Volume 123 — Kentucky Reports

<p>1. Warrant of Arrest — Special Bailiff — Appointment by Justice of tbe Peace — Authority Conferred. — A special bailiff may be appointed to execute a process in a civil action, but there is no , statute authorizing a justice of the peace to appoint a 'special bailiff to execute a warrant of arrest under the Criminal Code, and such appointment confers no authority upon the person attempting to execute such a warrant.</p> <p>2. Same — Homicide—Evidence of Warrant — Endorsement—On the trial of N. jointly indicted with J. for the unlawful killing of S., while acting under a warrant from a justice of the peace appointing J. as special bailiff to arrest S., neither the warrant nor the indorsement on it conferred any authority upon J. to arrest S., and the evidence as to the issuing of the warrant, the endorsement on it and what was done under it, may only be considered in so far as it may in connection with the other facts proved throw light on the situation of the parties and the motives prompting their conduct.</p> <p>3. Assaulting Deceased — Self-defense—Assault by Deceased — Apparent danger — Rights of Parties — If there was an assault on S. at his house by J. and N. with intent to take his life or do him some great bodily harm, and S. believed and had reasonable grounds to believe that it was necessary to use a deadly weapon'to protect himself from death or great bodily harm, then he had a right to use such force as reasonably appeared to him to be necessary to protect himself from such danger and in this event the person or persons so making the assault can not rely on self-defense. But if J. made the assault on the house and did not intend to kill S. or do him great bodily harm, but only intended to arrest him in good faith under the warrant, and S. had not reasonable grounds to believe he was in danger of death or great bodily harm, then. S. had no right to shoot J. merely to prevent his being arrested, and if he did so shoot at J. and J. believed, and had reasonable grounds to believe he was then and there in immediate danger of death or great bodily harm at the hands of S. and that it was necessary to shoot S. in order to avert such danger, either real or apparent, then J., if he so shot and killed S. was excusable on the ground of self-defense, and the defendant, N., who accompanied J. should be acquitted.</p> <p>4. Unarmed Defendant — Innocent Motives — If the defendant, N., was unarmed and did not shoot S. or take any part in the shooting- of him and accompanied J. innocently and for no improper purpose to harm S. or any of his family, he should be acquitted.</p>

<p>1. Master and Servant — Torts of Servant — Joint Liability — The common law procedure having been superseded by the Code, a joint action may be prosecuted against a servant and his master for the servant’s tort within the 'scope of his employment.</p> <p>2. Same — Injuries ,to Third Persons — Master’s Liability — Action —Burden of Proof — In an action against a master and servant, the complaint alleged that the servant invested with power to eject persons from the master’s premises, while acting in the line of his employment, assaulted and inflicted injury upon the plaintiff who, at the time, was lawfully upon the premises under a privilege extended to him by the master, and the master’s answer denied that plaintiff had any privilege or that the servant wrongfully attempted to eject him, or that the servant, while acting in the line of his employment, committed, the assault complained of. Held, that under such answer the burden of proof was on plaintiff.</p> <p>3. Evidence — Burden of Proof — Where a cause of action is jointly prosecuted against two or more, if the burden of proof is on plaintiff as to either of them, the court, in the exercise of a sound discretion, has the right to give plaintiff the burden of proof on the whole case.</p> <p>4. Master and Servant — Injuries to Third Persons — Scope of Employment — Where a servant employed by a fishing club, and empowered to eject all persons engaged in fishing on the premises without authority, attemped to prevent plaintiff from fishing, and committed an assault and battery on him as a mere continuation of an altercation that arose at the time, the servant in committing the assault was acting within the scope of his employment.</p> <p>5. Same — Evidence—Admissibility—Where, in an action against a fishing club and a servant thereof for an assault committed on plaintiff by the servant while endeavoring to eject plaintiff from the club’s fishing grounds, plaintiff claimed in the petition that a privilege to fish there had been granted to him, it was proper to admit evidence tending to show that previous to the difficulty the servant knew that plaintiff was in the habit of fishing there, and had not made any objection.</p>

<p>Case 3. — PROSECUTION AGAINST HARRY BROWN 'FOR WILFULLY CERTIFYING TO AN IMPROPER CERTIFICATE OF ELECTION. —</p> <p>Appeal from Jefferson Circuit Court, Criminal Branch.</p> <p>Joseph Pryor, Judge.</p> <p>Defendant acquitted and Commonwealth appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>An indictment under section 1585a, subsection 12, of an officer of election for knowingly and wilfully certifying to an improper certificate of election.</p> <p>1. The correct apointment of the defendant as an officer of election is sufficiently averred by the words “duly, under and in 'accordance with, the laws of Kentucky.” (Wharton on Criminal Law, Secs. 2797, 2515, 2533; Commonwealth v. Duff, 87 Ky. 498; Encye. of PI.-and Prac. “Public Officers;” U. S. ¡v. Morrisy, 32 Fed. 147; In re Coy, 31 Fed. 794; Am. Digest, Century Ed. Yol. 18, “Elections,” See. 359; Commonwealth v. Thompson, 13 B. Mon. 159.)</p> <p>2. The averment that the defendant “pretended” to act in pursuance of such an appointment, is sufficient to describe him as an officer of election, under the Statute. (Wharton on Criminal Law, Secs. 2515, 2533, 2797; McClain on Criminal Law, Sec. 912; Commonwealth v. Pate, 110 Ky. 468; Ky. Statutes, See. 1591.)</p> <p>3. Upon the trial of an officer of election, under section 1585a, Sub-section 12, for knowingly and wilfully certifying to an improper certificate of election, a variance of two figures between the certificate, which was a very long one, and the copy of the certificate set out in the indictment, not being a material variance, was not a fatal variance, and, therefore, not properly a ground for a peremptory instruction to the Jury to find the defendant not guilty.</p> <p>POINTS AND AUTHORITIES.</p> <p>In an indictment for certifying to an improper certificate of election, a motion to instruct the jury peremptorily to acquit the defendant was properly sustained.</p> <p>1. Because the indictment was not sufficient to sustain a conviction. (Section 1585a, sub-section 12 of the Kentucky Statutes; 2d McOlain on Criminal Law, See. 950; Commonwealth v. Maddox, 17 K. L. R. 557.)</p> <p>2. Because the evidence was not sufficient to take the ease to the jury.</p> <p>3. Because there was a fatal variance between the allegation and the proof. (Commonwealth v. Harrison, 17 K. L. R., 343; Brown v. People, 66 111. 344; 1st Wharton on ■Criminal Law, 10th Ed., See. 737; Underhill on Criminal Evidence, Sec. 421; States v. Fay, 65 Mo. 490-494; Burress v. Commonwealth, 27th Gratt (Va.), 934-944; State v. Lane, 80 V. Car, 407; State v. Woodrow, 56 Kan. 217; Words and Phrases Judicially Defined, Vol. 8, 6915; McDonald v. State, 24 S. W. 105, 58th Ark. 242; Commonwealth v. Wright, 55 Mass. (1st Cush.) 46 and 65; Dana v. State, 2d Ohio State 91; Edgerton v. State (Texas), 70th S. W. 90; State v. Bonnie, 34th Mass. 383; Fog. v. State, 17 Tenn. 392; State v. Fullens, 81 Mo. 387-392; Commonwealth v. Stevens, 1st Mass. 203; 2d A. & B. Enc. of Law, Vol. 28, page 46; State v. Atkins, 5th Black. (Ind.) 458; Thomas v. State, 103 Ind. 426; State v. Townsend. 86 N. C. 679, Code Sec. 131, 133 and 134,, 97 Ky. 310.)</p>

<p>1. Life Insurance — Incontestable Stipulation — After two Years— Public Policy — A stipulation in a life insurance policy that “after two years from its date this policy will be incontestable, provided the premiums are duly paid, and the requirements of the company as to age, military or naval service, in time of war are observed,” embraces all defenses that can be made to its payment at the death of the insured except those specifically excluded by its language, and such a stipulation is not void as contravening public policy.</p> <p>2.Insolvent Company — Reinsurance—Policies in Good Standing— Schedule — Liability on Agreement — Where an insolvent insurance company by its receiver, turned over all its assets to another company upon an agreement with the latter company to reinsure all the policies in good standing therein, and actuaries were appointed to ascertain and report all the policies then in good standing, such policies only of the insolvent company as were included in the schedule reported by the actuaries “as in good standing” were embraced in the agreement for which the contracting company is liable.</p>

<p>Case 5. — MANDAMUS PROCEEDING BY THE ILLINOIS LIFE INS. CO. and OTHERS AGAINST HENRY R. PREWITT AS INSURANCE COMMISSIONER OP THE STATE OP KENTUCKY. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>Robert L. Stout, Circuit Judge.</p> <p>From the judgment defendants appeal and plaintiff prosecutes a cross-appeal.</p> <p>1. It is the contention of the State that under See. 200 of the State Constitution, reinsurance by the Illinois Life Insurance Company, of the risks or policy holders of-the Mutual Life Insurance Company of Kentucky, was a consolidation, by sale or otherwise, of said two companies; that said judgment directing said treasurer and commissioner to surrender and turn over the one hundred thousand dollars to said Illinois Life Insurance Company, a foreign corporation, is not only erroneous, but void, because under said constitutional provision, said court is not only without power, but is prohibited from rendering such judgment. It is specifically provided by said section that “the courts of this Commonwealth shall retain jurisdiction over that part of the corporate property within the limits of this State in all matters which may arise, as if said consolidation had not taken place.”</p> <p>2. It is the further contention of the State, that in the absence of a law'or resolution of the General Assembly, authorizing tais action, the appellees have no legal standing in court, and have not the legal capacity to maintain this action. It is in effect and in reality a suit against the State, and such an action cannot be maintained against the State in the absence of legislative permission or authority. (Constitution, Sec. 231; Fitz v. McGee, 176 U. S., 516; Devine v. Harvie,- 7 Mon., 439; Tracy v. Horn-buckle, 8 Bush, 336; Rodman v, Musselman, 12 Bush, 356; Tate v. Salmon, 79 Ky., 540.)</p> <p>3. It is the contention of the State that the contracts of reinsurance entered into between the plaintiff company and the Kentucky Company, which is alleged to have been approved by Hon. John B. Chenault, then Insurance Commissioner, and the alleged approval of the policy holders, do not authorize the conclusion that any policy holder thereby surrendered his vested right under and by reason of his policy of insurance, to subject said securities to the payment of his claim when due, and in default of payment by the company.</p> <p>4. The Illinois Life Insurance Company stands in no better condition or occupies no better position than does the Mutual Life Insurance Company, so we may conclude that in the absence of a statute directing how the securities shall be disposed of, both the general and special demurrers should have been sustained, and we ask the Court so to hold, and direct the lower court to sustain both the general and' special demurrer to the plaintiff’s petition, and to direct the dismissal of the same because of the lack of legal capacity in the plaintiff to maintain this action.</p> <p>1. The case at bar is not brought for the purpose of subjecting the fund to the claim of a .creditor or to the judgment of a court, but, on the contrary, is an action in mandamus to compel an officer to perform a manifest duty.</p> <p>2. It is well established that for an action against a State officer to be an action against the State, it must seek some remedy against the State, as distinguished from the correction of a wrong done or threatened by a public officer merely in color of his office, or by virtue even of an unconstitutional statute.</p> <p>3. Where the suit does not proceed against the State in its organized political capacity, but proceeds in form and name merely against a State officer, it must, in order to be in fact a suit against the State, aim at depriving the State of some property or of 'some right, or at enforcing against the State through its officer some judicial relief.</p> <p>4. We submit that the judgment of the court below must be affirmed on the appeal, because the petition alleges,, and it is admitted, that the Mutual Life has not only re-insured all of its policy holders, but that each and every one of these policy holders has accepted a new policy and contract with the Illinois Life. Thus, its policy holders, since the re-insurance, no longer look to the Mutual Life but to the Illinois Life for the fulfillment of their contract.</p> <p>5. We submit to the court that whatever may be the effect of Sec. 200 of the Constitution on the question of jurisdiction, it has no controlling effect on the case at bar. The jurisdiction of the State courts over the deposit in question is not denied. On the contrary, it is the jurisdiction of the State court that is sought.</p> <p>AUTHORITIES CITED.</p> <p>Devine v. Harvey, 7 Mon., 439; Tracy v. Hornbuekle, 8 Bush, 336; Rodman v. Musselman, 12 Bush, 356; Tate v. Salmon, 79 Ky., 540; Fitz v. McKee, 176 U. S.,' 516; Ky. Stat. Sec. 649; United States v. Lee, 106 U. S., 196; Tindal v. Wesley, 167 U. S., 204; Hauns v. Central Kentucky Lunatic Asylum, 103 Ky., 575; Herr v. Central Kentucky Lunatic Asylum, 97 Ky., 458; Gross v. World’s Fair Commission, 105 Ky., 842; Pennoyer v. McConnaughby, 140 IT. S., 1; Ex-parte Tyler, 149 U. S., 164; Reagan v. Farmer’s Loan & Trust Co., 154 U. S., 388; Starr v. Railway, 110 Fed., 7; Prout v. Starr, 188 U. S., 543; Baldwin v. Shine, 84 Ky., 503; Baldwin v. Hewitt, 88 Ky., 673; German Security Bank v. Coulter, Aud., 113 Ky., 577; Louisville City Nat. Bank v. Coulter, 113 Ky., 584; Traynor v. Beckham, Governor, 35 Rep., 383; Lucas v. Hager, Aud., 36 Rep., 710; Marbury v. Madison,</p> <p>1 Cranch, 170; Ky. Stat. See. 657; 648; Constitution Sec. 300; Davis v. C. & O., 116 Ky., 144; O. & M. R-. R. v. Willis, 1 Black (U. S.), 386; Railroad v. Whitton, lá Wall, 383; Muller v. Dows, 94 TI. S.; Nashau R. Co. v. Lowell R. R. Co., 136 U. S., 357; St. L. Ry. v. James, 161 U. S., 555; Southern Ry. v. Allison, 190 U. S. 336; Dodd v. Louisville Bridge Co., 130 Fed., 195-6.</p>

<p>Case 6. — ACTION BY J. H. WORTEN AGAINST THE CITY OP PADUCAH TO ENJOIN THE COLLECTION OP CERTAIN TAXES. —</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reid, Circuit Judge.</p> <p>Judgment for Deft. Plff Appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. That part of the charter of cities of the second class which requires an assessment of real estate only once in four years, is constitutional. (Sec. 3174, Ky. Stat. 1899, Edition; Sec. 3174 Ky. Stat. 1903 Edition; Sec. 171, section State Constitution; Sec. 172, section State Constitution; Black on Constitutional Law, p. 59; Comth. v. Taylor, 101 Ky. 332-3; Johnson v. Higgins, 3 Met. 576; I Cooley on Taxation, pp. 604-5-6, 3rd Ed.)</p> <p>2. Taxes are not debts but burdens. (27 Am. & Eng. Ene. Law, 2nd Ed., 578, 580; Cooley on Taxation, p. 15; City of Louisville v. Louisville Gas Co., 15 R. 177.)</p> <p>3. The assessment, levy and collection' of taxes must conform strictly to the statute. (Lee v. Comth. 6 Dana, 311; Ormsby v. City of Louisville, 2 R .66; Dumesnil v. Same, 4 R. 14; City of Louisville v. Louisville Public Warehouse Co., 21 R. 867; Slaughter v. City of Louisville, 12 R. 63.)</p> <p>4. If the assessment is void tax cannot be collected. (Cooley On Taxation 332; Burroughs On Taxation 202; Clark v. Cummings, 1R. 419; Davidson v. Sterrett, 13 R. 266.)</p> <p>5. If the charter of the city as it was before the amendment is the law of this case then the Assessment is void because there was no ordinance authorizing it. (Sec. 3174, Ky. Stats. 1899 Edition; Cooley On Taxation, 3rd Ed., page 597.)</p> <p>1. As will be noted See. 3174 Ky. Stats, providing for a quadrennial assessment, pertains entirely to real estate, and, if constitutional, separates the method of assessing real and personal property, the old way of assessing personal property every year remaining in force.</p> <p>2. We submit that this discrimination makes the statute fatally defective and unconstitutional. Uniformity of taxation is now and always has been the recognized basis of taxation in Kentucky.</p> <p>3. Taxation must be uniform on all property subject to taxation unless specially exempted by and under the terms of the Con-, stitution. The Constitution is self executing.</p> <p>4. Whenever property becomes a part of the territorial taxing district, it becomes subject to taxation under uniformity provisions, of the Constitution no matter through what means or source it was acquired by the district.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Stat. (1903) Sec. 3174, 3181, 3403, 2983, 3177, 3178, 3176; State Constitution, Sec. 171, 172, 174 and 181; Holtzhauer v. City of Newport, 22 S. W., 752; Gillman v. Sheboygan, 67 U. S., (2 Black) 510; Primm v. Belleville, 59th Ills., 142; Levi v. City of Louisville, 30 S. W., 973, 97 Ky. 394; Marshall v. Donovan, 10 Bush, 681; Claybrook v. Owensboro, 16th Fed. Rep., 297; Trustees v. Louisville, 30 S. W., 620; Lancaster v. Clayton, 86 Ky., 393; Briggs v. Russellville, 99 Ky., 515; Pence v. Frankfort, 101 Ky., 534; Board of Councilmen v. Scott, 101 Ky., 615; Board of Councilmen v. Rarick, 102 Ky., 352; Richmond v. Gibson, 46th S. W., 702; Latonia v. Hopkins, 47th S. W., 248; Hughes v. Carl, 50 S. W., 852; Ryan v. Central City, 54 S. W., 2; Central Covington v. Park, 56 S. W., 650; Louisville Bridge Co. v. Louisville, 58th S.W., 598; Henderson Bridge Co. v. Henderson, 173 U. S., 592; Newport v. Masonic Temple Assn., 56 S. W., 405; Shuck v. Lebanon, 53 S. W., 655; L. & N. R. R. Co. v. Barboursville, 48th S. W., 985; Louisville R. Co. v. Comth., 49th S. W., 486; Barbour v. Louisville Board of Trade, 82 Ky., 645; South Covington and C. Str. Co. v. Bellevue, 49th S. W., 23; German Natl. Bank v. Louisville, 54 S. W., 732; Schuster v. City of Louisville, (opinion rendered last term of this Court.)</p>

<p>Case 7. — ACTION BY SALLIE CAIN AGAINST THE UNION CENTRAL LIFE INSURANCE COMPANY ON A CONTRACT OF LIFE INSURANCE. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>Bobert L. Stout, Circuit Judge.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A plea of limitation is a plea to the remedy and not to the merits. (Smart v. Baugh, 3 J. J. M., 364; Bulger v. Roche, 11 Pick. (Mass.) 36; Thayer v. Mann. 19 Tick., 635; Rrigham v. Bigelow, 12 Met., 268; Putnam v. Dike, 13 Gray, 535; Hancock v. Ins. Co., 114 Mass., 155; Shaw v. Silloway, 145 Mass., 503:; Jackson v. Holbrook, 36 Minn., 494; Christy v. Harlim, 49 Mich., 349; Sturgis v. Crowninshield, 4 Wheat., 122; Waltemire v. West-over, 14 N. Y., 16; Grant v. Burr, 54 Calf., 298; Buckingham v. Ludlum, 37 N. J. Eq., 187; Parker v. Grant, 91 N. C., 338; Goodwin v. Morris, 9 Or., 322; Campbell v. Maple’s Admr., 105 Pa. St., 304; Jordan v. Jordan, 85 Tenn., 561; Owen v. DeBauvier, 16 Mees. & W., 547; Dawkins v.. Perhyn, 6 Oh. Div., 318; In re Alison 11 Oh. Div.,284; Campbell v. Holt, 115 U. S., 620.)</p> <p>2. The former judgment pleaded as res adjudicata was not on the merits and is'no bar. (Birch v. Funk, 2 Met., 544; Pepper v. Donnelly 87 Ky., 259; Maize v. Bowman, 93 Ky., 205; VanFleet on Former adjudication §§38, 43, 47 and 53; Keller v. Stolzenbach, 20 Fed. Rep., 47; Jackson v. Elliott, 49 Tex., 62; Alabama R. R. v. Blevens, 92 Ga., 522; Wheeler v. Buckman, 51 N. Y., 391; McLaughlin v. McGee, 79 Pa. St., 217; Hammergin v. Schurmeier, 3 Fed., 77; Robinson v. M. & M. T. Co., 16 R. I., 217 and also 637; Knox v. Waldoboro 5 Me., 185; Reynolds v. Garner, 66 Barb., 310; Gunmer v. Trustees, 50 Wis., 247; Bitzer v. O’Brien, 107 Ky., 596.)</p> <p>3. The opinion in the Spinks ease 26 Rep. 1205, operates on the former judgment pleaded as a repeal of the limitation clause and revives the action. (Campbell v. Holt, 115 U. S., 620; Drury v. Henderson, 143 111., 320; Dyer v. Balfast, 88 Me., 443; Phenix Ins. Co. v. Pollard, 63 Miss., 663; Landa v. Obert, 78 Tex., 46; Bates v. Cullum, 177 Pa. St.,-637; Atty. Gen. v. Jochim, 90 Mich., 373; Hurlburt v. Clarke, 128 N. Y., 298 and the dissent in Currien v. Studley, 159 Mass., 26.)</p> <p>4. The cause of action is not the same. (On the question as to the former judgment being res judicata. Campbell v. Hunt, 104 Ind., 210; former judgment 83 Ind., 48; Insurance Co. v. Broughton, 109 U. S., 121, approved by this court in 87 Ky., 259; Kelly v.’Town Milan (Tenn.), 127 U. S. 149, agreed judgment no bar; Coit v. Bland, 22 Howard Practice; 2 dismissal under code a non suit Dexter v. Clarke, 22 How. Pr., 289, dismissal either before or after evidence no bar to second action; Wheeler v. Buckman, 2 Abb. N. S., 186, again same ease 35 How. Pr., 350, and affirmed in court of appeals, 51 N. Y., 391; Bitzer v. O’Brien, 107 Ky., 590, a dismissal of an appeal for want of jurisdiction on motion stating that ground is no bar to a second appeal, because not on the merits; Pendergrass v. Yost Mfg. Co., 76 Maine, 509; Yankey v. Sweeney, 85 Ky., 55; Apsden & Co. v. Nixon, 4 Howard (U. S. ), 499, held, a judgment and decree of dismissal of suit in Court of High Chancery was not on merits, although that had been adjudged in the Court of Exchequer, on the same judgment.)</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. The action instituted in the Franklin Circuit Court in March 1899, was upon the same cause of action as that upon which this action is based. (Lee v. Union Cent. Life Ins. Co., 56 S. W., 724; 22 Rep., 712; Lee v. Union Cent. Life Ins. Co., 41 S. W., 319; 19 Rep., G08.)</p> <p>2. The fact that the opinion rendered in case of Lee v. Ins. Co. was subsequently overruled, as authority, in nowise changes its effect upon the rights of the parties under it. (Thompson v. Banking Co. Ky., 55 S. W., 1080; 21 It., 1611; Thompson v. McNeal, Ky., 84 S. W. 1145; W. 27 R. 289; Simmons v. Samuels, Ky. 61 S. W. 17; 22 R. 1670; Hopkins v. Adam Roth Co. Ky. 49 S. W., 18; 20 R., 1227; Lewis v. Lewis, Ky., 12 S. W., 1134; 11 R., 413; C., N. O. & T.P. By. v. Pemberton, 9 Rep., 859; Jenkins v. Headley, Ky., 40 S. W., 461; 19 R. 290.)</p> <p>3. A judgment holding a claim barred by limitations is “upon the merits,” and constitutes a bar to any subsequent action upon the same cause. (Francis v. Wood, 81 Ky., 16; Wooley v. Bank. Co., 21 Ky., 527; Maize v. Bowman, 93 Ky., 205; Thompson v. Bank Co., 55 S. W., 1080; 21 Rep., 1611; Long v. L. & N. By., 54 S. W., 178; 21 Rep., 1151; Pepper v. Donnelly, 8 S. W., 441; 10 R., 140; Lawrence v. City of Louisville, 96 Ky., 595; Van Hoffman v. Quincy, 71 U. S. 4 Wall., 554; McCracken Co. v. Trust Co., 84 Ky., 344; Parkes v. Clift, 9 Lea, 524; People v. Preston, 62 Hun. 188 — aff. 131 N. Y., 644; Price v. Bonnifield, 2 Wyo., 80; Collins v. Ins. Co., 91 Tenn., 432.)</p>

<p>1. Slander — Actionable Words — The following- words: “Miss Nellie, when she was employed as a clerk in my store, dishonestly took away goods from the store that did not belong- to her; I found in her grip a lot of goods that she had dishonestly taken from my store and put in her grip, and I accused her of dishonestly taking them,” import a charge of larceny and are per se actionable as slanderous, under the weight of authority in this State.</p> <p>8. Defense — Denial in Part — Privileged Communication — Election —Error in Instructions — The defendant, by his plea, admitted he spoke the words alleged, except that he did not use the word “dishonestly,” and pleaded that the words spoken by him were spoken in confidence and were a privileged communication, and being required to elect whether he would stand by his denial of having charged the plaintiff with taking the goods “dishonestly” or upon his. plea of privileged communication, under protest elected to stand upon the latter defense. The-court, in its instructions, said to the jury that it was admitted by the pleadings that the defendant had spoken the words alleged in the petition, which included the word “dishonestly.” This was error and prejudicial to the defendant.</p> <p>3. Question for Court — It is the province of the court to decide whether a communication is or not privileged when the facts are not in dispute, but when in dispute the question is for the jury.</p>

<p>Case 9. — ACTION BY MORRIS GOFF AGATNST HIS GUARDIAN, THE SHELBY COUNTY TRUST CO.</p> <p>Appeal from Shelby Circuit Court.</p> <p>R. F. Peak, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant Appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>For appellant, we desire to submit to this Court three points or questions why this case should be reversed</p> <p>First, the case was prematurely submitted, tried, and determined, over the objections, motions, and affidavits of the appellant.</p> <p>Second, the appellant, as guardian, could not be charged with 6 per cent, interest at bi-ennial rests on the funds in its hands as such guardian regardless of the fact whether it made same or not. But it should only be charged with such sum as it actually made when it acted in good faith, with diligence, and made such investments in interest bearing securities as prudent business men exercise when investing their own means for like purposes.</p> <p>Third, if it were the law that appellant was liable for 6 per cent, on the funds in its hands, as guardian, whether same was made or not then-the judgment of the court is much too large.</p> <p>AUTHORITIES. CITED.</p> <p>Civil Code, See. 364; Smith v. Ferguson, 3d Metcalf, 434; Moses v. Bush, 3d Bush, 405; Gruel v. Smally, 1st Duvall, 358; Revised Statutes of Kentucky, Chap. 43, Art. 3, See. 10; General Statutes, Chap. 48, Art. 3, Sec. 10; Kentucky Statutes, Section 3035; Kentucky Statutes Section 4706; Fidelity & Safety Vault Co. v. Glover, 90th Ky-. 355; Durrett’s Grn. v. Commonwealth, 90th Ky. 313; Phillips v. Burton etc., 107th Ky., 88.</p> <p>CITATIONS AND REFERENCES.</p> <p>Ky. Statutes, sections 3035 and 3037; General Statutes, Chapter 48, Article 3, section 10 and 30; Revised Statutes, Chapter 43, Article 3, sections 10 and 13; Acts 1850, 1851, Vol. 1, sections 10 and 13; Maupin v. Dulaney, 5 Dana, 594; Karr’s Admr. v Karr, ■6 Dana, 6; Hagins v. McClure, 7 Bush 379; Tanner v. Skinner, 11 Bush, 130; Finnell'v.' O’neil, 13 Bush, 179; Campbell v. Golden, 79 Ky. 544; Abshire v. Roe, 113 Ky. 553; Hedges v. Hedges, 24 Ky. L. R. 2221; Phillips v. Burton, 21 ICy. L. R. 721; Offutt v. Devine, 21 Ky. L. R. 1500; Clark v. Anderson, 10 Bush, 105; Page’s Executor, v. Holmes, 82 Ky., 574; Pomeroy Equity, Vol. 2, section 1076.</p>

<p>Case 10. — ACTION BY THE COMMONWEALTH AGAINST THE LOUISVILLE TANK LINE CO. TO RECOVER A FRANCHISE TAX,</p> <p>Appeal from Franklin Circuit Court.</p> <p>Robert L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>CLASSIFICATIONS OF QUESTIONS DISCUSSED WITH AUTHORITIES.</p> <p>1. A private corporation, whose entire assets consisted of tank ears and who had leased these cars to another private corporation (yhieh latter corporation used the ears in sending its private products over various railroads) is not one of the class named in section 4077, Kentucky Statutes. It enjoys no special or exclusive privileges or franchise not allowed by law to natural persons and performs no public service, and is not a “like company” to those enumerated in that section. Consequently it is not liable for franchise tax. (Louisville Tobacco Warehouse Co. v.-Commonwealth, 106 Ky., 168; Providence Banking Co. v. Webster County, 108 Ky., 538; Aetna Life Ins. Co. v. Coulter, 115 Ky., 796.)</p> <p>3. A corporation owning tank ears, which has leased its cars to another corporation and is itself engaged in no business, is not liable for franchise tax.</p> <p>3. Where the State Board of Equalization described by section 4077 fails to give the 80 days’ notice required by section 4083, the assessment is void.</p> <p>4. Such an assessment would amount, if sustained, to taking property without due process of law. (Santa Clara County v S.P. R. R. Co., 18 Fed. 385; Hager v. Reclamation District, 101 U. S., 701.)</p> <p>The appellant, though a corporation, is not one of the twenty named in section 4077 Ky. Sts., but if the findings of the court are to have effect, it is conclusively settled that appellant was, during 1903, a corporation — a eompahy — organized under the laws of this Commonwealth, &c., engaged within this State in the business of acquiring, owning and renting out tank cars for profit, which cars are used by the lessee on railroads, in and out of this State, for hauling the oil of the lessee to whom it leased said cars 98 in number) in the transportation of its oil.</p> <p>This finding of fact brings appellant within the clefinitioia and intent of section 4077.</p> <p>To hold differently would work such inequality as is repugnant' to the constitution, Kentucky Statutes Secs. 4077, 4079, 4083 and 4171, 17 R. 387 (166 U. S. 150); 105 Ky. 472 (20 R. 1193); 106 Ky.¡ 165' (22 R. 1747).</p>

<p>1. Municipal Corporations — Grant of Franchise — Validity—Where a franchise was granted to a telegraph company without limit as to term, for the purpose of avoiding Const. Sec. 164, requiring municipalities before granting a franchise for a term of years to first advertise for public bids, such franchise was void.</p> <p>2. Same — Injunction—Right to Sue — Where plaintiff, a telephone company, having a legally granted franchise to cpsrate in a city, was a taxpayer, it was entitled to sue to restrain another company, operating without a valid franchise, from continuing to do business, though plaintiff’s franchise was not exclusive.</p> <p>3. Constitutional Law — Self-Executing Provisions — Franchises— Const., See. 164, declaring that, before granting a franchise to use the streets of a city “for a term of years,” the municipality shall first, after due advertisement, receive bids therefor publicly, etc., was self-executing, and did not require an ordinance of the general council of the city to make the same obligatory.</p>

<p>Case 12. — PROSECUTION AGAINST ARTHUR WESTRUP FOR INVOLUNTARY MANSLAUGHTER. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. Involuntary Manslaughter Neglect of Wife by Husband-Death of Wife — Where a husband neglects to provide necea saries for his wife", or medical attention in case of her illness, he will be guilty of involuntary manslaughter, provided ii appear that she was in a helpless state and unable to appeal elsewhere for aid, and that her death, though not intended nor anticipated by him, was the natural and reasonable consequence of his negligence.</p> <p>2. Criminal Intent — A Criminal intent is not necessary to conviction of one for involuntary manslaughter.</p> <p>3. Same — Childbirth—Aversion of Wife to Physicians — Refusal to Employ Them — Attention of Husband — Unsupported Verdict In a prosecution against a husband for involuntary manslaughter in neglecting to provide medical assistance for his wife in a ease of childbirth, where the evidence shows that he is a kind and affectionate husband.; that his wife had an aversion to physicians and refused to employ them, and had persuaded her husband to believe that their services were not necessary in diseases or in cases of childbirth, and that she had a woman in the house to wait on her, and that when suffering after the birth of her child he sent for a reputable physician against her objection, who came and treated her, we fail'to find any just or reasonable ground for'a verdict finding him guilty of involuntary manslaughter by reason of her death, and such verdict is set aside as wholly without support from the evidence.</p> <p>The grounds relied on for reversal are:</p> <p>. 1. Error of the Court in overruling demurrer to the indictment.</p> <p>2. In failing to sustain defendants motion ‡0 discharge him notwithstanding the verdict.</p> <p>3. In failing to peremptorily instruct the jury to find defendant not guilty.</p> <p>4. The court erred in instructing the jury.</p> <p>5.-The verdict is contrary to the law and evidence.</p> <p>6. Error in admitting incompetent evidence for the commonwealth and refusing competent evidence offered by defendant.</p> <p>7. Misconduct of commonwealth’s attorney in dosing argument to the jury.</p> <p>AUTHORITIES CITED..</p> <p>A. E. Eney. of Law, Yol. 21, page 199; Montgomery v. Com. 26 Ky. L. R., 350; Conner v. Com., 76 Ky., 719; Buckner v. Com., 77 Ky.,i 601; Mitchell v. Com., 78 Ivy., 219; Trimble v. Com., 78 Ky., 176; Bush v. Com., 78 Ky., 268; Bishop Crim. Law., Vol. 1, Sec. 314; Smith v. Com., 93 Ky., 318; 4 Blackstone, 192; Crim. Code, See. 122; Willson v. Com., 21 Ky. L. R., 1333; Rhodes v. Com., 21 Ky. L. R., 1070; Rhodes v. Com., 21 Ky. L. R., 1076.</p>

<p>Case 13. — PROCEEDINGS BY ANSE WARNER AGAINST THE FORD LUMBER & MANUFACTURING CO. TO CONDEMN LAND FOR A FERRY LANDING. —</p> <p>Appeal from Madison Circuit Court.</p> <p>W. W. Stevens, Special Judge.</p> <p>From a judgment awarding damages plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A ferry is a public highway and is established more for the public good than for the individual advantage of the grantee, (Farnam Water and Water Rights, Volume 1, pages 130 and 131; Brown v. Givens, 4 J. J. M., 30.)</p> <p>2. Courts take judicial notice of navigable streams. (King v. American Transportation Co., Federal Cases, No. 7787.)</p> <p>3. The Legislature has no authority to bestow upon a private individual,' a right or privilege in or to, any of the public highways so as to prevent the publie generally, from using or from exercising a copcurrent right. (Enors v. Hamilton, etc., 24 Wis., 658.)</p> <p>4. The charter of the appellee confers no power to use the waters of navigable streams for booms or storing logs.</p> <p>5. The right of the publie to the free, uninterrupted and unobstructed use of all navigable streams for any and all purposes of navigation is paramount to every other right, and every person is entitled to a reasonable use of the stream for purposes of navigation. No person or company of persons can have any exclu.sive right to use all, or any part of the stream to the exclusion of other proper or necessary uses. (Farnam on Water and Water Eights, Volume 1, pages 130 and 131; Brubaker v. Paul, 7 Dana, 428; Eichmond and Lexington Turnxflke Co. v. Eogers, 1 Duvall, 135; Williamsburg Boom Co. v. Smith, 84 Ky., 372; Alexander v. Asher, 10 Kentucky Law Eeporter, 935; Cincinnati Cooperage Co. v. Commonwealth, 11 Kentucky Law Eeporter, 629; Smith v. Atkins, 110 Kentucky 119).</p> <p>6. Navigable streams are highways, and the public easement is paramount to the private right of the riparian proprietor. (Commissioners v. Lumber Co., 116 N. C., 731; State v. Narrows Island Club, 100 N. C., 477; Gould on Waters, 2nd Ed., Secs. 80, 81, 107, 108 and 110; Angelí on Water courses, 541 A.; Vol. 16, Amer. and Eng. Ency. of Law, page 226; Sullivan v. Jenegeau, 21 Fla., 264; State v. Glenn, 7 Jones (N. C.), 321; Watts v. Tattawassee Boom Co., 56 Mich., 301; Doucette v. Little-falls Imp. and Nav. Co., 71 Minn., 206; Lee v. Holt, 5 Bliss, 338; Northwestern Packet Co. v. Atlee, 12 Amer. Law Eegister (N. S.), 561; Sheerlock v. Bainbridge, 13 Amer. Beport, 302; Haywood v. Knapp, 23 Minn., 431; Gerish v. Brown, 51 Maine, 256; MePheters v. Log Driving Co., 78 Maine, 329; Stevens Point Boom Co. v. Eiley, 44 Wis., 295, 46 Wis., 239.)</p> <p>7. The construction and maintenance of a boom upon navigable waters is contrary to law, and no damage is recoverable for any injury thereto. (26 TJ. S. Stat. at Large, 426-454, chap. 907, See. 10; U. S. v. Bellingham Bay Co., 176 TJ. S., 211.)</p> <p>8. The true test of damage for the taking of private property for public use is the value of the property taken, and the injury to the salable value of the property.</p> <p>9. The authority of a special Judge ends with the life of the term of court at which he was selected or appointed. (Ky. Statutes, Sec. 968 and 971; Childers v. Little, 96 Ky., 376; Small V. Eeeves, 104 Ky., 286.)</p> <p>10. The verdict for $21,000 is so excessive as to show that it was given as the result of passion and prejudice.</p> <p>11. It was misconduct for the jury to dine with appellee during the progress of the trial.</p> <p>12. The case should have been remanded to the County Court when the Circuit Court had passed upon the rights involved in the appeal.</p> <p>13. It was error to admit extraneous testimony as to the character of the men composing- the jury to determine whether the jury was influenced by passion and prejudice in making its verdict.</p> <p>14. It was error to permit members of the jury to testify that they were not influenced by passion and prejudice in arriving at their verdict, and'that they thought the verdict' proper.</p> <p>15. It was error to admit testimony attempting to connect a stranger with the litigation, when that connection was not material, even if established.</p> <p>16. It was error to admit testimony as to the personal relations between appellant and the president of appellee Company. The sole issue was one of damage, and that could not be affected by the personal feelings of the parties.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A ferry is a continuation of the road, and the grant of the franchise and its exercise by the grantee, relate to the landing and the collection of tolls, and not to the question of navigation. (United States v. The William Pope, 28 Fed. Cas., 629, 630; United States v. The James Morrison, 4 N. V. Leg. Obs., 333, 338; City of New York v. Starin, 12 N. E., 631, 632; Montgomery v. Mult Nomah Ry. Co.,.3 Pae., 435; Hackett v. Wilson, 6 Pae., 652, 653; Averett v. Brady, 20 Ga., 523, 529; 12 A. & E. Ency. of Law, 1089, and cases there cited; Broadnax v. Baker, 55 Am. Rep., 634, 636; Babcock v. Herbert, 3 Ala., 392, Am. Dec., 696; Gould on Waters, Sec. 88; Lewis v. Keeling, 1 Jones, 299.)</p> <p>2. The boom was not a purpresture or nuisance, but a lawful structure and in aid of navigation, for the destruction of which the appellee would be entitled to compensation (City of Boston v. Lecraw, 17 How., 433, (Marg. page); Revell v. People, 69 Am. St. Rep., 266; Berry v. Snyder, 3 Bu., 266; Miller v. Hepburn, 8 Bu., 332; Cruishank v. Wilmer, 93 Ky., 20; Williamsburg Boom Co. v. Smith, 84 Ky., 378; Shively v. Bowlby, 152, U.S., 40; Dutton v. Strong, 1 Blk. (U. S.), 31-33; Yates v. Milwaukee, 10 Wall., 504; I. C. R. R. Co. v. People of the State of Illinois, 146, U. S., 387-476, (L. C. P. Ed. page 1040); 24 A. , & E. Ency. of Law, 979, 981; Leverich et al., v. Mayor of Mobile et al., 110 Fed. Rep., 175; Moore v. Sanborme, 59 Am. Dec., 212; Lorman v. Benson, 77 Am. Dec., 444 (see note); Lewis v. Portland, etc., 22 L. R. A., 737; Parker v. West Coast Packing Co., 5 L. R. A., 62; Delaplaine v. The Chicago N. W. Ry. Co., 24 Am. Rep., 389; Ryan v. Brown, 100 Am. Dec., 157; Pound v. Tureh, 95-U. S., 459; Monongahela Navigation Co. v. United States, 148 U. S., 331-334; Thurman et al. v. Morrison et al., 14 B. M., 367, 375-6; Morrison v. Thurman, 17 B. M., 253; Smith y. Atkins, et al., 110 Ky., 119, 22 Ky. L. R., 1620; Weisse v. Smith, 3 Or., 445, (8 Am. Rep., 621); Cooley Const. Lim., 680; Ensminger v. The People, 47 111., 384; Carlson v. St. L. R. D. and I. Co., 41 L. R. A., 371; Coyne v. Miss. & R. R. Boom Co., 41 L. R. A., 494; Cincinnati Cooperage Co. v. Commonwealth, 11 Ky. L. R., 629-30; Gould on Waters, Sec. 181; Stephens Point Boom Co. v. Reilly, 44 Wis., 295, 46 Wis., 237, 49 N. W., .978; Nester et al. v. Diamond Match Co., 105 Fed. Rep., 570; Watts v. Boom Co., 52 Mich., 203, 208, 17 N. W., 809; Payne Lumber Co., Lim. v. United States, 55 Fed. Rep., 864-872; 4 A. & E. Ency. of Law, 710.)</p> <p>3. The verdict was not excessive, as the evidence brought before this Court will show.</p> <p>4. It was not improper, under the circumstances, for the jury to dine with Captain J. M. Thomas, and even if it were, it was waived by not objecting at the time, and by appellant’s counsel participating in the meal.</p> <p>5. The Sheriff gave the proper instructions to the jury, if any were required to be given, and no objection was made thereto or exceptions saved.</p> <p>6. The case should not have been remanded to the County Court for the issuance of the writ.</p> <p>7. It was not material, even if error, for the Special Judge to hear testimony as to the character of the men composing the jury, or to permit members of the jury to say they were not influenced by passion or prejudice in arriving at their verdict, or to say that they thought the verdict proper. (Ky. Stat., Sec. 1805.)</p> <p>8. The appointment of the Special Judge in this case was by the Governor, and does not come under the provisions of Section 968 of Kentucky Statutes, as construed by the cases of Childers v. Little, 96 Ky., 376, or Small v. Reeves, 104 Ky., 286; Small v. Reeves, supra, 971 Ky. Stat.; Act of March 22nd, 1902.)</p>

<p>Case 14. — ACTION BY THE COMMONWEALTH TO THE USE OF O. W. BRADY AND OTHERS AGAINST N. H. McNEW COUNTY JUDGE AND OTHERS INVOLVING THE QUESTION OF SALARIES OF CERTAIN COUNTY OFFICIALS.</p> <p>Appeal from Nicholas Circuit Court.</p> <p>Judgment for plaintiffs. Defendants appeal.</p>

<p>1. Railroads — Running Trains — Necessary—Rules—Sounding Whistle — Discretion of Company — Railroad companies may establish such reasonable rules for the conduct and regulation of their business, as appear to be necessary in the operation of trains and the discretion as to how many times the whistle shall be sounded and the character of the blasts should be lodged in the hands of those who are charged with responsibility for the failure to properly exercise it.</p> <p>2. Same — Frightening Horses — Injury to Persons Driving— Knowledge of Company of Danger — Liability—Under Kentucky Statutes, section 786, requiring that persons operating railroad engines shall ring the bell or sound the whistle continuously or alternately for fifty rods before reaching highway crossings, the company may either ring the bell continuously or blow the whistle continuously for such distance, and no liability can attach to it therefor, when the persons in charge of the train do not discover, and are under no duty to discover, that any person or animal is put in peril by reason of the noise made by such ringing or whistling, and it is immaterial whether the whistle is coarse, loud or shrill.</p>

<p>Case 16 — ACTION BY JOHN D. GASPER AGAINST THE LOUISVILLE HOME TELEPHONE CO. ETC.; FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, 2d Division.)</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The evidence showed no negligence on the part of the Louisville Home Telephone Co.</p> <p>2. Even if it be conceded for the purpose of argument that the Home Telephone Company’s line was not properly constructed, yet this was not the proximate cause of the injury to plaintiff.</p> <p>AUTHORITIES CITED.</p> <p>Setters Admr. v. City of Maysville, 114 Ky., 60; Simons v. Gregory, 27 Ky., L. R. 509; Winterbottom v. Wright 10 M. & W. 109; Goocllander Mill Co. v. Standard Oil Co. 27 L. R. A. 583-586; (63 Fed. 401-406.) Colev. German'Savings, etc., Society, 63 L. R. A. 416-420.</p>

<p>Case 17. — ACTION BY JAMES D. GILMAN AND OTHERS AGAINST JAMES B. STONE AND OTHERS INVOLVING TITLE TO LAND UNDER A DEVISE —</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for Defendants Plaintiffs appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In construing a will, the intention of the testator must control: — (Coleman, &c. v. Figg Trustees, 95 Ky. 49; Webb v. Webb, 12 B. M. 147; Daniel v. Thompson, 14 B. M. 663; Anderson v. Hall, 80 Ky. 91 Moran v. Dillehay, 8 Bush, 437; Baird v. Rowan, 1 Mar. 217; Moore v. 'Cross, 17 B. M. 740; Moore v. Howe, 4 Mon. 204; Burnside v. Wall, 9 B. M. 323; Hunt v. Johnson, 10 B. M. 334; Peynado v. Peynado, 82 Ky. 5.)</p> <p>O. Im construing a will, Chancellor must, as nearly as possible, place himself in the position of the Testator by considering the circumstances surrounding the Testator at the time of execution of will: (Price v. Hutchins, 98 Ky. 656.)</p> <p>3. Grandsou of Testator, I. D. Stone took a contingent remainder, subject to become complete on the happening of the contingencies námed in the will: (Bouvier’s Law Dictionary, title “Descendant”; Ward v. Crutcher, 15 B. M. 10; White’s Trustees v. White, 86 Ky. 606; Section 4843 Ky. Statutes; Herbert’s Ex., Herbert 85 Ky., 145,146,148 & 149; Coots v. Yewell, 95 Ky. 369; Newton v. Bapt. Theo. Sem., 24 Ky. Law R. 2310; Bohon v. Bohon, 78 Ky., 411; Miss Opie Tyler v. Jacob, quoted at page 486, 83 Ky.)</p> <p>4. Action to quiet title cannot be maintained unless the party has both actual possession and title: Section 11, Ky. Statutes.</p> <p>5. Real estate descends to heir, not to Administrator, and Administrator has no power to rent the same: (Thomasson v. Lucas, 4 Ky. L. R. 889; Eastiu v. Hatehitt, 15 Ky. L. R. 780.)</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>On the death of the testator Isaac D. Stone the title to the land devised in remainder passed to his son Davis H. Stone under-the fifth clause of his will or as his heir at law, or vested in Davis H. Stone’s child, and on his death descended to Davis Stone and his wife. The title was never in abeyance. Appellants could not inherit from Isaac D. Stone because they were not his heirs at law, Davis H. Stone was as his only child. (ICy. Stat. See. 4843; Herbert’s Gdn &c. v. Herbert’s ext. 85 ICy., 138; Coots v. Yeweli &c. 95 ICy., 369; ICents Com. Vol. 4 p, 357; Newton &c. v. Sou. Baptist Theo. Seminary 34 L. R., 3310.</p>

<p>Case 18 — ACTION BETWEEN GEORGE W. BRAMBLETT AND THOMAS F. HARGIS’ EXECUTRIX INVOLVING THE OWNERSHIP OP A POLICY ON THE LIFE OP THOMAS P. HARGIS. —</p> <p>Appeal from Jefferson Circuit Court, (Chancery Branch, 2d Dvision.)</p> <p>Samuel B. Kirby, Judge.</p> <p>Prom the judgment Bramblett appeals.</p> <p>CONCLUSION.</p> <p>We submit in conclusion the following propositions:</p> <p>1. The general assignments from the banks to Bramblett, in which Hargis himself united, covered this insurance policy and passed the right thereto to Bramblett.</p> <p>2. Inasmuch as this was a fully paid-up policy, about which there were no conditions, being thus simply an absolute promise to pay a specific sum of money on the death of Judge Hargis, it was legally assignable without regard to insurable interests on the part of the assignee in the life of the assignor.</p> <p>3. But if the insurable interest was necessary, then it did exist in this case because Bramblett was a creditor of Judge Hargis at that time and until the death of the latter.</p> <p>4. If a policy passed under this assignment, and if an insurable interest was necessary to uphold the validity of the assignment, yet as the assignment was not by way of mere pledge, but was absolute, Mr. Bramblett’s recovery is not limited to the amount of the debt; but, inasmuch as there was no such disproportion between the policy and the debt as to' show it to be a mere wagering transaction, the assignee is entitled to recover the full amount of the policy.</p> <p>5. If the court should hold that this policy did not pass under that general assignment in which Hargis united, yet inasmuch as Bramblett holds the legal title to the policy on the face of the papers, it having been regularly assigned by Hargis to the bank and by the bank to Bramblett, and as the representative of Hargis is now in a court of equity in effect demanding the surrender of the policy or its proceeds, and as that estate is undoubtedly a debtor to Bramblett on account of the old surety debt, the court 'should under these circumstances, even if the policy did not pass under the general assignment', require the Hargis estate to pay this surety debt to Bramblett before being allowed to ■withdraw, that policy or its proceeds out of the court.</p> <p>AUTHORITIES CITED.</p> <p>Amick y. Butler, 111 Ind. 557 Ulrich v. Reinohl, 143 Pa. St. 253 &c.; McHale v. McDonnell, 175 Pa. St. 632; Leaf v. Leaf, 92 Ky. 166.</p> <p>POINTS AND AUTHORITIES.</p> <p>We beg to submit in conclusion:</p> <p>(1) That the chancellor has found as a question of fact that the policy in question did not pass under the assignment from the Kentucky National Bank, and this finding, not being in contravention to the evidence, will not be disturbed by this court</p> <p>(2) That the title of the bank to the policy in question was that of pledgee only, and the debt for which it was pledged having been satisfied, it could not sell or dispose of same</p> <p>(3) That an insurable interest was necessary to support the assignment of the policy to Bramblett.</p> <p>(4) That the demurrer and motion to strike out the amended pleading of Bramblett was properly sustained.</p> <p>We believe the court will find no error in the record presented and ask that the judgment be affirmed.</p> <p>AUTHORITIES.</p> <p>Basye v. Adams, 81 Ky., 368; Lee v. Mutual Life Ins. Co. of N. Y., 26 Ky. L. Rep., 577; Barbour’s Admr. v. LaRue, 106, Ky., 552; New York Life Ins. Co. v. Brown’s Admr., 23 Ky. L. Rep., 2070; Oaudell v. Woodward, 96 Ky., 646; Beard v. Sharp, 100 Ky., 606.</p>

<p>1. Corporations — Insolvency—Creditors—Action Against Shareholder — It is not necessary for a creditor of an insolvent corporation before suing a shareholder of stock therein to recover from him his unpaid subscription for stock, that such creditor shall have prosecuted the corporation to insolvency, where it is alleged that the corporation was insolvent and had no property or assets of any kind.</p> <p>2. Proceedings — Necessary Parties — Several Liability of Stockholders — A creditor' of an insolvent corporation may proceed against one or more delinquent stockholders to recover the amount of his debt without an account being taken of the other indebtedness and without bringing in other ’stockholders for contribution or making them parties. The liability of each stockholder is several and is fixed by the amount of his unpaid subscription and no further.</p> <p>3. Accepting Stock — Presumption of Ownership — Where a person accepts and holds a certificate of stock in a corporation, the law assumes that he is the owner thereof and implies a promise on his part to pay any unpaid installments.</p> <p>4. Law of Foreign State — Agreement of Counsel — Where it is agreed by counsel that all the laws relating to a certain State or Territory may be considered as evidence in the case on trial, extracts from the laws of such State or Territory may be considered as evidence thereof on the trial.</p> <p>5. Jurisdiction — In an action brought by creditors whose claims are large enough to give the court jurisdiction to subject a trust fund held by a stockholder to the payment of their debts, other creditors whose claims are below the jurisdicttion of the court may join in the action and have their claims adjudicated therein.</p> <p>6. Liability of Stockholder — Where Enforced — The liability of a stockholder to the creditor of a corporation for the balance of his subscription, rests in contract, and may be enforced in any State where jurisdiction of the stockholder can be obtained. The creditor is mot limited to the State where the corporation was created.</p> <p>7. Same — The liability of the shareholder of a corporation is determined by the laws of the State where it was organized, and such liability may be enforced in this State where the laws of this State are not in conflict with the State im which the corporation was created.</p> <p>8. Evidence — Admissibility—There is mo law which forbids a creditor of a corporation who performs labor or service for it from testifying as to the validity of his claim im an action against a deceased shareholder in the corporation.</p>

<p>Case 20 — PROSECUTION AGAINST C. S. PRICE FOR A VIOLATION OP A CITY ORDINANCE PROHIBITING INFANTS OR FEMALES TO DRINK IN HIS SALOON OR TO REMAIN THEREIN OVER FIVE MINUTES. —</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. F. Cordon, Circuit Judge.</p> <p>From a judgment of the Circuit Court, rendered on appeal from the Police Court, dismissing the prosecution the Commonwealth appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An ordinance of a city of the fourth class which prohibits women, excepting certain classes, and except in eases of reasonable necessity, to visit or drink in a saloon is not unreasonable, and not unconstitutional as abridging the privileges and immunities of citizens. (Dunn, etc., v. Commonwealth, 20 K. L. R., 1649; ex-parte Smith, 38 Cal., 702 Re Consadine, 83 Fed. Rep., 157.)</p> <p>2. Burden can be placed on defendant in certain instances. (Dunn, etc., v. Commonwealth, 20 K. L. R., 1649.)</p> <p>3. Legality of an ordinance of city of fourth class may be tested by appeal by either party from Police Court to Circuit Court,,and from thence to Court of Appeals, in eases where fines of twenty dollars or less are imposed or authorized. (Ky. Stat., section 3519; Dunn, etc., v. Commonwealth, 20 K. R. L., 1649.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The summons did not state a public offense and the demurrer was properly sustained. (Crim. Code, Sec. 311 and 27; Comth. v. Leak, 76 S. W., 368; Connor v. Comth., 13 Bush, 714; Comth. v. Hildreth, 33 S. W., 838; Hurd v. Comth., 15 R, 332.)</p> <p>2. The ordinance in question is invalid. (Gastineau v. Comth., 108 Ky., 473, 56 S. W., 705; McNulty, etc., v. Toopf, etc., 75 S. W., 258; Louisville v. Wehmhoff, 76 S. W., 880; Ordinances City of Madisonville, Art. XI., Secs. 11, 17, 15, 18 and 54.)</p>

<p>Case 21. — ACTION BY L. R. FIGG AND OTHERS AGAINST JAMES A. HOLT TO ENFORCE A LIEN FOR IMPROVING' AN ALLEY. —</p> <p>Appeal from Jefferson Circuit Court, (Chancery Branch, 2d Division.)</p> <p>Sam’l B. Kirby, Judge.</p> <p>Judgment for Plaintiffs. Defendant appeals.</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES.</p> <p>1. There is no common law liability upon lot owners to pay for their improvement of an adjacent street. (City of Henderson v. Lambert, 14 Bush, 25.)</p> <p>2. Statutes authorizing assessments for street improvements are to be strictly construed against those asserting claims under them. (City of Henderson v. Lambert, supra.) Every provision of the statute charter, or ordinance looking to such assessments must be strictly complied with. (McGrath v. Trustees of Shelbyville, 13 Ky. Law Rep., 588; Dillon Mun. Corp., Vol. 2, Section.)</p> <p>3. The only statute that could apply to this case is See. 2833, Kentucky Statutes, which has not been observed. Two modes of assessment are therein provided for. (1) If the territory assessed be a “square” as defined in the statute, the board of public works mqst apportion the cost among the owners of lots in each fourth of a square. This part of the statute has no application as the territory herein-in question is not bounded on all sides by principal streets. (2)If the contiguous territory be not defined into squares an ordinance of the council must “state the depth on both sides fronting the improvement.” There was no such ordinance in this assessment. The statute construed in Fidelity T. & S. V. Co. v. Voris’ Exor., 82 Ky. Law Bep., 1875.</p> <p>4. The chancellor may not exercise legislative functions and provide for a situation not covered by the statute. (Button' v. Kremer, 24 Ky. Law Bep., 1193.)</p> <p>5. If not in a public square the assessment of the property is made on the theory of benefits to abutting property. (Fidelity T. & S. V. Co. supra.)</p> <p>6. The Court of Appeals has never sustained an apportionment by treating as a street ground which might be a street on the theory that if opened or dedicated or condemned the territory would constitute a “square.” (Cooper v. Nevin, 90 Ky., 85, and Dumesnil v. Shanks, 97 Ky., 354, explained and distinguished from this case.)</p> <p>7. Where defendant in an apportionment suit claims that under no legal condition could his property be assessed for the particular improvement he is not called upon to show that any method of assessment other than the one pursued would be less onerous or more equitable.</p>

<p>Case 22. — ACTION BY CITY OF LOUISVILLE AGAINST THE CONTINENTAL TOBACCO CO. TO RECOVER TAXES FOR CERTAIN YEARS. —</p> <p>Appeal from Jefferson Circuit Court, (Chancery Branch, 1st Division.)</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p>

<p>Contracts — Illegality—Restraint of Trade — A contract between competing proprietors of hotels in a town, whereby one of them agreed to keep his hotel closed for three years, reserving the right to rent the same for offices and to roomers, and whereby the other agreed to pay a specified sum monthly to the former during the three years, is in restraint of trade and illegal, since-a hotel is a quasi public institution, and an agreement by a proprietor not to perform a duty imposed on him by law is in contravention of public policy.</p>

<p>Case 24. — PROSECUTION AGAINST THOMAS STOUT, JR., POR MURDER. —</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court erred in omitting the word “feloniously” from the instruction to the jury defining murder. (Clark v. Commonwealth, 111 Ky., 463; Kaelin v. Commonwealth, 80 Ky., 302; Tutt v. Commonwealth, 104 Ky., 299; Omer v. Commonwealth, 15 Rep., 674; Cook v. Commonwealth, 72 S. W., 284; Brooks v. Commonwealth, 16 Rep., 356; Montgomery v. Commonwealth, 84 S. W., 243; Stroud v. Commonwealth, 14 Ky. L. R. 179.)</p> <p>2. The Court erred in limiting the right of self-defense so as to exclude such right except where a party assaulted believes himself to be in danger. (McKinney v. Commonwealth, 26 Rep., 565.)</p> <p>3. The failure to give the full law of self-defense is reversible error. (Munday v. Commonwealth, 81 Ky., 233.)</p> <p>4. The Court erred in permitting appellant to be introduced in rebuttal as to matters in chief, and in permitting John Thomas to be admitted in rebuttal to testify as to matters in chief. (Williams v. Com., 12 Ky. L. R., 525; Abbot v. Com., 23 Ky. Rep., 226; Mosley v. Com., 22 Rep., 529.)</p> <p>5. The Court erred in refusing to permit appellant in rebuttal to contradict John Toohey by the testimony of Mary A. Chiles.</p> <p>1. The rule that “every improper instruction should be taken as prima facie prejudicial to the accused” is not applicable to merely technical defects arising out of the omission to use strictly accurate terms of art. (Barnett v. Commonwealth, 84 Ky., 449.)</p> <p>2. Before the court is authorized to reverse it is enjoined by the law to be satisfied that the substantial rights of the accused have been prejudiced. (Cr. Code, See. 340, 353.)</p> <p>3. Counsel insists that instruction No. 3 was wrong because it made the defendant’s right to shoot deceased entirely dependent upon his belief as to his danger, without reference to his actual danger. Without going into analysis of the language used by the court, which we contend is proper and correct, we simply refer the court to the following:</p> <p>AUTHORITIES.</p> <p>Robinson’s Ky. Cr. Law & Procedure, Vol. 1, Sec. 163; Hut-sell v. Commonwealth, 25 R., 262 Rowsley v. Commonwealth, 25 R., 845; Pennington v. Commonwealth, 24 R., 321; Howard v. Commonwealth, 24 R., 612; Thacker v. Commonwealth, 24 R., 1584.)</p>

<p>1. Taxation — Retrospective Assessment — Presumption—It may be conceded that the legislature has power to restrospectively assess property for taxation, but the intention so to do is never presumed. On the contrary the presumption is that all taxing statutes are prospective unless the opposite intent is expressly shown by the language used.</p> <p>2. Same — Corporate Franchises — Municipal Taxation — Fiscal Year —An act of the legislature, approved Nov. 11, 1893, authorized the assessment of corporate franchises for State and municipal taxation. When the fiscal year of the city of Louisville began on the first day of September and ended on the 31st day of August, of each year, there being nothing im the act to indicate a retrospective assessment, a franchise tax can not be assessed for the fiscal year beginning September 1, 1892, and ending August 31, 1893.</p>

<p>Case 26. — ACTION BY W. H. DYER AGAINST THE CITY OP NEWPORT TO ENJOIN THE EXECUTION OP A CONTRACT TO SUPPLY WATER TO AN ADJACENT MUNICIPALITY. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for Defendants. Plaintiff appeals.</p> <p>1. We question the power of the trustees to grant the franchise because the power to establish and maintain water-works is not expressed either in the original charter or in the general provisions for the government of towns of the sixth class.</p> <p>2. The carrying on of the business of establishing or extending its own water-works beyond the city limits and supplying other municipalities and their inhabitants or other outside individuals or corporations with water for profit is extra-municipal and is not within the powers of city officials, unless that particular power has been expressly granted (and not revoked) by the legislature.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec 2741, sec. 3660, sec. 3704 sub-sec. 7; City of Covington v. District of Highlands, 24 R., 436; Dillon on Municipal Corporations, 4th Ed., secs. 656, 680, 691, 697, 89, 90, 91; Constitution of Ky., sec. 166; Kentucky Stat., sec. 3040; Ky. Stat., sec. 3058, sub-sec. 4; Henderson v. Young, 26 Ky. L. R., 1152.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The District of Clifton under its charter had authority to pass the ordinance providing for the sale of the franchise for supplying the District of Clifton and its inhabitants with water. (White v. Commonwealth, 92 South Western Reporter, page 285, May 16.)</p> <p>2. The charter of the District of Clifton is in full force and effect, and never been repealed by the new Constitution or any Act of the Legislature. (City of Covington v. District of Highlands, 68 South Western Reporter, 669; Board of Education of Hawesville v. Louisville, H. and St. L. R. R., 62 South Western Reporter, 1126.)</p> <p>PROPOSITIONS DISCUSSED.</p> <p>1. The City of Newport has the power to supply an adjoining municipality with water from the city’s water system and to purchase a franchise from said municipality for said purpose. (Sessions Acts 1871, Yol. 1, page 53; Kentucky Statutes, secs. 3040, 3058, sub-section 4, 3143; City of Newport v. Commonwealth, K. L. R., 21, page 42; Henderson v. Young, 26 K. L. R-., 1152.)</p> <p>2. The District of Clifton has the power to pass an ordinance providing for the sale of a franchise to occupy its public ways for the purpose of laying water pipes to supply its inhabitants with water. (Session Acts 1887-8, page 255; Witcher v. Holland W. W. Company, 20 N. Y. Supp., 560; Rogers v. City of Wickliffe, 29 Ky. L. R., 587.)</p>

<p>1. Constitutional Law — Police Power — Schools for White and Colored Persons — Act March 22, 1904, p. 181, e. 85, in so far as it prohibits and imposes a punishment for maintaining and operating an institution of learning in which white and colored persons may be taught at the same time and in the same place, is within the police power, and valid.</p> <p>2. Same — Act March 22, 1904, p. 181, e. 85, in so far as it prohibits maintenance by any institution of learning of Separate and distinct branches for white and colored persons less than 25 miles distant from each other, is unreasonable, and not within the police power.</p> <p>3. Same — Equal Protection of Law — Due Process of Law — Act March 22, 1904, p. 181, e. 85, prohibiting the maintenance and operation of any institution of learning where persons of the white and negro races are both received, is not a deprivation of equal protection of the law, or of due process of law.</p> <p>4. Same — Vested Rights — The right to teach white and negro children in a private school at the same time and place is not a property right.</p> <p>BARKER, J., dissenting in part.</p>

<p>Case 28. — ACTION BY GIBSON PERKINS AGAINST THE CHESAPEAKE & OHIO RAILWAY CO. FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Lawrence Circuit Court.</p> <p>S. G. Kinner, Circuit Judge.</p> <p>Judgment for Defendant. Plaintiff appeals.</p>

<p>Deeds — Conveyance by Father to Infant Son — Life Estate to Son-Remainder to Descendants — Construction—Estate Conveyed.— Where a grantor by deed conveyed to his infant son a life estate in land, with remainder to his descendants, reserving in the deed possession to the grantor until the grantee became twenty-one years of age, there was a contingent remainder created by the deed. The title was in the grantor until his death and upon his'death passed to his son and only heir, who thereafter died childless, unmarried and intestate, therefore the contingency never did happen which would have passed the title in remainder, consequently at the death of the grantee the title to the land descended to his heir at law.</p>

<p>Case 30. — ACTION BY THE COMMONWEALTH FOR THE USE OF THE COMMON SCHOOLS OF GARRARD COUNTY, AGAINST H. C. REID AND OTHERS SURETIES ON THE BOND OF GINN & CO., PUBLISHERS OF SCHOOL BOOKS. —</p> <p>Appeal from Lincoln Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for Plaintiffs. Defendants appeal.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, sec. 4377, 4424; Hardin v. Owings, 1 Bibb., 214; Wallace v. Hall, 2 Dana, 27; Calloway v. Commonwealth, 4 Bush, 383; Lowe v. Phelps, 14 Bush, 642; Commonwealth v. Yarbrough, 94 Ky., 496; Fletcher v. Leight, Barrett & Co., 4 Bush, 303; Home v. Mitchell, 7 Bush, 131; Louisville Ry. Co. v. Masonic Sav. Bank, 12 Bush, 416; 20' Am. & Eng. Ency. of Law, 1211, 1212.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, 1903, sec. 4424 , 4423; Commonwealth v. Ginn & Co., Ill Ky., 110; 23 Ky. L. Rep., 521; 63 S. W. 467; Commonwealth v. Ginn & Co., 85 S. W. Rep., 689; 27 Ky. L. Rep., 486; The State, on the relation of Griswold, Auditor, v. Blair and others, 33 Ind., 313; Johnson, etc., v. Logan County, 111 Ky., 699; 3d Ky. L. Rep., 988; American Book Company v. Wells, County Superintendent, 83 S. W. Rep., 633; 36 Ky. L. Rep., 1159; 33 Am. & Eng. Enc. of Law, p. 458; Johnson, etc., v. Ginn & Co., 30 Ky. L. Rep., 1475.</p>

<p>Case 31. — APPLICATION TO THE APPELLATE COURT FOR MANDAMUS BY THE COMMONWEALTH ON THE RELATION OF PAUL C. BARTH AGAINST J. W. McCANN, JUDGE OF THE POLICE COURT OF THE CITY OF LOUISVILLE TO COMPEL HIM TO TRY CERTAIN CRIMINAL OFFENSES. —</p> <p>Writ ¡of mandamus denied by equally divided Court.</p> <p>PROPOSITIONS.</p> <p>1. Section 1303 is valid and should be enforced against all persons, regardless of whether they do or not observe some other day than Sunday as their Sabbath.</p> <p>2. That the statute embraces two separate offenses.</p> <p>3. That a penal officer may arrest without a warrant where either offense is committed in his presence.</p> <p>4. Where a person has been once arrested and bailed, reopens the bar room and again sells, he is guilty of new offenses and may be again arrested.</p> <p>5. Each sale of liquor, whether to the same person or to different persons is a separate offense.</p> <p>AUTHORITIES CITED.</p> <p>Pennington v. Woolfolk, 79 Ky., 15; Hindman v. Toney, 97 Ky. ,■ 415-420; Weaver v. Toney, 107 Ky., 426; Shackelford v. Patterson, Judge, 110 Ky., 864; Hargis v. Parker, 27 K. L. R., 443;.Com-monwealth v. Jones, 82 S. W., 643 (S. C., 26 K. L. R., 867); Jenkins v. Berry, 83 S. W., 594 (S. C., 26 K. L. R., 1141); Hoke v. Commonwealth, 79 Ky., 568; Vance v. Field, 89 Ky., 183; L. & N. R. R. Co. v. Miller, 113 Ky., 468; Kelly v. Toney, 95 Ky., 388; Schmidt v. Mitchell, 95 Ky., 342; Shoemaker v. Hodge, 111 Ky., 436; Commonwealth v. Newell, 114 Ky., 420; 13 Encyclopedia of Pleading and Practice, p. 537; High on Extraordinary Remedies, see. 650; Ex Parte Parker, 120 U. S., 737; Ex Parte Parker, 131 U. S., 221; Conway v. Fulton, 23 Gratton (Va.), 579; State -v. Smith, 68 N. E., 1045 (69 Ohio St., 196); State v. Reeves, 32 Southern Rep., 814 (44 Fla., 179); August Eisner v. State, 30 Tex., 524; 2nd McClain Crim. Law, see. 1264; 11 Am. & Eng. Ene. of Law, 685, 1 ed.; State v. Small, 31 Mo., 197; Crim. Code, secs. 26, 36, <46; Ky. Stat., sees. 2934, 4102, 4204, 4208; Anderson v. Commonwealth, 13 Bush, 488; Stickrodv. Commonwealth, 86 Ky., 290; Burnside v. Lincoln County Court, 86 Ky., 427; Mego wan V. Commonwealth, 2 Met., 4; Connor v. Commonwealth, 13 Ky» L. Rep., 403.</p> <p>1. We think it is now too well established to be longer the subject of dispute that a court of merely appellant jurisdiction may correct errors only by virtue of those proceedings which in the course of the common law bring before it the parties to be affected and the record to be corrected. A writ of mandamus is not an appellate but an original writ, and may never be used in the exercise of merely appellate jurisdiction except in aid of a case on appeal, or where necessary to enable the court to exercise its appellate jurisdiction. (Marbury v. Madison, 1 Cranch, 175; Daniel v. County Court of Warren, .1 Bibb, 496.)</p> <p>2. It is a fundamental principle controlling this writ that it will mot be issued where there is any other remedy, and under constitutional provisions like sec. 110 it never issues, even to correct an abuse of jurisdiction, when there is an appeal to, or a right in an inferior court to correct the abuse. A great number of authorities on this proposition is collected in the Note to State v. Johnson, 51 L. B. A., at 107, 109.</p> <p>AUTHORITIES CITED.</p> <p>Marbury v. Madison, 1 Cranch, 175; Daniel v. County Court of Warren, 1 Bibb, 496; Constitution, see. 110; Arnold v. Shields, 5 Dana, 19; Pennington v. Woolfolk, 79 Ky., 15; Hoke v. Comm., 79 Ky., 568; Comm. v. Newell, 114 Ky., 420; Koheen v. Myers, 18 B. Mon., 423; Louisville Industrial School v. City of Louisville, 88 Ky., 591; Vance v. Field, 89 Ky., 178; Hindman v. Toney, 97 Ky., 415; Scott v. Tully, 106 Ky., 69; Weaver v. Toney, 107 Ky., 419; ■McCain v. City of Louisville, 23 R., 588; Blair y. McCann, 23 R., 1227; Atkinson v. Reilly, 2,3 R., 731; Terry v. Baker, 23 R., 2406; Shackelford v. Patterson, 110 Ky., 864; Schumaker v. Hodge, 111 Ky., 440; L. & N. v. Miller, 112 Ky., 468; Campbellsville Telep. Co. v. Patteson, 114 Ky., 57; Clark County v. Warner, 116 Ky., 801; Comm. v. Jones, 26 R., 867; Jenkins v. Berry, 26 R., 1141; Hargis v. Parker, 27 R., 442; 2 Spelling.on Extraordinary Relief, secs. 1388, 1389, 1393; High on Extraordinary Remedies, secs. 173, ,189, 190, 252, 257; State v. Houston, 40 La. Ann., 393; 4 Southern, 50; Ky. Statutes, sec. 2911.</p>

<p>Case 33. — PROSECUTION AGAINST JOE ADAMS FOR PERJURY. —</p> <p>Appeal from Boyle Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. It was necessary for the indictment to allege that the grand jury before which appellant was sworn had under investigation some specific public offense.</p> <p>3. In an indictment for false swearing it is extremely important to allege that the accused swore to that which is false, knowing it to be false.</p> <p>3. To convict appellant on a charge of false swearing, it was necessary to have the testimony of two witnesses, or one witness and corroborating circumstances.</p> <p>AUTHORITIES CITED.</p> <p>Ford v. Commonwealth, 16 Ky. Law Rep., 528; Kerfoot v. Commonwealth, 89 Ky., 175; Shackelford v. Commonwealth, 25 Ky. Law Rep., 1830; Commonwealth v. Taylor, 96 Ky., 394; Miller & Smith v. Commonwealth, 78 Ky., 15; Greenleaf on Evidence, vol. 1, see. 257 and note; same, sec. 259; United States v. Wood, 14 Peters, 440 and 441; (Robertson’s Kentucky Criminal Law and Procedure, vol. 1, sees. 361 and 362; Kentucky Statutes, see. 1174; Kentucky Crirhinal Code, see. 242.</p> <p>1. We think the indictment is good. It sets forth the offense with sufficient certainty to apprise the defendant of the nature of the accusation upon which he is to be tried, and to constitute a bar to any subsequent proceedings for the same offense.</p> <p>2. The indictment sets out the date of the offense, the nature and style of the case in which the defendant testified, the court in which the judicial proceedings were pending, the officer who administered the oath, with accompanying averments as to the' jurisdiction of the one and the authority of the other to do what each did, the specific subject matter of the alleged false swearing, with special averments of its falsity, and the knowledge on defendant’s part of its falsity.</p> <p>AUTHORITIES CITED.</p> <p>Robertson Criminal-Law & Procedure, vol. 1, sec. 361; Ross v. Comm., 14 Ky., 590; Kerfoot v. Com., 89 Ky., 174; Goslin v. Com., 28 Ky. L. R., 683.</p>

Case 33. — ACTION BY CLARENCE STEELE AGAINST THE SOUTHERN RAILWAY IN KENTUCKY EOR DAMAGES FOR PERSONAL INJURIES. — Appeal from Mercer Circuit Court. W. C. Bell, Circuit Judge. Judgment for Plaintiff. Defendant appeals. 1.Under the pleadings in this case the burden was clearly upon the appellant railway company, and it should have been allowed to make the concluding argument to the jury. 3.

<p>Case 34. — PROCEEDINGS TO PROBATE THE WILL OP L. M. PAINE, DEC’D. APPEALED BY DANIEL BROOKS AND OTHERS, CREDITORS OP HEIRS OP DECEASED, PROM THE JEPPERSON COUNTY COURT TO THE JEPPERSON CIRCUIT COURT. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, 3d Division.)</p> <p>Matt 0 ’Doherty, Judge.</p> <p>Prom a judgment sustaining a demurrer to the statement of the creditors they appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Statutes involved. (Sections 1907, 4833, 4850, 4856, 4861 Kentucky Statutes; General Statutes, secs. 37, 37, ch. 113, Ed. 1881; Stanton’s Code, see. 519; Rev. Stat., sec. 38, ch. 106; 3 Morehead & Brown, p. 1543.)</p> <p>3. A creditor of an insolvent heir of the testator is a proper party to contest the probate of the will. (Davies v. Leete, 111 Ky., 666, and cases cited.)</p> <p>3. Any creditor whose debt existed at the time of probate, who subsequently- gets judgment and levies his execution, has such an interest as entitled him to contest the probate of a revoked will. (Smith v. Pickwick, 16 Pick Mass., 264; Ed Languevin’s Will, 45 Minn., 428; Watson v. Alderson, 146 Mo., 333; S. C. 69 Am. St. Rep., 615; Mower v. Verplancke, 105 Mich., 398.)</p> <p>4. Legal insolvency is established in Kentucky by judgment and return of no property. (Napper v. Yeager, 79 Ky., 241; 80 Ky., 600; See notes to sec. 1907 Ky Stat.; Morehead’s Practice, p. 707, and cases cited there; Freeman on Executions, 3 ¡rol., see. 428-230.)</p> <p>By securing a judgment against an insolvent heir and levying execution, after probate of the ancestor’s alleged will, upon the property sought to be devised, does a creditor of such heir, who •by reason of the will takes less than he would under the statutes of descent and distribution, thereby become a person so “interested” under the statute of'wills as to be permitted to contest the ancestor’s will because it was revoked by marriage after its execution?</p> <p>AUTHORITIES CITED.</p> <p>Watson v. Alderson, 146 Mo., 333; Luther v. Luther, 122 111., 558; Richardson v. Green, 9 C. C. A., 565; Pettit v. Block, 13 Neb., 142; Spiegelholster’s will, 39 atl., 464; McCay v. Clayton, 119 Pa., 133; Lamb’s Estate v. Hall, 122 Mich., 269.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellants are estopped from appealing from the order probating the will of L. M. Paine because they took under the will.</p> <p>2. Creditors of an heir have no right to appeal from order of County Court probating a will but only heirs or such as would inherit have the right to prosecute an appeal from an order of probate. Tinker v. Ringo, 11 Kentucky Law Reporter, 120; Page on Wills, sec. 325, page 389; Lockhárd v. Stephenson, 120 Alabama, 641; Shepherd Est., 170 Pa. St., 323; Cochran v. Young, 104 Pa. St., 333; re Brown, 47 Hun., 360.)</p> <p>3. Daviess v. Leete, 111 Kentucky, page 666, has no bearing on this case.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, secs. 4857, 4838, 4859, 4850; Tinker v. Ringo’s Executors, 11th. Kentucky, 120; L. & N. R. R. Co. v. Sanders’ Admr., 19th Kentucky, 1943; BiggerstaE’s Exrs. v. BiggerstaE’s Admr., 15th Kentucky, 725; American & English Encyclopedia of Law, 2nd addition, vol. 23, page 138; Matter of Peaslee, 73 Hun. (N. Y.), 113; Matter of Bradley, 70 Hun. (N. Y.), 104; Matter of Ruffaner (Surrogate Ct.), 25 Civ. Pro. (N. Y.), 158; Misc. (N. Y.), 654; Wynne v. Spiers, 7 Hump. (Tenn.), 407; Lockhard v. Stephenson, 120 Ala., 641; re Shephard’s Estate, 170 Pa., 323; Cochran v. Young, 104 Pa., 333; re Brown, 47 Hun., 360; Underwood y. Ogden, 6 B. M., 606.</p>

<p>Case 35. — ACTION BY SUE BROWNE ELLIOTT AGAINST THE CITY OF LOUISVILLE AND OTHERS TO RECOVER CERTAIN PROPERTY KNOWN AS “ELLIOTT PARK.” —</p> <p>Appeal from Jefferson Circuit Court, (Chancery Branch, 1st Division.)</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for Defendants. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The appellees have no equity.</p> <p>2. The map did not dedicate park (Rowan v. Portland, 8 B. Mon, 236.)</p> <p>3. Not a lot sold prior to contract of Oct. 1, 1868.</p> <p>4. Analysis of contract. Elliott held the legal title but had not the right to possession.</p> <p>5. Main consideration to him lost because city did not act in a reasonable time.</p> <p>6.Inaction of Legislature nullified contract. (Cyc. Law, S31.)</p> <p>7. Schwartz & Oo. did not carry out contract.</p> <p>8. Park allowed to go to ruin almost immediately.</p> <p>9. Taxes necessarily assessed. Paid by Elliott.</p> <p>10. Elliott justly resumed possession in 1872 or 1873.</p> <p>11. Admission fees charged everybody.</p> <p>12. Under contract Elliott’s possession hostile. (21 Am. & Eng. Eney. of Law, 1072.)</p> <p>13. City’s claim without action futile. (See. 2509 Ky. Stat.; Abner v. Creech, 79 S. W. 248.)</p> <p>14. This a preposterous park. ' Useless and expensive.</p> <p>15. City could accept only in a reasonable time. (Chitty on contracts, 11 Am. Ed. Yol. 2, p. 1062; 23 Am. & Eng. Ency. Law (2ded.), p. 971, note; Cassity v. Robinson, 8 B. Mon, 281; Hicks v. Shouse, 17 B. Mon, 483.)</p> <p>16. City and Legislature refused conditions and rejected offer in Charter of March 3rd, 1870, and act of February 28th, 1871, and act of March 21'St, 1871.</p> <p>17. No offer to accept for 32 years. Gross Laches.</p> <p>18. Statute of Limitations not suspended by contract.</p> <p>19. Laches of city justified Elliott’s revocation. (13 Cye. Law & Proc., 461; Washburn on Eas., sec. 20, p. 195; People v. Reed, 81 Cal., 77; Howard v. Mauser, 70 Cal., 476; Vermont v. Miller, 161111s., 210; Schmitz v. Ger., 31 Ills., a. p. 284; Dillon on Munic., cor. sec. 538; Town v. Cook, 97 la., 599; Village v. Jensen, 84 Mich., 54; Field v. M., 32 Mich., 379; People v. Kellog, 67 Hun.' (N. Y.), 547; Forsyth v. D., 94 Cal., 438; St. Louis v. St. L., 88 Mo., 115; Trustee of LaGrange v. Bain, 4 Ky. L. R., 256.)</p> <p>20. Statute of Limitations complete bar here.</p> <p>21. Elliott had legal title but not “right to possession” after contract. (21 Am. & Eng. Eney. Law, 1067; 4 Kent. Com. P. 374; 2Black, Com. 191; 28 Am. & Eng. Ency. Law, 233; Washburn Real Prop., Bk. 3, Chp. 1, Vol. 2, p. 400; Fitzhugh v. Croghan, 2 J. Mar., 429.)</p> <p>22. If Elliott trustee, he could and did repudiate trust. (28 Am. & Eng. Eney. Law, 1133; 2 Perry on Trusts, sec. 864; Rowan v. Portland, 8 B. Mon., 232; 1 Cye. Law & Proc., 1064.)</p> <p>2*3. Cause of action in Schwartz & Co. Statute started against all. (Baptist Ch. v. Pres. Ch., 18 B. Mon., 641; Rowan v. Portland, 8 B. Mon., 259.)</p> <p>34. Thirty years’ possession bar to all. (See. 2508 Ky. St.; Rose v. Ware, 25 Ky. L. R., 947; Wise v. Wolfe, 85 S. W., 1193; Addison v. Southworth, 25 Ky. L. R., 776.)</p> <p>25. Any private use of public square hostile and actionable. (21 Am. & Eng. En. Law, 1066 and 1072; 2 Dillon Mu. Corp. (4 Ed.), 766; Rowan v. Portland, 8 B. Mon., 259.)</p> <p>26. Elliott’s use of “public square” for base ball park hostile. (Owsley v. Owsley, 25 Ky. L. R., 1186.)</p> <p>27. Animus furandi not essential. (1 Am. & Eng. Ency. L., 790, 791 (note), 798, 818, 828; Hall v. Ditto, 11 Ky. L. Rep., 669.)</p> <p>28. Enforced payment of taxes gives an equity; evidence of hostile claim. (1 Am. & Eng. Ency. L., 831; Walling v. Eggars, 25 Ky. L. Rep., 1563.)</p> <p>29. Vacancy of lot after fire unimportant. (1 Am. & Eng. Ency. Law, 841, 879, 882; 1 Cye. Law & Proc., 1064.)</p> <p>30. Not a continuing and subsisting trust under sec. 2543, Ky. St. (Stubbins v. Briggs, 24 Ky. Li. R., 230; Smith’s Guardian v. Holtheide, 25 Ky. L. R., 125.)</p> <p>31. Written notice to city of adverse holding not necessary. Sec. 2546 Ky. Stat. inapplicable; Elliott’s rights prior thereto.</p> <p>32. Square not “in” city till 1895. (See. 4, Art. 1, P. 158, Gen. St. Act of Apr. 22, 1873; Cornwall v. L. '& N. R. R., 87 Ky., 73; Johnson v. Owensboro, 18 Ky. L. R., 276.)</p> <p>33. City expressly denied power to accept or establish a park 'since Charter March 3rd, 1870.</p> <p>34. That power only in Board Park Commissioners since April 30th, 1890.</p> <p>35. Elliott’s title then perfect by limitations.</p> <p>36. Performance being impossible, contract not binding. (9 Cyc. Law & P. 627, 629, 630, 631.)</p> <p>37. Contemplated action of Legislature failing, contract unenforceable.</p> <p>38. Board Park Commissioners cannot be substituted. (9 Cyc. L. & P., 255, 256, 460; Boston 1, Co. v. Potter, 123 Mass., 28; 13 Cyc. L. & P., 459; 9 Am. & Eng. En. Law, SI.)</p> <p>39. Park Commissioners hot agent or arm-of city. (Pol." Com. v. City of L., Bush, 597; City of Louisville v. Com., 1 Duv., 297; 21 Am. & Eng., En. Law, 1070, 1071.)</p> <p>40. Board of Park Commissioners agent or arm of State.</p> <p>41. Former’s jurisdiction extends also to county. (S. 2840, 1, 4, 5, 6, 8, 9 Ky. Statutes; B. Park Commissioners v. Dupont, 110 Ky., 743.)</p> <p>42. Board’s power is exclusive. (21 Am. & Eng. Eney. Law, 1068, 1070, 1071; Com. v. Dswis, 168 Mass., 510; Lincoln v. City, 148 Mass., 578; West Chicago Park v. City, 152 Ills., 392, .399, 400; West Chicago Park v. Mullen, 134 111., 17.)</p> <p>45. To take this land now would be an inexcusable private wrong for a doubtful public gain — an act of needless spoliation and oppression to establish a preposterous park.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellant took title in trust for the public use. (Rowan v Portland, 8 B. Monroe, 238.)</p> <p>2. Appellees have never been in default in performance utfder the deed of 1868, and if they have, the remedy is not forfeiture. (Carroll County Academy v. Gallatin Academy, 104 Ky. 621.)</p> <p>3. Performance by the public under the grant of 1868 has never been impossible.</p> <p>4. The grant to the public has never been abandoned. Non-user is not an abandonment. (L. & N. v. Quinn, 94 Ky., 310; Curran v. Louisville, 83 Ky. 632-34; McAlpin v. Railway Company, 64 L. R. A., 85.)</p> <p>5. Payment of taxes on public property works neither an estoppel nor abandonment. (City of Uniontown v. Berry, 24 Rep. 1696; Busse v. Covington, 19 Kep. 157; Mobile Transp. Co. v. Mobile, 64 L. R. A. 334.)</p> <p>61 Adverse possesion. JSfot applicable to a continuing express trust. (Robinson v. Elam, 90 Ky. 304; McRoberts v. Corneal (Ky.), 44 S. W. 443.)</p> <p>7. Mere possession by a trustee can not be adverse to the cestui que trust, because the trustee is entitled to possession. (Ogden v. Walker, 6 Dana, 423-4; Bosworth v. Mt. Sterling, 12 Rep. 157.)</p> <p>8. Dedication to future use needs no present acceptance. (Rowan v. Portland, 8 B. Monroe, 250.)</p> <p>9. There can be no adverse holding against the public without written notice, and this applies without reference to whether the adverse holding began prior to the statute. (Ky. Stat., sec. 2546; Cornwall v. Railroad, 87 Ky., 73; Bosworth v. Mt. Sterling, 12 Rep., 157; James v. Louisville, 19 Rep., 447; City of Cadiz v.' Hillman, 20 Rep., 1776; Davis v. City of Clinton, 25 Rep., 2021.)</p> <p>10. Rights of purchaser. (Rowan v. Portland, 8 B. Monroe, 232; Riverside v. Maclean, 66 L. R. A., 388.)</p> <p>11. The dedication could not be revoked by appellant alone. (Rowan v. Portland, 8 B. Monroe, 247.)</p>

<p>case 38. — ACTION BY L. R. FIGO AND OTHERS AGAINST MARY DULANEY AND OTHERS TO ENFORCE LIENS FOR STREET IMPROVEMENT. —</p> <p>Appeal from Jefferson Circuit Court, (Chancery Branch, 1st Division.)</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for Plaintiffs. Defendants appeal.</p> <p>PROPOSITIONS INVOLVED.</p> <p>1. A married woman can not make a parole dedication of her lands or of any interest therein to the public. (Robinson v. Robinson, 11 Bush, 176 Parsons v. Spencer, 83 Ky., 311; Green v. Page, 80 Ky., 368; Parsons on Contracts, Vol. 1, page 391-473; Van Zant v.Weir, 109 Ala., 104; Lewis on Eminent Domain, Vol. 2, page 735; Elliott on Streets and Roads, sec. 138; Indianapolis v. Patterson, 112 Ind., 344; Wood v. Pittsburg, 19 Ohio St., 526; Johnson v. St. Louis, 125 Mo., 655; Beeler v. Wyburn, 57 Ind., 144; Lowell v. Daniels, 2 Gray, 161; Schenley v. Commonwealth, 36 Pa. St., 62; State v. O’Laughlin, 19 Kan.,' 505.)</p> <p>2. Neither a life-tenant, nor tenant by curtesy can by any act or deed of theirs dedicate to the public any greater interest or estate in the tract of land than he himself possesses, and which determines at his death. (Rives v. Jones, 3 Jones Equity (N. C.)', 126; Detroit v. Detroit, 23 Mich., 173; Elliott on Roads and Streets, sec. 145; Baxter v. Taylor, 4 B. & Aid., 72; Bermondsey v. Brown, 35 Beavan, 226.)</p> <p>3. Any attempt upon the part of the life-tenant to dedicate to the public for the purposes of a street the lands over which the same may be extended would be operative only during the period of such an estate, and it is well settled that a dedication to be effective must be made by the true owner and of all interests therein. (Dillon on Municipal Corporations, 1st Ed., see. 498; Elliott, on Streets and Roads, sec. 144; Hoole v. Attorney General,'22 Ala., 190; Gentlemen v. Soule, 32 111., 271; Evansville v. Burnshock, 66 111. App., 381; Ledley v. Hopkins, 84 111., 528; Bingham v. Mann., 59 111., 492; Warren v. Brown, 31 Neb., page 8; Cyr. v. Madore, 73 Maine, 53.)</p> <p>4. And it is also well settled that neither the life-tenant nor any one entering under him can interpose adverse possession or the statute of limitations against the remaindermen. (Lewis in his work on Eminent Domain, Vol. 2, page 322, sec. 300.)</p> <p>5. In order that a lien may exist under the provisions of Section 2833 of the Ky. Stats, it is essential that the way improved should be a public way — a lien can not exist upon private property for the improvement of a street over lands which are not public. (Bodley v. Finley, 23 Ky. Law Rep., 851; Bodley v. Finley, 24 Ky. Law Rep., 2478; Preston v. Roberts, 11 Bush, 576; Elliott on Streets and Roads, see. 508; 115 Cal., 441; 62 Maryland, 371; 94 Cal., 444.)</p> <p>6. Mere silence will not estop a married woman — nothing short of intentional fraud constitutes an available estoppel against her in favor of any one invoking the same. (Biglow on Estoppels, pages 502-10; Louisville v. Stephens, 96 Ky., 404; Hannon v. Madden, 10 Bush, 664.)</p> <p>7. Where a cause of action accrues to a married woman, no statute of limitation runs against her so long as her coverture exists, except the statute of thirty years limitation, which is im no wise affected by the Act of March 15, 1894. (Higgins v. Stokes, 24 Ky. Law Rep., 2427; Sturgill v. Chesapeake,.25 Ky. Law Rep., 912; Onions v. Covington, 21 Ky. Law Rep., 2429; Louisville v. Thompson, 20 Ky. Law Rep., 1110.)</p> <p>8. To create a right by prescription — the use and the enjoyment of what is claimed must be adverse — it must be hostile to the right and possession of the true owner and must be exclusive, continuous and uninterrupted and maintained for the required period to bar an action for the recovery of land by the owner against the one claiming the easement. Adverse possession for a less time confers no right. (Lewis on Eminent Domain, Yol. 2, page 322; Elliott on Roads & Streets, 175; Lanier v. Booth, 50 Miss., 415; Stewart v. Frank, 94 N. C., 489; Coburn v. San Mateo, 75 Fed. Rep., 532; Town v. McClintock, 150 111., 133; Engle v. Hunt, 50 Neb., 358; Homan v. Harvey, 40 Iowa, 634.)</p> <p>9. If at the time the ordinance is passed providing for the imIjrovement of a space claimed to be public, in consequence of adverse use, it is made to appear that the use had not been continued for the requisite time to vest title in the public, and the space was private property, when the ordinance providing for the improvement was passed, the abutting property owner cannot be held liable, although he stood by and took no steps to prevent the improvement. In such a case there is a want of power in the local government, and it is settled that where there is no power im the local government to make a contract or to pass an ordinance for such an improvement at the expense of the abutting property owner, that mere silence in standing by and permitting the improvement to be made does' not estop the property-owner from making defense to and defeating such a claim. After acquired title by the public to the strip will be of no avail. Elliott on Streets and Roads, Section 508; Spalding v. Weston, 115 Cal., 441; Mayor v.. Hook, 62 Md., 371; Cook v. Madden, 94 Cal., 44; Joyce v. Shad-burn, 11 Ky. Law Rep., 892; Bodley v. Finley, 23 Ky. Law Rep., 852; Bodley v. Finley, 24 Ky. Law Rep., 2478; Preston v. Roberts, 12 Bush, 576; Nevin v. Roach, 86 Ky., 498; Bellview v. Peacock, 89 Ky., 499; Bellview v. Hahn, 82 Ky., page 3; Worthington v. Covington, 82 Ky., 265; Murphy v. Louisville, 9 Bush, 189; Columbia v. Poplar, 149 Mo., 367; Henderson v. Lambert, 14 Bush, 30; Louisville v. Tyler, 23 Ky. Law Rep., 828; Button v. Kremer, 24 Ky. Law Rep., 1196.</p> <p>10. Maps made out by the local authorities representing a strip of land as being a part of a public way, or as having been dedicated to public is no evidence whatever of a dedication by the owner. Sanford v. Covington, 12 Ky. Law Rep., 452; Harleson v. Elsey, 17 Ky. Law Rep., 924; Exterkamp v. Covington, 20 Ky. Law Rep., 968; Clark v. Madden, 94 Cal., 415; Lewis on Eminent Domain, 114; Clark v. Elizabeth, 38 N. J. L., 130; Bond v. Mc-Keesport, 166 Pa. St., 57; New York v. Hafflin, 90 Hunn, 260; State v. Hudson, 38 N. J. L., 12'.</p> <p>1. The question in this case is not necessarily whether there was an absolute.dedication of Garland Avenue prior to the passage of the ordinance for the improvement of that street. The question is not solely of a.dedication in pais.</p> <p>(a) If there was a dedication in pais at the date of the ordinances, September 26, 1899, the Dulaney property is subject to the assessment which was made. If there was an actual dedication by adverse, continuous use by the city and the public for so long a time, that the statutes of limitations would bar a suit by the Dulaneys to recover the land, and close up the street, the defense cannot stand.</p> <p>(b) If Mrs. Dulaney, the title holder, acquiesced in the open, notorious and active use of Garland Avenue as a street, and stood by without interference or objection while it was improved, under the ordinances, she, and those who claim under her, are estopped to object to proceedings to compel payment for the street’s construction.</p> <p>(c) Since the Weissenger Act of March 15, 1894, the greater diligence is required of a married woman in the assertion of her rights than was required before she acquired the right to assert then by suit, in her own name.</p> <p>(d) But, if the dedication in pais of Garland Avenue was incomplete at the date the ordinances were passed, but became complete before the suit was brought, it would seem that the action of the city, through its ordinances in improving the street, is valiciiited, just as it would have been by the execution of a deed of dedication of the street to public use, while it was in process of building, or just after it was finished.</p> <p>1. Where the property owner stands by and allows the contractor to complete his work without notice or protest, he is es-topped from denying his liability on an apportionment warrant. (Barber Asphalt Paving Co., v. Garr, 24, R., 2235.)</p> <p>2. Nor does the fact that such owner was a married woman make any difference. (Caperton v. Humpick, 95 Ky., 105; Trustees of Hazelgreen v. McNab, 23 Ky., L. R. 812; Herman on estoppel, 2 Vol., p. 1141; Bull v. Seveer, 88 Ky., 524.)</p> <p>3. A common law dedication operates as an estoppel in pais. (Dillon on Mun. Corp., 2 vol. sec. 628;. State v. Wilson, 43 Me., 23; Trustees City of Cincinnati v. Lessees of Edward White, 6 Peters, (IT. S.) 439; Jarvis v. Deane, 3 Binghan, 447; Jos. Barclay, etc. v. Howell’s Lessee, 6 Peters, (U. S:), 513; Riley v. Buchanan, 25 Ky., L. R., 863; Buchanon v. Curtis, 25 Wis., 99.)</p>

<p>1. Taxation — Personal Property — Whiskey in Government Warehouses. — Whiskey Contained in government warehouses, . before payment of taxes thereon due to thie United States, is property subject to taxation in common with other property in the State.</p> <p>2. Constitutional Law — Distraint for Taxes — Taking Property Without Due Process of Law. — The assessment of property for taxation, and its’ subsequent distraint for taxes in arrears, is not a taking of property without due process of law, where the owner or person charged with payment of the taxes has notice of the assessment and the amount due.</p> <p>3. Same — Taxes on Distilled Spirits in Bonded Warehouses — The statutes of the State imposing a tax on distilled spirits in bonded' warehouses do not violate Const. U. S.., particularly the fourteenth amendment thereof, as taking property without due process of law, or denying the owner of such spirits and the warehouseman, the equal protection of the law.</p>

<p>Case 38.“ACTION BY J. J. GREENLEAF, JUDGE, AND OTHERS AGAINST O. E. WOODS, MAYOR, FOR SAT.ARY AS POLICE JUDGE. —</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>1. The city council is expressly empowered to fix the compensation of the police judge by ordinance.</p> <p>2. The word compensation is much broader than the word salary, and includes clerk hire, office rent, fuel, stationery, traveling expenses and any other item incident to the holding of an office. (Am. & Eng. Ency of Law 23, 385, 389 and note 1.)</p> <p>3. There could be no question raised to the validity of an ordinance allowing the police judge $200 a year for office rent, stationery and clerical assistance, in addition to his salary of $600 a year.</p> <p>1. We submit that a common sense view of Sec. 3514 Ky. St., makes the police judge pay his deputy clerk out of his own pocket.</p> <p>2. Any contract that is (ultra vires) is void, and appellee contends that an ordinance paying a police deputy clerk out of the city treasury is void, because it is beyond the power of the council to enact.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, sections 3157, 3361, 3512, 3515. City ordinance, Richmond, Ky., sections 25 and 40; Henderson, etc. v. city of Covington, 14 Bush, 312; Lowry v. city of Lexington, 75 S. W. 202; Dillon on Mun. Corp., Sec. 207, 233.</p>

<p>Case 39. — ACTION BY JOHN T. OVERTON AND OTHERS AGAINST JOSEPH OVERTON AND OTHERS TO REMOVE CLOUD ON LAND TITLE. —</p> <p>Appeal from Harlan Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for Plaintiffs. Defendants appeal.</p> <p>" POINTS AND AUTHORITIES CITED.</p> <p>I. Plaintiffs suing for themselves and others. (Code See. 25.) (Story’s Eq. PI. Sec. 94, 97.)</p> <p>a. Petition and Summons must state names of parties. (Code Sec. 110.) (Stillwell v. Carpenter, 2 Abb. N. Cas. (N. Y.) 241.)</p> <p>b. Caption must state that suit is on behalf of others. (Abbots Forms of PI. Vol. 1. p. 15; Whitney v. Mayo, 15 111. 255; Packard v Board of Co. Com’r. 2 Colo., 338; Wood v. Draper, 24 Barb., 195; Smith v. Swormstedt, 18 How. 288; Brown v. Robertson, 18 How. 480; Leigh v. Thomas, 2 Yes. Sen. 312;'Baldwin v. Lawrence, 2 Sim. and Stu. 18; Douglas v. Hasfall, Id. 184; Ling v. Young, Id. 385.</p> <p>e. Order making parties necessary. (Hendrix v. Money, 64 Ky. 308; Oswald v. Morris, 92 Ky. 48.)</p> <p>d. Parties must be sufficient to represent the rights of all. (McArthur v. Scott, 113 U. S. 395; Lancaster v. Thompson, 5 Madd. 4, 13; Carey v. Brown, 58 Cal., 180; Calvert on parties, 44, 169; Smith v. Williams, 116 Mass. 512.)</p> <p>e. Same person cannot be both plaintiff and defendant. (Maxwell on Code, PI. p. 47; Dicey on Parties, Mar. p. 65; Brown v. Brown, 86 Tenn. 316; Thomas v. Thomas, 3 Lift. 9; Allen v. Gray, 1 Mon. 98; Gatewood v. Lyle, 5 Mon. 6; Byrne v. Byrne, 94 Cal., 579; Eastman v. Wright, 6 Pick., 316.)</p> <p>f. Rule Applies to any ease, where there is an adverse interest. (Parsons v. Lyman, Blatehf, 433.) ,</p> <p>2. Amendments. (Code See. 134. Ene. PI. & Pr. Vol. 1, p. 472.)</p> <p>3. Former Adjudication.</p> <p>a. Jurisdiction must be plead. (Dailey v. Sharkey, 28 Mo. App. 518; Clark v. Adm’r v. Stroud, 1 Swan., 274.)</p> <p>b. Prior purchasers not bound by judgment. (Sutor v. Miles,-, 41 Ky. 491.) ' c. Who are privies. (Owingsville & Mt. S. T. R. R. Co. v. Hamilton, 53 S. W. Rep. (Ky.) 6.)</p> <p>d. The parties must be the same. (Loftis v. Marshall, 134 Cali., 394; Morison v. Clark, 89 .Me. 104; Linn v. Stout, 44 Minn. 110; Jones v. Vert, 121 Ind. 140.)</p> <p>e. Subject matter must be the same, and it is not every issue that is material. (McDonald v. Bear. River & Co. 15 Cal., 145; Kidd v. Land Id., 161; Estate of Freund, 134 Cali., 335; Cananaugh v. Buehler, 120 Pa. St. 457; Houk v. Kerfoot, 99 Va., 661; Watts v. Watts, 160 Mass., 464; Dickerson v. Hays, 31 Conn., 417 , 426; Garfield v. Plumber, 175 111., 523; Smith v. Round-tree, 185 111., 223; Ryan v. Potwin, 62 111., App., 140.)</p> <p>f. Cause must be tried on the merits. (Pepper v. Donnelly, 87 Ky. 262; Yankee v. Sweeny, 85 Ky. 55; Bitzer v. O’Bryan,. 107 Ky. 598.)</p> <p>g. Must be a final judgment. (Nickell v. Fallen, 23 S. W. Rep. 366; Lumber Co. v. Mickey, 89 Mo. App. 287.)</p> <p>h. Matters not adjudicated no estoppel. (Houser v. Ruffner, 18 W. Va. 250; Craine v. Edwards, 92 Ky., 113.)</p> <p>i. Court had no jurisdiction. (Kentucky Stat. Sec. 1057, and 966.)</p> <p>j. Where lower court has no jurisdiction, Appellate court»has none. (Linton v. Mogal, 98, Pa., St., 459; Shaw v. Squires, 153 Pa., St., 150; Waters v. Walker, 17 S. W. Rep. 1085; Able v. Bloomfield, 6 Tex., 263; Gormly v. McIntosh, 22 Barb. 273; Ball v. Biggam, 43 Kans., 327; Plunkett v. Evans, 50 N. W. Rep. 962; Cooban v. Bryant, 36 Wis., 699; Arnegaard v. Arnegaard, 7, N. Dak., 501; Stewart v. Lohr, 1 Wash. St. 341; 26 Pac. P.ep. 457; Stephens v. Boswell, 25 Ky., 29; Burbage v. Squires, 60 Ky., 77; Baker v. Chisholm, 3 Tex., 157.)</p> <p>k. Consent cannot confer jurisdiction nor can the right to object be waived. (Yon v. Baldwin, 76 Ga., 769; Mereier v. Chace, 91 Mass., 243; Arnegaard v. Arnegaard, 7 N. Dak., 501; Springer v. Shavender, 118 N. C., 49, 52; School Trustees v. Stocker, 13 N. J., 116; Dodd v. Una, 40 N. J. Eq., 672; Munday v. Vail, 5 Vroom 422; Flieshman v. Walker, 91 111. 321; Doctor v. Hartman, 74 Ind., 222; Abernathy v. Moore, 83 Mo., 69; Brown v. Woody, 64 Mo., 547; Klemstenber v. Schumacher, 35 Wis., 120; Naxro v. Cragin, 3 Dillon 474; Wildmah v. Rider, 23 Conn., 172; Swigley v. Dickson, 2 Tex., 192; Benford v. Daniels, 20 Ala., 445; Mabry v. Dickens, 31 Ala., 243; Ginn v. Rogers, 9 111., 134; Moore v. Bolin, 5 111. App. 556; Sternberg v. Strauss, 44 111. App. 147; Davis v. Davis. 3 Ind., 160; Spear v. Carter, 1 Mich., 20.)</p> <p>l. Without jurisdiction judgment is void. (Springer v. Shavender, 118 N. C., 49; Wildman v. Rider, 23 Conn., 172; Anderson v. Cave, 49 S. C., 505; Kopf v. Huchins, ll Tex. Civ. App., 86; Thaxton v. Smith, 38 S. W. Rep., 827; Deshon v. Leffler, 7 Mo. App., 595; Gage v. Hill, 43 Barb., 47; Equitable Trust Co. v. Fisher, 106, 111., 198; Walmsley v. Robinson, 28 Da. Am., 793; Huyghr v. Brinkman, 34 Da. Ann., 1180; Mercier v Chaco, 91 Mass. (9 Allen) 243.)</p> <p>4. Laches. (Story’s Eq. PI. Sec. 813.)</p> <p>5. Defendants’ Record Title.</p> <p>a. On appeal in will cases, Circuit Court can only remand case to County Court for orders. (Mendenhall v. Tungate, 95 Ky..,, 214.)</p> <p>b. Order of County Court conclusive. (Kentucky Stat. Sec. 4852; Whalen v. Nesbit, 95 Ky., 464.)</p> <p>6. Exceptions to Depositions.</p> <p>a. Exhibit “John T.. Overton” incompetent. (E. S. Bonnie & Co. v. Perry’s Trustee, 78 S. W. Rep. (Ky.) 210.)</p> <p>b. “Collateral Heirs” or “nearest of kin,” conclusion of law. (Bradford v. Erwin, 34 N. C. (12 I. red) 292; Kerlee v. Corpeming, 97 N. C., 334; Speed v. Brooks, 30 Ky. 119.)</p> <p>c. Relationship of the declarant with the family must be established by proof independent of the declaration. (Taylor on Evidence, Sec. 576; Wharton on Evidence, Sec. 201, 218; Blackburn v. Crawford, 3 Wall. 187; Fulkerson v. Holmes, 117 TJ. S. 397; Monkton v. Atty. Gen., 2 Russ. & Myln. 147, 156; Atty. Gen. v. Koehler, 9 H. L. Cas. 653, 660; Rex v. All Saints, 7 B. & C. 785, 789; Jennings v. Webb, 8 App. Cas. (D. C.) 43; Anderson v. Smith, 2 Mackey (D. C.) 275; Green v. Norment, 5 Mackey (D. C.) 80; Thompson v. Wolf, 8 Ore., 463; Jackson v. Jackson, 30 Atl. Rep. 755; In re Robb, 37 S. C. 33; Young v. Schulenberg, 165 N. Y., 388; Lawrence v. Atty. Gen. 89 Mich., 160; Green v. Almand, 111 Ga., 736.)</p> <p>e. The declarant must be legally related. (Taylor on Evidence, See. 571, 576, 579, 581; Wharton on Evidence, Sec. 202; Green-leaf on Evidence, Yol. 1, Sec. 103; Phillips on Evidence, Vol. 3, p. 495; Rice on Evidence, p. 416; Jackson v. Browner, 18 Johns., 38; Gregory v. Baugh, 4 Rand. (Va.) 617; Jones v. Letcher, 13 B. M., 371; Dupoyster v. Gagani, 84 Ky., 409.)</p> <p>f. Hearsay is never admissible to establish an unlawful relationship. (Flora v. Anderson, 75 Fed. Rep. 233.)</p> <p>g. The words “legally' related” does not include bastards. (Crispini v. Doglioni, 3 Swab. & Tr., 44; Flora V. Anderson, 75 Fed. Rep. 217.)</p> <p>h. Declarations made post litam mo tarn not admissible. (In re Robb, 37 S. C., 33; Young v. Schulenberg, 165 N. Y., 388; DeHaven v. De Haven, 77 Ind., 237; Emerson v. White, 29 N. H., 482; Chapman v. Chapman, 2 Conn., 348.)</p> <p>i. Name of declarant must be given. (Chapman v. Chapman, 2. Conn., 348.)</p> <p>j. General repute in the neighborhood is not competent evidence for relationshrip. (Elder v. State, 123 Ala., 38; In re Heaton 135 Cal., 385; Greenwood v. Spiller, 3 111., 502; Metheny v. Bohn, 160 111., 263; DeHaven v. DeHaven, 77 Ind., 236; Ross v. Loomis, 64 Iowa, 432; Watson v. Richardson, 110 Iowa, 690; In re Hurlburt, 68 Vt., 366.)</p> <p>k. Depositions of plaintiffs taken after other witnesses testifying is incompetent. (Code Sec. 606 Sub Sec. 3.)</p> <p>l. Evidence not sufficient to support judgment. (Tyler on Ejectment, and Adverse Enjoyment, p. 483; Hubback on Succession, 199; Sprigg v. Moale, 28 Md., 504; Richards v. Richards, 15 East 293.)</p> <p>m. No evidence John Taylor died intestate. (Ironton Fire Brick Co. v. Tucker, 82 S. W. Rep. (Ky.) 241.)</p> <p>n. Presumption that all married people have issue. (Lawson’s Presumptive Evidence, p. 249; Sprigg v. Moale, 28 Md., 504; Hays v. Tribble, 42 Ky., 108; Faulkners’ Adm’r v. Williman, 16 S. W. Rep. (Ky.) 352.)</p> <p>o. Weight to be given the testimony. (Crouch v. Hooper, 16 Beav., 182; Johnson v. Todd, 5 Beav., 599; Sprigg v. Moale, 28 Md., 504.)</p> <p>p. Depositions cannot be used in favor of person not a party when they were taken. (Kerr v. Wilson, 8 Bush., 129.)</p> <p>cl. Plaintiffs must prove possession. (Kentucky Stat. See. 11; Goff v. Lowe; 80 S. W. Rep. (Ky.) 219; Floyd v. L. & N. R. R. Co. Co., 80 S. W. Rep. (Ky.) 204.)</p> <p>r. Statute in force in 1873-74. ( General Statutes, p. 370; Stanton’s Rev. Stat. Vol. 1, page 421.)</p> <p>s. Construction of this Statute. (Stevenson’s Heirs v. Sullivant, 5 Wheat., 207; Seroggin v. Allan, 2 Dana, 363; Stover v. Boswell, 3 Dana, 234; Remington v. Lewis, 8 B. M., 606; Allen v. Ramsay, 1 Met., 635; Berry v. Owens, 5 Bush, 452; Jackson Y. Jackson, 78 Ky., 390; Croan v. Phelps, 94 Ky., 213.)</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Allegations necessary to show title. (Ky. Statutes, See. 11; Stephen on Pleading, Page 304; Ky. Statutes, See. 1393; L. P. Canal Co., v. Murphey, 9 Bush, 522; R. L. & T. P. R. R. Co. Y. Rogers, 7 Bush 535; Stivers v. Baker, 37 Ky.' 509.)</p> <p>2. Specific allegations of title control general. (Enc, Plfig. & Pr. Yol. 21, p. 725.)</p> <p>3. Demurrer will lie if specific facts do not state cause of action. (Enc. Pldg. & Pr. Yol. 17, p. 329; Greenville v. Seybolt, 82, Cal., 7.)</p> <p>4. Who can sue on behalf of others. (Code Sec. 25.)</p> <p>5. Statute in force in 1874. (Revised Statutes Page 280; General Statutes, Page 370.)</p> <p>6. Construction of this statute. (Groan v. Phelps, 94 Ky., 213; Jackson v. Jackson, 78 Ky., 390; Berry v. Owens, U. Bush, 452; Allen v. Ramsey, 1 Met., 635; Remington v. Lewis, 8 B. M., 606; Stover v. Boswell, 3 Dana, 234, Scroggins v. Allen, 2 Dana, 363.)</p> <p>7. Competency exhibit to J. T. Overton’s Deposition. (Owings v. Shannon, 1 Marshall 188; Calvert v. Fitzgerald, Litt. Sel. cases, 388; Ray et al v. Walton, 2 Marsh, 72; Key etc. v. Lynn, 4 Litt., 340; Elliott Ev. Vol. 2 Sec. 874; Wigmore Ev. Vol. 1 Secs. 734 & 738.)</p> <p>8. Pedigree from hearsay. (Elliott Ev. Vol. 1 See, 380 & 381; Wise v. Wynn, 42 Am. R. 381.)</p> <p>9. Presumption from similarity of names. (Washburn Real Property p. 143 Sec. 488; Gates v. Loftus, 3 A. K. Marsh., 204.)</p>

<p>1. Witnesses — Communications Between Husband and Wife — Testimony as to private communications between a husband and wife, overheard by the witness, is admissible against the husband.</p> <p>2. Criminal Law — Evidence—Other Offenses — Motive—Burglary. —On a prosecution for housebreaking, it was error not to ad- • mit evidence that defendant had committed embezzlement by means of checks, which fact was shown by canceled checks in the burglarized house, as the evidence was competent on the question of motive.</p>

<p>Cass 41.— MOTION BY SABAH I. GARDNER and OTHERS IN THE APPELLATE COURT EOR AN ALLOWANCE TO AN EXECUTOR, AND TO THE GUARDIAN AD LITEM EOR THEIR SERVICES IN AN ACTION THAT HAD BEEN AFFIRMED IN SAID COURT BETWEEN APPELLANTS AND MARY B. MOSS &c —</p> <p>Motion overruled without prejudice to a motion in the Circuit Court for the relief indicated.</p>

<p>j . Indictment — Sufficiency.—On a prosecution under Ky. St. 1903, Section 1174, defining the offense of false swearing as wilfully and knowingly swearing to that which is false, an indictment charging that defendant swore that he never “made , any trade” with a certain person was demurrable as not charging that defendant swore falsely to any fact as distinguished from a conclusion.</p> <p>3. Supstaining of Demurrer — Resubmission to Grand Jury.. — It was not an abuse of discretion for the court to refuse to resubmit the case to the grand jury, under section 170, authorizing resubmission and holding of defendant on bail or in custody, on the sustaining of a demurrer to the indictment.</p> <p>3. Criminal Law — Dismissal of Indictment — Former Jeopardy.— Under the express provision of Cr. Code Prac. Section 178, the dismissal of an indictment by the court on demurrer is no bar to a further prosecution, unless it is dismissed for an objection to its form or substance taken at the trial, or variance between the indictment and proof, or because the indictment contains matter which is a legal defense or a bar to the indictment.</p>

<p>1. Criminal Law — Appeal—Verdict on Conflicting Evidence— Where, on the issue of the insanity of accused on trial for crime, the testimony is conflicting, the verdict of the jury is conclusive on appeal.</p> <p>2. Same — Arraignment—Sufficiency—An order reciting that accused was brought into court accompanied by his counsel, and the court, with consent of accused, dispensed with the arraignment, and the defendant pleaded not guilty, is in conformity with Cr. Code Prac. Sec. 155, providing that an arraignment defined by section 154 is the reading of the indictment by the clerk to the defendant, asking him if he pleads guilty or not guilty, shall only be made on indictments for felony, and may be dispensed with by consent of defendant.</p> <p>3. Same — Exceptions—Necessity—Where accused did not except to the failure of the clerk to state to the jury accused's plea, as required by Cr. Code Prac. Sec. 219 nor rely on it as a ground for a new trial, the court on appeal could not reverse a conviction therefor.</p> <p>4. Same — Harmless Error — Erroneous Admission of Evidence— Where, on a trial for crime, the court, after the admission of evidence, excluded it as incompetent, the court ou appeal must assume that the jury did not consider it, and that accused was not prejudiced by its temporary admission.</p> <p>5. Same — Reception of Evidence — Objections—Exceptions—Where the record in a criminal case does not show that an objection to the admission of evidence was passed on by the court, or that it was asked to rule on the objection, or that its failure to do so was excepted to by accused, the objection will not be considered on appeal.</p> <p>6. Same — Record—Omissions—Affidavit to Supply — Sufficiency— The affidavit of counsel for accused, filed on a motion for new trial, averring that it was affiant’s “impression” that an objection to the admission of evidence was overruled, is not sufficient to supply the omission iu the record which does not show that the objection was ruled on or that the court’s failure to do so was excepted to.</p> <p>7. Witnesses — Competency — Attorney and Client — -Confidential Communications — An Attorney who had acted as attorney in a civil matter for one on trial for crime, is competent to testify with respect to his knowledge of accused’s condition of mind.</p> <p>8. Criminal Law — Trial—Separation of Witnesses — An attorney is not subject to the rule requiring the separation of witnesses in a criminal case, and the fact that he was not sent from the courtroom with the other witnesses during the trial does, not exclude him from testifying.</p>

<p>1. Land — Trust Deed — Estate Conveyed — Rights Reserved — Power of Trustee to Convey — Henry V., at his death, owned a lot in the city of Louisville, which descended to his three children, George, Joseph and Minnie, subject to his wife, Elizabeth’s, dower therein. The three children conveyed to their mother the lot in fee simple, and at the same time took from her a deed to George V. in trust for his mother for life, and at her death to her three children, George, Joseph and Minnie. Joseph died intestate without issue, leaving a widow, Mary V. After this, all the parties sold the lot to appellant, and tendered him a deed signed by all of them, which appellant declined to accept, claiming that they can not convey a merchantable title to the land. Held — That the deed tendered conveyed a valid title to appellant.</p> <p>2. Donees — Survivorship—Execution of a Trust — Naked Power— Beneficial Interest —At common law there is no survivorship among donees of a mere naked power, not coupled with an interest,' or the execution of a trust; but where donees are beneficially interested in. the subject of the power the rule is exactly reversed, and then the power survives to the remaining donees upon the death of one or more of them.</p>

<p>Case 45. — ACTION BY THE EXECUTORS OF J. W. DANT AGAINST JOHN M. COOPER, COUNTY JUDGE, FOR A MANDAMUS TO COMPED HIM TO FIDE CERTAIN PAPERS IN DIEU OF A SETTDEMENT OF SAID DANT’S ESTATE. —</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment refusing the writ and the Executors appeal.</p> <p>Our contention is that the filing of accounts by executors or administrators, is a matter with which the public has no concern, and with which the parties for whose benefit it is required by law, may dispense, whether they be creditors, or mere legatees or distributees.</p> <p>AUTHORITIES CITED.</p> <p>(18 Ky., L. R., 1043-39, S. W. 40; Bradford v. Clayton, 47 Ala., 508; Avery v. Avery, 11 Am. & Eng. Ency. of Law, pages 743, 743, 1185, 1319, 46 Am. Dee., 438 and note; Turk v. Turk, 97 Ky., 136; Butler v. Butler, 85 Ky., 35; Cunningham v. Eraize, 13 Bush, 77; Warfield v. Brand’s Admr., 14 B. Mon., 433; Simms v. Lively; 11 B. Mon., 245; Berry, Trustee v. Williamson et ux, 21 Ky., L. R., 1157-54, S. W., 732; Weaver, &c v. Toney, &c, Civil Code, Sec. 21; Ky. Statutes, sections 1057, 1062, 1065, 1066, 1068, 3849, 3855 & 3857.)</p> <p>1. We contend that the county judge can require an inventory and appraisement of an estate where the heirs and devisees are sui juris.</p> <p>2. That it would be criminal negligence in this ease for the county judge not to require the executors to make a showing of the interest of the infants and place their means in the hands of a bonded trustee. (Ky. Statutes, Sec.. 3855, 3857, 3858; Trabue v. Reynolds, 9 Ky., L. R., 360.)</p>

<p>Case 46. — ACTION BY A. M. COX AGAINST THE CITY OF CYNTHIANA FOR DAMAGES FOR BEING DEPRIVED OF A WATER SUPPLY.</p> <p>Appeal from Harrison Circuit Court.</p> <p>L. P. Fryer, Circuit Judge.</p> <p>Judgment for Defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1.Statutory authority for water' works in 4th class cities;— sub-sees. 8 & 33 of see. 3490, Ky. Statute.</p> <p>3. Unreasonable Ordinances, (Dillons Municipal Corporations, secs. 319 & 320; Stein v. McArdle & Waters, 24 Ala., 344; Merrimae River Savings Bank v. City of Lowell, 26 N. E. R., 97; Wm. A. Turner v. Revere Water Co., 40 L. R. A., 657.)</p> <p>3. Unjust Discrimination, (Simrall v. City of Covington, 90 Ky., 444; Williams v. Maysville Telephone Co., 26 K. L. R., 945.)</p> <p>4. Peremptory Instruction Should Not be Given Where There is any Evidence at all Conducing to Establish Plaintiff’s Claim, (Endieutt v. Tri-State Nat. Gas & Oil Co., 25 R., 863; L. & N. R. R. v. Howard, 82 Ky., 232; Shelby v. C. N. O. & T. P. R. R. Co., 89 Ky., 224; Eskinge v. C. N. O. & T. P. R. R. Co., 89 Ky., 367; Board v. C. & O. R. R., 25 Ky., 1079, 25 K. L. R., 811 „)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Are sections 15, 16 and 22 of the city ordinance reasonable provisions? If so, peremptory instruction was prop'erly given.</p> <p>2. The acceptance of the water rent from aiDpellant by the superintendent of water works, providing that the other tenants of the same building, or the owner thereof, pay all arrears due from said building not later than July 15, was such a conditional acceptance that did not waive any rights of appellee to shut off the water supply from said building on July 16, 1904.</p> <p>3. The testimony as disclosed in the record herein, certainly supports the contention of appellee, relative to any question of fact.</p> <p>AUTHORITIES.</p> <p>(Ordinances City of Cynthiana, sec. 15, 16 & 22; McQuillan on Mun. Corp., sec. 181, 185 & 186; Kelsey v. Board of Fire & Water Comrs. of Marquette, 37 L. R. A., 675; City of Louisville v. Itonpe, 6 B. Mon., 591; Atlanta v. Burton, [1903], 90 Ga., 486, [16 S. E. 214].)</p>

Case 47. — PROSECUTION AGAINST W. R. RAYMOND FOR BARN BURNING. — Appeal from Payette Circuit Court. Watts Parker, Circuit Judge. Defendant convicted and appeals. The defendant relies on the following grounds for a reversal: 1. The court should have granted defendant a continuance. 2. The letters alleged to have been written by defendant to Vanmeter were not identified. 3. Proof of the burning of Ruark’s house was improperly admitted. 4.

<p>Case 48. — ACTION BY J. C. CHANDLER AGAINST THE PROCTOR COAL CO., IN WHICH AFTER SETTLEMENT OF THE LITIGATION WITHOUT THE KNOWLEDGE OF PLAINTIFFS ATTORNEYS, TYE & DENHAM, THEY PETITIONED FOR A RECOVERY OF THEIR FEE. —</p> <p>Appeal from Whitley Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Judgment for Plaintiffs. Defendant Appeals.</p> <p>The appellant asks a reversal of this case,— "</p> <p>1. Because under Sec. 96, sub-sec. 3, of the Civil Code, a cross-petition is defined to be,</p> <p>“The commencement of an action by a defendant against a eodefendant, &c.” and the appellees in this action were not parties to the action, and, therefore, cannot maintain a cross-petition against the appellant.</p> <p>2. The appellant cannot become a party defendant under See. 29 of the Civil Code, which provides that, “In an action or proceeding for recovery of real or personal property, or for the subjection thereof to a demand of the plaintiff,” any person claiming a right to the property may, before the payment of the proceeds to the plaintiff, file in the action his petition stating his claim and controverting that of the plaintiff, for the reason that the section only provides for the intervention by a claimant of specific personal or real property when it is sought to be recovered.</p> <p>3. The cross-petition, if filed as an original petition, does not state facts sufficient to constitute a cause for action again t the appellant, and peremptory instructions should have been given.</p> <p>4. The court erred in making Tye & Denham parties to the cross-petition, because the petition does not state a cause of action against Chandler, and he is'not made a party to the cross-petition.</p> <p>5. The court erred in admitting evidence as to the value of Appellee’s services, as well as other incompetent testimony.</p> <p>6. Because the court erred in its instructions given, and in refusing the instructions offered by the appellant.</p> <p>AUTHORITIES CITED!</p> <p>Civil Code, Sec. 96 sub-see., 3; Hubbell v. Dunlay, 19 Ky., R., 656; Leacock v. Hall, 13 B, Hon., 211; Jones v. Morehead, 3 B. Mon., 383; Clark v. Hunt, 7; J. J. Marshall, 243; Longest v. Breedon 9, Dana, 141.</p> <p>1. Attorney can prosecute the same action to a final judgment for his fees despite a settlement thereof between the plaintiff and defendant. (Forstman v. Sehulting, 35 Hun., 504; Talcottv. Bronson, 4 Paige, 501; Potter v. Ajax Mining Co., 22 Utah, 273; Smelker v. Railway, 106 Wise., 135; Herman v. Railway, 121, Fed. Rep.., 185; O’Brien v. Railway, 50 N. Y., Supp., 159; Manning v. Manning, 61 Ga., 137; Coleman v. Ryan, 58 Ga., 132.)</p> <p>2. It is not necessary that the appellant be guilty of fraud or bad faith in the compromise of this action, in order to make it liable for the appellees’ fee.</p> <p>3. Even though the special contract is void the attorney does not forfeit his claim to full compensation for his services, and a recovery may be had thereof on a quantum meruit. (Sterns v. Felker, .28 Wis., 294; Weeks on Attorneys, See., 345; 1 Am. & Eng. Ency. of Law, page 968-9.)</p> <p>4. A champertous contract being void, it is as if it had never been made, and it should not be allowed to affect the rights of the parties except in so far as they claim directly under it. (Rust v. Larue, 4 Litt., 412; Caldwell v. Shepherd, 6 Mon., 389; Wehmhoff v. Rutherford, 98 Ky., 97.)</p> <p>5. In the absence of a bill of exceptions it will be presumed that the evidence introduced in the court below supports the verdict and judgment. (Louisville Bridge Co. v. Neafus, 23 R., 183.)</p>

<p>Corporations — Advertising matter — Failure to print word “incorporated” on labels — Under Kentucky Statutes, section 576, requiring all corporations doing business in this State, with certain exceptions, to have under its name upon all “printed or advertising matter used by it, the word ‘incorporated’ in letters sufficiently large to be easily read,” corporations are not required to place the word “incorporated” under their corporate name printed on the labels of goods which it manufactures and sells. Labels are not advertí ing matter witbin the meaning of the statute.</p>

<p>Striking Case From Dicket — Re-instated.</p> <p>An'order striking an action from the docket, without any reservation or qualification, is a dismissal of the action without prejudice, and, being a final order the court loses jurisdiction to reinstate it after the expiration of the term at which it was made.</p>

<p>1. Chattel Mortgages — Priority—Failure to Record — Attachment. The lien acquired by the levy of an attachment has priority over an unrecorded mortgage of which the attaching creditor had no notice at the time the debt was created.</p> <p>2. Landlord and Tenant — Landlord’s Lien — Priorities.—A landlord’s lien on the crop was superior to that of an insurance company to whom the tenant gave a mortgage, but inferior to the lien of attaching creditors of the tenant; and the lien of the insurance company was superior to that of the attaching . creditors, hut inferior to the lien of the landlord. Held, that, as against the insurance company, the landlord was entitled to the proceeds of the crop, hut out of such sum, as between the landlord and the attaching creditors, their claims must be first paid, the landlord being entitled to the remainder.</p> <p>3. Chattel Mortgage — Lien Priorities. — Where a mortgage executed by a tenant on the crop expressly referred to a rent claim on the crop, the mortgagee could not subsequently be heard to assert that hi» lien was superior to that of the landlord.</p>

<p>1. Homestead — Rights of Surviving Infant Children — Statutes. Ky. St. 1903, Sec. 1707, providing that the homestead shall be for the use of the widow, and the unmarried infant children of the deceased husband shall foe entitled to the joint occupancy with her until the youngest unmarried child arrives; at full age, gives to the infant children of a deceased husband the joint occupancy, with the widow, of the homestead, and the fact that the infant children were not living with the father at his death does not deprive them of their statutory right.</p> <p>3. Guardian and Ward — Sureties—Liability—Á guardian of two of six infant children of a decedent rented the homestead and collected the rent. The four infants asserted no claim to it, and their right was barred by limitation. The guardian made no settlement for the rent collected. Held that, as the children were joint tenants, the renting of the homestead by the guardian was not wrongful, lie was liable to account for the rent received, and on his failure to do so the sureties on his bond were liable.</p> <p>3. Judgment — Res Judicata — An order striking an action from the docket without trial, being in effect an order dismissing the case without prejudice, is no bar to a subsequent action.</p>

<p>Case 53 — ACTION BY ALLIE DOWNS AGAINST THE ADMINISTRATOR OP .TOIiN DOWNS DECEASED FOR THE SETTLEMENT OF THE ESTATE AND TO SUBJECT IT TO THE SATISFACTION OF A JUDGMENT IN HER FAVOR AGAINST DECEASED. —</p> <p>Appeal from Henry Circuit Court.</p> <p>R. F. Peak, Circuit Judge.</p> <p>Judgment for Defendant. Plaintiff appeals.</p> <p>POINTS DISCUSSED.</p> <p>1. Missouri judgment for alimony enforceable in this State. (Young’s Trustee v. Bullen, 19 Rep., 1561; Atherton v. Atherton, 181 U. S., 156; Lynde v. Lynde, 181 U. S., 181; Harding v. Harding, 198 U. S., 317; Arrington v. Arrington, 127 N. C., 195.</p> <p>2. A Judgment for Alimony is mot a personal judgment, but in rem (Audubon v. Shufeldt, 181 U. S., 575; Guerren’s Admr. v. Ritchie, 91 S. W., 252.</p> <p>3. By Constitution of United States full faith and credit is to be given to Mí souri judgment as it is entitled to in that State.</p> <p>ADDITIONAL CITATIONS.</p> <p>Barber v. Barber, 21 Howard, page 582 & seq.; Audubon v. Shefeldt, 181 U. S., page 574; Calloway v. Glenn, 20 L. R., page 1447; Woods v. Woods, 78 Ky., page 629; Fisher v. Fredricks, 33 Mo., page 612; McHatton v. Rhodes, 76 Pacific R., page 1086; 52 Mo., page 55, 122 Mo., page 612; Wells v. Moore, 49 Mo., page 229, 45 Mo. app., page 287, 108 U. S., page 418; Gould v. Robertson, 91 U. S., page 534; Howard v. Howard, 15 Mass., page 196; Freemon on Judgments, Secs. 260, 265 & 267; Gould v. Evansville & C. R. R., 91 U. S., page 526; Kelley v. Kelley, 42 Am. Stat. R., page 398, 45 Am. St. Rep., 872, 37 L. R. A., page 805, 31 L. R. A., page 740; 41 L. R. A., page 504, 25 L. R. A., page 699; Miller Bros. Co. v. Capitol Ins. Co., 82 Iowa, page 52; Ambler v. Whipple, 32 Iowa, page 202; Turner v. Turner, 54 A. M. R., page 437, 5 Wall, page 592, Wells on Res AdJudicata; Babcock v. Marshall, 50 S. W., page 728; Maynard v. Waidrich, 156 Ind., page 575; Gilmore v. McClure, 138 Ind.,. page 576; Thompson v. Whitman, 18 Wall, page 547, U. State Statute, Sec. 906, 107 U. S., page 10; Biglow on Estoppel; Gala way v. Glenn, 20 L. R.,. page 1447).</p> <p>AUTHORITIES CITED.</p> <p>1. Divorce May Be Obtained on Constructive Service. (Rhyme v. Rhyme, 7 Bush, 316; Hall v. Hall, 102 Ky., 297; Atherton v. Atherton, 181 U. S., 155).</p> <p>2. Personal Judgment for Alimony Can Not Be. (Pennoyer v. Neff, 5 Otto., U. S., 714; Prosser v. Warner, 19 Am. Rep., 132; Kline v. Kline, 42 Am. Rep., 47; De La Montanya v. De La Montanya, 32 L. R. A., 82; Brown v. Campbell, 38 Am. St. Rep., 314; Rigney v. Rigney, 24 Am. St. Rep., 462; Williams v. Preston, 3 J. J. M., 660; Cobb v. Haynes, 8 B. M., 137; Kerr V. Condy, 9 Bush, 372; Civil Code, Secs. 56, 419).</p> <p>3. If petition on foreign judgment shows judgment was obtained on constructive service demurrer should be sustained. (Kerr v. Condy, 9 Bush, 372).</p> <p>4. Indiana judgment valid and a bar. (Rogers v. Coleman, Hardin, 413; Kerr v. Condy, 9 Bush, 373; Rogers v. Rogers, 15 B. M., 364; Calloway v. Glenn, 105 Ky., 648; Am. & Eng. Encye. of Law, Yol. 13, page 977). 7. Judgment on Demurrer is bar. (Thomas v. Bland, 91 Ky., 1; Wooley v. Louisville Banking’ Co., 81 Ky., 527; Am. & Eng. Eneyc. of Law, Yol. 24, paga 798 & 799).</p>

<p>Case 54 — PROSECUTION AGAINST WILLIAM BRITTON FOR MURDER. —</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1. It is a prejudicial error to permit the Commonwealth’s Attorney to ask the defendant, on cross-examination, if he has committed other crimes or been indicted for other offenses than that for which he is being tried. (Parker v. Commonwealth, 21 R., 407; Baker v. Commonwealth, 20 R., 1778; Le fie v. Common-' wealth, 19 R., 1203; Saylor v. Commonwealth, 17 R., 100).</p> <p>2. It .is the duty of the Attorney for the Commonwealth to represent the interest of the Commonwealth with his utmost ability but it is not his duty to make a statement of fact, the credence of which is more or less strengthened by his official position, outside of the record, which may tend in the least degree to prejudice the rights of the accused. The statement of the Commonwealth’s Attorney in his argument that it would do defendant no good to acquit him because he stood indicted in Virginia for murder and would have to go there for trial if acquitted, was prejudicial. His declaration, that there was more at stake in the result of this trial than the rights of the defendant, and that the restoration of peace and law and order in Breathitt Couny depended upon the conviction of defendant, was prejudicial. (Cook v. Commonwealth, 86 Ky., 666; Gilbert v. Commonwealth, 21 R., 545; Rhodes v. Comomnwealth, 21 R. 1071).</p> <p>3. When indictment charges two offenses which are inconsistent, the Commonwealth should be required to elect which count it would prosecute. (Criminal Code, See. 122; Able v. Commonwealth, 5 Bush, 698).</p> <p>4. A defendant must be tried by a jury of the vicinage, unless a change of venue is granted in due’form of law. (Constitution of Ky., Sec. 11). Section 1147, Kentucky Statutes is unconstitutional. “It is the giving of blows and the infliction of the wounds that constitute the offense, and dying within a year and a day merely constitutes the grade of the crime. To support the statute,” (Statute of Edward the VI which is identical with Ky. Statute 1147,) “upon the ground that the murder was commenced in one and completed in .another county is to ignore the reason for guaranteeing to the accused the right to be tried by a jury of the vicinage.” (Parker v. Commonwealth, 12 Bush, 194).</p> <p>Our contention in this prosecution is;</p> <p>1. No error was committed by the lower eourt in not requiring the Commonwealth to elect on which count in the indictment it would prosecute the defenadnt. (Prickett v. Commonwealth, 13 Ky. Law Rep., 466; Combs v. Commonwealth, 15 Ky. Law Rep.', 620).</p> <p>2. Apxiellants claim of misconduct on the part of counsel for the Commonwealth is not well taken. (Cook v. Com., 86 Ky. 666; Gilbert v. Commonwealth, 21 Ky. Law Rep., 545; Rhodes v. Commonwealth, Ky. Law Rep., 1071).</p> <p>3. The Fayette Circuit Court had jurisdiction to try the prosecution. (Commonwealth v. Jone's, judge, 26 Ky. Law Rep., 867; Hargis v. Parker, 27 Ky. Law Rep., 441).</p> <p>4. The verdict of the jury is not contrary to the evidence.</p> <p>5. The court did not err in the admission of evidence to the jury. (Criminal Code, Sec. 340).</p> <p>6. We submit on the whole case, that the appellant has had a fair and impartial trial, and no error has been committed prejudicial to his substantial rights.</p>

<p>Case 5.). — ACTION BY MARION ROBINSON AGAINST JOHN M. CARLTON AND OTHERS FOR AN INJUNCTION RESTRAINING THEM FROM SELLING HIS LAND UNDER A VOID JUDGMENT. —</p> <p>Appeal from Grant Circuit Court.</p> <p>John M. Lassing, Circuit Judge.</p> <p>From a judgment dismissing Plaintiff’s petition on demurrer lie appeals.</p> <p>On demurrer the allegations of the petition must be taken as true and it is submitted that the line of cases cited with approval in the case of (Jacobson &c. v. Wernert, 19 Ky. Law Rep., 663) has no application to the case at bar, but that the law governing the case at bar is found and fully set out in the case of (Bean v. Everett, 21 Ky. Law Rep., 1790).</p> <p>1. We submit that taking all the allegations of plaintiff’s petition and amended petition he said nothing more nor less than that be was never served with process from'the Justices’ court in which the judgment was rendered against him, and if we are correct in this, such an error could only be corrected in the court rendering the judgment.</p> <p>2. Appellant no where in his petition denies that he owed appellee the debt he is claiming.</p>

<p>Taxation — Erroneous Assessment — Action of Taxpayer . Against Assessor — Necessary Allegations — An action can not be maintained by a taxpayer against a county assessor, for damages for erroneously assessing his property, in the absence of an allegation that the assessor, in making the assessment, acted corruptly or maliciously.</p>

<p>Case 57. — ACTION BY MIKE HATFIELD BY HIS NEXT FRIEND AGAINST W. Q. ADAMS, FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from' Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for Defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is the duty of the master who employs a youthful or inexperienced servant and subjects him to the control of another servant to see that ho is not employed in a more dangerous or hazardous position than that for which he was employed and to give him such warning of his danger as his youth or inexperience demands and this responsibility cannot be shifted to another servant. (McKinney on Fellow Servant, Secs. 24, 39 and authorities cited in support of-text. Hinckley v. Horazdowsky, L. R. A., 490; Sherman and Redfield on Negligence, 5th Edition, section 146; Cohen y. D. D. & B. R. R. Co., 69 N. Y., 170; Thompson on Negligence, Vol. 1; See. 523; City of Owensboro v. York, Admr. 25 Ky. Law Rep., 1399).</p> <p>2.Where the evidence conduces in any degree to establish the right of recovery, it is improper to give a peremptory instruction, and in determining whether such instruction should be given, the court should look alone to the evidence of the plaintiff, (L. & N. R. R. Co. v. Howard, 82 Ky., 212; 6 Rep., 163; Shelby v. C. M. O. & T. P. R. R. Co., 85 Ky.,,224, 8 Rep., 928; Zeigle v. Robertson, 12 Rep., 558; Tubb v. Cincinnati R. R. Co., 7 Rep., 528; Com. v. Tate, 89 Ky., 587, 12 Rep., 1; Wood v. McCombs, 5 Rep., 694; Curtis v. Bouisville City R. R. Co., 14 Rep., 271; Buford v. L. & N. R. R. Co., 82 Ky., 286).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The appellant can rely only on such errors as were assigned as grounds for a new trial in the court below, and for this reason the only question to be considered on this appeal is, as to whether the peremptory instruction should have been given to the jury. (McLain v. Dibble & Co., 13 Bush, 297; Commonwealth &c. v. Williams, &c., 14 Bush, 297; American Ins. Co. of New York v. Austin, &c., 18 R., 632; Green v. Culver Hull & Co., &c., 19 R., 186; Blythe v. Owen, 3 R., 328; Bank of Columbia v. Bush 3 R., 692; Combs v. Hargis, 4 R., 446; Artsman v Thomas, 4 R., 430; Burks v. McFela, 4 R., 833; Barclay v. Smallhouse, 4 R., 894; Ruark v. Mansfield, 5 R., 851; Cen. Pass. R. Co. v. Speith, 10 R., 157).</p> <p>2. The doctrine of respondeat superior rests on the law of agency and the negligent 'servant must have such relation to the master and to the injured.party as will make his act the act of his principal. The alleged negligent servant in this case did not occupy such relation to the injured servant, and master as to make his alleged negligent act the act of the principal, and the peremptory instruction given by the court below was proper. (L. & N. R. Co. v. Collins, 63 Ky., 114; Volz v. Chas. &c. R. Co., 95 Ky., 188; Labatt on Master & Servant,' section 470).</p> <p>3. What is known as the “department doctrine” is in force in this state. (Labatt on Master & Servant, sections 500 and 549 and Kentucky, cases cited in notes to last section, also cases ■cited in number 2).</p> <p>4. Under the averments of the petition and the evidence on both sides, Pendleton had no power or authority to direct the appellant in the department in which he was injured, and the fact that the appellant may have done the thing in the doing of which he was injured, by the direction of Pendleton does not strengthen his position. .(Labatt on Master & Servant, 631.)</p> <p>5.' The rule is that when the facts alleged to constitute negligence are admitted, or are established by undisputed testimony, the question of negligence is one of law for the court, and it is the duty of the court to declare the law applicable to them. (Henderson Trust Co. &c. v. Stuart, 21 K.., 1664.)</p>

<p>1. Acknowledgment — False Certificate — Liability of Officer — Clerk of Court — A county clerk, who, in taking an acknowledgment, exercises such diligence as a reasonably prudent person would exercise under like circumstances, performs faithfully his official duties and complies with his bond and oath of office.</p> <p>2. Same — Negligence—Evidence—In an action on the official bond of a county clerk for damages occasioned by a false certificate of acknowledgment, evidence that the deputy clerk took the acknowledgment of an imposter made a prima facie case of negligence, casting on the clerk the burden of showing .that his deputy in taking the acknowledgment used care and diligence to prevent the fraud.</p> <p>3. Same — Questions for Jury — In such case evidence that the imposter whose acknowledgment was tallen was introduced to the deputy by a reputable business man, who attested the signature of the person whose acknowledgment purported to be taken, was competent to show the clerk’s diligence, but whether it was sufficient to overcome the prima facie case was for the jury.</p> <p>4. Appeal — Findings by Court — Reversal—Where the parties waive a jury and submit the case to the court, its judgment on the facts is entitled to the same force as a verdict, and will not be disturbed unless flagrantly against the evidence.</p>

<p>1. Intoxicating Liquors — Local Option — Sale by Manufacturer — Ky. St. 1903, Sec. 2558, a part of the local option act of March 10, 1894, provides that the provisions of this act shall not apply to any manufacturer or wholesale dealer, who, in good faith, and in the usual course of trade, sells by the wholesale, in at least five-gallon quantities. Acts 1904, p. 160, e. 76, entitled “An act to regulate the sale of intoxicating liquors by wholesale in this commonwealth,” declares it unlawful to sell by wholesale intoxicating liquors (except manufacturers selling liquors of their own make) in any local option district. Held that the act of 1904 forbids wholesaling of intoxicants in local option districts, excepting only that a manufacturer may sell at his manufactory, though that be in such district.</p>

<p>1. Railroads — Ejecting a Passenger — Allegations—Cause of Action —In an action against a railroad company for damages in eject1 ing plaintiff from its train for failure to pay her fare or to present her ticket which she claimed she had lost, the court properly allowed the plaintiff to file an amended petition alleging that the conductor rudely and roughly grabbed her by the arm and jerked her from her seat and roughly ordered her from tlie train, as the petition as amended presented hut one cause of action.</p> <p>3. Erroneous Instruction — In an action by one claiming- to be a passenger, for damages for being wrongfully ejected from a train, by its conductor, it was error in the court to instruct the jury that if they find that the conductor was insulting in manner, word or tone toward plaintiff or rudely or' roughly grabbed her by the arm or used more force than was necessary to put her off the train, they'should find for plaintiff damages in any sum not exceeding $3,000 for ejecting plaintiff from the train.</p> <p>3. Proper Instructions — The jury should have been told that defendant had the right to eject plaintiff if she produced no ticket or tendered no fare, and could not recover for being so ■ejected, hut, that her right of recovery, if any, was based upon some injury received by her at the hands of the conductor while he was expelling her from the train, or because of some insult or indignity offered her while being expelled by him.</p> <p>4. Same — In such an action the jury'should have been instructed that if they believed from the evidence that the plaintiff was wrongful!y ejected, she should recover such sum as will compensate her for the loss of time, if any, and for the pain and suffering she endured, if any, by reason of undue or unnecessary force, if any, used by the conductor, or the humiliation and mortification, if any, which she suffered because of the use of abusive or insulting language to her by the conductor, if any, while ejecting her from the train.'</p> <p>5. Excessive Verdict — The sum of $1,000 awarded as damages in this case is excessive.</p>

<p>Infants — Judgments—Vacation after Attaining Majority — Proceedings by an infant after attaining majority to vacate a judgment against bim must be by petition, as provided by Code Civ. Prac. sections 391, 518, subsec. 8, and sections 520, and, being by motion to redocket the case, a denial thereof is proper.</p>

<p>1. Railroads — Employe—Duty to Passengers — Special Attention — It is not incumbent on the employes of a railroad company to be on the lookout to discover that any particular passenger needs special assistance. But if a passenger is in need of special assistance and this fact is known to the employes it is their duty to render it, but they are not required to anticipate such wants or needs.</p> <p>2. ' Same — Instruction to Jury — Lighting Steps of Platform — An instruction to the jury that it was the duty of the railroad company to have its platform or stations lighted that the plaintiff might clearly see the steps and platform, is erroneous. All that was required of it was to have its steps and platform so reasonably lighted that the ordinary traveler could see sufficiently to alight from the train in safety..</p>

<p>Case 63 — PROSECUTION AGAINST JOE LANDRUM FOR MANSLAUGHTER,</p> <p>Appeal from Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>Case 64 — ACTION BY THE HENDERSON ELEVATOR CO. . AGAINST THE CITIZENS INSURANCE CO. Off MISSOURI ON A EIRE INSURANCE POLICY,</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. This appeal is from the judgment for $1,200.00 on an insurance policy.</p> <p>2. The defendant cancelled the policy, as provided therein, before the fire.</p> <p>3. Plaintiff claims that the policy was, by agreement of the agent issuing it, to remain in force until other insurance was obtained.</p> <p>4. This agent had no authority to attach such condition to the cancellation. (Schwarzchild & Sulzberger v. Phoenix Ins. Co. 55 Fed. Rep. 635). May on Ins. Ward ed. Yol. 1., See. 67 E.</p> <p>5. The court in its instructions does not tell the jury what acts would cancel the policy, but apparently holds the delivery of the policy to be marked cancelled was requisite. When the insured had the five days’ notice that the insurance was discontinued that cancelled the policy.</p> <p>6. It was not necessary to return the unearned premium as the plaintiff authorized it to be used in getting other insurance. (Former judgment rendered on the first appeal of this ease Jan’y. 25, 1905). 84 S. W. R. 580 — 16th Am. & Eng. Enc. of Law 875.</p> <p>7. The defendant’s instructions as to cancellation, and lack of authority in the agent to make it conditional, were erroneously refused. (Miller vs. Firemans Ins. Co. of Baltimore, Dec., of the Supreme Court of West Ya. reported in Insurance Law Journal Feb., 1904, page 149). May on Ins. vol 1, sec. 67 E.</p> <p>8. Prejudicial errors were committed in admitting and rejecting evidence. Exceptions to this ruling and to the instructions given and refused were duly reserved.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Notice that the insurance company is dissatisfied and is going to cancel the policy, is not notice that the company has cancelled, or instructed its agent to cancel. It takes something more than notice of a mere intuition, it takes a positive, unconditional act. The policy must be actually cancelled, and notice of the act of cancellation given, then five days thereafter the policy becomes canceled.</p> <p>2. In all questions of agency there are certain well established principles to be applied. One of these is that the acts of the agents, within the apparent scope of his authority, are binding on the principal, even though the agent may have sent instructions to do, or not to do a particular act.</p> <p>3. The-agent may cancel a policy even without instructions from his principal. Any act of an agent, having general authority, as appellants agents are shown to have had in this case, having direct reference to the contract, while it is still in force, is the act of the company. (Continental Insurance Co. v. Daniel, 78 S. W. 866; Clark v. Insurance Co. of North America, 35 L. R. A. 276).</p>

<p>1. Assignments — Checks—Appropriation of Bank Deposit — As between tbe bolder of a check for value in due course and one asserting a junior lien on tbe drawer’s bank deposit, tbe check oprated as a pro tanto appropriation of the deposit prior to the change in the law hy Negotiable Instruments Law (Acts 1904, p. 350) see. 189.</p> <p>а. Same — Negotiability of Checks — Checks are negotiable instruments both at common law and under the express provisions of Ky. St. 1903, sec. 478.</p> <p>3. Garnishment — Debts Evidenced by Check — Debts evidenced by bank checks are not subject to garnishment if the check is actually discounted for value in due course by an innocent purchaser,although it may not be discounted until after service of the writ.</p> <p>4. Same — Where a check was drawn merely to transfer the amount thereof to the drawer’s account in a different bank, it did nc t operate as a pro tanto appropriation of the drawer’s account in the drawee bank as against a garnishing creditor of the drawer prior to actual payment by the drawee bank, though the bank prior to the payment had notified the isayee bank that the check would be paid on presentation.</p> <p>5. Same — Debts Included in Garnishment — Civ. Code Prac. see. 203, provides that, if property attached be stock in a corporation, the corporation may be summoned as garnishee, and section 222 declares that, in proceedings on such attachment, the garnishee may pay the debt owing to, or deliver the property held for, his debtor, to the sheriff, and to that extent be discharged from liability to the debtor, but section 224 declares that each garnishee summoned must appear, though he may have delivered the property or fund to the sheriff, and that, in case of a corporation, any shares of stock held therein by or for the benefit of the defendant “at or after the service of the order of attachment” shall be subject to the wz-it. Held, that the words “at or after” in section 224 related only to corporate stock, and that the writ did not cover other indebtedness which accrued after service.</p> <p>б. Same — Correction of Record — Notice to Garnishee — Where a correction of the record with reference to the name of the defendant was not made until after the garnishee had appeared, answered, and been dischai’ged, the garnishee was not bound to notice such correction unless a new order of attachment was served on it.</p>

<p>Case 66 — ELECTION CONTEST BY S. B. HOLLIDAY AGAINST M. C. EVERSOLE FOR SHERIFF,</p> <p>Appeal from Perry Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for contestant. Contestee appeals.</p> <p>QUESTIONS RAISED AND DISCUSSED.</p> <p>1.That the petition of the appellant to be placed upon the ballot was not insufficient in: “That it designated no ¡party or principle, or device to represent his candidacy.”</p> <p>2. That the County Court Clerk did not fail to observe the provisions of section 1460 of the Kentucky Statutes in the preparation and arrangement of the ballot.</p> <p>3. That there was no fraud practiced by the clerk and that there was no collusion between him and the appellant, in the arrangement of the ballot.</p> <p>4. That the ballots stenciled in a party device and also in an independent, or separate device, should- be counted for the independent candidate. 5.That the election was not fraudulent or unfair in Campbell, Forked-Mouth, Carr’s Fork, Leatherwood and the Two Town Precincts, and that the returns of none should be thrown out.</p> <p>AUTHORITIES CITED.</p> <p>(Sec. 1453, Ky. Statutes; Cooley on Constitutional Limitation, page 92; Hollon v. Center, 19th Ky. L. R. 1134, 102 Ky. 123; Wilkins v. Duffy, 70 S. W. 673., see. 1460, Ky. Statutes; Little v. Hall, 70 S. W. 642; Napier v. Cornett, 24th K. L. R. 576; 68 S. W. 1076; McCrary Elections, sec. 495; Tunks v. Vincent, 51 S. W. 622; sec. 1454, Ky. Statutes; Skidmore v. Hurst, 24th R. 536; Wilkins v. Duffy, 24th R. 932; Keller v. Ferguson, etc., 24 Ky. L. R. 1208; Edwards v. Logan, 24 Ky. L. R. 1099; Heroes v. Perry, 92 Ky. 961.)</p> <p>1. A certificate of nomination for county offices must be filed not less than 15 days before the election. (Hollon v. Center, 102 Ky. 119, sec. 1456, Ky. Statutes.)</p> <p>2. The Statute above cited, relating to the preparation of petitions to be placed on the official ballots, is mandatory and must be strictly complied with. (Skidmore v. Hurst, 24 Ky. R. 536.)</p> <p>3. The arrangement of the ballot at this election shows a fraud upon its facé,</p> <p>4. The placing of appellant's name upon the official ballots was a fraudulent act of county elerk and himself.</p> <p>5. The certificate of nominating appellant, Eversole, was a valid and subsisting certificate and entitled to all the credits as such on the entire day, October 23d, the last day for filing certificates or petitions.</p> <p>6. As appellant had a certificate of nomination on file with the clerk October 23d, and also a petition asking to be placed on the ballot, it was imperative that he (file a statement, in writing, on or before the day selecting his device.</p> <p>7. Appellee charges fraud and collusion between appellant and the county court clerk in the preparation of the official ballots used at said election, and the proof in the record sustains the charge.</p> <p>8. It is shown that the clerk was an ardent supporter of appellants and was on election day, in one of the voting precincts electioneering for him all day.</p> <p>9. It is in j)roof that some of the ballots were voted in as many as five different circles and that comparatively few were voted in the square, opposite the name of the independent candidate, as the law provides.</p> <p>10. We insist that the conduct of the election, in at least three or more precincts, rendered the vote at these places invalid, and their vote should be disregarded.</p> <p>AUTHORITIES.</p> <p>(Major v. Barker, 99 Ky. 305; Creech v. Davis, 21 Ky. Law Rep. 325; Skidmore v. Hurst, 24 Ky. Law Rep. 536; Banks v. Sergent, 104 Ky. 843; Anderson'v. Likens, 104 Ky. 699; Southall v. Griffith, 37 S. W. 577; Bates v. Crumbaugh, 24Ky. Law Rep. 1205; Hollon v. Center, 102 Ky. 119; Ky. Stats, secs. 1453, 1454, 1456, 4460.)</p>

<p>Public Nuisance — Selling Liquor — Suffering Disorderly Crowds Near Premises — A corporation though having a license to sell whisky by wholesale or even by retail, in a small town, has no right to allow the assembling around its premises of noisy, drunken boisterous crowds, whose insolence and profanity made the use of the highway in the neighborhood, by women, always unpleasant and some times dangerous, and may be indicted for maintaining a public nuisance on its premises.</p>

<p>Case 68 — ACTION BY COURTNEY D. JAG-OE AGAINST THE AETNA LIFE INSURANCE COMPANY,</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, 1st Division.)</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for Defendant. Plaintiff appeals.</p> <p>1. The interest which appellant agreed to pay on the loan, and which was the maximum rate authorized by law, was the sole consideration of the loan. If to this interest, which was at the rate of 6 per cent, per annum and payable annually in advance, any other thing of value was added to be parted with by him, or if any disadvantage was to be suffered by him as a further consideration for the use of the money, such additional undertakings on his part were absolutely void, being usurious and expressly prohibited by statute.</p> <p>2. Appellant had the undoubted right to require the company to lend him the $124.00 on the 8th day of March, 1904, and by executing his promissory note to the appellee for that sum, payable as to principal and interest at such times and places as the regulations of the company required, and secured by the -pledge of his policy, he complied literally with the letter and spirit of the contract, and was entitled to the use of the money thus loaned until the maturity of his note, and was further the owner of what may be called paid-up, temporary or extended insurance for $1,500, for the period of time expiring July 20, 1910.</p> <p>3. When appellant executed the loan agreement on March 8, 1904, he parted with valuable rights, without receiving in return any benefit whatever on account thereof. ■ That agreement was and is entirely without consideration. It is a most inequitable, unjust, unfair and unconscionable transaction. It involves by its very terms the infliction of a penalty, and the forfeiture of a valuable right, without conferring any new benefit or bestowing any advantage upon the assured as the price of a sacrifice.</p> <p>4. We submit that the averments of the second paragraph of the answer do not present a meritorious or valid defence, and that the chancellor erred in overrulling appellant’s demurrer thereto.</p> <p>CASES CITED.</p> <p>(115 I-Cy. 681, Druey’s Adm’x v. New York Life Ins. Co. Ky., Statutes, sec. 460; Ky. Statutes, sec. 656.)</p> <p>1. When the insured ceases to pay premiums the policy lapses and becomes void save to the extent of the agreed surrender values, options or privileges, and such lapse of the policy is not a forfeiture. (St. Louis Mut. Life Ins. Co. v. Grigsby, 10 Bush, 310; Crutchfield v. Union Central Life Ins. Co., 113 Ky. 53.</p> <p>2. It is a reasonable regulation to provide in a policy or in a loan note that where there is indebtedness upon a policy, then no extended insurance can be granted, but only the equivalent privileges option or surrender value known as a paid-up policy, otherwise the insured might use up his policy value, in the extended insurance, default upon all his premiums, not pay his indebtedness, and leave nothing upon which the lien to secure his loan could be foreclosed or out of which it could be paid.</p> <p>3. “Indebtedness is an actual liability either to pay then or at a future time.” Bouvier’s Dictionary and authorities cited therein.</p> <p>4. An election brought about by failure to pay premium and an agreement it shall come to pass is a default in payment of premiums shall occur, is not an enforced election in the meaning of the law and constitutes no forfeiture or penalty. In this respect it differs from an election which is coerced for default in the payment of a loan. Elections brought about by default in the payment of a premium, as in this case, have been frequently upheld by our courts. (New York Life Ins. Co. v. Meinken’s Adm’r. 25 Ky. Law Rep. 2113; Winchell v. John Hancock Life Ins. Co. 8 Ins. Law J. 652; Knapp v. Homeopath Mut. Life Ins. Co. 117 U. S. 44; Douglass v. Knickerbocker Life Ins. Co. 83 N. Y. 492; Mut. Ben. Life Ins. Co., v. Harvey, 25 K. 1192; Mut. Ben. Life Ins. Co. v. First National Bank, 115 Ky. 774, 25 R. 178.)</p> <p>5. In this case, the settlement between appellant and the insurance company was in exact accordance with the loan note or agreement. He borrowed money on the policy almost equivalent to its value. He defaulted in subsequent premiums. The company notified him that his policy had lapsed for failure to pay a premium and that the value of his policy had been applied upon his loan in accordance with the agreement, and also in accordance with the agreement, an election had been made in favor of a paid-up policy in such a sum as the balance remaining out of the value of his policy would purchase as a single premium, which in this ease turned out to .be the policy of $91.00. All this was done before the death of the insured, no objection was ever made by the insured, everything was done in accordance with .the agreements between the parties.</p>

<p>Case 69 — ACTION BY DAVID STRUNK AGAINST THE PROCTOR COAL CO. FOR BREACH OF CONTRACT,</p> <p>Appeal' from Whitley Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>.Judgment for Plaintiff. Defendant appeals.</p> <p>1. We insist that the execution of the second contract covering it as it did the same subject matter as the ’first, was a complete merger of the first, and thereafter no right of action existed upon the first at all.</p> <p>2. What fraud or misrepresentation the defendant relied on is not specified in the pleadings and is not elucidated by the-evidence. There is absolutely no testimony, not even of the plaintiff himself, showing or tending to show that any fraud was practiced upon him in the obtainment of the second contract.</p> <p>3. The instructions were abstract and misleading, and confounded the duty of the defendant under the two contracts when the first contract was merged in the second.</p> <p>AUTHORITIES CITED.</p> <p>McCreary v. Day, 6. L. R. A., 503; Memphis v. Brown, 87 U. S., 20,. Wallace, 289; Collyr v. Moulton, R. I., 90; 98 Amer. Dec., 370; .Stowe v. Russell, 36 111., 18; Parish &c. v. U. S., 8; Wallace, 489; U. S. &c. v. Lamont, &e., 155 U. S., 303, 39 L. Ed., 160; Gilbert v. United States, 8 Wallace, 378.</p> <p>1. The only point upon which the appellant relies for a reversal is that the first contract was discharged by the second</p> <p>2. The first contract is unlimited as to its duration and the second is limited to one year with privilege of renewal from year to year by mutual consent.</p> <p>3. There can be no question that a later contract between «ame parties may discharge or abrogate a prior contract, but in order for it to do so these several facts as well as others must appear, to-wit:</p> <p>(a.) The new contract must be entered into for the purpose of discharging first contract.</p> <p>(b.) The new contract must cover the same subject matter and have the same scope as the old contract.</p> <p>(c.¡ Second contract must be so far inconsistent with the first that the two can not subsist together.</p> <p>Page on Contracts, vol. 3 secs. 1339, 1440; Amer. & Eng. Eneys. Law, Yol. 3, page 891, See. 59; Anson on Contracts, page 342; Paul v. Meservey, 58 Me., 419.</p> <p>4. The second contract is much more onerous on the appellee than the first. By the second contract the appellee is made to assume new burdens and the appellant is relieved from burdens which it had assumed in the first contract..</p> <p>5. There is certainly evidence to support the verdict and no complaint is made that is it so excessive as to indicate passion or prejudice This court can not invade the province of the jury and say the verdict is against the weight of the evidence even *f it be of the opinion that such is the case. (Bell, Coggeshall Co. v. Lewis, 28 R.)</p> <p>AUTHORITIES CITED.</p> <p>The Hauser, Brenner & Fath Co. v. Tate & Co., 20 R., 1716; Blood v. Herring, 22 R., 1725; C. N. O. T. P. Ry. Co.’s Receiver v. Curd, 22 R., 1222; Page on Contracts, Yol. 3, Sec. 1340; Rhodes v. Ry., 55 L. R. A., 170; Evans v. Stone, 80 Ky., 78; Whitehead v. Root, 2 Met., 584; Billingsley v. Stratton, 11 Ind., 396.</p>

<p>Banks — Declaring Dividends — Statute—Liability of Directors — It is tbe duty of bank directors to use ordinary care to acquaint themselves with the condition of the business of the bank and to exercise reasonable control and supervision of the officers, and in declaring dividends they will not be permitted to shield themselves from personal liability under the statute (Kentucky Statutes, sections 538, 548, 596 and 598), upon the ground that they did not knowingly violate its provisions.</p>

<p>Case 71. — ELECTION CONTEST BY R. G. CARY, AGAINST ELLSWORTH McEUEN FOR THE OFFICE OF COUNTY CLERK OF McLEAN COUNTY. —</p> <p>Appeal from McLean Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for contestant. Contestee appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The Demurrer to the appellant’s answer was properly overruled. If the election officers had failed or refused' to correct the returns from the precinct in question, the appellant could have maintained an action for a mandatory injunction, compelling them to make the correction. (Clark v. McKenzie, 7 Bush, 528. Bennett v. Richards, etc., 83rd, S. W. Rep., 154.)</p> <p>2. Informalities in the certificate from an election precinct are not sufficient to deprive the candidates of the votes received by them in such precinct. (Keller v. Ferguson, 24 Ky. Daw. Rep.,-1210; Clark v. McKenzie, 7th Bush, 526; Preston v: Price, 27th Ky. Law Rep., 588; Anderson v. Likens, 104th, Ky., 713.)</p> <p>3.The duplicate certificates made by the election officers of the precinct in question are competent evidence as to the result in that precinct, and have the same legal effect as the certificate pasted in the stub-book returned from the precinct. (Anderson v. Likens, 104th, Ky., 712.)</p> <p>4. The charge in the petition that the election officers were guilty of misconduct in absenting themselves from the voting place, is not sustained by the evidence. It is shown that only one or two of the officers left the voting place, and then only for some necessary purpose and for the shortest possible time. This was not misconduct. (Major v. Barker, 99th Ky., 305; Anderson v. Likens, 104 Ky., 710.)</p> <p>5. The charge that the election officers were guilty of misconduct in having whiskey in the voting place, is refuted by the testimony, which shows that not one of the officers was intoxicated, or was under the influence of liquor at all. (Bailey v. Hurst, 113th Ky., 699.)</p> <p>6. Under the evidence as to the condition of the ballots from Rumsey precinct, and the manner in which they had been kept, these ballots were not admissible as évidence and cannot be considered for any purpose. (Hamilton v. Young, 26th Ky. Law Rep., 447; Edwards v. Logan, 24th Ky. Law Rep., 1099.)</p> <p>SYNOPSIS OF ARGUMENT AND AUTHORITIES.</p> <p>1. The evidence given by the officers of election that the result in the Rumsey precinct between the parties to this appeal was different from that contained in their official certificate which they made in the back of the stub book was not competent and can be considered for no purpose whatever.</p> <p>2. In the absence of any evidence that either the ballot box. the locks or the ballots contained in the box had been tampered with (and there is no such evidence in this case) the court will count the ballots and the result thus ascertained is the very best evidence of the vote east at the precinct in question.</p> <p>3. The election officers of Rumsey precinct h.id no basis or data upon which to make any statement whatever as to the vote cast in that precinct except the official certificate in the back of the stub book, therefore any oral evidence given by them was from recollection alone and it is incompetent.</p> <p>4. The officers of Rumsey election precinct had no power or authority to change the result as certified by themselves on the night of the election from their precinct two or three days later and especially as that pretended change was based as one upon their mere pretended recollection.</p> <p>5. The Court must not overlook the fact that all the election officers for Rumsey precinct were hostile to Appellee.</p> <p>AUTHORITIES CITED BY APPELLEE.</p> <p>1. Election officers of Rumsey precinct had no power to change their returns after they delivered the ballot box and poll books to the County Court Clerk and the lower Court should have so held. (McCreary on Elections, 4 Ed., Sections, 234, 259, 260; O’Gorman v. Richter, 31 Minn.; McCreary on Elections, Section 265, [4 Ed.]; Morgan v. Quaekenbush, 22 Barbour, N. Y., 72; State v. Calvert, 98 N. C., 580; McCreary on Elections, Section 267; [4 Ed.]; Brown v. Hixon, 45 Mo., 430; Gooding v. Wilson, 42 Mo., and note 7; People v. Albany County Canvassers, 46 Hun. N. Y., 390; McCreary on Elections, [4 Ed.,] Section 268; Clark v. Bucannon, 2 Minn., 346; Re Board of Canvassers, 12) N. Y., Supp., 174; Rice v. Board of Kansas, 50 Kan.-; State v. Donnewirth, 21 Ohio St., 216; 10 American & Eng. Ency., 2 Ed., 750; 15 La., 464; State v. Knight, 6 Houst. [Delaware], 146; People v. Board of Town Canvassers, 19 N. Y., Supp. 206.)</p> <p>2. Effect of Conflicting Certificates. We contend that where certificates are conflicting, no importance can be attached to them and that the ballots must be considered, or else the vote from the precinct must be disregarded. (American &' Eng. Ency., Yol. 10, 2 Ed., 764; Ewing v. Thompson, 43 Pa. St., 372; American & Eng. Ency., Yol. 10, page 736; Hadley v. City of Albany, 88 American Dec., 412; Rosenthal v. State Board of Canvassers, 19 L. R. A., 158.) ,</p> <p>3. A distinction between the ease where election officers have completed their work and have not completed it, regardless of whether they did their work right or wrong, considered. (City of Louisville v. Board of Park Commissioners, 112 Ky.; Payne on Elections, Sections 590-622; Hamilton v. Young, 26 Ky., L. R., 422-53; Kellar v. Ferguson, 24 Ky., L. R., 1205-1216; Preston v. Price, 27 Ky., L. R., 598.)</p> <p>4. Ballots will overthrow election returns where ballots have been kept intact. (Anderson v. Likens, 104 Ky., Boone County Judge v. Kenner, 104 Ky.)</p>

Case 72. — ACTION BY JOHN STEVENS AGAINST HULDA STEVENS EOR DIVORCE. — Appeal from Jefferson Circuit Court (Chancery Branch, 2d Division.) Sterling B. Toney, Judge. Judgment for Defendant. Plaintiff appeals. 1. We are complaining that the chancellor erred against the law and evidence in refusing to appellant the divorce a vinculo matrimonii prayed by him in his petition. 2.

<p>1. Landlord and Tenant — How Created — The reservation of rent is not essential to create the relation of landlord and tenant. Where the owner of land gives another the right to enter upon his premises for a specified purpose, in subordination to the title of the owner, for a valuable consideration, or even without the payment of any consideration, the relation of landlord and tenant is created.</p> <p>2. Forcible Detainer — What Constitutes — A written contract conveying to the grantee all the timber and trees on a tract of land, with the right to erect tramways, cabins, buildings and machinery necessary for the removal of timber, for three years, creates the relation of landlord and tenant authorizing the issual of a warrant for forcible detainer at the end of the term.</p>

<p>1. Local Option Law — Subterfuge to Evade it — Section 3570; of the Local Option Law provides that: “No trick, device, subterfuge or pretense shall be allowed to evade the operation or defeat the policy of the law against selling liquors iu violation • or evasion of any local option laws prevailing iu any county, city, town, precinct or municipality of this State.” This statute modifies the general rule, and under it the jury are authorized to look beneath the surface and ascertain whether the dealer is undertaking' to he “smarter than the law” and by trick, evasion or ■ subterfuge to carry on a prohibited business in spite of the law.</p> <p>8. Brewing in Distant County — Agent Soliciting Orders in Local. Option District — Retail Quantities — Effect—Where á brewer in Newport, Ky., sent an agent into a prohibition district soliciting and receiving'orders for beer iu retail quantities, forwarded these orders, received and forwarded the money, gathered up the empty bottles and eases and sent them hack to the brewery and remitted to the purchaser the agreed price for the return of the bottles and cases, it was a sale in the prohibited territory and not at the brewery, and the company is subject to-the penalty for a violation of the local option law in said territory.</p>

<p>Case 75. — ACTION BY W. B. GAINES AGAINST THE CITY OF BOWLING GREEN FOR SERVICE RENDERED AS AN ATTORNEY UNDER A CONTRACT WITH THE CITY ATTORNEY. —</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. G-alloway, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>Our contention is that an ordinance of the city, which gives the city attorney the power (1) to determine the necessity for employing additional counsel for the city, (2) the power to select such •counsel, and (3) the power to fix his compensation is void, for the reason that no one of these three things can be delegated, but must be exercised solely and exclusively by the council, and therefore there can be no recovery on a contract so made.</p> <p>AUTHORITIES CITED.</p> <p>Vol. 1 Municipal Corporation cases, annotated 247 (Michie) and exhaustive annotation at end of ease; Vol. 1 Dillon on Municipal Corporation 3d Ed., See. 96., Idem; Vol. 2, Sec. 779, Cooley, Const., Lim. 248; Huron v. Campbell, 3 S. D., 309, 53 N. W., 182; Bast St. Louis v. Thomas, 11 111., App. 283; Hydes & Goose, Assignees, etc. v. Joyes, 4 Bush Ky., 464; Owensboro v. Weir, etc. 95 Ky., 158; City of Covington v. Hallam & Myers, 16 Ky., Law Reporter, 128; Lowery v. City of Lexington, 75 S. W. Reporter, 202 or 25 Ky. Law Reporter, 392.</p> <p>The city council determined, (1) That it was necessary to proceed to collect back taxes from omitted property; (2) That the work was of such a nature thatdt would be advisable for the city attorney to have assistant counsel; (3) That the city could afford to pay 15 per cent on the amount collected for such assistance, in addition to the 10 per cent allowed by the charter to the city attorney. So that only two things was left to the city attorney; (1) to determine the character of the proceedings to be instituted, and (2) the selection of the attorney who should assist him.</p> <p>We insist that both of these duties were properly left to the city attorney.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, Sec. 3403; Knights v. City of Eureka, 1 Mun. Corp., Cases 247; A. & E. Ency. of Law, Vol. 20; 2d Ed., page 1182, 3; Hitchcock v. Gálveston, 96 U. S., 341; Walker &e. v. Eoule, 53 L. R. A., 749; Field & Co. v. Clark, 143 U. S., 649; State of Idaho v. Iasmussen, 52 L. R. A., 78; In Re Flaherty, 27 L. R. A., 529; Board of Council, Frankfort v. Murray, 18 Ky. Law Rep., 279; Sunrall v. City of Covington, 16 Ky. Law Rep., 770; Harry Gundling v. City of Chicago, 48 L. R. A., 231; Am. & Eng. Ency. of Law, 1st Ed., Vol. 15, pages 1044, 1045.</p>

<p>1. Criminal Law — Appeal—Change of Venue — Denial—Discretion —Review—The denial of accused’s motion for a change of venue for prejudice of the inhabitants will not be reviewed on appeal unless a clear showing of abuse of the trial court’s discretion appears.</p> <p>2. Same — Subsequent Application — The overruling of a motion for a change of venue is interlocutory only, and is subject to the control of the court at a subsequent term, so that, if events occurring after the hearing of the motion warrant the granting of a change, the court may in its discretion set aside an order denying the motion and grant the application notwithstanding Iiy. St. 1903, Sec. 1118, providing that no more than one change of venue or application therefor shall be allowed to any person or the commonwealth in the same case.</p> <p>3. Same — Appeal—Indictment—Motion to Quash — Review—Under the express provisions of Or. Code Prac. Sec. 281, the overruling of a motion to quash an indictment is not reviewable on appeal.</p> <p>4. Grand Jury — Witnesses—Examination—Interpreters — Where, in a prosecution for rape, both prosecutrix and her father were unable to speak English, and the jury did not understand their tongue, it was proper for the court to swear an interpreter and allow him to remain in the grand jury room while such witnesses were testifying and to give their testimony through such interpreter.</p> <p>5. Criminal Law — Evidence—Res Gestae — In a prosecution for rape, books and papers belonging to one of the parties accused found on the ground after the commission of the offense were admissible as res gestae.</p>

<p>Case 77. — PROSECUTION AGAINST J. H. SACRA FOR RAPE.</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>• 1. The court erred in overruling defendant’s motion for change of venue. ■</p> <p>2. The court erred in overruling defendant’s motion for continuance made on the 6th day of July, 190S, the second day after he was shot.</p> <p>3. The court erred in permitting to be proven the words and acts of Fletcher, Guy and Jim Lyon, and to introduce in evidence a book and other papers claimed to belong to Guy Lyon found at the scene of the difficulty, defendant not being present when such words of Fletcher, Guy and Jim Lyon were spoken, or acts done, no conspiracy being charged in the indictment.</p> <p>4. The court'erred in permitting over the objection of defendant leading questions to be asked Mary Gladder, and Vincent Gladder, and their answers to be made thereto.</p> <p>5. Misconduct of the Commonwealth’s Attorney, John S. Rhea, in stating to the jury in argument “if there is any man on the jury who believes the defendant guilty, but fails to inflict the death penalty, he should be execrated of all men, and the good women of Logan County should meet him on the street when discharged and lash him with a cat-o’-nine tails.</p> <p>AUTHORITITES CITED.</p> <p>Ky. Statutes, Sections 1109, 1110, 1118; Johnson v. Commonwealth, 82 Ky., 116; Jett v. Commonwealth, 85 S. W., 1181; Bowman v. Commonwealth, ’96 Ky., 8.</p>

Case 78. — ACTION BY JOHN V. LB MOYNE AGAINST J. R. ANDERSON BOR LAND IN WHICH CALVIN TRAMMELL AND ANOTHER INTERVENE. — Appeal from Whitley Circuit Court. M. L. Jarvis, Circuit Judge. From the judgment plaintiff appeals. 1.

<p>1. Elections — Municipal Elections — Manner of Holding Election— Statutes — Ky. St. 1903, See. 1596a, subsec. 5, provides that the county board of election commissioners shall constitute a board for examining and canvassing the returns of elections, requires the board to give certificates of the number of votes cast in the city or town and to deliver a copy thereof to the municipality. Section 3658, in relation to towns of the fifth class, provides that the elections shall be held as provided in the general laws of the State. Held, that a city election in a city of the fifth class must be held under the general election laws and by the same officers, and at the same time and place for holding the general election for State and county officers, and such an election held at a place other than where the general election was held, and under the supervision of officers appointed by the mayor of the city, was invalid.</p> <p>2. Same — Ballots—Ky. St. 1903, Sec. 3658, provides that all municipal elections in cities of the fifth class shall be held under, and as provided in, the general election laws. No registration of voters is required in cities of the fifth class, and section 3659 provides that in cities and towns where registration is not required the ballots shall be deposited in a separate box. Section 1453 prescribes the duty of the county clerk as to the printing of ballots, without stating whether there shall be separate ballots for candidates for municipal offices from that for candidates for county offices. Held that, if a • voting precinct only includes the territory of the municipality, the ballot may contain the names of candidates for county and municipal offices.; but, if the precinct .includes persons outside of the municipal territory, there must be separate ballots.</p>

<p>1. Office and Officers — Vacancy in Office — Constitutional Provision — Under section 152 of the Constitution an office is vacant when there is no legal incumbent to discharge its 'duties. When the legislature created the office of an additional circuit'judge for the Kenton District the office was vacant, in legal contemplation. until an incumbent was appointed or elected.</p> <p>2. Circuit Judges — Appointment—Election—The office of circuit judge under the Constitution is an elective office; the term is six years; the last election was held in November, 1903, and the next election, therefore, will be November, 1909. Under section 152 of the Constitution if three months do not intervene between the happening of the vacancy and the next succeeding election at which State, district or municipal officers are to be elected the office shall be filled by appointment until the next election at which such officers are to be elected. There will be no election in Kenton county in November, 1906, to elect either State, district or county officers, and it was incompetent for the Legislature to provide by an act passed in March, 1906, contrary to section 152 of the Constitution, that an election should be held to fill the vacancy in the office of circuit judge in that district in November, 1906.</p>

<p>1. Vacancy in District Office — How Filled — Sec. 153 of the Constitution provides for filling- all vacancies in elective offices. If a vacancy occur in a district office more than three months before a regular election in the district in which the vacancy exists, at which State or district officers are to be elected, sueb vacancy must be filled at the next regular election thereafter for a state or district office to be filled under the state government in that district.</p> <p>2. Commonwealth's Attorney — Vacancy—Where a vacancy in the office of Commonwealth’s attorney occurred on June 11, 1906, in the tenth judicial district, the election to fill the vacancy should be held at the November election, 1906, that being the regular election for a judge of the Court of Appeals in the third appellate district, which includes all the counties in the tenth circuit judicial district.</p>

<p>Case 82. — ACTIONS BY C. R. SHRADER AND ANQTHER, AND BY THE KENTUCKY TITLE CO., AGAINST TV. J. SEMONIN, CLERK OP JEFFERSON COUNTY COURT FOR A MANDAMUS TO COMPEL HIM TO RECORD CERTAIN DEEDS. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, 1st Division.)</p> <p>Emmet Field, Judge.</p> <p>Judgment for Defendant. Plaintiffs appeal.</p> <p>RECAPITULATION.</p> <p>I.</p> <p>1. The Ky. Title Co. received bonds, payable to bearer, secured by mortgage — 6 bonds of $200 each — $1,200.</p> <p>S. In July, 1906, for value received, it transferred those bonds, by delivery, as follows:</p> <p>To the Pres. Theojogical Seminary, 4 bonds of $200 each __________________________________________________$ 800</p> <p>To Mrs. Sutherland, of Washington, D. C., one bond— 200 To Mrs. Sloss, of California, one bond---------------- 200</p> <p>. $1,200</p> <p>3. The Seminary is an educational institution exempt from taxation .</p> <p>The other transferees are non-residents of Kentucky and are not subject to taxation here on their personal estate.</p> <p>4. Although the Kentucky Title Co., by the transfer made in •J.uly, 1906, ceased to have any interest in said bonds and although the bonds are not taxable in the hands of the several transferees, yet because the transfer was made by “delivery” only and not by “assignment of record” the recent revenue act (Sec. 10 of Art. 11) declares that the Ky. Title Co. shall be “liable for the taxes as though no assignment had been made” — that is, for the taxes to be assessed as of September 1, 1906, and for all future years.</p> <p>5. The effect is that the Ky. Title Co. is required to pay taxes on property of which it has neither ownership nor possession; and to pay taxes on property which, in the hands of its true owners, is not subject to taxation.</p> <p>6. The statutory provision accomplishing this result is void because in conflict with the Constitution of Kentucky.</p> <p>It conflicts with see. 171, which requires taxation to be uniform; with sec. 13, which forbids private property to be taken for public (and a fortiori for private) use without compensation; with sec. 1, which secures to every citizen the inalienable “right of acquiring and protecting property,” with the fundamental principal that private property must not be taken from him “without due process of law.”</p> <p>7. The response of appellees is, in effect, that the Revenue Act ■ forbids the transfer of promissory lien notes or bonds by delivery or otherwise than by assignment of record.</p> <p>8. Therefore that the imposition of the tax is defensible on one of two grounds, viz:</p> <p>(a) That it is imposed as a penalty for a violation of law in transferring bonds by delivery; or</p> <p>(b) That a transfer by delivery, being an violation of law, title to bonds so transferred does not pass to the transferee. It remains in the original holder who is therefore-rightly subject to taxation thereon.</p> <p>We respond:</p> <p>9. The Revenue Act does not forbid the transfer of such bonds by delivery. There is no such declaration. It permits the transfer of title by delivery. Therefore .10. The Act, in effect, either imposes the tax upon the one who has lawfully ceased to own the property; or imposes a penalty for the doing of a perfectly lawful act.</p> <p>We respond further:</p> <p>11. The recent Revenue Act, if construed to prohibit the transfer of notes and bonds secured by recorded liens, is in conflict with sec. 51 of the Constitution. It embraces a “subject” not embraced by the title “Revenue and Taxation.”</p> <p>II.</p> <p>1. Shrader executed and delivered to Spurrier a deed of conveyance which secured certain purchase money notes. 2. This deed being presented to the County Clerk for record he refused to receive or record it, because it does not on its face give the “residence and post-office address” of the ■owner of the bonds.</p> <p>3. His refusal is based on the prohibition in the Revenue Act of 1906.</p> <p>4. It is insisted for appellants that the prohibition is unconstitutional and void. It conflicts with sec. 51 of the Constitution of Kentucky.</p> <p>Under the title “revenue, and taxation” there is an amendment of the statutes regulating “conveyances.”</p> <p>The judgment in each case should be reversed; the mandamus prayed for by Shrader and the injunction sought by the Ky. Title Co. should be granted.</p> <p>It will be observed that sec. 10 of the New Revenue Act except banks and trust companies with reference to purchase money notes, mortgage notes, and other liens for money due, which is an apparent discrimination in favor of this class of corporations but the discrimination is merely on the surface, for subdivision 2 of the came Act provides a method for the taxation of all property owned by banks or trust companies, including the class of property referred to in sec. 10, and, unless such property were excepted in section 10, there would necessarily result in discrimination against banks and trust companies which would invalidate either subdivision 2 or that part of section 10.</p> <p>CONCLUSION.</p> <p>It is evident, then, that nothing can be made of an argument based on any discrimination in favor of banks or trust companies.. It appears equally evident that the act complained of contemplates no taking of the citizen’s property for public purposes in violation of any constitutional right.</p> <p>It seems equally evident, not only from the facts in the case at bar, but from the course of judicial decisions, that section 10 is not invalid with reference to section 51 of the Constitution of this Commonwealth, and that the imesence of this section as a part of the Act relating to Revenue and Taxation is not only not in opposition to section 51 of the Constitution, but that it is in the only place where such a section could legally have been nlaeed.</p> <p>MEMORANDUM OP AUTHORITIES.</p> <p>(Sec. 10, Art. 2, Chap. 22, Acts of 1906;Wulftange v. MeCollom, 83 Ky. 361; Pennington v. Woofolk, 79 Ky. 13; L. & O. T. R. R. Co. V. Ballard, 2nd. Met. 165; Grundy v. Com., 12th Bush, 350; Com. v. Godshaw, 92 Ky. 435, Ky. Statutes, sec. 4223; Bohon’s Assignee v. Brown, 101 Ky. 354; Nunn v. Citizens-Bank, 107 Ky. 262; Rumbley v. Hall, 107 Ky. 349; 1-Iays v. Com., 107 Ky. 655).</p>

Case 83. — ACTION BY O. H. CHENAULT AGAINST MARY B. ° CLAY TO RECOVER LAND, Appeal from Madison Circuit Court. J. M. Benton, Circuit Judge. Judgment for Plaintiff. Defendant appeals. PROPOSITIONS AND AUTHORITIES. 1.

<p>1. Exceptions,-Bill of — Report of Evidence — Bystander’s-Bill.— Ky. St. 1903, sec. 1019a, provides for the appointment of an official court stenographer for courts of continuous session, and article 8 declares that the transcript made by the reporter and filed in the clerk’s office, when certified to be correct by the court, may be used in the Court of Appeals as part of the record. Held, Ithat where the record was taken ahd preserved by an official court reporter, it was proper for the court to refuse to sign a bystander’s bill of exceptions which was incorrect.</p> <p>2. Same — Time—Extension.—Under Civ. Code. Prac. sec. ¿S34, providing that time may be given, to prepare a bill of exceptions, but not beyond a day in the succeeding term fixed by the court, where 60 days were given for the preparation' and signing of a bill of exceptions the court could not give any additional time, and the bill subsequently presented was properly disallowed.</p> <p>3. Municipal Corporations — Defective Water Course — Pleading— Notice. — Plaintiff’s intestate was drowned in a deep hole in a creek at the mouth of a city sewer, while going through "the creek in.a wagon. Held, that a petition against the city alleging faulty construction of the' sewer at the point where it entered into the creek, the permitting of a deep hole to form, etc., but failing to allege that the city had notice of the dangerous condition of the creek, dr 'that it had existed for a sufficient length of time, to charge the city with notice, was fatally defective.</p> <p>4. Same — Duty of Municipality. — Where a ejfty permitted a sewer to discharge into a creek, the city owed no duty to a person fording the. creek in a wagon to see that the creek was safe for that purpose at the mouth of the sewer, and to fill up a deep hole that had been formed there.</p>

<p>1. Street Railway — Boy Standing in Street — Duty of Motorman —Care Imposed — Where a boy between eight and nine years of age was seen by the street ear motorman standing in the street seven or eight feet from the car track, the measure of care imposed by law upon the motorman did not require him to sound his bell, there being nothing in the boy’s conduct to indicate that he was about to, or would attempt, to cross the track or to get on the track in front of the car.</p> <p>2. Same — Lookout Duty — Notice to Motorman — Proximity of Boy to Car Track — It is the duty of the motorman to keep a lookout at all times for persons using the 'streets; but the mere proximity of a boy nine years of age to the track is not sufficient notice to charge the motorman with the duty of ringing his bell and taking the precautions in anticipation that the boy may get in front of the moving ear.</p>

<p>Case 86 — ACTION BY GEORGE WILLIS,’ ADMINISTRATOR AGAINST THE ILLINOIS CENTRAL RY. CO. FOR DAMAGES FOR CAUSING THE DEATH OF PLAINTIFFS INTESTATE,</p> <p>Apeal from Meade Circuit Court.</p> <p>Weed S. Chelf, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>1. The first error to which we call the attention of the court, is the refusal of the lower court to strike from appellee’s petition all that part thereof in relation to the violation of the ten-minutes’ rule as to the running of trains in the same direction. The refusal of the court to strike this allegation from the petition constituted its reason for the admission of testimony to prove that the rule has been violated. If this rule had been violated on this occasion, its violation was neither the proximate cause nor a remote cause of the accident. A failure to observe this rule could only create a liability when the failure caused an injury. The purpose of the rule was to prevent collisions on the track between trains going in the same direction; the observance of this rule is for the protection of the trains and the passengers and property thereon, but it cannot be said that the rule was for the protection of persons and property not on the train.</p> <p>2. We insist that the motion for a peremptory instruction to find for appellants should have been sustained. The court below seemed possessed with the idea that the negligent conduct of Willis should not be taken into the consideration of the case, if he sustained a business relation to the appellant company at the time; and believing that he sustained such a relation the court overruled the motion. There was not a scintilla of evidence that he sustained such a relation. In fact, the uncontradicted proof was that he had concluded his business with the agent and had left the depot. Besides, bis business with the agent at no time required his presence on the track of the company’s railroad. Therefore, whether he is regarded as a trespasser, a licensee on. the irremises, or a person having business with the agent, his reckless conduct in running upon the track in front of the engine, within plain view of it and near at hand, is such negligence as bars a recovery. At the time he was struck he was not on any public highway.</p> <p>AUTHORITIES CITED.</p> <p>1. Incompetent Testimony. — 111. Cent. R. R. Co. v. Procter, 28 Ky. Daw Rep., S. W. Rep; D. & N. R. R. Co. v. Watkins Admr., 1 R., 266; Brown’s Admr. v. D. & N. R. R. Co., 17 R. 148; Shacelford’s Ad-ml'- v. D. & N. R. R. Co., 84 Ky., 43; D. & N. R. R. Co. v. Howard’s Admr., 6R., 166; D. & N. R. R. Co. v. Howard’s Admr., 19 Am. & Eng. R. R. Cases, 102 (Notes); Dolfinger & Co. v. Fishback, 12 Bush, 482; Cooley on Torts, 657-8.</p> <p>2. Peremptory Instruction — Helm v. D. & N. R. R. Co., 17 R., 1004; Craddock v. D. & N. R. R. Co., 13 R. 18; Shackelford’s Admr. v. D. & N. R. R. Co., 84 Ky., 43; Johnson’s Admr. v. D. & N. R. R. Co., 91 Ky., 651; Shearman & Redfleld on Negligence, p. 25; D. & N. R. R. Co., v. Cooper’s Admr., 7 R., 102; Gresham’s Admr. v. D. & N. R. R. Co., 15 R., 599; D. & N. R. R. Co. v. Taafe’s Admr., 21 R., 64; Ohio Valley R. R. Co. v. Young, 19 R., 158; Bleachem v. D. & N. R. R. Co., 20 R. 112.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. Increased vigilance and precaution to prevent injury are required of those in charge of trains moving in or through a city or town. (D. & N. v. Howard, 82 Ky., 212; Shelby v. C. N. O. & T. P., 85 Ky., 224; Illinois Central v. Dick 91 Ky., 434 Ky. and Ind. Bridge v. Cecil 14 R. 447.)</p> <p>2. Where the view is obstructed greater care is required, (79 Ky., 442 D. C. D. v. Goertz.)</p> <p>3. The company is bound to keep its platforms, approaches and premises in a safe condition for those coming upon them for the transaction of business and it can not escape liability-on the idea that the injured knew of the unsafety and danger. (White v. C. N. O. & T. P., 89 Ky., 478.)</p> <p>4. One coming upon the premises seeking employment at the hands of shippers is not a trespasser but on business indirectly connected with the business of the company and entitled to active vigilance for his protection. (Shelby v. C. N. O. & T. P., 85 Ky. 224.)</p> <p>5. SucU excessive speed as to i>ut the engine out of the. control of the crew and inhibit a lookout is actionable negligence. (C. & O. v. Keelin’s Admr. 22 R. 1942-4.)</p> <p>When one invites another to come upon his premises for business or pleasure it is his duty to be sure that he is not bringing them into a place of- danger. (Patterson on Railway accident law, p. 143-4, Southern Railway v. Goddard, 28 R. No. 8, p. 523.)</p>

<p>1. Action for Assault and Battery — Answer Confessing Assault— Burden of Proof — In an action for damages for assault and battery, an answer which confesses the assault and battery, and affirmatively pleads the particular facts and circumstances which provoked it and denies any injury or damages, does not entitle the defendant to the burden of (proof.</p> <p>2. Same — Proof by Plaintiff — Necessity for — In an action for assault and battery where the facts pleaded in the answer do not amount to justification, or a plea in avoidance, the plaintiff in order to recover even compensatory damages had to prove the nature and extent of his injuries, which include mental and physical suffering, and in order to recover exemplary damages it was necessary for him to prove malice or wantonness on the part of his assailant.</p> <p>3. Same-rlnstruction to Jury — In an action for damages for an assault and battery where the facts pleaded in the answer do not amount to justification or a plea in avoidance, the court properly instructed the jury “to find a verdict for the plaintiff in such sum as will fairly and reasonably compensate him for any pain and suffering, mental or physical, resulting to him directly from the assault, and for any humiliation of his feelings caused thereby; and the jury may, in their discretion, award in addition such punitive or exemplary 'damages as they may think proper under all circumstances of the case not exceding the-sum of <$10,000, claimed in the petition.”</p> <p>4. Same — Trial in Criminal Court — Double Punishment — The fact that a defendant has been tried and fined in a criminal court for an assault and battery will not exempt him in a civil action for the same assault, from liability for exemplary or punitive damages to the person injured, on the ground that it subjects him to double punishment.</p> <p>5. Misconduct of Counsel in Argument — -Failure to Except at Time — Alleged misconduct of counsel in argument to the jury can not be considered on appeal unless objected to at the time and the court asked to admonish the jury to disregard same.</p> <p>6. Excessive Verdict — A verdict of $5,000 is not excessive in a civil action for assault and battery on a boy fifteen years of age, by a full grown man twenty-four years of age of athletic build and great strength, where it is shown by the evidence that it was wantonly and maliciously committed and will probably result in permanent impairment to his eyesight.</p> <p>7. Obscene Language — The use of obscene language will not justify an assault and battery though such language may be considered by the jury in mitigation of damages.</p>

<p>Municipal Corporations — Public Improvements- -Assessments — Under Ky. St. 1903, Sec. 3100, providing that no error in the proceedings of the general council of a city shall exempt from payment after the work is done as required by ordinance or contract, where a sewer was constructed according to contract, an abutting owner is not exempt from payment on account of any error of the council in leaving to the city engineer, the street committee, or the mayor, any matter which it should have determined itself, though he protested to the 'council against the construction of the sewer.</p>

<p>1. Reformation of Instruments — Mistake—Evidence—Sufficiency • — Evidence examined, and held to support a finding that a deed executed by a father to a daughter and her children was intended by the parties to give the daughter a life estate with remainder to her children, warranting the court to reform it in accordance with such intention.</p> <p>2. Limitation of Actions — Defense—Pleading—Necessity — The statute of limitations, barring a right to have a deed reformed, must be pleaded, and a demurrer to the pleading asking for the reformation is insufficient to interpose the defense.</p> <p>3. Same — Anticipating Defense of Limitations — One seeking the reformation of a deed need not in h>'s petition anticipate a ■plea lof the statute of limitations and allege matter in avoidance thereof, but when the defense is interposed, he may set forth such matter.</p> <p>4. Same — Defense—Avoidance—A father executed a deed to his daughter and her children. The daughter and children construed the deed as giving the daughter a life estate, with remainder to the children, and they acted on such a construction for over five years, when one of the children claimed that the deed granted to the daughter and the children an, undivided interest in the premises conveyed. Held, that the facts avoided the defense of limitations to the right of the daughter to have the deed reformed, so as to give to her a life estate, as intended by the grantor.</p>

<p>1. Bills and Notes — Action by Assignee — Denial of Ownership— Sufficiency — In an action by the assignee of an assigned note against the payor thereof, an answer by the payor that he has no knowledge or information sufficient to form a belief that at a time subsequent to the date of the note or before its maturity, the payee endorsed his name upon .it or ever sold or delivered it to the plaintiff, or that the plaintiff then or ever became or is now the owner thereof, is sufficient to make an issue as to the ownership of the note.</p> <p>2. Negotiable Note — Innocent Holder — Gaming Contract — Effect —Ky. stats., sec. 1955, declares all gaming contracts void, and this statute is not repealed by the act of the Kentucky Legislature of 1904 for the protection of innocent holders of negotiable instruments. In an action by the assignee of an assigned note against the payor thereof, an answer by the payor “that the note was executed to the assignor in payment of a bet or wager upon the result of a horse race, and the consideration for its execution under the law of Kentucky is vicious, illegal and void, and which defendant relies on in bar of a recovery,” presents a good defense to such note.</p>

<p>Case 91. — ACTION BY CRUMP & FIELD AGAINST MARY BROWN FIELD IN THE QUARTERLY COURT FOR THE APPOINTMENT OF A RECEIVER. —</p> <p>Appeal from an order of the Pike County Quarterly Court.</p> <p>The appellant asks that this case be reversed for many reasons the seventh one being: Because the quarterly court had no jurisdiction of the matter in controversy, and its action was unauthorized and void.</p>

<p>1. Street Improvement — Guaranty to Construct and Keep in Repair — Authority to Make — A contract made by a city with a contractor for the repair of its streets in which it is stipulated that ¡the contractor shall guarantee the faithful performance of the contract according to'the specifications, that the pavement therein specified and the materials composing the same shall be kept in good repair for the period of ten years from the completion and acceptance of the work, and requiring the contractor to deposit certain bonds with the city treasurer, who shall hold the same to be used as far as need be in making the necessary repairs, is not such a contract as is beyond the power of the city to make. Such contract did not amount to an abrogation by the city of a governmental function or of its police power, nor did it relieve the city of the duty to protect the lives and property of its citizens.</p> <p>S5. Scope 'Off Guaranty — Defect» Contemplated — -Leaking From Gas Mains — -A guaranty by a contractor to keep a street in repair includes repairs made necessary by leakage of gas from defective mains as well as those required by defects in the work itself, and especially is this contemplated when streets are paved with asphaltum, as the evidence shows that among the forces which injuriously affect asphaltum streets is the leakage of gas from defective mains.</p>

<p>Case 93. — ACTION BY W. A. USHER AGAINST W. T. & J. R. ON A NOTE. —</p> <p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendants appeal.</p> <p>QUESTIONS INVOLVED AND AUTHORITIES CITED.</p> <p>The sole question involved in this case, is whether or not the note sued on is subject to the defense, or set-off, or counterclaim, in the answer alleged.</p> <p>This involves the subordinate questions:</p> <p>First — Is the note, as executed, subject to our new Negotiable Instrument Law?</p> <p>Second — If so, does such law properly construed, cut off the matters of defense so alleged?</p> <p>Third — Did the Court properly construe, in its instruction, such new law?</p> <p>It is true appellee in his reply alleged “that the defendants executed the writing with the full knowledge, and understanding, and consent that Usher was to take it as collateral security; and ■ since it was transferred as such security to the plaintiff, the defendants have agreed and promised to pay him the full-amount thereof, with interest;” but this allegation is specifically denied in the rejoinder.</p> <p>There was no evidence introduced to sustain it, and no instruction was offered or given upon this point. (13 B. Mon., [314], 390; Gano v. Finnell, 103 Ky., 390.)</p> <p>1. On assuming appellee a holder for value; (Negotiable Instrument Law, Sec. 25, 26, 27, 1 Met, 628, 631, 632, 633, 634; Lee v. Snead, 2 Met, 534, 535, 536, 537, 538; Alexander v. Springfield Bank, 3 Bush, 101, 102; TMay v. Quinly & Co., 78 Ky., 335; Greonwall v. Haydon.)</p> <p>2. And “before maturity.” (Negotiable Instrument Law, Sees. 12, 85, 86, 88, 11 Gray Mass., 38; Pine v. Smith, 3 Gaines, N. Y. Com. Law, 279, 286; Baker v. Arnold, 8 Cowen, N. Y. Com. Law, 669, 688; Powell v. Waters, 2 Am. & Eng'. Ency. of Law,</p> <p>I Ed.; 320 and note 9, 40 L. R. A., 248, 249; Hang v. Riley, Norton on Bills and Notes, 3 Ed., 199, 201, 202, 304, 305 , 306, 307; Wade on Law of Notice, 2 Ed., Sec. 92a; Liedeman on ComMereial Paper, Sec. 295, 35 Am. Dec., 345, 355.)</p> <p>3. On Burden of Proof. (Norton on Bills, 2 Ed., 130, 131; Negotiable Instrument Law, Secs. 59, 103 Ky., 590, 591; David v. Bank, 4 Am. & Eng. Ency. of Law, (2 Ed., 321, 322, 323.)</p> <p>4. On Defenses Available to Prior Parties. (Negotiable Instrument Law, Secs. 55, 57, 58, Ky. Statutes, Secs. 474, 108 Ky., 483, 486, 487, 488, 489, 490, 491, 492; Richie v. Cralle, 26 R., 319, 90 Ky., 225, 226.)</p> <p>5. On Notice. (Negotiable Instrument Law, Secs. 52, Sub-Secs. 53, 54, 56, Norton on Bills, 306; Wade on the Law of Notice, See. 92a.)</p> <p>6. Fraudulent Procurement of the Writing (Norton on Bills, 206 , 252 , 253 , 4 Am. & Eng. Ency. of Law, [2 Ed.], 326, 327, II Am. S. R., 319, note, 109 Ky., 222, 228; Bank of Commerce v. Halderman, 74 N. E., 1086; Home National Bank v. Hill.)</p> <p>QUESTIONS MADE AND AUTHORITIES RELIED UPON.</p> <p>The appellant cannot rely upon defense in his favor and against the bolder of the note unless the appellee, holder of the note, had notice of such defense at the time of the transfer thereof to him.</p> <p>Negotiable Instrument Law, section 27, 52, 56, 57.</p>

<p>1. Married Women — Contracts not for Necessaries — Affirmative Proof — A note executed by a married woman prior to the husband and wife act of March 15, 1894, is not enforcible unless given for necessaries, and where one is seeking to hold her upon such a contract it must be shown affirmatively that the claim comes within the statutory exception.</p> <p>2. Void Contract — Ratification—A note executed by a married woman prior to the act of March 15, 1894, being void, a renewal thereof after she became discovert does not make it binding on her. The contract of a married woman being void can not be ratified.</p> <p>3. Widow — Note for Deceased Husband’s Debt — Consideration— Where there is no evidence that any property subject to execution was received by a widow from the estate of her deceased husband, there was no consideration for the execution by her of a note to take up the note of her deceased husband.</p>

<p>Case 95. — ACTION BY JESSE L. HOFFMAN AGAINST THE CITY OF MAYSVILLE FOB DAMAGES FOB PERSONAL INJURIES. —</p> <p>Appeal from Mason Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>The questions present themselves for consideration in this case:</p> <p>1. Whether appellee is liable in damages to appellant, for carelessly and negligently failing to repair the drain, if appellant was precipitated through a crust of earth on the street or side walk.</p> <p>2. Whether appellee is liable in damages to appellant, if he was precipitated through a crust of earth on private property in close proximity to appellees street or side walk.</p> <p>AUTHORITIES CITED.</p> <p>1. Maysville v. Guelfoyle, 110 Ky., 670; City of Louisville v. Johnson, 69 S. W., 803; City of Henderson v. White, 49 S. W., 764; City of Madisonville v. Pemberton’s Adm’r, 72 S. W., 229; City of Covington v. Jones, 79 S. W., 243; Beall v. City of Seattle, 61 L. R. A., S83; Peoria v. Simpson, 110 111., 294.</p> <p>2. Elliott on Roads and Streets, [2 Ed.], Sec. 613; Thompson on Negligence, 5 Yol., Sec. 6055; City of Hannibal v. Campbell, 86 Fed. Rep., 302; James Adm’r v. Harrodsburg, 85 Ky., 191; Parker v. Mayor of Macon, 99 Am. Dec., 486; Niblett v. Nashville, 27 Am. Rep., 756; Franklin, T. P. Co. v. Cockett, 2, Snead, 271; Oliver v. Worcester, 102 Mass., 489; Bassett v. City St. Joseph, 14 Am. Rep., Blake v. City St. Louis, 40 Mo., 569; Bowie v. Kansas City, 50 Mo., 454; Smith v. City of St. Joseph, 45 Mo., 449; Alger v. City of Lowell, 3 Allen, 402.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The city was not authorized to grant the January & Wood Co. permission to construct the sewer loading hot water into its streets. (Hoggard et ux v. Mayor, etc., of Monroe, (25 So. Rep., 349), Chapter 197, Act of Kentucky Legislature, 1833, pages 173, 193, Section 2, 546, Ky. Statutes, Dill. Mun. Corp., (4th Ed.), Sec. 963; Hutchinson v. Trenton Board of Health, 39 N. J. Eq., [12 Stew.], 569; [Cavanaugh v. City of Boston, 139 Mass., 426]; Oak Cliff Sewerage Co. v. Marsalis et al, 69 S. W. Rep., 176; Robinson v. City of Danville, 43 S. E. Rep., 337, sub-sec. 25 of sec. 3490, Ky. St.; City of Louisville v. Hyatt, 5 B. M., page 219, See. 4077, Ky. St.; Lowery v. City of Lexington, 75 S. W. Rep., 202; Smith v. City of Rochester, 76 N. Y., 506; Betham v. City of Philadelphia, Mun. Corp., Cases Yol. 4, page 429, (by T. J. Michie); Town of Idaho Springs v. Filteau, 14 Pac. Rep., page 48; Town of Idaho Springs v. Woodward, 14 Pae. Rep., page 49; Kosmak v. New York, [Ct. of Appeals), Northeast Rep., 945, (1899).)</p> <p>2. It is generally agreed that where a defect is latent so that it •cannot he discovered by the exercise of reasonable diligence on the part of the proper municipal o cers, notice will not be imputed to the city aud the concealed defect is a question for the court. (City of Covington v. Asman, Ky. Rep., 113, page 608; Can-field v. City of Newport, 73 S. W. Rep., 788; Bell v. City of Henderson, 74 S. W. Rep., 206; Cooper v. City of Milwaukee, 72 N. W. Rep., page I133ffi Fitzpatrick et al v. Burgess, etc. of Borough of Darby, 39 At. Rep., x>age 545; Jones v. City of Greensboro, 32 S. E. Rep., iiage 675; Mayor, etc. of City of Jackson v. Pool et ux, 19 So. West Rep., page 326; Klein v. City of Dallas, 8 So. West. Rep., page 92; Brown v. Town of Holly, 38 At. Rep., page 69; Wakeham v. Township of St. Clair, 51 N. West. Rep., page 696; Carvin v. City of St. Louis et al, 52 So. West. Rep., page 210; Baustian v. Young et al, 53 So. West. Rep., page 921; Buckley v. Kansas City et al, 54 So. West. Rep., page.)</p> <p>3. Liability of Defendant rests solely on its negligence in maintaining its highway in the case at bar. (Black’s Law & Practice in Accident Cases, Sec. 150, page 180, and Mayor, etc. of Dalton v. Wilson, Supreme Court of Georgia, May 30, 1903, 44 S. E. Rep., 830; James’ Adm’r v. Trustee of Harrodsburg, 85 Ky. Rep., page 193; Miller & Myers v. City of Newport News Supreme Court of Axrpeals of Virginia, June 11, 1903, 44 S. E. Rep., 712; City of Georgetown v. Commonwealth, Court of Appeals of Kentucky, April 29, 1903, 73 S. W. Rep., 1011; Board of Couuciimeu of City of Frankfort v. Commonwealth, Court of Appeals of Kentucky, June 16, 1903, 75 S. W. Rep., 217.)</p> <p>4. There was no breach of duty on tlie part of the defendant that was the proximate cause of the appellant’s injuries. (Thompson on the Law of Negligence, Sec. 44 & 45; Aldrich v. Gorham, 77 Me., 287; Kistner v. Indianapolis, 100 Ind., 210; Scheffer v. Railroad Co., 105 TJ. S., 249.)</p> <p>5. The landlord or tenant is liable for injuries on the premises. (Black’s Law & Practice in Accident Cases, See. 59, 60; Shearman & Redfield on the Law of Negligence, Sec. 120.)</p>

<p>Case 96. — ACTION BY JAMES A. HAVENS AND OTHERS AGAINST GEORGE H. AHLERING AND OTHERS FOR A DISCOVERY OF ASSETS AND THE ENFORCEMENT OF A JUDGMENT. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for Defendants. Plantiffs appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The judgment of a court of competent jurisdiction, though erroneous, is binding until reversed, and is sufficient to uphold a sale of property. (Burtard v Gates, 4 Dana, 430.)</p> <p>2. An erroneous judgment so long as unreversed as obligatory and not to be controlled unless for fraud in its obtention. (1. J. J. Marshal], 275. (Hampton v. Dudley), 12 Ency. of Law( 86.)</p> <p>3. Courts of equity cannot revise judgments at law, to correct unjust or unproper verdicts. The remedy is to be fraud in the-court of appeals. (Cameron v. Bell, 2 Dana, 328, 12 Ency. of Law, 145, 146, 147; Dupu v. Johnson, 1 Bibb, 156; Talbott v. Todd, 5 Dana, 193; Spaulding v. Wather, 7 Bush, 662; Garner v. Willis, 92 Ky., 390; Davis v. McCorkle, 14 Bush,- 751; Francis v. Wood, 81 Ky., 22; Snapp v. Snapp, 87 Ky., 5.58; Honaker v. Cecil, 84 Ky., 206; Watson v. Cameron, 10 Ky. L. R., 291; Cometh v. Louisville Water Co., 18 Ky. L. R., 620; Berry v. Poster, 22 Ky. L. R., 747; Kaye v. Kean, 18 Ben. Mon., 846;: Allen v. Hall, 1 A. K. Mar., 528; Pepper v. Donnelly, 87 Ky., 262.)</p> <p>4. One who was irregularly appointed as guardian, will nevertheless, where he has been guilty of no fraud, be treated by the-chancellor as an ordinary trustee and legal guardian. (Crooks v. Turpin, 1 Ben. Monroe, 185.)</p> <p>1. We submit that the judgment obtained by John D. Ellis as guardian of appellant against John Hoffman, E. H. Einhaus and George Ashlering, upon which judgment the present action of appellant is brought, is void, by virtue of Sec. 2015, Ky. St., as construed in the case of Collins v. Powell, 14 Ky. L. R., 119.</p> <p>2. If a judgment is void the party against whom it is rendered, ■in order to get relief, is not bound to appeal from same, or to institute a direct proceeding to vacate same, because he may resist it in any court in which it is attempted to inforce said void judgment. The principal of res-adjudicata does not apply to a void judgment. (88 Ky., 597; 10 R., 393; 19 Ky. R., 662.)</p> <p>3. Before a suit in equity, in aid of execution, can be brought, an execution upon a judgment should be issued and returned “nulla bona.” There must be a reasonable showing that there is not an adequate remedy at law, (Ky. Statutes, Sec. 2015; Civil Code, Sec. 493, 497; Collins v. Powell, 14 Ky. L. R., 119; 88 Ky., 577; Stephens v. Dealing, 10 Ky. Law Rep., 394; Jacobson v. Wernet, 19 Ky. Law Rep., 662.)</p>

<p>1. Statutes — Terms — Definition — Statutory Provisions,— Const. Sec. 208, providing that the word, “corporation,’’ as used “in this Constitution” shall embrace joint stock companies and associations does ‘not control the definition of the word “corporation” when used in the statutes of the state.</p> <p>8. Joint Stock Companies — Corporation Law — Applicability—Penal Statutes — Act April 5, 1893, containing Ky. St. 1903, See. 457, is entitled, “An act providing for the creation and regulation of private corporations.” The first section of the act (Ky. St. 1903, Sec. 538) provides for what purposes such corporations may be formed, and the next section, (Ky. St. 1903, sec. 539) provides what the articles of incorporation shall specify, neither of which sections have any application to partnerships or unincorporated companies. Ky. St. 1903, Sec. 571, provides that all corporations except foreign insurance companies doing business within the state shall have an authorized agent to accept service in the state and shall file with the Secretary of State a specified statement; that if any corporation fails to comply with such requirements, it shall be guilty of a misdemeanor and fined. Held, that section 571 had no application to an express company which was a joint stock association, notwithstanding section 457, providing that the word “corporation” may be construed to include any person, persons, partnership, joint stock company, or association.</p>

<p>Case 98. — ACTION BY AMELIA LAUER AGAINST THE GER-MANIA LIFE INS. GO., OF NEW YORK, ON A POLICY ON THE LIFE OF HER DECEASED HUSBAND,</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, 3d Division.)</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p>

<p>Case 99. — ACTION BY R. C. HARR & OTHERS AGAINST JAMES HOWLAND’S ADMINISTRATOR FOR ARTICLES SET APART TO HER AND HER INFANT CHILDREN,</p> <p>Appeal from Greenup Circuit Court.</p> <p>James P Harbeson, Circuit Judge.</p> <p>Judgment for Plaintiff. Defendant appeals.</p> <p>AUTHORITIES CITED. /</p> <p>Ky. Statutes, Section 1403; Ky. Statutes, Sections 3861 to 3865; South Western Reporter No. 76, page 354; Ky. Statutes, Section 1403, sub. Section 4; Civil Code of Pratiue, Section 96; Civil Code of Practice, Section 606, sub Sections 1, 2 and 7; Hardin v. Taylor, 78 Ky. R. page 593; Forbes Bros. v. Cooper & Co., 88 Ky. R. page 285; Alexander v. Alfrod 89 Ky. R. page 105; Hurry v. Kline, 93 Ky. R. page 358.</p>

<p>Case 100 — ACTION BY MICHAEL J. LAWLER & OTHERS ' AGAINST MARY T. MOXLEY & OTHERS TO ENFORCE LIENS FOR STREET IMPROVEMENTS.</p> <p>Appeal from Jefferson Circnit Court (Common Pleas Branch, 1st Division.)</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for Plaintiffs. Defendants appeal.</p> <p>1. This case should be reversed because, the statute of limitation has been disregarded as if it did not exist.</p> <p>2. One of the defendants is required to pay the apportionment of three others in addition to her own.</p> <p>3. The plaintiff is allowed to recover what the pleadings show does not belong to him, but to another, and that other barred by limitation.</p> <p>4. The plea of limitation as to part of the property, and one of the defendants, is not denied, and yet judgment goes as to her and as to the property.</p> <p>5. Then to make the injustice more glaring the entire warrant, barred and unbarred, and the share of her who has clearly escaped is by the judgment to be made out of one defendant without any contribution among those others equally liable.</p> <p>6. Suit was brought within five years as to certain defendants and certain property.</p> <p>7. An amended petition was filed after five years making other defendants and other property, and judgment is awarded making one of the first defendants pay the full debt without excluding the barred portion, or requiring contribution among those really liable, and requiring her property to be first sold for the entire debt.</p> <p>AUTHORITIES CITED.</p> <p>Stergen v. Preston, 89 Ky., 624; Dudley v. Price’s Admr., 49 Ky., 88; Stone, &c. v. Comixlly, 58 Ky., 656; Hawes v. Orr, 73 Ky., 427; Dorres v. Gallagher, 27 Ky., L. R. 1001; Langan v. Bitzer, 26 Ky.. L. R. 579; Wagner v. Cash 24 Ky., L. R. 1402; City of Louisville v. Tyler, 23 Ky., L. R. 828; Caldwell v. Rupert 73 Ky., 182; Quisenberry v. Artes, 1 Duv. 20; Lytle v. Lytle, 2 Met. 128; Preston v. Roberts, 12 Bush, 584.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where a defendant fails to controvert a cross-petition, or resist relief sought by it, he cannot complain for the first time in the Court ol Appeals of the judgment granting same.</p> <p>2. Where an assignor or assignee of an instrument disclaims any interest therein by a pleading filed in the cause, the issue of “real party in interest” is eliminated. (Gladstone Baptist Church V. Scott, 25 K. L. R. 239.)</p> <p>3. "Where the instrument sued on is filed with the petition a prima facie case of ownership is made out, and the issue of “real party in interest” is eliminated in the absence of proof showing that plaintiff is not the real owner. (Gill v. Johnson, 1 Mee. 651,)</p> <p>4. The only testimony in the case on the question of ownership of the warrant shows that appellees were the real owners. (Crowder’s deposition.)</p> <p>5. Where an amended petition sets up no new cause of action, the date of the filing of the original petition should be used in computing the running of the statute of limitation. (Joyes v. Hamilton, 10 Bush, 544.)</p> <p>6. The “square foot rule” of apportioning the cost of municipal improvements is merely a legislative basis of approximate benefit and does not effect tbe lien after its creation. (Kentucky Statutes, Sec. 2833; Dillon on Blunicipal Corporations, Sec. 752; Judson on Taxation, Secs. 363 and 363; Broadway, &c., v. BIcAtee, 8 Bush, 518; Barfield v. Gleason, 23 K. L. R. 132.)</p> <p>7. Where no mode of procedure is specified by the Legislature in a given case,, the rules applicable in other cases to enforce liens apply. (Act of 1891, Sec. 7, p. 324, Indiana Statutes; Cray-craft v. Selvage, 10 Bush, 710; Neenn v. Smith, 50 Bio., 525; Burroughs on Taxation, pages 448 and 449.)</p> <p>8. Where the entire lot is “in lien’’ the court will only direct the sale of enough to satisfy the judgment. (Ducker & Jones v. Gray, 3 J. J. BI., 162.)</p> <p>9. The owner of land cannot affect the lien of an assessment by a subsequent division of his lot. (Dougherty v. Bliller, 36 Cal. 83; Desty 'on Taxation, p. 1319.)</p> <p>10. A plea personal to one defendant cannot relieve another, jointly bound, or abate recovery againt him to the extent of the pro rata amount of which the person escaping was liable as between the defendants, themselves. (Guff’s Admr. v. Alves & Co., 10 K! L. R. 590; Robinson v. Lehman, 72 Ala., 471.</p> <p>11. No re-apportionment can be had unless it is pleaded and proved that a different method of apportionment would be beneficial to the defendant. (Snyder v. B. A. P. C. 24 K. L. R. 2348; BIcHom-y v. Selvage, 99 Ky., 235; Barret v. Artificial Stone Co., 21 K. L. R., g31; Chawk v. Beville, 21 K. L. R., 1769.)</p> <p>12. In the case at bar, the method of apportionment was correct, and should be sustained. (Dumesnil v. Shanks, 97 Ky., 361 and 362; Cooper v. Nevin, 90 Ky., 85; Bitzer v. O’Bryan, 21 K. L. R., 1307.)</p>

<p>Case 101 — PROSECUTION AGAINST THE H. A. THIERMAN CO. FOR VIOLATING AN ACT TAXING THE SALE OP BLENDED SPIRITS,</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES.</p> <p>1. All acts for raising revenue must originate in the House of Representatives. (Section 47 Constitution of Kentucky.)</p> <p>2. The police power is not without limit, and in its exercise no fundamental right can be invaded. An act not for regulation can not be sustained by invoking the police power. Nothing can be obtained under the mere guise' of the police power improperly exercised. (Sections 1273, 1905a, 2200, Kentucky Statutes; Cooley Const. Lim. (4th Ed.) 719; Com. v. Alger, 7 Cushing, 53; Austin v. Murray, 16 Pick., 121; Watertown v. Mayo, 109 Blass., 315; Slaughter House Cases, 16 Wall., 36; Coe v. Shultz, 47 Bar, 64; Blatter of Rogers, 72 N. Y. 1; Town Lake-view v. Rose Hill Co., 70 111., 191 s. c. (22 Am. Rep., 71;) Blatter of Jacobs, 98 N. Y., 98 (“50 Am. Rep., 636, 643-644;”) Weismer v. Village'Douglas, 64 N. Y., 9150 “21 Am. Rep., 586”; Stuart v. Palmer, 74 N. Y., 183; People v. Equitable Trust Co., 96 N. Y., 387;- Rockwell v. Nearing, 35 N. Y., 302; Blatter of Townsend, 39 N. Y., 171; Blatter of Deansville Cemetery, 66 N. Y., 569; Blatter Eureka Basin Warehouse Co., &c., 96 N. Y., 142; Legal Tender Cases, 12 Wall., 467; BlcCullock v. Blaryland, 4 Wheat., 316 Hepburn v. Griswold, 8 Wall., 603; Legal Tendes Cases, 12 Wall., 467.)</p> <p>3. An act primarily for both revenue and regulation, with former its primary object, is an act to raise revenue. (Cooley’s Taxation, chap. 19, p. 396.)</p> <p>4. A license is exacted before doing business and may be forfeited. No such requirement under present laws. (Kentucky Statutes, Secs. 4203-4-5-6-7-8-15; Acts of 1904, p. 255.)</p> <p>POINTS RELIED ON BY APPELLANT FOR REVERSAL.</p> <p>1. The Act of March 24, 1904, was not passed under the Police Powers of the State; it was not intended to regulate the business taxed, but to raise a revenue therefrom.</p> <p>2. There can be no obligation upon the part of Appellant to make the report, as a matter of regulation merely; the report is designed only for the purpose of ascertaining the amount of tax to be paid by Appellant.</p> <p>3. If the act fails as a Revenue Measure, the purpose of the report fails, and there is no offense committed in disregarding it.</p> <p>4. The Act is unconstitutional because:</p> <p>(a)Being a bill for raising revenue, it should have originated in the House of Representatives, according to Section 47 of the Constitution. The bill originated in the Senate. .</p> <p>(b) It is double taxation — because Act of June 17, 1902 obliges Appellant to pay tax on its business.</p> <p>(c) It discriminates against resident business, in favor of the same business owned by non-residents.</p> <p>(d) It discriminates in favor of large dealers against small dealers.</p> <p>(e) It violates Section 171 of the Constitution — disregarding uniformity.</p> <p>(f)It violates Section 2, Bill of Rights, because the tax is oppressive and amounts to spoliation.</p> <p>AUTHORITIES CITED.</p> <p>American & English Encyclopaedia of Law 2d. Ed. Vol. 22, S16, 917 and 918; Dunn v. Commonwealth (Ky.) 49 S. W. Rep. 813; Long v. State 27 Ala. p. 32; Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370; Peoples v. E. Martin, 60 Cal., 153; In re Guerrero, 69 Cal., 88; The Board of County Commissioners of Kiowa County v. Dunn, &c., 21, Colo. 185; State ex rel Beek v. Wagener, 77 Minn., 483; City of St. Louis, v. Knox, 6 Mo., 247; Commonwealth v. Bailey, 81 Ky., 395; Rankin v. City of Henderson, 9 Ky., Law. Rep. 861; Commonwealth v. Fowler, 28 S. W. Rep. (Ky.) 786; Livingston v. City of Paducah, 80 Ky< 656; Howell v. Bristle, 9 Bush, 493; Chesney v. Hooser, 9 B. lion. 330.</p> <p>POINTS AND AUTHORITIES.</p> <p>DIFFERENCE IN ACTS.</p> <p>The Act of March 24, 1904, imposes a license tax or fee on the business or occupation of compounding', rectifying, &c.</p> <p>The Act of March 29, 1902, imposes a license tax on the business or occupation of wholesaling such rectified liquors'.</p> <p>These two occupation are different and distinct occupations, and are both subject to a license tax. They are so held and considered in the United States Statute, to be subject to separate and distinct licenses, under the Internal Revenue Laws.</p> <p>“The payment of a special tax as a rectifier, does not relieve any person from the payment of the Special tax as a wholesale dealer on account of sales of spirits, whether the same be of his own rectification or otherwise.” (United States Compiled Statutes [1901] Volume 2, page 2094, Section 3242; United States Compiled Statutes [1901] Volume 2, page 2096, Section 3242; Also see “No. 7, Revised, April 15th, 1901, United States Internal Revenue Regulations and Instructions concerning tax on Distilled Spirits under the Revised Statutes of the U. S. and subsequent Acts.” Black on Intoxicating Liquors, Section 123; State v. New-comb, 107 N. C., 900: State v. Gabon, 35 Md., 236; Schumm v. Village of Gardner, 25 111. Ap. 633.)</p> <p>BILLS FOR RAISING REVENUE.</p> <p>Bills for raising revenue, within the purview of Section 47 of the Constitution, are bills imposing taxes on the people for the support of the Government, in consideration of the common protection of their lives, liberty and property.</p> <p>They receive no special privilege or advantage by reason of such payment, other than such common protection.</p> <p>It is the contention of the State that such laws as the Act of March 24, 1904, do not come within the inhibition of the Constitution. That while they may operate to incidentally turn money into the Treasury, by reason of the license tax imposed, it is not paid by those engaged in the -business for the common - benefit of the Government, but for the privilege and advantage of conducting a business, from which all who do not pay said license tax are excluded.</p> <p>If this contention be correct, then it does not matter which branch of the Legislature originated the bill. (Commonwealth v. Bailey, 81 Ky., 399; Schumm v. Village of Gardner, 35 111., Ap. 636; Pleuler v. State, 11 Neb., 570; State v. Bixman, 163 Mo., 1; Rankin v. City of Henderson, 9 R., 861.)</p> <p>RIGHTS AND IMMUNITIES OE RECTIFIERS AND BLENDERS.</p> <p>(a) The business of compounding, rectifying, adulterating or blending distilled spirits is not a natural right, but is a privilege which the State may prohibit altogether, or may permit under prescribed terms and conditions. (Black on Intoxicating Liquors, Section 83; in re Hoover, 30 Fed. Reporter, 51; Balemeyer v. Iowa 18 Wall 139;'Meigler v. Kansas, 133 U. S., 633.)</p> <p>(b) The occupation of rectifier or that of compounding or blending distilled spirits, is neither a liberty, privilege, an immunity nor a property right, secured either by the Federal or the State Constitutions. (Black on Intoxicating Liquors, Sec. 83; State v. Bixman,tl68 Mo., 1; Boston Beer Co. v. Massachusetts, 97 U. S., 35; Stone v. Mississippi, 101 U. S., 814; Powell v. State, 69 Ala., 10; La Croix v. Commissioners, 50 Conn., 331.)</p> <p>(c) The occupation of rectifying, blending and compounding, being neither a natural right nor a property right, and not being an occupation or business “which it is the right of the citizen to pursue, undisturbed by arbitrary legislative interference,” whoever engages in such occupations, does so under such disadvantages as may be prescribed by the law making power which authorizes it. (State v. Luddiugton, 33 Wis., 107; St. Louis & M. R. R. Co. v. City of Kirkwood, 60 S. W., 113; State v. Bixman, 163 Mo., 1; Powell v. Pennsylvania, 137 U. S., 678; Reymann Brewing Co. v. Brislen, 179 U. S., 369.)</p> <p>REGULATIONS UNDER POLICE POWER, AND TAXES FOR</p> <p>THE PURPOSE OF RAISING REVENUE,</p> <p>DISTINGUISHED.</p> <p>It is the contention of the State that said Act of March 34th, 1904 is an Act to regulate, and not for the purpose of raising revenue. The House and the Senate, within the limitations of the Constitution, are equal in dignity and power, and unless it clearly appears that .said bill is unconstitutional, and one for raising revenue, it will be held valid.</p> <p>If one interpretation will uphold its consiiiutionality. and another render it unconstitutional, the Courts will uphold the Act.</p> <p>We admit that the bill .originated in the Senate, but we say it is not a revenue measure, but an exercise of the police power. (A. & E. Encyclopaedia of Law 2nd Ed. Yol. 21, 745; State v. Bixman, 168 Mo., 1; Commonwealth v. Bailey, 81 Ky., 399; Bobinson v. Commonwealth, 101 Ky., 287; State v. Wright, 14 Oregon, 365.)</p>

<p>Case 102. — ACTION BY LAURA H. MUTTER AGAINST JOHN F. MUTTER FOR A DIVORCE IN WHICH HE FILES A COUNTERCLAIM FOR DIVORCE. —</p> <p>Appeal from Barren Circuit Court.</p> <p>S' E. Jones, Circuit Judge.</p> <p>From the judgment granting the husband a divorce and allowing the wife alimony, both parties appeal.</p> <p>We insist that the “fault” or cause for which the divorce was granted was the defect, blemish or malformation of the appellee which prevented sexual intercourse, and under the statute, the wife being held to be in fault, she was not entitled to any allowance for alimony. (Cottrell v. Cottrell, 24 Ky. L. R., 2417: 95 Ky., 286.)</p> <p>Tlie questions presented are:</p> <p>(1) Did the court properly overrule the demurrer to the petition? (3) Was it error to grant appellant a divorce upon his counterclaim? (3) If appellant was properly granted a divorce, was not appellee still entitled to alimony? (4) Was the allowance sufficient?</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes, Sec. 3131; Shrock v. Shrock, 4 Bush, 683; Evans v. Evans, 14 R., 638; Steele v. Steele, 16 R., 517; Zumbriel v. Zumbriel, 34 R., 590; 1 Bishop on Marriage & Divorce, Sec. baugh, 38 Am. Dec., 448; Payne v. Payne, 34 Am. St. Rep., 340; 89 Ala. 391; Kempf v. Kempf, 34 Mo. 311; Bascomb v. Bascomb, 35 N. H., 367; Griffin v. Griffin, 163 111., 368; Davis v. Davis, 86 Ky., 33; Newsome v. Newsome., 15 R.., 801.</p>

<p>1. Infants — Contracts—Ratification—A conveyance by an h fynt being voidable merely, may be ratified on his attaining his majority.</p> <p>2. Same — Acts Constituting Ratification — An infant may ratify a conveyance of his real estate by failing to disaffirm the same within a reasonable time after reaching full age, or by accepting the benefits of the conveyance after arriving at full age, or by retaining property received under the conveyance and enjoying the same after coming of full age.</p> <p>3. Same — An infant conveyed land for a specified sum, and received a part of the purchase price during infancy, and the balance after reaching full age. Held, that the acceptance of a part of the purchase price after reaching full age was a ' ratification of the conveyance and made it as complete as though he had been of age when it was made.</p>

<p>Case 104. — ACTION BY THE CORBIN OIL & GAS CO. AGAINST MULL &c. FOR BREACH OF CONTRACT. —</p> <p>Appeal fom Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>From the judgment Plaintiff appeals.</p>

<p>Case 105. — PROSECUTION AGAINST THE KENTUCKY INSTITUTION, FOR THE EDUCATION OF THE BLIND FOR FAILING TO PUT UP FIRE ESCAPES AS REQUIRED BY AN ORDINANCE OF THE CITY OF LOUISVILLE. —</p> <p>Appeal from Jefferson Circuit Court' (Common Pleas Branch, 3d Division.)</p> <p>Upton W. Muir, Judge.</p> <p>Prom the judgment sustaining a demurrer to the petition of the Institution praying for an injunction restraining the prosecutions, the institution appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>5th Biennial Comx>ilation of Ordinances of City of Louisville, page '304.</p> <p>(A)This. Court takes judicial notice of the ordinances of the City of Louisville. (Ky. Statutes, Section 3775; Gaertner v. Lou. Artificial Stone Go., 114 Ky., 160; Woolley v. Louisville, 114 Ky., 556.)</p> <p>1. The ordinance of the City of Louisville relating to fire-escapes is unconstitutional, when there is an attempt made to apply the same to the Kentucky Institute for the Blind, for the reason, that it conflicts with Article 5 of Chap. 16 of Kentucky Statutes, and the various sections of the same.</p> <p>(A) An ordinance may be valid when applied to one class of cases, and void when applied to another. (Cooley’s Constitutional Limitations (Lane’s Edition), page 350; Lewis’ Sutherland’s Statutory Construction, page 584, Section 398; Opinion of the Justices, 41 N. H., 555; Commonwealth v. Barney, 115 Ky., 475; McQuillin’s Municipal Ordinances, Section .395; page 453; Ingersoll on Public Corporations, Section 75, x>age 335.)</p> <p>(B) An ordinance repugnant to a statute is absolutely null and void. (Cooley’s Constitutional Limitations Lane’s Edition), page 379; Louisville v. Louisville Railway Co., Ill Ky., 1; Haywood v. Savannah, 13 Ga., 404; Ingersoll on Public Corporations, Section 75, page 334.)</p> <p>(C) No part cf a statute is meaningless. (Broom’s Legal Maxims, page 569 (8th Amer. Edition); Lewis’ Sutherland’s Statutory Construction. Sections 491, 516, pages 919 and 954.)</p> <p>(D) Kentucky Institute for the Blind is a State Institution. (Kentucky Statutes 1903, Chap. 16, Article 5; Hager, Auditor, v. Gast, 84 S. W., 556 (Ky .Court of Appeals); Louisville Pubile Library v. City of Louisville, 80 S. W., 1169; S. C., 26 Ky., L. R., 202, distinguished; Kentucky Statutes, Chap. 51; Kentucky Statutes, Section 2758.)</p> <p>2. In the absence of express authority, a municipal corporation has no power to enact an ordinance regulating a State institution, within its bounds. St. Paul v. Laidl'er, 2 Minn., 190; S. C., 72 Amer. Dec., 89; McNaugliton v. Industrial School of Reform, 19 Ky. L. R., 1695; Louisville v. Leatherman, 99 Ky., 213; Ruhstrat v. People, 185 III., 133; S. C. 76 Amer. St. R., 30 S. C. 49 L. R. A., 181; S. C. 57 N. E., 41; Hager, Auditor, v. Gast, 84 S. W., 556 (Ky. Court of Appeals); Ky. Statutes, Section 2833a.)</p> <p>(A) Sections 2758, 2742 and 2783, Kentucky Statutes, must be construed together. (Amer. & Eng. Ency. of Law, Yol. 26, pages 620.)</p> <p>3. Neither a statute nor an ordinance includes a State institution in its terms by intendment; State v. Shepherd, 64 Minn,,287; McQuillin on Municipal Ordinances, Section 29-30, 291, pages 41, 42 and 445.)</p> <p>(A) An ordinance must be construed like a statute. (Denning v. Yount, 62 Kan., 217; S. C., 61 Pac., 803; Affirming Denning v. Yount, 9 Kan. Appeals, 708; S. C. 59 Pac., 1092; McQuillin on Municipal Ordinances, Section 289, page 441.)</p> <p>4. Under Section 2922, Ky. Sts., a writ of prohibition will lie to test the application of an ordinance to a State institution, (Legality as defined by Webster; Cyclopedic Diet, of Law, pages 538-539.)</p> <p>(A) In interpreting a statute, the acts which it superseded and changed may be resorted to. (Lewis’ Sutherland’s Statutory Construction, Sections 399, 401, pages 759 and 777; Broaddus v. Broaddus, 10 Bush, 299; Hadley v. Perks, L. R., 1 Q. B., 457; Elliott’s Digest, page 337, Section 4; Lucas’ Digest, Section 53, page 27; Burnett’s Code, page 189, Section 27; Crawford v. Burke, 195 U. S., 176.)</p> <p>(B) In interpreting a section of the charter of a municipal corporation, a similar section in the charter of another municipal corporation, that contains different language, may be resorted to, to aid in the matter. (Amer. & Eng. Ency. of Daw (2nd Edition), Yol. 26, page 623; Ky. Stas., Sections 3063 and 3639; Ky. Sts., Section 2922.)</p> <p>5. Under Section 25 of Criminal Code, a writ of prohibition will lie to prevent a police court, from usurping criminal jurisdiction over State property, of which it has ro control. Civil Code, Section 479; Brown on Jurisdiction (2nd Edition), Section 173, page 610; I-Iigh’s Extraordinary Legal Remedies (3rd Edition), Section 702, page 706.)</p> <p>6. Under Section 299, Ky. Sts., the Kentucky Institute for the Blind can only be sued in matters in which it has a property interest.</p> <p>(A) The affirmative words of a statute generally carry a negative meaning with them (Lewis’ Sutherland’s Statutory Construction, Section 333, pages 637 and 638; Marbury v. Madison, 1 Cranch, 137; Curtis’ Jurisdiction of U. S. Courts (1st Edition), page 8; Broom’s Legal Maxims (8th Amer. Edition), page 663.)</p> <p>(B)A State can not be sued, unless there is an express statute allowing it to be sued. (Tate v. Salmon, 79 Ky., 543; Williamson v. Industrial School of Reform, 95 Ky., 251; Ky. Sts., Section 309.)</p> <p>(C) Statutes, permitting the State to be sued, must be strictly construed. (Lewis’ Sutherland’s Statutory Construction, Section 588, page 1038.)</p> <p>(D) While the word action sometimes includes criminal prosecutions, it does not always do so. (1st Cyc., 719; People v. Green, 1 Ida., 235; State v. Schomber, 63 Pae., 221 (Washington.)</p> <p>(E) The following eases are distinguished from the ease at bar: (Herr v. Cen. Ky. Asy., 97 Ky., 458; S. C. 110 Ky., 282; Hauns v. Cen. Ky. Asy., 103 Ky., 562; S. C. 23 Ky. L. R., 1060; Gross v. Board of Managers, 105 Ky., 840; Henderson Co. Board of Health v. Ward, 107 Ky., 477; Bank of Hopkinsville v. Western Ky. Asylum, 108 Ky., 357; Oberdorfer v Louisville School Board— Kentucky Court of Appeals, March 10, 1905.)</p>

<p>1. Perpetuities — Power of Appointment — Under the statute against perpetuities, a devise to one for life, with power of appointment among her children or descendants in remainder, failing which such children or their descendants took under the original devise as remaindermen, it was not competent for the life tenant in the exercise of the power of ai>pointment to limit the estate of the remaindermen for their lives, with remainder over to others. To do so would allow a testator to indirectly do what the statute forbids, viz., postpone the vesting of the fee, or the alienation of the fee, for a longer period than a life or lives in being and 21 years and 10 months thereafter.</p> <p>2. Same — Construction of Will — Under the rule provided by the statute against the creation of perpetuities, the validity of a devise creating a future estate depends upon the certainty of is vesting within the prescribed period. This certainty must exist at the time of the creation of the estate, and is not affected by subsequent events.</p> <p>3. Same — In construing the extent of a power of appointment created by will, the test is, whether the estate created by the person exercising the power, is such as the original testator might legally have created. If it is not, then the attempted exercise of the power will be void to the extent it violates the statute against perpetuities, tested by the conditions existing when the will took effect, viz., upon the death of the testator.</p> <p>Syllabus by Judge O’Rear.</p>

<p>1. Carriers — Contract to Deliver Feed — Delay in Delivery — Special Damage — Contemplation of Parties to Contract — In an action for special damages against a carrier for failure to deliver cotton seed within a reasonable time, for loss in weight of cattle and extra work in taking care of and providing proper feed for them during the delay, the rule is that where a contract has been broken the damages for the breach are such as may reasonably be supposed to have been in contemplation of both parties at the time the contract was made as the probable result of the breach of it.</p> <p>2. Notice to Carrier — Situation of Plaintiff — New Contract — Consideration — Where there was delay in the shipment of cotton seed, with which to feed cattle owned by the plaintiff, the fact that the plaintiff gave notice to the carrier of the seed of his special need thereof, who then agreed to trace it and deliver it as soon as possible, did not constitute a new contract between the parties, there being no consideration therefor, and there can be no recovery on such a promise.</p>

<p>1. Railroads — Actions ■ for Causing Death — Continued Use of Railroad Track by Pedestrians — Knowledge of Company-Presumption — In an action against a railroad company for the killing of a foot passenger walking on its track in a town of two thousand inhabitants, at a point in its switch yard where, though it does not appear there was a public street or highway, but it does appear it was used by the public and had been so used for more than fifteen years as a roadway by foot passengers with the knowledge of the operatives of the train, such constant and continued use raised the presumption of knowledge by the company that it was so used.</p> <p>2. Populous Communities — Control of Train — 'Lookout Duty— Where a railroad track runs through a populous community along or across streets, where from the nature of things persons may reasonably be expected at any time, it is the duty of those-in charge of the train to so operate it at a speed which has the train under control; and keep such a lookout as will enable the operatives to give timely warning of its approach, as well as to stop it in ease of necessity before injury has been inflicted on a trespasser.</p> <p>3. Speed of Train — Absence of Legislative Regulation — Negligence — Question for Jury — Where legislation has not regulated the speed of trains in populous communities, each case must stand upon its own facts. Whether the speed of the train is so great as to amount to negligence will be a fact to be determinedly the jury. Fast trains are a necessity, but nobody has a right to be in such a hurry as to run over and kill people who happen to get in their way, and who have a right to be or are known to be at the point of collision. No requirements of commerce can justify shell a rule, nor has such inhuman doctrine any place m our laws.</p> <p>4. Joint Action Against Company and Engineer — Verdict .of Jury Against One — Effect—In an action against the railroad company and its engineer for the negligent killing of a person on its track, it does not follow that the same verdict may be rendered against both of the defendants. If the plaintiff is entitled to his verdict against two tort feasors, but the jury are able to agree only as to one of them and gives a verdict accordingly, there is no reason why the plaintiff should not have at least what the jury has given him.</p> <p>5. Where, in an action for death caused through being struck by a train while walking on the track, the conductor is made a co-defendant with the company, and the court instructs the jury to find for him, the failure of the jury specifically to respond to such instruction in their verdict “for plaintiff,” and which fixed the damages against the company without mentioning the conductor, cannot avail the company.</p>

<p>Case 109 — ACTION BY R. A. BURTON SUPERINTENDENT' OP SCHOOLS OP LINCOLN COUNTY BY COMMONWEALTH, AND BY ELIZA J. LUSK SUPERINTENDENT OP SCHOOLS OP GARRARD COUNTY BY COMMONWEALTH, AGAINST B. P. GRAZIANI AND OTHERS ON A BOND POR THE SALE OP SCHOOL BOOKS. —</p> <p>Appeal from Lincoln Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for the Plaintiff, Defendant appeals.—</p> <p>POINTS AND AUTHORITIES.</p> <p>1. No liability until books adopted after the action of bond. Only adoption alleged in 1898. Statute shows liabilty on adoption. Bond shows that liabilty was only after adoption.</p> <p>3. No consideration for the bond. Mistake of law and fact.</p> <p>3. The bond invalid as a Statutory Obligation.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes Section 4423 , 4424; Johnso v. Ginn & Co. 20 Ky. L. R. 1475; Commonwealth v. Ginn & Co. 23 Ky. L. R. 521; 27 A. & E. Eney. Law, 2d Ed., 441; Warfiels v. Brand, 13 Bush 77; 7 A. & E. Ency of Law, p. 976; Higgins v. Commonwealth, 94 Ky. 54.</p>

Case 110. — ELECTION CONTEST FOR SHERIFF BY H. H. RICE AGAINST A. M. NEELY. — Appeal from Owsley Circuit Court. H. C. Faulkner, Circuit Judge. Judgment for Contestant. Contestee appeals. POINTS AND AUTHOBITIES. 1. In returning the 85 questioned ballots the officers of the election did not comply with the requirements of see. 1482 of the Ky. Statutes. 2. The undisputed proof is that the election officers were drunk. 3.

<p>1. Criminal Law — Appeal—Transfer of Case — Filing of Transcript —Delay—Time of Objecting — Where a motion to dismiss an appeal from- a conviction of a felony on the ground that the transcript was not lodged with the clerk of the Court of Appeals within 60 days after judgment, as required by Cr. Code Prac., sec. 336, sub-sec. 3. is not made until after the ease is submitted for argument the irregularity is waived.</p> <p>2. Homicide — Aiders and Abettors — Action in Concert — Feuds— Defendant, being at the home of his relatives, learned that another party with whom they were at enmity was assembled at a neighbor's house looking for a fight. One of defendant’s relatives went to the neighbor and agreed that defendant and his party (consisting of four, one of whom was unarmed) should go home by an unusual route so as to avoid going by the neighbor’s and bringing on a conflict. The other party (consisting of seven), having violated this agreement, met defendant’s party on the unaccustomed route, and, in a fight which immediately followed, one of such seven was killed. Held, that it was immaterial whether defendant or one of his companions fired the fatal shot, since what would justify one would justify all, and each Was an aider and abettor of the others, if the killing was unjustifiable.</p> <p>3. Same — Self-Defense—Apparent Danger — Defendant was entitled to an acquittal if there was reasonable ground to apprehend danger necessitating the shooting as well as if there was actually such danger.</p> <p>4. Same — Instructions—Conspiracy—Such a state of facts did not warrant an instruction on conspiracy.</p> <p>5. Same — Self-Defense—If the killing was not necessary and did not reasonably appear necessary to protect defendant or mem- " bers of his party from death or great bodily harm, defendant was guilty.</p> <p>6. Same — Murder or Voluntary Homicide — If the killing by defendant, or his aiding or abetting of the killing by another, was done without malice, unlawfully and willfully in a sudden, affray, or in sudden heatiof passion upon provocation reasonably calculated to excite defendant’s passion beyond his power of control, it was voluntary manslaughter; if with malice, it was murder.</p> <p>7. Same — Self-Defense—If defendant or any of his party commenced the fight.by first shooting or first making demonstrations to shoot, or if both parties were determined on a conflict and (fought by mutual consent, the killing was not excusable on the ground of self-defense.</p> <p>8. Same — Reasonable Doubt as to Degree — Where one accused of homicide is guilty, but there is a reasonable doubt as to whether he is guilty of murder or voluntary manslaughter, he should be convicted of the lesser offense only.</p> <p>9. Criminal Law — Reasonable Doubt — One accused of murder is presumed to be innocent, and this íoresumption entitles him to acquittal unless his guilt has been proved beyond a reasonable doubt.</p>

<p>Case 113. — ACTION BY JAMES RICH AGAINST ED BAILEY AND OTHERS FOR FALSE ARREST AND IMPRISONMENT. —</p> <p>Appeal from Monroe Circuit Court.</p> <p>H. C. Baker, Circuit Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>SUGGESTIONS AND AUTHORITIES.</p> <p>1. Burden of proof was on the appellant and the Court erred in holding it was on the appellees and in giving the concluding argument to them. (Civil Code of Practice, sec. 525-6; Lucus v. Hunt, 91 Ky., 279).</p> <p>2. The defendants did not aver in their answer that they “had authority or excuse for arresting plaintiff, and the issue was simply whether, in fact, they did restrain him of his liberty, which act, if done, was, of course, unlawful.”</p> <p>The court erred in permitting the defendants to plead in justification and in mitigation of damages, the meetings, acts and doings of the officers of the church and the congregation. (Hiller v. Ashcraft, 98 Ky., 315; Glazne v. Hubbard, 19 R., 1025).</p> <p>3. In this action, “the unlawfulness of the detention is the gravamen of the offense, hence it may be committed without malice on the part of the person causing the detention, consequently the question of malice is immaterial, except as it may affect the question of damages.” (Reynolds by etc., v. Price, 22 R.r 5; American & Eng. Ency., p. 661-663).</p> <p>4. The appellees were not peace officers, and the appellant had committed neither a misdemeanor nor a felony, consequently they are liable to appellant, though their motives actuating them may not have been improper or corrupt, and it was error for the Court to refuse to so instruct the jury. (Glazae v/1 Hubbard, 19 R., 1025).</p> <p>5. The officers of the church had no right or authority to direct the appellees to arrest and detain the appellant and having advised and caused the arrest of appellant, they too were jointly liable with the appellees to the appellant for the damages resulting therefrom. This being true, 'the appellees are not entitled to rely on the acts and doings of their joint trespassers as a defense, nor in mitigation of damages.</p> <p>6. “A private person may make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony.” (Criminal Code, sec. 37; Southern Ry. in Ky. v. Shirley, 28 R., 860).</p> <p>7. By the letter and spirit of the supreme law of the land, “no freeman shall' be taken or imprisoned, * * * but by the lawful judgment of his peers, or by the law of the land.”</p> <p>8. The Court erred in permitting appellees’ witnesses to detail what they had seen and heard; what the elders and deacons of the Church had done when appellant was not present, for more than one week prior to his arrest by appellees.</p> <p>9. The law as embraced by the instructions of the court is not supported by the evidence nor authorized by any law, except “The Blue Laws.”</p> <p>10. Neither the fear of, nor the love for the Church, should be permitted to defeat the law in a court of justice.</p> <p>11. “When it appears from the bill that instructions were given by the court on its own motion, or for the plaintiff and then for the defendant, or at the instance of the one party or the other, and then instructions by the court, the bill, so far as the instructions are concerned, will be regarded as complete, unless it appears on the face of the record that other instructions were given or refused.” Bill of exceptions in this case is complete, under this rule. (Southern Ry. in Ky. V. Shirley, 28 Ky. Law Rep., 860; Garrott. v. Ratliff, 83 Ky., 384; L. & N. R. R. Co. V. Tinsley, 86 Ky., 297).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The persons intrusted with the care and management of a meeting, or assembly, may preserve order, and use such force as is necessary to remove a person who is disturbing it. (A. and E. E. Law, vol. 9, page 675, 7 Ind., 528; Mattock ads. McLean; Wall v. Lee, 34 N. Y., 142; Commonwealth v. Sigman, 3 Pa., S. R., 255).</p> <p>2. Persons acting under authority of authorized agents of a church whose duty it is to preserve order therein, may remove disturbers of a congregation, assembled awaiting commencement of services. (U. S. v. Brooks, 4 Craneh, U. S. R., 429; ¡Reed v. Inglis, 12 U. S. C. R., 191).</p> <p>3. Any one without a warrant may lawfully lay hands upon another to prevent a breach of public decorum, as to turn him out of a church, and thus prevent him from disturbing the congregation, or a funeral teremony. (Hall v. Planer, 1 Lev., 196; Glover v. Hughes, 1 Mod., 3 vol.; Waits A. and D., p. 314).</p> <p>4. A religious society has the right to prescribe such rules as they may think proper for preserving the peace, or order, when met for public worship, and may use necessary force to remove a person wilfully violating such rule. (McClain v. Haddock, 7 Ind., 525; Beckett v. Lawrence, 7 Abbot (N. Y. 8 , 403; Wait’s Actions and Defenses, vol 2, p. 264).</p> <p>5. In a civil action defendant may set up matter tending to present a history of the behavior and conduct of plaintiff prior to and at the time of arrest, for the purpose of mitigation, and for the purpose of meeting allegation that defendant acted maliciously in removing plaintiff. (Beckett v. Lawrence, 7 Abb. (N. Y.), 405).</p> <p>6. Any person guilty of riotous, violent, or indecent behavior in any church, or in any church yard or burial place, or who molests or disturbs, or troubles divine service may be arrested. (Addison on Torts, 2 vol., p. 23).</p>

<p>1. Appeal — Dismissal—Damages—Damages will be awarded on a supersedeas, where the appeal is dismissed for .want of jurisdiction and the judgment was for the payment of money.</p> <p>2. Same — Failure to award o damages on a supersedeas, where the appeal was dismissed, was only a clerical error, and'may be corrected on motion, although the time for filing the petition for rehearing has expired.</p> <p>3. Same — Where a county or other municipality supersedes a judgment, and appeals, damages will be ¡awarded on dismissal for want of jurisdiction, though it might be impracticable to collect the judgment.</p> <p>For former judgment see 121 Ky.</p>

<p>1.Homesteads — Appurtenances—Storehouse Adjacent to Dwelling — Exemption—Under the homestead law of this State, sec. 1702, Ky. Stats., exempting to “a bona fide housekeeper so much land, including dwelling house and appurtenances, ns shall not exceed in value $1,000” from sale for the debts of the owner, where the owner sold his homestead for $1,000, and invested it in.a lot upon which there was a dwelling and a small storehouse adjacent thereto, the value of both not exceeding $1,000, the storehouse may be considered as an appurtenance to the dwelling within the meaning of the statute, and is exempt although it may be rented out by the owner.</p>

<p>1. Ferries — Infringement—Damages—In an action for an infringement on a ferry privilege plaintiff sought to recover damages for five years previous to the institution of the suit, and proved that defendant operated a ferry within a mile of plaintiff’s ferry, that in the five years plaintiff’s receipts had diminished in comparison with the receipts for the previous five years about $1.50 a day. Held, that a verdict of $1,000 was not excessive.</p> <p>2. Same — What Constitutes — ICy. St. 1903, see. 1820, forbids the establishment of a ferry within a mile bf an existing ferry. A merchant conducting a store on a river within a mile of an existing ferry transported persons across the river. Persons who purchased goods at the Store were given tickets for the price of the ferrying, which tickets were delivered to the merchant’s employee who operated the boat used in transporting persons across the river, and he gave them to the merchant and received the’compensation. Tickets were only given to persons who made purchases. The merchant erected on the opposite shore a bell for the convenience of persons who desired to cross. Held, that the merchant infringed on the existing ferry, since he, in effect, transported persons for hire.</p> <p>3. Same — Damages—Proof—Sufficiency—The owner of a ferry privilege suing for an infringement of his right is only required to recover, to show the diminution in the receipts of his ferry, and the use of the prohibited ferry by the public, for the law will then presume that damage has resulted.</p> <p>4. Same — Establishment—Statutes—Ky. St. 1903., sec. 1804, providing that no application to establish a ferry shall be heard unless notice thereof ’shall be posted on the courthouse door of the county, etc., makes the posting of the notice necessary to confer jurisdiction on the court, and the establishment of a ferry without the giving of notice is void, but the notice need not be recorded or preserved.</p> <p>5. Same — Judgment—Validity—A judgment of a county court establishing a ferry did not recite the posting of the notice of the application as required by Ky. St. 1903, sec. 1804. There was evidence that the notice was posted. There was no contradictory evidence. Held, that it must be presumed, in favor of the validity of the judgment, the court did not render jtwithoutevidenee that the statutory notice had been given.</p> <p>6. Same — Conclusiveness of Judgment — A judgment establishing a ferry cannot be attacked in a suit by the owner for an infringement on the ferry privilege granted by the judgment.</p> <p>V. Same — Period of Ferry Privilege — Statutes—Ky. St. 1903, sec. 1802, provides that no ferry right shall'be granted for a longer period than 20 years. An order establishing a ferry did not 'specify the period for which the right was granted. Held that, as the statute must be read into the order, it would be conclusively presumed in a suit for an infringement of the right that it was granted for 20 years.</p> <p>8. Same — Infringement on Ferry Right — Measure of Damages— An owner of a ferry privilege, suing for an infringement of his right in consequence of the maintenance of a ferry within a mile of his own, is entitled to recover such damages as will compensate him for tolls which were lost to him by rea-</p> <p>* son of the diminution of the number of his customers who would have crossed on his ferry but were ferried by defendant.</p>

<p>1. Contract — Sale of Railroad Ties — Mutuality—Part Performance —Effect—The plaintiff in a letter to the agent of defendant proposed to furnish him good ties- at present prices, or any price which might hereafter he established, to which the agent replied, agreeing to" take “all the ties you put on at Gap within the next twelve months,” and in pursuance thereof the plaintiff delivered 1,079 ties within two months thereafter, which were accepted and paid for by the agent, who then refused' to accept any more. ^Held that, while the. contract was lacking for mutuality in the proposition made and accepted, a part performance thereof made it binding on both parties.</p> <p>2. Breach of Contract — Action For — Ties, not Delivered — Ties not Made — Measure of Damages — In an action for damages for ' breach of contract for the sale of 6,000 railroad ties to be delivered at a specified point on the railroad within twelve months, where the purchaser accepted and paid for 1,079 ties delivered, and refused to accept any more, leaving the plaintiff with 288 ties on hand not delivered, for which there was no market near the place of delivery, the measure of damages on the manufactured ties was the difference between the contract price and the price at which the owner was obliged to sell them; and as to the ties not made, the measure of damages was the difference between the contract price and the market price, which latter was the price the plaintiff could purchase them for, from others.</p> <p>ON REHEARING.</p> <p>3. When plaintiff made an offer to sell ties to be delivered “this year and next,” and defendant answered offering to take all ties delivered “within the next twelve months” there was a closed contract on plaintiff indicating his assent by his conduct.</p>