Volume 122 — Kentucky Reports

<p>1. Public Offense — Presence of Peace Officers — Arrest Without Warrant — Where policemen had been detailed at a polling place to preserve order, and there was a great noise and confusion in the room such as to indicate that a fight was on, or imminent, and some one cried out for help, such a state of facts was a “commission of a public offense in the presence of the peace officers” in the meaning of the Criminal Code.</p> <p>2. Action for False Imprisonment — Instructions to Jury — Good Faith of Officers — In .an action by plaintiff against three policemen for false imprisonment, an instruction to the jury in substance “that if they believe from the evidence that the defendants believed in good faith, and had reasonable grounds grounds for believing, that the plaintiff was guilty of disorderly conduct, then they had grounds for his arrest, and they should find for the defendants even though the plaintiff was not in fact guilty of disorderly conduct,” was proper.</p>

<p>CASE 2. — PROSECUTION AGAINST PRIOR EATON FOR HOUSE-BREAKING AND STEALING GOODS THEREFROM — February 7.</p> <p>Appeal from Pulaski Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. While, as a general proposition, a conspiracy between a defendant on trial and another jointly indicted with him, may be establish such conspiracy, evidence relating wholly to the acts and is well established by this court, that where the evidence fails to establish such conspiracy, evidence relating wholly to the acts and conduct of one of the defendants, and affecting his' guilt or inno-cense, is incompetent on the trial of the other as evidence of his guilt or innocence.</p> <p>.The acts or admissions of one of several accomplices after the commission of the crime, and not in the presence of the others or approved by them, are incompetent as evidence against the others. (Shelby v. Commonwealth, 13 Ky. Law Rep., 178; Porter v. Commonwealth, 22 Ky. Law Rep., 1657; Pedigo v. Commonwealth, 103 Ky., 141.</p> <p>The only grounds on which appellant relied for a new trial in the lower court were, that the court erred in permitting testimony in reference to the conduct o'f Jackson and Price, who were jointly indicted with defendant, after the commission of the offense, and not in the presence of the appellant, and the statements made by Jackson going to the jury. We can see no reason why this testimony is not competent. The appellant was tried, alone, upon his motion for severance, and the accomplices were entitled to be heard as witnesses. (Mann v. Commonwealth, 25 R. 1964.)</p>

<p>1. Witnesses — Competency—Husband and Wife — Action Between —In an action by a divorced wife against her former husband to recover possession of a note, neither the husband nor wife were competent to testify on the issue as to whether the note was given by the wife to the husband for services performed by him for her.</p> <p>2. Contracts — Validity—Derogation of Marriage — Public Policy— An agreement by a wife to give her hiusband a note in consideration of his agreement not to defend an action by her against him for divorce is invalid, as against public policy. '</p> <p>3. Same — Remedy—Where ,a wife gave her husband a note in consideration of his agreement not to defend an action by her against him for divorce, the contract, being void as against public policy, left the parties with rights as fixed by law, and the wife was entitled in equity to recover such note.</p> <p>4. Husband and Wife — Property Rights- — Chose in Action — Reduction to Possession — Effect—Under Ky. Stat. 1903, section 2127, providing thiat marriage shall give to the husband during the life of the wife no estate or interest in the wife’s property, real or personal, owned at the time or acquired after the marriage, the mere reduction by the husband to possession of a chose in action belonging to his wife does not give - him any property rights in-or to the same.</p> <p>5. Same — Property of. Wife — Action to Recover — -Defenses—Civil Code Prac., section 524, providing that every judgment for divorce shall contain an order restoring iamy property, not disposed of at the commencement of the action, which either party may have obtained from the other during marriage, and any property so obtained, without valuable consideration shall be deemed to have been obtained by reason of marriage, and that the proceedings to enforce this order may be by petition of either party, under Ky. Stat. 1903, section 2127, providing that marriage shall give to the husband during the life of the wife no estate or interest in the wife’s property, real or personal, owned at the time or acquired after the marriage, etc., and hence the mere fact that >a husband, prior to a divorce from his wife, disposed of a note belonging to her, did not prevent the wife from thereafter recovering from him the note or its equivalent.</p>

<p>1. Intoxicating Liquors — License—Authority to Grant — Acts 1871-72, p. 496, c. 976, section 11, giving the trustees of the District of Highlands, in Campbell county, authority to grant liquor licenses, was not impliedly repealed by Ky. Stat., 1903, section 4203, providing that liquor licenses shall be granted by County Courts.</p> <p>2. Constitutional Law — Statutes—Granting of Special Privileges— Acts 1871-72, p. 496, c. 976, section 11, providing that no person except certain taverns shall sell liquor in the District of Highlands without a license from the district trustee, was not void as conferring special rights; the exception being to protect the owners of taverns operating under licenses then in force.</p>

<p>CASE 5. — ACTION BETWEEN WM. C. MUDGE AND OTHERS AND G. P. WALKER AND OTHERS INVOLVING THE LIABILITY OP ABUTTING PROPERTY OWNERS POR THE COST OP STREET IMPROVEMENT.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD. Shaw, Circuit Judge.</p> <p>From tire judgment plaintiffs appeal.</p> <p>AUTHORITIES CITED.</p> <p>Section 13 of the Constitution of Kentucky; Kentucky Statutes, section 3096; City of Catlettsburg v. Calf., 74 S. W. Rep., p. 1064; Adams v. the City “of Ashland, 80 S. W. Rep., p. 1105; McHenry v. Selvage et al, 35 S. W. Rep., p. 645; Armsby v. Jamison, 9 Ky. Law Rep., p. 325; Boone, Trustee, &c., v. Gleason, &c., Ky. Law Rep., Vol. 5, p. 169; Boone, &c., v. Gleason, Ky. Law Rep., Vol. 4., p. 1001; City of Covington v. Brinckman, 79 S. W. Rep., p. 234; City of Henderson v. McClain, 43 S. W. Rep., p. 709; Dumesneil v. Louisville Artificial Stone Co. (two cases), Armsby v. same (two cases), Nicbols v. same (Ky)., 58 S. W. Rep., 371; Barfield et al v. Gleason et al, 63 S. W. Rep., p. 964; Kimberger et al v. Beitzer et al, 63 S. W., p. 968; Baptist Church v. McAtee, 8 Bush, p. 517.</p> <p>CITATIONS.</p> <p>Section 3096, Kentucky Statutes.</p> <p>RULE OF CONSTRUCTION.</p> <p>Dillon on Municipal Corporations, Vol. 1, p. 148, section 91; En-cyclopaedia of Law, Vol. 26, p. 618, 619, etc.; Long v. Culp, 14 Kan., 412, citing Griffith v. Carter, 8 Kan., 565; section 3096, Ketnucky Statutes; Barbour v. City of Louisville, 83 Ky,. 95; Fisher v. Kol-lerts, 16 B. Mon., p. 407; Ohio Insurance Co. v. Debolt, 16 Howard, p. 435; Del. R. R. Co., tax cases, 18 Wallace, 226; Erie R. R. Co. v. Penn., 21 Wallace, 198; Tenn. v. Whitworth,117 U. S., 136; New Orleans R. R. Co. v. City of New Orleans, 143 U. S., 195.</p> <p>THE SECOND PARAGRAPH OF PETITION.</p> <p>Section 3096, Kentucky Statutes.</p> <p>THIRD PARAGRAPH AND AMENDED PETITION.</p> <p>Preston v. Roberts, 12 Bush, 570; Barbour Asphalt v. Carr, 24 Reporter, p. 2227; Cooper v. Nevin, 90 Ky., 85; Fehler v. Gosnell, 99 Ky., 388; Preston v. Roberts, 75 Ky., 570; Fehler v. Gosnell, 99 Ky. Law Rep., 380; Richardson v. Mehler, 23 Ky. Law Rep., 917; Elliott on Roads and Streets, section 590.</p> <p>THE AMENDED PETITION.</p> <p>Trustees of Hazelgreen v. McNabb, 23 R., 811; Backworth v. Louisville Artificial Stone Co., 20 R., 1789; Purdy v. Drake, 17 R., 279; section 3096 of the Kentucky Statutes. ,</p>

<p>CASE 6. — PROSECUTION AGAINST BUNION TRIPLETT FOR LARCENY BY STEALING CATTLE. — February 15.</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Defendant -convicted and appeals.</p> <p>CITATION OF AUTHORITY AND CLASSIFICATION OF QUESTIONS DISCUSSED-</p> <p>1. Robbery, and Grand Larceny; Insufficiency of the Indictment; The Admission of Incompetent,Evidence; The Refusal to Admit Competent Evidence; Instructions to the Jury; Exclusion of Evidence. (4 Blackstone’s Comm., 241; Donnally’s Case, 2 East P. C., 725 (66 S. W., 27); Greenleaf on Evidence, Vol. 3, Sec. 150; 4 Blackstone’s Comm., 229; Lord Coke’s Definition, Sec. 758, foot note 2, Bishop's New Criminal Law, Vol. 2; Parke B. definition foot notes to Sec. 758, Bishop’s New Criminal Law, Vol. 2; Commonwealth v. Davis et al, 66 S. W., 27;' Robertson’s Kentucky Criminal Law and Proceedure, Vol. 1, Sec. 412.</p> <p>2. Writ of Assistance; Attachments; Claims and Delivery. (Civil Code of Practice, Sec. 180, 181 and 184; Black’s Law Diet., p. 1246; Black’s Law Diet., p. 100.)</p> <p>ADDITIONAL AUTHORITIES CITED.</p> <p>Wharton’s Criminal Law, 8 Ed., section 942; Commonwealth v. Morse, 14 Mass., 217; Kentucky Statutes, section 409 (1903); 21 .Cal., 344; Century Digest, Vol. 42, p. 2695; Thompson v. Commonwealth, 18 S. W., 1022; Siker ,v. Commonwealth, 34 S. W., 902; Banner v. State, 9 Texas, 128; Reed v. Commonwealth, 7 Bush., 641; Jones v. Commonwealth (Ky.), 57 L. R. A., 432; State v. Mazyck, 3 Rich., 291.</p> <p>1. Was the offense larceny?</p> <p>. Leslie, the party who had the cattle in his possession, was, to say the least of it, a bailee. In this case he was not only the bailee of Bowles, the Court Receiver, who had a special ownership in the oxen, but by an express agreement was the bailee of the real owners. "</p> <p>2. The proof on the part .of the appellant shows plainly that ho knew that the Receiver Bowles had acquired a special ownership in the cattle. He does not deny that he knew of the orders and proceedings of the court, which were in full force and effect at the time of the taking.</p> <p>3. The fact that he took the gun showed the intent. The fact that he said to Leslie that he had executed bond shows that he went there for the purpose of taking the cattle by ffaud, and having the gun, he further intended to take them with force, to the extent of shooting some person, if he'had been resisted in his designs.</p> <p>4. The instructions given by the court were proper. They covered every possible phase of the case according to the testimony, and were clear and concise. The instructions offered by the appellant were properly overruled. There was some evidence tending to connect the accused with the commission of the offense, and the case was properly given to the jury to decide.</p> <p>AUTHORITIES.</p> <p>. Criminal Code, section 124; Green v. Commonwealth, 19 R., 750; Criminal Code, section 14-230; Commonwealth v. Prewitt, 82 Ky., 240; Wharton’s Criminal Law I., section 936.</p>

<p>CASE 7. — ACTION BY THE HENDERSON BRIDGE COMPANY AGAINST THOMAS H. ALVES, COLLECTOR, AND OTHERS TO ENJOIN THE COLLECTION OP A FRANCHISE TAX UPON AN • ASSESSMENT MADE BY THE CITY ASSESSOR OP HENDERSON. — February 16.</p> <p>Appeal from Henderson. Circuit Court.</p> <p>J. W. HeNsoN, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. It is not competent under a title of an act which purports to amend the act governing cities of the first class to incorporate provisions applying to cities of the third class. (Childs v. Monroe, 4 Met., 74; Rush v. Sehree, 12 Bush, 198; Jones v. Thompson, 12 Bush, 394; Purnell v. Mann, 105 Ky., 94; Parkland v. Gates, 88 Ky., 562; Wulftange v. McCollum, 83 Ky., 361.)</p> <p>2. It is improper, in arriving at the valuation of property, to capitalize the' gross receipts, taking no account of the money necessarily expended in earning those gross receipts.</p> <p>3. In apportioning the assets of a bridge company operating in two States, it should he done in strict accordance with the statute which requires that proportion of the value which the gross receipts in Kentucky hears to the total gross receipts should he treated as the value in Kentucky, and it is not proper1 to disregard that statutory method of apportionment, the hoard having no discretion in that matter. (S. W. Hager v. American Surety Co., decided January 23, 1906.)</p> <p>The constitutionality of the act under which this franchise has been assessed is not questioned in the petition, or anywhere in the pleading. The plaintiff rests its case, as stated in the petition, on three propositions:</p> <p>First — “Because the assessment was grossly excessive/’</p> <p>Second — “Because improper apportionment had been made of the value of the property between the States of Kentucky and Indiana.”</p> <p>Third — -“Because the plaintiff was entitled to have its property assessed on the same basis, to-wit: At not above 80 per cent of its cash value, just as other property and the general mass of property in the city of Henderson belonging to persons and corporations have been iassessed.”</p> <p>We submit, that all three of these propositions show that there' is some tax due the city of Henderson.</p> <p>If that be true, then this injunction cannot be granted or perpetuated.</p> <p>First — The assessment could not be grossly excessive, unless something was due to the city.</p> <p>Second — There could not be an improper apportionment of the value of this property between Kentucky and Indiana unless some part of the property was here in the city, and if in the city, it owed the taxes. ’</p> <p>Third — The statement, that plaintiff was entitled to have its property assessed on the same basis as other property, to-wit: At not above 80 per cent of its fair cash, value, is an admission that this property should he assesed at some value, and that it would owe some amount of taxes.</p> <p>As a matter of fact th'is is not an excessive valuation. This franchise valuation as shown by T. D. Alves’ testimony was higher in 1896 and 1900 than for 1904. And this plaintiff as will be shown by said Alves’ testimony, paid more franchise tax in 1908, 1900, 1897 and 1896 than is claimed in this suit.</p> <p>AUTHORITIES CITED BY APPELLEE.</p> <p>Phillips v. Covington & Cincinnati Bridge Co., 2 Met., 221; Swift v. City pf Newport, 7 Bush, 37; O’Brannon v. L. & F. Ry. Co., 8 Bush, 350; L. & O. T. Ry. Co., v. Ballard, 2 Met., 169; Louisville Ry. Co. v. Commonwealth, 20 Reporter, 1514; Henderson Bridge Oo. v. Negley, 28 Reporter, 748; Louisville & Jeffersonville Ferry Co. v. Commonwealth, 22 Reporter, 449; Commonwealth v. Cov-ington & Cincinnati Bridge Co., 24 Reporter, 1179; Paducah Street Ry. v. County of McCracken, 20 Reporter, 1294; Carrington v. Phinkle, 25 Reporter, 73; Royal Wheel Co., v. Taylor Co., 20 Reporter, 960; Mossett v. Newport & Cincinnati Bridge Co., 20 Reporter, 1969 and 1294; Negley v. Henderson Bridge Co., 21 Reporter, 1150; Russell v. Carlisle, 10 Reporter, 27; Louisville v. Board of Trade, 90 Ky., 409; Thompson v. City of Lexington, 104 Ky., 170; Gibson v. Beecher, 1 Bush, 145; Alburqurque Nat. Bank v. Parea, 147 U. S. R., 91; Bundy v. Summerland (September 25, 1895)), 41 N. E. R., 322; Sessions act, 1898, page 96, and 1900, page 89; Ky Stats., sections 2984 and 2984A and 4079; Acts, 1900, page 10, 12, 14, 23, 39, 50, 75; High on Injunctions, 490, 491, 497, 500 (518).</p>

<p>1. Parent and Child — Action for Loss of Services — Necessary Allegations- — In an action by a parent for damages for the wrongful detention of bis or her child, while it is not essential that the child should he capable of rendering service to the parent, the petition must allege not only that the parent has been wrongfully deprived of its services, hut also that the parent suing is entitled to claim its services.</p> <p>2. Action by Mother — Failure to Allege Death of Father — The right to the services of a child belongs exclusively to the father during his life, and the mother cannot maintain an action for the child’s abduction or detention, or for loss of its services, without alleging the death of the father.</p>

<p>1. Street Cars — Care in Operating — Starting Car Before Passenger in Seated — While it is the duty of those operating street cars to observe the highest degree of care which a prudent person would exercise under like circumstances in the management and control of the car' to enable a passenger to board it with safety, it is not the duty of the servant in charge of the car to have it remain standing until a passenger is seated therein, unless the passenger is old, feeble, crippled or in such condition which makes it reasonably apparent that such passenger needs unusual care .and precaution for his or her protection.</p>

<p>CASE 10. — ACTION BY ANN W. WALTERS’ E ECUTORS AGAINST THE CENTRAL UNIVERSITY OP KENTUCKY TO CANCEL A NOTE EXECUTED BY THE INTESTATE AS A DONATION TO SAID UNIVERSITY. — February 22.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. BeNtoN, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An action to cancel a contract is not an action upon a contract, and section 72, Bullitt’s Code, does not give jurisdiction to a court outside of the county of the residence of the corporation in an action to cancel a contract. (Bullitt’s Ky. Code, section 72.)</p> <p>2. In a written contract it is not competent without an allegation of fraud or mistake to aver a different consideration for the contract than that set forth on its face, or to vary in any particular by averment or parol testimony the terms of the contract. (Logan, &c., Turnpike Co. v. Pettitt, 2nd, B. Mon., 428; McKegney, &c., v. Widenberg & Co., 6 Bush, 107; Greenleaf’s Evidence, section 275; Jones’ Evidence, sections 437, 438, 505 506; Stephens’ Digest Law of Evidence, article 90.)</p> <p>3. Terms of subscription cannot be varied by parol evidence. (Note 2, Parker v. Thomas, 81 Am. Decisions, 396; Wight v. Shelby Railroad, 16 B. Mon., 6; Martin v. Pensacola Railroad, 75 Am. Decision, 713.)</p> <p>MOTIVE AND CONSIDERATION DISTINGUISHED.</p> <p>4. Am. & Eng. Ency. of'Law, 2nd Ed., Vol. 6, page 672 and note 2; Langdell’s Summary of Law of Contracts, paragraph 60.</p> <p>5. The obligation to apply the subscription in a particular way is sufficient consideration to support the donation or subscription. (Collier v. Baptist Education Society, 8 B. Mon., 68; Carr’s Uxor. v. Robinson & Dudley, SBusk, 269; Am. & Eng. Ency. of Law, Vol, 29, page 335, and ample authorities there cited in notes.</p> <p>6. Change of location does not avoid subscription. (Bryan v. Millersburg College, 90 Ky., 325, 338-9; Pennsylvania College cases, 13 Wallace, 190; Fuqua v. Hopkinsville Academy, 22 Ky. Law Reporter, 744; Carroll County Academy v. Gallatin Academy, 20 Ky. Laiv Reporter, 824; Pry’s Exor. v. Lexington, &c., Railroad Co., 2nd Met., 314; Mead v. Ballard, 7 Wallace, 290; Texas & Faciflc Railroad Co. v. City of Marshall, 136 U. S., 403.“</p> <p>SYNOPSIS OF BRIEF FOR APPELLEES ON EFFECT OF CONSOLIDATION.</p> <p>1. In .order to effect a valid consolidation of two or more private corporations, be they commercial or eleemosynary, there must co-exist, and be an union of:</p> <p>(a) The consent of the State, granted by general statute, special enactment, or bestowed upon the consolidating corporations by express provision therefor in their charters, and</p> <p>(b) In case of commercial corporations, the unanimous consent of all the shareholders, or the privilege to those dissenting to withdraw and receive payment for their stock at its market value as of the date of the consolidation; and in case of eleemosynary corporations, the unanimous consent of their governing boards, by which is meant all those in control and having a voice in the government of the institutions consolidating. (Morawetz on Private Corporations, 2nd Ed. Yol. 2, sections 940 'and 941, sections 396, 646; Pearce v. Madison R. R. Co., 21 How., 442; Clear-water v. Meredith, 1 Wall., 25; Aspenwall v. Ohio R. R. Co., 20 Ind., 492; State v. Dailey, 15 Ind., 51; L. & N. R. R. Co. v. Howard, 24 Ky. Law Rep., 865; Mowrey v. Ind. R. R. Co., 4 Biss., 78; Tuttle, v. Mich. R. R. Co., 35 Mich., 247; N. O. R. R. Co. v. Harris, 27 Miss., 540; Stevens v. Rutland R. R. Co., 29 Vt., 565; Lauman v. Lebanon, &c., R. R. Co., 30 Pa. State, 46; Black v. Del. Canal Co., 24 N. J. Eg., 467; note 89 Am. St. Reps., 621; Kohl v. Lien-thal, 87 Cal., 378; Market St. Hy. Co. v. Helman, 109 Cal., 571; State v. Bailey, 16 Ind., 46; Betts v. Simpson V. T. Co., 88 Ky., 54; McVicker v. Ross, 55 Barbe, 247; International Ry Co. v. Bremont, 53 Tex., 96.)</p> <p>2. The effect of consolidation thus made is to create a new corporation — a legal entity — distinct from any and all of the constituent corporations and vest it with title to all the property owned by the consolidating corporations absolutely and unconditionally. But property or funds held by consolidating eleemosynary corporations donated thereto in trust for particular and certain purposes or upon certain conditions, express or implied, ■annexed to the title by the donors, do not pass to the consolidated institution in the absence of the consent of the donors. As to such property and funds the consolidating institutions are simply the holders of the legal title as trustees of sacred and express trusts; and cannot without the consent of the settlors change the trustee or beneficiaries of such charitable trusts, and thereby divert the funds to uses not contemplated by and inconsistent with the intention of the donors. (Penn. College Cases, 13 Wall; Atlantic Ry Co. rila., 98 U. S., 359; State v. Adams, 44 Mo., 670; R. R. Co. v. Canal Co., 21 Pa. State, 22; Vicksburg Tel. Co. v. Citizens Tel Co. (Miss.), 89 Am. St. Rep., 656; Adams v. Yazoo R. R. Co. (Miss.), 60 L. R. A., 33; note 89 Am. St. Rep., 613, and cases therecited; St. Louis R. R. Co. v. Berry, 113 U. S., 937; Shields v. Ohio, 9% U. S., 319; Adams v. Me. C. R. R. Co.; 66 Maine, 488; Gladding v. St. Matthews Church (R. I.), 65 L. R. A. 225.)</p> <p>3. The legal effect of consolidation upon the consolidating corporations is a matter of statutory construction; and under the statutes the effect of consolidating under which is to create new corporations out of the consolidating companies, the articles of consolidation become the charter of the consolidated company— its life — the source of its franchises and powers — and are not simply amendments to the charters of the constituent corporations, nor merely changes in their internal administration They ere articles of grant, even though the grant be made by reference to the charters of the old companies; and the consolidated company takes everything by grant and nothing by transmission; and the change wrought is fundamental and not merely an amendment or change in internal administration. (Morawetz on Private Corporations, sections 942, 946 and 646; Shields v. Ohio, 95 U. S., 319; State v. Northern Cen. Ry Co., 44 Mo., 131; R. R. Co. v. Maine, 96 U. S., 509; Lauman v. Lebanon V. R. R. Co., SO Pa. Sr.., 46.)</p> <p>4. Under the Kentucky Statutes and Articles of Consolidation between • Centre College and Central University, the payee of Mrs. Walters’ note, by its own voluntary act, wrought its own legal destruction and has not been in Existence as. a legal entity since July, 1901. The note was a charitable gift — and held by 1he old Central University as trustee of an express and sacred trust, to-wit: The endowment of Henry Bell Walters Professorship of Mathematics in Cetral University, an institution created by the iact of 1873 as a rival to Centre College and placed for that purpose under the control and influence of the Southern Presbyterian Church of which she was a devoted member. Neither she nor those representing her consented to the consolidation, and to now require her estate to pay this note to the institution created by the consolidation would be, in effect, to require her to make a charitable gift to an institution which did not exist when the note was executed, which has no claim upon her sympathies or love, and which, is under the partial control and influence of a religious organization of which she was not a member or adherent and to whose doctrines she did not subscribe.</p> <p>5. The Central University, created by act, 1873, was a private eleemosynary institution; and its charter was a tripartite agreement to which the State of Kentucky, the Alumni Association or corporation, and the donors to the institution were the parties. The right did not exist in any one of these parties — not even in the sovereign power of‘the State — or in any two. of them acting in conjunction, to consent'to and encompass a radical and fundamental change in this contract, evidenced by the charter, such as is wrought by a consolidation with another corporation, without the consent of the third party to the contract so as to be legally bind such third party by the change attempted to be made. (Trustees Dartmouth College v. Woodward, 4 Wheat; City of "Louisville v. President and Trustees University, &c., 15 B. Monroe, 642; State v. Adams, 44 Mo., 570.)</p> <p>6. There is not even a pretense that Mrs. Walters or her representatives ever consented to or have since ratified the consolidation of Centre College and Central University. On the contrary no such consent was given nor such ratification made. The power to consolidate was not given in the contract — the charter — under which the gift was made; nor was such power reserved by the State when the charter was granted, either by general statute or in the charter itself. The general statute of 1855 in force reserving power in the State to repeal or amend all charters or grants .to corporations since February 14, 1856, does not apply or affect the rule, for consolidation is neither repeal or amendment by the State. It is the surrender of the old charter and creation of a new corporation by the consolidating companies with the permission of the State. But even if consolidation were repeal or amendment by the State it would not change the rule, for the statute of 1855 expressly provides that “no amendment oi' repeal shall impair other rights previously vested,’’ and the rights of Mrs. Walters under the charter had become vested long before the consolidation. (General Statutes, 4th Ed., 1887, chapter 68, section 8; Griflin v. Kentucky Ins. Co., 3 Bush, 592; Sage v. Dillard, 15 B. Mon.)</p>

<p>CASE 11. — ACTION BETWEEN LOUISVILLE HOME TELEPHONE COMPANY AND JOHN D. GASPER AND OTHERS ON MOTION TO DISMISS APPEAL. — February 22.</p> <p>Motion to dismiss appeal made by appellee in the Appellate Court .</p>

<p>1. Municipal Corporations — Dissolution—Suspension of Functions —Where a town had been incorporated and placed in the sixth class by Ky. Stats., 1903, section 2740, the fact that it suspended its municipal functions and failed to elect officers did not work a dissolution.</p> <p>2. Same — Loss of Inhabitants — Such dissolution could be effected by act of the Legislature, notwithstanding the population of the town subsequently decreased so that it was insufficient to authorize a new organization as a town, within Ky. Stats., 1908, section 3713, requiring at least 125 bona fide inhabitants for original incorporation.</p> <p>S. Same' — Officers—Eligibility—Where persons appointed as trustees of an incorporated town were not residents thereof, as required by Ky. Stats., 1903, section 3671, cand Constitution, section 234, they were ineligible.</p> <p>4. Officers — Title to Office — Usurpation—Criminal Responsibility —A person holding an office to which he is ineligible under the Constitution is guilty of usurpation of office, and may be punished by fine, as provided by Ky. Stats., 1903, section 1364.</p> <p>5. Injunction — Adequate Remedy at Law — Quo Warranto — Injunction will not lie to restrain disqualified officers of a town from exercising the duties of their office; there being an adequate remedy at law by quo warranto.</p>

<p>1. Removal of Causes — Non-residence of Defendant — Joinder of Resident — Where a petition states ’a joint cause of action for injuries against a non-resident railroad and a resident engineer, the case is not removable to the Federal Court.</p> <p>2. Railroads — Operation—Applicability of Rules — Where a freight . and a passenger train were ordered to meet at a certain station, the passenger train being ordered to wait for the freight, a rule of the railroad requiring a train of inferior class to take a siding and clear a train of superior class on meeting such a train, and requiring a train of inferior class to keep five minutes off the time of a train of superior class following it, is inapplicable.</p> <p>3. Same — Construction of Rules — A rule of a railroad requiring a train of inferior class to take a siding and clear a train of superior class on meeting such a train, requires a freight train, on meeting a pasesnger train, to clear it by getting on a siding, but does not require the freight train, when it is upon the siding, to remain in the same place.</p> <p>4. Carriers — Injuries to Passengers — Actions—Evidence—In an acticn against a railroad for injuries to a passenger who was walking along a side track to get on his train, caused by his being struck by a freight train which was on the siding, the reading in evidence of a rule of the railroad relative to the meeting of freight and passenger trains which was inapplicable to the case was incompetent and prejudicial, where plaintiff’s attorney in his closing argument commented on the rule at length and on the alleged violation thereof, and argued that such violation was negligence.</p> <p>5. Trial — Argument to Jury — Prejudicial Remarks — In an action against a railroad for injuries to a passenger, remarks, in the closing argument for plaintiff referring to the poverty of the plaintiff, the wealth of defendant, and defendant’s partiality to the Federal Court in preference to the State Court, in which the ease was being tried, were improper.</p> <p>6. Carriers — Passengers—Who Are Passengers — One walking on the side track of a railroad from the depot to a train on the main track in order to take passage on such train was a passenger, and not a trespasser.</p> <p>T. Same — Passengers Boarding Trains — Contributory. Negligence —Where a railroad is so constructed that a passenger is required to cross intervening tracks to get from the station to his train, or to leave the train, it is not negligence in itself for him not to look and listen for approaching trains on the intervening tracks; but it is incumbent on him to use such care and .attention as may be usually expected of persons of ordinary prudence under like circumstances, and he may assume that the railroad will so regulate its trains that the tracks will be free from danger when passenger trains stop at a station to receive and deliver passengers.</p> <p>S. Negligence — Actions—Question for Jury — Where there is any evidence of negligence, the question of negligence is one for the jury.</p> <p>9. Carriers — Injuries to Pasesngerá — Negligence—Question for Jury' — In an action against a railroad for injuries to a passenger walking along the side track to take his train, caused by his being struck by a freight train on the side track, whether the engineer of the freight train used proper care in running his train past the station while the passenger train was receiving and discharging passengers, held, under the evidence, a question for the jury.</p> <p>lu. Same — Discovered Peril — Question for Jury — Whether the engineer exercised proper care after seeing plaintiff on the track, held, under the evidence, a question for the jury.</p> <p>11. — Same—Contributory Negligence — Question for Jury— Whether plaintiff exercised proper care for his own safety, or brought about the injury by his own inattention, held, under the evidence, a question for the jury.</p> <p>32. Same — Negligence—Assumptions as to Passenger’s Conduct— An engineer of a freight train on a side track had a right to assume that a passenger walking on the side track toward a passenger train which was standing on the main track would leave the track, and was not required to give warning of the approach of his train, or to check his speed until he had reason to believe that the passenger was not aware of the approach of the train or would not leave the track.</p> <p>13. Same — Intoxication of Passenger- — Intoxication of a passenger walking on a side track to take passage on his train does not affect his right to recover for injuries sustained by being struck by a freight train running on the side track, unless by reason of his intoxication he failed to exercise such care for his safety as may usually be expected of a sober person of ordinary prudence under like circumstances.</p> <p>14. Same — Degree of Care Required — -While one walking along a railroad side track, which he has to cross to take a train standing on the main track, is a pasesnger, he is, nevertheless, where a passenger is not authorized to be, and cannot demand of the railroad the high degree of care due by a carrier to its passengers, and the measure of care required of operatives of a freight train on the side track is a reasonable degree of care commensurate with the danger for the safety of persons passing to and from the passenger train and the station, and in the exercise of such reasonable degree of care the operatives of the freight train should give a reasonable warning of the approach of the train, should maintain a reasonable lookout, and should run the train at a reasonable rate of speed.</p> <p>Paynter and Nunn., JX, dissenting in part.</p>

<p>1. Land — Boundaries—Establishment—Precessioning—Notice—Ky. Stats., 1903, section 2372, requiring one desiring to have his land processioned to give notice to any person interested, means a written notice.</p> <p>2. Same — Parol Notice — Sufficiency—Ky. Stats., 1903, section 2374, providing for the processioning of land, makes the proces-sioners’ report prima facie evidence as between parties interested, and provides for a written notice to any one interested by the land-owner having his lands processioned. Held, That a parol notice to one interested was sufficient to render the proceedings binding upon him where he was present pursuant to the notice and participated in the processioning.</p> <p>3. Same — Evidence—Burden of Proof — Under Ky. Stats., 1903, section 2374, providing for the processioning of land and making the report of the processioners prima facie evidence as between parties interested, in ejectment, the report of processioners on a processioning of plaintiff’s lands, of. which defendant had proper notice, made a prima facie case as to the boundaries.</p>

<p>CASE 15 — ACTION BY EDWARD UHL AGAINST C. O. REYNOLDS, AS REGISTER OP THE LAND OFFICE, AND OTHERS FOR AN INJUNCTION TO PREVENT THE ISSUAL OF CERTAIN LAND CERTIFICATES — May 18, 1905.</p> <p>Appeal from Franklin Circuit Court.</p> <p>Jambs E. OaNtbill, Circuit Judge.</p> <p>Prom the judgment for plaintiff certain defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The offering, after judgment, to file an amended answer praying for the vacation of the judgment and for a new trial, on the ground of newly discovered evidence, in support of which ground affidavits were filed, followed by orders showing that a motion for a new trial was made and overruled, was a sufficient compliance with the provisions oí the Civil Code relating to applications for a new trial, especially in an equity case. (Hackett v. Rosenham, 22 Ky. Law Rep., 1569; Murray v. Murray, 16 Ky. Law Rep., 332; Joseph v. Hotopp, 7 Ky., Law Rep., 285; Vogt Machine Co. v. Pa. Ironworks Co., 23 Ky. Law Rep., 2163.) And, even if this were not so, the plaintiffs having filed counter-affidavits thereby waived any irregularity in the proceedings.</p> <p>1. The newly discovered evidence, to the effect that the lands in controversy are embraced within the Ben Say patent, is true.</p> <p>2. This newly-discovered evidence is material, in that it destroys, or shows to be void, the patent on which the appellees rely to sustain their action for an injunction.</p> <p>In an action to enjoin the issuance of patents to defendants for certain lands on the ground that said lands are embraced Within a patent under which plaintiff claims, and of which lands plaintiff has constructive possession only, the defendants may defeat the action by showing that the lands are covered by an older patent than that under which the plaintiff claims title. (Section 4704 of Ky. Stats.; Green v. Bowling, 21 Ky. Law Rep., 1648; O. & B. S. R. R. Co. v. Wooten, 20 Ky. Law Rep., 383; Boreing v. Hurst, 20. Ky. Law Rep., 184; Wheeler v. Cist, 17 Ky. Law Rep., 1424; McMillan v. Hutcheson, 4 Bush, 611; Hartley v. Hartley, 3 Met., 56; Little v. Bishop, 9 B. M., 240; Taylor v. Fletcher, 7 B. M., 81.</p> <p>3. The evidence that the Say patent covers the lands in controversy is newly-discovered — it was not known to appellants at the former trial.</p> <p>4. The appellants were not lacking in reasonable diligence in failing to discover said evidence before the former trial.</p> <p>Reasonable diligence, as used in sub-section 7 of section 340 of the Civil Code, does not require an effort by a party to discover evidence proving or tending to prove a given fact unless he has sufficient ground to believe it exists, or at least to put him on inquiry; and, therefore, in this action, the failure of defendants to discover, before trial, that the lands in controversy were covered by an older patent than that under which plaintiffs claim, was not such lack of diligence as' deprives the defendants of the right to a new trial upon the ground of the discovery, after the trial, of evidence of that fact, the defendants having no knowledge ~of the existence of said older patent, as covering the lands in controversy, and there being nothing in said older patent, had they known of it, sufficient to put them on inquiry as to whether or not it embraced said lands. (Skinner v. Walker, 98 Ky., 729.) And, moreover,- the ‘reiterated averments of the plaintiffs, in their pleadings, that said lands had never been granted to any one prior to the grant to Cheever relieved the defendants of the duty of making inquiry as to the scope of the Benjamin Say patent, even had they known of its existence.</p> <p>5. The appellees cannot invoke the doctrine of constructive notice on the part of appellants as to the Say patent for the purpose of defeating the motion for a new trial.</p> <p>Section 251 of the State Constitution does not render void the Benjamin Say patent, and has no application to this case. (Green v. Bowling, 21 Ky. Law Rep., 1648.)</p> <p>The plea of adverse possession of the lands in controversy by Jackson D. Asher, set up in the amended answer offered in the lower court, is entitled to consideration as a factor, along with the newly-discovered evidence, in determining the motion for a new trial.</p> <p>The Cheever patent, in the hands of the appellee, Turner, even though he he an innocent purchaser, is entitled to no favorable consideration by the courts of this State, but should be relieved against ■ wherever such can be done consistently with good conscience and a proper sense of justice.</p> <p>POINTS AND CITATIONS IN BRIEF FOR APPELLEES.</p> <p>1. The supersedeas should be discharged. (Civil Code, section 749.)</p> <p>2. The judgment of the lower court should in any event be affirmed as to the register of the land office, G. M. Asher, R. W. Asher and Newt. Gambrell.</p> <p>3. The judgment of the lower court, rendered September 5th, 1902, is correct in form, is a proper sequence of the pleadings and is in accordance with the opinion of this court rendered September 20th, 1901, and concludes all questions that were raised or might have been raised on that record. (79 Ky., 114, Smith v. Brannon; 81 Ky., 16, Francis, &e., v. Wood, &c.; 14 Bush, 746, Davis, &c., v. MvCorkle.)</p> <p>4. The lower court did not err in refusing to set aside above judgment and allow the amended answer and counter-claim to be filed and grant a new trial, because:</p> <p>(1) Said answer is wholly' inconsitsent with the former pleadings of appellants, is not in furtherance of justice, is based on no substantial rights of appellants, and changes substantially the iormer defense. (14 Cyc. of PL and Pr., 797, note; 14 Cyc. of PI. and Pr., 991, and note 5; 19 Ky. Law Rep., 152, C. & O. Ry. Co. v. Friel; 16 Ky. Law Rep., 318, Stroud v. Simpson & Co.; 83 Ky., 416, Greer v. City of Covington.)</p> <p>(2) No adverse possession is shown hy appellants. (22 Ky. Law Rep., 1919, Helton v. Strubhe; 25 Ky. Law Rep., 1192, Owsley, Sr., v. Owsley, Jr.; Hall v. Blanton, January 13th, 1904.)</p> <p>(3) Even if title hy adverse possesion were shown, it should have been originally pleaded if at all, and cannot now be pleaded. (22 Ky. Law Rep., 1510, Pnater v. Campbell; 8 Bush, 441, Dickinson, &c., v. Trout, &c.)</p> <p>(4) The alleged newly discovered evidence is not of that “permanent and unerring” character, as to the location of the alleged senior grant, necessary to be shown in support of application for a new trial. (14 Ky. Law Rep., 940, Mud River Coal Co. v. Tipton.)</p> <p>(5) Appellants have not shown due diligence as to the alleged newly discovered evidence. (23 Ky. Law Rep., 317, Overstreet, &c., v. Brown, &c.; 23 Ky. Law Rep., 591, Johnson v. Carter; 1 Met., 224, Denny v. Wickliffe; 20 Ky. Law Rep., 1331, Howton, &c., v. Roberts, &c.; 3 J. J. M., 522, Ewing v. Price.)</p> <p>(6) The preponderance of evidence shows that appellant, Asher, as a fact, knew of the Say patent long prior to the first trial in the lower court in 1899, and then knew or had means and opportunity of knowing its probable location, if it can or has been located at- all; and at all events knew enough to be put on inquiry and to be chargeable with lack of diligence.</p> <p>(7) There is no satisfactory evidence that appellants have in fact located or can locate said Say patent or that it covers any of the land in controversy; and if it covers any of it the part so covered is not shown with sufficient certainty to justify reversal of the lower court.</p> <p>(8) Even if the Say patent were shown to cover the land in controversy, it cannot avail appellants. (23 Ky. Law Rep., 1838, Jones v. Patterson.)</p> <p>(9) The merits and equities of the case are with the appellees.</p>

<p>CASE 16 — ACTION BY A. BLOCH AGAINST J. T. TARRENT’S ADMINISTRATOR AND OTHERS TO SUBJECT THE HOMESTEAD OF DECEDENT TO THE PAYMENT OF HIS DEBT. — February 27.</p> <p>Appeal from Simpson Circuit Court.</p> <p>"W. P. SaNdidge, Circuit Judge.</p> <p>From a judgment of dismissal, plaintiff appeals.</p> <p>We submit, that where a widow remarries and moves away from her deceased husband’s homestead to her second husband’s home, owned by him, to live there for life, she thereby takes another permanent home, and acquires in and to it an inchoate homestead right, which she would be entitled to hold in oase of his death, and if she can hold her first husband’s homestead, she would thus have two homesteads, and, perchance, might have a third husband and secure a third homestead, and so on. This is not the law. (Thompson on Homesteads, section 242; Phipps v. Acton, 12 Bush, 376; Jones, &c., v. Green, 26 Ky. Law Rep., 1191; Freeman v. Miller, 22 Ky. Law Rep., 859; Bryiant v. Bennett, 22 Ky. Law Rep., 1866; Clay v. Wallace, 25 Ky. Law Rep., 820; Crabb v Potter, 12 Ky. Law Rep., 430; Ky. Stats., sections 1707-1708.</p> <p>It is shown by this record that the widow, after her husband’s death, being destitute, left her homestead and went, with her helpless babe, to live with her mother, some miles away. She iat no time ceased to exercise control of the homestead, but rented it out to clothe herself and children.</p> <p>Appellant does not contend that she forfeited her right to the homestead by going and living with her mother, but does contend that because she married and left her mother’s to go with her husband to his home she thereby forfeited her deceased husband’s homestead. We submit that she did not by such remarriage and going to her husband’s home forfeit her right to her former husband’s homestead.</p>

CASE 17. — ACTION BY REUBEN CLARK AGAINST DIXIE LEE CLARK AND OTHERS ON A NOTE; — February 27. Appeal from Floyd Circuit Court.. A. J. Kirk, Circuit Judge. Judgment for defendants, plaintiff appeals. 1. The requirement of sub-section 7, of section 7?,2 of the Civil Code that a signature by mark must be attested by a witness, who can write his name, applies only to such written instruments as are provided for in the Code. 2.

<p>CASE 18. — ACTION BY ALICE ATHERTON AGAINST THE CUMBERLAND TELEPHONE & TELEGRAPH COMPANY EOR DAMAGES FOR FAILING TO DELIVER A MESSAGE. — February 28.</p> <p>Appeal from Carlisle Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>1. In order to have a stated cause of action against appellant, it is indispensible that her petition must show either (1) a breach of some duty that it owed to her in its capacity as a servant of the public, or (2) a breach of contract made with her or with some one else for her benefit.</p> <p>2. The only duty owed by a telegraph company in its capacity as a servant of the public, and in the absence of special contract, is to receive the message from the sender and transmit it properly to the place to which it is addressed, and there deliver it to the party to whom it is addressed, if he resides within, or may be found within the limits of the free delivery limits established at the terminal office. This is the settled rule of law in our own State ¡and in the adjudications of other States.</p> <p>3. The contract for special delivery called for a delivery at Cunningham, it was, therefore, the duty of appellant under this contract to promptly transmit the message from Bardwell to Cunningham by special messenger and there deliver it to the appellee, if she was to be found there, or if not, leave it at her home, or deliver it to those in charge of her home, but it was under no obligation to deliver it to her at the home of George Stevens, or elsewhere.</p> <p>4. It is a well settled rule of law that the authority of a special agent is limited in its nature, and that in order to bind the principal, his authority must be strictly pursued.</p> <p>AUTHORITIES CITED.</p> <p>Western Union Tel. Co. v. Henderson, 18 Am. St. Rep., 148; Western Union Tel. Co. v. Mathews, 55 S. W. Rep., 427; Western Union Tel. Co. v. Mathews, 67 S. W. Rep., 849; Mechem on Agency, sections 288 ¡and 289; Stamey v. Western Union Tel. Co., 44 Am. St. Rep., 95.</p> <p>1, The message here was, “Your sister is dying; come at once.” The immediate delivery of this message was urgent and apparent. If not delivered at once it need not be delivered at all.</p> <p>2. It will .not do to hold that a telephone company has discharged its duty under the contract by merely going to the home of the party to whom the message is addressed, and upon finding the party absent make no further effort to deliver the message, although the company is informed as to where the party is and that they can be easily reached.</p> <p>3. Under the law they are bound to use ordinary diligence to deliver the message. It is not ordinary diligence when they have a message of the importance of the one sent in this case, to merely call at the home of the party, and, not finding the party' there, make no further effort to deliver the message.</p> <p>4. Although this message was to be delivered to appellee at Cunningham, still, when appellant found that she was not there, but was at George Stephens,’ and could be reached in an hour and a half, good faith and ordinary diligence required it to deliver the message to appellee at George Stevens’.</p>

<p>1. Lis Pendens — Prosecution of Suit — Diligence—A lis pendens is good to protect parties to a suit ag'ainst purchasers for vialue from one of them only so long as the suit is diligently prosecuted.</p> <p>2. Same — Negligence—A delay of more than 30 years in the prosecution of a suit to recover certain land without excuse constitutes such laches as released the property from the lis pendens as a matter of law, as against the rights of a purchaser for value opposed thereto.</p> <p>3. Same — Excuse—Advice of Counsel — Incorrect advice of counsel that, if a party to a suit to recover land purchased the land at a judicial sale, he might lose all of it that was in possession of squatters by operation of the statute against champerty, constituted no excuse for his delay of nearly 30 years in the prosecution of such suit.</p> <p>4. Champerty — Application—Judicial Sales — The statute relating to champerty does not operate on involuntary conveyances made by a party not in possession of land through a commissioner. of the court in pursuance of a judicial sale.</p> <p>6.Abatement and Revival — Sale of Land Pending Litigation — An alienation of land in litigation does not abate the suit ■whether the alienation is voluntary or by judicial decree.</p> <p>6. Adverse Possession — Extent—Color of Title — Where a purchaser of certain land entered into possession, his entry would he restricted, so far as the law construes it as adverse, to the boundary of the land to which he had some claim or color of title.</p> <p>7. Same — Hostile Possession — Intent—Where an agent in possession of certain land surrendered the same to the sheriff to be sold on execution, the owners’ subsequent possession was not adverse to the execution purchaser, in the absence of an intention to appropriate the land to their own use in spite of the conveyance by the sheriff so evidenced as to constitute notice to such purchasers.</p> <p>8. Same — Conflicting Titles — Priority—Where boundaries of land interfere, an entry on any part of the boundary of the elder title by the owner extends to his whole boundary, unless some part of it be actually taken in possession by another, in which event his entry is restricted only by the actual occupancy of the hostile stranger.</p> <p>9. Same — Constructive Possession — Since constructive possession of land accompanies the legal title only, it cannot be extended beyond the bounds of what actually belongs to the entrant, so as to include territory that did not belong to him.</p> <p>10. Same — Where there was never any entry on a certain tract of land by the owners after it had been sold under execution, their possession and claim of other parts of the original boundary including such tract did not affect the right of the purchaser of the tract in question, nor start the statute of limitations in favor of such original owners against such execution purchaser.</p>

<p>CASE 20. — ACTION BY FEONIE ASHER AGAINST JOHN HOWARD AND OTHERS TO RECOVER BAND.— Febraary 28.</p> <p>Appeal from Bell Circuit Court.</p> <p>JqhN McChord, Special Judge.</p> <p>Judgment for defendants', plaintiff appeals.</p> <p>1. If any principle of law is established beyond all doubt, it is that to avail one’s self of the defense of the statute of limitation it must be pleaded. (Jones v. Chiles, 4 J. J. Marshall, 610; Chiles v. Drake, 59 Ky., 146; Stillwall v. Leavy, 84 Ky., 379; Keaton v. Sublet, 109 Ky., 106.)</p> <p>2. It naturally follows, therefore, that if the pleading in regard to the statute was insufficient, the court erred in giving any instruction on that point. (Haydon v. Stone, 1 Duv., 399; Pram-well v. Adams, 2 Mo., 196; Riddle v. McGinnis, 22 W. Va., 253.)</p> <p>3. If there was adverse possession it must have been against the Commonwealth, but it has been held in numerous cases that the statute does not run against the Commonwealth. (Chiles v. Calk, 7 Ky., 554; Stewart v. Jackson, 8 Ky.,59; Fowke v. Darnell, 15 Ky., 317; Hartley v. Hartley, 60 Ky., 56; Mills v. Bodley, 20 Ky., 248; Taylor v. Combs, 20 R., 1828; Tiedman on Real Property, section 715, p. 675.)</p> <p>1. At common law all that was necessary in an action of ejectment for the answer to contain was “not guilty,” and under this plea the defendant could avail himself of any defense to the action allowed by law. (15 Cyc., p. 99.)</p> <p>2. It has been repeatedly held by this court that the plaintiff in an action of ejectment may recover on a possessory title though not pleaded. (Hamilton v. Hamilton, 16 Rep., 793; Ratcliff v. Elam, 14 Rep., 772; Chism v. Trent, 10 R., 849; Moran v. Higgins, 19 Rep., 456; Dorch v. Thompson, 12 B. M., 380.)</p>

<p>1. Patents — Contracts—Abandonment—One who agreed to advance money for the perfection of an appliance in consideration of a promise of a half interest in any patent which might be obtained thereon, but who abandoned his contract and refused to advance money in accordance with his agreement, on finding, after a time, that the appliance was apparently not going to prove a commercial success, was estopped to assert an interest in the patent after it was finally obtained with the assistance of another, and had, unexpectedly to him, proved a commercial success.</p> <p>2. Same — Improvements—New Inventions — Where a subsequent patent does not infringe a former one, it is indeiDendent thereof, and will be regarded as a new patent, 'and not a mere improvement of the former one.</p> <p>3. Same — Assignment of Patents — Construction—Certain patent. on a portable horse stall, held, under the evidence, not a mere improvement of a former patent obtained by the same person on a portable stall, but a distinct and independent contrivance, so that no interest therein passed under an assignment by the patentee of an interest in the former patent.</p> <p>4. Patents — Contracts—Abandonment—Rights of Parties — One who advanced money towards the obtainment of a patent under an agreement for a half interest in the patent when obtained, but abandoned the agreement, should, after the obtainment of the patent through the assistance of another, be repaid money expended by him on the model of the device before his abandonment of the agreement.</p>

<p>1. Wills — Probate—Appeal—Bond—Necessity for Bond — Civil Code Pr.ac., section 724, in relation to county courts, requires an appellant therefrom to give a bond conditioned to satisfy any judgment rendered. Section 700 provides that the pro- ‘ visions of the Code shall regulate the proceedings in civil actions in county courts, etc., except as otherwise provided. Held, That though' the statute in relation to an appeal from the county to the circuit court in proceedings for probating or rejecting a will does not dispense with a bond, the practice in such proceedings being radically different from the general practice, as shown by Ky. Stats., 1903, sections 4850, 4851, 4855, and Civil Code Prac., section 724, a bond is not necessary on an appeal from the county to the circuit court in proceedings probating or rejecting ia will.</p> <p>2. Same — Execution—Signature of Testator — Sufficiency—The statute provides that no will shall be valid unless the name of testator be subscribed thereto by himself, or by some other person in his presence and by his direction, and requires the subscription to be made or,the will acknowledged in the presence of two witnesses. Held, That where a will, including testator’s name was not written in his presence, but it was then read over to him, and, being unable to write, he made his mark in the presence of two witnesses, the execution was sufficient.</p>

<p>CASE 23. — ACTION BY E. B. DRAKE AGAINST EMMA L. HERNDON ON A NOTE. — March. 1.</p> <p>Appeal from Scott Circuit Court.</p> <p>M. C. Saueley, Special Judge.</p> <p>Prom the judgment plaintiff appeals-.</p> <p>CITATION OF AUTHORITIES.</p> <p>1. There can be no legal organization 'of a corporation without at least three persons in good' faith associating themselves together for the purpose of carrying on the proposed business. (Ky. Stats., section 538.)</p> <p>2. The signers of the articles of incorporation have no power to transact any business before directors are elected, except such as is necessary to complete the organization. (Ky. Stats., section 541.</p> <p>3. A corporation has no right to begin business until after a meeting is held and at least three directors elected to manage its affairs. (Ky Stats., section 551.)</p> <p>4. No person is eligible to hold the office of director in any corporation unless he owns at least three shares of its capital stock. (Ky. Stats., section 551.)</p> <p>5. The Bell M. Herndon Implement Company could never have legally organized a corporation, because there were only two real stock holders; and even if Bradford had actually owned one share, as pretended, still they could -not have organized with three directors qualified as prescribed by statute. (Section 551.)</p> <p>6. Any attempt to organize a -corporation without the number of persons associated together required by the statute is a nullity. (Louisville Banking Co. v. Eiseman, 94 Ky., 83.)</p> <p>7. Persons acting as a corporation without being legally incorporated are liable as partners and as individuals to all persons dealing with them. (Robinson v. Harris, 5 Rep., 928; Cincinnati Cooperage Co. v. Bate, 14 Rep., 469 (Cup. Crt.); Same v. Same, 96 Ky., 256; Wallon v. Riley, 85 Ky., 413.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. When a corporation shall be deemed organized, see: Ky. ‘ Stats., sections 542 and 551; Heinig, &c., v. Adams- & Westlake Mfg. Co., 81 Ky., 300; Walton v. Riley, 85 Ky., 413.</p> <p>2. Liability of incorporator as partners, see: Robinson, &c., v. Harris, 5 R., 928; Cincinnati Cooperage Co. v. Bate, 96 Ky., 356; James A. Rutherford, &e., respondents, v. J. W. Hills, book 17, p. 549, Lawyer Reports Annotated.</p> <p>ADDITIONAL AUTHORITIES CITED.</p> <p>Section 542, Ky. Stats.; section 566 Ky. Stats.; Snyder’s Son Co. v. Troy, 91 Ala., 224; Finnegan v. Noerrenberg, 52 Minn., 239; Broderip v. Salomon, Law Reports,- 2nd Chancery, 323; Fay v. Noble, 7 Cush., 188; Bank v. Almy, 177 Mass., 476; Stout v. Zulick, 48 N. J. Law., 599; 7 Atl. Rep., 362; Bank v. Padgett, 69 Ga., 164; Bank v. Stone, 38 Mich., 779; Humphreys v. Mooney, 5* Col., 282.)</p>

<p>CASE 24. — ACTION BY NELLIE D. LEAVELL AGAINST THE WESTERN KENTUCKY ASYLUM POR THE INSANE FOR PERSONAL INJURIES. — March 2.</p> <p>Appeal from Christian Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>CLASSIFICATION OF AUTHORITIES.</p> <p>Liability of lunatic asylums and charitable institutions. (Ky. Stats., section 217; Williamson v. Louisville industrial School of Reform, 15 Ky. Law Rep., p. 629; Herr, &c., v. Central Kentucky Lunatic Asylum, 17 Ky. Law Rep., p. 320; Hauns v. Central Kentucky Lunatic Asylum, 20 Ky. Law Rep., p. 246; Bank of Hop-kinsville, &c., v. Western Lunatic- Asylum for the Insane, 21 Ky. Law Rep., p. 1820; Herr, &c., v. Central Kentucky Lunatic Asylum, 22 Ky. Law Rep., 1722; Central Kentucky Asylum for the Insane v. Hauns, 23 Ky. Law Rep., p. 1016.)</p> <p>AUTHORITIES CITED.</p> <p>Ashland Coal and Iron Railway Company v. Wallace, 19 Ky. Law Rep., 849; Williamson v. Kentucky School of Reform, 15 Ky. L. Rep., 629; Herr, &c., v. Central Kentucky Lunatic Asylum, 17 Ky. Law Rep., 320; Hugh Hearns, Appt., v. Waterbury Hospital, 32 L. R. A., 224; Fire Insurance Patrol v. Boyd, 120 Pa., 624, 1 L. L. A., 417; Downs v. Harper Hospital, 25 L. R. A., 602; Benton v. Trustees City Hospital, 54 Am. Rep., 436; Perry v. House of Refuge, 52 Am. Rep., 495; Sherbourne v. Yuba County, 81 Am. Dec., 151; City of Richmond v. Long’s Admr., 94 Am. Dec., 461.</p>

<p>1. Railroads — Crossings—Care in Approaching — Rate of Speed— Signals — The rule that the speed of trains must he moderated, applies to cities and towns where the population is dense and the presence of persons may he anticiDated on the track at crossings hut it does not apply to hig^^ay crossings in the country, or to those not within the settled por-' tions of a town. At ordinary highway crossings in the country no rate of speed is negligent, hut where the speed of the train is great, care in giving warning must he observed. Signals required hy the statute should he given. (Kentucky Statutes, 786.)</p> <p>2. Evidence — Instructions—Danger—Knowledge of Deceased— Contributory Negligence — Where the evidence shows that it was clearly impracticable for those in charge of a train, after a wagon and team in which one killed hy the train was riding, had started up an incline approaching a crossing and came in sight of the train, to have stopped the train before reaching the crossing, or to have avoided striking the wagon, it was error in the court to instruct the jury that “although the decedent was himself negligent in attempting to pass over the crossing in front of the train and thereby contributed to his injury and death, if the jury further believe from the evidence that defendant’s agents and servants in charge of the train knew, or by the use of ordinary care, could have known of the peril of the deceased in time to have prevented the injury to him by the use of ordinary care, they should find for the plaintiff,” as the jury may have inferred from this instruction that the defendant was liable, if proper signals were not given, although there was contributory negligence on the part of the decedent.</p> <p>3. Same — The object of signals of the approach of a train is to notify persons of its coming. If a person in fact knows of the approach of a train he cannot complain that signals of its approach were mot given as required by law. Where there was evidence in the case to the effect that deceased and his driver knew of the approach of the train before they attempted to drive on the track and in time to have avoided the injury, the jury should have been instructed that if when at a safe distance from the track deceased knew of the approach of the train and with this knowledge undertook, or, consented'for the driver of the wagon in which he was riding, to undertake to pass over the crossing ahead of the train, he assumed the risk and the defendant is not liable.</p> <p>4. Res gestae — Substantive Testimony — Statements Made on the Ground — On the trial of an action for damages for the killing of one while attempting to cross a railroad track in a wagon driven by another, evidence as to what tile driver of the wagon said about the collision, on the ground, within two or three minutes after the collision, was competent as substantive testimony as part of the res gestae.</p> <p>5. Expert Testimony — Opinion Evidence — Witnesses should not be allowed to give their opinion as to whether a railroad crossing is dangerous. The facts as to the crossing may be shown, and the jury, when the facts were proven to them, were as competent to judge of this matter as the witnesses.</p>

<p>CASE 26. — ACTION BY THE PROVIDENCE ELECTRIC LIGHT CO. AGAINST THE CITY OF PROVIDENCE TO RECOVER ON CONTRACT. — March 6.</p> <p>Appeal from Webster Circuit Court.</p> <p>J. W. HbNsoN, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>SYNOPSIS.</p> <p>1. The demurrer to the petition ought to have been sustained. It does not state a cause of action. (Section 3640, 3641 Ky. Stat.; Dillon on Municipal Corp., Section 937, and also Ency. of Pleading and Practice, vol. 14 Municipalities, page 235, 260.)</p> <p>2. The judgment was for $529.35, or about $106 per month, when the petition showed only $75.00 per month and the evidence showed 62 lights, which would be $93.00 per month. (See the contract and the pleadings, and the evidence.)</p> <p>3. The claims were not allowed at a regular meeting of the council, and violated section 3636 Ky. Statutes. (See Rough River Telephone Co. v. The Cumberland Telephone Co. 27 Ky. Law Rep. 32; The East Tennessee Telephone Co. v. Anderson County Telephone Co. 22 Ky. Law Rep., 418; the same v. the same, 24 Ky. Law Rep. 2358; Merisman v. The Ohio Valley Telephone Co., 25 Ky. Law Rep. 784.)</p> <p>5. The contract in this case conferred a franchise for more than one year, and violates section 164 of the State Constitution, in that it was not let to the lowest bidder. (See section 164 and the contract.)</p> <p>5. The warrants do not state the funds out of which said warrants were to be paid, and were not legal warrants. (See said warrants and section 3640 and 3641 ot the Kentucky Statutes.)</p> <p>6. The clerk of said council did not issue or sign the warrants, nor the orders of the council on which they are based, except one. Geo. W. Reason was the clerk, and the orders and warrants were signed by E. G. Bishop, who was not the clerk, and not a member of the hoard of councilmen. (See the warrants and the orders of the council and section 3634 Ky. Statutes.)</p> <p>7. Then, there never was a time when there was in the treasury funds available that could be lawfully applied to this debt. (See section 3641 Kentucky Statutes, and the records of the city council file in this case.)</p> <p>We submit:</p> <p>1. That" the debt created by the contract sued on was not in violation of section 157 of 'the Constitution, as the record shows that the revenue of the city authorized to be collected was in excess of its indebtedness.</p> <p>2. The city has received the benefit of the lights furnished it by appellee and it admits the amount due for the lights is the amount sued for. We have demanded from the city that sum, which it refuses to pay and justice demands that this debt should be paid.</p> <p>CITATIONS.</p> <p>Constitution, section 157; 15 Ky. Law Rep., 757; Culbertson v City of Pulton; O’Bryan, Clerk, v. City of Owensboro, 24,Ky. Law Rep. 475; Nicholasville Water Co. v. City of Nicholasville, 18 Ky. Law Rep., 592.</p>

<p>CASE 27 — ACTION BY ELIZABETH DUNCAN AGAINST CITY OF BOWLING GREEN FOR DAMAGES FOR INJURY RECEIVED ON DEFECTIVE SIDEWALK. — Macli 8.</p> <p>Appeal from, Warren Circuit Court.</p> <p>JOHN M. Galloway, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>1. The court erred in sustaining a demurrer to the third paragraph of the defendants answer which pleads as a defense the following ordinance: “Any person having a claim against the city other than for salaries due officers or coupons on bonds issued by the city, shall present same in writing to the council or Board of Public Works, if same be within the jurisdiction of said board.” Said ordinance is a mandatory provision and a condition precedent to the bringing of any lawsuit against the city.</p> <p>2. A latent defect in a sidewalk which is not apparent, will not impute notice, and no actual notice of tlie defect before the injury was proven.</p> <p>AUTHORITIES CITED.</p> <p>2 Yol. Smith’s Modern Law of Municipal Corporations, section 914, 928, 4, 5, 6; 111 Michigan 454; 69-N. W. 67, Inre Dassent 2 N. Y. S. .609; Bukman v. Mayor, 41 N. Y. S. 990; 124 N. C. 310.</p> <p>' 1. Section 279 of the City Code relied on by appellant, requiring claims to be presented to the city for payment before suit, is not a statutory enactment or charter provision, but an ordinance of the city council, and if it was passed as contended by appellant to regulate civil rights and prescribe when and under what condition the city might or might not be sued, it would be ultra vires and absolutely null and void.</p> <p>2. The evidence shows that the city had notice of the defect in the sidewalk before the injury in ample time to have repaired it.</p> <p>3. The verdict for $616 in favor of the plaintiff is fully sustained by the evidence of which the jury are the proper judges.</p> <p>CITATIONS.</p> <p>Smith’s Modern Law of Municipal Corporation, Vol. 2, section 917 and 1300; Ky. Stats, section 3237; Constitution, section 156 Amendments to Bowling Green City Charter, Acts 1889-90, Yol. 1, page 952; City of Wicliffe v. Moring 68 S. W. 641; City of Midway v. Lloyd 74 S. W. 195; City of Covington v. Johnson 69 S. W. 703; City ot Louisville v. Johnson 69 S. W. 803.</p>

<p>CASE 28. — ACTION BY ELIZABETH GERREIN’S ADMINISTRATOR AGAINST THOMAS L. MICHIE AND OTHERS TO ENFORCE A JUDGMENT — March 9.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for defendants1, plaintiff appeals.</p> <p>I. Statement of the case.</p> <p>2. Order of dismissal erroneous. (Rule 8 Campbell' Circuit Court, Code section 364).</p> <p>3. This action may he maintained. (Rogers v. Rogers, 15 B. Mon. 3S2, sections 1907 A. and 2126 Ky Stats.; Campbell y. Trosper, 22 Ky. Law Rep., 279; McCarthy v. McCarthy, 10 Ky. Law Rep., 409; Davis v. Davis, 10 Ky. Law Rep., 493; Tyler v. Tyler, 99 Ky., 31; Botts v. Botts, 25 Ky. Law Rep., 300.)</p> <p>4. The decree makes husband wife’s debtor. (Wetmore v. Wetmore, 149 N. Y., 520; Barber v. Barber, 21 How., 582; Miller v. Clark, 23 Ind., 379; Gaines v. Gaines, 9 B. Mon., 306; Faris v.' Goins, 11 Ky. Law Rep., 752; Brooks v. Summers, 18 Ky. Law Rep., 1026; Masterson v. Miasterson, 22 Ky. Law Rep., 1195; Tyler v. Tyler, 99 Ky., 34; Fite v. Fite, 22 Ky. Law Rep., 1638.)</p> <p>5. Action for alimony may be revived. (Gaines v. Gaines, 9 B. Mon., 297; Ballard v. Caperton, 2 Met., 412; McMackin v. WicklifEe, 1 Ky. Law Rep., 240; Patterson v. Patterson, 13 Ky Law Rep., 239; Williams v. Monroe, 18 B. Mon., 518; Williams v. Williams, 8 Ky. Law Rep., 962; Barth v. Barth, 102 Ky., 56).</p> <p>C. Judgment for alimony .and its revivor cannot be collaterally attacked in this action. (Dunlap v. Mcllvoy, 3 Litt., 273; Gamer, etc v. Strode, 5 Litt. 316; Sanders v. Gatewood, 5 J. J. Mar. 328; Green v. Ball, 4 Bush, 590; Rogers v. Rogers, 15 B. Mon., 382; Wetmore v. Wetmore, 149 N. Y., 520; Barber v. Barber, 21 Howard, 582; Barth v. B^.rth, 102 Ky., 56).</p> <p>7. The policy of the doctrines contended for.</p> <p>The appellees present for consideration three propositions:</p> <p>1. That the claim of Elizabeth Gerrein for accrued alimony against Andrew Gerrein, ceased and was wiped out by her death and could not thereafter be collected.</p> <p>2. That if, in some special cases such claim might be enforced for the benefit of bona fide creditors who have given credit to the decedent during her life time in the belief that the alimony would constitute a fund out of which their claims could be paid, this case presents no such facts.</p> <p>3. That in case appellant enforces his alleged claim the same is and would be subject and inferior to the claim of appellees herein as against the estate of Margaret Gerrein deceased.</p> <p>AUTHORITIES CITED.</p> <p>Frank v. Frank, 107 Ky., 367; Williams v. Williams, Ky. Law Rep., 379; McHess v. McHess, 17 Ky. Law Rep., 25; Ky. Stats., section 2123, 107; Stillman v. Stillman, 99 Ill., 196; Ressor v. Ressor, 82 Ill., 442; Clark v. Clark, 6 Watts, 85.</p>

<p>CASE 29. — ACTION BY LOUIS DANIEL AGAINST THE LOUISVILLE & NASHVILLE R. R. CO, FOR PERSONAL INJURIES — March 6.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. F. G-ordoN, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>POINTS AND AUTHORITIES DISCUSSED.</p> <p>1. Testimony as to appellee’s good character, his character not having been attacked, was wholly improper and extremely prejudicial. (Section 599, Civil Code; Evans, etc., v. Evans, 93 Ky. 518; Sullivan, etc., v. Norris, 8 Bush, 522; Vance etc., v. Vance, 2 Met. 581; C. & O. R’y Co. v. Riddle’s Admx., 24 R. 1689.</p> <p>2. It was improper to admit evidence as to the use made by pedestrians of appellant’s railroad track. (Hoskins’ Admx. v. L. & N. R. R. Co., 17 Ky. Law Rep., 78; Brown’s Admr. v. L. & N. R. R. Co., 97 Ky., 236; L. & N. R. R. Co. v. Logsdon’s Admr., 26 Ky. Law Rep., 461; Goodman’s Admr. v. L. & N. R. R. Co., 116 Ky., 900; Gregory v. L. & N. R. R. Co., 25 Ky. Law Rep., 1986; C. '& O. Ry. Co. v. See’s Admr., Ib. 1995.</p> <p>3. Appellee had no right to ride on the train on which he reached Madisonville. (Dalton’s Admr. v. L. & N. R R. Co., 22 Ky. Law Rep., 97, and cases there cited; L. & N. R. R. Co. v. Thornton, Ib. 778.</p> <p>4. Even if appellee was injured in the manner contended for by him, appellant is not liable. M. & ¿B. S. R’y Co. v. McGabe, etc., 26 Ky. Law Rep., 532; L. & N. R. R. Co. v. Sehmetzer by etc., ■94 Ky., 424; K. C. R. R. Co. v. Gastineau’s Admr., 83 Ky., 119; McDermott by etc. v. K. C. R. Co., 93 Ky., 408; L. & N. R. R. Co. v. Hocker, 111 Ky., 707; I. C. R. R. Co. v. Broughton, 25 Ky. Law Rep., 1752; and the court erred in refusing to give the peremptory instruction.</p> <p>5. In any event the court must hold, as it did in L. & N. R. R. Co. v. Hurt, 116 Ky., 645, that appellee’s own testimony, in view of the overwhelming testimony to the contrary, must be regarded as untrue, or he was simply mistaken,-and the verdict is not. sustained by sufficient evidence. Civil Code, section 340.</p> <p>6. The court erred in excluding the testimony of train dispatcher Orr, which was clearly competent, and the error in excluding it was extremely prejudicial to appellant. Donovan v. B. & M. R. R. Co., 33 N. E. 583, 584; Louisville Bridge Co. v. L. & N. R. R. Co., etc., 25 Ky. Law Rep., 405; Wharton’s Ev., section 238; 1 Greenleaf (15 Ed.), section 120; Greenleaf (16 Ed.), section 120a; Tayloe v. Riggs, 1 Pet., 596; U. S. v. Rayburn, 6 Pet., 367; Chisholm et al. v. Beaman Med. Co., 43 N. E., 796; N. P. R’y Co. v. Keyeá et al., 91 Fed. 47; Callihan et al. v. Washington Water Power Co., 56 L. R. A., 772; T. & P. R’y Co. v. Birdwell, etc., 86 S. W. 1067; I. C. R. R. Co. v. Barret, 23 Ky. Law Rep., 1765). If there was no other reason for granting a new trial, it should have been granted on the authority of subsection 3 of section 340, Civil Code, on account of surprise to appellant’s counsel at the court’s refusal to permit the train dispatcher to testify from his train-sheet.</p> <p>7. The laction of the trial court in suggesting to counsel in presence of jury, ‘What does it matter what occurred away from Madisonville, it seems not material to this case?” was highly prejudicial under the facts of the case.</p> <p>8. Appellant was entitled to a new trial on the ground of newly discovered evidence. (Subsection 7, section 340, Civil Code).</p> <p>9. The instructions given the jury are erroneous and prejudicial. (See cases hereinbefore cited; also L. & N. R. R. Co. v. McCombs, 2J Ky. Law Rep., 1238; L. & N. R. R. Co. v. Logsdon, 114 Ky., 746; and, especially in authorizing punitive damages. Covington Saw Mill and Mfg. Co. v. Drexilius et al., 27 Ky. Law Rep., 903; L. & N. R. R. Co. v. Hall, 115 Ky., 567; U. P. R’y Co. v. Field, 137 Fed., 14; Fireman In. Co. Exe. v. See Board Ansineq 50 S. E. Rep., 452).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Evidence of appellee’s habits and' character admissible on the issue of damages.</p> <p>2. The pleadings and proof in this case follow the principles laid down in the Conley case; Daniels was hurt while crossing the railroad track at a place in the city of Madisonville, habitually used, by the public, by the negligence of defendant in making a running switch at such a place in the night time, without a light od the loose car; without any employee in control, and without giving warning. (Conley v. C. N. O. & T. P. R. R. Co., 89 Ky., 402; I. C. R. R. Co. v. Hay’s Admr., 27 Ky. Law Rep., 93; Shelby’s Admr. v. C. N. O. & T. P. R. R. Co., 85 Ky., 224; L. & N. R. R. Co. v. McCombs, 21 Ky. Law Rep., 123'6; C. & O. R. R. Co. v Keelin’s Admr., 22 Ky. Law Rep., 1942; Gunn, by etc., v. Felton, etc., 22 Ky. Law Rep., 268;' L. & N. R. R. Co. v. Popp, 96 Ky. 108).</p> <p>3. The train sheet offered by appellant as original evidence was properly rejected; the witness who made it was allowed to use it to refresh his recollection in testifying, and in fact did testify to everything appellant desired to prove by the train-sheet, from personal knowledge. Therefore if there was any'error in this behalf it was harmless. (Grpschell v. Knoll, 10 Ky. Law Rep., 315; Hayes v. Ison, 24 Ky. Law Rep., 1948; Estes v. Jackson, 21 Ky. Law Rep., 857; Galbraith v. Starks, 25 Ky. Law Rep., 2090; I. C. R. R. Co. v. Barrett, 23 Ky. Law Rep., 1755; 2 Rice on Civil Evidence, page 889, sections 346; West Chicago St. R’y. v. Morass, 111 Ill., App. 531; Cushing v. N. Y. N. H. & N. R’y., 185 Mass. 543; Kemp v. Metropolitan L. I. Co., 88 N. Y. S. 1; Jones on Evidence, section 204, 528, 529; Chase v. R’y Co., 38 Ill., 255; Pittsburgh etc., R. R. Co. v. Cunnington, 13 Am. & Eng. R. C., page 531; P. etc. R. R. Co. v. Noel, 7 A. & E. R. R. Cases, page 531; Lanham v. Carter, 11 Bush 8).</p> <p>4. On the case presented by the testimony for appellee, and on all the testimony in the case, the case should have gone to the jury; the motion for peremptory instruction was properly refused.</p> <p>5. The remark of the court in controlling the cross examination of appellee was not at all erroneous or prejudicial.</p> <p>6. An attorney ought never to be surprised by :a correct ruling of the court on a question of law; surprise of this kind is not ground for a new trial. (Holmes v. McKinney, 4 T. B. Monroe, 5).</p> <p>7. The. affidavits of newly discovered testimony are not suf-eient to warrant the granting of a new trial. They do not show diligence, and in fact, other matters in this record taken in connection with said affidavits show want of diligence. The matters in said affidavits set out are either cumulative or immaterial or incompetent. No fact is set out which was not brought out fully on the trial, except such as would not he of controlling effect, even if taken in connection with the rest of appelalnt’s case on a new trial.</p> <p>8. The criticism of instruction No. X is not well taken. If said instruction is objectionable in form, appellant should have asked the converse of it, as it had an opportunity to do on the trial, and as it did not so ask such converse, it cannot complain that it was not given.</p> <p>9. As there is no complaint that the damages awarded by the jury on the trial are excessive, and as the dr mages are in fact but reasonable in amount, the error if any in the instruction on damages is immaterial and harmless. Said instruction is not however erroneous, but is correct in substance and form.</p>

<p>1.Actions at Law — Pleading asking Equitable Relief — Transfer to Equity — Jurisdiction—Where an action, originally brought in ejectment, was so changed by the pleading as to make it one for equitable relief, it was proper for the court, on the motion of the party seeking such relief, to transfer it to the equity docket. While in many cases courts of law will afford relief against fraud or mistake, only a court of equity has jurisdiction to cancel or declare void, a deed or other instrument, whether upon the ground of fraud or mistake.</p> <p>2.Deeds — When Recordable — -A deed properly made and certified during the term of one clerk of the county court, though not lodged or filed for record during his term, may be lodged for record and recorded by his successor.</p> <p>3. Purchase at Decretal Sale — Notice of Prior Sale — Admission in Pleading — Where a purchaser of land at decretal sale seeks to set aside a deed held thereto by a prior purchaser, for want of notice of the record of said deed, an averment in her pleading, that, “she did not know of the existence of the alleged deed until shortly after it was recorded, and did not discover it until a short time before her attachment was levied on the land, under which she made said purchase,” was an admission that she had actual notice of the prior deed, and such notice would defeat her purchase even if the recording of the deed was invalid.</p> <p>4. Agreed Interlineations in Unrecorded Deed — Effect—Where a deed was made by S.'to N., duly acknowledged and delivered, conveying N. a fee simple estate in the land, the fact that before it was recorded certain “interlineations” were made in it, the effect of which was to make it convey to N. a mere life estate, with remainder to her children, which was admitted to have been done for the protection of the grantee’s infant children by a former husband, such change did not affect the deed as between S. and N,, or discredit the genuineness of the conveyance.</p> <p>5. A voluntary conveyance by a brother to a sister is not fraudulent as to a subsequent creditor of the grantor, unless actual fraud is shown.</p>

<p>Taxation — Franchise Tax — Apportionment—Remedy for Failure— Where the State hoard of valuation and assessment has fixed the valuation of the franchise of a railway company on its entire line in the State as authorized by Ky. Stats., 1903, section 4077, hut has not, as required hy the section, apportioned to a taxing district through which the road runs, the amount on which it is entitled to levy a local tax, as authorized hy section 4081, the taxing district’s exclusive remedy is to require the board to make the apportionment.</p>

<p>3. An order of injunction is not void where the parties were heard before it was granted.</p> <p>2. It is the prerogative of courts of equity to grant injunctions. When the court has jurisdiction the party enjoined subjects himself to proceedings for contempt for violating the order of injunction whether the court erroneously made the order or not, the only question to be determined is, has the party violated the injunction.</p> <p>3. After an order of injunction made by a circuit judge, has been violated, the fact that before the fine was imposed the injunction was dissolved by order of a judge of the court of appeals, such an order could not have a retroactive effect, and relieve the party of punishment for his act violating the injunction.</p>

<p>CASE 33. — PROSECUTION AGAINST J. H. HENDERSON FOR SUBORNATION OF PERJURY. — March 13.</p> <p>Appeal from Jefferson Circuit Court, Criminal Division.</p> <p>Joseph Pryor Circuit Judge</p> <p>Defendant convicted and appeals.</p> <p>This indictment and the trial thereon are radically defective in this:</p> <p>1. The indictment charges appellant with having suborned Mary Farmer to swear falsely, when the false swearing, if any, was done by Carrie Farmer. There is no testimony that Mary and Carrie Farmer are one and the same person, while the evidence is positive that they are not, but are two different women.</p> <p>2. The deputy had no authority under the statute to administer an oath and take the bond; no bond was sworn to by Carrie Farmer and none accepted: The oath, if any, was not administered in a court, as required by the statutes, 1173, 1174, 1175, 1176 and 1177. The proceeding was not in a court having jurisdiction of the offense.</p> <p>3. There is no evidence corroborating Carrie Farmer, and she was the accomplice according to her own testimony. There was no evidence or proof to be inferred from any fact deposed to by William Hendricks that could be construed as corroborating her. The testimony of Hendricks does not amount to anything. His threats prevented the consummation- of the offense, even if the deputy had-legal authority to administer an oath.</p> <p>4. Illegal evidence introduced by appellee to play upon and excite the racial prejudices of the jury against the appellant. By-reason of these prejudices appellant was convicted.</p> <p>AUTHORITIES CITED. '</p> <p>Ky. Stats., sections 1173, 1174, 1175, 1176, 1177; Roberson’s Ky. Criminal Practice and Procedure; 105 Am. St. Reports, 976; Annotation to Sykes v. Tenn.; Hensley v. Commonwealth, 1 Bush., 11; Civil Code, section 597.</p>

<p>CASE 34. — ACTION BY THE ADMINISTRATOR OP HENRY C. AUSTIN AGAINST THE PITTSBURG, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO. POR DAMAGES POR PERSONAL INJURIES. — March 14.</p> <p>Appeal from. Jefferson Circuit Court, Common Pleas Branch, First Division.</p> <p>Emmet Field, Judge.</p> <p>From a judgment overruling a demurrer to the answer plaintiff appeals.</p> <p>1. Our contention is that where one dies in this State having a claim for damages for a personal injury against another, such claim is a chose in action, and is such an estate as would entitle the county court of the county in which he died to grant letters of administration .on his estate upon the idea that it was an estate in the meaning of Ky. Stats., sections 3894 and 4849,. although he had “no known place of residence in this State,” at the time of his death.</p> <p>2. That whether a pending action for personal injuries may be revived upon the death of the party plaintiff is to be determined by the laws of the State where the action is brought, and is not affected by the fact that the injury occurred in another State.</p> <p>3. That the right to have an action revived in the name of .an administrator, which is secured by' Civil Code, section, 500, and which applies to all actions whether brought by residents or nonresidents of Kentucky carries with it the right to have an admin* astrator appointed for such purpose in Kentucky; otherwise the right might be lost by limitation.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sections 3894, 4849; Civil Code, section 500; Missouri Pac. Ry. Co. v. Bradley, Am. Negligence Reports, Vol. 3, p. 244; B. & O. R. R. Co. v. Joy, Am. Negligence Reports, Vol. 5, p. 760; Brown’s Admr. v. L. & N. R. R. Co., 97 Ky., 228; Young’s Admr. v. L. & N. R. R. Co., Ky., decided November 17, 1905.</p> <p>POINTS AND AUTHORITIES.</p> <p>Appellant’s intestate, a resident of Indiana, instituted an action in the Jefferson Circuit Court against appellees, to recover damages for personal injury received in Indiana. Pending the action, he died in Indiana from other causes than the injury complained of. He left no estate in Kentucky.</p> <p>1. The Jefferson county court had no jurisdiction to appoint an administrator of his estate, and such administrator had no right to revive and prosecute the pending action. (Sections 3894 and 4849, Kentucky Statutes; Singleton v. Cogar, 7 Dana., 494; Jacob’s Admr. v. L. & N. R. R. Co., 10 Bush., 270; Thumb v. Gresham, 1 Met., 308; L. & N. R. R. Co. v. Brantley’s Admr., 96 Ky., 308; Hall’s Admr. v. L. & N. R. R. Co., 102 Ky., 484; Turner’s Admr. v. L. & N. R. Co., 23 Ky. Law Rep., 340.</p> <p>- 2. The jurisdiction of the county court may be attacked collaterally and the appointment shown to be void for want of jurisdiction in the court. Same authorities as above cited.</p> <p>3. Under the statutes of Indiana, an action for personal injuries, not resulting in death, dies with the person injured. The statute being pleaded, presents a bar to the revivor and prosecution of the action in any other jurisdiction. (22 Am. & Eng. Ency. of Law, p. 1380, and cases cited.)</p> <p>ADDITIONAL POINTS BY APPELLEE.</p> <p>1. It is the universal rule that in the prosecution of an action in one State, on a cause of action which accrued in another State, the lex fori is applied in all matters of remedy, the lex loci in all matters affecting the cause of action. (Story’s Conflict of Laws, sections 556-558.)</p> <p>2. Statutes which provide for the revivor of actions are purely remedial. Whether a cause of action survives is a question of right, not remedy, to be determined in all cases by the law of the place where the cause of action accrued. (Saunders v. L. & N. R. R. Co., Ill Fed. Rep., 708; Martin v. B. & O. R. R. Co., 151 U. S., 692; Schreiber v. Sharpless, 110 U. S., 78.)</p> <p>3. Causes of action which die with the person under the law of the State where they accrue, cannot be made to survive by virtue of .a statute of another State under which similar causes of actions survive. Such a statute is local, creates new causes of action, and cannot be given extra-teritorial force by applying it to causes of action accruing in other States. (Needham v. Grand Trunk R. R. Co., 38 Vt., 294; Crowley v. Panama R. R. Co., 30 Barb., 99; Whitford v. Panama R. R. Co., 3 Duer., 67; Beach v. Bay State Co., 30 Barb., 433; Davis v. N. Y. & H. R. R. Co., 28 A. & E. R. R. Cases 223; Strattons Independence v. Dines, 126 Fed. Rep., 968.)</p> <p>4. The case of B. & O. R. R. Co. v. Joy, 173 U. S., 226, has been misunderstood and misapplied. It decided only that the action could be revived. It did not decide that the cause of action thereby survived. No such question was presented.</p>

<p>CASE 35. — PETITION FOR WRIT OP PROHIBITION BY J. Q. JENKINS AND OTHERS AGAINST A. S. BERRY, JUDGE OP THE CAMPBELL CIRCUIT COURT.— March. 14.</p> <p>(No briefs; record misplaced.)</p>

<p>CASE 36. — ACTION BY H. B. CASSELL AGAINST THE SOUTHERN RAILWAY CO. FOR WRONGFULLY EJECTING HIM FROM ITS TRAIN. — March 14.</p> <p>Appeal from Anderson Circuit Court.</p> <p>R. F. Peak Circuit Jndg-e.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>SUMMARY.</p> <p>POINTS AND EVIDENCE RELIED UPON.</p> <p>1. Want of jurisdiction, section 80, Civil Code; Ault v. Everett, &c., 16 Ky. Law Rep., 93; C. & O. & S. W. R. R. Co. v. Heath’s Administrator, 87 Ky., 656; Lillard v. Brannon & Brand, 91 Ky., 516.</p> <p>2. Error in instruction; B. & O. & S. W. Ry. Co. v. Hudson, 25 Ky. Law Rep., p. 2154.</p> <p>3. Damages excessive; L. & E. R. R. Co. v. Lyons, 104 Ky., p. 23; L. & N. R. R. Co. v. Wilsey, 11 Ky. Law Rep., p. 419; L. & N. R. R. Co. v. Wilkerson, 15 Ky. Law Rep., p. 92; C. & O. Ry. Co. v. Osborne, 97 Ky., p. 112; L. & N. R. R. Co. v. Breckinridge, 17 Ky. Law Rep., p. 1303; L. & N. R. R. Co. v. Jordan, 23 Ky. Law Rep., 1730.</p> <p>AUTHORITIES CITED.</p> <p>C. & O. R. R. Co. v. Cowherd, 96 Ky.; L. & N. v. Chestnut, 24 Ky. Law Rep., 1846; N. N. M. V. Co. v. Thomas, 15 Ky. Law Rep., 876; C. & O. v. Heath’s Admr., 87 Ky., 659; Civil Code, sections 80 and 92; B. & O. & S. W. Ry. Co. v. Hudson, 25 Ky. Law Rep., 2154; L. & N.' v. Wilkinson, 15 Ky. Law Rep., 92; L. & N. v. Mitchell, 87 Ky., 337; C. & O. v. Osborne, 97 Ky., 112; Georgia R. R. Co. v. Homer, 73 Ga., 256; Chicago & Alton R. R. Co. v. Flagg, 43 Ill., 364.</p>

<p>CASE 37. — ACTION BY THE DEPOSIT BANK OP CARLISLE AGAINST G. W. BRAMBLETT AND OTHERS ON TWO PROMISSORY NOTES INVOLVING A QUESTION OP USURIOUS INTEREST. — Marck 14.</p> <p>Appeal from Nicholas Circuit Court.</p> <p>J. J. OsbouNE, Circuit Judge. .</p> <p>Judgment for plaintiff. Defendants, appeal.</p> <p>The errors upon which appellants chiefly rely are:</p> <p>First — In the action of the court -in permitting the amended petition to remain a part of the record, which was filed on October 17, 1902, in vacation,.by overruling the appellants’ motion to strike out and by overruling appellants’ demurrer to the same.</p> <p>Second — The error of the court in directing the manner of calculation to be made by the commissioner, The order was filed on October 9, 1902, and was objected and excepted to by the appellants at the time.</p> <p>Third — The error of the court in overruling the exceptions of the appellants to the commissioner’s report of calculation of interest, which was filed on February 2, 1903.</p> <p>AUTHORITIES CITED.</p> <p>Riddle v. Lewis, 7 Bush, 197; Guthrie v. Wickliffes,, 1 Mar., 584; Taylor v. Knox, 5 Dana, 470.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There was no error in directing and permitting the amended petition to be filed. (Deposit Bank of Owensboro v. Robertson, 17 Ky. Law Rep., 1254; Civil Code, section 134; H. Felton Co. v. Thompson, 22 Ky. Law Rep., 758; Adams Oil Co. v. Christmas & Hughes, 19 Ky. Law Rep., 760; Brannon, Brand & Glover v. Brawner, 19 Ky. Law Rep., 343; Brannon v. Brawner, 8 Ky. Law Rep., 434; Kleimer, &c., v. Covington Perpetual B & L. Association, 24 Ky. Law Rep., 735; 7 Ky. Law Rep., 376.)</p> <p>2. The mode of calculation as directed by the order of reference is correct. (Farmers’ Bank of Ky. v. Calk, 4 Ky. Law Rep., 617; 16th Am. & Eng. Ency. of- Law, p. 1079; Rhodes v. Blythe, 2 B. Mon., 335; Castleman, &c. v. Holmes, 4 J. J. Marshall, p. 4; Haggar v. Blake, 16 Neb., 12; 46 Am. St. Rep., p. 190 note); McGovern v. Union, &e., 109 Ill., 151; Young v. Hill, 67 . N. Y., 162; Taliaferro’s Exc. v. King’s Admr., 9 Dama, 331; Webb on Usury, section 125.)</p> <p>3. Commissioner’s report and exceptions. On this point we respectfully submit the authorities cited under the second point.</p>

<p>1. Municipal Corporations — Street Improvements — Cost—Liability of City — Where an ordinance authorizing the improvement of a street and a contract executed pursuant to the ordinance provided that the improvement should be -done at the exclusive cost of the owners of ground fronting on the street, and that the city should be liable for no part of the cost except at the intersection of streets and public alleys, the city was exempted from liability only in case it had authority to and did bind the abutting property for the cost of the improvement.</p> <p>2. Same — Ordinance—Specification of Mode of Payment — Construction of Statute — Under Ky. Stats., 1903, section 3457, providing that the common council of third-class cities shall have power to cause streets to be graded, paved, etc., and provide for the payment of the cost out of the city treasury providing the ordinances and contracts for such work shall specify how the work shall be paid for, the proviso is directory and not mandatory, and hence it is not necessary, in order to render the city liable for the work, that the ordinance shall specify how payment shall be made.</p> <p>3.' Evidence — Judicial Notice — Navigability of River — Courts will take judicial notice that the Tennessee river is a navigable river.</p> <p>4. Navigable Waters — Rights of Public — The rights of the public in a navigable river extend to ordinary high-water mark.</p> <p>5. Municipal Corporations — Improvements—Liability of Abutting Owners — Where a city seeks to grade the continuation of a street between the high and low-water mark of a navigable stream, intending to use such improvement, when graded, as a wharf, as the public right in the land forming the bank of the river between high and low-water mark was paramount to the rights of the owner of the adjacent fee which extended to the river, the improvement of the way for the public across their own property could not be made at the expense of the abutting property holders who were the servient owners.</p> <p>6. Same — Liability of City — Where a city contracts for the improvement of a thoroughfare between high and low-water mark on a navigable river, providing that the owners of the abutting property shall be liable for the cost, and the contract for the liability of the adjoining owners is invalid because the right in the land forming the bank of the river between high and low-water mark was in the public, the court could, under Ky. Stats., 1903, section 3458, providing that on trial in equity of any case relating to the improvement of a street the court shall have the right to correct any mistake of the common council relating to such improvement so as to do complete justice to all, enter judgment against the city for the contract price of the improvement.</p>

<p>CASE 39. — ACTION BY GEORGE H. FLEGE AGAINST THE COVINGTON & CINCINNATI ELEVATED RY. AND TRANSFER & BRIDGE CO. TO ENFORCE A COVENANT TO BUILD AND KEEP IN REPAIR A STONE RETAINING WALL. — March 15.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. Mc'D. Shaw, Circuit Judge.</p> <p>From a ¡judgment sustaining a demurrer to plaintiff’s petition he appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Estoppel. (Western Bank v. Coldway, 22 Ky. Law Rep., 1250.) Definition of:</p> <p>(a)As applied to the statute of limitations. (Am. and Eng. Ency. of Law, 2d ed. Vol. IS, p. 288; Newton v. Cars on, 22 Ky. Law Rep., 1250; Hamilton’s Exor. v. Wright, Admr., 27 Ky. Law Rep., 1145; Derrick v. Lamar Ins. Co., 74 Ill., 404; Holloway v. Appleget, 55 N. J. E., 583; Swofford Bros. Dry Goods Co. v. R. C. Goss, 65,' Mo., app., 55; Renackowsky v. Board of Commissioners, 122 Mich., 614; Armstrong v. Levan, 109 Pa. St., 177; Home Life Ins. Co. of Texas v. Meyers, 93 Ills., 271.)</p> <p>2. That the statute of limitations does not apply to continuing covenants.</p> <p>(a) Doctrine stated. (Am. & Eng. Ency. of Law, 2d ed., Vol. 19, p. 201.)</p> <p>(b) Cases illustrating same. (Coleman v. Whiting, 62 Vt., 123; S. C., 9 L. R. A., 517; Riddle v. Beattie, 77 Iowa, 168; Schoonover v. Vachon, 121 Ind., 3; McCoy v. McDowell, 80 Iowa, 146; Carter v. Carter, 28 Ill. app., 340; Schell v. Plume, 55 N. Y., 592; Stringer v. Stringer, 93 Ga., 320; Beach v. Crane, 4 Am. Dec., 349; 2 N. Y„ 86.)</p> <p>3. That “Specific Performance” should be granted.</p> <p>(a) Doctrine stated. (Story on Equity Jurisprudence, Vol. 2, section 728.)</p> <p>(b) Cases illustrating same. (Story v. Gr. West. Ry. Co., 2 Y. & Coll., New R., 48; L. & N. R. R. Co. v. Zaring, 9 Ky. Law Rep., 107; Lou. Sou. R. R. Co. v. Ragland, 15 Ky. Law Rep., 814; Schmidt v. L. & N. R. R. Co., 19 Ky. Law Rep., 666.)</p> <p>4. As to the location of the wall and fence.</p> <p>(a)Definition of the word “along." Century Dictionary; Funk & Wagnall’s “Standard Dictionary,” 20th Century Edition; Encyclopedia of Law and Proceedure, Vol. 3, p. 135.</p> <p>(b) As to its use. (Church v. Meeker, 34 Conn., 425.)</p> <p>(c) Definition of the term “adjoining.” (Am. & Eng. Ency. of Law, Vol. 1, 2d ed., p. 635.)</p> <p>(d) Construction of the word “along.” (Commonwealth v. B. H. Franklin, 133 Mass., 569; Benton v. Horsely, 71 Ga., 619; Comes v. Minot, 42 Barb. (N. Y.), 60.)</p> <p>(e) Duty to shore up the property of another. (Washburn on Real Property, Vol. 2, pp., 359, 361, 362, 4th 6d.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Covenant in deed barred by the statute of limitations. (Section 2514, Ky. Stats.)</p> <p>2. Verbal agreement barred by 5 years statute. (Section 2515, Ky. Stats.)</p> <p>3. Action must be on original promise, but if new promise was made before running of statute. (Gilmore v. Green, 14 Bush., p: 772.)</p> <p>4. No estoppel to plead statute of limitations. (11 Am. & Eng. Ency. of Law, 2d ed., p. 434.)</p> <p>5. Verbal agreement not good unless it is to be performed within one year. (Section 470, Ky. Stats.)</p> <p>6. Statute of limitations may be raised by demurrer. (Stillwell v. Levy, 84 Ky. Reports, p. 384.)</p>

<p>1. Easements — Permissive Use — Burden of Proof — Where a pass-way had been uninterruptedly enjoyed for more than 16 years over the land of another by an adjoining land owner, the owner of the land, in undertaking to close the way, assumed the burden of proving that the use of it was merely permissive.</p> <p>2. Same — Presumptions—-The mere fact that he never gave and the users never iasked for permission is not of itself sufficient to1 overcome the presumption in their favor arising from their. longTContinued use.</p> <p>3. Same — Knowledge of Existence — Evidence-—The conduct of the owner in placing gates in the fence when he inclosed the’ land over which the passway existed was evidence of knowledge-on-his part that they had used the. passway and a recognition of their right to continued enjoyment.</p> <p>4.- Same — Erection of Gates — Gates across a passway which had been uninterruptedly used by an adjoining land owner for moré than 15 years, which were erected without opposition by the users of the way, and had been continued for several years, and were necessary to protect the inclosure, are right; fully maintained.</p>

<p>•CASE 41 — ACTION BY THE OLD WOOLEN MILLS CO. AND OTHERS AGAINST PRANCES L. PEYTON.— March. 20.</p> <p>Appeal from Ballard Circuit Court.</p> <p>B. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeal.</p>

<p>Negigence — Acts Constituting — Vat Near Street — A laundry company maintaining a vat four feet from a street is not guilty of negligence, rendering it liable to one who left the street for his own purposes and was injured by falling into the vat.</p>

<p>1. Railroads — Personal Injuries — Trespassers—Evidence—In an action against a raiload company for a death occurring on what it claimed as its right of way, the introduction of title papers by it was not necessary; it appearing that such right of way had been inclosed for more than 45 years.</p> <p>2. Same — It was not material that all the fences separating such right of way from the lands of others were not built by the company.</p> <p>5.Same — Use of Right of Way — License—Where the right of way on which plaintiff’s decedent was killed was not on or parallel to an adjoining street, but was entirely enclosed to prevent its use by the public, its use by the public in sometimes passing that way did not amount to a license.</p> <p>4. Same — Care Required as to Trespassers — There could be no recovery for the death of a trespasser on a railway right of way unless the trainmen, after discovering his danger, could by the exercise of ordinary care have prevented the accident.</p> <p>5. Same — Though trainmen saw plaintiff’s decedent walking by the side of the track ahead of the train, they were not required to anticipate that he would put himself in danger by getting on the track in plain view of the approaching train, but they might assume that he knew of its approach.</p> <p>6. Same — Rate of Speed — Municipal Ordinance' — Violation of a speed ordinance was not negligence available to plaintiff.</p> <p>7. Same — Failure to Signal — Failure to give customary signals on approaching a crossing was not negligence available in behalf of plaintiff suing for death of a .trespasser killed on the right of way.</p> <p>8. Same — Contributory Negligence — Evidence—Evidence that plaintiff’s decedent was postmaster and should have known the schedule time of regular trains, but walked along the right of way ahead of one of such trains and suddenly stopped on the track in front of it, showed contributory negligence.</p>

<p>1. Life Insurance — Beneficiary—Insurable Interest — Colorable Assignment — In accordance with a contract between insured and one having no insurable interest in his life, life policies were taken out payable to insured’s estate, and assigned to the third person, to whom also they were delivered by the agent. All premiums were paid by the assignee from whom insured received a certain sum for the transaction. Held, That the policies were void, and not collectible by the administrator.</p> <p>2. Same — Incontestable Clause — A life policy, void at its inception for lack of insurable interest, is not rendered valid by a clause declaring it incontestable after one year.</p> <p>8. Witnesses — Parties—Transaction with Decedent — Testimony Favoring Other Parties — An assignee of a life policy, made defendant by the administrator bringing action thereon, is . competent to testify as to transactions with the deceased, in behalf of the company denying the validity of the policy.</p>

<p>CASE 45. — PROSECUTION AGAINST JOHN D. WHITE FOR GAMING — March 20.</p> <p>Appeal from M)adison Circuit Court.</p> <p>J. M. BeNTON, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>We submit that the former trial and conviction of the defendant in the police court of Richmond Ky., in the same county, is . a complete bar under section 168 of the Constitution, said trial being in the name of the Commonwealth; the warrant charging the plain offense of gaming, over which the police court had jurisdiction by section 3513, Kentucky Statutes, and by reason of an ordinance of said city in the language of the statute imposing the same penalty for the same offense. (Commonwealth v. Wickersham, 99 Ky. 21; Moren v. Commonwealth, 25 Ky. Law Rep., 1042.)</p>

<p>CASE 46. — FORCIBLE DETAINER PROCEEDING BY OMA DAVIS AGAINST HUMPHREY MARSHALL.— March 21.</p> <p>Appeal from Jefferson Circuit Court, Common Pleas Branch (Third Division).</p> <p>UptoN W. Muie, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>First — After the dismissal of the first traverse, the first judgment of eviction, by which the tenancy under the lease was terminated, was left in full force and effect and the appellant was thereafter a tenant by sufferance and was entitled to one month’s notice in writing. (Gore v. Stevens, 1 Dana., 201; Pollard v. Otter, 4 Dana., 517; Mendel v. Hall, 13 Bush., 232; Kentucky Statutes, section 2326.)</p> <p>Second — Appellant was entitled to judgment because appellee failed to join issue on the traverse, and the circuit court erred in not sustaining appellant’s motion for peremptory instructions, and overruling his motion for judgment non obstante. '(Civil Code, sections 114, 115, 386; L. & N. R. R. Co. v. Paynter’s Admx, 26 Ky. Law Rep., 761; L. & N. R. R. Co. v. Cophas, 95 Ky., 460; Gore v. Illinois Central R. R. Co., 17 Ky. Law Rep. 799.)</p> <p>' PROPOSITIONS AND AUTHORITIES.</p> <p>1. When a tenant holding under a lease pays all the rent due at time of payment, and also pays rent in advance as a settlement of forcible detainer procedings, and remains in the occupation of the leased premises without making a new contract of lease, the landlord waives the forfeiture and the tenant holds under the terms of the lease as if no forfeiture had occurred. (Wilson v. Jones & Tapp, 1 Bush., 173; Taylor on Landlord and Tenant,Vol. 2, paragraph 512; Taylor on Landlord and Tenant, Vol. 2, section 485, and footnote; Tuttle v. Bean, 13 Met., 273; Supple v. Timothy, 124 Pa. St., 375; Sanders v. Pope, 12 Vesey, 289; Croft v. Lamley, 5 Ellis & Blackburn, Eng. Com. Law Reports; Taylor on Landlord and Tenant, Vol. 2, paragraph 507; Robinson’ v. Cheney, 17 Neb., 68; Hurst v. Thompson, 73 Ala., 158; Pomeroy Eg.. Juris.,- paragraph 450; Pomeroy Eg. Juris., section 453; Wilson v. Hunt’s Admr., 6 B. M., 279; Chitty PI., Vol. 1, 319.)</p> <p>2. A motion of a defendant for judgment non obstante verdicto comes too late after judgment has been rendered and after motion and grounds for a new trial has been filed. The court is not authorized to reverse a judgment for an alleged error which has been waived; nor for any error which does not affect the substantial rights of the party complaining. (Civil Code, sections 465-134; Jones v. Skiles, 1 A. K. Marshall, 39; Dibble v. Porter, 1 Duvall, 181; Taylor v. L. & N. R. R., 92 Ky., 55; L.. & N. R. R. v. Copas, 95 Ky., 462; Schieble v. Hart, 11 - Ky. Law Rep., 607; Freeman on Judgments, section 7, and sub-section 4.)</p>

<p>CASE 47 — ACTION BY COMMONWEALTH BY' GEORGE H. ALEXANDER, REVENUE AGENT, AGAINST THE CENTRAL CONSUMERS CO. TO RECOVER TAXES. —March 22.'</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (Second Division.)</p> <p>Samuel Kirby, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>The issue involved in this record, is the right of appellant, a State revenue agent, to institute a civil action in the Jefferson county court to recover in the name of and for the Commonwealth license fees due from breweries located in Jefferson county. The question is raised by special demurrer to the statement or information.</p> <p>CONCLUSIONS OP LAW. '</p> <p>1. -Sections 4260, 4224, 4184, 4241 authorizes the revenue agent to file such information.</p> <p>2. It is not necessary to have the consent of the auditor to do so. (Hager, etc., v. Lucas, 27 Ky. Law Rep., 710; sections 4260, 4224, 4184, 4241, consent of auditor not required; sections 4053, 4264, must be directed by the auditor.)</p> <p>3. This is a civil action upon a liability created by statute and the penal sections 4263, 4068, 4051, 4061, 4062, 4153, 4210, where the prosecution is conducted by the county or Commonwealth’s attorney are not applicable.</p> <p>4. A failure to pay license fees is a purely statutory offense. > The legislature having limited the punishment to -a fine, has the constitutional power to prescribe that the license may be recovered by a civil action, although an indictment may lie for such statutory violation, (Commonwealth v. Avery, 14 Bush, 641.)</p> <p>The case at bar is not within the special procedure of section 4224, and the authority of the. appellant to institute the action, and the jurisdiction of the county court to hear it, must be found elsewhere.</p> <p>CONCLUSION.</p> <p>We submit to the court:</p> <p>1. That the county court, the court of instance, had no jurisdiction over the subject-matter of this action.</p> <p>2. That the appellant, George H. Alexander, by virtue of his office as State agent and without direction from the State auditor, had no authority to institute this proceeding.</p> <p>If either of these propositions is well taken, the special demurrer was properly sustained. We submit that they are both sound, and respectfully ask that the judgment be affirmed.</p>

<p>CASE 48. — PROCEEDINGS IN THE POLICE COURT OP THE CITY OP PADUCAH AGAINST S. P. RAGSDALE AND OTHERS UNDER A CITY ORDINANCE PROHIBITING CATTLE PROM RUNNING AT LARGE IN SAID CITY. — March 22.</p> <p>Appeal from Police Court of City of Paducah.</p> <p>D. L. S’aNdees, Police Judge.</p> <p>From the judgment the city appeals.</p>

<p>■CASE 49. — PROSECUTION AGAINST MOBILE & OHIO R. R. CO. FOR FAILING TO GIVE STATUTORY SIGNALS AT A PUBLIC CROSSING. — March 22.</p> <p>Appeal from Fulton Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Defendant convicted, and appeals.</p>

<p>CASE 50 — PROSECUTION AGAINST THE STANDARD OIL CO. FOR SELLING OIL FROM A WAGON WITHOUT A LICENSE. — March 23.</p> <p>Appeal from. Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judg-e.</p> <p>Defendant convicted, and appeals.</p> <p>POINTS AND CITATIONS.</p> <p>1. The Graves county judgment, appealed from by the Standard Oil Company, should be reversed because the question whether the defendant was a corporation was not submitted to the jury by the instructions. This is a material issue, even in a civil case. (Pike, Morgan & Co. v. Wathen, 25 Ky. Law Rep., 1264).</p> <p>2. The graves county judgment, appealed from by the Commonwealth, should be affirmed. The court properly sustained the defendants’ plea of former conviction. (Commonwealth v. Standard Oil Co., 27 Ky. Law Rep., 1073.)</p> <p>3. The Calloway county judgment, appealed from by the Standard Oil Company, should be reversed. (Commonwealth v. Standard Oil Co., 27 Ky. Law Rep., 1073; Standard Oil Co. v. Commonwealth, 27 Ky. Law Rep., 1131; Standard Oil Co. v. Commonwealth, 26 Ky. Law Rep., 927; Standard Oil Co. v, Commonwealth, 26 Ky. Law Rep., Í187.)</p> <p>1. Special statement of the dates.</p> <p>The Calloway county indictment was returned on April 23, 1904, for sale made in September, 1903.</p> <p>The Graves county indictment was returned on the 22d day of November, 1904, for a sale made May 30th, 1904.</p> <p>2. Citations of the law.</p> <p>It was not proven by the appellant that it has ever procured a license, neither from the county of Calloway, nor from the county of Graves.</p> <p>3. That the Commonwealth is not required to show the want of a license by a party offending the license-laws, see the case of Orme v. Commonwealth of Kentucky, 21 Ky. Law Rep., 1414; Haskell v. Commonwealth of .Kentucky, 3 B. Mon., 352; Commonwealth v. Standard Oil Co., 27 Ky. Law Rep., 1074, which holds that the license protects for only that license year.</p> <p>4.’ But the vital failure of the appellant in this case that was tried in the Graves Circuit Court, to show that it had a license at all, is fatal to its success in this appeal.</p> <p>5. So far as it was shown in the case at bar, this appellant has no license to this good day. If it had a license, this is an affirmative fact that it can more easily show than the Commonwealth, for it had been held that a license upon a wagon procured in one county of this State will authorize it to sell' in any county in the State; of course the Commonwealth could not be asked to produce the records of each county court clerk in‘this State to show that- the company had no license.</p> <p>6. No license was shown to exist by the evidence in this case, nor by any of the pleadings by this appellant.</p> <p>7. Continuing offenses, or 'rather a continuous offense, is barred against all acts that have occurred up to the finding of the indictment; but the criminal acts that occur thereafter constitutes a different offense, is a question cited too often to need repetition now.</p> <p>8. The demurrer to the indictment was properly overruled.</p> <p>9. The demurrer to the evidence was also properly overruled.</p> <p>10. Instruction “A” offred by appellant was properly overruled.</p> <p>11. Instructions No. 1 and 2 given by the court were proper.</p> <p>12. The amount of the fine was not excessive.</p> <p>13. A fair and impartial trial was had by the appellant.</p> <p>14. The motion for a new trial was properly overruled.</p> <p>The judgment of the lower court should be sustained.</p>

<p>CASE 51. — PROSECUTION AGAINST JAMES GARFIELD ■ SMITH FOR MURDER — March 23.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>CASE 52. — ACTION BY J. GALLOWAY AND OTHERS AGAINST A. J. CRAIG AND OTHERS TO RECOVER LAND.— March. 23.</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Bikkhead, Circuit Judge.</p> <p>Judgment - for defendants. Plaintiffs appeal.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>First — In a collateral attack on a judgment every doubt will be' resolved in favor of the integrity of the judgment of a court of general jurisdiction. (Jones y. Edwards, 78 Ky., 6; Worthington v'.' Read, 75 S. W., 206 (Ky); Miller v. Foreman, 75 S. W., 218 ' (Ky.); Berry v. Foster, 58 S. W., 709 (Ky.); Newcomb’s Exr. v. Newbomb, 13 B., 545; Paul v. Smith, 82 Ky., 451.)</p> <p>gecond — Even should the court decide the judgment in the case of Sliultz v. Simmons was void and conferred no title to the ten acres sold under that decree, it could afford no relief, for it does not appear from the pleadings where that ten acres is located. .</p> <p>Third — Service of revivor in the old Shultz case was sufficient. (Cheatham v. Whitmer, 86 Ky., 614; Code of 1854, section 563.)</p> <p>Fourth — The fact that the guardian ad litem was not an attorney-at-law would not render the judgment void. Under the Code of 1854, he need not have been an attorney. (Code, 1854, sections 55 and 56.)</p> <p>Fifth — Even if no guardian ad litem had been appointed, it was a mere error and did not render the judgment void. (Norfleet’s Admr. v. Logan, 21, Ky. Law Rep., 1200; Oliver v. Park, 101 Ky. 1.)</p> <p>Sixth — A judgment is valid against all who were before the court, although one of the heirs may not have been before the court. (Cox v. .Story, 80 Ky., 64; Wooldridge v. Hendrix, 51 S. W., 162 (Ky.); Hulsweed v. Shardeman, 63 S. W., 1 (Ky.); 2 B. M., 455; Civil Code of Practice, section 627.)</p> <p>Seventh — The Hill suit was properly brought in Ohio county, and the Ohio Circuit Court had jurisdiction to render the judgment. (Civil Code, 1876, sections 62 and 66.)</p> <p>Eighth — In the Hill case the administrator of Simmons, deceased, entered his appearance by demurring to the petition and moving to dismiss the action. (Civil Code, section 92 (Ky., 297'; 90 Ky., 346; 95 Ky., 277.)</p>

<p>CASE 53. — ACTION BY MOSES LEVY’S 'ADMINISTRATOR. AGAINST THE NEW YORK LIFE INSURANCE CO. TO RECOVER ON ALLEGED CONTRACT OF INSURANCE. — March 23.</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. HeNSON, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>QUESTIONS DISCUSSED.</p> <p>First. Moses Levy applied to the New York Life Insurance Co. for ten thousand dollars of insurance on his life. The company declined his application for ten thousand dollars, and authorized the issual of a policy for five thousand dollars. On the day following, and before the counter proposition was submitted to him, Levy died. No contract existed between the parties. (Hutcheson v. Blakeman, 3 Met. 80; Parsons on Contracts, page 399-499; Eliason v. Henshaw, 4 Wheat. (D. S.) 225; Jenness v. Mt. Hope iron Co., 53 Maine 20; First National Bank v. Hall. 101 U. S. 43, Weaver v. Burr, 3 L. R. A. 94; Mutual Life Insurance Co. v. Young, 23 Wall (U. S.) 85; Travis v. Nederland Life Ins. Co., 104 Fed. Rep. 846; Murapoles & Ry. v. Columbus Ry. Mill, 119 U. S. page 151; Taloe v. Merchants Fire Ins. Co., 9 Howard at page 401).</p> <p>Second. Moses Levy knew the agent who solicited his application had no right to bind the company, and any contract he and the agent may have attempted to make is void. The fact that Levy could not read the provisions of the application does not change this. He should have had the application read to him. (Mudd v. German Ins. Co., 56 S. W. R. 977; Spitze v. B. & O. R. R. Co., 32 Am. St. R. 385; Albrecht v. Milwaukee etc. R. R. Co., 41 Am. St. R. 30; Fonseca v. Cunard Steamship Co., 25 Am. St. R. 660.</p> <p>Third. The check for premium wias given subject to the acceptance of the application. The application was rejected before the death of the applicant, and before the check for the premium was given. No contract existed between the parties.</p> <p>Fourth. The application should have been construed by the court, and its construction should not have been submitted to the jury.</p> <p>Fifth. A proposition for life insurance is personal. To be binding it must be accepted by the applicant during his own life. Personal representative has no right to accept proposition for his decedent.</p> <p>Sixth. The questions involved in this case were purely questions of law and no instructions, other than a peremptory instruction to find for the defendant, should have been given.</p> <p>Seventh. The premium of this insurance was not.actually paid, and plaintiff could not maintain this action without first making a tender of the premium.</p> <p>CROSS APPEAL.</p> <p>First. Plaintiff is estopped from claiming under the second policy, by aceptance of the' first one with notice of rejection of the second endorsed thereon.</p> <p>Second. Reconsideration of application for life insurance after the death of applicant, and issual of policy thereon in ignorance of such death, which policy was never delivered or accepted, creates no contract of insurance.</p> <p>(The original brief for appellee not in the record).</p>

<p>CASE 54. — ACTION BY DANIEL S. MANGAN’S, ADM’R, AGAINST THE LOUISVILLE ELECTRIC LIGHT CO. EOR CAUSING THE' DEATH OP PLAINTIFFS INTESTATE. — March 27.</p> <p>Appeal from Jefferson Circuit Court, Common Pleas Branch (First Division).</p> <p>Emmett Field, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>(No brief in the record for appellee).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A company which creates and places upon its wires an electric current of a voltage dangerous to human life, must see to it, at its peril, that the dangerous current does not escape therefrom into the houses, shops, or other private premises of its patrons. (McLaughlin v. L. E. L. Co., 100 Ky. 73; Overall v. L. E. L. Co., 20 Ky. Law Rep. 759; Ryland v. Fletcher, L. R. 3, H. L. 330; Ball v. Nye, 99 Mass. 582; Shiply v. Fifty Associates, 101 Mass. 251; Gorham v. Gross, 125 Mass. 232; Wilson v. New Bedford, 108 Mass. 261; Cahill v. Eastman, 18 Minn. 324; St. Anthony Falls Water Co. v. Eastman, 20 Minn. 277; Prixley v. Clark, 35 N. Y. 520; Zutte v. Hughes, 67 N. Y. 267; Selden v. Canal Co., 29 N. Y. 634; Bradley v. N. Y., etc., R. R. Co., 21 Conn. 294; Jaggard on Torts, page 853; Berger v. Minn. Gas L. Co., 62 N. W. 336; Kinnaird v. Standard Oil Co., 89 Ky. 476; The F. A. Sneider Preserve Co. v. Beeman, 22 Ky. Law Rep. 1527; Macon v. Paducah R’y Co., 23 Ky. Law Rep. 50; O’Donnell’s Adm’r v. L. E. L. Co., 21 Ky. Law Rep. 1362).</p> <p>2. Justice and public policy alike demand that the risk arising out of any defect or imperfection in appliances provided by an electric light company for reducing the voltage of the electric current, as it passes from the primary wires of the company to the service wires of the consumer, must fall upon the company which provides, and whose duty it is to keep such appliances in proper condition, rather than upon the consumer, who has no connection with such apliances or control over them.</p> <p>3. The appellee in this case having impliedly agreed to transmit to the service wires of the L. & N. R. R. Co., in the shop where plaintiff’s intestate was employed, electricity for lighting purposes at ¡a low and harmless voltage not perilous to human life, and having provided a transformer which it represented was to accomplish that result, can not be excused from liability for the tort growing out of its breach of contract merely because the appliance provided by it proved defective or inadequate. Appellee having created the danger must control it; its contract but adds to its obligation. (Jaggard on Torts, page 95; Ryland v. Fletcher; Overall v. L. E. L. Co., and cases supra).</p> <p>4. The obligation of an electric light company, or other manufacturer and vendor of electricity for private profit, to confine to its wires, ‘and at its peril, any dangerous current it may create, is all the more just and reasonable in view of the well-known scientific fact that, except as a measure of economy, there is no excuse or necessity whatever for such company creating an electric current of voltage dangerous to human life. It could have no right to create a current which it could not absolutely control.</p> <p>5. The court erred in requiring any proof of negligence in this case; the obligation of the appellee was that of insurer. (Overall v.'L. E. L. Co., 20 R. 759, and cases supra).</p> <p>6. If proof of negligence on the part of the appellee or its agent was ’ necessary to fix its liability, conclusive proof of such negligence was produced at the trial. The evidence is conclusive, (1) that the transformer was broken down, (2) that lightning striking a transformer is capable of breaking down its insulation, (3) that lightning did strike the transformer . in question twice within a few weeks prior to the death of plaintiff’s intestate, (4) that the fact was known to the defendant’s agents, (5) that- with knowledge that the transformer had been struck by lightning they made no examination or test with a view of learning whether the lightning strokes had brought about the condition which they knew it was capable of producing and must, if produced, entail deadly peril on the men employed in the L. & N. R. R. shop.</p> <p>7. The defendant was criminally negligent in failing to give its employees, the trouble crew, the instruction necessary to enable them either to discover the defect in the transformer or even to suspect its presence. It is not conceivable what facts would conclusively establish the negligence of the defendant, if those recited above do not..</p> <p>8. The instructions which required the jury before finding against the defendant to find, not that it had merely failed to exercise the utmost care, but that it had negligently failed to exercise the utmost care made something more than a mere failure to exercise the utmost care necessary. These instructions were confusing and misleading in any view that may be taken of the law as to the obligation of the defendant to control the danger which it creates.</p> <p>9. There was no evidence in the case to warrant the submission to the jury of the issue as to the alleged contributory negligence of the deceased.</p> <p>10. The court erred in refusing to instruct the jury that a mere failure on the part of the deceased to anticipate the negligence or wrongful act or omission of the appellee could not be charged against him as negligence. (Ramsey v. L., C. & L. R. R., 89 Ky. 104; Shearman & Redfield on Neg., Sec. 92).</p> <p>11. The court erred in refusing to instruct the jury that the negligent or accidental act of a third party concurring with appellee’s own wrongful or negligent act in causing the death of plaintiff’s intestate could not relieve it of liability. (Shearman & Redfield on Neg., 5th Ed., Sec. 65; .O’Neal v. Orr, 5 Bush, 651; Owings v. Foster, etc., 1 Bibb, 159).</p> <p>12. The court erred in refusing to allow plaintiff’s counsel to interrogate the jurors, as requested, before exercising his right to strike the names of three jurors from the list of eighteen furnished by the clerk. (Law v. Webster, 19 R. 1208; London, etc., Insurance Co. v. Rufer, 89 Ky. 525).</p> <p>13. The newly discovered evidence in this case entitled plaintiff to a new trial. (Berberich v. Lou. L. B. Co., 20 R. 467; L. & N. R. R. v. Whitley Co., 18 R. 868).</p>

<p>1. Railroads' — Side Track in Stock Yard — Duty to Trespasser or Licensee — Where a railroad company operates a stock yard on which it had a side track over which cars moved for the shipment of stock, a visitor to such yard who had no business there, was either a trespasser or a licensee, and the railroad company owed him no duty to keep a lookout for his safety. It was under no duty to him to see that its agent or servants were not guilty of negligence in the' operation of its trains on such track.</p> <p>2. Same — This court has uniformly held that a railroad company does not owe any duty to a trespasser or licensee, except to save him from peril after it is discovered, if it can he done by the exercise of ordinary care.</p>

<p>CASE 56. — ACTION BY ALONZO MILLER AGAINST MARY J. HART TO ENFORCE A CONTRACT FOR THE SALE OF LAND. — March. 29.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. E-BED, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS DISCUSSED, AND AUTHORITIES.</p> <p>1. The word “term,” as used in section 470, sub-section 6, Kentucky Statutes, is a technical designation, meaning a defiinite period of time, having a precise beginning and end. An estate for life- is not a “term;” and a renting for life at a fixed sum, to he paid annually, is not a renting for a “term.” (See Tieder-man on Real Property, section 173).</p> <p>2. Statute -of frauds. A renting of land during her life by the owner of life estate therein, is not a renting for “a longer term than one year, and is not a contract not to he performed within one year,”- and is not within the Statute of Frauds. (Bullock v. Falmouth, etc., 85 Ky. 104; Frazier v. Clark, 9 Ky. Law Rep. 404; Farris v. Turner, 96 Ky. 634; Dickey v. Dickerson, 105 Ky. 784; Myers v. Korb, 21 Ky. Law Rep. 163; Thomas v. Feese, 21 Ky. Law Rep. 206; Story v. Story, 22 Ky. Law Rep. 1731; Bull v. McCrae, 8 B. M. 422; Daley v. Cain, 11 Ky. Law Rep. 936; Howard v. Burgen, 4 Dana 137; Myles v. Myles, 6 Bush 237; Stowers v. Hollis 83 Ky. 544; Whitley v. Whitley, 26 Ky. Lew Rep. 134).</p> <p>3. Estoppel. (See Connolly v. Brantsler, 3 Bush 702).</p> <p>QUESTIONS INVOLVED.</p> <p>The questions involved are:</p> <p>First. — Is the agreement alleged within the statute of frauds?</p> <p>Second. — Does the evidence prove the agreement was in fact made?</p> <p>Third. — -Is appellant estopped under the facts of this case from asserting claim to her life estate which she owned in the land?</p> <p>AUTHORITIES CITED</p> <p>On statute of frauds. (Ky. Statutes, section 470, sub-section 6; 88 Ky., 572 to 577; Dean v. Cassiday, etc.; Tiedeman on Real Property, sections 172-173; 26 Ky. Law Rep., 134-5-6; Whitley v. Whitley’s Administrator).</p> <p>On question of estoppel. (94 Ky., 147-8, Newman v. Moore; 42 Am. St. Rep., 343-4-5 S. C.; 112 Ky., 657, Floyd & wife v. Mackey.)</p>

<p>1. New Trials — Newly Discovered Evidence — Cumulative—Newly discovered evidence which is merely cumulative is not sufficient to authorize a new trial.</p> <p>2. Instructions — Grounds for New Trial — -Errors not Mentioned Therein — Errors in the instructions given in a criminal case can not he considered on an appeal unless mentioned in the motion and grounds for a new trial.</p> <p>3. Same — Under the Code provisions and various decisions relating thereto, the rule may he deduced that With the exception of errors committed in the admission or rejection of evidence, to which proper ohjection and exception must he made and taken at the time, and appear in the hill of .exceptions, it is necessary to point out in a motion for a new trial all errors committed during the progress of the trial upon which it is intended to rely in this court or they can not be considered on appeal, nor will this court, except 'in the matter of instruqtions, consider errors that appear. for the first time in the motion for a new trial.</p>

<p>CASE 58. — ELECTION CONTEST PROCEEDING BY C. S. WILSON AGAINST RACHEL TYE. — March 29.</p> <p>Appeal from Whitley Circuit Court.</p> <p>M. S. Jarvis, Circuit Judge.</p> <p>Prom the judgment contestant appeals.</p> <p>We are satisfied that this case • must be reversed for the reason that the appellee had not attained the age -of twenty-four years on the first Monday in January, 1906, when by law she was required to qualify for the office in contest, if for no other .reason: but we have prepared it to also test the question of the right of a woman to hold an elective office- in this State, and we trust that the court will settle that question, not for us alone, but for the whole State, because from the inquiries we and our client have had, we know that the interest reaches as far as the information of the nature of the cáse has traveled.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sections 4399, 4401, 4449, 3721, 3756, 4417, 4418, 4453; Kentucky Constitution, sec. 228; -Union- Centeral Life Ins. Co. v. Pollard, 64, Am. State Rep. 720; Wigmore on Evidence, sec. 1497; Edwards v. Logan, 7 S. W. 852; People Ex. Rel. Pur-man v. Clute, 10, Am. Reports, 511; McCreary on Election, sec. 330; Gulick v. New, 77 Am. Dec. 49; Robinson’s Case, 41 Am. Report, 244; Opinion of Justices, 107, Mass. 604; Atchison v. Lucas, 83 Ky. 451; State v. Hostetter, 59 Am. Rep. 515; Harbour-Pit Shoe Co. v. Dixon, 60 S. W. 187; Stevens v. Wyatt, 16 B. Mon.; Com’lth v. Jones, 10 Bush; 'Howard v. Cornett, 1 S. W. 1; Kirkpatrick v. Brownfield, 31 S. W. 137; Durrett v. Stewart, 11 S. W. 773.</p> <p>1. A defeated candidate for a county office in this' State has no right to contest the election of his successful opponent upon the ground of the ineligibility of such opponent. We think we make this statement advisedly and certainly not unmindful of the contrary holding of this court in Grinstead v. Scott, 82 Ky., 88.</p> <p>2. Granting merely for the sake of argument that the appellant had the right to institute -and prosecute this contest, and that the evidence of appellant establishes the fact that appellee was not'twenty-four years of age on the first Monday in January, 1906, still we most assuredly contend that the appellee was not ineligible to hold said office by reason of her age or on account of her sex.</p> <p>AUTHORITIES CITED.</p> <p>Grinstead v. Scott, 82 Ky., 88; Code, sections 480 and 483; Ky. Statutes, sec. 1596a, sub-sec. 12; People v. Mayne, 118 Cal., 517; People v. Mayne, 62 Am. St. Rep., 256; Kreitz v. Behrens-meyer, 125 Ill., 141;- Greenleaf on Evidence, vol. 1, sec. 114d; Union Central Life Insurance Company v. Pollard, 64' Am. St. Rep., 720; Edwards v. Logan, 70 S. W., 852;- Ky. Stats., sections 4402, 4400, 4399; Kirkpatrick v. Brownfield, 31 S. W., 137; Harbour-Pit Shoe Co. v. Dixon, 22 R. 1171; State v. Hostetter, 38 L. R. A., 208; Ky. Stats., sections 3721, 3727, 2445-6 and sections 4637 to 4645; Ky. Stats, sec. 457; McCreary on Elections, sections 327 to 331a; Howes v. Perry, 92 Ky., 260; People v. Clute, 10 Am. Rep., 515; Howard v. Cornett, 8 R., 52; Pratt v. Breckinridge, 23 R., 1357.</p>

<p>1. Insurance — Life Policy — Assignment by Insured — The charter of a life insurance company, in effect the same as.Ky. Stats. 1903, sections 654, 655, providing that a policy for the benefit of insured’s wife and children shall not be made liable for his debts, but on his death the insurance shall be paid to the beneficiaries free of his debts, does not prohibit the insured in a paid-up policy (payable to Ms wife and children, and stipulating that he may, with the consent of the company, assign it or change the beneficiaries) from assigning it, without the consent of the beneficiaries, and he may borrow money from the company and assign it as collateral without such consent.</p> <p>2. Same — Assignment of Policy as Collateral — -Rights on Nonpayment of Debt — Where the insured in a paid-up policy, authorizing Mm to assign it or change the beneficiaries, borrowed money from the company and assigned the policy as collaiteral by an assignment authorizing the company, on the nonpayment of the debt to cancel the policy, the company, on the insured failing to pay the debt, must resort to equity to enforce its rights based on the surrender value of the policy determined in the manner provided by Ky. Stats. 1903, section 653, and on the court finding that such value exceeded the debt, the sum left over should be ordered paid over to the insured or the same should be used for the purchase of paid-up insurance, as the insured might elect.</p>

CASE 60. — ACTION BY JOHN A. C. DAVIS AGAINST THE CHESAPEAKE & OHIO RY. CO.,' FOR DAMAGES FOR PERSONAL INJURIES — March 29. Appeal from Greenup Circuit Court. James P. Harbesoet, Circuit Judge. Held: in the Tanner case, that he was not, and the same doctrine was held Jacobus v. St. Paul R. Co., 20 Minn. 125. But the great weight of authority holds that the agreement is valid. (Boering v. Chesapeake Beach Ry. Co., 193 II. S„ 442; Northern Pac. R. Co. v. Adams, 192 II.

<p>CASE 61. — ACTION BY THOMAS P. COLEMAN AGAINST THE TRUSTEES OP THE “HOME FOR POOR CATHOLIC MEN” UNDER THE WILL OP JOHN D. O’LEARY, AND AGAINST THE EXECUTOR OP J. C. AMISS AND OTHERS. — March 29.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>StbrliNG B. Toney, Judge.</p> <p>From a judgment for costs against the trustees they appeal, and from a judgment in favor of the</p> <p>executor the plaintiff appeals.</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES.</p> <p>AUTHORITIES.</p> <p>Kentucky Cases.</p> <p>Attorney General v. Wallace, 7 Ben. Mon., 621; Thirlwell v. Campbell, 11 Bush, 164-166; Urey’s Adm’r v. Urey’s Exor., 86 Ky., 366; Taylor v. Minor, 90 Ky., 549; Fristoe v. Gillen, decided by Judge Nunn, May 20, 1904; Law Rep. for July 15, 1904, p. 151; 'Abert v. Taylor, 18 Ky. Law Rep., 615; Bailey v. Barkley, 22 Ky. Law Rep. 1246,</p> <p>The foregoing cases show the aversion of this court to depart from the general and sound rule that each litigant, in contested cases, must pay his own counsel fees.</p> <p>CHARITY CASES.</p> <p>The charity cases in this State embrace a period of sixty-nine years, beginning with the case of Gass & Bonta v. Wilhite, decided by Judge Nicholas in 1834, and ending with the case of Thompson’s Exor. v. Brown, decided by Chief Justice Burnam in June, 1903, and reported in 25th Law Reporter, p. 371.</p> <p>In not one of these cases were costs or counsel fees allowed by this court to the unsuccessful heirs. The judgment of the lower court, so far as this appeal goes, is without a single precedent in Kentucky. In none of the Kentucky cases was such a claim even asserted; This is shown by the following cases, and for that purpose I cite them: (Gass & Bonta v. Wilhite, 2 Dana, 170; Moore v. Moore, 4 Dana, 366; Curling v. Curling, 8 Dana, 38; Chambers v. Bap. Edl. Soc., 1 B. Mon., 214; Att’y Gen’l v. Wallace, 7 B. Mon., 620; Cromie case, 3 Bush, 365; Peynado case, 82 Ky., 13; Leeds case, 82 Ky., 79; Kinney case, 86 Ky., 610; Penick case, ,90 Ky., 668; Ford v. Ford, 91 Ky., 672 Givens v. Shouse, 5 Ky. Law Rep., 419; Tichenor v. Brewer, 17 Ky. Law Rep., 936; Bedford v. Bedford, 18 Ky. Law Rep., 193; Crawford v. Thomas, 21 Ky. Law Rep., 1100; Spaulding’s heirs v. Brown, 25 Ky. Law Rep., 371).</p> <p>In the Spaulding case the question could not have arisen as the heirs were successful and took the entire estate. The trustees were allowed their expenses and compensation for their services, which of course included costs and counsel fees, which were fixed by the lower court. This was in perfect accord with universal precedent and authority in England and in all the American states. Faithful trustees, executors and guardians are always allc-wod all their necessary expenses.</p> <p>NEW YORK CASES.</p> <p>There is no s^ch thing in this country as the taxation of “costs as between solicitor and client.” It is not in the power of courts, certainly without express legislative authority,- to order one litigant to pay the costs or counsel fees of his 'adversary litigant. At the common law costs were hot allowed to either party, in. any case. Parliament changed the rule and the subject of costs is now and long has been regulated in England by acts of Parliament, and in this country by the legislatures, state and national. The opnrou of the Court of Appeals of New York by Judge Marvin is of exceptional learning and ability. It is conclusive. (Downing v. Marshall, 10 Tiffany, (37 N. Y.), 380).</p> <p>I cite only the great and leading case; though the case of Rose v. Rose, 28 N. Y., < is also able, though less elaborate. Other cases to the same effect follow; but they need not be cited.</p> <p>THE ENGLISH CASES</p> <p>are not in harmony. It is now said by the elementary writers that there is no longer any fixed or general rule in England as to allowing counsel fees in charity cases and so some of the English cases hold. But the English courts invariably refuse to allow counsel fees or costs to any person who makes an “improper point” in his case. (Tudor’s law of Charitable Trusts, 174; Tyssen on Charitable Bequests, 449; 2nd Perry on Trusts, sec. 748 and cases cited by him; Adams’ Equity, 7 Edition, 391; Williamson v. Barbour, 14th Eq. cases, 99; O’Brien v.'Tyssen, 28th Law. Reports, Chy. Div., 372; Gaffney v. Hevy, 1st Drury & Walsh, 25).</p> <p>Other English cases are cited in the brief, but as the old English practice has been abandoned at home we need not belabor it here.</p> <p>. I rely chiefly upon the Kentucky cases which I have cited, the elementary authorities, common sense and the magnificent opinions of the New York Court of Appeals, more especially upon the great cases of Downing v. Marshall and Rose v. Rose, supra.</p> <p>NO CONTRACT FOR FEE ALLEGED OR PROVED.</p> <p>(Doe v. Perkins, 8 B. Mon.,’198; Schultz v. Morrison, 8 Met-calf, 98).</p> <p>JUDGMENT INEQUITABLE.</p> <p>The judgment as to costs and counsel fees should he reversed, not only upon the authorities cited, hut also on the facts. Th© suit was filed for personal gain and was hostile and injurious to the charity. It was .a selfish appeal to the “litigious jurisdiction of the court.” The claim is inequitable and without merit. Adams Equity and other authorities already cited.</p> <p>AUTHORITIES CITED ON INDEFINITE DEVISES •</p> <p>Grimes v. Hannon, 35 Ind. 198; Fifield v. Van Wyek, 94 Va., 557; Spalding v. St. J., Ind. S., 21 R., 1107; Cromie v. L. O. H. Society, 3 Bush, 374; Moore c. Moore, 4 Dana, 354; Johnson v. Johnson, 92 Tenn., 559; Rhodes v. Rhodes, 88 Tenn., 637; Bridges v. Pleasants, 4 Ired. (N. C.), 26; Gallego v. A. G., 3 Leigh (Va.), 450; Janey v. Latane, 4 Leigh (Va.), 327; Carter v. Wolf, 13 Gratt. (Va.), 301; Tilden v. Green, 130 N. Y., 29; Read v. Williams, 125 N. Y., 560; Beckman v. Bonsor, 23 N. Y., 298; Prichard v. Thompson, 95 N. Y., 380; Kent v. Dunham, 142 Mass., 216; Dublin case, 38 N. H., 459; Kelly v. Niekols, 21 AL R., 840; Yungling v. Miller (Md.), -26 At. R., 491; Dulaney v. Middleton (Md.), 19 At. R„ 146; Hoffman Will (Wis.), 36 N. W„ 407; Moore v. Carpenter, 19 Vt., 613; Dashiel v. Attorney-General, 5 Har. & John., 392; Lepage v. McNamara, 5 Iowa, 124; Garrison v. Little, 75 Ill. App., 75 Hun., 298; 66 N. W. R., 955 Mich.; 147 N. Y., 104; 92 Hun., 96; 27 S. E. R., 446 (W. Va.), and 389; 154 N. Y., 199.; 73 N. W. R., 617 (Iowa); 46 N. Y. S., 1035; McHugh v. McCole, 12 N. W. R.,'631 (Wis.); 72 N. W., 631 (Wis.); 19 N. J. Eq., 453; 5 Cranch, C. C., 632; 53 N. W. R. (Minn.), 648; Brennan v. Winkler (S. C.), 16 S. E. R., 190; Gambell v. Tripp, A. R. L.; 19 N. Y. S., 840; 19 N. S. R., 801; 26 N. E. R., 426; 26 N. E. R., 730; 44 N. W. R, .304; 7 N. Y. S., 861; Bristol v. Same, 53 Conn., 242; 64 Md., 333; 31 Minn., 173; 56 Md., 362; Kain v. Gibboney, 101 U. S.; A. G. v. Soule, 28 Mich., 153; 8 Md., 557; 31 Conn., 407; 24 Conn., 350; 22 Conn., 31, 54 and 55; 30 Conn., 113; 4 C. E. Green (N. J.), 255; 40 Wis., 29; Wheeler v. Smith, .9 How., 55; 3 Fed. Cas., 783; 17 How. (U. S.), 368. Masses: Festorazzi v. St. Jos. Oath. Ch., etc., 104 Ala.-, 327; Holland v. Alcock, 16 N. E., 305 (N. Y.); Swartz Will, N. Y. S., 134; McHugh v. McCole, supra; Morrow v. McConville, L. It., ‘Irish XI., 236; 'Dorrain v. Gilmore, L. R. Sr. XV., 69, and Dillon v. Reilly, I. R., 10 Eq., 152; Blundell’s Will, 30 Beavan, 360; Attorney-General v. Dulaney, Irish, 10 Com. Law, 104. School Devise: Goodell v. Un. Ass., etc., 29 N. J. Eq., 32; Ky. Stat., Morehead & Brown, Stat. vol. 1, 308. As to one representing class: 17 B. M., 499; 4 Bush, 215; 8 B. M., 70, and 1 Bush, 307; Civil Code, sec.-25.</p> <p>ADDITIONAL AUTHORITIES.</p> <p>Bonds, distribution and limitation: Ky. Stats, sections 3843, 3878-9. and 4711; 2514, 2522, 4851.</p> <p>Effect of judgments: 12 Ky. Law Rep., 242, and J. R. 255; Jones v. Comonwealth, 78 Ky., 422.</p> <p>Negligence of executor: H. T. Co. v. Stewart, 108 Ky., 167; Carrico v. Brunnewell, 5 Ky. Law Rep., 775; Red. on Wills, vol. 3, 562; Lowin on Trusts, chap. 4, sec. 6; Edmons v. Morrison, 5 Dan., 224; Clay v. Edwards, 84 Ky., 554; Blackwell v. Townsend, 91 Ky. 609; 90 Ky., 540; 93 Ky., 203; 101 Ky., 60; 107 Ky., 411; Mercer v. Glass, 15 Ky. Law Rep., 710.</p> <p>Charity: Moore v. Moore, 4 Dana.</p> <p>Finding of chancellor: Young v. Derretí, 1 Ky. Law Rep., 339; Davezac v. Seiler, 93 Ky., 418; Dawson v,. Shafer, 15 Ky. Daw Rep., 77; Davidson v. Morrison, 86 Ky., 293.</p> <p>Law of costs in charity cases: Perry on Trusts, sec. 747 and 748; Adams Equity (1890) 391; Redfield on Wills, vol. 2, p. 556; Daniels Chan. Practice, vol. 2, p. 1512; Moggridge v. Shackwell 7 Veasey, 86; Gaffney 3, K. & J. 591; Ingraham v. Ingraham, 196 Ill., 432; W. U. M. Society v. Meade, 131 Ill., 338; McHugh v. McCole, 97 Wis. 163; Powers v. Judionine 61 Vt. 587; Webster v. Moris, 66 Wis., 366; Drew v. Wakefield 54 Me. 291; Abbott v. Bradstreet, 3 Allen 587; Perrin v, Applegate, 1 McCarter, 531; Collins v. Townley, 21 N. J. E., 353.</p> <p>Costs in ordinary cases: Phillips v. Phillips, 81 Ky., 334; Gilbert v. Bartlett, 9 Bush,. 55.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellant’s petition should show whether he is suing on the implied contract of Amiss as trustee of undevised estate or on the excutor’s bond. If he is suing on the bond, its terms have been complied with. (Barber v. Robertson’s Heirs, 1 Littell, 93; Story’s Eq. Jurisprudence, sec. 1208; Williams on Executors, 1263 to 1266; Am. and Eng. Ency. Law, vol. lli pages 987, 988, 984-5-6;' Schouler on Executors (3d Ed.), sec. 250, p. 342.</p> <p>2. Duties and liabilities of an executor. (Am. and Eng. Ency. Law,- vol. 11, p. 904, 971; Schouler on Executors, (3d Ed.), see. 382, 384, 476; Williams on Executors (4th Am. Ed.), p. 1528-9, 1530; Ky. Stats., 3848; Parker v. Cowell, 16 New Ham., 149; Woods, Adm’r v. Nelson, 9-B. Monr. 605; Jones Adm’r v. Jones, 14 B. Monr., 464; Crow’s Adm’r v. Crow, 14 B. Monr., 476; Fergu son’s Assignee v. Yard, 164, Penn. Stat., 586; LeBaron v. Fauntelroy, 2 Fla., 276; Macey’s Executor v. Fenwich, 4 B. Monr. 309).</p> <p>3. A denial of an order or judgment, etc., must he specific. (Small v. Reevs, 76 Sou. West. Rep., 395).</p> <p>4. Order of court protects executor. (Schouler on Ex’ors (3rd ed.), sec. 233, 519; Am. & Eng. Ency. Law, vol. 11, p. 1174; Fraser’s Ex’or v. Page, 82, Ky., 73; Yandergrift’s Adm’r. v. Cone, 18 Ky. Law Rep., 454; Stewart’s Appeal, 86. Pa., 149; Charleston’s Appeal, 88 Pa., 476; Story v. Story, 22 Ky. Law Rep., 1731, 1869; Ferguson v. Yard, 164 Pa. Stat., 586; Poag v. Carroll, Dudley’s L. & Eq. Rep. (S. Car.), 1; Bridges v. McAlister, 21 Ky. Law Rep. 428; Howard v. Maysville R. Co., 24 Ky. Law Rep., 1051).</p> <p>5. This action barred by limitations. (Ky. Stat., sec. 2515; Robinson v. Elam, 90 Ky. 300; Stubbins v. Briggs, 24 Ky. Law Rep., 230; Blake v. Wolff, 105 Ky., 380). .</p> <p>6. This action bared by laches. (tSory’s Eq.. Juris., sec. 1520, and note 1520, a; Am. & Eng. Ency. Law, vol. 11 p. 1319; Richardson v. Chanslor, 103 Ky., 443; Blake v. Wolf, 105 Ky., 380; Stubbins v. Briggs,'24 Ky. Law Rep., 230).</p>

<p>1. Action for Personal Injury — Piling Lumber Near a Street— Damage to One on Sidewalk — Proxmiate Cause of Injury— Where a boy nine years of age was injured by the falling of a pile of lumber on him, which was piled near the sidewalk on which he was at the time, and was knocked down by a passing wagon. Held: If the conduct of the owner of the lumber in piling it at the place in the manner it was piled and in permitting it to remain in that positon was not the proximate cause of the injury to apellant he can not recover. If the injury is traceable to the negligent and careless manner in which the lumber was piled, although the immediate cause of the accident was running the wagon against the lumber the appellant may recover.</p> <p>2. First Wrongdoer — Liability—It is immaterial how many others have been in fault if the act of .the first wrongdoer was the efficient cause of the injury such wrongdoer is liable for the injury.</p> <p>3. Remote — Negligence—Ordinary Prudence — The rule is well settled that to fix the liability upon a person for remote negligence the injury complained of must be one that under all the circumstances might have been reasonably forseen or anticipated by a person of ordinary prudence to be the natural and probable consequences of the first negligent or wrongful act.</p> <p>4. Peremptory Instructions — Submission to Jury — Where there is evidence tending to establish a matter in issue, the court should not grant a peremptory instruction, but the case should be submitted to the jury under proper instructions.</p>

<p>1. Sales — Elements—Payment—Acceptance and Use — Where, on receiving a payment, a company delivered a drilling machine for a ten day test, after which, if if fulfilled certain guaranties, the person receiving it agreed to accept it at a certain price, for which he was to give notes and a chattel mortgage, and he continued to use it after the ten days expired, though without giving the notes and mortgage, the transaction constituted a sale, and not a mere option, even if the payment made were denominated rent by the parties.</p> <p>2. Same — Lien for Price — Under ia contract, for sale of a drilling machine, whereby the buyer agreed to give notes and a chattel mortgage for the unpaid portion of the price, which he failed to do, the seller had a lien for the unpaid portion.</p> <p>3. Same- — Priorities—Attachment—The lien retained by a seller of a machine for its price, though unrecorded, has priority over the lien of an attachment by general creditors.</p> <p>4. Dismissal — Grounds—Error in Form of Action — That an action was brought in ordinary, when it should have been in equity, was not ground for dismissal, where the petition showed plaintiff’s right to relief, but it should be transferred to the equity docket.</p>

<p>Life Insurance — Right to Assign Policy — Right to Change Beneficiary — Surrendering Policy — Where a life insurance policy provides that “it is issued and acepted upon the express condition that the insured may with the consent of the company, at any time assign it, or before assignment change the beneficiaries therein or make any other change,” one who takes such a policy in which his wife is named as the beneficiary, may without her knowledge or consent borrow money from the company and assign the policy as collateral and upon failure to pay the money when due may surrender the policy in payment of the debt by the company accounting to him for its cash surrender value at the time.</p>

<p>CASE 65. — ACTION BY THE AYER & LORD TIE CO. AGAINST C. P. KEOWN, SHERIFF, TO ENJOIN THE COLLECTION OF TAXES ON RAILROAD TIES OWNED BY A NON-RESIDENT. — April 13.</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Biekhead, Circuit Judge.</p> <p>From a judgment dismissing the petition plaintiff appeals.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The ties sought to .be taxed were not taxable for the reason that same were subject to the rules and regulations of interstate commerce law, controlling the taxation and regulation of articles of commerce. (Sub-sec. 3, sec. 8, art. 1, Constitution of U. S.; Com. v. Hogan, McMorrow & Tieke Co., vol. 25, part 1, Ky. Law Rep., 41; Robbins v-. Shelby Co. tiaxing district, 120 U. S., 488; O’Neal v. Vermont, 140 U. S., 323; Adyson Pipe Co. v. U. S., 157 U. S., 217).</p> <p>2. Whenever a commodity has begun to move as an article of trade, commerce in the commodity has commenced. The same rule applies when property has been placed with carrier for immediate shipment. (The Daniel Ball,' 10 Wall (U.. S.), 557-665; LeLóup v. Port of Mobile, 127 U. S., 640; Coe v. Erroll, 116 TJ. S., 517). -’(Important).</p> <p>This case involves the same questions and is on all fours with the cases of the Ayer & Lord Tie Co. v. Keown, sheriff, decided by this court October 17th, 1905. Opinion by Chief Justice Hobson, reported in 89 S. W., page 116.</p> <p>The complaint being in this case that the cross-ties were not subject to taxation in Kentucky, on acocunt of being personal property of a foreign corporation. This question was .also decided adversely to the appellant’s contention in the case of Johnson v. Bradley-Watkins Tie Co., reported in 85 S. W., 726, 27 Ky. Law Rep., 541. Wherein it was held that such property under section 4020, Ky. Stat. 1903, was taxable here.</p> <p>In view of these very recent decisions of this court we deem it unnecessary to burden the court with further citations or argument and respectfully ask that the judgment of the lower court be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Stat., sec., 4020; Ayer & Lord Tie Co. v. Keown, sheriff, etc., 89 S. W., 116; Johnson v. Bradley-Watkins Tie Co., 85 S. W., 726.</p>

<p>1. Divorce — Affliction of a Loathsome Disease — Condonement—The affliction of a husband of a loathsdme disease, which is a continuing offense, that may last for years and may grow more malignant with age, is not that tclass of matrimonial derelictions that may be condoned by the innocent party so as to estop her from asserting her legal rights when it becomes necessary to apply to the chancellor for redress or protection.</p> <p>2. Cruel and Inhuman Treatment — Settled Aversion — Under the statute it is that species of cruel and inhuman treatment that indicates a settled aversion to the wife as permanently destroys her peace or happiness, and this character of cruelty may habitually manifest itself in various ways that fall short of assault or bodily injury and not attended with apprehension of violence or danger, and in the nature of the case, each complaint under this statute must be determined by the facts as they are presented.</p> <p>3. Alimony to Wife and Child — Attorney’s Fees — On the question of alimony to the wife in granting her a divorce, where she has no estate, where it appears that the husband owns real estate worth $13,000, $3,000 for herself, $500 for her infant child and $500 attorneys’ fees, was a fair allowance.</p> <p>Our contention is:</p> <p>1. The offense of having at the time of marriage or contracting after marriage a loathsome disease, cannot as a matter of law be condoned.</p> <p>2. Appellant as a matter of fact never condoned this offense if condonation were possible.</p> <p>3. Appellant was entitled under the proof to a divorce on the ground of cruel and inhuman treatment.</p> <p>4. The custody of her child should he given to appellant and a proper allowance made to her out of appellees estate for the support of herself and child.</p> <p>AUTHORITIES CITED.</p> <p>Ryder v. Ryder, 44 Am. State Reports, 833; Bishop on Marriage, Divorce, vol. 2, sec. 1026; Gooding v. Gooding, 20 Ky. Law Rep., 957; Thornberry v. Thornherry, 4 Litt. 452; Beall v. Beall, 80 Ky., 676; McAlister v. McAlister, 15 Ky. Daw Rep., 750; Holt v. Holt, 6 Ky. Law Rep., 661; Trapp v. Trapp, 20 Ky. Law Rep., 336</p>

<p>CASE 67. — ACTION BY KATE E. KAYE AGAINST THE CITY 1 OE LOUISVILLE FOR. INJURY TO HER PROPERTY BY CHANGING THE GRADE IN TPIE STREET.— April 17.</p> <p>Appeal from. Jefferson Circuit Court: (Common .Pleas Branch, Second Division.)</p> <p>Thos. E. GokdoN, Judge.</p> <p>Judgment for plaintiff. Defendant ■ appeals.</p> <p>We submit thiat instructions 1, 2, 3 and 4, given by the court to the jury are correct, but contend that'instruction No. 5 given by the trial court is a clear departure from the instructions which have been approved by the Coiirt of Appeals of this State, and also from the fixed and settled rule by which a jury is enabled to ascertain whether or not property has been damaged by the construction of a street. ></p> <p>AUTHORITIES CITED.</p> <p>Jeffersonville, M. & I. R. R. Co. v. Esterle, 13 Bush, 607; Chase, etc. v. City of Portland, 86 Me., 367; Allen v. Charleston, 109 Mass., 243; Hilbourne v. Suffold, 120 Mass., 293; Donovan v. Springfield, 125 Mass., 271; Abbott v. Cottage City, 143 Mass, 521; Kirkendale v. City of Omaha, 30 Neb., 1; Barr • v. City Omaha, 42 Neb., 341; Church v. City of Milwaukee, 31 Wis., 523; Sutherland on Damages, vol. 4, page 193; Henderson & N. R. R. Co. v. Dickerson, 17 B. Mon. ISO; City of Louisville v. Hégan, 20 Ky. Law Rep., 1532; City of Covington v. Taffee, 24 Ky. Law Rep., 373; City of Henderson v. Winstead, 109 Ky., 328.</p> <p>PROPOSITIONS 'AND AUTHORITIES.</p> <p>1. In an action against a municipality for damages arising from a change of grade of a street the measure of damages is the diminution of the value of the property from what it was just before the- grading was completed down to the completion of the grading; and as against this the' city is not allowed to setoff benefits arising to the property by reason of > the construction of the street which are common or general benefits to the lot owners abutting on the street in that vicinity.</p> <p>2. Even if the law permitted such a setoff or counterclaim the same _ must be duly pleaded in the answer; and in the absence of such plea the ciy is not entitled to any instruction giving it the advantage of such setoff or counterclaim.</p> <p>AUTHORITIES CITED.</p> <p>Haines v. City of Duluth, 47 Minn., 460; Omaha Belt Ry. Co. v. McDermott, 25 Neb., 718; Sutherland on Damages, vol. 4, 193; Rudderrow, Trustee, v. City of Phila., 166, Pa. St., 247; Cole v. City of St. Louis, 132 Mo., 640; Hickman v. Kansas City, 120 Mo., 110; Spencer v. R. R. Co., 120 Mo., 154; Spencer, et al v. Met. St. R. Co., 23 S. W., 126 and cases cited; Chi. & S. P. R. Co. v. McGrew, 104 Mo., 290, and cases cited; Hickman v. City, etc., 120 Mo.,' 122; Heach v. Potts R. Co., 4 Cush. Mass., 29; Cowen v. Johns, etc (N. C.) 398; Palmer v. Ferrill, 17 Pick. Mass., 63; Smith’s Modern Law of Corporations, 1211 and 1212; City of Harvard v. Crouch, 47 Neb., 136.</p> <p>KENTUCKY AUTHORITIES.</p> <p>City of Henderson v. McGee, 22 L. R., 650; City of Covington v. Taffee, 24 Ky. Law Rep., 373; City of Henderson v. Winstead, 22 L. R. 828-830; City of Louisville v. Hegan, 20 L. R., 1522; City of Henderson v. McLain, 19 L. R., 1450; J. M. & I. R. Co. v. Ksterle, 13 Bush. ■ 676-7; Civil Code of Practice, sections 90-97 and 114; City of Covington v. Ulrich, 14 Ky. Law Rep., 302.</p>

<p>CASH 68. — ACTION BY WILLIAM SHUGARS, POLICE JUDGE, AGAINST H. C. HAMILTON TO TEST THE VALIDITY OP A CITY ORDINANCE IMPOSING A LICENSE TAX ON THE OCCUPATION OP MERCHANT TAILORING. — April 17.</p> <p>Appeal from Garrard Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for. defendant. Plaintiff appeals.</p> <p>AUTHORITIES CITED.</p> <p>Charter 5th Class Cities, sections 3639, 3616, 3633, 3634, 3636, 3637, subsections 3 and 4, 3646, and 3648; Ky Statutes, chapter 108, article 10, sections 4190, etc., 4195; Ky. Statutes, section 4019; Constitution, sections 180-181 and note (2); City of Hawesville v. Board of Education of Hawesville, 18 Ky. Law Rep., 208; Mayor and Counoilmen of City of Eminence v. Wilson, 20 Ky. Law Rep.. 29; Trustees of Common School District No. 8, v. City of Vance-burg, 20 Ky. Law Rep., 369; Burch v. City of Owensboro, 18 Ky. Law Rep., 284; City of Somerset v. Smith, 20 Ky. Law Rep., 1489; Bybee v. Smith, 22 Ky. Law Rep., 1684; Wilson & Bro. v. City of Lexington, 105 Ky., 765; Elliott v. City of Louisville, 101 Ky., 262; Hall v. Comonwealth, 101 Ky., 382; Fidelity & Casuality Company v. City of Louisville, etc., 106 Ky., 207; City of Carlisle v. Heckinger & Co., 103 Ky., 381.</p> <p>AUTHORITIES CITED.</p> <p>Bybee v. Smith, 22 Ky. Law Rep., 1684; City Somerset v. Smith, 20 Ky. Law Rep., 1488; Ky. Constitution, sec. 180;. City of Somerset v. Somerset Banking Co., 22 ETv. Law Rep., 1129; Burch v. City of Owensboro, 18 Ky. Law Rep.r 284; Ky Stats., sec. 8636, 3633.</p>

<p>CASE 69. — ACTION BY CHARLES E. FULLER AND HIS WIFE WINIFRED FULLER AGAINST THE LOUISVILLE GAS CO. FOR DAMAGES FOR PERSONAL INJURIES SUSTAINED BY MRS. FULLER. — April 17.</p> <p>Appeal from Jefferson Circuit- Court. (Common Pleas Branch, First Division.)</p> <p>Emmet Field, Judge.</p> <p>Judgment for plaintiffs. Defendant appeals</p> <p>A reversal of the judgment is asked on the following grounds:</p> <p>1. The court .below should have instructed the jury peremptorily to find for .appellant.</p> <p>2. The verdict of the jury is contrary to the evidence.</p> <p>3. The evidence is not sufficient to support an instruction allowing the jury to find damages for permanent injury; there was no evidence of permanent injury.</p> <p>4. The court erroneously instructed the jury as to the measure of damages.</p> <p>5. The verdict is excessive and for this reason should be set aside.</p> <p>AUTHORITIES CITED.</p> <p>Louisville Southern R. R. Co. v. Minogue, 90 Ky., 376; H. B. Phillips Co. v. Pruitt, 26th Ky. Law Rep., 831; Parker v. Jenkins, 3 Bush, 391; Cincinnati & Lexington R. R. Co. v. Case’s Admr., 9 Bush, 736; C. & O. R. R. Co. v. Jordon, 76 Southwestern, 146; L. & N. R. R. Co. v. Fox, 11 Bush, 495; Kentucky Central Railway Co. v. McMurtry, 3 Ky. Law Rep., 626; Kentucky Central Railway Co. v. Gastineau’s Admr., 83 Ky., 119; L. & N. R. R. Co. v. Ward’s Admr., 19 Ky. Law Rep., 1900; City of Columbus v. btrassner, 25 Northwestern, 65; Gutenkunst v. Louisville Gas Co., 82 Ky., 432; L. •& N. R. R. Co. v. Mitchell, 87 Ky., .327; South Covington & Cincinnati Railway Co., v. Ware, 84 Ky., 274; L. & N. R. R. Co. v. Foley, 15 Ky. Law Rep., 17; L. & N. R. R. Co. v. Laws, 14 Ky. Law Rep., 450; Upton v. Louisville Water Co., 18 Ky. Law Rep., 326; Louisville Railway Co. v. O’Meara, 25 Ky. Law Rep., 819; N. N. & M. V. Co. v. Walker, 14 Ky. Law Rep., 175. As to measure of damages, see L. & N. R. R. Co. v.. Hall, 115 Ky., page 579; Joyce on Damages, vol. 1, sec. 93; Lacke v. International & Great Northern Railway Co., 60 Southwestern, 316. j,</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The instructions given by the court fully, accurately and with clearness presented the whole case to the jury. (Guten-kuntz v. Louisville Gas Co., 82 Ky., 432; L. & N.' R. R. Co. v. Mitchell, 87 Ky., 338; Southerland on Damages, 3d Ed., vol. 4, sec. 1243; American Straw Board Co. v. Foust, 39 N. E. Rejt, 894; Gray v. Washington Water Power Co., 91 Pac. Rep., 209; Beath v. Rapid Ry. Co., 78 N. W. Rep., 539.)</p> <p>2. Even though it be conceded that instruction No. 4, complained of, is erroneous the record demonstrated that no instruction presenting the view of appellant as to the question of the measure of damages was asked it, appellant cannot now complain of the said instruction, nor can there he reversal on account thereof. (Louisville Ry. Co. and Louisville Carriage Co. v. Blum and Goodman, decided October 20', 1905; City of Henderson v. McGhee, 22 Ky. Law Rep., 650; Shanks v. Stewart, 16 Ky. Law Rep., 159; C. & O. Ry. Co. v. Moats, 20 Ky. Law Rep., 1758.)</p> <p>3. Upon no reasonable basis can the verdict in this case be said to be at first blush so excessive as to indicate that it was given under the influence of passion or prejudice. There have been a great many cases in Kentucky where verdicts as large for injuries no more severe were upheld and adjudged not to be excessive. (M. & L. R. R. Co. v. Herri'ck, 13 Bush, 127; City of Covington v. Driehl, 22 Ky. Law Rep., 955; City of Louisville v. Kehr, 25 Ky. Law Rep., 2003; City of Louisville v. Bailey, 25 Ky. Law Rep., 6; L. & N. R. R. Co. v. Moore, 83 Ky., 675 ; L. H. & St. L. Ry. Co. v. Lyon, 22 Ky. Law Rep., 54; C. & O. R. R. Co. v. Davis, 22 Ky. Law Rep., 748; I.- C. R. R. Co. v. Bayse, 17 Ky. Law Rep., 105; L. & N. R. R. Co. v. McEwan, 17 Ky. Law Rep., 406; B. & O. Ry. Co. v. Housman, 21 Ky. Law Rep., 1264; Louisville Ry. Co. v. Degore, 27 Ky. Law Rep., 56.) .</p> <p>4. If a collection of cases wherein large verdicts have been upheld would be of assistance to the court we would suggest that in note to section 1256, vol. 4, 3d Ed., of Sutherland on Damages, a very large collection of cases will be found. Also in a note to the case' of Standard Oil Company v, Tierney, in 14 L. R. A,, 677,</p>

<p>CASE 70. — PETITION BY T. H. AULL TO BE MADE A PARTY TO AN ACTION TO WHICH OBJECTION WAS MADE BY THE BOWLING GREEN OPERA-HOUSE CO. — April 17.</p> <p>Appeal from Warren Circuit Court.</p> <p>JohN M. Galloway, Circuit Judge.</p> <p>Motion to file petition denied from which petitioner appeals.</p> <p>(Record not in clerk’s office.)</p>

<p>1. Homicide — Evidence—Sufficiency—Evidence on a trial for homicide examined, and held to support a conviction of voluntary manslaughter.</p> <p>2. Same — Harmless Error — Instructions—Where, on a trial for homicide, the jury found accused guilty of voluntary manslaughter, ias authorized by an instruction correctly defining voluntary manslaughter, any error in an instruction as to murder was not prejudicial.</p> <p>3. Same — Voluntary Manslaughter — Instructions—Where, on a trial for homicide, the killing was admitted, and accused claimed that it was accidental, and the court charged that if accused intentionally, or in a wanton and reckless manner, without previous malice, discharged his pistol, and thereby killed decedent, a verdict of voluntary manslaughter should be found, the giving of an instruction that, if the accidental shooting was the result alone of the recklessly careless use of a loaded pistol by accused, a verdict of manslaughter should be found, and his punishment fixed as set in the previous instruction, was not open to the objections that it emphasized the effect of accused’s carelessness in handling the pistol, and that it was contradictory to the previous instruction, in that it omitted the word “voluntary” before the word “manslaughter.”</p> <p>4. Criminal Law — Appeal—Review—Under Cr. Code, section 281, providing that the decisions of the court on motions for a new trial shall not be subject to exception, the Court of Appeals cannot reverse a conviction on a trial for homicide, ■ because the trial court refused a new trial on the ground that the jury were permitted to separate during the trial and were guilty of misconduct in viewing the premises where the homicide occurred, without the permission of the court and in the absence of accused and his counsel.</p>

<p>1. Evidence — Declarations of Agent- — -Effect—Declarations by an employee running the works of a waterworks company, made while he was near the reservoir of the company and out on •‘its grounds, to the effect that he had not w-ater in the reservoir, are inadmissible as against the company.</p> <p>2. Same — Self-ServingcDeclarations—In on action against a waterworks company for loss from fire on the ground of failure to furnish water, evidence that the employee in charge of the works stated to the manager of the company at the time the alarm of fire was given that he had a pressure of fifty pounds, was inadmissible.</p> <p>3. Water-Works Companies — Fire—Failure to Supply Sufficient water — Evidence—In an action against a waterworks company for loss from fire, based on its failure to furnish a supply of water, as required by its, contract with the city, evidence showing that the emplayee running the works was ordered not to apply the direct pressure at the power house unless ’ he received order from, the manager in the city, who would give the order when the magnitude of the fire required it, and that on the occasion in question the direct pressure was applied when ordered, was admissible.</p> <p>4. Same — In lan action against a waterworks company for loss from fire for failure to supply water, as required by its contract with the city, evidence showing what pressure it usually maintained was admissible.</p> <p>6. Same — The company was entitled to prove what pressure would be required to throw water from three separate hydrants, at one time, fifty feet high, through 100 feet of hose and a one-inch nozzle, on the level of a street in the city, as required by its contract with a city.,</p> <p>6. Same — The company was entitled to prove by persons using faucets and hose just before the.fire that they had the usual pressure, and this proof should not be confined to the main with which plaintiff was connected; it being shown that there were not cut-offs between the mains.</p> <p>7. Same. — Liability—A waterworks company was required by the ordinance of a city to maintain such a pressure of water on its mains as would throw water from three separate hydrants at one time, fifty feet high, through 100 feet of hose and a one-inch nozzle, on the level of a street. The company was sued for loss from fire on the ground that it occurred by reason of the failure to have a supply of water as required by the ordinance. Held, thiat the court should charge that if the company failed to maintain such a pressure of water as was required by the ordinance, and plaintiff’s property was burned by reason thereof, when it would not otherwise have been destroyed, a verdict for plaintiff should be rendered. ■</p>

<p>CASE 73. — ACTION BY THE VIRGINIA IRON, COAL & COKE CO. AGAINST JAMES EVERSOLE, ETC., TO DETERMINE HIS RIGHT TO CERTAIN LAND AND THE MINERAL RIGHTS THEREIN. — April 19.</p> <p>Appeal from Perry Circuit Court.</p> <p>ML J. Moss, Circuit Judge.</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>1. Whether or not the trial court erred in overruling the appellant’s motion to require plaintiff (appellee) to elect which cause of action it would prosecute, the one to cancel deed from James Eversole and wife to M. C. Eversole, of date the 6th day of July 1903; the one to compel James Eversole to convey said mineral and mineral rights to appellee, or the one to quiet its alleged title thereto.</p> <p>2. Whether or not appellant’s general and special demurrer to plaintiff’s petition was properly overruled by the trial court.</p> <p>3. Whether or not the deed to James Eversole of date November 26th, 1890, from William Stacy and wife, Thomas Milam and wife, and Absalom Eversole and wife was made for the good and valuable consideration paid to said grantors by James Eversole, and whether or not James Eversole had actual or constructivé notice of the alleged deed from Tom Milam to T. P. Trigg, of date July 21st 1887, at ór before the time appellant James Eversole bought, paid for and accepted the aforesaid deed to him for said land in fee.</p> <p>4. Whether or not the mineral was excepted in the trade at the time James Eversole purchased and took deed to said land on November 26th 1890.</p> <p>5. Was James Eversole an innocent purchaser of the land including the mineral rights in question and took a good title thereto.</p> <p>6. If James Eversole took a valid title to said land and mineral in fee, is the deed he executed to the other appellant good, and does it pass title?</p> <p>7. Can an innocent purchaser for value without notice who took a good title, by deed, convey a good and sufficient title to a third party, who had actual notice of other claims, that were invalid againts his grantor?</p> <p>8. Is a purchaser required to look beyond the bréak in a grantor’s chain of title, and is a deed out of the regular chain notice to a purchaser for value, although said deed be recorded?</p> <p>9. Is plaintiff’s action barred by the statute of limitations?</p> <p>10. Has plaintiff shown by its pleading and by a preponderance of the evidence that it has a right to a recovery in this action?</p> <p>AUTHORITIES CITED.</p> <p>South v. White, etc., 41 S. W., 436; Campbell v. Campbell, 23 Ky. Law Rep., 869; Kentucky Statutes, sec. 11; Gately v. Weldon, 14 S. W., 680; Webb v. Adams, etc., 22 Ky. Lew Rep., 683; South, etc. v. Gatliff, etc., 5 S. W., 558; Smith v. Louis, 21 Ky. Law Rep., 1400; Cornelieson v. Foushee, etc., 40 S.. W., 580; Kentucky Statutes, 496; Elliott v. Harris, etc., 5 Ky. Law Rep., 499; Saterfield v. Malone, vol. 1, L. R. A., 35; McLanaban v. Reedside, 9 Watts, 510; Maul v. Rider, 59 Pa., 167; Hethrngton v. Clark, 30 Pa., 393; Leiby v. Wolf, 10 Ohio, S3; Peterson v. McCauley, 25 S. W., 826; Kentucky Statutes, sec., 2515; Kentucky Statutes, séc., 2519; Dorsey etc., v. Phillips, 8 Ky. Law Rep., 405; Fritchler v. Koehler, 7 Ky. Law Rep., 34; Klinger v. Lemler, 135 Ind. 77; Van Syckel v. Bean, 19 S. W., 496; 2 Pom Eq., Jur., sec., 754; Varick v. Briggs, 6 Paige, 323; Hickman v. Hoffman, 38 S. W., 257.</p> <p>1. It will be noted that James Eversole does not plead that he is an innocent purchaser, for value, without notice, nor does he prove that he was.</p> <p>2. Had he pleaded this the burden would have been upon him to show that he was an innocent purchaser for value, without notice.</p> <p>3. “Where one pleads he is a purchaser for value without notice, the onus probandi, as to notice, lies on the complainant.” (3 Litt., page 371.)</p> <p>4. And constructive notice is sufficient to those upon whom the burden is thus imposed, as they are required to take notice. (15 Ky. Law Rep., 139.)</p> <p>5. We do not think James Eversole can now rely upon the plea of innocent purchaser. “Bona fide purchaser without notice must be relied upon by plea.” (Hord v. Marshal, 5 Dana, 496; Pomeroy’s Code Remedies, p. 679; Young v. Shefield, 34 S. W., 497.)</p> <p>6. The plaintiff did not plead that defendant, James Eversole, had notice, for it was a matter of which he defendant, was better able to know than plaintiff; it was therefore incumbent upon defendant to specifically aver that he was a “bona fide purchaser for value, without notice.” A. & E. Ency. of P. & P., vol. 14, pages 1070-3.</p> <p>7. “Failure to. aver notice when necessary, is fatal and grounds for reversal.” A. & E. Ency of P. & P., vol. 14, p. 1069.)</p> <p>8. “To entitle a defendant to protection as a bona fide purchaser without notice, he must deny such notice fully and particularly, even though such notice is not distinctly charged in the bill.” (A. & E. Ency. of P. & P„ vol. 14, p. 1073.)</p>

<p>1. Railroads — Action for Personal Injury — Negligence of Brakeman — Scope of His Authority — Question for Jury — In an Action for personal injuries by one who was injured while on .a street ' by ta brakeman of a railroad train kicking a piece of ice out of the caboose as the train passed the street, where there was some evidence from which the jury might have reasonably inferred that the brakeman was at the time • acting within the scope of his authority, the case should have gone to the jury.</p> <p>2. Contributory Negligence — Standing in Street — Passing Train— Anticipating Danger — It is not negligence in an infant in merely standing in the street at a point where there was no danger of being struck by a passing train, and he is. not required to anticipate that persons connected with the train would throw large lumps of ice from it as it passed along, and in such case there is no evidence of contributory negligence on his part.</p> <p>3. Appeals — Motion to Dismiss — While it is true that an appeal will not lie from a mere judgment for costs, where appellant’s action for damages wias dismissed and his motion for a new trial overruled denying him any relief, the motion to dismiss his appeal is without merit.</p>

CASE 75. — PROSECUTION AGAINST HENRY MERRITT FOR VIOLATING LOCAL OPTION LAW — April 24. Appeal from Clark Circuit Court. Jambs M.' Benton, Circuit Judge. Defendant convicted and appeals. (No brief in the record.) POINTS AND AUTHORITIES. 1.

<p>Negligence — Dangerous Machinery — Liability of Manufacurer— A manufacturer, selling to an employer a machine not imminently dangerous to human life, is not liable for injuries to an employe operating the machine because of defects therein, where it is - merely charged that the manufacturer knew, or could -have known by the exercise of ordinary care, of the defects which rendered it dangerous.</p>

<p>CASE 77. — ACTION BY THE ADMINISTRATOR OP J. W. HILL, DECEASED, TO SETTLE HIS ESTATE INVOLVING THE QUESTION OP ADVANCEMENTS TO HIS CHILDREN. — April 25.</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. JoNes, Circuit Judge.</p> <p>Prom the decree of distribution, J. W. Hill’s guardian and Rebecca T. Gailbreath prosecute separate appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The account of monies alleged to have been expended for .the education of the son, B. Frank Hill and which is charged against the. interest of the infant Wallace Hill as an advancement to his father is a mere statement of the son’s indebtedness to the father, and it is a well settled principle that a debt from the child to the parent cannot be converted into an advancement.</p> <p>2. Since the enactment of the present statute' upon advancements, the purpose or intention of the parent in making the gift, has nothing to do with determining if it was an advancement; but it is the legislative will that is consulted and not the intention of the intestate. (Bowles v. Winchester, etc., 13 Bush, 12; sec. 1407, Ky. Stats.; Gaston’s Adm’r v. Robards (Superior Ct. filed Jan., 1888); Owsley v. Owsley, 25 L. R., 1199.)</p> <p>3. Money or property given to a child or grandchild by the parent, should not be charged to him, unless it is given with a view to a portion or settlement in life. Neither can money or property given by the parent to a child or grandchild for the purpose of maintenance or education be charged as an advance- ' ment. (Sec. 1407, Ky. Stats.; Clark v. Clark, 17 Ben. Mon., 706; Brannock, etc. v. Plamilton, etc., 9th Bush, 448; Bailey’s Adm’r v. Barclay, 22 L. R., 1246; Bowles v. Winchester, 13th Bush, 11.)</p> <p>4. The character or kind of education, whether it is ordinary, academic, highly scholastic or professional does not affect the question as to whether the sums expended by the parent for the child, are in law chargeable as an advancement. (White v. Moore, 23 S. Oar, 456; Coner v. May 3rd Strobh. Eq. Rep’r, vol. 3, 188; S. Car. Statute; Edwards v. Freeman, 2 P. Wms., 435; 2 Eng. Rule Cases, 261;' Taylor v. Taylor, L. R. Eq., 155; 44 L. J. Ch., 718.)</p> <p>5. The declarations of the intestate as to the sums paid his son B. F. Hill for his medical education made subsequent to the gift by the donor were incompetent. (Baileys Adm’r v. Barclay, 22nd L. R., 1246.J</p> <p>6. Even if the intestate made entries in his account hooks at the time for the amount paid for the education of his sons, this does not affect the question of advancement. This is true even in jurisdictions where the intention of the testator is permitted to control. (Miller’s Appeal, 40 Pa. Stat., 57; 80 Amer. Dec., 555; Am. & Eng. ency. of Law, vol. 1, 780.)</p> <p>1. Advancements. Since our present statute, the Common Law of Hotchpot has been abrogated; and whether ia gift to a child by an intestate is an advancement or not, must be determined by its provisions, as construed by this court. It applies in all cases of total or partial intestacy; its object being equality between heirs at law or distributees. What is not an advancement under the statute, cannot he made such by the declaration of the intestate, verbal or written; and what is an advancement under the statute must be charged to the one receiving it, notwithstanding any declarations of the intestate to the contrary.</p> <p>2. Section 1407, Ky. Stats., provides substantially, that real or personal property or money given or devised by a parent or grandparent to a descendent, shall be charged to the descendent, or those claiming through him, in the division or distribution of the undevised estate, etc. The only exception being “the maintaining or educating, or the giving of money to a child or grandchild without any view to a portion or settlement in life, shall not be deemed an advancement.”</p> <p>3. The court will observe, that for a party to fall within the exception, the gift must not only be maintenance, education or money, but it must also be without any view to aportion or settlement in life. The burden is upon the party disclaiming the advancement to show that such gift was made without such view; and the object of the law being equality, the party seeking the advantage of the exception, must show his gift is embraced by the exception.</p> <p>4. It is the policy of the law, which delights in equality, to encourage parents to educate their children, and the more the better; and if where a parent’advances his children, some with property and some with professions, if the latter cannot be charged as advancements, it would have a tendency to discourage higher education, and to that extent be against the policy of the law.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stat., sec. 1407; Bowles v. Winchester, 13 Bush, 11; Boone v. Thoynsbury, 21 Ky. Law Rep., 368; A. & E. Ency of Law, 1st Ed., vol., 17, page 346; Turner v. Gaither, 83 N. C., 357; Schouler’s Dom. Rel., sec. 242, etc.; Sup. Ct. of N. Y., in re Ryder, pages 11, 185.</p>

<p>1. Officers — Usurpation of Office — Criminal Responsibility — One holding the office of a notary public, who continued to exercise the functions of that- office after hie was appointed anji qualified as postmaster, was not guilty of usurpation, withjn Ky. Stats., 1903, section 1364, making usurpation of office a misdemeanor.</p> <p>2. Same — One continuing to exercise the functions of the office of notary public iafter his appointment and qualification as a postmaster is not guilty of violation of Ky. Stats., 1903, section 1364, making it a misdemeanor to hold and pretend to exercise an office after his term has constitutionally or legally expired.</p> <p>3. Same — One who continues to exercise the functions of the office of a notary public after his appointment and qualification as a postmaster is not guilty of violation of Ky. Stats., 1903, section 1364, making it a misdemeanor to hold and pretend to exercise an office after his election or appointment thereto shall have been declared by la court of competent jurisdiction illegal or void, in the absence of a showing of such an adjudication.</p>

<p>CASE 79. — ACTION BY JOHN M. SMYTHE AND OTHERS AGAINST WASHINGTON MILLER AND OTHERS TO RECOVER DAMAGES ON AN INJUNCTION BOND FOR CUTTING AND REMOVING TIMBER — May 1.</p> <p>Appeal from Lee Circuit Court.</p> <p>B. P. Day, Special Judge.</p> <p>Judgment for palintiffs. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Damages for trespass in cutting timber pass to the personal representative, and cannot be recovered by th'e heirs.</p> <p>2. The obligors on an injunction bond to prevent trespass are not liable for damages, growing out of the cutting and removal of timber, which was cut and removed after the injunction was issued.</p> <p>3. Neither the plaintiffs in the injunction suit, nor the obligors on the injunction bond issued therein, are liable for the damages growing out of the cutting and removal of timber by the vendee of trees on land owned by the plaintiffs in the injunction suit, and which the -defendant therein had been enjoined from cutting.</p> <p>4. If parties suing for trespass to land rely on record title for ownership, they must fail, unless they can trace it to the Commonwealth, or to a common source.</p> <p>5. Actual, continuous and adverse possession to a clearly marked and well defined boundary for la period of more than thirty years gives absolute ownership.</p> <p>6. It was error to refuse' proof of a chain of title running back to the Commonwealth through a tax sale.</p> <p>7. The disclaimer of ownership by the ancestor should have estopped the heirs claiming under him.</p> <p>8 .The proof in the case shows that the verdict was rendered under the influence of passion or prejudice.</p> <p>AUTHORITIES CITED.</p> <p>Sook v. Knowles, 1 Bibb, 283; Ashcraft v. Cox, 25 Ky. Law Rep., 548 and 1303; Blackwell v. Townsend, 91 Ky., 609; Ky. Land & Immigration Co. v. Crabtree, 24 Ky. Law Rep., 743; Chenault v. Quisenberry, 24 Ky. Law Rep., 79.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Appellees, and not personal representative of William Smyth. proper parties to maintain the action. (Encycl. PI. & Pr., yol. 7, page 29; Howard v. Singleton,. 94 Ky., 338; Reynolds Exr. v. Boyd, 92 Ky., 249; Labrat v. Sieler, 20 Ky. Law Rep., 57; Coler v. Lord, 52 N. Y. Supp:, 568; Encycl., PL & Pr., vol. 10, page 53.)</p> <p>2. The damage to appellees herein was sustained by reason oí the injunction. (Burton v. Fisk, 30 N. Y., 166, 6 L. Ed., 722.)</p>

<p>CASE 80. — ACTION BY JOHN P. SULLIVAN AND OTHERS AGAINST THOMAS E. SULLIVAN AND OTHERS POR THE SETTLEMENT OP A DECEDENTS ESTATE — May 1.</p> <p>Appeal from Hardin Circuit Court.</p> <p>Weed S. Chele, Circuit Judge.</p> <p>Prom a judgment for defendant, plaintiff appeals.</p> <p>1. The contention of the appellant is, that a note by a parent to child as a gift payable after the death of the donor is revoked by the death of the donor.</p> <p>2. That love and affection are not a sufficient consideration to uphold a note or check.</p> <p>3. The law prescribes rules for the descent and distribution of property, and its disposition by will, but for wise reasons inhibits and condemns the kind of disposition sought to be availed of in this case.</p> <p>AUTHORITIES CITED. -</p> <p>A. & E. Ency. of Law, vol. 14, p. 1016 (second Ed.); Holley v. Adams, 42 Am. Decisions, 508; Harris v. Clark, 51, Am. Dec., 532; Flint v. Pratt, 66 Am. Dec., 742; Parish v. Stone, 25 Am. Dec., 378; Fink v. Cox, 9 Am. Dec., 191.</p> <p>CLASSIFICATION.</p> <p>1. A promissory note made payable at death is valid. (Carn-wright v. Gray, 24 Am. State Repts., 424; Price v. Jones, 55 Am. Repts., 230; Tiedman on Commercial Paper, sec. 25; Williams on Executors, vol. 2, star, p. 1506.)</p> <p>2. There was sufficient cqpsideration to support the notes. (Price v. Jones, 55 Am. Repts., 232; Graves v. Graves, 7 B. Mon., 213; Fain, &c., v. Turner’s Adm’r, 95 Ky., 637; Reynolds’ Adm’r v. Reynolds, 92 ICy., 560.)</p>

<p>1. Municpal Corporations — Local Improvements — Damages from Drains- — Parties interested in the use of an alley placed a drainpipe therein. The city, subsequently improving thé alley, left the pipe where it was found. Held, that the pipe became a part of the improvement, requiring the city to maintain the same and keep it open.</p> <p>2. Limitation of Actions — Municipal Corporation — Drains—Obstruction — A city negligently permitted the drainpipe to become filled up causing the surface water to flow onto property abutting on the alley and injuring the same. Held, that limitations did not begin to run from the completion of the alley, but a recovery might be had for injuries received within five years prior to the institution of the action.</p> <p>3. Municipal Corporations — Drains—-Obstruction—Damages.—-A city negligently permitted a drainpipe in an alley to become filled up causing surface water to flow onto land abutting on the alley, and injuring the same by damaging a stone wall of a house on the property. Held, that the owner was entitled to recover the actual damages sustained.</p> <p>4. Same — Pleading—Proof-—A petition in an action against a city alleged that plaintiff’s property was injured in consequence of the city improving an alley and filling up a drainpipe therein. The proof showed that the drainage resulted from the filling up of the drainpipe. Held, that the proof supported the cause of action stated in the petition.</p>

<p>1. Nuisance — Negligent Operation — Damages to Adjacent Property — Question' for Jury — On the trial of an action for damages to adjacent property by the negligent operation of a pumping plant where the evidence establishes the right of the plaintiff to some amount in damages, it is the province of the jury to determine the amount.</p> <p>2. Permanent Injury — Measure of Recovery — On the trial of an action for damages to adjacent property by the negligent use of a pumping plant, where the petition seeks to recover for the permanent injury to the property, the measure of the recovery was the diminution, if any, in the fair market value of the plaintiff’s property caused hy the injury complained of.</p> <p>3. Creating Nuisance — Continuation--—Liability—While it is the general rule that if one who has created a nuisance on his land, conveys the land to a purchaser who continues the nuisance, the purchaser is not liable unless on complaint or request he dose not remove it, but the doctrine is also recognized that the continuer of the nuisance is liable without a request to remove it, if by some positive act he adopts it, or the nuisance results from the use rather than from the erection itself.</p>

<p>1. Master and Servant — Injury to Servant — Defective Appliances ■ — Evidence—Where, in an action for injury to a servant engaged in removing the dross from a furnace in which iron was reduced to working metal it was alleged that the employer furnished an insufficient number of buggies in which to catch and remove the dross, the testimony of a person with twenty-five years’ experience in similar work in the empolyer’s 'and similar foundries with respect to the universal custom in such foundries in reducing iron to working metal was admissible on the issue whether the employer furnished sufficient appliances.</p> <p>2. New Trial — Newly Discovered Evidence — Discretion of Court —In an action for personal injuries, plaintiff was surprised at the testimony of a witness introduced by defendant who claimed to liave seen the accident. The plaintiff ‘and this witness were the only persons who claimed to have seen the acident. On a motion for a new trial plaintiff showed by several witnesses that defendant’s witness was elsewhere when the accident occurred. Held, that the newly discovered evidence was more than impeaching evidence and authorized the granting of a new trial.</p> <p>3. Master and Servant — Injury to Servant — Assumption of Risk— A servant who, with knowledge of the dangerous condition of the premises, undertakes to do the work assigned, assumes the risk, unless the master promises to repair them, in which case the servant can for a reasonable time continue in the work without assumption of risk, relying on the master’s promise.</p> <p>4. Damages — Personal Injury — Mortality Tables — Admissibility— Where, in a personal injury action, damages for loss of capacity to earn money are sought, mortality fables are admissible on the issue of damages.</p>

<p>1. Pleading — Matters of Evidence — Statements as to acts of plaintiff and defendant after the assault sued for, which are inere matters of evidence, are properly stricken from the . petition.</p> <p>2. Same — Amendment—Refusal of permission to file an amended petition, merely setting forth in more elaborate form matters of evidence stricken from the original petition, is proper.</p> <p>3. New Trial — Cumulative Evidence — The chief controversy in an action for assault being whether defendant shot in self-defense, he testifying that plaintiff caught h'im by the throat and ran his other hand into his pocket for a pistol or knife, and plaintiff, corroborated by his witnesses, testifying that he had no pistol or knife and did not put his hand in his pocket as if to draw a weapon, and that defendant attacked him, defendant is properly granted a new trial for newly discovered testimony of witnesses that soon after the difficulty plaintiff told them that he began the trouble and ran his hand into his pocket, having a knife therein, and that defendant did no more than he ought to have done; this not being cumulative evidence, or at least not such as does not authorize the granting of a new trial.</p> <p>1.Trial — Right to Conclude Argument — Burden of Proof — Where the petition in an action for assault and battery, setting out but one assault and battery, alleges that defendant struck as well as shot plaintiff, and the answer denied the striking and, while admitting the shooting, justified it on the ground of self-defense, the burden of proof on the whole case is on defendant, so as to entitle him to conclude the argument.</p> <p>5. Discretion of Court- — -Applications for new trials are addressed to the sound discretion of the court to be exercised according to the rules and usages of law, and the court should regard the substantial justice of the case equally remote from favoring negligence or exacting unreasonable diligence.</p>

<p>CASE 85. — PROSECUTION AGAINST THE PADUCAH COOPERAGE CO., FOR FAILING TO HAVE AN AGENT AT ITS KNOWN PLACE OF BUSINESS ON WHOM PROCESS COULD BE SERVED. — May 4.</p> <p>Appeal from. Crittenden Cironit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. Our contention is that the removal of the agent of the appellant corporation from Paducah where its office is located, to Louisville did not operate to set aside his designation as agent of the corporation upon whom process could he served as required by Kentucky Statutes, sec. 571.</p> <p>2. The intention of sec. 571 is only to give adversaries of corporations an opportunity to know some particular person upon whom process can be served. In the absence temporarily of the designated .agent a plaintiff may serve his process upon any of the officers of the corporation named in the Code. (Commonwealth v. G. C. B. & L. Ass’n, 97 Ky., 325.) .</p> <p>The appellants only office;, so far as this record shows, is at Paducah, Ky. It designated Y. J. Blow of Paducah, Ky., as its agent on whom process might be served. The indictment alleges that said agent had left Paducah and .had become a resident of Louisville, Ky., and that appellant was carrying on business in Crittenden county and had not designated a place of business nor an agent in said county. W« submit that the1 indictment charges the commission of the offense under the statute, sec. 571. (Johnson v. Masonic Lodge, 21 Ky. Law Rep., 493; Knoxville Nursery Co. v. Commonwealth, 21 Ky. Law Rep., 1483; Jellico Mining Co. v. Commonwealth, 96 Ky., 373; Commonwealth v. Read Phosphate jCo., 23 Ky. Law Rep., 2285.)</p>

<p>CASE 86. — ACTION BY SANDERS & WALKER AGAINST (WILLIAM HERNDON AND OTHERS TO SUBJECT THE COMPENSATION DUE HERNDON AS ADMINISTRATOR OP AN ESTATE, TO THE PAYMENT OP HERNDON’S DEBT TO PLAINTIFF. — May 4.</p> <p>Appeal from G-arrard Circuit Court.</p> <p>W. C. Bell. Circuit Judge.</p> <p>Judgment for defendants. 'Plaintiffs appeal.</p> <p>1. We submit that sec. 4665 Ky. Stats, provides a remedy for a surety who pays a debt before a judgment is obtained, and sec. 4666 provides a remedy for a surety who pays the debt of his principal after the judgment is obtained, and under either of these sections the surety who pays the debt may proceed either jointly or separately to enforce his. remedy against his co-surety.</p> <p>2. Where a surety, jointly bound with others pays the whole of the debt to the principal after judgment he may have an execution issued against any one or all of his co-sureties for their part of the judgment, and the immediate return of the surety, from proceeding to collect his demand against his execution. “No property found” will not prevent the plaintiff co-surety under sec. 439 of the Civil Code. ■</p> <p>3. The commission or compensation due to one for his services as administrator of an estate may be subjected by attachment to the payment of' a personal demand owing by the administrator as an individual.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, sections 4665, 4666; Civil Code, sections 439, 207; 6 J. J. Marshall, 219.</p> <p>1. It may be fairly assumed and we charge:</p> <p>(1) The execution was void.</p> <p>(2) The return “nulla bona” was void.</p> <p>(3) The order of attachment and garnishment were void and consequently there was no cause or basis for plaintiffs action.</p> <p>2. “On a joint judgment against several the execution must be joint.” (Ky. Stats., sec. 1652, subsec. 2.)</p> <p>3. The judgment herein was joint. There is no separation of the defendants but it is against all of them.</p> <p>4. Ky. Stats., sec. 4666 does not authorize an execution against a part only of the judgment defendants.</p> <p>5. Considering the validity of the execution still there was no valid return of “no property found,” for execution placed in the hands of the sheriff at 5 o’clock p. m., on January 3, when it ,was then dark and returned hy the sheriff the same night at 6 o’clock ‘no property found,” does not destroy the prosumption that appellee was solvent, and will not support an attachment proceeding thereon and such proceedings are void.</p> <p>AUTHORITIES.</p> <p>Kentucky Statutes, 1652, subsection 2, 4665-6; 10 Bush, 362 Tanner v. Grant; 4 Ky. Law Rep., 451, Farmers National Bank v. National Bank of Lancaster, Ky.; 13 Howard, 7, Parshall v. Tillou; 13 Abbott, 320, Field v. Chapman; 22 Howard, 329, 24 Howard, 463; 4 Abbott, Court of Appeals, Voorhies v. Howard; 4 A. & E. Enc., 574 n. 3; 2 Waits Actions and Defenses, 418; Code 194; Freeman on Executions, 131; Drake on Attachments, 454, 541, 545, 551; 5 Dana, 361 Wolfe v. Tappan; 7 J. J. Mar., 219, Dana v. Books.</p>

<p>CASE 87. — ACTION BY G. H. TACKSON- AND OTHERS AGAINST J. R. HARDIN, ON MOTION PENDING ’ AN APPEAL TO CONTINUE AN INJUNCTION GRANTED IN THE LOWER COURT. — April 21, 1905.</p> <p>Appeal from-Lahrel Circuit Court.</p> <p>Motion made in Appellate Court.</p> <p>(Omitted in former report.)</p>

<p>.CASE 88. — PROSECUTION AGAINST JOHN SAYLOR AND JOHN SMITH FOR ESCAPING FROM .JAIL. — May 8.</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. FaulkNer, Circuit Judge.</p> <p>Defendants convicted and appeal.</p> <p>1. The demurrer of the appellant, to the indictment, under which he was tried, should have been sustained by the lower court, because it does not state facts sufficient to constitute an offense, as provided by section 1338 of the Kentucky Statutes.</p> <p>2. There is no legal evidence that attempts to prove that the appellant was under sentence of imprisonment.</p> <p>3. There is no legal evidence to show how or under what authority the appellant was put in jail.</p> <p>4. Section 1338 of the Kentucky Statutes does not provide, that if a person shall escape from a guard or a person in charge of him he shall be guilty of the offenses of escaping from jail.</p> <p>5. We think that section 1377 of the Kentucky Statutes is unconstitutional in so far as it provides that the defendant shall work at hard labor till the cost is paid.</p> <p>6. The lower court erred in his instructions to the jury. The said court did not give the jury the whole law of the case, and did not fairly instruct the jury.</p> <p>AUTHORITIES CITED.</p> <p>Sections 1338, 1282, 1377, 1378, 1379, 1380, 1381, of Ky. Stats., sections 289, 293 and 298, Criminal Code; sec. 17' Ky. Constitution; Heilman v. Commonwealth, 8 Ky. Law Rep., 452; Commonwealth of Ky. v. Sherley, 11 Ky. Law Rep., 641; C.onnor v. Commonwealth, 13 Bush, 714.</p> <p>1. The proof shows, by both the records of the court, which were properly introduced in evidence by the clerk of the Circuit Court, that the appellant had been fined for a failure to work the roads; that the court had rendered judgment on the verdict, and had ordered the appellant to be taken in custody of the jailer and held by him until the fine and costs were paid, unless sooner replevied by the appellant.</p> <p>2. We think it sufficient to show that the appellant was legally in custody of the jailer; whether he was in the jail, out in the yard, or on the county road is not a matter to be taken advantage of by him; he is shown to have been legally in the custody of the person who had him in charge.</p> <p>3. As to the capias, we cannot see that one was necessary; the purpose of a capias is to procure the body of the prisoner; the record shows that he 'rendered himself in execution, by refusing to replevy or pay the fine, when the judge of the court ordered the jailer to take charge of him.</p>

<p>1. Homicide — Dying Declarations — Determination as to Competency — On a trial for murder the question of the competency of -evidence of .a dying declaration is for the court.</p> <p>2. Same — Appeal—Harmless Error — Instructions—In a prosecution for murder, an instruction submitting to the jury the question of the competency of dying declarations, though improper, is not alone cause for reversal.-</p> <p>8. Same — Dying Declarations — Admissibility—Hope of Recovery— In a prosecution for murder, there was evidence that deceased was shot in the arm between the elbow and shoulder. . On the day following the shooting, the arm was amputated, and on the ensuing day, about 3 in the morning, deceased died. Before a physician had arrived, deceased said that he thought he was going to die heciause he was shot so near the joint, hut there was evidence that he also told his wife that she had a one-armed man now, but that he would make a living for her in some way, and that he spoke to his sister-in-law about removing into another State as soon as he was able. It was also shown that he said that he did not want his assailant to be prosecuted, but would settle with him when he got well. Held, that a statement made by deceased before the physician.arrived to .amputate his arm was not admissible as a dying declaration.</p> <p>4. Same — Practice—In a prosecution for murder in which it is sought to introduce a dying declaration, the eourt should, ,in the absence of the jury, hear evidence as to the circumstances under which the declaration was made to determine what statements, if any, were made in extremis, and permit these only to be introduced, also allowing defendant to introduce any statements made afterwards for the purpose of lessening or destroying the force of the dying declarations</p>

<p>CASE 90. — ACTION BY L. B. ANDERSON AGAINST THE NATIONAL LIFE INS. CO. OF THE UNITED STATES OF AMERICA, ON A CONTRACT FOR COMPENSATION AS AGENT. — May 9.</p> <p>Appeal from Craves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>We submit that if it was agreed between appellant and appellee, that the appellee, as appellants agent, might rebate insurance premiums, then the entire contract was void, and appellee should not recover anything thereon.</p> <p>AUTHORITIES.</p> <p>Brown’s Adm’r v. Longford’s Ad'm’r 3 Bibb, 497; Swann, et al. v. Chandler & Phillips, 8 B. Monroe, 97; Gardner v. Maxey, 9 B. Monroe, 90; Collins v. Merrill, 2 Metcalfe, 163; Kimbrough v. Lane, 11 Bush, 556; Clark on Contracts, pages 571-574; Lehan v. Kiley, 21 Kentucky Law Reporter, 1186; Davis v. Parrish, 16 Kentucky; Littell’s Select Cases, page 153;- 104 Federal Reporter, 502; 17 American eDcisions, 175; 62 Kentucky, 261; 95 Kentucky, 494.</p> <p>AUTHORITIES CITED AND RELIED ON.</p> <p>1. Motion to quash summons was properly overruled. (Kentucky Statutes, 631.)</p> <p>2. Contract was for a term of one year. (Bishop on Contracts, section 413; Crane & Co., &e. v. Williamson & Co., 23. Ky. Law Rep., page 691; Bishop on Contracts, 372.)</p> <p>3. Contract was not vitiated- by reason of the acceptance of certain premiums at less than the regular rates. (Lyne v. Bank of Kentucky, 5 J. J. Marshall, 569; Phillips v. Clark, 4 Metcalf, 352.)</p> <p>4. The measure of recovery is the amount called for by the contract.</p> <p>5. The case was submitted to the jury under proper instructions and their findings of the facts are sustained by the evidence.</p>

<p>CASE 91. — PROSECUTION AGAINST JAMES L. BARROW FOR PREVENTING A VOTER FROM VOTING AT A GENERAL ELECTION — May 9</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. SaNdidge, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Section 1583 of the Kentucky Statutes is unconstitutional.</p> <p>2. Thé power to fix all penalties, involving life or liberty of persons, and involving the payment of fines, rests exclusively with the jury except in certain cases in inferior courts.</p> <p>3. Under section 1583 of the Ky. Stats., no election officer can be punished for declining to permit a qualified voter to cast his vote, unless it be shown affirmatively by the Commonwealth that such person so offering to vote is a legally qualified voter in the precinct where said election officer is acting.</p> <p>4. No election officer can be punished under section 1583 Ky. Stats., for refusing to permit a qualified voter to cast his vote unless said refusal is founded on a corrupt motive or unless said offense is knowingly done; honest errors in judgment arrived at in good faith, even though erroneous, do not subject the election officer to any sort of punishment.</p> <p>5. No election officer can be convicted for any of the offenses denounced in chapter 41 of the Kentucky Statutes upon the testimony of a single witness, unless sustained by strong corroborating circumstances.</p> <p>6. Although the clerk of an election is not a judicial officer, he has the power to decline to receive a vote known by him to be an illegal vote, irrespective of the ruling of the judges of the election.</p> <p>7. In an issue before a jury >as to the qualification of a person claiming to be a legal voter, rules for determining the residence of said voter are specifically enumerated. in section 1478, Ky. Stats., and the five rules there, enumerated constitute the exclusive method of arriving at the residence of said voter, and- in instructing the jury it is erroneous and prejudicial for the court to select only one of said rules in framing the ¡instructions and to ignore the remaining four as the court must give the whole law on that question to the jury.</p> <p>8. Under an indictment charging an election officer with knowingly refusing to receive a ballot of a legal voter, it must he shown affirmatively .by; the Commonwealth (where said voter’s right to vote was challenged) that the said voter yras duly sworn and interrogated according to law, and unless it shall appear that said voter was so sworn at the time of said interrogation and after he had been challenged he was not entitled to vote, although otherwise qualified.</p> <p>9. On the trial of such a case as this involving the. question of the voter’s intention to return to the precinct where he formerly lived, after having removed therefrom, it was error to permit witnesses to testify as to statements made by said voter of his intention to return to his former precinct,..and this evidence was highly prejudicial to the defendant in this case.</p> <p>10. It is error to permit the Commonwealth’s attorney, after the close of all the evidence to introduce evidence properly in chief, merely on his. statement that he had forgotten to do so at the proper time.</p> <p>11. The court should have sustained defendant’s motion for a peremptory instruction at the conclusion of the Commonwealth’s evidence.</p> <p>12. The court should have sustained the motion for a peremptory instruction made by defendant at the conclusion of all the evidence.</p> <p>13. Under all the evidence, it plainty appears that the defendant Barrow did not decline to receive the vote of the prosecuting witness, Bell, after the filing of the counter-affidavit.</p> <p>AUTHORITIES CITED.</p> <p>87 Ky., 42, Cheek v. Commonwealth; 90 Ky., 33, Johnson v. Commonwealth; 93 Ky., 156, Cowan v. Prowse;. 85 Ky., 597, Anderson v. Winfree; 84 Ky., 52, Vowells v. Commonwealth; Ky. Stats., sections 1583, 1577, 1477, 1477a, 1579, 1594, 1478; 10 Bush, 488, Commonwealth v. Gale; 1 Duv., 63, Chrisman v. Bruce; 18 B. M., 717, Morgan v. Dudley; 18. B. M., 494, Miller v. Rucker; 24 Ky. Law Rep., 1098, Edwards v. Logan; 24 Ky. Haw Rep., 709, Connor v. Commonwealth; 3 4Bush, 469, Russell v.- Commonwealth. " ■ • ’ ..... • ■ '•</p>

<p>CASE 92. — ACTION BY ROBERT TENNELLY AGAINST THE LANGAN & TAYLOR STORAGE & MOVING Co., FOR BREACH OF CONTRACT IN THE DELIVER 5T OF GOODS. — May 9.</p> <p>Appeal from Daviess. Circuit Court.</p> <p>T. P. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals,</p> <p>LOUIS I. INGLEHEART of counsel.</p> <p>POINTS AND AUTHORITIES.</p> <p>T. The petition stated a cause of action only entitling the appel-lee to recover nominal damages and nothing more. (Miles v. Miller, 12th Bush, page 134; Koch v. Godshaw, 12th Bush, page 318; Benjamin on Siales, vol. 2; page 1120, note 2, under sec. 1305, 4th Ed.; Benjamin on Sales, page 466, sec. 517, vol. 1, 4th Ed..; S, Barker & Go. v. Mann Bennett & Co., 5th Bush, 675; Chesapeake O. & S. W. R. Co. v. Crugers Adm’r, 7th. Ky. Law Rep., abstract 103.)</p> <p>2. The. motion' to strike from -the reply that part thereof wherein appellee pleaded that the goods had "been scratched broken and injured should have been sustained. The reply was not designated a counterclaim and set-off; and besides the allegations of the reply were, inconsistent with the allegations set up in the petition, (a). Civil Code, section 101; Barbaroux v. Barker, 4 Metcalf, page 47; (b). Civil Code, sec. 97, subsection 4; Cason v. Cason, 79th Ky., 558; Nutter v. Johnson, 80th Ky., 426; Lacey v. Lacey, 95th Ky., 110; ■ Kelly v. Talbott, 19th Ky. Law Rep., 632; Salyer v. Napier, 21 Ky. Law Rep., 172; Arthurs v. Thompson, 97 Ky., 218.</p> <p>3. The place of delivery of the furniture was in St. Louis, Mo., and the evidence of the market value of the furniture had to be established taking St. Louis, Mo., and no other place as the market. (Benjamin- on Sales, vol. 2, page 1120, note 2, under sec. 1305, 4th Ed.; S. Barker & Co. v. Mann Bennett & Co., 5th Bush, 675.)</p> <p>4. The instructions given by the court did not embody the law of the case. They failed to designate the market, or place of delivery of the furniture. Th.e rule of law as to the damage suffered for a breach of contract to deliver chattels -as stated by the lower court is not the law. The instruction offered by appellant did correctly state the law. (Benjamin on Sales, vol. 2, page 1120, note 2, under sec. 1305, 4th Ed.; Miles v. Miller, 12h Bush, page 134; Koch v. Godshaw, 12th Bush, 318; Smith v. Bailey, 5th Ky. Law Rep., abstract 932; Chesapeake & O. S. W. R. R. v. Cruger’s Adm’r, 7th Ky. Law Rep., abstract 103.)</p> <p>1. It is not necessary to set out the measure of damages of breach of contract in the -sale and delivery of personal property of this kind, because the measure of damages is a question of law, and the law having fixed the measure of damages in this kind of a case, it is not necessary to allege same in the petition.</p> <p>2. I contend, first, that in regard to the counter-claim, plead in the reply, and the instruction No. 3 based upon it, the court did not commit any error. Second, if the court did commit an error in these two matters, then such errors were not prejudicial to the appellant, as shown by the verdict of the jury.</p>

<p>CASE 93. — ACTION BY ANNIE EADEN AGAINST THE LOUISVILLE & NASHVILLE R. R. CO., FOR DAMAGES FOR PERSONAL INJURIES. — May 9.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. E. GokdoN, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There is no legal liability whatever, either under the pleadings or under the evidence. The case is utterly devoid of merit.</p> <p>2. The petition wholly fails to state a cause of action. Demurrer thereto should have been sustained. Appellant was entitled to judgment non obstante. (Davis’ Adm’r, v. C. & O. Ry. Co., 116 Ky., 157; Simons v. Gregory, 27 Ky. Law Rep., 511; King v. Creekmore, 25 Ky. Law Rep., 1202.)</p> <p>3. Appellant was entitled to peremptory instruction. (L. & N. R. Co. v. Routt, 25 Ky. Law Rep., 887; Sullivan v. L. & N. R. Co., 115 Ky., 447; Lackett, etc. v. Lutz, 95 Ky., 287; Ry. Co. v. Powell, 17 Ky. Law Rep., 1051; 1 Blackstone, 456; Hurt v. L. & N. R. Co., 116 Ky., 545; Evers v. Krouse, 66 L. R. A., 592.)</p> <p>4. The verdict is. not sustained by sufficient evidence. (Hurt v. L. & N. R. Co., supra; L. & N. R. Co. v. Hall, 115 Ky., 567; L. & N. R. Co. v. McGary’s Adm’r, 104 Ky., 509; L. & N. Co. v. Carter, 23 Ky. Law Rep., 2020.)</p> <p>5. The court erred in admitting incompetent evidence for appellee, and'in refusing competent evidence for appellant.</p> <p>6. The. court erred in instructing the jury. (Davis’ Adm’r v. C. & O. Ry. Co., supra; Simons v.-Gregory, supra; L. & N. R. Co. v. Creighton, 106 Ky., 42; L. .& N. R. Co. v. Logsden, 114 Ky., 746; L. & N. R. Co. vl Hall, 115 Ky., 567, 579; Lou. Sou. R. Co. v. Minogue, 90 Ky. 374; Covingfon Saw Mill and Mfg. Co v. Drexilius et al., 27 Ky. Law Rep., 903.)</p> <p>7. The concluding argument for appellee was unfair. (L. & N. R. Co. v. Smith, 27 Ky. Law Rep., 257; I. C. R. Co. v. Jolly, Ih., 118; L. & N. R. Co. v. Carter, Ih., 748; II. P. R, Co. v. Field, 137 Fed., 14.)</p> <p>8. The offilcial sheets of the train dispatcher were not only competent hut important and conclusive evidence. (Donovan v. B. & M. R. Co., 33 N. E., 583-4; Louisville, Bridge Co. v. L. & N. R. R. Co., 25 Ky. Law Rep., 405; 1 Wharton Ev., 238; I G-reenleaf, 15 Ed., 120; 16 Ed., 120a; Tayloe v. Riggs, 1 Pet, 596; IT. S. v. Ray-born, 6 Pet., 367; Chisholm v. Beaman -Med. Co., 43 N. E., 796; Callihan v. Washington W. P. Co., 5b L. R. A.. 772.)</p> <p>1. The allegations of the'petition leave no grounds for even a presumption that appellee was a trespasser upon appellants track or was elsewhere than on the private crossing.</p> <p>2. We contend that the allegation, that when the fireman threw the shovel full of hot embers from his engine, he knew that appellee was standing at the crossing, and the danger that might result to her if he threw them, or by the exercise of ordinary oare could have known such facts, is good with the alternative statement. It is clearly so if it was his duty to look out for the presence of persons at an established private crossing.</p> <p>3. This case has been tried before a properly instructed jury. There is no claim that the amount allowed the plaintiff was excessive.</p> <p>AUTHORITIES CITED.</p> <p>Davis’ Adm’r v. C. & O. Ry. Co., 116 Ky., 157; L. & N. R. R. Co. v. Routt, 25 Ky. Law Rep., 887; Cabell v. Cincinnati & C. Ry. Co., 92 Ky., 345.</p>

<p>1. Appeal — Right of Review — Separate Appeals — Where a judgment authorizes an appeal by each party to the suit, each . party may pray an appeal from, the judgment against him, and the appeals may be prosecuted on the same record, if the parties desire so to do, or each party may bring up his own record.</p> <p>2. Mechanics' Liens — Contractors’ Bonds — Liability of Surety— Extent of Liability — A contract between a county and a contractor for the construction of a court-house stipulated that the contractor should refund to the county all moneys it might be compelled to piay in discharging any liens. The contractor executed a bond, - conditioned on his performance of the conditions of the contract. He abandoned.the work, and laborers and materialmen filed liens for their claims. The county paid the claims without suit, though there was no money due to the contractor. Held, that the surety was liable "for the 'amount paid to the claimants; they having the right, under the express provisions of Ky. Stats., 1903, section 2463, to require the county to pay their claims, though it did not owe the contractor anything.</p> <p>3. Principal and Surety — Contractors’ Bond — Liability of Surety— Modification of Contract — A surety on the bond of a con- • tractor for the construction of a court-house is not discharged because changes were made in the contract by the building committee appointed by an order providing that it should not have the power to make any changes in the specifications adopted by the fiscal court.</p> <p>4. Same — Abandonment—Notice of Cancellation — A contract for the construction of a court-house provided that on the failure of the contractor to prosecute the work the county might, after ten days’ written notice to him, terminate the contract. The contractor executed a bond conditioned on the performance of his covenants. He abandoned the contract and absconded. The county attempted to give the required notice before canceling the contract, but, on being unable to do so, it completed the work. Held, thia-t the surety was not discharged from liability, the county being only required to exercise reasonable diligence to serve the notice.</p> <p>5. Same — A contract for the construction of a court-house stipulated that the expenses of the county in finishing the work should be certified by the architect, whose certificate should be conclusive. The contractor executed a bond, conditioned on his performance of the contract. The county incurred expenses in finishing the work after default by the contractor. At a meeting of the building committee rand the architect “for the purpose of auditing x x x the expenses incurred by the county by reason of the x x x breach of the contract,” the expenses incurred were audited and certified as provided by the contract. Held, that the surety was not discharged from liability because the certification was not signed by the architect.</p>

<p>Jurisdiction — A contract made in one State to be performed partly where made and partly in another State should be construed, in fixing a liability for its breach according to the laws of the jurisdiction where the breach occurred. A telegram sent from Boonville, Ind., to Louisville, Ky., which had to be transferred at Evansville, Ind., from one of the company’s lines to another of its lines, and thence forwarded to Louisville, was a contract to be performed in Kentucky.</p> <p>2. Telegram — Illness of Brother — Failure to Deliver — Action for Mental Suffering — A telegram addressed to Jake Lacer, Enterprise Hotel, Louisville, Ky., sent from Boonville, Ind., announcing the expected death of a brother of the sendee, and which in being transferred at Evansville, Ind., from one of the company’s lines to another of its lines, the name of the sendee was changed to Jake Koer, so that it was not ' delivered to the sendee until four days after the brother’s death, the sendee was entitled to recover damages for mental suffering by the failure of the company to deliver the telegram promptly and expeditiously as under its contract as a common carrier of messages it is required to do.</p>

<p>CASE 96. — ACTION BY W. D. BLACKWELL AGAINST F. H. LEWIS, TO COMPEL HIM AS CLERK OF THE COUNTY COURT TO CERTIFY TO PLAINTIFF AS SHERIFF OF THE COUNTY, CERTAIN TAXES FOR COLLECTION. — May 10.</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>W. P. SaNDIdge, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>1. The usual practice adopted by the court is, we think, that if no time is fixed by statute for tlie performance by an officer of a public duty, then, -it will be held that it ought to be done in a reasonable time.</p> <p>2. It is our contention that the language of section 4103, “All taxes assessed against any railroad,” includes the taxes due to counties, as well as that due to the State.</p> <p>It is the generally accepted practice, we believe, for the railroads to pay to the auditor, the tax due the State on or before the first day of December, in the year for which the assessment is made. If this contention is correct, then, the tax against the railroad companies due for the year 1905, were certainly due and payable during the term of the appellant, and whether or not the tax had been certified to -him, he was and is the person entitled to demand and receive it.</p> <p>3. Can a public servant, by an omission to discharge a duty imposed upon him by law, alter the time at which a tax due to a county shall become due? Or can a right vested by law in the sheriff to demand and collect the tax, and his consequent right to the commission for the collection, be defeated?</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sections 4096, 4097-8, 4103.</p> <p>1. Our contention is that taxes levied in October, 1904, upon an assessment made in December, 1905, and paid over and received by the county in January, 1906, are a part of the revenue of the county for the year 1905.</p> <p>2. The taxes due from the railroad companies for the year 1905 did not become due and collectible until January 30, 1906, one month after the plaintiffs term of office as sheriff expired.</p> <p>3. The auditor’s certificate was received by the county clerk, appellee, on Monday, January 1, 1906, the same day that the appellants term of oftte expired, and the new sheriff qualified, and we contend that the new sheriff having on that day qualified and given bond was entitled to collect the railroad taxes which were not due until January 30, 1906.</p>

<p>CASE 97. — ACTION BY ANNA M. DURRETT, AGAINST GEORGn H. DAVIDSON, SHERIFF OF KENTON COUNTY AND OTHERS TO ENJOIN THE COLLECTION OF TURNPIKE TAXES — May 11.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. MoD. Shaw, Circuit Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>(No briefs; record out of office.)</p>

<p>CASE 98. — ACTION BY MRS. ESTHER MEYERS AGAINST F. H. CLARK, W. C. DUDDENHAUSER & W. R. MIL-WARD FOR DAMAGES FOR MUTILATING THE DEAD BODY OF HER DAUGHTER. — February 20.— Rehearing May 11.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>(No brief in the record.)</p> <p>POINTS AND AUTHORITIES. .</p> <p>1. The stenographer’s transcript is not part of the record. (Session acts 1902, page 230; Southern Railway Company in Kentucky v. Thurman,- 25 Ky. Law Rep., 804; 76 S. W., 499.)</p> <p>2. The appellee, W. R. Milward, did not induce, cause, consent to, or have anything to do with the autopsy complained of.</p> <p>3. An attending physician, who is also an officer of a public hospital, is justified in holding an autopsy on the body of a patient in a public hospital, who dies in said hospital, for the sole purpose and in good faith of ascertaining the cause of death of such patient, when the death of such patient is sudden, unexpected and mysterious, and when the cause of such death is not known and cannot be ascertained by any medical skill, when the ordinance of the city, in which said hospital is situated, the rules of the board of health of said city, and the rules of said hospital impose upon him the duty of stating said cause of death in writing as a condition precedent to the removal of said body from the city, or of its burial in or within two miles of said city,-and such, physician .is not liable in damages to the next kin of said decedent, if said autopsy is conducted in a skillful, scientific and decent manner, with due regard to the sex of-said decedent. (Cook v. Walby, 27 Pac. Rep., 950; 9 Cyc., 988-9,-Title Coroner; Young v. College of Physicians and Surgeons, 81 Md., 358; s. e. 31 L. R. A., 540.)</p>

CASE 99. — INDICTMENT AGAINST HENRY SCHWEITERS FOR PERJURY. — May 15. Appeal from Jefferson Circuit Court. (Criminal Division.) Joseph Pryor, Judge. (No brief in the record.) In an indictment for false swearing: 1. The falsity of the matter alleged to have been sworn to by the defendant is not properly negatived by special averment. (Commonwealth v. Still, 83 Ky., 275;. Ferguson v. Commonwealth, 8 Ky. Law Rep., 257; Commonwealth v. Weingartner, 16 Ky.

CASE 100. — PROSECUTION AGAINST NICHOLAS GARRISON FOR MURDER. — May 15. Appeal from. Leslie Circuit Court. H. C. FaulkNer, Circuit Judge. Defendant convicted and appeals.