Volume 127 — Kentucky Reports

<p>CASE 1. —ACTION BY THE MT. STERLING OIL & GAS CO. AGAINST C. S. RATLIFF, SHERIFF, TO ENJOIN THE COLLECTION OF CERTAIN TAXES.</p> <p>Appeal from Bath. Circuit Court.</p> <p>A. W. Young, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Militia — Armories — Expense of Maintenance — Statutes — “Other- County Buildings.” — Ky. Stiats., 1903, section 3948, provides that the “jailer of each county shall be superintendent of the public squarfe, court-hous-e, clerk’s office, jail, stray-pen and other public county buildings ct the seat of justice.” Section 356 requires the jailer to furnish fuel, lights, and water to the circuit court rooms, and allows him $2 a day therefor, to be paid out of the State treasury. Section 1749 provides against the allowance of a fee bill for ■any ex-officio services. Held, That the duty and expense of maintaining, lighting, heating, and janitor’s service for an armory erected at the seat of justice by the fiscal court at the expense o-f the county was not intended to be borne by the county jailer; the words “other county buildings” referring only to buildings of the smiae class as those specifically mentioned in- the section.</p> <p>2. Same. — Act March 21, 1904, (Laws 1904, p. 127, ch. 52), provides that where state guard companies are organized and furnished with public arms, in any county, the fiscal court of the county shall provide at the cost of the county an armory for drill and safe place for keeping the public arms. Ky. Stats., 1903, section 1840, provides that the fiscal- court shall have jurisdiction to appropriate county funds as authorized by law, to erect and keep in repair necessary public buildings, and secure a sufficient jail and a place for bolding court. Held,' That, tbougb a county must bave a 'specific warrant of law for every obligation it. assumes, tbe fiscal court may make sucb provision for tbe maintenance of tbe armory building a® may be necessary; this power being incidental to t/be execution of tbe power to provide eonr ferred by tbe statute.</p>

<p>1. Intoxicating Liquors — Local Option Election- — Petition—Withdrawal of Signature. — Signers of a petition for a local option election may withdraw their names before the petition is-acted on.</p> <p>2. Words and Phrases — “Petition.”—A petition is a formal written request or prayer for a certain thing to be done, the signers of which attach their signatures voluntarily.</p> <p>8. Intoxicating Liquors — Local Option' — Petition—Number of Signers. — Ky. Stats., 1903, section 2554, provides that on written petition, signed by a number of voters in such precinct of the territory to be affected, equal to 25 per cent of the votes cast in each of such- precincts at the- last preceding general election, and when for town or city elections, the number of votes cast 'at the last city or town election, it shall be the duty of the county court judge to order the election, etc. Held, That where a local option election is desired in a magisterial district composed of seven election precincts-, five of which are within the limits- of a city, the .petition must be signed by a number of voters in each precinct equal to 25 per cent of the votes oast therein at the last preceding general election; a petition signed by 25 per cent of tlhe voters of the entire district being insufficient.</p> <p>4. Same — General Election — Construction.—The term “last general election,” as used in Ky. Stats., 1903, section 2554, requiring a petition for local option election to be signed by 25 per cent of the votes cast at the last preceding general ©lection means the last preceding general election at wfiich officers for the State or county embracing the district in question were elected, and not the last congressional election.</p>

<p>1. Evidence — Evidence .at Former Trial. — Where witnesses were not dead at the time of a second trial, and their evidence at the first trial did not consist of admissions made in the usual course of business and in connection with the transactions in controversy, had with them as officers of defendant bank, a transcript of their testimony at the former trial was inadmissible.</p> <p>2. Appeal — Admission of Evidence — Prejudice.—Where two witnesses testified substantially as they had. done on a former ■trial, defendant was not prejudiced by the court’s erroneous admission of the report of their evidence on a former trial.</p> <p>3. Same. — Where issue was' taken on a garnishee’s answer, and it appeared that it nad on deposit belonging to the defendant, garnished by an improper name, more than enough to pay the amount sued for, the admission of evidence of a deposit made by such defendant alter service of the garnishment waa not prejudicial to the garnishee.</p> <p>4. Garnishment — Liability of Garnishee' — Instructions.—Where a bank was garnished in a suit in which the defendant was misnamed as the- “O’Dell Commission Company,” instead of the “O’Dell Company,” and the bank denied that it had any funds of the “O’Dell Commission. Company,” an instruction that the defendant would be liable to the extent of the ■amount of the deposit of the “O’Dell Company,” necessary to pay plaintiff’s judgment, unless it was. misled by t-he misnomer, was not objectionable as. requiring the garnishee to look to a circuit court record to determine the party intended; there being no reference in the instruction or in the evidence to such record.</p> <p>5. Trial — Instructions—Undue Prominence of Matters. — A garnishee, in an. action against it, relied on a misnomer in the name of the debtor in the. garnishee summons. Prior to the garnishment it had sent a telegram authoriz.ng a non-resident bank to draw on it for money in its hands to the credit of the debtor. Held, That an instruction that if it remitted! funds belonging to the debtor intended to be garnishied, relying on the telegram, instead of being misled by the misnomer, the jury could not find for the garnishee because of such mistake, there was no ground for complaint on the part of the garnishee, as singling out a portion of the evidence, sucn •evidence having no place in the case, and! not to be considered by the jury in determining whether the garnishee was misled by the misnomer.</p>

<p>1. Principal and Agent — Notice to Agenlt — Landlord and Tenant —Defective Premises — Injuries to Tenants. — Knowledge of an agent of defects in leased premises is knowledge of the landlord, so far as affects the latter’s liability for injuries from such defects.</p> <p>2. Landlord and Tenant — Defective Premises1 — Injury to Tenant —Liability. of Landlord. — While the rules of caveat emptor ■applies to a contract of letting, and tlhlere is no implied covenant on the part of the landlord that the premises are fit for the purposes for which they are rented, or that they are in any particular condition, yet if the landlord, with knowledge tbait the premises are defective or dangerous and that such defect is not discoverable by the tenant by tlhe use of ordinary care, rents such premises, concealing such knowledge, he is liable.to the tenant for injuries sustained therefrom.</p> <p>3.Same. — A landlord’s failure to notify his tenant of defects in the premises does not render him liable for injuries therefrom, where the landlord does not acquire such knowledge until after the lease is made.</p> <p>4. Evidence — Competency—Telephone Conversation. — A witness who is familiar with, the voice of a person with whom he converses over the telephone may testify to admissions made !n t^e conversation.</p> <p>r. 'v^e — Identity of Person Making Admission — Evidence.—Sufe'cncy. — Evidence examined, and held sufficient to- prove the ■identity of the person with whom witness testified he had a conversation by telephone.</p> <p>6. Landlord and Tenant — Defective Premises' — Injury, to Tenant —Action—Evidence.—In an action against a landlord for personal injuries resulting from defective premises, evidence of admissions by defendant’s agent, tending to show knowledge by him of the defective condition prior to the time of the injury, was inadmissible, in the absence of evidence that the agent had such knowledge prior to the time of renting.</p> <p>7. Evidence — Admissions by Agent — Authority of Agent.— Admissions or statements of an agent, which, had they been made by the principal, could have been proved without being subject to the rule against hearsay evidence, can not be proved against his principal, unless they form a part of the ■res gestae.</p> <p>8. Continuance — Grounds—Absence of Witness. — Civil Code Prac., section 554, allows the deposition of witness who is a practicing physician to be read, etc. Section 556 provides that, on an affidavit of a party that the testimony of a witness is important, etc., a court may in its discretion order the personal attendance of the witness to be coerced, although such witness may otherwise be exempt from personal attendance. Held, That the absence of a physician who ¡had been subpoenaed as a witness was not ground for a continuance, where the party who subpoenaed him did not obtain an order of court for his personal attendance.</p> <p>9. Same. — Civil Code Prac., section 315, provides that an affidavit for a continuance may be read as a deposition of an absent witness who has been summoned to appear, but who fails so to do, does not apply to witnesses whose appearance can not be coerced.</p>

<p>1. Intoxicating Liquors — Local Option — Mandamus to Compel Issuance of License — Collateral Attack. — A local option election resulting in favor of liquor selling, not having been attacked in the manner prescribed by the statute, can not be collaterally attacked in mandamus to compel the county clerk to issue a license to petitioner.</p> <p>2. Same — Effect of Adoption. — Under Ky. Stats., 1903, section 2554, which provides for local option elections, Clay City, in Powell county, in 1896, voted for liquor selling, and Powell county, in 1905, voted against it. Ky. Stats., 1903, section 2560, provides that, even though the county votes against liquor selling, yet it shall be lawful to sell liquors in a city of the county, where, previous to the county election, the city voted for liquor selling, unless, the majority of the city’s voters at the county election voted against the sale. In January, 1907, Clay City issued a license to petitioner, but ■the Powell county clerk refused to .iscue him the State license. The record does not show how the voters of Clay City voted, in the county election. Held, That the county election did not affect the right to sell liquor in Clay City, and hence petitioner was entitled to have the county clerk issue him a license, upon payment of the requisite fee.</p>

CASE 7. — ACTION BY THE CITY OP GEORGETOWN AGAINST E. M. HAMBRICK TO ENJOIN HER PROM BUILDING A SIDEWALK Appeal from Scott Circuit Court. E. L. Stout, Circuit Judge. Prom a judgment of dismissal the plaintiff appeals POINTS AND AUTHORITIES CITED. 1. The city council” alone has power to cause public ways within the city to be improved, and to determine the extent and character of the improvements, and whether any shall be made at any particular place. (Ky.

<p>1. Libel — Criminal Responsibility — Sufficiency of Indictment.— An indictment for libel, charging that the publication'was made of andi concerning the party libeled, and then setting out the publication, is sufficient under Criminal Code Prac., section 132, providing that “an indictment for libel need not set forth any extrinsic facts for the purpose of showing the application, to the party libeled, of the defamatory matter, hut it is sufficient to state generally that the same was published concerning’ him.”</p> <p>2. Sam© — Nature of Libel. — An article calling at+ention to the plunderers' of the county, and speaking of one as the holder of many offices, who has been industriously at work for four years correcting • unsatisfactory entries and making new ones, supplying missing vouchers and putting everything in “apple-pie” order for investigation, and who Will elucidate explain, modify, or magnify the numerous entries and vouchers which are. to he submitted to the grand jury, is manifestly calculated to create a disturbance of the peace, and to bring the official into contempt, and is therefore libelous as to him.</p> <p>•3. Same — Privileged Communications. — Where one while' the grand jury is in session, publishes a libelous article against an officer, whose acts are to he investigated, and addresses it to the grand jury, the publication, is not thereby privileged, and is as libelous against the officer as though it were addressed to the public at large.</p> <p>4. Same — Certainty in Indictment. — An indictment. Charging that thle defendant published “a certain false, scandalous and malicious article for publication, containing words and sentences of and concerning L. E-. Pearce, as follows,” and then setting out the entire article, is sufficiently definite to show that the statements contained in the article are charged' ■as libelous of Pearce. " '</p>

<p>1. Death — Cause—Evidence.—Intestate, a railroad station agenib, was struck, on July 25, 1901, hy a oar1 door which fell on him from one of defendanitls cars standing or moving on a side track as intestate was passing it in the course of his business. Intestate was knocked down, and his head and hip badly injured. He continued in defendant’s service until January or February, 1902, when he wasi stricken with, pneumonia or typhoid fever, after which his health rapidly failed, and on October 14, 1902, he was declared a lunatic and sent to aru asylum, where he died September 12, 1905. Held, That his- death was reasonably attributable to bis injuries; defendant having offered no testimony in support of any other theory.</p> <p>2. Master and Servant — Death, of Servant — Negligence.—Where a station agent was. struck, and received injuries from which he died, hy the fall of a defective ear door as the agent was passing in the course of his duties, the dangerous condition of the door was sufficient evidence of negligence on the . part of the railroad company.</p> <p>3. Damages — Personal Injuries. — If a person injured hy a railroad company sues for damages for the injury within a year, as he is required to do hy Ky. Stats., 1903, section 2516, he may recover for physical and mental suffering and impairment of his ability to earn money, not only up to the time of tibie trial, but for such as may reasonably be expected to result to him from defendant’s negligence in the future.</p> <p>4. Death — Action by Administrator. — If a person injured by a railroad company die of the injuries, and his administrator sues for the injury within a year after the infliction thereof, as provided by Ky. Stats., 1903, section 2516, he may recover for intestate’s mental. and physical suffering, loss of time, and surgical bills to the time of intestate’s dea+h.</p> <p>5. Same — Measure of Damages. — In an action for wrongful death, intestate’s administrator can not recover for his intestate’s physical or mental suffering, or mere impairment of his power to earn money; the measure of damages being limited to such, a sum as will compensate intestate’s estate for the destruction of his power to earn money.</p> <p>6. Limitation of Actions — Personal Injuries — Accrual of Cause of Action- — A cause of action against a railroad company for injuries to -a servant, brought by the servant’s administrator, accrued on the infliction of the injury, from which t me the one-year statute of limitation (Ky. Stats., 1903, section 2516) began to run.</p> <p>7. Death — Cause of Action — Accrual.—An action for a wrongful death, created by Constitution section 241, and Ky. Stats., section 6, does not accrue until the death of the person injured, regardless of the date of the injury.</p> <p>8. Same — Limitations.—Act 1854 (1 Acts 1853-54, p. 175, ch. 964), section 4, providing that actions for wrongful death shall be commenced within one year from the time of such death, was not changed by the- pjhraseology adopted in embodying it in Ky. Stats., 1903, section 2516, declaring that an action for injury to the person or to- -a servant by railroads shall be commenced within one year next after- the cause- of action accrued, and not thereafter, under the rule that, where a law has been settled, a mere change of phraseology in a revision will not be construed to change the law, unless such phraseology purported to work a change.</p> <p>9. Same — Damages—Instructions—In an action for wrongful death, an instruction that, if the jury found for plaintiff, they should find in such a sum as would reasonably compensate intestate’s estate for the destruction of intestate’s power to earn money, not exceeding the amount claimed in the- petition, and authorizing the jury to consider intestate’s age, capacity to earn money, and probable duration of life, was not objectionable for failure to limit the destruction of his earning capacity to such as was caused by his death.</p> <p>10. Trial — Instructions—Requests to Charge. — Unless a litigant offers additional instructions in lieu of instructions given ■which were correct in themselves, he can not object that the instructions were inadequate.</p>

<p>1. Trusts — Executors of Trustee — Compelling Account — Demand. —-Where a trustee died without settling his account, and his executors failed- to account, no affidavit or demand was n-ecescary by succeeding trustees before suit to compel such executors to account, within Ky. Stats., 1903, -sections 3870, 3872, 3874, providing for. the filing of claims with executors, accompanied by an affidavit that the demand was just, that there was no offset or discount against it, and that it had not been paid.</p> <p>2. Same- — Presentation of Claim- — Necessity.—Ky. Stiats., 1903, -sections 3870, 3872, 3874, requiring the filing of a claim against executors, accompanied by an affidavit that the demand was just, that) it was subject to no offset or discount, and bad never been paid, were not designed to interfere with the ancient jurisdiction -of equity to- settle the accounts of fiduciaries', and require -the funds in their hands -to be paid -over to their successors.</p> <p>3. Sams' — -Trustee—Appointment.—Testator bequeathed certain property in trust for his son F., an incompetent, and provided for the appointment of a trustee by the county court. B. was appointed and qualified. Thereafter F.’s sister also bequeathed a legacy to B., in trust for F., designating B. as F.’s “committee.” B., who- was also executor of the sister's will, took charge of the legacy as- trustee, and subsequently died without having settled his account, when complainants were appointed generally as F.’s trustees in B. s place. Held, That complainants were entitled to recover from B.’s executors and hold all funds belonging to F., however bequeathed to 'him.</p> <p>4. Same — Designation of Trustee — Sufficiency.—Where testatrix bequeathed a legacy to her incompetent brother’s trustee, in trust for the brother’s, benefit, a description of the trustee as the beneficiary’s “committee" was equivalent to a designation as trustee.</p> <p>5. Sam" — Accounting by Trustee’s Executors' — Interest.—Where a trustee failed to, account during his life, his executors, on being required to account, were properly charged with interest after the trustee’s death to the date of the judgment; the trustee being required to invest the trust fund so as to make it bear interest, and, if he did not, his estate was chargeable- with interest. '</p> <p>6. Same. — Ky. Stats., 1903, section 3884, providing that no inter- * cst accruing after decedent’s death shall be allowed or paid on any claim out of decedent’s estate, unless- a claim be filed, and authenticated, as required by law, and demanded of the executor, administrator, or curator within a year after his appointment, does not apply to the- liability of the executor of a deceased trustee, who died without accounting; action being brought against such executors to compel them to -account within a year after the- trustee's, death and their qualification as executors.</p> <p>7. Same — Accounting—interest.—The trustee of an alleged incompetent, who had never been found of unsound mind by an inquest, purchased a horse from such incompetent and kept the purchase, price as his trustee. Held, That the trustee never having filed an account prior to his death, his executors were properly charged with the price, with 6 per cent, interest thereon.</p> <p>8. Costs — Exeeutorsi—Accounting.—Where executors of a deceased trustee, who had died without accounting, also failed to make a settlement of their testator’s account as trustee, and suit was brought by substituted trustees to compel the executors to account, in which the trustees were successful, the executors were properly chargeable with costs under Ky. Stats., 1903, section 889, providing that in actions in equity the party succeeding on the merits or otherwise shall recover his coste, except against nominal defendants.</p>

<p>1. Waters — Water Company — Defects in Fire Cisterns. — Section 6 of the charter of the Louisville Water Company provides that the company shall keep water enough in its mains to extinguish fires; While plaintiff’s buildings were burning water could not bei had from one place because of a defect in the fire cistern, and from another place because of the cistern being so covered with snow that the firemen could not find it for ten minutes. The proof showed that there was an abundant supply of water in the mains. Held, That the water company is not liable to the owner of the buildings; since the fire cisterns are constructed by the city and are under its exclusive control.</p> <p>2. .Municipal Corporations. — Torts—Acts of Agents. — A city is not liable to ia property owner for the negligence of its firemen.</p> <p>S. Same — Performance of Governmental Function. — A city is not responsible to a property owner, if one of its fire engines is by negligence allowed to get out of repair, and by this means hisi property is lost.</p> <p>4. Same. — In building cisterns for fire protection, a city acts in a governmental capacity, and is not liable for damages by fire because of their being out of repair.</p>

<p>1. Jury — Selection and Drawing of Panel. — Ky. Stats., 1903, sections 2241, provides that the jury.commissioners shall take the last returned assessor’s books and from it select intelligent and impartial citizens' to the number therein prescribed; •that each name so selected shall be by them written on a slip of paper, and that each slip shall be by them inclosed in a small case made of paper, and deposited in a revolving drum or wheel; and that while so engaged in making the jury list no person shall be permitted to be with them. Held, That if jury commissioners' did not themselves write the names of the jurors on slips of paper and plade them in the cylinders or wheel, but merely checked off the names on the assessor’s book and authorized or requested two' clerks of the court to write the names checked off and place them in the cylinders or wheel, the selection of the panel was bad, as against a challenge to the array before trial, though it be not made to appear that the challenging party was thereby 1 substantially prejudiced, in that the jurors so selected were in any respect objectionable.</p> <p>2. Evidence — Presumptions—Performance of Official Duty — Jury Commissioners. — Jury commissioners are officers of the court, and the presumption is that they did their duty; but this presumption may be overcome by evidence that they did not.</p> <p>S. Witnesses' — Privilege of Witnesses. — Constitution section 11,' providing that no person shall be compelled to give evidence against himself, applies in all cases where punishment may he inflicted, and protects a jury commissioner in declining to testify as to violations of the statute prescribing the method ofl selection of jury panels, in that the commissioners authorized clerks of the court to perform acts which they themselves should have performed, since being an officer of the court, the willful violation of his duty would constitute a contempt, but does not protect the clerks of the court, since, as officers of the court, they have no duties to perform m the selection of juries, and are not otherwise punishable for such acts.</p> <p>4, Trial — Right to Open and Close. — A carrier, sued for gross negligence, has not the burden of proof, entitling it to close, by admitting that plaintiff was a passenger and injured in a collision; such facts merely raising a presumption of ordinary negligence.</p>

<p>1. Municipal Corporations — Franchise»—Power to Grant. — Constitution section 164, provides that no municipal corporation shall grant any franchise or privilege for a term exceeding 20 years, and that before granting such'franchise fof “a term -of ye-ars” the municipality shall advertise for bids and award the franchise to the highest and best bidder. Held, Th-at the words “term of years” did not exclude from the operation of -the section a franchise ■ for one- year, where it involved the use of permanent structures in a. street.</p> <p>2. Same — Ordinance—Licenses.—A city ordinance, imposing an annual license on corporations selling electricity without a franchise from the city, and providing for the issuance of an annual license on application to the board of public works by a corporation desiring to transmit electricity or heat through the streets, in so far as it authorizes a public lighting and heating corporation to transmit electricity and heathrough permanent conduits in a street under yearly licenses, is in violation of Constitution article 164, prohibiting cities from granting any franchise or privilege for a term of years • without advertising and receiving bids therefor.</p>

<p>1. Witnesses — Compentency—Testimony of Persons Interested for or Against a Decedent.- — In an action against a railroad for injuries to plaintiffs intestate in attempting to cross' its track, plaintiff administrator, who was also intestate’s son', was not excluded from testifying .as to the injuries sustained by intestate, by Civil Code Prac., se.ction 606, subsection 2, prohibiting a person to testify for himself concerning any transaction with a decedent.</p> <p>2. Appeal — Review—Harmless Error — Admission of Evidence.— Where, in an action against a railroad for injuries to plaint-tiff’s intestate- in attempting to cross its tracks, there was ample testimony as to the. injuries sustained by intestate .other than that of plaintiff administrator, who was also his son, the admission of plaintiff’s testimony to the same facts, to which there was no material contradiction, was not prejudicial error, even if its admission could be regarded as erroneous under Civil Code Practice, section 606, subsection 2, prohibiting a person to testify for himself concerning any transaction with a decedent.</p> <p>8. Same. — Though, in an action against a railroad for injuries to plaintiff’s intestate in 'attempting to cross its track, it was incompetent for a witness to express his opinion that ne thought he could have heard the engine bell if it had been ringing, such testimony was- not prejudicial, where the witness had theretofore stated that he did not hear the bell or other signal, and the expression of opinion was forced from him by unnecessary questioning.</p> <p>4. bame — Reservation and Presentation of Error — Objection and Exception to Evidence. — Error, if any, in the admission of evidence, is not available where no objection was made on the trial or exception taken.</p> <p>5. Abatement and Revival — Death of Plaintiff — Actions for Personal Injuries — Recovery for Permanent Impairment of Earning Capacity. — Where plaintiff in an action for personal injuries died, and the action was revived by his administrator, such administrator was entitled to recover for the permanent impairment of his intestate’s power to earn money.</p> <p>6. Railroads — Injuries to Person on Track — Injury Avoidable Notwithstanding Contributory Negligence — Evidence.—Evidence, in an action against a railroad for injuries to plaintiff’s intestate in attempting to cross its track, held to warrant a finding that if the usual signals had been given of the backing of the train, 'and proper lookout maintained by the engineer and fireman, the train, notwithstanding any negligence of intestate, might have been stopped by ordinary care in time to prevent striking him or at least immediately after striking him and before dragging him the distance he was dragged.</p> <p>7. Trial — Instructions—Construction of Charge as a Whole.— Where, in an 'action for injuries to plaintiff’s intestate in attempting to cross a railroad track, the care necessary to be exercised by intestate was sufficiently expressed by the instructions as a whole, it was not error that a certain instruction did not in express terms define the care required of him.</p> <p>8. Appeal — Review—Harmless Error — Argument of Counsel.— Though a statement by plaintiff’s counsel in his argument, in an action against a railroad for injuries to plaintiff’s intestate in attempting to cross its track, that the railroad owed the “highest care,” did not properly state the law, it was not prejudicial where the jury was admonished by the court respecting the same and, properly instructed as to the care required.</p>

CASE 15. — ACTION BY THE CITY OF FLEMINGSBURG AGAINST FLEMING COUNTY FOR A PORTION OF THE COST OF A BRIDGE Appeal from Fleming Circuit Court. J. P. Haebeson, Circuit Judge.

<p>1. Telegraphs — Failure to Deliver Message — Actions for Damages ■ — Mental Suffering. — The right of recovery against telegraph companies for mental suffering has been extended to all cases in which mental suffering may be reasonably anticipated as the natural result of a breach of contract, and this is1 2shown op the face of the telegram.</p> <p>2. Same. — Where a wife in Louisville, in accordance with an agreement with her husband, telegraphed him in Chicago that their child was worse, that she had smallpox, and had been sent to the pesthouse, and the telegraph company failed tio deliver the message, and on this account the husband did not go home to Louisville nor communicate witn his wife for some time -thereafter, leaving her without his advice and instructions regarding the care of the child, hex mental -distress resulting therefrom will support an action of damages against the company. ></p> <p>3. Same. — The following telegram, sent from Louisville: “To Harry Thurman, Great Northern Theater, Chicago, 111.: Nellie worse; pronounced smallpox; sent to pesthouse to-day. Wife” —Nellie being the child of the sender and Harry Thurman, was sufficient to indicate to the telegraph company that the wife’s object was to secure the assistarce and consolation of her husband, and .the company, failing to deliver the message, and thereby preventing his 'return to Louisville, must answer in damages for her mental anguish caused by depriving her of her husband’s presence, advice, and superior judgment.</p> <p>Judge Barker dissenting.</p>

<p>1. Railroads — Accident at' Street Crossing — Sufficiency of Warning — Question for Jury. — In an action against a railway company for the death of a pedestrian at a street crossing, held., under the evidence, a question for tne jury whether adequate, notice of the approach of the train was given.</p> <p>2. Same — Evidence—Admissibility.—In an action against a railway company for the death of a pedestrian at a street crossing, alleged to have resulted from a negligent failure to give warning of the approach of a -train, it may not be shown that warning was not given on previous occasions.</p> <p>3. Same- — Duty at Crossings. — A railway company is liable for injuries resulting from it® failure to have its train under reasonable control in approaching a street crossing, to keep reasonable lookout for persons using the crossing, to give timely notice of the train’s approach by ringing the engine’s bell, to have the headlight burning, or to exercise ordinary care to prevent injury to persons using the crossing.</p> <p>4. Same. — Where a street crossing over railroad tracks is used by many persons, and is more than ordinarily dangerous to such persons, the company, in addition to the usual signals, must provide such signals’ as are reasonably necessary to give notice of a tram’s approach to the crossing.</p> <p>5. Same — Instructions—Care Required of Pedestrian. — In an action against a railway company for the death of a pedestrian at a street crossing, an instruction that 11, in approaching the crossing, he failed to exercise ordinary care for his own safety, and such failure contributed to his injury, and he would not have been injured except for his own negligence, plaintiff could not recover, was erroneous for not defining the pedestrian’s duty.</p> <p>6. Same — Pedestrian’s Duty. — It is the duty of a pedestrian in approaching a railroad crossing to use such care as may be usually expected of an ordinarily prudent person to learn of the approach of trains and. keep out of their way, and, if the crossing is especially dangerous, he must exercise increased care commensurate with the danger; and if his- failure to do so causes him injury he can not recover, though the company is negligent in not keeping its train under reasonable-control in approaching the crossing, in not keeping a reasonable lookout and in giving inadequate warning.</p> <p>Judge Nunn dissenting.</p>

<p>1. Courts — Appellate Courts — Jurisdiction to Reinstate Restraining Order.- — Civil Code Prac., section 297, provides that, where an injunction is dissolved or modified by the court before final judgment or by a circuit judge, plaintiff may apply to a judge of the court of appeals to reinstate it. Section 296, subsection 2, provides that, where an injunction has been granted or continued by interlocutory order, the party enjoined ma.y apply to a judge of the court of appeals for the dissolution or modification of the injunction. Section 276 provides that, where the court or officer to whom application for "an injunction is made shall be satisfied an irreparable injury will result to applicant from the delay of giving notice, the court or officer may enter a temporary order restraining the acts sought to • be enjoined. Held, That a judge of the court of appeals was without jurisdiction of an application to reinstate a restraining order granted under section 276 and dissolved by the judge of the lower court; such restraining order not being. an injunction within section 297 or section 296, subsection 2.</p> <p>2. Injunction — Right to — Statutory Provisions. — An injunction or temporary restraining order may be granted in an action at law; the Code provisions' on the subject not abolishing the common-law jurisdiction attaching to courts of equity to grant injunctions, but merely regulating the practice.</p>

<p>Railroads — Injury to Trespasser — Liability of Company. — A railroad company is not liable for injury to a trespasser on the right of way and distant from a crossing, whose presence was not known, from the falling from the tender of a passing train of a gate usually used to' keep the coal back, but which ' had temporarily been laid on top of the coal; this being at most negligence, and not recklessness or wanton disregard of life.</p>

<p>1. Elections— Nominations — Presumptions. — Where a county clerk places a candidate’s name upon a ballot without dispute or contest, it will be presumed that tito© candidate was regularly nominated and that his nomination was' certified to the clerk as provided by statute.</p> <p>2. Same1 — Eligibility.—The allegation, in a petition to contest an election, that the contestant was the Republican candidate, is sufficient, without an express averment of his eligibility.</p> <p>3. Same — Ballots'—Piasters—Where a private person, after election ballots are printed, places his name under the Democratic device by means' of pasters, as though nominated by that party, having no right to so place his name, his election is void.</p> <p>4. Same — Effect on Void Election.1 — Where a private person wrongfully places his name on ballots, under the Democratic device by means, of pasters, rendering his election void, the candidate receiving the next highest number of votes will be deemed elected, since the ballot will be treated as it was before the name was placed on it, and as it would have been if his name had not so appeared on it.</p>

<p>1. Intoxicating Liquors — Unlawful Sale — Owners of Premises— Liabilty. — Under Ky. Statutes, 1903, section 2572, prescribing a penalty against one in possession of premises on which liquor is sold, etc., unlawfully by any trick or method whatever, partners in actual possession of a drug store, and' operating it as such, may be fined, for sales of intoxicants by themselves, their servants and agents, in violation of the local option la,w.</p> <p>2. Same — “Owner in Possession” — Who Is. — The term “owner in possession” of premises, within a statute prescribing a penalty against sucn persons, where intoxicants are unlawfully sold on their premises, includes- a tenant for a term of years, or of any freehold or greater estate.</p>

<p>1. Incorporations1 — Criminal Prosecutions — Venue.—Ky. Stats., 1903, section 576, declares that every corporation, except a railroad and others named, shall place immediately under its name on all printed or advertising matter used by the corporation the word “Incorporated,” and that for failure to dio so shall be fined as therein prescribed. Civil Code Prac., section 63, requires- an action for the recovery of a fine to be brought in the county where the cause of action arose. Ky. Stats., 1903, section 571, requires all corporations, domestic and foreign, to have at least one known place of business in the State and am agent thereat on whom process can be served. Held, That a prosecution for a violation of section 576 must be brought in thalt county in which the corporation had its principal • office or place of business, or an agent designated by it for the service of process, without regard to the county in which the printing or advertising may have been circulated or distributed.</p> <p>2. Constitutional Law — Equal Protection of Laws. — Ky. Stats1 2., 1903, section 576, declaring that every corporation, with certain exceptions, shall place immediately under its name on • all printed or advertising matter the word “Incorporated,”, and that, on.failure to do so, shall be fined, is not because of the exemption of those classes of corporations discriminatory, unequal, or partial legislation within the Constitution of the State or the United States; it affecting all ■similarly situated.</p>

<p>1. Taxation — National Banks — Nature of Assessment — Act Construed. — In January, 1906, the court of appeals held that there was a discrimination against national banks in the method of assessing them and state banks, since state banks under existing laws, being assessed upon their capital and assets, so much of their capital as was invested in federal bonds was not taxable, While national banks being assessed on their shares of stock, the value of .such bonds in which their capital was invested was not deducted, and the court held such deduction should be allowed. Immediately thereafter the act eifective June 11, 1906 (Laws 1906, p. 134, ch. 22, subd. 2), was enacted, and provides that an annual tax of the same rate as fixed upon other personalty for State purposes shall be imposed upon the value of the shares of the banks. Held, That such act provides for an assessment of the shares of stock of national banks and not for an assesment of their ¡assets, which would be in express violation of the national banking'act (Act June 3, 1864, ch. 106, 13 Stat. [U. S. Comp. St. 1901, p. 8454.]).</p> <p>2. Same — Act Governing Assessment. — The act of June 11, 1906 (Laws 1906, p. 134, ch. 22, subd. 2), governed the assessment for that year, since it was 'the legislative purpose to supersede the old law and have future assessments' made under the new act, so that no loss would result to the State through the decision of the court of appeals rendered in January.</p> <p>3. Same — Delay in Assessment — Effect.—As the act under which the national bank shares were assessed for 1906 did not permit any discrimination against them, or impose any rate of taxation greater than wasi assessed upon other moneyed capital, they may not complain of a delay in the making of the •assessment for that year.</p> <p>4. Same — Information for Assessment — Source—Materiality.— Where, in a suit by a national bank to require the state board of valuation and assessment to deduct the value of federal bonds held by it from an assessment for a given year, it does not claim that its shares were fixed at too high a valuation, nor show that it has attempted to obtain a reduction of the assessment, nor that any prejudicial error was committed in the manner of valuing the shares, except in failing to deduct the value of federal bonds, it is immaterial What information the board used in making the assessment.</p> <p>5. Same. — In a suit by a national bank to require the state board of valuation and assessment to deduct the value of federal bonds held by it from an assessment on its shares for State taxes in .1906, it is immaterial in what manner local assessments were made in that year upon such shares for purposes of counties, etc., or when they were made or when the taxes were paid thereunder, since the state board, under the express terms of the act effective June 11, 1906 (Laws 1906, p. 134, ch. 22, subd. 2), had no power to make asses6¡ments for counties, etc., and was limited solely to assessments for State purposes.</p> <p>6. Same — Taxes Upon Share® — Liability of Banks. — A bank may be required to pay taxes imposed upon the shares of its stock, having a right to enforce reimbursement from the shareholders.</p> <p>7. Siame — Information for Assessment — Right to Compel Bank to Give. — Since a bank may on behalf of its shareholders pay taxes due by them on their shares and recover from them the -amount paid, the bank may be required to furnish information upon which the assessment of the shares may be made, so- that all the shares may be taxed alike.</p> <p>Chief Justice O’Rear and Judges Barker and Lassing dissenting.</p>

<p>1. Removal of Causes — Citizenship—Joinder of Parties — Petition. —Plaintiff, who was a brakeman on one of defendant railroad company’s freight ¡trains, sought to recover damages for injuries sustained by his being struck by a waterspout alleged to be too near the track. Plaintiff joined defendant M., whose citizenship was the same as plaintiff’s, with defendant railroad company, whose citizenship was diverse, and alleged that M. had charge of defendant’s waterspout, etc., and that the railroad company and M., as its agent and servant, had carelessly, etc., placed the post and pillars supporting the spout so near the track as to make its position dangerous, and that the spout was negligently permitted to hang in dangerous proximity to the top of the train, that 'by the negligence of defendant company, and M. in placing the pillar, and in permitting the spouit and connections to be in such condition, plaintiff was struck by the spout and injured. Held, That the petition stated a cause of action against both defendants, and .that the court therefore properly denied the motion of the railroad company in the first instance to transfer the cause to the federal court.</p> <p>2. Miaster and Servant — Injuries to Servant — Fellow Servant’s Liability. — A servant of a railroad company in charge of its water tanks, spout, pumping stations, and appliances under the direction of a superintendent, was not liable for injuries to a brakeman by striking a spout negligently placed too near the track, where such servant had nothing to do with the placing or adjusting of the pipe and fixtures, and was guilty at most of mere nonfeasance for failure to remedy the defect.</p> <p>3. Removal of Causes — Renewal of Motion. — Where, in an action, for injuries to a servant, plaintiff joined a resident employe as a party defendant with the railroad' company, which was a non-resident, and at the close of plaintiff’s evidence no causa of action had been established avainst the resident defendant, and there was nothing to warrant the presumption that a stronger case could have been made out when -the petition was filad', i't wasi proper for the court to grant the railroad company’s renewed motion for a removal of the cause to the federal court, on the ground that /the citizen defendant had been joined for the sole purpose of preventing such removal.</p>

CASE 25. — ACTION BY R. ,P. TOWNSEND'S ASSIGNEE AGAINST R. P. TOWNSEND' AND OTHERS ON A POLICY OF LIFE' INSURANCE. Appeal from Logan Circuit Court. Geo. S. Hardy, Special Judge. Prom the judgment plaintiff appeals1 Our contention is that -the cash surrender value of the policy in controversy should be paid, to the appellant trustee to be applied to pay the debts of R. P. Townsend, subject' to the lien of the First National Bank of Nashville, Tenn., for $2,600.

<p>CASE 26. — PROCEEDINGS BY THE BOARD OF SUPERVISORS OF WOLFE COUNTY IN FIXING A VALUATION UPON PROPERTY FOR TAXATION IN SAID COUNTY IN WHICH T. M. BECKETT AND OTHERS APPEAL.</p> <p>Appeal from Wolfe Circuit Court.</p> <p>Robert Riddell, Circuit Judge.</p> <p>From the judgment the County and the Commonwealth appeal</p> <p>AUTHORITIES CITED.</p> <p>■ Ky. Stats., sections 4120, 4020 and .4039; Acts of 1906, p. 89, section 4; Wilgus v. Comth., 9 Bush (72 Ky.), 556;' Harvey Coal & Coke Co. v. Dillon, Tax Commissioner, 53 S. E. Rep., 928.</p> <p>AUTHOITIES CITED.</p> <p>Kincaid v. McGowan, 88 Ky., 91; Stew-art, Trustee, v. Comth., 94 Ky., 595; Fox v. Long, 8 Bush, 551; Arnold v. Smith, 3 Bush, 163; Creutz v. Hedí, etc., 89 Ky., 429; Carter v. Tyler County, 43 L. R. A., 725; Wilson v. Youst, 39 L. R. A., 292; Williamson v. Jones, 25 L. R. A., 222; Ky. Stats., sections 4024, 4039 and 4058; Comth. v. Hollidy, 98 Ky., 616; Comth. v. Tencray, 21 Ky. Law Rep., 572; Comith. v. Engle, 21 Ky. Law Rep., 101.</p>

CASE 27. — ACTION BY W. W. EUBANK AGAINST MONTGOMERY COUNTY FOR SERVICES AS SUPERVISOR OF COUNTY ROADS. Appeal from Montgomery Circuit Court. A. W. Young, Circuit Judge. Judgment for defendant, plaintiff appeals POINTS AND AUTHORITIES. 1.

CASE 28. — ACTION BY I. R. HOLLON' AGAINST THE CAMP-TON FUEL & LIGHT COMPANY FOR THE NEGLIGENT BURNING OF HIS HOUSE. Appeal from Wolfe Circuit Court. Robert Riddell, Circuit Judge. Judgment for defendant, plaintiff appeals 1.

<p>1. Coonisitlitutalonial Law — Equal Protection of Laws. — Act Indf.,, March 4, 1893 (Laws 1893, p. 294, cb. 130), section 1, imposing on every railroad -or other corporation, except municipal corporations, a liability for injury to an employe, where the injury is sustained as therein prescribed, applies to all persons, whether natural- or artificial, operating ,a railroad, and is not subject, as to the operation of railroads, to the constitutional objection that it imposes' on corporations burdens not imposed on individuals;.</p> <p>2. Same. — The act is not unconstitutional, as to a carpenter in the employ of a railroad, on the ground that the State may not establish a rule for carpenters in. railroad service and another rule for carpenters not in such service.</p> <p>3. Courts — -Jurisdiction.—Actions Under Laws, of Other States.— Comity Between Courts. — A cause of action accruing to a railroad employe under Act Ind., Marcih 4, 1893 (Laws 1893, p. 294, oh. 130), section 1, imposing on every railroad or other corporation, except municipal, operating in that State, a liability for injury to an employe, where the injury was sustained as therein prescribed, will be enforced in Kentucky, even though the courts of Indiana would not enforce, as they doubtless would, a cause of action accruing in Kentucky.</p> <p>4. Master .and Servant — Action for Injuries to Employe — Question for Jury. — In an action by a carpenter for injuries due to the breaking of a chain holding a pully used in raising a, bent, whether a reasonably safe appliance was furnished held for the jury.</p> <p>5. Same — Instructions.—In .an. .action by a carpenter for injuries due to the breaking of a chain holding a pulley used in raising a bent, under Act Ind. March 4, 1893 (Laws 1893, p. 299, ch. 130), section 1, imposing a liability on railroad corporations for injury to employes, where’the injury is due to any defect in appliances furnished resulting from the negligence of the corporation or some person intrusted with the duty of keeping such appliances in proper condition, or where the injury results from the negligence oí any person to whose order the injured employe is bound to conform, instructions that if plaintiffs injury was due to any defect in the appliances furnished, and such defect was the result of negligence by defendant’s foreman of the crew with which plaintiff was working, and who was a person intrusted by defendant with the duty of keeping appliances in proper condition, and plaintiff was in the exercise of due care, he was entitled to recover; that if the .injury resulted from the negligent orders of the foreman, and plaintiff was bound to conform to such foremans orders, and was exercising due care, he was entitled to recover; and that plaintiff was not entitled to recover because an appliance was not reasonably safe, if suoh condition was unknown to the foreman and would not have been discovered by him by the exercise of ordinary care — were in accord with the statute.</p> <p>6. Damages — Excessive Amount — Personal Injuries. — Plaintiff, a carpenter, was injured by the falling of a bent which he was assisting to raise. At the time of the injury he»was a healthy young man weighing 145 pound®, but at the trial weighed but 116 pounds. One leg was fractured at the knee, the other at the hip, and his nibs on one side were .broken-, and also his back. He was ■ paralyzed, -from his waist down. His bowels and bladder had to be moved with an instrument, and his virility was destroyed. His suffering- for six or eight weeks was very intense, and after that he was never free from pain. At the time of the -injury he was capable of earning $3 a day. Held., That a verdict for $22,000 was not excessive.</p> <p>Note by Reporter. — This case has been appealed to the United States Supreme Court.</p>

<p>1. Carriers — Connecting Carriers — Loss of Goods — Action—Jurisdiction. — In an, action against an initial and an intermediate carrier for Joss of goods, it appeared, that the initial carrier ■accepted plaintiff’s goods for transportation, to a town in another county into which the line of neither defendant ran; the bill of lading providing that the responsibility .of each company should cease on delivery to a connecting carrier. Civil Code PraC., section 73, provides that an: action against ,a carrier must be brought in the county in which defendant, or either of defendants, resides, or in which the contract is made, or in which the carrier agrees to, deliver the property. Heidi That a plea to the jurisdiction of the court in the county of final destination was properly sustained.</p> <p>2. Same — Limitation of Liability — Bill of Lading. — A common ■carrier may limit its liability for loss on connecting lines by a stipulation in the bill of lading that articles to be transported beyond its lines may be delivered bo connecting lines for transportation to their destinations, and that its responsibility shall cease with such delivery.</p> <p>■3. Same — Construction)—“Forwarding” and “Delivering” Carriers. —In a bill of lading stipulating that the liability of a forwarding carrier for loss shall cease on delivery to- the connecting carrier, and thiait of a delivering carrier on delivery at tne station of delivery, the term “rorwarding carrier” applies to all carriers who transport goods to the delivering carrier, and' the term “delivering carrier” to the carrier who actually delives thq good© at their destination.</p>

<p>CASE' 31. — ACTION BY WILLARD NICHOLS AGAINST THE CHESAPEAKE & OHIO' RY. CO. ANO ANOTHER FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Grreen/up Circuit Court.</p> <p>James P. Hakbeson, Circuit Judge.</p> <p>Judgment sustaining defendants motion to remove case to federal court, plaintiff appeals</p> <p>1. Removal of Causes — Causes Removable — Original Jurisdiction. —Under the removal acts (Supp. Rev. Stats., U. S., p. 611 [U. S. Comp. St., 1901, p. 503]), providing that the circuit courts ■of the United States shall have original concurrent jurisdiction with tih© courts of the several States of all suits of a civil nature, where the matter in. dispute arises under the Constitution or laws of the United States, of which the circuit courts of the United States are given original jurisdiction, etc., the right to remove exists when the federal courts are given original concurrent, though not exclusive, jurisdiction of the subject of the action.</p> <p>2. Same — Safety Appliance Act.- — Where, after pleas of assumed risk and contributory negligence in an action for injuries to a brakeman wlhile uncoupling cars, plaintiff amended his petition so as> to allege a violation of the federal safety appliance act (Act of Congress, March 2, 1893, ch. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174] as amended by Act of March 2, 1903, ch. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 885]), prohibiting interstate carriers from using cars not equipped with automatic couplers, and providing that a .servant injured while using cars not so equipped should not be held to have assumed the risk, the cause thereupon became ope arising under the laws of the United States, and was removable to the federal court, though the petition, before amendment, stated a cause of action independent of such ■statute.</p> <p>POINTS AND AUTHORITIES.</p> <p>Greenup Circuit Court Has Jurisdiction of. the Cause. — In the first place, the Greenup circuit court has jurisdiction because having entered a final order refusing to transfer the cause it had no power at a subsequent term of court in effect to set iasdde that order and surrender jurisdiction.</p> <p>In the second place, the Greenup circuit court has jurisdiction because if the first petition for removal be treated as a nullity, then t)he second petition for removal herein was not filed in time and as required by the Act of Congress in such cases made and providedi</p> <p>In the third place, if the amendment be treated as standing alone, then the case- was improperly transferred; because as no summons- had ever been issued thereon, there was no- action pending within the meaning of section 39, Civil Code, to transfer.</p> <p>In the fourth place, the Greenup circuit court has jurisdiction because the setting forth of a third concurring act of negligence in an amendment to the petition does not make the one cause of action a separable controversy, since by reason of the other two acts of negligence it had already been held by the Greenup circuit court to be joint; in other words, even if the third act of negligence, standing alone, could be construed as constituting a separable controversy, yet the mere statement of it in an amendment to & petition containing the other two acts, can not destroy the pre-existent joint cause of action. (I. C. R. R. Co. v. Jones’ Admr., 80 S. W., 485; Pugh v. C. & O. Ry. Co., 101 Kv„ 80; Davehport v. Southern Ry. Co., 135 Fed. Rep., 962; Southern. Ry. Co. v. Carson, 194 U. S., 136; Chicago Ry. Co. v. Martin, 178 U. S., 245; Railway Co. v. Dixon, 179 U. S., 92; Helms v. N. P. R. Co., 120 Fed., 389; Daugherty v. Yazoo R. Co., 122 Fed., 205; Daugherty v. Atchison, 126 Fed., 239.)</p> <p>CLASSIFICATION OF POINTS AND AUTHORITIES.</p> <p>1. If this case was removable when the first petition for removal was filed, then it was properly removed, and that is an, end of it so far as the State court is concerned.</p> <p>2. If it was not removable, then when the amended petition was filed it became removable for the first time, and then could be removed (Ayres v. Watson, 113 U. S., 594; Powers v. R. R. Oo., 169 TJ. S„ 99.)</p> <p>3. When a Federal statute is involved, even as an ingredient of the original cause, Dhe case is a removable one. (Dowell v. Applegate, 152 TJ. S., 327; R. R. Co. v. Mississippi, 102 TJ. S., 141; Starin v. New York, 115 TJ. S., 248;, So. Pac. R. Co. v. California, 118 TJ. S., 109.)</p>

<p>Bastards — Review of Proceedings — Judgment of Appeal — Statutory Provisions. — Ky. Stats., 1903, section 168, invests exclusive original jurisdiction of bastardy proceedings is the county court); and section 978 authorizes an appeal therein to the circuit court. Civil Code Pfac., section 726, provides that an .appeal shall be docketed and stand for trial as ordinary actions and shall be tried anew; and section. 730 provides that, if appellant, move to dismiss, it shall be at the option of the appellee either to1 proceed to trial on the appeal or have judgment rendered for the amount of the original judgment and costs, if in his favor, or in bar of the original judgment, if against him. Defendant on a charge of bastardy, having appealed from the judgment of the county court against him and executed a bond with surety, thereafter moved to dismiss the appeal, iand the court dismissed the same and adjudged that the Commonwealth, for tihe use of the prosecutrix, he remandea to the judgment rendered' in the county court, and directed that court to enforce the same. Held, That the judgment rendered on appeal was not in cosformity with section 730, and was in fact no judgment at all, and hence no liability was shown against the surety on the appeal bond; the same only extending to such a judgment as the circuit court could legally render.</p> <p>Judge Hohson dissenting</p>

<p>1. Constitutional Law — Departments of Government — Infringement on Judiciary. — Fixing the time of execution in a capital case is a ministerial and not a judicial act, so that Criminal Code Prae., section 346, authorizing the Governor to name a day for the execution of the sentence when for any reason it is not carried out on the day fixed in the judgment, is not in violation of Constitution section 28, prohibiting one department of government from exercising any powers properly belonging to the other.</p> <p>2. Criminal Law — Judgment—Sentence.—Criminal Code Prac. section 290, provides, that, if judgment of death be pronounced, the date of execution shall be fixed in the judgment; and section 346 declares' that, when a judgment of death has been affirmed, a certificate shall be transmitted to the Governor, that a warrant for the execution of the judgment may be issued by him, and declares that the Governor shall name in fine warrant the day and time of execution, not earlier than that which had been fixed' upon by the circuit court, and, if the execution, does not take place on the day appointed by the Governor, he may from time to time appoint another day of execution, until the sentence is carried out. Held, That while the fixing of a date for the execution of a capital sentence originally is a part of the judgment under section 290, such fact does, not make it a judicial act, precluding the Legislature from authorizing the Governor to fix another day in case the sentence is not enforced on the day specified.</p> <p>3. Constitutional Law — State Constitution — Limitation of Powers. — The State Constitution is not a delegation of powers, but a limitation; so that wherever it has not limited the right of the Legislature, either expressly or by necessary implication., that body has power to legislate.</p>

<p>1. Insurance — Insurable Interest. — In the absence- of statutory-prohibition, a person may take out insurance on his own life and designate whom be pleases as the beneficiary.</p> <p>2. Same — -Wagering Policies. — A person may not himself procure, nor obtain by assignment, insurance upon a life in which -he has not an insurable interest,, growing out of kinship, dependency, or the relation of debtor -and creditor; nor may a person insure his own life for the benefit of any other, if that other induces him to procure the insurance and pays the premium thereon, or if the insurance was obtained with a view to evade the laws against speculative insurance.</p> <p>•3. Same' — Mutual Benefit Insurance — Beneficiaries.-—Under subdivision 3, art. 4, ch. 32, Ky. Stats., 1903, sections 678, 680, forbidding domestic assessment and co-operative life insurance companies to issue a certificate or policy upon any life in which the beneficiary named has no interest, and forbidding foreign insurance companies on the assessment plan to do business in this State until they shall file with the Commissioner of Insurance a certificate stowing, among other things, that “its certificates or policies are payable only to beneficiaries having a legal insurable interest in the life of the member or insured,” a member of a fraternal or benevolent organization, who -obtains insurance upon hi- own life and himself pays the premiums, may not designate a first cousin, not having an insurable interest in his life, as £• beneficiary, though permitted to do so by the charter of the order.</p> <p>4. Same — First Cousins. — First cousins, who are not dependent on or creditors of an insured, have mot an insurable interest in his life.</p> <p>5. Same — Pecuniary Consideration. — Where the relationship of beneficiaries in an insurance policy to the insured is, as in the case of a husband and wife, parent and child, sister and brother, so close as to preclude the probability that mercenary motives would induce the sacrifice of life to gain the insur anee, the element of pecuniary interest is not essential to the validity .of the policy.</p> <p>6. Same — Statutes — Retroactive Operation — Insurance. — Act March 24, 1906 (Laws 1906, p. 481, ch. 142;, enlarging tne power of members of fraternal societies in the designation of beneficiaries to those having no insurable interest, has no application to policies issued before its passage.</p>

<p>1. Abatement — Another Action Pending. — Ky. Stats., 1903, section 4241, authorizing a suit to compel the listing of property . for taxation, does not contemplate two proceedings by the revenue agent of the State against the tax-payer, involving the siame issues and seeking the same relief.</p> <p>2. Same. — A suit instituted by the revenue agent for the State at large, under Ky. Stats., 1903, section 4241, to compel the listing of property for taxation, does not abate on the death of such officer.</p> <p>3. Same. — Where two suits are instituted under Ky. Stats., 1903,-section 4241, to compel the listing of property for taxation, against the same tax-payer, involving ffie same issues, and seeking the same relief, the prior suit abates the subsequent) one.</p> <p>4 Taxation — Listing Property — Action to Compel. — A proceeding before the board of tax supervisors by the revenue agent for the State at large to obtain the listing of property for taxation is not the institution of a suit under Ky. Stats., 1903,' section 4241, authorizing a suit to compel the listing of property for taxation.</p> <p>5. Attorney General — Duties1 23*5 — Actions—Listing Property for Taxation. — Ky. Stats., 1903, section 113, declaring that the Attorney General shall attend in behalf of the Commonwealth to all cases m which it is interested, except where it is made the duty of the county attorney to represent the Commonwealth, and shall institute the proper proceedings to enforce payment of demands due the State, and section 114, declaring that he, with the assistance of the Auditor, shall investigate the condition of all unsatisfied claims due the Commonwealth and take all- necessary steps to collect the same, do not authorize the Attorney General to prosecute in conjunction with the revenue agent a suit to compel the listing of property for taxation.</p>

<p>1. Railroads — Frightening Animals — Injuries—Estoppel—Plea.— In an action for injuries to plaintiff by his team becoming frightened at the carcass of a horse lying on defendant railroad company’s right of way, near a public road crossing, a plea of estoppel alleging that plaintiff, though aware of the presence of the carcass on or near the .highway and within the corporate limits of a town, failed for several hours prior to the accident to make it known to the town authorities or request its removal, was demurrable, as the facts did not constitute an estoppel, but were provable to establish as-.sumed risk.</p> <p>2. Same — Negligence—Petition.—A petition for injuries to plaintiff by his team becoming frightened at the carcass of a horse lying on defendant railroad company’s right of way near a public crossing in a town was fatally defective, where it failed to allege that defendant knew of the presence of the carcass on defendant’s right of way, or that the carcass had remained there an unreasonable length of time, or long enough for defendant to have removed it before plaintiff was injured.</p> <p>3. Same — Notice.—Where a petition for injuries to plaintiff by his horses becoming frightened by the carcass of a horse on defendant’s right of way near a road crossing, alleged that the horse was killed by one of defendant’s trains, such allegation wasi not a sufficient statement that defendant’s employes knew that the horse was struck, or that it died, from the effects of the collision.</p> <p>4. Pleading — Defects—Cure by Answer. — Where a petition for injuries to plaintiff by his horses becoming frightened at the carcass of a hors© lying on defendant railroad’s right of way was defective for failure to charge that defendant knew of the presence of the carcass, or that/ it had remained there an unreasonable time, or long enough for defendant to have removed it, such defect was not cured by an answer containing only a traverse and a plea of contributory negligence.</p> <p>5. Railroads — Crossing Accident — Proximate Cause. — Where plaintiff’s horses were frightened at the carcass of a horse lying on defendant railroad company’s right of way near a road, the killing of the horse by one of defendant’s trains was mot the proximate cause of plaintiff’s injuries resulting from the fright of hiisi team.</p> <p>6. Same — Care Required. — Where plaintiff was injured by his horses becoming frightened at the carcass of a horse lying on defendant’s right of way near a highway, plaintiff, in order t)o recover, was required to prove that the carcass was on defendant’s right of way in! close proximity to. the highway, and that defendant knew, or by tine use of ordinary care could have known, of its presence within such time as would reasonably have enabled; it to h/ave removed the carcass before plaintiff received his injuries.</p> <p>7. Same — Notice—Negligence.—Where the fact that a horse had been killed and was lying on defendant railroad- company’s right of way near a road was not communicated to any 'employe of the railroad company until less than an hour before' plaintiff was injured by his- 'h/orses becoming frightened .at such object, which was removed by defendant’s section foreman within two hours thereafter, the removal was made within a reasonable time after notice.</p> <p>8. Same. — Where it was not shown that a horse alleged to have been killed by one of defendant’s trains was lying wholly on defendant’s, right of way near a highway, or that itg situation was such as to make it apparent to train operatives that it was an obstruction requiring removal because of its , proximity to the crossing, or that it was part of the duty of train operatives to inspect dead stock on the right of way and communicate the facts to other agents of the company, the fact that the crews of two or more freight trains and a passenger train passed the carcass during the morning before its removal -and before plaintiff was injured by his horses becoming frightened at the same, was insufficient to charge defendant with notice of its presence.</p> <p>9. Same — Contributory Negligence. — Where plaintiff and his companion, though their horses were badly frightened at the carcass of a horse killed by a train and lying on the railroad ■right of way near the highway, compelled them to pass, and, on returning with a load, or whipped the horses in order t.o induce them -to pass, whereupon they backed the wagon off a fill and caused palintiff’s injuries, plaintiff was negligent as a matter of law, and could not recover.</p> <p>10. Negligence — Driver of Vehicle — Imputed Negligence. — Where plaintiff and his companion were engaged in hauling fodder with a team, and plaintiff was injured while his companion was endeavoring to force the horses past the-carcass of a horse on defendant railroad company’s right of way near a highway, at which the horses were frightened, the relation of master and servant, or joint undertakers, existe^ -^between plaintiff and his companion, so that plaintiff ,'vwas 'ch¿rgeable with the negligence of the latter.</p>

<p>1. Judgment — Matter» Concluded. — Ky. Stats., 1903, section 4146, provides that the report of a tax collector’» settlement for taxes collected due a county shall be subject to exceptions by the sheriff or county attorney, and that an appeal may be prosecuted by either party from the judgment on such, settlement. Held, That the rulings of the court, unappealed from, on exception» to suc>h, a settlement, are conclusive on both parties, but not as to mistakes which were not discovered when the exception» were filed, and these matters may be presented by any party in interest by a direct action to surcharge the settlement.</p> <p>2. Limitation .of Actions- — -Relief from Fraud or Mistake — Tax Collectors — -Settlement.—An action to surchage the settlement of a tax collector is an action for relief from fraud or mistake, under Ky. Stats., 1903, section 2519, requiring such actions to be brought within five years after the mistake has been discovered, or after it might have been discovered by ordinary diligence.</p> <p>3. Same — Accrual of Right of Action. — The right of action -to surcharge a tax collector's settlement does not accrue until ■ -the settlement has been confirmed.</p> <p>4. Same — Necessity of Pleading — Presentation by Demurrer. — In an action to surcharge a tax collector’s settlement, the defense of limitations- must be pleaded, and can not be presented! by a demurrer to the petition.</p> <p>5. Same — Reply—Sufficiency.—Where, in an action to surcharge a tax collector’s settlement, the defendant pleads limitations in defense, a reply which does not show facts sufficient to avoid' the plea is demurrable.</p> <p>6. Same — Burden of Proof — Allegations in Pleading. — Where, in an action to surcharge 'a tax collector’s settlement, the reply avoids the plea of limitations by showing that the fraud or mistake on which the action is based was not discovered within the period: of limitations, and could not by ordinary diligence have been discovered within that time, the burden of proof as to such allegations, where they are denied, is on the person alleging them.' 1</p> <p>7. Same — Avoiding Bar — Sufficiency.—In an action to surcharge a tax collector’s settlement,- allegations, to avoid the bar of limitations, that plaintiff could not by ordinary diligence have learned of tlh-e mistakes on which the action was based before the statutory bar had attached, were insufficient to avoid s.uclr bar, where the alleged mistakes- were matters of record; the records being in the county clerk’s office, and the settlement having been made in the county court.</p> <p>8. Counties — Officers—Tax Collectors — Compensation—-Statutes. —Ky. Stats., 1903, section 1884, provides that the officer collecting the county levy .shall be allowed the same compensation as officers collecting 'the State revenue. Section 4148 provides that a commission of 10 per cent, upon the first $5,000 and 4 per cent, upon the residue shall be allowed oy the county auditor. Held, That all the taxes levied by a county m one year constituted one fund, and were to be taken in the aggregate in computing the commission due the collecting officer, on which aggregate s-um he was entitled to a commission of 10 per cent, on the first! $5,000 and 4 per cent, on the remainder.</p>

<p>CASE 35 — PROSECUTION AGAINST ANDREW MILLER FOR MURDER</p> <p>Appeal from Hardin Circuit Court.</p> <p>John A. Pulton, Special Judge.</p> <p>Defendant convicted and appeals-</p> <p>POINTS AND AUTHORITIES.</p> <p>The appellant before being arraigned and before pleading to the indictment, charging him with murder, filed a plea in abatement and motion to quash and set aside the indictment on the grounds tlhat he is a negro and persons of that race had been discriminated against by the jury commissioners in selecting the grand jury that found the indictment against him, on account of their race, and color, and offered to introduce evidence to sustain said allegation, but the trial court erroneously and arbitrarily overruled his plea and motion without investigating the truth of the statement, and after the court had refused to hear evidence as to the truth of said statement. The appellant was thus denied the equal protection of the laws. (Carter v. Texas, 177 U. S., 443; Torrence v. Florida, 188.:U. S., 519; Neal-v. Delaware, 103 U. S., 370; Virginia v. Reeves, 100 U. S., 313; St-rauder v. West Virginia, 100 U. S., 303; Gibson v. Mississippi, 162 U. S., 579; Williams v. Mississippi, 170 U. S., 213; Haggard v. Comth., 79 Ky., 368; Brannon on Fourteenth Amendment, p. 49.)</p> <p>The only point relied on by appellant in this appeal is am alleged discrimination against him, by reason of the fact that the administrative officers of the court by their act& excluded negroes from the grand jury, on account of their race. Upon his plea and motion to set aside or quash the indictment, which was made before arraignment or plea to the indictment, he was not permitted to .introduce proof to sustain his plea. This of itself was prejudicial error. Counsel seems to have followed closely the practice in the Carter, Strader and Gibson cases.</p> <p>We can not ask the court to affirm, and would rather not go to the supreme court on this proposition. Appellant should have been permitted to introduce pro.of upon his plea.</p> <p>There is but one question in this case in which appellant seriously contends the lower court erred to his prejudice, and that is as to whether the court should have sustained his plea in abatement and motion to- quash the indictment. When the case was called for trial defendant filed Ms affidavit, a copy of which is contained in the record of this case, complaining of the fact that no jurors of his race or color were included in the listó of grand jurors finding the indictment, and that no such names were placed in the drum or wheel by the jury commissioner.</p> <p>Defendant does not claim in his. affidavit that his substantial rights have been prejudiced by reason of the failure to have persons of his own race or color on the grand jury, nor. does he claim that any member of the grand jury had any prejudice against him on account of his race or color, or that they failed to give his case a full and fair investigation or to pass upon it impartially.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., section 2241; Acts General Assembly of Ky., 1906, p. 521; Roberson’s Crim. Law, vol. 1, p. 211; Comth. v. Skeggs, 66 Ky., 19.</p>

<p>Ferries — -Taxes on Franchise. — Ky. Stats., 1903, section 1803, provides for the establishment of a ferry at t'h<e instance and for the benefit of the owner of the land on which it is located, or of some one who has obtained the privilege from such owner. By Ky. S-tats., 1905, section 4077, every ferry com: pany is required to pay a tax upon its franchise in addition to its ad valorem tax. Ky. Stats., 1903, section 4082, provide^ that persons or associations of persons engaged in the business of any of the corporations mentioned in section 4077, shall be liable for taxes upon their capital and property or evidences of their rights in like manner as if they were a corporation. A landowner leased her right to operate a ferry. Held, That the landowner’s right to establish and operate a ferry is not a taxable franchise, but that he who secures the right to operate the ferry is liable for the t.ax imposed.</p>

<p>1. Statutes — Operation—“Law.”—The statutes of a Stale have no extraterritorial force. They are not “law” in another State, in the ordinary sense of the term.</p> <p>2. Insurance — Regulation—Authority of Insurance Commissioner. —The insurance commissioner is a creature of the statute, possessing no authority except that which the statute confers on him; and, where he undertakes to act in a case in which the statute gives' him no authority, he may be controlled by injunction.</p> <p>3. Same — Foreign Insurance Companies — Licenses—Revocation— Grounds. — Ky. Stats., 1903, section 634, authorizing the issuance of a license to foreign insurance companies which have “fully complied with the laws of this State,” and section 753, authorizing the revocation of such license, where a company has “failed to comply with the law,” etc., do^ not authorize the revocation of a license unless the company has violated the statutes of the State governing insurance crmpanies, the quoted words referring to the provisions of the statutes; and the insurance commissioner can not revoke a license of a foreign company because it has discharged its State manager by reason of his candidacy for trustee of the company on a ticket in opposition to the ticket supported by the trustees In office, and because it has spent a part of the company’s funds in soliciting support for its candidates' for trustees, the amount so spent not affecting its solvency.</p> <p>4. Appeal — Dismissal — Grounds — -Moot Question. — Where the right of a foreign insurance company to do business in the State is involved in a suit by it against the insurance commissioners, an appeal by it from a decree dismissing the suit and dissolving an injunction enjoining the commissioner from refusing to continue the company’s authority to do business in the State does not raise a moot question, and it will not be dismissed, though at the time of the decision "f the court of appeals its judgment will not have any real value, since its judgment will relate to the date of the submission.</p> <p>5. Same. — Where a ease on appeal necessarily stands over for argument or for judgment from term to term, a party will not be prejudiced by the delay, but will be allowed to enter judgment retrospectively to meet the justice of t'he case.</p> <p>Chief Justice O’Rear and' Judges Nunn and Lassing dissenting.</p>

CASE 41. — SUIT BY S. S. MOORE AND OTHERS AGAINST THE CITY OF GEORGETOWN. Appeal from Scott Circuit Court. R. L. Stout, Circuit Judge. Prom a judgment dismissing the petition the plaintiffs appeal The questions involved in this case have never been before this court for determination in the past.

CASE 42. — SUIT BY BETSY JANE MILLER AND ANOTHER AGAINST CHARLES S. PETTIT CONCERNING A PASSWAY. Appeal from Grant Circuit Court. B. P. MIenbpbb, Circuit Judge.

<p>CASE 43 — ACTION BY BANK OF RUSSELLVILLE AGAINST MOSS E. HART AND ANOTHER ON NOTES.</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>From the judgment Moss E. Hart appeals</p>

<p>CASE 44. — ACTION BY MARY J. MORGAN AGAINST THE CHESAPEAKE & OHIO RY. CO AND ANOTHER TO RECOVER DAMAGES FOR PERSONAE INJURIES.</p> <p>Appeal from Lewis Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals</p>

CASH 45. — PROCEEDINGS FOR THE ESTABLISHMENT OF A HIGHWAY IN BRECKINRIDGE COUNTY IN WHICH CERTAIN DAMAGES WERE AWARDED TO W. E. RHODES. Appeal from Breckinridge Circuit Court. Weed S. Chele, Circuit Judge.

<p>Counties’ — Fiscal Courts — Appropriations.—The fiscal court has no power to make appropriations out of county funds for any purpose, except as provided by Act March 21, 1906 (Acts 1906, p. 342, ch. 73), amending Ky. Stats., 1903, section 1840, and hence can not appropriate such funds to secure a convention to be held in the county; that object not being within the statutory authority to advertise the resources of the county.</p>

<p>1. Municipal Corporations — Maintenance of Public Parks — Authority. — Public parks, maintained without gain, are not only exempt from taxation, but may be created and maintained by taxation, they being public places, established for public purposes; and the right of a city to support by taxation public parks l’ests on its duty to maintain the public health.</p> <p>2. Same — Torts—Liability.—In the absence of a statute authorizing it, an action will not lie against a municipality for the neglect of a public duty imposed on it for the benefit of the public or for the personal tort of any of its. officers or agents in the performance of such public duty.</p> <p>3. Same. — In the absence of a statute authorizing it, an action will not lie against a board elected by the voters of a city, with authority to control the public parks supported by taxation, for the negligence of its employes.</p> <p>4. Same. — A municipal corporation is not responsible for the misdoing of persons in charge of its police or fire departments.</p>

<p>1. Threats — Statutes—Construction.—Ky. Stats., 1903 section 1222, provides that if any person shall knowingly send any letter, with or without a name signed thereto, or with a fictitious name, threatening to kill another, or to do him or his wife or child harm, or burn or destroy his house or other property, or to accuse him or his wife or child of a felony, with the intention to extort or gain money, goods, wares, merchandise, or a deed, will, or other instrument of writing, from the person so threatened, or irom any other, he shall be confined, etc. • Held, That the sending of a threatening letter by one woman to another for the purpose of blackmail was not an offense under such section; it being an essential ingredient of the crime thereunder that there be threats to do harm, to a person, or to destroy his property, or charge him or his wife or child with a felony, as well as to extort money, etc.</p> <p>■2. Same — Act March 17, 1902 (Laws 1902, p. 55, ch. 25), which was an enlargement of Kuklux Act April 11, 1873 (Pub. LaW'S 1873, p. 35, ch. 767), which was entitled “An act to prevent lynching and injury to and destruction of real property” by “.riotous assemblages, * * * and to prevent the posting and circulation of threatening letters,” etc. The first section prohibits persons banding together to injure or disturb another, the second is against banding together to injure or destroy property, andi the ninth, which is Ky. Stats., 1903, section 1241a, subsection 6, provides that if any person shall send, circulate, or exhibit any threatening notice or letter, signed with such person’s name, or anonymously, he shall, on conviction, be fined, etc. Held, That, as the purpose of such act was to prevent kukluxing, a prosecution for sending or circulating a threatening letter thereunder could not be sustained, unless there was, in addition, a banding of persons to intimidate, alarm, disturb, or injure another, etc., so that the sending of an intimidating letter by one woman to another to blackmail was not an offense thereunder.</p> <p>3. Same — Indictment.—Aru indictment for sending a threatening letter in alleged violation of Ky. Stats., 1903, section 1241a, subsection 6, providing that if any person shall send, circulate, etc., a. threatening letter, signed by himself or another’s name or anonymously, he shall be punished ( etc., in the language of the statute, was fatally defective for failing to set out the letter' in substance.</p> <p>4. Same — Nature of Offense. — Defendant wrote a letter to her suspected rival in her husband’s affections, charging the addressee with having received money and property from the husband, and, demanding that it be returned, or the addressee’s conduct would be exposed. Held, That the sending of such letter was not an indictable offense.</p>

<p>1. Intoxicating Liquors. — Unlawful Sales — Evasion of Local Option Law — Evidence—Place of Offense. — Under Ky. Stats., 1903, section. 2570, providing that no trick or pretense shall be allowed to evade the operation of any local option law, evidence that a gasoline boat on the Mississippi river landed in Kentucky and took on the defendant, and went to the Missouri side of the river where defendant bought liquor, and was then landed off the Kentucky side, no fare being charged, showed an evasion, of the law within the section justifying a conviction.</p> <p>2. Criminal Law — Jurisdiction.—Locality of Offense. — Where accused!, in Kentucky, went on a boat, and cro-.sed over to the Missouri side of the river, anid there bought whisky in violation of the laws of Kentucky, the courts of Kentucky have jurisdiction of the offense, since the States of Kentucky and Missouri, under Act Cong. March 6, 1820, ch. 22, 3 Stat. 545, have concurrent jurisdiction over the Mississippi river.</p>

<p>1. Appeal — Cross-Appeal—Entry on Record. — Criminal Code Prac., • section 355, provides that in' penal actions- the appeal ■shall be similar in all respects to appeals in civil actions. Civil Code Prac., section 755, declares that an appellee may obtain a cross-appeal, at any time before trial; by an entry on the records of the court of appeals. Held, That, as a cross-appeal can not be granted by the circuit court, questions raised by the dómmonwealth, in what purports to be a erossi-appeal in a penal action, will not be considered' by the court of appeals, where no entry thereof has been made in that court.</p> <p>2. Insurance — Unjust Discrimination — Rebates, on Premiums— Penalties — Actions for — Questions for Jury. — In an action to recover the penalty imposed by section 656, Ky. Stats., 1903, for rebating upon a policy of insurance, defendant’s guilt held, under the evidence, a question for the jury.</p> <p>3. Same — Parties Liable. — Under Ky. Stats., 1903, section 656. providing that every inspram.ee company, officer, or agent thereof who shall grant a rebate on a policy of insurance not specified in the policy contract shall be fined, an agent of the company who knowingly participates in the act of the insurance broker who secured the contract in grafting such a rebate is* guilty of the act prohibited, -and liable for the. penalty imposed.</p> <p>4. Same — Excessive Recovery. — In an action by the Commonwealth to recover the penalty imposed by Ky. Stats., 1903, section 656, providing a penalty of $500 for rebating upon a policy of insurance, a verdict of $350 was. not excessive, or so large as to indicate passion or prejudice.</p> <p>5. Sam© — Judgment—Enforcement—Capias Pro Pine. — Under Criminal Code Prac., section 11, providing that a public offense of which the only punishment is a fine may be prosecuted by a penal action in the name of the Commonwealth, and that proceedings-' therein are regulated by the Code of Practice in civil cases, a fine imposed by Ky. Stats., 1903, section 656, for rebating on a policy of insurance, may be recovered by the Commonwealth in a civil action, and hence, upon recovery of the fine, the Commonwealth is entitled to a capias pro fine under Criminal Code Prac., section 301, providing that, upon judgment for fines, whether rendered on indictments, penal actions, or otherwise, writs of execution may be issued against the person or property of the defendant.</p> <p>6. Same — Statutes Imposing Penalties' — Construction.-—-Ky. Stats., 1903, section 656, provides that no insurance company o.r agent thereof shall make any contract of insurance or ' agreement as to such contract other than is plainly expressed ■ in the policy issued thereon» nor pay or allow any rebate of premium payable on the policy, or advantage, in the dividends, or other benefit to accrue thereon, not specified in the policy contract of insurance. Held, That the object of the statute is to prevent insurance companies from discriminating in favor of individuals between insurants of the same class, either as to premiums charged or dividends allowed, and should be given a reasonable interpretation and strict, though not oppressive, enforcement.</p>

<p>1. Master and Servant — Master’s Liability for Injuries to Servant — Acts Constituting Negligence. — A torpedo^ placed on a railroadi track to warn a train of another ahead is not an obstruction, the placing of which on the track constitutes negligence, rendering the railroad liable for. injuries, to a ■section hand caused by its explosion.</p> <p>2. Same — Contributory Negligence. — A section hand, who had been in the employ of a railroad for some time, and who was thoroughly familiar with torpedoes, knowing that they were in constant use by the railroad for the purpo.sa of signaling trains that the track ahead was obstructed, and who knew that he had no opportunity of being apprised of the fact that a torpedo- had been placed on the track, and that, if the train which had just passed should lose time, it would place a torpedo on the track to notify any train that might be following, was bound to see, in- pushing a hand-car along the track, if a torpedo had been placed on the track, and, if he pushed the hand-car over one and was injured by its ex- ' plosion, it was due to his own carelessness.</p> <p>3. Same — Risks Assumed by Servant. — An employe assumes all of the risks ordinarily incident to the business in which he is engaged.</p>

<p>1. Appeal — Cross-Appeal—Amount Involved. — The cross-appeal, which Civil Code Prac., section 755, provides appellee may obtain at any time before trial by an entry on the records of the court of appeals, and which eaii only be taken in such court, and can not be granted by the trial court, may be prosecuted; though the amount in controversy as to appellee and the judgment from which he prosecutes it is less than the amount'necessary to authorize an appeal.</p> <p>2. Husband and Wife — Liability for Rent — Property of Tenant’s Wife. — Personal property of the wife of a tenant on the leased premises can net be subjected to payment of the rent; Ky. Stats., 1903, section 2127, providing that the wife shall hold all her estate free from the debts of her husband, section 2305 providing that rent may be recovered from the lessee, his assignee, or undertenant, and section 2307 providing that an attachment for rent shall bind and may be levied on any personal property of the original tenant in the county and the personal property of the assignee or undertenant found on the leased premises.</p> <p>3. Sheriffs — 'Wrongful Levy and Sale — Liability to Claimant — The sheriff who levies an attachment and makes a sale thereunder is not protected from action by claimants of the property, though he takes a bond irom the attaching creditor, containing a provision, unauthorized by Civil Code Prac., section 211, under which it is taken, obligating such creditor to pay to any claimant cf the property the damage he may sustain from the seizure or sale.</p> <p>4. Same — Actions—Parties.—One whose property is sold on attachment for debt of another may join in the same action therefor the sheriff who made the sale and the persons who procured him to make it.</p> <p>5.. Bailment — Liability cf Bailee — Sale of Property on Attachment. — One in whose hands property is placed to safely care for for a consideration is not liable for its seizure and sale under attachment, he having bad nothing to do therewith, except to surrender it to the sheriff on his demanding it by virtue of the attachment in his hands.</p> <p>6. Attachment- — Wrongful Sale — Liability of Plaintiff in Attachment. — Plaintiff in attachment is liable for the sale under the attachment of the property of another than the debtor only in case he procured or directed the officer to sell it.</p>

<p>1. Wills' — Construction—Presumption/ Against Partial Testacy.— It is presumed that a testator intended to dispose of his entire estate, and the law favorS' such construction as will carry such intent into effect.</p> <p>2. Same — Estates Created. — Testator devised real estate to1 a sister for life with remainder to her children, gave property to his parents for life with gift over, and devised and bequeathed to his wife all the remainder of his estate, and declared that it was his "request that his library should be kept intact for a specified period, and •that, if at the end of that period his brother showed in the judgment of the wife sufficient promise, it was testator’® desire that she should give the library to him, and further provided that it wasi his “request” that, should the wife die without heirs and the estate devised should be intact, she should will the same to such of his brothers and sisters as it might seem proper to her. Held, That under Ky. Stats., 1903, section 2342, providing that, unless a different purpose appears by express words or necessary inference, every estate in land created by will without words of inheritance shall be deemed a fee simple, the wife acquired an estate in fee.</p> <p>3. Same — Precatory Trusts. — To create a trust and make precatory words operative in a will, it must appear that the estate is not an absolute estate; that the disposition thereof is not • unrestricted; that the subject of the devise and the devisees are certain and the trust definite; that the language used is/ positive and imperative, and not such an indicates a mere desire on the part of the testator which may he complied with or not at the pleasure of the legatee.</p> <p>4. Same. — Testator devised his residuary estate to hi® wife absolutely, and provided that “it is my request” that my law library be kept intact for a specified period,' and “it is my further request” that my wife give the library to my brother if he shows in the judgment of my wife, “sufficient promise,” and “it is my further request” that, should my wife die without heirs of her body and the estate devised to her be intact, she “will and devise” the same to such of my brothers and sisters as might seem proper to her. Held not to create a precatory trust.</p>

<p>1. Street Railroads — Injuries to Travelers — Collision with Vehicle — Evidence—Verdict.—In an action for injuries to plaintiff in a collision between a vehicle in which he was riding and defendant’s street car, evidence held to sustain a verdict for plaintiff.</p> <p>2. Same — Duty of Railway Company.- — Where a street car approached a vehicle on the track it was the motorman’s duty to have the car under reasonable control, to keep a lookout ahead to avoid a collision, to give notice, of the presence of the car by the ordinary signals, and to exercise ordinary care to avoid a collision and consequent injury to persons or vehicles.</p> <p>3. Same — Contributory Negligence. — Where plaintiff, while driving a buggy, was injured in a collision with a street car through the negligence of the motorman, plaintiff was entitled to recover, unless his own negligence contributed to the injury and the motorman by the exercise of ordinary care could not have prevented the injury, notwithstanding plaintiff’s negligence.</p>

<p>1. Building and Loan Associations^ — Description.—Building and loan associations are 'a peculiar kind of corporation usually composed of aggregations of people dealing exclusively among themselves in accumulating a savings fund for investment in homes, more in the nature of limited co-operative home building copartnerships than commercial bodies.</p> <p>2. Taxat’cn — Building and Loan Stock. — Under Ky. Stats., 1903, section 4093, providing for the taxation of building and loan shares to the shareholders to the amount paid in and not withdrawn on September 15th of each year, provided that borrowing members should not be required to list their shares, if the amount» borrowed equalled or exceeded the amount paid in on the shares, members are only taxable on the amount of their stock remaining in the association on the date specified over and above the amount of any loan or withdrawal that may have been made on such stock.</p> <p>3. Same — Notes and Bonds from Borrowing Members. — Under Ky. Stats., 1903, section 4093, providing for the assessment of shares in building associations, and section 4094, providing for -the assessment to the association of its surplus funds and undivided profits, the association is not taxable on notes- and bonds given by borrowing members to secure loans from the association.</p> <p>4. Same — Bonid Issue. — Where it was not shown that money raised by a building and loan association on bonds, and loaned out on mortgages, was a part of 'the association's “surplus” or undivided profits, it was not taxable to the association under Ky. Stats., 1903, section 4094, providing that such associations should list only surplus funds and undivided profits for taxation:</p> <p>5. Same' — Undivided Earnings. — Ky. Stats., 1903 section 4094, declares that each building and loan association shall list with the assessor the amount of its surplus fund and undivided profits on hand and undistributed on September 15th of every year. Held, That undivided profits on hand on such assessment date, less the payment of current indebtedness as of that date, were taxable, notwithstanding the association’s distribution dates were January 1st and July 1st, respectively.</p>

<p>1. Trial — Reeeptio/n of Evidence — Order of Proof — Plaintiff— Deposition. — Civil Code Prae., section 606, subdivision 3, declaring that no person shall testify for himself in chief in an ordinary action after initrodhcing other testimony for himself in chief, nor in am equitable action after taking other testimony for himself in chief, did not prohibit the Heading of plaintiff’» deposition after several witnesses had testified for her in- chief, where her deposition was taken before such witnesses testified.</p> <p>2. Same — Instructions-—Assumption of Facte. — An instruction to find for defendant telephone company, unless', while plaintiff was driving along the road, she came in. contact with a wire belonging to defendant, and which defendant had negligently permitted, if it had done so, to hang oven and near the roadbed, and abstract the travel thereon, did mot assume that defendant telephone company “negligently permitted.” its wire to hang over the road and obstruct public travel.</p> <p>S. Damages — Pleading — General Damages. — General damages need not be averred, being such as the law presumes to have accrued from the wrong.</p> <p>4. Same. — A petition in a personal injury action, alleging thiat plaintiff was thrown with great force from her buggy,, rendering her unconscious, severely injuring her head and neck,, wrenching and spraining her spine, bruising, spraining, and laming her right leg and arm, cutting and bruising painfully her face, 'and causing great internal injury and physical and mental shock, and that she was permanently disabled and her health permanently impaired, was sufficient to authorize a recovery for a permanent reduction in power to earn money; it being a necessary incident of permanent disability.</p> <p>5. Same — Evidence—Sufficiency—Impairment of Earning Capacity. — In a personal injury action, evidence that prior to the accident plaintiff was in good health and had done the cooking, washing, ironing, and general housework for a large family, and that thereafter she was unable to perform any of those duties, authorized a recovery for permanent reduction in power to earn money, the extent thereof to be determined by the jury from their common knowledge and experience.</p> <p>6. Appeal — Review—Harmless Error — Instructions.—In a personal injury action, defendant contended that error m instructing to find “also a reasonable compensation for the time she has lost from her business, if any, by reason thereof,” was not cured by erasing those words from the instruction, after the conclusion of the argument and just as ■the jury was retiring. It did not appear that defendant asked permission to reargue the case, and the court not only erased the objectionable words, but admonished the jury to disregard them. Held, That defendant was not in any way prejudiced.</p> <p>7. Evidence — Opinion Evidence — Subjects of Expert Testimony ■ — Permanency of Injuries. — In a personal injury action, the permanency of injuries shown may be proved by the opinion of a physician.</p> <p>8. Damages — Evidence — Sufficiency — Personal Injuries.— Evidence, in a personal injury action, held to justify a finding both as to the character of plaintiff’s injuries and the cause thereof in accordance with her contention.</p> <p>9. Same — Excessive.—After the accident, plaintiff was up a few times, but finally went to bed, and was thereafter confined to her room. She suffered a great deal. The accident produced a concussion of the brain and spinal cord, and a functional derangement of the bladder, and she was partially paralyzed in her right leg and arm, and at the time of the trial, more than a year after the accident, she was in a helpless condition, and her injuries were permanent. Held, That a verdict of $7,500 was not so excessive "as to justify a reversal.</p>

<p>1. Abatement — Misnomer of Defendant — Necessity to Pleading in Abatement. — A corporation, when sued under a wrong name, must by answer or plea in abatement set forth the misnomer and disclose its true name, so that plaintiff may amen di, and it can not object to the misnomer for the first time oft appeal.</p> <p>2. Appeal — Question not Raised in Trial Court — Misnomer of Defendant. — Where, in an action against a corporation sued under a wrong name, it appeared that it owned and controlled the hospital in which plaintiff sustained the injuries complained of, and it failed to object in the court below to the name given it or to disclose its true name, but made a defense on the merits, it could not complain on appeal that judgment went against it in the name by which it was sued.</p> <p>3. Hospital — Injuries to Patients — Negligence—Evidence.—In an iaction by a patient in a hospital assaulted by a demented patient therein, evidence held to show negligence ■ on the part of the employes of tne hospital in permitting the demented patient to escape from his room and assault the patient, authorizing a recovery.</p> <p>4. Damages — Personal Injuries — Excessive Damages. — A patient in a hospital was assaulted by a demented patient, and injured. Her illness was immediately and greatly aggravated in consequence of the assault, and her health was, to some extent, permanently impaired thereby. Held, That a verdict of $1,000 was not excessive. ,</p> <p>5. Charities* — Hospitals—Injuries to Patient — Liability.—Where a hospital is maintained as a charitable institution, "either by the government, or by a corporation, or by an individual,. there is. no liability for injuries to a patient therein in consequence of torts, of the employes in charge thereof.</p> <p>6. Hospitals- — -Injuries to Patient — Liability.-—A hospital maintained by a university as an adjunct to its school of medicine for the advantage of its students and professors, and conducted for profit by requiring compensation from patients able, to pay, though receiving free of charge patients unable to pay, is not a charitable institution, and the corporation is liable to a pay patient for the torts of its agents ánd employes.</p>

<p>1. Attorney and Client — Attorney’s Lien for Services' — Time When Lien Attaches — Priorities.—A 'lien for attorney’s, services ■ decreed by; -the . judgment in .the motion wherein -, the services, are rendered relates, back and takes . effect., from the time of the commencement of the .services, and is superior to an attachment subsequently levied on the interest of the attorney’s client in the property involved in the action.</p> <p>2. Same — Right to Lien — Statutory Provisions. — Ky. Stats., 1903, section 107, provides that, where an action is prosecuted to a recovery, the attorney shall have a lien on the judgment for money or property which may be recovered for his fee, etc. Under Civil Code Prac., section 732, subsection 34, the word “action” embraces a demand for a set-off or counterclaim. Held, That, while, where defendant’s attorney merely defeats a recovery by plaintiff, he is not entitled to a lien on the property involved in litigation, he is entitled to a lien if he obtains an affirmative judgment for defendant.</p> <p>3 Partnership — Lien of Partner on Assets.- — A partner has a lien on the partnership assets1 for his portion thereof after payment of the firm debts.</p> <p>4. Attorney and Client- — Attorney’s Lien for Services — Statutory Provisions. — Ky. Stats., 1903, section 107„ provides that where an -action is prosecuted to a recovery, the attorney shall have a lien on the judgment for money or property recovered for his fee. Held, That where, in a suit by -partners to settle the partnership and to enforce thoir lien on the assets, defendant partner obtained an affirmative judgment for a definite sum then under the control of the court, the title to wnich up to the time of the judgment was in the partnership and not in himself alone, there was a recovery within the meaning of the statute, and defendant’s attorney was entitled to a lien for his fee.</p>

<p>Intoxicating Liquors — Municipal Regulation — Delegation of Power —Locality of Offense. — Constitution- section 143 authorizes the establishment of a police court in each city .and town in the State, with jurisdiction over violation^ of municipal ordinances and hy-laws within the corporate limits of the city or town in which it is established. Ky. Stats., 1903, section 3490, subsection 27, authorizes the council of a city of the fourth class to pass ordinances licensing, permitting, and regulating or restraining the sale of intoxicating liquors within the limits of a city, or restraining or prohibiting the sale thereof within- one mile of the limits of such city. Held, That an ordinance of a municipal corporation prohibiting the sale of intoxicating liqu-ors within a half mile cf the corporate limits, -and further providing that any person violating the provisions of the ordinance should, on conviction in the police .court in the city, be fined, etc., and making it the ■duty of the police to enforce the ordinance, and to arrest all persons- violating -the same, and to take them before the police judge of such city to he dealt with according to the ordinance, was void, as in conflict with, the constitutional provision.</p>

<p>1. Insurance — Life Insurance — Dividends.—An insured in a life policy, dated March, 1893, providing for dividends, who borrowed money from the ” insurer for premiums due March, 1902, and who defaulted in the payment of subsequent premiums, is entitled to the dividends on his policy for the year 1903 in computing the amount available for extended insurance as provided in the policy.</p> <p>2. Same — Borrowing Amounts of Premiums. — An insurance company in lending money to its policy holders occupies the same position as any other money lender, and is entitled only to collect the debt with 6 per cent, interest, and a contract allowing it to demand more will- not be enforced.</p> <p>3. Usury — Statutes—Enforcement.—The laws against usury pro* hibiting schemes resorted to by lenders to enable them to charge more than the legal rate of interest are rigidly" enforced, and no plan will be allowed to defeat them.</p> <p>4. Insurance — Life Insurance — Extended Insurance. — Where g, life policy stipulated that if it should become void by the non-payment of any premium the entire net reserve should be applied for the purchase of extended insurance, a provision that if there was any loan on the policy the indebtedness should be paid out of the cash surrender value and the remainder paid in cash or applied for the purchase of extended insurance was void, because discriminating against, a policy holder in debt to the insurer, and where an insured borrowed money from the insurer for the payment of the premiums and did not repay, it and defaulted in the payment of future premiums, the insurer must ascertain the amount of the net reserve and deduct from it«the amount of the debt and interest and use the balance for the purchase of extended insurance.</p>

<p>1. Taxation — Taxable Assets' — Corporations—Organization Ex-* penses. — Money paid by a corporation for the purpose of effecting an organization or putting the company into legal - shape to do business, is not a taxable asset in the hands of the company, as the value of the corporation’s franchise is not dependent on the amount expended in creating it.</p> <p>2. Same — Foreign Corporations — Payment of License Fees.— That a corporation, organized in New Jersey, hut doing all of its business in Kentucky, was required to pay an annual license fee to the State of New Jersey to continue its cor; porate existence, did not enhance the value of its franchise taxable in Kentucky.</p> <p>3. Same — Taxation of Corporate Shares — Statutes.—Ky. Stats., 1903, section 4085, provides that the property of all corporations, except as otherwise provided, shall be assessed to the corporation, and that so long as the corporation pays the taxes on all of its property the stockholders shall not be required to list their shares for taxation. Held, That under Constitution section 171, providing that all taxation shall be equal and uniform, section 4085 was applicable to foreign as well as domestic corporations.</p> <p>4. Statutes- — Construction.—Where a statute is susceptible of two constructions, one inequitable and unjust, -as well aa rendering the statute unconstitutional,- and the other rendering the act valid and equitable, the latter. construction will be applied.</p> <p>5. Taxation — Foreign Corporations — Holding Companies — Shares of Stockholders. — A Kentucky railway company, desiring to increase its capital, procured the organization of a foreign corporation, with additional rights and powers, which, however, owned no property and exercised none of its powers, except to hold the stock of the railway company, for which the .holding company’s stock was exchanged according to a -specified proportion; the only assets of the holding company being the stock in question, and th-e amount paid to it by the railway company to be disbursed to the holders of its stock as- dividends. Though the nominal capital of the holding company exceeded that of the railway company, the only property represented was that owned by the railway company, on which full taxes were assessed and paid. Held, that the shares of the holding company were not subject to taxation, under Ky. Stats., 1903, ■ section 4085; providing that, if the assets of a corporation are fully taxed and taxes paid by it, its shares shall not be taxable to the holders.</p> <p>6. Same — Franchise—Right to be a Corporation. — A foreign corporation, organized merely to hold stock of another corporation, so long as it never acquired any property o.r engaged in any business, was not taxable; its “right to be” a corporation being of no taxable value.</p> <p>7. Same — Removal of Causes. — A foreign corporation’s right to remove actions against it to the federal court does not give to its snares a taxable value, under the rule forbidding the States to abridge rights guaranteed by the federal Constitution by a State tax.</p> <p>8. Same — Capital Stock — Valuation.—Under Ky. Stats., 1903, section 4079, requiring the board of valuation and assessment to value the capital stock of railway companies for taxation, the board in its valuation must consider every element of property, tangible or intangible, owned by the company, together with the corporation’s franchise and earning capacity; but the board, in making the valuation, is not governed by the property value of the railway company’s shares.</p> <p>9. Same — Revaluation.—Where all the property of a railway company was valued for taxation by the board of valuation, •and assessment for certain years, a revaluation for those years could not be made.</p>

<p>1. Cemeteries — Rights of Lot Owners — Property in Lots. — While the purchaser of a cemetery lot does not acquire a' fee simple title to the property, and must use it subject to and in accordance with the reasonable by-laws and rules of the cemete’ry corporation, he has a property right in the lot, which he is entitled to protect from invasion, whether by a trespasser or the unauthorized and illegal acts of the directors of the corporation.</p> <p>2. Same — Remedies.—The owner of a cemetery lot may maintain either trespass for damages or an injunction to protect nis rights' from invasion, either against a trespasser or the cemetery corporation.</p> <p>3. Same — Use of Adjoining Lot — Burial of Animals. — Where lots in a cemetery controlled by a corporation Were sold only in ■accordance with the cemetery s rules, and regulations, one of which 'wasi that the cemetery was set apart for the burial of the white race, and should be used for cemetery purposes only, a lot owner was entitled to maintain a mandatory injunction to compel the removal of the carcass of a dog, which plaintiff’s adjoining lot owner -had permitted to be buried in her lot.</p> <p>4. Same — Nuisance.—The fact that the carcass of the dog was well interred, and was not a physical nuisance, was immaterial.</p>

<p>1 Appeal — Affirmance — Motion—Grounds — Delay. — Under Code Prac., 1906, section 759, providing that, if an appeal with supersedeas is taken for delay merely, the appellee may at any time move the court to affirm the judgment as a delay ease, the court can not entertain a motion to affirm as a delay case until the case is regularly on the docket and before the court.</p> <p>2.. Same — Calendars—Preferring Case. — The court of appeals will not entertain a motion to docket an 'appeal and advance a case for decision before it has been regularly placed upon the docket as provided by Code Practice, 1906, unless both parties consent thereto; and section 298, providing that the order of a court appointing or refusing to appoint a receiver shall be deemed a final order for the purpose of an appeal, does not put appeals taken under it on a different footing from other appeals.</p> <p>3. Same — Elections.—Under the statute regulating appeals in election cases, providing that the transcript must be filed within 30 days- after final judgment in the circuit court, and that in the court of appeals the ease shall be heard and determined -as speedily as possible and shall have precedence over all other cases, election cases may be heard and-determined at the time at which they are filed.</p>

<p>1. Carriers — Live Stock — Connecting Carriers — Liability.—Where live stock is shipped to a point within or without the State, the contract of shipment made with the initial carrier is binding on all connecting carriers who receive the live stock.</p> <p>2. Same — Actions—Venue.—Where live stock is injured by the negligence of any of the carriers having it in charge between the points of reception and destination, an action may be brought against the initial carrier in the county where the contract of shipment was made.</p> <p>3. Same — Parties.—In an action against an initial carrier for injuries to live stock, all the connecting carriers against whom it is sought to recover damages may be made parties defendant; and, if brought before the court by process as provided by Civil Code Prac., section 51, a judgmeñt may be given against any one or all of them that the evidence shows to have committed the injuries.</p> <p>4. Same — Liability of Connecting Carriers. — In an action against one or several carriers for injuries to live stock, none of them will be responsible for damages occurring beyond the end of the lines controlled by them in the absence of a special contract.</p> <p>5. Same — Trial—Separate Verdicts — Instructions.—In an action against several carriers for injuries to live stoek, in the absence of a special contract extending the liability beyond the end of their respective lines, the jury should be instructed to find a separate verdict against each, carrier for the damages that occurred on its line.</p> <p>6. Same — Question for Jury. — In an action against two connecting carriers for .injury- to live stock, plaintiff alleged that an oral contract of shipment was made with the initial carrier; that there were mutual traffic arrangements between the two roads, and that they were connecting lines; that the contract was made with the initial carrier acting on behalf of the other road; that the stock was shipped by the initial carrier, and delivered to the connecting carrier which agreed to ship it to its destination. The written contract under which defendant connecting carrier alleged that the shipment was made was substantially the same as the parol contract, except in respect to the limitation of each carrier’s liability to injuries occurring on its line, and the evidence showed that the stock was received by the connecting road and carried to its destination. Held, That the refusal of the trial court to instruct peremptorily for defendant connecting carrier was .not error.</p> <p>7. Pleading — Variance.—A variance exists when the evidence does not sustain the pleadings on which-a recovery is sought or a defense rested.</p> <p>8. Carriers — Injuries to Live Stock — Action—Pleading—Variance. —Civil Code Prac., section 129, provides that no variance between pleadings and proof-is material which does- not mislead a party to his prejudice. Section 131 provides that, if the allegation to which the proof is directed be unproved in its general scope and meaning, it is not to be deemed a case of variance, but a failure of proof. Held, That where, in an action against -connecting carriers for injury to live stock, plaintiff alleged that a verbal contract of shipment was first made and that .a written contract was subsequently signed, and proved that a verbal contract was made, and defendants relied on a written contract and proved that one was entered into, there was no variance or failure of proof.</p> <p>9. Same — Failure to Feed and Water. — Under Revised Stats. U. S., section 4386 (U. S. Comp. St., 1901, p. 2995), providing that no railroad company shall confine live stock in cars for a longer period than 28 hours- without unloading for rest, water and feed, it is the duty of a railroad to be reasonably well prepared to care for stock at the places where it is unloaded for rest, water, and feed.</p> <p>10. Same — Measure of Damages — Instructions.—Where in, an action against a railroad-for injuries to live stock shipped under a contract, by which defendant was only liable for damagesi between the towns of L. and M., though the destinar tion of the stock was A., some 200 railes beyond M., the evidence showed that the injuries were sustained between L. and M., the court properly instructed that the measure of damages was> to be based on the condition of the stock on arrival at A.</p>

<p>1. Action — Contract or Tort — Waiver of Tort. — One may waive a trespass committed on his land by another by forcibly entering on it and cutting, and removing timber, etc., and sue in assumpsit for the value of the timber cut and appropriated.</p> <p>2. Judgment — Res Judicata. — Where one converts to his own use the property of another, the latter may sue in trespass, or trover, or replevin, or for money had and received, but a recovery in one action after trial on the merits is a bar to another action, each being for.the same act.</p> <p>3. Same. — A trespass on land and a conversion of goods in one continuous- transaction constitutes one cause of action, and ■a recovery for the goods- or for trespass bars an action ror the other.</p> <p>4. Election of Remedies* — Inconsistent Remedies. — One who, instead of s-uing for a trespass on land in the circuit court where the land is located, sues for the value of the timber cut and appropriated in a court which does not have jurisdiction of the trespass, is bound by his election.</p> <p>5. Judgment — Res Judicata. — A judgment of dismissal on the merits, whether on facts' shown by evidence, or averred in the petition and admitted by demurrer, is a bar to another action for the same relief.</p> <p>6. Election of Remedies — -Effect—“Waiver.”—Where one sued in . assumpsit for the value of timber cut and appropriated by another, he waived the right to recover for any injury resulting from the trespass; “to waive” being to voluntarily relinquish a right one may enforce if he chooses,</p> <p>7. Judgment — Res Judicata. — A landowner may maintain ejectment therefor, and under Civil Code Prac., section 83, subsection 2, recover therein, or in. an independent suit, for us© and occupation, though he has sued for the value of timber cut on the land and appropriated by another, and has been defeated therein on the merits.</p>

<p>1. Appeal — Jurisdiction—Decision of Intermediate Court — Conclusiveness. — Acts 1906, p. 115, ch. 22, art. 3, section 1, makes It the duty of an owner or claimant of land to pay all the taxes which have been or should have been assessed against him as of the years 1901 — 1905, inclusive, and provides that failure to list for assessment or failure to pay the taxes charged for any three of the years shall be cause for forfeiture to the Commonwealth of his title, which cause of forfeiture shall be extinguished if the owner shall cause the land to be assessed for taxation before March 1, 1907. Section 2 provides that the ascertainment of the amount of taxes unpaid and- assessments required by the' preceding section shall be made by the county court on the application of the owner, that either the petitioner or the Commonwealth may appeal to the circuit court, and that the finding of the circuit court shall be conclusive and, not subject to appeal. Ky. Stats., 1903, section 950, allows appeals to the court of appeals where the title to land is involved or the amount in controversy is not less than $200, and from all other final orders and judgments. Held, That the court of appeals had jurisdiction of an appeal from a judgment of the circuit court, on appeal from the county court, refusing to list lands on petition under section 2, in that the petition was not sufficient under the statute; the word “finding” relating to the fixing of the value of the property assessed alone.</p> <p>2. Taxation — Assessment—Constitutional Officers — Powers—-Statutory Provisions. — Acts 1906, p. 115, ch. 22, art. 3, section 1, makes it the duty of an owner or claimant of land to pay all taxes which have been or should have been assessed against him as of the years 1901 — 1905, inclusive, and provides that failure to "list the land for assessment or to pay the taxes charged as of any three of those years shall be cause of forfeiture of his title to the Commonwealth, which cause of forfeiture shall be extinguished if the owner shall cause the land to be assessed before March 1, 1907. Section 2 provides for the ascertainment of the amount of taxes unpaid and assessments required by the preceding section by the county court on application of the owner. Section 3 provides that, if the owner shall fail to have the land assessed, the Commonwealth’s attorney shall institute a proceeding to forfeit ■the same to the Commonwealth. Section 4 provides for a purchase back by the owner of the title so forfeited on ascertainment by the county court of the amount of unpaid taxes. Constitution section 227 creates the office of assessor, but does not define his duties. Section 172 provides for punishing “any oflieer or other person authorized to assess values for taxation,” who shall willfully commit any error. Held, That the act is not unconstitutional, on the ground that it takes from the assessor, a constitutional officer, the power conferred on. him alone by the Constitution to assess real estate; the Constitution seeming to imply that the Legislature may provide other persons to assess property.</p> <p>3. Statutes — Special Legislation — Classification of Subject — Taxation. — The act is not in vioiat.on of Constitution section 59, prohibiting local and special legislation, though it may not apply to every county in the State; the classification of the subject, lands which have been omitted from taxation for a great number of years, being a legitimate exercise of legislative discretion.</p> <p>4. Taxation — Constitutional Requirements — Public Purposes.— Acts 1906, p. 124, ch. 22, section 6, provides that all title proceeded against and forefeited to the Commonwealth, and not purchased by the owner under section 4, is thereby vested in any person who has had adverse possession for five years and paid, the taxes. Section 7 provides that all title vested in the Commonwealth, and not purchased back under section 4, nor vested in the occupant under section 6, shall be sold- to the highest bidder, and out of the money so realized shall be paid the commissioner’s fee and a reasonable attorney's fee. Held, That the act was not in violation of Constitution section 171, that taxes shall be levied for public purposes only, on the ground that investing the occupant with the forfeited title shows that he is the intended recipient of the tax, and that the payment of a part of the proceeds to the officets representing the State is also a provision for their private purposes; such contention confusing the tax levied on the lands and the disposition thereof after forfeiture.</p> <p>5. Statutes* — Expression in Title of Subject of Act. — The revenue law of 1906, the title of which is “An Act relating to revenue and taxation,” is not, as to page 115, ch. 22, art. 3, in violation of Constitution section 51, requiring an act to relate to but one subject, which shall be expressed in its title.</p> <p>6. States- — Compacts Between — Violation of Virginia Compact— Taxation. — The Virginia Compact provides that all private rights and interests in lands over which Virginia surrendered sovereignty, derived from the laws of Virginia, shall remain valid' and secure under the laws of the proposed State of Kentucky. Held, That Acts 1906, p. 115, ch. 22, relating to taxation of lands in the State, was not in violation of the Compact; patents to land issued by Virginia being subject to the right and power of the sovereign to compel •the payment of taxes on the, land in the future, and to the correlative power to forfeit the title as a penalty for nonpayment.</p> <p>7. Taxation —- Constitutional Requirements — Uniformity—Double Taxation. — Acts 1906, p: 115, ch. 22, art. 3, section 1, providing that an owner or claimant of land shall pay all , taxes which have been or should have been assessed against him for the years 1901 — 1905, inclusive, and that the fact that the land has been listed for taxation or the taxes have been paid thereon- by another claimant shall not relieve him, is not in violation of the constitutional requirement that taxation shall be uniform, as being double taxation.</p> <p>8. Constitutional Law — Due Process of Law — Taxation.—The act is not in violation of the Federal and State Constitutions, as that it does not constitute due process of law.</p> <p>9. Same — Ex Post Facto Laws. — The'act is not an ex post facto act; the failure to list in the years' 1901 — 1905, inclusive, not working, a forfeiture, but the failure after the passage of the act ini 1906 to thereafter list the property for those years.</p> <p>10. Same — Retrospective Taxation. — The act is not, because imposing retrospective taxation, in violation of either the State or Federal Constitution.</p> <p>11. Statutes — -Validity—Review of Policy of Legislature. — Though the objections to an act, that it is harsh, oppressive, and unjust, were well 'founded, they would afford no basis for declaring the act invalid, since the policy of the Legislature may be looked into by the courts for the purpose only of interpreting statutes, and not of declaring their invalidity.</p> <p>12. Taxation — Assessment—Proceedings to- List — Sufficiency of Petition. — Acts 1906, p. 115, ch. 22, art. 3, section 1, makes it the, dluty of an owner or claimant of land to pay all the taxes which have been or should have been- assessed against him for the years 1901 — 1905, inclusive; and section 2 provides that the ascertainment of the amount of taxes’ unpaid ■ and the assessments required by the preceding section shall be made by the county court on application by the owner by verified petition, ini which the land shall be described so as to be identified. A petition filed under section 2 alleged that the petitioner claimed to be the owner of the therein described tracts of land, but not of the improvements thereon, nor of the surface of certain parts1 of each tract, following which was a description by calls and distances, and the petition then set out the patents and instruments through which petitioner derived title, and alleged that the lands had • ’ ' not been listed for taxation for any of the years 1901 — 1905, inclusive, by petitioner, but that parts had been listed by •others, and the taxes paid. Held, That the petition was defective, in that it showed only that petitioner was “an owner,” and did not show of what part or in what proportion and Dy whom the remaining portions were owned.</p> <p>13. Same. — The petition was defective, in that it did not “so describe the land proposed to be assessed’ as that “it could be identified,” since the interest of the listing owner, if he owns less than the entire tract, must be so described as that it can be identified.</p> <p>14. Same. — The petition was defective, in that, showing that the patent boundaries described lay only partly in the county wherein it was proposed to list the land, it did not show in what part of the county the parts to be assessed lay, nor where the excluded parts, which it was admitted did not belong to the petitioner, lay.</p> <p>15. Same. — It is not an answer to the defects' in the,petition that the taxpayer did not know his property or its description, nor that it woud be too expensive for him to make the necessary investigation.</p>

<p>1. Bankruptcy — Exemptions.—The court of . bankruptcy has no jurisdiction- of exempt property, except to set it aside to tbe bankrupt, and the rights of creditors to subject the same to their debts must be determined in the State court.</p> <p>2. Same — Discharge in Bankruptcy — Effect.—A creditor having no lien at the time of the debtor’s discharge in bankruptcy qan not subject to his debt land acquired by the debtor after the creation of the debt, occupied by him as his residence, and set aside by the bankruptcy court as exempt.</p>

<p>1. Master and Servant — Railway Trainmen — Gross Negligence.— It was grossly negligent towards those on an approaching train for the engineer and conductor of a work train, to permit it to stand on a main track on the other train’s time, though the engineer directed the brakeman to flag such other train; the brakeman’s failure to do so being also gross negligence.</p> <p>2. Same' — Fellow Servants. — The engineer, conductor, and brakeman of a train, which they negligently permitted to stand on a main track on another train’s time, were not fellow servants of a brakeman on the other train, in the sense that he could not recover from the company for injuries received in the collision resulting from such negligence.</p> <p>■3. Same — 'Superior Officers. — The rule that no recovery may be hiad from a master for injury to a servant, not causing death, resulting from the servant’s superior officer’s ordinary negli- . gence, is limited to. cases in which the superior officer has immediate control of or supervision over the servant.</p> <p>4. Same — Fellow Servants. — A servant may not recover from the master for injuries inflicted by the negligence of a fellow servant in the same grade of employment engaged in the same field of labor, and associated or working with the injured servant, however gross such negligence may be; but recovery may be had for the negligence of other of the master’s servants, whether it be ordinary or gross.</p> <p>5. Damages — Personal Injuries — Evidence—Admissibility.—In an action against a railway company for injury to plaintiff in a wreck, lie could show mental anguish and pain suffered while pinioned in the wreck and in momentary danger of being burned to death.</p> <p>6. Evidence — Photographs..—Photographs of a railway wreck, their accuracy being shown by the photographers, are admissible in evidence in an action against the company for injuries received in the wreck.</p> <p>7. Damages — Personal Injuries — Excessive Verdict. — Ten thousand dollars is an excessive recovery for injury to a foot and other parts of plaintiff’s body, where the injuries do not appear to be permanent, though punitive damages are allowable.</p> <p>8. Appeal — Review—Damages.—The court of appeals has the same power to set aside a verdict involving punitive damages as it has where only compensation is recovered, and in every case, if the verdict 'appears to have been given under the influence of passion or prejudice, a new trial will be granted.</p>

<p>1. Wills — Failure to.Dispose of Remainder. — Where a testator hy his will leaves the income from his estate to his widow during life, hut no disposition is made of the remainder after her death, it passes to and vests in his heirs.</p> <p>2. Remainders — Action hy Remaindermen. — Accrual of Right of Action — Limitations.—Where defendant hank assisted one entitled to a life estate in some of its stock to sell the stock outright, the owners of a vested remainder therein had a right of action at once, without waiting for the termination of the life estate; and where they did not sue within the period of limitations, after knowledge of the facts, their rights will he barred hy the statute.</p> <p>3. Limitation on Actions — Continuing Trust — Renunciation— Sale for Own Benefit. — A sale hy a trustee for hi own interest is a repudiation of the trust, and limitations begin to run against the cestui que trust from the date of the sale; hence, even if the hank was a trustee holding title for the benefit of remaindermen when the stock was sold, there was a renunciation of the trust, in' which the hank joined, and a cause of action arose at once in favor of the remaindermen.</p>

<p>1. Corporations — -Misappropriation of Corporate Earnings — Recovery at Suit of Minority Stockholders — Attorney’s Pees Paid by Corporation. — In a suit by minority stockholders of a corporation against a railroad company for its wrongful appropriation of- the assets and earnings of the corporation, resulting in another railroad company recovering judgment against the corporation, attorney’s fees paid by the corporation in defense of the action resulting in the judgment are not recoverable as a part of the costs.</p> <p>2. Same — Nature of Liability for Los-s. — A bridge company contracted with several northern railroads and one southern road for the the use by them of its bridge on payment of equal charges sufficient to provide ror annual dividends and a sinking fund. One of the northern roads, by virtue of its control of the bridge company, required the latter to pay rebates to northern roads, to the exclusion, of the southern road, which afterwards recovered judgment aganst the bridge . company for its proportion of the rebates. Held, That the loss suffered by the bridge company was a tort committed against it by the railroad company controllng it, rendering the railroad company liable for the .entire loss at the suit of the minority stockholders of the bridge company.</p> <p>S. Judgment — Res Judic'ata- — -Matters Concluded — Nature of Cause of Action.- — -A decision in an action by minority stockholders of a corporaton to compel defendant to satisfy a judgment against the corporation in an action on a contract, which denies relief, is not conclusive on the right of the minority -stockholders to compel defendant to satisfy a judgment against the corporation for a tort.</p> <p>4. Appeal and Error — Failure to Present Question Below- — -Departure in Pleading.- — Where, in a suit by minority stockholders' of a corporation to compel defendant to pay a judgment rendered against the corporation, the reply, on which issue was joined, advanced the theory of a right of recovery for fraud committed by defendant, and the matter was litigated on that issue, defendant could not on appeal defeat a recovery on the ground that the theory of fraud was a departure and could not, under the circumstances, be made the foundation of the action.</p> <p>5. Pleading — Reply—Defensive Matter. — Where, ' in a suit by minority stockholders of a corporation to compel defendant to satisfy a judgment against the corporation, defendant relied on a decision of the court denying relief to the stockholders, demanding that defendant should satisfy another judgment against the corporation in an action on a contrac., a reply advancing the theory that the ground of recovery was based on a tort committed by defendant, was available under Civil Code Prac., section 101, authorizing a pleading of equitable matter, of avoidance or estoppel, etc.</p> <p>6. Corporations — Misappropriation of Corporate Funds — Actions by Minority Stockholders.- — -A railroad company owned a majority of the stock of a bridge company and cf defendant, another railroad company. The bridge company contracted with defendant and other railroads for the use by -them of its bridge. Tbe principal officers of defendant were tbe officers of the bridge company, and by reason Oj. such control tbe earnings- of tbe bridge company were wrongfully divided for tbe benefit of defendant. Held, That defendant, in a suit by minority stockholders of tbe bridge company, must pay the loss sustained, and tbe railroad company controlling defendant, having received! no benefit from the wrongful division of tbe earnings, was not liable.</p> <p>7. Same. — A bridge company contracted with railroiad-s for tbe use by t'hem of its bridge on payment of equal charges sufficient to provide for annual dividends and a sinking fund. One of the contracting railroads, by virtue of its control of tbe bridge company wrongfully divided- tbe surplus earnings of tbe bridge company to tbe exclusion of another contracting railroad, which afterwards recovered judgment against tbe bridge company for its share of tbe earnings so appropriated. Held, That tbe railroad company misappropriating tbe funds could not defeat a recovery of tbe loss sustained, at the suit of tbe minority stockholders of tbe bridge company, on the theory that tbe division of -earnings was intra vires and made to carry out a bona fide scheme to conserve tbe interest of tbe bridge company from competition.</p> <p>8. Dimitati-on of Actions — Accrual of Cause of Action. — Tbe right of minority stockholders of a corporation to compel defendant, controlling it, to satisfy a judgment obtained against it, based on tbe fraudulent division by defendant of the surplus earnings of tbe corporation, accrues when tbe corporation is compelled to pay the judgment, and not when- tbe wrongful division of tbe earnings- was made; a juncture of wrong and damage giving rise to a cause of action.</p>

<p>1. Wills — Construction,—“Dying Without Issue.” — Where an estate is devised to one for life, with remainder to another, with gift over on the remainderman dying without issue, the words “dying without issue” are restricted to death before the termination of the particular estate, but where there is no intervening estate, or where there is a period fixed for distribution, the words, in the absence of a contrary intent, create a defeasible fee, defeated by death at any time without issue.</p> <p>2. Same — Estates Acquired. — Testator devised his real estate to his grandsons, directed that each of them should pay to a thir'd person an annual • sum for life, and provided that, if either of the grandsons should die without children, the property devised should descend to the survivor and his descendants. Held not to create an estate tail, converted into a fee simple under Ky. Stats., 1903, section 2343; the word “body,” or some other words of procreation, being necessary to make an estate tail.</p> <p>3. Same. — Testator gave his household goods, etc., to his daughter for life, and at her death to her two sons, or the survivor of them, or their descendants. Held, That the property passed at the daughter’s death to the sons then living absolutely.</p> <p>4. Same. — Testator devised real estate to his grandsons, subject to a certain charge, and directed that, if either of the grandsons should die without children, the property should descend to the survivor and his descendants. Held to vest the fee simple in the grandsons, subject to be defeated as to either by his dying without issue at any time.</p> <p>5. Same — Title of Purchaser from Devisees. — Testator devised real estate to his grandsons, vesting in them the fee simple, subject to be defeated as to either dying without issue at any time. The grandsons and their mother mortgaged the premises, and a third person purchased the same- at a foreclosure sale. He thereafter conveyed' the premises to the mother, who failed to pay the purchase money notes, and the land was ordered' Sold to pay them. The third person became the purchaser. Held, That the third person acquired' complete title to the land, except the contingent remainder vested by the will in the descendants of either of the grandsons, if either should die without issue after the death of the other with issue living.</p> <p>6. Pleading — Allegation of Facts. — An amended pleading, which allege» that the proof shows a certain thing to be true and that the proof is uneontradicted, is properly disallowed, for pleadings should positively allege the existence of facts.</p> <p>7. Judgment — Foreclosure of Vendor’s Lien — Conclusiveness.—A judgment enforcing a vendor’s lien to the amount of purchase-money notes is conclusive on the question whether the notes were in part without consideration, and such a defense is not available in a suit to quiet title by the purchaser at the foreclosure sale.</p>

<p>1. Negligence — Action—Petition—Sufficiency.—A petition alleging that decedent was killed by the gross negligence of defendant, its agents, servants, and employes while conducting and managing a passenger elevator, was sufficient; plaintiff not being required to state the circumstances or .details of the injury, so as to show that it was caused negligently, or to state facts showing that decedent was not negligent.</p> <p>2. Same — Passenger Elevator Accident — Liability.—Though one owes a trespasser no duty respecting injury, except to prevent’ injury to Mm after his peril is discovered, a boy riding on top of a passenger elevator, with the knowledge and at least implied consent of the operator, was not a trespasser, and,, being killed through the operator’s failure to exercise ordinary care, the operator’s employer is liable.</p> <p>3. Same — Contributory negligence of Infant — Degree of Care Required. — A 12-year-old boy’s contributory negligence in riding on top of a passenger elevator and attempting to get off through an opening in the shaft does not necessarily defeat recovery for his death, caused by a negligent starting of the elevator, he being bound to exercise only the discretion reasonably expected of children of his age.</p> <p>4. Master and Servant — Injury to Third Person — Servant’s Negligence — Unauthorized Act. — The owner of a passenger elevator can not escape liability for the negligent killing of a boy who was permitted to ride on top of the elevator by the operator, on the ground that the operator was unauthorized to grano such permission.</p> <p>5. Same. — Where death was caused- by a passenger elevator operator’s negligence, his employer can not be held negligent because the operator was a boy; the employer being held to the same degree of accountability as if the operator had been a careful and experienced man, and its liability not being tested by the operator’s age, understanding, or fitness.</p>

<p>1. Logs and Logging — Standing Timber — Sale—Construction'— Reasonable Time. — Where a contract for the sale of standing timber does not specify the time for the removal of the timber, the buyer is required to remove it within a reasonable time, and the sale operates to convert the timber into personal property.</p> <p>2. Same. — Where a’ deed conveying standing timber authorized the removal thereof within 10 -"-ears, the trees were not converted into personalty, but remained real estate, though they were marked for identification.</p> <p>3. Same — Subsequent Bona Fide Purchasers. — Ky. Stats., 1903, section 1409, subsection 13, declares that no contract for the sale of standing trees shall be enforceable by action, unless the contract or some memorandum thereof be in writing, signed by the person, to be charged, otr his duly authorized agent, and subsection 14 declares that, when any timber has been branded by tbe seller, or by anothe with his consent with the brand of the purchaser, or other person or corporation, then the title to the .timber shall at once pass to the person or corporation, whose branm is placed thereon. Section 1908 provides that every voluntary alienation of personal property, unless accompanied by actual possession, shall be# void as to a purchaser without notice, prior to the lodging of the transfer for record, etc. Held, That, where a grantee of standing timber by deed endorsed on the deed a recital that he conveyed all his right, title, and interest in and to the timber described in the deed to R., such indorsement, duly signed, operated as. a valid transfer of the timber' to R. as between the parties, but R., not having branded the trees, it was invalid regarding the trees as personalty as against a subsequent, innocent purchaser from the transferror.</p> <p>4. Same. — Ky.' Stats., 1903, section 496, declares that no deed conveying .a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration without notice until such deed shall be acknowledged or proved according to law and lodged for record. Held, That, where a grantee in a deed of standing timber transferred nis • interest therein to R. by an indorsement on the back of the deed, which was not recorded alter indorsement, R. was not entitled to the trees, treated as real estate, as against a subsequent bona fide purchaser from the transferror.</p>

<p>1. Escheat — Grounds — Corporate Property — Constitutional and Statutory Provisions. — The holding by a corporation of property not necessary to its business for more than five yearsi is a ground of escheat, undier Constitution section 192, providing that a corporation shall not hold for more than five years property not necessary for its business, under penalty of escheat.</p> <p>2. Same. — Constitution section 192, providing that no corporation shall hold any real estate, except such as may be necessary for carrying on its business, for more than five years under penalty of escheat, leaves to the Legislature discretionary power to determine when and under what circumstances the escheat of property, so held shall take place.</p> <p>3. Constitutional Law — Construction of Provisions. — All provisions of the 'Constitution and statutes should be interpreted to subserve the purpose for which they were enacted, and to that end the evil to be remedied should be considered.</p> <p>4. Escheat — Constitutional and Statutory Provisions. — The court, in construing Constitution section 192, declaring that a corporation holding real estate not necessary to its business for more than five years holds it under penalty of escheat, and Ky. Stats., 1903; section 2971, providing that property escheating to the Commonwealth shall vest for the oeniefit of the schools, etc., will not impute to the makers of the Constitution, or to the Legislature, the intention to enrich the State at the expense of its citizens; nor will it assume that it was merely their purpose to punish offending corporations, but will assume that the provisions were enacted far the public good, so as to prevent corporations from holding more land than needful in their legitimate business.</p> <p>5. Same — Grounds—Burden of Proof. — The burden of proving the existence of the grounds for the escheat of property specified in Constitution section 192, providing that real estate held by a corporation not necessary in its business for more than five years shall escheat, and Ky. Stats., 1903, section 2971, providing that property escheating to the Commonwealth shall vest for the benefit of the schools, etc., is on the Commonwealth, and not on the claimant in possession of the property.</p> <p>6. Same — Enforcement.—Whether property of a corporation has escheated under Constitution section 192, providing that the real estate held by a corporation not necessary for its business' for more than five years is held under penalty of escheat, Ky. Stats., 1903, section 2971, providing that property escheating to the Commonwealth shall vest in the school trustees for the benefit of the schools, etc., depends on the establishment of the necessary facts and the application thereto of legal principles; and the questions to be 'determined are such as are capable of adjudication only by the courts.</p> <p>7. Corporations — Right to Hold- Real Estate. — A corporation may lawfully acquire any quantity of real estate, and what is necessary to its business it may hold indefinitely, and what is useless for its business it may not hold any longer than five years, under Constitution section 192.</p> <p>8. Escheat — Grounds-—-Enforcement.—Under Constitution section 192, providing that real estate held by a corporation not necessary in its business for more than five years' is held under the penalty of escheat, and Ky. Stats., 1903, section 2971. providing that property escheating to the Commonwealth shall vest in the board of school trustees for the benefit of the schools, and authorizing the board to take possession of the property or recover the same by action without office found, etc., useless real estate held by a corporation for more than five years does not ipso facto escheat, but the title to it remains in the corporation until an action of escheat shall have been instituted; and where, before that is done, the corporation bona fide conveys the property to a purchaser, the latter is vested with an indefeasible title.</p> <p>9. Corporations’ — Capacity to Hold Property — Right, to Question. —A corporation holding real estate, though the Constitution or statutes forbid it, holds the title, which is valid except as against the State alone, and the title of the corporation is good until invalidated in a direct proceeding by the State for that purpose'.</p> <p>10. Escheat — Grounds—Enforcement.—Whether a demand of an escheat of property by the State is* based on the ground of alienage defect of heirs, failure of kindred, or on the ground that it is heldi by a corporation in contravention of law, there must be a judgment declaring the escheat before the State may rightfully take possession thereof, though the property is vacant.</p> <p>11. Constitutional Law — Due Process of Law — Escheat.—Ky. Stats., 1903, section 2971, providing that property which shall escheat to the Commonwealth shall vest in the board of school trustees for the benefit of the schools, and the board may enter on and take possession of the property, or sue for the same without office found, if construed as ipso facto vesting title of property held by a corporation in violation of Constitution section 192, without any proceeding to accomplish that end, is void as amounting to the infliction of a penalty without trial.</p> <p>12. Same. — Though the power to provide forfeitures and penalties is in the legislative branch, the power to inflict the penalties and forfeitures does not belong to the Legislature, but to the judiciary; and it can not inflict them without, first affording ian opportunity to be heard, for one can not be deprived of his property without due process of law.</p> <p>13. Same. — The Legislature may provide by law that a corporation may not acquire or hold more than a given quantity-of real estate, or-that it shall not hold any real estate, except such as may be necessary in its business for a longer period than, five years, under penalty of escheat; but the Legislature can not enforce the penalty without a judicial proceeding in which the corporation may appear and defend.</p>

<p>1. Gaming — Indictment—Permitting Table Used for Gambling to Be Set Up. — An indictment accusing defendant of suffering and permitting a table used for gambling thereon to be set up, conducted, kept, and exhibited in a designated house, and describing the table as being constructed for the purpose of being used for gambling thereon, and as a table ordinarily used in gambling houses for gambling purposes1, and the manner in wh-icblit is used, charges a violation of Ky. Stats, 1903, section 1967, punishing whoever shall suffer or permit any table used for gambling to be set up in any bouse', etc.</p> <p>2. Same- — Evidence—Sufficiency.—Evidence on a trial for permitting a table used for gambling to be set up held to justify a conviction.</p> <p>3. Criminal Law — Appeal—Verdict—Conclusiveness.—The court of appeals cart not reverse a ’conviction on the sole ground that there is not sufficient evidence to sustain it, and the court is restricted to the inquiry whether or not there is any evidence to show the guilt of accused, and in the absence of errors of law occurring on the trial the court will not disturb a verdict where there is any evidence to support it.</p> <p>4. Gaming — Suffering or Permitting Table Used for Gambling to Be Set Up — Evidence—Instructions.—Where, on a trial for violating Ky. Stats., 1903, section 1967, punishing whoever shall “suffer” or “permit” any table or contrivance used for gaming to he set up, conducted, kept, or exhibited in any house, etc., the evidence showed that the table set up and exhibited was a crap table, and that it was exhibited on premises in the occupation of accused, the refusal to give an instruction defining the phrase “suiter and permit” was not erroneous.</p> <p>5.Same — Weight of Evidence — Statutes—Validity.—The provision in Ky. Stats., 1903, section 1967, punishing whosoever shall suffer any gaming table to be kept or exhibited in any house, which declares that, after proof of the setting up or exhibiting of a table in any such house, it shall be presumed to have been with the permission of the person occupying or controlling the same, unless the contrary is clearly proved, states what proof is a prima facie case, and is not invalid.</p>