Volume 125 — Kentucky Reports

<p>Parent and Child — Person in Loco Parentis — Loss of Child’s Services — Right of Recovery. — Where plaintiff had not legally adopted a 16-year-old hoy, and was not his guardian, he could not recover for loss of his services, though he had kept him ever since the hoy was very small.</p>

<p>CASE 2. — ACTION BY RICHARD B. DAVIS AGAINST MARTIN CLAUS, TO RECOVER THE OFFICE OF CITY MARKET MASTER.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Prom a judgment dismissing plaintiff’s petition he appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Statement of case: (Kentucky Stats., sections 3044, 3046, 3110.)</p> <p>2. Defendant had no right to hold over: (Louisville v. Higdon, 2 Met., 526.)</p> <p>3. Collective body with duties has inherent right to meet and perform. (1 Dill. Mun. Corp., 334; Morton v. Jungerman, 89 Ky., 507; Covington v. Boyle, 6 Bush, 207; Kieth v. Covington, 22 Ky. Law Rep., 1415.)</p> <p>4. It must perform duties imposed upon it; these cannot be evaded by its own or frustrated by others acts. (Wheeler v. Commonwealth, 98 Ky., 65.)</p> <p>5. The imposition of the duty carries with it the power to perform If the time is allowed to pass, it should act as soon thereafter as practicable. Irregularity will not invalidate. (Somerset v. Somerset Bank, 22 Ky. Law Rep., 1132; Lou. Ind. School v. Louisville, 11 Ky. Law Rep., 569; Cynthiana v. Board Education, 21 Ky. Law Rep., 732.)</p> <p>6. Pleading ‘duly elected’ not a conclusion of law. (Tenn. P. B. Co. v. Barker, 22 Ky. Law Rep., 1072.)</p> <p>(a) But a denial of this is practically a plea of ‘nul tiel record’ —to raise other questions the charge must be specific. Brannon v. Gleason, 14 Ky. Law Rep., 109; Lexington v. Headley, 5 Bush, 508; 13 Am. St. Rep., note to 550.)</p> <p>7. An election similar to the one at bar held good in Tillman v. Otter, 93 Ky., 600.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Burden of proof on appellant to show his right to the office in question. (Tillman v. Otter, 93 Ky., 600; Mechera on Public Officers, section 491, and subsection 2, of section 494.)</p> <p>2. “The general council of the city” cannot meet in joint session without the call of the mayor. (Charter of the City of Newport, being sections 3042 and 3110 of Ky. Statutes; An ordinance fixing the time of meeting of the several branches of the general council of the city of Newport, Ky.)</p> <p>3. If the two municipal boards had the inherent power to convene “the general council of the city” in joint session without the call of the mayor, yet it was necessary to have. a majority of the members elect of each board present to constitute a quorum for the purpose of duly'convening, organizing and resolving themselves into “the general council of the city” for the transaction of business in joint session. (Charter of City of Newport, being sections 3044 and 3042 of Ky. Statutes.)</p> <p>4. Authorities cited by appellant not applicable to the case at bar. (Charter, section 3044; Note under the head of “Joint Bodies” on page 1031 of the 15 Am. & Eng. Enel, of Law, 1st Ed.; Gildersleeve v. Board of Education, 17 Add. (N. Y.) Pr. 20: King v. Bower, 1 Barn & Cr., 492; Whiteside v. People, 26 Wend. (N. Y.) 634.)</p> <p>5. Tillman v. Otter, 93 Ky., 600, not applicable to the case at bar. '</p>

<p>CASE 3. -SUITS BY ZACK HEDGER AGAINST JOSEPH ROEBKE, WILLIAM WALGE, L. C. ALFRED AND OTHERS AND THE CITY OF LATONIA TO ENFORCE APPORTIONMENT WARRANTS.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD. Shaw, Circuit Judge.</p> <p>Prom the judgment in favor of the defendants, other than the city, Hedger appeals, and from the judgment against the city in favor of -Hedger, the city appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. That under section 3567, as construed by the Legislature in section 3572, the city council of a fourth class city may pass an ordinance, for the construction of a street on the square foot plan, at one meeting, provided two-thirds of all the members elect concur therein.</p> <p>2. That where the petition and exhibits make out a prima facie case (as here) and the defendant forces a submission of the case, without introducing any evidence to support his defensive pleas, the plaintiff is entitled to a judgment .against the property owner.</p> <p>3. That the alleged failure of a city council to pass the ordinance at two meetings, did not render it void or inoperative, but, after the improvement had been made according to it, came under the curative provision of section 3567.</p> <p>4. That .as the property owners stood by and permitted the work to be completed by the contractor and accepted by the city council without raising any objection, or taking any step to prevent it, they are estopped from now urging any ■ objection, and the curative provision aforesaid, in substance, that no error in the proceedings of the city council shall exempt from payment, or defeat the lien, comes in and cures the defects, if any.</p> <p>5. That the general rule of construction that the authority delegated to municipal corporations must be strictly construed and closely pursued, has been modified by section 3567, for, as held by this court, the sovereign power which delegated the authority may, when it sees proper, change or even abrogate this peculiar rule of construction.</p> <p>6. The lien is not conferred by the ordinance, but is conferred by the statute, and would have attached even if the ordinance had not expressly mentioned it.</p> <p>7. That in cities of the fourth class, the power does not depend upon the strict observance of the provisions of the law, but upon the fact that the work has been completed and accepted, without objection, according to the ordinance and contract, it being expressly provided that no error in the proceedings of the board shall impair the lien or exempt the property owners from payment.</p> <p>8. That the property owners, if they desire to question the proceedings, must take the necessary legal steps to enjoin the work before the improvement is made, otherwise the law will make the cost of same a lien upon their property, which must be paid by them.</p> <p>9. That a mere change of grade, after the contract has been awarded, even if held to be an error, would likewise come under this curative provision, and the property owners would be under the same obligation to take the necessary legal steps to enjoin the contractor and municipality from proceeding with the work, for if they stand by and allow the work to proceed and' be completed they thereby sanction it and become liable, under the law.</p> <p>10. None of the alleged errors is material, and none of them constitute a defense to the cause of action set out in the petition.</p> <p>All these propositions, except the first, are plainly deducible from the decisions of this court, and it is respectfully submitted that the judgments appealed from should be reversed, and the cases remanded, with directions to the lower court to render judgments against the property owners.-</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, sections 3567, 3569, 3571, 3564, 3566; Tennessee Paving Brick Co. v. Biarker, 22 Ky. Law Rep., 1069; Hack-worth v. Louisville Artificial Stone Co,. 106 Ky., 234; Cabell v. City of Henderson, 28 Ky. Law Rep., 89; Orth v. Park & Co., 25 Ky. Law Rep., 1910; Elliott on Streets, sections 567, 587, 576, 583; Lindenberger Land Co. v. Park & Co., 27 Ky. Law Rep., 427; Broadway Baptist Church v. McAtee & Cassidy, 8 Bush, 508; City of Louisville v. Gast, 26 Ky. Law Rep., 412; City of Henderson v. Lambert, 77 Ky., DO; Bogard v. O’Brien, 14 Ky. Law Rep., 648; Joyce v. Shadburne, 11 Ky. Law Rep., S92; Barbar Asphalt Co. v. Carr, 24 Ky. Law Rep., 2228.</p> <p>Our contention is:</p> <p>1. That under the first clause of section 3567, Ky. Statutes, it is contemplated that there shall be a petition, but not signed by the owners of a majority of the property liable for the improvement, in which oase there must be two passages of the ordinance, a majority voting in favor of the ordinance.</p> <p>2. . The second clause- contemplates no petition at all, in which case there must be two passages of the ordinance, two-thirds of the members voting in the affirmative.</p> <p>3. Under thie third clause, when there is a petition signed by the owners of a majority of the property liable for the improve- or.ent, one passage is sufficient.</p> <p>This interpretation gives meaning to every word of the statute, and -is perfectly logical. It makes the passage most difficult when there is no petition, less difficult when there is a minority petition, and least difficult when there is a majority petition.</p> <p>4. This brings to the next question, which is:</p> <p>Does the provision of the chapter to the effect that: “No error in the proceeding of the board of council shall exempt from payment or defeat said lien after the work has been done, as required by ordinance,” cure the defect in the passage of the ordinance and render the property holders liable?</p> <p>From the authorities in this State, this question must be answered in the negative.</p> <p>'The language is, “no error in the proceeding of the board of council shall exempt from payment or defeat said lien after ithe work has been done, as required by ordinance.” Here the work was not done at .all “as .required by ordinance.” It was not required by ordinance at all. There was never any ordinance for the doing of the work. It was done entirely without ordinance. The appellant was a mere vdlunteer. He acquired no rights against the property owners, and they were -under no obligation to seek to ha-ve him cease the work.</p> <p>'5. The next proposition to be considered is the question as to the apportionment of the cost of constructing the curb and -gutter. Our contention is that the cost of constructing the same ought to have been apportioned according to the front and abutting feet instead of by the square feet.</p> <p>-6. There being no common law liability on the part of the property holders to pay for the cost of the improvements the liability being wholly statutory, we must -look to the -contract alone, and if the work be not done according to the contract, no liability exists whatever on the part of the property holders to pay for the improvement.</p> <p>AUTHORITIES CITED.</p> <p>Section 3567, Kentucky Statutes; Caldwell v. Rupert, 10 Bush, ■179; City of Henderson v. Sutton, 7 Ky. Law Rep., 378; Harris v. Zable, 5 Ky. Law Rep., 114; Kaye v. Hall, 13 B. M., 455; East Tennessee Telephone Company v. Anderson County Telephone Company, 22 Ky. Law Rep., 418; Maxaman v. Ohio Telephone Company, 25 Ky. Law Rep., 784; 'City of Covington v. Brinkman, 25 Ky. Law Rep., 1949; Fehler v. Gosnel,-99 Ky., 380; City of Louisville v. Gleason, 20 Ky. Law Rep., 1865; Campbell v. Cincinnati, 50 Ohio St., 463; Langan v. Bitzer, 26 Ky. Law Rep., 579; Caldwell, &c., v. Rupert, &c., 10 Bush, 179; Richardson v. Mehler, 23 Ky. Law Rep., 921; 'City of Covington v. Brinkman, 25 Ky. Law Rep., 1949; Section 3566 Ky. Statutes; Joyes, &e., v. Shadburn, &c., 11 Ky. Law Rep., 892; E. and E. W. Marshall v. Barbour Asphalt Paving Company, 23 Ky. Law Rep., 1971; Whitehead v. Hippie, 11 Ky. Law Rep., 386; Harris v. Zable, 4 Ky. Law Rep., 1000, 5 Ky. Law Rep., 114; Weingartner v. Spinks, 5 Ky.-Law Rep., 250.</p>

<p>l. Carriers — Injury to Passenger — Setting Down Passenger. — A passenger on a street car at night informed the conductor that he. desired to alight at a certain street,, but was carried by, and the conductor then refused to back the ear or to permit the passenger to remain on the car until it returned to the desired street, but instructed plaintiff to walk to a certain light, which he pointed out, and then turn in a certain direction, stating that such course would take the passenger to his destination, and the passenger, while following such directions walked upon a trestle and fell through it, whereby he was injured, not having known, owing to the darkness, that he was on a trestle when he fell, held, that the carrier was liable, as it was its duty to see that the passenger got safely to the desired street.</p> <p>2.Came — Con'.ributory Negligence — Evidence—Sufficiency.—-The evidence was sufficient to sustain a finding that the pasenger was not guilty of contributory negligence.</p>

<p>1. Trial — Agreed Statement of Facts= — Findings.—Where a ease is tried on an agreed statement of facts, it is not necessary that the court should make separate findings of fact and law.</p> <p>,2. Appeal — -Motion for New Trial — Necessity—Scope of Review.— Where a case is tried to the court, a motion for a new trial is necessary to authorize .a review of alleged errors committed during the trial."</p> <p>3. Same. — Where an action was tried to the court, and there was nothing in the record on appeal to sustain, the judgment, it will be reversed, though there was no motion for a new trial.</p> <p>.4. Carriers — Loss of Freight — Damages.—Where a carrier lost goods in its possession for. transportation to plaintiff intended for resale in the course of plaintiff’s business and no freight had ever been paid, the carrier was only liable for the fair market value of the goods at the time and place of delivery, and not for- profits which plaintiff might have made had .he resold the goods in the ordinary course of his business.</p> <p>'5. Samé — What Law .Governs, — A carrier’s liability for loss of goods shipped from New York to Kentucky, which loss occurred In Kentucky, was governed by the Kentucky law, and not by the law of New York, though the contract of carriage wás''made there</p>

<p>Insurance — Mutual Benefit Societies — Policies—Statutes—Effect— Application. — Ky. Stats., 1903, section 679, provides that all policies and certificates of life insurance -referring to the application of insured or the constitution, by-laws, and rules of the society shall contain or have attached a correct copy in order to authorize the introduction thereof in evidence. Laws March 24, 1906, amended such section by making it inapplicable to secret- or fraternal societies doing business on the lodge system. Held, that section 679 did not prescribe a 'mere rule of • evidence, but determined what should constitute the contract between the parties, and hence a society doing business on the lodge system, when sued on a claim which matured prior to the amendment, was not entitled to introduce in evidence after the amendment took effect provisions of its constitution and by-laws to limit its liability which were not contained in or attached to the certificate.</p>

<p>CASE 7. — ACTION BY GEORGE NIPP’S ADMINISTRATRIX AGAINST THE CHESAPEAKE & OHIO RY. CO., FOR DAMAGES FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE.</p> <p>Appeal from Carter Circuit Court.</p> <p>S. Gr. Kinner, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. There was a clear variance between the plaintiff’s case as alleged in the pleadings and as developed in the evidence.</p> <p>2. The fact tha-t persons make an unauthorized use of a portion of a railroad right of way, with the knowledge or acquiescence of the company, does not constitute them licensees, nor impose upon the company the duty of looking out for, dr guarding against, their presence upon the track. (Brown’s Adm’r v. L. & N. R. R. Co., 97 Ky., 228; Embry v. L. & N. R. R. Co., 18 Ky. Law Rep., 434; Gregory v. L. & N. R. R. Co., 25 Id., 1988, 79 S. W., 238; C. & O. Ry. Co. v. See’s Adm’r, Id., 1997, 79 S. W., 253-4; Beiser v. C. & O. Ry. Co., 92 S. W., 928; C. & O. Ry. Co. v. Barbour’s Adm’r, 93 Id., 24.)</p> <p>3. No one can complain of the failure by another to perform a duty except one to whom such duty is owing. A railroad company owes no duty to a trespasser to give notice of the approach of a train; therefore, a trespasser cannot complain of a failure to give signals. (21 Am. & Eng. Ency. of Law, 2nd Ed., 470; Shear-man and Redfield on Neg., sec. 8; Savings Bank v. Ward, 100 U. S., 202; Shackelford’s Adm’r v. L. & N. R. R. Co., 84 Ky., 47; Davis’ Adm’r v. C. & O. Ry. Co., 116 Id., 155-6; L. & N. R. R. Co. v. Redmon, 91 S. W., 725-6.)</p> <p>4. The case of Cahill v. Cincinnati, &c., Ry. Co., 92 Ky., 350, has no application to the facts of this case.</p> <p>5. Where there is positive, affirmative testimony that signals were given, the mere fact that other witnesses did not hear the signals does not make a case of conflict of evidence, unless such negative witnesses were looking, watching or listening for the signals, or were in a position where they could not have failed to hear them if they had been given. Upon such a state of evidence the party upon whom rests the burden of proof to show the failure to signal has failed to make out his case and there is no question for submission to the jury. . (B. & O. R. R. Co. v. Horn, 54 Fed., 304; Culane v. N. Y. C. & H. R. R. R. Co., 60 N. Y., 137; Shufelt v. F. & P. M. R. Co., 96 Mich., 327;. Clark v. N. Y. C. R. Co., 40 N. Y. Supp., 730; B. & O. R. R. Co. v. Baldwin, 144 Fed., 54-5.)</p> <p>6. The plaintiff’s testimony showed .that the deceased was guilty of such contributory negligence as to defeat the action. (Garlich v. N. P. Ry. Co., 131 Fed., 839; K. C. &c., Ry. Co. v. Cock, 66 Id., 122.)</p> <p>(No brief in the record for appellee.)</p>

<p>CASE 8. — ACTION BY THE FRANKFORT TELEPHONE CO. AGAINST THE COMMON COUNCIL OF THE CITY OF FRANKFORT.</p> <p>Appeal from Franklin Circuit Court.</p> <p>Robert L. Stout, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>If we concede that the city has the right to repeal the franchise granted to Longmoore, and even to require the telephone company to vacate the streets, yet it has not done so; the telephone company is today in operation, and by virtue of its very character as a public service corporation it is bound to serve the public, and so long as this is true the city cannot require that service to be rendered at less than cost, or without reasonable compensation.</p> <p>AUTHORITIES CITED.</p> <p>Railroad Commission cases, 116 U. S., 307, 331; Reagan v. Farmers Loan & Trust Co., 154 U. S., 362; Sandiago Land Co. v National City, 174 U. S., 757; 2 Const. Debates, pp. 294 9 and 2951; Nicholasville Water Co. v. Nicholasville, 1 Ky. Law Hep., 592.</p> <p>AUTHORITIES AND POINTS.</p> <p>1. Constitution of United States, 10th section, 14th amendment.</p> <p>2. The ordinance fixing telephone rates did not violate any contract made with the telephone company. (Kentucky Statutes, section 3290, sub-section 5.)</p> <p>3. A telephone company is a common carrier. (Jones on Telegraph and Telephone Companies, section 17.)</p> <p>4. Acquiescence in telephone rates, for a considerable time, estops the company from complaining of their unreasonableness. (Herrman on Estoppel 'and Res Judicata, sections 769 and 1063.).</p> <p>5. No presumption that the city intended to part with its power to regulate telephone rates. (Omaha Water Co. v. City of Omaha, &c., 147 Fed. Rep., 12.)</p> <p>6. Contracts not rescinded because their performance more expensive than contemplated. (Page on Contracts, section 1378; Franklin Telegraph Co. v. Harrison, &c., 145 U. S., 450; P. P. & C. I. R. R. Co., 144 N. Y., 152, 160; Postal Telegraph Co. v. City of Newport, 25 Ky. Law Rep., 636.)</p> <p>7. Franchise granted by city ordinance to operate telephone system, without a sale to the highest and best bidder, is null and void. (Constitution of Kentucky, section 164; Merchants Police and District Telegraph Co. v. The Citizens Telephone Co., 29 Ky. Law Rep., 512.)</p> <p>8. Corporation estopped by acts of a stockholder or agent in procuring passage of ordinance fixing telephone rates. (Coleman v. Morrison, 1 T. B. Mon., 406; Ferguson v. Landram, &c., 5 Bush, 234.)</p> <p>9. There is no presumption that telephone rates, fixed by legislation, are unfair or unreasonable.</p> <p>10. The burden of proof is on the complainant. (Covington & L. T. P. R. Co. v. Sanford, 164 U. S., 578; Reagan v Farmers Loan & Trust Co., 154 U. S., 412; The San Deigo case, 174 U. S„ 739.)</p> <p>11. Legislatures and councils have inherent and statutory right to regulate rates for public service. (Munn v. Illinois, 94 U. S., 113; Hackett v. The State, 105 Ind., 263; Central Union Telephone Co. v. Bradbury, 106 Ind., 7.)</p>

CASE 9. — APPLICATION BY N. W. McNEW TO THE FISCAL. COURT OF NICHOLAS COUNTY TO FIX HIS SALARY AS COUNTY JUDGE AT A SPECIFIED SUM PER ANNUM Appeal from. Nicholas Circuit Court. L. P. Freyer, Circuit Judge. From the order of the fiscal court he appealed to the circuit court, and from the order of the circuit court dismissing his appeal he appeals.

<p>Appeal — Decisions Reviewable — Amount in Controversy — Consolidation of Actions. — Ky. Stats., 1903, section 950, provides that no appeal shall be taken to the court of appeals from a judgment for the recovery of money or personal property if the value in controversy be less than $200, exclusive of interest and costs. Held that, where separate suits by creditors of the alleged owner of a judgment are consolidated, the amounts of the claims of the separate creditors cannot be added together, so as to give the litigants the right to appeal from the judgment in the consolidated action; but the amount in each suit determines the right of appeal, and, none of the claims equaling $200, there is no right of appeal.</p>

<p>1. Pleading — Bill of Particulars — Sufficiency.—In an action for legal services, an account filed with the petition showing in detail all expense incurred, and a general charge of a named amount for services in preparing abstracts and perfecting the title to 3,800 acres of land known as the “Morehead coal property,” Muhlenburg county, and advising and consulting thereto, was a sufficient bill of particulars.</p> <p>2. Same — Pleading Matters of Evidence. — Where, in an action for legal services, the only question was whether or not the fee charged by the attorney was reasonable, what he charged on other occasions, for similar work done for defendant was purely evidential, and not proper to be set up in the answer.</p> <p>■3. Attorney and Client — Action for Compensation — Admissibility of Evidence. — In an action for legal services in preparing abstracts of title to land, where a purchase of the land was made on the faith of these abstracts, the price received was properly considered as a circumstance showing what would be a reasonable fee for the services rendered.</p> <p>4.- Evidence — Examination of Expert Witnesses — Hypothetical Question. — In an action for legal services a hypothetical question based -on the evidence of plaintiff, detailing the services rendered, the time expended, the character and value of the property involved, the responsibility incurred, and every fact connected directly with the services rendered, was not misleading.</p> <p>5. Same — Subjects of Expert Testimony — Value of Services. — In an action for legal services, the testimony of lawyers qualified by -experience and knowledge of the law to testify as experi witnesses is admissible to aid the jury in determining what would be a reasonable fee for the services performed.</p> <p>6. Trial — Instructions—Personal Knowledge of Jurors. — In an action for legal services, the court properly refused to instruct that, in determining the value of the services, they were not confined to the evidence, but might rely upon their own judgment as to their value.</p> <p>7. Appeal — Review—Harmless Error — Instructions.—Where the amount of a charge in an action for legal services was denied in the answer, but its correctness and the fact that it was to be paid by defendant were 'admitted in the testimony, it was not prejudicial error to instruct the jury to find for plaintiff the amount of this charge.</p> <p>8. Attorney and Client — Action for Compensation — Value of Services — Instructions.—In an action for legal services, the court properly instructed that the jury should take into consideration all of the evidence heard by them, and find for the plaintiff such a sum as would reasonably compensate him for the services performed, not exceeding in all the amount claimed in the petition.</p> <p>9. Same — Liability of Attorney — Skill and Care Required. — In an action for lega-l services, the court properly instructed that the attorney was liable to his client for failure to exercise -ordinary skill, care, and diligence, and that the jury might consider this liability in determining the value of the services rendered.</p> <p>10. Appeal — Review—Harmless Error. — Where a deposition contained no evidence that could benefit defendant, it was not - prejudicial error to refuse to allow defendant’s attorney to read it to the jury.</p> <p>11. Trial — Order of Proof — Discretion of Court. — Where a party, after completing his evidence in chief, offered to read on rebuttal a deposition taken by the adverse party the court did not abuse its discretion in refusing to permit this to be done.</p> <p>12. Attorney and Client — Compensation—Value of Services.— Plaintiff sued' for legal services in preparing 35 separate abstracts and perfecting the title to 3,800 acres of land which sold for nearly $200,000. He was engaged about five months in the work, and it wias not denied that he was particularly well qualified to perform the same. Held, that a verdict for $3,000 was not excessive.</p>

<p>1. Electricity — Injury Incident to Use — Care Required. — Those handling electricity where the voltage is such as to endanger human life must exercise a very high degree of care for the safety of others, but, where a less voltage is used which is not of itself dangerous, those who use it are only liable for ordinary care.</p> <p>2. Same. — A public telephone company inviting the public to use its instruments is not an insurer against injuries from electric shocks, but must use such care as may reasonably be expected of a person of ordinary prudence under the circumstances.</p> <p>3. Evidence — Other Injuries. — In an action lagainst a telephone company for injuries from an electric shock received by plaintiff while using one of defendant’s instruments, evidence that a short time prior to plaintiff’s injury a third person, in using another instrument in the same city, received a severe shock, was propery rejected.</p>

<p>CASE 13. — PROSECUTION AGAINST MILLARD MERZ FOR PEDDLING GOODS WITHOUT A LICENSE IN VIOLATION OF A CITY ORDINANCE.</p> <p>Appeal from Fleming Circuit Court.</p> <p>James P. Harbeson, Circuit Judge;</p> <p>From a judgment dismissing the warrant the city appeals.</p> <p>AUTHORITIES CITED.</p> <p>Taylor v. City of Owensboro, 98 Ky., 271; City of Owensboro v. Simms, 99 Ky., 49; Same v. Sparks, 99 Ky., 351; City of Carlisle' v. Heckinger & Co., 20 Ky. Law Rep., 74; Crosdale v. City of Cynthiana, 21 Ky. Law Rep., 36; Commonwealth v. Wright, 79 Ky., 36; Kerr v. Commonwealth, 27 Ky. Law Rep., 1234; Constitution, sec. 168; Ky. Statutes, sections 3637, 3642, 3639, 4201, 4218.</p> <p>Our contention is that when a person secures a license from the State to do business in ia town, the town has no right to prevent him from doing that business. The statutes provide that he shall pay the license fee of $100 to do business in a town and the town attempting by copying the exact language of that state into an ordinance does not authorize the town to charge a second license. (Ky. Statutes, sections 4216, 4217, 4201 and section 108.)</p>

CASE 14. — ACTION BY W. R. EMERSON AGAINST THE LOUISVILLE & NASHVILLE RY. CO. TO COMPEL IT TO PUT IN A CROSSING. Appeal from Warren Circuit Court. John M. Galloway, Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1.

<p>CASE 15. — PROCEEDINGS BY THE COMMONWEALTH AND OTHERS AGAINST J. M. CHAUDET AND OTHERS TO ASSESS OMITTED PROPERTY FOR TAXATION.</p> <p>Appeal from Livingston Circuit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>From the judgment plaintiffs appeal.'</p>

<p>1. Master and Servant — Injuries to Servant — Evidence.—In an action against a master to recover for injuries causing the death of an employe, through being caught in cogs forming part of a machine pushing steel into shears, evidence of a witness that, while employed in similar work on the same machine, he had on several occasions come very near falling • into the cogs by the slipping of the hook used by him to push the steel into the shears at the place where deceased was injured, and that he had reported this fact to defendant’s foreman, was admissible.</p> <p>2'. Trial — Question for Jury — Sufficiency of Evidence. — Where there' is any evidence, the question is for the jury.</p> <p>3. Master and Servant — Duty of Master — Safe Place to Wfork.— It is the duty of the master to furnish his servant a reasonably safe place to work so far as may be done by the exercise of ordinary care.</p> <p>4. Same — Evidence-—Presumption.—In an action against a master for injuries resulting in the death of an employe, -the pre- * sumption was, in the absence of other evidence, that decedent continued at work from the time he was last seen working until the time of the injury.</p> <p>5. Same — Negligence-—Question for Jury. — Where the master set a servant to work by the side of a revolving shaft conveying unprotected cogs and revolving rolls over which it was the servant’s duty to push hot steel bars, on which the hook used to push them was liable to slip, and any slip of the hook might throw the servant on the cogs, it could not he held as a matter of law that there was no evidence that the master was negligent in failing to provide the servant a reasonably safe place to work so far .as it might he done by the exercise of ordinary care.</p> <p>6. Sarnie — Contributory Negligence — Question for Jury. — In an action against a master for injuries resulting in the death of an employe, the question of contributory -negligence held, under the evidence one for the jury.</p> <p>7. Same — Assumption of Risk. — In an action against a master for injuries resulting in -the death of an employe, through being caught in the cogs of a machine used for' carrying steel to shears, the question whether a man unaccustomed to work of that sort, being placed at the work in the night-time, would, by ordinary care, perceive the danger in which he was placed, and hence- would assume the risk, was a quéstioh for the jury.</p> <p>8. Same — Knowledge of Defect in Appliances. — Under the rule that a servant, where inspection is not in the line of his duty, may recover unless he knew the danger, or it was so manifest that by ordinary care in the course of his. duty be should have known it, it is not sufficient that the servant knew of the defect in. the appliances but he must have known or understood the danger, or it must have been such as by ordinary care would have been known to a person of ordinary prudence, situated as he was.</p> <p>9. Same. — The rule that, if the servant he of mature years and of ordinary intelligence and experience, he is presumed to know and comprehend obvious dangers, does not apply where the circumstances repel the inference that he assumed the risk.</p> <p>10. Same-Questions for Jury. — Though the question of assumption of risk by a servant is often for the court, yet, where the inference to be drawn from the facts is one on which men may reasonably differ, it must be left to the jury.</p> <p>11. Same. — A servant continuing to work without objection, where he has a reasonable time to make objection after notice of the dangerous character of the machine and before his injury, assumes the risk.</p> <p>12. Same — Contributory Negligence. — A servant continuing to work where the danger from machinery is so great that a person of ordinary prudence, situated as he was, would not 'in the exercise of ordinary care have continued to work is guilty of contributory negligence.</p>

<p>CASE 17. — PROSECUTION AGAINST NEWTON REED, NATHAN DAY AND EDGAR PATRICK FOR MURDER.</p> <p>Appeal from Morgan Circuit Court.</p> <p>L. E. Johnson, Special Judge.</p> <p>Defendant Reed convicted of voluntary man-, slaughter and appeals.</p> <p>Our contention is that to make a man a principal in the second degree, there must be a principal in the first degree; that is to say, there must be one who does the act or thing, without which there is no crime, and with respect to the doing of which, the other or principal in the second degree was present, aiding and abetting. If there be no principal in the first degree, no one does the act or thing, constituting the crime, there can of course be no principal in the second degree. The principal in the first degree is the one who actually commits the criminal act. By his act he is guilty, without reference to the act of the other, or principal in the second degree; but the principal in the second degree cannot be guilty of crime, unless the principal in the first degree actually perpetrates the act.</p> <p>AUTHORITIES CITED.</p> <p>Blackstone, book 4, 34; Mulligan v. Commonwealth, 84 Ky., 232; Bishop’s Criminal Law, vol. 1 sec. 666, sub-sec. 2; Bishop’s Criminal Law, vol. 1, sec. 667; 44 L. R. A., 838; 51 La. Ann., 731; Stevens v. Commonwealth, 98 S. W. R., 287.</p> <p>. POINTS AND AUTHORITIES CITED.</p> <p>Section 1128, Ky. Stats., reads as follows:</p> <p>.“In all felonies accessories before the fact shall be liable to the same punishment as principals, and may be prosecuted jointly with principals, or severally, though the principal be not taken or tried, unless otherwise provided in this chapter.”</p> <p>, This states entirely the common law rule. Under the section quoted the accessory may be tried and convicted, though the principal he neither taken nor tried. Certainly this statute is bread enough to be said to mean that though the principal be taken, tried and acquitted, yet the accessory, or principal in the second degree (as appellant undoubtedly is) may be tried and convicted. Onr statute makes him a principal in the first degree. There is no escape from that proposition.</p> <p>Certainly the law will not be construed to say that when a person who has committed a misdemeanor is trying to escape by flight, that .an officer or member of a posse may ruthlessly shoot him down, while in flight.</p>

<p>1. Constitutional Law — Courts—Jurisdiction—Representative Districts — Political Question. — Whether a statute redistricting the state into representative districts makes a division so unequal as to be a violation of Const., section 33, requiring such division to be in proportion to population, is not so purely a political question as to be beyond the jurisdiction of the courts.</p> <p>2. States — Division—Representative Districts — Equality.—Act March 23 1906 (Acts 1906, p. 472, c. 139, redividing the state into representative districts and placing Ohio, Butler, and Edmonson counties, with, a population of 53,263 and a combined area of 1,241 square miles, into ,one district with only one representative, while Spencer county, with only 7,407 population and 204 square miles, is made a district by itself, entitled to one representative, constituted such an unequal division as to violate Const., section 33, requiring a division of the state into districts as nearly equal in population as may be without dividing any county except where a county may include more than one district, etc.</p> <p>3. Same — Formation of Districts. — Const., section 33, provides for the division of the state into 100 representative districts as nearly equal in population as may be without dividing any county except where a county may include more than one district, that in making such division not more than tw.o counties shall be joined together to form a representativo district, and that no part of a county shall be added to another county to make a district. Held, that such section does not absolutely prohibit the joining of more than two counties to form a representative district, provided it be necessary to effectuate that equality of representation demanded by the whole section.</p>

<p>1. Wills — Probate — Establishment — L'ost Wills —■ bleadihg — Amendment. — In a proceeding -to prove the contents of a lost will, the court did not err in allowing an amendment to the statement offered for probate in the county court, as containing the substance of the will after the cause had been appealed to the circuit court, and during the progress of the trial.</p> <p>2. Same — Hearing on Trial — Questions for Jury. — In order to establish a lost will as the last will of a party, its execution, substance, and that it was not revoked, must be clearly and fully established to the satisfaction 'of the jury.</p> <p>3. Same — Testamentary Capacity- — Illness.—Where it was shown that a testator could make himself understood to those who prepared his will, the fact that he was unable to talk above -a whisper, and that those unfamiliar with his condition could not understand him, was not proof of want of capacity.</p> <p>4. Same — Evidence—Sufficiency.—In a proceeding to prove the contents of a lost will, and have the same admitted to probate, evidence showing that the will carried out an express purpose of long standing with regard to testator’s brothers and sisters, and made a most natural and reasonable provision fcr his wife and daughter, taken in connection with other evidence was sufficient to sustain the finding that decedent had capacity to make the will.</p>

<p>CASE 20. — ACTION BY W. H. YAGER’S ADMINISTRATOR AND' OTHERS AGAINST THE PRESIDENT, DIRECTORS, AND BANK OP KENTUCKY AND OTHERS TO' RECOVER CERTAIN BANK STOCK OR ITS VALUE..</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge,</p> <p>Judgment for defendants. Plaintiffs appeal.</p> <p>(No briefs — record out of office.)</p>

<p>CASE 21. — ACTION BY GROVER BOLLINGTON BY NEXT FRIEND, ETC., AGAINST THE LOUISVILLE & NASHVILLE R. R. CO., FOR DAMAGES FOR PERSONAL INJURIES</p> <p>Appeal from Boone Circuit Court.</p> <p>John M. Lassing, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Excluding the negligence of fellow servants, a servant assumes the ordinary risks of his employment, with the instrumentalities, in the place, and under the rules of the work for which he is engaged, which are reasonably necessary and incident to it, and which are apparent to ordinary observation — provided:</p> <p>(a) He knew or appreciated, or should have known and appreciated, the risks aid dangers, in the prudent exercise of his senses and common sense, regard being had to his age, capacity and experience.</p> <p>(b) The master has exercised reasonable care to prevent them.</p> <p>2. Before the risk is assumed the servant must be upon equal terms with the master as to knowledge and understanding. A servant could not and does not assume a risk in the course of his employment, that is riot obvious or apparent and which could not have been known to him by the use of ordinary care and prudence.</p> <p>3. While the servant assumes the risk, more or less hazardous, of the service in which he engages, he has a right to assume that all reasonable attention will be given by his employer to his safety, and that he shall not be carelessly and needlessly exposed to risks which- might be avoided by ordinary care and precaution on the part of his employer.</p> <p>CASES CITED.</p> <p>Cudahy Packing Co. v. Marcan, 45 C. C. A., 515; Rummell v. Dilworth, 1 Cent. Rep., 905; Southern Railway Co. v. Hart, 23 Ky. Law Rep., 1056; Bailey on Personal Injuries, 2666, 2665, 2836; Davis v. St. L., &c., R. Co., 53 Ark., 117; Ziegler v. Danbury & N. R. Co., 52 Conn., 543; Boyce v. Fitzpatrick, 80 Ind., 527; Roessler Hasslacher Chemical Co. v. Peterson, 135 Fed. Rep., 789; Smith v. Peninsular Car Works, 60 Mich., 501; Rillston v. Mather, 44 Fed. Rep., 743; McGowan v. LaPlata Min. & Smelting Co., 9 Fed. Rep., 861; Holland v. Tenn. Coal, I. & R. Co., 91 Ala., 444; East Jellico Coal Co. v. Stewart, 24 Ky. Law Rep., 420; Sullivan’s Adm’r v. Louisville Bridge Co., 9 Bush, 88-9; Bogenschutz v. Smith, 84 Ky., 339.</p> <p>POINTS CITED.</p> <p>It must be taken as true from the allegations of plaintiff’s petition:</p> <p>First, That lappellant was nineteen years old.</p> <p>Second, That appellant had some knowledge and experience in mixing lime and whitewash and making whitewash.</p> <p>Third, That appellant was capable and competent to do the work, .and labored under no disability. or infirmity of either body or mind.</p> <p>Fourth, That appellee knew of the age of the appellant, and. also knew that he had some experience and knowledge in and about the business, so that in either view of the case as set out by the appellant he is not entitled to recover.</p> <p>The person guilty of the negligence and carelessness, which not only contributed to the injury, but was the immediate and direct cause of it, was appellant himself.</p> <p>LIST OF AUTHORITIES CITED.</p> <p>Wilson, Adm’r, v. Chess & Wymond Co., 25 Ky. Law Rep., 1665; Wood’s Law of Master and Servant, 166; Brown v. Oregon Lumber Co., 33rd Pac.; Stewart v. New Albany Mfg. Co.,-43 N. E., 961; Pordy v. Westinghouse Electric F. M. G. Co., 47 Atlantic, 237; Amer. & Eng. Encyc., vol. 12, p. 503; Allison Mfg. Co. v. McCormick, 118 Pa. St., 519; Am. & Eng. Encyc. of Law, vol. 12, p. 502; C. & O. Railway Co. v. Thierman, 15 Ky. Law Rep., 655; Kelly v. Barber Asphalt Co., 93 Ky., 367; Amer.' & Eng. Encyc., vol. 14, p. 842; Ciriacks v. Merchant’s Woolen Co., 23 N. E., 830; Williamson v. Sheldon Marble Co., 29 Atl., 669; Cudahy Packing Co.'v. Marcan, 106 Fed.; Amer. & Eng. Encyc., vol. 12, p. 503; Omaha Bottling Co. v. Theirder, 80 N. W., 821; Thain v. R. R. Co., 37 N-. E., 309; Manufacturing Co. v. Arckson, 53 Fed., 943; Hill v. Myer Bros., 41 S. W., 909; Roessler & Hasslacher Chemical Co. v. Peterson, 134, Federal, 789; Wilson’s Adm’r v. Chess Wymond & Co., 25 Ky. Law Rep., 1655; C. N. O. & T. P. Ry. Co.’s Receiver v. Fennell’s Adm’r, 108 Ky., 140, and cases there cited.</p>

<p>CASE 22. — PROSECUTION AGAINST CHARLES M. GREEN-WELL, WEBB AND RUSSELL GREENWELL FOR MALICIOUSLY SHOOTING AND WOUNDING OVER-TON NEWTON WITH INTENT TO KILL.</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Defendants Charles M. and Webb G-reenwell convicted and appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The indictment charges more than one offense and the 'demurrer should have been sustained. (Criminal Code, section 126; Ky. Stats., section 1166; Commonwealth v. Patrick, 90 Ky., 607.)</p> <p>2. Every instruction must be based upon a theory supported by evidence.</p> <p>3. The instruction on self-defense does not permit either of the defendants to avail himself of the plea unless all the defendants beleved that he or they were in danger of death or great bodily harm at the hands of Newton. (Arnold, &c., v. Commonwealth, 21 Ky. Raw Rep., 1572.)</p> <p>4. The instruction denies to each of the defendants the right to the plea of self-defense, if either of his codefendants provoked or brought on the difficulty, although he did not participate in such wrongful act. (Turner v. Commonwealth, 17 Ky. Law Rep., 1280.)</p> <p>5. The misconduct of the commonwealth’s attorney was such as to reasonably inflame the minds of the jury and excite their prejudice and require a reversal. (State v. Fisher, 124 Mo., 460; State v. Bobbst, 131 Mo., 1149; Stone v. State, 22 Tex. App., 185; State v. Baker, 57 Kans., 541.)</p> <p>6. Conduct of the commonwealth’s attorney well calculated to prejudice the jury against a defendant will warrant a reversal of the conviction although the court sustained objections to the unwarranted statements. (Heller v. People, 22 Cal., 11, 43 Pac., 124; People v. Fielding, 158 N. Y., 542, 46 L. R. A., 652; Moore v. State, 21 Tex. App., 666; Cargill v. Commonwealth, 12 Ky.- Law Rep., 151; Rhodes v. Commonwealth, 21 Ky. Law Rep., 1071.)</p> <p>7. The court admitted evidence of alleged trouble between Miles Head and appellant Webb G-reenwell and of the killing of Johnie Burns and that Tom Newton was shot by one of defendants which was highly prejudicial.</p> <p>SUBJECTS DISCUSSED AND CITATIONS.</p> <p>1. The indictment is good.</p> <p>(a) It is not had for duplicity in joining aiders and abettors. (Patrick v. Commonwealth, 80 Ky., 605; Howard v. Commonwealth, 110 Ky., 358; Benge v. Commonwealth, 92 Ky., 1, Travis v. Commonwealth, 96 Ky., 77; Howard v. Commonwealth, 96'Ky., 19; Jackson v. Commonwealth, 100 Ky., 239; Collins v. Commonwealth, 24 Ky. Law Rep., 884; Angel v. Commonwealth, 14 Ky. Law Rep., 10; Puckett v. Commonwealth, 13 Ky. Law Rep., 466; Culp v. Commonwealth, 82 Ky., 35.)</p> <p>(b) This is one offense committed by different means and different modes and the act of shooting, striking and cutting are not distinct or separate offenses. (Criminal Code, sec. 126; Commonwealth v. Duff, 87 Ky., 586; Commonwealth v. Lowe, 25 Ky. Law Rep., 535; Ben v. State, 58 Am. Dec., 234; Wharton Criminal Law, sec. 416; State v. Bell, 92 Am. Dec., 658, s. c.; 27 Md., 675; footnote vol. 92 Am. Dec., p. 661; Teat v. State, 53 Miss., 439, s. c., vol. —, Am. Dec. p. —.)</p> <p>2. The first instruction is a concise exposition of the law. (Howard v. Commonwealth, 110 Ky., 358; Benge v. Commonwealth, 92 Ky., 1; Travis v. Commonwealth, 96 Ky., 77; Howard v. Commonwealth, 96 Ky., 19; Jackson v. Commonwealth, 100 Ky., 239.)</p> <p>3. The instruction on self-defense is not subject to criticism. (Arnold v. Commonwealth, 21 Ky. Law Rep., 1572; McIntosh v. Commonwealth, 29 Ky. Law Rep., 1100; Utterhack v. Commonwealth, 105 Ky., 723; Taber v. Commonwealth, 26 Ky. Law Rep., 754.)</p> <p>4. As to misconduct of counsel for the commonwealth. (Delaney v. Commonwealth, 18 Ky. Law Rep., 214; Parrot v. Commonwealth, 20 Ky. Law Rep., 754; Brown v. Commonwealth, 13 Ky. Law Rep'., 852; Dunklin v. Commonwealth, 13 Ky. Law Rep., 195; Cottrell v. Commonwealth, 13 Ky. Law Rep., 305; Hilton v. Commonwealth, 13 Ky. Law Rep., 158; Handley v. Commonwealth, 15 Ky. Law Rep., 736; Whitney v. Commonwealth, 24 Ky. Law Rep., 2524; Jackson v. Commonwealth, 100 Ky., 238; Bishop v. Commonwealth, 22 Ky. Law Rep., 1164.)</p> <p>5. No incompetent evidence was admitted. (Horens v. Commonwealth, 26 Ky. Law Rep., 710.)</p>

<p>L Counties — Payments under Void Warrants — Remedies.—Where a warrant for the payment of a claim against a county, and the order on which it was issued, were void, the county was not required to prosecute an appeal from the order before it could sue for the money paid on the warrant.</p> <p>2. Same — Implied Contracts. — A county cannot become indebted for personal services rendered it on an implied assumpsit.</p> <p>3. Same — Records.—Under Ky. Stats., 1903, section 1837, providing that the fiscal court of a county can only act at stated and called meetings, and section 1843, requiring it to keep a record of its acts or the same shall be void, a contract for the employment of one to render services for the county is void, where no record of the employment is made.</p> <p>' 4. Samé — Acts of Fiscal Court. — An order directing the issuance of a warrant payable to a person named in payment for services rendered a county' signed by tbe county judge of tbe county and by its magistrates constituting the fiscal court, but not by the fiscal court in session, is not an act of the court, and is void, and the county court has no jurisdiction to record it.</p> <p>5. Same — Order of Fiscal Court — Collateral Attack. — An order directing the clerk of a county to issue a warrant to a person named in payment of services rendered for the county signed by the persons constituting the fiscal court, but not by the fiscal court in session, is void, and may be collaterally attacked by the county.</p> <p>6. Money Received- — Recovery of Money Wrongfully Paid.— Where a county pays money- under a void warrant through the mistake of its officers and the person receiving the money the county may recover it as for money had and received.</p>

<p>1. Appeal — Verdict—Conflicting Evidence. — A verdict based on conflicting evidence will not be set aside on appeal as against the weight of the evidence.</p> <p>2. Torts — Parties—Joint Tort-Feasors. — Where two railroads and defendant city were alleged to have jointly contributed to detain surface water so as to flood plaintiff’s • land, they were all joint tort-feasors and properly joined as defendants in a suit for the damages sustained, as authorized by Civil Code Practice, section 83.</p> <p>3. Waters and "Water Courses — Surface Water — Use of Property. —The owner of a lower estate, subject to the servitude of receiving the natural flow of surface water from plaintiff’s iipper estate, is not entitled to fill up his lot in order to make it fit for occupancy and the prosecution of business, if the effect is to retard the flow of such water and to turn it back on the upper ground.</p> <p>4. Same — Rights of Dominant Ówner. — The owner of upper ground has no . right to make excavations, barriers, or drains thereon by whibli the flow of surface water is diverted from its natural channel and a new channel made on the lower ground, nor can he collect in one channel waters usually flowing onto his neighbor’s land by several channels and thereby increase the flow on the lower ground.</p> <p>6. Same — Injuries, from Surface Water — Liability of Corporations. — Const, sec. 242, providing that municipal and other corporations! and individuals vested with the privilege of taking property for public use shall make just compensation for property, “taken, injured or damaged by them,” etc., does not relieve corporations not authorized to take property by eminent domain from liability for injuries to the owner of a dominant estate from the corporation’s filling up its servient' estate so as to throw back surface water naturally flowing thereon.</p> <p>6. Same — Measure of Damages.. — Where plaintiff’s property was injüred by defendant’s turning back surface water naturally flowing therefrom onto their land, the measdre of plaintiff’s damages, if the injury complained of was permanent, was the depreciation in the market, value of his property to be recovered in a single recovery; but if the injury was temporary and could be readily removed .and the property repaired, then the measure of damages was the depreciation in the rental value of the property during the period sued for, if rented out, or, if occupied by the owner, the diminution in the value of the use of the property during the continuance of the nuisance, covered by the period for which the action was brought.</p> <p>7. Same. — Instructions.—Where in an actidn for obstruction of surface water 'it appeared that plaintiff resided on the property damaged, it was error to charge the jury to allow him for loss in “its, rental value,” but instead the court should have charged that he was entitled to recover compensation for the destruction of his fencing sued for, and for the diminution of the value of the use of his property.</p>

<p>CASE 25 — PROSECUTION AGAINST WILLIAM THOMAS FOB HOUSEBREAKING.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>The appellant was indicted for housebreaking, the punishment of which' is confinement in the penitentiary from one to five years. The court instructed the jury if they found him guilty, they should fix his punishment at not less than one nor more than ten years. The jury 'fixed the punishment at ten years. The court against the objection of defendant rendered a judgment for five years. We contend the judgment was unauthorized and void, and that defendant is being" held without authority of law and should have been discharged.</p> <p>AUTHORITIES CITED. '</p> <p>Ky. Statutes, sections 1136, 1164; Heron- v. Commonwealth, 79 Ky., 38; Cornileson v. Commonwealth, 84 Ky., 583; Eldridge v. Commonwealth, 367.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>As4 the only alleged error of the lower court was- not excepted to, nor is properly presented to us for revision, we have no right to consider it, and the judgment must, consequently be affirmed.</p> <p>It is true that there was no motion for -a new trial, but there was a motion to set aside the verdict, or to arrest judgment.</p> <p>Under section 276 Criminal Code, the motion in arrest of judg ment is not proper in this- state of case.</p> <p>This section provides:</p> <p>“The only ground upon which a judgment shall be ariesibed is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.”</p> <p>So, this 'court cannot decide the question attempted to be brought before it, unless the court does as- we have done and treat's the motion in arrest of judgment as a motion for a new trial, and in that event, the application of section 281' of Criminal Code will compel the court to affirm.</p> <p>Bronson v. Commonwealth, 92 Ky., 333; Vinegar v. Commonweailithi, 104 Ky., 110; Redmon v. Commonwealth, 82 Ky., 335; Day v. Commonwealth (3 cases) 29 Ky. Law Rep., 814-816; Logs-den v. Commonwealth, 9 Ky. Law-Rep., 431; Jefferies v. .Commonwealth, 9 Ky. Law Rep., 875.</p>

<p>CASE 26. — PROSECUTION AGAINST THE MORGANFIELD AND ATLANTA RAILROAD CO. FOR A PUBLIC NUISANCE IN OBSTRUCTING A PUBLIC HIGHWAY</p> <p>Appeal from Webster Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Prom a judgment sustaining a demurrer to the indictment the commonwealth appeals.</p> <p>AUTHORITIES CITED.</p> <p>Illinois Central R. R. Co. v. Comth. of Ky., 20 Ky. Law Rep., 116; Comth. of Ky. v. Illinois Central R. R. Co., 20 Ky. Law Rep., 608; Comth. of'Ky. v. American T. and T. Co., 27 Ky. Law Rep., 29.</p> <p>2. Statement of facts, and time of Common nuisance. (White v. Comth. of Kentucky, 9 Bush, page 180; Comtb. of Ky., v. Illinois Central R. R. Co., 20 Ky. Law Rep., 608; Comth. of Ky. v. American T. and T. Co., 27 Ky. Law Rep., 29; L. and N. R. R. Co. v. Comth. of Ky., 25 Ky. Law Rep., 1454; Comth. of Ky., v. Illinois Central R. R. Co., 26 Ky. Law Rep., 673; The Cincinnati R. R. Co. v. Comth. of Ky., 80 Ky., page 138; Paducah and Elizabethtown R. R. Co. v. Comth. of Ky., 80 Ky., p. 148; Comth. of Ky. v. Conner, 2 Ky. Law Rep., 59.)</p> <p>(No brief for appellee.)</p>

<p>CASE 27. — ACTION BY ALBERT ENGLE AGAINST THE TENNIS COAL COMPANY TO QUIET TITLE TO LAND.</p> <p>Appeal from Perry Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendant. ‘Plaintiff appeals.</p> <p>AUTHORITIES.</p> <p>A writ of forcible entry and detainer or forcible detainer does not involve the question as to title to land. (Mason v. Bascom, • 3 B. Mon., 272; Lancaster v. Lancaster, 19 Ky. Law Rep., 577.)</p> <p>2. Records of judgments of forcible entry and detainer are not admissible in evidence in bar of an action of ejectment. (Mattox v. Hahn, 5 Littell, 187).</p> <p>4. Bills to quiet title construed. (Clark v. Smith, 13 Peters Statutes section II.)</p> <p>4. Bills to quiet title constructed. (Clark v. Smith, 13 Peters 195; Holland v. Challen, 110 U. S„ 15, 26).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The prior pendency of suit for forcible entry abates action quia timet. (1 Enc. Plead, & Prac., 763; Black on Judgments section 663; Mitchell v. Davis, 23 Cal., 381; Norwood v. Kirby, 70 Ala., 197).</p> <p>2. Possession of the land in controversy in both actions is indispensably required of plaintiff as condition of prosecuting suit quia timet, to show both title and possession of the premises. (Trustees, &c. v. Gray, 1 Litt., 146; Whipple v. Earick, 93 Ky., 121; Smith v. Lewis, 21 Ky. Law Rep., 1400; Layne v. Ferguson, 24 Ky. Law Rep., 444; Floyd v. L. & N., Ib., 2147).</p> <p>3. The judgmeiit in a forcible detainer suit would be conclusive and estop appellant from either showing title in himself or setting up outstanding title in another, and would further show the possession to have been the possession of appellee by appellant as. its tenant and defeat appellant’s standing in the equity suit.</p>

Case 28. — indictment -against john w. kelley for EMBEZZLEMENT. Appeal from Trigg Circuit Court. Robert Crenshaw, Special Judge. From, a judgment sustaining a demurrer to the indictment the commonwealth appeals. 1.

<p>1. Commerce — Subjects of Regulation — Navigable Waters.— The Cumberland river, being navigable, is a natural highway for commerce between two or more states, and jurisdiction over it for purposes of interstate commerce is in Congress.</p> <p>2. Same — Jurisdiction of United States Courts. — Under the commerce clause of the United States Constitution (section 2, art 3), maritime jurisdiction over the nontidal navigable inland waters of this country where they are susceptible of use for interstate traffic, is vested in the United States courts.</p> <p>3. Same — Foreign Corporations — Regulation.—Ky. Stat., 1903, ■section 571, which -provides that all corporations carrying on business in this state shall have one or ’ moré known places of business in the state, and an authorized agent thereat .upon whom process can be served, and making it unlawful for such corporations to carry on any business in the slate without complying with the requirements of the section, and filing a statement with the Secretary of State, etc., is void, in so far as it affects 'Steamship companies engaged in interstate traffic, because in conflict with Const. U. S. art. 1, sec. 8, subsec. 3, providing that Congress shall have the exclusive power to regulate commerce among the several states.</p>

<p>CASE 30. — PROSECUTION AGAINST JOHN OLDHAM AND ANOTHER FOR VIOLATING THE LOCAL OPTION LAW.</p> <p>Appeal from Russell Circuit Court.</p> <p>H. C. Baker, Circuit Judge.</p> <p>Prom a judgment dismissing the prosecution the commonwealth appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>The judgment of the lower court gives this statute and proviso, the opposite meaning and effect intended by the Legislature. Under the proviso “at the place of sale” and, ‘'at the place of manufacture,” are identical and synonymous terms. The mere fact that the whisky was not made “at the place of sale,” shows with unerring certainty, that the whisky wias not sold “at the place of manufacture, ”we insist that the Legislature used the expression “at the place of manufacture,” in the ©ense of synonymous with “factory” or “manufactory.” To say that “at the place of manufacture,” means “near by etc.,” is to confess and avoid.</p> <p>Such a construction destroys the certainty of the act, contravenes the will of the Legislature as expressed, and leaves it for each judge to determine whether the sale was authorized or not according to his notions pro and con, on the subject of the liquor traffic. (Commonwealth of Ky. v. Holland, 304 Ky., 323; section 4224, Ky. St.; Commonwealth v. Asbery, 104 Ky. Reports, 320; Epps v. Epps, 17 111., App., 196; State v. Femado, 39 La. Ann., 538; New South Brewery & Ice Co. v. Commonwealth; Creedle v. Commonwealth, 29 Ky. Law Rep., 873).</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>We submit that the construction of the statute contended for by the Com. Atty. would defeat the plain intention of the Legislature. Under the local option law in force in Russell county the defendants had the right to sell and did sell in quantities of five gallons. The state law prohibiting the sale by wholesale in local option counties, districts', etc., contains an exception in favor of the distiller selling liquors of his own make. If defendants could not sell, as they did in this case, from their free warehouse, they can not sell at all, and the exception in their favor is meaningless, and they would be prohibited from selling instead of permitted to sell, asi the legislature intended to permit them to do. (Session Acts 1904, page 160; Session Acts 1906, page 363; Revised Statutes,.U. S., sections 3287 and 3288; Ky. Statutes, section 2558).</p>

<p>CASE 31. — PROSECUTIÓN AGAINST WALTER STOCKTON AND ROBERT TILLMAN FOR ROBBERY.</p> <p>Appeal from Mason Circuit Court.</p> <p>James P. Hakbeson, Circuit Judge.</p> <p>Defendants convicted and appeal.</p> <p>Our contention is:</p> <p>(1) Taking by means of a trick — This is not robbery in the absence of violence.</p> <p>(2) Intentional force — Where robbery is accomplished by force or violence, it must appear that the violence was intentiona.</p> <p>(3) Snatching — The mere snatching of a thing from the hand or person of another without any struggle or resistance by the owner or any force or violence on the part of the theif does not amount to robbery. But snatching an article from a person will constitute robbery, if the thing is> so attached to the person or clothes as to afford resistance.</p> <p>AUTHORITIES.</p> <p>Robertson Ky. Criminal Law, vol. 1, p. 379; Breckenridge v. Com., 97 Ky., 267; Greenleaf Evidence, vol. 3, sec. 223; State v. John, 69 Am. Dec., 777; Shinn v. State, 31 Am. Rep., 110; State v. Com., 43 Iowa, 418; Rex v. Gnosil, 1 C. & P., 504; State v.Jenkins, 36 Mo., 371; Am. & Eng. Encyclopedia, 1 Ed., vol. 21, p. 420; Allen v. Com., 86 Ky., 642; Williams v. Com., 7 Ky. Law Rep., 744; McDaniel v. State, 47 Am. Dec., 93; State v. Trexler, 6 Am. Dec., 558;' 2 Russell on Crime, 68; Roscoe Crim. Evidence, 5 Am. Ed., 898).</p> <p>DISTINGUISHED.</p> <p>Williams v. Com., 20 Ky. Law Rep., 1857; Davis v. Com., 21 Ky. Law Rep., 1295; 112 Ky., 689; 93 S. W„ 1028; 21 Ky. Law Rep., 1538; 20 Ky. Law Rep., 1850; 57 L. R. A., 432).</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>The jury is the proper tribunal to determine whether or not force was used. It heard the testimony in this case; saw the witness face to face, and saw Warner demonstrating how this money was taken from him and its judgment is that the defendant did use force in snatching this hill from Warner’s hand. (Perry v. Commonwealth, 28 Ky. Law Rep., 512; Williams v. Commonwealth, 22 Ky. Law Rep., 1850).</p>

<p>1. Perjury — Indictment—Jurisdiction of Officer. — An indictment for perjury alleged that defendant was duly sworn by G., a justice of the peace of L. county, to testify the truth on the examining trial in the case of the commonwealth against defendant and others, charged with the murder of N., then pending before G., who had authority to administer such oath, etc. Held, that a justice of the peace being authorized under certain circumstances by Cr. Code Prac. sec. 71, sub-sec. 3, to conduct a preliminary examination of a person charged with homicide, the indictment was not defective for failure to allege factsi showing that such authority existed in the instance in question, such facts being proper to be offered in evidence at the trial.</p> <p>2. Same — Elements of Offense. — Cr. Code Prac., sec. 134, provides that an indictment for perjury is sufficient, if it sets forth the substance of the controversy or matter in respect to which the offense was committed, the court or officer before whom the oath alleged to be false was taken, that such court or person had authority to administer the oath, with proper allegations of the falsity of the matter on which •the perjury is assigned. Held, that an indictment alleging that defendant, after being duly sworn by G., a justice of the peace of L. county, to testify the truth at the examining trial of defendant and certain others, charged with the murder of N., then pending before such justice, who had authority •to administer such oath., did unlawfully, willfully, etc., testify that he did not at a certain time and place have a certain conversation, with deceased, when in fact defendant had such conversation, and that his testimony so given was material and false, etc., sufficiently charged the commission of perjury.</p>

<p>CASE 33 — ACTION BY THE WHITE HOUSE CANNEL COAT, CO. AGAINST THE SANDY RIVER CANNEL COAL CO. FOR DAMAGES FOR REMOVING COAL FROM ITS LAND.</p> <p>Appeal from Johnson Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment for plantiff. Defendant appeals.</p> <p>The consideration of the authorities and the reasons therefor, together with the evidence in this case and the map filed with the transcript will be, we think, sufficient to sustain the propositions.</p> <p>1st. That when the coal was mined, it was mined with the honest belief that the land belonged to the defendants, based upon the miniments of title which had been passed upon by reputable counsel, and declared sufficient to pass the estate therein.</p> <p>2nd. That the quantity of coal mined and taken from the disputed land was 3942 4-5 tons of coal, of the value of $985.70, based upon the reckoning at 25c. per ton, a sum in view of the proof, largely in excess of the value of the coal, but which appellant is held to, since no exceptions was filed by it to the Commissioner’s Report.</p> <p>3rd. That the finding of the court in favor of the plaintiff for the sum of $4318.04 is flagrantly in excess of the value of the coal taken and the injury to the property that this case should he reversed, with instructions to the court below to enter judgment for the appellee for the sum of $985.70, with interest and cost and so believing this brief and list of authorities is respectfully submitted.</p> <p>AUTHORITIES CITED.</p> <p>Winchester-v. Craig, 33 Mich., 205; 17'English Ruling Cases, 879; Forsyth v. Wells, 41 Pa. State 291, 80 Am. Dec., 617; Wood v. Mooreland, 3 Q. B., 440, note; 84 Am. Dec., 766; 90 Am. Dec., 206; 10 State 430; 16 State 196; Bainbridge on Mines and Minerals, 510; Greenfield Bank v. Leavitt, Í7 Pick, 1, 28 Am. Dec., 268; Durant Mining Company v. Percy Con. Mining Co., 93 Fed., 166; Unitdd States v. Homestake Min. Co., 117 Fed., 481; Trustees of Dartmouth College v. Inter-National Paper Co., 132 Fed., 93; Hilton v. Woods, L. R., 4 Eq., 432; Livingston v. Raw-yards, 5 A. C., 25; Coal Creek Min. & Manf. Co. v. Moses, 54 Am. Rep., 415.</p> <p>POINTS AND AUTHORITIES.</p> <p>The appellee and cross-appellant maintains that the record establishes the following propositions:</p> <p>1. That the appellant and cross-appellee mined and removed from the property in question eleven hundred and eighty (1180) tons of coal before the issual of the injunction; and as to this the measure of damage is stated in proposition No. Ill hereof.</p> <p>2. That the appellant and cross-appellee mined and removed from the property in question eighty-nine hundred and thirty-eight (8938) tons of coal after the issual of the injunction; and as to this the measure of damage is as stated in proposition No. IV. hereot,</p> <p>. 3. The taking and removal of the eleven hundred and eighty (1180) tons before the issual of the injunction was willful and intentional, and the measure of damages is the full market value of the coal taken as of the date it was converted, without any deduction for the labor bestowed or expenses incurred in removing it to the mouth of the entry or on board cars. (I. & St. L. R. Co. v. Ogle, 92 111., S. C., 25 Am. R„ 342; Strubee v. Trustees, &c., 78 Ky., 481; Royal Mining Co. v. Hurting, 37 Mich., 332; Powers v. Tillie, 87 Me., 34; 47 Am. St., 304; Miss. River Log Co. v. Page, 68 Minn., 269; .71 N. W., 4; Hoxsie v. Co., 41 Minn., 5481; 43 N. W., 476; U. S. v. Hometake Co., 117 Fed.., 481).</p> <p>4. The measure of damage for coal mined after the issual of the injunction, is the value of the coal at the mouth of the mine, less the expense of mining and of carrying it to that place. (Bar-ringer and Adams the Law of Mines and Mining, pages 691 and 692; Sedgwick on Damages, 8 Ed., section 935; Sedgwick and Wait Trial Titles of Lands, 1st. Ed., 677, quoting Ege v. Kille, 84 Pa., St., 333; Hardy v. Young, 53 Pa. St., 176; Forsythe v. Wells, 41 Pa. St., 291; Coleman’s Appeal, 62 Pa. St., 278 Barton Coal Co. v. Cox, 39 Md., 1; Sutherland on Damages, 1st. Ed., vol. 3, page 348; Kille v. Ege, 82 Pa., 102; Sutherland on Damages-, vol. 1, pages 164-171; White on Mines and Mining Remedies, 568; Wilde v. Holt, 9 M. W„ 672; Martin v. Porter, 5 M. W„ 351; Morgan v. Powell, 2 Q. B., 278; Royal Mining Co. v. Hurting, 26 Am. R., 528; Illinois, &c., Co. v. Ogle, 82 111., 627, 25 Am. R., 342; Mayne on Damages, 290; George v. Vivian (reported in English Ruling Cases, vol. 17, 840, &e.) Jobe v. Potton; Woodenware Co. v. U. S., 106 U. S., 432; A stin w. Huntsville, &c. Co., 72 Mo., 535; 37 Am. R., 446; Blane Coal Co. v. McCulloch, 59 Md., 403; Cold Creek Coal Co. v. Moses, 15 Lea, 300; Ross v. Scott, 15 Lea, 479; Daugherty v. Chestnut, 2 Pickle, 1; Donovan v. Consolidated Ccal Co., 127 111., 28: S. C. 79 Am. St., 206; Durant Min. Co. v. Percy Consol. Min. Co., 93 Fed., 166; Trustees Darmouth College v. International Paper Co., 132 Fed., 92; Pine River Logging Co. v. U. S., 186 U. S., 279; Colorado v. Turcke, 70 Fed., 294; Sunnyside Coal & Coke Co. v. Reitz, 39 N. E., 541; Ellis v. Wire, 33 Ind., 127; Meriwether v. Bell, &c., .22 Ky. Law Rep., 844; Patterson v. Waldman, 20 Ky. Law Rep., 514; Hail v. Reed, 15 B. M., 479.)</p> <p>5. Allowance of interest from the date of actual conversion, is proper: (Sutherland, vol. 1, page 174; Leonard v. Whittaker, 3 Bibb., 92; Saunders v. Vance, 7 T. B. Mon. 209; Levi v. Stallard, 6 Ky. Law Rep., 656; White Sewing Machine Co. v. Conner, 111 Ky., 827; Ohio Revised Statutes, section 4982; White Mines and Mining Remedies, section 570).</p>

<p>CASE 34. — ACTION BY JOSEPH E. POTTER AGAINST CHARLES BELL INVOLVING THE RIGHT OF THE GENERAL COUNCIL OF A CITY OF THE SECOND CLASS TO ELECT A MARKET MASTER.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>(No authorities cited.)</p> <p>AUTHORITIES CITED.</p> <p>Davis v. Claus, 29 Ky. Law Rep., — ; Lowery v. Lexington, 25 Ky. Law Rep., 392; Ky. Statutes, sections 3049, 3058, subsec. 7 and 8; 3094; 3108; 3118 to 3125.</p>

<p>1. Municipal Corporations — Actions—Enforcement of Taxes— Laches. — Under the statute providing that limitations shall run against both state and^ municipal taxation, a city’s right to enforce a tax lien may be lost by inexcusable laches.</p> <p>2. Lis Pendens — Tax Lien — Enforcement—Laches—Bona Fide Purchasers. — Where the claim of a city for taxes against certain land sold to defendant trust company pending suit to foreclose the city’s lien could have been ascertained by the purchaser by application to the proper officer, a delay of five years in prosecuting such suit did not dissolve the lis pen-dens as against defendant, though it purchased without actual notice of such suit.</p>

<p>CASE 36. — ACTION BY J. ALEXANDER CHILES AGAINST C. & O. RAILROAD CO. FOR DAMAGES FOR EJECTING HIM FROM A CAR SET APART FOR WHITE PASSENGERS, BECAUSE OF HIS COLOR.</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>PRINCIPLES AND THE LAW RELIED UPON TO SUSTAIN SAME.</p> <p>1. New trial will be granted when count errs to the substantial rights of the appellant. (Hurt v. L. & N. R. R. Co., 25 Ky. Law Rep., 755; Ellis v. Ellis, 20 Ky. Law Rep., 438; Bums v. Mc-Gibbens, 9 Ky. Law Rep., 411; McGee’s case 3 J. J. Marshall 549).</p> <p>2. and 3. New trial will be granted when the verdict is palpably and clearly against the evidence; when it shows bias and prejudice. (Stover v. Jones, 20 Ky. Law Rep., 1369; L. & N. R. R. Co. v. Mitchell, 87 Ky., 327; Taylor v. Arnold, 13 Ky. Law Rep., 516; Searcy v. Hanks, 13 Ky. Law Rep., (Abstract) 306; Curry v. Vetters, 15 Ky. Law Rep., (Abst) 494; Steele Heirs v. Logan 3 A. K. Marshall, 394; McCoy v. Martin, 4 Dana, 580; Page v. Carter, 8 B. Monroe, 192; Empire Coal Mining Co. v. McIntosh, 82 Ky., 554; Hemstein v. Dupee, 24 Ky. Law Rep., 886; Mobile v. Ohio Co. Recvr., 25 Ky. Law Rep., 2236; L. & N. R. R. Co. v. Bates, 15 Ky. Law Rep., 724).</p> <p>4. New trial will be granted when improper testimony has been admitted, and relevant testimony excluded. (L. &. N. R. R. Co. v. McCoy, 81 Ky., 403; Coleman v. Allen 3 J. J. Marshall, 229; Ky. Code, sec. 340, subsec. 8; Scott v. Colmesnil 7 J. J. Marshall 416; McLeod v. Ginther’s Admx., 80 Ky., 399; Shérley v. Billings, 71 Ky., 147).</p> <p>5. New trial will be granted when improper and misleading and erroneous instructions are given. (Thompson v. Thompson, 17 B. Monroe, 22; Bell v. North, 4 Little, 133; Berry v. Branaham, 3 Ky. Law Rep., (Abstract) 756; Carrier v. Howard, 11 Ky. Law Rep., (Abstract) 443; Phelps v. Taylor, 4 T. B. Monroe, 170; Quisenberry’s Devisees v. Quisenberry’s Heirs, 14 B. Monroe, 481; Farmers Natl. Bank v. Wilkerson, 1 Ky. Law Rep., 351; Bonte y. Postell, 22 Ky. Law Rep., 583; Givens v. L. & N. R. R. Co., 24 Ky., 1796; Stanford v. Hussey, 17 Ky. Law Rep., 1194).</p> <p>6. New trial should be granted when the court failed to give the instructions asked for, upon interstate phase of the case, and did not couch substantially the law in its instruction. (Curry v. Spencer, 5 Interstate Commerce Commission, Report, 636; Hall v. DeCuir, 95 U. S., 495; Plessy v. Ferguson, 163 U. S., 537; State Ex Parte Abbott v. Hicks, 44 La. Annual 770; Anderson v. L. & N- R. R. Co., 62 Fed. Rep., 46; L. & N. O- T. R. v. Miss., 66 Miss., 662; Second Interstate Commerce Rep., 615 and 801).</p> <p>7. New trial should be granted, and finally case should be reversed, when the evidence of this trial showed, both under Federal and State law that equal accomodation had not £een provided. (C. & O. R. R. Co. v. Commonwealth of Ky., 179 U. S. Supreme Court, 368; Brown v. Memphis and C. & O. R. R. Co., 5 Fed. R., 499; Gray v. Cincinnati Southern R. R., 11 Fed., 683; Houck v. S. P. R. R. Co., 38 Fed. Rep., 226; The Sue Fed. Rep., 22, 843.; Murphy v. Western A. R. R. R. Co., 22 Fed. Rep., 637; O. V. Ry. Co. Recvr. v. Landers, 20 Ky. Law Rep., 9.13; Day v. Owens, 5 Mich., 520; Conger v. N. W. Packet Co., 37 Iowa, 145; Green v. City of Bridgetown, 9 Century Law Journal, 206; C. & O. Ry. Co. v. Williams., 55 III., 185; C. N. O. & T. R. R. Co. v. Bell, 25 Ky. Law Rep., 10; L. & N. R. R. Co. v. Commonwealth of Ky., 27 Ky. Law Rep., 176; Commonwealth of Ky. v. L. & N., 27 Ky. Law Rep., 933; L. & N. R. R. Co. v. Vincent, 29 Ky. Law Rep., 1409; Ky. Statutes Chap. 32, sec. 795 and 796).</p> <p>POINTS AND AUTHORITIES.</p> <p>A regulation of a railway company requiring white and colored passengers in Kentucky to ride in separate coaches is reasonable, and the carrier has a right to enforce compliance with such regulation. (Ohio Valley Railway’s Receiver v. Lander, 104 Ky., 431; Hall v. DeCuir, 95 U. S., 485; Roberts v. Boston, 5 Cush., 198; Britton v. A. C. Airline Ry. Co.; 6 Cyc., 545).</p>

<p>CASE 36. — ACTIONS BY MARY E. DAVIS AND ANOTHER AGAINST MATTIE E. DUKES AND ANOTHER AND AGAINST J. M. FRALEY AND ANOTHER, CONSOLIDATED, INVOLVING OWNERSHIP OF CERTAIN LAND.</p> <p>Appeal from McLean Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>From judgments for plaintiffs, defendants appeal.</p> <p>POINTS ARGUED AND AUTHORITIES CITED.</p> <p>1. The certificate of acknowledgment imports verity; and can. only be - attacked upon an allegation of mistake in, the officer, or fraud in the party to be benefited by it. (Ky. Statute, section 3750).</p> <p>2. Bates caused his deed to be recorded, entered into possession of the land, improved it, and afterwards disposed of it by willing it to appellants-; thesel acts' show an acceptance. (Shoptow v. Ridgeway’s' Admr., 22 Ky. Law* Rep., 1495; 60 S.. W., 723; Williams v. Smith, 22 Ky. Law Rep., 1Í439; 60 S. W., 840).</p> <p>3. The deed from J. M. Cleek, to appellee was recorded, and the presumption is that she accepted it. (Sopto-w v. Ridgeways-Admr. and Williams v. Smith, supra.)</p> <p>■ She afterwards conveyed the land, and is now estopped to-deny the father’s • title to it. Hugly v. Gr-igg, 5 J. J. M.,-521; Woolfork v. Ashby, 2 Met., 288)-.</p> <p>4. The disability of coverture of appellee was removed by the Act of the Legislature of Kentucky of the 15th of March, 1894, Sec. 2127 Ky. Statute, and failing to bring her action fa*' more than ten years thereafter she is barred by the ten years statute. (Ky. Statutes, section 2522; Hoffert v. Miller, 86 Ky., 572 and authorities cited.</p> <p>5. Appellee becomes discovert in. 1897, and failing to institute suit within -three years her action is barred. (Ky. Statute, section 2510).</p> <p>6. By the terms of the will of Mrs. Mary A. Mitchell, the wife of J. M. Cleek was vested with a fee in one half of the 200 acres conveyed to Bates, as well as in the one acre conveyed by J. M. Cleek to appellee. (Cornwall’s Admr. v. Falls City Bank, et al., 92 Ky., 318; 18 S. W., 452).</p> <p>7. J. M. Cleek undertook to convey to Bates an absolute title in fee to the 200 acres, as well as a fee in the one acre conveyed to Appellee, so if he had only a life estate in a moiety of the land so conveyed, appellee might at once have instituted her suit to vacate the conveyances, notwithstanding the father had a right to the possession of one-half of the land during his life, and failing to institute suit until after fifteen years her action is barred. (Stillwell v. Leavy, 84 Ky., 379; Tucker v. Prive, 29 S. W., 857).</p> <p>8. A suit to correct a deed for fraud or mistake, must be brought within ten years after the making of the deed, or the action is barred. (Ky. Statute, 2519).</p> <p>(Brief not in record).</p>

<p>Taxation — Educational Institutions — Leased Property — Const, sec. 170, exempts from taxation, property of educational institutions not used or employed for private gain, but the income of which is devoted solely to the cause of education. Held that the words “private gain” had reference only to the gain of the person, corporation, or stockholders owning the property, and hence college property was not rendered liable for taxation, because the trustees leased it to a person who maintained a school therein for a profit, the rentals derived by the trustees being wholly applied to the cause of education.</p>

<p>CASE 39. — ACTION BY LOUISVILLE & N. R. R. CO., &C., AGAINST GEORGE SMITH TO RECOVER A STRIP OP LAND ON ITS RIGHT OP WAY.</p> <p>Appeal from McLean Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendant appeals.</p> <p>Title to railroad rights of way cannot he acquired against the-railroad company by adverse possession.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, section 83; Sale, &c. v. Crutchfield, &c., 8 Bush, 646; Woolf oik' v. Ashby, 2 Met., 288; Kincaid v. McGown, 88 Ky. 91; Bryant v. Stephens, t&c., 26 Ky. Law Rep., 718; Greer v. Meges, 24 How., 263;' L. & N. R. R. Co. v. Quinn, &c., 94 Ky., 310; M & B. S. R. Co. v. Holton, 100 Ky., 665; Pollard v. M. & B. S. R. Co., 103 Ky., 84; Pay-ton v. L. & N. R. R. Co., 115 Ky., 53; Floyd v. L. & N. R. R. Co. 24 Ky Law Rep., 2127; Brown’s Admr. v. L & N. R. R. Co., 97 Ky. 228; Embry v. L. & N. R. R.' Co., 18 Ky. Law Rep., 434; Thornton v. L. & N. R. R. Co., 19 Ky. Law Rep., 96; Chouteau v. Mo. Pac. R’y Co., 122 Mo., 375, 22 S. W., 458; Venable v. Wabash Western R. Co., .112 Mo., 103; Chicago, &c. R. Co. v. Titterington, 84 Tex., 218, 31 Am. St. Rep., 39; Chicago, &c., R. Co. v. Swinney, 38 la., 182; Randall v. Texas, &c., R. Co., 63 Tex., 586, 22 A. & E. R. Cases, 102; Ottumwa, &c., R. Co. v. McWilliams, 71 la., 164, 39 A. & E. R. Cases, 544; Canty v. Latternar, 31 Minn., 239, 15 A. & E. R. Cases, 380; Mills on Eminent Domain (2 Ed.), section 71; Tide-man cn Real Property, section 116; Washburn on Real Property (5th Ed.), 203; Nye v. Taunton Br. R. Co. 113 Mass., 277; McGhee v. Wilson, 111 Ala., 615; Pilcher v. A. T. & S. P. R. Co., 38 Kansas, 516, 5 Am. St. Rep., 770 United States v. Jones, 109 U. S., 513; Boom Company v. Patterson, 98 U. S., 403; ’ Cooley’s Constitutional Limitations (5th Ed.), p. 648; Rowan v. Portland, 8 B. M., 232; Cornwall v. L. & N. R. Co., 87 Ky., 72; Kentucky Statutes, section 2546; Tenn. & Coosa R.. Co. v. East Ala. R. Co., 75 Ala., 516; Sou. Pac. R. Co. v. Burr, 86 Cal., 279; Sou. Pac. R. Co. v. Hyatt, etc., 20 A. & E. R. Oases (N. S.), 576 (Cal.); J. M. & I. R. Co. v. Oyler, 5 A. & B. R. Cases, 379 (Ind.); I, P. & C. R. Co. v. Rayl, &c., 62 Ind., 424; Graham v. St. L., I. M. & ,S. R. Co., 24 A. & E. R. Cases (N. S.), 527 (Ark.); Ala. Mid R. Co. v. Brown, 98 Ala., 657; Sou. Ry. Co. v. Cowman, 329 Ala., 577; Barlow v. R. I. & P. R. Co., 57 la., 276; U. P. Ry. Co. v. Kindred; 43 Kan., 134; Railway Co. v. Allen, 22 Kan., 285; Sapp v. N. C. Ry. Co., 51 Md,, 115; Rockdale Canal Co. v. Radcliffe, 83 ■Eng. C. L. Rep., 287; McClelland v. Miller, 28 Ohio St., 428; Lane v. Kennedy, 13 Ohio St., 42; Peck v. Clark, 19 Ohio St., 367; Railroad v. French, 100 Tenn., 209; Railroad v. Tilfofid, 5 Pickle. (Tenn.), 295; Purifoy v. R. & D. R. Co., 108 N. C. 100; Car C. R. Co, v. McCaskill, 94 N. C. 746; Thompson v. L & N R. Co., 110 Ky., 973; Haffendorfer v. Gault, 84 Ky., 124; Jones on Easements, section 281; Jones on Easements, section 231; Jones on Easements, section 283; Sheaffer v. Eakman, 56 Penn. St., 144; Sweet’s Law Dictionary, Title “Possession;” Bouvier’s Law Dictionary, Title “Adverse Possession;” Elliot on Railroads, 3, section 938; Ballard v. L. & N. R. Co., 9 Ky. Law Rep., 523; Hook v. Joyce, 94 Ky., 450; Giltner v. Trustees of Carrollton, 7 B. M., 681; Alves v. Henderson, 16 B. M., 168; Covington v. MeNickle, 18 B. M., 262; Kentucky Statutes, sections 2546 and 2547; Ames v. San Diego, 101 Cal., 390; Piatt County v. Goodell, 97 111., 84; Bedford v. Willard, 133 Ind., 562; Bed-ford v. Green, 133 Ind., 700; Hoadley v. San Francisco, 50 Cal., 265; People v. Pope, 53 Cal., 437;' County of Yolo v. Barney, 79 Cal., 375; Board of Education v. Martin, 92 Cal., 209; Mowry v. Providence, 10 R. I., 52; Chicago v. Middlebrook, 143 111., 265; Sims v. Frankfort, 79 Ind., 446; Lou. Ice Mfg. Co. v. New Orleans, 43 La. Ann., 217; Vicksburg v. Marshall, 59 Miss., 563; Williams v. St. Louis, 120 Mo., 403; Price v. Plainfield, 40 N. J. Law, 608; Driggs v. Philips, 103 N. Y., 77; Philadelphia v. Phila., &c., Rd. Co., 58 Penn. St., 253; Simmons v. Cornell, 1 R. I., 519; Crockor v. Collins, 37 Sou. Car., 327; Yates v. Warrentown, 84 Va., 337; Latham v. Commercial Bank, 8 Dana, 119; Thompson v. Waters, 25 Mich., 227, s. c. 12 Am. Rep., 243; People v. LaRue, 67 Cal., 526; Brown v. Hogg, 14 111., 219; Old Colony R. Corp v. Evans 6 Gray (Mass.), 25.</p> <p>We contend that abutting owners or others may acquire title to railroad right-of-way by adverse possession, or holding.</p> <p>FACTS AGREED IN THIS ACTION.</p> <p>1. That the appellee, George Smith, has held, used, occupied, controlled and kept under fence the strip of land in controversy in this action for the statutory period of fifteen years next before the commencement of this action.</p> <p>2. That he is the owner by purchase of the whole of lot number 96 in the town of Livermore, Kentucky, from W. J. Rowan; that the strip in controversy is a part of said lot number 96; that W. J. .Rowan put him in possession of the whole of said lot, including the strip in controversy, and that he has held, used, claimed, occupied^' controlled and kept under fence the whole of said lot for the statutory period of fifteen years next before the commencement of this action.</p> <p>AUTHORITIES CITED.</p> <p>Section 195, Constitution of Kentucky; Section 2505 Kentucky Statutes; Floyd v. L. & N. R. R. Co., 25 Ky. Law Rep., 2147; Pollard v. Maysville & Big Sandy R. R. Co., 103 Kentucky, 84; L & N R. R. Co. v. Wallace, et. al., 94 Kentucky, 310; L. & 3ST. R. R. Co. v. Quinn, 100 Kentucky, 677; L. & N. R. R. Co. v. Wilson, 85 Kentucky, 504.</p>

<p>1. Highways — Proceedings to Vacate — Ky. St., 1903, section 4289, .provides that all applications to have a road changed or discontinued shall be by petition to the county court upon the notice provided for by section 4290. Held, that the only way in which a public highway could be suspended or vacated was by an order of the county court made in accordance with section 4289, 4290, and that a parol agreement by the county judge was insufficient to authorize a change in a public highway.</p> <p>2. Jury — Competency—Citizen of County — Citizens of a county, by reason of that fact alone, are not disqualified to serve as jurors in an action brought by the county to recover damages against a railroad company for the destruction of a public highway.</p> <p>•3. Highways — Destruction by Railroad — Action for Damages— Measure of Damages — Inconvenience or injury to the traveling public by reason of the destruction of a public highway by a railroad company cannot be considered in estimating the damages sustained by the county, but only the cost of pu ting the road in as good a condition as it was before the railroad was built.</p>

<p>CASE 41. — ACTION BY THE COMMONWEALTH OP KENTUCKY AGAINST THE AMERICAN SNUFF COM'PANY TO RECOVER A PENALTY.</p> <p>Appeal from Todd Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Master and Servant — Injuries to Servant — Actions—Pleading —Proof—Where damages are claimed from a master for the death of plaintiff’s intestate, an employe, and defendant denies that the death was caused by its negligence, it may introduce evidence to show the death due to the negligence of a fellow servant.</p> <p>2. Same — Where plaintiff’s intestate was killed by the falling of the roof of defendant’s mine, and in an action for causing his death it was not alleged that the pillars between the rooms were not wide enough, it was error to allow evidence of such defect.</p> <p>3. Same — Places for Work- — Duty to Provide — Care Required of Master- — The operator of a coal mine owes the duty to its servants to use ordinary care to prop the roof where they are working, or the rooms adjacent thereto, or in drawing the ribs between them.'</p> <p>4. Same — Risk Assumed by Servant — Dangerous Places — Where plaintiff’s intestate was killed while a laborer in defendant’s mine, recovery cannot be had for his death, if it is shown that he knew of the danger, or could have known of it by the exercise of ordinary care in the course of his employment.</p> <p>5. Death — Measure of Damages — In an action for death, due to defendant’s negligence, the proper measure of damage is such a sum as would reasonably compensate intestate’s estate for' the destruction of his power to earn money.</p>

<p>1. Appearance — Pleading—Objection to Jurisdiction — Under Civ. Code, section 118, providing that a party may by answer or other proper pleading object to the jurisdiction over the parties,'and a failure to do so is a waiver of the objection, a party may in one answer plead both to the jurisdiction and to the merits, and the filing of such an answer does not constitute an appearance.</p> <p>2. Judgment — Parties- — Torts—Verdict Against Nonresident Only.- — -Under Civ. Code, section 73, providing that an action against a carrier for personal injuries must bo brought in the county in which tfye defendant or either of several defendants resides, or in which the plaintiff or his property is injured, or in which he resides, if he reside,in a county into which the carrier passes, and section 80, providing that, in an action against several defendants, no judgment shall be rendered against any of them, if the action be discontinued as to the defendants who resided or was summoned in the county where the action was brought, where an action is brought against two telephone companies — one a resident and the other a nonresident of the county — and no verdict is rendered against the resident company, the action must be dismissed as to the nonresident.</p> <p>3. Electricity — Injuries to Servant of Another — Liability—A tele* phone company, which had no knowledge that a workman of another company was to go on its lines owed him no duty to provide a reasonably safe place for him to work, and cannot be held liable for negligence resulting in his death.</p>

<p>CASE 44. — PROSECUTION AGAINST TOM OWSLEY FOR ARSON.</p> <p>Appeal from Lincoln. Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>1 On the trial of an infant 31% years of age for the crime of arson, proof of an alleged confession should not be admitted where the circumstances indicate it was made under duress or fear.</p> <p>2. In the absence of proof that an infant, under 14 years of age, knew that the offense with which he was being tried was wrong, a peremptory instruction should be given to jury to find him not guilty.</p> <p>3. Under the Act of the Kentucky Legislature of 1906 (Session Acts, chapter 64, ’page 322), providing for the trial of “all delinquent male children under 17 years of age,” the circuit court had no jurisdiction to try defendant, but he should have been tried in the county court.</p> <p>CITATIONS.</p> <p>Roberson’s Ky. Criminal Law and Procedure, Sec.. 959-962; McClure v. Commonwealth, 81 Ky., 448; Willett v. Commonwealth, 13 Bush, 230; Heilman v. Commonwealth, 84 Ky., 459; Aeree, &c., v. Commonwealth, 13 Bush, 353; Acts of General Assembly of 1906, chap. 64, page 322; 12 Cyc., 199.</p> <p>1. While it is a well settled principle of law that a youth between seven and fourteen years of age has the benefit of the. prima facie presumption that he does not know the import of his acts, and that it takes convincing evidence that he does know he has committed a crime, it is also well settled that the nearer he is to the age of 14, the presumption lessens, and less evidence is required to remove the benefit that the law gives to one of tender years.</p> <p>2. The “Juveline Court Act” of 1906 applies only to misdemeanor cases, and not felonies.</p> <p>3. We submit that under the instructions of the court the jury fully understood the law and their duty, and that appellant was not prejudiced thereby.</p>

<p>CASE 45. — ACTION BY LOUIS KIRCH AND OTHERS AGAINST THE CITY OF LOUISVILLE AND OTHERS TO HAVE LOUISVILLE 'WATER CO. PLACED IN THE HANDS OF A RECEIVER.</p> <p>Appeal from, Jefferson Circuit Court, Second Chancery Division.</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment on demurrer for defendants and plaintiffs appeal.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. A tax payer of a city has the right to institute and maintain an action in behalf of himself and all other tax payers of such city where the city refuses to sue, to prevent a misappropriation of and to recover .funds and property acquired by the exercise of the power of taxation and held for the purposes of paying the debts and obligations of the. city. (Commonwealth v. Chilton, 21 Ky. Law Rep., 1079; Roberts v. Louisville, 92 Ky., 102; Jones v. Johnson, 10 Bush, 660; Mason v. Pewambic, 133 U. S., 64; P. C. C. & St. L. v. Dodd, 24 Ky. Law Rep., 2066; Cooley on Taxation, 769; Dillon on Municipal Corporations, section 914; Morawetz on Private Corporations, ' section 270-271; Beach on Public Corporations, section 631; Pomeroy on Equity Jurisprudence, section 270.</p> <p>2. In such actions the tax-payer is entitled, in the event of recovery, to be reimbursed his costs and attorneys' fees out of the corporate funds recovered in the action by him for the city. (Morawetz on Private Corporations, section 232; Meeks v. Winthrop, 17 Fed. Rep., page 48; P. C. C. and St. L. v. Dodd, 24 Ky. Law Rep., 2066).</p> <p>3. A corporation is dissolved without the action of either court or legislature whenever it loses an integral part of its organization and has no power to supply the same or rehabilitate itself. (Louisville v. Eisenman, 94 Ky., 98; Stagg v. Taylor, 95 Ky., 665; Louisville v. Kaufman, 105 Ky., 159; Clark & Marshall on Corp., vol. 2, sec. 307; Waterman on Corp., page 558; Morawfetz on Corp., sec. 1070; Field on Corp., page 563; Angel and Ames ■on Corp., page 84; Harris v. M. V., 51 Miss., 610; McGinty v. Athol, 155 Mass., 185; Penobscot v. Lamson, 16 Me., 23; Phillips v. Wickham, 1 Paige, 696; Canal v. R. R., 4 G. & J., 121; Lehigh v. Lehigh, 4 Rawle, 23; Blackwell v. State, 36 Ark., 188; Brooks v. Brooks, 78 N. Y., 529).</p> <p>4. The amendment to the charter of the Louisville Water Company, approved January 20, 1860 was subject, at the will of the Legislature, to amendment and repeal, and the provisions of that amendment which made a person who had the qualifications of a member of the general council of the city of Louisville competent as either a director or president of the Louisville water Company, notwithstanding he owned no stock therein, was in conflict with section 59 of the Constitution, and the 2nd section of the schedule thereto and in conflict with section 551 and repealed by section 573 of the Kentucky Statutes. (Louisville v. Clark, 143 U. S. page, 14; Griffin v. Kentucky, 3 Bush,-592; Smith v. Mitchell, 101 Ky., 581).</p> <p>5. The act approved March 6, 1906 entitled “an Act in relation to the control, management and operation of water works in cities of the first-class” is unconstitutional. (Sections 51 and 59 of the Constitution; Thweatt v. Hopkinsville, 81 Ky., page 8; Allison v. Louisville, 9 Bush, 214; Louisville v. Kunz, 20 Ky. Law Rep., 807; Gorley v. Louisville, 20 Ky. Law Rep., 602; Richardson v. Mehler, 111 Ky., 426; Shoemaker v. Harrisburg, 122 Pa. S\, 285; Wierman v. Railway, 118 Pa. St., 192; Ayers Appeal, 122 Pa. St., 266; Scowden’s Appeal, 96 Pa. St., 422; Morrison v. Buckart, 112 Pa. St., 291; Scrawein Appeal, 113 Pa. St., 176; In. re. Washington, 132 Pa. St., 257; Engles’ Appeal, 137 St., 494; State v. Lawrence,. 22 Kan., 426).</p> <p>6. The directors of a corporation will not be permitted to make profit by reason of their position and office for themselves out of the corporaté property and in their dealings therewith and at the expense and to the detriment of the corporation but will be required* at the instance of the corporation or a shareholder, where the corporation refuses to sue, to account for and refund the same. (Morawetz on Private Corp., sections 510-517, 518, and authorities cited).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The acquisition by a city of the first-class of all the stock of a corporation engaged in furnishing water to the city and the inhabitants thereof, does not ipso facto dissolve the corporation; and a board of directors elected by the Sinking Fund Commissioners - of the city may lawfully manage the property for the city.</p> <p>2. An act of the Legislature thereafter enacted providing that the city shall control, manage and operate the property through a “Board of Water Works” appointed hy the Mayor, is not such special or local legislation as is prohibited by section 59 of the Constitution. (Stagg v. Taylor, 113 Ky., 721; Cook on Corpo. rations, sections 623, 639, 749; Angelo California Bank v, Mahoney Mining Co., 104 TJ. S., 194; Keiser v. Wright, 52 N. J. Eg., 825, 31 Atl., 397; Wile & Buckner Co., v. Rochester Sand Co., 25 N. Y., subsec., 794; Hackensack Co. v. DeKoy, 36 N. J. Eg., 548; Wooley v. Louisville, 114 Ky., 571; Farson Leach Co. v. Board, 97 Ky., 119; Coner’s, &c. v. Grainger, 98 Ky., 319; Coner’s v. Zimmerman, 101 Ky., 432; Harrison v. R. R. -Co., 9 B. Mon., 470; Hughes v. Bank, 5 Littell, 45; Bank v. Trimble, 6 B. Monroe, 599; Wright v. Railroad Co., 16 B. Mon., 4; Gill v. Mining Co., 7 Bush, ,735; Gaulbert v. City Louisville, 29 Ky. Law Rep.,-; Richardson v. Mehler, 111 Ky., 426'; Louisville School Board v. Supt. Pub. Instruction, 102 Ky., 394; Shoemaker v. Hodge, 111 Ky., 436; Louisville v. Wehsahoff, 16 Ky., 813).</p>

<p>1. Statutes — Subjects and Titles — Acts Relating to One or More Subjects — Constitutional Provisions — Acts 1906, p. 549, entitled “An act relating to revenue and taxation, providing for license taxes cn compounded, rectified, adulterated or blended distilled spirits, known and designated as single stamp spirits, and providing penalties for violations of its ' provisions,” and declaring that, every corporation, etc., engaged in the business or occupation of compounding, rectifying, etc., distilled spirits, shall pay a license tax on every gallon, etc., is not invalid under Const, section 51, requiring that an act shall relate to only one subject, which subject shall be expressed in the title.</p> <p>2. Intoxicating Liquors — License Tax — Uniformity—The act does not levy a property tax, within the meaning of Const, section 171, requiring taxes to be uniform upon all property subject to taxation within the territorial limits of the au'hority levying the tax.</p> <p>3. Same — Statutes Specifying Purpose of Tax — The Constitution which went into effect in 1891, provides in section 180 that every act levying a tax shall specify distinctly the purpose for which the tax is levied. In the revision of the laws relating to taxation, made pursuant to the Constitution, the revision commission apparently understood section ISO not to refer to license taxes, and subsequent acts passed levying license taxes did not specify the purposes- for which the tax was levied and the same course was followed in several subsequent revisions of the revenue laws; none of the acts passed since the new Constitution levying license taxes having specified the purpose for which the tax was levied. Section 181 provides that the General Assembly may provide for the payment of license fees on franchises, the various trades, occupations, and professions, and may delegate the power to counties, towns, etc., to impose license fees on franchises, trades, occupations, and professions. Held that, considering the construction of section 180, concurred in by so many Legislatures, and in view of section 181, Acts 1906, p. 549, providing for license taxes on compounded, rectified, etc., distilled spirits, is not unconstitutional for failure io specify the purpose for which the tax is levied.</p> <p>4. Same- — Acts 1906, p. 549, provides in section 1 that every corporation, etc., engaged in the business of compounding, rectifying, etc., distilled spiritsl known and designated as “single stamp spirits” shall pay a license tax on every gallon of such compounded, etc., distilled spirits. Section 2 describes the business on which the tax is levied as “the business or occupation of compounding, rectifying, or blending in this state”; and section 3 requires a statement of “the approximate number of wine gallons of such compounded, etc., spirits the applicant contemplates making prior to the first date at which he is required to report.” Section 7 provides a penalty for shipping any compounded, etc., spirits into the state for the purpose of stamping the same as “Kentucky Whisky.” In an action by the commonwealth to recover under said act iaxes on distilled spirits compounded from double stamp spirits, defendant insisted that the act did not cover such double stamp spirits. Held, that the act was not aimed at the spiri+s used in rectifying, but levied p license tax on the business, and defendant was liable.</p> <p>5. Same — Acts 1906, p. 549, section 1, provides that every corporation, etc., engaged in the business or occupation of compounding, rectifying, etc., distilled spirits, shall pay a license tax on every gallon of such compounded, etc., distilled spirits. Section 7 makes it unlawful for any person to ship into the state any rectified spirits for the purpose of marking the same as “Kentucky Whisky,” or which before-shipment into the state has been so marked. Held, that the act is not in conflict with Const, -section 202, providing that no corporation organized outside the limits of the state shall be allowed to transact business within the state-on more favorable conditions than are prescribed by law to similar corporations organized under the laws of the state.</p> <p>6. Constitutional Law — Equal Protection of the Laws — Nor is the act in conflict with Const. XJ. S. Amend. 14, guarantying equal protection cf the laws.</p>

<p>Judges — Compensation—Statutory Provisions — Const, section 235, provides that the salary of public officers shall not be changed during the tends for which they were elected. Acts 1906, p. 443, c. 126, provides that when any county in which a city of a certain class may he located may have a specified population, ,and no court of continuous session is authorized therein, Such county by its hoard of magistrates, fiscal court, or commissioners, and the city by its council, may pay to the judge of the circuit court district in which the county is located such additional compensation to that paid by the state as they may deem just, not exceeding a certain amount. Held, that an allowance might be made to a judge for an annual additional compensation to he operative 'after the term of the then incumbent, but that the compensation, of an incumbent, could not he changed during his term.</p>

<p>CASE 48. -ACTIONS BY R. O. DEPPEN AND OTHERS AGAINST H. C. HESS, AGAINST THE LOUISVILLE BANKING CO. AND AGAINST THE WESTERN NATIONAL BANK TO HAVE CERTAIN MORTGAGES AND BONDS CANCELLED FOR FRAUD.</p> <p>Appeal from Jefferson Circuit Court, Second Chancery Branch.</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for plaintiffs. Defendants appeal.</p> <p>CLASSIFICATION OF QUESTIONS AND AUTHORITIES.</p> <p>1. When the plaintiff has not purchased' the property of the defendant at the judicial sale or execution sale thereof, but has only received under the judgment a part of the proceeds of sale, he need after the reversal of the judgment restore to the defendant only the sum so received with interest, and is not liable for damages. (Eyre v. Woodfine, Cro. Eliz, 278 (1591); Peck v. McLean, 36 Minn., 228; Gay v. Smith, 36 N. H., 435; Bridges v. McAlister, 106 Ky., 791 (overruling Hays v. Griffith, 85 Ky., 375); Dowdell v. Carpy, 137 Cal., 333; Contra Thompson v. Thompson, 1 N. J. L., 159 (1793) criticised. Hays v. Griffith, 85 Ky., 357; overruled by Cavanaugh v. Wilson.) .</p> <p>2. When the plaintiff purchases the property he must (outside of Kentucky) return the property itself. (Gott v. Powell, 41 Mo., 416; Caruthers v. Caruther.s, 70 Tenn., 71; Major v. Collins, 17 111. App., 239; Ropp v. Reynolds, 15 Cal., 459). -</p> <p>3. While in Kentucky he has the choice of restoring it or its value. (Cavanaugh v. Willson, 108 Ky.., 759).</p> <p>4. The plaintiff’s 'attorney or agent who has purchased defendant’s property will be treated as if he were the plaintiff himself. (Cavanaugh v. Willson, 108 Ky., 759; Hays v. Cassell, 70 111., 669; Madison Lumber Co. v. Batavia Bank, 77 la., 393; Hannibal, &c., R. R. v. Brown, 43 Mo., 294).</p> <p>5. If the assignee of the judgment or claim under which the sale is made purchases the property, he must after reversal restoro it. (McJilton v. Love, 13 111., 486; Reynolds v. Hosmer, 45 Cal., 616; Reynolds v. Harris, 14 Cal., 667).</p> <p>6. And if they have disposed of the property before restitution is asked, they must return the value of the property. (Reynolds v. Hosmer, 45 Cal., 616).</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>In all cases where there is a judgment in favor of one party against another party for the recovery of money and upon which judgment, proceedings are taken in equity, which results under an order of the court in an involuntary alienation of the property of the execution defendant, there is, in the nature of things, two final judgments, from both or either of which an appeal can be prosecuted to an appellate tribunal, and a reversal in one does not operate as a reversal in the other, and an appeal from one does not operate as an -appeal from the other. If either judgment is reversed, the appellee therein must restore to the appellant all that was obtained by the appellee under the direct operation of the judgment reversed, but so long as the judgment confirming a report of sale remains in full force and unreversed, the execution defendant can not reclaim his property, nor maintain an action for or recover damages by reason of its involuntary .alienation — the judgment or order of confirmation is a complete bar to any such action. (Morgan v. Hart, 9 B. Mon., 80; Coleman v. Tr-abue, 2 Bibb, 519; Parker v. Anderson, 5 T. B. Mon., 451;Outen v. Palmeteer, 7 J. J. M., 243; Williams v. Cummins, '4 J. J. M., 639; Clark v. Farrow, 10 B. M., 419; Bridges v. McArthur, 106 Ky., 795; Hardy v. Wooldridge, 29 Ky. Law Rep., 578; Hays v. Griffith, 85 Ky., 375; Cavanaugh v. Wilson,. 108 Ky., 759; Maynard v. May, 16 Ky. Law Rep., 690).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In the case of R. O. Deppen -and wife v. the German American Title Company, &c., 24 Ky. Law Rep., 1110, this court directed a foreclosure of. the mortgage executed by appellees to said Title Company to secure the two debts aggregating sixteen hundred dollars. (Deppen v. German American Title Co., 24 Ky. Law Rep., 1110).</p> <p>2. The mandate of the Court of Appeal, in the above styled case should have been obeyed and followed. (Deppen v. German. American Title Co., 24 Ky. Law Rep, lllO).</p> <p>3. An appraisement of land for a judicial sale and the price at which the land is sold thereat, fixes the then value of the same. (Graves v. Long, 87 Ky., 441; M6ddis v. Fenly, 98' Ky., 435).</p> <p>4. As a defense to the suit to recover values of the land the appellant set up that appellee procured two of the lots sold to be bought by Matilda Dougherty the sister of plaintiff, ft. O. Deppen, who became purchaser of lots four and thirteen at the request and instance of said Deppen and for his benefit, which the court struck out and denied ihe appellant the right to take proof thereon, thereby materially prejudicing the. rights of the appellant.</p> <p>5. The value of the property' sold at judicial sale is the criterion of its value in .a suit seeking its restitution. (Bristow v. Peters, 6 Ky. Law Rep., 300).</p> <p>6. Under a reversed judgment the property obtained thereby must be restored if not sold. (Hays v. Griffith, 85 Ky., 375).</p> <p>7. When a tender of the thing acquired under a reversed judgment is made, the paUy to whom the same is tendered must receive same and pay taxes thereon during»the time same was held by the party who acquired same. (Bridges v. McAllister, 106 Ky., 795; Freeman on Judgments, section 482; Freeman on Judgments, section 104-b; Black on Judgments, sections 170-355; Kaye v. Kean, 18 B. Mon., 847; Clark v. Rodes, 121 Bush, 16; Fraser v. Page, 82 Ky., 83; Cavanaugh v. Wilson, 108 Ky., 759).</p> <p>8. The co-bondholders of this appellant have participated in the suit, received its benefits and have not offered to return the amount which they have received, and they are responsible for the. value of the lands sold for the amount received by each of them or fixed by the court as may be finally determined.</p> <p>9. In the event the court should hold that Deppen must receive the eight lots tendered him by the appellant, the co-bondholders of appellant must pay to this appellant the amounts each received with interest.</p> <p>POINTS MADE AND AUTHORITIES RELIED UPON.</p> <p>First, where a judgment under which land was sold is reversed on appeal, the measure of the recovery is the value of the land at the date of sale, with interest, and the appellees are not limited to the price for which said land sold at a forced sale. This is the common-law rule, which required restitution of everything that was lost by reason of the erroneous judgment. (Hays v. Griffith, 85 Ky., 378; Maynard v. May, 16 Ky. Law Rep., 690; Cavanaugh v. Wlilson, 108 Ky., 758; South Fork Canal Company v. Gordon, 2d Abb., 479; McJilton v. -Love, 13 111., 486; Reynolds v. Hosmer, 45 Cal., 616 this case was decided before the Code changed the common-law' rule, as will be seen in Freeman on Executions, page 1977, section 346; Bank of United States v. Bank of Washington, 6 Peters, 8; Thompson v. Thompson, 1 N. J., 160; Fush v. Egan, 48 La. Ann., 60; Hays v. Cassell, 78 111., 669; Gould v. Sternberg, 128 111., 510; Bridges v. McAlister, 106 Ky., 791 this case is distinguished, and is shown to have no application to the case 'at bar, as it deals .with consequential damages only).</p> <p>Second, the amendments of the appellant, the Louisville Banking Company, were properly rejected according to the rulings of this court. The appellants having elected to- choose their remedy, must stand by the issue presented. (Miller v. Withers, 3 Ky. Law Rep., 57; Colston v. Chenault, 20 Ky. Law Rep., 266; Aíkeson v. Sayier, 23 Ky. Law Rep., 836; Ency. Pleading and Practice, volume 7, pages 361-364).</p> <p>Third, the real issue in this case was the restoration or restitution of what had been taken under the erroneous judgment and the various foreign matters sought to be injected by the appellant, the Louisville Banking Company, were properly excluded, in accordance with the rule of this court. (Morgan v. Hart, 9 B. Mon., 79; Smith v. Bohoñ, 12 Bush, 4481.</p> <p>4. In the amendment which they attempt to set up the alleged fact that Mrs. Doherty bought for the benefit of Deppen, they give no excuse why this alleged fact was not known when the original answer and the various amendments! thereto were filed, and not known before the issues were made up and the proof taken. Then again no proof was taken or offered on this question, which could have been done on the general issue. The. court properly refused to permit, after the issue had long been made up and proof taken, the amendment to the answer setting up this alleged fact which, if it existed, must have been known to appellant or could have been known by the exercise of any diligence, long years before the original answer was filed. (Newton v. Terry, 13 Ky. Law Rep., 698; Garrison v. Garrison, 1 Ky. Law Rep., 279).</p> <p>5. Learned Counsel for the Louisville, Banking Company seem not to have profited by the rebuke administered in the case of the Louisville Insurance Company v. Monarch, 99 Ky., 578, where they resorted to the same tactics as they do in this case. This seems to be an old trick of counsel and this court as well as the court below cannot be trifled with in this manner.</p>

<p>1. Nuisance — Making — Maintaining — Action for Damages— Recovery in One Action — Election—Where a railroad company, for the protection of its road bed, constructed a deep ditch by the side of its road -and thereby diverted the water from a creek on the adjoining premises, to the use and benefit of Which creek the owner of such premises was entitled for the purpose of draining his land, such owner had the right, in one, action, to recover damages for the wrongful construction .of thte ditch and also for the negligent manner in- which the ditch was maintained by the railroad, and a motion for him to elect which canse of action he would prosecute was improperly sustained.</p> <p>2. Permanent Injury — Limitation—One Recovery — In an action for damages for an injury to land, where the injury cr nuisance complained of is permanent, the measure of damages is the depreciation in the market value of the property, and in such case limitation begins ■ to run from the completion of whatever it may be that caused the injury, and the action is barred in 'five years from that time, and all the damages for past, present and future injury must he recovered in one action.</p> <p>3. Same — Measure of Damages — In an action for damages for an injury to land by a nuisance, which is temporary in its character, which may be readily removed or abated, the measure of damages is the depreciation in the rental value of the property, if it he rented, or if it is occupied by the •owner, the dajnage to its use and occupation; and in such cases successive actions may be brought for damages caused by continuances of the nuisance.</p> <p>4. instructions to Jury — Finding Required — In actions for damage to land by a nuisance, it is proper for the trial court to submit to the jury the question whether the nuisance complained of is permanent or temporary, and the jury should be required to say in its verdict whether the damage allowed wias for a permanent or temporary injury.</p>

<p>Licenses — Statutory Provisions — Mercantile Business — Ky. Stats., ■ 1903, section 4224, defines a trading stamp company to be one that, giyes premiums or valuable personal property in exchange for stamps or checks furnished to purchasers of merchandise, and provides that they shall pay a license tax. Held, that a company conducting a general retail merbaniile business, that gave to the purchaser of its goods who' paid cásh a check representing 4 per cent, of his purchase, which • could be exchanged for articles In the store or for cash, was not a trading stamp company.</p>

<p>Schools and School Districts — Funds—Appropriation—Const., section 184, provides that state bonds issued in favor of the board of education and a specified amount of the stock of the bank of Kentucky shall be held inviolate for the sustenance of the common school system; that no sum shall be raised for education other than in common schools until the question of taxation is submitted to the voters, provided that “the taxes now imposed for educational purposes and for the endowment and maintenance of the agricultural and mechanical college shall remain until changed by law.” Session Acts 1906, p. 393, c. 102 establishes a system of state normal schools, and makes an appropriation for the benefit of such schools; the question of the appropriation not having been submitted to the voters. Held, that normal schools being among the institutions for which, under the proviso of section 184, the Legislature is authorized to make appropriations’ without submitting the question to the voters, Session Acts 1906, p. 393, c. 102, is valid.</p>

<p>CASE 52. — 'PROSECUTION AGAINST COLUMBUS DAVIS. FOR DETAINING A WOMAN WITH CARNAL INTENT.</p> <p>Appeal from Fayette.Circuit Court.</p> <p>Watts Parker, Circuit. Judge.</p> <p>Defendant convicted and appeals.</p>

<p>CASE 53. — -ACTION BY S. A. RANSON AGAINST J. M. WEST FOR LIBEL.</p> <p>Appeal from Christian Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>From a judgment sustaining a demurrer to the petition plaintiff appeals.</p> <p>POINTS IN BRIEF AND AUTHORITIES CITED.</p> <p>The petition stated a cause of action and therefore the general' demurrer filed thereto by appellee should have been overruled, and the circuit court in sustaining said demurrer and dismissing the petition erred and should be reversed by this court. (11 Ky. Law Reporter, p. 586; 11 Ky. Liaw Reporter, p. 697; 13 Ky. Law Reporter, p. 302; 13 Ky. Law Reporter, p. 454).</p> <p>POINTS AND' AUTHORITIES.</p> <p>1. The letter complained of is not libelous per se. (Newell on Slander and Libel, page 286, section 23).</p> <p>2. The letter sued on was an absolutely privileged communication. (Newell on Slander and Libel, p. 418, sec. 16-17; Townshend' on Slander and Libel, p. 300, sec. 209; Townshend on Slander and Libel, p. 509, sec. 286).</p> <p>3. Trustees duty to report failure of out-going trustee to turn over money or property to his successor. (Section 92 of the Acts of 1904; Section 56 of Act Supra; Section 41 of Act Supra).</p>

<p>CASE 54.- ACTION BY THE CONTINENTAL INSURANCE CO. AGAINST X D. GARDNER AND OTHERS TO ENFORCE AN ALLEGED MORTGAGE LIEN ON LAND.</p> <p>Appeal from Mason Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendants, appeal.</p>

<p>Schools and School Districts — Levy of Tax — Submission to Voters —Contests—Jurisdiction—Where there is no provision in the statute for contesting the result of an election to determine whether a tax should be imposed in aid of a graded school, the courts have no jurisdiction of the subject-matter of an action brought to question the result of such an election, since that jurisdiction exists only when conferred by statute.</p>

<p>1. Statutes. — Construction.—Words used in a statute which have been judically construed are used in the light of the construction which has been placed upon them.</p> <p>2. Intoxicating Liquors. — Statutes—In view of the judicial construction placed upon a prior similar statute, Act March 21, 1906 (Acts 1906, p. 320, c. 63), section 1, making it unlawful for any person or corporation to' bring into any county, etc., where the sale of intoxicating liquors has been prohibited, or may be prohibited, any, intoxicating liquors, etc., does not apply to liquor destined for one whose license to sell liquors has not expired.</p>

<p>1. Pleading — Amendment—Changing Burden of Proof — Discretion of Court — Under Civil Code Prac., section 134, authorizing the court in furtherance of justice to permit a pleading to be amended, it was proper for the court on the second trial of an action for personal injuries negligently inflicted to deny defendant’s application for leave to file an amended answer to secure the closing argument by eliminating all questions in issue at the first trial, save the extent of plaintiffs injury and the damages therefor.</p> <p>2 Evidence — Res Gestae — Statement by Person Injured — Declarations of a railroad engineer as to the cause of the accident made in not less than five minutes after a wreck to his train, and to the first person who reached him while'he was lying within a few feet of the wreck, was a part of the res gestae and admissible as against the company.</p> <p>3. Appeal — Harmless Error — Erroneous Admission of Evidence' — • The error, if any, in admitting in evidence the declaration of an employe in an action against the employer, is harmless where the declaration was merely cumulative testimony.</p> <p>4. Same — Law of the Case — An instruction approved on appeal is the law of the case on a subsequent trial.</p>

CASE 58. — PROCEEDING BY THE COMMONWEALTH AGAINST THE TRUSTEE OF MRS. H. L. LOVELL, JR., TO ASSESS OMITTED PROPERTY FOR TAXATION. Appeal from Kenton Circuit Court. M. L. Harbeson, Judge. On appeal by the trustee from the judgment of the county court, the circuit court dismissed the case and the commonwealth appeals.

<p>CASE 59. — CITY OF LOUISVILLE AGAINST AMERICAN STANDARD ASPHALT CO., AND BY SAID ASPHALT COMPANY AGAINST CAROLINE SCHUSTER, &C., ON APPORTIONMENT WARRANTS FOR STREET. IMPROVEMENTS.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>From a judgment against the city, it appeals, and from a judgment in favor of Schuster the Asphalt Company appeals.</p> <p>AUTHORITIES.</p> <p>1. History of said charter provision, enacted March 5, 1870, Acts 1869-70, page 90, specifically repealed April 1, 1886, Acts 1885-6, page 1153. Re-enacted July,. 1893, and now in present charter.</p> <p>When by taking the proper steps the general council can make any improvements at the cost of the owners of adjacent property, the city can in no event be made liable unless it will have the right to enforce the lien against the property. This class of cases applies to the case at bar. (Section 2833-2834, Kentucky Statutes; Craycraft, et ah, v. Selvage, 10 Bush, 696; Louisville' v. Lowe, 10 Bush, 696; City of Louisville v. Nevin, 16 Ky. C. K., 439; Orth, et al., v. Park & Co., 25 Ify. C. R., 1911.)</p> <p>2. When the nature or ownership of the property is sucli, that; nr. power exists, to subject it to an assessment, the city is liable. This class does not apply to the case at bar. (Louisville v. Leatherman, 99 Ky. 213; Cladwell v. Rupert, 10 Bush, 179; Louistille v. Nevin, 10 Bush, 549; Louisville v. Bitzer, 24 Ky. C. R„ 2263.)</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. For the purpose of forming assessment districts for street improvement purposes, the court will treat as extended, streets which intersect the street improved, but will not consider as extended a street to one improved. (Nevin v. Cooper, 90 Ky., 85; Orth v. Park, 26 Ky. Law Rep., 184.)</p> <p>2. Street assessments are founded on conditions existing at the time the ordinance directing the improvement is passed. Subsequent dedications of streets or considerations of what might be done in the future, can not affect the rule of assessment. (Reed v. Bates, 24 Ky. Law Rep., 2312; Nevin v. Roach, 86 Ky., 498.)</p> <p>3. The City of Louisville having power to contract for street improvement, and being under legal duty to improve them, when the mode of payment to the contractor fails, the city is liable for the work which it has done. (Barber Asphalt Paving Co. v. City of Harrisburg, 64 Fed., 283; City of Louisville v. MoNaugbton, 19 Ky. Law Rep., 1695; Memphis v. Brown, 20 Wallace (U. S.) 239; City of Louisville v. Bitzer, 24 Ky. Law Rep., 2266.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. If thie territory contiguous to an improvement is not defined Into squares, the ordinance directing the improvement must state the depth to be assessed. The act of fixing the depth is a legislative function and must in all cases be performed by the city council, but when the council does act the courts have the power to determine whether or not the depth is fixed in such manner as to preserve the equality which the constitution requires. (Preston v.' Roberts, 12 Bush, 570.)</p> <p>2. Assessment limits may be restricted- if the council fixes them at too great a depth, but the rate per square foot can not be raised by such restriction of the assessable limits. (Loeser v. Redd & Bro., 14 Bush, 18.)</p> <p>3. If ordinance prescribes depth and the court restricts this depth on one side, a re-apportionment will be ordered but at the same rate per sqaure foot as would have resulted from an apportionment against the entire district originally included; the contractor must lose the portion which was originally assessed against the property excluded. (Loeser v. Redd & Bro., supra.)</p> <p>4. If the territory is undefined into squares and the ordinance fails to state the depth to be assessed, no recovery whatever can be had by the contractor against any of the property located on the side of the improvement which is ‘undefined,’ because. the court can not exercise a legislative function. It is otherwise in the case where an improper depth is • stated in the ordinance, because in such case the court is called upon to determine whether or not the council has performed a legislative act in a constitutional manner. (Preston v. Roberts, supra; Loeser v. Redd & Bro., supra; Craycraft v. Selvage, 10 Bush, 698.)</p>

<p>CASE 60. — ACTION BY JAMES B. HAGGIN AGAINST JAMES E. MONTAGUE AND OTHERS POR AN ABATEMENT IN THE PRICE OP LAND POR DEFICIT IN QUANTITY.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

CASE 61 — EXPARTE PROCEEDINGS BY CITY OF PADUCAH TO DETERMINE THE VALIDITY OF AN ORDINANCE. Appeal from McCracken Circuit Court. W. M. Reed, Circuit Judge. From the judgment the city appeals. POINTS AND AUTHORITIES CITED. 1. The sufficiency of the title of the act of the Legislature as to the subject matter of the act. (Kentucky Statutes, section 3140; Kentucky Constitution, section 51; Pennington'v. Woolfolk, 79 Ky., 13; Humboldt Bldg. Assn.

<p>CASE 62. — ACTION BY AGNES PAYNTER AS ADMINISTRA-TRIX OF WILBER Y. PAYNTER, DECEASED, AGAINST THE LOUISVILLE & NASHVILLE R. R. CO., FOR DAMAGES FOR CAUSING THE DEATH OF HER INTESTATE.</p> <p>Appeal from Larue Circuit Court.</p> <p>O. T. Atkinson, Special Judge.</p> <p>Prom an order granting plaintiffs motion for a new trial the railroad company appeals.</p> <p>POINTS AND CITATIONS.</p> <p>1. Section 344 of the Civil Code applies only when the grounds for new trial are discovered after the term at which the verdict cr decision was rendered, and provides that the application shall not be made later than the second term after the discovery, or more than three years after the final judgment was rendered. Therefore, if the judgment sought to be reopened here be regarded as the judgment rendered at the October term, 1902, the petition was filed too late, and if the judgment rendered at the January term, 1906, be regarded as the judgment sought to be reopened, then it appears that plaintiff discovered the ground uron which she seeks a new trial long prior to that term.</p> <p>2. The appellee did not seek a “new trial” within the meaning of section 344 of the Code, as a “new trial” is defined by section 340 as a re-examination of an issue of fact, whereas the judgment sought to be set aside was rendered upon the pleadings, and there was no examination of any issue of fact. (Foley v. Foley (Cal) 52 Pac., 122.)</p> <p>3. The judgment can not be set, aside upon tne ground that it was obtained by fraud, there being no allegation that any act of defendant was fraudulent, but merely that the result was procured by fraud.</p> <p>4. A charge of fraud can not be based upon a promise to be performed in the. future, especially when there is no allegation that the .alleged promise was made with fraudulent intent.. (Smith v. Parker, 148 Ind., 127, 45 N. E., 770; Re Harker’s Estate, 113 Iowa, 584, 85 N. W., 786; Sheldon v. Davidson, 85 Wis., 138, 55 N. W., 161.)</p> <p>5. Even if it be conceded that defendant concealed the fact that no order had been entered controverting the affirmative matter in the answer, such concealment does not constitute fraud in the absence of an allegation that defendant knew, or had any reason to believe, that plaintiff was ignorant of the fact concealed. (Sheldon v. Davidson, 85 Wis., 138, 55 N. W., 161.)</p> <p>6. It can not be said the judgment dismissing plaintiff’s petition rendered at the January term, 1906, was obtained by defendant’s fraud, when defendant knew long before that judgment was rendered that the answer had not been controverted of record, and yet made no effort to supply the defect in the record.</p> <p>7. As no inquiry was made of plaintiff’s attorney, or of the clerk, as to the alleged agreed order, plaintiff’s search therefor can not be said to have been diligent. (Moore & Co. v. McAlpin, etc., 10 Ky. Law Rep. 724.)</p> <p>8. The inference is that plaintiff’s attorney was of opinion that it was not necessary to controvert or traverse the piea of contributory negligence, or that he could, at least, afford to take the risk of not doing so, as he afterwards argued in this court that no reply was necessary, for the reason that the plea of contributory negligence was not affirmative matter; and, therefore, the failure to file a reply must have been due to a mistake of law on his part, which is not sufficient to entitle his client to a new trial. (Mouser v. Harmon, 96 Ky., 591.)</p> <p>9. A new trial will not be granted on account of the neglect of the attorney of the party applying therefor. (Patterson v. Matthews and wife, 3 Bibb, 80; Payton v. McQuown, Adm’r, 97 Ky., 757.)</p> <p>10. Mere accident or surprise, although a ground for a new trial, is not one of the grounds upon which a judgment may be vacated after the term at which it was rendered. (Civil Code, section 518.)</p> <p>11. Even if accident or surprise were a ground for setting aside a judgment on the pleadings, the rule is that where, a party taken by surprise fails to ask a continuance the first opportunity, he waives his right to rely upon the surprise as a ground for new trial, and, therefore, appellee having made the issue in this court that no reply was necessary, and thus speculated upon the chances of a favorable result and lost, she can not now, upon the facts th.en known to her, have the judgment reopened. (14 Am. & Eng. Ency. of Pleading and Practice," page 749; Shipp v. Suggett, 9 B. Monroe, 5.)</p> <p>12. There is nothing in the record upon which the court could base a nunc pro tunc order, either controverting the answer or filing a reply, it being well settled that there must be something in the record by which to amend in order to authorize a nunc pro tunc order. (Boyd County v. Ross, 95 Ky., 167.)</p> <p>13. The judgment can not be vacated upon the ground of “unavoidable casuality or misfortune,” as that which might have been avoided by the exercise of slight care can riot be said to be “unavoidable,” even if it be considered a casuality or misfortune. Besides, this ground is not alleged.</p> <p>14. A new trial will not be granted 'upon the ground of newly discovered evidence, where the evidence consisted of a public record to which the party seeking the new trial had access. (14 Am. & Eng. Ency. of Pleading and Practice, 800; Rhodes v. City of Henderson, 2 Ky. Law Rep., 228.)</p> <p>15. The appellee is estopped to ask that the judgment be vacated for the reason that, by failing to make her application before the judgment was reversed by this court, she deprived appellant of a hearing in this court upon the question as to whether appellant was entitled to have the verdict in its favor reinstated upon the evidence.</p> <p>16. The appellee’s remedy, if any, was a proceeding to vacate the judgment of this court.</p> <p>17. As there was no allegation that any part of the written agreement for a continuance was omitted by fraud or mistake, it was error to admit oral testimony .to add to or vary that agreement.</p> <p>18. The evidence wholly fails to support the allegations of the petition, as plaintiff’s attorney does not testify that defendant’s attorney agreed to have an order entered controverting the affirmative matter in the answer, but merely that there was an agreement to “let” the answer be controverted of record. Besides, there is no testimony tending to show that the person who is said. to have. made the alleged agreement had any authority to do so.</p> <p>19. As the trial court failed to amend the record in any way, thus leaving the pleadings just as they were when this court held that defendant was entitled to judgment thereon, it was error to grant a new trial, as no number of new trials can avail the plaintiff anything as long as the pleadings remain as they were when the case was decided by this court.</p> <p>ADDITIONAL POINTS AND CITATIONS BY APPELLANT.</p> <p>1. A statute authorizing a judgment to be vacated for “fraud” of the successful party in obtaining the judgment does not authorize the vacation of a judgment for mere construclive fraud or fraud in law. (1 Black on Judgments, sec. 370: Laith v. McDonald, 7 Kansas, 264; Hill v. Williams, 6 Kansas, 17; Ohio & Y. Mortgage & Trust Co. v. Carter (Kansas) 58 Pac., 1040.)</p> <p>2. Where the lower court would have power, after a judgment on the pleadings rendered pursuant to mandate of this court, to grant a new trial because of a defect in the record which existed by reason of the fraud of the appellant, and to indirectly supply that defect, it would have the power to supply the defect pending the appeal, and the appellee would then have the right to present the additional record to this court by supplemental transcript. (Bush v. Lisle, &c., 86 Ky., 504.)</p> <p>3. If the failure to file reply was never relied upon until the case reached this court the fraud, if any, was committed in this court, and the remedy of the appellee, if any, was by motion in this court to set aside the judgment of reversal. (Mcllvoy, &c., v. Russell & Averitt, 16 Ky. Law Rep., 737.)</p> <p>NOTE BY REPORTER. — There is no summary of points made by counsel jn his brief but the following AUTHORITIES are CITED:</p> <p>Elliott v. Harris, 81 Ky.,‘ 470; Ewing v. Price, 3 J. J. Mar., 523; L. & N. R. R. Co. v. Coniff’s Adm’r, 16 Ky. Law Rep., 296; Voght Mach. Co. v. Penn. Iron Works, 23 Ky. Law Rep., 2163; C. & O. Ry. Co. v. Hickey, 15 Ky. Law Rep. 113; 14 A. & E. Ency. of Law, p 21; Helm v. Boone, 6 J. J. Mar., 351; Davidson v. Allan, 5 Ky. Law Rep., 683; Ward v. Rhodes, 14 Ky. Law Rep., 80; McLean v. Dixon, 18 B. Mon., 774; Duncan v. Sheehan, 13 Ky. Law Rep., 780; Bourne v. Bourne, 92 Ky., 211; Lawless v. Sevier, 5 Ky. Law Rep., 239; Scott v. Scott, 9 Bush, 174; McCall v. Hitchcock, 9 Bush, 66; Cooley v. Barbourville L. & I. Co., 21 Ky. Law Rep., 1454, Snelling v. Lewis, 25 Ky. Law Rep., 1856; Yittitoe v. Ames, 21 Ky. Law Rep., 225.</p>

<p>1. Mortgages — Mechanics’ Liens — Priority—Preliminary Notice— Ky. Stats., 1903, section 2463, gives a lien in favor of mechanics and materialmen superior to any incumbrance created after the beginning of the labor or furnishing of materials, provided that such lien shall not take precedénce of a mortgage duly recorded, unless the person claiming the lien shall, before the recording of the mortgage, have filed in the clerk’s office of the county where he .shall have performed the labor or furnished materials a statement showing such fact. Held that, where mechanic’s lien claimants failed to file such preliminary statement before the record of certain mortgages on the property on which the liens were claimed, such liens were not entitled to priority over the mortgages, in the absence of proof that the mortgagee had actual notice of the performance of the labor or the furnishing of the materials.</p> <p>2. Same — Notice—Evidence—Mere proof that a mortgagee had knowledge that work was being performed on the mortgaged premises, and that materials were being furnished therefor, did not constitute actual notice of the existence of a mechanic’s lien for such labor and materials.</p> <p>g. Same- — Burden of Proof — Where, in an action to foreclose certain mechanics’ -liens as against a mortgagee, the mechanic’s lien claimants had not filed the preliminary statement required by Ky. Stats., 1903, section 2463, and the date of the record of the mortgages was set out in the pleadings of the claimants, the burden was on them to show that the mortgagee had actual notice of the liens; he having established that his debt was just and unpaid.</p>

<p>CASE 64. — MANDAMUS BY J. T. SCOTT AGAINST BOARD OF TRUSTEES OF THE TOWN OF NEW CASTLE, CONSOLIDATED WITH LIKE APPLICATION FOR MANDAMUS BY C. V. GENTRY AGAINST J. F. PEYTON</p> <p>Appeal from Henry Circuit Court.</p> <p>B. F. Peak, Circuit Judge.</p> <p>Appeal from Lincoln Circuit Court.</p> <p>B. F. Boach, Special Judge.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The State legislature has the power to. pass any law not prohibited by the Constitution. Section 61 of the Constitution does not provide that when one unit is voting that all the units contained within that unit should have the privilege of voting on the same day so that which ever way that the majority went in the smaller unit so should they be affected.</p> <p>2. We can see no reasons why the provisions in the Cammack bill admitting cities of the first, second, third and fourth classes to exercise the privilege of voting as a unit on the same day that the county in which they may be located votes as a unit should render the bill unconstitutional. There are natural and distractive reasons why those cities may he exempt from the operation of the law, viz.:</p> <p>First, the police protection is better in the cities of -the classes enumerated than the fifth and sixth class cities.</p> <p>. Second, there are better facilities for the trial and punishment of the violators of the liquor laws in the cities exempted than those not exempted.</p> <p>Third, if there is a commercial reason why liquor should he sold (which we think doubtful) it exists in favor of the cities exempted and not in favor of those not exempted, and</p> <p>Fourth, if there are financial advantages to he gained by way of revenues from the sale of liquors (which we think doubtful) the cities exempted are better equipped to receive those advantages and to utilize them.</p> <p>AUTHORITIES CITED.</p> <p>Safety Building & Loan Co. v. Eckler, 106 Ky., 115; Louisville v. Kuntz, 104 Ky., 584; Stone, Auditor, v. Wilson, 19 Ky. Law Rep., 12; Walston, Trustee, &c., v. City of Louisville,-23 Ky. Law Rep., 932; Humboldt Building Association v. Ducker’s Admr., &c., 26 Ky. Law Rep., 932; Cooley’s Con. Lim., 5 Ed., pp. 220 and 281; Purnell v. Mann, &c., 20 Ky. Law Rep., 1148; Cumberland & Ohio R. R. Co. v. Barren County Court, 10 Bush, 613; Higgins v. Prater, Sheriff, 91 Ky., 12; Burnsides v.-Lincoln County Court, 86 Ky., 428; Am. & Eng. Enc. of Law, vol. 11, p.634; Voight v. Board of Excise Comrs., &c., 37 L. R. A., 290; Black on Intox. Liquors, sections 101, 126, 127 and 128; Comth. v. Fowler, 96 Ky., 171; Barth v. McCann, Police Judge, 29 Ky. Law Rep., 709.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>Some depai’tment of the government of necessity has the power to declare the unit of control among warring municipal divisions voting on the liquor question if the Constitútion has not done so.</p> <p>The Constitution is silent as to that.</p> <p>Such declaration is legislation, therefore the Legislature may declare the unit. , It may also declare the effect of the vote of any division; the length of time or the circumstances under which such effect may continue, and when or under that circumstances such effect shall 'Cease or become inoperative.</p> <p>Such declarations are conclusive, because made in the exercise of the police power; the exercise of such power-is not and cannot be denied the Legislature; nor does the Constitution deny to the Legislature such power either in express words or by necessary implication.</p> <p>If the Legislature fails to declare the unit of control the court may do so if necessary to the determination of the cause in hand.</p> <p>In the act approved March 14th, 1906, the Legislature has declared the county voting in favor of prohibition, the unit of control and the effect of the county vote in favor of prohibition to be such that thereafter the trustees of towns of the sixth class in said county should not have the authority to license the sale of spirituous, vinous or malt liquors.</p> <p>Such act is valid and not in conflict with any constitutional provision or with any decision or opinion of the court.</p> <p>Section 61, Constitution; sections 2554, 2560, 2561, 2563, Ky, Statutes, Act March 14, 1906;' Endlich on Interpretation of Statutes, section 829; Cooley on Constitutional Limitations, chapter VIL; Stamper v. Comth., 102 Ky., 38; Brann v. Hart, 97 Ky., 735; McTigue v. Comth., 99 Ky., 72; Comth. v. Hardin County, 99 Ky., 188; Cole v. Comth., 101 Ky., 151; Comth v. Bottom, 22 Ky. Law Rep., 411; Smith v. Patton, 20 Ky. Law Rep., 165; Burnsides v. Lincoln County, 86 Ky., 427.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. The Geenral Assembly unquestionably has the power to repeal or amend the law regulating the sale, barter or loan of intoxicants, and with the repeal or amendment go all existing privileges that conflict as well as liabilities incurred. Unless there is a saving provision to the contrary, all indictments pending for violation of local option laws abate at the time of their repeal or suspension, on the ground that at the time of trial no law is in existence of which they are violative. (Black on Intoxicating Liquors, section 537.) Then a fortiori must the privileges granted by these laws go with them. The vendors of liquor are given no vested rights. (Black, section 128.) A mere privilege is granted them, which may at any time be revoked. In this State one who has paid for a license, notwithstanding a repeal of the law, may sell until its expiration. (Watts v. Comth., 78 Ky., 329.) But this opinion, in so far as it extends the privilege of selling until the expiration of the license, is severely criticised by the text-writers. (Black, section. 101.) But if appellants’ contention is correct, the la.w remains in force three years after it is repealed, for the effect of the act of 1906, as to counties without larger towns than those of the fifth class, is a repeal of the existing law as to the unit.</p> <p>2. Constitutions in this State have been few and far between. For this reason questions that are solely legislative should find no place in them, nor should they prescribe hard and fast rules on matters that it may be desirable to change. The control of the liquor traffic should always be left to the people — hence a constitutional provision to that effect. Time and experience however, may make it desirable to change the unit — hence that power is given to the Legislature, with prescribed limits as to the maximum and mip.im.um of size. The unit in its discretion may be the “county, city, town, district or precinct.”</p> <p>Black on Intoxicating Liquors, sections 128, 537, 101; Watts v. Comth., 78 Ky., 329; Francis v. Burnett, 84 Ky., 32; Bouvier’s Law Dictionary “Or;.’ Constitution, section 61.</p> <p>ADDITIONAL POINTS AND CITATIONS FOR APPELLEE.</p> <p>1. The County Unit Law is constitutional. (Ky. Constitution, section 59, subsection 27, section 61; Stone, Auditor, v. Wilson, 19 Ky. Law Rep., 126; Commonwealth v. Taylor, 101 Ky., 325; Winston v. Stone, Auditor, 102 Ky., 423; Louisville & Jeffersonvill Ferry Co, v. Commonwealth, 104 Ky., 726; Ex parte; Lichtenstein, 67 Cal., 359 (56 Am. R., 713); McEldowney v. Wyatt, 44 W. Va., 711 (45 L. R. A., 609); Commonwealth of Pennsylvania v. Moir, 199 Pa., 534 (53 L. R. A., 837); Sutherland on Stat. Com. p. 149, “Words and Phrases,’ title “General Law;” Commonwealth 'ex rel. Barth v. McCann, 29 Ky. Law Rep., 707; Article 16, section 20, of Constitution of Texas, section 3395; Statute Law of Texas; ex parte Ripy, 44 Texas Criminal Reports, 72; Ripy v. Texas, 193 U. S., 504; Owen County Local Option Act, Acts 83-4, vol. 2, p. 1442; Sections 9 and 10; Gayle v. Owen County Court, 83 Ky., 68-9.)</p> <p>2. On construction of the act. Compare section 2560 (repealed section) with the Act of 1906, p. 86. (Cole v. Commonwealth, 101 Ky., 151; Smith v. Patton, 103 Ky., 444; Commonwealth v. Bottoms, 22 Ky. Law Rep., 410.)</p> <p>3. On mandamus as a remedy. (Early v. Rains, 28 Ky. Law Rep., 415; Wyatt v. Ryan, 113 Ky., 306.)</p>

<p>CASE 65. — PROCEEDINGS BY W. M. O’NEAL AGAINST JOE S. MINARY, AND AGAINST THE COUNTY JUDGE AND CLERK OF WOODFORD COUNTY IN REFER•ENCE TO THE HOLDING OF A LOCAL, OPTION ELECTION IN SAID COUNTY.</p> <p>Appeal from Woodford Circuit Court.</p> <p>R. L. Stout, of the 14th District, Circuit Judge.</p> <p>From orders in each case against petitioners in the county court they appeal to the circuit court which dismissed their petition from which they again appeal.</p> <p>POINTS CITED.</p> <p>1. It being the unquestioned duty of the county judge to effectuate and not retard or nullify the provisions of the constitution and the statutes, it was just as clearly his duty, in acting upon the two petitions at the same time making it incumbent upon him to order two separate elections, to so fix the date of those elections, that each might be legally held, and that the option of the people in each, expressed by their votes, might be legally executed. It cannot be questioned in the light of adjudication of this court, that an order directing the separate city election to be held at any time after the county election, within three years of its date, would have rendered such city election nugatory and invalid.</p> <p>2. The fact that that duty was ministerial is certainly just as clear, and just as well established by law, as that it was a duty.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, section 724, section 25, subsection 1 of section 371, section 477; Kentucky Statutes, sections 2554, 2560, 1445; Grinnell v. Adams, 34 Ohio St., 44; 14 Cyclopedia of Law and Procedure, 394, 398, 406, 397, 399, 423; Jennings v. Pearce, 99 Ala., 303; 13 So., 605; White v. Nance, 16 Ala., 345; Cunningham v. Carpenter, 10 Ala., 109; Hanchet v. Ives, 133 111., 332; '24 N. E., 396; Lyon v. Worcester, 49 111., 638; Major v. Collins, 11 111. App., 658; Steeple v. Downing, 60 Ind., 478; Penobscot R. Co. v. Mayo, 60 Me., 306; McCullum v. Coxe, 1 Wall 139; 1 L. Ed., 72; Bentley v. Reading, 22 Wkly. Note Gas., 60; Morris v. Peay, 1 Hill (S. C.) 35; Lewis v. Laidley, 39 W. Va., 422, 19 S. E., 378; Selleck v. Phelps, 11 Wis., 380; 17 Cent. Digest, Dismall & Nonsuit, sec. 39; Farmers Bank v. Gaither, 8 Fed. case No. 4C54; 3 Crauch C. C., 345; Perry v. Tynen, 22 Barb. (N. Y.) 137; In re Butler, 101 N. Y., 307, 4 N. E., 518; Cunningham v. Carpenter, 10 Ala., 109; Aylesworth v. Brown, 31 Ind., 270; Noonan v. Orton, 31 Wis., 265; Langdale v. Langdale, 13 Ves. Jr., 167; 33 Eng. Reprint, 258; Kehoe v. Philippi, 42 Mo. App., 292; Wall v. Galvin, 80 Ind., 447; Cooper v. Cooper, 1 Phila. (Pa.) 129; Winslow v. Newlin, 45 111., 145; Holkirk v. Holkirk, 4 Madd., 50; JeScoat v. Jeffeoat, 3 L. J. Cho. O. S., 45; Loring v. Brackett, 3 Pick. (Mass.) 403; Carleton v. Darey, 75 N. Y., 375; Murray v. Silver, 1 C. B., 638; 14 L. J. G. P., 168; Cunningham v. White, 45 Pow. Pr (N. Y.) 486; Steinkamp v. Goebel, 95 N. W., 648; Edwards v. Perryman, 18 Ga., 374; Sheehan v. Osborne, 69 Pac., (Cal.) 842; McCullouch v. Blackwell, 10 S. W., 261; Austin v. Atlantic City, 48 N. J. Law, 118; 3 Atl. Rep., 65; Dufford v. Nolan, 46 N. J. Law. 87: Ferry v. Williams, 41 N. J. Law, 332; Williams v. Citizens, 40 Ark., 290; Miller v. Jones, SO Ala., 89; McCreary v. O'Flynn, 63 Miss., 204; Boyd'v. Bryant, 35 Ark.; Hays v. Jones, 27 Ohio St., 218; Dutton v. Village of Hanover, 42 Ohio St., 215; Thomas v. Thomas, 3 Litt., 8; Sawyer v. Langford, 5 Bush, 542; Baker v Kinnaird, 94 Ky., 13; Hackworth v. Harlan’s heirs, 14 Ky. Law Rep., 77; Commonwealth for use v. Pope, 21 Ky. Law Rep., 1842, 19 Ky. Law Rep. 1255; Roberts v. Phillips, 11 Bush, 12; Hearn, Lee, &c. v. Lander, 11 Bush, 671; Puckett v. Snider, 22 Ky. Law Rep., 1720; Commonwealth v. Bottom, 22 Ky. Law Rep., 410; Tousey v. DeHuy, 23 Ibid., 458; Tousey v. Stites, 23 Ibid., 1738; Texas Act of June 24, 1876; Ex parte Sublette, -4 S. W. Rep., (Texas) 895; Blair v. McCann, 23 Ky. Law Rep., 1226; Wyatt, Judge, V. Ryan, 24 Ky. Law Rep., 228; Kentucky Act of May 4, 1888; Doores v. Varnon, 15 Ky. Law Rep., 244; Early v. Rains, 28 Ky. Law Rep., 415; Smith v. Patton, 103 Ky., 444; Nall v. Tinsley, 107 Ky., 411; American & English Encyclopedia of Law, vol. 15, p. 716; American Law Dictionary, 687- Bouvier’s Law Dictionary, vol. 2, p. 196; Cates v. Barrett, 79 Ky., 296; High on Injunctions,, sec. 796 and SOI; Weams v. Toney, 107 Ky., 439; Hager v. New South Brewing Co., 28 Ky. Law Rep., 895; Gayle v. Owen County Court, 83 Ky., 63; Bill of Rights, section 6, Constitution, section 61, 145.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. The county judge properly refused to order a city election. (Blair v. McCann, 23 Ky. Law Rep., 1226; Goheen v. Myers, 18</p> <p>B. Monroe, 423; Commonwealth v. Boone County, 82 Ky., 638; Wyatt, Judge, v. Ryan, &c., 24 Ky. Law Rep., 228; Kentucky Statutes, sec. 2559; “Cyc.,” vol. 14, p. 399.)</p> <p>2. The question presented is an academic one, which will not now be determined. (King v. Tilford, 24 Ky. Law Rep., 1270; Conn v. Desha, Ibid., 1400.)</p> <p>3. No appeal lies from the order of the county judge dismissing the petition for the city election. (Kentucky Statutes, sec. 978.)</p> <p>4. After a'local option election, the result cannot be contested by mandamus or injunction. The statutory remedy must be pursued. (Ky. Statutes, sec. 2566; Russell v. Muldraugh’s Hill,</p> <p>C. & C. T. P. R. Co., 13 Bush, 307; Ky. River Nav. Co. v. Commonwealth, Ibid., 436; Wilson v. Hines, 18 Ky. Law Rep. 233; Puckett v. Snider, 22 Ky. Law Rep, 1718.)</p>

<p>1. Vendor and Purchaser — Options — Construction — Where ■options described land, recited a consideration of $1 paid, and obligated the grantors to convpy the coal underneath ■the land within a specified fpture period, on notice of the acceptance of the option and the payment of $5 per acre cash, the price per acre should be held to be the consideration for the coal, while the $1 cash paid was the consideration for the extension of the offer of sale.</p> <p>2 Same — Adequacy—The consideration of !j>l for an option to purchase coal underlying certain land in controversy, to extend over a year, was merely nominal, and insufficient to prevent withdrawal of the offer before acceptance.</p> <p>3. Same — Acceptance—Contract—Where certain options were based on an insufficient consideration to require performance by the vendor, but the options were not withdrawn prior to acceptance, the options became effective on acceptance, and operated to complete a binding contract between the parties.</p>

<p>CASE 67. — ACTION BY J. R. MOUNT AGAINST THE LOUISVILLE & NASHVILLE R. R. CO., FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Garrard Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>(No briefs — record out of office.)</p>

<p>1. Criminal Law — Review—Admission of Evidence — Harmless Error — Where, on a trial for homicide, the State, in support of its claim of the existence of a conspiracy between accused and a third person to kill decedent, showed thal prior to the killing decedent had given testimony before the grand jury on which accused had been indicted, that immediately after decedent had returned from the grand jury room the third person made statements to witnesses and that on the evening before the killing the third person and accused were ' seen together in an alley near decedent’s house the admission in evidence of the statements of the third person, which evidence was subsequently withdrawn from the jury, was not prejudicial.</p> <p>2. Homicide — Motive—Evidence—Admissibility—On a trial for homicide, it was competent to show as a motive for the killing that decedent had procured an indictment against accused charging him with assault and had filed a suit against him for slander.</p> <p>■8. Criminal Law — Appeal—Harmless Error — Admission of Evidence — Where, on a trial for homicide, the prosecution, to show motive, proved that decedent had procured an indictment against accused charging him with assault, and had filed a suit against him for slander, accused was not prejudiced by the action of the court in permitting the prosecution to read the indictment and the petition and expressly stating to the jury that the same was admitted to show motive.</p> <p>4 Same — Instructions—Where, in a homicide case, a witness testified that he and accused were on the same side of the street at the time of the hilling, and he admitted that he had told a third person that he was on the opposite side of the street, the court’s statement that the evidence as to what he had stated to the third person could be considered only as impeaching evidence was not prejudicial to accused.</p> <p>5 Homicide — Instructions-—-Misleading Instructions — An instruction on a trial for homicide, authorizing a verdict of wilful murder if the jury believe that the hilling was done with malice aforethought, and a verdict of vo’untary manslaughter if they believe that the hilling was done in sudden heat of passion “and without previous malice,” was not erroneous as placing' on accused the burdfen to show that the hilling was without previous malice to reduce the homicide to manslaughter.</p> <p>6 Criminal Law — Defects in Instructions Cured by Other Instructions — The defect, if any, in an instruction in a homicide case, authorizing the jury to find accused guilty of wilful murder on finding that the hilling was done with malice aforethought, and guilty of voluntary manslaughter on finding that -the hilling was done in sudden heat of passion and without previous -malice, because leading the jury to believe that the burden was on accused to show that the hilling was without previous malice to reduce the homicide to manslaughter, was removed by an instruction that, if the jury had a reasonable doubt as to whether the crime was wilful murder or voluntary manslaughter, they should find accused guilty of voluntary manslaughter.</p> <p>7. Homicide — Evidence—Sufficiency—On a trial for homicide, evidence examined, and held to warrant a conviction of murder.</p>

<p>CASE 69. — ACTION BY H. W. FERGUSON AND OTHERS AGAINST BELLE COMBS WORRALL</p> <p>Appeal from Jefferson Circuit Court r. First Chancery Division.</p> <p>Shackelford Miller, Judge.</p> <p>From a judgment dismissing their petition plaintiffs appeal.</p> <p>SUBJECTS AND AUTHORITIES.</p> <p>1. Devisee. A devisee having paid a valid claim against his testator, to save his devise, may maintain an action against the residuary legatee, charged with the payment of debts of the estate, or the sole devisee of said residuary devisee, charged likewise with the payment of debts, without asking or making contribution. (Ky. Statutes, sections 2074, 2088, 2084; Rubel v. Bushnell, 91 Ky., 251; Lancaster v. Wolf, 110 Ky., 773; Buford v. Pawling, 5 Dana, 283.)</p> <p>2. Covenant running with the land. A covenant to run with the land must convey some interest in the title or create a lien on the land; otherwise it is a personal covenant, and a subsequent vendee is not chargeable. (Cyc., vol. 11, p. 1080; Am. & Eng. Ency. of Law, vol. 22, p. 255, 253; Jones Law Real Property, sec. 799 and 800, 674, 675; Liston v. Barren, 40 Barb.. 297; Kills v. Helm, 56 Miss., 700; Squires v. Pinking, 13 N. Y. State, 749; White v. Snyder, 2 Miles Penn., 395; Nalle v. Paggi, 9 S. W., 205; Cyle v. Hughes, 54 N. Y., 444; Scott v. .McMellan, 76 N. Y., 141; Sebold v. Mulholland, 1555 N. Y., 455; Washburn Real Property, vol. 2, p. 284; Ky. Statutes, 2358.)</p> <p>LEGAL PROPOSITIONS AND AUTHORITIES.</p> <p>1. A party who fails altogether in his proof cannot be heard to complain, on appeal to this court, that his action was dismissed in the court below. The petition as to Isaac Hilliard was rightly dismissed.</p> <p>2. A creditor of the testator’s estate has no cause of action against his heirs and devisees generally where the testator has provided a sufficient fund for the payment cf has debts by constituting one person his residuary legatee. Under such circumstances, other devisees paying a creditor’s claim are mere volunteers and cannot by such payment make themselves creditors of the estate of the -residuary legatee. (Kentucky Statutes, sections 2073, 2074, 2076; Searcy v. Reardon, 3 Bibb, 529; Gardner v. Towsey, 3 Litt. 626; Lucas v. Marshall, 3 A. K. Mar., 247; Oden v. Elliott, 10 B. M., 315.)</p> <p>3. Where heirs of a testator contest his will and receive by compromise, made with the sole devisee, a substantial part of his estate, and afterwards pay a debt or liability of the testator, they are themselves liable to contribute pro rata out of the assets so received; and when they have received a fund set apart for the payment of the debts owing by the estate, greater in amount than the debt or liability of the testator s . estate which they so pay, they are estopped to set up claim for contribution against the sole devisee who has conceded to them in addition to other property, the fund so set apart for the payment of debts. Having •assumed the -position of heirs and taken over the trust fund they are estopped to deny its application. (Am. & Eng. Ency of Law, vol 11, p. 446, sec. 6, subsec. 2 and b; Herman on Estoppel, vol. 1,. p. 311, sec. 288, sec. 293, p. 246; Matter of Peaslee, 73 Hun. (■N. Y.) 113; Fry Morrison, 159 111., 244; Keller v. Stanley, 86 Ky., 240; Hodges v. Winston, 95 Ala.; People’s Mut. Assur. Fund v. Boesse, 290, Miller v. Asheville; 112 N. Car., 759; Polley v Polley, 82 Ky., 64.) .</p> <p>4. A covenant is said to run with the land when either the liability to perform it, or the right to enfoiee it, passes to the assignee of the land. The criterion for determining whether a covenant runs with the land is the intention of the parties; if the covenants are of such a nature that they can run with the land, •and the deed expresses such an intention they bind not only the original parties but the subsequent owners. In order to create covenants running with the land, it is not necessary that the agreement should, in terms, purport so to do. (Bland’s Adm’r v. Umstead, 11 Harris Pa., 316-17; Hazlett v. Sinclair, 76 Tnd., 288; Gaines’ Administratrix v. Poor, 3 Met., 506; Am. & Eng. Ency. of Law, vol. 22, 241, 250, 255-6; Jones on Real Property and Conveyancing, sec. 799; Jones on Easements, secs. 641, 643, 649, 650; Washburn on Real Property, vol. 2, sec. 1301; McChesney v .Davis, 86 111. App., 387; Richardson v. Tobey, 121 Mass., 459, and cases cited therein including Savage v. Mason, 3 Cushing, 500; Henry v. Koch, 80 Ky., 395; Ky. Cen. R. R. Co. v. Kenney, •82 Ky. 156; George Henry Flege v. Cov. and C. E. R. Co., 28 Ky. Law Rep., 1257; Warner v. Rogers, 33 Minn., 34; Pittsburg v. Morris, 54 Minn., 498; Standish.).</p> <p>5. Whether or not the covenant in this case concerning the party wall constituted a covenant running with the land is a question of construction, and as the contract was in the nature of a grant and easement and servitude, the purchaser who used the wall was liable to pay the half of the cost of the wall, being a purchaser with notice (Jones on Real Property and Conveyancing, sec. 799; Jones on Easements, sec. €41; Sicher v. Rambouck, Mo., 91 S. W., 68; Am. & Eng. Ency. of Law, vol. 22, p. 250, 255-6; Bland’s Adm’r v. Umstead; Kj. Cen. R R. Co. v. Kenney, 82 Ky., 156; George H. Flege v. Cov. and C. E. R. Co., 28 Ky. Law Rep., 1257; Gains v. Poor, 3 Met., 506; Hazlett v. Sinclair, 76 Ind., 288; McChesney v. Davis 86 111. App., 387; Warner v. Rogers, 33 Minn., 24; Pittsburg v. Morris, 54 Minn.; Henry v. Koch, 80 Ky., 395; Washburn on Real Property, vol. 2 sec .1301.)</p> <p>6. No one of the former owners can be held to make the payment.</p> <p>7. The question is, was the use or continuance of this easement necessary for the supoort of the structure. (Richardson v. Tobey, 121 Mass., 459; Henry v. Koch, 80 Ky., 395, and authorities above cited. See also Burlock v. Peek, 2 Duer. N. Y., 98.)</p>

<p>Exemptions — Proceeds of Exempt Property — Property Purchased with Exempt Money — Ky. Stats., 1903, section 1697, exempts from execution sufficient provisions to sustain the family for • one year, or, if not on hand, other personal property, wages, money, or growing crop, not to exceed a certain amount in value, for each member of the family. Section 1703 exempts from coercive sale at the instance of an unsecured creditor the homestead of the value of a sum named, but provides that the exemption shall not apply if the debt existed prior to the purchase of the land. Held, that where a debtor paid on the price of the homestead money which was exempt, because he did not have sufficient provisions to maintain his family for one year, the exemption followed the money into the homestead.</p>

<p>CASE 71. — ACTION BY FRANK CORCORAN AGAINST THE LOUISVILLE & N. R. R. CO., FOR A CLrUM AND DELIVERY OF CERTAIN SPECIFIC PERSONAL PROPERTY.</p> <p>Appeal from Marion Circnii Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED. '</p> <p>I. The instruments used by those engaged in interstate commerce are not necessarily a part of commei ce itself, and where such an instrument is situated, and its business exclusively carried on, within one state, that state has the power to regulate its charges.for the service it may render, though such regulation may incidentally affect inter-state commerce (Munn v. 111., 4 Otto, 113, 154 Law Ed., Book 24, p. 87; C. B. & Q. R R. Co. v. Cutís, &c., 4 Otto, 155, &c., Law Ed., Book 24, p. 94; Peik, &c., v. Chicago & Northwestern Ry. Co., 4 Otto, 164, Law Ed., Book 24, p. 97.)</p> <p>2. The relation of the carrier to the goods he carries, whether as being engaged in interstate or intra-state commerce, is determined alone from his obligations assumed by contract or embraced by law toward the owner of the goods.</p> <p>3. No common carrier in one state can be engaged in the business of interstate transportation over the line of another carrier, with which it has no business connection, by contract or arrangement for continuous transpoi tation for a through rate, nor can one carrier be compelled to make any conti act or arrangement with another carrier, whether within or outside of its own state. (Chicago & N. W. R. Co. v. Osborne, 52 Fed. Rep., 912; C. N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S., 184, Law Ed., Book 40, p. 935; L. & N. R. Co. v. Behlmer, 175 Ü. S., 648, Law Ed., Book 44, p. 309; Hanley v. Kansas City S. R Co., 187 U. S., 617, Law Ed., Book 47, p. 333.)</p> <p>CLASSIFICATION OB' QUESTIONS DISCUSSED.</p> <p>1. The Railroad Commission of Kentucky did not attempt to change appellee’s published rate for transporting finished monuments from Louisvilee to Lebanon, nor did it attempt to change any rate.</p> <p>2. The shipment in controversy was a shipment of interstate commerce, and if the Railroad Commission of Kentucky attempted to change appellee’s rate on the shipment of finished monuments, such action on the part of the Commission was without authority, and was void. (The Steamer Daniel Ball v United States, 10 Wallace, 77 U. S., 557, 19 L. Ed., bottom page 999; Coe v. Errol, 116 U. S., 517; Wabash, &c... v. Illinois, 118 U. S., 557; Kidd v. Pearson, 128 U. S., 25; Norfolk, &c., Ry. v. Pennsylvania, 136 -U. S., 114; L. & N. R. R. v. Eubank, 184 U. S., 46 L. Ed., bottom page 419; Florida, &e., Ry. v. Cutting, 46 Fed., 641; Hanley v. Railway, 187 U. S., 617, 47 L. Ed., bottom page 355, affirming Kansas, &c., Ry. v. Board of Railroad Commissioners. 106 Fed., 253 (and overruling U. S. v. Railroad, 115 Fed., 373; Campbell v. Railroad, 86 Iowa, 587, and Sewel v. Railroad, 119 Mo., 22.)</p> <p>3. A carrier cannot charge more or less than the published rate without violating the Interstate Commerce Act. (Gulf, &c., Ry. v. Hefley, 158 U. S., 98, vol. 39 L. Ed.. 910; Texas, &c., v. Mugg, 202 U. S., 242, vol. 50, L. Ed., 1011.)</p> <p>4. The procedure to recover excessive freight rates under the common law has been superseded by statutes creating railroad commissioners and providing summary, or other methods for such recovery. (Winsor Coal Co. v. Chicago, &e.. Ry., 52 Fed., 716, 722; Clafflin v. Houseman, 93 U. S., 130, 23 L. Ed., 333; Cobb v. L. & N. R. Co., 12 L. R. A., 725; Young v. Kansas, &c., 33 Mo., 509; L. & N. R. R. v. Commonwealth, 106 Ky., 643; Van Patten v. Chicago, &c., Ry., 81 Fed, 545.)</p> <p>5. If the Railroad Commission had the authority to change the rate, and had attempted to do so, -the necessary steps to give the Commission jurisdiction were not taken, as required by section 820a, Kentucky Statutes.</p> <p>6. The Marion circuit court had no jurisdiction of the subject of the action. By the Interstate Commerce Act the Federal Court alone has jurisdiction. (Cobb v. L. & N. R. R. Co., 12 L. R. A., 725; Van Patten v. Chicago, &c., Ry., SI Fed., 545; Young v. Kansas, &c., Ry., 33 Mo., 509.)</p> <p>1. The shipment was interstate commerce during every part of ' lip journey. (Daniel Ball, 10 Wall., 557; Pacific Steamship Co. v. Railroad Commissioners, 18 Fed., 10; Cutting v. Ry. Co., 46 Fed., 641; G. C. & S. F. Ry. Co. v. Grain Co., 72 S W., 419; Porter v. Ry. Co., 95 S. W., 453; C., M. & St. P Ry. Co. v. Voeker, 129 Fed., 522; Hanley v. K. C. Southern, 187 ü. S., 617)</p> <p>2. The shipment, being interstate commerce, is not subject to State regulation, and the rate charged and collected for the whole or any part of the journey is not subject to regulation by the State of Kentucky or any governmental authority therefor. (Wabash, &c., v. Illinois, 113 U. S., 557; L. & N. v. Eubank, 184 U. S., 27; Ryman Steamboat Line Co. v. Commonwealth; MS. Opinion, Court of Appeals of Kentucky, April 10, 1907.)</p> <p>■ 3. The courts have no jurisdiction of an action growing out of an alleged extortionate rate until after complaint to, and action thereon by, the Interstate Commerce Commission. (Swift v. P. & R. R. Co., 58. Fed., 358; Van Patten v. Chicago, &c., R. Co., 74 Fed., 981; Edmunds v. I. C. R. Co., 80 Fed., 79; Sheldon v. Wabash R. Co., 105 Fed., 785; Carlisle v. M. P. R Co., 68 S. W.j 898; T. & P. Ry. Co. v. Abilene Cotton Oil Co., 27 Sup. Ct. Rep., 350; T. & P. Ry. Co. v. Cisco Oil Mill, 27 Sup. Ct, Rep., 358.)</p>

<p>1. Venue — Change—Discretion of Court — The question of granting a change of venue is addressed to the sound discretion of the trial court, and his action will not be disturbed unless the discretion is abused.</p> <p>2. Appeal- — Review—Objections not Raised Below — A party cannot complain that the trial court erroneously limited the number of witnesses where no objection or exception was taken.</p> <p>3. Trial — Exclusion of Witneses from Courtroom — Discretion—In a condemnation proceeding by a railway company the trial court did not abuse a sound discretion in allowing the president of the company to remain in the courtroom, though he was a witness, and the other witnesses were put under ■ rule, since the court may allow a corporation’s agent to remain in the courtroom to assist in managing its case,</p> <p>4. Eminent Domain — Condemnation Proceedings — Railroad — Necessity — Question for Court — Under Ky. Stats., 1903, section 768, providing a railroad company may condemn lands adjacent to its road necessary for the proper operation, etc., it is not necessary for the company in its petition, for condemnation to allege more than that the land proposed to be taken is necessary, and joinder of issue upon that question raises a question of law. •</p> <p>5. Same — Corporation—Organization—Collateral Attack — Under Ky. Stats., 1903, section 763, a railroad company organized thereunder may not transact business until certain things are done and a certificate is issued by state officers. Section-566, in the same chapter, provides that no person tiansacting business with any corporation organized under the chapter or sued for injury to its property may rely upon the corporation’s want of legal organization as a defense. Reid, that since one who claims the right to exercise eminent domain when the right is denied must show his authority to exercise it, and since the effect of section 566 is that other persons than those named therein may rely upon want of legal organization as a defense to an action by a corporation, the owner of land sought to be condemned by a company claiming organization under section 763 may deny its incorporation where it is not disclosed that the provisions of that section had been complied with.</p>

<p>Licenses — Privileges—Statutory Provisions — Acts 1906, section 1, subd. 2, p. 187, provides that all “licenses * * * shall be granted by the county clerk.” Chapter 22, art. 12, section 1, subd. 4, p. 200, provides that each person who loans money upon salaries or household furniture shall pay a license of $200. Section 9, art. 12, p. 185, provides that all applicants for licenses shall state the county, city, town, and place therein wherein it is proposed to carry on the business, that all licenses shall specify the place where the business is to be conducted, and that no one but the person named in the license shall exercise the privilege granted and only at the place mentioned in the license. Held, that the county clerk properly refused a license to complainant to conduct a loaning business at places in the city of Louisville under different names, neither of which disclosed who was the licensee.</p>

<p>1. Carriers — Carriers of Freight — Liability—A carrier received freight for transportation, though it had no trains scheduled to carry it until the following day. The shipper knew the • facts, and understood that the goods would be stored in the depot until the following day. Held, that the carrier while holding the goods at the depot was liable as, a carrier, and not as a warehouseman.</p> <p>2. Trial — Right to Open and Close — Where, in an action against ■a carrier for the loss of freight, the answer controverted the allegations of the petition, and alleged the loss was through an act of God, and the reply denied the affirmative allegations, and the carrier, after the jury had been sworn, filed an amended answer, in which it withdrew the denials of the answer, except those as to the value of the goods, the court properly refused its motion to adjudge it the burden of proof, and the concluding argument to the jury.</p> <p>S. Carriage of Freight — Liability for Loss' — Act of God— ■ — To exempt a carrier from liability for loss of goods by reason of an act of God, it must be free from negligence.</p> <p>4. Same — Question for Jury — In an action against a carrier for loss of goods stored in a depot, awaiting transportation, evidence examined, and held that the question whether the loss was the result of an act of God, relieving the carrier from liability, was for the jury.</p>

<p>1. Appeal — Objections Not Raised Below — Mandamus to County Judge — Where a county judge refused to order a local option election in a county pursuant to the terms of a certain statute, on the sole ground that a certain town in the county had already passed upon the question, he will not be heard, on appeal in mandamus proceedings to compel him to order such election, to complain that the lower court in granting the mandamus fixed a certain day to hold the election, the fixing of which by the terms of the statute was within the county judge’s discretion.</p> <p>2. Intoxicating Liquors — Local Option Elections — Duty of County Judge to Order — Laws 1906, p. 86, c. 21, provides that no local option election in any city of a county shall be. held on the same day on which an election for the entire county is had, except that a city of the fourth class may hold the election on the same day on which an election for the entire county is held. Ky. Stat., 1903, section 2554, provides that, upon application by petition^ signed by the requisite number of-voters, it is the duty of the county judge to order the election for the entire county, and that the citizens of any city of the fourth class may ask for a vote upon the same •day by complying with the requirements of the statute. Held, that it was the duty of the judge to order such election where the necessary proceedings were taken, notwithstanding that a city of the fourth class within the county had previous to the time of the requested election voted upon the question, and mandamus will be granted to compel him to make such •order. *</p>

<p>CASE 76 — ACTION BY JOHN STITES AGAINST CHARLES B. NORTON AND OTHERS COMPOSING THE BOARD OF PUBLIC WORKS OF THE CITY OF LOUISVILLE TO ENJOIN THE BOARD FROM SELLING A FRANCHISE.</p> <p>Appeal from Jefferson Circuit Court (O. P. Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>Judgment for defendants. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is the duty of courts, in construing statutes, to give effect to the intent of the law-making power, and that intent is to he found, primarily, in the language used in the statute. (Lewis’ Sutherland Statutory Construction, 2nd Ed., sec. 366; United States v. Goldenberg, 168 U. S., 95; Bosley v. Mattingly, 14 B. M., 73.)</p> <p>2. The constitutional provision that a franchise shall be sold to the highest and best bidder is mandatory. (Nicholasville Water Company v. Board of Councilmen of the Town of Nicholas-ville 18 Ky. Law Rep., 592; Keith v. Johnson, Í09 Ky., 42; Merchants’ Police & District Telegraph Co. v. Citizens’ Telephone Company, 29 Ky. Law Rep., 512; 93 S. W., 642; City of Providence v. Providence Electric Light Co., 28 Ky. Law Rep., 1016.)</p> <p>3. As Constitution requires a franchise to be sold to the highest and best bidder, the Council must throw open the franchise to the fullest competition. (Fineran v. Central Bitulithic Paving Company, 116 Ky., 495; McQuillan, Municipal Ordinances, section 553; Mayor and City Council of Baltimore v. Keiser, &c., 19 Atl., 706; 72 Md., 106; Frame v. Felix, 167 Pa. St., 47; 31 Atl. Rep., 375; Fiske v. People, 188 111., 206; 52 L. R. A., 291; Treat v. People, 195 111., 196; 62 N. E., 891; McChesney v. People, 200 111., 146; 65 N. E„ 626; Glover v. People, 201 111., 545; 66 N. E., 820.)</p> <p>4. Taxpayer may bring suit to prevent council from illegally granting franchise. (Merchants’ Telegraph Company v. Citizens' Telephone Company, 29 Ky. Law Rep., 512; 93 S. W., 642.)</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. Two things must exist to warrant relief by injunction:</p> <p>The act must be in excess of legal authority, and if not prevented will result in irreparable injury. The decree sought in this case was properly refused because neither ground nor occasion for equitable interference exists. (See Spelling on Injunction, vol. 1, sec. 677.)</p> <p>2. There is no ground for equitable interference. Section 11 of the ordinance, excluding the Louisville Lighting Company from bidding on the ground that said company already enjoyed a similar franchise .and would only obtain the one in question for the purpose of suppréssing its operation, is authorized and justified as</p> <p>(1) A lawful exercise of police power to prevent monopolies and combinations suppressing competition in the sale of a public necessity. (Clemons v. Meadows, 94 S. W., (Ky.) 13; Section 195, 198, 201, Constitution of Kentucky; Section 2783, Ky. Stats.; People ex rel v. Chicago Gas Trust Co., 130 111., 297; Beach on Modern Law of Contracts, sec. 1180; Chicago Gas Light Co. v. People’s Gas Light Co., 121 111., 930; 10 Cyc., 1090, 1092; Beach, Monopolies and Industrial Trusts, p. 46.)</p> <p>(2) It is justified and authorized as a legal exercise of discretion vested in the General Council. (See section 164, Constitution of Kentucky; Keith v. Johnson, 109 Ky., 44; Pinneran v. Central Bithulithic Paving Co., 116 Ky., 495; Trap v. City of Newport, 115 Ky., 840; Page on Contracts, sec. 1049.)</p> <p>3. There is no occasion for equitable interference:</p> <p>(1) This action could not be maintained by the Louisville Lighting Company because the provision of the Constitution invoked is for the benefit and protection of the public, not unsuccessful or prospective bidders, nor can this action be maintained by a taxpayer who is merely a colorable plaintiff. (See Page on Contracts, sec. 1049; High on Injunctions, sec. 1302, vol. 2; Hull v. Eli, 2 Abbott, New Cases, New York, 440.)</p> <p>(2) An injunction presupposes an injury to or threatened injury to or violation of plaintiff’s rights, and no fact is alleged tending to show any injury of any nature to plaintiff as taxpayer individually or in common with other taxpayers.</p> <p>(3) It- is not alleged as a fact that the Louisville Lighting Company actually offered to bid, would have bid, or desired to bid, or that they were as a matter of fact denied the right to bid; hence there was no exclusion of a bid or restriction on the bidding as a matter of fact.</p> <p>(4) If section 11 is void, it does not vitiate the remaining portion of the ordinance creating the franchise and providing for its sale, and as every one is presumed to know the law and act accordingly, it can not be maintained that section 11 as a nullity had the effect as a matter of law to exclude the Louisville Lighting Company from bidding.</p> <p>(5) As a restriction on competitive bidding does not appear as a matter of fact or as a matter of law, there is no injury by virtue of section 11, hence no occasion for equitable interference.</p> <p>(6) No facts are alleged tending to show danger of loss to the public treasury, nor consequent charge upon taxpayers. The result of a decree in this case annulling the sale of a franchise will simply mean the loss of $100,150 to the public treasury and a sale of another franchise, which can be had notwithstanding the fact that the sale in question is sustained. To enter a decree annulling the sale of the franchise in question without a showing of a threatened or actual injury,, and without any assurance of benefit to be conferred upon the public or the public treasury, is, indeed, a judicial novelty.</p> <p>A decree annulling the sale of the franchise in question passesi upon the vested right' of a third person who is not before the court. There can be a sale of another franchise similar to the one in question, whether the sale of the franchise herein is sustained or annulled.</p>

<p>Courts — Jurisdiction of Inferior Courts — Amount! in Dispute-^» Prohibition — Where an injunction is issued out of a quarterly court restraining the sale of property under ,an execution issued out of such court, the property being claimed as exempt and being of the value of more than $25, a writ of prohibition will not be issued by a circuit court against such injunction on the grounds of lack of jurisdiction, under Code Prac., section 248, providing that “no injunction shall be granted to stay proceedings upon a judgment of .a justice of the peace or of a county court if the' value of the matter in dispute do not exceed twenty-five dollars,” since the “matter in dispute” is more than $25.</p>

<p>CASE 78. — ACTION BY R. W. OVERALL, A TAXPAYER, AGAINST THE CITY OF MADISONVILLE TO ENJOIN THE EXECUTION OF A CONTRACT FOR AN ELECTRIC LIGHT PLANT.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. P. Gordon, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The record shows a plain violation of sec. 157 Constitution and of various sections of fourth class charters. Defendants cannot do indirectly what they are forbidden to do directly. Every step of defendants is either a direct violation of positive law or a palpable evasion thereof. (Constitution of Kentucky, sec. 157; Kentucky Stat., sec. 3490; subsecs. 26, 34; Field v. Sitroube, 19 Ky. Law Rep., p. 1751; Beard v. City of Hopkins-ville, 95 Ky., p 239; Knipper v. City of Covington, 22 Ky. Law Rep., p. 676; Earles v. Wells, 59 Am. St. Rep., p. 886; Laporte v. Gamewell, etc., Co., 58 Am. St. Rep., p 359; Windsor v. Des Moines, 80 Am. St. Rep., p. 280; Rice v. Milwaukee, 100 Wis., p. 516; Prince v. Quincy, 44 Am. Rep., p. 785; Sackett v. New Albany, 45 Am. Rep., p. 467; Eddy Valve Co. v. Crown Point, 3 L. R. A. (N. S.), p. 684 and note; Voss v. Water Co., 66 L. R. A., p. 95; Ottumwa v. Water Co., 59 L. R. A., p. 604 and. note.)</p> <p>2. Less than a quorum of the city council has assumed all the powers of the council. Their acts are void. There was no de facto council. Even if a de facto council, its acts must be in good faith to be binding. (City of Somerset v. Somerset Banking Co., 22 Ky. Law Rep., p. 1129.)</p> <p>3. We believe that a careful consideration of this record will result in certain reversal.</p> <p>POINTS ARGUED AND AUTHORITIES CITED.</p> <p>1. , Did Sory vacate his office? (Pate v. Comth., 22 Ky. Law Rep., 1890, 61 S. W., 1009; Creighton v. Comth., 83 Ky., 142; Rodman v. Harcourt 4 B. M., 224; Gilbert v. Huston Lit. Sel. Cas., 223; Hoaglan v. Carpenter 4 Bush, 89; Morgan v. Vance lb., 323; City Bardstown v. Nelson Co., 25 Ky Law Rep., 1478; 78 S. W., 169; Ky. Stat. sec. 3746, 3444, 3484, 3486; Keating v. City Cov., 18 Ky. Law Rep., 245; 35 S. W., 1026; Acts 1904 Ch., 35 p. 106; McCreary on Elections, sec 340; Meachem on Pub. Off. sec. 420; Bishop v. State, 63 Am. St. Rep., 279; Oliver v. Jersey City 76 Id., 228; Hoaglan v. Carpenter supra; Richardson v. Justices', 2 Ky., 174; Taylor v. Comth., 3 J. J.M., 407; Goodloe v. Fox, 96 Ky., 607; Rice Somth., 3 Bush, 17; Wilson v. King, 3 Litt., 459.)</p> <p>2. Was there a quorum of the council on September 3? (Ky. Stats., secs. 3486, 3552; Gilbert v. Huston, Litt. Sel. Cas., 225.)</p> <p>3. Bone and Lamb were at least de facto officers and their acts binding on the public and third parties. (Smith v. Cansler, 83 Ky., 372; Rice v. Comth., 3 Bush, 14; Carroll v. State, 9 Am. Rep., 416; Meachem on Pub. Off. sec. 317, 318; 8 Am. & Eng. Enc. of Law, 2nd ed., 795, 790, 823; Pence v. City of Frankfort, 19 Ky. Law Rep., 721, 41 S. W., 1011; Justices v. Clark, 1 Mon., 82; Butler v. Walker, 39 Am. St. Rep., 61, 64 Id., 585.)</p> <p>4. Lighting the city is a public purpose and the city may erect a plant and furnish light to its inhabitants. (Ky. Stat., sec. 3490, 10, 3580, 3583; Abbott Mun. Corp., pp. 302, 399; Jacksonville Elec. Lt. Co. v. Jacksonville, 51 Am. St. Rep., 24; City Crawfordsville v. Braden, 30 Id., 214; City Newport v. Newport Lt. Co., 84 Ky., 166; Bd. Coun. Frankfort v. Comth, 94 S. W., 648, 29 Ky Law Rep, 699; Smith Mun. Corp., sec. 831; Lake Co. v. Walsh, 98 Am. St. Rep., 272; Fawcett v. Mt. Airy, 101 Id., 825; Sumner v. City, 97 Id., 396; Mitchell v. Negaunee 67 Id., 468; Winsor v. Des Moines, 80 Id., 294; Liner v. Burgesses, 25 L. R. A., 217; Henderson v. Young, 83 S. W., 583; 26 Ky. Law Rep., 1152.)</p> <p>5. What constitutés the revenue and income of a city? City Prov. v. Prov. Lt. Co., 91 S.' W., 664; 28 Ky. Law Rep., 1015; Lamar Water Co-, v. Lamar, 26 S. W., 1025; 31 S. W., 756; 32 L. R. A., 157; Field v. Stroube, 44 S. W., 363; 19 Ky. Law Rep., 1751; Wathen v. Young, 44 S. W., 115; 19 Ky. Law Rep., 1678; Whaley v. Comth., 61 S. W, 35; 23 Ky. Law Rep., 1292; Webster’s International Dictionary.)</p> <p>6. What constitutes “Indebtedness” in the meaning of the constitution? “O’Bryan v. Owensboro, 68 S. W., 858; 24 Ky. Law Rep., 469; Hopkins Co. v. St. Ber. Min. Co., 70 S. W., 289; 24 Ky. Law Rep., 942; Lewis v. Widbur, 99 Cal., 412; 23 L. R. A., 40, notes; Roach v. Chapman, 58 Am. St. Rep., 59; Abbott Mun. Corp., sec. 157; City of Congers v. Kirk, 78 Ga., 480; City of East St. Louis v. Flannagan, 26 111. App., 499; City of South Bend v. Reynolds, 49 L. R. A., -495; State ex. Rel. v. Helena 55 Id.,-, brief; Grant v. Davenport, 36 Iowa, 396; 1 Dillon Mun. Corp., 4th ed., sec. 136a; Wade v. Oakman, 165 Pa., 479; Walla Walla Wat. Co. v. Walla Walla, 60 Fed., 957; Toland v.‘Franklin, 142 Ind., 546; Lamar Water Co. v. Lamar, 32 L. R. A., 157; Tenting ex rel. v. Okla., 20 Okla., 158; People v. Pachico, 27 Cal., 176; People- ex rel. v. May, 9 Colo., 404; Smith v. Dedham, 144 Mass., 177; Fenton v. Blair, 11 Utah, 78;- Andrews Co. v. Schell, 135 Mo., 31, 36 S. W., 206.)</p> <p>7. Can tlie revenue and income for 1906 be appropriated for tbe light plant. (Field v. Stroube, 44 S. W., 363; 19 Ky. Law-Rep,, 1751; Wiatben v. Young, 44 S. W., 115; 19 Ky. Law Rep., 1678; Whaley v. Comth., 61 S. W., 35; 23 Ky. Law Rep., 1292; Abbott M,un. Corp., 1027; Hunt v. City N. Y., 62 N. Y., 184; Burch v. City Owensboro, 36 S. W., 12; 18 Ky. Law Rep., 284; Pulaski Co. v. Watson, 50 S. W., 861; 21 Ky. Law Rep., 61; Town ML Pleasant v. Eversole, 96 S. W., 478; 29 Ky. Law Rep., 831.)</p> <p>8. Taxes to be levied can be anticipated. (Abbott Mun. Corp., sec. 384; Trustees Dist., 32 v. Kane, &c., 87 S. W., 321; 27 Ky. Law Rep., 983; Addyston v. Corry, 80 Am. St, Rep., 814; Earles' v. Wells, 59 lb., 891.)</p> <p>9. The city can build its plant piecemeal.</p> <p>10. Does the financial condition of the city at the time of making the contracts or at the trial of suit control and did the city exceed its revenue.</p> <p>11. The lower court did not err in striking from plaintiff’s pleadings or in refusing to permit the filing of the amended and supplemental petition. '</p>

<p>CASE 79. — PROSECUTION AGAINST WILLIAM WHITE FOR MURDER.</p> <p>Appeal from Boyd Circuit Court.</p> <p>S. G-. Kin nee,, Circuit Judge.</p> <p>Defendant convicted of voluntary manslaughter and appeals.</p> <p>POINTS RELIED UPON FOR REVERSAL.</p> <p>1. The court erred in striking out the testimony of appellant at the end of the case, that Lane had cut him with a knife and that another time had assaulted him with a club.</p> <p>2. The Court erred in allowing the Commonwealth, on cross-examination of apellant, to ask White if at the time Lane cut him with a knife he was not attempting to assault Lane with a meat cleaver.</p> <p>3. The appellant having answered that he did not have a meat cleaver at the time, the court erred in allowing the Commonwealth to further interrogate the witness and make him admit that he had a meat cleaver just prior to that time.</p> <p>4. Appellant having denied having the meat cleaver at the time, the Commonwealth prejudiced his substantial rights by undertaking to impeach and contradict him on this immaterial and collateral issue, by showing, by two other witnesses, that he did have a meat cleaver at the time.</p> <p>5. The court erred in not allowing appellant to prove by several witnesses that they had observed that White was always trying to avoid Lane.</p> <p>6. At the end of the entire case the court erred in orally instructing the jury that they should not consider anything that the appellant had said about being cut with a knife and attacked with a club by deceased, but should only consider that they had former difficulties.</p> <p>7. The court erred when he struck out what defendant had said about being cut with a knife and attacked with a club and in not striking out what had been said about the meat cleaver, leaving same in the record.</p> <p>■ 8. The court erred in refusing to give appellant requests Nos. 1 and 2.</p> <p>8. The court erred, in his request number three, on self-defense, in so qualifying it at the end as to virtually deprive appellant of his only defense, — self-defense.</p> <p>10. The abuse of argument of the Commonwealth’s attorney, in closing for the Commonwealth, was so serious as to prejudice the substantial rights of the appellant.</p> <p>AUTHORITIES CITED FOR APPELLANT.</p> <p>Kennedy case, 14th Bush, 352; Bohannon case, 8th Bush, 483; Haverly v. Comth., 95 Ky., 36; Parson v. Comith., 78 Ky., 102; Oder v. Comth., 80 Ky., 32; Wharton, Crim. Evi. (8th Ed.), secs. 479-484, also 559; Gillett on Indirect and Collateral Evidence, sec. 90; 2 Elliott on Evidence, sec. 977; Kennedy v. Comth., 14 Bush, 341; Redmond v. Comth., 21 Ky. Law Rep., 331; O’Neal v. Comth., 27 Ky. Law Rep., 547; Carnes v. Comth., 27 Ky. Law Rep., 1205; Cook v. Comth., 86 Ky., 663; Bates v. Comth., 13 Ky. Law Rep., 132; Gilbert v. Comth., 21 Ky. Law Rep., 544 Gargill v. Comth., 12 Ky. Law Rep., 149; Flint v. Comth., 81 Ky., 186; Brown v. Comth., 13 Ky. Law Rep., 852; Mount v. Comth. 27 Ky. Law Rep., 788; Baker v. Comth., 20 Ky. Law Rep., 1784; Howard v. Comth., 67 S. W. R., (Ky.), 1003.)</p> <p>The facts show that appellant murdered Lane. Every witness in the card game; every witness in the saloon agree as to the manner of the killing. No one corroborates White's story at all. The best he can do is to swear that be thought Lane was coming at him with a knife. No one hears him out in his behalf. He shows previous threats and difficulties, and the bad reputation of deceased. The nearest he comes to bolstering up his self-defense story, is the testimony of witness Fortune, wherein he says that he saw Lane go toward Darmon’s saloon, and that he pulled out of his pocket, and opened, a knife</p> <p>We think the jury certainly tempered justice with merey, in coming to a conclusion on .a verdict. It is a clear ease of murder, with a verdict for manslaughter.</p>

<p>Sales — Breach by Seller — Remedies of Purchaser — Damages— Where a manufacturer of clothing failed to deliver clothing sold to a retailer, who made diligent efforts to purchase other goods in the market after he was informed that the seller would not comply with his contract, but the retailer could not obtain them, he was entitled to recover the reasonable profits he could have made on the clothing if delivery had been made according to the contract, and also the increased market price of the goods from the time he purchased to the time they were to be delivered.</p>

<p>CASE 81. — ACTION BY TIGER SHOE MEG. CO.’S TRUSTEE IN BANKRUPTCY AGAINST S. A. SHANKLIN ON BALANCE DUE ON SHARES OF STOCK IN SAID COMPANY.</p> <p>Appeal from Mason Circuit Court.</p> <p>J. P. Hakbeson, Circuit Judge. '</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The right of appellant to sue in this case Is a necessary incident to tlw title which vests in him as. trustee. (Lovelace on Bankruptcy, sec. 144; Dudley v. Easton, 104 U. S. 99; Chubb vs. Upton, 95 U. S., 665; Gleney vs. Langdon, 98 U. S. 20; Ins. Co. vs. Mann, 118 Ga. 381; McClanahan vs. Blackwell 119 Ga. 64; Callahan vs. Israel 186 Mass. 383; Act M!arch 3, 1887, c. 373, par. 3, 24 Stat, 554 (U. S. Comp. St. 1901, p. 582), as. re-enacted by Act August 13, 1888, c. 866, par. 3, 25 Stat. 436 (U. S. Comp. St. 1901, p. 582); Sec. 1, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418); McLean v. Mayo, 7 Am. Bankr. R. 115,113, Fed. 106; Lowell on Bankruptcy, par. 295; Lane vs. Nickerson, 99 111. 284; Sawyer vs. Hoag, 17 Wall. 610; Upton vs. Tribilcock, 91 U. S. 45; Shockley vs. Fischer, 75 Mo. 498; Lionberger vs: Broadway, etc. Bank, 10 Mo". App. 499; Ky. Mut. Investment Co. vs. Shaefer, etc. 85 S. W. Rep. 1098.)</p> <p>2. A call for payment of stock is not a condition precedent to a right of action by a trustee where a corporation’s affairs are being settled in a court of bankruptcy. (Hatch vs. Dana, 101 U. S. 214; Wilber v. stockholders of. Glenn Iron Works, 18 Wat. Bank. Reg, 178; S. C. 13 Phila. 479; Holmes vs. Sherwood, 3 McCrary, 405; Crawford vs. Roher, 59 Md. 599; Seymour vs. Stergous, 26 N. Y. 34.</p> <p>POINTS AND AUTHORITIES.</p> <p>A Trustee in Bankruptcy has no right to bring a suit in the State courts, or other federal courts, to enforce payment of subscriptions to the capítol stock of the bankrupt corporation, without an order of the court in bankruptcy directing him to do so, and his petition must allege 'such authority. (Bankrupt Act, sec. 46; Ky. St., secs: 547, 543; Hatfield v. Cummins, 142, Ind. 350; Davis v. Ladogo Creamery Co., 128 Ind., 222; Scriven vs. Clark, 48, Ga., 41; 3 Clark & Marshall on Corporations, secs. 798d, 799a, 799b, 820a; Gleen v. Leggett, 135 U. S., 533; Glenn v. Marbury, 145 U. S., 499; Kennedy v. Gibson, 8 Wallace, 499; Scoville v. Thayer, 105 U. S., 143; Hawkins v. Glenn, 131 U. S., 319; Sanger vs. Upton, 91 U. S., 59.)</p>

<p>CASE 82 — PROSECUTION AGAINST W. E. .LANE. A JUSTICE OF THE PEACE, FOR UNLAWFULLY WORKING HIS TEAMS ON PUBLIC ROAD FOR COMPENSATION.</p> <p>Appeal from McCracken Circnit Court.</p> <p>W. M. Reed, Circnit Judge.</p> <p>From a judgment finding the defendant not guilty the Commonwealth appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The inhibition of the law is against a justice of' the peace becoming interested, directly or indirectly, in any contract for work to be done, or material to be furnished upon the public roads of the county.</p> <p>2. The question here is .not one between a member of the fiscal court and an independent contractor, but between the county itself and a member of' its fiscal court.</p> <p>3. It is contended by appellee that working upon the roads and receiving pay from the county therefor, is not unlawful, because done in his “individual capacity,” and not in his “official capacity.” And that while “officially” he is over and above the supervisor, yet that “individually” he can very properly be under him and subject to his orders. It would indeed be a marvelous feat of gmynastics for a magistrate to succeed in demonstrating that he was both over and under the road supervisor at the same time; and it would be a strange sort of official surgery that would permit such magistrate to split himself in twain and call one part “his official” and the other his “individual self.” (Comth. v. Pate, 110 Ky. 468; Boyd County v. Arthur, 118 Ky., 932; sec. 4332, Ky. Stat., 1903; sec. 4315, Ky. Stat.; sec. 4335, Ky. Stat.; sec. 1844, Ky. Stat., 1903; sec. 1845, Ky. Stat, 1903; Pulaski County v. Sears, 117, Ky., 249; Daviess County v. Goodwin, 116 Ky., 891.)</p> <p>(No brief in the record.)</p>

CASE 83 — PROSECUTION AGAINST H. J. ARENZ FOR KEEPING A DISORDERLY HOUSE Appeal from. McCracken Circuit Court. W. M. Reed, Circuit Judge. Defendant Convicted and appeals We rely for a reversal of this case on the case of Commonwealth v. McCarter, 25th Ky. Law. Rep., page 294, for we think that the indictments are similar. The indictment in this case does not charge with whom the betting or wagering was done, nor whether it was done with the appellant.

<p>CÁSE 84 — PROSECUTION AGAINST GEORGE EHRLICK FOR MAINTAINING • A COMMON NUISANCE — A POOL ROOM.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. $. Berry, Circuit Judge.</p> <p>Defendant convicted and appeals</p> <p>POINTS,</p> <p>1. The court erred in overruling the demurrer of the defendant to the indictment.</p> <p>2. The verdict of the jury is not sustained by the evidence.</p> <p>3. The court erred in admitting to the jury incompetent evidence offered by the Commonwealth, to wit: The warrants, affidavits and records of the police court of the district of Clifton in cases of the district of Clifton against George Ehrlick, appellant, tried in said police court for violation of an ordinance of the said district.</p> <p>4. The court erred in refusing to give to the jury instructions Nos. 1 and 2 offered by the defendant.</p> <p>POINTS AND AUTHORITIES.</p> <p>The real bone of contention in the case at bar seems to be the fact that the lower court allowed the plea of guilty made by Ehrlick in the police court of the district of Clifton to go as evidence. Ehrlick was fined every day of the week for some time; he entered his plea of guilty in the police court of the district of Clifton and paid a $10 fine for some time daily.</p> <p>We think that as this court has held the operation of such a pool room constituted a nuisance, then Ehrlick’s admissions in the police court are a matter of record, and competent to show the fact that “betting and the winning and losing of money was indulged in said pool room,” and they are admissions of the most solemn form. It has been so held in the following cases: (Com. v. Ayers, 115 Mass., 137; Com. v. Hazeltine, 108 Mass., 479; also 108 Mass., 421, and 122 Mass., 426.)</p> <p>The admission, of that proof was competent, and as the jury was properly instructed as to the law of the case, if there was sufficient proof to take the case to the jury, then this court should not disturb the judgment of the lower court, and we ask an affirmance.</p>

<p>1. Elections — Lost Ballots — Substitution..—Where, on the morning of an election, it was discovered that the bailóte' for certain precincts had been lost or stolen, tbe county clerk should supply new ones, if possible, in time for the election.</p> <p>2. Same — Contest—Petition—Right of Contestant. — A defeated candidate may sue to set aside an election on the statutory grounds, though his petition does not show that he himself was elected to the office.</p> <p>8. Quo Warranto — Title to Office. — Quo warranto cannot be brought against one holding an election certificate by a contestant, tbe contestee not being a usurper in the office, as required by Civ. Code. Prac., sec. 480.</p> <p>4. Elections — Statutes.—Where an election contest involves the title to the office of each member of the general council or aldermanic board of the city, tbe contest must be conducted under Ky. St. 1903, sec. 1596a, subsec. 12, providing for contests in the circuit court of the county where the contestee resides, etc., and not under section 2771, providing that each board-of city councilmen shall judge of the eligibility and election of its members, etc.</p> <p>E. Same — Vacation of Election — Fraud—Intimidation—Violence. —Where the result of a contested election was effected by fraud, -intimidation, bribery, or violence, the Court of Appeals would set it aside, regardless of the contestees’s participation in or knowledge of the fraud or other wrongdoing, under Ky. St. 1903, sec. 1596a, subsec. 12, providing for election contests by suit begun in the circuit court, etc.</p> <p>6. Same — Burden of Proof. — In a proceeding to set aside an ■election for fraud, intimidation, bribery, or violence affecting the result, as authorized by Ky. St. 1903, sec. 1596a, subsec. 12, the burden is on the contestant to show that the wrongdoing existed to such an extent that it is impossible to determine who has been elected; but he is not required to show that he would have been elected, except for such wrongdoing.</p> <p>7, Same — Disfranchised Voters. — -Voters are to be deemed disfranchised where persons entitled to vote are denied the right to do so, by whatever means, and' also where persons are permitted to vote, but their votes, by reason of fraud, violence and other wrongdoing, have not been counted. at all, or have not been counted as- cast.</p> <p>S. Same — Contest—Illegal Votes. — The test to be applied in an election contest, where illegal votes have been secretly-cast, is to see whether the contestant would be elected if all the illegal votes were deducted from the vote returned for the contestee.</p> <p>9. Same — Burden of Proof. — In order that illegal votes should be deducted from the vote returned for contestee in an election contest, it must be shown, either by direct or circumstantial evidence, that the votes were in fact cast and counted for contestee.</p> <p>10. Same — Illegal Votes — Evidence.—Where illegal votes were cast by a secret ballot, the voters alone could prove for whom the ballots were cast.</p> <p>11. Witnesses — Privilege—Self-Incrimination.—Depositors of illegal ballots are protected by the privilege against self-incrimination from testifying for whom such ballots were voted.</p> <p>12. Elections- — Contest—Illegal Ballots — Uncertainty of Election. —It being practically impossible to prove for whom secret illegal ballots were cast, such ballots- might be relied on' to show the general uncertainty of an election, without proving for whom they were cast.</p> <p>13. Same — 'Result—Proof—Certificates—Ballots.—In an election contest, the result of the election must be shown by the ' certificate of the election officers, or by the ballots themselves, where they have been preserved and safeguarded as the law directs, and cannot be proved by parol proof of the contents of such ballots.</p> <p>14. Same — Lost or Destroyed Ballots. — Lost • or destroyed ballots cannot be supplied in an election contest, like a lost instrument of writing, for the purpose of counting the vote.</p> <p>15. Same — Election Certificates — Best Evidence. — While the certificates of election officers are prima facie correct, the ballots themselves, when preserved as the law directsi, are tho best evidence of the vote, and will prevail over the certificates' in case of a difference.</p> <p>16. Same- — 'Precincts—Disfranchisement.—Where no election whatever was held in three precincts and in nine other precincts the election officers' of one of the political parties attempted to hold the election in places other than those designated, and, removing the poll books to such places, attempted to vote the registration alphabetically, without the presence of the voters, and returned forged certificates, the entire registered vote of such precincts was disfranchised.</p> <p>17. Sams' — Force.—Where the polls in a certain precinct were raided by a band of armed men at about the time they should have been closed, and the ballot box was seized, carried off, and the contents destroyed after 187 voters had voted, such voters were entirely disfranchised.</p> <p>18. Same. — Where, in a certain precinct, the ballots, certificate, ■stub, and everything connected with the election, save the ballot box, were fraudulently burned before the count had been completed, so that nothing remained but the statements of the election officers as to the condition in which the ballots were at the time they were destroyed, none of them having been counted, the entire precinct was disfranchised.</p> <p>19. Same — Vote—Forgery of Certificate — Mutilation of Ballots.— Where, in an election contest, all that was presented from one precinct was a forged certificate of election and ballots which on their face bore unmistakable evidence that they had it not only been tampered with, but much mutilated, and it appeared that the certificate and ballots were taken from the election officers by policemen, and while in their charge the certificate was forged and the ballots resitamped, the entire registration of such precinct should be considered disfranchised.</p> <p>20. Same. — During an election the polls of one precinct were broken into before the count was completed by a band of men, who in the presence of policemen acted in such a threatening manner as to frighten the Republican officers of election, so that they left the polls and were afraid to return. The certificate from such precinct was a forgery, showing 232 votes for one candidate for mayor and 10 votes for his opponent, while the ballots .as found in the box showed 136-to 92 for the same candidates. Held, that the voters, of such precinct were disfranchised.</p> <p>21. Same — -Delay in Opening Polls.- — Owing to a dispute as to the filling of a vacancy occasioned by the nonappearance of a Republican judge in one election precinct, the polls were not opened until, between 11:30 and 12 o’clock. Many people had come to vote, but, finding the polls were not open, had gone away. After the polls- were opened, people voted constantly until they were closed, after having been open but four hours, when there were from 35 to 75 men standing in line who had not voted, and who demanded their right to do so. Held, that all of the voters who were denied the right to vote in such precinct should be considered disfranchised, and that their number should be determined by deducting the number of .those who did vote from the registered vote of the precinct.</p> <p>22. Same — Illegal Voters. — Where, in one precinct, 76 old men from a charitable institution were voted illegally without first having been required to take the statutory oath, but there wa-s no proof as to how they voted, their votes should be counted asi cast.</p> <p>23. Same. — During an election in six precincts of a city repeaters were openly voted. In some precincts Republican officers of election were driven from the polls by actual, violence, and in others by threats of violence, and while absent the polls were in charge of the Democrats and their sympathizers, during which the repeaters were voted. In other precincts the formality of having the repeaters present was dispensed with, and, while the Republican officers of election were being beaten outside the polling place, the ballot box in charge of the Democrats was stuffed. Republican sympathizers in those precincts who protested were dubbed into insensibility or arrested and incarcerated; the police in each instance either participating in the force and violence committed, or refusing to prevent it when it occurred in their presence. Held, that such acts were sufficient to render the election uncertain in such precincts, and to invalidate the . entire vote therein,</p> <p>24. Same — Presence of Policemen. — It is: improper to have the polling places in a city dominated and controlled by the city’s police force.</p> <p>25. Same — Result of Election. — Where, if voters in a city who had been disfranchised by force, fraud, and intimidation, had all voted for the defeated candidates, .the latter would have been elected by large majorities, and it was impossible to determine who was in fact elected, the entire .election would be declared void.</p> <p>26. Same — Conspiracy—Evidence.—In an election contest, evidence held sufficient to show .a conspiracy between the managers of the Democratic campaign to carry an election by fraud, theft and violence.</p> <p>27. Officers. — Void Election — Filling Vacancies. — Where an entire election in a city was void, and there was a vacancy in all of the offices, voted for, the Governor was required by Ky. St. 1903, sec: 3758, to appoint the judge of the county court, all justices of the peace, the mayor of the city, all of the aldermen and councilmen, a judge of the city court, prosecuting atorney for the city court, and three park commissioners, and the judge of the county court was required by section 1526 to appoint the county court clerk, county attorney, sheriff, surveyor, county jailer, county superintendent of schools, county, treasurer, constables and assessor; the mayor being required by sec. 2791 to appoint a city treasurer, city auditor, city tax receiver, and bailiffs of the city court, and the judge of the city court being required by sec. 3932 to appoint a clerk of such court.</p> <p>28. Officers — Elections — Contest—Rights of Contestee. — Where, in an election contest, the election was found to be wholly void, and that a vacancy existed in each of the offices voted for, each of the contestees, holding until the qualification of a successor, as provided by the Constitution, was required to perform the' duties of his office until his successor was • appointed and qualified.</p>

<p>CASE 86. — ACTION BY W. H. BOWMER AND OTHERS AGAINST O. DE HAVEN AND OTHERS TO TEST THE VALIDITY OF A LOCAL OPTION ELECTION.</p> <p>Appeal from Breckenridge Circuit Court.</p> <p>Weed S. Chele, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal</p> <p>RECAPITULATION.</p> <p>We contend:</p> <p>1. That the old contest board has been abolished by legislative enactment and has no existence.</p> <p>2. That the old board has been declarad to be unconstitutional by this court.</p> <p>3. The circuit court erred in not sustaining the appellants’ special demurrer to the jurisdiction of said board; erred in not sustaining appellants’ motion to dismiss the appeal to that court; erred in not holding that said board was an unconstitutional board; erred in not remanding said contest to the alleged contest board for its decison on the merits of the contest, and commanding it to take jurisdiction, and this, even though it should be held that said board had not been abolished, and that it was a constitutional board; erred in holding that a special registration in part of a town or city was necessary; erred in taking original jurisdiction of the contest on an appeal to it and in deciding that the local option election held in precinct No. 1, as aforesaid, was void, and of no effect.</p> <p>The court will notice that the appellants objected and excepted, both in the judgment and in their bill of exceptions, to all the acts herein complained ofj at the time and in the manner required by law.</p> <p>AUTHORITIES CITED.</p> <p>Shindler v. Floyd, 118 Ky., p. 468; Wilson v. Tye, 29 Ky. Law Rep., p. 71; Ky. Stats., sec. 1596a; Ky. Stats of 1894, sec. 1534; Ky. Stats., sec. 4650; Pratt v. Breckinridge, 112 Ky., pp. 1 to 69; Stuart v. Rose, 24 Ky. Law Rep., vol. 1, p. 347; Davison v. Johnson, 24 Ky. Law Rep., vol. 1, p. 27; Ky. Stats., sec. 2566; Constitution of Ky., secs. 109, 135; Erwin v. Benton, 87 S. W., 291; Ky. Stats, sec. 2567; Ky. Stats., sec. 2566, subsec. 6; Sweeney v. Coulter, 22 Ky. Law Rep., 885; Ky. Stats., sec. 4434; George &c., v. City of Winchester, 80 S. W., 1158; Ky. Stats., secs. 2561, 2563; Cole v. Commonwealth, 39 -S. W., 1029; Smith v. Patton, 45 S. W., 459; Commonwealth v. Overby, 53 S. W., 36; Commonwealth v. Bottoms, 57 S. W., 493; Mullins v. McKee], 109 Ky., 539; Acts of 1898 Repealing Contest Boards.</p> <p>MANDAMUS NOT PROPER REMEDY.</p> <p>Appellants contend that even if the court should hold that the county judge and said two justices constitute the legal board oE contest, yet appellees should have sued out the writ of mandamus to compel said board to try the case instead of appealing the case to the circuit court from its order dismissing the proceedings. This contention is not well taken, it is a well settled principle that the writ of mandamus can never be invoked to control discretion. The board actually tried our case; if the board had refused to assemble at the proper place to hear the contest, a writ of mandamus would have been the proper remedy to compel them to act, but they voluntarily appeared and heard the case and decided the ease. It is true that the board did not decide the case on its merits, but it decided that it had no jurisdiction of the case. Having done this, our only remedy was by an appeal to the circuit court.</p> <p>AUTHORITIES CITED.</p> <p>Shindler, &c., v. Floyd at al., 81 S.- W. 668; Erwin v. Benton, 84 S. W„ 533; Pratt v. Breckinridge, 65 S. W., 136 and 66 S. W., 405; Thompson v. Koch, 33 S. W., 96; Shine, Presiding Judge, &c., v. Ky. Central Ry. Co., 3 S. W. 18; Ohio County Court v. Newton, 79 Ky., 267; Earley v. Raines, 28 Ky. Law Rep., 415; Cole v. Commonwealth, 30 Ky. Law Rep., 385.</p> <p>CONCLUSION.</p> <p>It is well settled that mandamus' will not control discretion even in an executive or ministerial officer, as to a' matter where he has discretionary power. (See Ohio County Court v. Newton, 79 Ky., 267.) Even if appellees had applied for a writ of mandamus, the same issue exactly .as is now presented, would be before the court, viz: Is the contest board as composed in this proceeding a constitutional one? We certainly had the right to appeal, if the board is constitutional, and we may employ this remedy if we so desire, even if we could have applied for a writ of mandamus. If the board is unconstitutional, we had neither the right to an appeal nor to a writ of mandamus.</p> <p>AUTHORITY CITED.</p> <p>Shindler, County Judge v. Floyd, &c., 26 Ky. Law Rep., 332; Erwin, &c. v. Benton, 27 Ky. Law Rep., 909; Early v. Rains, 23 Ky. Law Rep., 415; Cole v. Commonwealth, 30 Ky. Law Rep., 385.</p>

<p>1. Health — Local Boards — Power to Make Regulations. — Acts of 1904, p. 106, c. 35, in amendment of Ky. St. 1903, sec. 2055, provides for the appointment of county boards of health and empowers such boards to inaugurate and execute and to require other persons to execute such sanitary measures as they may consider expedient to prevent the outbreak or spread of contagious diseases, to enforce the rules adopted by the State Board of Health, and to appoint a competent physician who shall be the health officer of the county and whose duties shall be to see that the rules provided for in the act and those of the State Board are enforced. Held, that the county board of health was without jurisdiction to adopt a resolution placing the charge of all contagious diseases under the exclusive control of the health officer of the county and forbidding any other person from attending upon them; the object of the statute being to prevent the spread of contagious diseases, and not to prevent citizens from selecting their own means to cure such diseases, provided the means were reasonably calculated to accomplish that purpose.</p> <p>2. Appeal — Review—Harmless Error — Omission to Instruct. — In a proceeding by a county health officer to determine the reasonableness of his salary, as fixed by the fiscal court, it was the officer's contention that he had exclusive charge of all contagious diseases in the county. The court instructed to find for the officer such a sum as would be a reasonable salary, but refused to further instruct whether the health officer was required to treat all contagious diseases in the county, or whether the fiscal court might also employ competent physicians to treat its indigent citizens SO' afflicted. Held, that all the evidence on this point, much of which tended to support the officer's contention, having been .admitted, a refusal to give further instruction wás not prejudicial.</p>

<p>Schools and School Districts — District Board — Powers—School Census — Ky. Stats., 1903, section 4449, provides that the trustees of each school district shall annually take a census of children who will he between the ages of six and twenty years on the 1st of July following,' and shall send a list to the county superintendent, and one to the clerk of the county court. Section 4434 provides that any two of the trustees constitute a quorum to transact business iat a meeting of which all shall have had reasonable notice. Section 4437 makes the trustees a body corporate. Held, that a census certified to by only the chairman of the board of trustees was not the >act of the district, and the county superintendent had no power to make it a part of his records.</p>

<p>1. Criminal Law — Appeal—Review—Change of Venue — Discretion of Court. — Under Ky. Stats. 1903, secs. 1111, 1112, providing that, on an application for change of venue, a hearing may be had and witnesses introduced, the fact that the judge, in the absence of the introduction of witnesses, changed the place of a murder trial to a county objected to by the attorney for the Commonwealth, presents nothing for the appellate court to review.</p> <p>2. Same — Proof on Application for Change of Venue. — Where a written statement of the commonwealth’s attorney that lawlessness existed in the county was filed as ground for change of venue, pursuant to Ky. Stats. 1903, sec. 1112, which fact was personally known to the judge, no further proof is required to change the venue.</p> <p>3. Same — Withdrawing Statement. — Where, in a criminal prosecution, the commonwealth’s attorney filed a written state-men showing that lawlessness existed in the county, and moved for a change of venue, under Ky. Stats, 1903, sec. 1112, he will not thereafter be allowed to withdraw such statement.</p> <p>On Rehearing.</p> <p>4. Same — Change of venue. — Where, in a criminal prosecution ■against several defendants, a written statement for change of venue was filed, under Ky. Stats. 1903, sec. 1112, which in terms included the ease of only one of the defendants, a change of venue as to all of the defendants will be not be disturbed; the statement having been treated by court and counsel as applying to all the cases, and the same reasons existed and were urged in the cases not included in the statement as in the one included.</p>

<p>CASE 90. — SUIT BY H. A. THIEBMAN COMPANY AGAINST HENBY WOLFE AND OTHEBS IN THE NATUBE OF A BILL OF DISCOVEBY.</p> <p>Appeal from Jefferson Circuit Court (First Chancery Branch).</p> <p>Shackelford Miller, Judge.</p> <p>From a judgment overruling a demurrer to the answer plaintiff appeals.</p> <p>It will be observed that all the amended answer purports to plead is “that the cause of action set out in the petition herein, occurred more than’ 15 years next before this date,” and not before the suit was commenced.</p> <p>It has long been settled law in this State, both by statute and judicial decision, that “the pleader must go further and state that the time elapsed before the claimant commenced his action thereon,” and that the commencement of the action suspends the operation of the statutes. (Jones v. Jones and Ballow v. Wilmot, 5 Ky. Law Rep., 774; City of Louisville v. Meglenery, 107 Ky., 122; City of Louisville v. Hornsby, 23 Ky. Law Rep., 1236; Ky. Stats, secs. 2514, 2524; Civil Code, sec. 439; Davidson v. Simmons, 11 Bush., 330; Cundiff v. Trimble, 21 Ky. Law Rep., 657; 52 S. W., 940.)</p> <p>POINTS AND AUTHORITIES BY ATT’YS. FOR APPELLEE.</p> <p>An action should be dismissed where it appears that the plaintiffs have been guilty of such laches as to greatly prejudice the rights of the defendant, and where the delay in the prosecution of such action has been of such a nature,as would prevent substantial justice being done the defendant, and where it appears that the transactions connected with the claim have become so obscure by lapse of time, lapse of evidence and death of parties as to render it difficult, if not impossible, to do justice to the defendant. ,</p> <p>An action on a judgment is a cumulative mode of securing satisfaction of the judgment and is simply an act, ancillary to and for the purpose of obtaining satisfaction of an existing judgment, and the commencement of a bill in chancery does not suspend the statute, and if pending such bill the statute runs upon the claim, it is barred. (Wood on “Limitation,” sec. 295, p. 690; Swafford v. Howard, 20 Ky. Law Rep., 1793; Yowell’s Administrator v. Houstonville Turnpike Co., 16 Ky. Law Rep., 30; White and Cochran v. Moore, 100 Ky., 358; Proctor v. Bell, 97 Ky., 98; Freeman on “Judgments,” sec. 440; McArthur v. Goodin, 12 Bush, 294; Lockhart v. Yeiser, 2 Bush, 231; Davidson v. Simmons, 11 Bush, 330.)</p>

<p>Brokers — Actions for Compensation — Defenses — Statute of Frauds.— In an action for commission under an express agreement in a written authority to s^ll defendant’s property, where the plantiff had made a" contract to sell the property to persons who were ready, willing, and able to buy, that plaintiff’s contract with the proposed purchasers was not in writing is no defense.</p>

<p>Descent and Distribution — Rights of Widow — Rent — Action— Petition — Sufficiency.—Ky. Stats., 1903. sec. 2132, provides that after the death of either husband or wife, the survivor shall have an estate for life in one-third of all real estate of which he or she was seised in fee simple during coverture, unless such, right shall be barred, forfeited, or relinquished, and the survivor- shall have an absolute estate in one-half of the surplus personality left by such decedent. Sec. 3865 provides that, when a person who has a freehold, etc., shall rent out the land and die before the rent shall become due, the rent shall be apportioned between the personal representatives of the deceased and the person who shall succeed to the land as heir, personal representative, devisee,, or person in reversion or remainder, etc. Sec. 2138 provides, that the wife shall be entitled to one-third of the rents and profits of her husband’s dowable real estate on his death, until dower is assigned to her, etc. Held, that a petition alleging that plaintiff and her deceased husband leased certain land for an annual' rent to defendant, that the rent had been paid to a certain date only, and 'seeking to recover- the balance, but failing to allege that dower had not been assigned plaintiff. since. her husband’s death, and before the accrual of the rent' sued for,' did not show a right in' plaintiff to recover.</p>

<p>CASE 93. — PARTITION PROCEEDINGS BY MARGARET BAU-MAN AND OTHERS AGAINST MARGARET COLLINS AN OTHERS.</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendants appeal.</p> <p>(No brief in record.)</p> <p>There are three reasons why the paper in question is not good as to bona fide purchasers for value.:</p> <p>1. As to the property then in his possession, it was not good for want of a sufficient description.</p> <p>2. As to the property afterwards acquired, it was not good because if it were a conveyance, it was a conveyance of lands in the adverse possession of another and also a mere expectancy.</p> <p>3. As to the property afterwards acquired, it was not good because it was a conveyance made by a grantor not appearing in the chain of title and therefore a purchaser was not bound by the notice.</p> <p>AUTHORITIES CITED.</p> <p>Wilson v. Johnsjon, 145 Ind., 40; Devlin on Deeds, sec. 1010, et sep.; Banks' v. Ammon, 27 Pa. Stats., 173; Mundy v. Vawter, 3 Grattan, 518; Bailey v. Gilpin, 40 Minn., 321; Herman v. Deming, •44 Conn., 124; DeWolf v. Spragus Manf. Co., 49 Conn., 309; Pargoud v. Pace, 10 La. Ann., 613; Green Bros v. Winterspoon, 37 La. Ann., 751; Jones’ Law of Real Property in Conveyancing, sec. I486; Ky. Stats, sec 210; Beard v. Griggs, 1 J. J. Mar., 26; 'McCall’s Admr. v. Hampton, 98 Ky., 166; Ford v. Unity Church Society of St. Joseph, 23 L. R. A., 561; Leiby v. Wolf, 10 Ohio, 83.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>(a) Is an antenuptial contract binding when followed by marriage?</p> <p>(b) Can a child and only heir of a beneficiary who died intestate, under said contract ask for the enforcement of same?</p> <p>AUTHORITIES CITED.</p> <p>Forwood. v. Forwood, 86 Ky., 114; A. & E. Enc. of Law, second ed., vol.. 19, p. 1233 to p. 1245; Sander v. Miller, 79 Ky. 517; Cole v. Am. Baptist Society, 64 N. H., 445; Neaves v. Scott, 9 How., 196; Garrard v. Garrard, 7 Bush, 436; Hinklebein v. Tottem, 22 Ky. Law Rep., 1357; Brown v. Brown, 25 Ky. Law Rep., 2264; Mitchell v. Mitchell, 4. B. Mon., 380; Powell v. Meyer, 23 Ky. Law Rep., 795; Turner v. Short, 9 Ky. Law Rep., 866; Roper on Property, vol 1, p. 303; sec. 2064 Ky. Stats.; Fuller v. Martin, 96 Ky., 500; Harrington v. Gibson, 109 Ky. 752; Michael v. Morey, 26 Md., 239; 53 Ga., 416; 13 How., 268.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The courts' will adopt the construction of a contract given it by the parties. (Louisville Tpk’e. Co. v. Shadburne, 1 Ky. Law Rep., 325.)</p> <p>2. The construction of the contract claimed for by appellant would make the same void as against public policy. (Sutton v. Head, 86-Ky., 158.)</p> <p>3. Notice is an affirmative allegation and must be made before denial is necessary, and if denied must be proved by plaintiff, in this case,' appellants. (Carr v. Callaghan, 3 Litt., 365-372.)</p> <p>4. Contracts in consideration of marriage are recordable instruments, but not on any higher plane than other recordable instruments affecting realty, and are governed by the same rules-. (Sec. 494, Ky. Stats.)</p> <p>5. The purchaser cannot be required to search the records beyond the source of his grantor’s title. (Conn. v. Bradish, 14 Mass., 296; Corbin v. Sullivan, 47 Ind., 356; Losy v. Simpson, 11 N. J. Eq., 246; 20 Enc. of Law, 597; Ford v. Unity Church Society, 23 Law Rep. An., 561, and note thereto and cases cited and quoted in said note.)</p>