Volume 126 — Kentucky Reports

<p>Costs — Stay of Subsequent Action Until Payment. — Under Ky. St. 1903, sec.- 884, authorizing a resident poor person to prosecute an action without paying costs, where such a person dismissed an action without prejudice, he may maintain another action upon the same cause without paying the'" costs awarded against him in the former action; it not appearing the dismissal was intended to harass defendant or burden it with unnecessary costs.</p>

<p>1. — Intoxica'.ing Liquors — Local Option — Submission to Popular Vote — Contest—Appeal—Supersedeas—Operation and Effect. —An election under the local option law was held in a city in which the sale of intoxicating liquors had previously been prohibited. The election resulted in favor of the sale of liquor. A contest of the election was dismissed by the contest board and an appeal taken to the circuit court, which declared the election void. After the contest board had dismissed the contest, and before the appeal was prosecuted to the circuit court, the city issued a license to retail liquors. The judgment of the circuit court declaring the election void was superseded, and an appeal taken to the Court of Appeals. Held, that the supersedeas which suspended the efficacy of the judgment left affairs in the same condition they were just before the judgment was rendered, and the privilege of the licensees to conduct their business under the license was not interfered with duri g the life of the license or until the appeal was disposed of.'</p> <p>2. Same — Local Option — Election—Statutory Provisions. — Ky. Stats., 1903, section 2556, provides that after a local option election the canvassing board shall certify the result to the clerk of-the county court, the judge shall have it spread on the order book of his court, and it ¿hall be prima facie evidence in any proceeding under the act. Section 2557 provides that after the entry of ti" certifcate, if the vote was against the sale, etc., of liquors, it shall be unlawful to sell the same. • Section 2566 provides that, when notice of a contest of the election shall be executed on the county judge, the certificate shall not be record». . Held, that where an election was had in a territory in whic the sale of intoxicating liquors had previously been prohibited, resulting in favor of the sale, but a contest whs had, and the certificate was not recorded, the city authorities had no •authority to issue a license to sell intoxicating liquors, since, the election having changed the status of the territory, it was necessary that the certificat be recorded in order that the election might become effective.</p>

<p>1. Guardian and Ward — Actions—Parties—Allowance of Guardian’s Compensation. — Where, -after a suit was instituted by a guardian, the ward became of age and was joined as a ■I plaintiff, tlhe guardian was properly allowed to remain a party to the action and have his compensation for services as guardian allowed therein.</p> <p>2. Wills — Construction—Estate in Trust — Capital and Income. — - A testatrix bequeathed to her adopted daughter “a sum of money sufficient for her support and education until she marries or arrives ait the age of 21 years * * * and I direct my executors * * * to set apart out of my estate * * * $10,000 for that purpose. Any balance that may remain of said fund after the execution of said purpose shall become a part of my general estate.” Held, that the exec utors were not confined to the income of the fund’, but were authorized to use the entire fund for the support and education of the ward.</p> <p>3-. Guardian and Ward — Compensation—Payment.—Where compensation was promised a guardian by the executors before his services incident to the education and maintenance of the ward were performed, it was proper to order its payment out of the fund provided for the ward’s support and educa-tion.</p>

<p>1. Licenses — Occupation Tax — Grocers —■ Uniformity. — Under Const, section 181, allowing license taxes on trades, occupations, etc., and Ky. Stats., 1903, section 3058, subsection 2, authorizing cities of the second class to tax grocers, etc., the tax must apply to all grocers in a city; and hence an ordinance levying a tax on grocers only who employ delivery-wagons is invalid.</p> <p>2. Same — Vehicles.-—Ky. Stats., 1903, section 3058, subsection 2, authorizing cities of the second class to license and tax cabs, wagons, etc., and “all other vehicles used or let for hire,” does, not authorize a city to tax delivery wagons used by grocers.</p>

<p>Judgment — Bar—Splitting Cause of Action — Taxation.—The omission of property from assessment in a given year gives rise to a singie cause of action, and where an. action has oeen brought to have the property assessed, and a judgment has been rendered therein, the judgment is conclusive as to all parties, and an action can not afterwards be brought to assess other property omitted from the same assessment which was not embraced in the first action.</p>

<p>CASE 6. — ACTION BY C. S. WILSON AGAINST RACHEL TYE, CONTESTING HER RIGHT TO HOLD THE OFFICE OF SUPERINTENDENT OP SCHOOLS, TO WHICH SHE WAS ELECTED OVER HIM.</p> <p>Appeal from Whitley Circuit Court.</p> <p>Virgil P. Smith, Special Judg’e.</p> <p>Judgment of dismissal and plaintiff appeals — •</p> <p>Appellant contends that appellee is ineligible to hold the of- ' fice of county superintendent of schools for two reasons:</p> <p>1. She is a woman.</p> <p>2. She was less than 24 years old on the first Monday in January, 1906, when the term of the office to which she claims to have been elected began.</p> <p>3. Appellant is entitled to hold the office 'in question till an eligible successor isdhosen.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sections 3233, 3756, 4399, 4401, 4417, 4418, '4434, 4453, Civil Code chapter 13; Constitution of Kentucky, sections 72, 99, 228; Grinstead v. Scott, 82 Ky. 88; Wilson v. Tye, 92 S. W. 292; Atchison v. Lucas, 83 Ky. 451; Robinson’s case, 41, Am. Rep. 244; Harbour Pitt Shoe Co. v Dixon, 60 S. W. 187; State v. Hostetter, 59, Am. State Rep. 515; Kirkpatrick v. Brownfield, 31 S. W. 137; Howard v. Cornett, 1 S. W. 1; Campbell v. Dotson, 63 S. W. 450; Hall v. Coulter, 78 S. W. 1110; Patterson v. Miller, 2 Met. 493; Com’lth v. Adams, 3 Met. 10.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. An usurper is one who seizes an office by force, actual or constructive, without color of right or title thereto. Palmer v. Com’lth, 29 Ky. Law Rep., at 220; Bouvier’s Law Distionary; Meehem on Public Officers, section 320.</p> <p>2. One who assumes the duties of an office upon receiving a certificate of election from the county board of election commissioners is not an usurper. Nall v. Coulter, 25 Ky. Law Rep., 1891.</p> <p>3. A person does not have to be twenty-four years of age at the time of qualifying to be eligible to the office of county superintendent of common schools in this State. Constitution of Kentucky, section Í00; Ky. Stats., sections 4399-4400; Acts of 1883-84, vol. 1 page 121.</p> <p>4. The county superintendent of common schools is not required to qualify as such officer on the first Monday in Japuary after election. Ky. Stats., sections 4399-4402.</p> <p>5. A woman may hold an office of legislative creation in this State either by appointment or election. Ky. Stats., section 45Y;</p>

CASE 7. — ACTION BY ALICE CALDWELL AGAINST THE WESTERN UNION TELEGRAPH CO. FOR FAILURE TO DELIVER TELEGRAM. Appeal from Fulton Circuit Court. B. J. Bugg, Circuit Judge. Judgment for plaintiff, defendant appeals. POINTS AND AUTHORITIES CITED. 1. Where 'the plaintiff could not have attended a funeral, even if the telegram announcing the death had been promptly delivered, there can be no recovery, Howard v. W. U. Tel. Co., 27 Ky. Law Rep., 244. 2.

<p>1. Insurance — Life Policy — Misrepresentations—Evidence—Question for Jury. — In an action on a life policy, defended on tlie ground that the insured had misrepresented the extent of his use of intoxicants, evidence held to support a finding that his representations were substantially true and insufficient to defeat a recovery.</p> <p>2. Same. — An insurer issuing a life policy has the right to inform itself of the habits of the insured with respect to the use of intoxicants and he must truthfully give the information asked; but, unless his representations are substantially untrue, they are not misrepresentations precluding recovery on the policy.</p> <p>3. Samé — Application for Other Insurance — Rejection—Misrepresentations — Evidence.—An insurer defending an action on a life policy on the ground that the insured falsely stated that an application to another insurer for insurance had not been rejected has the burden of proving that the rejection was made known to the insured before he applied for the policy sued on; there being no rejection until knowledge' of it was received by the insured.</p> <p>4. Same — Presumption.—In the absence of proof that an insured knew of the rejection of his application for other insurance at the time he applied to an insurer, it will be presumed in an action on a policy issued by the latter that his answer in the application, that applications for other insurance had- not been rejected, was true.</p> <p>5. Same — Misrepresentations—Evidence.—An applicant for a life policy stated in his application that 'applications for other insurance had not been rejected. The application was dated July 18th. He had applied for other insurance and the medical examiner on July 3d made a report thereon, rejecting the risk. It was not shown when the rejection was ordered made by the insurer, or that the applicant was notified thereof-Held to authorize a finding that the applicant did not have knowledge of the rejection of his application for other insurance, and that his statements' were not misrepresentations sufficient to defeat a recovery on the policy.</p> <p>6. Same — Evidence—Instructions.—Where, in .an action on a life policy, defended on the ground that insured had in his application falsely stated that applications for other insurance had-not been rejected, the evidence showed that an application for other insurance had been rejected fifteen days before the date of the application, but did not show that be had been notified of the rejection prior to the making of the application, an instruction that the representations in the application as to there having been no refusal of insurance did not prevent a recovery, unless insured had knowledge of such refusal when the applioation for' the policy sued on was signed, properly submitted the issue.</p> <p>7. New Trial — Grounds—-Cumulative Evidence. — A new trial after verdict on the ground of newly discovered -evidence was properly denied; the evidence being as to a point litigated and cumulative.</p>

<p>States — Legislature — Apportioning Membership — Constitutional Law. — The apportionment of the State into Senatorial districts under Act June 28, 1893 (Laws 1893, p. 1204, c. 235), having been accepted for thirteen years without its validity being questioned, the constitutionality of -the act may not be questioned on the ground that the act infringes Const. Sec. 6, providing that “all elections shall be free and equal,” and Section 31, requiring an .apportionment as nearly equal as may be of Senatorial districts.</p>

<p>1. Commerce — Duties of Exports — Taxation of Merchandise. — A tax levied upon exported property which operates indirectly as the laying of a duty upon the export is as much within the inhibition of Const. U. S. Art. 1, Sec. 10, providing that no State shall, without the consent of Congress, lay any imposts or duties on exports or imports, as the laying of a duty directly.</p> <p>2. Same. — Const. U. S. Art. 1, Sec. 10, provides that no State shall, without consent of Congress, lay any imposts or duties on importsi or exports. Ky. Stats., 1903, Sec. 4020, provides that all real and personal estate within this State, and all personal estate of persons residing in this State, shall be taxed. A general tax was laid by the State upon all property alike, and it was sought to tax whisky exported to a foreign . country, on the ground that the exportation was colorable only, and to escape taxation, as it was intended 'to reimport it; or, if the situs of the whisky was in the foreign country, then to tax the warehouse receipts representing it which were owned in this State. Held, that the proposed tax was not an attempt to lay a duty on the whisky, because it was exported, within the meaning of the Const. U. S. Art. 1, Sec. 10.</p> <p>3. Taxation — Liability of Persons and Property — Situs of Property. — Although Ky. Stats., 1903, Sec. 4020, provides that all real and personal estate within this State and all personal estate of persons residing in this State shall be subject to taxation, it does' not include personal estate owned by persons residing in this State, but which is tangible and permanently located in other States, and employed there in the prosecution of their owner’s business.</p> <p>4. Same — Motive of Exporter. — The motive of an exporter of property to a foreign country cannot be safely inquired into for the purpose of determining whether the exportation was in good faith, or made simply to escape the payment of taxes, ■and this State neither has nor should attempt to exercise further jurisdiction for any purpose over exported property.</p> <p>5. Same — Nature of Property — Warehouse Receipt. — Warehouse receipts, wherever issued, and whatever they may represent, are intangible personal property, whose situs for purposes of taxation is the domicile of their owner; hence a warehouse receipt owned by a person domiciled in this State for whisky exported to a foreign country may and should be taxed here, •and at such value as it may have had on the day fixed by the statute for listing property.</p>

<p>CASE 11. — MOTION BY J. M. ROBINSON, NORTON & CO., FOR DAMAGES ON A SUPERSEDEAS BOND EXECUTED IN AN APPEAL AGAINST CORSICANA COTTON FACTORY.</p> <p>M'otion in Appellate Court for damages on supersedeas bond.</p>

CASE 12. — PROCEEDING BY COMMONWEALTH BY F. A. LUCAS, REVENUE AGENT, AGAINST THE CITY OF PADUCAH, TO ASSESS OMITTED PROPERTY. Appeal from McCracken Circuit Court. W. M. Reed, Circuit Judge. Prom the judgment in the county court the commonwealth appealed to the circuit court and again appealed from the judgment of the circuit court. — ■ AUTHORITIES CITED. 1. Liability of municipal property to assessment for taxation: Sec. 170, Ky.

<p>1. Wills — Property Passing — Damages for Death! — Under Const. Sec. 241, and Ky. Stats., 1903, Sec. 6, recovery may be had for wrongful death, and the proceeds become a part of decedent’s estate, where he leaves nd wife, parents, or children, to go to his relatives after the payment of his debts. Under Ky. Statsi., 1903, Sec. 4839, a will 'taires effect as if executed immediately before the testator’s death. Sec. 4828 authorizes one to Will any éstate he may be entitled to at his death. Held, that damages recovered by an administrator for decedent’s wrongful death do not pass under the will.</p> <p>2. Executors — Payment of Debts — Property Available — Right of Action for Causing Déath: — Under the éxpress terms of Ky. Stats., 1S&3, Sec. 6, recovery for wrongful death is subject to the payment of decedent’s debts where he leaves no wife, parents, or children, and is properly applied to the discharge of lien debts against devised property.</p> <p>3. Insurance — Mutual Benefit Association — Charter-—Amendment. —The Legislature could amend the statute under which a mutual benefit insurance association was organized so as to limit the scope of business authorized under its charter in so far as the amendment did not impair the obligation of existing contracts..</p> <p>4. Same — Who- May be Beneficiary. — In 1894 a mutual benefit association was chartered to insure its membership and to pay the death benefits to the members'' families, executors, etc. House Bill No. 370, Sec. 6 (as amended 97 Ohio Laws, p. 422), provides such associations shall pay the benefits only to the family, heirs-, etc. Held, that the association’s charter was amended by the act, and that policy contracts entered into between it and its members after the -act took effect must conform to it, and hence insured could not validly designate his estate as beneficiary.</p> <p>5. Same — Void Designation — Right of Former Beneficiary. — A beneficiary’s rights- under an insurance policy are unaffected by a void attempt to substitute beneficiaries.</p>

<p>Intoxicating Liquors — Local Option Election — Time for Holding. — • Under Ky. Stats., 1903, Sec. 2555, providing that local option elections shall not he held within thirty days, next preceding or following any regular political election, the day of the latter election is to he included.</p>

<p>CASE 15. — ACTION BY THE COMMONWEALTH BY GEORGE H. ALEXANDER, REVENUE AGENT, AGAINST R. G. DUN & CO., TO COMPEL IT TO TAX CERTAIN OMITTED PROPERTY. —</p> <p>Appeal from Jefferson Circuit Court.</p> <p>Common Pleas Branch (2 Div.) Thus. R. Gordon, J udge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>POINTS OF LAW AND AUTHORITIES.</p> <p>1. Where business is conducted for an estate by four trustees, it constitutes a partnership, even though such trustees derive no profit personally: Story on Partnerships, 2d ed., secs. 70, 106.</p> <p>2. There are two classes of persons known to the law — natural and artificial. The only artificial person is a corporation. Partnerships and unincorporated persons are not persons, and the situs of their intangible property does not follow the person.</p> <p>3. Appellee, R. G. Dun & Company, is a partnership, and the situs of partnership property, tangible or intangible, is wherever the partnership does business, although the' members of the partnership may reside elsewhere. The firm and not the individual members are the owners of firm property. A firm for the purposes of taxation is a distinct entity: Louisville v. Tatum, Embry & Co., Ill Ky., 747; Pilcher's Succession (Civil Law), 39 La. Ann., 362.</p> <p>4. A partnership can have nothing but a business situs, and that business situs is at every place the partnership does business. At such place its property must be listed, whether tangible, or intangible.</p> <p>5. . R. G. Dun & Company is as much in business here as in New York. The relative amount of business done is not considered in fixing the situs. The defendant pays only on the Kentucky property.</p> <p>6. Where money or credits is handled by an agent for a nonresident principal, loaned or re-loaned, checked on for current expenses, or is kept invested as a permanent business, and exclusively under the protection of the laws of this State, it acquires a business situs in this State, distinct from the domicil of a nonresident owner, and is subject to ad valorem taxes imposed by this State; Bristol v. Washington County, 177 TJ. S., 141-2-4; New Orleans v. Stempel, 175 TJ. S., 309.</p> <p>7. Persons are not permitted to avail themselves for their own benefit of the laws of the State in the conduct of business within its limits and then to escape the due contribution of taxes to the public needs: New Orleans v. Stempel, 175 TJ. S., 309.</p> <p>LIST OF AUTHORITIES DISCUSSED ON BEHALF OF APPELLEES.</p> <p>1. Bank deposits are intangible property: Williams v. Rogers, 14 Bush, 788; Clayson v. City of New Orleans, 14 S. W. R. 306; Grundy County v. Tennessee Iron & Coal Company, 29 S. W. R., 116; Commonwealth v. Cumberland Telephone & Telegraph Company, 99 S. W. R., 604.</p> <p>2. Intangible personalty of non-residents not taxable in Kentucky: Ky. Stats., sec. 4020; Board of Councilmen of Frankfort v. Fidelity Trust Company, 23 Ky. Law Rep., 912; Callahan v. Singer Manufacturing Company, 92 S. W. R., 581; O’Callaghan’s exor. v. City of Owensboro, 111 Ky., 765; Commonwealth v. Haggin, 99 S. W. R., 906.</p> <p>3. Appellees not in fact a partnership: Bouvier’s Law Dictionary defining partnership; Words and Phrases Judicially Defined,, vol. 6, p. 5191; 2d ed. Amer. & Eng. Enc. of Law, vol. 22, p. 14.</p> <p>(a) Non-resident, though partnership taxable same as individual or corporation; City of Louisville v. Tatum, Embry & Company, 111 Ky., 747; Burroughs on Taxation, p. 225, sec. 98.</p> <p>4. Cases discussed and distinguished: New Orleans v. Stempel, '175 U. S., 309; Bristol v. Washington County, 177 U. S., 133.</p>

<p>1. Elections' — Contests—Placing Questioned Ballots with Those Counted. — The fact that the election officers did not return any of the bailots as questioned, hut put them all in the box as counted, Wás-' not materiál on á contest of the election.</p> <p>2: Same — Effect of Lack of Objections to Ballots. — Where the election officers counted a ballot that should not have been ■ counted, the fact that the validity of the ballot was not questioned before them does not prevent the defeated candidate from contesting it on a contest of the election.</p> <p>3. Same — Ballots—Voting for More Candidates Than There are Offices. — Tinder the express provisions of Ky. Stats., 1903, Sec. 1471, if an elector mark more names than there are persons to be elected for the office, his ballot shall not be counted for the officfe.</p> <p>4. Same — Contest—Trial—Settling a Tie Vote. — Where an election was contested and a tie was made apparent in the circuit court upon the contest, the court under the power to determine the case should have settled the tie by lot.</p>

<p>1. Municipal Corporations — Town Marshals — Liability on Bond— Acts Colore' Officii. — Ky. Stats.; 1908, Sec. 3690, requires a town marshal to execute a bond under which for any unlawful arrest or assault on any person in making an arrest, he and his sureties shall be liable to the person so injured. By Sec. 4 Ky. Stats, the widow of any person killed by the wanton or malicious use of fire-arms may have an action against the person dioing the killing. Held, that where a marshal arrested a person fo.r a niisdemeanor, and then unnecessarily and maliciously killed the arrested person while under arrest, his widow might maintain an action on the bond.</p> <p>2. Same Amount of Liability. — Ky. Stats., 1903, Sec. 3752, having provide4 that in an action on such a bond the recovery against the principal and surety shall not be limited to the penalty in the bond, the amount of plaintiffs’ recovery was not limited to the penalty.</p> <p>3. Same — Damages.—While plaintiff might recover punitive damages against the principal in the bond, only compensatory damages could be recovered of the surety.</p> <p>4. Same — Pleading—Petition.—In an action on*a marshal’s bond, though tht petition admitted that the authorities of the town had made no record showing an acceptance of the bond, it having alleged in substance that the bond was required of the marshal by the council, that it was duly executed, and that it was duly approved and accepted by the town council, and, in addition, an attested copy of the bond, obtained of the proper authorities of the town, having been filed with and made a part of the petition, as against a demurrer, there was a sufficient showing of acceptance.</p>

<p>1. -Municipal Corporations — Police Power — Regulating Hitching of Horses in Streets. — A town has a right, in the exercise of its police power, to pass an ordinance forbidding persons from leaving horses hitched or unhitched in the streets or alleys of the town.</p> <p>2. Same — City Council — Place of Meeting — Failure to Designate by Ordinance. — Ky. Stats., 1903, Sec. 3696, provides that “all meetings shall be held within the corporate limits of the town at such place as may be designated by ordinance, and shall be public.” Held that, where the trustees had not adopted an ordinance fixing a place of meeting, the members might assemble at some convenient and accessible place within the corporate limits of the town.</p> <p>8. Same — Governmental Powers — Discretion as to Exercise-Under the powers granted boards of trustees of towns of the sixth class by Ky. Stats, 1903, Sec. 3704, providing for the passage of ordinances, and police regulations, relating to the adoption of ordinances, and the courts will sustain them, unless it affirmatively appears that they are unreasonable or violative of the statutes or Constitution.</p> <p>4. Same — Ordinances—Reasonableness.—Where an ordinance is not inherently defective" as violating the Constitution or statutes, a person- attacking it upon the ground thar it is illegal, unfair, unreasonable, or oppressive must affirmatively show that as applied to him it is unreasonable, unfair, or oppressive.</p>

<p>1. Eminent Domain — Compensation—Taking of Entire Tract. — ■ The inconvenience resulting from the loss of a home and in moving is not a proper element of damage in a condemnation proceeding by a railroad company.</p> <p>2. Same. — Under Ky. Stats., 1903, Sec. 839, relating to condemnation proceedings by railroad companies, providing that either party may appeal to the circuit court by executing bond as in other cases, and that upon payment to the owner of damages and costs a railroad company may take possession of the land, but, when an appeal is taken, it shall not be entitled to take possession until it shall have paid into court the damages assessed and all costs; payment of damages and costs into court is not an abandonment of an. appeal from the decision of the circuit court.</p>

<p>1. Intoxicating Liquors — Local Option Election — Costs. — Ky. Stats., 1903, Sec. 1540, provides that the cost of all elections held in any county shall be paid by the county treasurer, except as' otherwise provided by law. Sec. §555, 'regulating local option elections, provides that on an order by the county clerk for an election it shall be the duty of the sheriff to have the order published in a newspaper, and to advertise 'the same ,by printed or written handbills, and that, if the proprietor of the newspaper refuses to publish the notice, the hills shall he sufficient. Sec. 2559 provides that the court shall not make the order until the persons signing the petition have deposited with the county judge an amount sufficient to pay for printing or posting advertisements as provided for, and the fees of the clerk making entries in the order hook. Held, that the petitioners should be required to deposit a sum sufficient to pay, not only for the printing of the hills, hut for the publication.</p> <p>2. Same. — Where the publisher of a newspaper publishes a notice, though the county judge has not required a deposit sufficient to cover the publication and other expenses, the cost of publication cannot be recovered from the county or the petitioners.</p>

<p>1. Sales — Warranties—Right of Action. — A warranty is a matter of contract, and strangers to the contract have no right of action upon it.</p> <p>2. Negligence — Dangerous Substances — Liability of Manufacturer. — Where a manufacturer or seller of an article is negligent in its composition or sale, so that injury results not to the vendee, but to a stranger, the general rule is that the seller is not liable unless either the article is an imminently dangerous one, or the seller has knowledge of its defects, and that they are such as to endanger life or .property of one who has no notice of the defects.</p> <p>S. Same — Knowledge by Manufacturer of Defect — An action against a manufacturer of an article which is so defective as to endanger life or property of one who has no notice of the defect by a person other than the vendee, is founded on deceit, and the scienter must be laid as to the deceit to support it.</p> <p>4. Same — Precautions Against Injury. — In. an action against a manufacturer of defective lubricating oil by another than the vendee thereof for injuries caused by its explosion, there could be no recovery if the injured person could, by the ex-ervise of ordinary care, have learned of the defective quality of the oil so as to have prevented his injury from its use.</p> <p>5. New Trial — Grounds—Newly Discovered Evidence. — That a witness who would testify to a fact germane tc the issues was not discovered until after the trial is not ground for a ' new trial, when it appears that he, or others to prove the same fact,.might with ordinary diligence have been discovered before the trial.</p> <p>6. Trial — Argument of Counsel — Matters Immaterial to Issues.— In an action against the manufacturer of defective lubricating oil for an injury caused therefrom, it was hot error for the court to exclude remarks of counsel in his argument as to what he had thought and done in regard to 1 aving the oil analyzed.</p>

<p>CASE 22 — ACTIONS BY THE CITY OF COVINGTON AGAINST THE COVINGTON & CINCINNATI BRIDGE CO.; THE CITIZENS’ TELEPHONE, AND THE UNION LIGHT, HEAT AND POWER CO., TO RECOVER A FRANCHISE TAX. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. MoD. Shaw, Circuit Judge.</p> <p>Judgment for defendant in each action and plaintiff appeals —</p> <p>1. We contend that the Act of 1898 as embraced in Sec. 2984a, Ky. Stiats., has not been repealed by the Revenue Act of Í906, and that the city assessor has the power to. assess the franchise of the appellee corporations.</p> <p>AUTHORITIES CITED.</p> <p>Session Acts of 1906, sec. 19, p. 248.</p> <p>CONSTRUCTION OF THE STATUTES-</p> <p>Aiper. Eng. Ency. pf Lav/, 2d ed., vol. 26, pp. 720, 721, 722, 723, 726, 739, 740, 741.</p> <p>KENTUCKY DECISIONS.</p> <p>City of Covington v. Kenton County, etc., 26 Ky. Law Rep,, 680, 681; City of Covington v. District of Highlands, 24 Ky. Law Rep., 435, 436; O’Mahoney v. Bulloch, etc., 87 Ky. Law Rep., 781.</p> <p>CONSTRUCTION OF REVENUE STATUTES BY THE SUPREME COURT OF THE UNITED STATES.</p> <p>• Movius v. Arthur, 95 U. S., 420; Victor et al. v. Arthur, 104 U. S., 632; United States v. Gear, 3 How., 120; Indexed Digest U. S. Supreme Court Rep., vol. 2, p. 1497; Murphy, -assessor, v. City of Louisville, 24 Ky. Law Rep., 1574, 1575, 1577.</p> <p>ACTS OF 1906.</p> <p>Session Acts 1906, p. 248; Amer. & Eng. Ency. of Law, vol. 26, pp. 720-726.</p> <p>ADDITIONAL AUTHORITIES CITED.'</p> <p>Petition should be dismissed because plaintiff (below) has made no tender of taxes justly due:Eng. & Amer. Ency. of Law, vol. 27, pp. 723, 724; Frazer, etc., v. Seibern, etc., 16 O. Stats., 625; 2d vol. Cooley, pp. 1414, 1425; Merrill v. Humphrey 24 Mich., 170; Thompson v. City of Lexington, 20 Ky. Law Rep., 459, 460; Bell’s Trustee V. City of Lexington, etc., 27 Ky. Law Rep., 595, 596; Albuquerque National Bank v. Perea, 147 U. S., 89, 90; Cooley on Taxation, 1st ed., p. 538; 2d éd., pp. 763, 764; London v. City, 78 N. C., 109-114; Mayor v. Waring, 41 Ala., 139-150; Higli on Injunctions, 2d ed., vol. 1, sec. 497.</p> <p>The doctrine stare decisis should be applied herein: Murphy v. City of Louisville, 24 Ky. Law Rep., 1575; Anaer. & Eng. Ency. of Law, vol. 26, pp. 160, 161, 167.</p> <p>SUMMARY.</p> <p>1. The city assessor was without power to make the assessment: Murphy v. City of Louisville, 114 Ky., 762.</p> <p>2. The assessment complained of was made upon an erroneous principle and included the value of securities of another and distinct company not owned by appellee, and was fraudulent and excessive: Henderson Bridge Co. v. Commonwealth, 99 Ky., 621; Hager v. The American Surety Co., 29 Ky. Law Rep., 782; 2d Cooley on Taxation, 1459; C., B. & Q. R. R. v. Cole et al., 75 111., 591.</p>

<p>CASE 23. — PROCEEDING BY THE CITIZENS’ BANK AND OTHERS TO ESTABLISH CLAIMS AGAINST THE BANK OF WADDY, IN THE HANDS OF A RECEIVER, AND OTHERS. —</p> <p>Appeal from Shelby Circuit Court.</p> <p>R F. Peake, Circuit Judge.</p> <p>Prom the judgment defendants appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The appellee, Weakley’s, petition, a® amended, expressly admits the validity of the debt of the Bank of Waddy to the Bank of Commerce for borrowed money and the pledge of collaterals to secure it, saying therein:</p> <p>“That the Bank of Waddy is indebted to the Bank of Commerce in the sum of Three Thousand ($3,000.00) Dollars, and that the said Bank of Waddy has pledged sqme of its notes and bills to said Bank of Commerce to secure the payment of said loan.”</p> <p>2. The evidence very clearly, and without any conflict, shows the regularity and validity of the said debt and pledge, and the receipt and us© of the Bank of Waddy, in the regular course of its business, of every dollar of the money so borrowed, and fur" ther, that the action of its cashier in thus borrowing from the Bank of Commerce was ratified and approved by the board of directors of the Bank of Waddy.</p> <p>3. The judgment of -the lower court, to the effect, that the . Bank of Waddy had lawful authority to borrow this $3,000.00 from the Bank of Commerce, but ‘’had no authority from the board of directors to pledge any property of the Bank of Waddy to secure the same,” is erroneous, and contrary to the law of the case. Martin v. Webb., 110 U. S., 14; Armstrong v. Chemical National Bank, 83 Fed. Rep., 557; 27 C. C. A., 601; Davenport v. Stone, 104 Mich., 520; Ditty v. Dominion National Bank, 75 Fed. Rep., 770; 22 C. C. A., 376; Blanchard v. Commercial Bank, 75 Fed. Rep., 253! 21 C. C. A., 319; Peoples Bank v. National Bank, 101 U. S., 181; Bank v. FlandeTS, 161 Mass., 335; Thomas v. Bank, 40 Neb., 501; Auten v. U. S. National Bank, 174 U. S., 143; Aldrich v. Chemical National Bank, 176 U. S., 618; Wyman v. Wallace, 201 TJ. S., 243; U. S. National Bank v. First National Bank, 79 Fed. Rep., 296; 24 C. C. A., 597; First National Bank v. American National Bank, 173 Mo., 162; Deposit Bank v. Fleming. 19 Ky. Law Rep., 1947; German National Bank v. Grinstead, 21 Ky. Law Rep., 674; Citizens Savings Bank v. Walden, 21 Ky. Law Rep., 739; Grant County Deposit Bank v. Points, 22 Ky. Law Rep., 105; Chemical National Bank v. Armstrong, 28 L. R. A., 240; as well as the elementary and other authorities cited in the brief of our associate counsel, Messrs. Willis & Todd.</p> <p>In asking for a reversal we rely upon the following points:</p> <p>1. The cashier of a bank is its chief executive officer and has the inherent power to borrow money in the regular course of the bank’s business, and pledge the bank’s property as surety therefor.</p> <p>2. (a) A banking corporation which receives and uses money borrowed in the regular course of business for its benefit, cannot repudiate the act by which the money was obtained and still hold the money.</p> <p>(b) No material part of a single indivisible and entire transaction can be rescinded, and at the same time another part upheld to the injury or prejudice of one of the parties thereto, where there is no charge of fraud or deception.</p> <p>3. The holder of negotiable paper deposited as collateral security is a holder for value to the extent of his lien.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Power of the cashier: 2d vol., Amer. & Eng. Ency., 1st ed., p. 118; Cyc., vol. 5, pp. 570, 579; Thompson’s Commentaries on the Law of Corporations, vol. 4, secs. 4740, 4748, 4760; Morse on Banks and Banking, 4th ed., vol. 1, secs. 152, 158, 160, 165; Davenport v. Stone, 104 lyticli., 321; Western National Bank v. Armstrong, 152 U. S., 346; Chemical National Bank of Chicago v. City of Portage, 160 U. S., 653; Auten, receiver, v. Ü. S. National Bank of New York, 174 U. S., 143; Aldrich v. Chemical National Bank, 176 U. S., 618; Grant v. Deposit Bank v. Points, 22 Ky. Law Rep., 105; Citizens Savings Bank v. Walden, etc., 21 Ky. Law Rep., 739; Deposit Bank of Carlisle v. Fleming, 19 Ky. Lew Rep., 1947.</p> <p>2.. Estoppel: German National Bank v. Grinstead, etc., 21 Ky. Law Rep., 674; German National Bank v. Butchers’ Hide & Tallow Co., 97 Ky., 34; Springfield, Maysville & Harrodsburg Turnpike Co. v. Harrodsburg, 11 Ky, Law Rep., 309; Thompson’s Commentaries on -the Law of Corporations, vol. 4, secs. 5258, 5303; Cyc., vol. 16, p. 787; Harrison Land & Mining Co. v. N.'C. & St. L. Ry. Co., 25 Ky. Law Rep., part 1, p. 523.</p> <p>3. Appellants holders of notes for value: Secs. 26, 27, 57: The Law of Negotiable Instruments. (Charles M. Lindsay’s Annotated edition); Woolfolk v. Bank of America, 10 Bush, 504.</p> <p>1.,Appellant banks could get no higher or better title to the collateral placed with them than that held by the Bank of Waddy, the pledgor.</p> <p>2. The charter of the Bank of Waddy limited the amount of its indebtedness.</p> <p>AUTHORITIES CITED.</p> <p>Chemical National Bank of New York v. Kohner, 8 Daly N. Y., 530; Western National Bank v. Armstrong, 152 U. S., 473; American National Bank v. Warren Deposit Bank, 29 Ky. Law Rep., 195; First National Bank v. Kiefer Milling Co., 95 Ky., 97; Ky. Stats., sec. 579; Walden v. Citizens Bank, 19 Ky. Law Rep., 1393; Poor v. Robinson, 13 Bush, 290; Brannin v. Force, 12 B. M., 506; 152 U. S., 347; Morse on Banks and Banking, sec. 165(b).</p>

<p>CASE 24 — ACTION BY JOHN M. SAULSBERRY AGAINST THE INCHES APEAKE & OHIO RY. CO. FOR DAMAGES FOR' DELAY IN SHIPPING CORN. —</p> <p>Appeal from Carter Circuit Court.</p> <p>S. Gr. Kinner, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals</p>

<p>1. Indictment — Formal Requisites' — Caption—Omission—Effect.— Under Cr. Code Prac., Secs. 122-124, providing tliat an indictment must contain tire title of tlie prosecution, the name of the court in which the indictment is presented, and the names of the parties, and must be direct and certain as regards the offense charged and the county in which the same was committed, and giving the form of the caption of an indictment showing the names of the parties and the court, an indictment containing in its body the averments that it was found by the grand jury of a county named, and that in the name of the Commonwealth it charged the accused with the commission of the cxfime described, and showing that it was committed within th'e county, was good, though the caption was omitted.</p> <p>2. Same — Accusatory Part — Allegationsi—-Sufficiency.—An indictment charging a violation of Ky. Stats., 1903, Sec. 1585a, punishing an officer of an election who shall “knowingly and wilfully” certify to'an improper certificate -of the election, which alleges in its .accusatory part that accused “unlawfully and feloniously” certified to an improper certificate of election, is not bad, where in its body the statutox’y words are used.</p> <p>3. Elections — Violation of Election Laws — Indictment.—An indictment charging a violation of Ky. Stats., 1903, Sec. 1585a, punishing an officer of an election who shall knowingly and wilfully certify to an improper certificate of the election, which alleges that an election was held under the laws of the State, and that officers of election were appointed under and in accordance with the laws- to serve as such in a designated precinct, and that accused was duly appointed to serve as clerk of election in the precinct, sufficiently states his connection as an officer with the election, without setting out when or by whom he was appointed.</p> <p>4. Same. — -An indictment charging a violation of Ky. Stats., 1903, Sec. 1585a, punishing an officer of an election who shall knowingly and wilfully certify to an improper certificate of the election, which alleges the appointment of accused as clerk of an election held under the laws o^ the State, and that he wilfully and knowingly certified that a certain number o-f votes were cast at the election, when he knew that they had not been cast, sufficiently -states an offense under the statute.</p> <p>5. Indictment — Requisites—Statutory and Common-Law Offenses. ■ — Under Cr. Code Prac., Secs. 122-124, providing that an indictment shall contain a statement of the acts constituting the offense jn ordinary and concise language in such -a manner as to enable a person of common understanding to know what is intended, and declaring that an indictment must be direct and certain as regards th,e party and offense charged and the county in which the offense was committed, an indictment charging a -statutory offense must use the words of the statute or words having the same meaning, and an indictment charging a common-law offense must follow the forms of the common law.</p> <p>6. Elections — Violations of Election Laws — Prosecutions—Indictment — Statutes.—Ky. Stats., 1903, Sec. 1591, declaring that the chapter relating to elections shall be liberally construed, no as to prevent any evasion of its prohibitions and penalties by shifts or device, though enacted to prevent persons charged with offenses against the election laws from escaping punishment on technicalities and irregularities', does not abrogate the code provisions relating to the elements necessary to constitute a good indictment; but it should be read in connection with them, as illustrating the legislative intent concerning offenses against the election laws.</p>

<p>1. Scfhools and School Districts — Creation of New Districts.— Under Ky. Stats., 1903, Sec. 4427, providing that the boundary of a school district cannot be changed, unless notice in writing shall be given to the trustees, of the districts to be affected, and Sec. 4437, creating the trustees of school districts a body politic and corporate, with authority to contract in their name as trustees, etc., a notice by a county superintendent of his purpose to make a new district out of terrify tory included in existing districts, directed to the trustees 1! of the districts affected, and served, on the chairman of the respective trustees, was sufficient.</p> <p>2. Same — Decision of School Officers — Review.—The determination of the cases of extreme emergency within Ky. Stats., 1903, Sec. 4428, providing that no school district established ■shall include less than forty-five pupil childlren, except in cases of extreme emergency, is confided, in the first instance, to the county superintendent, who acts judicially, and, in case he errs, an appeal may be prosecuted to the superintendent of public instruction, and when these officials have determined that an extreme emergency exists, the courts, cannot interfere unless the power to act did not exist for want of notice ■required by Sec. 4427, or unless the power was manifestly abused.</p> <p>3. Same — Ky. Stats., 1903, Sec. 4428, prohibits the establishment of school districts including less than forty-five pupil children. The county superintendent of 'a county created a new school district out of territory included within three existing districts. | One of the existing districts had a school population of over eighty, and after the change it had forty-three pupil children within the district and three children of a resident of the district, who were outside of the district. Held that; as the domicile of the children was prima facie the domicile of the parent, the three children must be included in the census of the district, and thereby make the number of pupil children in the district more than forty-five.</p>

CASE 27. — ACTION BY THE COMMONWEALTH AGAINST M. S. BARKER AND ANOTHER TO RECOVER MONEY ALLEGED TO BE WRONGFULLY WITHHELD. — Appeal from Franklin Circuit Court. R. L. Stout, Circuit Judge. Judgment for defendants, plaintiff appeals — 1.

<p>‘Taxation — Property Liable — Property of Non-residents in Hands of Resident Trustee. — Const. Sec. 172 provides that all property not exempt shall he assessed for taxation at its fair cash value. Ky. Stats., 1903, c. 108, Sec. 4020, provides that “all real and personal property within the State * * * shall De subject to taxation, unless the same be exempt from taxation by the Constitution. * ■ * *” Sec. 4022 provides that “for the purposes of taxation real estate shall include all lands within this State, and improvements thereon; and personal estate shall include every other species and character of property, that which is tangible as well as that which is intangible.” Sec. 4058 requires that a trustee list property held by him in such capacity in the name of the real owner. Held, that notes, bonds and other securities owned' by nonresidents, but in the hands of a resident fiduciary for the purpose of controlling and investing, are taxable at the place of his residence.</p>

<p>1. Slander — Absolute Privilege — Judicial Proceedings. — A witness while testifying under oath in a court of justice is not subject to prosecution for slander for any statement that he may mate upon the subject under consideration.</p> <p>8. Same — Question of Law. — -Whether words otherwise actionable as defamatory are privileged is a question of law for the decision of the court, depending upon the circumstances of their utterance -or publication.</p>

<p>CASE 30. — ACTION BY THE CITY OF COVINGTON AND THE KIRCHNER CONSTRUCTION CO. AGAINST JAMES W. BULLOCK AND ANOHER FOR THE COST OF A STREET IMPROVEMENT. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>M. L. Harbeson, Circuit Judge.</p> <p>Prom the judgment the City and the Construction Company appeal. —</p> <p>AUTHORITIES CITED.</p> <p>1. The work was one of construction and not one of repairs: People v. The City of Buffalo, 65 N. Y. Supp., 163 (affirmed in 52 NT. Y.', 157; Smith on Modem Law of Municipalities, vol. 2, sec. 1316.</p> <p>2. Authority of city to make the improvement in controversy: Ky. Stats., secs. 3094, 3096; Maddux v. City of Newport, 12 Ky. Law Rep., 658; Levi v. Coyne, 22 Ky. Law Rep., 493.</p> <p>AUTHORITIES CITED.</p> <p>. Ky. Stats'., sec. 3094, 3096; Levi v. Coyne, 22 Ky. Law Rep., 493; People v. City of Buffalo, 65 N. Y. Supp., 163; 52 N. Y. App., 157 Louisville v. Nevin, 10 Bush, 550; Louisville v. Leatherman, 99 Ky., 213-216; Gosnel v. Louisville, 104 Ky., 212; Louisville v. Bitzer, 24 Ky. Law Rep., 2263.</p> <p>POINTS AND AUTHORITIES.</p> <p>The work done in the city of Covington on the street in question is “repair” work and not “reconstruction”: Ky. S'tats., sec. 3096; Levi v, Coyne, 22 Ky. Law Rep., 493; People v. City of Buffalo, 65 N. Y. Supp., 163; Robertson v. Omaha, 55 Neb., 718; City of Henderson v. Lambert, 14 Bush, 10; City of Louisville v. Taylor, 23 Ky. Law Rep., 538.</p>

<p>1. Municipal Corporations — Police Power — Fire Ordinance. — The police power of a municipality to enact ordinances for the safety of the public, etc., includes the right to enact reasonable ordinances, rules and regulations to prevent the spread of fires and for the protection of property within the corporate limits.</p> <p>2. Same — Delegation of Governmental Power. — A municipal ordinance providing that no frame building shall be erected, moved or remodeled within the city until the owner, architect or agent shall have obtained permission in writing from ■all parties owning permanent brick or stone structures within a radius of sixty feet of the proposed structure, was unconstitutional, as a delegation of governmental power to private citizens.</p> <p>■3. Constitutional Law — Municipal Ordinances — Due Process of Law — Equal Protection of Law. — Such ordinance was also unconstitutional as depriving the owners of frame structures of the equal protection of the laws and of their property without due process of law.</p> <p>4. Municipal Corporations — Ordinances—Reosanableness.—A municipal ordinance prohibiting the erection, removal or remodeling of a frame building within sixty feet of a brick or stone structure without the consent of the owner of the latter was void for Unreasonableness.</p>

<p>CASE 32. — ACTION BY JOHN E. SHEEGOG’S ADMINISTRATOR AGAINST THE ILLINOIS CENTRAL R. R. CO. FOR CAUSING THEÍ DEATH OF PLAINTIFF’S INTESTATE. —</p> <p>Appeal from Union Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. No allegation of decedent’s ignorance of alleged condition of the track is made, which renders the petition demurrable: Bogenschutz v. Smith, 84 Ky., 330; L. & N. R. R. Co. v. Mellott, 101 Ky., 215; Williams v. L. & N., Ill Ky., 825; Choctaw, etc., v. McDade, 191 U. S„ 64.</p> <p>2. A peremptory instruction should have been granted.</p> <p>Fencing not required, nor permitted at station;. Ky. Stats., sec. 1792.</p> <p>The mule was cause of collision and everything else remota causa, and not próxima causa: Louisville Gas Co. v. Kaufman & Straus, 105 Ky., 131; Hughes v. Railroad, 91 Ky., 531; Wintuska v. same, 14 Ky. Law Rep., 579; P., C., C. & St. L. Ry. Co. v. Lewis, 18 do., 957; Johnson v. E. T. V. & G., 18 do., 67; Nelling v. R. R. Co., 98 Iowa, 554; Coxe v. same, 102 Lowa, 711.</p> <p>3. (a) Instruction second misleading in reference to roadbed and to rolling stock, and care to keep them in condition, the condition of roadbed and rolling stock not being proximate cause.</p> <p>Also, erroneous in any reference to Durbin’s duty.</p> <p>(b) Erroneous in ignoring the relation between cause and effect permitting recovery for remote cause; and in ignoring causation.</p> <p>(c) Sixth instruotion, erroneous in referring to ’gross negligence: L. & N. R. R. Co. v. Creighton, 106 Ky., 42; 20 Ky. Law Rep., 1692; L. & N. R. R. Co. v. Taaffe’s, 106 Ky., 535; 21 Ky. Law Rep., 64.</p> <p>4. (a) Where fraudulent joinder is alleged and the facts alleged show a right of removal, the facts must be assumed true and the Federal court must try the issue: Dow v. Bradstreet, 46 Fed., 824; Arrowsmith v.N. & D. R. Co., 57 Fed., 165; Diday v. R.' R. Co., 107 Fed., 565; Boatner v. Am. Ex. Co., 122 Fed., 714; Weaver v. Ry., 125 Fed., 155; Board v. Toronto Bank, 128 do., 167; Gustafson v. Co., 128 Fed., 85; Swann v. Mut. Res., 116 Fed., 232; Union Terminal v. C., B. & Q., 119 Fed., 209; I. C. R. R. v. Jones, 80 S. W., 484 (25 Ky. Law Rep., 31).</p> <p>(b) An issue of fact involved in jurisdiction is triable in the Federal court alone: R. R. Co. v. Dunn, 122 U. S., 513, 517; R. R. v. Wangelin, 132 U. S., 599; Daughtry v. K. C„ etc., 138 U. S., 298; I. C. R. R. Co. v. Jones, 26 Ky. Law Rep., 31; 80 S W., 484; see also cases cited supra.</p> <p>(c) The good faith of the plaintiff in making untrue allegations can not avail him to defeat Federal jurisdiction: Diday v. Railroad, supra.</p> <p>(d) Appellee’s petition sufficiently indicates the purpose of the joinder of Durbir.</p> <p>No cause for action is stated against Durbin: C., N. O. & T. P. R. R. v. Robinson, 25 Ky. Law Rep., 265; 74 S. W., 1061; Davis v. C., N. O. & T. P. R. R. v. Robinson, 25 Ky. Law Rep., 265; 116 Ky., 144; Gustafson v. Co., 128.Fed., 85; L. & P. Canal Co. v. Mur- , phy, 9 Bush, 527; Swice’s admr. v. M. & B. S. R. Co., 116 Ky., 253; Yeates v. I. C. R. R. Co., 139 Fed. Rep., 943; Axline v. Toledo, etc., Co., 138 Ibid., 169; See I. C. R. R. Co. v. Coley, Nov. 3, 1905.</p> <p>ADDITIONAL POINTS AND AUTHORITIES.</p> <p>1. A case of negligence may exist where an instruction as topunitive damages would be erroneous, and the preliminary question is for the court: McHenry Coal Co. v. Sneddon, 98 Ky., 686; L. & N. R. R. Co. v. Creighton, 106 Ky., 42, 46; L. & N. R. R. Co. v. Taoffe’s admr., Ibid., 535; Lexington, etc., Co. v. Pain, 25 Ky. Law Rep., 2243; Southarn Ry. Co. v. Goddard (Nov. 29, 1905), 28 Ky. Law Rep.</p> <p>2. Punitive damages admissible only when injury wanton or disregard of precaution for others’ safety, wilful: McHenry, etc., Co. v. Sneddon, 98 Ky., 686; L. & N. R. R. Co. v. Kingman, 18 Ky. Law Rep., 83; Lexington, etc., Co. v. Pain, 25 Ky. Law Rep., 2243; Southern Ry. Co. v. Goddard (Nov. 29, 1905), 28 Ky. Law Rep., Milwaukee, etc., Co. v. Arms, 91 U. S., 495; Lake Shore, etc., Co. v. Prentiss, 147 U. S., 107; P. S. R. R» Co. v. Hirst, 30 Fla., 1; 32 Am. St. R., 33; 3 Sedow. Dam., 363; 1 Sutherland Dam., 724; 12 A. & E. En., 2d ed., 28.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Because of the fact that a great “hue and cry” has been raised in courts and legal circles about the supposedly “unpardon able sin” of preferring the State courts over Federal courts and of exercising the right expressly provided by Sec. 241 of the Constitution of Kentucky, and Sec. 6, Ky. Stats., whereby an action may be brought for the negligent or wrongful killing of an individual against both the principal and the agent’ Whose negligence or wrongful act caused the death, and because even the Court of Appeals of Kentucky has seemed to be influenced by this systematic and designed clamor to such an extent as to speak, in some of its decisions upon the subject, of “artful subterfuges resorted to by pleaders, to control jurisdiction” and of “trifling with the court, etc.,” we have thought it not out of place in this brief to call the court’s attention to what might be called the ethics of the question, and to show not only that we are simply exercising our constitutional rights and discharging our duty to our clients, but that we are doing the same thing that lawyers and litigants have done in thousands of other instances in suing principal and agent together; as in such cases as Hawkins v. Riley, 17 B. Mon., 101; Baird v. Shipman, 132 111., 16 and 7 L. R. A., 128; Stephen v. Wilson, etc., 24 Ky. Law Rep., 1832; Dixon v. C. & O. Ry., 178 U. S., 131, and other cases too numeous to mention; and that as said by Chief Justice Fuller in the Dixon case, we are “performing a lawful act,” and that our purpose in doing so cannot be inquired into, "but on the other hand the whole doctrine that the corporation of another State has the right of removal on the ground of diversity of citizenship has no foundation in justice or common sense, and is the result of what Judge Thompson in his admirable work on Corporations denominates a “theft of jurisdiction;” Thompson on Corporation, vol. 6, p. '591; that the Supreme court of the United States, beginning with the opinion delivered by Chief Justice Marshall in the case of Bank v. Deveaux, 5 Cranch, 61, held and for six years continued to hold, that a corporation aggregate was not a citizen (Thomp. Cor., vol. 6, pp. 3909-10); that the idea grew out of the “habitual greed of jurisdiction” on the part of a certain character of judges and courts and the deliberate effort on the part of large railroad corporations “to defraud the courts of the various States and territories through which their road should lie” of jurisdiction, etc.; same work vol. 6, p. 5913; that the whole practice is an outrage upon litigants; that the perpetrators of fraud are as shown by the author cited, the corporation and parties who obstruct justice by dragging impecunious litigants, without right or reason, out of their home courts and vicinage to distant, and to them inaccessible trbunals; and that the charge of fraud against the lawyers and litigants who avail themselves of this constitutional right of joining the principal and agent in the same action, is not only unjust, but is a slander to which the courts should not lend a so willing and credent ear as some of them- have seemed to lend. So much has been said about the fraud of joining an employe and the employer corporation as defendants, that the courts themselves have seemed almost to forget that is only the same thing which has been done, and which has been sanctioned, in a thousand other cases and situations from time immemorial; and we in behalf of simple justice ask a careful reading of this part of our brief. Thompson on Cor., vol. 6, pp. 5909-5910-5911-5913 and lastly 5949.</p> <p>2. The cases cited by appellant to show this case removable, and holding a doctrine different from that heretofore announced by this court in the cases of I. C. R. R. Co. v. Jones, 26 Ky. Law Rep., 31; Rutherford v. I. C. R. R. Co., 27 Ky. Law Rep., 397, and other cases, are, none of them, authoritative, but ar'e mainly decisions of district judges, many of them delivered prior to the decision of the Dixon case, but at last are decided upon the idea that the cases were removable upon an inspection of the face of the record.</p> <p>3. “The State court must determine from the petition and record whether or not there was presented a removable case:” Rutherford v. I. C. R. R. Co., 27 Ky. Law Rep., 397; I. C. R. R. Co. v. Jones, 26 Ky. Law Rep., 31, and many other cases — and</p> <p>“The State court is only at liberty to inquire whether on the face of the record a case has been made which requires it to proceed no further."</p> <p>Crehore v. O. & M. R. R. Co., 131 U. S., 240 (32 L. ed., 144), and —“A State court is not bound to surrender its jurisdiction of the suit till a case has. been made which on its face shows that the petitioner has a right to transfer.” Crehore case, supra, Stone v. South Carolina, 117 IF. S., 50 (29 L. ed., 672); Stevens v. Nichols, 130 U. S., 230; Phoenix Ins. Co. v. Pechneh, 95 U. S., 183, and many other Supreme court cases.</p> <p>4. Plaintiff had a right to join both the corporation and the agent thereof through whom the negligent acts were committed as defendant; and there is no misjoinder and plaintiff’s motive in performing this lawful act cannot be inquired into. Const, of Ky., sec. 241, Ky. Stats., sec. 6; C. & O. R. R. Co., Dixon, 179 U. S., 131, and the two cases of C., N. O. & T. P. Ry. v. Cook’s admr. and A. G. S. Ry. Thompson, decided by the Supreme court January 2, 1906; I. C. R. R. Co. v. Jones, supra, and Rutherford case, supra.</p> <p>5. If the jurisdictional facts are stated in the petition for removal the jurisdiction at once passes from the State to the Federal court. Kansas City R. R. Co. v. Daughtry, 138 U. S., 298; and these jurisdictional facts cannot be inquired into in the State court. The jurisdictional facts in a case like this are two: diversity of citizenship and the involvment of an amount in excess of $2,000. If the petition and record do not affirmatively show the existence of these two facts the Federal court acquires</p> <p>no jurisdiction to inquire into the truthfulness or untruthfulness of the pleading in any other respect. Jones case, supra; Rutherford case, supra, and Whitcomb v. Smithson, 175 U. S., 635; Howe v. N. P. Ry. Co., 60 L. R. A., 949; also the Crehore, Stevens, Stone and Dixon cases cited above.</p> <p>6. If the case is tried on the merits before a jury and plaintiff insists upon his contention of joint liability to the last, the fact that a peremptory instruction be given for the citizen defendants, joined, does not warrant the court in removing the case even upon a supplemental petition and bond tendered by the remaining defendant. Whitcomb v. Smithson, 175 U. S., 635; Howe v. N. P. R. R. Co., 60 L. R. A., 949 (Wash).</p> <p>7. A cause of action is stated in the petition against the co-defendant, Durbin, who was a citizen of Kentucky at the time the suit was filed. Chiles v. Drake, 2 Met., 146; 2 Ch. PI., 650; Pierce’s admr. v. I. C. B. B. Co., 27 Ky. Law Bep., SOI.</p> <p>8. A cause oí action is stated against the Chicago, St. L. &N. O. B. B. Co., also a co-defendant, and a Kentucky corporation. The negligence charged against the lessor company being its negligence as to its track, fences and cattle guards, etc., the petition against it states a cause of action, as it owes the public, including the servants of the lessee, the duty of maintaining them, and cannot divest itself of this burden. McCabe’s admr. v. M. & B. S. By., 112 Ky., 861.</p> <p>The petition states that this defendant owns and controls the roadbed, etc., and this is not denied. The mere leasing, or the power to lease, d'oes not mean the release of the lessor from liability — McCabe case, supra — and the terms of the lease are nowhere stated in the petition for removal nor in the answer of any defendant, and the lease itself is not filed and made affirmatively the right ¡to remove; Stevens v. Nichols, 130 ü. S., 230 (L. ed. 32, 914); Mansfield, etc., B. B. Co. v. Swan, 111 U. S., 379 (28 L. ed., 461); Mexican National B. B. Co. v. Davidson, 157 U. S., 201. The negligence complained of as against this defendant being not merely the negligence of the lessee, as to cars and appliances of the lessee under its control, but, being the negligence of the lessor in failing to maintain its track properly, the servant of the lessee has a right of action against the lessor. Swice v. M. & B. S. B. Co., 116 Ky., 253. This Swice case rests upon for its authority, and quotes as its principal authority the cases of Lee v. S. P. B. Co. (Cal.), 47 Pac., 932; 38 L. B. A., 71; 58 Am. St. Reps., 152, and’ the case of East Line ,etc., B. R. Co., Culbertsdn, 72 Tex., 375 (10 S. W., 706, 3 L. R. A., 567); 13 Am. St. Rep., 805, and these cases hold the very doctrine contended for here. In the Lee case the plaintiff was the servant of the lessee company and recovered of the lessor. See also Nugent v. Boston and M. B. Co., 80 Me.,-62; Arrowsmith v. N. & D. R. Co., 57 Fed. Rep., 165; Ry. v. Curl, 28 Kansas, 622.</p> <p>9. Civil Code of Kentucky and the decisions of this court permit servants of the lessee to sue lessee and lessor jointly upon same principle followed in X. C. B. R. Co. v. Jones; 26 Ky. Law Rep., 31; Kuhn v. Cen. Pas. Ry. Co., 86 Ky., 578; Rutherford v. 1. C. R. R. Co., 27 Ky. Law Rep., 397, as in all these cases the respective defendants in each case bore different relationship to the defendant and were liable notwithstanding they owed different duties.</p> <p>10. Failure of defendants to put cattle guards and maintain same at the termination of fences on each side of *he track at public roads made them liable for killing caused hereby. Sec. 1793, Ky. Stats., McKb.ee v. Knyn, 98 Ky., 209; 17 Ky. Law Kep., 794; McGhee v. Gaines, 98 Ky., 182; 17 Ky. Law Rep., 748; and more particularly Parish v. L. & N. R. R. Co., 1524 — 78 S. W., 186; also sec. 466, Ky. Stats., giving this right of action, and Hayes v. Mich. Cen. R. R. Co., 11 U. S., 228 (L. ed., 28:510), which decides the exact point, and holds that even if the statute provides that it is for the safety of cattle, still, its violation is evidence of negligence in a personal injury action.</p> <p>11. If a party except to a decision of a court in granting or refusing any instruction all the instructions given and refused shall also be included in the bill of exceptions. Civil Code, Sec. 337, Subsec. 2. The bill of exceptions in this case on its face shows that only a part of the instructions given are included and that it includes, of the refused instructions, only those offered by t'he defendant, and appellants in their brief actually quote verbatim an instruction, the first and most important given, which is not included in the bill of exceptions. This court can therefore consider no objections to instructions.</p> <p>12. The judge of the lower court failed to certify that the bill of exceptions contained all the evidence as required by Sec. 339, Civil Code, and exceptions and objections to the evidence cannot therefore be considered by this court. Most' of same cannot be considered for another reason; and that is, that the specific errors relied upon must be stated- in the grounds for a new trial. Slater v. Sherman, 5 Bush, 206, also 13 B., 297; 14 B., 297; 7 B., 235; 9 Ky. Law Rep., 467, and Jones v. Woocher, 90 Ky., 230; but the court’s rulings as to the evidence are nevertheless shown to be correct. •</p> <p>13. Appellant is incorrect in his contention as to law of punitive damages. Sec. 6, Ky. Stats. But, the evidence in this case would have sustained punitive damages even under appellant’s contention. Still, the jury gave compensatory damages only— $8,250 for the life of an intelligent, healthy, robust, industrious, sober and studious young man, 28 years of age, making $130 to $150 per month, with an expectancy of 30 to 35 years and prospects for advancement and promotion increasing his earning capacity.</p>

<p>CASE-33 — PROSECUTION AGAINST THE L.- & N. R. R. CO. FOR A VIOLATION OF THE LOCAL OPTION LAW.—</p> <p>Appeal from, Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Defendant convicted and appeals. —</p>

<p>CASE 34. — ACTION BY ED BUCHANAN AGAINST ILLINOIS CENTRAL RY. CO., FOR - DAMAGES FOR NEGLIGENT TREATMENT BY SURGEONS AND ATTENDANTS IN THE RAILROAD COMPANY’S HOSPITAL AT PADUCAH, KY.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. P. Gordon, Circuit Judge.</p> <p>On petition for rehearing. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There was no contract between plaintiff and defendant for “proper treatment:” Union Pac. R. R. Co. v. Artist, 65 Fed. Rep., 365; 23 L. R. A., 581; Richardson v. Carbon Hill Coal Co. (Washington), 20 L. R. A., 338.</p> <p>2. The hospital association is a- charitable institution and is governed by the principles of law applicable to such institutions: Articles of Incorporation, Illinois Central Railroad Hospital Association, attached to transcript of testimony; Union Pac. R. R. Co. v. Artist, 60 Fed. Rep., 365; 23 H. R. A., 581; McDonald v. Massachusetts General Hospital, 120 Mass., 432; 21 American State Rep., 529; Fire Ins. Patrol v. Boyd, 120 Pa., 624; 1 L. R. A., 417; Van Tassel v. Manhattan Eye and Ear Inf., 15 N. Y. Supp., 620, and note; Glavin v. Rhode Island Hospital, 12 R. I., 411; 34 Am. Rep., 657; Laubheim v. De Koninglyke Nederlandsche Stoomboot Maatschappy, 107 N. Y., 228; Secord v. St. Paul M. & M. R. R. Co., 18 Fed., 221; Richardson v. Carbon Hill Coal Co., 6 Washington, 524; 20 L. R. A., 338; Williamson, hy, etc., v. Louisville Industrial School of Reform, 15 Ky. Law Rep., 629; 28 L. R. A., 200; Eighmy v. Pac. Ry.' Co. (Iowa), 27 L. R' A., 296; Allan v. State Steamship Co., 132 N. Y., 91; 15 L. R. A., 166; Herns v. Waterhury Hospital (Conn.), 31 L. R. A., 224; Hill v. Boston 22 Mass., 344; 23 Am. Rep., 332; Powers v. Mass., etc.. Hospital 109 Fed., 294.</p> <p>3. There would he no liability upon the railroad company, even should the court hold that the surgeons attending plaintiff were surgeons of the railroad company for the reason that the relation of master and servant does not exist: L. & N. R. R. Co. v. Foard, 104 Ky., 456; Quinn v. Kansas City M. & B. R. R. Cb., 30 S. W., 1036; Robinson v. Wehh, 11 Bush, 464; O’Brien v. Cunard, etc., Co., 28 N. E., 266; P., C., C. & St. L. Ry. Co. v. Sullivan, 27 !i. R. A., 840; Pearl v. Street Ry. Co. (Mass.), 47 L. R. A., 397.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>Appellant owed appellee as its employe under the facts of this case the legal duty to furnish him proper treatment at its hospital and is responsible for injury caused hy improper treatment.</p>

<p>CASE 35. — ACTION BY R. H. EDELEN AND OTHERS AGAINST W. B. SAMUELS & CO. TO ENFORCE SPECIFIC PERFORMANCE OF A CONTRACT. —</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>From a judgment sustaining a general demurrer to the petition, plaintiff: appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The contract is valid and binding because it is alleged that the appellee corporation executed it, which is confessed by the demurrer.</p> <p>2. Courts of equity* will decree the specific performance of contracts respecting personalty as well as realty if no adequate and correct compensation can be made in damages. Pomeroy’s Specific Performance, 2d ed., p. 8, note 3, same page, and pp. 9-11-13; Merwin’s Principles of Equity, secs. 5, 6.</p> <p>3. Contracts for the delivery of goods will be specifically enforced where the deliveries are to be made and purchase price paid through a number of years, they differ from those contracts that are to be immediately executed. Pomeroy, sec. 15, p. 20, note 2 to 15; Buxton v. Leister, 3 A. T. K., 384; Ball v. Coggs, 1 Bro. P. C., 140; (Tom 1st ed.), Chamberlin v. Blue, 6 Black, 491.</p> <p>4. The right to specific performance of a valid contract depends upon circumstances, conditions and incidents and the discretion of the chancellor is not arbitrary. Pomeroy’s Specific Performance, sec. 36, p. 52; sec. 38, p. 57; Merwin’s Principles of Equity, secs. 64, 65, 66.</p> <p>5. Where the questions are numerous issues complex, damages, uncertain or inadequate a court of equity only can give adequate and complete relief, and will enforce the specific performance of the contract. Pa. R. R. Co. v. St. L., etc., R. R. Co., 118 U. S., 187; Schmidt v. L. & N. R. R. Co., 101 Ky., 411; Joy v. St. Louis R. R. Co., 138 U. S., 1; Franklin Tel. Co. v. Harrison, 145 U. S., 459; Prospect Park & Coney Island R. Co. v. Coney Island & Brooklyn R.. Co., 26 R. A., 610; Union Pacific Ry. Co. v. Chicago M. & St. Paul R. Co., 163 U. S., 564.</p> <p>6. ' The various covenants in the contract are sufficient consideration for the optional agreement for sale of distillery plant: Bacon v. Ky. Central Ry. .Co., 95 Ky., 375.</p> <p>1. The paper claimed to be a contract is not the act or deed of appellee, and is therefore not a contract in the law, because said paper was not executed in the manner and mode provided by the statute law of the Commonwealth of Kentucky governing and controlling private corporations in the conduct of their business.</p> <p>2. Appellants are not entitled to a judgment for specific performance of the contract relied upon, because it is an option contract; and an option contract can not be enforced by a court of equity because of a want of mutuality of obligation.</p> <p>3. A court of chancery will not undertake to frame a decree of specific performance of a contract, and cannot do so, where it involves a continuous and long series of acts running through a|l long term of years, requiring the exercise of supervision as to all' the matters, and requiring special skill and knowledge, and repeated examinations and due directions, such as would be required in the enforcement of the contract in the ease at bar, in the operation of a distillery and manufacture of whisky, covering the many and varied provisions contained in the contract in controversy.</p> <p>4. A court of equity will not decree the performance of an illegal act or of an unlawful contract.</p> <p>5. Because of the fact that the court could not decree a specific performance of this contract as against the appellants, the court will not, and ought not, by injunction as against the ap-„ pellee, grant what is termed negative relief to the appellants, because of the want of mutuality in the contract.</p> <p>AUTHORITIES CITED.</p> <p>Hudson, etc. v. Scottish Union & National Insurance Co., 23 Ky. Daw Rep., 116; Miller, etc., v. McConnell, etc., 26 Ky. Daw Rep., 181; Ky. Stats., secs. 542, 566, 551; Mason & Foard Co. v. Metcalfe Mfg. Co., 44 S. W., 629; American Wire Nail Co. v. Gege, 96 Ky., 521, 522; Morawetz on Private Corporations, 2d ed., secs. 337, 579; Ditz et al. v. Hammon Goosling and wife, 21 D. R. A., 127; Page on Construction of Contracts, sec. 1112, vol. 2; vol. 3, sec. 1607; Pomeroy’s Equity Jurisprudence, vol. 6, secs. 769, 757, 754; Welty v. Jacobs, 40 D. R. A., 98; Fry on Specific Performance of Contracts, 3 ed., secs. 440, 69; Page on Contracts, vol. 3, sec. 1633; Stanton v. Singleton, 47 D. R. A., 334; U. S. Stats.; High on Injunctions, 4th ed., vol. 2, sec. 1109a.</p>

<p>1. Perpetuities — Suspension of Power of Alienation. — A devise of land to two devisees, upon the condition -that devisees shall reside on the farm, the farm never to be sold, leased, or rented, no blue grass field to b'e plowed, no stoch to be pastured -except such as is owned by the devisees, and no tobacco to be rais-ed, but that, should either of the devisees die without leaving issue, then her share to go to the surviving devisee, and should both die without leaving issue, then the land to go to a third person, was not void as creating a perpetuity; the limitations' being only upon the land while held by the devisees .ürst named.</p> <p>2. Wills — Devise Subject to Payment of Money — Lien.—Under Ky. Stats., 1903, Sec. 2066, providing that, when any property shall be devised subject to the payment by the devisee to another of a sum of money, the latter shall have a lien on the legacy for the sum so to be paid, where a will provided that, should either of two devisees die without leaving issue, then her share should go to the surviving devisee upon payment by her to the husband of the deceased devisee of a sum named, the husband of the deceased devisee had a lien upon her share of the land to secure the payment of the sum named.</p> <p>3. Same — Devise on Condition — Reasonableness.—While devisees of land on condition that they shall reside thereon must make it their residence, a temporary absence is not a ground of forfeiture.</p>

<p>CASE 36. — PROCEEDINGS TO DISBAR W. H. BECKNER, AN ATTORNEY AT LAW. —</p> <p>Appeal from Clark Circuit Court.</p> <p>W. O. Harris, Special Judge.</p> <p>Prom a judgment suspending Mm from practice for two years, lie appeals.</p>

<p>Public Lands — Lands Subject to Patent. — Ky. Stats., 1903, Sec. 4702, provides that each county in the State shall have the right to dispose of the unappropriated lands therein not otherwise provided for in the manner thereinafter directed. Sec. 4703 provides that an actual settler on any vacant or' unappropriated land shall have a pre-emption right not - exceeding 200 acres, and that any person wishing to appropriate any vacant land miay obtain an order of court authorizing him to enter and survey not exceeding such amount. Sec. 3704 provides that the surveyor shall survey the entries, etc., bounding them by* plainly marked trees, stones or stakes, .and noting wtere they bind on a water course or a marked line of another survey. The boundary of the State extends to the northern shore of the Ohio river at law-water mark. Held, that the taking up of land in -the bed of the Ohio river between the thread of the stream and the northern shore was unauthorized.</p>

<p>CASE 39. — ACTION BY MARGARET M. BEELER AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. —</p> <p>Appeal from Bullitt Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>No brief for appellee in the record.</p> <p>•POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. Appellee’s petition, as amended, did not state a cause of action. She did not allege facts to bring the case within either Sec. 782 or Sec. 790, Ky. Stats. The demurrer to the petition should have been sustained, and appellant’s motion for a peremptory instruction should have been granted, among other reasons, because of the error of the trial court in overruling such demurrer. L. & N. R. Co. v. Dalton, 102 Ky., 290.</p> <p>2. The court erred in striking from appellant’s answer, and amended answer, the second paragraphs thereof pleading appellee’s contributory negligence .in permitting her orchard to be foul from combustible materials. This was a question for the jury. L. & N. R. Co. v. Samuel’s Exors., 22 Ky. Law Rep., 303; Kellogg v. Chicago, etc., R. Co., 26 Wis., 223; Kansas, etc., R. Co. v. Bnady, 17 Kan., 380; Karsen v. Milwaukee, etc., R. Co. 29 Minn., 12; Gram v. Northern Pac. R. Co., 1 N. Dak., 252, 46 N. W., 972, 45 A. & E. R. Cas., 544; Ross v. Boston, etc., R. Co., 6 Allen, 87; Ohio, etc., R. Co. v. Shanefelt, 47 111., 497 Erie, etc., R. Co. v. Dicker, 78 Pa. S'tat., 293; Brown v. Hannibal, etc., R. Co., 37 Mo., 298; Missouri, etc., R. Co. v. Kincaid, 29 Kan., 654, 11 Am. & Eng. R. Cas., 83; Kansas City, etc., R. Co. v. Owen, 25 Kan., 419; Chicago, etc., R. Co. v. Pennell, 94 111., 448; Briant v. Detroit, etc., R. Co., 104 Mich., 307, 62 N. W., 365; Collins v. N. Y., etc., R. Co., 5 Hun., 499; Omaha Pair Assn. v. Mo. Pac. R. Co., 42 Neb., 105, 60 N. W., 330; Murphy v. Chicago, etc., R. Co., 45 Wis., 222; Coates v. Missouri, etc., R. Co., 61 Mo., 3.8; Great Western R. Co. v. Haworth, 39 111., 346.</p> <p>3. The court erred in striking out an appellee’s motion parts of the third paragraphs- of appellant’s answer and amended answer. The averments of those paragraphs not stricken out, however, not having been controverted by reply, must be taken as true, and appellant’s motion for á peremptory instruction should have been sustained because of such uncontroverted averments, if for no other reason.</p> <p>4. Appellee introduced no testimony that the fires were started by sparks from appellant’s engines, and, therefore, made no oa.se to submit to the jury.</p> <p>5. B.ut even if the jury had a right to guess that the fires were started by sparks from appellant’s engines, still it could only be made liable -for damages caused by the fires., upon appellee’s showing that appellant was negligent, either in failing to provide prqper spark arresters, or in the management of its engines. There is not a scintilla of testimony to support liability against appellant on either of these grounds.</p> <p>6. The court erroneously permitted appellee to prove, by the opinions of witnesses, the value of her apple and peach trees and vines claimed to have been damaged, but refused to permit appellant to prove the value of the realty before and after the fires; and also erred in submitting the case to the jury on appellant’s theory as to the proper measure of damages. Appellant insists that the true “measures of damages is the difference in value of the land before and after the injury.” Dwight v. E. C. & N. ft. Co., 15 L. R. A., 612, and cases there cited; Pacific Express Co. v. Lasker Real Estate Assn., 16 S. W., 792; lb. v. ■ Smith, lb. 998.</p> <p>I. C. R. Co. v. Riney’s Admx., 21 Ky.' Law Rep., 1056, seems not to have been well considered, the question as to the proper measure of damages seems- not to have been discussed, and that case ought not to be regarded as authority against appellant in this case.</p>

<p>1. Carriers- — Delay in Transportation- — Damages.—-For delay of a carrier in delivering freight, there may be recovered not only such damages as normally result therefrom, hut such as result from special circumstances known to the carrier at the time- of the contract.</p> <p>2. Same — Special Circumstances — Notice to Carrier. — Where mill miaxshinjery was shipped to be repaired, and then- by a separate contract shipped hack, to give the carrier notice of special circumstances from which damage would arise from delay in transportation, so as- to make it liable therefor, it is not enough that the agent with whom the first contract wias made knew thereof, there having been no delay in the first shipment, hut the agent with whom the second contract was made must have been informed of such circumstances.</p> <p>3. Same — Authority of Agents — Acquiescence — Estoppel. — Though the agent of a carrier at a certain station resigned, and his resignation was accepted, yet, no one else having been appointed for a year, and the company having in the interim left the station keys with him, and he having personally seen to hilling freight, though he did not sign the bills of lading, and no notice of his discharge having been given the public, hut he having been permitted to act substantially as he had done before, the carrier was estopped by its acquiescence to question his- authority -as agent as between H and shippers who dealt with him.</p> <p>4. Same — Damages'—Evidence.—Plaintiff, in an action against a carrier for delay in transporting machinery for its sawmill, cannot by way of damages show loss from Inability to fill a contract for lumber, because of the delay in 'transportation, in the absence of evidence that the carrier was notified of the fact of such contract.</p>

<p>Officers — Offenses—Usurpation of Office — Defendant was not guilty of usurpation of office within Ky. Stats., 1903, Sec. 1364, making it an offense for any person to hold any office after his election thereto shall have been declared illegal by a court of competent jurisdiction, or to usurp any office established by law, where, though his election to the office of road supervisor was not legal, he was put into it by the fiscal court, and, though he retained possession and exercised the duties of the office after the fiscal court had declared the office vacant, there had never been a judicial determination that the election was illegal by a court of competent jurisdiction.</p> <p>O’Rear, C. J., and Lassing, J., dissenting.</p>

<p>1. Officers — De Facto Officers — Acting Under Invalid Election.— A person assuming the duties of supervisor of roads hy virtue of a void election by the fiscal court, and discharging the duties of 'tJhe office with the acquiescence of tlhe court, even after the office had been declared vacant and another supervisor elected, is an officer de facto.'</p> <p>2. Counties- — County Board — Criminal Responsibility of Members. —The members of a county fiscal court in allowing the claim of a de facto supervisor of roads againsr the' county acted in a judicial or quasi judicial capacity, and were not criminally liable for an error of judgment, departure from sound policy or an act contrary to law, where they acted honestly and with good motives.</p> <p>See ^citations of authorities for both appellant and appellee in case -of Eubank v. Commonwealth in this volume. — Reporter.</p>

<p>1. Municipal Corporations — Franchises—Authority to Grant — • Sale. — Under Const. Sec. 164, providing that a city may sell franchises at public sale to the highest and best bidder for a term not exceeding 20 years, a city has no power to grant a franchise without offering the same at public sale.</p> <p>2. Same — Conditions.—A city may annex any lawful condition to the exercise of a franchise granted to a public service corporation, which condition becomes a part of the contract under which it is thenceforth used.</p> <p>3. Same — Telephones—Regulation of Rates. — Where a city granted a franchise for the operation of a telephone line, it was competent to provide as a condition that the rates for service to citizens should not exceed a schedule fixed in the ordinance, or any future ordinance properly adopted.</p> <p>4. Telephones — Franchise—Limitation of Charges — Construction. ' — Where an ordinance) granting a telephone .company (a franchise to operate within a city prescribed tnat the company should not charge toll in excess of a schedule contained in the ordinance, such schedule was limited to service within the. city, and did not preclude, the corporation from charging an extra rate for connections outside the city limits.</p>

<p>CASE 44. — ACTION BY MORRIS GRIFFIN’S ADMINISTRATOR AGAINST G. W. HOWE’S EXECUTOR TO RECOVER THE PROCEEDS OF A LIFE INSURANCE POLICY.—</p> <p>Appeal from Montgomery Circuit Court.</p> <p>A. W. Young, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The petition should have been dismissed; the secondary affidavit demanded by Sec. 3870 of the Statutes, was insufficient because:</p> <p>a. The affiant does not disclose any knowledge of the facts: Dewhurst v. Shepherd’s exor., 102 Ky., 239.</p> <p>b. The affidavit was made by an attorney for the plaintiff, employed under a “graduated fee.” He was incompetent as a witness, and was interested pecuniarily in the recovery: Smick’s admr. v. Beswdck’s admr., 113 Ky., 439; Tnatoue’s exor. v. Harris, 1 Met., 597; Nutall’s admr. v. Brannin’s exor., 5 Bush, 11.</p> <p>2. The court should have required a personal verification of the petition: Civil Code, sec. 117, subsec. 4.</p> <p>3. The court should have required the petition to be made more specific; it does not allege to whom the Equitable promised to pay the proceeds of the policy.</p> <p>4. The transaction was a gambling transaction, and void as against public policy: Griffin’s admr. v. The Equitable, 119 Ky., 856.</p> <p>5. Relief will be denied in Kentucky to a participant in a transaction in nature gambling and against public policy: Bromley’s Admr. v. Washington Life, 92 S. W., 17; Central Trust Co. v. Respass, 112 Ky., 606; McMullen v. Hoffman, 171 U. S., 689, s. c. 43 L. Ed., 1117.</p> <p>6. The court, of its own motion, should refuse relief when the fraud appears: Bromley’s Admr. v. Washingcon Life, 92 S. W., 17; Hall v. Coppell, 7 Wall., 559; s. c. 19, L. Ed., 244</p> <p>7. The action was barred by limitation. It was not brought within five years, nor within one year after the qualification of his personal representative; and Howe’s representative had qualified 19 months before the five years elapsed: Ky. Stats., sec. 2528; Pilcher v. McCowan, 8 Ky. Law Rep., 786; Jones v. Mitchell’s Admr., 9 Ky. Law Rep., 858; C. & L. R. R. Co. v. Bowler’s Heirs, 9 Bush, 485; Duke v. Davis, 101 S. W., 390.</p> <p>8. The public policy of a state must be deduced from its constitution, its statutes and its judicial records; and each state must necessarily establish its own public policy: Bnion -Central Life Ins. Co. v. Spinks, 83 S. W., 615;' Hartford Ins. Co. v. C. M. & St. P. R. R. Co., 70 Fed. Rep., 201 s. c 30, L. R. A., 193; Myers v. Meinrath, 101 Mass., 366, s. c. 3., Am. Rep., 368.</p> <p>9. No relief will be granted to one as against the other of two jointly engaged in a transaction, in nature gambling or against public policy: Central Trust Co. v. Respass, 112 Ky., 606; Griffin’s Admr. v. The Equitable, 119 Ky., 856; Sinead v. Williamson, 16 B. Mon., 492; Hocker v. Gentry, 3 Met., 463; Laughlin v. Dean, 1 Duv., 20; Campbell v. Anderson, 2 Duv., 384; Morrison v. Bennett, 20 Mont., 560; s. c. 50 L. R. A., 158; King v. W-inant’s, 71 N. C., 469; s. c. 17 Am. Rep., 11; Hunter v. Pfeiffer, 108 Ind., 197; s. c. 9 N. E., 124; Emery v. Ohio Candle Co., 47 O. St., 320; s. c. 24 N. E., 660; Shaffner v. Pinchhaek, 133 111., 410; s. c. 24 N. E., 867; Morgan v. Groff, 5 Denio, 364; s. c., 49 Am. Dec., 273.</p> <p>10. Ex dolo malo non oritur actio. No right’of action can arise out of a fraud; nor can one recover when he must disclose his own moral turpitude as a prerequisite to a recovery: McMullen v. Hoffman, 174 U. S., 639, s. c., 43 L. Ed., 1117; Holman v. Johnson, 1 Cow., 341; Hall v. Coppell, 7 Wall., 558, s. c. 19, L. Ed., 244; Hayne v. Rudd, 102 N. Y., 372, s. c. 7 N. E., 287; Embrey v. Jemison, 131 ü. S., 336, s. c., 33 L. Ed., 172; Babcock v. Thompson, 3 Pick., 446, s. c., 15 Am. Dec. 235; Pomeroy’s Equity, 2d ed., vol. 1, see. 401; Pomeroy’s Equity, 2d ed., vol. 3, sec. 938.</p> <p>11. The doctrine of the last foregoing paragraph has been unequivocally adopted, as the-settled public policy of Kentucky; Kimbrough v. Lane, 11 Bush, 556; Davezac v. Seiler, 12 Ky. Law Rep., 599; Smith v. Richmond, 70 S. W., 846, s. c. Ky.-Law Rep., 1117; Chapman v. Holly, 80 S. W., 190, s. c.25 Ky. Law Rep., 2183.</p> <p>12. A defendant under an action for money had and received can only be held to answer for what he has received. If Howe’s estate owes anything, it owes only -one-half the proceeds of the policy: Limited Investment Assn. v. Investment Assn., 99 Wis., 54, s. c. 74 N. W., 633; Blackstone, vol. 2, p. 443.</p> <p>13. There’ can arise no implied contract in favor of Griffin’s estate. If there is any obligation upon the part of Howe’s estate to refund, it is to the Equitable, the party defrauded: Griffin’s Admr. v. The Equiable, 119 Ky., 856.</p> <p>The doctrine that the courts will not aid a plaintiff who is pari delicto with the defendant, is not a rule of universal application. Tt is based on the principle that to give the plaintiff relief in such cases would contravene public morals and- impair the good of society; therefore the rule should not be applied in a case in which to withhold the relief would to a greater extent offend public morals. To promote the good of the public is the highest aim of the courts in the application of this doctrine.</p> <p>AUTHORITIES CITED.</p> <p>Howard’s Admr. v. Leavell’s Admrx., 10 Bush-, 482; Griffin’s A.dmr. v. Equitable Assurance Society, 84 S. W., 1164; Beard v. Sharp, 18 Ky. Law Rep., 1029; 9 Cyc., 550; Bacon on Benefit Societies & Life Insurance, secs. 250b and 397; Mutual Life Ins. Co. v. Blodgett, 27 S. W., 286 (Texas case); Bigelow on Fraud, p. 203; Pomeroy’s Equity Jurisprudence, secs. 941 and 942; Anderson’s Admr. v. Meredith,'6 Bush, 622; Civil Code, sec. 80; Field v. Wallace’s Admr., 6 Monroe, 334.</p>

CASH 45. — PROCEEDINGS BY THE COMMONWEALTH BY THE AUDITOR’S AGENT TO COMPEL THE LISTING OF PROPERTY OF THE WIDOWS’ AND ORPHANS’ OF ODD FELLOWS. — Appeal from Fayette Circuit Court. Watts Parker, Circuit Judge.

<p>CASE 46 — ACTION BY HARRY SPINKS AGAINST THE UNITED STATES LIFE INS. CO. OF N. Y. ON A POLICY OF LIFE INSURANCE ON THE LIFE OF HIS FATHER. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>John T. Hodge and A. S. Berry, Successive Judges.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. That the contract evidenced by the policy of insurance was legal and one which the appellant was competent (o enter into and had the authority to make: Charter of Appellant and Amendments thereto; Sec. 88 of c. 690 of New York Laws of 1892; N. Y. Life Ins. Co. v. Miller, 22 Ky. Law Rep., 230, 232.</p> <p>’ 2. The word “dividend,” or “dividends,” where it occurs in-Sec. 88, Chap. 690, of the New York Laws of 1892, must be given the same construction as the word “dividend” in Condition VII. of the policy of insurance under consideration. The word “dividend” has a fixed and settled meaning:- Thompson on Corp., vol. 2, sec. 2126; Greef v. Equitabe Life Ass. So., 160 N. Y., 19; Cook on Stock and Stockholders, sec. 542, Note 5, secs. 272, 545;- Bouvier’s Diet., vol. 1; Goodwin v. Hardy, 57 Me., 143, 145; Hyatt v. Allen, 56 N. Y., 553, 557; Brown v. Collins, Ky. Law Rep., 12 Eq. Cas., 594; Lowry v. Farmers L. & T. Co., 172 N. Y., 137, 144; Lockhart v. Van Alstyne, 31 Mich., 76; Williston v. Mich., etc., R. Co., 13 Allen (Mass.), 76.</p> <p>3. The declaration of a dividend, in the absence of fraud or abuse of discretion, rests with the Board of Directors of a life insurance company as in the case of other corporations, and a policy holder in an insurance company is not entitled to a dividend until one is: declared: N. Y. Life Ins. Co. v. Miller, 22 Ky. Law Rep., 230, 232; Mut. Life. Ins. Co. of N. Y. v. Girard Life Ins., Ann. & Trust Co., Admr., 100 Pa. St., 172, 179, 180; Moss’ Appeal, 83 Pa. St., 264, 269; Lowry v. Farmers’ Loan & Trust Co., 172 N. Y., 137, 144; Joyce on Ins., vol. 2, sec. 1166; N. Y., L. & S. W. R. R. Co. v. Nickals, 119, U. S., 296; Beveridge v. N. Y., E. R. Co., 112 N. Y„ 1.</p> <p>4. There is no question in the case at bar of doubtful construction or repugnancy between Sec. 88 of the New "fork Law and Condition VII of the policy, and no room for the application of the rule that, in case of repugnancy, the construction must be favorable to the assured: Joyce on Ins., vol. 1, secs. 205, 212, 216, 21, 219, 222..</p> <p>5. The relation between the appellant and the appellee and the insured is one of contract, and not of trustee and cestui que trust: Everson v. Eq. Life Ass. So., 68 Fed. Rep., 218; Uhlman v. N. Y. Life Ins. Co., 109 N. Y., 421; Bewley v. Eq. Life Ass. So., 61 How. Pr., 346.</p> <p>(First) The word “mutual” must be construed in connection with the entire charter of the appellant and the amendments thereto, and especially in connection with the amendment which was passed March 31, 1882.</p> <p>(Second) Sec. 88 of the New York Law is a part of the policy and must be construed in connection with Condition VII of the policy.</p> <p>(Third) The contract of insurance evidenced by the policy in question, did not require the appellant to keep a separate account of the receipts, disbursements or investments from policies of 'the Spinks class, or of any class. No such claim is asserted by appellee in his pleadings in this case: Bogardus v. N. Y. Life Ins. Co., 101 N. Y., 328, 335, 336, 337; Uhlman v. N. Y. Life Ins. Co., 109 N. Y., 421.</p> <p>POINTS AND AUTHORITIES ON PETITION FOR REHEARING.</p> <p>1. “Dividend additions’ is a technical term, meaning the rate by a dividend previously declared out of surplus.</p> <p>2. As the Spinks policy was a ten-year continuable term policy there could not under any circumstances be any “dividend additions thereto.</p> <p>3. This court made both a mathematical and commercial error in assuming that because on those policies which were kept for ten years up until the end of the accumulation period the rate of dividend was 8 per cent, of the total premiums paid, it would follow that a similar rate of dividend was or could be earned on the total premiums paid for only three years.</p> <p>4. Under Ky Stats., Sec. 656, as construed by this court in. many cases, no alleged provision of a contract of insurance can be enforced unless contained in or attached to the policies sued on. In the case at bar the provision as to “dividend additions’’ is not contained in or attached to the policy and therefore cannot be considered for any purpose whatever. ■</p> <p>(First) The New York statute only applies to business done in New York, and does not have any extra-territorial effect and cannot affect a contract made in Kentucky: Washington Life Ins. Co. v. Glover, 25 Ky. Law Rep., 1327.</p> <p>(Second) The New York statute was not printed on the Spinks policy, and therefore cannot be relied on as a part thereof: In Provident Savings v. Puryear, 109 Ky., 381; Provident Savings v. Beyer, 23 Ky. Law Rep., 2460; Supreme Commandery v. Hughes, 114 Ky., 175; Mooney v. Ancient Order of United Workmen, 114 Ky., 950, 959 (1903); Hunziker v. Knights of Pythias, 117 Ky., 418; Letzler v. Pacific Mutual, 25 Ky. Law Rep., 372 (1905); Rice v. Rice, 23 Ky. Law Rep., 635 (1901).</p> <p>PROPOSITIONS ADVANCED AND AUTHORITIES CITED.</p> <p>1. Appellant is a mutual company and cannot deny dividends to its policy-holders.</p> <p>2. Sec. 7 applies only in event insured lives to end of term.</p> <p>•3. The New York law applies in case of death before end of term.</p> <p>4. New York law is a check upon domestic companies, and means more than that the company shall include in reserve only such dividends as have been already credited to the poh'cy. Otherwise it would have no effect.</p> <p>5. The dividends were sufficient, treating policy as participating policy.</p> <p>6. Keepmg no account with any class entitles appellee to general yearly dividends.</p> <p>7. The general dividends are sufficient.</p> <p>■ 8. Even if contract is equivocal, all doubts will be resolved in favor of the insured.</p> <p>9. Legislative checks upon tontine insurance: Vol. 26, 1st Ed., American and English Encyclopedia of Law, pp. 52, 53, 54,- 61, 62.</p> <p>Note — The New York Law, Charter and all material amendments are in the amended petition.</p> <p>PROPOSITIONS ADVANCED AND AUTHORITIES ON PETITION FOR REHEARING.</p> <p>1. The term “dividend additions” is a general term and means additions made to anything for or by reason of dividends.</p> <p>2. New York law applies to “any policy” in providing for “dividend additions,” and if these words mean only “paid-up additions” to the amount of insurance named in the policy, then policyholders who are not entitled to “paid-up additions” would be deprived of “dividend additions.”</p> <p>. 3. Dawson in his “Elements of Life Insurance” uses the term “dividend additions” several times in a special sense, descriptive of “paid-up additions,” but uses many other expressions as descriptive of “paid-up additions.” See pp. 98, 99, 105, 109, 116 and 144.</p> <p>4. In 1875 the technical term for “paid-up additions” was the “reversionary value of the surplus.” See Notes on Life Insurance, by Gustavus W. Smith, pp. 112, 113 (1875 ed).</p> <p>5. The recent literature relied on in petition for rehearing is reviewed and the general and' special uses of the term “dividend additions” and the various other expressions used in lieu of “paid-up additions” are pointed out.</p> <p>6. The “Recommendations for Uniform Legislation,” etc., and the New York Statute of 1906, by excepting term policies from the benefit of the New York statute of 1892, merely emphasize the fact that such benefits extended to term policis.</p> <p>7.' The loading of premium for dividend purposes exceeded 6 per cent of each premium.</p> <p>8. The New York law is part of the contract and nothing in cases cited by appellant will preclude the court from so considering it. Such cases refer merely to applications, by-laws, etc., which companies attempted to rely upon, contrary to Sec. 679, Ky. Stats., or are not applicable for other reasons pointed out.</p> <p>9. Sec. 679, Ky, Stats., was passed for the protection of policyholders, and a company can' not, by relying on it, take advantage of its own wrong.</p> <p>10. Same as to Sec. 656, Ky. Stats., which makes it a criminal offense for a company not to plainly express the contract in the policy.</p> <p>11. Appellant is a. mutual company and appellee’s policy is a participating policy.</p> <p>(a) See Art. 3 original charter of appellant.</p> <p>(b) See waiver of mutual feature.</p> <p>(c) No repeal of mutual principle.</p> <p>12. References to “Dawson’s Business of Life Insurance,” ed. of 1906, pp. 3, 46, 51, 109, 110, 120, 164, 240.</p> <p>13. References to proposed laws in the “Recommendation.” See pp. 63, 66„ 82.</p> <p>14. If contract doubtful, court will resolve doubt in favor of insured.</p> <p>15. The company’s charter directs a distribution of net profits. See subsec. 5 art. 6 (p. 22 printed record), and subsequent clauses of this article.</p> <p>16. The reserve properly calculated runs from February 21, 1898, and without regard to “dividend additions,” insured Spinks to a time thirty-eight days beyond his death.</p>

<p>CASE 47. — PROSECUTION AGAINST JOHN SIMPSON FOR THE MURDER OF BUD CASEY. —</p> <p>Appeal from Garrard Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Defendant convicted and appeals. —</p>

<p>Mines and Minerals' — Mineral Waters' — Subterranean Plow — Diversion' — Injunction—Adequacy of Legal Remedy. — An owner of land who opened a street and acquiesced in- the act of the Legislature establishing a town owns the soil of the street subject to the public easement to use the street for municipal purposes, and he may enjoin the town from putting down a well in the street to strike the vein of mineral water supplying a well on his land, not for the purpose of obtaining water merely, but to supply the mineral wateufree to all, the attempt of the town, being an attempt to take the owner’s property for public use, without compensation, and a judgment for damages affording inadequate relief.</p>

<p>CASE 49. — GEORGE P. HUBER WAS CONVICTED OP PERMITTING A NUISANCE ON HIS PREMISES AND APPEALS. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Motion by appellee to strike bill of exceptions from the record and to dismiss the appeal. —</p>

<p>1. Intoxicating Liquors — Offenses—Sales in Prohibited Quantities. — A sale of liquor to several or any one of certain witnesses, in such manner that they or any one of them were enabled to receive a quantity of less than five gallons, is not a violation of the act oí April 15, 1884 (1 Acts 1883-84,' p. 1404, c. 789), and of the acts amendatory thereof, regulating the sale of intoxicating liquor in the counties of Knox and Whitley, and forbidding a sale of less than five gallons, unless the liquor was so sold with the knowledge, understanding, or design that it would be so received.</p> <p>2. Same — Criminal Prosecutions — Instructions.—Where, on a trial for selling liquor in quantities less than five gallons, it appeared that several parties met near defendant’s residence and agreed to buy whisky, each to share therein according as he contributed, that the whisky was purchased, and, within view of defendant’s house, divided among such parties, an instruction that, if defendant had a scheme whereby he, in selling liquor under the guise of selling it in five gallons, arranged to divide it among his purchasers so thát they could get it in less quantities than five gallons, and so that such purchasers received their part of the liquor less than five, gallons in a way commonly known as a “divide,” he was guilty was subject to the criticism that it did not sufficiently connect the purchasers or any one of them with the transaction.</p> <p>3. Same. — Act April 15, 1884 (1 Acts 1883-84, p. 1404, c. 789), and acts amendatory thereof, regulaiting the sale of intoxicating liquor in the counties of Knox and Whitley, does not restrict the right of a distiller to sell in five-gallon quantities to licensed retailers- or wholesalers.</p>

<p>CASE 51. — ACTION BY CARLISLE W. PATTON AGAINST THE MADISON NATIONAL BANK FOR THE VALUE OF CERTAIN PERSONAL PROPERTY WRONGFULLY ATTACHED —</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>Reading from Meadows v. Goff, 90 Ky., 540, we find that “a judgment binds no one except the parties to the action or their privies.”</p> <p>Am. & Eng. Ency. of Law, vol. 18, pp. 100, 101; also p. 104; also 109, 110; Carr v. Bob, 7 Dana, 417; Smith v. Clay (3 Cro. c. c., €40).</p> <p>The various excuses set forth by appellant in her brief are trifling, and w.e cannot see that they offer the least excuse for her laches; and on the ground that she cannot rely on the negligence of her attorney, as an excuse for the delay, we refer to Am. & Eng. Ency. of Law, 2d ed., vol. 18, p. 11.</p> <p>AUTHORITIES CITED.</p> <p>Sec. 29 of the Civ. Code Prac.; Miller v. Desha, etc., 66 Ky. Law Rep., 214, 215; Deposit Bank of Frankfort, etc., v. Thomason, etc., 66 S. W., 605; Ritchie v. Cincinnati, N. O. & T. P. Ry. Co., 21 S. W., 641 (14 Ky. Law Rep., 831); Am. & Eng. Ency. of Law, vol. 16, p. 787 (1st ed.) also same vol., pp. 790, 792, 808; Lee v. Wilson, 5 Ky. Law Rep., 765; Cartnell’s exr., v. Allen, 12 Ky. Law Rep., 43; Heaverin, etc., v. Robinson, 21 S. W., 876; 15 Ky. Law Rep., 15, 16; Murphy, etc., v. Cochran’s trustee, 80 Ky. Law Rep., 239; Meadows v. Goff, 90 Ky. Law Rep., 540; C. Y. C., vol. 16, p. 202; Am. and Eng. Ency. of Law, 2d ed., vol. 181, p. Ill; C. Y. C., vol. 16, p. 176; “Cyc.”, vol. 16, p. 152.</p>

<p>Burglary-^-Breaking and Entering. — Where a laborer, occupying a house with the owner, while on leave of absence, obtained the key ostensibly to take away some of his clothing, but with intent to steal property therefrom, and did so enter and steal, he was guilty of violation of Ky. Stats., 1903, Sec. 1162, providing that if any person shall break any dwelling house, and take anything cf yalue, though the owner or any' person may not be there, he shall b© punished as therein prescribed.</p>

<p>CASE 53. — ACTION BY THE BOARD OF COUNCIL OF THE CITY OF FRANKFORT AGAINST JERRE BRISLAN ON APPORTIONMENT WARRANT FOR CONSTRUCTION OF A SIDEWALK. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

C^SE 54. — ACTION BY C. L. RAISON, JR., FOR USE, ETC., AGAINST AUGUSTUS H.' CLARK TO ENFORCE A JUDGMENT. — Appeal from Campbell Circuit Court. A. S. Berry, Circuit Judge. Judgment for plaintiff, defendant appeals. — POINTS AND AUTHORITIES. 1. The petition does not properly plead judgment: Code ,see. 122; Laidly v. Cummings, 83 Ky., 606. 2. The court had. no jurisdiction because the title holder is not before the court.

<p>1. Easements — Ways — Acquisition — Prescription—Evidence-Admissibility. — Where a party asserts a right by prescription to a way, and shows a continuous user thereof for more than 20 years, evidence of user by others living in the neighborhood for a time insufficient to ripen into a prescriptive right •as to them is admissible to show that the community regarded the way as free, if not dedicated, to the use of persons to whom, it furnished the only way of reaching a public way.</p> <p>2. Same — Evidence—Findings.—A finding that a party had acquired by prescription a right of way over the land of another held justified under the facts.</p> <p>S. Same — Presumptions—Burden of Proof. — Where a user of a right of way creates the presumption of a grant, a party assailing the right has the burden of proving that the use of the way was merely permissive.</p> <p>4. Railroads' — Right of Way — Rights Acquired — Notice of Rights of User. — A railway company acquiring for a right of way land over which individuals exercised and claimed a right of way adverse to and by recognition of the owner is chargeable with notice of the rights of the individuals.</p> <p>5. Easements — Ways—Acquisition—Prescription—Deviation from Way. — Where no material changes were made in the location of a right of way claimed by adverse user, and the changes made were not made for the purpose cf abandoning the way, they were immaterial on the issue of acquisition of a right of way by adverse user.</p> <p>6. Same — Right of Way — Rights Acquired. — A railway company acquired land for a right of wa yat a time when individuals exercised and claimed adversely a right of way over the same. The railway right of way was 100 feet in width, and the use by the individuals of th-eir right of way did not interfere with the operation of the railway. The individuals used their right -of way for more than 20 years under a 'claim -of right adversely to the company and its grantor. Held, that the individuals acquired by prescription a right of way as against the com- • pany.</p>

<p>1. Carriers — Receipt of Freight — Conclusiveness.—A receipt by a carrier for freight, though not conclusive, creates a presumption that it received the freight directed therein, and the burden is on it to show the contrary.</p> <p>2. Trial — Instructions — Form. — The court should not instruct that the burden of proof is on one of the parties, or that the presumption of law is against him; hut the instructions should be so framed as to indicate the burden of proof, without specially referring to it.</p> <p>•3. Carriers — Loss, of Freight — Evidence—Instructions. — Where, in an action for loss of freight, the shipper introduced.in evidence the receipt of the initial carrier, the court should charge that the jury should find for plaintiff against the initial carrier, unless they believed that the shipper had not deliver the freight to it; and that they should find for him against the connecting carrier, unless they believed that the initial carrier had not delivered the freight to the connecting carrier.</p> <p>4. Trial — Question for Jury — Effect of Evidence. — Where, in an action against the initial and connecting carriers for loss of freight, it was shown that the connecting carrier receipted for seven boxes and made a written acknowledgment that one box was missing, the credibility of the testimony explaining away the receipt and the acknowledgment was for the jury.</p> <p>5. Carriers — Question for Jury. — In an action 'against the initial and connecting carrier for loss of freight, held, that the gu&s>tions whether the freight was delivered to the initial carrier, and, if it was, whether it was lost by it, or whether it was lost by the connecting carrier, were for the jury.</p> <p>6. Evidence — Statements by Agents — Admissibility.—The statements of an agent or a carrier, who is its representative to deliver freight, that a part of the freight of a shipper was missing, and that it would be along in a few'days, were comppetent against the carrier.</p> <p>7. Carriers — Loss of Freight — Actions—Evidence.—In an action against a carrier for loss of freight, the bill of lading received by the shipper and the waybills- which went with the freight were competent evidence against the carrier, though not conclusive.</p> <p>8. Trial — Question for Jury. — The credibility of evidence in am action against a carrier for loss of freight, which explains the bill of lading received by the shipper and the waybills which went with the freight is for the jury.</p> <p>9. Evidence — Notice to Produce Secondary Evidence. — Where a paper is- in the possession of a party, the adverse party should before trial notify the party to produce it, or procure a rule for its production, and, where the paper is not then produced, or it is shown to be lost, secondary evidence of its contents is admissible.</p> <p>10. Same — Similar Transactions. — Where, in an action against a carrier for loss of freight, the carrier showed that the goods could not have been put in the box delivered to it, evidence that the shipper had packed goods of the same description as those in controversy in a similar box was admissible.</p> <p>11. Property — Evidence of Ownership. — In an action against a carrier for loss of freight, the testimony of a witness that he saw the shipper in possession of goods similar to those alleged to have been, lost, is inadmissible.</p> <p>32. Witnesses — Credibility.—A party testifying in his own behalf should be permitted to' state where he has lived and what business he has followed, so as to give the jury a better idea of the weight to be attached to his evidnece.</p> <p>13. Trial — Evidence—Rebuttal.—Where, in an action against a carrier for loss of freight, a drayman, who took goods of the shipper to the carrier, testified that only six boxes of freight were taken out at the station, and that the shipper told him that he would take the seventh box with his trunk as baggage, it was competent for the shipper to contradict the dray-man.</p> <p>14. Carriers — Actions—Evidence.—In an action against the initial and connecting carriers for loss of freight, evidence that the waybill, made at the place where the goods, were delivered to the connecting carrier, was made out from the waybill which accompanied the car, and not from an inspection of the contents of the car, which was sealed, was admissible to explain how it happened that the connecting carrier receipted for the freight.</p> <p>15. Same. — In an action against a carrier for loss of freight, evidence of the circumstances of the giving of a .receipt by the carrier for the freight was admissible to support the defense that the freight had not been delivered to it.</p> <p>16. Appeal — Granting New Trial — Discretion.—:The discretion of the circuit court in granting a new trial will not be interfered with unless palpably abused.</p>

<p>CASE 57. — ACTION BY - S. B. & C. C. SPAULDING AGAINST A. J. GRUNDY TO RECOVER ONE-HALF THE VALUE OF A PARTY WALL. —</p> <p>Appeal from. Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>From a judgment sustaining a demurrer to plaintiffs’ petition they appeal —</p> <p>The builder of a wall owned it all and could have removed it, or hisi vendees could have removed it, without question as to their right to do so, at any time before it was actually used by appellee Grundy. Appellee builds to it. ' He thus appropriates to himself, not only that parti of the wall standing on his own ground, hut deprives appellants of what had been their undoubted right to move that portion of this wall which rests upon their own ground. By the appropriation of the One-half on his side, appellee has imposed upon appellants the burden of maintaining the half that is on their side intact for his benefit. No part of the wall, not even that portion resting on his side of the line, was 'his property, merely from the fact that it had been constructed by appellants’ vendors without contract with appellee, or appellee’s vendors. The very fact that they would have had a right to remove it at any time before appellee used it, or paid for it, is conclusive of the fact that the title was in them-. After appellee’s appropriation of it to his own use, and his imposition of -the easement upon that portion resting on appellants’ land, he refuses to contribute to the cost, he refuses to pay ¡amiy part of the present value of that which he takes. The case is not one based upon a covenant between parties, unless it be upon such implied covenant as even a court of law, and with much stronger reason, a court of equity will declare created by the circumstances. Appellants, clearly had the right to require contribution from appellee to the extent of the full present value of one-half the wall, which he has now appropriated to his own use.</p> <p>AUTHORITIES CITED.</p> <p>Harber v. Evans, 101 Mo. 661, 20 Am. St. Rep. 646; Dorsey v. Habersack, 84 Md. 117; Henry v. Koch, 80 Ky. 391; Oldstein r. Fireman’s. Bldg. Ass’n, 44 La, Ann. 492; Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87; List v. Hawnbrook, 2 W. Ya. 340; Cole v. Hughes, 13 Am. Rep. 611, 54 N. Y. 444; Kimm v. Griffin, 67 Minn. 25, 64 Am. St. Rep. 385; Roche v. Ullman, 104 111. Ill; Harris v. Dozier, 72 111. App. 542; Mickel v. York, 175 111. 62; McChesney v. Davis, 86 111. App. 380; Voight v. Wallace, 179 Pa. St. 520; Tomblin v. Fish, 18 111. App. 439; Thomson v. Curtis, 28 La. 229; Pew v. Buchanan, 72 la. 637; Standish v. Lawrence, 111 Mass. Ill; Pilsbury v. Morris, 54 Minn. 492; Jordan v. Kraft, 33 Neb. 845; Hendricks v. Stark, 37 N. Y. 106; Appeal of Heimbach (Pa.), 7 Atl. 737; Arnold v. Chamberlin, 14 Tex. Civ. App. 634; National Fire Ins. Co. v. Lee, 75 Minn. 157; Adams v. Noble, 120 Mich., 545; Mott v. Oppenheimer, 135 N. Y., 313; Keteltas v. Pen-fold, 4 Ed. Smith, 122; Platt v. Eggleston, 20 Ohio St., 414; Day v. Catón, 119 Mass. 513, 20 Am. Rep. 347; Graves v. Smith, 87 Ala. 450, 13 Am. St. 'Rep. 60; Ingals v. Plamondon, 75 111., 118; Meckle v. York, 66, 111. Supp. 464; Block v. Ishanx, 28 Ind., 37; Fidelity Lodge I. O. O. F. v. Bond, 147 Ind., 437; Haufman v. Kuhn, 57 Miss., 746; Chiveriek v. R. J. Guning Co., 58 Neb., 29; Brooks v. Curtis, 50 N. Y., 639; Burton v. Moffiitt, 3 Or., 29; Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283; Sharpe v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Campbell v. Mesier, 4 Johns. Ch. 334, 8 Am. Dec. 570; Sanders v. Martin, 2 Lea. 213, 31 Am. Rep. 598;Willford v. Jerard, 22 Ky. Law Rep. 203; Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; First Nat’l Bank v. Security Bank, 61 Minn. 25, 63 N. W. 264.</p> <p>1. There is* no allegation in appellants’ petition, or any pretense that appellee had any notice whatever, either actual or constructive, that appellants’ remote vendor who constructed the extended wall, did it at his own cost, or expected appellee’s remote vendor to pay for half the cost of it. As stated before, there was no writing evidencing an agreement between the vendors of appellants and appellee in relation to the extended wall.</p> <p>2. It can not be successfully contended by appellants that their petition, in so far as it seeks to remove the alleged cloud and slander on their lot, is not fatally defective. The allegation of the petition is that appellee claims that the wall in controversy is entirely on his own land. A dispute as to the boundary line does not constitute a cloud upon the title.</p> <p>AUTHORITIES CITED.</p> <p>22 Am. & Eng. Encyc. Law, 2d. Ed., 255; Cole v. Hughes, 54 N. Y. 444, 13 Am. R. 611; Fonda v. Parr, 10 Ky. Law Rep. 445; Sherrod v. Cisco, 4 Sand.; Partrige v. Gilbert, 15 N. Y. 601; 2 Washburn an Real Property, 262, 263 and 334; Hurd v. Curtis, 19 Pick. 459; Harsha v. Reid, 45 N. Y. 415; Kipple v. Bailey, 2 Nyd. & K. 517; Smiths leading cases; English and American notes to Spencer’s case; Black v. Isham, 16 Am. Law Reg. 8; Weld v. Nichols, 17 Pick. 543.</p>

<p>CASE 58 — ACTION BY PETER EICHMAN’S COMMITTEE AGAINST THE SOUTH COVINGTON & CINCINNATI STREET RY. CO. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD Shaw, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p> <p>Legislatures, in passing acts regulating procedure, wherein provision® of other acts constituting substantial advantages, are taken awa.y, sometimes provide by saving clause that incomplete or unfinished proceedings shall not be affected by such repeal. • In 'the absence of a saving clause, however, 'such rights or advantages are taken away and lost. In the case at bar an improvement in the law is made; a right is granted, not taken away, and it is sought to withhold this right from the litigant after the law goes into effect, by requiring him to go through the mockery of a trial under a dead law. The only excuse presented for this post mortem vitilization of a statute, which had been tossed on the legislative scrap heap, is that in the interest of a speedy trial, the court ought to deny a legal jury to a litigant by reading into the law a saving clause omitted by the legislature. The absurdity of this position is apparent when the necessity of frequent postponements of trials is called' to mind. If either side in this cause had presented sufficient' grounds for a continuance because of the absence of material witnesses, a postponement for weeks, or possibly for months, would hardly have been considered a grievous hardship, much less an injustice by the opposing side. Such trifling inconvenience cannot 'be urged as a reason for ignoring the plain provision of a statute conferring a vital right.</p> <p>AUTHORITIES CITED.</p> <p>Sutherland Stat. Cons., Sec. 225; Sutherland Stat. Cons., Sec. Ill; Cov. & Cin. Bridge Co. v. Smith, 25 Ky. Law Rep. 2292; S. Cov. & Cin. St. Rwy. Co. v. Schilling, 26 Ky. Law Rep. 1; Curtis v. Commonwealth, 22 Ky. Law Rep. 267; State ex. rel. Maurice v. Judge Superior District Court, 30 La. Ann. 603; State v. Bradley, 48 Conn. 535; Thompson, Trials, Sec. 37; Powell v. People, 5 Hun. 169.</p> <p>CLASSIFICATION.</p> <p>1. The panel from which the jury in this ease was selected was lawfully drawn and acting at the time of the trial, and the jury was properly selected therefrom. Stone, Auditor, v. Saunders, 106 Ky., 904; Decision of Judge Field; Section 985, Kentucky Statutes; Sinking Fund Commissioners v. George, 104 Ky., 260.</p> <p>2. The objection to the entire panel was made too late. Thomp* son on Trials, Sec. 91; Bridge Co. v. Smith, 25 Ky. Law Rep., 2292; Street Railway Co. v. Schilling, 26 Ky. Law Rep., 1; Cur.tis v. Commonwealth, 23 Ky. Law Rep. 267.</p> <p>ADDITIONAL AUTHORITIES.</p> <p>Cyc. Law and Procedure, vol. 24, pp. 311, 324, 330; Ency. Plead-^ Ing and Practice, vol. 12, pp. 418, 424; Mueller v. Rebham, 94 111., 146.</p>

<p>Licenses — Hack Libes — What Constitutes. — That defendant’s hacks or other similar vehicles regularly met railway trains at a station, and for hire transported passengers in that town, was not the operation of a hack line, within the revenue law of March 15, 1906 (Acts 1906, p. 200), requiring the.payment of a license to run a hack line.</p>

<p>CASE 60. — ACTION BY JAMES P. KING AGAINST THE CITY OF MT. STERLING TO TEST'THE VALIDITY OF AN ORDINANCE LICENSING THE SALE OF LIQUORS. —</p> <p>Appeal from Montgomery Circuit Court.</p> <p>A. W. Young, .Circuit .Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>Our contention is:</p> <p>First. That a legislative body cannot control the subsequent acts of the same body.</p> <p>Second. That section 158 of the city ordinances was repealed, at least by implication, by the passage of this ordinance on December 26th, 1907.</p> <p>Third. That it was original legislation.</p> <p>Fourth. That chapter 81, section 2, of the Acts of the Legislature of 1906, did not apply to the issual of liquor licenses.</p> <p>Fifth. That sections 180 and 181 of the Constitution were and did not apply to the issual of saloon licenses, and therefore the Constitution was not Violated nor was chapter 81, section 2, of the Acts of 1906 applicable to said saloon license. That under the Constitution, sections 180 and 181, the question of saloon license was left to the legislature to regulate and by law to confer the proper authority on the respective municipal legislative bodies to regulate and restrain the same.</p> <p>Sixth. That the payment of said license by the appellee, King, was voluntary.</p> <p>AUTHORITIES CITED.</p> <p>Subsections 1, 27 and 35 of sec. 3490, Ky. Stats., and sec. 3502; Gorham v. Luckett, 6 B. M., 154; Mann v. Erame, 5 Dana, 535; 2d Ed. Sutherland on Statutory Const., secs. 269, 270, 271 and 247; Broaddus v. Broaddus, 10 Bush, 299; Parrish v. Eerguson, 83 Ky., 18; Patterson v. Commonwealth, 86 Ky., 313; Buchanan v. Commonwealth, 95 Ky., 334; Long, Treasurer, v. Stone, Auditor, 19 Ky. Law Rep. 246; United States v. James Tynen, 11 Wallace, 88; Maddox et al. v. Graham, 2d Met., 56; Rash v. Holloway, 82 Ky., 674; secs. 180 and 181 present Constitution; Levi v. City of Lou., 97'Ky., 394; Childers v. People, 11 Mich., 43; People v. Jarvis, 46 N. Y. Supp., 496; Wiggins Perry Co. v. City East St. Louis, 102 111., 560; Black on Intoxicating Liquors, 117; Cooley on Constitutional Limitations, 6th Ed., pp. 242 and 718; 2d Ed. Am. & Eng. Encyc. Law, p. 209; Tenny v. Lenz, 16 Wis., 566; Tim v. Hamm, 109 111., 593; Tyler v. Smith, 18 B. M.,632; Melton v. City of Mays-ville, 19 Ky. Law Rep. 1033; 18 U. S. Law Ed., 614; Dodge v. Union Pae. R. R., 98 U. S.; 48 U. S. L. Ed. 432; Granger’s Mut. B. Ass’n v. McGregor, 7 Ky. Law Rep. 757; Brands v. City of Lou., Ill Ky., 56.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The ordinance fixing the license fee for retailing liquors at $600 per year is invalid because it was adopted at a special meeting of the council of appellant city. Section 3486, Ky. Stats.; sec. 158, ordinances and by-laws, city of Mt. Sterling; Shugars v. Hamilton, 92 S. W. 564; Town of Springfield v. Bank, 63 S. W. 271, 23 Ky. Law Rep. 519.</p> <p>2. The ordinance fixing the license fee for retailing liquors at $600 per annum is invalid because it does not specify the purpose for which same is levied and the purpose for which the revenue derived therefrom shall be expended. Chapter 81, Acts General Assembly, 1906; Levi v. City of Louisville, 97 Ky., 406; Shugars v. Hamilton, 92 S. W., 564-</p> <p>3. Appellee having paid-the license fee under the belief that it was lawfully imposed is entitled to recover the excess imposed by the invalid ordinance. Harrodsburg, etc., v. Renfro, etc., 22 Ky. Law Rep., 806; Bruner v. Town of Stanton, 102 Ky., 459.</p>

<p>Landlord and Tenant — Lease of Wall by Tenant for Advertising Purpose — Necessity for Landlord’s Consent. — Under Ky. Stats., 1903, section 2292, providing that, unless the landlord consents in writing, a transfer by a tenant for a term less than two years of any interest in the premises shall forfeit the lease, a lease by such a tenant of a wall for advertising purposes, without the landlord’s consent, was void as to the landlord; and, the painting of a sign upon the wall by the sublessee being unlawful, the sublessee is liable to the landlord for his damages.</p>

<p>Embezzlement — What Constitutes. — An agent, with authority to collect money and retain a Baft for his services, is, on converting to his own use the entire amount collected, guilty of embezzlement, within Ky. Stats., 1903, section 1202, punishing any agent who shall embezzle or convert to his own use the money of his principal, though he was entitled to 15 per cent of the amount as his commission.</p>

<p>CASE 63. — PROSECUTION OF C. D. BALL AND PATTEN BALL FOR MURDER —</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>From a judgment of acquittal on peremptory instruction the Commonwealth appeals —</p> <p>1. The appellee’s discharge is a fraud on the commonwealth and does not constitute a bar to further prosecution. It is the contention of the state that the facts show that the verdict was and is a fraud. After the state had shown the corpus delicti, and had called Mitchell Teasley to the witness stand, the defendants asked that the jury be withdrawn for the purpose of their making a motion. This motion having been sustained, the defendants moved that the court discharge them, because it had no jurisdiction of the murder, as it was shown by the evidence that the wounds were inflicted in Kentucky, and Cotrell died in Tennessee. The commonwealth objected and asked that it be permitted to show by competent proof that the defendants shot the deceased in Mid'dlesboro, Bell County, Kentucky, and avowed it then had witnesses present by whom it could prove the same. The court refused to permit the commonwealth’s attorney to proceed, and peremptorily instructed the jury to find the defendants not guilty. It is the contention of the state that this is a corrupt verdict and a fraud on the state. And were it not, that the commonwealth was a party and was prosecuting the charge it would be absolutely void; but inasmuch as the commonwealth was a party the verdict is voidable and may be set aside in a direct attack as the appeal herein, and the case ordered reinstated on the docket of the trial court for further proceedings, and said verdict will not be good as a plea in bar.</p> <p>2. The discharge of the defendant was not the verdict of the jury, such as constituted a deliverance of the defendants within the legal meaning of the constitutional provision. It was the order of the court made by the court after it had held that it had no jurisdiction of the offense, and said verdict is without any legal effect whatever and is void, or at least voidable. It is not so much as a defective verdict — which will not operate as a bar — but it is not the verdict of the jury charged- with the deliverance of the defendant in any legal sense whatever. This contention is upheld by the following authorities: Staite v. Oliver, 30 La. Ann., 470; People v. Travers, 77 Cal., 176; Lawrence v. People, 2 111. (1 Seam), 414; ex parte Brown, Ala., 15 S. R. 602).</p> <p>3. Thus far we have dealt with the question of the plea of former jeopardy in cases where a jury or a juror were discharged and another jury or juror substituted-, with thei consent of the accused. We contend that where there is objection by the defendant to the jurisdiction, the plea of former jeopardy will not stand. Duffy v. Britton, 48 N. J. L., 371; State v. Spayde, 110 Iowa, 726; Marshall v. Commonwealth, 20 Grat. Vt., 845.</p> <p>Murder, in this state, is a common law offense, with the penalty-fixed by statute. Our statutory law is silent as to what constitutes murder, and only fixes the penalty therefor. So we are compelled to look to the common law to determine the necessary ingredients of th“ crime.</p> <p>2. Having determined that murder is a common law offense, it naturally follows that the common law is the source of jurisdiction in murder cases, except to the extent same has been modified by statute, if it has been modified.</p> <p>3. It stands an undisputed proposition, we presume, that the common law of England, together with all facts of Parliament of a general nature, and not local to the British Islands, enacted prior to March 24th, 1607, constitute the common law of this state, and, are still in force in this state, except when modified or repealed by statute.</p> <p>4. It is very doubtful if this state, or any state, could pass- ii law to the effect that a person striking a mortal blow in one state, the death resulting in another, could be convicted, of murder in the state where the death occurs, when the offenders agency ceases with the giving of the blow, but there is no doubt whatever, that our legislature has authority to define what shall be punished as murder, and a law to the effect that the giving of a mortal blow in this state, shall be punishable as murder, regardless of the place of death, would be unquestionably a valid exercise of the legislative authority to define and punish crime, but until such a statute is enacted, it is submitted that the courts of this state have no authority to indict one for murder, a common law offense, where all the elements necessary to constitute the offense are not present within the limits of this 'State.</p> <p>5. We presume it will not be argued by the commonwealth, that in event the lower court is reversed in this case, the court should hold that the appellees have not been in jeopardy. The defendants announced ready, the jury was sworn, and the case actually gone into, one witness having testified' before the peremptory instruction was given, so that even if the court should hold that the lower court was in error, we think there can be no question as to the fact that appellees have once been in jeopardy, and should, not be compelled against to face trial on the indictment in this case.</p>

<p>CASE 64. — ACTION BY EMMA MEYERS AGAINST THOMAS DUNN FOR UNLAWFUL ARREST AND ASSAULT AND BATTERY. —</p> <p>Appeal from Kenton Cirenit Court.</p> <p>M. L Hab.beson, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p> <p>AUTHORITIES CITED.</p> <p>First- — Incompetent testimony. Sections 1088, 1627, Ky. Stats-.; section 715, Civil Code; Mt. Sterling National Bank v. Brown, 19 Ky. Law Rep., 1416; Commonwealth v. Mills, 14 Ky. Law Rep., 107; Cole v. Hanks, 19 Ky. Law Rep. (3 T. B. Mon.), 208; Stromberg v. Earick, 45 Ky. (6 B. Mon.), 578; Patton v. Kennedy, 8 Ky. (1 A. K. Marsh.), 289; France v. Frazier, 30 Ky. (7 J. J. Marsh.), 425.</p> <p>Second — Instruction “E.” Criminal Code, sections 48, 50, 323, 324; Revill, etc., v. Pettitt, 60 Ky. (32d), 314.</p> <p>Third — Instruction “F.” Crosby v. Bradley, 11 Ky. Law Rep., 954; Rapdale v. Ezell, 20 Ky. Law Rep., 1567; More v. Young, 20 Ky. Law Rep., 1932; Ryan v. Quinn, 24 Ky. Law Rep., 1513; Crab-tree v. Dawson, 26 Ky. Law Rep., 1046; Doerhoefer v. Shewmaker, 29 Ky. Law Rep., 1193; Crocker v. Haley, 29 Ky. Law Rep., 174.</p> <p>Fourth — Instructions one and two. L. & N. Ry. Co. v.Banks, 19 Ky. Law Rep., 1065; Moran v. Higgins, 19 Ky. Law Rep., 456; Coppage v. Griffith, 19 Ky.. Law Rep., 456; M. & O. R. R. Co. v. Reeves, 25 Ky. Law Rep., 2236; Mitchell-Tranter Co. v. Ehmett, 23 Ky. Law Rep., 1783; Bowling Green Stone Co. v. Capshaw, 23 Ky. Law Rep., 945; Travelers Ins. Co. v. Higgins, 19 Ky. Law Rep., 456.</p> <p>POINTS AND AUTHORITIES.</p> <p>This honorable court will observe that appellee pleaded that he detained appellant only for such time as was required by him for the investigation and consideration of the grounds and facts of the complaint charged against appellant by the officer, MeLaughlini, and the instructions- in this respect are more favorable to appellant than to appellee inasmuch as they did not fix any t-ime which would be considered by the jury as unreasonable or unlawful for appellee to detain appellant, but confine the jury in this respect to the time required by the magistrate for such an Investigation or consideration of the charge against appellant. No single fact in the testimony is made prominent in the instructions and,there can be no objection to their form. They contain the whole law of the ease with a statement of the facts, only which are necessary to be stated.</p> <p>AUTHORITIES CITED.</p> <p>Pepper v. Mayes, etc., 5 Ky. Law Rep., 708; Deekerman v. Northern Trust Co., 20 Sup. Ct. 311, 315, 176 U. S. 181, 44 L. Ed. 425; Blackinston v. Potts (Pa.), 2 Miles, 388; McLain v. Warren, 3 Pa. Dist. R., 585, 586; Witsie v. Holt, 95 Ind., 60; Booze v. Tate, 43 Ind., 60; Downing v. State, 49 Ind., 56; Diers v. Mallon. etc., 46 Neb., 121; Linnen v. Barefield, 114 Mich., 93.</p>

<p>. 1. New Trial- — Newly Discovered Evidence — Cumulative Evidence. — In an action against a railway company for the death of a pedestrian at a crossing, a witness testified that she saw hint near the crossing, and then went into the house, and shortly the train passed. Another witness testified that he saw the pedestrian, that he stopped and looked up and down ■the track, and that the witness walked about 8 or 10 feet, when the train rushed by. ■ Held, that the evidence of the latter witness was merely cumulative, and not indispensable to a recovery by plaintiffs and a new tlrial on the ground of newly discovered evidence that the latter witness’ testimony was false was properly refused.</p> <p>2. Same. — A new trial will not be granted to enable the defeated party to introduce new evidence, unless the .reasons why it should be done are strong, and it is. made to appear with reasonable certainty that injustice will result unless the relief ■is granted.</p> <p>•3. Appeal — Effect as to Motion for New Trial. — Where, pending .an appeal by a party against whom a judgment has been rendered, he discovers within the time allowed by law a cause foir opening the judgment in the lower court, he will not be denied the right to do so because he is prosecuting an. appeal.</p>

<p>1. Intoxicating Liquors — Offenses — Transportation. — Where a carrier received in another state intoxicating liquor consigned to a person in the state, and delivered the same to him in a county where the local option law prevailed, its act was within Acts 1906, p. 320, e. 63, declaring it unlawful for a common carrier to bring into or deliver in any county, etc., where the sale of intoxicating liquor is prohibited, any intoxicating liquor.</p> <p>2. Commerce — Interstate Commerce — Regulation by States. — Under the provision of the Constitution of the United States ithat Congress shall have power to regulate commerce among the several states, Acts 1906, p. 320, c. 63, which undertake to impede, burden, or regulate the bringing of intoxicating liquors, by carriers into the state, is unconstitutional and void.</p> <p>3. Same — Intoxicating Liquor. — That liquor was taken from a point in Kentucky to a point outside the state, and from there shipped back to a consignee in Kentucky, for the purpose of evading the local option law of Kentucky, did not as against the carrier render such shipment, subject to state -regulation, as not being interstate commerce.</p> <p>4. Same. — Whether a carrier knew that the commodity presented for transportation from one .state to another was malt liquor, or that the point to which shipped was in a local option district, is immaterial as affecting the liability of such shipment to the state regulation.</p>

<p>CASE 67. — MOTION BY A. B. CORNETT AGAINST A. J. ASHER, IN THE COURT OF APPEALS, TO DISMISS THE APPEAL AND DISCHARGE THE SUPERSEDEAS.—</p> <p>Motion denied and a petition for a rehearing overruled.</p>

<p>Taxation — Bank Deposits. — While a bank may credit a customer’s deposit on his overdue paper held by the bank, the money belongs to the customer, and is subject to his checks until the bank exercises this right; and, until this is actually done, the money is taxable in the depositor’s hands as if he owed nothing to the bank.</p>

<p>Guardian and Ward — Care of Ward’s Estate — Compromise—Conveyance of Land. — Under Ky. Stats., 1903, section 2030, providing tlhat a guardian, with leave of the count, may compromise any controversy concerning the lands of his ward, when the interest of the ward will be subserved thereby, where a suit to determine the interest of wards is compromised, the court has authority to order a conveyance of the interest conceded by the compromise to be in the wards and to be conveyed for a money consideration undeir its terms.</p>

<p>1. Carriers — Loss of Goods — Delivery to Carrier. — A carrier’s liability asi insurer for a loss of good's begins when the carrier has actually received the goods as a carrier for immediate shipment.</p> <p>2. Same — Bill of Lading — Scope.—A bill of lading issued by a carrier is only'prima facie evidence of the receipt of the goods described in it, being open to explanation, and imposing no liability on the carrier as an insurer until the goods are actually received by the carrier.</p> <p>3 Same — Evidence of Delivery. — Evidence held to show that tobacco was delivered to a carrier for transportation before its destruction by fire, so as- to charge the carrier as an insurer with liability for its loss, though no notice was given to the carrier after the loading had been completed.</p> <p>4. Same — Delivery to an Acceptance by Carrier. — When goods designed for immediate shipment are placed in a condition to be carried, in the usual place of loading, in accordance with. the custom of dealing between the parties, with the carrier’s knowledge of the fact and purpose, or at the place of loading designated by the parties, there is both a delivery to and an acceptance by the carrier. '</p>

<p>CASE 71. — ACTION BY W. H. HERNDON’S ADM’R AGAINST THE LOUISVILLE & N. R. R. CO., FOR DAMAGES FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE. —</p> <p>Appeal from Hopkins Circiut Court.</p> <p>J. P. Gordon, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals. —</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The Kentucky Bank and Trust Co., a corporation, is not authorized by the laws of Kentucky to act as public administrator, in which capacity it is seeking -to maintain this action. Art. 5, ch. 98, Ky. Stats., sections 3903-3908; this question was properly raised by appellant’s general demurrers to the petition and amended petition. L. & N. R. Co. v. Brantley’s Adm’r, 96 Ky., 297.</p> <p>2. But even if the trust company might lawfully act as public administrator at all, it had no right so to act under the appoint ment, or pretended appointment, of July 1, 1901, for a longer period than four years thereafter, and was functus officio on Aug. 30, 1905, when it was attempted to refer decedent’', estate to it for administration, and on September 4, 1905, when this action was commenced, and at all times since then. Section 107, Const, of Ky., section 3904, Ky. Stats.; Comrs. of Sinking Fund v. George, etc., 20 Ky. Law Rep., 938; Campbell v. Dodson, 23 Ky. Law Rep., 510; Commonwealth v. Smith, 14 Ky. Law Rep., 573; Offutt v. Commonwealth, 10 Bush, 212; Lord Arlington v. Merricke, 2 Wms. Saund., 403; Hassell v. Long, 2 Maulé & S., 368; Commonwealth v. Fairfax, 4 Hen. & M., 208; Tyler v. Nelson, 14 Graft., 214; Munford v. Rice, 6 Munf., 81; Williams v. Miller, Kirby (Conn.), 192; Cuthbert, Adm’r, v. Huggins et al., 21 Ala., 349; State ex rel. Polk v. Galusha, Secretary of State, 104 N. W., 197; Ky. Const., section 228; Ky. Stats., sections 3753, 3756, 457; Morgan v. Yance, 4 Bush, 323; Creighton v. Commonwealth, 83 Ky., 142; 23 A. & E. Eucyc. of Law, 415; State v. Brewster, 44 Ohio State —, 9 N. E. 849; Atchison, County Judge, v. Lucas, 83 Ky., 451.</p> <p>3. While appellee alleges that he was appointed administrator of decedent’s estate, the copy of order of the Hopkins county court, made part of petition, shows the estate was “confided” to appellee as “public administrator.” It is well settled that where there is a variance between the allegations of the petition and the exhibit itself, as to what the exhibit contains, the exhibit controls. Boyd, etc., v. Bethel, 10 Ky. Law Rep., 470.</p> <p>4. The trial court erred in admitting much incompetent testimony, particularly as to alleged customary rules observed by employes in the Guthrie yards, of which there is no pretense appellant had any knowledge, or that it consented thereto, and which so-called customary rules were in contravention of or not recognized by appellant’s printed rules for the government of its transportation department. L. & N. R. Co. v. Scanlan, 22 Ky. Law Rep., 1404; Id. v. Logsdon, 114 Ky., 746; Labatt, Master and Servant, sections 35, 210, 211; James v. N. P. R. Co., 48 N. W., 783; A., T. & S. F. R. Co. v. Carruthers, 43 Pac., 230; Crowe v. N. ., C. & H. R. R. Co., 70 Hun., 37, 23 N. Y. Supp., 1100; Rutledge v. M. P. R. Co., 123 Mo.,131.</p> <p>5 The court erred in permitting appellee to' prove rule 130 of appellant’s book of rules, as establishing the standard of legal care due to decedent by his co-employes, that being a higher degree of care than the law requires. Lake Shore, etc., R. Co. v. Smith, 173 U. S., on p. 679; L. & N. R. Co. v. Collins, 2 Duvall, 114; Id. v. Robinson, 4 Bush, 507; Greer v. L. & N. R. Co., 94 Ky., on p. 178; Yolz & Chesapeake, etc., R. Co., 95 Ky. 188; Cincinnati, etc., R. Co. v. Palmer, 98 Ky., on p. 389; Dana & Co. v. Blackburn, 28 Ky. Law Rep., 695</p> <p>6. Whether or not it was safe for the switch engine to throw cars in on the track on which the cars about which decedent was working stood, was a question for the jury and not for opinion evidence of witnesses. L. & N. R. Co. v. Milliken’s Arm’x, 21 Ky. Law Rep., on p. 492; L. & N. R. Co. v, Mulloy’s Adm’v, 28 Ky. Law Rep., on p. 1119.</p> <p>7. Appellee does not contend appellant was negligent except as to the switch crew. There was no evidence of negligence on the part of such crew, and the court erred in submitting that question to the jury to “guess away” appellant’s rights. L. & N. R. Co. v. Wiathen, 22 Ky. Law Rep., 85; Langhorn et al. v. Nelson, 99 S.' W., 223; Louisville Gas Co. v. Kaufman-Straus Co., etc., 105 Ky., 131-156.</p> <p>8. Instructions 1, á and 5 given by the court on its own motion were very erorneous and prejudicial, especially ’ in submitting issues there was no evidence to support, and in authorizing punitive damages. Covington Saw Mill & Mfg. Co. v. Drexilius et al., 27 Ky. Law Rep., 903-7; Lexington Ry. Co. v. Fain, 25 Ky. Law Rep. 2243; McHenry Coal Co. v. Sneddon, 98 Ky. 686; Southern Ry. Co. in Ky. v. Hawkins, by etc., 28 Ky. Law Rep., 364. To the same effect, see Lake Shore, etc., R. Co. v. Prentice, 147 Ü. S., 107; Cooley on Torts, 3d Ed., p. 1324; Pollock on Torts, star page 157; Mcak’s Underhill on Torts Reduced to Rules, 74; Jaggard on Torts, 392; Sutherland on Damages, 3d Ed., 1080; Hutchinson’s new work on Carriers, 3d Ed., section 1436; Rorer on Railroads, 869; Ray’s Neg. of Imposed Duties, pp. 358, 966; Thompson on Neg., sections 7080-1; Sedgwick on Dam., vol. 1, p. 217n; Shear-man & Redfield on Neg., vol. 2, section 748; Thomas’ Negligence Rules, Decisions, Opinions, 898-9; Watson’s Damages for Personal Injuries, sections 719, 722; 12 A. & E. Encyc. of Law, 2d Ed., 28; 13 Cyc., 105; L. & N. R. Co. v. Kingman, 18 Ky. Law Rep., 83; Southern Ry. Co. in Ky. v. Goddard, 28 Ky. Law Rep., 523; I. C. R. Co. v. Lence, decided February 27, 1907; Louisville & Portland R. Co. v Smith, 2 Duvall, 556; Kentucky Central R. Co. v. Dills, 4 Bush, 593; L. & N. R. Co. v. Sickings, 5 Bush, on p. 10; C. & C. Bridge Co. v. Lillard, 29Ky. Law Rep., 871.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. Duty of appellant to keep, lookout for deceased. L. & N. v. Lowe, 66 S. W. 736, 80 S. W. 880, 25 Ky. Law Rep. 2317; C., N. O. & T. P. R. F. Co. v. Hill’s Adm’r, 89 S. W. 523, 25 Ky. Law Rep. 530.</p> <p>2. Duty to give signal. So. Ry. v. Otis’ Adm’r, 78 S. W. 480, 25 Ky. Law Rep., 1686.</p> <p>3. Contributory Negligence. So. Ry. v. Otis’ Adm’r, supra.</p> <p>4. Appellant cannot escape liability by showing observance of negligent custom.</p> <p>5. Admission of evidence, (a) No error in admitting printed rules, (b) No error in admitting so-called customary rules. Ky. Cent. Ry. v. Carr, 43 S. W. 193, 19 Ky. Law Rep. 1172. (c) No error in admitting rule No. 130. (d) Evidence of Gioninni that it was dangerous for the switch crew to throw cars against those between which Herndon was.</p> <p>6. Fellow Servant. L. & N. v. Lowe, supra; C., N. O. & T, P. R. R. v. Hill’s Adm’r, supra.</p> <p>7. Switch crew did not have right of way or right to- kill Hem-don if it did have right of way.</p> <p>8. Peremptory Instruction was properly refused. Labatt M. & S., section 35; So. Ry. v. Otis’ Adm’r, supra.</p> <p>9. Instructions. Judd’s Adm’r v. C. & O. Ry., 37 S. W. 842, 38 S. W. 880, 18 Ky. Law Rep. 747.</p> <p>(a) Gross negligence instruction. Const., section 241; Ky. Stats., section 6; Link’s Adm’r v. L. & N., 54 S. W. 184, 21 Ky. Law Rep. 1097; I. C. R. R. v. Coleman, 59 S. W. 13, 22 Ky. Law Rep. 878; C., N. O. & T. P. R. R. v.- Cook’s Adm’r, supra; So. Ry. v. Otis’ Adm’r, supra; Burton v. I. C. R. R., 79 S. W. 231, 25 Ky. Law Rep. 1916; Ky. Cent. Ry. v. Carr, supra.</p> <p>10. A corporation can be appointed public administrator. 7 Am. & Eng. Bncye. of Law, 733; 11 Id. 753 and n; Johnson v. Johnson, 88 Ky. 275, 11 S. W. 5; Coleman’s Adm’r v. Parrott, 13 S. W. 525, 11 Ky. Law Rep. 947; Phalan v. Lou. Safety V. Co., 88 Ky. 24, 10 S. W. 10; Ky. Stats., sections 606, 611, 3904, 3903, etc.; Thompson Corporations, sections. 11 and 5689.</p> <p>11. Appellee held over as public administrator. Harrison v. State, 113 Ind>., 434; State v. Compson, 34 Ore., 25; State v. Catlin, 84 Tex., 48; Com’rs Sinking Fund v. George, etc., 47 S. W. 779, 20 Ky. Law Rep. 938; Olsen’s Adm’r v. Rice, 79 Ky., 244; Ky. Stats., sections 611 and 3904.</p> <p>12. Appellee was at least a de facto administrator of decedent, and its acts as such were binding. Ky. Stats., section 611; Davis v. Connelly’s Ex’rs., 4 B. M., 140.</p> <p>13. General demurrer not proper practice to question appellee’s capacity to maintain action. Coleman’s Adm’r v. Parortt, supra.</p>

<p>1. Master and Servant — Nature of Relation. — The relation of master and servant is created by contract, and imposes reciprocal rights, duties, and obligations.</p> <p>2. Same — Duty to Furnish Safe Appliances and Place for Work. —It is the duty of the master to provide reasonably safe premises and appliances for the servant’s use.</p> <p>3. Negligence — Care Required as to Trespassers. — A trespasser or volunteer, who is injured, cannot recover from the owner of the premises, unless the injury is inflicted after his peril is discovered.</p> <p>4. Master and Servant — Injuries to Servant — Deviation from Regular Employment. — Where a person employed by a railroad as car inspector voluntarily undertook, without authority, the work of assisting a switching crew, the relation of master .and servant was temporarily. suspended.</p> <p>5. Same — Creation of Relation — Implied Contract.- — The mere knowledge and implied consent of an agent in charge of railroad yards, who saw an employe of the company leave his regular employment as car inspector and assist a switching crew, did not create by implication of law the relation of master and servant between the employe and the company while he was engaged in that work.</p>

<p>1. Elections — Primary Elections — Officers—Offenses—-Indictment Under Cr. Code Prac., section 122, subsection 2, providing that an indictment containing a statement of the act constituting the offense in> ordinary and concise language shall be sufficient, an indictment alleging that accused, as judge of election at a primary election, performed his duties in such a way las to hinder the objects of the election by marking the ballots of electors, though none of them were blind nor physically disabled, states an offense denounced by Ky. Stats., 1903, sec. 1577, punishing any officer who shall perform his duty in such a way as to hinder the objects of the law, since section 1475 only authorizes an election officer to mark the ballot of an elector who is illiterate or blind or physically disabled.</p> <p>2. Same — Statutes—Construction.—Ky. Stats., section 1552, providing that an act denounced an offense by the law concerning elections shall be an oftense in primary elections, and section 1563, declaring that the officers of primary elections shall be subject to the same limitations as officers of regular elections, and any act denounced by the general laws as an offense in case of officers of regular elections shall be an offense in case of officers of primary elections, extend section 1577, punishing election officers who shall perform their duty in such a way as to hinder the objects of the law, to officers of primary elections.</p> <p>3. Same. — A primary election officer, who, in such a way as to hinder the object of the law, marked the ballots of electors who were not blind nor physically disabled, violated Ky. Stats. 1903, section 1577, punishing election officers who shall perform their duties in such a way as to hinder the objects of the law.</p> <p>4. Same — Offenses—'Proof.—To convict an election officer of a violation of Ky. Stats. 1903, section 1577, punishing an election officer who shall willfully perform his duty in such a way as to hinder the objects of the law, it must appear not only that he willfully committed the acts charged, but that they were committed with the intent to hinder the objects of the election law, and that they did so hinder, or were reasonably calculated so to do.</p> <p>5. Same — Marking Ballots — Statutes'.—The duty of marking the ballots of illiterate, blind, and physically disabled electors must, under the express provisions of 'Ky. Stats. 1903, section 1475, be performed by the clerk of the election, though an accidental performance of such duty by a judge or sheriff of election does not amount to a violation of section 1577, punishing election officers who shall perform their duties in such a way as to hinder the objects of the election laws.</p> <p>6. Same — Indictment— Sufficiency. — An indictment charging a primary election officer with performing his duties in such a way as to hinder the objects of the election law, in violation of Ky. Stats. 1903, section 1577, which alleges that on a designated date the regularly constituted governing authority of a political party of the state held a primary election in the state; that for at least 40 days prior to such election the committee gave public notice thereof, etc.; that on such day accused was acting as a judge of election in an election precinct, etc. — sufficiently alleges the holding of a primary election as authorized hy law.</p>

<p>CASE 74. — ACTION BY THE COMMONWEALTH AGAINST CHATTANOOGA IMPLEMENT & MFG. CO TO RECOVER A PENALTY. —</p> <p>Appeal from Carlisle Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Prom a judgment dismissing the petition the Commonwealth appeals —</p>

<p>CASE 75. — ACTION BY BETTIE PARRISH AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. FOR DAMAGES TO HER STOCK BY FAILURE TO BUILD FENCES AND CONSTRUCT CERTAIN CATTLE GUARDS —</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>NOTE BY REPORTER.</p> <p>This opinion is in response to, a petition for rehearing in the original case of Parish v. L. & N. R. R. Co., decided January 20. 1904, -and reported in 25 Ky. Law Rep., p. 1524, and 78 S. W. 186, the original opinion having been withdrawn by an order of the Kentucky court of appeals.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. In this petition, for rehearing it is argued that the opinion of the court in this case (25 Ky. Law Rep., 1524, 78 S. W., 186) in ■regard to the duty of the railroad company to, erect and maintain cattle guards- through appellant’s open pasture, is not the law of this State. (Ky. Stats'., section, 1793; McKee v. C., N, O. & T. P. R. Co., 102 Ky., 253; L., H. & S,t. L. R. Co. v. Beauchamp, 21 Ky. Law Rep., 1476; Bemis v. Conn. R. Co., 1 Am. Rep., 339; Pay-ton v. L. & N. R. Co., 24 Ky. Law Rep., 1896; Elliott on Railroads-, 1196; Am. & Eng. Ency. -of Law, vol. 7, pp. 906, 912; Rorer on Railroads, 616; Birmingham, etc., R. Co-, v. Parsons, 27 L. R. A., 264.)</p> <p>2. The court is in error in this case when it decides that under the law, the duty of the railroad company to erect a fence along its portion of the right of way arise® without three months’ notice in writing from the adjoining land owner. Under the law, a railroad company is- required to build a fence only through improved or enclosed lands,, and this, duty does not arise until after the complaining land owner has erected a fence on one-half of the line, and otherwise complied with the statute on his part. (Ky. Stats., section® 1784, 1795; Payton v. L. & N.. R. Co., 24 Ky. Law Rerp., 1896; Am. & Eng. Ency. of Law, 890; O. & N. R. Co. v. Courts, 22 Ky. Law Rep., 672; Younger v. L. & N. R. Co., 19 Ky. Law Rep., 506.)</p> <p>3. The fencing statutes are an exercise of the police power of the State, and, under the present law, the land owner is not vested with the power to determine on which, side of the railroad, right of way the company shall erect a fence and require it to arec • same on one entire side. Such a statute would he unconstitutional. The present statute, where fencing is required under the law, provides that each shall construct “one-half of tihe distance of the division, line” on each side of the right of way. (Ky. Stats., sections 1790, 1791; O. & N. R. Co. v. Todd., 91 Ky., 175.)</p> <p>4. The plaintiff’s petition .as amended is fatally defective, because she fails to 'allege that she on her part had complied with, the law before suit filed. She also fails' .to negative the exceptions embodied in the statute, which excuse the railroad company from erecting a fence except under certain conditions and after certain things have been done 'ey the complaining land owner.. (Ky. Stats., sections 1780, 1799; Belcher v. L. & N. R. Co., 89 Ky., 193; Wills'v. Walters, 5 Bush, 352; Younger v. L. & N. R. CO'., 19 Ky. Law Rep., 506.)</p> <p>5. The damages in tihis ease are impossible of accurate ascertainment, and too remote to constitute the basis of recovery. The wife is noit 'entitled in Kentucky to the time and services of her husmead, as a matter of law.</p>

<p>1. Executors. — Actions Against Executors — Statutory Provisions —Time .to Sue — Limitations.—A proceeding by the sheriff in the county court under Ky. Stats. 1903, section 4241, to require the personal representatives of a deceased taxpayer to list property omitted from assessment, was not an action within Ky. Stats.., 1903, section 3847, prohibiting the bringing of any action, other- than to settle the estate, against a decedent’s estate within six months of the qualification of its personal nepreseptative; the proceedings bging merely a man-' ner of assessing property, .and not in essence judicial^ •</p> <p>2. Same' — Suits by the Commonwealth. — Statutory provisions ‘ limiting the time within which! actions can be brought against the personal representatives bf a decedent do' not apply to the commonwealth, unless by their express terms or their necessary implication it is clear they were meant to so- apply.</p>

<p>CASE 77. — PROCEEDINGS BY C. S. MORELAND AGAINST THE CHESAPEAKE STONE CO TO CONDEMN A TRAMWAY. —</p> <p>Appeal from Carter Circuit Court.</p> <p>M. M. Rbdwine, Circuit Judge.</p> <p>From a judgment of the Circuit Court affirming a judgment of the County Court defendant appeals.—</p> <p>The right of eminent domain is the right of a state or nation, or of those to whom the right and power has been lawfully delegated, to condemn private property for public use and to appropriate same for such use upon paying the owner just compensation to be ascertained according to law. West River Bridge Co. v. Dix, 6 Howard (U. S.), 507, 536; 12 Law Ed., 535. This being the full scope of the doctrine of eminent domain, the sovereign cannot exceed it or delegate any further right to take the private property of the citizen. Therefore, the legislature has no authority to grant to private or other persons the right to take private property for anything short of public use.</p> <p>AUTHORITIES .CITED.</p> <p>Shake v. Frazier, 94 Ky., 143; First Lewis on Eminent Domain, 2d Ed., 158; Constitution of Ky., section 242; Highland Bay Gold Mining Co. v. Strickley, 28 Utah, 215; Shall v. Gorman Coal Co., 118 111., 427; Acts Ky. Legislature 1904, ch. 126, section 1; Ky. Stats., sections 4289, 4290.</p> <p>• The act of the Kentucky legislature under which this proceeding was had, under chapter 126, Acts of the General Assembly of 1904 (see Acts 1904, p. 311), is not an act allowing the taking of private property for private use, as stated by appellant. But it is simply -an act permitting a private person to condemn a right to use a part of another’s land for certain purposes. In fact, it only gives an easement, and it may be used by any other person, and is not a private use at all, but a private person may condemn- it for the use of hims-elf iand others. The act provides that it shall not operate so as to give any person, firm or corporation, exclusive use of said passage, but that any other person, firm or corporation, shall have the right to use it by paying compensation therefor, and if not agreed upon, then by condemnations proceedings.”</p>

<p>CASE 78. — SEPARATE PROCEEDINGS BY THE 'COMMONWEALTH, BY AUDITOR’S AGENT, AGAINST W. A. STEELE AND J.'H. HICKMAN TO COMPEL THE LISTING OF OMITTED .PROPERTY FOR TAXATION. —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. P. Birkhead, Circuit Judge.</p> <p>Prom the judgment the Commonwealth Appeals.—</p> <p>A franchiser paying corporation is forced und'er our law to pay tax on all its capital, whether invested in tangible property or not, at its earning capacity, and if a non-franchise paying corporation or its stockholders, is to escape taxation on every thing except its tangible property, and thus its stockholders escape taxation on the stock they own, this record discloses the had business judgment of the investment of funds in a Lanchise paying corporation, because only a few franchise corporations have such values of stock, as the records in this case show this stock has, and if the contention of appellee is sustained and their stock held exempt from taxation our statute thus provides for the exemption of a vast volume of producing wealth in this state, instead of requiring uniformity of taxation as required by our Constitution.</p> <p>AUTHORITIES CITED.</p> <p>Constitution of Ky., section 172; Henderson Bridge Co. c. Commonwealth, 99 Ky., 623; Ky. Stats., section 4085; Commonwealth v. C. & O. Ry. Co., 25 Ky. Law Rep., 1128; Marion Nat’l Bank v. Burton, 28 Ky. Law Rep., 864; Bank of Commerce v. State of Tenn., 161 U. S. (40 L.'Ed., 649); Owensboro Nat l Bank v. Owens>boro, 173 U. S. (43 L. Ed., 851).</p> <p>POINTS AND AUTHORITIES.</p> <p>First. — The owners of shares of stock in corporations which are not required to pay - a franchise tax, as well as the owners of stock in corporations which do pay a franchise tax. are not required, under the laws of the State of Kentucky, to assess their shares of stock for taxation.</p> <p>Second. — In all cases where the shares of stock are exempt from taxation, then any premium that said stock may sell for in the market over and above its par value is also exempt from taxation. Ky. Stats., sections 4077 and 4078; Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 165; Providence Banking Co. v. Webster County, etc., 108 Ky., 527; Aetna Life Insurance Co., etc., v. Coulter, Auditor, etc., 115 Ky., 799; Ky. Stats-., section 4088; Commonwealth v. Thomas, 119 Ky., 215;; Ky. Stats., section 4085; Muir’s -Committee v. Commonwealth, 14 Ky. Law Rep., 478; Louisville Savings Bank v. Commonwealth, 14 B. Monroe, 329; Ky. Stats.,- section 14, article 6, title “Revenue and Taxation;” Commonwealth v. First Nat’l Bank of Louisville, 4 Bush, 98;. Act of Legislature of February 9, 1865 (Myer’s Supplement to Revised Statutes, 482), section 1; 2 Revised Statutes, ch. 83, section 1, article 2, p. 239; 2 Revised Statutes., ch. 83, article 10, 266, section 1; Louisville & Evansville Mail Line Co. v. Barbour, Sheriff, etc., 88 Ky., 73; Wlbittaker, Auditor’s Agent, v. Brooks, 90 Ky., 68; Board of Councilmen of City of Frankfort v. Fidelity Trust & Safety Vault Co., 23 Ky. Law Rep., 908; Callahan, Sheriff, v. Singer M’f’g Co.-, 29 Ky. Law Rep., 123; L. & N. R. R. Co. v. Johnson, etc., 11 Ky. Law Rep., 118; Livingston, etc., v. City of P-aducah, 80 Ky., 659.</p>

<p>CASE 79. — ACTION BY MARY H. McCLURE’S EX’R ‘AGAINST C. L. AND H. A. KING ON LAND NOTES INVOLVING PRIORITIES OF LIENS, SUBROGATION ANDESTOPPEL. —</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>From the judgment p-lantiff appeals.</p> <p>SUBJECT DISCUSSED.</p> <p>1. Subrogation</p> <p>AUTHORITIES CITED.</p> <p>Brant on Suretyship and Guaranty (3d Ed.), section 338; Am. & Eng. Encye. of Law, vol. 2Y, p. 211; Willingham v. O. V. Banking & Trust Co., 22 Ky. Law Rep., 158; Columbia F. & T. Co. v. Kentucky Union Ry. Co., 60 Fed. Rep., Y94; Shields on Subrogation, section 12Y; Hollingsworth v. Floyd, 2 Har. & G., 91; Insurance Co. v. Dorsey, 3 Md. Ch., 334.</p> <p>2. The creditor’s right in the lien must be entirely divested before the surety can be subrogated by operation of law. Magee v. Leggett, 48 Miss., 139; Bank v. Benedict, 15 Conn., 43Y; Cannet v. Blodget, 39 N. H., 152; Harlan v. Sweeney, 1 Lee, 682; Gilliam v. Esselman, 5 Sneed, 86; Kyner v. Kyner, 6 Watts, 221.</p> <p>PROPOSITIONS DISCUSSED.</p> <p>Where appellee is induced by the .appellant’s representations or actions to purchase real estate notes under the belief that they are first liens upon real estate, the appellant is estopped from asserting that notes held by him are a prior lien upon said real estate.</p> <p>AUTHORITIES CITED.</p> <p>Wimmer v. Ficklin, 14 Busk, 193; 16 Cyc., 755; Dodge v. Pope, 93 Ind., 480; 16 Cyc., 770; Crawford v. Colyer, 12 Ky. Law Rep., 990; Doss v. Kinckloe, 36 Ky. Law Rep., 452; 16 Cyc., 770; 4 R., 843.</p>

<p>CASE 80. — ACTION BY THE ADMINISTRATOR OF ARRETUS HOWARD AGAINST W. H. HUNTER FOR DAMAGES • FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE. —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>Des-th — Action-—Parties.—Const., section 241, provides that when*ever death results from negligence or wrongful act damages may be recovered; the action, till otherwise provided by -law, to be prosecuted by decedent’s personal representative^ and till otherwise provided the recovery shall form a part of the personal estate. Ky. Stats. 1903, section 6, provides that when death results from negligent or wrongful act damages may be recovered, and the action shall be prosecuted by the personal representative. Section 4 provides that the widow and minor children of one killed by the careless, wanton, or malicious use of firearms or other deadly weapons may have an action therefor. Held, that the administrator of one whose death was caused by the wrongful use of firearms had a right of action therefor; deceased not being survived by widow or child, and the words “wrongful act” as used in the Constitution and statute embracing every injury that might be committed against the person, whether negligently done or not.</p> <p>We respectfully submit that it would not do to read into section 241 of the Constitution that the action given therein is not allowed to the personal representative of an unmarried man, or to one whose life was wrongfully taken by a pistol or gun shot instead of a fence rail of a rock. N-o such discrimination is attempted by the plain language of this section, and we think none will be attempted by the court.</p> <p>AUTHORITIES CITED.</p> <p>Constitution of Kentucky, Section 241; Passamaneck’s Admr. vs. Louisville Ry. Co., 99 Ky. 409; Henderson’s Admr. vs. Central &e., Ry. Co., 86 Ky. 389; Jordan’s Admr. vs. Cincinnati, &c., Ry. Co., 89 Ky. 40; Wright vs. Woods’ Admr., 96 Ky. 56; Thomasi Admr. vs. Roysiter, 98 Ky. 206; McClure vs. Alexander, 15 Ky. Law Rep. 732; East Tennessee Telephone Co. vs. Sims, 99 Ky. 409.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There are only two’ .statutes in Kentucky for which, damages can be recovered for injury resulting in death. (Section 6, chapter 1, Kentucky Statutes; section 4, chapter 1, Kentucky Statutes.)</p> <p>2. The terms used in the petition are inconsistent, and contradictory of each other. (Webster’s Dictionary defining word, "wilful;” Anderson vs. Territory, 18 Pacific Rep. 21; United States vs. Boyd, 45 Fed. Rep 851.)</p> <p>3. No action could be maintained at common law for damages for an injury resulting in death, but such right is. exclusively a statutory remedy. (Eden vs. Lexington & Frankfort R. R. Co., 14 B. M. 165; O’Donognue v. Akin, 2 Duvall 478; Harris v. Ky. Timber & Lumber Co., 19 Ky. Law Rep. 1731; Gregory vs. I. C. R. R. Co.r 26 Ky. Law Rep. 76.)</p> <p>4. The personal representative cannot maintain this action but only widow or child of decedent. (Donahue vs. Drexler, 82 Ky. 157; McClure, £c., vs. Alexander, 15 Ky. Law Rep. 732.)</p>

<p>■Homestead — Right of Widow and, Children. — Under Ky. Stats. 1903, section 1707, providing that a homestead shall be for the use of the widow, so long as she occupies it,, and of the unmarried children of the deceased husband till the youngest is of age, but said land may be sold, subject to the right of the widow and children, if necessary to pay decedent’s debts, the widow and children are entitled to such homestead as deceased, if living, could have claimed under sections 1702, 1703, 1705, so that, the homestead right being an indivisible • property of greater value than $1,000, the whole property may be sold for decedent’s debts, and $1,000 of the proceeds be set aside for the use of the widow and children for such time as they would be entitled to use of a homestead.</p>

<p>1. Statutes — Rules of Construction — Purpose of Act, — If a reason, can be discovered for a particular construction of a statute, especially of a revenue statute, which construction would deprive the treasury of revenue, such construction will be discarded in favor of one that will apply uniformly to. all persons engaged in the same calling, and so as to raise revenue.</p> <p>2. -Intoxicating Liquors — Licenses—Statutory Provisions — Construction of Act. — Acts 1906, p. 193, chapter 22, subdivision 4, requiring licenses from, wholesale liquor dealers, provides that “For each agency in this state established by resident brewers or resident wholesale dealers in domestic beers or malt liquors, * * * a license fee shall be paid.” Held, that the fee is required to- be paid not only for each agency in the state established by resident brewers, but must also be paid by each resident wholesale dealer in domestic beers or malt liquors.</p> <p>8. Same. — Acts 1906, p. 193, chapter 22, subdivision 4, taxing certain occupations, does not include in the general provision enumerating the taxable occupations that of resident wholesale dealer in domestic beers cr malt liquors, but it is included in the specific description in a later section. Held, that the general description yields' to the specific one, and ■ the latter section extends 'the former so -as to include such -occupation.</p>

<p>1. Limitation of Actions — Executors—Final Account — Surcharge. —Where an executrix’s final account was settled December . 31, 1895, a proceeding to surcharge it for misappropriation of funds by the executrix, not instituted until August 25, 1906, was barred by Stat. 1903, section 2519, providing that no action for relief for fraud or mistake shall be brought after 10. years from the perpetration Of the fraud, etc.</p> <p>2. Executors — Accounting—Right to. Surcharge. — Where an ancestor bequeathed his entire estate to his wife, who was also his executrix, for life, the right of the executor of .a remainderman to surcharge the settlement of the executrix for fraudulent misappropriation of the capital of the estate was entirely distinct from and independent of his right to proceed against the widow as life tenant.</p> <p>3. Limitation of Actions — Suspension—Statutes.—An action to surcharge the settlement of an executrix’s account for fraud is not within Stat. 1903, section 2543, declaring that the provisions of the chapter shall not apply to a continuing and subsisting trust, etc., which includes only such continuing trusts as entitled the trustee to hold the estate independent of the cestui que trust.</p> <p>4. Same — Equitable Rights — -Application.—Under Stats. 1903, section 2522, providing that an action for relief not otherwise provided for can only be commenced within 10 years next -after the ■ cause of action accrued, the statutes of limitation apply to all actions, whether based on -equitable or legal rights.</p>

<p>CASE 84. — PROSECUTION AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY FOR MAINTAINING A PUBLIC NUISANCE. —</p> <p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Defendant convicted and appeals-.</p> <p>THE LAW.</p> <p>That a railroad óompany has the right in this state to run its trains at any reasonable rate of speed is the settled law of the state. (Louisville, Cincinnati & Lexington Railway Company v. the Commonwealth, 80 Ky. 143.) But, as a protection to the ' traveling public, the company is required to. give the warning signals.</p> <p>It is not contended by the commonwealth in this indictment that the rate of speed in any way contributed to the danger. The danger consisted in a failure to give proper warnings. It is not denied,'in fact it is admitted, that every precaution prescribed by the legislature, has been observed by the appellant, and we submit that the delegation by the legislature of a right to the railroad commissioners to determine what precautions are necessary for the public safety, coupled with the statute prescribing exactly the signals required at crossings is an exact determination of the company’s duties, and that no jury has the right to either increase or diminish these requirements. We submit that the appellant has violated no law, and that the verdict and judgment in this case is illegal and unwarranted, and we respectfully ask a reversal.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, section 786; Kentucky Statutes, section 774; Louisville, Cincinnati & Lexington Railway Co. v. Commonr wealth, 80 Ky. 143.</p> <p>“To secure the reasonable and proper use and enjoyment of the public road by the public and of the railroad by its owners, each must be required to observe the maxim of law that every person is restricted against using his property to the prejudice of others.” (Cin. R. R. Co. v| Commonwealth, 80 Ky. 137.)</p>

<p>CASE- 85. — ACTION BY RACHEL RADERS ADMRX. AGAINST THE LOUISVILLE & NASHVILLE R. R...CO., FOR CAUSING THE DEATH OF HER INTESTATE.—</p> <p>Appeal from Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>From a judgment awarding a peremptory instruction in favor of defendant the plaintiff appeals.</p> <p>CASES AND AUTHORITIES CITED.</p> <p>1. The court erred in giving peremptory instructions to the jury to the prejudice of appellant. (Southern Ry. in Ky. v. Goddard, 89 S. W. 675; Miller v. Metropolitan Life Ins. Co., 8s S. W. 183; Fugate v. City of Somerset, 29 S. W. 979, 16 Ky. Law-Rep. 807; Budford v. L. & N. R. R. Co., 82 Ky. 286; Thompson v. Thompson, 17 Ben Monroe 22; Payne Clothing Co. v. Payne, 21 Ky. Law Rep 1226, 11 Bush 265; Wilmurth's Admr. v. 111. Central. R. R. Co., 76 S. W. 193; 111. Central R. R. Co. v. Murphy’s Admr., 97 S. W. 729; Davis v. Louisville, Henderson & St. L. Ry. Co., 97 S. W. 1122; K. & I. Bridge Co. vs. Sydon, 87 S. W. 989, and 26 Ky. Law Rep. 951; Price’s Admr. v. L & N. R. R. Co¡, 76 S. W. 836.)</p> <p>2. Petition is not defective because it does not negative contributory negligence. (Stephens on Pleadings, 350; Depp v. Louisville, &c., R. R. Co., 14 S. W. 363; Louisville, &c., Canal ■Co. v. Murphy, 9 Bush, 522; Louisville, &c., R. R. Co. v. Wolfe, 80 Ky. 82; Encyclopedia of Pleading and Practice, vol. 5, p. 1 to 4, inclusive.)</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The testimony shows that plaintiff’s intestate was not in a place of peril until tne engine was within a few feet of her, when she stepped upon the main track or close enough thereto to be instantly struck by the pilot beam of the engine after the cow-catcher had passed her. Decedent did not take, and counsel for appellant concede that decedent did not take, any precautions for her own safety. She .was guilty of contributory negligence as a matter of law, and the trial court properly instructed the jury that because of her own negligence, but for which the accident would not have happened, there can be no recovery in this case. (L. & N. R. R, Co., v. Creighton, 106 Ky. 42; Ib. v. Smith, 107 Ky. 178; L. & N. R. R. Co. v. Redmon’s Admx., 28 Ky. Law Rep. 1293; Brown’s Admr. v. L. & N. R. R. Co., 97 Ky. 228; Yates v. I. C. R. R. Co., 28 Ky. Law Rep. 75;, Freel’s Admr. v. L. H. & St. L. R. R. Co., Ib. 76; L. H. & St. L. R. R. Co. v. Hathaway’s Exor., Ib. 628; Smith’s Admr. v. I. C. R. R. Co., Ib. 723; L. & N. R. R. Co. v. Daniel-, Ib-. 1146; I. C. R. R. Co. v. Johnson, 97 S. W. 745-; Hoskins’ Admr. v. L. & N. R. R. Co., 17 Ky. Law Rep. 78; Johnson v. Paducah Ldy. Co., 29 Ky. Law Rep. 59; Groves v. jl,. & N. R. R. Co., 96 S. W. 439, 29 Ky. Law Rep. 725; Elliott v. L. & N. R. R. Co., 30 Ky. Law Rep. 471; Gregory v. L. & N. R. R. Co., 25 Ky. Law Rep. 1986; Davis v. L. H. & St. L. Ry. Co., 97 Ky. 1122; Parkerson’s Admx. v. L. & N. R. R. Co., 25-Ky. Law Rep. 2260; L. & N. R. R. Co. v. Mounce’s Admr,, „2§ Ky, Law Rep. 933; R. Co. v. Williford, 115 Tenn. 115; Elliott v'.' C. M., Sea., R. R. Co., 150 TJ. S. 248; Patton, Admr. v. Ry. Co.; 89 Tenn. 379; Brennan v. D. L. & W. Ry Co., 83 Fed 124, 27 C. C. A. 418; Grethan Admr. v. C. M. & St. P. R. R. Co., 22 Fed. 610; K. C. F. S. & M. Ry. Co. v. Cook, 66 Fed. 113, 13 C. C. A. 364; L. H. & St. L. R. R. Co. v. Jolly’s Admr., 28 Ky. Law Rep. 989.</p> <p>2. It was negligence in decedent, whose hearing and sight were obstructed and obscured by the sunbonnet and umbrella not to have exercised greater precaution in approaching the railway track than would have been required of her if her sight and hearing had not been thus voluntarily impaired. (Thomp-’ son’s Commentaries on the Law of Negligence, vol. 2, sections 1658, 1659, 1660; L. & N. R. R. Co. v. McCombs, 21 Ky. Law Rep. 1232.1</p>

<p>CASE 86. — ACTION BY THE HAZARD BANK AGAINST THE GERMAN INSURANCE 'COMPANY ON A FIRE INSURANCE POLICY. —</p> <p>Appeal from Perry Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals' —</p> <p>ERRORS COMPLAINED OF.</p> <p>1. The court erred, in overruling the motion to quash the summons and return thereof.</p> <p>2. The court .erred in overruling the special demurrer to the jurisdiction of the court.</p> <p>3. The plea to the jurisdiction of the court contained in the first paragraph of the answer, should have been sustained, and the action dismissed.</p> <p>4. The court erred in not sustaining appellants motion to instruct the jury to find for the defendant.</p> <p>5. The court erred in refusing to permit the amended answer to be filed, because it conformed to the proof.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, section 71; Ky. Mut. Security Fund Co. v. Logan’s Admr., 12 Ky. Law Rep. 328; Sun Mutual Ins. Co. v. Crist, 19 Ky. Law Rep. 305; Cyclopedia Law & Pro., vol. 3, pp. 617, 638 and 653; Henderson v. Buckley, 14 Ben Monroe 294.</p> <p>AUTHORITIES CITED.</p> <p>1. As to jurisdiction: (Civil Code, sections 71, 763; Kentucky Statutes, section 631; Kentucky Mutual Insurance Company v. Logan, 90 Ky. 364; Mutual Fire Insurance Company of New York v. Hammond, 106 Ky. 386; 14 Bush 74; 93 Ky. 315; 5 Ky. Law P.?n. 250; American Fire Insurance Company v. Bland, 40 S. W. 670.)</p> <p>to defendant’s motion to instruct the jury: (Tandy v. ,. Oliver,. 19 Ky. Law Rep. 223.) A® to amended answer: (Civil Codo, sections 338 and 756.)</p> <p>3. As to notice to repair: (Fireman’s Fund Insurance Company • v. Caye, &e., 14 Ky. Law Rep. 310; 13 American and English Encycliopedia o-f Law 379; Good v. Buckeye Mutual Fire Insurance Company, 43 Ohio Stat. 394; Same 380; Reiger v. Mechanic Insurance Company, 69 Mo. App. 674.)</p> <p>4. As to' appraisement and award: (Hall v. Norwalk Fire Insurance Company, 57 Ct., 105; Bangor Savings Bank v. Niagara Fire Insurance Company; 85 Me., 68; 3 Cyc„ 638; 14 B. Monroe, 236; 2 American and English Encyclopedia of Law, 642, 645, 646; 16 N. S., 188; Ky. Stats., section 448; Civil Code, section 679; 86 Ky., 23; 106 Ky., 515; 18 Ky. Law Rep., 860; 13 American and English Encyclopedia of Law, 363; Bradshaw v. Agricultural Insurance Company, 137 N. Y., 137; Hartford Fire Insurance Comjjaiiy v. Asher, 100 S. W., 233.</p>

<p>1. Criminal Law; — Appeal—Supersedeas—Operation and Effect.— Criminal Code Prac., section 348, provides that an appeal in a prosecution, for a misdemeanor, must be prayed during the term at which the judgment is rendered, and shall be granted on condition that the record be lodged with the clerk of the Court of appeals within 60 days after judgment. Section 349 provides that the appeal shall not suspend the execution of the judgment, unless defendant execute before the clerk of the circuit court a bond for the payment, if the judgment be affirmed, of the fine and costs, and cause the same to be copied into the transcript, on which being lodged with the clerk of the court of appeals he shall issue a certificate that execution of the judgment is suspended. Held, That the judgment .appealed from was suspended on the execution of the bond, and not only from the time of filing the transcript witb the clerk of the court of appeals and issuance of his certificate.</p> <p>■2. Same. — Constitution section. 227 provides that the- judges of the county court, justices of the peace, and other officers named shall be subject to indictment for malfeasance in office or willful neglect, and, on -conviction, that their respective offices shall become vacant, but that any such officer shall have the right to appeal to the court of appeals. Ky. Stats., 1903, section 3748, enacted in pursuance of section 227, provides that any such officer on conviction shall be fined as therein prescribed, and that the office held by him shall become vacant, but that he may appeal to a court of appeals. Held, That where, on conviction of a member of the fiscal court of malfeasance in office and judgment entered imposing a fine and declaring his office vacant, he appealed, and executed a supersedeas bond, the operation of the judgment was thereby suspended, both as to ti*e fine and the vacation of his office, and that, pending appeal, he was entitled to perform the duties of his office.</p>

<p>1. Contracts — Validity of Assent — Fraud.—A. written contract may be impeached for fraud practiced either in its execution or in its obtention.</p> <p>2. Cancellation of Instruments — Fraud—Sufficiency of Evidence. —Fraud or mistake, to set aside a written contract, must be established by substantial and satisfactory proof.</p> <p>3. Contracts — Execution—Fraud.—Where a person by ostensibly reading a contract to another obtains his signature to an, agreement materially different from the reading, it is a fraud which invalidates the contract.</p> <p>4. Principal and Agent — Liability to Third Person — Fraud of Agent. — Where a principal accepts an order for goods .obtained by an agent, it is bound by the agent’s acts in obtaining it, although he violated the principal’s instructions.</p>

<p>1. Municipal Corporations — Special Charter — Implied Repeal.— The legislation for the incorporation and government of cities of the first class, adopted pursuant to Constitution, 1891, sections 166, 167, requiring the General Assemoly to provide by. general laws for the government of cities, etc., is in lieu of existing legislation on the subject, and repeals by implication a special charter given to a city of the first class.</p> <p>2. Same — Officers—Public Works — Chief Engineer. — Ky. Stats., 1903, section 2810, providing that each executive board of cities of the first class may appoint a chief of each department under its control, and empowering the board of 'publio works to appoint a chief engineer, adopted in obedience to Constitution, 1891, sections 166, 167, requiring the General Assembly to provide by general laws for the government of cities', etc., repeals the special charter of Louisville, creating the office of principal engineer, providing for the manner of filling it, and its term.</p> <p>3. Same — Removal of Engineer. — The office of chief engineer is created by Ky. Stats., 1903, section 2810, empowering the board of public‘works in cities of the first class to appoint a chief engineer, and the officer is a chief of a department under the control of the board of public works, and removable by it without notice and without cause.</p> <p>4. Officers — Tenure—Removal.—Where neither the Constitution nor the statutes fix the term of office, the appointee holds at the pleasure of the appointing power, though it attempts to fix a- definite term.</p> <p>5. Municipal Corporations — Board of Public Works' — Chief Engineer — Term of Office. — The board of public works of a •city of the first class created by Ky. Stats., 1903, section 2824, and empowered by section 2810 to appoint a chief engineer, has no power to appoint a chief engineer for a fixed term, but he is removable at the pleasure of the board.</p>

<p>1. Constitutional Law — Equal Protection of the Laws. — A woman, is a person, and so is a corporation, within the contemplation or .section 1 of the fourteenth amendment to the Federal Constitution, and entitled to the equal protection of the laws.</p> <p>2. Statutes' — Enactment—Assent of People Affected. — Unless the Constitution so requires, no legislative act is dependent for its validity on the assent of the people whom it affects.</p> <p>3. Municipal Corporations — Annexation of New Territory. — Tihie creation of or annexation of new territory to a town is a matter within, the sole discretion of the Legislature, and does not in any manner depend on the will of a majority or any of the inhabitants living within the territory.</p> <p>4. Same. — The act of incorporating towns and enlarging or restricting their boundaries is. legislative and political, and in. its exercise of discretion in such matters the Legislature has plenary power.</p> <p>5. Constitutional Law — Municipal Corporations — Enlargement of Territory — Equal Protection of the Laws. — Ky. Stats., 1903, section 3483, provides that whenever it shall be deemed desirable! to annex any territory to a city of the fourth class, or to reduce the boundaries thereof, the board of council shall by ordinance accurately define the boundary of the territory proposed to be annexed or stricken off, that the ordinance shall be published or posted, etc., and also provides for a protest by resident voters of the territory to be affected. Held, That the statute was .not violative of the ■ fourteenth amendment to section 1 of the Constitution of the United States by reason of the fact that some of the landholders affected might be women, or corporations.</p>

<p>1. Gift — Inter Vivos — Requisites.—In a gift inter vivos the donor must not only part with possession of the property, but with dominion over iti; it being unconditional and irrevocable.</p> <p>2. Samé — Causa Mortis. — A gift causa mortis is one by a sick person, who, apprehending his dissolution, delivers or causes to be delivered to another the possession of any personal goods to keep .as his own in case of the donor’s death, and it only takes effect in case the donor dies, being conditional and revocable by the donor at any time.</p> <p>3. Same — Delivery—Evidence.—Evidence that decedent told, defendant to go to the cupboard and get a bank pass-book that was there, and that on hiis bringing it she handed it back to him, siaying, “This is. yours,” requesting him to pay her debts and mot squander it, contained all the elements necesisary to show a complete delivery, whether it wias treated as a gift initier vivos or causa mortis.</p> <p>4. Same — Subject of Gift — Money in Bank. — There may be a gift of money on deposit in a bank by the delivery of the passbook, whether iit be a savings bank or an ordinary deposit bank.</p> <p>5. Same — Evidence.—On the issue as to whether or not there Was a gift of money on. deposit in a bank, evidence that previous to the gift the donor had' expressed an intention to leave the property to the donee was admissible.</p> <p>6. Appeal — Review—Questions of Pact — Conflicting Evidence. — ■ Where the testimony is conflicting, it is the province of the jury to weigh and. determine its sufficiency.</p>

<p>1. Taxation; — Collection—By “Law.” — The term by “law,” as used in Ky. Stats., 1903, section 4129, providing that the sheriff shall he collector of all taxes, unless the payment thereof is hy law directed to he mad© to some officer, means a statute, and does not include an order of the fiscal court.</p> <p>2. Same — Appointment of Collectors — Special Assessments.— Under Ky. Stats., 1903, section 4131, authorizing the county court where there is no sheriff to appoint a collector of all taxes due the State, county, or taxing districts, or a separate collector for money due the State, county, etc., authorized to he collected by the sheriff, only one collector may he appointed to collect the taxes for any division, and, where one is appointed to collect county revenue, another earn not he appointed to collect some special assessments therein..</p> <p>3. Same — Duties of Collectors. — The collectors authorized to- he appointed take the place of the sheriff and fiU his office so far as the collection of revenue is concerned, and it is their duty to collect all taxes levied, and collectible for that year, t whether State or county, regular or special.</p> <p>4. Same — Legality of Appointment — Collector of Special Taxes.— A nomination hy the fiscal court of a collector of a special tax is void.</p> <p>5. Same — Liability on. Official Bond. — Under Ky. Stats., 1903, section 4147, providing that if the sheriff or collector of revenue without reasonable excuse fails to pay to any person entitled thereto the amount due upon any claim allowed by the fiscal • court and payable out of the taxes levied by it, if collécted or collectible by him, he and his sureties shall be liable therefor, where a special levy was made by the fiscal court to pay a judgment against a county and a collector of State and county taxes, was appointed, and gave bond, and his attention was called .to the special tax, but he refused to. collect it, I but did not pretend that it was.not collectible, he and his sureties are liable on his official bond.</p> <p>6. Same — Necessity for Certification of Levy.. — It is the duty of the sheriff or collector of revenue to- take notice of the levy of taxes by the fiscal court and to collect and distribute it as by law required, and a special certification of the levy is not required.</p>

<p>CASE 93. — ACTION BY JOHN MURPHY AGAINST JACKSON . MOUNTS ON A REPLEVIN BOND. —</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>QUESTIONS INVOLVED AND AUTHORITIES CITED.</p> <p>Recovery for. breach of bond in action of claim and delivery. (Oivil Oode, section" 184; Bates v. Buchanan, 2 Bush, 117; Kentucky Land & Immigration Co. v. Crabtree, 80 S.'W., 1161.)</p> <p>' (No brief for appellee.)</p>

<p>CASE 94— ACTION BY CITY OP PADUCAH AGAINST J. L. JONES AND HIS SURETIES POR A VIOLATION OP HIS BOND TO THE CITY AS A SALOON-KEEPER.—</p> <p>Appeal from McCracken County.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p> <p>When regulations- are imposed, as in this case, the licensee i® criminally liable- for their non-observance. The defendant was found by the county commissioners “qualified,” and a license was issued to him upon the personal'trust that he would conduct the business according to the regulations. The s-ale -here m-ade to a m-inor was a violation of that trust, and a violation of law. It is no defense that the defendant had no intention to violate the law. “Good intentions” are said by the proverb to be a pavement for an-other place, but they are not a sound one for a barroom. The law has been violated. It looks to- the man it entrusted with the management of this business and holds him liable. It is immaterial wihe-tiher his liability is based upon his negligence in permitting the sale, or upon both, for the defendant is 'liable for a negligent sale from insufficient supervision of an agent as much as if he ordered the .sale. If the clerk, as Judge Cooley says, supra, being in possession of the keys, opens the saloon on Sunday for traffic, the licensee could not excuse himself from liability by his absence or ignorance; nor can he do so in the present case of a siale to the minor by being temporarily absent from the room. The defendant chose to seek for and assume t)he liabilities of the calling of a saloon-keeper, that he might enjoy its profits. He can not be allowed to enjoy its profits and assign his duties and liabilities to another.</p> <p>LIST OF AUTHORITIES.</p> <p>1. Is this action a penal one? (Ballowe v. Comth., 44 S. W., 646; Comith. v. Stringer, 78 Ky., 56; Cullinan v. Burkhard, 86 N. Y., 1003; Current law, vol. 4, p. 262.)</p> <p>2. Consent to conditions by.accepting license.—</p> <p>.(a) Right to regulate saloons delegated to the city. (Subsec. 10, section 3058, Ky. Stats. (1903); McNmty v. Toof, 75 S. W., 258; subsec. 23, section 3058, Ky. Stats. (1903); subsec. 25, section 3058, Ky. Stats. (1903); Cooley’s Constitutional Limitations, 743; Dunn v. Comth., 49 S. W., 813.)</p> <p>(b) Right of the city to adept and enforce such police regulations as may be expedient and necessary . (Abbott on Municipal Corporations, vol. 1, sieetionis 130-31-32-33; Lodamo V. State, 25 Ala., 64; Quintard v. Corcoran, 50 Conn., 34; Hawes v. Maxwell, 32 N. E., 152; People v. Eckman, 63 Hun. 209, 18 N. Y. 654; City of Providence v. Bligib, 10 R. I., 208; O’Flynn v. State, 66 Miss. 7, 5 South. 390; Hogan v. Chief Justice, etc., 27 Tex., 226; State v. Pierce, 26 Kan., 777; Green County v. Wilhite, 29 Mo. App., 459; State v. Walker, 56 N. H., 176; Brown v. Comth., 114 Pa., 335; Grainger v. Hayden, 17 R. I., 179; Jones v. Bates, 4 L. R. S., 495; Blockway v. David Petted, 7 L. R. A., 740; Indiana v. Gerhardt, 33 L. R. A., 313; State v. Beach, 43 N. E., 949; Decker v. Sargeant, 125 Ind., 404; Davis v. Fasiig, 128 Ind., 271; Black. Intox. Liquors, section 50; McKinney v. Salém, 77 Ind., 213; State, McKey, v. Bonnell, 119 Ind., 494; Moore v. Indianapolis, 120 Tnd., 483; Black, Intox. Liquors, section 51; Nelson v. State, 46 N. E., 941; Shay v. Muncie, 46 N. E., 138.)</p> <p>3. The liability of Jones for the acts of his agent. Dumain. (Locke v. Comth., 69 S. W., 763; Ky. Sfaitis., sections 2o70, 2571; Ellison, etc., v. Comth., 69 S. W., 765; Comth. of Mass. v. Steven, 11 L. R. A., 357; North Carolina v. Kittelle, 15 L. R. A., 694; State v. McBrtayer, 98 N. C., 619; State v. Scroggins, 107 N. C., 492; Farrell v. State, 32 Ohio St. 456, 30 A. M. Rep. 614; 1 Wharton, Crim. Law, 247, 341, 2422; 2 Wharton, Grim. Law, 1153; Carroll v. State; '73 Md., 551; Sitíate- v. Denson, 31 W. Va., 122; 11 Am. & Eng. Ency. of Law, 718; Mullerr- v. Buncombe County Oomrs.,. 89 N. C., 171; State v. Wallace, 94 N. C., 927; State v. MjcNeeley, 60 N. 0., 234; McCutcheon v. Peo-ple, 69 111., 606; Noecker v. People, 91 111., 491; M'ogler v. State, 47 Ark., 110; Edgar v. State, 45 Ark., 356; Waller v. State, 38 Ark., 656; Loeb Y. .State, 75 Ga., 258; Snider v. State; 81 Ga., 753; Wihliton v. State, 37 Mist#.; 379; Riley v. State, 43 Miss., 397; Dudley v. S-autoiinie, 49 Iowa, 650; People v. Roby, 52 Mich. 577, 50 Am. Rep. 270; People v. Blake, 57 Mich., 566; State v. Dickens, 2 N. C., 407; State v. Boyebb, 32 N. C., 366; State v. Hart, 61 N. C., 389; State v. Presmell, 34 N. C., 103; Scalfi v. State, 73 S. W., 441; Current Law, vol. 4, p. 262; Cornett v. Comth. (Ky.), 78 S. W., 853; Knott! v. Peterson, 101 N. W„ 173; Cullinam v. Kuch, 177 N. Y. 303, 69 N. E. 597; People v. Bussing, 100 N. W„ 396; People v. Lundell, 99 N. W., 12; People v. Krisel, 98 N. W., 850; Beane v. State, 80 S. W., 573; State y. Terry, 79 S. W., 998; Sinclair v. State, 77 S. W., 621; Pigford v. State, 74 S. W., 323; Comith. v. Nichols, 10 Met. 259, 43 Am. Dec. 432; Hanson v. State, 43 Ind., 550; State v. Pasnell, 2 Hump., 398; State v Mueller, 38 Minn., 497; Comth. v. Major, 6 Dama, 293; Comith. v. Park, 1 Gray, 553; Parker v. State, 4 Ohio St., 563.)</p> <p>Cities can- not enforce their civil contract by fines and penalties.. Neither oan cities enforce the State law by civil contracts. This bond is -a civil contract, as claimed by appellant, for the purpose of compelling parties who -are licensed by the city of Paducah to sell liquors by retail to observe the criminal law of tjbie State of Kentucky. It has no 'power to do' this. The Legislature in making it unlawful to sell liquor on Sunday prescribe a penalty for its violation. The Legislature has also-, by subsection 25 of section 3058, giving -the general council power to impose, enforce and collect fines and forfeitures', and to punish the violation of the laws of the city of the second class by fines- and imprisonment or both. But the general council of Paducah, has. not adopted any ordinance making it unlawful to sell liquor in the city of Paducah on Sunday, and it has not by any ordinance fixed any penalty for the violation -of the State law by selling liquor in Paducah on Sunday. The only way the city is- given power to enforce- the -observance of the criminal law is by punishing the. violator by fines and imprisonment or both, to be fixed by an .ordiimamce, and not the semblance of authority is given to tlie city to enforce the observance of the criminal laws of the State by civil contracts such as Utile bond in this case.</p> <p>CITATION OF AUTHORITIES.</p> <p>Equitable L. Assurance Society v. Comth., 28 Ky. Law Rep., 333; Prater v. Comth., 4 Ky. Law Rep., 334; Locke v. Comth., 113 Ky., S64; Ellisom et al. v. Comth., 69 S. W., 765; Ky. Stats., section 3058, subsec. 2-10 and 23; City of Covington v. Wood et al., 98 Ky., 345; Yick Wo v. Hopkins, etc., 118 U. S., 356.</p>

<p>CASE 95. — ACTION BY WILLIAM McCARLEY’S EXECUTOR AGAINST MARY N. BLACK ON A NOTE. IN WHICH SHE PLEADS HER NON-LIABILITY AS SURETY OP HER HUSBAND, WHO WAS PRINCIPAL ( THEREON. —</p> <p>Appeal from Hopkins Circuit Conrt.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>AUTHORITIES CITED.</p> <p>1. Oases wherein the operation of the “woman’s Act” (March 15th, 1894,), are discussed. (Section 2127, Ky. Stats.; Tompkins v. Triplett, 23 Ky. Law Rep., 395; Postell v. Crumbaugh, 23 Ky. Law Rep., 2193; Deposit Bank of Carlisle v. Stitt; 2T Ky. Law Rep., 671; Russell v. Rice, 19 Ky. Law Rep., 1613; Crumbaugh v. Postell, 20 Ky. Law Rep., 1366; Quisenberry v. Thompson, 19 Ky. Law Rep., 1555; Skinner v. Lynn, 21 Ky. Law Rep., 185; Planters^ Bank & Tlrust Co. v. Majors, 25 Ky. Law Rep., 702; Bowron v. Curd, 88 S. W. Rep., 1106.)</p> <p>2. Authority on right of defendant to testify against claim sued on by personal representative. (Hunter’s Adm'r v. March, 2 Ky. Law Rep., 240.)</p> <p>3. Oases in which court of appeals have declared it the duty of the trial court to define words and expressions. (“Renting”— Boltz v. Miller, ,23 Ky. Law Rep., 991; “Gross and Willful Neglect” — L. & N. R. R. Co', v. Yowell, 10 Ky. Law Rep., 721; “Negligence — Ordinary Care.” — L. & N. R. R. Co. v. Logsdon, 24 Ky. Law Rep., 1566; “Law and Facts” — Justices of Butler Co. v. Thomasson, 11 Bush, 235; “Actual Possession — Ownership”— McArthur v. City of Dayton, 19 Ky. Law Rep., 882.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Husband who is joint obligor in note with wife sued on by administrator of payee in. note' noit a competent witness. (Civil Code Prac., section. 606; Bright's Ex’rs v. Swinebroad, 21 Ky. Law Rep., 369; Phillips v. Farley, 23 Ky. Law Rep., 2201; Mullikin v. Mullikin, 15 Ky. Law Rep., 609; Andrews v. Haden, 88 Ky., 455; Alexander’s' Ex’rs v. Alford, etc., 89 Ky., 105.)</p> <p>2. Appellant not a competent Witness in suit by administrator of payee of her note, but having testified before tbe jury now estopped to complain. (Subsec. 2 of section 606, Civil Code, and division “C” thereunder; Bope v. Bope, 21 Ky. Daw Rep., 1376.)</p> <p>3. The Wedsinger Act (section 2127, Ky. Stats.), its spirit, land construction hy -tibtis- court. Not intended to enable a manried woman alone or in conjunction with her husband to perpetuate a fraud. Not applicable to case at bar. Doctrine' of estoppel. (Mundo & McGraw v. Anderson, 23 Ky. Daw Rep., 663; Tompkins v. Triplett, 23 Ky. Daw Rep., 305; Tichenor v. Owensboro Savings Bank .& Trust Co., 24 Ky Daw Rep., 145; Smith v. Stone, 17 B. M., 170; Billington v! McAlpin, 22 Ky. Daw Rep., 1282; Bush v. Starks, 23 Ky. Daw Rep., 1560; Grazure v. Frazure, 23 Ky. Daw Rep., 1990.)</p> <p>4. Facts and points in following cases cited by appellant, wholly different from tbe one at bar and not applicable. (Postell v. Crumbaugb, 20 Ky. Daw Rep., 2193; Deposit Bank of Car-lisle v. Stitt, 21 Ky. Daw Rep., 671; Russell & Co. v. Rice, 19 Ky. Daw Rep., 185; Planters? Bank & Trust Co. v. Majors, 25 Ky. Daw Rep., 702.)</p> <p>5. Not necessary for court to define meaning of ordinary words usad in -their customary .sense. (Basihfields Instruction to Juries, vol. 1, p. 253; J. V. Pilcher Mfg. Co. v. Teupe’s Adm’r, 28 Ky. Daw Rep., 1350.)</p>

<p>1. Statutes' — Title and Subject — Germane Provisions. — Sess. Acts 1906, p. 12, ch. 4, is entitled “An Act' to create the thirty-third judicial district of Kentucky and to change the twenty-sixth, twenty-seventh', and, twenty-eighth circuit court judicial districts of Kentucky, and to provide for the holding of court's in the said twenty-sixth, twenty-seventh, twenty-eighth, and thirty-third districts, and to provide for judges and commonwealth’s attorneys for same.” Held, That as ail the provisions' of the, act related to the establishment of the ■thirty-third judicial district and recited the changes in the other districts necessary to its creation the act contained but one subject, and its provisions, other than those for the appointment of the judge and commonwealth’s 'attorney, were germane to the title, so that the acit was not in violation of Constitution section 51, declaring that no law shall relate to moire than one subject, which shall be expressed, in its title, etc.</p> <p>2. Same — Effect of Partial Invalidity — Separate Provisions.— Thiat part of Sess. Act's 1906, p. 12, cb. 4, creating the thirty-third judicial district, which authorized the Governor to appoint the judge and prosecuting attorney in a newly created! district until the regular election in 1909, even if invalid, Was separable from the other provisions, and therefore did not affect the validity of the act as a whole.</p> <p>3. Courts — Judicial Districts' — Creation.—Statutes.—Sess. Acts 1906, p. 12, ch. 4, creating the thirty-third judicial district, being for the establishment of a new district, was not in contrayention. of Constitution section 134, providing that the judicial districts shall not be changed except at the first session after an enumeration, unless on the establishment of a new district.</p> <p>4. Same. — Constitutional Provisions. — Construction.—Constitution .section 128, provides that the Legislature at its first session ■after the adoption of the Constitution shall divide the State 'into judicial districts, and that in making the apportionment no county shall be divided, and the' number of districts', excluding those in counties having a population of 150,000, shall mot exceed one district for each 60,000 of the population of the entire State. Section 132 declares that the Gen-oral Assembly may establish additional districts, but that the whole number of districts, exclusive of counties having a population of 150,000, shall not exceed at .any time one. for every 60,000 of population of the State, .according to the last enumeration. Held, That the number of districts authorized is to be determined by dividing the population of the entire State by 60,000, and not by dividing the population of the State less the population of the only county having a population of more than 150,000 by 60.000.</p> <p>5. Same — “Population of tlhe State.” — The phrase “population of the entire State,” as used iu Constitution section 128, providing that in making apportionment of judicial districts the numbeir shah not exceed one district for each 60,000 of the population of the entire State, means all of the State’s inhabitants.</p>

<p>1. Damages- — Breach, of Contract — Waiver.—Undeir a contract for the construction of a railroad, providing that, if the- contractors' failed to complete- the work within the time specified, then all the reserved percentage due -them under the contract might he retained by the railroad company as liquidated- damages, tihle railroad company, on failure to complete the work within the time specified, ipso facto, became entitled to the reserved percentage, .and its right thereto was not waived by n-ot then terminating the contract and by allowing the contractors to complete the same.</p> <p>2. Same. — Thougn the railroad, on failure to complete the work within the t-ime specified, had the riglblfc -to retain the reserved percentage, yet it had no .right to retain the stipulated percentage on work done after the time fixed for performance.</p> <p>3. Contract — Breach—Right to Rescind — Waives-.-—-Where the construction of ia, railroad was not completed within the time specified in the contract, hut the contractors continued the work, with the consent of the railroad company, the railro-ad thereby waived its right to rescind the contract, and was hound to pay for the work at the contract price, and the contractors were hound to complete the work within a reasonable time, failing in which they would be liable for actual damages thereby sustained.</p>