not undertake in this brief to discuss, in the order stated an’d separately, the various grounds given in the motion for a new trial, as it will be more convenient to group the errors assigned where it can be done, and discuss them, together.</p> <p>1. The court erred in refusing to give to the jury, at defendant’s request, special instruction marked “F,” as follows: “The court instructs the jury that if they shall believe from the evidence in this case that W. P. Gatlin, deceased, made an application to defendant for the issue of the policy sued on to him and that in said application he was asked the following questions: ‘Have you ever used spirits, wine or malt liquors?’ to which he answered ‘Yes;’ and the further question, ‘Have you ever used them to excess?’ to which he answered ‘No;’ and the further question, ‘Do you now use them? If so, state definitely what is the form, how much and how often, i. e., what is your practice?’ To which he answered, ‘Yes, whiskey; three drinks a month;’ and you further believe that any. answer to either of the questions so propounded to him was untrue or false, and that such answer was as to facts which were material to the risk to be assumed by the defendant, then said untrue answer or answers void the policy sued on, and if the jury so believes, then the law is for defendant, and the jury will so find.”</p> <p>2. The court erred in giving instruction No. 1 to the jury, which is as follows: “The court instructs the jury that if they believe from the evidence that on the 28th day of August, 1899, W. P. Gatlin made application to the defendant company for the policy in suit in this action, and that said application and the answers therein to the question, ‘Have you ever used spirits, wine or malt liquors?’ second, ‘Have you ever used them to excess?’ and, third, ‘Do you now use them? If so state definitely what is the form, how much, and how often, that is, what is your practice,’ were honestly made, without any intention to deceive or defraud defendant, and that said answers were substantially true, tnen the law is for the plaintiff, and the jury will so find for him the amount of the policy, with 6 per cent, interest from June 16, 1901, unless the jury shall further believe from the.evidence that said policy after execution and delivered to W. P. Gatlin was changed or altered as set out in instruction No. 2.</p> <p>3. The court erred in giving to the jury instruction No. 3, viz: “The court further says to the jury that if they believe, from the evidence in this case, that W. P. Gatlin, deceased, made application to defendant company for the policy sued on herein, and that in said application he was asked the questions, ‘Have you ever used wine, spirits or malt liquors?’ to which he answered ‘Yes,’ and the further question, ‘Have you ever used them to excess?’ to which he answered ‘No;’ and the further question, ‘Do you now use them? If so state definitely what is the form, how much and .how often, i. e., what is your practice?’ to which he answered ‘Yes, whiskey, three drinks a month;’ and that' if either or any of said answers to said questions were in fact untrue, and were made witn the fraudulent intent to deceive or mislead defendant, and with intent that defendant should rely, and it did rely, on said answers in issuing the policy sued on, then the law is for the defendant, and the jury will so find.”</p> <p>If possible this instruction contains more vital error than instruction No. 1, which, as far as it goes, was ? correct statement of the law. Its error being that it failed to say what the legal effect would be if the answers were in fact untrue, and to supplement which instruction “F” was asked by defendant.</p> <p>4. The court erred in refusing to give special instruction “G,” as follows: “The court instructs the jury, if they shall believe from the evidence in this case, that said W. P. Gatlin, deceased, made an application to defendant for the issuance of the policy sued on herein to him, and that in said application he was asked the following questions: ‘Have you ever used spirits, wine or malt liquors?’ to which he answered ‘Yes,’ and the further question, ‘Have you ever used them to excess?’ to which he answered ‘No;’ and the further question, ‘Do you now use them?’ If so, state definitely what is the form, how much and how often, i. e., what is your practice?’ to which" he answered, ‘Yes, whiskey, three drinks a month;’ and you further believe that the answer or answers to either or any of the questions propounded to him were untrue, and were as to matters material to the risk to be assumed by the defendant and that defendant relied on these answers in issuing the policy, although the jury may believe that said untrue answer or answers were not made with any fraudulent purpose, or with intent to deceive the defendant, then the law is for defendant, and the jury will so find.”</p> <p>5. The court erred in refusing to give special instruction marked “H,” asked by defendant, viz: “The court instructs the jury that if they shall believe, from the evidence in this case, that W. P. Gatlin made an application to the defendant for the issue of the policy sued on, and that in said application he was asked the following questions (questions and answers quoted in previous charges), and that if either of said answers to said questions were in fact untrue, and were fraudulently made, or were made with the intent to deceive or mislead defendant, and that defendant relied upon said answers in issuing said policy, then the law is for defendant, and the jury will so find, even though the jury may believe, from the evidence, that such untrue answers were not materiai to the lisle.”</p> <p>6. If the common law does not prevail in Kentucky and the validity of the policy does not depend upon the absolute truthfulness of the statements made in the application, and the statute of 1874 changes it, then the fair construction of this statute is, that if an untrue answer was given by the applicant for the policy sued on in this case, such answer, if made with a fraudulent purpose, or with an actual intent to deceive, renders the policy void regardless of the question whether the fact so misstated was material of immaterial. (Kern on Insurance, sec. 140; 16 Am. & Eng. Encj. of Law, 921; 8 Kent’s Com., 283; Carrollton Furn. Co. v. Am. Credit Co., 115 Fed., Rep., 77; 2 Joyce on Insurance, sec. 1896.)</p> <p>If, however, the answer to said question was made in good faith, and without any intent to deceive, but was a misstatement as to a fact which increased the risk, or was material to the risk, then the policy is void, regardless of the intention of the party in making the untrue statement, although it may have been made in good faith, or in ignorance of the fact, misstated. (Germania Ins. Co. v. Rudwig, 80 Ky., 223; Carrollton Furn. Co. v. Am. Credit Co., 115 Fed. Rep., 77; 16 Am. & Eng. Ency. of Law, 933; Ferr on Insurance, 343; 1 May on Insurance, sec. 181.)</p> <p>7. The Kentucky Statute is as follows: “All statements or descriptions in any application for a policy of insurance shall be deemed and held representations and not warranties, nor shall any misrepresentations, unless material or fraudulent, prevent a recovery on the policy.” (Ky. Stats., sec. 639.)</p> <p>8. The court erred in refusing to give special instruction “E,” asked by defendant, as follows: “The court instructs the jury that if they shall believe from the evidence in this case that the policy sued on when issued and delivered to W. P. Gatlin made the loss thereunder payable to Gray A. Gatlin, daughter, or her representatives, and that after delivery to Wm. P. Gatlin he altered or changed the same by inserting after the words ‘Gray A. Gatlin, daughter’ the words, ‘and George O. Gatlin, son,’ and changed the word ‘her’ to ‘their,’ so as to make the loss payable to Gray A. Gatlin, daughter, and George O. Gatlin, son, or their representatives, and that this alteration w>as made without the knowledge or consent of the defendant, then George O. Gatlin has no interest in or title to said policy, and can not maintain this suit jointly with Gray A. Gatlin, and the jury will find for defendant.”</p> <p>STATEMENTS OF POINTS DISCUSSED.</p> <p>1. (a) Section 639 of Kentucky Statutes, as follows: “All statements or descriptions in any application for a policy or insurance shall be deemed and held representations and not warranties; nor shall any misrepresentations, unless material or fraudulent, prevent a recovery on the policy” — applies to all contracts of insurance, “and the parties must be considered to have • contracted with reference to this contract.” (Imperial Fire Ins. Co. v. Kiernan, 83 Ky., 468; Germania Ins. Co. v. Rudwig, 80 Ky., 223; Ky. Mut. Ins. Co. v. Harrison, 7 Ky. L. Rep., 43; Kenton Ins. Co. v. Wigginton, 89 Ky., 330; Mut. Life Ins. Co of New York v. Thompson, 94 Ky., 253; Lancaster Ins. Co. v. Monroe, Jefferson & Co., 19 Ky. Law Rep., 204; Sun Mut. Ins. Co. v. Crist, 19 Ky. Law Rep., 305; Continental Ins. Co. of New York v. Ware, 3 Ky. Law Rep., 621; Orient Ins. Co. v. Burus, 23 Ky. Law Rep., 656.)</p> <p>(b) Notwithstanding these representations were made a part of the contract, the statute still applies, and the contract is governed by the same rule as if they had been made merely to induce a contract; and the case of Farmers & Drovers Insurance Company v. Curry, 13 Bush, 312, holding to the contrary, was expressly overruled by the case of Germania Insurance Company v. Rudwig, So Ky., 223.</p> <p>2. There was an absolute failure of proof to show that the health of insured had been impaired by habits of intemperance prior to the time of the application for insurance, or that he did then or at any previous time use intoxicants to excess, and “an inquiry in regard to previous habits of drinking intoxicating liquors is not material, unless they existed to such an extent as to affect the health or physical condition of the applicant, and thereby render him an unsatisfactory subject for life insurance.” (Mut. Life Ins. Co. of New York v. Thompson, 94 Ky., 253; Knickerbocker L. Ins. Co. v. Foley, 105 U. S., 350, [26 L. Ed., 1055]; Am. & Eng. Enc., vol. 2, p. 296, 1st Ed.)</p> <p>3. (a) As there was no evidence of any misrepresentation as to any material fact, the court could do no more for defendant than to give the instructions regarding fraudulent misrepresentations as to immaterial facts.</p> <p>(b) But even these instructions were more favorable to appellant than it could ask, because, under the rule laid down in Mut. Life Ins. Co. of New York v. Thompson, 94 Ky., 253, Knickerbocker L. Ins. Co. v. Foley, 105 TJ. S., 350 (26 L. Ed., 1055), and Am. & Eng. Enc. of Law, vol. 2, page 296 (old edition), there was no evidence of any breach of truth or promise that the law would notice; and there was not even a suggestion of a scintilla of evidence showing any fraudulent or improper motive in the mind of Gatlin when he made the answers that are complained of. In answering the question whether or not he had ever used intoxicants, he said, “Yes.” As to whether or not he had ever used same to excess, he said, “No.” (That referred to a habit of excess.) As to his then existing practice, he said, “Yes, whiskey, three drinks a month.” These were the only answers here complained of. There is not only no evidence of fraudulent intention in these answers, but there is absolutely no evidence that they were even incorrect. These answers, according to Justice Fields, in the Knickerbocker L. Ins. Co. case, supra, and other authorities, refer to habits, and must be so taken.</p> <p>(c) But in order to be fraudulent in law, a statement must be material, and known by the person making it to be false. (Black’s Law Dictionary; 1 Story’s Equity Jurisdiction, sec. 187; Phoenix Ins. Co. v. Coomes, 14 Ky. Law Rep., 603; Ball v. Lively, 4 Dana, 369; Campbell v. Hillman, 15 B. M., 517; Warren v. Baker, 2 Duvall, 155.)</p> <p>Fraud can never be imputed where opinion, conclusion, and deduction constitute the essential ground for the imputation. (Fisher v. May, 2 Bibb,' 450.)</p> <p>(d) And, after all, the instructions really treated the statements of the applicant as warranties, and required the jury to believe from the evidence that these statements were true before they could find for plaintiff. The instructions told the jury to find for plaintiff if they believed from the evidence that these answers “were honestly made, without any intention to deceive or fraud defendant, and that said answers were substantially true,” and to find for defendant if they believed from the evidence that “either or any of said answers to said questions were in fact untrue, and were made with the fraudulent intent to deceive,” etc. The jury found for plaintiff, and thus found that said answers, whether material or immaterial, were true. Appellant can ask for no more.</p> <p>4. (a) Alteration of a written contract will not invalidate the writing, unless it be in a material part and change the meaning find legal effect of the writing, the old rigid rule as to alternations having been changed and distinctly modified. (Tranter v. Hibberd, 21 Ky. Law Rep., 1710; Duker v. Franz, 70 Ky., 275; Jones v. Shelbyville, etc., Ips. Co., 1 Met., 64; Phillips v. Breck, 79 Ky., 467; Thacker v. Booth, 9 Ky. Law Rep., 745; Woodworth v. Bank of America, 10 Am. Dec., 267, [note]; Mersman v. Werges, 112 U. S., 139, [28 L. Ed., 641].)</p> <p>(b) A change in an insurance policy, in order to invalidate same, must be such as to increase the risk. (Pheonix Ins. Co. v. Mc-Kernan, 100 Ky., 97; Cyclopedia of Law and Procedure, vol. 2, p. 194; 1 Joyce on Insurance, secs. 265-266.)</p> <p>The insertion of the words, “Geo. O. Gatlin, son,” into the writing can not be held to have increased the risk. He was a son of ..he insured, and the law presumes he was interested in prolonging the life of —s parent, or it would deny him an insurable interest in that life. (Bayes v. Adams, 81 Ky., 368; Throckmorton, &c., v, Nat. Mut. Ben. Ass’n, 4 Ky. Law Rep., 61; Warnock v. Davis [U. S. Supreme Ct.], 4 Ky. Law Rep., 67; Equitable Life Ins. Co. v. Haxelwood, 7 L. R. A., 217; 11 Am. & Eng. Enc. of Law [old Ed.], 319.)</p> <p>Change of beneficiary in life insurance policy is not material, as in fire insurance, because in the former the beneficiary must be interested in preserving the thing insured, while in the latter the owner of the thing insured may be careless of it, or destroy it purposely. Naturally, a man and his children desire to preserve his life. • 4</p> <p>(c) Not a case has been found on record holding that such a change of the beneficiary in a life insurance policy rendered the policy void.</p> <p>(d) An alteration by one not interested therein does not render the instrument void. (Lee v. Alexander, 9 B. M., 26; Lisle v. Rogers, 18 B. M., 539; Terry v. Haxelwood, 1 Duv., 109; Blakey v. Johnson, 13 Bush, 199; Lawson’s Rights and Remedies, sec. 247.0.)</p> <p>It is not pretended that Gray A. Gatlin, who was first named as beneficiary, or her brother, Geo. O. Gatlin, whose name was alleged to have been added, had even any knowledge of such alteration.</p> <p>(e) A special provision of the policy stipulated that a change of beneficiary might be made, and it is claimed merely that the change was not made in the particular manner prescribed. It is not even hinted that the company would have objected, or that it had any right to object to Geo. O. Gatlin as a beneficiary.</p> <p>(f) And at last Geo. O. Gatlin was in a sense from the first a beneficiary of the policy, as it was to go to the estate of the insured in the event Gray A. Gatlin should die before her father; and this change merely made the interest of the son more direct. ■ 5, Admitting the change was material, under the proof it was properly submitted to the jury, and their verdict must stand as it was given, for plaintiff.</p> <p>6. If it be admitted that the language of counsel for plaintifi was improper — which is denied — the court rebuked counsel and properly admonished the jury. Furthermore, counsel for defendant had the closing argument, and what was said could not- have changed the minds of the jury. The rebuke of the plaintiff’s counsel by the court would cause what counsel said to benefit defendant rather than plaintiff; and as counsel for defendant had an-opportunity in the closing argument to correct any erroneous statement and comment upon what occured, the incident was, upon the whole, advantageous to defendant.</p>

<p>Case 37 — PROSECUTION OF W. P. BRIGHT, INDICTED FOR MANSLAUGHTER.</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. We submit that the wife of the dead man, over appellant’s objection, was permitted to state to the jury that her husband, James Stayton, said to her: “Perry and Will have killed me.” This statement was made some little time after the fight, and we think proves no fact and is simply a conclusion of decedent, and was highly prejudicial to appellant.</p> <p>2. The evidence shows that the fight was brought and pushed by deceased with such violence that appellant’s escape with his own life required 'him to do the acts that resulted in the death of Stayton.</p> <p>1. The test of the competency of a child’s testimony • is his ability to realize the motive and effect of an oath. It is a matter of discretion with the trial court, and it is for only a great abuse of this discretion that the appellate court will reverse.</p> <p>2. The wife of the dead mtan was competent to testify as to the dying declarations of her husband. (Arnett v. Commonwealth, 114 Ky„ 593.)</p> <p>3. There is nothing in the record to show that one of the jurors was not a housekeeper.</p> <p>4. There is nothing to show the verdict was made by lot.</p> <p>5. There is no rule in our practice requiring the plaintiff to read his cross-examination of witnesses who gave depositions for defendant.</p> <p>6. On the whole case we submit that the defendant had a fair and impartial trial, and there was no error in the admission or rejection of testimony which was prejudicial to the rights of appellant.</p>

<p>Case 38. — 'PROCEEDINGS BY T. B. PORTER’S EXECUTOR AND OTHERS FOR A SETTLEMENT OF HIS ESTATE AND CONSTRUCTION OF HIS WILL.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>T. J. Nunn, Circuit Judge.</p> <p>Fiom the judgment Murris Porter appeals.</p> <p>SYNOPSIS.</p> <p>1. Appellant’s only remedy is by appeal to this court as all of the errors complained of appear on the record. (Ogden v. Stephens, 98 Ky., 564; sec. 518, Civil Code.)</p> <p>2. The judgment is erroneous because it does not name the day on which tbe commissioners should meet upon the lands described in tbe petition and judgment to divide said lands contrary to tbe mandatory provisions in sub-sec. 5. sec. 499 of tbe Civil Code of Prac.</p> <p>3. Although the defendants were infants, no proof was taken to support the allegation of plaintiff’s petition as required by sub-sec. 1 of sec. 126 of tbe Civil Code. (Pinzers v. Nevin, 13 Ky. Law Rep., 773-775.)</p> <p>4. The submission of this cause for trial over the objections of the infant appellant and immediately after the filing of his answer was erroneous. (Sec. 364, Civil Code; Smith v. Ferguson, 3 Met., 424.)</p> <p>5. The report of the commissioners filed herein shows on its face a gross injustice has been done this appellant.</p>

<p>Case 39. — PROCEEDING BY PRANK A. LUCAS POR A MANDAMUS AGAINST S..W. HAGER, AUDITOR, TO PREVENT HIS REMOVAL AS AUDITOR’S AGENT.</p> <p>Appeal from Franklin Circuit Court.</p> <p>John D. Carroll, Special Judge.</p> <p>Judgment for plaintiff, and defendant appeals.</p> <p>^ The only question seriously involved in this issue is the right of the appellant as auditor to remove Lucas from office as revenue agent for the State at large, and the construction of the act of 1902, under which Lucas was appointed upon the three great principles of the intention of the Legislature, the power of the Legislature and public policy. The first two questions may logically be argued together.</p> <p>ONE AND TWO.</p> <p>THE INTENTION AND POWER OF THE LEGISLATURE.</p> <p>Sec. 4258, Ky. Stats. (1903), reads as follows:</p> <p>“The auditor of public accounts may appoint a revenue agent in each county of this Commonwealth, and may in addition appoint not exceeding four revenue agents from the State at large, whose term of office shall be for four years.”</p> <p>(a.) Sec. 4260 makes it the duty of revenue agents to list for taxation any property which may have been omitted to have been listed by the assessor in the county for which he is appointed, and the same duty is imposed upon the revenue agents for the State at large except their jurisdiction extends to any county, city or town in the Commonwealth.</p> <p>(b.) We also find that in sec. 4267 it is made the special duty of the auditor to “diligently prosecute the collection of all back taxes, license fees, etc.,” and it may be stated right here that it is for just such faithful performance of duties like this one, as imposed by sec. 4267, that the auditor is required to execute his bond to the Commonwealth of Kentucky. It will thus be seen that the revenue agent for the State at large has the same duties imposed upon him as first, county auditor’s agents; second, sheriffs; and thirdly, the auditor.</p> <p>(c.) It is our contention that the stipulation in sec. 4258, that the term of office of revenue agents for the State at large shall be four years, is merely directory in its nature, and was made to carry out the consistency of the relative positions of auditor and his subordinate revenue agent, because the term of office of the auditor is four years, and was made to cure the defect which has been cured in regard to other subordinates by sec. 140, which expressly states that the term of office of assistant auditor and clerks in the auditor’s office shall expire with the expiration of the term of the auditor.</p> <p>(d.) When it becomes the province of a court to construe a statute, the prime and fundamental thing to be arrived at is first the intention of the Legislature, and after such intention is arrived at, then it becomes the province of the court to modify such statute to come within the purview of the intention, and .the Court of Appeals of this State has even gone so far as to supply defects that were entirely omitted by the Legislature where it is concluded that such was the intention.</p> <p>3. PUBLIC POLICY.</p> <p>(a.) It strikes us that the intimacy existing between the auditor and the revenue agent is so close, and the agent is so pre-eminently a member of the auditor’s official family, that there is bound to appear in this case a strong element of public policy.</p> <p>(b.) If the revenue agent is a separate and distinct office from that of auditor, and in nowise under his supervision and control, and with no penalties attached to the non-performance of 'duties, then the auditor is placed in the embarrassing attitude of having duties imposed upon him which he cannot perform except at the mere whim and caprice of another, and yet under his oath and bond he is responsible for such dereliction of duty.</p> <p>LIST OF AUTHORITIES.</p> <p>Ky. Stats., secs. 4258, 4260, 4241, 4267, 140; Hoke v. Commonwealth, 3 Ky. Law Rep., 407; Hoke v. Ritchie, 37 S. W., 26G; Hoke v. Ritchie, 38 S. W., 132; Tansey v. Striger, 76 S. W., 537; O’Brien v. City of Owensboro, 24 Ky. Law Rep., part 1, 469; Chinn v. Shackleford, 78 S. W., 908; Ex Parte Duncan v. Hennen, 13 Peters, 230; Offet v. Commonwealth, 10 Bush, 212; Dunlap v. Kennedy, 10 Bush, 539; Dubuc v. Mass, 92 Amer. Dec., 526; U. S. v. Avery, Fed. Cases, 14481; Kennan v. Perry, 24 Texas, 253; State & Di Carlo v, Abbot, 41 Ua. Ann,, 1096.</p> <p>1. The questions involved upon this appeal are few and simple. No question is made ‘hut that the bond tendered was sufficient, and in proper form. No question is made but that a suit asking for a writ of mlandamus is the proper remedy in the case. If the auditor had the right to remove the appellee from office, he had the right, after .having done so, and it was his duty to refuse to accept the renewal of the bond herein. If he did not have this right, then it was the duty of the lower court to award the said writ of mandamus and this court will sustain the circuit court therein.</p> <p>2. 'The appellant makes no question but that appellee has per-' formed the duties of his office in a diligent and proper manner, and there is no charge of fault of any kind made against him. The only question then, in this case, is whether the auditor, under the law, has the power, arbitrarily and without fault on the part of the revenue agent, and without notice to him, of opportunity to be heard, to remove the revenue agent from office before the expiration of his term.</p> <p>3. Sec. 4250 Ky. Stats., 1903, under which the appellee was appointed, is as follows:</p> <p>“The auditor of public accounts may appoint a revenue agent in each county of this Commonwealth, and may in addition appoint not exceeding four revenue agents from the State at large, whose term of office shall be for four years.”</p> <p>4. Sec. 93 of the present Constitution provides:</p> <p>“Inferior State officers not specifically provided for under this Constitution, may be appointed or elected, in such a manner as may be prescribed by law, for a term not exceeding four years, or until their successors are appointed or elected and qualified.”</p> <p>5. The Legislature, therefore, in creating the office of revenue agent for the State at large, and giving to it a term of office, acted within the limitations prescribed by the Constitution, and no question can be raised but they have the right if they saw fit, to give to this office a term of four years. They have used the very simplest and plainest language possible to show that it was their intention to give to this office such a term.</p> <p>6. “Office is defined to be a right to exercise a public or private employment and to make the fees and emoluments thereunto belonging, public, as those of magistrates, or private, as baliffs, receiver and the like.” (2 Bi. Comm., 36.)</p> <p>“An employment on behalf of the government or station of public trust, not merely transient, occasional or incidental.” (20 Johns., 493.)</p> <p>7. THE INTENTION AND POWER OF THE LEGISLATURE.</p> <p>(a.) It may be contended that the auditor can not work through agents whom he did not appoint, and of whom he does not approve. The answer to this is that he need not do so, because the law gives him full authority to bring actions to recover delinquent taxes without the intervention of a revenue agent.</p> <p>(b.) But when we come to the matter of suits to assess omitted property, an entirely different state of the case is presented. This character of suit the auditor cau not bring; only a revenue agent can bring them, and in bringing them he is entirely free from all control of the auditor.</p> <p>(c.) We desire to flatly deny the allegation made in the brief of appellant that the auditor is responsible upon his official bond for the acts of a revenue agent. A revenue agent gives his bond to the Commonwealth and so does the auditor. Each is responsible to the Commonwealth upon his own bond, for his own doings and misdoings.</p> <p>8. PUBLIC, POLICY.</p> <p>Boiled down, the reasons urged why this statute as against public policy amount to no more than this, that it does not meet with the personal approval of the auditor for appellee to be a revenue agent, and that personally he would prefer someone else. But because a law does not meet with the approval of every one is no reason why it is void as against public policy.</p> <p>AUTHORITIES FOR APPELLEE.</p> <p>Sec. 4258 Ky. Stats, of, 1903;. sec. 1, art. 15, Revenue Act of 1902; sec. 93, Constitution of Kentucky; Page v. Hardin, 8 B. M., 648; Todd, Mayor, &c., v. Dunlap, &e., 18 Ky. Law Rep., 329; Lease v. Freeborn, 52 Kans., 750; South v. Sinking Fund Commissioners, 86 Ky., 186; Hoke v. Commonwealth, 3 Ky. Law Rep., 407; Commonwealth v. Bank of Commerce, 26 Ky. Law Rep., 407;Hoke v. Richey, 18 Ky. Law Rep., 546; Tansey v. Stringer, 25 Ky. Law Rep., 916; Ex Parte Hennen, 13 Peters, 230; Avery v. Inhabitants, &c., 3 Mass., 177; Hoke v. Henderson, 4 Devereux (N. C.), 1.</p>

<p>Ordinances — Validity—'Adoption—Publication—Approval by Mayor —Record—Physicians—Prescriptions For Liquors — Good Faith —Appeals—Jurisdiction.</p> <p>1. Ordinances — Validity — Adoption — Publication — Approval by Mayor — Under Kentucky Statutes, sec. 3638, part of charter of cities of the fourth class, which provides that “an ordinance shall be signed by. the mayor, attested by the clerk, and published at least once in a newspaper in said city, * * * and shall be in force from and after the publication thereof,” it appearing that the mayor of cities of the fourth class has no veto power, the council is the legislative body of the city, and an ordinance of such city is valid when passed by a vote of at least three members of the council and published, although it may not have been signed or approved by the mayor.</p> <p>2. Making up Record of Council — Tardiness of Clerk — An ordinance of a city of the fourth class takes effect upon its passage by the votes of at least three members- of the council and its publication, and it is not material at what date it was made up and regularly approved by the council. The will of the council can not be defeated by the tardiness of the clerk in making out the record on the books of the city council.</p> <p>3. Physicians — Prescriptions for Liquors — Only as a Medicine— Penalty — Good Faith — An ordinance of a city of the fourth class making it unlawful for any physician to make or give a prescription for any spirituous, vinous- or malt liquors in said city to enable him to purchase same, unless such person is sick, or such liquor is required as a medicine, and fixing a fine of from $25 to $100 for its violation, is not void because it undertakes to punish the physician for giving a prescription where he makes an honest mistake as to the whisky being required as a medicine. The rule is that a statute will not make an act criminal unless the offender’s intent concurred with his act, and whether he acted in good faith or not is a question for the jury.</p> <p>4. Jurisdiction — The criminal jurisdiction of the Court of Appeals is governed by the Criminal Code of Practice. An appeal may be taken by the Commonwealth if a fine exceeding $50 might have been inflicted.</p>

<p>Ordinances — Police Courts — Second Class Cities — Jurisdiction— Labor Penalty — Good Behavior — Insane Persons, &c. — .Trial by Jury.</p> <p>1. Municipal Corporations — Police Courts — 'Second Class Cities— Jurisdiction — Sec. 142 of the Constitution provides “that the jurisdiction of justices of the peace shall be co-extensive with the county, and equal and uniform throughout the State.” Sec. 143 provides “that a police court may be established in each city and town in this State, * * * with such criminal jurisdiction as justices of the peace have.” Sec. 1093, Ky. Stats., provides “that justices shall have jurisdiction exclusive of circuit courts in all penal actions the punishment of which is limited .to a fine not exceeding $20, and concurrent with circuit courts of all penal cases the punishment of which is limited to a fine not exceeding $100, or imprisonment not exceeding fifty days or both.” It will thus be seen that the Constitution does not place any limitation upon the jurisdiction that may be granted to justices of the peace by the general assembly, but does limit the jurisdiction that may be given police and city courts to-whatever jurisdiction has been given the justice’s courts, and as the general assembly has seen proper to limit the jurisdiction of justices to offenses where the ■ penalty does not exceed $100 fine and fifty -days in ■ jail, therefore, the jurisdiction of police and city courts is within the same limits, and section 3148, and that part of section 3147, Kentucky Statutes', which gives the police and city courts jurisdiction in excess of the penalty stated, are void, being in violation of the State Constitution.</p> <p>2. Labor Penalty — Good Behavior — Insane Persons, &c. — The language in section 3151, Kentucky Statutes: "Persons committed by said (police) court for default of surety for good behavior or to keep the peace and all others whom the city is bound to maintain when committed to jail,” does not refer to persons convicted of crime, but includes idiots, insane persons and inebriates, and as to these persons, not in jail because of their conviction of an offense, they can not be compelled to labor, for such would be involuntary servitude and in violation of both State and Federal Constitutions.</p> <p>3. Authority of Cities — Under sub-secs. 23 and 25 of sec. 3058, Ky. Stats., cities of the second class have full and complete power to enact any and all ordinances, and fix fines and penalties to maintain the peace, good government and general welfare of the city, the only limitation being that the penalties for a violation of the ordinances shall not be less than that imposed by the statute, and not .to exceed the jurisdiction of the police court as fixed by the statutes and Constitution, and not in conflict therewith. ' .</p> <p>4. Trial by Jury — So much of the charter of cities of the second class which deny a right to a trial by jury where the penalty is $25 or less, is not unconstitutional, and neither is it in violation of the State or Federal Constitutions' to inflict labor penalties on persons convicted of misdemeanors.</p>

<p>Case 42. — PROSECUTION AGAINST JARVIS & WILLIAMS FOR VIOLATING- LOCAL OPTION LAW.</p> <p>Appeal from Muhlenburg Circuit Court.</p> <p>W. P. Sandige, Circuit Judge.</p> <p>From a judgment sustaining a demurrer to the indictment the Commonwealth appeals.</p> <p>The indictment under consideration charges “the offense of unlawfully and wilfully selling b,y retail a beverage, liquid mixture or decoction, which produces intoxication, in territory in which the sale of spirituous, vinous or malt liquors is prohibited in accordance with the local option law, * * * did unlawfully and 'wilfully sell by retail to Z. T. Tate a beverage, liquid mixture or decoction, which causes or produces intoxication, in territory in which the sale of spirituous, vinous or malt liquors is now and was 'at the time of said 'sale prohibited in accordance with the local option law.</p> <p>AUTHORITIES.</p> <p>Sec. 131, Criminal Code.</p> <p>POINTS AND ' AUTHORITIES CITED.</p> <p>Or. Code, sec. 124; Ky. Stats. (1902), sec. 2557b.</p> <p>1. Indictment defective, because it does not charge “that the act or acts charged were committed in the territory where the said act was in force.” (Crigler, &c. v. Commonwealth, 83 S. W., 587.)</p> <p>2. Also because it fails to charge the acts cumulatively, and uses the disjunctive “or” instead of .the copulative “and.” (Jones v. ComtaOnwealth, 47 S. W., 328; Raubold v. Commonwealth, 63 S. W., 781.)</p> <p>3. Also because the indictment in 'its charge is- not direct and certain as to the offense committed, and its failure to state in its charge that the local option law was in force' in the territory named at the time of said sale. (Brooks v. Commonwealth, 32 S. W., 403.)</p>

<p>Mines and Minerals — Option—Leasing Contract — Prospecting— Deed ■ — • Specific Performance — Consideration —Validity—E'mforcement — Unilateral Agreements.</p> <p>1. Option — Leasing Contract — Prospecting for Minerals, Coal, Gas, &e. — Deed—When Due- — Construction of Contract — B., in consideration of $1, leased to F. & Co. the right to go on his land and prospect for oil, coal, gas and all ether minerals, the said F. & Co. to have four mtonths from, date of contract to determine whether they would accept the grant, and if accepted to so notify B. in writing, and to have two years from the date of acceptance to prospect and locate said minerals, and as compensation to give to B. 10 per cent, of the product in the dump at the mine. F. & Co. gave notice of acceptance, sunk some wells on adjacent lands, finding some oil and gas, and within two years applied to B. to“ make a deed of conveyance to said mineral rights, which B. refused. Held — That the contract when accepted bound the lessees to, within the two years- therefrom, explore the land by actually sinking a well or wells upon it. If oil or gas or coal was found therein in paying quantities then the lessees were bound to diligently work and operate same so as to- bring the product to a present market and- so as to- promptly yield to the lessor his royalty; that unless the lessees did so actually develop the land in question and in good faith and diligence operate it, the lease should be deemed abandoned, and in no event were the lessees entitled to a deed provided for by the option, until, as the result of such actual development within the life of the contract, gas, oil or coal was found in paying quantities.</p> <p>2. Contracts — Mutuality—Consideration—Validity—Enforcement—Such contracts- lack the mutuality essential to their validity. A unilateral executory contract is, in law, nudum pactum, and is unenforcible. Where it is left to one of the parties to an agreement to choose whether he will proceed or abandon it, neither can specifically enforce its execution in equity, nor is a recited consideration of $1 sufficient to- uphold an action for the specific enforcement of a contract otherwise unsupported by consideration.</p>

<p>Sheriffs — Resignation—Sureties—Authority to Nominate Collector —'Where the sheriff of a county resigns his office the s-ure- ' ties on his bond for the collection of taxes are not authorized to nominate and require the county judge to appoint a person to collect such taxes in the place of the sheriff who has resigned; such right applies where the sheriff dies, but not where he resigns his office.</p>

<p>Case 45. — ACTION BY DEE LANHAM AGAINST THE LOUISVILLE & NASHVILE R. R. CO. FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Marion Circuit Court.</p> <p>Chas. Patteson, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>1. In this action for damages the defendant relied upon a receipt, which it produced to the plaintiff while on the stand, for $100.00, and purported to be a settlement in full for the injury received, which was admitted by the court over plaintiff’s objection. No one proved it was signed by John MicChord or plaintiff, or any one else, or that plaintiff made his mark to it, and we insist that its admission as evidence was clearly error.</p> <p>2. This paper is not a contract, it does not purport to be a contract. It is a receipt, which a more intelligent man than plaintiff might not hesitate to sign under the circumstances.</p> <p>3. It is claimed that the petition is defective because it failed to allege that plaintiff could not procure other medical treatment, and thereby prevent or lessen his sufferings. We submit that this was not proper to be pleaded by the plaintiff; that the petition states the contract, its breach and consequent damage, which is sufficient.</p> <p>4. We submit that the peremptory instruction given by the court to tne jury to find for the defendant was error.</p> <p>POINTS AND AUTHORITIES DISCUSSED.</p> <p>1. The petition was defective in failing to allege that the appellant attempted to get other medical attention, but was unable to do so, and the trial court erred in overruling appellee’s demurrer to the petition. (John C. Lewis Co. v. Scott, 95 Ky., 484; Illinois Central R. R. Co. v. Gheen, 112 Ky., 695; Cain, By, etc. v. L. & N. R. R. Co., —■—, decided January 27, 1905, 84 S. W., 584.)</p> <p>2. There is no averment that the contract which appellant executed to appellee was obtained by fraud, accident, mistake or duress. Therefore, cotemiporaneous parol testimony can not be heard to vary the terms of the written contract entered into between the parties. (Castleman v. Southern Mutual Life Ins. Co., 14 Bush, 197; Farmer v. Gregory & Stagg, 78 Ky., 475; Crane, &c., v. Williamson, &c., Ill Ky., 276; Pierson v. Hooker, 3 Johns, 68; 2d Parsons on Contract, 9th Ed., 715; Kirchner v. New Home Sewing Machine Co., 31 N. E., 1104; Harmon v. Thompson, 84 S. W., 569, 27 Ky. Law Rep., 781, decided January 25, 1905.)</p> <p>4. There being no allegation of fraud, accident, mistake or duress, the construction of the contract was a question of law for the court, and there was no error in the court’s deciding this question, as it in effect did do in giving to the jury a peremptory instruction to find for the appellee, (Colston v. Chenault, 20 Ky, Law Rep., 226.)</p> <p>5. If there were no other reason why the peremptory instruction was properly given it was proper to give it because the petition stated no cause of action, the court’s attention on the motion for the peremptory instruction having been called to the condition of the pleadings. (L. & N. R. Co. v. Copas, 95 Ky., 460; L. & N. R. Co. v. Schweitzer’s Adm’r, 14 Ky. Law Rep., 855; White, Jr.’s, Adnr’r v. L. & N. R. Co., 15 Ky. Law Rep., 49; Gore v. I. C. R. C'o., 17 Ky. Law Rep., 799; L. & N. R. Co. v. Mayfield, 18 Ky. Law Rep., 224; I. C. R. Co. v. Nall, 21 Ky. Law Rep., 281; Brooks v. L. & N. R. Co., 24 Ky. Law Rep., 1318.)</p>

<p>Supersedeas Bond — Execution—Filing Transcript — Supersedeas— When it May Issue — Appeal Pending — Effect—'Where a supersedeas bond was executed before the clerk of the circuit court within the time allowed for filing the transcript of the record in the office of the clerk of the Court of Appeals, as provided.by sec. 738, Civil Code, the appeal did not thereby abate, but was still pending in the Court of Appeals until dismissed by said court, and it was the right and duty of •the clerk of the circuit court to issue the supersedeas at any time before the dismissal of the appeal, and as the appeal was then pending the supersedeas was not void.</p>

<p>Robbery — Indictment — Validity — Previous Convictions — Allegations — Judgments In Other States — .Cognizance of Foreign Statutes.</p> <p>1. Robbery — Indictment—Validity—An indictment which charges that the defendant, William Finn, alias Thomas Lowry, did unlawfully, feloniously and forcibly take, steal and carry away one diamond pin, the more exact description of same is unknown to the grand jury, then and there the personal property of W. R. Varían, and of the value of $35 and more, all of which was1 so feloniously taken, stolen, and carried away from the person of said W. R. Varían, without his consent and against his will, by force and violence and putting •him, the «aid W. R. Varian, in fear of some immediate danger to hi® person, &c., is a good indictment for robbery.</p> <p>2. Previous Convictions — Allegations—A second count in the Indictment which charges that on the 19th day of July, 1900, the said William Finn, alias Walter Harvey, was convicted of burglary in the State of Wisconsin, and on the 28th day of ■February, he, the said William Finn, alias Thos. Lowry, alias Harry Ramsey, was convicted of robbery in the State of Louisiana, is not good in that it is not direct and certain as required by sec. 124, Criminal Code, as regards not only the party charged and the offense charged, but the county in which the offense was committed, as well as the particular circumstances, of the offense charged in so far as they are necessary to constitute a complete offense.</p> <p>3. Judgments of Other States — Pleading—Necessity—Good pleading in an indictment where a judgment of a court of another State is relied on, requires that the laws of the State under ■which the judgment was rendered he pleaded so far as to show the jurisdiction of the court to render the judgment relied on, and that the trial court in this State may know •that the convictions were for felonies punishable by confinement in the penitentiary.</p> <p>4. Cognizance of Statutes — Courts of this State do not take cognizance of the statutes and jurisdictions of courts of other States, unless pleaded, and they must be pleaded as other facts.</p>

<p>Case 48. — PROSECUTION AGAINST H. C. COMBS, COUNTY CLERK, FOR KNOWINGLY AND WILFULLY FAILING AND REFUSING TO HAVE A NOMINEE PLACED ON THE OFFICIAL BALLOT.</p> <p>Appeal from Owsley Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>From an instruction of the court to find the defendant not guilty the Commonwealth appeals.</p> <p>In the case at bar the appellee, H. C. Combs, the county clerk of Owsley county, was indicted in the Owsley Circuit Court, at its May term, 1903, charged with the crime of wilfully and knowingly refusing and failing to have the name of a candidate, printed upon the official election ballot.</p> <p>1. It will be noticed that the court would not allow the Commonwealth to prove that appellee was a candidate for county court clerk at the November election 1901.</p> <p>2. Nor would the court allow the Commonwealth to prove that H. C. Combs, appellee, was the same EL C. Combs, one of the plaintiffs in the case of W. J. Wilder, D. G. Wilson and H. C. Combs against L. F. Cole, J. T. Mainous, H. M. Herd and H. C. Combs, clerk; nor would the court allow the records of that case in evidence; nor would the .court allow proof that H. Ü. Combs was a candidate in the primary, and the result; nor would t-he court allow -the fact proven that Combs had a petition filed to get on the ballot, or how he got his name on the ballot; nor would the court allow proof that A. C. Hyden, H. C. Combs, D. G. Wilson were all canvassing in the county and denouncing the committee and the primary, and requesting the people to vote for them regardless of the fact that the other parties hdld certificates of nomination.</p> <p>3. .The court also rejected proof of the fact as to how Combs had the diagram of the ballot, and where all of the independent candidates were on that diagram, on October 21st, 1901, and refused to allow the .Commonwealth to prove that these suits were filed between the time appellee showed this, diagram and the time he saw witness immediately after the filing of these suits.</p> <p>• 4. It is insisted by appellant that all of this proof was competent, for the purpose of showing the common interest and purpose of appellee, A. ' C. Hyden, D. G. Wilson and W. J. Wilder • in suing out these various restraining orders, restraining appellee, os clerk, from having printed on the election ballot the name •of their opponents as the nominees of the Republican party, for said offices, and instead thereof having printed the names of appellee and his co-conspirators, A. C. Hyden, D. G. Wilson and W. X Wilder, and also A. M. Neeley, sheriff.</p> <p>5. We think that" the facts in this case failed to show that the appellee was acting in good faith, in obedience to the re- ' straining orders heretofore mentioned in this case, hut that said orders were simply used as a shift and device, therefore, we insist that the trial court erred in instructing the jury to find the defendant not guilty, and that in doing so he laid down a precedent if upheld by this court will enable .the county court clerk and designing persons to control an election their way by the use of restraining orders, a precedent that strikes at the very foundation of civil liberty.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec. 1591; Adams v. Roberts, 26 Ky. Law Rep., 1272.</p>

<p>Case 49. — ACTION BY JAMES' C. GREEN AGAINST D. , C. CHESTNUT FOR DAMAGES FOR CUTTING TIMBER—</p> <p>Appeal from Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>. Judgment for plaintiff. Defendant appeals.</p>

<p>Homicide — Defense—Insanity —* Instructions — Evidence — Letters Stowing Mjotive — Competency.</p> <p>1. Homicide — Defense—Insanity—Instructions*—Where the undisputed evidence stows -that -the defendant deliberately and without apparent cause shot and killed a young girl, with whom 'he w*as in love and wanted to mlarry, hut who had refused to marry him, an*d -also *at the same time mortally wounded his rival, who wias with the girl, the only defense being as to his sanity at -the time, t-he following instructions, given by the court, are held to be proper.</p> <p>“No. 7. The court further instructs the jury that the law presum.es every man sane until the cooitmry is -shown by -the ■evidence, *and before* the -defendant can* be execused on the grounds of insanity the jury must believe from tbe evidence that the defendant at the time of the killing was without sufficient reason to know what he was doing, or that, as the result of mental unsoundness, he had not then sufficient will power to govern his action by reason of some insane impulse which (he could not resist or control.</p> <p>“No. 8. The court further instructs the jury that although they may believe from the evidence that the defendant at the time of the killing of Emma Watkins was without sufficient power to govern his notion by reason of some impulse which he could not resist or control, yet if thpy further believe from the evidence that such lack of reason to know right from wrong, or such insufficient will power to govern his actions or to control his impulses, arose alone from voluntary drunkenness, but not from unsoundness of mind, they should not acquit the defendant on the grounds of insanity.”</p> <p>2.Evidence — Letters Showing Motive — Competency—Letters taken from the possession of defendant at the time of his arrest, which he admitted were given to him by the deceased, which tend to establish the cause of jealousy on his part, and tend to furnish a motive for the killing, are clearly admissible in evidence.</p>

<p>Case 51. — PROSECUTION AGAINST WILLIS MOUNT FOR MURDER</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Defendant convicted of manslaughter and appeals.</p> <p>1. The circuit- court erred to the prejudice of the substantial rights of the appellant by overruling the motion for a change of venue.</p> <p>(a) This court has heretofore decided that it would not dis>turb or reverse the judgment of the circuit court unless it had appeared that there had been an abuse of discretion, or where the evidence at the trial of the motion had been conflicting. 1 insist that an inspection of the evidence upon the motion shows that there was an abuse of discretion, and that there was no real conflict of evidence.</p> <p>2. W'e are fully aware of the numerous decisions of this court, as well as the provisions of the Code of Practice that errors arising under sec. 281 of the Code, upon challenge to the panel, and for cause, and upon motion for a new trial, shall not be subject to exception; but this court can reverse for errors in refusing to grant a change of venue, where the necessity is shown to exist, and these things show that the necessity did exist, and that by reason of its existence he has been prevented from obtaining a fair •trial.</p> <p>3. The trial court erred in overruling defendant’s motion for a continuance.</p> <p>(a) No objection was taken to the affidavit; the materiality of the evidence was admitted; also it was admitted that proper diligence had been used, and that the evidence could he obtained by the next term of the court, and the attorney for the Commonwealth refusing to consent tor the affidavit to be read as the deposition of Wm. Bishop.</p> <p>(bl The court announced that it would permit the stenographic notes taken on the former trial to be read as1 evidence of said Bishop, and if the defendant refused to consent thereto it would not permit the case to be continued, nor permit the affidavit to be read as the evidence of said Bishop, and the defendant still refused to consent to the reading, of said stenographic notes by the stenographer of the evidence of said Bishop. The court overruled the motion for a continuance and refused to allow the affidavit to be read as the evidence of said Bishop.</p> <p>4. The circuit court committed prejudicial errors in the admission of incompetent evidence.</p> <p>This was a flagrant outrage upon the rights of the appellant, and it is impossible to estimate the injurious effect it probably had against him in the minds of the jury. The law does not permit courts to speculate upon the probable consequence of such errors, and their commission entitles appellant to another, and it is devoutly to be hoped, a fair trial.</p> <p>5. Both the county attorney and Commonwealth’s attorney were guilty of gross misconduct in their argument to the jury, to which the defendant objected and excepted, and which was calculated to mislead the jury and induce them to bring in an erroneous verdict.</p> <p>AUTHORITIES CITED.</p> <p>1. On change of venue: Johnson v. Commonwealth, 82 Ky., 119-120; Bowman v. Commonwealth, 96 Ky., 14; Crockett v. Commonwealth, 100 Ky., 385; Draughn v. Commonwealth, 20 Ky. Law Rep., 102; Barnes v. Commonwealth, 22 Ky. Law Rep., 1802; Greer v. Commonwealth, 23 Ky. Law Rep., 489; Hasson v. Common wealth, 10 Ky. Law Rep., 1055-6.</p> <p>2. Continuance: Crim. Code of Prac., sec. 189; Ky. Stats., sec. 4643.</p> <p>3. Incompetent evidence: Champ v. Commonwealth, 2 Met., 23 and 24; Loving v. Commonwealth, 80 Ky., 510-11-12; Crittenden v. Commonwealth, 82 Ky., 165-6-7-8; Commonwealth v. Hourigan, 89 Ky., 312-13; Kennedy v. Commonwealth, 14 Bush, 357; Feltner v. Commonwealth, 23 Ky. Law Rep., 1110; Nicely v. Commonwealth, 22 Ky. Law Rep., 900; Saylor v. Commonwealth, 17 Ky. Law Rep., 959.</p> <p>4. Failure to admonish jury as to effect of discrediting evidence: Alford v. Commonwealth, 26 Ky. Law Rep., 154; Fueston v. Commonwealth, 91 Ky., 230; Jones v. Commonwealth, 20 Ky. Law Rep., 355; Collins v. Commonwealth, 23 Ky. Law Rep.,> 743; Mullins v. Commonwealth, 23 Ky. Law Rep., 2433; Ashcroft v. Commonwealth, 24 Ky. Law Rep., 488.</p> <p>5. Duties and misconduct of Commonwealth’s attorneys: Dilger v. Commonwealth, 88 Ky., 533; Baker v. Commonwealth, 20 Ky. Law' Rep., 1784-5; Cargill v. Commonwealth, 12 Ky. Law Rep., 151; Howard v. Commonwealth, 24 Ky. Law Rep., 1854; Gilbert v. Commonwealth, 21 Ky.. Law Rep., 545; Rhodes v. Commonwealth, 21 Ky. Law Rep., 1071; Powers v. Commonwealth, 26 Ky. Law Rep., 1113.</p> <p>il. The first two objections made by counsel for the appellant are the usual formal ones, to the effect that the verdict is against the law and the evidence. The court properly instructed the jury on the law of the case, and the jury were certainly justified in returning a verdict of guilty under the evidence. There was an abundance of evidence on which to support a verdict of guilty, and that being true this court will not take cognizance of this objection, nor will it for these reasons disturb the verdict of the lower court.</p> <p>2. The third objection wil} of course be considered on the entire xecord and bill of exceptions, our contention being that appellant was awarded a fair and impartial trial of this case.</p> <p>3. As to the contention that the jury were permitted to hear incompetent and’ illegal eviaence, we say that we have not for quite a while seen a record showing as little objectionable evidence. In fact there was little evidence objected to, and not in a single instance was there any objectionable evidence permitted to go to the jury, nor was thex'e any evidence withheld from the jury which should have been heard by them.</p> <p>4. The tenth ground is refusal to grant a change of veune on petition of the appellant. The proof is conflicting, such as it is, and we presume the trial judge did not abuse the discretion given him under the law. The tilling had taken place one year prior to the trial; there was no excitement at the time the trial was held; there had been a mistrial of the case, and while it is true that a number of .citizens in an unsatisfactory manner said he could not get a fair trial, as many more were of the opinion that he could. A jury was obtained without ordering a special venire.</p> <p>■ 5. The next ground relied on is the refusal of the court to grant a continuance; this is not tenable, as the affidavits of the defendant as to what the absent witnesses, Bugg and Walker, would testify were read on the trial of the case, and the testimony, as shown by stenographic notes taken on a former -trial of the case, of Will Bishop, were all read -to the jury as the evidence of the absent witnesses. It is presumed that the defendant gave substantially their testimony. He should not complain if he did imt.</p> <p>- 6. We contend that the objections made privately to the judge by counsel for appellant to the argument made by the Commonwealth attorney do not preserve any question for the Court of Appeals. (Farris v. Commonwealth, 14 Bush, 363.)</p> <p>7. In this case we admit that said argument was improper. The bill of evidence shows that appellant’s .attorney interrupted said Commonwealth’s attorney in the presence of the jury, and said: “Gentlemen, that is not argument, but abuse and vituperation,” and the remarks, if improper at all, had a tendency to perjudice the jury against t'he Commonwealth’s attorney instead of the appellant, taking what appellant’s attorney said to the jury in reply to same, but the court told the jury not to consider said remarks, that they were improper, and rebuked- the Commonwealth’s attorney in the presence of the jury for using said remarks. (Whitney v. Commonwealth, 24 Ky. Law Rep., 2524.)</p> <p>AUTHORITIES CITED.</p> <p>Pilger v. Commonwealth, 88 Ky., 550.</p>

<p>Case,52 — ACTION BETWEEN JOHN M. JONES AND OTHERS AND THE AMERICAN ASSOCIATION, INVOLVING CONSTRUCTION OF DEED.</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>From the judgment Jones, &e., appeal.</p> <p>1. In construing a deed the object to be arrived at is to ascertain the intention of the parties, and it is well settled deeds must be construed as to effectuate, if possible, the intention of the parties.</p> <p>2. The rule is that “the habendum” gives, way to the granting words when clearly contradictory to them, yet it should be resorted to equally with the other parts of the deed to arrive at the intention of the maker, which must govern. when ascertainable. (Clay v. Chenault, 10 Ky. Law Rep., 779; Henderson v. Mack, 82 Ky., 379.)</p> <p>3. The granting clause must control the habendum in case they are repugnant. (Henderson v. Mack, supra; Bad cliff, &c. v. Miarrs, 87 Ky., 26.) But there i® no repugnance here. The habendum simply incorporates an additional grant.</p> <p>4. Every word in a deed should, if possible, have its proper effect, and the court will, in construing a deed, punctuate the instrument so as to give effect to all the, words. (Churchill v. Reamer, &c., 8 Bush, 260.)</p> <p>5. All rules of construction favor that construction of any instrument which will give effect, sense and meaning to each and every part and clause of the instrument. (American & Eng. Ency., 2d Ed., vol. 17, pp. 17 and 18.)</p> <p>AUTHORITIES CITED.</p> <p>-Churchill v. Reamer, 8 Bush, 260; Am. & Eng. Ency., 2d Ed.. vol. 17, pp. 17 and 18; Cy-c. Law & Pro., vol. 13, 601; Henderson v. Mack, 82 Ky., 379; Clay v. Chenault, 10 Ky. Law Rep., 779; Ratcliff, &c. v. Marrs, 87 Ky., 26.</p> <p>POINTS AND AUTHORITIES.</p> <p>Í. It is essential to a valid deed that it should contain words which show clearly an intent to grant the maker’s interest or estate in the premises in question. (3 Washburn on Real Property, 620 (star page); Webb v. Mullins, 78 Ala., Ill; Hummelman v. Mount, 87 Ind., 178; MfcKinney v. Settles, 31 Mo., 571: Brown v. Mauler, 21 N. H., 528-53, Am. Dec., 223; Irwin v. Powell, 188 111., 107; Pierson v. Doe, 2 Ind., 123; Repp v. Lesher, 27 Ind., 360; Mississippi Agricultural Bank v. Rice, 4 How., 11 L. Ed., 949; Ryan v. Wilson, 9 Mich., 262.)</p> <p>2. Unless there are words of grant applicable thereto the title to land described in the habendum only will not pass. (3 Wash-burn Real Property, 643 (star page); Tiedmian Real Property, sec, 849; Manning y. Smith, 2 Conn., 289; Curdy v. Alpha, Coal. Mining Company, 3 Nev., 27; Bridge v. Willington, 1 Mass., 219.)</p> <p>8. Tlie court must give the words used their ordinary meaning. (11 American and Eng. Ency., 1st Eid., 515; Parkhurst v. Smith, Willes, 332; Addison on Contracts, 165.)</p> <p>4. “Coal banks” is. not equivalent to “coal seams.” (Webster’s International Dictionary, last Ed., under head of .the word bank; Barringer & Adams Law of Mines and Mining, LXXI.)</p>

<p>Land — Boundary — Conflicting Surveys — How Corrected — Where there are erroneous calls and an omitted line in a survey of land, they should he corrected by the plat, and the patent established. In ascertaining a boundary of a tract of land where there is an apparent lap of an adjoining tract, they should he corrected by the original plat, and patent established, that the intention of the parties in making the' survey may be effectuated;- and the mere mistakes of the officer in transcribing the field notes should not be allowed to frustrate this intention if there Is evidence by which they may correct it.</p>

<p>Office and Officer — Police Judge — Compensation—Change of During Term.</p> <p>1. Office and Officer — Police Judge — Compensation—Change of During Term — So much of the act of March 21, 1902, amending section 353, Kentucky Statutes, as provides that no allowance shall he made to any county judge or magistrate or police judge, or other officials authorized by law to hold examining courts, does not apply to such officials who were in office at the time of the passage of said act.</p> <p>2. Compensation — 'Change of During Term — Section 161 of the statutes provides that the compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office.</p>

<p>Guardians’ Bonds — County Judge — Accepting Insufficient Surety— Negligence — Liability of Judge on His Official Bond — 'How Ascertained — Mother of Ward — Allowance.</p> <p>1. Guardians’ Bonds — County Judge — Accepting Insufficient Surety —'Negligence—Liability of Judge on His Official Bond — Where a county judge accepts as surety on a guardian’s bond of an infant a person he knows to be insufficient as surety under the statute, or fails to exercise reasonable diligence to inform himiself and accepts an insolvent surety, he is liable if loss occurs, and the measure of his liability is whatever judgment the ward is entitled to against his guardian.</p> <p>2. How Ascertained — To ascertain such deficiency the guardian should be charged with any balance of his ward’s money remaining in his hands at the end of a year which ought to have been invested or loaned out, with interest upon interest in biennial rests during the time he so held it without investment.</p> <p>3. Mother of Ward — Allowances—Where the mother of an infant ■is unable to support him from her own small estate she should be allowed a reasonable sum for his maintenance during his years of helpless infancy, but should not be allowed to charge where his labor for her was equal to the value of his maintenance.</p> <p>MDDIFIED OPINION.</p> <p>4. The test of the suflBlciency of a surety on a guardian’s bond is whether, being a resident of the State, he is solvent and has enough property liable for debts to pay the liability assumed to the ward, in addition to the surety’s other liabilities:</p> <p>5. The county judge’s liability to the ward in the acceptance of . sureties on the bond of a guardian is measured by the exercise of due care to determine the solvency of the sureties accepted by him. on such bond, and accepts insufficient surety without exercising such care.</p>

<p>Office and Officers — Ordinances — City Jailer — -Salary—Deputy— Duties.</p> <p>1. Ordinances — City Jailor — Salary—-Deputy—Under1 Ky. Stats., sec. 3154, -providing for -the election of a city jailer by the voters of cities of the second clas-s, and fixing his compensation at not less- than $1,500, n-or more than $2,500 per annum, and allowing him a deputy jailer, an ordinance of a second class city fixing the salary of the city jailer at $1,320 per annum in full of all payments for cooks or other help which the city jailer may see fit to employ, is invalid to the extent that it allows him less than $1,500 per annum, and denies him a deputy jailer.</p> <p>2.Janitor of City Hall — Duties of City Jailer — An ordinance of a second class city which provides that the jailer shall perform the duties of janitor of the city hall and the building adjacent thereto, in which is located the offices of the city engineer and the city street inspector, is valid under sec-3145, Ky. Stats., which provides that the jailer “shall perform such duties as the general council may by ordinance prescribe.”</p>

<p>Life Insurance — Default—Paid-up Policy — Demand—Limitation— S', took out a life policy for $5,000 in appellant company on the twenty-payment plan, payable to his wife, the annual premium being $203.90, on which he paid nine annual payments and defaulted, and died four years and eleven days after making the first default. The policy under its terms gave the insured after making three annual payments, the right to surrender his policy and demand a paid-up policy within twelve months after making default, which insured failed to obtain. The beneficiary within five years after the first default demanded that such paid-up policy be issued to her for $2,150, which appellant refused and offered her the “legal reserve,” amounting to $1,190, which she refused. Held — That she is entitled to recover the value of the paid-up policy, $2,150, as though it had been applied for by the insured within twelve months after the first default in the payment of the premium.</p>

<p>.Fiscal Courts' — Appropriations—Appeals to Circuit Court — Bill oí Exceptions — Jurisdiction — Authority Over Assessments — ! County Assessor. <</p> <p>1. Fiscal Courts — Appropriations'—Appeal to Circuit Court — Bill of Exceptions — Under sections 724, 731 of the Civil Code, regulating appeals from fiscal courts to the circuit count, such cases are to be tried anew when appealed to- the circuit court -as if no judgment had been rendered, and no bill of exceptions is necessary.</p> <p>2. Jurisdiction — -Authority Over Assessments- — County Assessor— The fiscal court id one of limited jurisdiction and- authority, and; has no power to make an -assessment of the property of th-e county for taxation, and has no control over the- county assessor, and such court has- no authority to employ a surveyor or to purchase plats- of land made by such surveyor ■in order to enable the county assessor to fix the- boundary of lands- to be assessed for taxation in said- county.</p>

<p>Fire Insurance1 — Removing Hazard — Misrepresentation by Insured —'Knowledge of Agent — Sub-agent—Acts of Insured’s Tenant - — Ignorance of Insured — Increasing Risk — Restoring Conditions — Effect—Liability of Insurer.</p> <p>1. Fire Insurance — Increasing Hazard- — 'Misrepresemtion by Insured — Appellant had a policy on -a building in which baled rage were stored, which are extra hazardous, and allowed a rebate on the risk by reason of information given by Wood, the secretary of the insured, that the rags had been removed. The policy provided that "this entire policy shall be void if the insured shall conceal or misrepresent in writing, or other-i -wise, any material fact concerning the insurance or the subject matter thereof, or if -the hazard! be increased by any means within the control or knowledge of insured.” This information, though false, was believed by the informer to be true. He did not profess to have any personal knowledge as to the removal of the rags, but upon inquiry of the insurer informed the inquirer of his course in learning whether the ;rags had been removed, which answer he believed to be true. Held — That such answer was not a concealment or misrepresentation.</p> <p>2. Knowledge of Agent — Sub-agent—If Wood, the agent of insured, knew that rags were stored in the building and concealed it from the insurer, such a fact would have been binding on the 'insured, but the knowledge of Wood’s agent, who' was not the agent of Wood’s principal, is not imputable to the latter.</p> <p>3. Acts of Insured’s Tenant — Ignorance of Insured — The fact that the rags were stored in the building by O’Brien, who was the tenant of insured, although in violation to the tenant’s rightful use of the premises, does not affect the policy if the insured was ignorant of it, although it was- a matter which he might have controlled had he known it, or although he knew of it, yet if it was a thing beyond his control the policy is not affected by it.</p> <p>4. Increasing Bisk — Restoring Conditions — Liability of Insurer— The fact that the risk was increased after the issuing of the policy, by the storing of rags without the consent of the insurer, yet if the extra hazardous condition was removed before there was a fire, then the condition remained precisely as when the contract was made, and while the liability of ■the insurer was suspended during the time of the existence of the condition, if the fire had then occurred, insurer would not have been liable. But if before loss, and during the time covered by the policy, tne originad condition was restored, the liability of the insured was restored also and it was thereafter liable for the loss.</p>

<p>Case 60. — ACTION BY THE COLUMBIA FINANCE AND TRUST CO. AGAINST J. W. RECCIUS & BRO.</p> <p>Appeal from Jefferson Circuit Court, Common Pleas Branch, Second Division.</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for plaintiff. Defendant appeals..</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A tenancy from month to month for an indefinite period of time, -such as the tenancy in the case at bar, is a tenancy at will within the meaning of sec. 2326, Ky. Stats., and a thirty days’ notice in writing is necessary to terminate it.</p> <p>2. If sec. 2326, Ky. Stats., does not apply to periodical tenancies of Indefinite duration, including tenancies from year to year and month to month, said section is useless and of no effect.</p> <p>AUTHORITIES.</p> <p>2 Minor, 172; Tiedeman on Real Property, 213; American & Eng. Ency. of Law, 2nd Ed., vol. 18, p. 203; Rev. Stats., chap. 56, art. 1, sees. 4 and 5; Ky. Stats., seca. 2295, 2296, 2326; Taylor on Landlord and Tenant, 1904 Ed., vol. 1, sec. 60; Taylor on Landlord and Tenant, 1904 Ed., vol. 2, sec. 467; Tennelly v. Ross, 14 Ky. Law Rep., 48; Wayman v. Taylor, 1 Dana, 527.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The traversor in a forcible detainer case .is required to file the record from the magistrate’s court within ten days, and it is essential to a filing that the tax should be paid. (Code, sec. 463; Ky. Stats., 4238; L. & N. R. R. Co. v. Hall, 24 Ky. Law Rep., 2491; Wayman v. Taylor, 1 Dana, 527; Tennelly v. Ross, 14 Ky. Law Rep., 48.)</p> <p>2. A tenancy from month to month i® not a tenancy at will under the Kentucky Statutes. It is terminable by thirty days’ notice, and this notice need1 not be in writing unless by contract a written notice is required. A notice in writing is not' required to terminate any kind of tenancy in Kentucky, except a tenancy at will, or by sufferance, or in proceedings to enforce the forfeiture of a lease. (Ky. Stats1., sec. 2326; Taylor on Landlord 'and Tenant, secs. 59 and 64; Ky. Stats., secs. 2295-2296; Rev. Stats., chap. 56, art. 1, sec. 4; Gen. Stats., chap. 66, art. 4, sec. 1; Rev. Stats., chap. 56, art. 1, sec. 5; Gen. Stats., chap. 66, art. 5, sec. 1; Mlendel v. Hall, 13 Bush, 232; Irvine v. Scott, 85 Ky., 262; 18 A. & E. Ency., 204, 396.)</p>

<p>Supersedeas: — Damages in Appellate Court — Error in Awarding— When Corrective — 'Upon the affirmance of a judgment by •t'his court which has been superseded, it is error in the clerk of this court to enter a judgment giving the appellee ten per cent, damages upon the amount superseded unless there was a personal judgment in the lower court against the appellant, which might be enforced by execution, and which was also superseded, or where the contest was over a fund in court, and the motion to correct the error may be made at a subsequent term of this court.</p>

<p>Landlord and Tenant — Repairing Leased Premises — Consent of Tenant — Damages—Liability of Landlord — Independent Contractor — Cross-petition of Landlord — Demurrer.</p> <p>1. Landlord and Tenant — Repairing Leased Premises — Consent of Tenant — Damages to Tenant — 'Liability of Landlord — Where the owner of a one-story building, which was leased for and occupied for printing a newspaper, employed an independent contractor, without the consent of the tenant, to "put a second story thereon, the tenant is entitled to recover from the landlord the damage done to type, stationery, etc., by reason of its exposure to the rain, dirt and grit in the construction of the second story; and on the trial of the case the fact as to whether the tenant consented to the erection of the ■second story was a question for the jury, as wasi also the extent of the damage done to the tenant’s property thereby.</p> <p>2. Independent Contractor — Cross Petition of Landlord — Demurrer— In an action by a tenant to recover from his landlord damages done to his property by an independent contractor, in putting a second story on the building occupied by the tenant without the tenant’s consent, a demurrer to a cross petition of the landlord against the contractor was properly sustained, as- such action can not be properly litigated in ■the claim of the tenant against the landlord.</p>

<p>Case 63. — ACTION BY MARIE DREXILIUS, &c., AGAINST THE COVINGTON SAWMILL & MANUFACTURING CO., FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD. Shaw, Circuit Judge.</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Because the court refused the motion of the appellant for a preemptory instruction to the jury to find for it.</p> <p>The plaintiff’s proof developed that when she was injured she was playing in the street, and she can not recover for injuries received while so engaged. (Rasch v. Licking Rolling Mill Co., 26 Ky. Law Rep., 249; Beach on Contributory Negligence, 3d Ed., secs. 256, 278, 281, 447; Elliott on Roads and Streets, 2d Ed., sec. 650; Blodgett v. Boston, 8 Allen, 237; Butterfield v. Forrester, 11 East., 60; Smith v. Smith, 2 Pick, 621; Parker v. Adams, 12 Met. [Mass.], 415; A. & E. E. Law, 1st Ed., vol. 4, p. 57; Snow’s Adm’r v. City of Louisville, 107 Ky., 536.)</p> <p>2. Because the verdict was against the evidence. There is absolutely no evidence -n this case to show that appellant put this -drain in the street, but, on the contrary, a positive denial.</p> <p>3. The court erred in admitting testimony over the objection of the defendant, prejudicial to the defendant. The evidence introduced as rebuttal -was evidence in chief, and was highly improper and prejudical.</p> <p>4. The instructions of the court on the motion of the plaintiff were erroneous.</p> <p>(a.) No. 1 is erroneous, because it imposes upon appellant the duty of keeping in repair the -street in front of property upon which it merely has a lease. (Shearman & Redfield on Negligence, vol. 1, sec. 343.)</p> <p>This argument is also pertinent under the first heading.</p> <p>(b.) And the1 instruction is also erroneous-, because it permits plaintiff to recover for negligence without • anywhere- defining negligence. The instructions define “gross negligence” and “ordinary care,” but they do not define negligence, and nowhere was there any explanation to the jury of what was meant by negligently placing the -box or drain in the -street, or negligently permiting .it to become dangerous. (Bogensehutz v. Smith, 84 Ky., 343.)</p> <p>(c.) The instruction is also erroneous, because it does not con-from to the issue presented by the pleadings. (Grogan v. Kelly, 5 Ky. Law Rep., 251; Cov. & Cin’-ti B. Co-, v. Brennan, 16 Ky. Law Rep., 256.)</p> <p>No. 2 i-s erroneous because it permits the jury to find for plaintiff for 1-os-s from impairment or reduction of her capability to earn money after she reaches the -age of twenty-one — while there is no proof upon his proposition and therefore no basis for the instruction.</p> <p>No. 3. (a.) The third instruction is erroneous because it assumes that defendant was guilty of negligence.</p> <p>(b.) There was no basis for an instruction for gross negligence. (McHenry v. Snedden, 98 Ky., 686; Lexington Railway Co. v. Fain, 25 Ky. Law Rep., 2243; Labrot v. Branson’s Adm’r, 81 Ky., 638.)</p> <p>5. Because the verdict was excessive. (Lexington Railway Co. v. Fain, 25 Ky. Law Rep., 2243; Cov. & Cin’tl Street Railway Co. v. Ware, 84 Ky., 267.)</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. It can not be said as a matter of law that appellee was per se guilty of contributory negligence, because she was at play on a public street when injured. (McGuire .v. Spence, 91 N. Y., 302; Chicago v. Keefe, 114 111., 222; Indianapolis v. Emmelman, 108 Ind., 535; Dist. of Col. v. Boswell, 6 App. D. C., 402; Gibson v. Huntington, 38 W. Va., 177; Reed v. City of Mladison, 83 Wis., 171; Louisville v. Snow’s Adm’r, 107 Ky., 536; Shearman & Red-field, Negligence [5th Ed.], sec. 370; Donoho'v. Vulcan.Iron Works, 75 Mb., 401, 4 Mo. App., 447.)</p> <p>2. The petition is not objectionable in failing to state that plain-, tiff was playing on the street, or in the allegation as to- damages, nor did the proof disclose a variance between pleadings1 and proof. (U. S. M]ail C. Co. v. Carrollton, &c., Co., 101 Ky., 661; Civil Code, sec. 129; L. & N. v. Copas, 95 Ky., 460; C. & O. R. Co. v. Davis, 22 Ky. Law Rep., 748 and 1156.)</p> <p>3. Appellant was liable as the author of a nuisance to any one sustaining special damages thereby and it was not necessary for appellee to .allege- or prov-e negligence. (Sherman & Redfield, Negligence, sec. 365, 359; Dillon, Municipal Corporations, sec. 1032; 15th Am. & Eng. Enc. Law, 433; Baumei-ster, &o. v. Markham, 101 Ky., 122; Dygert v. Schenck, 23 Wend., 446; Clifford .v. Dam, 81 N. Y., 52.)</p> <p>4. Appellant wa-s not -prejudiced by the instruction, because they make appellee’s right to ’ recover depend on her -showing negligence on the part of appellant, which was a more favorable charge than appellant -had a right to ask under the law. (Russell v. Cin., &c. R. Co., 4 Ky. Law Rep., 906; Smith v. Leforce, 11 Ky. Law Rep., 399; Carter Co. M. Co. v. Welburn, 11 Ky. Law Rep., 307.)</p> <p>5. There was no error in the admission of testimony.</p> <p>6. Punitive, damages were proper. (Bransom’s Adm’r v. Labrot, 81 Ky., 638; I. C. R. Co. v. Stewiart, 23 Ky. Law Rep., 637.)</p> <p>7. Tbe damages awarded were no more than compensatory. (Baumeister v. Markham, 101 Ky., 122; Cent. Cov. v. Bellonby, 24 Ky. Law Rep,, 1092; So. Cov. & Cin. St. Ry. Co. v. Pelzer, 19 Ky. Law Rep., 88; I. C. R. Co. v, Mizell, 100 Ky., 235; Muysville v. Guilfoyle, 110 Ky., 670.)</p>

<p>Case 64. — 'ACTION BY JAMES A. SHUTTLEWORTH AGAINST SAMUEL P. MYER FOR RELIEF FROM CONTRACT ON THE GROUND OF FRAUD OR MISTAKE.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch, First Division.</p> <p>Shackleford Miller, Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Under the written contract of assignment to Shuttleworth there was an implied warranty of title to- the thing assigned. (Benjamin on Sales, 4 Am. Ed., 612; American & Eng. Ency. of Law, vol. 28, p. 739, 743; American & Eng. Ency. of Law, vol. 10, p. 123; American & Eng. Ency. of Law, vql. 10, pp. 117 to 122; Sohouler, P. P., sec. 378, 2d Ed.)</p> <p>2. This was not a sale of real estate, hut a chattel interest. (Am. & Eng. Ency. of Law, vol. 3, p. 164.)</p> <p>3. Claim is not barred by limitation, because the implied warranty of title is made by operation of law a part of the written contract, and the fifteen years’ statute applies. (Am. & Eng. Ency. of Law, vol. 28,'pp. 738, 739 and 796; Benjamin on Sales (4 Am. Ed.), sec. 610; Bishop on Contracts (Enlarged Ed.), sec. 241; Am. & Eng. Ency. of Law, vol. 10, pp. 85, 86, 109; 2d Schouler, P. P., 2d Ed., sec. 328; Louisville v. MicNaughton, 24 Ky. Law Rep., 1153; Louisville v. Gleason, 24 Ky. Law Rep., 1491.)</p> <p>RECAPITULATION..</p> <p>1. If there was fraud imputable to Myer, the action is barred by limitation, as appellant knew of the fraud more than ten years before the institution of this action.</p> <p>2. Myer is not chargeable with the fraud of Harmon in the absence of evidence of authority to commit such fraud, or in the absence,of evidence that Myer received- the benefits of the fraud and thus- ratified it.</p> <p>3. There w-as no implied warranty, but if there was- such warranty the cause of action arising thereon was- barred by five years.</p> <p>4. No warranty is ever implied in the sale of a chattel unless the chattel is in the possession of the vendor.</p> <p>5. There was no failure of title as Myer had a perfect right' to sell. Appellant’s cause of action arose out of a fraud subsequently perpetrated by Harmon, and (he should look to Harmon and not Myer, who neither authorized nor profited by the fraud.</p> <p>6. The appellant has been guilty of gross- laches. It would be against equity and good conscience to permit him after the expiration of ten years, and after the death of Myer, and after the distribution of hi® estate -among his children, and when the whole burden might fall on one or two- of his children, now to a-ssert this claim.</p> <p>AUTHORITIES CITED.</p> <p>Shuttleworth v. The Kentucky Coal, &c., Company, 22 Ky. Law Rep., 1807; 3 Minor’s Inst., 2d Ed., 265; City of Louisville v. McNaughton, 24 Ky. Law Rep., 1153; City of Louisville v. Gleason, 24 Ky. Law Rep., 1491.</p>

<p>Case 65. — ACTION BETWEEN J. M. WJLEY AND LANGHORN, & JOHNSON CO., DETERMINED ON MOTION TO DISMISS APPEAL</p> <p>Appeal from Johnson Cirenit Court.</p> <p>Motion to dismiss appeal.</p>

<p>Intoxicating Liquors — Local Option — Special Acts — Effect—Judicial Notice — Distillers Retailing — C. O. D. Shipments — ‘Interstate Commerce — Device to Evade Statute.</p> <p>1. Intoxicating Liquors — Local Option — Special Acts — Effect—Judicial Notice — The local prohibition law commonly called the “Five Counties’ Act,” approved April 4, 1884, forbids the sale , of liquor by retail in Laurel county; it result®, therefore, that in Laurel county the act of March 10, 1894, as amended, which constitutes chapter 81, Kentucky Statutes, must be construed as part of the act of 1884, regulating and controlling the former in the matter of procedure, the quantity of liquor to he sold, and the punishment. In other words, the act of 1894 is operative in Laurel county without the necessity of a vote by the people. Of the existence of the act of 1884 and the operation of the act of 1894 this court will take judicial notice.</p> <p>2. Distillers — 'Retailing— C. O. D: Shipments — Interstate Commerce —Device to Evade Statute — Under sub-section 4 of sec. 2757b, Kentucky Statutes, which is a part of the general local option act of 1894, as amended in 1902, providing that “all the Shipments of spirituous, vinous or malt liquors to he paid for on delivery, commonly called C. O. D. shipments, into any county, city, town, district or precinct where said act is in force, shall he unlawful, and shall he deemed sales of such liquors at the place where the money is paid, or the goods delivered.” Where intoxicating liquors are made and sold by a distiller in this State in quantities less than five gallon® and sent to Cincinnati, O., to he shipped to the purchaser C. O. D., in a town where the local option law is in force, such shipment being for the purpose of imparting to it the quality of interstate commerce, is a mere device to evade the laws' of this State, and is no protection to the seller, and for every such ■sale the parties so engaged are liable to the penalties prescribed by the local option law in this State.</p>

<p>Supersedeas Bond — Action on — Recovery — Attorney’s Fee — 'New Bond — Insufficient Security — Time Covered — 'Damages for Rent — Waste, &c.</p> <p>1. Forcible Detainer — Appeal-—Supersedeas Bond — Action on — Recovery — Where in a forcible detainer proceeding the defendant appealed from a judgment of the circuit court awarding a writ of restitution against him, by executing a supersedeas bond under sec. 748 of the Civil Code, instead of a traverse bond under sec. 463 of the Code, the covenant of- such supersedeas bond does not cover an attorney’s fee as part of the costs recoverable thereon.</p> <p>2. Insufficient Surety — New Bond — Time Covered — Where a supersedeas bond, 'has been executed by the appellant with insufficient surety, and on motion of appellee a new bond is required to be executed by1 appellant with sufficient surety pending the appeal, the new bond is not limited in its operation® to the time elapsing between the date of its execution and the day upon which the property was returned to the owner, but relates back and; covers the period between the execution of the first bond, the surety of which was adjudged insufficient, add the date of the return, of the property to the owner.</p> <p>3. Damages for Detention — Rent — Waste — Theft — Where in a written lease between a landlord and tenant for the rent of a distillery, both of whom were experienced distillers, fixing the annual rental at $1,000, in an action on the supersedeas bond for the damages in detaining the property by the lessor against the lessee, the measure ofi damages for the rent is at the rate of $1,000 per year for the time it. was so detained, and as appellant was entitled to recover whatever damages accrued to the property during the period covered by the supersedeas bond, due to the negligence of the party detaining it, such party is liable for the blowing down of the smoke stack if it resulted from his failure to properly secure it, and for other damages of a similar kind which accrued because of his failure to take such care of ■it -as a prudent owner would of 'his own property as well as for all property taken by theft, which he could, by diligence, have prevented by repairing the house or employing a watchman to protect it.</p>

<p>Case 68. — LOCAL OPTION ELECTION CONTEST BY C. P. ERWIN, &c., AGAINST J. W. BENTON, &c.</p> <p>Appeal from McLean Circuit Court.</p> <p>T. P. Birkhead, Circuit Judge.</p> <p>Prom a judgment of the circuit court reversing the order of contest hoard, contestants appeal.</p> <p>LAW ANDSPACTS' BELIED- ON FOR REVERSAL OF THIS CASE.</p> <p>1. W'h-at the answer admits-. (Powers v. Commonwealth, 114 Ky., 237, and cases- there cited.)</p> <p>2. Circuit judge erred in refusing to vacate bench. (Powers v. Commonwealth, 114 Ky., 237, and cases there cited.)</p> <p>3. Order entered by' board of contest not a final or appealable order. (Civil Code-, sec. 368; Helm, &c. v. Short, &e., 7 Bush, 624; Mays-ville & Louisville R. R. v. Punnett, 15 B. M-., 48; Smart v. Clift, 2 Ky., 125; Allison- v. Taylor, 3 T. B. Monroe, 7;. Bod-man v. Forline, 2 -Metcalfe, 325; Phillips- v. Alcorn, 4 J. J. M., 38; Howard v. L. & N. R. R. Co., 17 Ky. Law Rep., 814.)</p> <p>4. Election void because not held by any one authorized by law to hold it. (MbGreary on Elections, 4 E-d., secs-. 153-176; Marshall v. Kerns, 2 Swan, 68; Poster v. S-carff, 15 Ohio State, 532; Waler v. Stanford, 78 G-a., 165; Commonwealth v. Green, 98 Ky., 22; Hoyte v. E. Saginaw, 19 Mlich., 56; Commonwealth v. Shelton, 99 Ky., 120; Denny, &c. v. Bo-sworth, Sheriff, &c., 24 Ky. Law Rep.)</p> <p>5. Fidelity "Trust and Safety Vault Co. v. Mayor, &c., of Morgan-field, 96 Ky., 564, and Puckett, &c. v. Snyder, 110 Ky., 262, have no application to■ the case at bar.</p> <p>6. Persons who held the election were neither de jure nor de facto officers1, but mere intruders; (110 Ky., 398; 2 Bart. El. Cases; Van Amrige v. Taylor, . 108 N. C., 196; American & Eng. Ency., 2 Ed., vol. 10, 671, notes 3 and 4; State of North Carolina v. Van Amrige, 12 Lawyers’ Rep. Ann., 202.)</p> <p>7. Device used on- ballot by those who favored local option prohibited by sec. 1453, Ky. Stats. (Ek parte Jordan, 94 U. S., 251; WiHiam-s v. Chicago, 42 111.; 2 American Dec., 737; State v. Salty, 166 Miss., 559; Ky. Stats., sec. 1453; 25 American & Eng. Ency., 2 Ed., 633, and notes.)</p> <p>8. Election void- because question on the ballot is self-contradictory and could not be answered by “yes” or “no.”</p> <p>9. Wilbur HJohson was1 a minor; his vote should have been rejected. (1 Minor’s Ins., 103; American & Eng. Ency., 2 Ed., vol. 1, p. 927.)</p> <p>10. Facts found by board of -contest correct, but some of its conclusions of law were wrong.</p> <p>11. Appellees intimidated certain voters and prevented others from voting, which renders th-e election void. (Constitution, sec. 148; Ky. Stats-., 138. See compilation of Election Laws.)</p> <p>12. At least five electors who offered to vote against local option were illegally denied the right to do so. Election should be -set aside on this ground.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Affidavit filed by appellants does not state facts sufficient to warrant the regular judge to vacate the bench. (German Ins. Co. v. Landrum, 88 Ky., 440; Schmidt v. Mitchell, 19 Ky. Law Rep., 763.)</p> <p>2. Appellees had a right to appeal' from the judgment of the contest hoard. (Ky. Stats., sec. 2567.)</p> <p>3. All legal voters of a precinct are entitled to vote therein, and when their residence is- once fixed it must be- shown to have been abandoned. (Tipton- v. Tipton, 87 Ky., 245; Edwards v. Logan, 70 S. W. R., 854; McCrary on Elections, sec. 71; Cooley’s Constitutional Limitations, sec. 754.)</p> <p>4. A man is twenty-one years- old on the day preceding his twenty-first anniversary, (Hamlin v, Stevenson, 4 Dana, 597; State v. Clark, 3 Harrington, 557; Ross v. Morrow, 16 L. R. A., 542; Wells v. Wells, 6 Ind., 447; Bardwell v. Purrington, 107 Mass., 419; A. & E. Ency. of Law, vol. 1, 2 Ed., 927.)</p> <p>5. A voter challenged, and failing to make the statutory affidavit, is not allowed to vote, nor can his vote be counted unless if was cast. (Ky. Stats., sec. 1477; Coley’s Constitutional Limitations, 776; A. & E. Ency. of Law, vol. 10, 2 Ed., 705 and 844.)</p> <p>■6. Officers of election being sworn officers, it must be presumed that they did their duty until it is clearly proved otherwise. (Anderson v. Winfree, 85 Ky., 597.)</p> <p>■7. The local option election should be held by special officers, and the election is not invalidated by mere irregularities in the appointment of officers. (Ky. Stats., sec. 2555, and sec. 1596a, sub-sec. 3; Puckett v. Snider, 22 Ky. Law Rep., 1720; Varney v. Justice, 86 Ky., 599; Fidelity Trust and Safety Vault Co. v. Mayor, &c., Morganfield, 96 Ky., 566; Cooley’s Constitutional Limitations, pp. 93 and 618; Law-son’s Rights and Remedies; vol. 7, sec. 3798 Trustees of Common School District v. Garvey, 80 Ky., 159; Sutherland on Construction of Statute, sec. 452; Motley v. Wilson, 26 Ky. Law Rep., 1012.)</p> <p>8. Proposition submitted is not self-contradictory and does not invalidate the election. (Ky. Stats., sec. 2558; Gayle v. Owen County Court, 83 Ky., 70; Clark v. Leathers, 9 Ky. Law Rep., 560; Stone, &c. v. Gregory, Judge, 23 Ky. Law Rep., 1; Motley v. Wilson, 26 Ky. Law Rep., 1011.)</p> <p>'9. Proposition submitted in form prescribed by statute, and can not invalidate the election. (Ky. Stats., see. 2554; Gayle, &c. v. Owen County Court, 83 Ky., 70; Bowers v. Smith, 16 L. R. A., 754.)</p> <p>10. The device used on ballots does not invalidate election. (Ky. Stats., sec. 1453.)</p> <p>11. The decision of the lower court should be sustained. (Williams v. Rogers, 14 Bush, 776; Anderson v. Winfree, 85 Ky., 597; Cowen v. Browse, 93 Ky., 156.)</p>

<p>Case 69 — ACTION BY JOHN SMITH’S AfDMJ’R'AGAINST THE ILLINOIS CENTRAL R. R. CO.</p> <p>Appeal from McCracken Circuit Court.</p> <p>Motion to dismiss appeal.</p>

<p>Wills — Real Estate — Taxes Thereon — Life Tenant — ¡Duty to Pay— Funeral Expenses1 — Debts^-MDevise of Real Estate — Subsequent Lease by Testator — 'Notes for Rent.</p> <p>1. Wills — ¡Real Estate — Taxes Thereon — Life Tenant — Duty to Pay —(P., who died in June, 1902, by his will devised to his wife ■all -his personal' estate absolutely, .and certain real estate during her life. At his death there were unpaid taxes assessed against ’his real and personal estate amounting to $326.50. Bis widow died! September 16, 1902. Beld — It was the duty of the personal representative of the widow to pay the said taxes, as under our statutes the taxes were a lien on the lands, and it is the duty of one to whom land is devised for life to pay the taxes and keep it free from lien as against the remaindermen.</p> <p>2. Funeral Expenses1 — Debts1—Where testator directed the payment of all his funeral expenses and debts out of his personal estate, the balance of which he gave to his wife, together with a life estate in certain land, the personal estate was liable for taxes assessed against the real and personal estate and unpaid at the time of testator’s death, as taxes, while not “debts,” strictly speaking, are obligations or liabilities.</p> <p>3. -Same — Devise of Real Estate — Subsequent Lease by Testator— Notes for Rent — Effect—P. owned two tracts of land, and by his will, dated September 8, 1894, devised to hisl wife all ¡his personal estate absolutely,' and all his real estate during ¡her life, and by a codicil, dated November 13, 1899, directed that the “home tract” he sold at his death and the proceeds divided among the children of his two sisters, and on July 30, 1901, after the date of the will and codicil, leased thé other ¡tract of land for the term of three years at $800 per year, for which he held the three notes of the lessee at the time of his death, in June, 1902. Held — That the will speaks as of the date of the death of the testator, and the three notes were payable to the testator and were his. personal property, and passed with his- other personal estate under the will to his widow.</p>

<p>Caso 71. — 'CO’N'DBIVCN'ATION PROCEEDINGS BY BIG SAND'S RAILWAY CO. AGAINST ANNIE L. DILS, &c.</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>■ From tiie judgment of tiie circuit court rendered on appeal from the county court, plaintiff appeals.</p> <p>AUTHORITIES CITED.</p> <p>1. The trial court should have dismissed the appeal because there was no transcript of the orders of the county court filed nor a statement of the parties to the appeal as required by sec. 840, Ky. Stats.</p> <p>2. The verdict of the jury was too indefinite to authorize .the rendition of a judgment, there being three distinct propositions submitted with a general finding for appellees. The finding should have been a certain amount for the lands appropriated, an amount for damages to the residue, if any, and the damages for extra fencing.</p> <p>3. Instruction No. 1, given by the court, is> absolutely incorrect and misleading in this: The court directed the jury to find the market value of the land appropriated without laying down any, rule by which it could be ascertained. The court erred in calling the jury’s1 special attention to certain parts of the evidence, and thereby' giving undue prominence to portions of appellees’ evidence. The instruction required the jury to' find double damages. (Lewis on Eminent Domain, 2d Ed., vol. 2, sec. 428; St. L. R. Co. v. Barrett, 91 Ky., 487.)</p> <p>4. Instruction No. 2 is erroneous in telling the jury that nine could make a verdict. The number nine is a creature of the statute, and can not be given’ in any case where the trial is required, as in this- case, to be had in accordance to' the course of the common law. ('Sec.. 242 present -Constitution of Kentucky.)</p> <p>CLASSIFICATION OF QUESTION AND AUTHORITIES.</p> <p>1. Condemnation for railroad purposes and appeal to- circuit court. (Ky. Stats., secs. 839, 840, 4356, 4303; Freeman, &c. v. Cook, &c., 24 Ky. Law Rep., 319; Lewis, Eminent Domain, secs. 254 and 254a.)</p> <p>2. 'Error of court in refusing to dismiss appeal from county court not ground for reversal by Court of Appeals if such error was not made a ground for new trial in circuit court.</p> <p>3. Condemnation, for railroad, evidence and instructions1. (Lewis on Eminent Domain, see. 436, and notes 47 and 48; St Louis & N. 0>. R. R. 'Co. v. Rottgering, 26 Ky. Law Rep., 1167.)</p> <p>4. No reversal for admitting incompetent testimony not objected to, and no reversal for error in instructions where appellant offered no instructions on the point. Nor will court reverse when instructions given are based on appellant’s own hypothesis of the case. (Harris v. Southern Railway Co., 76 S. W., 161 [Ky.].)</p> <p>.5. Nine of jury may make a verdict in condemnation case. (Constitution of Kentucky, sec. 248; Ky. Stats., sec. 2268.)</p> <p>6. Items of damage need not be stated separately by commissioners or jury: (Ky. Stats., secs. 836, 839; Lewis on Eminent Domain, sec. 512.)</p> <p>8. Interest on judgment. (Constitution of Kentucky, secs. 13 and 242; Lewis on Eminent Domain, sec. 499.)</p>

<p>Case 72. — MANDAMUS BY FINLEY SHUCK TO' COMPEL GUS G. COULTER, STATE AUDITOR, TO DRAW A WARRANT I'N HIS FAVOR FOR SERVICES AS CLERK IN THE AUDITOR'S OFFICE.</p> <p>Appeal from Franklin Circuit Court.</p> <p>James E. Cantbill, Circuit Judge.</p> <p>From a judgment in favor of plaintiff, S. W. Hager, successor to G-us G. Coulter, appeals.</p> <p>. 1. By -the verified answer of Gu® G. Coulter, auditor, it appears that the specific appropriation under the law for clerk hire and clerical assistance in the auditor’s office for each of said years had -been exhausted; it al-so-. appears by the petition that the cl-aim of the plaintiff, Shuck, was for clerical assistance in the auditor’s- -office for these same years; -and if paid at all, must 'be paid out of said specific appropriation.</p> <p>2. The -compromise agreement between the said Coulter and Shuck, and the judgment -entered- thereon, was- unauthorized upon the- part -of said -auditor, and not within the scope of .his power and authority under the law -as- fiscal -agent of the State.</p> <p>3. This- -agreement is' in effect a judicial finding, although the specific -appropriation for the payment of the alleged claim had been exhausted, yet the- said auditor adjudges that the State shall pay the further sum of $1,500 for clerk hire and clerical assistance-.</p> <p>4 The -auditor is a ministerial officer and hasi no power to compromise and judicially pass on claims against the State, hut for his own and the State’s- protection he may question the validity of any claim against the State, as was decided in the case'of Norman v. Board of Managers World’s Fair, 93 Ky., 537.</p> <p>5. It is the contention of the State that the opinion of this court in the case of Bosworth, Treasurer v. Shuck (appellee in this case), is conclusive of the rights of -the appellee under said judgment, -as the judgment was merged in said warrant, which in that case was held to be invalid; it follows-, then, that the judgment on which it was based is also invalid.</p> <p>AUTHORITIES CITED.</p> <p>Meechem on Public Officers, p. 924; Throop on Public Officers, sec. 21; Bishop on -Contracts, sec. 993; Pulaski County v. State, 42 Ark., 118; “Woodward v. Campbell, 39 Ark., 590; Woodruff v. Berry, 40 Ark., 251; Mlerchants Bank v. B'ergen Co., 115 U. S., 384; Constitution of Kentucky, see. 230; Ky. Stats-., sec. 143; Ky. Stats., sec. 340; Ky. Stats., secs. 138, 139, 4001a, 4688; State v. Porter, 89 Ind., 260; Pritchard v. Woodruff, 36 Ark., 196; Norman v. Board of Managers World’s Fair, 93 Ky., 537; Bosworth, Treasurer v. S'huck, 26 Ky. Law Rep., 324.</p> <p>AUTHORITIES CITED.</p> <p>1. In a common law -case where there is no .motion for a new trial or bill of exceptions the only thing that the -Court of Appeals can consider is whether or not the pleadings were sufficient upon which to- base a judgment. • (Gaffney'v. Penn-. Co-., 8 Ky. Law Rep., 260; 'Taylor v. Colston, 7 Ky. Law Rep., 607; Beeler v. -Sandige, 20 Ky. Law Rep., 1581.)</p> <p>2. By consent judgment the- allegation of plaintiff's petition are confessed. (Hudson v. Allison, 54 Ind., 215; Spinetti v. B-rignard-ello, 53 Cal., 281.)</p> <p>3. Confession of judgment operates as a release of errors-. (Civil Code, sec. 383.)</p> <p>4. 'Coulter, -auditor, had the right to make the compromise. (Freemen on Judgments, vol. 2, sec. 545; Gere v. Supervisors Cayuga Co., 7 How., 255.)</p> <p>5. Consent judgment will not he disturbed. (Beatty v. Curtis, 4 Ky. Law R-ep., 352; Duncan v. Louisville, &c., 13 Bush, 378.)</p> <p>6. A void judgment can not be reversed until there is a motion for a modification of a judgment in the lower court. (Sec. 763 of the Civil Code. '</p>

<p>Cities- — -Sewage—Jnjury to Adjacent Lands- — Liability of City— Instructions — Measure of Damages — Evidence—Competency.</p> <p>1. Cities — Sewage—-Injury to Adjacent Lands — Damages—Liability -of City — ‘In an action against -the -city by the owner of abou-t eight acres- of land therein, on- the margin of which the city -opened two sewers, discharging thereon a deposit of foul matter to the depth of two or three feet, on which there was la pretty pond which was thereby made a cess pool, and which - filth spread over about three acres- of the land, impregnating and poisoning the air, -and destroying the comfort and endangering the health of person-si living; several -hundred yards -away, a verdict for $2,250, under all the evidence, is held not to be excessive.</p> <p>2. Instructions — Measure of Damages — On -the trial of the case ithe court gave the following instructions, which are held to he correct.</p> <p>“1st. The jury are instructed to find for the plaintiffs such damages as they believe from the evidence resulted to the plaintiffs’ property from the discharge of sewage from the Bank Lick street and Holman street sewers', and the deposit thereof ion the -plaintiff®’ property between May 24, 1898, and May 24, 1903.</p> <p>“2d. In ascertaining said damages!, the jury are instructed that there are two measures of damages: First, the diminution in value of the plaintiffs’ property caused by said discharge and -deposit between said dates, if there -be any such diminution in value; and, second, the cost of restoration of said property to the condition it was1 in on Miay 24, 1898, if any such restoration be possible.</p> <p>“3d. If the jury believe from- the evidence that it is practicable and possible to restore said property to its condition on .May 24, 1898, then the jury will -adopt the one of said measures of damages which will result in- the lesser damage to plaintiffs’ property, not to exceed $5,000.”</p> <p>3. Same — The difference between the value of the property when the injury was inflicted1 and its value after the injury is not the proper measure of damages, where it is- shown that there has been an increase in the value of the land due to the general enhancement of property in the neighborhood from the growth of the city.</p> <p>4. Evidence- — -Competence—The court properly allowed the plaintiffs to show- what was the expense of filling the place that was covered with slime, as this1 evidence tended to show the extent of the injury, and it was competent to- -show that they had used ordinary care to reduce the damages. The effect on the health of the neighborhood was also competent for the same reason, and to show why the market value of the property was1 lessened.</p>

<p>Cities — Incurring 'Indebtedness — Two-thirds- Vote — -Constitutionality — Legislative Restrictions.</p> <p>1. Cities — Incurring Indebtedness — Voting Thereon — Two-thirds Voting — 'Constitutionality-—Under sec. 157 of the Constitution, providing that “no city * * * shall be authorized or permitted to become indebted in ¡any manner, or for any purpose, to an amount exceeding in -any year the income and revenue provided for such year, without the assent of two-thirds of the voters1 thereof voting at an election held for the purpose,” where under an ordinance of a city of the fifth class the proposition was submitted to the voters of -said ¡city -to incur an indebtedness -of $15,000 -and issue bonds' therefor, for the erection of a school building therein, more than two-thirds of the voters voting on said proposition were cast in favor thereof, the ■ proposition was adopted, although the number of votes cast in favor of such proposition was not equal to two-thirds of all the votes cast at said election on other questions then voted on.</p> <p>2. Same — Legislative Restriction — Where the .Constitution authorizes the incurring of -an indebtedness by a -city, county or -taxing district by the assent of twoAhirds of the voters of such city, -county or taxing district, voting thereon, -the legis■lature can not add to such constitutional restriction, and the case of Belknap v. Louisville, 99 Ky., 474, in -so far as it holds otherwise, is overruled.</p>

<p>Presonal Representative1 — ¡Who Entitled to Qualify — Discretion of Court — Legitimacy of .Child — ¡Presumptions.</p> <p>T. Personal Representative — Who Entitled to Qualify — Discretion of Court — Under sec. 3896, Ky. Stats., providing that “the icourt ¡having jurisdiction shall grant administration to the relatives -of the deceased, who apply for same, preferring the •surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them whom the court shall adjudge will best manage the estate,” the first in rank as distributee is entitled as a matter of right to administer upon the decedent’s estate, provided such distributee •possesses otherwise legal qualifications to act. Where, however, there is but one distributee this discretion can not exist if the distributee makes application before the second county court from the death of the intestate.</p> <p>2. Legitimacy of Child — 'Presumptions—Where it is shown by the •evidence that a child was born to the wife after her marriage to her husband, and during their wedlock and within the usual period of gestation, the law’s conclusive presumption is that the offspring is legitimate.</p>

<p>1. Administrators — Appointment — County Court — Jurisdiction— Action by — Plea in Abatement — Where an action was brought against a railroad company by L. B. and P. R., who sued as administrators of deceased for damages for causing his death, it was error in the lower court to sustain a plea in abatement to the action on. the ground that the plaintiffs were not entitled to be appointed as such administrators, because not next of kin to the deceased.</p> <p>2. Same — The county court having the jurisdiction to appoint an ■administrator of a decedent, necessarily has the right to determine whether a given applicant is related to the decedent in the degree authorizing her appointment, and the ■fact that such court erred in so deciding, and appointed another, such appointment, though erroneous, is not void.</p> <p>(■Note — This case was tried with preceding case of Buckner’s Adm’r v. Buckner, to which reference is made for briefs.)</p>

<p>Case 77. — 'ACTION BY T. P. WAGNER AGAINST JAMES HATCHER TO CANCEL A DEED AND QUIET THE TITLE TO A TRACT OF LAND.</p> <p>Appeal from Pike Circuit Court.</p> <p>A, J. Kirk, Circuit Judge,</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Public .Schools — Opening With Prayer — Sectarianism—Public Worship — Objection by Parents — Bible—'King James’ Translation — Reading in School.</p> <p>1. Public Schools — Opening With Prayer — 'Sectarianism—The Brooksville Graded School in this State is maintained by the State by taxation. It is open to all white children within certain ages, who, or whose parents, reside in the district. In opening this school every morning the following prayer was offered: “Our Father, who art in Heaven, we ask Thy laid in our day’s work. Be with us in all we do and say. Give us wisdom and strength and1 2patience to teach these children >as they should be taught. May teacher and pupil have mutual love and respect. Watch over these children both in the schoolroom and on the playground. Keep them from being hurt in any way, and at last when we come to die may none of our number be missing around Thy throne. These things we ask for Christ’s sake. Amen.” Held — That such prayer is not “sectarian,” eithel- in form or substance, within the meaning of sec. 5 or sec. 189 of the Ky. Constitution, or of sec. 4368, Ky. Stats.</p> <p>2. Public Worship — Objection by Parents — Though it be conceded that any prayer is worship, and that public prayer is public worship, where children, whose parents object, are not required to attend at such prayer service, the school can not be considered “a place of worship,” nor are its teachers “ministers -of religion” within the contemplation of sec. 5 of the Ky. Constitution, although a prayer may be offered, incidentally at the opening of the school by the teacher.</p> <p>5. Holy Bible — Reading in Schools — Sectarian Instruction — "Wle believe the reason and weight of the authorities support the view that the King James’ translation of the Bible is not a “sectarian” book within the meaning of the Ky. Stats., sec. 4368, which provides that “no books or other publications of a sectarian, infidel or immoral character shall be used or distributed in any common school, nor shall any sectarian, infid'el or immoral doctrine be taught therein,” and when used merely by reading in the common schools, without note or comment by teachers, is not sectarian instruction, nor does ■such use of the Bible make the schoolhouse a house of religious worship.</p> <p>4. Same — Sectarian Book — That the Bible, or any particular edition, has been adopted by one or more denominations as authentic, or by them asserted to be inspired, can not make it a sectarian book. The book itself, to be sectarian," must show that it teaches the peculiar dogmas of a sect as such, and not alone that it is so comprehensive as to> include them ■by the partial interpretation of its adherents. Nor is a book sectarian merely because it was edited or compiled by those of a particular sect. It is not the authorship, nor mechanical composition of the book, nor the use of it, but its contents that give it its character.</p>

<p>Case 79. — ACTION BY PATTIE D. STONE AGAINST SAMUEL C. NUCKOLS AND OTHERS TO RECOVER ONE-HALE OF A CERTAIN TRACT OE LAND</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge,</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>We have not attempted to consider in this brief the question whether the allowance of our contention would defeat the purposes of the maker of the instrument. Wte would regard -it a fruitless speculation to inquire whether Dudley Dedman knew that further action on his part was necessary to make the writing executed by him a valid deed. He was an intelligent man, and had the advice of legal counsel. Whether he knew or did not know of the defect, and whether he intended or did not intend on certain contingencies to remedy the defect, it is sufficient under our view of the law to say that he did not do -so, and that) the writing for that reason never became effectual. Our contentions are:</p> <p>1. The paper in question, whether the maker called it a deed or a will, was in contemplation of law a testamentary paper, intended to have no legal effect till the maker’s death; and that not having been executed or probated or' capable of being probated as a will it fails of any legal effect.</p> <p>2. If it be treated as a deed, it never became the deed of the grantor, because it was never delivered in such manner as to make it valid as a deed.</p> <p>AUTHORITIES CITED.</p> <p>1. The writing in this case was never delivered so as to make it a deed. (3 Wlashburn Real Prop., secs. 2156, 2158; Jones on Real Estate in Conveyancing, secs. 1267, 1269; 9 Am. & Eng. Ency., 2d Ed., p. 155; 13 Cyc., 569; Note to Welborn v. Weaver, 63 Am. Dec., 235; Note to Munroi v Bowles, 54 L. R. A., 872-874.)</p> <p>Numerous authorities cited in above references: Prutsman v. Baker, 30 Wlis., 644; Osborne v. Bstinger, 155 Ind., 351, 58 N. E., 442; Barnes v. Barnes, 138 111., 649, 28 N. E., 983, 984; Johnson v. Johnson (R. I.), 54 Atl., 378; Fitch v. Bunch,) 30 Cal., 208; Walter v. Way, 120 111., 96, 48 N. E., 422; Stinson v. Anderson, 96 111., 373, 376; Williams v. Daubner,. 103 Wis., 521, 79 N. W., 748; Allsop v. Swathen, 7 Conn., 500, 503; Porter v. Wood'house, 59 Conn., 568, 13 L. R. A., 65; Brown v. Cook, 34 N. H., 460; Bank v. Webster, 44 N. H., 269; Johnson v. Farley, 45 N. H., 505; Biaker v. Haskell, 47 N. H., 479, 93 Am. Dec., 456; Ball v. For-man, 37 Ohio St., 139. Kentucky authorities: Barlow v. Hunter, 1 Mar., 98; Tinsley v. Tinsley, 7 Ky. Law Rep., 288;Colyer v. Byden, 94 Ky., 182; Haydon v. Easter, 15 Ky. Law Rep., 597; Hndson v. Redford, 23 Ky. Law Rep., 2347; 11 Am. & Eng. Ency. (2d Ed.), 356.</p> <p>2. The instrument in question is a testamentary paper, and not a deed; and not having been executed with the proper formalities, it passes no title.</p> <p>AUTHORITIES CITED.</p> <p>Am. & Eng. Ency. Law (1st Ed.), vol. 29, pp. 138, 139 (note), 145, 146 (note), 149; Bnc. Law & Proc., vol. 13, page 521; Perry on Trusts, 3d Ed., vol. 1, p. 82; Kelley v. Davis, 13' So. Rep., 785 (Ala.), cited in Am. & Ehg. Ene. L., vol. 29,. p. 149 (note); Cunningham v Davis, 62 Miss', 366, cited in Am. & Eñg. Ene. L., vol. 29, p. 148 (note); Leaver v. Gauss, 62 la.,- 314; Gillham v. Mustin, 42 Ala., 366; Croker v. Smith (Ala.), 10 So. Rep., 258; Reed v Bazelton, 37 Kan., 321, 15 Pac. Rep., 177, at page 180; Wellborn v. Weaver, 17 Ga., 267, 63 Am. Dec., 235, at p. 242; Habergham v. Vincent, 2 Ves., jr., 204; Wall v. Wall, 30 Miss., 91, 64) Am. Dec., 147; Babb v Harrison, 9 Rich. Eq. (So. Car.), —, 70 Am. Dec., 204;Johnson v. Yancey, 20 Ga., 707, 65 Am. Dec., 646; Turner v Scott, 51 Pa. St., 126; Carlton v. Cameron, 54 Tex., 72, 38 Am. Rep., 620; Beebe v. McKenzie (Or.), 26 Am. St. Rep., 296, 24 Pac. Rep., 236; Hazelton v. Reed, .46 Kan., 73, 26 Pac. R., 450, 26 Am. St. Rep., 86; Nichols v. Emery, 109 Cal., 323, 41 Pac. R., 1089, 50 Am. St. R„ 43; Simon v. Wiildt, 84 Ky., 157; Ward v. Ward, 104 Ky., 857; Rawlings v, McRoberts, 95 Ky., 346; Pelley v. Ear les, 21 Ly. Law Rep., 1395; Phillips v. Thomas Lumber Co., 94 Ky., 445; Burlington Univ. v. Barrett (la.), 92 Am. Dec., 383, et seq. (note).</p> <p>1. All rules for construction and all canons of interpretation are for the-purpose of ascertaining and carrying out the intention of the parties to that instrument, or of the meaning of the instrument itself, whether it be a constitution, a statute, a treaty, a conveyance or a contract. The only limitation to this general statement is that there are certain fixed rules: of law which, when in conflict with the supposed intention, will control.</p> <p>2. the first rule, therefore, in the interpretation of a paper is, what is the intention of the parties? Probably the most important rule in ascertaining this intention is, that that intention shall■ prevail if possible; that such construction will be given to the instrument itself, as well as to the various recitals and stipulations of the instrument, as to effectuate the intention.</p> <p>3. There is no principle better settled than that a delivery does not have to be manual or formal; that it does not have to be made by the grantor directly to the grantee.</p> <p>4. The principle is that wherever any donor is making what may be fairly described to be a voluntary settlement, the settlement will be held binding in equity as indicating the intention of the donor, even though the paper itself remain in the possession of the grantor.</p> <p>5. Of course, there is no doubt that such a deed or settlement will be held binding when retained by) the grantor with the knowledge and assent of the grantee.</p> <p>6. The principle for which we contend is that the intention of the grantor controls where the conveyance is handed by the grantor to any one to be held for a grantee, and the grantor does not recall that conveyance; and delivery by the custodian to the grantee after the death of the grantor conveys to that grantee a perfect title.</p> <p>AUTHORITIES CITED.</p> <p>Rawlings v. McRoberts, 95 Ky., 302; Mitchell v. Ryan, 3 Ohio St., 380 (by Judge Thurman); Newton v. Benton, 41 Iowa, —; Scrugham v. Moore, 15 Wendell, 547; Souverbye v. Arden, 1 John. Ch., 108; 2 Washburn on Real Property, pp. 579, 585-6; 4 Kent., s. p. 454; 17 Johnson, 554; Ruggles v. Lawson, 13 Johnson, 285; Stevens v. Hurt, 54 Penn., 26, 7 Am. Dec., —; Poster v. Mayfield, 3 Met., 415; 37 Am. Dee., —; Hatch v. Hatch, 9 M!ass., 307, 6 Am. Dec., 67; Wheelwright v. Wheelwright, 3 Am. Dec., 66; Morse v. Storow, 13 Vermont, —; Woodward v. Cramp, 22 Iowa, 407; Belden) v. Carter, 4 Day, 66, 4 Am. Dee., 185; Dippold v. Lippold, 112 Iowa, 134, 83 N. W., 809; Wall v. Wall, 30 Miss., 91, 64 Am. Dec., 148; Hulick v. Scovell, 9 111., 159; Goodpaster v. Leathers, 123 Ind., 121; Kelly v. Kelly, 8. M?et. (Mass.), 436; H'aug v. Haug, 53 Minn., 33, 55 N. W., 1114; Haydon v. Easter, &c., 15 Ky. Law Rep., 597.</p>

<p>Case 80. — ACTION BY JOHN W. MULLINS AGAINST ANNA iH. MULLINS, &c., TO SET ASIDE A CONVEYANCE OF LAND.</p> <p>Appeal from Letcher Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>On motion of defendants to set aside a judgment by default and for permission to file, an answer. From an order denying such relief defendants appeal..</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where the grantor executes and acknowledges a deed and causes same to be recorded in the proper office, the law raises the presumption that he delivered the instrument on the day of its date. (Bunnell v. Bunnell, 23 Ky. Law Rep., 800, 110 Ky., —■; Brann v. Monroe, 11 Ky. Law Rep., 326; Davis v. Garrett,' 18 S. W. R., 113; Swine} v Swiney, 14 La., 316; Young v. Mil-ward, 109 Ky., 125.)</p> <p>2. And where the grantee of such a deed is an infant, and the 'deed is beneficial to him, the presumption of delivery to, and acceptance by, him is absolute. (Owings v. Tucker, 90 Ky., 297; Rivard v. Walker, 39 111., 413; Cecil v. Beaver, 28 Iowa, 241; Sowerbye v. Arden, 1 Johns. Chy., 240.)</p> <p>3. Manual delivery of a deed is not required. The real test of delivery is, did the grantor by his acts or words, or both, intend to divest himself. of title? If so, the deed is delivered. (Martin v. Bates, Gd’n, 20 Ky. Law Rep., 1798; Ward v. Small’s Ex’r, 90 Ky., 198; Shoptaw v. Ridgway, 22 Ky. Law Rep., 1495.)</p> <p>4. Judgment in a personal) action is dependent upon actual service of process on the defendants, or their personal appearance in the action, otherwise the judgment is void.</p> <p>5. A formal entry, plea, or motion, ascertainable by the record, constitutes an appearance. (Scott v. Hull, 14 Ind., 136.)</p> <p>6. Appearance as witness or service of notice to take depositions and attending the taking does not constitute a waiver of service of process. (Nixon v. Downey, 42 Iowa, 78; Buetz v. Eubanks, 32 Kan., 321.)</p> <p>7. An appearance by an infant dependent, without service of process on 'him, is invalid and the judgment void. (Womack v. Load, 11 Ky. Law Rep., 6; Wooldridge v. Harding, 21 Ky. Law Rep., 205; Silver v. Shelbaek, 1 Dali [Pa.], 178.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The defendants were before the court in the manner provided by law. (Civil Code, secs. 38-52; Tyler v. Jewell, 10 Ky. Law Rep., 887; MeMakin v. Stratton, 82 Ky., 226; Gardner v. Letcher, 16 Ky. Law Rep., 778; W-alch v. Davis, 17 Ky. Law Rep., 634; Robinson v. Clark, 17 Ky. Law Rep., 1401; Watts v. Watts, 19 Ky. Law Rep., 25.)</p> <p>2. The appellants have waived all mere errors, irregularities, • or defects in the preparation of the original action, by proceeding to have the judgment vacated upon the merits of the controversy. (Richards, Gd’n v. Richards, Adm’r, 10 Bush, 617.)</p> <p>3. The judgment of the chancellor was correct upon the ground that the facts of the case and the circumstances of the parties presented a ■ case which authorized the interposition of a court of equity to grant the relief asked. (Story’s Equity Juris., secs. 693-694; Pomeroy’s Equity Juris., sec. 1399; and “cases cited under said sections.)</p> <p>4. It was the duty of the' chancellor to render the judgment cancelling the deed upon the further ground that the defendants acquired no title thereunder, the same being neither delivered nor accepted; and it being on record in an uncancelled state constitúted a cloud upon plaintiff’s title. (Owings v. Tucker, 90 Ky., 398; B'rann v. Monroe, 11 Ky. Daw Rep., 326; Thompson’s Heirs v. Jackson, 10 Bush, 424; Bell v. Farmers Bank, 11 Bush, 34; Jefferson County B. Association v. Beil, 81 Ky., 513; 2 Wash-burn on Real Property, s. p. 581; Devlin on Deeds, sec. 290; Keller v. Wilson, 90 Ky., 354; Simmons v. McKay, 5 Bush, 25; Oliver v. Park, 101 Ky., 1; Black on Judgments, 197.)</p>

<p>Case 81. — ACTION ' BY WESLEY TESTS, BY NEXT FRIEND; AGAINST THE SNIDER HEADING MANUFACTURING CO. FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Lewis Circuit Court.</p> <p>James P. Haebeson, Circuit Judge.</p> <p>Prom a judgment dismissing the petition plaintiff appeals.</p> <p>We submit that the court erred in refusing to permit plaintiff to file the amended petition correcting a mistake in the name of the party sued:</p> <p>1. Because-under see. 132, Civil Code, “the plaintiff may at any time before answer, amend his petition without leave.”</p> <p>2. It was clearly an abuse of discretion, under'sec. 134, Civil Code, to refuse an amendment, for it is therein provided: "The court may at any time, in furtherance of justice and on such terms as may be proper, cause or permit a pleading or proceeding to be amended by adding or striking out the name of a party or by correcting a mistake in the name of the party, or a mistake in any other respect, or by inserting , other allegations material to the case.”</p> <p>AUTHORITIES CITED.</p> <p>Heckman’s Adm’r v. L. & N. R. R. Co., 85 Ky., 631; Champion v. Robertson, 4 Bush, 17; Leatherman v. Times Co., 88 Ky., 294; Commonwealth v. Netherland, 87 Ky., 195; Ky. Stats., sec. 2525; Civil Code, secs.'132, 134.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. .The service of the summons upon C. S. Cottingham, as agent of the mythical corporation, did not bring him before the court individually. (Leatherman v. Times Co., &e., 88 Ky., 295.)</p> <p>2. C. S. Cottingham, upon whom the summons was executed as agent of the defendant corporation, having filed his answer showing that there was no such corporation to sue, and that he was not agent for it, and disclosing in his answer the proper parties to sue, by the rules of pleading at common law the action should have been dismissed without] prejudice, with a judgment for the costs of filing the answer. (1 Ohitty on Pleading, 16th Ed., 599.)</p> <p>3. The right of a complainant to amend his petition after answer filed so as to bring in new parties and sue them in the original action, is not an absolute right under our Code of Practice, but a right which the trial court has the power to control and limit in the exercise of a sound but broad discretion in each particular case, and no hard and fast rule has been or, in the nature of things, can be adopted to define this discretion of the trial courts; and unless it is manifest to this court that: the trial court has abused this discretion, and the complaining party has been injured in his rights by its action, this court will no more reverse the judgment of the trial court in allowing or refusing such amendments than it would reverse it for its decision upon any other question of fact. (Greer v. City of Covington, 83 Ky., 416; Civil Code, sec. 134; Fleming v. Courtenay, 98 Me., 57 Atl., 592; Knapp v. McGowan, 96 N. Y., 75; McWilliams v. Anderson, 68 Ga., 772;, Noll v., Swineford, 6 Pa. St., 187; Wilson v. Wallace, 8 Serg. & R., 53; Chamberlin v. Hite, 5 Watts, 373; Couteaa v. Hewitt, 10 M|o., 131; Leatherman v. Times Co., &c., 88 Ky., 292.)</p> <p>4. The Civil Code (see. 132); gives the plaintiff in an action the absolute right to amend his complaint at any time before an answer is filed, and the several decisions of this court upholding this right are not in point in the solution of the question involved here, as all such decisions were simply enforcing a right given by the Legislature, but not given after answer filed except allowed by the trial court under sec. 134 of the Code.</p>

<p>Case 82. — SUIT BY T. J. HILL AGAINST J. F. HOLDAM1 2AND OTHERS, AS THE DEMOCRATIC) COMMITTEE FOR LINCOLN COUNTY, TO ENJOIN THEM) FROM PROCEEDING WITH AN ELECTION CONTEST.</p> <p>Appeal from Lincoln Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Prom a judgment dismissing his petition plaintiff appeals.</p> <p>We submit that we have established four propositions of law, to wit:</p> <p>1. Courts have jurisdiction of the matters in issue herein.</p> <p>2. Notice of contest, in a primary election, must be given and filed within ten days after the final action of the county committee, or governing authority of the party.</p> <p>3. A petition or specification of the grounds of contest must also be filed with the committee, or governing authority of the party, and within ten days after their final action.</p> <p>4. The giving the notice of contest, and the filing of the petition, within the time prescribed by law are jurisdictional facts, and without them the committee or governing authority of the party have no right to hear or determine the claim of any defeated candidate.</p> <p>AUTHORITIES CITED.</p> <p>On the question of jurisdiction: Eagan v. Gerwe, 23 Ky. Law Rep., 1495; Brown v. Rep. Ex. Co..Com., 23 Ky. Law Rep., 242Í; Young v. Beckham, 24 Ky. Law Rep., 2136; Neal v. Young, 25 Ky. Law Rep., 186; Mason v. Byrley, 84 S. W., 767.</p> <p>On sufficiency of notice and necessity for petition, and time of filing: Ky. Stats., secs. 1551, 1563; Ky. Elec. Laws, sec. 79; Henry v. Secrest, 24 Ky. Law Rep., 1505; Beazley y. Adams, 82 S. W., 249.</p> <p>On -computation of time: Batman v. Megowan, 1 Mete., 533; Irwin v. Irwin, 20 Ky. Law Rep., 1762; Combs v. Eversole, 24 Ky. Law Rep., 1065; Smith v. Lawler, 25 Ky. Law Rep., 1782.</p> <p>1. The lower 'court had no jurisdiction to entertain the injunction proceedings instituted by appellant.</p> <p>This is a contest and dispute over the title, to the nomination of the party for the office of sheriff, and sec. 1563 of the Statutes of Kentucky gives to the governing authority of the party in the county the exclusive jurisdiction to hear and determine such a dispute or contest between rival aspirants for such honors.</p> <p>2. Appellant submitted himself to- the jurisdiction of the committee and invoked a hearing and determination of the questions raised by him alone, and having met with an adverse decision of these questions he now seeks to have the court consider and determine these same questions again.</p> <p>3. The statutes does not make any provision for an appeal from the decision of the committee upon the merits of the contest, or any question decided in the contest.</p> <p>4. Appellant recognizes this in resorting to the extraordinary remedy of an injunction in these proceedings, and his action in doing so is wholly unwarranted.</p> <p>5. The lower court did not and could not enjoin the committee from exercising the jurisdiction exclusively conferred upon it by sec. 1563, Ky. Stats. That section points out the .only way and the only tribunal before which a contest can be heard and determined.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec.' 1563; Commonwealth v. Combs, 86 S. W., 699; Moody v. Trimble, 109 Ky., 139.</p>

<p>1. Real Estate — Liability for Debts of Ancestor — Sale by Heirs or Devisees — Limitation — Formerly, under the common law, the heir or devisee could alienate lands received by devise or descent at any time after the death of the ancestor, and pass a good title to a bona fide purchaser for a valuable consideration, but under the present statutes of this State this can not be done until after six months from the date of the death of the ancestor. And the only way to prevent or defeat the creditors of the deceased^ from subjecting his land to the payment of their claims is by a voluntary alienation by the heir or devisee after six months from the date of the death of the ancestor.</p> <p>2. In equity and good conscience the debts of the deceased should be' paid out of the estate left by him before it should be made to pay the individual debts of the heir or devisee.</p>

<p>Primary Elections' — Contest — Notice — Committeeman—Disqualification — Other Bias — Governing Authority — 'Discretion—Interference by Court.</p> <p>1. Primary Elections — Contest—Notice—Under see. 1596a, sub-sec. 12, Ky. Stats., primary election contests for members of' tbe General Assembly are governed by tbe former law, approved June .30, 1892, which requires only a fifteen days’ notice of the contest.</p> <p>2. Committeeman — Disqualification—Under the rule of the common law, that no man may be a judge in his 'own case, and, if he acts, the judgment is void, a brother of one of the parties to an election contest is not qualified to sit as one of the . committeemen in the trial of a primary election contest.</p> <p>3. Other Bias — The fact that the seats of one or more members of the committee are contested does not disqualify them 'from acting in other contested cases, so long as they are members of the committee. If the contests are decided against them, then their powers cease, but until then their powers are not affected by a contest.</p> <p>4. Same — The fact that certain members of the committee are friends of one of the parties to the contest and induced voters to vote for him in the primary, in the absence of any statute disqualifying them, are not disqualified on common law principles, as they act under oath, and are responsible if they do not act honestly and faithfully.</p> <p>5. Governing authority — Discretion—Interference of Court — ■ This court has no authority to require the committee to recount the vote. They are the governing authority, and may determine the form and manner of the proceedings in the case. ¡While the court may require them to act, the court can not control their discretion. This must be exercised under their oath and according to their honest judgment.</p>

<p>Foreign Corporations — Franchise Tax — Double Taxation.</p> <p>1. Foreign Corporations — Franchise—Double Taxation — Ky. Stats., secs. 4077 to 4091, inclusive, prescribe an elaborate system for the taxation of the franchises of all corporations, whether foreign or native, doing business in this State; and) secs. 4080 and 4081 are applicable to foreign corporations alone. These show conclusively the legislative intent to tax the franchises as foreign corporations, and not as naturalized corporations.</p> <p>2. Same — The cardinal principle of ad valorem taxation in Kentucky is that all property not specifically exempt therefrom by the Constitution, whether real or personal, tangible or intangible, and whether owned by individuals or corporation^ must, for the benefit of each taxing jurisdiction in which it is liable, be taxed once and no more.</p>

<p>Primary Elections — Contests—Notice—.Governing Authority— Review.</p> <p>1. Primary Elections — Contests—Notice—Under sec. . 1563, Ky. Stat-s., which- provides that “in .all cases of a tie vote or contest in primary elections the committee or governing authority holding such primary shall have the power to hear and determine such contest, and decide who shall he entitled to the nomination,” it is essential that notice of such contest be given to enable the committee to try the contest.</p> <p>2.Governing authority — Review—The courts have no.. jurisdiction, directly or indirectly, to review the action of the committee or governing authority..</p>

<p>Actions — Same Transaction — Separate Recoveries — Estoppel— Distribution of Judgment — Different Parties.</p> <p>1. Actions — Same Transaction — Separate Recoveries — Estoppel— "Where an action is brought and a recovery had by the personal representative for the killing of plaintiff’s intestate, a subsequent action can not be maintained for the killing of a horse and destruction of a buggy which occurred at the same time of the killing of plaintiff’s- intestate. The rule is that the entire claim arising out of a civil transaction, ' whether in the nature of a contract or tort, can not be divided into separate and distinct claims and each form the basis of an action.</p> <p>2. Distribution of Judgment — Different Parties — The fact that one item of damage should be distributed in a different way from another does not prevent a recovery in one action. Under proper instructions the jury could have said what part was for the destruction of the horse and buggy, and what part for the destruction of the life of the intestate, as the action for both items of damage was- in the personal ■representative and t-he liability against the same defendant.</p>

<p>Taxation — Franchise Taxes — Penalties—Interest.</p> <p>1. Taxation — Franchise Taxes — Penalties-—-Ky. Stats., 1903, sec. 1882, authorizes the fiscal court to levy a poll and ad valorem tax for county expenses. Sec. 1883 provides that assessments made for State purposes shall be the basis for the levy of ad valorem taxes. Sec. 1885 provides that “said taxes” shall be .due at the same time; and carry the same penalties, as State taxes. Sec. 4143 provides -that State and county taxes shall be due on March 1st, and, if not paid by December 1st shall carry a 6 per cent, penalty. See. 4077 provides for the -assessment of the franchises- of certain corporations for State and county taxes. Sec. 4091 provides that corporations failing to pay the franchise taxes after 30 days’ notice shall be deemed delinquent, and a penalty of 10 per cent, and 10 per cent interest shall be added to the tax. Held — That the taxes referred to by sec. 1885 are the poll and ad valorem taxes authorized to be levied by secs. 1882 and 1883, and fall due at the time provided, and carry the penalty imposed by sec. 4143; the 10 per cent, penalty and interest imposed by sec. 4091 applies only to taxes levied by the State for State revenue; and a tax levied by the county on 'the franchise of a corporation bears only the 6 -per cent, penalty prescribed by sec. 4143.</p> <p>2. Interest- — Taxes do not bear interest until the bringing of an action thereon, unless otherwise provided- by statute.</p> <p>3. Same — A tax, made collectible by suit, bears interest from the date of the filing of the petition.</p>

<p>Case 89. — PROSECUTION 'AGAINST C. H. WHEELER, JOINTLY INDICTED WITH OTHERS FOR MURDER.—</p> <p>Appeal from Oldham Circuit Court.</p> <p>R. F. Peak, Circuit Judge.</p> <p>Defendant convicted of voluntary manslaughter and appeals.</p> <p>1. Voluntary manslaughter is the unlawful intentional killing of another without malice.</p> <p>2. The phrase “unlawful” is in no case essential unless it be a part of the description of the offense as defined by some statute; if the facts, as stated, be illegal, it is superfluous to allege it to be unlawful.</p> <p>3. An aider or abettor is one who did not commit the act with his own hands, but was present, aiding and abetting it.</p> <p>4. An accessory before the fact is one who being absent at the time of the crime committed, doth yet procure, counsel or command another to commit a crime.</p> <p>5. One indicted as principal can not be convicted on proof showing him to be only an accessory before the fact.</p> <p>6. If an act charged to have been committed or done with a felonious intent to commit a crime, and it appears that the crime though perpetrated would not have amounted to a felony, the word should be rejected as surplusage.</p> <p>7. It will be noted that the jury is told if defendant advised such shooting, he was guilty; the jury is not told that he must be present at the shooting. But, says the Commonwealth, he admits he was present, and, therefore, he was not prejudiced by that omission; although that be conceded, yet. the omission is fatal, in that the instruction failed to tell the jury that the advice and assistance given by defendant must be given then and there at the time and place, when and where the shot was fired. The court should have instructed the jury that it was necessary to the guilt of defendant that he should be at the time and plac? of the shooting, and then and there present advising and assisting.</p> <p>CASES CITED.</p> <p>4th Blackstone, p. 92; Mitchell v. Commonwealth, 78 Ky., 222; ■Green v. Commonwealth, 111 Ky., 99; Montgomery v. Commonwealth, 26 Ky. Law Rep., 356; Wharton on Criminal Law, sec. 402; Able v. Commonwealth, 5 Bush, 700 and 705; Wharton on Criminal Law, sec. 400; Campbell v. Commonwealth, 88 Ky., 412; True v. Commonwealth, 90 Ky., 654; Constitution, sec. 2; Ky. Stats., 89; Martin v. Commonwealth, 93 Ky., 194.</p> <p>1. The important question of fact in this case is, did these defendants start out that morning to kill M'axfield, or to kill squirrels? If they set out from their homes, if they quit their work and armed themselves to go and kill M'axfield, then I think it can not be doubted that they cut themselves out of all right to rely on the plea of self-defense. It will be observed that there is no pretense or claim of any provocation; there is here no question about retreating from the conflict. The issue is plainly and sharply made between the defendants and the Commonwealth. They say “we went out to lull squirrels, and we had no thought of seeing Maxfield; we did not know that he was in the neighborhood until we suddenly came upon him, and he commenced to fire on us.” The Commonwealth says “you went to kill Max-field; you knew where to- find him, and went there to look for him; your defense is a fraud and a sham; you killed him without excuse or provocation; the pistol story is all made up.”</p> <p>2; The instructions present the view of the case from] the ■standpoint of the Commonwealth, and embodies the law of the land as we understand it.</p> <p>If they had any intention of killing him they had it when they left home, and they kept it up until they found and killed him; they killed him within half an hour after they started out to do it. If it be true, as the Commonwealth says, that they sought him out to kill him without excuse or provocation, then they should not be permitted to say “we shot him in self-defense.” They brought on the difficulty; they caused all the trouble. The evil intent was with them from the time they left their homes. As said in Johnson v. Commonwealth. 94 Ky., 578, “to seek a man’s life is the embodiment of criminal intent, and suggestive of the foulest assassination.” If “A.” arms himself and seeks “B.” with the intention of killing him, and does in fact kill him ■within an hour after he so arms himself, or if “A.” first attacks “B.” with the intent to kill Mm, when there is no excuse or provocation that justifies “A.” in seeking him out, or in first attacking him, then “A.” can not plead that he killed “B” in self-defense. The law will not permit a man who, without excuse or provocation, goes out and hunts up his fellowman to kill him, to say “I had to shoot him in self-defense.” But it is said that defendants must have had this unlawful intent at the time of the shooting, and the jury should have been so instructed. The jury could not have been misled by the language of the instruction under the facts of this case. The words “sought the deceased with the intent to kill him,” convey the idea that this evil intent was present every moment from the time they started out to seek him.</p> <p>AUTHORITIES CITED.</p> <p>1. Absence of judge from courtroom. (Ramey v. Commonwealth, 19 Ky. Law Rep., 390; Fuson v. Commonwealth, 11 Ky. Law Rep., 412; Ellerbee v. State, 41 L. R. A., 569.)</p> <p>2. Waiver of error. (Criminal Code, sec. 281; Curtis v. Commonwealth, 110 Ky., 845; Vinegar v. Commonwealth, 104 Ky., 106.)</p> <p>3. Error must be substantial. (Criminal Code, sec. 340; Rutherford v. Commonwealth, 78 Ky., 639.)</p> <p>4. Instructions as to seeking life of another. Denial of self-defense. (Johnson v. Commonwealth, 94 Ky., 578; Allen v. Commonwealth, 86 Ky., 642; Oder v. Commonwealth, 80 Ky., 32.)</p> <p>5. Threats. (Toung v. Commonwealth, 19 Ky. Law Rep., 929; Miller v. Commonwealth, 89 Ky., 653; Hart v. Commonwealth, 85 Ky., 77.)</p>

<p>Case 90. — SETTLEMENT SUIT BY ANN O. BEAN’S ADM’R AGAINST CAROLINE LOGAN AND OTHERS.</p> <p>Appeal from Clark Circuit Court.</p> <p>James M. Benton, Circuit Judge.</p> <p>From the jurgment defendants appeal.</p> <p>We insist that under the will of L. S. Logan, if his widow had no children at his death, then she had the right to consume both principal and interest of the ■ money received by her from the sale of the land, and if any residue is left at her death this residue “is to be hers to will or give away,” and if she fails to do either, the testator’s heirs take it. If, however, she has children at his death, she may control it to the extent of consuming both principal and interest; but any residue left at her death can not be. willed or given away, but should go to testator’s only child, subject, of course, to the payment of his debts. (Knut v. Knut, 22 Ky. Law Rep., 974; Ky. Stats., sec. 4847.)</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. The last clause of the will excluded -all of testator’s after-born children as a class, and the afterborn child, Caroline, has no interest in testator’s property under sec. 4847, Ky. Stats. (Sec. 4847, Ky. Stats.; sec. 4848, Ky. Stats.; sec. 4842, Ky. Stats.; Leonard v. Enochs, 92 Ky., 187; Blankenbaker v. Snyder, 18 Ky. Law Rep., .437.)</p> <p>2. A will which directs that all testator’s debts and funeral expenses be first paid, and that the money left be paid, over to. or invested for' his wife, as she might desire, and that the sale of all testator’s real and personal property be done as the executor thinks best; and which fixes no limitation on the estate bequeathed to the wife, and makes no devise over or other disposition- of the estate, vests the fee in the wife. (Sec. 2342, Ky. Stats-.; Constantine, &c. v. Mloore, &c., 23 Ky. Law Rep., 369; Snyder v. Baer, 13 L. R. A., 359, citing Morris v.- Phaler, 1 Watts, 389; Musselman’s Estate, 39 Pa., 469; Second Reformed. Presby. Church v.- Disbrow, 52 Pa., 219; Groves’ Estate, 58 Pa., 429.) .</p> <p>3.. Where the will directs the executor to sell testator’s land and to pay the residue of the proceeds, after the payment of debts, to the widow, or invest it for her, as she might desire, the devise is of money -and not of land, by the doctrine of equitable conversion. (Arnold v. Arnold, 11 B. M'., 88; Gedges, et. ux. v. Western Baptist Theological Inst., &c., 13 B. M., 537; Smith v. Moss, 4 Ky. Law Rep., 532; Goldsmith v. Cone, 7 Ky. Law Rep., 520.) '</p>

<p>Case 91 — ACTION BY JOSEPH A. ANDREW'S AGAINST LU-CASSIA B. ANDREWS’ COMMITTEE FOR DIVORCE FROM SAID LUCASSIA B. ANDREWS, WHO HAS BEEN ADJUDGED A LUNATIC.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>PROPOSITIONS ADVANCED AND AUTHORITIES CITED.</p> <p>It was error to sustain demurrer to petition:</p> <p>1. Because it contained all necessary allegations under sec. 2117, Ky. Stats., and sec. 423, Civil Code.</p> <p>2. Constructive process was proper against the lunatic.</p> <p>3. “Five consecutive years next before the application” means that they shall not have lived together after the termination of the five years and before the commencement of the action.</p> <p>4. Insanity of defendant does not deprive ,a plaintiff of a cause of action which accrued prior to the insanity. (Mansfield v. Mansfield, 13 Mas»., 412; Rathbun v. Rathbun, 40 How. Dr., 328; Douglas v. Douglas, 31 Iowa, 421; Stratford v. Stratford, 92 N. C., 297; Harrigan v. Harrigan, 135 Cal., 397; Mordaunt v. Mordaunt, cited in last above, and being a decision by English House of Lords.</p> <p>5. The lunatic and her committee were properly proceeded against under sec. 53, Civil Code.</p> <p>PROPOSITIONS ADVANCED.</p> <p>1. That the appellant must allege that cause for divorce was living separate and apart without any cohabitation for five consecutive years next before the application, and that he has not done so.</p> <p>2. That the warning order against defendant was not regular and should have been quashed because defendant’s residence is in Campbell county, Kentucky. . "</p> <p>3. That no lunatic can be sued for divorce in Kentucky, no matter what the grounds.</p> <p>4. That no action for divorce may be maintained in Kentucky except in' strict conformity to the statute, and that by doing ■so in this case the appellant would be suing for a divorce in which one year and nine months of the five years next before the application the defendant, Lucassia B. Andrews, was a lunatic. .</p> <p>CASES CITED.</p> <p>21 Ky. Law Rep., 955, Clark v. Clark; 15 Ky. Law Rep., 88, Pile v. Pile; 36 Georgia, 48, Worthy v. Worthy.</p>

<p>Case 92. — INDICTMENT AGAINST THE STANDARD OIL CO. FOR RETAILING OIL WITHOUT A LICENSE.</p> <p>Appeal from Jessamine Circuit Court. '</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant. Commonwealth appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>Sec. 4224, Ky. Stats., imposes a license tax upon the business of selling oil from wagons to retail merchants for re-sale. (Standard Oil Co. v. Commonwealth, 26 Ky. Law Rep., 927.)</p> <p>Engaging in that business without such license is a continuing offense up to the time of indictment, and can not, at the option of the Commonwealth, be split up into numerous separate offenses. (Wilson v. Commonwealth, 26 Ky. Law Rep., 685; Cawein v. Commonwealth, 22 Ky. Law Rep., 1734.)</p>

<p>Carriers — Tow Boats — Carrying Goods for Hire — Liability for Loss — Instructions to Jury — Evidence—¡Question for Jury.</p> <p>1. Carriers — Tow Boats — Carrying Goods for Hire — Liability for Loss-fin an action by a shipper of a lot of brick against defendant company, who was doing a general towing business on Green river, and who agreed to carry the brick for hire and which was lost while being so carried by striking a hidden snag in said river, Held — That while defendants’s boats were not common carriers at all times, still if on certain trips when they had not towing to do they held themselves out as ready to carry for all, they would be common carriers for the time being. )</p> <p>2. Same — Instructions to jury — On the trial of the case the jury 'should have been instructed that if defendant had expressly and publicly offered to carry for all persons, indifferently, or had by its conduct and the manner ofl conducting its business held itself out as ready to carry for all on such trips as the boat was then making, then it was> a common carrier and was liable, although, there was no negligence on the part of the defendant in the loss of the brick, but if defendant had not offered to carry for all persons, indifferently, or by its conduct or the manner of conducting its business held itself out as ready to carry for all, but only in each case acted in consequence of a special employment, it was not a common carrier and was not liable unless the bricks were lost by its negligence.</p> <p>3. Evidence — Question for Jury — Where there was any evidence tending to show that the defendant company was a common carrier the case should have been submitted to the jury to determine whether the defendant had assumed the character of a common carrier.</p>

<p>Case 94. — SUIT BY JAMES MUIR’S ADMINISTRATORS TO ENJOIN THE! CITY COUNCIL OF THE CITY OF BARDS-TO.WN FROM PASSING ON A QUESTION OF PLAINTIFFS’ LIABILITY FOR TAXES ON OMITTED PROPERTY.—</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for defendant. Plaintiffs appeal.</p> <p>1. The pretended tax ordinances attempting to make the tax' levies for the years for which said assessments are proposed to be made are each and all of them illegal, unauthorized and void, for the reason they were never published at all. •</p> <p>2. Said ordinances attempting to levy said tax, upon which it is proposed to base said assessment, are illegal, unauthorized and void, for the reason that they do not specify distinctly the purposes for which said taxes are levied.</p> <p>3. The ordinances under which appellees are assuming to act in the trial of this case were published, and attempted by that publication to be put in force some six months after the death of James Muir; that said pretended ordinances, by reason thereof, are retrospective in their language and ex post facto in their character, are void.</p> <p>4. Appellee, the city council, has no right or authority in law to maintain or prosecute said proceeding as against these plaintiffs, as administrators, to assess said property as against said estate, or to make said assessment, or enter or make any judgment whatever as to said matter, because said city council is distinctly a legislative body, and not a judicial or ministerial one, and has none of the power or authority of the judiciary whatever.</p> <p>5. The proper remedy against a municipal corporation for attempting to exceed its authority and power is by injunction.</p> <p>6. A court of equity in granting an injunction is not confined to the grounds .of relief specified in the Civil Code of Practice, but has the power to grant relief upon other well-recognized grounds of equity jurisdiction, not specified in that Code; and has the power to enjoin and restrain an illegal assessment.</p> <p>7. The curative ordinances passed by appellee city just before the submission of this case should not be permitted in this case, and should not have been permitted to be filed by the trial court, nor permitted in any way whatever to control or have a part in ■the determination of this controversy.</p> <p>8. We respectfully insist and submit that these ordinances passed in May, 1903, are wholly invalid, for the reason that they were not passed as required by the charter, and we submit and respectfully insist that none of these tax ordinances, either the original ordinances or those of May, 1903, for the years 1895 to 1900, inclusive, are legal, and respectfully submit that all of them are wholly invalid and void for the reason that none of them were passed at a regular meeting, such as is required by the charter of appellee city.</p> <p>9. A city ordinance is a law, and it must be passed at a regular meeting of the city council of the city passing such ordinances in order to make it a valid law.</p> <p>10. Ordinances levying taxes and imposing duties on citizens' are to be construed most strongly against the government and in favor of the citizen, and their provisions are not to be extended by implication beyond the clear import of the language- used, or to enlarge their operation so as to embrace matters not specially pointed -out, although standing upon' a close analogy.</p> <p>11. The provisions of the charter with reference-to the passage of ordinances are mandatory as to the municipality.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., secs. 3653, 3638; Dillon Munic. Corps., 4th Ed., secs. 331, 309; City of Covington v. Ludlow, 1 Met., 295; City of Louisville v. M-cKegney, &c,, 7 Bus-h, 653; Const, of Ky., secs. 180, 109, 143; Ky. Const., Bill of Rights, sec. 19; 2 Duvall, 480; Judge Story on the Constitution, 5th Bd., -sec. 1345; O-lds- v. Commonwealth, 3 A. K. Mar., 467; -Roberts v. Hackney, 22 Ky. Law Rep., 975; Cassady, Auditor’s Agent v. Young, County Judge, 92 Ky., 232; Louisville Water -Co. v. Clark, Sheriff, 14 Ky. Law Rep., 886; Pottinger v. Stevens-, &e., 14 Bush, 327; Gates v. Barrett, &c., 79 Ky., 296; Baldwin v. Shine, Presiding Judge, &c., 84 Ky., — -; T-weatt v. Bank of Hopkinsville, 81 Ky., 8; Allison v. Lou., Harrod’s Creek & Westport R. W. Co., 9 Bush, 254; Gaines v. Gaines, &c., 9 B. Mon., 300; McQuillan on Municipal Corporations, vol. 1, Ed. 1903, secs. 503, 511 and 502; 5 Ky. Law Rep., 613, 865; 7 Ky. Law Rep., 165; 6 Ky. Law Rep., 525; 4 Ky. Law Rep., 258, 753 and 838.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Cities of the fifth class of Kentucky have the power, and it is the duty of the city council of such cities, to enact an ordinance providing a complete system for the assessment, levy and collection of. all municipal taxes, and when such an ordinance provides for the assessment of property omitted, same is not ultra vires or void. (Ky. Stats., secs. 3655, 3656, 3644, 4241; sec. 181, Ky. Const.)</p> <p>2. An ordinance which provides a system for the assessment of property omitted does not impose a new' or additional obligation against the citizen, which did not already exist, but such obligation is a subsisting liability, in nowise dependent upon assessment. (Board of Council of Frankfort v. Miason- & Ford C’o., 100 Ky., 54; Elliott v. City of Louisville, 19 Ky. Law Rep., 414; Mlarion County v. L. & N. ,R. R. Co., 91 Ky., 393.)</p> <p>3. The city council in making an assessment of property omitted from taxation does not exercise a judicial power, which, under the law, it has no authority to exercise, but performs merely a ministerial duty. (Baldwin v. Shine, 84 Ky., 513; Pennington v. Woolfolk, See., 79 Ky., 13; Ky. Stats., secs. 3542, 3637.)</p> <p>4. The fact that there is no appeal provided for from the action of the city council making an assessment under the ordinance does not affect .the validity of the ordinance, the right of appeal being merely statutory. (Paducah St. Ry. Co. v. County of Mc-Cracken, 20 Ky. Law Rep., 1295.)</p> <p>5. Presumption of regularity is extended to the acts of public officers and public records; ■ and when an ordinance is attacked and its validity questioned because of alleged irregularities in form, and otherwise, the burden of proof is on one who questions their regularity. (Jones’ Law of Evidence, vol. 1, secs. 39 and 40; same, vol. 2, secs. 526 and 527; Marion County v. Wilson, 20 Ky. Law Rep., 1193; Henning v. Stingel, 68 S. W. Rep., 41; Mason, Ford & Co. v. Board of Council of Frankfort, 100 Ky., 55; Thompson Com. of the Law of Cor., vol. 3, sec. 3927; 21 Amer. & Eng. Ency. of Law, 957 and 978; Bell’s Trustee v. City of Lexington, 85 S. W. Rep., 1081; Dillon’s Munic. Cor., vol. 1 (4 Ed.), sec. 294.)</p> <p>6. Because a part of an ordinance is invalid does not render the entire ordinance void; but if the whole ordinance is invalid, then it could not repeal the 1899 ordinance, and same is in full force and effect. (21 Amer. & Eng. Ency. of Law, 1001; 21 Amer. & Eng. Ency. of Law, 993; Dillon’s Munic. Cor., vol. 1 (4 Ed.), sec. 333; St. Louis v. Foster, 52 Mo., 513.)</p> <p>7. The petition, and same as amended, fails to state a cause of action, and the demurrer should have been sustained. (10 Ency. of Plead. & Prac., 927, 932; Newman on Plead. & Prac.; Ludlow v. City of Ludlow, 19 Ky. Law Rep., 1383; City oí Louisville v. Hlyatt, 2 B. Mon., 180; McNulty v. Toope, See., 25 Ky. Law Rep., 433; Bell’s Trustee v. City of Lexington, 85 S. W. Rep., 1082 j Commonwealth, For, &c. v. Williams, 27 Ky, Law Rep., —</p> <p>8. Even though the city council has by inadvertance or neglect failed to make a proper tax levy, still the city is not without remedy, but it may subsequently do so, even while a suit is pending, which questions the validity of same. (Cooley on Con. Lim., 5 Ed., 279; Levi v. City; of Louisville, 97 Ky., 394; City of Somerset v. Somerset Banking Co., 22 Ky. Law Rep., 1129; City of Pineville v. Burchfield, 19 Ky. Law Rep., 985.)</p> <p>9. The appellant failing to regard the statute requiring the validity or constitutionality of all ordinances to be tested by writ of prohibition, he has no right to maintain this action. (Ky. Stats., sec. 3639; Bybee v. Smith, 22 Ky, Law Rep., 467, 1684.)</p> <p>10. The minutes of the council reciting that the ordinances in question were passed at a regular meeting, 'the burden is on appellant to show that it was not a regular meeting. • (21. Amer. & Eng. Ency. of Law, 957 and 978; Thompson’s Com. Law of Corporations, vol. 3, sec. 3927; Dillon Munic. Cor., vol. 1 (4' Ed.), sec. 333; Same, vol. 1, sec. 314.)</p>

<p>Pire Insurance — Written Contracts — Ambiguity—Construction— Extrinsic Evidence — 'Terms—Changed Meaning — 'Judicial Notice — 'Time—Standard—Custom—Noon—'Meaning of — Guide to Determine — ¡Expiration of Policy — Liability of Insurer.</p> <p>1. 'Written Contracts — Ambiguity—Construction—Extrinsic Evidence — 'The construction of words in a written contract is for the court generally; if ambiguous the meaning intended may be gathered by the «aid of parol or other extrinsic evidence, or if used in a sense peculiar to some special calling or trade the custom may likewise be shown by parol, which has given the word its extraordinary meaning in the case.</p> <p>2. Terms — Changed Meaning — Judicial Notice — Terms in contracts in which time is the essence are construed according to the common or general meaning of the words. This is 'because they come to be so frequently employed in a different sense from that of their former meaning that the changed meaning comes to be the common one. Of these changes the court must take notice as they do, judicially, of all matter's of common knowledge.</p> <p>3. Time — Standard—Custom—Evidence—Contracts to begin or end at an hour certain, without naming a standard for reckoning the hour, must be deemed to have intended the system in most common use. Or, if more than one standard was in use at the place where the contract was to be performed, and as both could not have been intended, it is admissible to prove the prevailing custom at the place of performance in the business of which the contract under consideration partook, that the court might determine which was probably in the minds of the parties.</p> <p>4. Noon — Meaning of — Guide to Determine — In determining whether the word “noon,” as used in a written contract of insurance, meant 12 o’clock standard time, the following guide should he given to the jury: “If the jury believe from the ' evidence that at the time the policy of insurance was issued there existed in the place where the contract was made a custom or usage with reference to the meaning of the word noon, so well settled, uniformly acted upon, and of such continuance as to raise a presumption that plaintiffs and defendants knew of it, and entered into the contract of in-</p> <p>v surance sued on with reference to it, such usage will govern the jury in arriving at their conclusions.”</p> <p>5. Insurance — Expiration of Policy — Inevitable loss — Liability of insurer — If a fire broke out in the insured building before the policy expired, and continued to burn thereafter till it was totally destroyed, the loss is one occurring within the insured period. It is all deemed one event and not severable. A damage begun is damage done where the- culmination is the natural and unbroken sequence of the beginning, but where the fire did not break out in the insured building before noon of .the day the policy expired, the company is not liable although it was inevitable, at the noon hour, that the building would be destroyed ' by the .fire then raging which had broken out in another building.</p>

<p>Case 96. — ACTION BY W. E. MATTINGLY AGAINST THE 'SPRINGFIELD FIRE AND MARINE INS'. CO.</p> <p>Appeal from Marion Circuit Court.</p> <p>Chas. Patteson, Circuit Judge.</p> <p>Judgment for defendant. Plantiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The company knowingly waived; retained with assent; itself waived all conditions for 22 months; waived all forfeiture. (87 Ky., 285; 84 Ky., 147; 70 Iowa, 238; 135 Ala., 259; 106 Ky., 815.)</p> <p>2. Under the statute this corporation “collected and received” full premiums off plaintiff on total loss by fire to building; must pay full policy liability to its policy holder, the plaintiff. (Ky. Stats., sec. 700; 101 Ky., 412; 67 S. W- Rep., 23, late Kentucky case.)</p> <p>3. A mortgagee with $4,000 lien 'debt unpaid at time of loss can recover to amount of his unpaid lien debt. (Royal Ins. Cb. v. Stinson, 103 U. S., 25; 32 Md., 421; 7 Cush. (Mass.), 1; 54 Am. Dec., 683; 97 Ky., 474.)</p> <p>4. Wlaiver of conditions. (87 Ky., 285, 531; 108 Ky., 815; 16 Ky. Law Rep., 346; 98 Ky., 305; 87 Ky., 125; 85 Ky., 304.)</p> <p>5. Appellant’s right to recover without regard to value of property remaining after loss, and without foreclosure proceedings. (103 U. S., 25; Ins. Co. v. Stinson; May on Ins. (4 Ed.), vol. 2, pp. 993, 994.)</p> <p>1. Insurance is a personal contract. It does not run with land in the case of real estate, and the contract, unless it be assigned to the purchaser with the consent of the insured, is at an end, and no suit can be obtained on it, neither by the purchaser nor vendor. • • !"</p> <p>2. The assent pleaded was : executory. Mattingly found the agent willing to make the endorsement of transfer, but never presented the policy to have if .actually made.</p> <p>3. Where there has1 been no policy issued to a lien holder, and no express agreement incapable of other construction, it can not be assumed that the insurance company has waived the conditions of its policy issued to the absolute owner. We submit the demurrer to the petition was properly ' sustained. (Civil Code, sec. 109, sub-sec. 1; Ky. Stats., sec. 700; Caledonian Ins. Co. v. Cooke, 19 Ky. Law Rep., 653; Shawe v. Felton, 2 East., 109; McKinney v. Western Assurance Oo. of Toronto, 97 Ky., 474.) ' ' ‘</p>

<p>Case 97. — ACTION BY WESTERN BANK OF LOUISVILLE AGAINST COLDEWEY’S EX’TX AND OTHERS FO'R NEGLIGENCE OF INTESTATE, ANTON F. COLDEWEY, IN DISCHARGE OF OFFICIAL DUTIES AS PRESIDENT OF THE BANK.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (1st Divison).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. An officer of a bank, which has an active board and discount committee, who permits overdrafts to be made without the consent of the board of directors, commits a breach of trust, and is presonally liable if the bank suffers a loss by it. (Morse, secs. 357, 358.) Otherwise, where the bank has no active board and the whole management is left to the president ’and cashier. (Pryse v. Farmers Bank, 17 Ky. Law Rep., 1056, 33 S. .W., 532; First National Bank v. Reese, 25 Ky. Law Rep., 778, 76 S. W., 384.)</p> <p>2. The custom or practice of a bank of allowing its officers to exercise discretion in permitting overdrafts is against public policy, and is no defense to a suit -against such officer to recover a loss caused through an overdraft permitted without the knowledge of the board. (Minor v. Bank of Alexandria, 1 Peter, 1; Breese v. U. S., 106 Fed. Rep., 680 [C. C. App.]; Market Street Bank v. Stumpe, 2 M'o. App., 545; Lancaster Bank v. Woodward, 18 Pa. St., 357.)</p> <p>3. Not even where the president and some of the directors occasionally overdraw. (Market Street Bank v. Stumpe, 2 Mo. App., 545.)</p> <p>4. The president of a bank is its chief executive officer (Savings Bank v. Benton, 2 Metcalf, 240); he is the superior of the cashier (Pryse v. Farmers Bank, 17 Ky. Law Rep., 1056; Commercial Bank v. Ten Eyk, 48 N. Y., 305); he is the principal trustee of the funds of the bank (Brown v. Farmers and Merchants National Bank, 88 Tex., 265.)</p> <p>5. If the president directs the cashier and other employes to honor the overdrafts of a particular customer without the consent of the board of directors, he is guilty of a breach of trust, and liable for the loss caused by it, and though the cashier may be his accessory in the breach of trust, this does not excuse the president. (Oakland Bank v. Wilcox, 60 Cal., 126; Brown v. Farmers and Merchants National Bank, 88 Tex., 265; First National Bank v. Reid, 36 Mich., 263 [Cooley]).</p> <p>6. If the president’ establishes, by his directions, a practice to1 permit overdrafts to a certain customer, and then absents himself for a time without giving contrary 'directions, he is liable for the loss suffered from overdrafts of the same customer permitted in his absence. (Oakland Bank v. Wilcox, 60 Cal.,'126.)</p> <p>7. Concealment of facts on the part of a fiduciary from his cestui que trust constitutes actual fraud. (Pomeroy Eq., sees. 901, 902.)</p> <p>8. It is not the duty of unsalaried directors to suspect fraud on the part of the officers, to examine the individual ledger and other books, and to see whether the reports of the officers are truthful and correct. (Dunn v. Kyle, 14 Bush, 134; Savings Bank v. Caperton, 87 Ky., 319.) They are not liable to the bank for signing reports fradulently prepared by the officers, which they, the directors, believed to be true. (Trimble v. Reid, 97 Ky., 716; Utley v. Hill, 155 Mo., 232.) And their failure to investigate the books of account, which might have disclosed overdrafts, does not exonerate the president.</p> <p>9. The suit by a bank against the party to whom an officer has improperly loaned its funds, and the suit by the bank against the officer to recover the damage done thereby, are not inconsistent remedies, and the latter may be pursued after the former. (Bank of St. Mary’s v. Calder, 3 Strobt. Law, 403; Cassell v. Mercer National Bank, 22 Ky. Law Rep., 1009; Goodyear Vulcanite Co, v, Cacluc, 144 Mass,, 85.)</p> <p>10. A compromise of the claim of the corporation with the party to whom its money was improperly loaned by its officer, if made in .good faith, does not estop it from bringing suit against its officer for the loss sustained by his breach of trust. (Goodyear Vulcanite Co. v. Caduc, 144 Mass., 85.)</p> <p>11. Facts amounting to an estoppel must be pleaded and clearly and satisfactorily proved. (Ball v. Briggs, 19 Ky. Law Rep,, 829.)</p> <p>12. A party may be estopped as to one devisee so as not to be able to recover the proportionate part of a debt which would fall upon that devisee’s share, without being estopped from re- • covering the rest of the debt which would fall upon the shares of the other devisees. (Southworth v. Sebree, 19 Ky. Law Rep., 704.)</p> <p>13. In order to constitute an equitable estoppel by conduct it is necessary:</p> <p>(a.) That the attorney whose conduct is relied upon has authority to waive his client’s rights. (Norris v.' Williams, 23 Ky. Law Rep., 1497.)</p> <p>(b.) That knowledge on the part of such person of tile true state of facts and of his rights be clearly alleged in the pleadings and proved. (Wait v. Gover, 11 Ky. Law Rep., 750; Ford v. Mayo, 91 Ky., 88; Bank of Commerce 'v. Payne & Viley, 86 Ky., 446; Banks v. Collins, 20 Ky. Law Rep., 46; Henshaw v. Bis-sell, 18 Wall., 255; Smith v. Sprague, 77 N. W., 689 [Mich.].)</p> <p>(c.) That the persons pleading the estoppel have been injured by acting on the false statement. (Louisville Banking Co. v. Asher, Ass’ee, 23 Ky. Law Rep., 1661; Thomas v. Sweet, lb., 1599; Price v. Keeney, 5 Ky. Law Rep., 706; Massie v. Hiatt, 82 Ky., 314.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. This is an action in tort for alleged negligence or wrongful act, and no recovery can be had unless the appellant, in addition to proving its charges of negligence or wrongful act, also proves damage to it as the direct and proximate result of such alleged negligence or wrongful act. In order to do this appellent must establish three propositions:</p> <p>(a.) That under the facts of this case some duty rested upon Anton F. Coldewey to 'discover and to prevent the overdrafts allowed in the Western Bank by the cashier'with the knowledge and sanction of the board of directors.</p> <p>(b.) That this alleged 'duty was violated of neglected by Anton F, Coldewey,</p> <p>(e.) That overdrafts were allowed during the administration of Anton F. Coldewey as president of the Western Bank, in violation of some duty owing from him to the bank, and that such overdrafts have never been paid. Of course there is no damage unless they remain unpaid.</p> <p>2. The appellees defend this action on the following grounds, viz.:</p> <p>(a.) They deny in toto the charges of fraud or wrongful act against Anton P. Coldewey.</p> <p>(b.) They deny in toto the charges- of negligence against Anton P. Coldewey.</p> <p>(c.) They -deny that any loss or damage accrued to the appellant, either directly or indirectly, from any fraud, negligence, or wrongful act alleged against Anton P. Coldewey.</p> <p>(d.) They show by this record that -the overdrafts charged to have been authorized by Anton P. Coldewey were in fact authorized by Prese, the cashier, with the knowledge and sanction of his board of directors, who ratified the cashier’s- acts in allowing such overdrafts.</p> <p>(e.) They show by this record that so far from any loss- having accrued to -the Wfestern Bank from overdrafts allowed in the lifetime of Anton P. 'Coldewey in the two accounts complained of, all of such overdrafts have been paid in full since his death, and that the only overdrafts in such accounts remaining unpaid are those which were allowed by the cashier, P-rese, long after the death of Anton P. Coldewey.</p> <p>(f.) They showed by this record that after the death of Anton P. Coldewey the Western Bank, through its hoard of directors, with full-knowledge of the facts, ratified the acts of its cashier and other officers in allowing overdrafts in the two accounts in question, and, moreover, entered into a contract with W. G. Coldewey whereby its claim against him on -account of these overdrafts was expressly satisfied, and he was released from further liability thereon. The effect of this contract was to discharge the estate of Anton P. Coldewey from any liability with which it might, by any possibility, have been theretofore chargeable on account of such overdrafts-. Furthermore, as a condition of making this contract, the Western Bank expressly waived any-claim which it might theretofore have asserted against the estate of Anton P. Coldewey on account of such overdrafts.</p> <p>3. The nature of th'e attack made in this action upon Anton P.’ Coldewey is such as to show an utter want of equity in the appellant’s case. It is a cowardly attempt by the living directors of the Western Bank to impose upon the estate of Anton P. Coldewey for their own benefit a liability for acts done or omitted to be done by themselves.</p> <p>4. The record in this case not only fails to make out any case of fraud or negligence or wrongful act on the part of Anton F. Coldewey whereby any loss resulted to the Western Bank, but it shows that the cashier and the board of directors of the Western Bank permitted the overdrafts out of which the losses claimed in this case resulted, feeling, when they did so, that the extension of such credit to W. G. Coldewey was perfectly safe and for the best interests of the Western Bank.</p> <p>5. The Western Bank did not have an active discount committee or advisory board. On the contrary the cashier, under the usage of the bank, had plenary power to act for the bank in the matter of loans and discounts and overdrafts, and he exercised this power time and again through a long course of years, with the sanction of the board of directors. There is absolutely nothing in this record to" distinguish this case from two Kentucky cases relied on by us, viz.: Pryse v. Farmers Bank, 17 Ky. Law Hep., 1057; First National Bank v. Reese, 25 Ky. Law Rep., 778. Moreover, such a committee or advisory board would, under the by-laws and usage of the Western Bank, have had nothing whatever to do with the allowance of overdrafts, being concerned only with loans upon or discounts of commercial paper.</p> <p>6. The cashier, and not the president, of the Western Bank was its chief financial and executive officer. This is not only true under the law, but especially true under the usage which prevailed in the Western Bank. (Zane on Banks and Banking, secs. 98, 100, 105; Morse on Banks and Banking, secs. 143, &c., 156,. <£c.; Dunn v. Kyle, 14 Bush, 134;- Batchelor v. Planters Bank, 78 Ky., 435; Jones v. Johnson, 86 Ky., 543; S'avings Bank v. Caperton, 87 Ky., 313; Wheat v. Bank of Louisville, 9 Ky. Law Rep., 739; Reno v. James, 16 Ky. Law Hep., 60; Pryse v. Farmers Bank, 17 Ky. Law Rep., 1057; Bobb v. Savings Bank, 23 Ky. Law Rep., 821; First National Bank v. Reese, 25 Ky. Law Rep., 778; Briggs v. Spaulding, 141 U. S., 132; Clews v. Bardon, 36 Fed. R., 620.)</p> <p>7. The board of directors of the Western Bank had not only in law, but in fact, actual knowledge or notice of the overdrafts in the two accounts in question, and with such notice or knowledge expressly sanctioned the overdrafts and permitted them to continue. A notice to one director is a notice to the entire board of directors. (Mors'e on Banks and Banking, secs. 112, 133, 134, 296; Grant County Deposit Bank v. Poynts, 22 Ky. Law Hep., 108.)</p> <p>8. The testimony relied on by the ‘appellant in this case is entitled to very little credit in any court. (Bobb v. Savings Bank, 23 Ky. Law Rep., 824.)</p> <p>9. The overdrafts which accrued during the lifetime of Anton F. Coldewey have all been paid by discounts an'd deposits credited to the same accounts since his death. It is not even necessary for this court to make the application of such credits, as the parties themselves have made this application, and by so doing have extinguished all overdrafts that may have existed prior to Anton F. Coldewey’s death. (Grant County Deposit Bank v. Poynts, 22 Ky., Law Rep., 105; Clayton’s Case, Devaynes v. Noble, 1 Merivale, 608; 3 English Ruling Cases, 351-355, and notes; Zane on Banks and Banking, sec. 160; Morse on Banks and Banking, sec. 355.)</p> <p>10. If Anton F. Coldewey could .be regarded as being in any sense a surety or guarantor for the overdrafts in question, then as such surety or guarantor he was discharged from liability by the action of the bank in settling its claim against W. G. Coldewey.</p> <p>11. There is an undoubted power in the management of a bank to allow overdrafts to its customers in the exercise of an honest discretion. This power may be conferred by the board of directors upon the cashier, and when so conferred, if exercised by him honestly, with due regard to the interests of the bank, no liability attaches to any one simply because subsequent developments may show a loss resulting from the allowances of such overdrafts. (Morse on Banks and Banking, secs. 358, 171, 165; Zane on Banks and Banking, sec. 160; Pryse v. Farmers Bank, 17 Ky. Law Rep., 1057; First National Bank of Pineville v. Reese, 25 Ky. Law Rep., 778.)</p> <p>12. The board of directors of the 'Wtestern Bank not only by the usage of that bank gave to the cashier authority to allow these overdrafts, but they subsequently .ratified the allowance with full knowledge of the facts, taking and retaining notes of the customer in settlement of the overdrafts, and, furthermore, entered into a contract with him by which they accepted in satisfaction of all their claims against him an interest in a trust estate created for their benefit under a deed of trust made by him at their instance. Tke ratification by this means of the overdrafts is equivalent to a previous grant of authority to make the overdrafts, if authority in the cashier for that purpose were, wanting. (First National Bank of Pineville v. Reese, 25 Ky. Law Rep., 778; Pryse v. Farmers Bank, 17 Ky. Law Rep., 1057; Jones v. Johnson, 86 Ky.,. 530.)</p>

<p>Case 98 — ACTION ON CROSS PETITION BY BELLE JENKINS Against the sun life' insurance co. op America ON AN INDUSTRIAL POLICY OP INSURANCE.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (2d Division). . . ,</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The cross plaintiff, Jenkins, has- the right to sue for herself and all others similarly situated. (Civil Code, sec. 25; 1 Pomeroy’s Eq., 245, et seq.)</p> <p>2. There is no improper joinder and .the court below has jurisdiction. (Commonwealth v. Scott, 65 S. W., 569; Wehle v. Commonwealth, 61 S. W., 35.)</p> <p>3. The reserve is a trust fund for policy holders-. "When the Sun Life was released from its liabilities on policies- and the policy holders- consented to the assumption of their policies by the Metropolitan, it followed as a part of that assumption that the Metropolitan should provide sufficient’ reserve, which it should take from the Sun Life o-r out of its own surplus. Having provided a reserve out of its own surplus, the old reserve on the Sun Life policies became the property of policy holders. The stencil release is not broad enough to deprive policy holders of their interest in the reserve, but only released the Sun Life from the preformance of the policy. A reserve is a trust fund for policy holders-. (Ky. Stats., sec. 653; lb'., chap. 32, subddv. 8; lb., subdiv. 2; lb., -sec. 659, an-d amendment thereto; Acts 1902, Mar. 28, 1902; People v. Empire Mut. life Ins. Co., 92 N. Y., 105.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The cross petition should have been stricken from the files because not germane to the original petition. (Civil Code, sec. 96; Wills v. Boyd, 1 Duvall, 366; Crabtree v. Banks, 1 Met., 484; Ro-yce v. Reynolds, 10 Bush, 286.)</p> <p>.2. The cross petition stated no cause of action. (Chap. 32, Ky. Stats.)</p>

<p>Election Boards — 'Cities of Second Class — Substituting Circuit Clerk for Sheriff — Special Legislation — .Sec. 59 of the Constitution .provides that the General Assembly shall not pass any local or special act “to provide for conducting elections.” It also provides that in all cases where a general law can be made applicable no special law shall be enacted. Held— That the amended act of March 22, 1904, providing that “in counties containing cities of the second class the circuit clerk of the county shall be a member of the election board instead of the .sheriff,” is special legislation, an'd, therefore, ' unconstitutional and void.</p>

<p>Case 100. — ACTION BY N. E. HOLDER’S ADMINISTRATOR POR A SETTLEMENT OP HER ESTATE1, INVOLVING A SALE OP REAL ESTATE CLAIMED BY HER HUSBAND AS A HOMESTEAD.</p> <p>Appeal from Montgomery Circuit Court.</p> <p>Allie W. Young, Circuit Judge.</p> <p>Prom the judgment plaintiff appeals.</p> <p>We realize that the law favors homestead», and especially where there is a family, but in this .case N. E. Holder died without ,issue; Wm. Holder has no one dependent upon him for support; neither of the parties ever expressed any intention to occupy said land as a homestead; never resided thereon, nor is there any suggestion even that either of them ever intended to do so; the credit was extended to her while she was a single'woman, owning this land in fee simple, her creditors knowing her to be solvent, and to say that by her marriage with Win. Holder she could lessen the security of the' creditors, and her husband given a homestead in her land as against pre-existing debts, seems to be both inequitable and unjust. It means, if the judgment of the lower court is sustained, that these creditors will lose their 'debts, which debts, too, were good when contracted, she having land out of which they could be made, and the credit extended with this belief.</p> <p>AUTHORITIES CITED.</p> <p>Park v. Wright, 25 Ky. Law Rep., 128; sec. 1702, Ky. Stats.</p> <p>SUMMARY.</p> <p>Nannie E. Holder inherited thirty acres of land in 1900. She married William Holder in 1902. They lived together as man and wife, keeping house until 1903.</p> <p>During the years 1902 and 1903 they were husband and wife, living adjacent to the thirty acres of land, keeping house, cultivating it, and using it for domestic purposes.</p> <p>In 1903 Nannie E. Holder didd, and her husband, William Holder, has occupied the land as his home ever since. It is asked to divest him of his homestead. The question is respectfully submitted.</p> <p>AUTHORITIES CITED.</p> <p>Bennett v. Baird, 81 Ky., 557; Mason v. Columbia Finance Trust Co., 99 Ky., 117; VanMeter v. VanMeter, 12 Ky. Law Rep., 214; Redmond v. Citizens Bank of Paris, 19 Ky. Law Rep., 137; Donelson v. Richart, 22 Ky. Law Rep., 1268; Nichols v. Bennett, 78 Ky., 632.</p>