Volume 124 — Kentucky Reports

<p>CASE 1 — ACTION BY GRACE A. WARD AND OTHERS AGAINST THOMAS N. JOHNSON AND OTHERS TO ASCERTAIN THEIR RIGHTS UNDER CERTAIN DEEDS MADE BY THEIR FATHER TO THEM —</p> <p>Appeal from Hickman Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Prom the judgments- both, parties appeal.</p> <p>AUTHORITIES CITED.</p> <p>Clark v. Clark, 17 Ben Moore, 707; Oliver v. Kirk’s Heirs, 3 Metcalfe, 273; Bowles v. Winchester, 13 Bush, 11; Mountjoy v. McGinnis, 2 Duvall, 186.</p> <p>Bunnell v. Bunnell, 64 S. W. 420; Brewster on Conveyances, Sec. 298; Shawhan v. Shawhan’s Adm’r, 10 Bush 600; Hill’s Guardian v. Hill, ifec., 92 S. W. 924.</p>

<p>CASE 2. — ACTION BY UREY YOUNG AGAINST THE ILLINOIS CENTRAL RY. CO. FOR DAMAGES FOR PERSONAL INJURY</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment fo-r plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. “The injury to appellee was the result of a danger incident to the nature of his employment, and against which the master did not contract, and the possible consequences of which the servant assumed.”</p> <p>2. “Pleadings and proof make no issue of gross negligence; it was error to instruct on gross negligence.”</p> <p>3. “Error to refuse to instruct on assumed risK.” (Doyle v. Swift Iron & Steel Co., 5 Ky. L. R. 59; O. V. Ry. Co. v. McKinley, 17 Ky. L. R. 1028; O’Bannon v. L. & N. RR. Co., 9 Ky. L. R. 706; Ky. Freestone Co. v. McGee, 25 Ky. L. R. 2211; Gaffney v. Penna. Co. Sth Ky. L. R. 406.</p> <p>POINTS AND AUTHORITIES.'</p> <p>1. Appellee was entitled to ia judgment on the pleadings because the general denial of negligence avails nothing as long as the answer fails to deny the facts alleged in the petition as constituting the negligence.</p> <p>2. Appellee cannot complain of court’s refusal to give a peremptory instruction in its favor where the evidence not only tended to support appellee’s allegations of fact, but showed that every single fact alleged in the petition as constituting negligence was absolutely and literally true.</p> <p>3. Under the general plea of negligence all degrees of negligence may be proved.</p> <p>“Any degree of' negligence however gross may be proved under a general averment of negligence.” (Sherman & Redfield on Negligence, Yol. 1, Sec. 7, 4 ed.)</p> <p>“This court has held, and such is the law, that under the general allegation of negligence in common law actions for injuries, you may establish the degree by proof and it is not necessary to allege this degree, whether gross or ordinary, in order to make a cause of action, the averment of negligence being sufficient.” (L. & N. R. R. Co. v. Rains, 15 Ky. Law Rep. 423.)</p> <p>4. But in the petition in this case the .actual facts set forth show gross negligence if true, and in that case it would not have been necessary to use the word “gross” in order to allege the degree of negligence.</p> <p>And after all, if the petition had been in this respect defective, issue having been joined, proof heard, and the jury instructed that the negligence must be gross to warrant a verdict for plaintiff, the defect would have been cured by the verdict, if such defect had existed. (City of Louisville v. Snow’s Adm’r., 21 Ky. Law Rep., 1268; City of Covington v. Diehl, 22 Ky. Law Rep., 995; Mass. Benefit Ass’n v. Richart, 99 Ky. Law Rep., 302.)</p> <p>And pleadings will be liberally construed for the purpose of sustaining a verdict. (Murray v. Booker, 27 Ky. L. R. 781. See also Harlow v. Supreme Lodge, &c., 23 Ky. L. R., 456; C. & N. R. R. Co. v. Venable, 23 K. L. R., 427.)</p> <p>4. The abstract principle that a servant assumes the risks necessarily incident to his occupation is not here denied, but the Court has so often held that it is proper to refuse to submit abstract principles by instruction to a jury, we decline to quote authorities. . The instructions given by the Court clearly and concisely submitted the issue to the jury and upon the whole, excepting the peremptory instructiorr offered and refused, were as favorable to the appellant, or more so, than those offered by its attorneys, and submitted the real questions involved very clearly to the jury.</p> <p>The identical instructions .as to assumed risk which appellants offered were expressly condemned by this court in the case of Pfisterer v. Peter & Co., 25 Ky. Law Rep., 1605.</p>

<p>1. Time — Computation—Days Including First Day — Limitation of Actions — Under Ky. Stats., 1903 sec. 2516, providing that an action for personal injuries shall be commenced within one year after the accrual of the cause of action, an action commenced September 19, 1904, for injuries received September 19, 1903, was barred, since, in computing the time within which the action must be commenced, the day of the injury must be included.</p> <p>2. Same — Sunday—Ky. St. 1903, sec. 454, providing that if any proceeding is directed by law to take place on a particular day of the month, if the day happen to be Sunday, the proceeding shall take 'place on the next day, does not extend to the provisions in the statute of limitations, and hence the expiration on Sunday of the year within which actions for personal injuries must be brought did not authorize the bringings of such action on the following day.</p> <p>3. Limitation of Actions — Parties—The institution of an action against a concern alleged to be 'a corporation, but which was in fact a partnership, was not the commencement of an action against the individual owners and operators of such concern, so as to suspend the running of limitations as to them.</p>

<p>CASE 4. — PROSECUTION AGAINST RICH JONES FOR RAPE.</p> <p>Appeal from Trigg Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Defendant, convicted and appeals.</p> <p>A reversal is asked in this prosecution.</p> <p>1. Because the verdict is contrary to the evidence.</p> <p>2. Because the verdict is contrary to law.</p> <p>3. Because the court failed to recognize the defendant’s plea of former jeopardy or acquittal in the case and instruct the jury upon the same to find him not guilty.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes sec. 1154: Nelson v. Commonwealth; 3 Bush 104; 9 Bush 333; 90 Ky. 262; 78 Ky. 93; 88 Ky. 386; 85 Ky. 68. (See. 243 and 252 of the Code unconstitutional.)</p> <p>1. The only grounds upon which a motion in arrest of Judgment may be sustained, is that the facts stated in the indictment do not constitute a’ public offense within the jurisdiction of the court.</p> <p>2. The sustaining of a demurrer and re-submission to the grand jury does not constitute jeopardy, and is not an acquittal in any sense of the word.</p> <p>3. The first trial was no bar to the second trial, nor was it a bar to the re-submission to the grand jury.</p> <p>CITATIONS.</p> <p>McLaughlin v Commonwealth, 18 R. 205; Ky. Statutes, sec. 1154; Ky. Criminal Law and Procedure Roberson vol.. 1, page 357; Commonwealth v Arnold, 83 Ky., 1; Wells v. Commonwealth, 9 R. 658; Harkins v. Commonwealth, 109 Ky., 545; Criminal Code 270.</p>

<p>CASE 5. — PROSECUTION AGAINST R. FLEM STEVENS FOR MURDER.</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Defendant convicted and appeals..</p> <p>POITS AND AUTHORITIES.</p> <p>I. There is no proof to support an issue of manslaughter, and instructions “II, III and IV” were, therefore, erroneous. (Mackey v. Commonwealth, 80 Ky., page 347; Slagel v. Commonwealth, 81 Ky., page 485; Justice v. Commonwealth, 20 L. R., 390; Montgomery v. Commonwealth, 23 L. R., 732; Stovall v. Commonwealth, 23 L. R., 103; Coffman v. Commonwealth, 51 Ky., 18 B. Mon., 35; Mahian v. Commonwealth, 21 Ky. L. R., 1808.)</p> <p>2. The danger is not as it appears to the jury, but as it appears to the defendant at the time of thekilling, for the jury may believe now that there was no real danger, still if accused thought in good faith there was, he had the right to kill, and the jury should acquit: (5th R. 67, 103, and 244, SI Ky., 233;</p> <p>Coffman v. Commonwealth, 10 Bush, page 498; Coekrill v. Commonwealth, 95 Ky., page 25; Munday v. Commonwealth, 11 Bush, 347, 14 B. Mon., 620; Thatcher v. Commonwealth, 24 L. R„ 1584.)</p> <p>3. Whether requested or not it is the duty of the court in criminal cases to instruct the whole law applicable to the issue. (Cook v. Commonwealth, 10 L. R., 222; Buckels v. Commonwealth, 24 L. R., 571; L. & N. R. R. Co. v. Commonwealth, 84 Ky. 457, 113 Ky. 795, 8 L. R., 457.)</p> <p>4. Presumptions and reasonable doubt defined with this court’s approval: (Patterson v. Commonwealth, 99 Ky., 622.)</p> <p>5. It was competent to show the dangerous reputation of deceased among the peace officers of the county. (Trabue v. Commonwealth, 13 L. R., 343.)</p> <p>6. This court can not speculate as to the effect of competent evidence, which was, by the trial court, excluded from the jury: (Coppage v. Commonwealth, 3rd Bush, 532; Criminal Code, section 340.) ,</p> <p>7. Misconduct of Mrs. Growbarger and Commonwealth’s attorney, pro tern., was prejudicial to the defendant’s right to a fair and impartial trial. (Blackstone’s Commentaries Sharswood’s Ed., vol. 4, page 181, 200; Cupp v. Commonwealth, 87 Ky. 41, 42; Cargill v. Commonwealth, 12 L. R., 149.)</p> <p>ON PETITION FOR REHEARING.</p> <p>We earnestly request the- Court to reconsider its opinion, believing in good faith that after a careful examination of the Common Law as laid down by the elementary writers, and as generally adopted by the decisions of the courts of other jurisdictions, it will not establish a rule so radically different from that heretofore adopted by the decisions of this court, and which would place one charged with the slightest violation of the law, after his arrest if he attempt to escape, on the same footing with one charged with the most heinous of crimes. Such a rule could subserve no good purpose to society, would be inhuman in the extreme, and would not he becoming to the majesty of the law.</p> <p>We feel that after a careful examination of the authorities cited, the court will grant a rehearing of the cause and affirm the judgment of the lower court, for all of which/ we respectfully pray.</p> <p>AUTHORITIES CITED.</p> <p>Bouvier’s Law Dictionary; Black’s Law Dictionary; Kentucky Criminal Code, sections 42 and 43; Kentucky Statute, section 1338; Risch v. Bailey et al; Opinion filed November 27, 1906. Sf evens v. Commonwealth, (Ky.) 20 R., 544; Bowman v. Commonwealth, (Ky.) 16 R. 186; Petrie v. Cartwright (Ky.) 59, L. R. A., 720; Cyc. vol. 3, page 892; Cyc. vol.21, page 797; Am. and Eng. Encyclopedia of Law (2nd ed.) vol. 21, pages 204 and 305; State v. Dierberfer, (Mo.) 10 S. W., 168; Thomas v. Kinkead et al. (Ark.) 15 L. R. A., page 558; Williams v. State, 44 Ala. 41; Clements v. State, 50 Ala., 117; Reneau v.' State Sec. Lea. (Tenn.), 720; Brown v. Weaver (Miss.) 42 L. R. A., 423; Conraddy v. People, 5 Park Crim., (N. Y.), 234; Rischer v. Meelan, 11 Ohio Cir. Ct., 403; U. S. v. Clark, 31 Fed. R. 710; Forster’s case (Eng.) I._ Lewis, 187; Smith v. State, 59 Ark., 132; State v. Smith (Iowa) 67 L. R. A., 292; State vs. Stancill, 128, N. C., 606; Com. v. Rhoads, 23 Pa. Super. Ct., 512; State v. Whittle, 59 S. -C., 297; State v. Garrett, 60 N. C., 144; Arthur v. Wells, (S. C.) 2 Mill 314.</p>

<p>CASE 6 — ACTION BY W. C. HOPKINS AND ANOTHER AGAINST S. M. SLUSHER AND ANOTHER, ON AN APPEAL. BOND</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Court.</p> <p>Judgment for plaintiffs. Defendants appeal.</p>

<p>1. Trial — Reception of Evidence — Civ. Code Prac. sec. 606, sub-sec. 3, provides that no person shall testify for himself in chief after introducing other testimony for himself in chief. Held, that where, in -a suit to recover land, defendant claimed title under a title bond alleged to have been executed to I., and plaintiff took the deposition of I., in which he stated that no bond was made to him, and there was no cross-examination of the witness, and thereafter defendant took the deposition of I., in which he stated that a bond was executed to him, though defendant did not obtain leave to cross-examine I., the latter’s second deposition should be regarded as a cross-examination, and hence an objection to a subsequent deposition given by defendant was without merit.</p> <p>2. Evidence — Best and Secondary Evidence — Lost Instrument— In a suit to recover land claimed by plaintiff under a title bond, the testimony of an attorney that plaintiff gave him the bond to keep and have it recorded, and that he did not know where it was, although he had made a thorough search for it, and that there was no intention on his part to misplace it, was sufficient evidence of the loss of the bond to admit parol evidence of its contents.</p> <p>3. Same — On an issue in an action to recover land ias to the authenticity of a lost title bond, evidence considered, and held sufficient to sustain the same.</p> <p>4. Bona fide Purchases — Without Notice — A purchaser of land at decretal sale can not claim to be a bona fide purchaser without notice, when at the time of the sale an adverse claimant was present with a title bond in his hand forbidding a sale of a part of the tract, and the commissioner then iannounced that they were selling only the unsold land.</p>

<p>1. Criminal Law — Instructions—Sufficiency—Where the court, on a trial for homicide, correctly charged on the law of self-defense, an instruction that to kill with a deadly weapon in sudden affray or sudden passion without malice “and not in * * * necessary self-defense” was voluntary manslaughter, was not erroneous for failing to state the law of self-defense.</p> <p>2. Same — Argument of Counsel — A statement of the prosecuting attorney in his argument to the jury on a trial for homicide while warning them of their duty, that the crack of the pistol, the roar of the shotgun and the flash of the dirk had made the state notorious for crime, was not reversible.</p> <p>3. Same' — -On a trial for homicide the prosecuting attorney, in his closing argument, stated that accused was under the duty to flee before striking. On objection he withdrew the statement, and. said that he meant to say that accused must avoid striking if he could in safety to himself as the situation then reasonably appeared to him. Held that the statement was not prejudicial to accused.</p> <p>4. Same — Evidence at Former Trial — Method of Proof -Statutes. —Ky. stats. 1903, secs. 4637-4645, authorizing the appointment oí an official stenographic reporter who shall take stenographic notes of the testimony, and make a transcript of the same to be used in making a bill of exceptions, and providing that, in a criminal cass, the testimony, taken by the reporter, shall be used on a subsequent trial only on the consent of accused, do not change the method of proving the testimony of a deceased witness by bystanders who heard and remembered the testimony of the leceascd witness, and do not make the reporter’s notes the best evidence.</p> <p>5. Same — The transcript of the testimony of a deceased witness, testifying at a former trial, may be proved by the official stenographic reporter and read Dy him as evidence when the reporter testifies that the testimony was taken down accurately and correctly transcribed.</p> <p>6. Witnesses — -Cross-Examination.—Testing Memory and Veracity. —In ia criminal case the stenographer who took down the testimony of the witnesses at a former trial and who testified as to the testimony given at that trial by a deceased witness was properly cross-examined by being required to read his transcript of the evidence as a means of testing his memory and veracity.</p>

<p>CASE 9. — ACTION BY J. B. SMITH AGAINST JONATHAN</p> <p>CORNETT TO RECOVER LAND</p> <p>Appeal from Harlan Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes section 2506; Pope, &c. v. Brassfield, 22 R. page 1613; Spriggs v. Alvin, 6th J. J. Marshal, 162-3; Myers v. Buford, 7th J. J. Marshal, 250; Beal v. Brooks, 7th J. J. Marshal 232; Henderson v. Dupree, 82nd Ky. Law Rep., 678; Ross v. Veach, 22nd R., 578; Taylor v. Combs, 20 R., 1829-30; Creech v. Abner, 20 R., 1S12.)</p> <p>AUTHORITIES CITED.</p> <p>Neither infancy coverture nor any other disability can save the right to bring an' action for real property after 30 years from the time the right of action first accrued. (Kentucky Statutes, section 2508; Medlock &c. v. Suter &c., 80 Ky., 101; Bradley v. Burgess, 87 Ky., 648; Stillwell, &c. v. Leavy, &c., 84 Ky., 379; Hawes v. Kirk, &c., 18 R., 215; L. & N. R. R. Co., v. Thompson, 105 Ky., 190; Rose &c. v. Ware, 24 R., 2325-2326; Rose &c. v. W'are, 25 R., 947.) (Pet. for rehearing overruled.)</p> <p>2. Appellee was in actual adverse possession of the land when appellant took his deed from Emily Hoskins, &c., therefore the sale and conveyance was ehampertous and void. (Kentucky Statutes, section 210; Adkins &c., v. Whalin, 87 Ky., 153. In point.)</p>

<p>CASE 10. — ACTION BY J. K. SUMRALL AGAINST P. MANINNI TO ESTABLISH HIS USE TO AN ALLEY WAY.—</p> <p>Appeal from Boyle Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals-.</p>

CASE II — CONTESTED ELECTION PROCEEDING BY H. T. CRAWFORD AGAINST E. C. DUFF FOR THE OFFICE OF COUNTY JUDGE. Appeal from' Perry Circuit Court. M. J. Moss, Circuit Judge. Judgment for plaintiff. Defendant appeals. QUESTIONS PRESENTED. 1..

<p>CASE 12. — ACTION BY MAUD HUDGINS AGAINST THE LOUISVILLE RAILWAY CO. FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Jefferson .Circuit Court, C. P. Branch (1st Div.).</p> <p>Emmet Field, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>The second instruction given by the lower court is erroneous because the same qualified the Appellee’s contributory negligence; (Louisville Railway Co., v. Colston, 79 S. W., 243, 25 Ky. Law Rep., 1933; Trauber v. Third Avenue Railway Co., 80 N. Y., Supp. 231; Rider Admx., v. Syracuse Rapid Transit Railway Co., 58 L. R. A. 125, 171, N. Y., 139.)</p>

<p>Taxation — Omitted Property — Special Proceeding — New Trial— Filing Appeal — The listing for taxation of omitted property is a special proceeding wholly regulated by sec. 4241 Ky. » Stats., for which an appeal is provided from the decision of the county court to the circuit court, which under sec. 728 of the Civil Code must be filed in sixty days from the rendition of the judgment, and there being no power given the county judge after he has entered his judgment, to grant a new trial any orders which he may make in noting the filing of or overruling a motion .for a new trial are void and do not stay the proceedings on the judgment, and the appeal is lost unless filed within sixty days from the rendition of the judgment.</p>

<p>1. Descent and Distribution — Advancements — Sufficiency of Evidence. — Evidence held to show that a conveyance made to a daughter and her husband was intended as an advancement to her and not in consideration of a purchase price mentioned in the deed.</p> <p>2. Witnesses — Competency—Conversation had with Deceased Person. — Under the express provisions of Civ. Code Prac., sec. 606, limiting the competency of testimony concerning conversations and transactions had with persons since deceased, plaintiff could not show that, in a conversation had between Mm and decedent, services to be performed, etc., were agreed upon as the consideration for a conveyance of land made "by decedent to himself, where no other person was present at the conversation and no one interested in the estate testified against plaintiff in reference thereto.</p> <p>3. Same — Persons Interested in Estate.- — Plaintiffs claimed that the consideration for land conveyed to them hy decedent was the performance of services, etc. Decedent’s widow testified that the conveyance was made as an advancment. Heid that, since her property rights could not be affected by plaintiff’s claim her evidence was not embraced by Civ. Code Prac. sec. 606, permitting a person to- testify as to transactions with a decedent when one interested in his estate shall have testified against such person with reference thereto.</p> <p>4. Same. — Civ. Code Prac., sec. 606, permits a person to testify as to transactions with a decedent when one interested in his estate shall have testified against such person with reference thereto. Held, that plaintiff could not make Ms testimony as to a transaction with a decedent competent hy eliciting as new matter, on cross-examination, testimony against himself as to the transaction from one interested in the -estate.</p> <p>5. Deeds — Consideration — Conclusiveness of Recital. ■— The recital of the consideration in a deed is not conclusive evidence of its- truth, as it may be shown by verbal testimony or by circumstances that the recited consideration is not true.</p>

<p>School Districts — Building House — Quarterly Court Judgment — . Conclusiveness — Lien — 'Enforcement — Levying Tax — R. obtained a default judgment in the quarterly court against a school district for a balance due him for building a school house therein under contract with the trustees, on which execution was issued, and returned no property found. He then filed suit in the circuit court, setting up his judgment, execution and return, alleging a lien on the school house, therefor which he asked to be enforced, or for possession, of the house, to which the circuit court sustained a demurrer. Held — That the judgment of the quarterly court, not having been appealed from, is conclusive as to any matter of defense which was or which should properl y have been pleaded thereto, and, although the plaintiff has no lien on the house* or right to remove it, under his prayer for general relief, upon the facts stated, he is entitled to a judgment requiring the trustees to levy a tax to pay his claim.</p>

<p>1. Appeal — Decision on Merits — Appeal from Decision on Demurrer. — On appeal from a decision on a demurrer to a complaint in a suit to set aside a deed, where all the pleadings are before the court, the merits of the ease should be passed upon.</p> <p>%, Limitation of Actions — Accrual of Right of Action Against Trustee — Cancellation of Deed. — Defendant was appointed administrator of the estate of his, brother and was authorized by the heirs to compromise claims belonging to the estate and also given a power of. attorney to sell and convey real estate. Subsequently on February 20, 1892, plaintiff, an heir, sold and conveyed to defendant his entire interest in the estate. January 1, 1902, defendant resigned as administrator, and April 26, 1904, plaintiff brought suit to set aside his conveyance for fraud and compel an accounting. At the time of bringing suit defendant’s successor as administrator had not made a final settlement of his accounts. Held that, as plaintiff’s conveyance on February 20, 1892, terminated the trust relationship between the parties, the statute of limitations limiting the time for the bringing of this action began to run on that date, and was not suspended until defendant or his successor had made a final settlement.</p> <p>3. Same. — 'Whenever a trustee, whether the trust be created by power of attorney or by appointment as guardian, executor, or administrator, repudiates the trust and asserts title to the subject of the trust, the statute of limitations begins to run when a knowledge of the repudiations is brought home to the cestui qui trust.</p> <p>t. Cancellation of Instruments — Additional Relief — Conveyance to Administrator. — An heir, who has conveyed his interest in the estate to the administrator and subsequently sues to set aside the deed for fraud and .asks for an accounting, cannot require an accounting until the conveyance is set aside.</p> <p>5. Limitation of Actions — Pleading in Avoidance of Defense.— Where defendant, in addition to traversing the allegations of the petition, pleads the statute of limitations and plaintiff joins issue thereon, the traverse of the plea of limitations is bad and interposes no real defense to the plea.</p> <p>6. Same — Demurrer Raising Defense — Statute of limitations as a defense cannot be raised by demurrer.</p> <p>7. Appeal — Harmless Error — Sustaining Demurrer. — Defendant pleaded stated of limitations, and, after plaintiff’s demurrer had been overruled, he traversed the affirmative allegations of the answer and* thereafter filed an amended petition to which defendant demurred on the ground of limitations. Pending the demurrer an answer was filed and demurrer thereto interposed, and, pending the demurrer, a reply was filed. Defendant withdrew his answer to the amended petition and renewed his demurrer to the amended petition, which demurrer was sustained. Held that, while the demurrer to the .amended petition should have been sustained, the reply to the plea of limitations was bad, and the court on the pleadings as a whole should have rendered the judgment which it did.</p>

CASE 17. — PROSECUTION AGAINST BEN. HUFFAKER FOR MURDER. Appeal from Lyon Circuit Court. Thomas P. Cook, Circuit Judge. Defendant convicted and appeals. As appointed counsel to defend a convict in the Eddyville Penitentiary, under sentence for life, charged with -the murder of a fellow convict in the penitentiary, I submit: 1.

<p>Assignments for Benefit of Creditors — Sale by Assignee — Order of Court — Jurisdiction.—Under Ky. Stats., 1903, sec. 75, providing that an assignor for creditors shall file his schedule for record in the county where the assignee qualifies, and the deed of assignment shall be recorded in the county clerk’s office of the county where the assignor resides, iand where the business in respect of the same is carried on, and in each county where a tract of land or a part thereof conveyed by the deed is situated, and section 87, providing that property shall be sold by the assignee as “the court” shall direct, and iany exceptions to a confirmation of the report of sale shall be heard by “the court,” the county court of the county where the assignee qualifies, and not where the business is carried on, has jurisdiction to order a sale of the assigned estate.</p>

<p>CASE 19 — ACTION BY FREDRICA R. MORATH’S EXECUTOR AGAINST FERDINAND W1EBERS ADMINISTRATOR AND OTHERS ON A POLICY OF LIFE INSURANCE.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (2d Div.).</p> <p>Samuel B. Kirby, Judge.</p> <p>Prom the judgment plaintiff and others appeal.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. The acceptance by a legatee of the benefits and provisions in a will in his favor -and which but for the will he would not have been entitled to, precludes ana estops him to make any claim inconsistent with the provisions of the will. (Warnock v. Davis, 14 Otto, 779; Clay v. Hart, 7 Dana, p. 6; Smart v. Easley, 5 J. J. Marshall, 215; Huhlein v. Huhlein, 87 Ky., 353; Story’s Equity Jurisprudence, section 1077; Lee v. Charlemagne, 124 N. Y., 370; VanShack v. Leonard, 164 111., 602; Jarman on Wills, section 714; Peck v. Peck, 101 Ky., 403; McQuery v. Gilliland, 89 Ky., 438.</p> <p>2. The policy of insurance made payable to the executors administrators or assigns of the person insured is the .absolute property of the insured, and may be sold or assigned by him during his life time. (Meadows v. Meadows, 13 Ky., Law Rep., 495.</p> <p>3. Where a person is the beneficiary in a policy on his own life, sells or assigns the same, and receives the purchase- price therefor, such .assignment will simply in law and in equity be treated as a security for 'the repayment to the assignee of the consideration paid by him therefor, with interest from the day of payment, and as a security for such sums as he may pay out in premiums to keep the policy alive during the life of the insured, and with interest on such payments from the date made.</p> <p>(Vol. 3, page 1030, Am. & Eng. Enc. of Law; Hermitage v. Miller, 76 Ala., 188; Jackson v. Anderson, 9 Ky. Law Rep., 165; Bayse v. Adams, 81 Ky., 368; Carnock v. Davis, 15 Wallace, 648; Lee v. Mutual Life, 26 Ky. Law Rep., 577; Baldwin v. Haydon, 24 Ky. Law Rep., 900; Brenham v. White, 16 Ky. Law Rep., 242; Downing v. Haefflin, 110 Pa. St., 109; Heuse v. Mutual Life, 47 Mo. Ap., 336; Schoenfelt v. Lauer, 75 Texas, 329; Cawthom v. Perry, 76 Texas, 383.)</p> <p>LEGAL PROPOSITIONS AND AUTHORITIES.</p> <p>1. One who takes out Insurance upon the life of another, cannot, in the absence of authority in the charter of the insurance company change the beneficiary; and has no power to devise the insurance money to another person having no insurable interest in the life of the insured. Such ia devise is void as against public policy, and does not even, when other property is devised, put the insured upon an election to forfeit the insurance money which, by the terms of the policy, is given to Ms administrator. (Act of 1870, now sec. 655 of Kentucky Statutes; sec. 2, article 1 of General Statutes; Ky. Masonic Mut. Life Ins. Co. v. Miller’s Admr., 13 Bush, 494; Weisert v. Muehl, 81 Ky., 336; Robinson v. Duvall, 79 Ky., 83; Bacon on Benefit Societies and Insurance sec. 420-423-304; Robertson v. Met. Life Ins Co., 88 N. Y., 541; 101 Pa. St. Ill: Holland v. Taylor, 111th Ind., 135; Joseph’s Admr. v. Lapp’s Admr., 25 Ky. L. R., 1875, citing section 1423 of Ky. Stats.; Lee v. Mut. Life Ins. Co. of N. Y., 26 Ky. Law Rep., filed Sept. 29, 1904; Bayse v. Adams, 81 Ky., 223; Cordell v. Woodward, 96th Ky., 645; Baird v. Sharp, 17 Ky. Law Rep., 1029; Barber’s Admr. v. Larue'o Assignee, 106 Ky., 546; N. Y. Life Ins. Co. v. Brown’s Admr., 33 Ky. Law Rep., 2070.)</p> <p>2. The insurer in such cases, cannot by devise to a person having no insurable interest in the life of the insured, put the insured upon an election to take other property devised to him, in lieu of the insurance money, which was, by the terms of the policy to go to his administrator.</p> <p>The doctrine of estoppel cannot be invoked in aid of a contract, or in an effort to imply a contract, which is against public policy; and the acceptance by the insured of a devise of other property does not give to the other devisees any right to compensation for the loss of insurance money which the insured had no legal right to devise; nor can the executor recover such compensation. (Dorr v. Stockdale, 19 Iowa, 273; Ferguson v. Brown, 1st Bradford N. Y., 15; Greenhood on Public Policy 5; Stone v. W|ood, 16 111., 182, Rice v. Rice, 23 Ky. Law Rep., 635; Barman on Wills, Yol. 1., par. 389; Gardiner v. Walner, 1st. Jacob & Walker, 22; Carey v. Asken, 1st Cox 242; Brown v. First Nat. Bank at Columbus, 24 L. R. A., 211; Hutchens v. Welding, 114 Ind.,,-80; Perkins v. Jones, 26th Ind.; Greenhood on Public Policy, pages 2 to' 6, note 3; Brown’s Legal Maxims, page 729, Par., 730; 7th Waits Actions and Defenses page 92.)</p> <p>3. An executor of a person who took ouit insurance for the benefit of the estate of another, and who paid the premiums on such insurance during her own life, and provided by will for the continued payment of such premiums during the life of the insured, should not be held'to have acquired by virtue of such testamentary provision any interest in' the policy of insurance, especially when the insurer attempts in the will to devise the insurance money to persons who had no insurable interest in the life of the insured; nor in such case should the executor be allowed to recover premiums paid under the directions of the will.</p> <p>hlven if so allowed to recover premiums.on an amended petition filed in the suit prosecuted to recover the proceeds of the policy the executor should not have been adjudged his general costs.</p> <p>4. A recovery in the name of an executor and trustee of an estate for the sum of .$186.52 funeral expenses of a dead devisee, already paid (to him the executor) by.another devisee, is erroneous, in the absence of allegation or proof showing the authority of the executor or trustee to sue for the funeral expense money, in behalf of the party so paying the same.</p>

<p>CASE 20 — ACTION BY MARY A. FOX AND OTHERS AGAINST A. B. CORNETT TO QUIET TITLE TO LAND.—</p> <p>Appeal from Harlan Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendant. Plaintiffs appeal.</p>

<p>CASE 21 — ACTION BY THOMAS MITCHELL AGAINST THE SOUTHERN RAILWAY COMPANY TO RECOVER A BALANCE DUE ON A CONTRACT.</p> <p>Appeal from Jefferson Circuit Court. C. P. Brandi (Second Division).</p> <p>Matt 0’Doi-ierty, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED,</p> <p>1. A contract will not be construed to require one person to pay another’s damages resulting from the latter’s own negligence unless the purpose of the parties to make such a contract is so unjnistiakably plain that this construction cannot be avoided. (Perkins v. New York Central R. Co., 24 N. Yf 206; Mynard v. Syracuse, &c. R. Co., 71 N. -Y., 183; New Jersey Steam Navigation Co. v. Merchants Bank, 6 How., 344.)</p> <p>2. “Punctuation is the most fallible standard by which to interpret a writing.” (Ewing v. Burnett, 11 Peters, 41; Succession of Allen, 48 La. Ann., 1036, (55 Am. St Rops., 295); 17 Am. & Eng. Ency. of Law (2 Ed.) 20.)</p> <p>3. Independent Contractors. (Robinson v. Webb, 11 Bush, 464.)</p> <p>POINTS AND AUTHORITIES.</p> <p>Kansas City, Memphis & Birmingham Ry. v. Southern Railway News Co., 151 Mo., 373; (S. C., 52 S. W., 205); Casualty Insurance Company case, 82 Md., 575, 577; (S. C., 34 Atl., 778); Trenton R. R. v. Guarantor’s Liability Co., 60 N. J. Law, 246; (S. C., 37 Atl., 609); Baltimore & Ohio Southwestern R. R. v. Voigt, 176 U. S., 498.</p>

<p>CASE 22. — ACTION BY WILLIAM B. PHYSIOC AGAINST THE SOUTH COVINGTON & CINCINNATI STREET RY. CO., FOR DAMAGES FOR PERSONAL INJURY.—</p> <p>Appeal from Campbell Circuit Court.</p> <p>Albert S. Berry, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>PROPOSITIONS ADVANCED AND AUTHORITIES CITED.</p> <p>1. The court erred, in overruling demurrer to petition.</p> <p>(a) Things complained of not alleged to have been unknown t'o appellee.</p> <p>(b) Curve and lurch not alleged to have been unnecessary, avoidable or unusual. (L. & N. R. R. Co- v. Morris, 23 R., 448.)</p> <p>2. Reply is insufficient. Does not deny negligence on appellee’s .part, contains only legal conclusions, and negation of a negative.</p> <p>3. Error in overruling motion for judgment on pleading.</p> <p>4. Error in overruling motion for peremptory instruction.</p> <p>(a) Appellant not negligent.</p> <p>(b) Appellee guilty of contributory negligence.</p> <p>5. Verdict excessive and contrary to evidence.</p> <p>6. Error in overruling motion for judgment non obstante veredicto.</p> <p>Y. Instructions erroneous.</p> <p>(a) Confusing and misleading.</p> <p>(b) No. 1 not complete and refers to petition.</p> <p>(c) Converse of No. 1 not given.</p> <p>(d) No. 2 calls special attention to certain fact, giving them undue prominence. This is error. See: (L. & N. R. R. Co. v. Banks, 17 R., 1065; Moran v. Higgins, 19 R., 456; Jones v. Jones, 102 Ky., 450; Taulbee v. Moore, 21 R., 378; Times Dist’g Co. v. Zehnder, 21 R., 753; Traveler’s Ins. Co. v. Clarke, 22, R., 902; Bowling Green Stone Co. v. Capsha, 23 R., 945.)</p> <p>(e) By No. 3, it is intimated that jury may consider things not mentioned in petition or instruction and gives undue prominence to certain facts.</p> <p>(f) “Negligent,” “negligence,” "contributory negligence,” not defined, etc. Error — See authorities next below.</p> <p>(g) Care not limited to “that ordinarily exercised by ordinarily prudent persons.” Error — See: (Sullivan’s Adm’r v. Louisville Bridge Co., 9 Bush, 81; Richmond & Lexington Turnpike Co. v. Foley, 5 Ky. Law Rep., 425; Bogenschutz v. Smith, 84 Ky., 330 to 343; Louisville Ry. Co. v. Park, 96 Ky., 580; Louisvple Railway Co. v. Weams, 80 Ky., 420; Beaver, &c., v. Bowen, 26 Ky. Law Rep., 291 to 293; Davis v. Paducah Ry. & Light Co., 24 Ky. Law Rep., 135 to 137; Houghton v. Louisville Ry. Co., 26 Ky. Law Rep., 393; South Cov. & Cin. St. Ry. Co. v. Riegler’s adm’r, 26 Ky. Law Rep., 666 to 669; Ky. Central R. R. Co. v. Dills, 4 Bush, 593 to 596.)</p> <p>(h) Erroneous instruction not cured by instruction “A,” which relates only to contributory negligence.</p> <p>1. Appellee was accepted as a passenger and his fare had been collected while standing on the platform by reason of the car being overcrowded, and appellant had its election to accept him as a passenger in that position, and, having so accepted him it was its duty to use care in the operation of the car commensurate with the situation and with' its knowledge of appellees position.</p> <p>2. The negligence of appellee consisted in running its car over a sharp curve at a rapid and unreduced speed and in having its curves so constructed that the violence of a sudden lurch of the car at that point was unusual.</p>

<p>CASE 23. — PROSECUTION BY THE COMMONWEALTH AGAINST THE ADAMS EXPRESS COMPANY FOR A VIOLATION OF THE PROHIBITION LAW</p> <p>Appeal frora Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>STATEMENT OF POINTS AND AUTHORITIES.</p> <p>I. The appellant did not know that the liquor had not been ordered. The shipments were therefore legitimate transactions of interstate commerce so far as it was concerned. (Ellington v. State, 86 S. W. Rep'., 330 — Tex. Crim.)</p> <p>2. Being interstate shipments they were not subject to the law of Kentucky, and, as applied to them, section 2557b, subsection 4, Kentucky Statutes, is void. (American Express Company v. Iowa, 196 U. S., 133, 144; Adams Express Company v. Iowa, 196 U. S., 146; Rhodes v Iowa, 170 U. S., 412, 420.)</p> <p>3. Appellant had no right to ask the shipper if the liquor had been ordered. (Crouch v. L. & N. W. Ry. Co., 14 C. B., 255, 291; the Nitro-glycerine case, 15 'Wlall., 524, 535; Hutchinson on Carriers, section 439.)</p> <p>1. The statute is clearly unconstitutional because it forbids all C. O. D. shipments of liquor, whether ordered by the consignee or not. The courts cannot make a new law or confine the operation of this law to cases within the constitutional power of the legislature, hut must determine whether the statute as passed is valid. (United States v. Reese, 92 U. S., 214, 221; Trade Mark Cases, 100 U. S., 82, 98; James v. Bowman, 190 U. S., 127, 142; Wynehamer v. People, 13 N. Y., 378.)</p> <p>2. Transportation for others as an independent business is commerce. (Hanley v. Kansas City Southern Railway, 187 U. S., 617, 619.; Lottery Case, 188 U. S., 321, 352.)</p> <p>3. Whisky is an article of commerce. (Leisy v. Hardin, 135 U. S., 100, 110.)</p> <p>4. As applied to the business of an interstate carrier the statute is a regulation thereof repugnant to the Constitution of the United States. (American Express Company v. Iowa, 198 U. S., 133; Adams Express Company v. Iowa, 196 U. S., 147; Rhodes v. Iowa, 170 U. .S., 412; Bowman v. Chicago & Northwestern Railway Company, 125 U. S., 465; Central of Georgia Railway Company v. Murphey, 196 U. S., 194; Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.. S., 557.)</p> <p>5. The principles of the common law are operative upon all interstate commerce transactions except so far as they are modified by congressional enactment. (Western Union Telegraph Company v. Call Publishing Company, 181 U. S., 92, 102; Hall v. DeCuir, 95 U. S., 485, 490; Brennan v. Titusville, 153 U. S., 289, 302; Central of Georgia Railway Co. v. Murphey, 196 U. S., 194.)</p> <p>6. If the statute is limited to cases in which the carrier knows that the liquor has not been ordered by the consignee, the conviction must nevertheless be reversed because there was no averment of that fact and no proof of guilty knowledge on the part of the defendant. (Ellington v. State, 86 S. W., 330; Vowe-lls v. Commonwealth, 83 Ky., 193, 195; Abbott v. Commonwealth, 20 Ky. Law Rep., 727; 47 S. W., 576; Tantum v. Commonwealth. 22 Ky. Law Rep., 927; 59 S. W., 32; Brown v. Commonwealth, 24 Ky. Law Rep., 727; 69 S. W., 1098.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Presumptions of Law. — Every one is presumed to know the law; ignorance of the law excuses no one. The appellant is presumed to know that on the arrival of these packages at their final destination, they ceased, under the operation of the Wilson Act, to be protected as articles of interstate commerce; and that they were thereafter under the jurisdiction of the laws of this State and subject to its police regulation, and it matters not whether the same were ordered or not ordered. As soon as said packages arrived they became subject to the operation of the local option laws, and the delivery thereafter, and the acceptance of the C. O. D. charges by said company was a violation of said laws. (Taylor on Evidence, 6th edition, page 84; Best on Evidence, 1st Am. edition, section 306; Wharton on Evidence, 3d edition, sections . 1226, &c.)</p> <p>2. State Laws become Operative on the Arrival of said Packages. — A common carrier engaged in carrying such packages, as those in question in this case, from one State into another, cannot, after said packages have arrived at their final destination, stay or prevent such packages becoming a part of the property of the State and subject to the jurisdiction of its law. After such arrival the relation of the carrier to such packages is that of a warehouseman. (Schouler’s Bailments and Carriers, 3d edition, sections 390, 500, 510 and 516; Wald & Co. v. L., E. & St. L. R. R. Co., 92 Ky., 645; Weed v. Barney, 45 N. Y., 344 (6 Am. Rep., 96); Gilson v. American Mer. Union Express Co., 1 I-Iun., 389; Marshall v. American Express Co., 7 Wis. (73 Am. Dec., 381); Pacific Express Co. v. Wallace, 60 Ark., 381.-</p> <p>3. Burden of Proof. — When the Commonwealth had shown the delivery of the packages and the acceptance of the C. O. D. charges thereon, and that the local option law was then in force and effect in said county and city, it had^made a prima facie case; and the burden of proof was then on the appellant to show that the delivery of said packages and the acceptance of the C. O. D. charges by the carrier, were a part of an interstate shipment- of merchandise, and therefore exempt from the jurisdiction and operation of the police regulations of the Commonwealth. (State v. Robinson, 49 Me., 287; Commonwealth v. Zelt, 138 Pa. St., 628; State v. Miller, 53 Iowa, 87; Rice on Evidence, section 260, page 425; Orme v. Commonwealth, 21 Ky. Law Rep., 1412.)</p> <p>4. Judgments. — These causes having been submitted to the trial court without the intervention of a jury, the judgments, herein are, under the practice of this State, the verdicts of properly instructed juries. (Ellison v. Commonwealth, 6 Ky. Law Rep., 306; City of Mt Sterling v. Holly, 22 Ky. Law Rep., 358; Civil Code, section 332.)</p>

<p>Trade-Mark — Assignment—Infringement—Fraudulent Use — Remedy — Complaint—Election Between Counts—</p> <p>1. In an action for infringement of a trade-mark in the sale of whisky, it was proper to require plaintiff to elect between his cause for injunction and accounting, and Ms cause for damages based on fraud.</p> <p>2. Where plaintiff corporation purchased a distillery from the assignee of an insolvent partnership, and continued to use the brand and trade-mark of such firm without objections by the assignee'or creditors of the firm, it must be presumed, in an action against a third person for the infringement of the trade-mark, that the debts of the partners were settled, and that the trade-mark reverted to the partners as their property, and that they had the right to use it in the name of the corporation which they subsequently formed.</p> <p>3. The application for registry of plaintiff’s trade-mark stated that it “consists of the arbitrary word symbol ‘E. H. Taylor, Jr., & Sons,’ being a script fac simile of the signature of our name by the senior member thereof. This has generally been arranged x x x in black script, on a horizontal line within •a circular border embracing the words ‘Old Taylor,’ but these are nonessential,” etc. Held, that a trade-mark used by the defendant, having in it the words “Old Kentucky Taylor,” is not an infringement of the plaintiff’s trade-mark.</p> <p>4. In connection with his trade-mark in the sale of straight whisky plaintiff used the words “Old Taylor,” though the essential feature of the registered trade-mark was the script fac simile signature “E. H. Taylor, Jr., & Sons.” Defendant, in advertising his blended whisky, used the words “Kentucky Taylor” and “Old Kentucky Taylor.” Held that, though there is not such an infringement <2f a -trade-mark as entitles plaintiff to an injunction and an accounting, defendant is guilty of a fraudulent simulation of plaintiff’s whisky, and plaintiff is entitled to an action for damages for the fraud.</p>

<p>Intoxicating Liquors — Local Option- — C. O. D. Shipments— Liability of Carrier — Defense—-Interstate Commerce. — An express company which knowingly carries a C. O. D. shipment of liquor from a foreign state into local option territory to a consignee who informs it that he has not ordered the same but will accept it if it is held for him until he can procure the money to defray the charges, becomes, by holding the liquor a week pursuant to the arrangement with the consignee, a mere bailee or warehouseman of the liquor, and cannot defend a prosecution under Ky. Stats., 1903, section 2557, sub-section 4, declaring sales of liquor shipped C. O. D. into local option territory unlawful, and making the carrier selling or delivering the goods liable jointly with the vender, on the ground that the shipment is interstate commerce, but is guilty of a violation of the statute, as the actual seller of the liquor.</p>

<p>CASE 26. — ACTION BY GEORGE SCHUSTER & COMPANY AND OTHERS AGAINST THE CITY OF LOUISVILLE AND OTHERS TO RESTRAIN THE ENFORCEMENT OF AN ORDINANCE.</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for defendants. Plaintiffs appeal.</p> <p>POINTS MADE AND AUTHORITIES CITED.</p> <p>1. The ordinance is unconstitutional.</p> <p>It distinguishes between classes of personal property, i. e., per' sonal property employed in business or manufacture or by a trust company or bank and that not so employed.</p> <p>It is against the provisions of the Constitution and the historic policy of Kentucky, and there is no warrant therefor in the amendment to Section 181 of the Constitution. (Constitution of Kentucky, section 181, as amended. Acts 1902, page 100; Act March 18, 1904, page 99, et. seq.; Constitution of Kentucky, section 171; Lexington, &c., v. McQuillan, 9 Dana, 518; Mcholasville v. Rarick, 102 Ky., 353; Latonia v. Hopkins, 104 Ky., 419; Broadway Baptist Church v. McAtee, 8 Bush, 508; Levy v. City of Louisville, 97 Ky., 403.)</p> <p>2. It taxes unequally property employed in business or manufacture or by a bank or trust company, there being a variation in the rate according to the amount of business done, but the rate is not a uniform percentage of the sales. The tax, by the terms of'the constitutional amendment, remains a, tax on property and therefore within the provision of Section 171 of the Consti tution requiring uniformity.</p> <p>(a) The classification made by the ordinance is unreasonable, not being founded on natural facts, and is therefore void. (Constitution of Kentucky, section 181 as amended; Constitution of Kentucky, section 171; Levy v. City of Louisville, 97 Ky., 400; Sutton’s Heirs v. Louisville, 5 Dana, 31; Lexington v. McQuillian’s Heirs, 9 Dana, 513; Bureau v. Ch. R. R. Co., 44 111., 229; Parish E. Felecia v. Gurth, 26 La. An., 140; State v. Endona, 23 La. An., 663; Marsh v. Clark Co., 42 Wis., 503; Johnston v. Macon, 42 Ga., 645; Sims v. Parish Jackson, 22 La. Ann., 440; State v. Switzler, 143 Mo., 287; State, etc., v. Ferris, 53 Ohio St. Rep. I, 30 L. R. A., 219; Cummins v. Mer. Natl’ Bank, 101 U. S., 153; State v. Gorman, 2 L. R. A., 701, 40 Minn.,- 232.-</p> <p>(b) A discrimination to be sustained must be reasonable and founded on natural facts. (Tennessee v. Alston, 97 Tenn., 674, 28 L. R. A., 178; Kneisel v. Cottrel, 196 Pa. St., 614, 50 L. R. A., S7; State v. Farmers’ Irrig. Co., 59 Neb., 4, SO N. W., 53; McHenry v. Alford, 168 TI. S., 663; Nashville v. Taylor, 86 Fed., 168; Wyatt v. Ashbrook, 154 Mo., 375, 48 L. R. A., 265; Minott v. Winthrop, 26 L. R. A., 259, 162 Mass., 113; Judson on Taxation, 564.)</p> <p>(c) Even if a “'license” and not a tax, there must be s,ome regard for uniformity. (Cooley Taxation, 2d Ed., 260; Judson on Taxation, 599, 600; Council v. Renfro (Ky.), 58 S. W. Rep., 795; Century Dictionary for meaning of “equality” and “uniformity.”)</p> <p>Oases distinguished: (Magoun v. 111. T. & S. Bk. Co., 170 TT. S., 293; Clark v. Titusville, 184 U. S., 330; Judson on Taxation, 588; Commonwealth v. Clark, 195 Pa. St. Rep., 637.)</p> <p>3. The ordinance fails to specify for what purpose or purposes the tax is levied or imposed, and how the revenue therefrom shall he expended. This is in violation of the constitutional requirement. (Constitution of Ky., section 180; Act March. 18, 1904; City of Somerset v. Somerset Bank Co., 22 Ky. Law Rep., 1132; Cahill v. Perine, 20 Ky. Law Rep., 1454; Pulaski v. Watson, 21 Ky. Law Rep., 61; City of Louisville v. Eutton, 26 Ky. Law Rep., 607; Kentucky Statutes, 2981; Spring Valley Coal Co. v. People, 157 111., 543.)</p> <p>4. For a' period the taxation is double. (Cooley on Taxation, 2nd Ed., page 394.)</p> <p>5. Besides, - the ordinance cannot be administered, as there is no way of applying to the tax collected thereunder the provisions and requirements of 2969, Kentucky Statutes, relating to the school tax.</p> <p>SYNOPSIS.</p> <p>1. Thie powers vested in the sinking fund are not violative of the personal liberty of the tax payer. (Cooley on Taxation, 3rd Ed., page 624; First National Bank v. Hughes, 106 U. S., 523; S. C. 27, L. Ed., 268; State v. Wood, 110 Ind., 82; 10 N. E. 639; Co-op. Bldg, and Loan Ass’n v. State, 156 Ind., 463; 60 N.. E., 146; Smith v. City of Louisville, 9 Ky. Law Rep., 779; Ky. Stats., secs. 2984-A, Sub-sec. 7; ib., Sub-sec. 12; Ky. Stats., secs. 4090, 4047.)</p> <p>2. The exemption from ad valorem assessment of property employed in business paying a license tax is warranted by section 181 of the Constitution as Amended. (Bamberger, Bloom & Co. v. City of Louisville, 82 Ky., 337; Levi v. City of Louisville, 97 Ky., 394; Cons, of Ky., secs. 172 and 181 prior to amendment; Cons, of Ky. sec. 181 as amended.)</p> <p>3. The ordinance distinctly specifies the purpose of the tax. (City of Somerset v. Somerset Banking Co., 109 Ky., 549; 22 Ky. Law Rep., 1132; Birch v. Owensboro, 18 Ky. Law Rep., 284; 36 S. W., 12; Cahill v. Perine, 105, Ky., 531; Pulaski County v. Watson, 106. Ky., 500; Westinghausen v. People, 44 Mich., 265;</p> <p>6.N. W„, 641; People v. Home Insurance Co., 92 N. Y., 328; People v. Supervisors, 17 N. Y., 235; Ky. Stats., sec. 2983; Spring Valley Coal Co. v. People, 157 Ills., 543; 41 N. E., 874; Levi v. City of Louisville, 97 Ky., 394.)</p> <p>4. The law does not require that the assessment and collection of the license taxes shall be concurrent in time with the assessment and collection of ad valorem taxes. (Act of March 18, 194, section 4; L. & N. R. R. Co. v. City of Louisville, 16 Ky. Law Rep., 796.)</p> <p>5. The ordinance will not result in double taxation.</p> <p>6. The ordinance operates equally and uniformly upon all merchants within the same class. (Smith v. City of Louisville, 9 Ky. Law Rep., 779; Holzhauer v. Newport, 94 Ky., 407; Strater Bros. Tobacco Co. v. Commonwealth, 25 Ky. Law Rép., 1717; 78 S. W., 871; Hall v. Commonwealth, 101 Ky., 382; Magoun v. Illinois Trust & Savings Bank, 107 U. S., 283; Kentucky Railroad Tax Cases, 115 U. S., 321; Clark v. Titusville, 184 U. S., 329; State v. Carter, 129 N. C., 560, 40 S. E., 11; City of Sacramento v. Crocker, 16 Calif., 119; In Re Watson (S. Dak.), 97 N. W., 463; Williamsport v. Wenner, 172 Pa., 173, 33 Atl., 544; San Luis Obispo County v. Greenburg, 120 Cal., 300, 52 Pac., 797; Cobb v. Durham County, 122 N. C., 307; 30 S. E., 338; Burlington v. Putnam Ins. Co., 31 Iowa, 102; State v. Liverpool Insurance Company, 40 La. Ann. — , 4 Sou. Rep., 504; Cons, of Penn., sec. 1, Art. 9; Cons, of Kentucky, sec. 171; Knisely v. Cotterel, 196 Pa. 614; 40 Atl., 861, 50 L. R. A., 86.)</p>

<p>CASE 27. — MOTION BY M. S. TYLER TO HAVE HIS FEE AS ATTORNEY ADJUDGED A LIEN ON THE FUNDS REALIZED FROM A JUDGMENT HELD BY C. AND C. B. SLEMP.</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Motion overruled and Tyler appeals.</p>

<p>1. Judicial Sales — Vacating —Irregularities in Decree. — Defendant’s land was sold under ia judgment obtained by plaintiffs, who became the purchasers, and a deed was made to them. Subsequently an order was made for the purpose of supplying an omission in the record in failing to have the report of sale of the commissioner confirmed, and this order confirmed the sale and directed the commissioner to prepare another deed. Later another order was made for the purpose of correcting an error in the description of the land in the second deed, and the commissioner was directed to prepare a deed with correct description. Both orders were made without notice to defendants. Held, the substantial rights of defendants were not prejudiced or affected by the orders made.</p> <p>2. Same — Confirmation.—Where the record does not show that the report of sale made by a commissioner was confirmed, an order of the court directing that a deed be made is, in effect, ¡ai confirmation of the sale.</p> <p>3. Appeal — Decision Reviewable — Relating to Judicial Sale.— An order confirming a sale of land and directing that a deed be made is a final and appealable order.</p> <p>KENTUCKY REPORTS. [Yol. 124. Forrester, &c. v. Howard, &c.</p> <p>4. Judgment — Vacation—Right to Relief. — Where an order is final and appealable it can be vacated or modified by an appeal to this court, or by the lower court for any of the causes specified in Civ. Code Prac. sec. 518, but in no other way.</p> <p>•5. Judicial Sales — 'Exceptions to Report — Existence of Other Remedy. — Where an order confirming a sale of land and directing that a deed be made was not appealed from nor vacated or modified under Civ. Code Prac. sec. 518, which provides the grounds on which a judgment, after expiration of the term, may be vacated or modified, an order sustaining exceptions to the report of sale was a nullity, since the court had lost control of the case.</p> <p>6. Same — Conveyance to Purchaser — Presumption.—It will be presumed that thie description in a. deed made by a commissioner in pursuance of an order of the court followed the description of the land contained in the pleadings and judgment under which the land was sold.</p> <p>7. Same — Correction of Errors. — If, by a mistake, or neglect, the description of land in a deed made by a commissioner in pursuance of an order of the court does not conform to the description of the land contained in the judgment under which the land was sold, and report of sale, the court at any time can permit its commissioner to correct the deed or make a new deed conforming to the judgment and report.</p> <p>8. Appeal — Presentation of Error — Motion for New Trial— Necessity. — Where the record discloses all the facts necessary to enable the court to consider the questions of law presented, a motion for a new trial is not necessary.</p> <p>9. Attorney and Client — Lien—Property in Litigation. — An attorney who defends >an action in which it is sought to recover property is not entitled to a lien upon the property he succeeds in saving for his fees.</p> <p>10. Judgment — Vacating—Waiver of Right. — Although so much of a judgment is erroneous as awards an attorney a lien on land for his fees, the objection comes too late when first made on a motion to vacate an order confirming the sale under the judgment directing a deed to be made.</p>

<p>CASE 29. — ACTION BY THE ADMINISTRATOR OP LEWIS WAHL AGAINST JACOB EBERHARDT. AND OTHERS IN WHICH ELLA EBERHARDT THE WIPE OP JACOB EBERHARDT INTERVENED.—</p> <p>Appeal from Daviess Circuit' Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant and intervener appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The transfer of a secured debt carries with it the securities by which same is secured.</p> <p>2. Since the adoption of the act of March 15th, 1894, known as the Weissinger Act, a married woman has full power and authority to pledge or place in lien her property, both real and personal, to answer for the debt, default or misdoing of another, her husband included, by setting the same apart for that purpose, as provided in said act. (Kentucky Statutes, 2127; Hall v. Hall, 25th Law Reporter, 553; New York Life Insurance Company v. Miller, 22 Law Rep., 230.)</p> <p>3. Since the act of March 15th, 1894, it is competent for a wife to contract with her husband, and she may take from him an obligation enforcible at law or in equity. (Price v. Price, 25th -Law Reporter, 1803; Parker, Jones & Steele v. Parker, 25th Law Rep., 2193.)</p> <p>4. The act of March 15th, 1894, abolished the doctrine that in a contest between a wife and her husband’s creditors, the personal estate of the wife was presumed to belong to the husband in the absence of any showing on the part of the wife that it was her separate .estate. (Kentucky Statutes, sections 2127 and 2128; Clark, &c. v. Meyers, 24th Law Reporter, 380.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. We contend, that appellant, Mrs. Eberhardt has no lien on the 10 shares of the stock purchased by her husband and now in her hands because, there has been no evidence introduced nor is it alleged in her answer that she had any separate estate, or that she has any means, or performs any labor by which she can make money to pay for property.</p> <p>The evidence does show that Jacob Eberhardt’s family consists of only himself and wife, and that he now receives, and has been receiving, for several years, about $55.00 per month. The following cases hold that the burden of showing that money paid for property, by a wife belongs to her, as her separate property, is on the wife, otherwise it will be presumed, that it belongs to the husband. (Treadway v. Turner, 10 Ky. Law Rep., 950; Robertson v. Robertson, 13 Ky. Law Rep., 505; Ruggles v. Robinson & Co., 22 Law Rep., 437; Wahl v. Murphy, 10 Ky. Law Rep., 389; Edelmuth v. W. Bryant, 21 Ky. Law Rep., 929; Robinson v. Woolstain, 22 Rep. 883; Winginton v. Mhlet, 88 S., W., 1082; Clark v. Mercer, 24 Ky. Law Rep., 382.)</p> <p>We further contend that Mrs. Eberhardt has no lien on the 10 shares belonging to her husband, by reason of her having deposited her shares as collateral for the second note, because she is not liable for the debt of her husband except where she follows the provisions of the Kentucky Statute contained in section 2127. (Lyon v. Lyon, 72 S. W., 1102, 24 Ky. Law Rep., 2100; Planters Bank and Trust Co. v. Major, 76 S. W., Rep. p. 331; S. W. Travis Co. v. Wbod, 20 Ky. Law Rep., page 1819; Deposit Bank of Carlisle v. Stitt, Ky. Law Rep., page 671; Postell v. Cramhaugh, 23 Ky. Law Rep., page 2173.)</p> <p>3. We further contend that even if Mr.s Eberhardt had paid' her own money on her husband’s debt, and taken his stock as collateral, the stock' is still subject to his debts, because she has no enforceable claim against her husband, and could not sue him for the payment of the debt she claims against him even to enforce her alleged lien. (Lehay v. Lebay, 97. Ky., page 59; Kalfus v. Kalfus, 92 Ky., 542; Brooks Walerfield v. Prisbie, 18 Rep., page 555.)</p>

<p>CASE 30. — ACTION BY SAMUELÍ FRANCIS AGAINST H. C. LILLY’S EXECUTRIX AND OTHERS SETTING UP A claim: TO CERTAIN LAND AND TO VACATE A JUDGMENT UNDER WHICH LILLY CLAIMED TO HAVE PURCHASED THE LAND.</p> <p>Appeal from Letcher Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for plaintiff, and from an order granting a motion to vacate the judgment and award a new trial the plaintiff appeals.</p>

<p>1. Bankrupts — Salary of City Official — Fraudulent Assignment-Delaying Creditors. — Under the bankrupt law an assignment by a city official of his salary within four months prior to filing his petition in bankruptcy with intent to hinder or delay his creditors is fraudulent, and in order to protect purchasers three things must concur: (1) Their own good faith, (2) a consideration passing at the time, and (3) it must be a fair equivalent of the thing purchased.</p> <p>2. Same. — An assignment of his salary by a city official to one who did not pay or .agree to pay a consideration therefor, made within four months prior to such assignor’s filing his petition in bankruptcy, is void as to the creditors of the assignor, and such salary remains the assets of the bankrupt and passes to his trustee unless exempt to the bankrupt under the laws of this State.</p> <p>3. Attachment of Salary. — The salary of a city official may be * attached for his debts.</p> <p>4. Prior Adjudication — Absence of Collusion — Conclusiveness of Judgment. — Where the liability of a debtor’s salary ito the payment of his debts has been adjudicated in a court of competent jurisdiction which was not collusive, the subsequent bankruptcy of the debtor and. appointment of his trustee cannot open that question for litigation in the absence of an allegation of collusion in the parties in obtaining the judgment.</p>

<p>CASE 32. — ACTION BY A. W. JOHNSON AGAINST MARY E. MIVELAZ TO . ENFORCE A MECHANIC’S LIEN FOR BUILDING A CEMENT SIDEWALK.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court erred in sustaining the demurrer to the third paragraph of appellant’s answer, which showed that appellee did not intend to claim, a lien upon her property, and authorized Barnes, the original contractor, to represent to .appellant, the owner of the property, that no liens were, or could be, claimed upon her property, which representation was made to appellant and relied upon by her in making her final settlement with Barnes. (Grainger & Co. v. Patterson, 25 Ky. Law Rep., 2387; Niall v. Alford, 105 Ky., 664; Vrooman v. Turner, 69 N. Y., 280; Herman on Estoppel, pages 1047, 1055, 1069, 1075, 897; Phillips on Mechanic’s Liens, page 966.)</p> <p>2. The court erred in sustaining the demurrer to the second paragraph of the answer of appellant, which showed that the description. of the lot in the statement of lien filed by appellee did not include any portion of the lot upon which appellee worked. The work done by said lappellee being the construction of a pavement, which lay entirely outside of the description given by him in his statement of lien. (Amer. & Eng. Enc. of Law, vol. 20, pp. 418, 421; Phillips on Mechanic’s Liens, sections 378, 390; Holmes v. Hutchins, 38 Neb., 601; Bell v. Bosche, 41 Neb., 853; McDonald v. Lindall, 3 Raleigh, Penn., Muto v. Smith, 175 Mass., 175; Lemly v. LaGrange Iron and Steel Co., 65 Mo., 645; Williamette Steam and Lbr. Co. v. Kremer, 25 Pac. (Cal.) 1226; Barnett’s Executrix v. Murray, 62 Mo., 500; Poster v. Cox, 123 Mass., 45; Cowie v. Ahrenstedt, 1 W-ash. State, 416; Whittier, &c., v. Stetson, &c., 33 Pac., 393; Howell v. Zerbee, 26 Ind., 214; City v. Irwin, 46 Ind., 438; Maynard v. Bast, 13 Ind. App., 432: Wright v. Beardsley, 69 Mo., 548; Kellogg v. Littell, &c., 1 Wash. State, 407; Lindley v. Croos, 31 Ind., 109; Runey v. Rea, 7 Oreg., 130.)</p> <p>CASES DISTINGUISHED.</p> <p>Cleverley v. Moseley, 148 Mass., 284; Kennedy v. House, 41 Pa. State, 40; Williamette S. M. Co., 94 Cal., 208.</p> <p>3. The statement of mechanic’s lien filed, by; appellee is fatally defective and insufficient to support his claim of lien, by reason of the fact that it states the name of the owner of the property to be Mary “Mülvin” instead of Mary Mivelaz, the correct name: Ky. Stats., sec. 2468; Am. & Eng. Enc. of Daw, vol. 20, page 384; Phillips on Mechanic’s Liens, sec. 345; Jones on Hens, sec. 1397; McElwee v. Sandford, 53 How. Pr., 89; Mayes v. Ruffner, 8 W. Va., 384; Waters v. Johnson, 96 Northwestern (Mich.) 504; Sprague Inv. Co. v. Mouat Libr. & Inv. Co., 60 Pac. (Colo.), 179; Sawyer-Goodman Co. v. Niagle, 110 Ills., App., 178; Russell v. Hayner 130 Federal; Am. & Eng. En'c. of Law, vol. 20, p. 384; Phillips on Mechanic’s Liens, sec. 120; Newport-Dayton Lbr. Co. v. Lichdenfeldt, 24 Ky. Law Rep., 1969.)</p> <p>CASES DISTINGUISHED.</p> <p>Santa Cruz Rock Pavement Co. v. Lyon, 65 Pac. (Cal.), 59; McPhee v. Litchfield, 145 Mass., 565; DeKlyn v. Gould, 165 N. Y., 288.</p> <p>4. The evidence shows that the work done by appellee was substantially finished more than six months before the filing of his statement, and that the only work done within said period was repairing damage which had occurred to the work during the winter.- No lien can therefore be claimed for the original work, nor can it be claimed for the repairs, because they were not done under express contract. (Phillips on Mechanic’s Liens, sections 18, 322, 324, 327; Hardin v. Marble, 13 Bush, 358; Am. & Eng. Enc. of Law, vol. 20, pp. 398, 400; Pay v. Muhlker, 1 Misc., N. Y., 321; Noya Mfg. Co. v. Flouring Mills Co., 110 Mich,, 161; Frankovitz v. Smith, 34 Maine, 403; Schulenberg v. Vrooman, 7 Mo. App., 133; Scott v. Cook, 8 Mo. App., 193; 134 Pa. State, 558; M.cKel'vey v. Jarvis, 87 Pa. State, 414; King v Ship Building Co., 50 Ohio State, 320; Hartle v. Richardson, 91 Maine, 424; Baker v. Fessenden, 71 Me., 292; Congden V. Kendall, 53 Neb., 387; Avery v. Butler, 30 Ore., 287; Berry v. Turner, 45 Wise., 105; Sanford v. Frost, 41 Conn., 617; Dayton v. Minneapolis R. & I. Co., 63 Minn., 48; Dunn v. McKee, 37 Tenn., 657.)</p> <p>Upon the proposition that a sub-contractor is not allowed a mechanic’s lien for work done under an implied contract. (Ky. Stats., sec. 2463; Rudd v. Littell, 20 Ky. Law Rep., 158; Phillips on Mechanic’s Liens, sec. 120.)</p> <p>5. The court erred in refusing to allow appellant credit on the claim of appellee by the amount of credits due to Barnes, the original contractor. (Ky. Stats., sec. 2468.)</p> <p>1. The plea of estoppel relied on by appellant is wholly insufficient. The fact that appellee accepted from Barnes a note for his labor did not relieve appellant from liability to appellee for his work or in any way affect his lien therefor.</p> <p>2. The real defense is the mistake in the name and description made in the statement filed in the clerk’s office. These mistakes were referred to and corrected in the petition and judgment, as the authorities hold are necessary.</p> <p>3. Extraneous evidence may be introduced to correct a statement, and it is held that if no injury is done to a third party the inaccuracies of the statement are immaterial, and a statement which would not be good as to a third party is good as against the owner of the property.</p> <p>4. Technicality ought not to be exercised against a mechanic’s lien, and all mistakes that can, with reason be corrected, should be done in the interest of justice, in a court of equity.</p> <p>5. The statute places the owner of property on which work is done on notice, iand payments made to the contractor are at peril as to the sub-contractor.</p> <p>AUTHORITIES CITED.</p> <p>Williamette S. M. Co. v. Kremer, 94 Cal., 208; Cleverly v. Moseley, 134 Mass., 284; Kennedy v. House, 41 Pa., 40; N. W. Pavement Co. v. Norwegian Seminary, 40 Minn., 450; Culmer v. Clift, 14 Utah, 286; Smith v. Johnson, 2 MacArthur, D. C., 481: Poclock v. Morrison, 76 Mass., 83; Am. & Eng. Ency. of Law, vol. 20, p. 421; McPhee v. Littlefield, 145 Mass., 566; Corbett v. Chambers, 41 Pac., 875; Santa Cruz Pav. Co. v. Lyons, 65 Pa., 331; Kelly v. Laws, 109 Mass., 396; Hodges & Campbell v. Avidson, 23 Ky. Law Rep., 2078; Hightower v. Bailey & Kevner, 22 Ky. Law Rep., 88; Bell v. Bosche, 41 Neb., 855.</p>

<p>CASE 33. — PROCEEDINGS BY J. E. BLADES AND OTHERS TO ENJOIN THE CITY OF FALMOUTH FROM COLLECTING THE TAXES FOR 1905.</p> <p>Appeal from Pendleton Cirenit Court.</p> <p>Lewis P. Fryer, Circuit Judge.</p> <p>Injunction refused and plaintiff appeals.</p> <p>We base our claim upon the following propositions, to-wit:</p> <p>1. Cities of the fiifth class are required by their charter to levy taxes for any year upon the assessment made as of September 1st of the year previous; and, therefore, appellant’s property assessed for the first time in 1905, and not liable to assessment, prior thereto, can not be subjected to levy for 1905 taxes.</p> <p>2. The assessment of September, 1905, is illegal because,</p> <p>(a) It was not made by the proper officer.</p> <p>(b) And because the city of Falmouth had failed to provide by ordinance a system for th.e assessment, levy and collection of taxes, as is required by its charter, section 3644 Kentucky Statutes.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sections 3621, 3644, 3645, 3655; Constitution of Kentucky, sections 165, 228; Muir’s Adm’r v. City of Bards-town, 27 Ky. Law Rep., 1150; Town of Springfield v. Peoples Deposit Bank, 111 Ky., 105; Cooley on Taxation, pages 352-354; City of Latonia v. Meyer, 27 Ky. Law Rep., 746.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. “All real and personal property within the city, and all personal éstate, except such tangible personal property as has an actual bona fide situs without the city, of persons domiciled or actually residing in the city, on the 15th day of September in the year in which the assessment shall be made . shall be subject to assessment and taxation for all local and municipal purposes, etc.” (Ky. Stats., section 3654.) *</p> <p>2. Under the provisions of charters of cities of the fifth class, no time is fixed when the city levy shall be made. The time of the levy is therefore 'left éntirely to the discretion of the city council. It may be made in the same year in which the assessment is made, or it may be made later, but the “correct assessment” must be the assessment roll for said tax for said year. That is to say the tax levy for the year 1905 must have been made upon the 1905 assessment though the levy may, in fact, not have been made until in the year 1906.</p> <p>3. The Board of Equalization “shall have the power to hear complaints and to correct, modify or strike out any assessments made by the assessor. (Section 3645.) By this provision appellants are given a complete remedy.</p> <p>4. Neither the office of city clerk or city assessor is an elective office. Each is appointive and neither is referred to in or recognized by the State Constitution. The city clerk or the city assessor, under the provisions of section 3619 may, though appointed for a term of years, be removed at the pleasure of the city council.</p> <p>5. If we grant that there is an inconsistency in the acceptance of the office of assessor by the city clerk it does not affect the office of assessor, but it does vacate the office of clerk.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sections 3654, 3645, 3655, 3629, 3619, 3746, 3744; 96 Kentucky, 627; A. & E. Ency., vol. 5, page 96; 3 Bush, page 90.</p>

<p>CASE 34. — ACTION BY J. T. BARNETT’S ADM’R AGAINST THE PENN MUTUAL LIFE INSURANCE COMPANY. Original opinion filed November 2, 1906; second opinion,</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (Second Division).</p> <p>Samuel B- Kirby, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>ON REHEARING.</p> <p>1. Insurance — Paid-up Policy — Surrender Charge — Carroll’s Ky. Stats., 1903, section 659, provides, in relation to life insurance, that in case of default of any premium on a life policy, after three years’ premiums have been paid, the policy shall be binding on the company for the amount of paid-up insurance which according to the company’s published tables of single premiums, the net value of the policy on such anniversary and the dividends thereon computed by the rule pointed out by the statute • will purchase as a net single premium for insurance maturing and terminating at the time and in the manner provided in the original policy, provided that the reserve of such paid-up insurance shall not be less than two-thirds of the reserve of the original policy. He'ld, that the statutes do not warrant an insurer charging ia surrender charge in issuing paid-up insurance on a defaulted policy; a contention that one-third of the reserve is not to be applied to the purchase of paid-up insurance being untenable.</p> <p>2. Usury — Notes.-—Where insured in a life policy borrowed money of the insurer on his note, giving the policy as collateral security, and the note provided that, if it was not paid at maturity, the insurer might ascertain the cash value of the policy and cancel it, and with the cash surrender value pay the loan, and with the balance credit insured with as much paid-up insurance as the balance would purchase, the note, in so far as it attempted to allow the insurer to charge a surrender charge in issuing the paid-up insurance, was usurious.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The stipulation in Barnett’s $1,000 note, viz.: that if the note was not paid at maturity the policy should be canceled, the note paid out of the cash surrender value and the balance applied to the purchase of paid-up insurance, never became operative. It is, therefore, wholly immaterial to this controversy whether it is valid or void.</p> <p>2. The note for $1,000, to secure which Barnett assigned his policy to the Penn Mutual, was an “outstanding liability under the policy,” and Barnett was not entitled to exercise the “option” given by the second non-forfeiture clause unless nor until that note should have been “first paid off.”</p> <p>3. By the express terms and within the true intent of the second non-forfeiture clause, Barnett was not entitled to exercise the “option” given therein, because he did not “within sixty-days” after the lapse of his policy make “written application" therefor and “surrender all claims” thereunder," including anv claim for extended insurance under the first non-forfeiture clause.</p> <p>4. Even if the “sixty days”' limit, prescribed in the second non-forfeiture clause of the policy, be construed, not as fixing the time within which an “option” is to be exercised, but as giving a “reasonable time” within which to make the “written application” and “surrender” therein provided for, yet Barnett did not comply with that condition, and thereby lost any supposed right under said clause to demand paid-up insurance payable at death.</p> <p>5. The “assignment” by Barnett to Penn Mutual of his policy, as collateral security for the payment of his $1,000 note, did not relieve him from the duty of making written application and a surrender of all other claims thereunder, as a “condition precedent” to receiving paid-up insurance, payable at death, for twelve-twentieths of the face of the policy.</p> <p>6. The Penn Mutual did not “elect” for Barnett to give him paid-up insurance in the sum of $3,000, nor in any manner “waive” its right to insist that, as a “condifm precedent” to receiving such insurance, Barnett should first have made “written application” therefor, and have “surrendered” his right to “extended insurance” under the first non-forfeiture clause.</p> <p>7. A valid agreement was made between the Penn Mutual and Jonathan T. Barnett in September, 1897, whereby, in settlement of all rights under the policy, Barnett accepted a release from his note of $1,000 and received paid-up insurance payable at death for $215.</p> <p>8. The stipulation m the note for its payment out of the cash surrender value of the policy is not void as usurious or as involv ing a forfeiture, but the same is valid, being in strict accord with the policy of the statute law of Kentucky.</p> <p>AUTHORITIES.</p> <p>(Cited or reviewed.)</p> <p>Goodman v. Mass. Mutual, etc., 73 N. Y., 480; Worthington v. Charter Oak Ins. Co., 41 Conn., 416; Mutual Benefit Life v. First National Bank, 24 Ky. Law Rep., 580; Mutual Benefit Life v. First National Bank, 115 Ky., 757; Mutual Life óf New York v. Jarboe, 102 Ky., 80; Washington Life Ins. Co. v. Miles, 112 Ky., 743; New York Life v. Warren, 25 Ky. Law Rep., 325; Mutual Life of Kentucky" v. O’Neil", 25 Ky. Law Rep., 983; 21 Encyc. of Law, 9?1; Stembridge v. Stembridge, 87 Ky., 91; Mc'Goffin v. Holt, 1 Duvall, 95; 19 Encyc. of Law, 84; Hexter v. U. S. Life Ins. Co., 91 Ky., 357; Northwestern Mutual v. Barbour, 92 Ky., 427; New York Life v. Curry, 115 Ky., 100; Crutchfield v. Union Central Life, 113 Ky., 53; Ky. Statutes, sec. 659.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>1. The proposition as to a paid-up policy after five payments, in effect, is a covenant to pay Barnett’s estate three thousand dollars upon his death. See: (Montgomery v. Phoenix Mutual Life Insurance Company, 14 Bush, 58.)</p> <p>This is made clear without the presumption of law against the insurance company, but this court, in case of Sun Life Insurance Company v. Taylor, 22 Law Reporter, page 38, throws the weight of presumption against the company. “Provided” when inserted in a deed, may be either a condition or ia covenant. (American & English Encyclopedia, vol. 17, page 298. And a chancellor will not enforce a forfeiture when compensation can be made. St. Louis Mutual Life Insurance Company v. Grigsby, 10 Bush, 307; Montgomery v. Phoenix Life Insurance Company, 14 Bush, 58.)</p> <p>2. The company in the case at bar, as in these cases, had always in its possession ample security to pay the note for which the policy was pledged.</p> <p>3. It will be insisted that the note for which the policy was pledged to secure payment did not change the policy. The provisions of the note looking to the ascertainment and application of the policy were absolutely void, because the assignment of the policy made a mortgage which left an equity of redemption in the assignor, of which he could not be deprived, without sale by decree of court or by private sale upon notice. (Hart v. Burton, 7 J. J. Marshall, 322; Honoré v. Hutchings, 8 Bush, 690: Curry & Bro. v. New York Life Insurance Company, 24 Ky. Law Rep., 1930; Alexander v. Rodriquez, 12 U. S. Reports.)</p> <p>4. The stipulation in the policy to pay when so many as five annual premiums are paid the proportion that the payments bear to twenty payments is a contract in writing and is barred by the limitation of fifteen years. Therefore, there is no room for the chancellor to interfere to adjudge what is a reasonable time.</p> <p>5. It is only when the time provided for is shorter than the provision in the statute of limitations that the chancellor will qr can interpose to declare that the stipulated time is unreasonable, and having the power to decide that the time stipulated is too short he has the 'correlative power to determine what is a reasonable time, always provided that he cannot repeal or change the statute of limitations.</p> <p>When the policy in the case at bar lapsed it became a dead policy. (Mutual Life Insurance Company v. Jarboe, 102 Kentucky. 80; Washington Life Insurance Company v. Miles, 23 Ky. Law Rep., 705.) .</p> <p>6. There was nothing left of it except the covenant to pay three thousand dollars. In September, 1897, there existed no policy whose cash value could be ascertained and applied. There was no ratification in the case at bar. Ratification must be upon full information and knowledge. (Owens v. Hull, 9 Peters, 628; Kerr on Frauds and Mistakes, 300.)</p> <p>“If one dealing with another is misled by him respecting his legal rights, he will have relief in equity.”</p> <p>Same author, page 90. The policy never was cancelled. To cancel a writing is to cross and deface it, to cancel or destroy it by cross marks or other alterations or by burning or tearing the material on which the writing is. (American & English Encyclopedia, 718, 719.)</p> <p>The case of Mutual Benefit Insurance Company v. First National Bank, 24 Ky. Law Rep., 580, is not applicable to the case at bar.</p> <p>It was proper in the adjustment of thie equities to allow interest to each party.</p> <p>AUTHORITIES CITED.</p> <p>Montgomery v. Phoenix Mut. Life Ins. Co., 14 Bush, 58; Sun Life Ins. Co. v. Taylor, 22 Ky. Law Rep., 38; Am. & Eng. Encyc., vol. 17, 298, 718 and 719; Sa Louis Mut. Life Ins. Co. v. Grigsby, 10 Bush, 307; Hart v. Burton, 7 X J. Mar., 322; Honoré v. Hutchings, 8 Bush, 690; Curry & Bro. v. N. Y. Life Ins. Co., 24 Ky. Law Rep., 1930; Alexander v. Rodriquez, 12 Wallace, --— U. S. R.; Mut. Life Ins. Co. v. Jarboe, 102 Ky., 80; Washington Life Ins. Co. v. Miles, 23 Ky. Law Rep., 705; Owens v. Hull, 9 Peters, 628; Kerr on Frauds and Mistakes, 800, 90, Mut. Benefit Ins. Co. v. First National Bank, 24 Ky. Law Rep., 580; Outstanding Liability, Webster’s Dictionary.</p>

<p>CASE 35. — PROCEEDINGS BY BERT FORD AND OTHERS TO OBTAIN A WRIT OF PROHIBITION AGAINST JUDGE M. J. MOSS AND OTHERS.</p> <p>Application to- Appellate Court for writ of proIhiMtion</p> <p>1. The indictment under which plaintiffs were tried and convicted in the Whitley Circuit Court at its November Term, 1906, wias drawn under section 1575 of the Kentucky Statutes.</p> <p>2. It is the contention of the plaintiffs that the facts set forth in said indictment do not constitute a public offense in this State, and moreover if such facts do constitute a public offense, then that no prosecution lies therefor by information.</p> <p>3. We submit that the election which is held' in each school district of this State on the first Saturday in October of each year for the purpose of electing trustees therefor, is not a general election within the meaning of those words as used in said section 1575 of the Kentucky Statutes.</p> <p>4. A school election has only one element in common with a general election; namely, the selection of some person to a position of trust. It has no other element in keeping with a general election. Under the general head of elections found in Kentucky Statutes from section 1437 to 1596, no mention is made of .an election for school trustees. A school election has these several peculiarities to distinguish it from a general election.</p> <p>(a) Vote is taken viva voce.</p> <p>(b) Election held at school house.</p> <p>(c) Polls open from 1 to 6 o’clock in afternoon.</p> <p>(d) Officers are one judge and a clerk.</p> <p>(e) Officers are chosen by voters at opening of polls.</p> <p>(f) Judge gives certificate of election.</p> <p>(g) Certain widows and spinsters may vote.</p> <p>(h) Ballots not furnished by public authority, or any authority. Kentucky Statutes, section 4434.</p>

<p>CASE 36. — ACTION BY EMMA GEISLER AGAINST JOHN S. GEISLER TO RECOVER A PENDENTE LITE ALLOWANCE AS ALIMONY.</p> <p>Appeal from Campbell Circuit Court.</p> <p>Judgment sustaining a demurrer to the petition.</p> <p>Divorce' — Alimony—Finality of Judgment — Action on Judgment.— A decree awarding to a wife certain weekly allowances as “alimony pendente lite until final order” was not a final judgment, on wkicfi an action could be maintained.</p>

<p>1. Banks — Special Deposit — Appropriation to other debts of Depositor.. — The rule that where one indebted to a bank has money on deposit in the bank iat the date upon which a note owing to the bank by a depositor falls due, it is the duty of the bank to apply the money on deposit to the discharge of the note, and if it fails to do so it releases the sureties on the note to the extent of such deposit, applies only to general deposits and not to a special deposit.</p> <p>2. Same — Discounting Note — Money left in Bank — Promise to Pay on Checks — Improper Appropriation — Schlamp discounted a note for $1,000, executed by him and two sureties' at a hank in which he was not a depositor, but at the suggestion of the cashier that it was not convenient to pay him the money on that day but promised to pay it on checks when presented, and on further request for the money said he would prefer to pay on checks, and thereby delayed payment until a partnership note for $1,500, held by the bank on Schlamp and another fell due, when it notified Schlamp that it had appropriated $750 of the $1,000 note to the liquidation of his half of the $1,500 partnership indebtedness to the bank. In an action by the bank on the $1,000 note, payment was resisted by Schlamp and his sureties, to the extent of the $750. Held, That the bank had no right to appropriate the $750 or any part of the $1,000 note to the discharge of any part of the $1,500 debt owing to the bank by Schlamp, but was bound to honor his check for the $1,000 special deposit as it had agreed to do.</p>

<p>1. Wills — Rights of Devisees- — Election by Husband. — Ky. Stats., 1903, section 1404, providing the manner in which a widow may renounce her husband’s will, does not apply to renunciation by the surviving husband of the will of his wife, but he ' may renounce under section 2067 providing for disclaimer by a devisee.</p> <p>2. Same — Failure to Elect — Right to Compel Election. — Under Ky. Stats., 1903, section 2067, authorizing a devisee to disclaim by deed within* a year after notice of probate, a husband, if he wishes to renounce the will of his wife, must follow the provisions of the statute, and his failure to do so within the time prescribed amounts to an election to take under the will, but a court cannot require him to elect.</p> <p>3. Same — Construction—Husband’s Life Interest — ForfeitureDevesting Vested Interests. — A wife bequeathed all of her property to her husband in trust for her children, with full power to sell, convey, and invest as he thought best, and use the income for his support during life, provided that the property should not be incumbered by, or its rents and profits in any way subjected to, the debts of the husband, and that if any court should hold that the profits may be subjected to the debts of the husband, his interest should instantly cease, and thereafter the rents and profits should be paid to her children. Held, that the provision as to the passing of the rents and profits to the children was valid.</p>

<p>1. Landlord and Tenant — Termination—Tenancy from Month to Month. — Where a lease is from month to month, either party may terminate it by giving one month’s notice.</p> <p>2. Judgment — Matters Concluded. — Where the landlord in a lease by the month gave a notice terminating it, but he was defeated in a subsequent forcible entry and detainer proceeding, and subsequently he gave another notice and brought new proceedings, a plea of former acquittal was untenable.</p> <p>3. Evidence — Comparison of Writings. — Ky. Stats., 1903, section 1649, provides that, on .a dispute as to the genuineness of a handwriting of a person, other handwritings of such person may be introduced for comparison provided that the ‘genuineness of such writings shall be proved, etc. Held that, where a party admits the genuineness of his signature to a writing to be compared with the disputed signature, it is not necessary to observe the requirements of the proviso.</p>

<p>CASE 40 — ACTION BETWEEN FELIX G. MORGAN AND OTHERS AND C. G. RENFRO INVOLVING THE LOCATION OF A TRACT OF LAND IN CONTROVERSY.</p> <p>Appeal from Leslie Circuit Court.</p> <p>PI. C. Faulkner, Circuit Judge.</p> <p>From the judgment plaintiffs appeal.</p> <p>CONTENTIONS — AUTHORITIES.</p> <p>Where one or more corners of a survey are lost, they must be located by running the lines from the nearest known and established corners until they intersect. The point of intersection will be the corner desired.</p> <p>(a) Adjudicated cases in point: (Beckley v. Bryan, et al., Sneed, 91-96; Wishart v. Cosby, 1 A. K. M., 382.)</p> <p>(b) Case not in point but touching matters referred to in argument: (Pearson v. Baker, et al., 4 Dana, 321.)</p> <p>(c) Case referred to but not cited for authority: (Bryan v. Beckley, Litt, Sel. Cases, 91 et seq.) -</p> <p>Appellee takes the following statements to be law:</p> <p>1. A stake corner is mathematically known, and is not lost.</p> <p>2. Unless controlled by 'another known corner, a stake corner is to be located by running the calls of the patent.</p> <p>3. A lost comer cannot be found by reversing from ian assumed stake corner.</p> <p>4. Every grant should be construed with as few sacrifices as possible.</p> <p>5. One line of a survey is of itself of no higher dignity than any other line.</p>

<p>1. Pleading — Form of Allegation — Matters of Fact — Pleading Legal Effect. — Tire allegation that plaintiff was “invited” to use the blacksmith shop of defendant is a conclusion of the plaintiff from what passed between himself <and the defendant, with reference to his right to enter or use the shop.</p> <p>2. Same — Construction.—In an action for personal injuries received in defendant’s blacksmith shop, it was alleged that plaintiff was “invited” by defendant to use the shop at his pleasure. It was not alleged by what particular officer or agent of defendant the alleged invitation was given, and the petition was also silent as to the language employed at the time. It was not alleged that plaintiff accepted the invitation, nor that the shop was being used by defendant on the day of plaintiff’s accident, nor that the plaintiff entered the shop by defendant’s invitation on that day extended; the alleged invitation, according to the petition, having been given on a previous occasion. Held, that the meaning of the petition was that plaintiff had the permission or consent of defendant to use the shop; hence, what plaintiff designated as an “invitation” was but a license.</p> <p>3. Negligence — Dangerous Substances — Care Due to Licensees.— Plaintiff was a licensee with a right to use a blacksmith shop maintained for defendant’s private use. Plaintiff entered the shop for the purpose of doing some work, but it did not appear that defendant or its agents had any knowledge of this. During his work ia spark from the anvil fell into a keg of blasting powder, and as a result of the explosion plaintiff was injured. The powder was uncovered, and it did not appear that its presence was unknown to plaintiff or could not by the exercise on his part of ordinary care have been discovered, nor that the shop had not previously been used to store powder. There was nothing to show that its presence therein at any time was a nuisance or dangerous to the public. Held, that defendant was not liable for injuries sustained by plaintiff.</p> <p>4. Same — Contributory Negligence — Licensee.—A licensee of the right to use a blacksmith shop is bound to exercise ordinary care for his own safety.</p>

<p>1. Eminent Domain — Compensation—Additional Use of Property. Where a strip through a tract of land is condemned for railroad purposes, the railroad is not liable to the landowner for damages resulting from the laying of the additional tracks on the right of way not contemplated when the right of way was secured, in the absence of negligence in the operation of the road.</p> <p>2. Pleading — Conclusions—Ownership of Passway. — An allegation in the petition that the plaintiffs owned a passway across defendant’s railway track is not a mere conclusion of law.</p> <p>3. Same — Answer—Admissions—Failure to Deny. — An allegation in the petition that plaintiffs owned a passway over a railroad track, not denied in the answer, must he taken as true.</p> <p>4. Railroads — Operation—Obstructing Private Road. — A railroad is liable to' the owner of a passway over its tracks for its obstruction only where the obstruction is negligent, and not where it is required in carrying on the business in the usual and necessary way.</p> <p>5. Same' — ’Measure of Damages. — The measure of recovery for the obstruction of a passway over a railroad by the negligent operation of the road is not the decrease in the value of the property from the obstruction, but the decrease in the value of its use within five years before the filing of the action therefor.</p>

<p>CASE 43. — PROCEEDINGS BY THE COMMONWEALTH TO RESTRAIN WILLIAM M. CARNES PROM ACTING AS SPECIAL JUDGE. IN THE CASÉ OP COMMONWEALTH AGAINST,HARGIS AND OTHERS IN THE BREATHITT CIRCUIT COURT</p> <p>On motion before the Court of Appeals.</p>

<p>.CASE 44. — ACTION BY T. GRANT SLAUGHTER AGAINST W H. GREGORY FOR PERSONAL INJURIES BY AN AUTOMOBILE</p> <p>Appeal from Jefferson Circuit Court, C. P. Branch (Second Division).</p> <p>Thomas R. (Jokdon, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>Appellant, Mr. W. H. Gregory, is a victim, of the prejudice against automobiles. That such a prejudice exists we suppose will hardly be disputed. It was certainly shown in the case at bar.</p> <p>If this injury had occurred in this way and with these results by reason of a man being struck by an ordinary wagon or buggy, we think we can say without any doubt that, considering the character of the injuries and all the circumstances, no jury would have given the plaintiff over $200 or $300. Possibly some jury might have been worked up to $500. The jury in the case at bar rendered a verdict against Mr. Gregory, by reason of his being in an automobile, in the sum of $2,500.</p> <p>We submit that this verdict was grossly excessive, and was manifestly given under the influence of passion and prejudice against automobiles.</p> <p>Furthermore we submit that the court erred in allowing the plaintiff to testify that the loss of his business by reason of his injuries was $1,000, which, he said in effect, was the amount of commissions he believed he would have earned, and which he did not earn by reason of his injuries. This testimony was objected to, and a motion made to exclude it, but the court let the testimony in.</p> <p>AUTHORITIES CITED.</p> <p>1. Excessive damages. (L. & N. R. R. Co. v. Law, 14 Ky. Law Rep., 850; N. N. & M. V. Co. v. Walker, 14 Ky. Law Rep., 175; Louisville Railway Co. v. O’Mara, 25 Ky. Law Rep., 819.)</p> <p>2. Loss of Profits. (L. & N. R. R. Co. v. Hall, 24 Ky. Law Rep., 2487, 2492; L. & N. R. R. Co. v. Logsdon, 24 Ky. Law Rep., 1566; Howe Machine Co. v. Bryson, 44 Iowa, 159; Pollock & Co. v. Gantt, 69 Ala., 377; Lewis v. Atlas Mutual Life Ins. Co., 61 Mo., 534; Cincinnati Gas. Co. v. Western Siemens Co., 152 U. S., 200; Hair v. Barnes, 26 III. App., 583; Stern v. Risenheim, 67 Md., 507; Washburn v. Hubbard, 6 Lansing, 11; Smith v. Gentry, 20 Ky. Law Rep., 171; Hahn v. Horstman, 12 Bush, 257; Epenbaugh v. Gooch, 15 Ky. Law Rep., 576; Carsey v. Parmer, 25 Ky. Law Rep., 1965; Smith v. Western Union, 83 Ky., 118.</p> <p>1. It is contended that the verdict is excessive. The only evidence as to the iamount of the injury sustained by Mr. Slaughter is the fact that he has paid doctors’ bills to the extent of $60.00, that he has had clothes ruined to the extent of $30.00, that he has lost in his business $1,000.00, that he has suffered intense physical agony for over six months, was confined to his bed and to his house for several weeks in utter pain .and suffering, and that he has left, as a permanent memorial of this accident, a right hand so torn, mangled and distorted, that one finger stands’ permanently stiff and immovable' iand the tendons so distorted and torn and misplaced that the balance of his hand can only be half closed, the physical power of the hand gone and gone forever, utterly useless for any manual labor, even for the lifting of the ordinary burdens that a gentleman would be called upon to lift; with free use only of two fingers and a thumb, enabling him still to write, but useless practically in all other respects.</p> <p>2. The earnings of Mr. Slaughter are from his personal labor and skill. It is not profits out of the business nor speculative profits for a breach of contract, but which, as he says, judging by his past experience of his earnings from his personal labor by reason of this injury he lost “the value of his time,” and the “value of the time lost” is fixed by the Kentucky authorities as one of the elements of his damage, and therefore evidence as to the value of that lost time, was admissible and competent.</p>

<p>1. Homicide — Principals—Accessories Before the Fact.- — -Under the statutes' of the State which, do not create or describe the crime of murder, or mention aiders and abettors or principals in the first or second degree, but merely fix the punishment . for murder, and do not define the penalty for an accessory before the fact, but provide by Ky. Stats., 1903, section 1128, that, in all felonies, accessories before the fact shall be liable for the same punishment as principals, and may be prosecuted jointly with principals, or severally, though the principal be not taken or tried, the principal actor, the aider and abettor, and the accessory before the fact are all principals in the first degree, and may be accused and convicted ias such.</p> <p>2. Same — Indictment—Charging One with Being an Accessory.— Under Crim. Code. Prac., section 122, declaring that an indictment shall contain a statement of the acts constituting the offense in ordinary language in such manner as to enable a person of common understanding to know what is intended, and section 126, providing that an indictment must charge but one offense, but, if it may have been committed in different modes and by different means, the indictment may allege the modes -and means in the alternative, where the • indictment charges that H and others, in connection with J. and B., unlawfully, willfully, and with malice aforethought shot and killed C., and that prior to such time such persons entered into a conspiracy to kill and murder C., and pursuant thereto J. and B., with the knowledge .and consent, and by the direction and procurement of H. and said others, did unlawfully, willfully, and with malice aforethought shoot and kill C., and that, before the time of said murder, said H. and others did unlawfully, willfully, and with malice aforethought advise,' incite, procure, and persuade said .J. and B. to so shoot and kill C., and at the time of said shooting said H. and others were present conveniently near, and did unlawfully, willfully, and with malice aforethought aid, abet, counsel, advise, incite, and encourage said J. and B. to do said shooting and killing, H. may he convicted of murder on evidence either that he was an actual perpetrator of the act, or that he was present aiding and abetting, or that he was an accessory before the fact.</p> <p>3. Criminal Law — Declarations of Conspirator — Proof of Connection with Conspiracy. — On the trial of H. for murder of C., committed pursuant to a conspiracy, evidence by the State that S. was seen at the time of the killing in company with the persons who killed C., and who were in the conspiracy, in connection'with the testimony of W. that shortly prior to ithe visit of S. to him, in regard to killing C., H. who had spoken to him about killing C. had told him to stay at his home till H. sent for him, sufficiently connects S. with the conspiracy to make competent against H. the declaration of S. then made to W\, that H. had sent to-W. the money which S. then gave him, and wanted him to come that night to help kill C.</p> <p>4. Same — Appeal—Rejection of Evidence — Res Gestae. — Declarations of a conspirator, made after the purpose of the con- • spiracy had been accomplished, not being admissible against his co-conspirators, unless competent as part of the res gestae, their rejection oannot he reviewed, it not clearly appearing how long after the commission of the crime they were made.</p> <p>5. . Homicide — Dying Declarations — Sense of Impending Death.— Declarations of deceased made after he was shot, from the effects of which he died the next day, “they have killed me at last,” and that the shots came from a certain place, are admissible as dying declarations, they sufficiently showing that he was impressed with the fact that he could not live.</p> <p>6. Criminal Law- — Res Gestae — Declarations.—Testimony that witness heard the shots, saw C. during the shooting, that C. walked a few feet and fell, and' witness immediately went to him, when he said they had killed him, and that the shots came from a certain place, show the declarations to he admissible as part of the res gestae.</p> <p>7. Same — Declarations of Conspirators — Reference to Other Matters. — 'Though on a prosecution for murder of C., killed pursuant to a conspiracy, witness testified to conversations had by him with defendant and other conspirators relating to the killing of M. and C., prior to the death of either, he may not testify to conversations had with them in which the killing of M. alone was discussed, especially where M. was not killed till a year after C. was killed.</p> <p>8. Same — Evidence—Inducements to Witness Not to Testify. — • Testimony, on the trial of H. for murder of C„ of a witness who was a party to the conspiracy to murder and familiar with its details that after the murder, and before H. was indicted, he offered witness money to leave the country and never appear or testify against him or any of the conspirators is competent.</p> <p>9. Witnesses — Contradiction.—The State may contradict the testimony of defendant in a murder case as to money which, it had been testified, he had given a witness to induce him to leave the country and not testify, the jury being admonished as to the purpose of the contradicting' testimony.</p>

CASE 46. — PROSECUTION AGAINST TOM HARDY FOR BRINGING LIQUOR INTO A LOCAL OPTION DISTRICT.— Appeal from Cumberland Circuit Court. H. C. Baker, Circuit Judge. Prom a judgment sustaining a demurrer to tbe indictment tbe Commonwealth appeals.

<p>CASE 47. — ACTION BY ROBERT F. WIEMER AGAINgT THE COMMISSIONERS OF THE SINKING FUND OF THE CITY OF LOUISVILLE TO RECOVER CERTAIN LICENSE TAX.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (Second Division).-</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>1. The Statute approved February 19, 1906, entitled “An Act to enable cities of the first class to construct a comprehensive system for the disposition of sewerage,” which authorizes the organization of a subsidiary corporation to plan and construct the sewers, is not such special or local legislation as is prohibited by section 59 of the Constitution.</p> <p>2. An ordinance drawn in compliance with section 159 of the Constitution should provide “for the collection of an annual tax sufficient to pay the interest on said indebtedness and to create a sinking fund for the payment of the principal thereof,” by naming a fixed sum to be annually collected and appropriated regardless of the variable amount of property taxable for municipal purposes.</p> <p>AUTHORITIES CITED.</p> <p>Carrollton Furniture Mfg. Co. v. The City of Carrollton, 104 Ky., 530; Richardson v. Mehler, 111 Ky., 426; Louisville School Board v. Superintendent of Public Instruction, 102 Ky., 394; Shoemaker v. Hodge, 111 Ky., 436; Wooley v. City of Louisville, 114 Ky., 556, 569; Louisville v. Wehmoff, 116 Ky., 813; City of Louisville v. Louisville School Board, 27 Ky. Law Rep., 209; Commissioners v. Louisville, 114 Ky., 571; Farson, Leach & Co. v. Board, 97 Ky., 119; Commissioners v. Grainger, 98 Ky., 319; Commissioners v. Zimmerman, 101 Ky., 432; Board of Park Commissioners v. DuPont, 110 Ky., 743; Walston v. City, 66 S. W., 3S5; Cooley on Taxation, vol. 1, 3rd Ed., 557; Pettibone v-. The West Chicago Park Commissioners, 215, 111., 313; Hodges v. Crowley, 186 111., 305; Cooley on Taxation, p. 597; City of East St. Louis v. Amy, 120 U. S., 600; Bassett v. City of El Paso, 88 Tex., 168, 30 S. W., 893; Mitchell County v. The Bank, 91 Texas, 261; Howland v. The Board of Supervisors, 109 Cal., 152; Epping v. Columbus, 117 Ga., 278; Village of Canandaigua v. Hayes, 85 N. Y. Sup., 494.</p>

<p>CASE 48. — ACTION’S BY B. F. DEVERS AGAINST CHARLES B. MAY AND OTHERS, AND BY SAME PLAINTIFF AGAINST M. D. MARTIN AND OTHERS INVOLVING A RENT CONTRACT AND THE OWNERSHIP OF CERTAIN EMBLEMENTS.</p> <p>Appeal from Harrison Circuit Court.</p> <p>L. P. Fryer., Circuit Judge'.</p> <p>From the judgments plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. On question as to measure of damages recoverable by Devers from Martin & Drane. (Smith v. Phillips, Jr., 16 Ky. Daw Rep., 615; Wells v. Nat’l Life Ass’n Hartford, 53 L. R. A., 98 99 100, 103; Sutherland on Damages, 3rd Ed., sections 863, 864, 865; Page on Contracts, vol. 3, section 1588.)</p> <p>2. As to appellant’s right to emblements in the wheat. (Bradley v. Bailey, 1 L. R. A., 427; Lawson’s Rights, Remedies and Practice, vol. 6, section 2682; Moreland, &c., v. Myall, &e., 14 Bush, 478; Lafferty v. Schuylkill River East Side R. R. Co., 3 L. R. A., 124; Batterman v. Allbright, 11 L. R. A., 801; Redmon v. Bedford, &c., 80 Ky., 13; Ky. Statutes, sections 3863, 3864, 3865; Acts 1851, page 251.)</p> <p>3. On the proposition that where a party, by his own -contract, creates a duty or charge upon himself, he is bound to make good his undertaking, notwithstanding any inevitable necessity, or accident, or act of God. (Dawson’s Rights, Remedies and Practice, vol. 5, section 2520, and cases cited in Note 6;. 44 L. R. A, 557, Smith v. N. American Transportation & Trading Co.; 14 L. E. A., 215, Stewart v. Stone; 21 L. R. A., 645, Renny v. Olds; 57 L. R. A., 707, Southern Pacific Co. v. H. A. Schoer; '6 J. J. Marshall, 527, Singleton v. Carrol, etc.; 3 T. B. Monroe, 376, Bohannon v. Lewis; and also page 138, same book, Beatt.y v. Scrivener: 14 B. Monroe, 332, Sweeney v. Owsley; 18 Am. Reports, 39, The District Township &c., v. Smith; 82 Am. Dec., 349, Tompkins v. Dudley; 72 Am. Dec., 373, Supt. &c., Public Schools ol Trenton v. Bennett, &c.)</p> <p>A concise definition of emblements, limited to the circumstances of the case on trial would he, that it is the right of the tenant of a life tenant to enter upon the land after the death of the life tenant, to harvest the crop sown by him before the death of the life tenant. (Ky. Statutes, sections 3862, 3863, 3864, 3865.)</p> <p>We hold to the view that where there has been nothing wilful on the part of the lessor in the failure to carry out a contract of rental, and no damages are alleged as to any extra trouble or expense sustained by the lessee by reason of any conduct on the part of the lessor, that only actual damages can he recovered.</p> <p>AUTHORITIES CITED.</p> <p>Smith v. Phillips, 16 Ky. Law Rep., 675; Newman on Pleading, 336, 357, 360 and 382; Sousley v. Burns, Adm’r, 10 Bush, 87; Miles v. Miller, 12 Bush, 134; Lanigan v. Kille, 39 Am. Rep., 797 (97 Pa., 120); Chamberlain v. McAllister, 6 Dana, 352; E. & P. R. R. Co. v. Pottinger & Bro., 10 Bush, 185; Koch v. Godshaw, 12 Bush, 318.</p>

CASE 49. — ACTION ON TWO PROMISSORY NOTES BY MARGARET W. ROBERTSON AND OTHERS AGAINST B. B. BEMISS AND OTHERS. Appeal from 'Warren Circuit Court. John M. Galloway, Circuit Judge. From the judgjueut both parties appeal. POINTS AND AUTHORITIES. 1. All errors that may have been committed by the court below, except as- to the right of set-off, are specifically, and expressly waived by appellant. 2.

<p>CASE 50. — ACTION BY. MERCHANTS’ NATIONAL BANK OF LAFAYETTE, INt)., AGAINST W. P. FORD, IN WHICH DEFENDANT FILED A CROSS PETITION AGAINST CROUCH & SON CLAIMING DAMAGES FOR FRAUD IN THE SALE OF A STALLION.—</p> <p>Appeal from Owen Circuit Court.</p> <p>John I). Carroll, Special Judge.</p> <p>Prom the judgment for Ford, plaintiff and Crouch & Son appeal.</p>

<p>CASE 51 — ACTION BY W. E. MITCHELL, ADMINISTRATOR OP THE ESTATE OP E. L. MITCHELL AGAINST HUGH BRADY AND OTHERS FOR DAMAGES FOR THE DEATH OF PLAINTIFF’S INTESTATE.—</p> <p>Appeal from Jefferson Circuit Court; Common Pleas Branch (Second Division).</p> <p>J. C. Dodd, Special Judge.</p> <p>From the judgment dismissing his petition plaintiff appeals. Affirmed as to the City of Louisville.</p> <p>POINT DISCUSSED AND AUTHORITY CITED.</p> <p>The landlord having surrendered possession of the leased premises and having no control over the premises where the accident -occurred, is not liable in damages because of the defective condition of the premises. This is especially true in the case where the injured party is a sub-tenant to whom the landlord is not under contract, and to whom the landlord is under no obligations. (Franklin v. Tracy, 24 Ky. Law Rep., 1409.)</p> <p>The identical questions presented here, so far as we have been able to ascertain have never been passed on by this court and we are urging their consideration upon the court because we feel that appellant is entitled to have ia jury decide the issues in this case.</p> <p>AUTHORITIES CITED.</p> <p>Spearman & Redfield on Negligence (5th Ed.) sec. 710; Thompson on Negligence, vol. 1, see. 1138 and 1144; Franklin v. Tracy, 25 Ky. Law Rep., 1409; Miles v. Tracy, 28 Ky. Law Rep., 621; Jagga-rd on Torts, vol. 2, p. 868; Civil Code, sec. 606; Commonwealth v. Sapp, 90 Ky., 580; Babcock v. Booth, 2 Hill, 181.</p>

<p>CASE 52. — PROSECUTION AGAINST JQHN DIAMOND FOR STEALING CHICKENS OF THE VALUE OF MORE THAN $2.00.</p> <p>Appeal from Garrard Circuit Court.</p> <p>W. O. Bell, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>We submit:</p> <p>The plain subject of the act is crime. The object is to prevent crime and to fix a punishment therefor. Thie subject and object of the act are both expressed in the title, and therefore cannot be in conflict of section 51 of the Constitution. (Acts 1904, page 83; Heyser v. Commonwealth, 25 Ky. Law Rep., 608; Conley v. Commonwealth, 98 Ky., 125; Weber v. Commonwealth, 24 Ky. Law Rep., 1727.)</p>

<p>1. Appeal — Presumptions—Regularity of Proceedings. — Where, in an action to vacate a judgment, plaintiffs contended that in the original action an order of revivor after the death of the defendant therein was not made until more than a year after his death,- and that no guardian ad litem was appointed for an infant defendant, held that, it appearing on appeal</p> <p>. that the record in the original action was imperfect, and there being no affirmative showing-to the contrary, it must be presumed that the order was made in proper time, and that all the heirs of the deceased defendant were of age when it was made.</p> <p>2. Judgment — Vacation—Limitations.—One against whom a judgment has been procured by the fraud of the successful party may have it vacated on a proper showing, if the application is made within the 10 y-ears allowed by Ky. Stats., 1903, section 2519.</p> <p>3. Same — Action—Petition—Sufficiency.—In an action to set aside a judgment as obtained by fraud, mere allegations of the petition that the judgment was fraudulently and wrongfully procured, in that one of the attorneys for the unsuccessful party became interested for -the other party and used his influence in procuring the judgment, was insufficient.</p>

<p>1. Vendor and Purchaser — Lien of Vendor — Enforcement— Receiver — Evidence.—In a suit by a vendor for the appointment of a receiver of property on which she has ia lien, evidence considered, and held insufficient to warrant granting the relief sought.</p> <p>2. Same — Insufficiency of Property. — Civil Code Prac., sec. 298, provides that, on motion of any party to an action who shows that he has a lien on any property, the right to which is involved in the action, ¡and that the property is in danger of being lost, removed, or materially injured, the court may appoint a receiver to take charge of the property. Section 299 provides for the appointment of a receiver of mortgaged property at the instance of the mortgagee for the same reasons, and, in addition, if the property is probably insufficient to discharge the mortgage debt. Held, that a receiver will not be appointed at the instance of the vendor, who has a lien for the purchase price, where the property is in no danger of being materially injured, though it may not be sufficient to satisfy the debt.</p> <p>3. Same — Rents and Profits. — The rents and profits of property cannot be set apart for the benefit of the vendor, unless done under authority of Civil Code Prac., sec. 298, providing for the appointment of a receiver if the property is in danger of being lost, removed, or injured.</p>

<p>CASE 55 — ACTION BY. J. M. ROBINSON, NORTON & CO., AGAINST THE CORSICANA COTTON FACTORY AND OTHERS.</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>POINT AND AUTHORITIES.</p> <p>1. Appellee pleads that there was no agency existing between it and English-Greene Company; that it sold the goods direct to English-Greene Company. Therefore if any agency is proven, it must be the agency of a factor as under the agency of a broker no attempt at a sale between principal and agent could occur.</p> <p>2. On 'all letter heads and invoices used by English-Greene Company in corresponding and- dealing with both appellant and. appellee, English-Greene Company held itself out as a commission merchant or factor.</p> <p>3. Stock lists of goods in ware houses, or bleacheries, at Rock-away, New Jersey and Clearwater, South Carliona were delivered by appellee to English-Greene Company.</p> <p>From this stock as shown by these lists the goods in question were sold.</p> <p>4. Appellant had made previous purchases of appellee through English-Greene Company acting as its factor viz., October 17. 1903, and had paid for these goods 'and received same promptly.</p> <p>5. The Court erred in assuming that appellant relied solely upon the letter heads of English-Greene Company.</p> <p>6. Appellee authorized English-Greene Company to change routing.</p> <p>7. It Was not necessary that English-Greene Company have had actual possession of the goods to create the agency of factor. Constructive possession was sufficient. (Slack v. Tucker, 23 Wall, 321, 90 U. S., 143; Gibson v. Stevens, 8 Howard, 384; Lucas v. Dorrein, 7 Taunt, 288; Spear v. Travers, 4 Camp., 251; Chaplin v. Rogers, 1 East, 192; Searle v. Keeves, 2 Esp., 598; Rive v. Austin, 17 Mass., 204; Harman v. Anderson, 2 Camp., 243; Wilkes v. Ferris, 5 Johns, 335; Zwinger v. Samuda, 7 Taunt, 261; Atkinson v. Malin, 2 Term Rep., 462; Hodgson v. Le Bret 1 Camp., 233; Hurry v. Mangles, 1 Camp., 452; Mantón v. Moore, 7 Term Rep.,. 67; Hollingsworth v. Napier, 3 Cow, 182; Pleasants v. Pendleton, 6 Rand., 473; Bentall v. Burn, 3 Barn and Cr., 423; Story on Sales, sections 311, 312, 390, 392; Ryail v. Rolle, 1 Atk., 171; Jewett v. Warren, 12 Mass., 300; Hinde v. Whitehouse, 7 East, 588; Barney v. Brown, 2 Vt., 374.)</p> <p>8. English-Greene Company at no time offered to buy from appellee but at all times offered to sell for appellee.</p> <p>Under these conditions and by this certain correspondence appellee accepted these identical orders by a telegram November 30, 1903, to English-Greene Company: “Your wire this day order accepted.”</p> <p>9. As early as January, 1904,English- Greene Company notified appellee that it had billed the goods out to appellant and was responsible for delivery. Yet appellee made no effort to disavow.</p> <p>On February 27, 1904, Robinson-Hughes Company, in whose warehouse the goods were stored, notified appellee that the goods belonged to appellant and had been paid for to its agents, English-Greene Company. Still appellee did not disavow.</p> <p>Principals must act promptly, and disavow, or they ratify. (1 Am. and Eng. Enc. of Law, 439 First Ed. (and cases cited) Clay v. S£ratt, 7 Bush, 334.)</p> <p>Therefore it is not necessary that English-Greene Company be a factor. Any agency whatever thus ratified would have bound appellee.</p> <p>10. Appellee ratified all the acts of English-Greene Company by its letter of March 5, 1904, to Robinson-Hughes Company.</p> <p>If a principal ratifies the acts of his agents, even for a moment, he is bound by them, and can no more deny the agent’s authority. (1 Am. and Eng. Enc. of Law, 434.)</p> <p>A principal that affirms and assumed the agency cannot after-wards disaffirm. (Whitfield v. Riddle, 78 Ala.., 99; McGeoch v. Hooker, 11 Ills. App., 649.)</p> <p>11. The court erred, in its statement “It is conceded that that English Greene Company did not have either actual or constructive possession of the goods.” Appellant no where conceded this. (Burton v. Goodspeed, 69 Ills., 237.)</p> <p>12. Extent and power of a factor defined by usage. (3 Am. and Eng. Enc. of Law, 319 First Ed.; Randall v. Kehloss, 60 Me., 37; Upton v. Mills Co., 11 Cush., 58; Smith v. Tracy, 36 N. Y., 79; Palmer v. Hatch, 46 Mo,, 585; Dennis v. Ashley’s Adm’r, 15 Mo., 453; Roosevelt v. Doherty, 129 Mass., 301.)</p> <p>13. Factors may sell in their own name the goods of their principals and bind their principals in the same way and to the same extent as if his own name were used. (3rd Am. 'and Eng. Enc. of Law, 321, First Ed.; Graham & Co. v. Duckwall, Fitch & Co., 8 Bush, 12; Slack v. Tucker, 23 Wall., 321; Burton v. Goodspeed, 69 Ills., 238; Blood v. Palmer, 11 Me., 414; Pinkham v. Crocker, 77 Me., 563; Miller v. Lea, 35 Md., 396; Spears v. Loague (Tenn.) 6 Cold., 420; Saladin v. Mitchell, 45 Ills., 79; Beardsley v. Schmidt, 98 N. W., 235; Haas v. Ruston, 14 Ind. App., 8.)</p> <p>1'4. A factor may receive payment for his principal. (Adams v. Frazier, 82 Fed., 211; Traub v. Milliken, 57 Me., 63; Butler v. Dorman, 68 Mo., 298; Higgins v. Moore; 34 N. Y., 417-419; Pickering v. Busk, 15 Bast, 38 Eng.; Seiple v. Irwin,-30 Pa. St., 513;, Rice v. Groffman, 56 Me., 434; Byrne, Ryan & Co. v. Schnoing, 6 B. M., 199; De Lazardi & Co. v. Hewitt, Allison & Co., 7 B. M„ 697; Graham v. Duckwall, 8 Bush, 12.)</p> <p>15. A purchaser may sue the principal on contracts made by an agent for an undisclosed principal. (Violett v. Powell’s Adm’r, 10 B. M., 347; Wilson v. Thompson, 1 Met., 123; Jones v. Johnson, 86 Ky., 530; Tutt v. Brown, 5 Littell, 1; Pope v. Meadow Springs Dist, 20 Fed., 35; Ford v. Williams, 2 How., 287; New Jersey Steam; Navigation Co. v. Merchants Bank of Boston, 6 How., 465; Graham v. Duckwall, 8 Bush, 12; Kayton v. Barnett, 116 N. Y., 625; Freund v. Hixon, 49 Pacific, 640; Elliott v. Bodine, 36 Atl., 1038; Harrison v. Schoff, 101 la., 463; Pentz v; Stanton, 10 Wend. (N. Y.) 271; Taintor v. Prendergast, 3 Hill, 72; Raymond v. The Mills Co., 2 Met. (Mass.) 319; Burton v. Goodspeed, 69 Ills., 237.)</p> <p>16. Graham v. Duckwall, 8 Bush, 12, distinguished.</p> <p>CLASSIFICATION.</p> <p>1. A broker is a mere negotiator between two parties and acts in the name of his employer. (Graham & Co. v. Duckwall, Fitch & Co., 8 Bush, page 12.)</p> <p>Mlerchandise brokers are those who negotiate the sale of merchandise, without having it in their possession or control. (American & Eng. Ency., vol. 4, page 961.)</p> <p>“A factor is a commercial agent to whom, t,bie possession of personal property is entrusted by and for the owner, to be sold for compensation, in pursuance of. the agent’s usual trade or business,”. (American & Eng. Ency. of Law, vol. 12, page 628.)</p>

CASE 56. — PROSECUTION AGAINST WILLIAM CALLAHAN FOR FIRING A DEADLY WEAPON AT RANDOM UPON THE PUBLIC HIGHWAY. Appeal from Leslie Circuit Court. T. Gr. Lewis, Special Judge. Defendant convicted and appeals. We submit that the court erred in its instructions to the jury. The meaning of the word “random” is: A roving motion or course without direction; hazard; chance; and the definition of “at random” is: without a settled point of direction; at hazard.

<p>CASE 57. — ACTION BY MARGARET CAIN’S ADMINISTRATOR AGAINST THE KENTUCKY & INDIANA BRIDGE AND RAILROAD COMPANY TO RECOVER THE ALLEGED VALUE OF HER DOWER INTEREST IN A CERTAIN LOT.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. What is an equitable lien. (Pomeroy’s Equity, vol. 3, page 242, sec. 1244; Ibid, vol. 3, page 232, sec. 1235; Ibid, vol. 3, page ■--, sections 1233, 1234; Ibid, vol. i, page 146, sec. 166.)</p> <p>2. Who is an innocent purchaser without notice, or a purchaser with notice. (Pomeroy’s Equity, vol. 2, page 36, sec. 604; Ibid, vol. 2, page 40-1, sec. 606; Ibid, vol. 2, page 45, sec. 608.)</p> <p>3. Nature and species of constructive notice. (Pomeroy’s Equity, vol. 2, page 46, sec. 609; Ibid, vol. 2, page 65, sec. 626; Ibid, vol. 2, page 66, sec. 627; White & Tudor’s Cases in Equity, Amer. notes, vol. 2, pages 144, 153 and 157; Ibid (LeNeve v. LeNeve), part 1, vol. 2, page 109; Johnston v. Gwathmey, 4 Litt, 321; Honore’s Exor. v. Bakewell, 6 B. M., 73; Pepper v. Thomas, 85 Ky., 542; Davis v. Logan, 9 Dana, 187; 94 U. S., 734; 18 U. S., 332; 93 U. S., 631; 101 U. S., 731; 14 Wall., 244; Graves v. Graves, 1 A. K. Mar., 109; Corn v. Sims, 3 Mete., 400-1.)</p> <p>4. The trial judge erred in his construction of defendant’s exceptions to commissioner’s report.</p> <p>5. The trial judge erred in dismissing petition based on his own misconstruction.</p> <p>6. Criticism, of the application made by the trial judge of Bailey v. Louisville Railway Co., 22 Ky. Law Rep., 1399, to the commissioner’s report.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The dower interest of the wife, being a life estate in one-third of the'real property of which -the husband was seized, ceases with the death of the wife. (Holmes v. McGee, 20 • Miss., 411; Stockwell v. Sargent, 37 Vt., 16.-</p> <p>2. The administrator, in the absence of debts of his decedent, being only concerned with -the personal property cannot enforce an action to recover an interest in real property belonging to his decedenti (A. & E. Ency. of Law, vol. 11, 1035, and numerous cases cited there.)</p> <p>3. By the agreement in the deed of 1886 the Kentucky & Indiana Bridge Company bound itself to secure the dower interest of Margaret Cain only in the event that the said Miargaret Cain, or her committee or friends, undertook to enforce the same.</p> <p>4. Assuming that the agreement in the deed of 1886 is in accordance with the' appellant’s contention herein still the Kentucky & Indiana Bridge Company has fully performed the same. (Section 2132, Kentucky Statutes.)</p> <p>5. The position of the appellee herein is entirely equitable.</p> <p>6. The appellee herein is a bona fide purchaser for value.</p> <p>7. The appellee was not put upon notice by agreements not appearing on the face of the deed, or by agreements in the deed which would not put a reaonably diligent person upon notice. (Bailey v. Southern Ry. Co. in Ky., 22 Ky. Law Rep., 1379.)</p> <p>8. Assuming that the -appellee w.as put upon notice, yet, as the Kentucky & Indiana Bridge Company had fully performed its part of the agreement there can be no claim upon the property in favor of Margaret Cain, or her representative.</p>

<p>Non-resident — What Constitutes — Action by — Bond for Costs.— Under Civil Code, section 616, requiring non-residents before commencing an action in this State, “to execute a bond for all costs which, may accrue in the action,” a temporary residence out of the State, even for an indefinite period, will not constitute the party a non-resident, if, at the time of departure from the State ánd during his absence therefrom, he has an intention of returning, and such intention may be shown by the declarations and acts of the party.</p>

<p>CASE 59. — MOTION MADE IN THE COURT OF APPEALS BY THE CITY OF LEXINGTON, IN THE CASE OF BELL’S TRUSTEE AGAINST THE CITY OF LEXINGTON FOR A JUDGMENT FOR 10 PER CENT. DAMAGES ON SAID JUDGMENT WHICH HAD BEEN AFFIRMED IN THE COURT OF APPEALS.</p> <p>On motion for damages in Appellate Court, motion overruled.</p>

<p>Counties — Action by Tax Payer — Taxes Illegally Collected— Remedy. — Counties iare subordinate subdivisions of the State and are not liable to suit unless authority can be found for it in the statute or it follows by necessary implication from some express. power given. Where taxes have been wrongfully collected by county ■ officials and are in hands of the collecting or disbursing officers, a direct action may be brought by the tax payer against the person holding the tax, but after the taxes collected have been paid out the tax payer is without remedy as against the county.</p>

<p>1. A verdict as to the amount due for goods purchased, based on conflicting evidence, will not be disturbed on appeal.</p> <p>2. Attachment — Quashing Grounds.' — In an action to recover for beer sold,„ a firm of saloon keepers, defendants were proved to be insolvent, and neither the firm nor the individual members had any property subject to execution, except their stock of liquors and saloon fixtures, which were attached on the ground that defendants had not enough property to satisfy the demand and the collection of it would be endangered by delay in obtaining judgment and a return of “No property found.” At the sale by the sheriff the stock and fixtures brought $327, and plaintiff recovered a verdict of $476. Held, that it was error to discharge the attachment.</p> <p>3. Same — Evidence.—In proceedings to discharge an attachment on a saloon stock and fixtures on the ground that they were insufficient to pay the debts of defendant, evidence as to what the stock would bring at retail is inadmissible, the issue being as to the value at a sale made at once; and evidence as to the value of licenses was inadmissible, as they were not subject to execution.</p>

<p>Insolvent Debtors — Settlement of Estates — Release by Creditor-Agreement With Debtor — Action to Enforce. — A statute of Minnesota provides, in substance, that “no creditor of an insolvent debtor shall receive any of the proceeds of the debtor’s estate unless he files with the clerk of the court a release to the debtor of all claims therein other than such as may be payable under the provisions of the act.” It was agreed by an insolvent debtor in said State, that if a certain creditor would file his claim! under said act and receive his pro rata share of the debtor’s estate that he would thereafter pay the balance of his claim, with/ interest, as soon as he could. In an action in this State to enforce said agreement, held — that it was not founded upon sufficient consideration, was fraudulent and not enforcible.</p>

<p>CASE 63. — ACTION BY N. M. FORD’S ADM’R AGAINST THE PADUCAH CITY RAILWAY FOR DAMAGES FOR CAUSING THE , DEATH OF PLAINTIFFS INTESTATE.</p> <p>Appeal from. McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>AUTHORITIES' CITED.</p> <p>1. On admission of expert testimony. (L. & N. R. R. Co. v. Scott’s Administrator, 22 Ky. Law Rep., page 30. (Latter part of decision.); Standard Oil Co. v. Tierney, 16 Ky. Law Rep., page 327; Claxton’s Ad’mr v. Lexington & Big S. R. R. Co., 13 Bush, page 636. (Latter part of decision.)</p> <p>2. On admission of speed ordinances. (Southern R. R. Co. v. Wood, 21 Ky. Law Rep., page 575; L. & N. R. R. Co. v. Dalton, 19 Ky. Law Rep., page 1318; Dolfinger & Co. v. Fishback, 12 Bush, page 474; Mahoney v. Dankart, 6 Am. Neg. R., 278, (Iowa); East St. L. L.' C. R. Co. v. Reams, 4 Am. Neg., 471, (111.); Chicago & Alton R. R. Co. v. O’Neil, 4 Am. Neg. R., 262, (111.); Missouri Pacific Ry. Co. v. Chick, 3 Am. Neg. R., 380, (Kan.); Laufer v. Gridgport T. Co., 2 Am, Neg. R., 310, (Conn.); I-Iarrison v. Sutter St. Ry Co., 2 Am. Neg. R., 403, (Col.); Graney Et. Ux. v. St. L. I. M. & S. R. Co., 1 Am. Neg. R., 290, (Mo.); Gathard v. Ala. G. S. R. R. Co., 11 Am. Neg. Cas., 33, (Ala.); Jackson v. Grand Ave. Ry. Co., 4 Am. Neg. Cas., 727, (Mo.)</p> <p>3. On instructions. (Chesapeake & Ohio R. R. Co. v. Keelin’s Ad’mr, 22 Ky. L. Rep., 1942; Floyd v. Paducah Ry. & Light Co., 73 S. W., 1122; Central P.ass. Ry Co. v. Chatterson, 14 Ky. Law Rep., 663; South C. & C. St. Co. v. McHue, 25 Ky. Law Rep., 1112; Flynn v. Louisville Ry. Co. 23 Ky. Law Rep., 57; Louisville Ry. Co. v. French & Co., 71 S. W., 436.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. “It requires no expert to know when a car is moving at a dangerous rate-of speed; to mbve it at any rate of speed is dangerous.” (L. & N. R. R. Co. v. McCombs, 21 Ky Law Rep., 1232.)</p> <p>2. “When a city adopts an ordinance regulating the speed of oars passing over its streets, one injured in collision with such cars cannot prove by such ordinance that the car was moving at a greater rate of speed than allowed.” (R. R. Co. v. Woods, 21 Ky. Law Rep., 575; L. & N. R. R. Co. v. Dalton, 19 Ky. Law Rep., 1318; Dolfinger v. Fishback, 12 Bush, 474; Ward’s Ad’mr v. I. C. R. R. Co., 22 Ky. Law Rep., 191.)</p> <p>3. “A street car has the right o£ way over streets traversed by it and it is the duty of travellers to give unobstructed passage to it.” (Central Passenger Ry. v. Chatterson, 14 Ky. Law Rep., 663.)</p> <p>4. “A motorman on a street car, seeing a person on the track, has a right to assume such person will leave it in time to avoid injury, and he need take no step until he, in the exercise of ordinary care, discovers that such person is not going to leave the track or is unaware of his danger.” (Ward’s Adm’r v. 1. C. RR. Co., 22 Ky. Law Rep., 191; Gorman’s Adm’r v. Louisville Ry., 24 Ky. Law Rep., 1938.)</p> <p>5. “It is highly culpable for one totally deaf to walk on a ear track over which he knows cars are constantly passing without keeping a look out for them.”</p>

<p>1. Escheat — Land Held by Corporations. — Ky. Const, sec. 192, provides that a corporation shall not hold any real estate except such as may be necessary for carrying on its legitimate business, for a longer period than five years, under penalty of escheat. Ky. Stats., 1903, section 567, contains the same provisions. Ky. Stats., 1903, Section 2971, being a part of the laws relating to the government of cities of the first-class, provides that so much real' personal, or mixed prop, erty in the city which, from alienage, defect of heirs, failure of kindred, or other causes, shall escheat to the commonwealth shall vest in the board for the benefit of the schools, and that-the board may, in the name of the commonwealth, sue for and recover thersame. Held, that the Legislature intended by the use of the words “other causes” in section 2971 to provide for the recovery of escheats by school boards happening upon events of a different class than' those specially mentioned in the section, hence the board might sue to recover land escheated by a corporation under Const. Ky., section 192, land Ky. Stat. 1903, section 567. ;</p> <p>2. Same — Grounds.—The state, in a just and proper exercise of its police power, may declare new causes' of escheat of lands within its territory. . .</p> <p>3. Statutes — Constitutional Law — -Special Legislation. — Ky. Stats., 1903, sec. 2971, providing that the use of -escheats in cities of the first class shall be for the public schools in such cities, and authorizing the school board to sue for the same, is not special legislation within the meaning of the constitutional inhibition, notwithstanding the state does not allow the same privilege to the school boards of other cities.</p>

<p>CASE 65. — ACTION BY ADDIE M. THROGMORTON AGAINST H. A. GRIGSBY’S ADM’R TO RECOVER ON A CHECK CLAIMED AS A GIFT FROM DECEDENT.—</p> <p>Appeal from Trigg Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>AUTHORITIES CITED. '</p> <p>1. Trust. (Williamson v. Yeager, &c., 13 Ky. Law Rep., 275-; Roche v. George’s Exr., 14 Ky. Law Rep., 584; Krankel’s Extr. v. Krankel, 20 Ky. Law Rep., 902; Barton v. Barton, 80 Ky., 215.)</p> <p>2. Bill of exchange. (Murry v. Clayborn, 2 Bibb., 300.)</p> <p>3. Limitation.’ (Baurer v. Baurer, 17 Ky. Law Rep., 242; Caldwell’s Adm’r v. Hampton, 21 Ky. Law Rep., 793.)</p> <p>CITATIONS.</p> <p>Parson’s on Contracts, 1st vol., 236; Curry v. Powers, 26 Am. Reports, 577; Simmons v. Cin. Sav. Society, 27 Am. Reports, 521; Harris v. Clark, 51 Am. Dec., Williamson v. Yeager, 91 Ky.; Roche v. George, 93 Ky., 609.</p>

<p>CASE 66. — ACTION BY ELIHU FORD AGAINST THE PROVIDENCE COAL COMPANY, TO RECOVER DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Webster .Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. Error in excluding testimony. (Elliott on Ev. secs. 672, 1030, 1031; Thompson on Neg. secs. 7747 and 7749; Hall v. Murdock, 114 Mich., 233; Fitts v. C. C. R. Co., 59 Wis., 323; Pullman Pal. Car Co. v. Harkins, 59 Fed. Rep., 932; Lou. Belt & Iron Co. v. Hart, 92 S. W., 951, 29 Ky. Law Rep., 310; McNamara v. Logan, 100 Ala., 187; Peterson v. Johnson, &c., Co., 70 Minn., 538; Cov. & C. Bridge Co. v. Goodnight, 60 S. W.j 415, 22 Ky. Law Rep., 1242; Claxton’s Adm’r v. Lex. & B. S. R. Co., 13 Bush, 641; L. & N. R. R. Co. v. Morton, 89 S. W., 243, 28 Ky. Law Rep., 355; Nadau v. White Riv. Ldmber Co., 76 Wis., 120, 20 Am. St. Rep., 29; Berberiehj v. Lou. Bridge Co., 20 Ky. Law Rep., 467; Civil Code Ky., sec. 596; Champ v. Commonwealth, 2 Met., 17; Boner v. Commonwealth, 19 Ky. Law Rep., 409; Loving v. Commonwealth, 80 Ky., 507; Blackburn v. Commonwealth, 12 Bush, 181; Ashcraft v. Commonwealth, 24 Ky. Law Rep., 488; Nicholson v. Rust, 21 Ky. Law Rep., 645.)</p> <p>Error in granting peremptory instruction. (Snydor, &c., v. Arnold, &c., 92 S. W., 289, 28 Ky. Lew Rep., 1250; City of Madison-ville v. Pemberton’s adm’r, 75 S. W., 229, 25 Ky. Law Rep., 347; Standard Oil Co. v. Eiler, 61 S. W., 8, 22 Ky. Law Rep., 1641; Thompson on Neg., sec. 425; Whites Personal Injuries in Mines, sec. 275; 2 Labatt Master & Servant, sec. 332a; Doyle v. Swift Iron Works, 5 Ky. Law Rep., 59; Merganthaler, &c., Basket Co. v. Taylor, 90 S. W., 968, 28 Ky. Law Rep., 923; Phister v. Peter, &c., 78 S. W., 458, 25 Ky. Law Rep., 1606; Ross-Paris Co. v. Brown, 90 S. W., 568, 28 Ky. Law Rep., 813; Stratton & Torstegge v. Mattingly, 89 S. W., 513, 28 Ky. Law Rep., 472; Ky. Freestone Co. v. McGee, 80 S. W., 113, 25 Ky. Law Rep., 2211; Merganthaler, &c, Basket Co. v. Lyon, 89 S. W., 522, 28 Ky. Law Rep., 471.)</p> <p>3. The amended petition should have been filed. Kearney v. City of Covington, 1 Met., 339; I. C. R. R. Co. v. Jackson, 25 Ky. Law Rep., 2087.)</p> <p>AUTHORITIES CITED.</p> <p>1, The court did not err in refusing to allow appellant to file amended petition. (Humphrey v. Hughes, guardian, 79 Ky., 487; Brown v. Van Cleave, 86 Ky., 381;' Section 134, Civil Code.)</p> <p>2. The court did not err in giving a peremptory instruction upon the issues presented and facts proven or avowed. (Wlison, Adm’r v. Chess & WymAnd Co., 25 Ky. Law Rep., 1655; Reiser v. Southern Planing Mill & L. Co., 24 Ky. Law Rep., 796; Mellott v. L. & N. R. R. Co., 19 Ky. Law Rep., 379; Reise v. Struck & Bro., 23 Ky. Law Rep., 1113; Caines’ Adm’r v. O. V. Telephone Company, 20 Ky. Law Rep., 855.)</p>

<p>Master and Servant — Injury to Servant — Negligence—Customary Equipment of Appliances. — A servant, injured by the starting of a dumb waiter while she was taking dishes from it, cannot recover of the master, on the ground that it was negligence not to have it equipped with a device preventing its being started while one was taking things from it, it never having been so equipped, and there being no evidence that they were usually or generally so equipped.</p>

<p>Taxation — Corporations and Corporate Property — Corporate Franchise. — Ky. Stats., 1903, sections 4077-4081, provide that certain corporations, including telephone companies, shall, in addition to other taxes, annually pay a tax on their franchises to the State and a local tax thereon to the county, incorporated city, town, and taxing district where the franchises may be exercised; and each corporation shall report the amount of tangible property in thie State, and where situated and assessed, and the fair cash value thereof; and the board of valuation and assessment is to fix the value of the capital stock of each corporation, and from such amount deduct the • assessed value of all tangible property assessed in the State— the remainder to be the value of its corporate franchise, subject to taxation in each county, incorporated city, town, or district through or into which thie lines of the company pass. Section 4020 provides that all property of domestic corporations, including intangible property, considered in determining value of franchises, shall be subject to taxation, unless exempt by the Constitution, and shall be assessed at its fair cash valué, Held, that the bonds, notes, accounts, cash, stock in other corporations, and other credits of a telephone corporation are intangible property, and not subject to assess-meat by the local assessor, but are to be considered by the board of valuation in fixing the franchise tax.</p>

<p>CASE 69 — MOTION BY PEOPLES’ BANK OF KENTUCKY’S ASSIGNEE AGAINST MATTIE C. BARBOUR, ETC., TO REVIVE A JUDGMENT AGAINST THEM IN THE CIRCUIT COURT.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Motion overruled, and plaintiff appeals.</p> <p>1. Where the question of whether an execution is sufficiently vital to furnish a point from which to measure the statute of limitation the execution is held, merely voidable, and the statute of limitation suspended.</p> <p>2. The issue of the execution is a ministerial act done by the clerk without notice to the defendant, and the only question of what shall be done under the execution can be controlled by the defendant, or is affected by his being alive or dead.</p> <p>3. The court cannot fail to observe, if it reads the cases, that while an execution is often spoken of as void, it .is void as tu passing title, or as to the levy, or sale, but that where the question has arisen as to limitation the courts hold it good to that extent — voidable only.</p> <p>AUTHORITIES CITED.</p> <p>Alexander v. Mullins, 16 Ky. Law Rep., 31; Burge v. Brown, 5 Bush, 535; Morgan v. Wfnn, 17 B. M., 233; Code 407; Civil Code, sec. 401, 407; Deppen, &c., v. Immohr’s Ex’r, 27 Ky. Law Rep., 43; Spalding v. Wathen, 7 Bush, 661; Hord v. Marshall, 5 Dana, 495; McDonalds, &c., v. Steinbridge’s Adm’r, 25 Ky. Law Rep., 962; 19 Rhode Island, 717, Hodges v. White; Elliott v. Knott, 14 Md.; Halsey v. Van Vliet, 27 Kans., 481; Speer v. Sample, 4 Walts, 367; Hodges v. White, 1897, 19 R. I., 717; Webb v. Mallard, 27 Tex., 80; Taylor v. Snow, 47 Tex., 462; Jones v. Davis, 24 Wis., 229.</p> <p>POINTS AND CITATION OF AUTHORITIES.</p> <p>1. An execution issued against the defendant who died after judgment and before execution issued, thiere being no revivor against their heirs or personal representative is a nullity, is void and of no effect. (American & English Encyclopedia of Law, 2nd Edition, page 612; Encyclopedia of Pleading and Practice, page 329; Cyc.-, vol. 17, page 991; Editorial Note, 61st L. R. A., page 353, section 6, Davis v. Young, 2nd T. B. Mon., 60; Briston v. Peyton’s Admx., 2nd T. B. Mon., 91; Calloway’s heirs v. Eubanks & Sons, 4th J. J. Mar., 279; Thomas, &c., v. Turner, 6th T. B. Mon., 57.)</p> <p>2. Said execution being void, and more than fifteen years having elapsed since a former execution, the statute of limitation applies, and prevents the judgment from being revived. (Statute of Kentucky, section 2514.)</p> <p>3. The motion to revive was properly overruled, because a greater length of time had elapsed between the death of the defendant and thie date of the motion to revive than is allowed by fhe Code for revivor. (Hale v. Commonwealth, 24 Ky. Law Rep., 1573; Apperson v. Fulkerson, 7 Ky. Law Rep., 452; Yowel, &c., v. Hustonville, &c., 16 Ky. Law Rep., 30.)</p>

<p>1. Indictments — Description of Offense — Sufficiency.—Where the words of a statute are descriptive of the offense, an indictment thereunder will be sufficient if it follow the language of the statute.</p> <p>2. Error in Name — Correction on Record. — Under section 125, 'Criminal Code, providing that “an error in the name of the defendant shall not vitiate the indictment if the true name he discovered and an entry made on the record,” an indictment returned against the “International Harvester Machine Co.,” when its true niame was the “International Harvester Co., of America,” which was corrected on the record by order of the.trial court, the proceedings thereon were valid under the Code.</p> <p>3. Pools and Trusts — Combination—Fixing Prices — Evidence—On the trial of an indictment for a violation of Ky. Stats., section '3915, prohibiting a combination having for its object the fixing, regulating or controlling the price of merchandise, manufactured articles or property of any kind sold in this State, and fixing a punishment therefor, where the evidence shows that a general agent had charge of five competing harvesting machine companies for certain counties in Kentnucky and Indiana, for which he wlas authorized to 'establish and did establish separate agents for the sale of each machine, at a fixed price, which was the same for each' of them, at which price the local lagents were each to account to the company for which he was selling, and neither was to sell outside of his territory on pain of forfeiture of his commission, Held — That this evidence was sufficient to authorize thie jury to find the defendant .guilty under the statutes.</p> <p>4. Foreign Corporations — Jurisdiction—Beginning and Completion of Offense. — -While the Legislature of 'this State has no extra-territorial power to punish crime, if a foreign corporation doing business in this State enters into or becomes a member of a pool or trust, beyond the limits of this State, to fix the price of property in this State, then the crime, put in motion in the foreign state, becomes complete in this State, when committed here in pursuance to the conspiracy formed in a foreign state; and this applies to corporations whether organized in or out of this State.</p>

<p>Parent and Child — Contract—Interest in Parents Estate — Sale— Validity — Advancement.—An agreement in writing between a Bather and son which recites: “in order to settle a suit between them and avoid litigation, and in consideration that my father has this day given me in cash $1,000 which I accept in full of all my present or future interest in his estate,” is not an enforceable contract; but in the settlement of the fathers estate the sum of $1,000 should be charged to the son as an advancement, whether it was so intended by the father or not.</p>

<p>CASE 72 — ACTION BY FRANCIS CLARK’S ADMINISTRATOR AGAINST THE FARMERS’ NATIONAL BANK OF RICHMOND, KY., INVOLVING THE OWNERSHIP OF A DEMAND BANK DEPOSIT.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>1. Although under the common law, an executor of an executor became the executor of the first testator, this rule in this State has long since been abrogated- by statute, so thiait even the executor of an executor cannot now administer the estate of the first testator, but an administrator de bonis non must now be appointed for the estate of the first testator. (Ky. Statutes, section 3890.)</p> <p>2. The fund in question in this case having been placed to Gregory’s credit as executor of Francis Clark, could not have been checked upon by Gregory in his individual capacity, nor could it have been subjected to the payment of Gregory’s individual debts.</p> <p>AUTHORITIES CITED.'</p> <p>Civil Code, sec. 113, sub.-sec. 7; Lucas v. Lucas, Adm’r, 18 Ky. Law Rep., 661; McClure v. Bigstaff, 18 Ky. Law Rep., 606; Blackstone Commentaries, vol. 2, page 506; Maraman v. Trunnell, 3 Met., 146; Jones v. Everman, &c., 15 B. Mon., 631; Schoolfield v. Rudd, 9 B. Mon., 294; 1 Williams on Executors, 656; National Bank v. Insurance Company, 104 U. S., 54; Gary v. Peoples. Nat. Bank, 4 Am. St. Rep.,.742.</p> <p>1. There is no contention here that an administrator of an executor is entitled to administer upon the estate of the first decedent. But the sole question is as to the right of possession of the money.</p> <p>2. We insist that an administrator of an executor is entitled to the possession of money which his intestate has collected and held as executor of another decedent.</p> <p>3. In this case the assets had been administered and converted into money and deposited in bank to the credit of the executor, J. W. Gregory. The title therefore was in J. W. Gregory. True he held it for the benefit of his decedent’s estate but the title nevertheless was in him, and upon his death it descended to his personal representative Goodloe.</p> <p>LIST OF AUTHORITIES CITED.</p> <p>Slaughter v. Sloan, 5 Mon. 19; W’arfield v.'Brank, 13 Bush, 77; Smithl v. Potts, 3 Rawle, 361; Graves v. Downey, 3 Mon., 353 (355); Carrick v. Carrick, 8 C. E. Green (N. J.) 364; Louisville & Nashville R. R. Co. v. Brantley’s Adm’r, 16 Ky. Law Rep., 691; Perry on Trusts, 5th Edition, sec. 264, 344; Amer. & Eng. Enc. of Law, 2nd Edition, vol. 11, pp. 981, 1341; Woerner, The American Law of Administration, Art. 321, 2nd Edition; Schouler’s Executors & Administrators, 2nd Edition, sec. 244, and following; Tomason v. Tomason, 1st Met., 51; Norwe.ll v. Norwell, 2 Green., (Me.) 75; Prestige v. Prestige, 28 Miss., 379; Cook v. Burton’s Heirs, Bush, 64; White’s Adm’r v. Carrico’s Adm’r, 2 Met., 232; Donaldson v. Lucas, 117 Ind., 139; Slasunaker v. The Farmer’s Bank, 103 Pa. St., 616; Sibbs v. Philadelphia Savings Fund Society, 153 Pa. St., 345.</p>

<p>1. Life Insurance — Application—False Statements — Instructions to Jury. — In an action on an insurance policy of one, who, on the trial is shown to have had tuberculosis prior to the issual of his policy, and who died thereof within a year thereafter, and who in his application stated that “neither he nor his parents, grand parents, uncles, aunts, brothers or sisters had ever had consumption in any form,” it was error in the court to instruct the jury “to find for the plaintiff unless you believe from the evidence that the 'answers to thie questions in the application, or some of them, were, without the knowledge of the company, untrue in some particulars, in which true answers would have stated facts or conditions which were reasonable and ordinarily calculated to shorten life or increase the probability of death of the insured, or which if known to the defendant company, it, acting naturally and reasonably, would not have entered into the policy contract.”</p> <p>2. Same. — The jury is not to judge whether if the truth fiad been stated, facts or conditions would .have been disclosed, which were reasonably and ordinarily calculated to shorten -life or increase the probability of the death of the insured, nor is it to determine whether if these matters had been disclosed the company, acting reasonably and naturally would have issued the policy.</p> <p>3. Same. — The court should have set out in the instruction the questions and answers set out in tihe application and should . then have told the jury that if these answers or any of them were substantially untrue, and if according to the usual course of the insurance business, the application would not have been accepted and the policy issued if the truth had been stated therein, they should find for the defendant, otherwise they should find for the plaintiff.</p> <p>4. Evidence — Wife of Insured — Competency—On the trial of an action against an insurance company on a policy issued to afather on the life of his son, the wife of the deceased son is a competent witness as to the health of her husband, or as to any matters not involving communications between her and her husband growing out of the marital relation.</p> <p>5. Expert Testimony. — On the trial of an insurance case as to whether the insured had consumption, no witness, not an expert, should be allowed to state his opinion that the insured had or had not consumption, or that he was in good or bad health. Such non-expert witnesses may toll what symptoms tihey saw, and let the jury determine what these symptoms indicated.</p>

<p>Taxation — Omitted Property — Action in County Court — -Appeal to Circuit Court. — On an appeal from a judgment of a county court to tbe circuit court in a proceeding therein by a revenue agent against a defendant for a failure to list omitted property for taxation in which the county* court adjudged that “the proceeding be dismissed,” the circuit court should proceed to try the case anew, and upon the evidence determine whether or not the property is liable to assessment, and if the court concludes it is liable, it should remand the case to the county court with directions to enter judgment assessing the omitted property which the circuit court may adjudge to be liable, and for what years, leaving to the county court the fixing of the fair cash value thereof.</p>

<p>1. Specific Performance — Damages.—Where a contract for the sale of a lot required the vendee to construct a building within 18 months and erect a party wall on the east side, adjoining the vendor’s remaining vacant property, and in a suit to enforce performiance of such stipulation plaintiff neither alleged nor proved that he had lost the sale of his adjoining lot through defendant’s failure to erect the wall, nor that plaintiff intended himself to erect a building on the lot, he was not entitled to recover damages for defendant’s failure to erect the wall within the time prescribed.</p> <p>2. Same. — Where a deed to a vacant lot contained a covenant obligating the vendee to erect a building on the land conveyed, .together with a party wall adjoining the vendor’s remaining premises, and the vendee failed to erect the wall within the time prescribed, the vendor. suing for specific performance, was entitled to a judgment for the cost of the wall in case the vendee should fail to perform within the time allowed by the court.</p> <p>3. Same — Judgment—Operation and Effect. — Where, in a suit to compel performance of a covenant to construct a building and a party wall on a lot conveyed, complainant recovered a judgment for the cost of the wall in case defendant should fail to erect it within the time limited by the court, complainant, if he collected the judgment and failed to erect the wall and the same should afterwards be erected by defendant, would not be entitled to use the wall without paying for the privilege, while if complainant erected the wall after collecting the judgment, defendant or his vendee would be permitted to use it without making further contribution.</p>

<p>1. Bridges — Erection.—Where a town is authorized to build a bridge across a stream it is its duty to build a more permanent and substantial structure than a pontoon bridge.</p> <p>2. Same — Refusal to Build Bridge — Lack of Funds. — The refusal of a town, because of a lack of available funds, to rebuild a bridge which has been washed away, will be sustained though a portion of the inhabitants are greatly ■ inconvenienced thereby.</p> <p>3. Mandamus — Discretion of Council — Formality of Determination. — The council being the legislative branch of a town government as long as it acts within statutory authority in the management of the town affairs, its acts are not subject to judicial control, and the action of ia town council in refusing to rebuild a bridge which had been washed away was not subject to review by mandamus.</p>

<p>CASE 77. — ACTION BY J. R. RICHARDSON AGAINST THE MONARCH OIL,, GAS & COAL CO., TO CANCEL A MINERAL LEASE.</p> <p>Appeal from Wayne Circuit Court,</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>Our contention is that after thie lessor of mineral lands accepts the annual rental agreed to be paid therefor by the lessee from year to year, he cannot bring suit to cancel the lease for failure of lessor to develop the mineral rights until there has been a default by the lessee both in drilling and paying rental, or until after he refuses to accept the rental and gives notice that he wants his land drilled, which his lease contract authorized him to do.</p> <p>Oil operators as a rule are men of experience in their line of business. Their contracts are drawn with a view of serving, their interests. The lack of experience of the former invites deception. Speculation and peculation should be discouraged and those who seek by these means to advance their own interests should learn that the oil industry of the State, now in its infancy, will be protected by the courts and allowed unhampered development.</p> <p>Our contention is:</p> <p>1. Contract with the contract involved demands the operation of the leased premises.</p> <p>2. It follows as a corollary that the lease is not complied with by the payment of rental.</p> <p>3. The failure of appellant to develop the leased premises gave the appellees the right to avoid the lease at any time, without notice. ■</p> <p>AUTHORITIES CITED.</p> <p>Thornton, secs. 126 to 130; Bryan, sec. 182; Donahue, chap. 13, secs. 1 and 4; Huggins v. Daley, 48 L. R. A., 320; Armitage v. Mt. Sterling Oil & Gas Co., 80 S. W., 177; Berry v. Prisbie, 86 S. W., —.</p>

<p>Principal and Surety — Rights of Surety as to Co-Surety. — One conveyed to appellant and appellee his equity of redemption in land sold under a mortgage, to indemnify them against loss as sureties on hiis bond as a guardian, and, becoming indebted to his ward, was sued and execution issued against the equity of redemption on a judgment against him for $331. Appellant purchased it at sheriff’s sale for $175, which was applied to the ward’s claim, appellant and appellee each paying $78 to discharge the balance. Appellant redeemed the property. Held, that the purchase by appellant did not redound to appellee’s benefit, and no lien attached to the property in his favor for the amount paid by him towards the discharge of the guardian’s debt.</p>

<p>CASE 79. — ACTION BY LEONARD HOLLAND AGAINST LULA BERRYHILL FOR SLANDER.</p> <p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Infants over 14 must be served personally with process. (Civil Code, 48 and 52.)</p> <p>2. Failure to appoint guardian ad litem renders judgment erroneous merely and not void. (Oliver v. Park, 39 S. W., 423, 19 Ky. Law Rep., 179; Kellar v. Wilson, 90 Ky., 350, 14 S. W., 332; Simmons v. McKay, 3 Bush, 25; Pond v. Doneghy, 18 B. Mon., 558; Smith v. Ferguson, 3 Mete., 424; Richards v. Richards, 10 Bush, 617; Norfleet’s Adm’r v. Logan, 54 S. W., 713, 21 Ky. Law Rep., 1200; Myers v. Pedigo, 72 S. W., 734, 24 Ky. Law Rep., 1923.)</p> <p>3. Proper procedure in case of erroneous judgment. (Sections 391 and 518, sub-sec. 5, Civil Code; see also case of Camp v. Second Nat. Bank, 3 Ky. Law Rep., 326; Jaggard on Torts, p. 159; Drane, &c., v. Pauley, &c., 8 Ky. Law Rep., 530; Hill v. Becker, 9 Ky. Law Rep., 619; Rogers, &c., v. Aulick, 2 Duvall, 419; Nor-fleet’s- Adm’r v. Logan, 21 Ky. Law Rep., 1201; Allen &c., v. Troutman’s Heirs, 10 Bush, 62; Park v. Bolinger, 10 Ky. Law Rep., 306; Louisville Tobacco Warehouse Co. v. Wood & Bumgardner, 26th Ky. Law Reporter, 772.)</p> <p>QUESTIONS MADE AND AUTHORITIES CITED.</p> <p>The infancy of the defendant not being disclosed, and the judgment being for tort, he had no remedy either by appeal, or motion for new trial and the judgment was void. (Civil Code, section 391; Civil Code, section 518-5.)</p>

<p>Telephones — Damage by Lightning — Question for Jury. — A patron of a telephone 'company notified the company to remove the box and wires from his house. The company removed the box, but left the wires so exposed that they were struck by lightning, damaging the house. In an action by the owner of the house for damages, Held, That it was a question for the jury whether the company had used such care as might be reasonably expected of a person of ordinary prudence in '■ failing to remove the wires, and whether the plaintiff, by his want of care, contributed to thie loss by suffering the wires to remain in the house, when by ordinary care he should have known of the danger.</p>

<p>CASE 81. — ACTION BY GEORGE DINNING AGAINST JOE L. CONN’S ADMINISTRATOR AND OTHERS TO ENFORCE THE PAYMENT OF A JUDGMENT AGAINST THE ESTATE OF THE DECEDENT.</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (Second Divison).</p> <p>Samuel B. Kirby, Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>In this case relief is sought against the common creditors of the decedent alone, and not against the administrator. That the creditors who have been wrongfully paid more than their pro rata share can be compelled to so far refund as to accomplish an equalization among all creditors of like dignity and standing there can be no doubt, and the one question 'to be determined is whether the circuit court of' Jefferson county has jurisdiction to make the necessary orders. We think it has.</p>

<p>CASE 82. — ACTION BY R. P. BRACKEN AND OTHERS AGAINST W. E. NICOL TO REQUIRE HIM TO PAY THE PAR VALUE OF CERTAIN BANK STOCK ISSUED TO HIM.</p> <p>Appeal from Simpson- Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for defendant. Plaintiffs appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A director whose duty it is to see that the bank complies with the law and keeps -a stock book is estopped from pleading the bank had no such book. (Beals v. Buffalo Ex. Metal Co., 49 N. Y. App. Diy., 589; Cook on Corp., note on p. 561.) Where the stock itself or any statute provides for a transfer on the books of the company the transfer should be so made to relieve the stockholder. (A. & E. Ene., 2nd Ed., vol. 26, p. 1039; A. & E., 2nd Ed., vol. 26, p. 881; A. & E. Enc., 2nd Ed., vol. 26, p. 884; Cook on Corporations, p. 570; Cook on Corporations, p. 853; Morse on Banks and Banking, sec. 679; Johnson v. Laflin, 103 U. S., 800; Kreigor v. Hanover National Bank, 72 Miss., 462; Ky. Stats., sec. 545, 546, 595.)</p> <p>2. What the stockholder must do in order to get the transfer on the books. (Earle v. Carson, 60 L. R. A., 266; Cook on Corporation, p. 560.)</p> <p>1. Our contention is that the responsibility of the stockholder ceases when he has sold and delivered the assigned certificate of his stock in good faith, and directed the transfer to be recorded. Especially is this true when the official upon whom he has the right to rely agrees to make the transfer, and he had no reason to suspect that .hie will not comply with his promise.</p> <p>2. The failure of a bank to keep a book, and of its executive officers to enter a transfer of stock therein, should not be visited upon the head of an innocent stockholder who in good faith has 'done everything which he was advised by the cashier was necessary in order to pass the title to the stock.</p> <p>.3. Courts will lean to that construction of the statute which will uphold a transaction as consummated when the good faith of all the parties is unquestionable.</p> <p>4. The construction contended for by appellant is not only opposed to the rule of the courts, but it likewise conflicts with the interpretation of statutes in derogation of common right.</p> <p>5. The statutes of limitation of two years, and five years, are plead and relied on, and are a complete bar to the action.</p>

<p>1. Municipal Corporations — Maintenance of Street — Highway Bought by County. — Where a county buys all the turnpikes in the county, under the free turnpike act (Ky. Stats., 1903, section 474Sb), the part of one lying within a city must be maintained by it, as a public way thereof, though it has not ■exercised control over it.</p> <p>2. Bridges — Maintenance—Liability of County and City. — Where a part of á turnpike within a county, bought by it under the free turnpike act (Ky. Stats., 1903, section 4748b), is a bridge, over a creek, the thread of which is the dividing line between a city within the county and the rest of the county, the entire expense of maintaining the bridge, which is entirely outside the settled part of the city, and is unnecessary for city purposes, and is essentially a county bridge, being required only for the travel to and from the county, is on the county.</p>

<p>CASE 84. — PROSECUTION AGAINST JAMES A. SHIPP FOR MURDER.</p> <p>Appeal from Taylor Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Defendant convicted of murder and appeals.</p> <p>1. We submit that the testimony of the appellant and his son to the effect that on Saturday before the killing the wife of appellant admitted criminal intimacy with the deceased was competent for the purpose, not of proving the fact of such intimacy, as no such issue, was involved, but for the purpose of showing the mental condition of the husband when he met the deceased for the first time on the Monday following. Such admission if false in fact was as effective to produce the frenzy, or “sudden heat and passion” as if it were in fact true.</p> <p>2. The wife not having testified her reputation is not involved and the attempt to show that her general reputation for morality was so good that she could not likely have made such a confession involves a proposition unheard of in the law of evidence.</p> <p>3. It was competent to impeach appellant and his son so as to show that the wife made no such confession, but it was not competent to prove the truth or falsity of the facts alleged to have been imparted by the wife to her husband.</p> <p>4. The true issue is did the wife make such admission, and the testimony of appellant and his son that she did, can only be destroyed in the usual way of impeachment. (State v. Slaten, 114 N. C., 818; Wall v. State, 125 Ind., 400; Omer v. Commonwealth, 95 Ky., 363; Massie case, 16 Ky. Law Rep., 791.)</p> <p>1. To entitle the defendant to a change of venue in a criminal case the burden is on him, at least, to make out a prima facie case. (Wilkerson v. Commonwealth, 88 Ky., 29; Hanson v. Commonwealth, 10 Ky. Law Rep., 1055.)</p> <p>2. The trial court has a sound discretion in determining whether or not a motion for a change of venue shall be sustained, and its conclusions will not be disturbed unless palpably abused. (Howard v. Commonwealth, 15 Ky. Law Rep., 873; Wren v. Commonwealth, 8 Ky. Law Rep., 418; Hanson v. Commonwealth, 10 Ky. Law Rep., 1054; Crockett v. Commonwealth, 100 Ky., 382; Mount v. Commonwealth, 27 Ky. Law Rep., 788.)</p> <p>3. An error pointed out for the first time in a motion for a new trial will not be considered on appeal. (Ill Ky., 644; 22 Ky. Law Rep., 638; 23 Ky. Law Rep., 1231; 18 Ky. Law Rep., So'7.)</p> <p>4. The record does not disclose that there was an objcc^-n to the order directing the summoning of the jury from ano.h^r county.</p> <p>5. It is submitted that the good character of a party' accused of crime, satisfactorily established, is an ingredient which ought to be submitted to the jury.</p> <p>6. We submit that the testimony as to the good character of appellant’s wife was competent to contradict the testimony of appellant and his son as to her alleged confession of infidelity to her husband. (Commonwealth v. Hourigon, 89 Ky., 35; Commonwealth v. Snapp, 90 Ky., 585; Scott v. Commonwealth, 94 Ky., 511; Howard v. Commonwealth, 80 S. W., 211.) •</p>

<p>1. Insurance — Life Policy — Conditions—Violation of Law — Self-Defense. — Where insured shot and killed Spinks in self-defense, and was also shot and killed by Spinks, insured did not die in consequense of a violation or attempted violation of the laws of the State or of the United States, within a benefit certificate precluding a recovéry under such circumstances.</p> <p>2. Appeal — Review—Verdict—Evidence.—The Court of Appeals will not interfere with the verdict of a properly instructed jury, unless it is flagrantly against the evidence.</p>

<p>CASE 86. — FORCIBLE DETAINER PROCEEDING BY MARY L. ROSE AGAINST R. R. RICH.</p> <p>Appeal from Kenton Circuit Court</p> <p>W. McD. Shaw, Circuit Judge.</p> <p>Judgment for plaintiff.</p> <p>1. We submit that appellants plea of estoppel should have been sustained and a judgment for him should have been entered by the court below. (Masonic Savings Bank v. Ronald’s Executor, 1 Ky. Law Rep., 273; Rhodes v. Rhodes, 18 Ky. Law Rep., 916; Hill v. Spaulding, 21 Ky. Ky. Law Rep., 1383; Morehead v. More-head, 16 Ky. jaw Rep , 34.)</p> <p>2. A party cannot take two inconsistent positions.</p> <p>3. A cause of forfeiture in a lease may be waived. (Johnson v. Whittlemore, 27 Mich., 466; Wheeler & W. Mfg. Co. v. Teetzlof, 53 Wis., 220; Deyon v. Jamison, 33 Mich., 94.)</p> <p>SUMMARY.</p> <p>1. After suit is brought it is not a question of waiving forfeiture' — but one of abandoning her suit.</p> <p>2. The allegations of the petition and the terms and effect of the judgment of October 28, 1904, were not of such a character as to amount to a final judgment regarding the year’s rent. It adjudged nothing regarding the year’s rent upon its merits, it merely holds all up as security to await further pleading at the end of the year or end of the tenancy, and then apply sufficient to pay any which may tjien be shown to be owing. There is in it neither certainty nor finality.</p> <p>3. If the allegations of the petition and terms and effect of the judgment were of the character claimed by defendant, they do not operate to estop the plainiff from proceeding in this case. Defendant has introduced no proof to show that he was led by reason of the character of the petition and judgment to believe that plaintiff intended to abandon her forcible detainer suit, and that relying upon that abandonment, he had acted — made changes in his affairs because thereof; that he has been or will be injured because of those changes if plaintiff be permitted to further prosecute this forcible detainer case.</p> <p>These things are essential to an estoppel. But defendant has proven none of these things. As to the estoppel the burden is on the defendant, and defendant has not proven that a single one of these essentials exist, whereas his testimony must show all.</p> <p>4. The right of entry for forfeiture was open to plaintiff. She elected to forfeit. She made final her election by instituting this suit. She was, and is, entitled to proceed with this suit, unless since its institution she has</p> <p>(a) For a consideration agreed to abandon it, or she has '</p> <p>(b) done something which has deceived the defendant into the belief that she had abandoned it, and that he so believing acts on it and cannot now save himself from loss caused or threatened if she be permitted to proceed, and so she should be estopped.</p>

<p>1. Insurance — Mutual Companies — -Assessments—Actions—Petition. — A petition in an action by an insurance company organized under Ky. Stats., 1903, c. 32, subd. 5 (sections 702-722), to recover from a delinquent policy holder the amount of any assessment due, which does not aver the amount of the assessment, the necessity and purpose of it, and when and by whom it was made, is insufficient.</p> <p>2. Same — Assessments—Notice—Tender of Policy for Cancellation. — Ky. Stats., 1903, section 711, relating to insurance companies provides that the secretary shall, within 30 days after any assessment has been made, notify every member of the corporation by written notice, stating the amount due the corporation from the members, the time when, and to whom, it shall be paid, and the use to be made of the money collected. Held, that this does not require notice to a member who tenders his policy for cancellation.</p>

<p>CASE 88. — ACTION BY ALICE WESTCOTT, ADMINISTRATRIX OF EDWARD WESTCOTT, DECEASED, AGAINST THE CITIZENS’ TELEPHONE CO., FOR CAUSING THE DEATH OF HER INTESTATE.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for plaintiff.</p> <p>SUMMARY.</p> <p>This appellant believes that it should have a reversal of this cause — ■</p> <p>1. Because, the trial court refused to set aside the swearing of the jury after its minds had been prejudiced by the statement of counsel for plaintiff that the decedent had left a widow and six small children, “the youngest one a baby out there in arms.”</p> <p>2. Because, the trial court permitted the widow of intestate to testify as to the children the intestate left.</p> <p>3. Because, there was no proof of intestate’s power to earn money.</p> <p>4. Because, the proof does not justify the measures of damages by the instruction for same.</p> <p>5. Because, the intestate is clearly shown to have contributed to his own death by his own acts and unless he had so acted his death would not have occurred.</p> <p>6. Because, the damages are excessive and show plainly that from all the facts and from all the occurrences at the trial the jury was influenced by passion and prejudice.</p> <p>7. Because, the co-defendant by the proof was, if appellant was guilty of negligence, equally as guilty, and the fact that the jury found against one only, a self-evident fact that passion and preju dice influenced the jury.</p> <p>8. Because, the wire of appellant was interfered with, moved and changed without appellant’s knowledge or consent and at a time so shortly before the accident that it could not by the utmost care have known it.</p> <p>9. Because, the instructions of the court are not the law in the case.</p> <p>AUTHORITIES CITED.</p> <p>Standard Oil Company v. Tierney, 92 Ky., 369; Louisville & Nashville R. R. Co. v. Shumaker’s Adm’r, 21 Ky. Law Rep., 803; L. & N. Ry. Co. v. Eakin’s Adm’r, 20 Ky. Law Rep., 819; City of Chicago v. O’Brennan, 65 Illinois, 163; L. & N. Co. v. Fox’s Adm’r, 20 Ky. Law Rep., 81; L. & N. R. R. Co. v. Mulfinger’s Adm’x, 26 Ky. Law Rep., 3; Buey’s Adm’x v. Chess & Wymond, 27 Ky. Law Rep., 198; Carey v. Samuels & Co., 28 Ky. Law Rep., 6; City of Owensboro v. York’s Adm’r, 25 Ky. Law Rep., 1397 and 1439; L. & N. R. R. Co. v. Berry’s Adm’x, 96 Kentucky, 604; L. & N. R. R. Co. v. Long, &c., 94 Kentucky, 410; L. & N. R. R. Co. v. Creighton, 20 Ky. Law Rep., 169; Board of Internal Improvement for Lincoln County v. Morris’ Adm’r, 23 Ky Law Rep., 1885; Illinois Central R. R. Co. v. Watson’s Adm’r 25 Ky. Law Rep. 1360.</p> <p>THOS. L. MICHIE and PHILIP of counsel.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>“Res ipsa loquitur.” (Delahunt v. United Telephone and Telegraph Co., 64 Atlant., 515.)</p> <p>1. Utmost pains commensurate with danger. (Lewis’ Adm’r v. Louisville Electric Light Co., 30 S. W., 992, 21 Ky. Law Rep., 34; Macon v. Paducah Street Ry. Co., 62 S. W., 496, 23 Ky. Law Rep., 46; Thomas’ Adm’r v. Gas Company, 56 S. W., 153, 21 Ky. Law Rep., 1690; Crosswel on Electricity, chap. 17, sections 383 to 395.)</p> <p>2. "Where accident occurs there is a prima facie case. (City Electric Railway Company v. Conery, 31 L. R. A., 570; McKay v. Southern Bell Telephone Company, 31 L. R. A., 589; Western Union Telegraph Company v. Nelson, 31 L. R. A., 572; Ashland Coal Company v. Wallace’s Adm’r, 42 S. W., 742, 19 Ky. Law Rep., 1028; Haynes v. Raleigh Gas Company, 114 N. C., 203, 26 L. R. A., 810; Henning v. Wesiern Union Telegraph Company, 41 Fed., 864; Ahern v. Oregon Tel. Co., 24 Ore., 276, 22 L. R. A., 635; Western Union Telegraph Company v. Thorn, 22 L. R. A., 635, 64 Fed., 287.)</p> <p>3. Contributory Negligence. (East Tenn Telephone Company v. Simm’s Adm’r, 36 S. W., 171; Southern Railroad Co. v. Goddard, 89 S. W., 677, 28 Ky. Law Rep., 523; Fugate v. City of Somerset, 29 S. W., 970, 16 Ky. Law Rep., 807; Finnegan v. Falls River Gas Company, 159 Mass., 311.)</p> <p>4. Measure of Damages. (Louisville and Nashville Ry. Co. v. Shumaker’s Adm’r, 21 Ky. Law Rep., 803; Louisville and Nashville Ry. Co. v. Bakin’s Adm’r, 20 Ky Law Rep., 742; Soulhern Ry. Co. v. Evan’s Adm’r, 23 Ky. Law Rep., 568, 63 S. W., 445; Standard Oil Company v. Tierney, 92 Ky., 377.)</p> <p>5. Evidence as to family. (Louisville and Nashville Ry. Co. v. Taafe’s Adm’r, 50 S. W., 850, 25 Ky. Law Rep., 64; C. N. O. & T. P. Ry. Co. v. Sampson’s Adm’r, 30 S. W., 14, 16 Ky. Law Rep., 819; Railroad v. Kelly’s Adm’r, 38 S. W., 852, 18 Ky. Law Rep., 819.)</p> <p>6. Evidence of gross neglect. Degree of negligence is a question for jury. (Louisville and Nashville Ry. Co. v. Mitchell, 87 Ky., 327, 8 S. W., 706; JSeedham v. Louisville and Nashville Ry. Co., 85 Ky., 423, 3 S. W., 797; C. N. O. & T. P. Co. v. Shelby, 85 Ky. Law Rep., 527; Greenwood v. McHenry Coal Co., 14 Ky. Law Rep., 336.)</p> <p>7. Evidence of earning only an item for the consideration of jury. (Louisville and Nashville Ry. Co. v. Scott’s Adm’r,, 56 S. W., 574,-Ky. Law Rep., -; Louisville and Nashville Ry. Co. v. Mullfinger’s Admrx., 80 S. W. 502; Chesapeake and Ohio Ry. Co. v. Lang’s Adm’r, 38 S. W., 504, 18 Ky. Law Rep., 794; Chesapeake and Ohio Ry. Co. v. Dupee, 68 S. W., 15, 24 Ky. Law Rep., 94.)</p>

<p>CASE 89. — ACTION BY SALLIE CHAPPELL AND OTHERS AGAINST HENRY- CHAPPELL AND OTHERS TO SET ASIDE THE SALE OF CERTAIN SHARES OP STOCK.</p> <p>Appeal from Leslie Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment' for defendants. Plaintiffs appeal.</p> <p>POINTS AND AUTHORITIES'.</p> <p>1. “Sales by administrator or executor are void, if made without order of court, or in any manner not authorized by law; and property so sold, may be recovered by the distributees or legatees from the parties holding it.” (Ware v. Houghton, 93 Am. Dec., 258.)</p> <p>2. “Sales by administrators must be made in a manner provided by law; ,and if made at a place or time otner than those prescribed by the statutes or decree, they are not only irregular but void.” (Triplett v. Mizo, 94 Am. Dec., 313.)</p> <p>3. “Void administration sale is not rendered valid against heirs, because they receive the benefit of the proceeds, particularly so, when they are minors.” (Valle v. Fleming, 61 Am. Dec., 566.)</p> <p>4. “Executor has no right to borrow money for the estate of his testator, unless exi>ressly authorized by the will.” (Lucich v. Medin, 93 Am. Dec., 376.)</p> <p>5. We feel that the first section of our argument has been overwhelmingly sustained, and our position therein outlined established by the authorities above quoted, and the various extracts therefrom copied into this brief.</p> <p>AUTHORITIES RELIED ON.</p> <p>Kentucky Statutes, 4707; “Cyc..” vol. 18, p. 356; “Cyc.” vol. 18, p. 251 and note 19, p. 252; Citizens Railway Co. v. Robbins, 12 L. R. A., 501, 502; W. S. Sup. Ct. Rep., 34-37 (10 Peters) Ventrees, et al., v. Smith, 387 (173); Emor v. James, 4 Mum., 194; 7 Mass., 488; U. S. Cir. Ct. of Appeals, 53 L. R. A., 684 687, on the liability of corporations for transferring stock, on its books without full authority; Ware v. Houghton, 93 Am. Dec., 258; Triplett v. Mize, 94 Am. Dec., 313; Valle v. Fleming, 61 Am. Dec., 566; Lucuch v. Medin, 93 Am. Dec., 376; Am. and Eng. Ene. of Law, 1st Ed., pp. 615, 616; 4 Johns Ch, 368; 6 Cond. Rep., 387; Com. Dig. Tit. Market E.; 1 Johns Rep., 478; St. Romes v. Levee Cotton Press Co., U. S. Sup. Ct. Rep., 290; Western Union Tel. Co v. Davenport, 97 U. S., 369 (24, 1047); Loring v. Salisbury Mills, 125 Mass., 138; Pratt v. Taunton Copper Mfg. Co.. 123 Mass., 110; Pennsylvania R. R. Co.’s Appeal, 86 Pa., 80; Loring v. Frue, 104 U. S., 223 (26, 713); Salisbury Mills v. Townsend, 109 Mass., 115; 31 La. Am., 224, 229; Civil Code, 474 (466); Civil Code, 3506 (3472); Civil Code, 3536, (3501), 3544, (3508); Case v. Citizens’ Bank, 100 U. S. 446 (25, 695); “Cyc.,” vol. 18, p. 763; Wyman v, Campbell, 31 Am. Dec., 691; 52 Am. Dec., 399, Worthy v. Johnson; Williamson v. Williamson, 41 Am. Dec., 636; Hamilton v. Pleasants, 98 Am. Dec., 551; “Cyc.,” vol. 18, p. 358; Am. Dig. (Cen. Ed.) vol. 22, sec. 634; Donaldson v. Hull, 7 Mart. (U. S.) 113; Am. Dig. (Cen. Ed.) vol. 22, p. 995; Herron v. Marshall, 24 Tenn., 443; 42 Am. Dec., 444; Am. Dig., vol. 18, sec. 649; Trimble’s Executrix v. Lubus, 94 Ky., 304; Am. Dig., vol. 22; French v. Curier, 47 N. H., 88; Pratt v. Taunton Copper Co. (123 Mass., 110) 25 Am. Rep., 37; Stevenson Heirs v. MeReary, 51 Am. Dec., 102; Geyser-Marion Gold Mining Co. v. Charles B. Stark, 53 L R. 684; Lowry v. Commercial &' Farmers’ Bank, Fed. Cas. No. 8581; Albert v. Savings Bank of Baltimore, 1 Md Ch., 407; City of Baltimore v. Normen, 4 Md., 352; Marbury v. E. H. Len, 20 Am. St. Rep., 467; Weymer v. Second National Bank, 57 Ind., 198; Saltus and Saltus v. Everett, Am. Dec., vol. 32, p. 540; Am. Dec., vol. 32, p. 551; Am. Dec., vol. 32, p. 55E; Williamson v. Nerle Am. Dec., vol. 25, pp. 65, 616; Brown v. The Howard Fire Insurance Co., Am. Rep., vol. 20, p. 90.</p> <p>SYNOPSIS OV POINTS AND AUTHORITIES.</p> <p>A decree of court to sell the stock in controversy was not necessary, as it was not dividend-paying stock.</p> <p>1. Ordinarily an administrator has full power to sell stock as other personalty. (Cook on Corporations, sections 329, 393; Kentucky Statutes, section 3853.)</p> <p>2. Section 4707 of Kentucky Statutes, which requires a decree of court for a personal representative to sell “dividend-paying stocks, bonds and other security,” refers to stocks, etc., that are paying dividends, and not, as appellants claim, to the stock of commercial corporations in general m contrast with eleemosynary corporations.</p> <p>(a) Interests in eleemosynary corporations are not subjects of barter and sale.</p> <p>(b) “Stock” is not an incident of eleemosynary corporations; it represents money value, and in fact, as well as by the express terms of our statute, applies solely to corporations that are run for a profit. This is also shown by its being linked with “bonds and other security.” (Kentucky Statutes, sections 879, 883.)</p> <p>(c) Section 4706 uses in the same sense the terms “dividend-paying securities,” showing the same division of securities (which are necessarily commercial only) into those which produce an income and those which do not.</p> <p>(d) Section 4707 itself recognizes this classification, when in its earlier part it gives to trustees a general power to sell “stocks, bonds, etc., and then later restricts that power in the case of one kind of trustee — a personal representative — selling one kind of stocks, bonds and other security — those that are dividend-paying.”</p> <p>(e) This court in Trimbles’ Adm’r v. Lebus, etc., 94 Ky., 304, expressly held that section 4707 was “intended to apply to and control exercise by an administrator or executor of their general authority to sell and dispose of stocks and bonds paying dividends,” and hence held that the statute did not apply to stock in a bank which had paid no dividends for two, years.</p> <p>3. The company, the sale of whose stock is in controversy, was organized in 1890 with a capital stock of one million dollars over two-thirds of which was water. On September 28, 1896, when the sale was made, it owed nearly $400,000.00. It had never paid' a dividend prior to the sale and never did pay one, and could not have legally done so, until six years after the sale, when it finally wiped out its debt and then for the first time in twelve years of its existence made a return to its stockholders — and this was in the nature of a liquidation dividend. (2 ‘Thompson on Corporations, sections 2126, 2152; Cook on Corporations, section 546.)</p> <p>4. Absolutely no proof was offered by appellant to sustain their charge ithat the sale was fraudulent. Its good faith and fairness were conclusively established.</p> <p>5. If appellants had successfully attacked the sale they could have had no relief in this action.</p> <p>(a) No relief was asked against the administrator.</p> <p>(b) The purchaser was not before the court.</p> <p>(c) His transferees would not have been liable. (1 Cook, 731; 2 Thompson, section 1368.)</p> <p>(d) The company in a case like this would not have been liable for registering the transfer. (2 Thompson, sections 2529, 2531, 2534.)</p> <p>6. Stock in a corpciation is not realty, as claimed by appellants, but is personal property in the nature of a chose in action, which passes to the personal representative. (Spalding v. Payne, 81 Ky„ 416; 1 Cook, 44.)</p>

<p>1. Appeal — Delay—Dismissal—Plea in Bar. — Wihere an appeal not taken within the statutory time is sought to be dismissed on that ground, the statute must be pleaded.</p> <p>2. Same — Objection in Court Below — Necessity.—A person sui juris who stands by and permits a commissioner’s report allowing claims against th.e estate of decedent which are not properly verified to be confirmed, and a judgment to be entered, cannot for the first time on appeal object that the claims were not properly verified.</p> <p>S. Infants — Actions Against Infants — Effect of Error — Reversal.— As an infant cannot waive his rights by failure to object during the trial, an erroneous judgment against an infant must be reversed on appeal where his condition appears in the record; and, where his condition does not appear, the error • may, under the express provisions of Civil Code Prac., section 518, be corrected by the court rendering the judgment.</p> <p>4. Executors and Administrators — Claims Against Decedents— Verification — Sufficiency.—An affidavit to a claim against a decedent, averring that there is “no legal offset or counterclaim” against the demand, is insufficient within Ky. Stats., 1903, section 3870, providing that demands against a decedent must be verified by an affidavit stating that there is no “offset or discount” against the same; the word “legal” rendering the affidavit only a statement of the belief of the affiant as to the legality of an offset, and the word “counterclaim” not being synonymous with the word “discount.”</p> <p>5. Same. — An affidavit in support of a claim against the estate of a decedent must comply witli Ky. Stats., 1903, section 3870, requiring suck claims to be verified by the claimant or his agent or personal representative, and, if the demand be other than .an obligation signed by decedent or a judgment, the same shall be verified by a person other than the claimant, who shall state that he believes the claim to be just and give the reasons for his belief.</p> <p>6. Same — Limitations—Pleadings—Necessity.—The objection that a claim against a decedent is barred by limitations, as a ground for refusing to order a sale of land to pay debts of a decedent, must be made in the circuit court by written exceptions, and, on such exceptions being filed, the claimant must be allowed a reasonable time to take proof, if he so desires.</p>

<p>CASE 91. — ACTION BY RALPH A. LINDSAY’S ADMINISTRATOR AGAINST THE METROPOLITAN LIFE INS. CO. TO RECOVER ON A POLICY ON THE LIFE OF THE DECEDENT.</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>The substantial question on this appeal is whether the policy ever attached, and the appellant claims a reversal of the judgment on the following grounds:</p> <p>1. Because there was no completed or consummated contract of insurance between the parties binding either the appellant company or the applicant for insurance, as the premium on ,the policy in suit was never paid by the said Ralph A. Lindsay or by anyone else at his instance or request or with his consent or knowledge, and there was no obligation on his part to pay said premium; and further that the policy was never duly delivered during the life-time and good health of the person on whose life the insurance was applied for or any other time; and that until the performance of these two conditions precedent, as required by the terms of the policy, no agreement had been entered into binding either insured or the insurer and up to that point either party had a right to withdraw from the negotiations without liability to the other. The element of mutuality so essential to the validity of all contracts was always lacking.</p> <p>2. That the finding of the jury was induced by' errors of law in the instructions prejudicial to the appellant, to which errors th,e finding in question .are directly and certainly traceable as the inducing cause.</p> <p>3. That the court in refusing to give to the jury the several instructions asked for by the appellant company erred in its ruling as to each of the instructions so asked.</p> <p>4. That the court -erred in each of the instructions given by it to the jury.</p> <p>5. Errors in the admission and rejection of evidence.</p> <p>6. That the verdict -and judgment was not sustained by sufficient evidence ¡and was contrary to law.</p> <p>7. Error of the court in overruling defendant’s demurrer to plaintiff’s petition.</p> <p>AUTHORITIES CITED.</p> <p>St. Louis Mutual Life Insurance Co. v. Kennedy, 6 Bush, 450; Mutual Life Insurance Co. of N. Y. v. Lucas, 25 Ky. Law Rep., vol. 2, p. 2052; Mutual Life Insurance Co. of N. Y. v. Sinclair, 24 Ky. Law Rep., vol. 2, p. 1543; Dickerson’s Adm’r, &c., v. The Prudential Savings & Life Assurance So., &c., '21 Ky. Law Rep., 611; New York Life Ins. Co. v. Leavy’s Adm’r, 92 S. W., 325; Blue Grass Insurance Co. v. Cobb, 24 Ky. Law Rep., 2132; May on Insurance, vol. 1, secs. 56, 61 and 55; Wm. 'Wh.iting, Adm’r v. Mass. Mutual Life Ins. Co., 129 Mass., 240, (Sept. 24, 1879); Eliab W. Badger, Adm’r v. Amer. Popular Life Ins. Co., 103 Mass., 244; Dunham -and others v. Moss, 32 N. E., 116, and 158 Miass., 132; Brown v. Massachusetts Mutual Life Ins. Co., (59 N! H., 298) 47 Amer, Reports, 205; Mutual Reserve Fund Life Ass’n v. Simmons, 107 Fed. Rep., 418; Mutual Life Insurance Co. of N. Y. v. James Young, Adm’r of McPhearson Young, 90 U. S. Reports, p. 152, Law Co-op. Ed., 23rd vol.; The Piedmont & Arlington Life Ins. Co. v. Ewing, 92 U. S., vol. 23, Law Co-op. Ed., p. 610; McMaster v. New York Life Ins. Co., 99 Fed. Rep., 856; Gidding v. Ins. Co., 102 U. S., 108; Pottsville Mutual Fire Ins. Co. v. Menneque Springs Imp. Co., 100 Pa. St. Rep., 137; Real Estate Mut. Fire Ins. Co. v. John Roessle, 1 Gray (Mass.) 336; James Mulrey v. Shawmut Mut. Fire Ins. Co., 4 Allen (Mass.) 116; Insurance Co. v. Young, Adm’r, 23 Wallace (IT. S.) 85; Hoyt v. Mutual Benefit Ins. Co., 98 Mass., 539; Markey v. Mut. Benefit Ins. Co., 103 Mass., 78; Marion National Bank v. Abell’s Adm’r, 88 Ky., 428.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An unconditional application for life insurance constitutes an offer to contract, and an unqualified acceptance of the application constitutes an acceptance of the offer; and the contract immediately becomes completed subject only to such condition or conditions as may be stated in the application and agreed upon by the parties as essential to be performed before the attachment of the risk. The tender of a policy of the exact kind applied for — in cases when delivery and payment of premium are made essential under the application to the consummation of the contract — imposes upon the applicant an enforceable obligation to pay the premium and take the policy, and if he declines, the company has an immediate right of action therefor, as in such cases no right of inspection with the incident right of acceptance or rejection after issuance of the policy exists in the applicant. (Western Assurance Co. v. McAlpin, 77'Am. St. Rep., 429.)</p> <p>2. When the minds of the parties have met upon the terms . of the contract through an unqualified acceptance of the offer contained in the application, and a policy is issued in conformity therewith and forwarded for delivery upon the payment of the premium (which under the application is the only condition annexed to the attachment of the risk) the contract becomes consummated whenever the premium is paid, notwithstanding the policy may never have been manually transferred by the agents of the company to the insured. Manual possession of the policy is not essential to complete the contract even when the application provides that “delivery” of the policy is a condition precedent to the completion of the contract. (Phoenix Assurance Soc. v. McAuthor, 6 Am. St. Rep., 154; N. Y. Life Ins. Co. v. Babcock, 69 Am. St. Rep., 134; Mutual Life Ins. Co. v. Thompson, 94 Ky., 253; Dailey v. Preferred etc., Association, 26 L. R. A., 171; May on Insurance, sec. 60.)</p> <p>3. Payment of the premium by a third party, who has no insurable interest in the life of the applicant, after the terms of the contract between the applicant and the company have been mutually agreed upon and accepted, does not invalidate the contract of insurance, whether the payment was made with or without the knowledge or request of the applicant. (Calvin v. Union Central Life Ins. Co., 115 Ky., 547; May on Insurance, sec. 352; Prudential Ins. Co. v. Cummins’ Adm’r, 19 Ky. Law Rep., 1770; Mutual Life Ins. Co. v. Allen, 52 Am. Rep., 245; Wheeler v. Waterton &c., Ins. Co., 131 Mass., 1.)-</p> <p>4. Applying these principles to the evidence appearing in the record, the trial court’s instructions contained the whole law applicable and the finding of the jury was justified, even under the appellant’s theory of the facts, which is that the amount of the premium was paid with H. Wt Pitman’s money and without the knowledge or request of the applicant, for it must be assumed in the consideration of the case that the great preponderance of the evidence established the fact that the payment was made to and accepted by the company as premium and not as penalty.</p> <p>5. But the evidence warrants the conclusion that the premium was actually paid out of Lindsay’s own earnings as an employee of the company; and with his knowledge and consent; and that under this theory of the facts the jury found their verdict under the third instead of the fourth instruction. (See testimony of Mr. and Mrs. Lindsay and direct examination of H. W. Pitman, q. and a. 33, 34.)</p> <p>6. Being an employee of the company and presumptively familiar with its rules, it may be fairly inferred that Lindsay knew of the payment of the premium whether made with his money or Pitman’s; and after June 10th, when same was remitted, his promises to pay, as claimed by Montague, were intended and were in fact promises to reimburse Pitman and not to pay the company, if it be true that Pitman’s money was used in payment of the premium.</p> <p>7. Lindsay formally agreed to accept the policy when explained to him by the agent, Montague, and promised to pay the premium. No case is cited, nor can any be found, as we believe, where it was ever held that when such .an acceptance existed, the risk did not attach immediately upon payment of the premium, even though paid by a third party without the knowledge or request of the applicant.</p>

<p>CASE 93. — ACTION BY ALEXANDER CRAWFORD’S ADM’R AGAINST THE TRAVELERS’ INSURANCE CO. OF HARTFORD, CONN., ON AN ACCIDENT INSURANCE POLICY.</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

CASE 94. — ACTION BY LENA SCOTT FLOOD’S TRUSTEE AGAINST SCOTT BROTHERS FOR RENT.— Appeal from Fayette Circuit Court, Watts Parker, Circuit Judge. Judgment for plaintiff. Defendants appeal. Our contention is that a building is none the less leased if it be included in a group of buildings leased, nor is it any the less leased, even if the .amount of rent be not fixed in terms by the lease.

<p>1. Criminal Law — Instructions—Principals and Accessories.— Where accused was charged as principal and the court directed the jury to find him guilty as a principal or to acquit him, th.e court did not err in failing to give a peremptory instruction in his favor because the proof showed that, if guilty at all, it was as an accessory before the fact.</p> <p>2. Same — Insanity—Homicide.—Where the plans laid by accused and another for the murder of deceased showed conclusively that he was not a man of insane mind, and that he fully realized that the act he was about to commit was wrong, the court properly refused to charge on insanity.</p> <p>3. Homicide — Instructions—Defenses—Alibi—Insanity—Where, in a prosecution for homicide, defendant pleaded insanity and an alibi, and there was evidence justifying the jury in disbelieving the testimony with reference to alibi, an instruction that if the jury believed beyond a reasonable doubt that defendant unlawfully, feloniously, willfully and with malice aforethought, and not in his necessary or apparently necessary self-defense, shot deceased, from which shooting deceased then and there presently died, the jury should find defendant guilty of murder, etc., was proper.</p> <p>4. Criminal Law — Accessories—Inducement.—Where defendant was present, encouraging, assisting, and advising another in killing deceased, the law presumes that defendant’s presence, etc., “induced” the commission of the act.</p> <p>5. Homicide — Self-Defense—Manslaughter.—Where, in a prosecution ftir homicide, it appeared that defendant and another conspired to kill deceased, and that they approached him unawarps and shot the top of his head off while he was lying asleep in his .home, and that deceased’s death was instantaneous, defendant was not entitled to an instruction on self-defense or on manslaughter, either- voluntary or involuntary.</p>

<p>CASE 96. — ACTION BY MARTIN CONNIFF AGAINST THE LOUISVILLE, HENDERSON & ST. LOUIS RY. CO. FOR DAMAGES FOR PERSONAL INJURIES.—</p> <p>Appeal from Jefferson Circuit Court; Common Pleas Brandi (Third Division).</p> <p>Matt O’Doherty, Judge</p> <p>Judgment for defendant. Plaintiff . appeals.</p>

<p>CASE 97. — ACTION BY LULA WARFORD AGAINST S. M. DORRIS FOR DAMAGES FOR ALLEGED UNSKILLFUL AND NEGLIGENT TREATMENT OF A BROKEN ARM.</p> <p>Appeal from Ballard Circuit Court.</p> <p>R. J. Btjgg, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Evidence — Bills and. Notes — Pleading and Proof. — In an action to vacate a judgment on the ground that it was based on a usurious note, certain notes, set out in the petition and filed as exhibits in the action, the first of them being identified by the note sued on, and it, in turn, identifying the other notes, were competent evidence, although they were not proven; there being no denial of them in the answer.</p> <p>2. Executors and Administrators — Claims Against Estate— Defenses — Usury.-—Under the express provisions of the statute in regard to the settlement of estates, a creditor of the estate of a decedent must purge his claim from all usury by his oath or affidavit before the claim will be allowed. Hence the administrator of the estate need not pay a judgment based on a usurious note and subsequently sue to recover back the money.</p> <p>3. Witnesses — Competency—Transactions with Deceased Persons. —Under the express provisions of Civil Code Prac., sec. 606, subsec. 2, claimants against the estate of a decedent are not competent to testify with regard to verbal statements of,’ and transactions with, decedent.</p> <p>4. Limitation of Actions — Part Payment — Burden of Proof. — When a credit on a note is denied by the payor, the burden rests on the holder to prove it.</p>

<p>1. Deeds — Conveyance for Specific Purpose — Failure to Carry out the .Trust — Liability of Purchaser — Under Ky. Statutes, sec. 4846, providing that “where lands are conveyed or devised to trustees or executors in trust to be sold generally, or for any specific purpose, the purchaser shall not be bound to look to the application of the purchase money, unless so expressly required by the conveyance or devise” Where a deed, made to S. recited that “it is made with the understanding and agreement that S. has the right to sell the land, provided the money is reinvested in other lands, to be conveyed to S. during his life and after his death to his children,’ a purchaser of the land from S. was not bound to look to the application of the purchase money paid to S., and is not liable to the children of S., after his death, 'by reason of his failure to reinvest the money as directed in the deed.</p>

<p>3. Trusts — Resulting Trust — Payment of Consideration for Conveyance to Another. — Where one who purchased at a commissioner’s sale and who paid the consideration caused the conveyance to be made to another, the grantee held the land in trust for the purchaser.</p> <p>2. Husband and Wife — Disabilities of Coverture — Contracts.— Under the statute of 1894 (Acts 1894, p. 176, c. 76), providing that a married woman may take, acquire, and hold property, and that she may in her own name, as if unmarried, sell and dispose of her personal property, a married woman who purchased land at a commissioner’s sale was under no disability precluding hier from assigning her bid and purchase to her husband.</p> <p>3. Witnesses — Competency—Transactions with Decedent. — In a suit by the heirs of a married woman to set aside an assignment made by her to her husband of her purchase and bid at a commissioner’s sale, the husband was incompetent to testify concerning any verbal transactions between himself and his deceased wife.</p> <p>4. Judicial Sales — Title and Rights of Purchasers — Assignment of Bid Sufficiency. — Civil Code Prae., sec. 398, provides that a conveyance by a commissioner shall not pass any right until it has been examined and approved by the court, which approval shall be indorsed on the conveyance. A purchaser at a sale by a commissioner, after confirmation, filed in the court a writing requesting that conveyance be made to: another. Held, that such transaction was sufficient to pass the purchaser’s interest, as the title to property sold at decretal sale does not pass to the purchaser until it is conveyed under proper order of the court; the purchaser’s interest in the meantime being merely an equitable one.</p>

<p>1. Administrators — Sale—Payment of Debts — Who May Purchase. —Where the commissioner, under an order to an administrator to sell real estate to pay debt, becomes the purchaser at his own sale, directly or indirectly, there is no sale.</p> <p>2. Same — Who May Question Validity. — Though the heirs resided in the vicinity of lands from the time of administrator’s sale, and during subsequent transactions and sales thereof, they are not estopped from claiming the lapd on the ground of fraud in the administrator’s sale, where they were in no position to know the title to the 'land and were not parties to any of the transactions.</p> <p>3. Quieting Title — Administrator’s Sale — Estoppel of Heirs — Condition Precedent. — Where the commissioner, under an order to sell real estate to pay debts of an estate, becomes the purchaser at his own sale, the heirs in an action to quiet title in them will be required to refund the commissioner’s grantees his purchase money with interest, before being entitled to a decree.</p> <p>4. Remainders — Actions Against Remainderman — Accrual of Right of Action — Possession of Real Property. — The statute of limitations does not commence to run against a remainder-man until his right of entry accrues by the termination of the life estate.</p>

<p>1. Damages — Personal Injury — Measure of Damages. — -Where, in an action for a personal injury, there was no allegation of loss of time or expense, the measure of damages was a reasonable compensation for the mental or physical suffering endured, and for the permanent impairment of power to earn money proximately resulting from the injury, and an instruction to find for plaintiff, such an amount as would reasonably compensate her for any temporary or permanent injury sustained, and any suffering or pain endured, was erroneous.</p> <p>2. Carriers — Personal Injuries — Condition of Premises — Negligence. — A railroad must maintain its stations' and platforms in a reasonably safe condition for passengers taking passage on its trains or coming to the stations for that purpose.</p> <p>•3. Same — Persons to Whom Liable. — A husband and wife, with their two children, went to a station to take a train. On being unable to obtain a seat in the train, they alighted and placed one of their children on the train for the purpose of sending him home with relatives. The child began to scream on finding that his mother was not going to get on and she, on starting to take the child from the train through a window,</p> <p>■ stepped into a hole and was injured. The hole was in the pathway used by persons taking and leaving the train. Held, that the wife had not lost her right to be where she was at the time of the injury, and was entitled to recover, if she exercised ordinary care.</p>

<p>1. Wills — Construction—Disposition of Entire Estate. — Where a_ will is susceptible of two constructions the law will place on it that construction which disposes of the entire estate of the testator.</p> <p>2. Same — Giving Effect to Whole Will. — To arrive at the intention of a testator his entire will must be taken into consideration, and each clause thereof must be read in connection with the others.</p> <p>3. Same' — Estates Acquired — Life Estate. — A testator directed that his personalty should be sold to pay debts, declared that if the same was insufficient therefor the executrix should sell described real estate, and gave to his wife “during her natural life” fall his real and personal etsate “to own and do with as she pleases,” and appointed her executrix. Held that, reading the quoted phrases together in connection with the direction of the executrix to sell certain real estate, the wife acquired only a life estate, with the remainder undisposed of.</p>

<p>CASE 104. — ACTION BY LOU TERRELL AGAINST THE POSTAL TELEGRAPH CABLE CAMPANY FOR DAMAGES FOR FAILURE TO DELIVER A TELEGRAM.</p> <p>Appeal from Jefferson Circuit Court, Common Pleas Branch, (Third Division).</p> <p>J. M. Chattebson, Special Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where a telegram for addressee to meet a person at the depot in Memphis, Tennessee, was not delivered in time, the fact that the one to be met remained in the depot all night can be no basis for a cause of action, on account of remoteness and because such damages could not have been in contemplation of the parties. (Hadley v. Baxendale, 9 Exch., 341; Stafford v. W. U. Tel. Co., 73 Fed. Rep., 273; W. U. Tel. Co. v. Bryant, 46 N. E. R., 358; McAllen v. Tel. Co., 70 Tex., 243; Tel. Co. v. Smith, 13 S. W. R.., 169; Gaddis v. W. U. Tel Co., 77 S. W. R., 37; Smith v. W. U. Tel. Co., 83 Ky., 104; Talliferro v. W. U. Tel. Co., 21 Ky. Law Rep., 1290; Chapman v. W. U. Tel Co., 90 Ky., 265; W. U. Tel. Co. v. Patton, 55 S. W. R., 973; McBride v. Tel. Co., 96 Fed., 81.)</p> <p>2. Mental anguish, unaccompanied by physical suffering, cannot be a basis for a cause of action in Kentucky, except where one is deprived of attending the death-bed or funeral of a near relative. (W. IT. Tel. Co. v. Steenberger, 21 Ky. Law Rep., 1289; Davidson v. W. U. Tel. Co., 21 Ky. Law Rep., 1292; W. U. Tel. Co. v. Heming, 24 Ky. Law Rep., 1433; W. U. Tel. Co. v. Fisher, 21 Ky. Law Rep., 1293; W. U. Tel. Co. v. Davis, 107 Ky., 527; W. IT. Tel. Co. v. Parsons, 21 Ky. Law Rep., 2008; W. U. Tel. Co. v. Smith, 15 Ky. Law Rep., 334; Chapman v. W. U. Tel. Co., 90 Ky., 265; Pos. Tel Cab. Co. v. Pratt, 85 S. W. R., 225; W. U. Tel Co. v. Vancleave, 22 Ky. Law Rep., 53; W. IT. Tel. Co. v. Cross, 25 Ky. Law Rep., 270; Robinson v. W. IT. Tel. Co., 24 Ky. Law Rep., 453; Reed v. Maley,. 25 Ky. Law Rep., 209; Hockenhammer v. L. & Ei R. R. Co., 74 S. W. R., 222; Amer. Nat. Bank v. Morey, 24 Ky. Law Rep., 658; 2nd Thompson on Negligence, sec. 2470; W. U. Tel.'Co. v. Reid, 85 S. W. R., 1171; Joyce on Electric Law, sec. 827, 830.)</p> <p>3. A verdict of five hundred dollars in a case where plaintiff unnecessarily waited four hours in a railroad station, when she could have gone to a hotel or taken a carriage, must be the result of passion or prejudice.</p> <p>4. In the case at bar, if there could be any recovery at all, the court should have limited ■ the recovery to the price of the telegram and the amount plaintiff would have had to pay for lodging or cab fare. (W. U. Tel. Co. v. Campbell, 81 S. W. R., 580.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The Court of Appeals of Kentucky has in every case that has come before it, sustained the right to damages for mental suffering and physical discomfort, or for mental suffering alone, occasioned by the negligence of a common carrier, where contractual relations existed between the carrier and the person injured. (Constitution of Kentucky, sec. 199; Chapman v. Western Union Teh Co., 90 Ky., 265; Western Union Tel. Co. v. Cleaver, 13 Ky. Law Rep., 301; Western Union Tel. Co. v. Mellvoy, 21 Ky. Law Rep., 1393, Western Union Tel. Co. v. VanCleve, 107 Ky., 464; L. & N. R. R. Co. v. Hull, 113 Ky., 561; and all other cases where the negligence of a telegraph company prevented attendance at the bedside or funeral of a near relative.)</p> <p>2. The following cases in Kentucky relied on by appellant, are not in point because no contractual relations existed, and the cause of action sounded in tort alone: (Reed v. Maley, 25 Ky. Law Rep., 209; Hockenhammer v. L. & E. R. R. Co., 24 Ky. Law Rep., 2333.)</p> <p>3. The following cases cited and relied on by appellant arose from business or commercial telegrams, and therefore are not in point: (Robinson v. Western Union Tel. Co., 24 Ky. Law Rep., 453; Amer. Nat’l Bank v. Morey, 24 Ky. Law Rep., 658.)</p> <p>4. The words of the telegram:</p> <p>“Jerry Johnson,</p> <p>564 Lauderdale Street,</p> <p>Memphis, Tenn.,'</p> <p>Meet Lou at I. C. depot to-night.</p> <p>GEORGE E. TERRELL.”</p> <p>put the telegraph company on notice that its non-delivery would cause mental and physical suffering and inconvenience. (Chapman v. Western Union Tel. Co., 90 Ky., 265; Western Union Tel. Co. v. Cleaver, 13 Ky. Law Rep., 301; Western Union Tel. Co. v. Mellvoy, 21 Ky. Law Rep., 1393; Western Union Tel. Co. v. Reid, 27 Ky. Law Rep., 659.) And the other cases in Kentucky where the death of a relative or funeral was involved. (Wadsworth v. Western Union Tel. Co., 86 Tenn., 695; Mentzer v. Telegraph Co., 93 Iowa, 752; Stevens v. Dudley, 56 Vermont, 158; Darlington v. Western Union Tel. Co., 127 N. C., 448; Young v. AVestern Union Tel. Co., 107 N. C., 370; Western Union Tel. Co. v. Simpson, 73 Texas, 422; Stone v. Sou. California R. R. Co., Ill Cal., 668; Western Union Tel. Co. v. Burgess, 56 S. W., 237; Sutherland on the Law of Damages (ed. 1903) vol. 1, p. 41; •-• vol. 3, p, 2882; and cases cited. Shearman & Redfield on Negligence, 5 ed. sec. 756, p. 1301; Thompson on Negligence, vol. 2, sections 2456 and 2471; and cases cited.)</p> <p>5. A verdict for $500 is not excessive. (Opinion of Trial Judge; Sutherland on Damages, vol. 3, section 2806, p. 953; vol. 1, section 96, p. 281; L. & N. R. R. Co. v. Cayce, 17 Ky. Law Rep., 1389; Chesapeake, &c.. R. R. Co. v. Osborn, 97 Ky., 112; I. C. R. R. Co. v. Latimer, 28 111. App., 552.)</p> <p>6. The instructions of the court were more favorable to appellant than appellee.</p>

<p>CASE 105. — ACTION BY G. M. MITCHELL AGAINST HENRY COUNTY FOR SERVICES RENDERED AS JAILER.</p> <p>Appeal from Henry Circuit Court.</p> <p>R. F. Peak, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>'1. Railroads — Accidents at Crossings — Gates.—Where a railway maintains a watchman and gates at a crossing and fails to keep the same down or give proper warning when trains are passing, it is liable to a person injured thereby who is not guilty, of contributory negligence.</p> <p>2. Same — Pleading and Proof — Variance.—A party cannot recover for injuries alleged to' have been received ¡at a crossing if it is shown that he was not injured while passing over the crossing, but while alighting from a freight train.</p> <p>2. Same — Contributory Negligence. — A party cannot recover for injuries received at a crossing if guilty of contributory negligence.</p> <p>4. Same — Failure to Look and Listen — Gates—Watchman.—The failure to look and listen for a train at a street crossing is not per se negligence, where the railroad company keeps a watchman and gates at the crossing and the gates are up.</p>

<p>1. Carriers — Personal Injuries — Persons Accompanying Passengers — Notice of Character. — Where a plaintiff accompanying two small children purchased a half-fare ticket and the agent asked if it was for a particular child, the other being evidently too young to pay fare, and she answered that it was, that she was sending the children to their mother, these facts, with the further fact that no ticket was bought for herself, were not sufficient to charge the ticket agent with notice that she was going aboard only to assist the children.</p> <p>2. Same. — Where a train stopped its usual length of time at a station, during which plaintiff, with baggage in her hand and without explaining her purpose, got on the train to assist her-grandchildren, who were with her and were to be passengers, there was no notice to the trainmen that she did not intend to remain on the train.</p> <p>3. Same — Contributory Negligence. — Where plaintiff boarded a train to assist a passenger, her jumping off after the train started was contributory negligence precluding recovery for injury.</p>