Volume 128 — Kentucky Reports

<p>1. Licenses — Business Tax — Revenue.—Act March 15, (Acts 1906, pp. 193, 201, c.' 22) art. 12, subd. 4, section 1, requiring real estate agents in cities to pay >a license tax, is a revenue. measure; the occupation being essentially a harmless one, and not within the police power of the State.</p> <p>2. Same — Constitutional Provision — Uniformity. — The requirement of Const, .section 171, that taxes shall be uniform on all property subject to taxation within the territorial limits of the authority levying the tax, does not directly and specifically apply to license fees, which section 181 authorizes to. be levied on franchises, stock used for breeding purposes, trades, occupations, and professions.</p> <p>3. Taxation — Ad Valorem Tax — Uniformity.—Under Const, section 171, authorizing the imposition of an ad valorem tax on all property in the State for State purposes, and in counties, cities, towns, and taxing districts for local, purposes, and providing that such tax shall he uniform, and sections '172, 1'74, providing.-that'all' property not ;exempt shall he assessed at its fair cash value, an ad valorem tax, if for State purposes, must be the same in all parts of the State, and within the particular locality if for local purposes; the Legislature having no power to select, classify, or discriminate in the imposition of such a tax.</p> <p>4. Licenses — Taxation — Business — Constitutional Provisions.— Const, section 181, authorizing the imposition of license fees on trades, occupations-, and professions, confers on the General Assembly power to tax every business and e-very individual, without reference to the 'nature of his trade, occupation, or profession, without limit as to amount, -except that it be not -so unreasonable o-r arbitrary as to amount to a confiscation of property or a denial of the right to engage in a particular trade, occupation, or profession.</p> <p>5. Same — Delegation of Authority. — Under Const, section 181, authorizing the taxation of occupations, the General Assembly may grant to counties, .towns, cities, and other municipalities the -authority to exact license fees within their territory; the discretion being as far-reaching as when exercised by general laws for State purposes.</p> <p>6. Same — Uniformity.—Cities of the State having been divided by the Constitution into six classes ,each governed by a special set of laws, and such cities being authorized to impose occupation licenses, it i» neccessary that the same fees be imposed on persons engaged in the same occupation in cities -of different classes, provided the fees imposed on a particular trade, occupation, or profession in any class of cities is uniform, ini the sense that the same fee is charged to any person engaged' in the particular trade, occupation, or profession that is taxed.</p> <p>7. Same- — -Division of Trades. — Under Const, section 181, authorizing the imposition of occupation taxes, it is competent for the Legislature by general laws for State purposes, as well as by general laws delegating the power to municipalities, to divide trades, occupations, and professions into classes, and to impose a different license tax on each class into which the trade occupation, or profession may reasonably he divided.</p> <p>8. Same — Method of Division.- — Such trades may he classified according to their character, as wholesale and retail dealers, and also according to the volume of business done by them.</p> <p>9. Same.- — Under Const, section 181, authorizing the levy of occupation taxes, and section 171, requiring taxes to he uniform, the Legislature is not required, either by general laws for State purposes or general laws for the benefit of municipalities, to impose license fees that may be levied on „all trades, occupations, or professions; but any one or more trades, occupations, or professions may be taxed, and others - exempted.</p> <p>10. Same — Uniformity on Particular Trade. — Under Const, section 181, authorizing the imposition of license taxes, and section 171, requiring all ad valorem taxes to be uniform, the Legislature had no power to pass Act March 15, 1906 (Acts 1906, pp. 193, 201, c. 22) art. 12, subd. 4, section 1. imposing an occupation tax on real estate agents varying in amount according to the class of the city in which such real estate agents resided, and exempting all who did not live or do ' business in such cities, and towns.</p> <p>11. Constitutional Law — Departments of Government — Powers of Taxation — -Legislative Department — Infringment by Judiciary. —The exercise of the taxing powers being confined to the legislative department of the government, the court will not interfere with the exercise of legislative discretion in imposing taxes, regardless of amount, if the tax imposed is uniform and not contrary- to constitutional provisions.</p> <p>12. Same — Occupation Tax. — The legislative freedom from control by the judiciary in the imposition of taxes does not extend to taxes imposed on trades, occupations; or professions; the court, as to such taxes, being entitled to determine whether the statute was in violation of the Constitution, though its purpose was the raising of revenue.</p>

<p>1. Carriers — -Carriers of Freight — Liability.—A carrier is not responsible for injury to apples by freezing, due to their own inherent nature and natural causes without fault on the carrier’s part, or caused by the shipper’s negligence</p> <p>2. Same — Custom.—Under a custom that a carrier shall not open or close the ventilators of a car, or change them from the position in which placed by the shipper, unless so notified, the carrier may assume, on failure to give notice, that the shipper does not desire the ventilators changed, and is not liable for failure to do so.</p>

<p>1. Waters — Pollution of Subterranean Waters — Right of Recov- . ery — Title or Possession. — One in possession of land may recover from a wrongdoer without title for the pollution of a spring thereon without showing title;</p> <p>2. Nuisance — Acts Constituting Nuisance. — One may lawfully bury the carcass of a dead animal on his land.</p> <p>3. Same. — Noxious gases arising from the carrying on of lawful occupations are not nuisances in all situations, hut may become such by reason of the trade being carried on in improper localities, or by reason of the gases being negligently 'suffered to escape.</p> <p>4. Waters — Appropriation of Subterranean Waters. — One -may sink on his own land such wells as he needs, though in so. doing he may dry up h’s neighbor's well, providéd he does not act maliciously, or use the water unnecessarily.</p> <p>5. Negligence — Use .of Property — Accidental Injury — A person is not liable for a mere accident, which ordinary care on his part could not have (anticipated or guarded against.</p> <p>6. Same. — The rule that a man must use his own property so as not to injure his neighbor does not make one an insurer in the lawful use of his property, and, where in the lawful use thereof, a man' does an injury which ordinary prudence would not have anticipated, there is no liability.</p> <p>7. Waters — Subterranean Waters — Pollution. — A person who buries.the carcass of a dead animal on his own land is not liable where his neighbor’s spring is thereby polluted, unless the circumstances are such as to show that a person of ordinary prudence should have anticipated that such result would probably follow.</p> <p>8. Negligence — Trial — Direction of Verdict. — Where there is room for 'an honest difference of opinion, among intelligent men as to whether the conduct of one was that of an ordinarily prudent man, the question is for the jury, though the facts are undisputed.</p> <p>9. Waters — Pollution of Subterranean Waters — Evidence—Question for Jury. — Whether' a. person who buried- the body of a dead animal on his land, and thereby polluted, the spring on a neighbor’s land, failed to exercise proper care in burying the animal, held, under the evidence, for the jury.</p> <p>10. Same — Measure of Damages. — The measure of damages for the pollution of a spring of water on an -owner’s land is the diminution in value of the use of the property during the time the water is polluted.</p>

<p>CASE 4 — ACTION BY THE COMMONWEALTH AGAINST THE CITY OF COVINGTON TO ENFORCE THE PAYMENT OF A TAX. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>CLASSIFICATION.</p> <p>That the words “public purpose,” are used in the same sense as governmental purposes and that waterworks are owned by cities in their private capacity and are private property and not public property. (Louisville v. Commonwealth, 1 Duv. 295; Lancaster v. Clayton, 9 Ky. Law Rep., 611; Commonwealth v. Makibben, Judge 12 Ky. Law Rep., 476; Clark v. Louisville Water Co., 12 Ky. Law Rep., 312; Debates of the Constitutional Convention. 23S2, 2486-87, 2495-96, 2499, 2569, 2628 to 2831, 2752.</p> <p>That in construing the present Constitution it is proper to refer to the- Debates of the Constitution. (Cooley Const. Iim., 7th. Ed., p. 101; Constant v. People 11 Wend, (N. Y.) 511-518; Clark v. People 26 Wand, (N. Y.) 599-602; State of Louisiana v. Board of Assessors, 35 La. Ann., 688; Cooley Const. Lim., 7th Ed.</p> <p>That the case of Bailey v. The Mayor, 3 Hills, (N. Y.) 531, wia-s not overruled by later New York cases; and the court was in error, in the Frankfort ease, when it so held. (Bailey v. The Mayor, 3 Hills, (N. Y.) 531; Springfield Fire Ins. Co. v. Kleeseville- 148' N. Y. 46; Dillon Municipal Corporations, p. 27; City of Owensboro v. Knox’s Admr., 25 Ky. Law Rep., 680.)</p> <p>That waterworks are not public purposes and could not be supported wholly by taxation, but that a water-rate must be charged. (Linn. v. Burgess of Chamberburgh, 160 Pa. St., 511; Opinion of the Justice 150 Mass. 392, 8 L. R. A., 487; Opinion of the Justice 155 Mass., 198.)</p> <p>That water-rates- are not taxes; and that -the fact that the profit c-f surplus of same are used to pay municipal expenses, do not exempt same from taxation for State purposes. (Cooley on Taxation, 3rd Ed. p. 5 and cases cited; Wagner v. Rock Island, 146 Ills., 139; Preston v. Water Commissioners, 117 Mich, 180; Chodwick et al. v. Maginnes, 94 P>a. St., 117.)</p> <p>That the construction given to the phrase, public property used for public purposes prior to the Frankfort ease, should be retained. (Sutherland Statutory Construction; “Contemporaneous Construction” section 309.</p> <p>That to exempt said waterworks from county and district taxation would be equivalent to levying a tax on the people of said county and district for the benefit of the city of Covington And that would be in violation of- an essential principle in taxation, “that the levying of the tax must pertain to the district taxed.” (Barbour v. Board of Trade, 82 Ky., 653; Lancaster v. Clayton, 9 Ky. Law Rep., 613; Cooley on Taxation, 3rd Ed., p. 225 -and 227; Farnham on Waters and Water Rights, 3rd Ed., p. 894; Newport v. Unity, 68 N. H., 587.)</p> <p>PROPOSITIONS DISCUSSED.</p> <p>1. Property in controversy is exempt, because the same is- public property used for public purposes. (Board of Councilmen of the City of Frankfort- v. Commonwealth, 29 Ky. Law Reporter, page 704.)</p> <p>2. The fact that the property in controversy is located in a foreign county dioes not affect the above rule. (Van Broeklln v. Anderson, 117 U. S., p. 151; Wisconsin Central R. Co. v. Price County, 133 U. S., p. 496-514.)</p> <p>PUBLIC PROPERTY USED FOR PUBLIC PURPOSES.</p> <p>Maydwell, etc. v. Louisville, 25 Ky. Law Rep. p. 1064; 2nd. Dillion, section 773, page 949; Sumner County Commissioners v. City of Wellington, Kas., 60 L. R. A., 850; Springfield, etc. v. Village of Keysville, 148 N. Y., p. 46; City of Clarksville v. Montgomery Co., 62 S. W. 33, 1901; City of Toledo v. Hosier, 54 O. St., 418; State ex Rel v. Toledo, 48 O. St., p. 112; Town of West Hartford v. Board of Waterworks Commissioners, 44 Conn., p. 361; The State v. John J. Gaffney, Col., 34 New Jersey Law Reports, 131; City of Rochester v. Town of Rush., 80 N Y., 302; Board of Water Commissioners of Detroit v. Auditor General, 115 Mich., p. 546; Board of Councilmen of City of Frankfort v. Commonwealth, 29 Ky. Law Rep., p. 704.)</p> <p>CITY HAD RIGHT TO SELL'WATER.</p> <p>Overall v. City of Madisonville, 31 Ky. Law Rep., p. 281.</p>

<p>1. Insurance — Action on Policies — Amended Pleadings. — Whether a policy sued on was a contract of the state in which, suit was brought, or of some other state, being, peculiarly within the knowledge of the insurance company, and there being no suggestion why the defenses sought to be set up in amendments that the policy was a contract of other states .than that in which sued on were not set up in the original answer, it was not an abuse of discretion to deny the amendments, tendered long after the issues were made up, and at least one of them pending trial.</p> <p>2. Same — Avoidance of Policy — Misrepresentation—Materiality.— Ky. Stats. 1903, section 639, provides that all statements in an application for a policy shall be deemed representations, and not warranties, and that no misrepresentation, unless material or fraudulent, shall prevent recovery. A combination accident policy insured against loss of life by accident and loss, of the right hand, in either of which events a fixed sum was payable; but in case of accident not so severe as to involve loss of life or limb, but sufficient to totally incapacitate, a weekly indemnity was payable during the time of incapacity. Held, that a statement by insured in his application that his weekly earnings were more than they actually were was no defense to a recovery for an accident resulting in the loss of his right hand; the statement as to weekly earnings having no reference to recovery for accidental loss of life or limb, but only to the question of weekly indemnity.</p> <p>3. Appeal — Review—Question of Fact. — A verdict on conflicting evidence that the loss of his band by insured was not the result of unnecessary exposure to obvious danger will not be disturbed on appeal.</p>

<p>1. Wills — Estates Created — Fee.—Where testator’s will gave all his property to his wife to use and enjoy at her pleasure ■and with power to convey all his real estate, she became the unqualified owner of all his real estate.</p> <p>2. Estoppel. — Permitting Expenditures. — Where a wife joined with a husband in a deed of his land, and for five years and seven months after his death knew that the land was increasing in value, and that the grantee was making valuable improvements, and she enjoyed the benefit of the purchase price, she was, after the lapse of such time, estopped from claiming the land as devisee of her husband, on the ground that he had lacked sufficient mental capacity to make the deed.</p> <p>3. Limitation of Actions — Fraud.—Ky. St. 1903, section 2515, provides that an action for relief on the ground of fraud or mistake must be brought within five years next after the cause of action accrues, and section 2519 provides that the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake, but that no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud. Held, that an action for relief for fraud or mistake cannot be brought after the lapse of five years after the discovery of the fraud, and in no event after the lapse of ten years from the perpetration thereof.</p>

<p>CASE 7. — ACTION BY JACOB GELLER AGAINST THE PULLMAN COMPANY FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>M. L. Harbeson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The motion to instruct the jury to find for the defendant should have been sustained.</p> <p>2. The verdict was not sustained by sufficient evidence.</p> <p>3. The damages awarded are excessive and were given under the influence of passion or prejudice.</p> <p>4. The court erred in giving instructions numbers 1 and 2. (Thomas v. L. & N. Ry. Co., 18 Ky. Law Rep., 164; Kelly v. Shelby L. R.. Co., &c., 15 Ky. Láw Rep., 301.)</p> <p>5. The court erred in refusing instruction. “C.”</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Appellant working under the special orders of the master, the risk was no longer his, but became the risk of the master. (Sherman & Redfield on Negligence, sec. 186; Sherman & Red-field on Negligence, sec. 215; Long’s Admr. v. L. & N. R. R. Co., 24 Ky. Law Rep., 567; Molin Plow Co. v. Anderson, 19 Ills., 417; Hawley v. Norther G. R. Co., 82 N. Y.; Patterson v. Pitts-burg & G. R. Co., 76 Pa., 389; Jenny Elec. Light Co. v. Murphy. 115 Ind., 566; Chicago, R. I. & P. R. Co. v. MoCarty, 49 Neb., 475; Phisterer v. Peter & Co., 25 Ky. Law Rep., 1607; Cumberland Telephone & Telegraph Co. v. Graves, 31 Ky. Law Rep , 972.)</p> <p>2.. The court did not err in refusing the appellant a peremptory instruction. (Paducah St. Ry. Co. v. Adkin/’s Admr., 14 Ky. Law Rep., 427; Long’s Admr. v. L. & N. R. R. Co.,. 24 Ky. Law Rep., 567.)</p> <p>3. The servant by continuing in the master’s service, for reasonable time after promise to repair, does not assume the risk. (Breckenridge Co. v. Hicks, 94 Ky. Law Rep., 362; Bell & Cog-shall v. Appelgate, 63 Ky. Law Rep., 470; Stephens v. Hannibal & St. J. R. Co., 9 .S. W. R., 590; Amer. & Eng. Ency of Law, vol. 14, page 856, sec. 13; Amer. & Eng. Ency. of Law, vol. 14, page 867, section 4.)</p> <p>4. The damages awarded the appellee are not excessive. (Thompson on Negligence, sec. 7317; Town of Central Covington v. Bellonby, 24 Ky. Law Rep., 1092; Outten v. Barnes, Littell’s Selected Cases, 137; 11 Bush, 509; .89 Ky., 137; 1 Mar., 431; 16 B. Monroe, 587; Clegg v. Metropolitan St. Ry. Co., 37 N. Y. Supp., 130; Louisville & Nashville R. R. Co. v. Wade, 11 Ky. Law Rep, 904; Van Sant v. Jones, 3 Dana, 466.)</p>

<p>1. Frauds, Statute of — Operation—Oral Contract for Sale of Land —Rights of Purchasers — Contract as Ground of Defense.— While ia verbal sale of land is void, and confers no interest whatever, except such collateral equities as may arise out of the transaction, a son who verbally buys land of his father, pays for it, and settles upon it, has a resisting equity, which lie might assert against his fathere, land which might be adjudged a lien on the land for the consideration paid; and. while the'verbal contract is void as between the father and son, in the sense that it could give no right to either to enforce it, the son holds under it as purchaser' from his father.</p> <p>2. Homestead — Acquisition — Change of Homestead — Liabilities Enforceable. — Where a person buys a tract of land for a homestead and pays for it before the creation of a debt, he is entitled to a homestead in a tract which he takes, in exchange for it, though the deed of exchange wias not made until after the debt was created.</p> <p>3. Same — Homestead Purchased When .Paid for — Debt Created After Purchase but Before Conveyance — Statutory Provisions. —A homestead is purchased when it -is paid for, within Ky. St. 1903, section 1702, providing that a homestead exemption shall not apply to sales under executions if the debt or liabilities existed prior to the purchase of the land, the purpose of the statute being that the debtor shall not, after creating a debt, put his money into a homestead and thus defeat his creditor; and where the land is bought and paid for and is . ' the homestead of the family before a debt is created, it is not subject to execution on such debt, although no deed for the land is made until after the creation of the debt.</p> <p>4. Same1 — Nature of Right. — A homestead right is not an estate in land, but a privilege of exemption from execution of such ■estate as the holder has; and hence the nature or quantum of ta debtor’s estate in his homestead is immaterial in determining whether it shall be exempt.</p> <p>5. Same — Change of Homestead — Separate Tracts. — The fact that a person moves from a tract which he has used as a homestead to another tract half -a mile away where there is a better dwelling house, and uses both tracts as a home, they both being of less value than $1,000, does not affect his right of homestead.</p>

<p>Judgment — Entry—Time—Persons Who May Enter. — A judgment entered by the clerk after the term at which it was rendered, and without the consent of the presiding judge, is void, and is properly set aside on motion of defendant.</p>

<p>CASE 10. — PERSONAL INJURY ACTION BY EMMA EEAUME AGAINST THE LOUISVILLE & NASHVILLE E. E. CO. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>M. L. Harbbson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The damages are grossly excessive. Under the instructions of the court, the jury were permitted to award only compensatory damages. (Louisville So. Ry. Co. v. Minogue, 90 Ky. 369; L. &. N. R. Co. v. Wathen, 22 Ky. Law Rep. 85; South Covington & C. St. Ey. Co. v. Ware, 84 Ky. 267; Southern Ry. Co. in Ky. v. Goddard, 28 Ky. Law Rep. 523, 30 Ky. Law Rep. 126; L. & N. R. R. Co. v. Kingman, 18 Ky.. Law Rep. 82; 1. C. R. Co. v. Houchins, 28 Ky. Law Rep. 499; C. & C. Bridge Co. v. Goodnight, 22 Ky. Law Rep. 1242; Louisville Water Co. v. Upton, 18 Ky. Law Rep. 326; H. B. Phillips Co, v. Prewitt, 26 Ky. Law Rep. 831; Watson v. Brightwell, 28 Ky. Law Rep. 887; L. & N. R. Co. v. Lowe, 118 Ky. 260; Louisville Ry. Co. v. O’Meara, 25 Ky. Law Rep. 819.)“</p> <p>2. The verdict is not sustained by sufficient evidence. (Civil Code, sec. 340; L. & N. R. Co. v. McGary’s Admr., 104 Ky. 515, 516; L., H. & St. L. R. Co. v. Jolly’s Admr., 28 Ky. Law Rep. 993.)</p> <p>3. The court erred in the admission of much incompetent testimony for appellee, and in rejecting competent testimony offered by appellant.</p> <p>4. The misconduct of appellee’s counsel in! persisting in asking witnesses questions, after the court had ruled upon the admissibility of such testimony and had excluded it, was highly prejudicial to appellant, and is reversible error. (C. & St. L. R. Co. v. Mines, etc., 77 N. E. 898; Soripps v. Riley, 38 Mich. 10; Chicago City Ry. Co. v. Gregory, 77 N. E. 1112; Chicago & State Line Ry. Co. v. Kline, 220 111. 334, 77 N. E. 229; English v. Ricks, 95 S. W. 189; Westley v. Washington Brick, Lime & Mfg. Co., 82 Pac. 271; Iveson v. McDonnell, 78 Pac. 202; Quinn v. N. Y. City Ry. Co., 94 N. Y. S. 560; Prewitt-Spurr Mfg. Co. v. Woodiall, 90 S. W. 623; Robinson v. Bailey, 113 111. App. 123; Pioneer Reverse Assn. v. Jones, lb. 156; C., P. & B. R. Co. v. Pritschau, 69 N. E. 663; McHenry Coal Co. v. Snedden, 98 Ky. 684; McKnight v. U. S., 115 Fed. 983; Hurst v. Williams, 31 Ky. Law Rep. 658; Marcum v. Hargis, 104 S. W. 693.)</p> <p>5. The Kenton Circuit Court was without jurisidiction to try this case. Appellee’s pretended residence in Covington, to which point she moved after the injury sued for, -in order to give the Kenton Circuit Court jurisdiction to try the case, was not bona fide, and her declared intention of making Covington her home is entirely inconsistent with, and contrary to, her acts with reference thereto. (10 A. & E. Encyc. of Law (2 Ed. 20, 27) ; Montgomery v. City of Lebanon, 111 Ky. 646; City of Lebanon v. Biggers, 117 Ky. 430; Fidelity Trust & S. V. Co. v. Preston. 96 Ky. 277; 10 A. & E. Encyc. of Law, 28, 16; Civil Code of Ky. 340.)</p> <p>6. The instructions given over appellant’s objection were erroneous and prejudicial in sundry respects. C. & N. W. R. Co. v. Ohle, 117 U. S. 123, 127; L. & N. R. Co. v. McCombs, 21 Ky. Law Rep. 1232, 1238; Henderson City Ry. Co. v. Lockett, 30 Ky. Law Rep. 322; B. & O. S. W. R. Co. v. Sheridan, 101 S. W. 928; L. & N. R. Co. v. Kingman, 18 Ky. Law Rep. 82; lb. v. Harrod, 115 Ky. 877.)</p> <p>7. The court erred in refusing the instructions offered by appellant.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There was no misconduct of appellee’s counsel, such as to affect appellant’»-material rights, and all the matters complained Of in this connection by appellant, were corrected and removed by the admonition and? rulings of the court. (Pennsylvania Co. v. Roy, 102 U. S., 451; Miller v. Pryce, 20 Ky. Law Rep., 1544; P.'C. C. & St. L. Ry. Co. v. Lewis, 18 Ky. Law Rep., 957; Belle of Nelson Dist. Co. v. Riggs, 20 Ky. Law Rep., 499.)</p> <p>2. There was no error in the alleged repeating of question by appellee’s counsel as to other persons having been injured in the derailment and settled with by appellant, because those questions an,d the presumed answers thereto only tended to show what the law presumed appellant to be guilty of under the circumstances of this case and the details, magnitndé and severity of the derailment which is not denied by appellant is conclusively shown by the overwhelming testimony in the case. (Louisville Railway Co. v. Brownfield, 29 Ky. Law Rep., 1099; L. & N. R. R. Co. v. Rivers Admr., 85 Ky., 366; B. & O. S. W. Ry. Co. v. Hausmian, 21 Ky. Law Rep., 1264.)</p> <p>8. The Kenton Circuit Court had jurisdiction of this case.</p> <p>The question of jurisdiction when an issue in the pleadings, could not be tried by the court on affidavits and' motion. The evidence clearly shows that before this suit was filed the appellee had changed her residence to Kenton county in such manner under the law as to confer jurisdiction on the Kenton Circuit Court. (10 Am. & Eng. Ency. of Law, 20; 10 Am. & Eng. Ency. of Law, 17, 18, 20, 26, 29; Gooding v. Gooding, 19 Ky. Law Rep., 968; City of Lebanon v. Biggers, 117 Ky., 430; Montgomery v. City of Lebanon, 111 Ky;, 649. The case of Fidelity Trust Co. v. Preston relied on by appellants is wholly unlike the case at bar.)</p> <p>4. The damages assessed by the verdict of the jury are ijot excessive. The case of Lou. Sou. Ry. Co. v. Minogue, 90 Ky., 369 relied on by appellant is not like the case at bar, in that case no permanent injury or loss of income or business was shown. Other cases relied on by appellant, reviewed and shown not to apply to the case at bar. (South Cov. & Cin. St. Ry. Co. v. Ware, 84 Ky., 267; Southern Ry. Co. v. Goddard, 28 Ky. Law-Rep., 523; L. & N. R. R. Co. v. Kingman, 18 Ky. Law Rep., 82; I. C. R. R. Co. v. Houchims, 28 Ky. Law Rep., 499; Cov. & Cin. Brdige Co. v. Goodnight, 22 Ky. Law Rep., 1242; Louisville Water Co. v. Upton, 18 Ky. Law Rep., 26; H. B. Phillips Co. v. Pruitt, 26 Ky. Law Rep*, 831; Watson v. Brightwell, 28 Ky. Law Rep., 887; L. & N. R. R. Co. v. Low, 118 Ky., 260.)</p>

<p>1. District and Prosecuting Attorneys — Duties — Statutes- — Construction. — Ky. St. 1903, sections 126, 127, requiring each county attorney to attend- all county and fiscal courts in Ms county, etc., and providing that he shall conduct actions before “any of the courts of this Commonwealth” in which the county is interested, etc., do not require a county attorney to perform services in a federal court or in a court outside of the Commonwealth; the words “courts of th-is Commonwealth” meaning only courts organized under the- Constitution and laws of the Common-wealth.</p> <p>2. Counties — Agents—Eligibility—County Attorneys as Commissioner to Settle with Sheriff. — Prior to the acts of 1906 (Acts 1906, p. 158, c. 22, section 18), providing that the commissioner appointed to settle with the sheriff shall be some other person than the county attorney, the fiscal court had power, under Ky. St. 1903, section 4146, providing that the fiscal court shall appoint a competent person to settle the accounts -of the sheriff, to appoint the county attorney as commissioner to settle with the sheriff; competency being the only qualification prescribed, and there being nothing in the Constitution or statutes disqualifying the county attorney.</p> <p>3. Same — County Indebtedness — Funding Indebtedness — ■ Power of Fiscal Court. — The power of the fiscal court to fund the county indebtedness conferred by Ky. St. 1903,. section 1852, providing that any fiscal court of the county , may collect iany outstanding bonds and substitute therefor new bonds, etc., carries with it the power to employ such agents and attorneys as may be necessary for. that purpose.</p> <p>4. Same — -Agents—Qualifications.—Since there ia no statute prohibiting the county attorney from contracting with the county, and since he is, under Ky. St. 1903, section 127, disqualified only from acting in opposition to the interests of the county, the fiscal court may employ him as commissioner in the settlement and compromise of the bonded indebtedness of the county.</p> <p>5. Officers' — Compensation—Additional Compensation. — An officer performing extra services outside of his- official. duties, not interfering therewith, is entitled to compensation therefor.</p> <p>.6. District and Prosecuting Attorneys — Compensation — Extra Services. — The county attorney performing services under an appointment by the fiscal court as commissioner in the settlement and compromise of the bonded indebtedness of the county performs services outside of his official duties, and is entitled to compensation therefor, notwithstanding Const, section 161, providing that the compensation of any county officer shall not be changed after his election or appointment.</p> <p>7. Appeal — Review — Presumptions — Matters Not Shown by Record — Counties — Order for. Payment Out of Delinquent Taxes. — An order of the fiscal court appropriating a sum of money, and directing payment out of delinquent taxes, cannot be held invalid, on appeal, on the ground that the money had been appropriated for other purposes; it not appearing from the record that the money has been otherwise appropriated, or that such other purposes have not been satisfied.</p>

<p>1. Dower — Incob ate Interest — Bar — Judicial Sale. — Weissinger Act 1894 (Laws 1894, p. 176, c. 76) gives married women the right to contract and be contracted with, except as to executory contracts concerning real estate, and to sue and be sued as may single women. Civ. Code Prac. section 397, provides that a conveyance made pursuant to a sale ordered by the court shall pass to the grantee the title of all parties to the action or proceeding. Held that, where the wives of certain tenants in common joined their husbands in an action for the sale of the land for division, authorized by section 490. such women were bound by the judgment confirming the sale, and were estopped to, assert a dower interest in the property, because of the absence of a privy examination required by section 495.</p> <p>2. Judgment — Collateral Attack — Jurisdiction — Presumption.— Every jurisdictional fact which the record of the judgment of a court of general jurisdiction does not affirmatively show was absent must be presumed in favor of the judgment on a collateral attack.</p> <p>3. Partition — Confirmation of' Sale — Collateral Attack. — Where a judgment confirming a judicial sale of land in an action by-tenants in common for division, in which their wives were properly joined as complainants,- was attacked collaterally by the answer in a suit for specific performance, an allegation was insufficient to raise the issue ,of the court’s jurisdiction to bar the dower interest of such feme plaintiffs, because of the absence of a privy examination required by Civ. Code Prac. section 495, where it merely alleged that none of them consented on a privy examination to a sale of the land free of dower, and that no privy examination was made of any ■of them, and did not allege that the absence of such jurisdictional fact affirmatively appeared from the record.</p>

<p>1. Judgment — Default—Vacation—Application.—Ky. St. 1903, section 988, governing courts of continuous session, provides that suck courts shall have control over their judgment for sixty days, as circuit courts have over their judgments during the term in which they are rendered. Held, that where a default judgment was rendered against defendant in such court and a motion to open the default and permit defendant to answer was filed' within 60 days, the court did not lose jurisdiction because it did not determine the motion until sixty days had expired.</p> <p>2. Courts — Court Rules — Violation of Statutes. — Ky. St. 1903, section 980, provides that all suits in which the defendant resides nearer to the county seat than to a city of the second class shall be docketed and tried at the county seat, and that the process shall so indicate. Held, that a rule of the Kenton circuit court providing that the clerk shall determine whether the’ defendant resides nearer to Covington or to Independence on the written statement of the party or the attorney filing the suit, and where no such statement is filed "'the clerk shall docket the case In Covington', Is Inconsistent with the statute, and invalid.</p> <p>3. Judgment — Default—-Vacation.—Where the, process on which a default judgment was based was not issued as required by statute, and a meritorious defense was set up by an answer attached to the application to open the default and set as-ide, the judgment and by other facts' appearing in the record, the -court should have set aside the judgment and permitted the answer to be filed.</p>

<p>1. Cost — Bond—Statutory Provisions — Consideration of Motion to Issue Injunction. — Civ. Code Prac. section 617, provides that an action by a corporation, other than a hank created by the State laws-, shall be dismissed upon, motion by the • defendant, unless a bond to secure payment of costs is filed within a reasonable time, allowed by the court, after motion made. In an injunction proceeding by a corporation a motion for cost bond was filed by defendant. Held, that the question of the execution of the bond did not properly come before the court in disposing of the motion to issue the injunction.</p> <p>2. Pleading — Petition—Requisites—Name on Pleading. — Failure to style a petition for injunction a “petition in equity” is no cause for dismissal, since under Civ. Code Prac. section 10, it may be transferred to the proper docket during court.</p> <p>3. Injunction — Notice.—Where defendant is' present and heard by counsel on- the question of whether an injunction should be issued, the sufficiency of notice need not be considered.</p> <p>4. Same — Temporary Injunction — Scope of Inquiry. — On an application for temporary injunction, the -only matter for consideration is whether or not the statements in the verified petition alone, or in connection with the affidavits filed with it, show such a condition as would authorize the relief sought.</p> <p>5. Same — Sufficiency 'of Application. — A petition for injunction, supported hy affidavits', alleged that plaintiff whs a corporation organized under the State laws, engaged in the business of handling and- selling tobacco for growers who had placed their tobacco in plaintiff’s possession for those purposes; that defendant signed an agreement pledging his 1907 crop of tobacco to plaintiff, and agreed with it and the members of its hoard of control, and with other growers and owners of tobacco, that the society should hold his> tobacco in common with other tobacco and sell the same when placed in pool with tobacco grown and owned hy other persons; that defendant has prized and shipped a part of his 1907 crop, and is now prizing and preparing to ship the whole of the crop- and that, if permitted to ship and sell the same, it will work an irreparable injury to plaintiff and all poolers of tobacco. The petition was controverted by affidavits of defendant. Held, that it sufficiently appeared that there was no adequate remedy at law, and that plaintiff was entitled to the injunction, if the contract was enforceable, for the damages for • breach of the contract could not he estimated, and failure to observe the agreement would work’ a dissolution of the society, and, though the benefits of the agreement were not shown, it would be presumed to be of some benefit.</p> <p>6. Constitutional Law — Special Privileges — Statute Legalizing Pooling of Farm Products. — Acts 1906, p. 429, c. 117, legalizes the pooling of tobacco and other farm products for the purpose of classifying, grading, and selling the same, in order that a higher price may he obtained therefor than could he received hy selling the crops individually, and authorizes parties forming the pool to select agents to hold the crops pooled for the purpose of classifying, grading, and selling them. Held, that Bill of Rights, section 3, declaring that no grant ' of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public service, does not deny the Legislature the-right to select and classify persons or occupations or the right to enact reasonable laws for the government of each class that it deals with, and that the law does not grant any exclusive, separate public emoluments or privileges within the meaning of the Bill of Rights, hut simply selects a class and specifically provides wbat it may do, without withholding the privilege from others, and; so far as it affects a member of the class selected, it does not violate the Bill of Rights.</p> <p>7. Same — Privileges and Immunities' — Equal Protection of Laws. —The law of 1906 (Acts 1906, p. 429, c. 117) does not violate Const. U. S. Amend. 14, providing that no State shall make or enforce any law which shall abridge the privilege or immunities of citizens' of the United States, nor deny to any person within its jurisdiction the equal protection of the law; for the amendment does not deny the State the right to classify and select occupations, trades and professions, nor does it prohibit the State from granting rights or conferring privileges on persons or classes, but only declares that, when rights or privileges are conferred, all persons and classes that may be fairly included within the scope of the law granting the privileges or immunities shall have the benefit of them, whether so intended or not, and the act does not in terms discriminate against any other person or class of persons.</p> <p>8. Game — Effect of Exclusive Privileges. — If the law of 1906 (Acts 1906, p. 429, c. 117) granted exclusive privileges to the class affected, it would violate not only Bill of Bights, section 3, but Const. U. S. Amend. 14.</p> <p>9. Same — Persons Entitled to Complain. — If the act was discriminatory, that question could not be raised by a member of the class affected, since he has not been discriminated against, nor denied any privilege or immunity, nor the equal protection of the law.</p> <p>10. Monopolies — Constitutional Provisions — Construction.—Const, section 198, providing that it shall be the duty of the General Assembly to enact such laws as may be necessary to prevent all trusts, pools, etc., from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value, does not prohibit trusts, pools, or combinations, nor does it command the General Assembly to enact laws forbidding them, but leaves it to the Assembly to determine the need of future legislation on the question; and it is -only trusts, pools, etc., created for the purpose of depreciating an article below its real value or enhancing its cost above its real value that are forbidden, and hence the Legislature may legalize pools and combinations created or organized for the purpose of obtaining fair and remunerative prices.</p> <p>11. Same — Statutory Provisions. — Acts 1906, p. 429, c. 117, in allowing a class of persons to make contracts with each other, the extent of which is to pool and combine their tobacco or other farm products, and to select an agent to handle, hold, and sell such pooled crops, to obtain higher prices than could be received by selling the crops individually, does not violate Const, section 198, for it does not authorize a pool to enhance the cost of crops above their real value, but was simply intended' to enable the class affected to meet the trusts that controlled the markets in which the former was forced to sell, and to place him on such a footing that he might secure a fair and reasonable price for his crops.</p> <p>12. Contracts — Pooling Contracts — Validity—Object—Statutory Provisions.^-If, under the act, farmers combined and pooled their crops for the purpose of obtaining a greater price than the real value, and it should be judicially determined that ■such was the case, the contract would be invalid and without binding force upon one who entered into it, even though he did so voluntarily.</p> <p>13. Same. — Where defendant agreed to permit plaintiff society to hold his tobacco in common with other tobacco, and sell •it when placed in pool with tobacco grown by others in the absence of a showing that the object of the contract was to enhance beyond its real value the price of the tobacco pledged to it, the contract will be held valid, under Acts 1906, p. 429, c. 117, legalizing the pooling of farm products for the purpose of obtaining a higher price than could be received by selling individually.</p>

<p>1. Jury — Right to Jury Trial — Legal Issues in Equitable Actions. —Civ. Code Prae. section 10, provides that the defendant may have an equitable action" transferred to the ordinary docket, if the answer presents a defense on which he? is entitled to a jury trial. Section 11 declares that if there is an issue which is not cognizable in chancery, and an issue which is exclusively cognizable in chancery, the -plaintiff may have the former issue tried before the latter is disposed of, and section 12 provides that in 'an equitable action either party may have» the case transferred to the ordinary docket for the trial of any issue concerning" which he is entitled to a jury trial. Held, that a party to an equitable action is entitled’ as of night to the trial of legal issues therein by a jury.</p> <p>2. -Equity — Trial — Legal Issues — Verdict of Jury — -Effect.— Where a distinct legal issue on which a party to an equity suit is entitled td a jury trial as of right is tried to a jury, the verdict will be given the same force as in ordinary jury trials, and will not be set aside, but will be regarded as conclusive between the parties, unless the court is satisfied that it ’is palpably against the evidence.</p> <p>3. Same. — Where a chancellor in an equity suit submits au issue to a jury in the exercise of discretion' the submission of which is not a matter of right, the verdict is only advisory, and not binding on the chancellor.</p> <p>4. Appeal — Verdict in Equity Suit — Review.—Where a verdict dn a legal issue in an equity suit on which the parties were entitled to a jury trial was sustained both by the common-law judge who tried the issue and by the chancellor to whom the verdict was certified, it will not be set aside on appeal, unless substantial error to the prejudice of the defeated party was committed.</p> <p>5. Same — Legal Issues — Trial.—Oiv. Code Frac, section 552, provides that depositions or certified copies may he used on the trial of any issue of fact in an equitable action, unless such issue be transferred pursuant to title 2, which authorizes the trial by a jury of legal issues made in an equitable action. Held that, where an issue of fact, in an equitable action is submitted to a jury, the parties should he permitted to introduce witnesses for oral examination before the jury, if present, and should not he confined to the use of depositions.</p> <p>6. Same — Harmless Error. — Where it did not appear that, appellant could have made a stronger case by the introduction of oral evidence, on the trial of a legal issue to a jury in an .equity suit, the court’s error in restricting appellant to the use of depositions was harmless.</p> <p>7. Executors — Assets—Conversion—Evidence.—Where, in a proceeding to charge an executor with the value of certain bonds, which it was claimed he had converted, the executor denied any knowledge of testator’s ownership of the bonds, .and it was proved that after testator had made his will, the executor has advised him to invest $6,000 in such bonds and place them in a safety deposit vault, and knew that testator had purchased the bonds and was acquainted with their válue, and he had only attempted to account for between $2,000 and- $3,000 as the total value of the estate, evidence that in the summer of 1904 testator, influenced largely by the executor’s advice, sold property owned by him, the value of which was between $8,000 and $9,000, was admissible.</p>

<p>CASE 16. — ACTIONS BY THE COMMONWEALTH AGAINST THE MUTUAL BENEFIT LIFE INSURANCE' COM- . .PANY, THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY AND THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY FOR TAXES ON PREMIUMS RECEIVED ON BUSINESS IN THIS STATE. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, ■ defendants appeal —</p>

<p>Corporations — Name of Place of Business — Corporations Excepted. —The act relating to corporations (Acts 1891-92-93, p. 627, c. 171, section 39), required all corporations to have “incorporated” placed on their places of business, and also on all printed and advertising matter used. The act, as amended by Ky. St. 1903, section 576 (Acts 1891-92-93, p. 1259, c. 243), provides that every corporation shall on its principal place or places of business have printed or painted its name. and thereunder the word “ ‘Incorporated.’ And immediately under the name'’ on all printed or advertising matter “used by. such corporation, except railroad * * * trust * * * insurance companies, banks, and building, and loan (associations shall appear” the word “Incorporated.” In the original act there was a semicolon between the words “Incorporated” and “and,” instead of a period, as used in section 576. Held, under the rules that in construing a statute the legislative intent must be considered, and Ky. St., 1903, section 459, requiring statutes to be construed to effect the legislative intent, the Legislature intended to exempt railroad, trust, and insurance companies, banks and buildings and loan associations, from the operation of the entire section 576, and not merely from the requirement as to printed and advertising matter; the error in punctuating the section with a period, instead of a semicolon, not changing the legislative intent.</p> <p>Nunn, J., dissenting.</p>

CASE 18. — ACTION BY GEORGE S. FLEMING AND OTHERS AGAINST THOMAS HILL. — Appeal from Kenton Circuit Court. W. McD. Shaw, Circuit Judge. Judgment for plaintiffs, defendant appeals — POINTS AND AUTHORITIES CITED. 1. The amount held by Northcutt on deposit, collected from taxes, constituted merely a debt, .and the State and county had no such specific property therein as entitled them to pursue and claim same in the hands of others.

<p>1. Telegraphs and Telephones — Agreements Between Companies —Effect.—A telephone company, operating a system with exchanges in a city and elsewhere, was desirous of extending its country business, and was instrumental in organizing another company, with a system and exchanges at various points. The companies were separate corporations, but the general manager of the former "was the president of the latter. The two companies operated their systems as one under an arrangement, continuing for several years, by which there was a physical connection between their wires. There was no written agreement or definite verbal contract between them. Held, that the arrangement did not amount to a contract and did. not entitle either company to the reciprocal rights and obligations growing out of contract rights, and one company could not by reason of the arrangement compel the other company to continue to receive and transmit the messages of the former.</p> <p>2. Same — Franchises — Constitutional Provisions. — Const, sections 163, 164, providing that no telephone company within a city shall be authorized to erect. its poles, etc., over the streets, etc., without the consent of the legislative body of the city, and that no city shall grant any franchise in reference thereto for a term exceeding twenty years, etc., are mandatory, and must be read together in determining when a franchise to a company may be granted, and a franchise to establish and operate a telephone system in a city can only be acquired by complying therewith.</p> <p>3. Same. — Under Const, section 199, providing that telephone companies operating exchanges in different towns and cities shall receive and transmit each other’s messages, etc., a telephone company operating a telephone system with an exchange in a city without having, obtained a franchise therefor in the manner prescribed by sections 163 and 164 cannot compel another company operating a system with an exchange elsewhere to receive and transmit messages- in accordance with an arrangement by which the companies, without any contract therefor, operated their systems- as one; section 190, if construed to be self-executing, applying only -to companies that have acquired in a legal way the right to operate ' telephone systems.</p> <p>4. Equity — Maxims-—Clean Hands. — A corporation which, in its origin and existence has continually violated the law cannot ask the assistance of the court to compel another corporation to transact business with it.</p> <p>5. Telegraphs and Telephones — Actions By and- Against Telephone- Companies — Defenses—Availability.—A telephone company, operating a telephone system with exchanges in towns* when sued by another company, operating a system with an exchange in a city to compel ther former to receive and transmit the messages of the latter, as required by Const, section 199, providing that telephone companies operating exchanges in different municipalities shall receive and transmit each other’s messages, may defend by showing that the latter company has not acquired a franchise in the manner prescribed by sections 163 and 164, relating to the granting of franchises to telephone- companies, since the act of the city in consenting to the latter company operating a' system does not vest the latter company with legal rights -and give it a standing in court that can only be obtained by a compliance with .the law.</p>

<p>CASE 20. — ACTION BY A. L. SCHMIDT AS TRUSTEE FOR BONDHOLDERS' OF THE NORTHERN DIVISION OF THE CUMBERLAND & OHIO R. R. CO. AGAINST THE L. •& N. R. R. CO. AND OTHERS FOR AN ACCOUNTING, AS LESSOR. —</p> <p>Appeal from Jefferson Circuit Court; (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for plaintiff, defendants appeal —</p> <p>1. A trustee’s rights and duties are defined by the instrument creating the trust, and he has none except those given, and those implied to carry into effect those given. An instrument which merely conveys to a trustee without imposing any duties or granting any rights creates a mere, “naked trust.” (Perry on Trusts, section 520, 521; New v. Nichol, .73 N. Y., 137.)</p> <p>2. In a suit brought by a bondholder for himself and others united with him in interest against another — who is also' a holder of somq of the same bonds — t.o compel an accounting, while plaintiffs are entitled to have his expenditures including fees' of counsel made a charge upon the fund recovered, the defendant is not chargeable with any part of thes ¿extraordinary costs.</p> <p>(a) The fund recovered as of right:</p> <p>(b) His interests being adverse to those of plaintiffs, and having employed counsel to resist the plaintiff’s claim he cannot be said to be united in interest with the plaintiffs. (Thirwell v. Campbell, 11 Bush, 163; Bailey’s Adm’r v. Barclay, 109 Ky.. 637; Doherty v, Cummins Adm’r, 50- S. W., 551.)</p> <p>We submit that the following propositions are beyond controversy:</p> <p>1. The appellee A. L. Schmidt is the trustee of the entire mortgage and of the entire issue of bonds outstanding accrued thereby. ‘</p> <p>2. The bonds for which the appellee Schmidt is trustee were executed by the Northern'Division Cumberland & Ohio Railroad Company and- delivered 'to the Louisville, Cincinnati & Lexington Railway Có. and by it sold to various persons. All of these bonds to the extent of the authorized issue of $250,000.00 were secured by a mortgage executed by the Cumberland & Ohio Railroad, Northern Division, and also by a mortgage of the earnings of the 'L. C. & L. Ry. Co. and' by a contract pledging such earnings in the lease from the C. & O.- R. R. Co.-, Northern Division, to the L. C. & L. Ry. Co.</p> <p>3. The mortgage of the C. & O. R. R. Co., Northern Division, contains a provision by which the C. & . R. R. Co. or its lessee, (L. C. & L. Ry. Co.) or assigns may redeem or cancel any of the bonds so as to reduce the mortgage debt. It is expressly provided that such debt may be reduced or cancelled pro tanto “by paying par and accrued interest to date of notice of redemption therefor” after due advertisement as required and further provides that if such redemption or reduction of the mortgage debt is desired the bonds' intended to b» cancelled or redeemed shall be called for in the order of their numbers, beginning at number one and following in numerical order.</p> <p>4. The Louisville & Nashville Railway Company not only has not treated the bonds held by it as redeemed or cancelled, thus, pro tanto, reducing the mortgage debt and relieving the trustee of liabilities under the mortgage, but on the other hand, it has heretofore actively asserted rights in itself as the owner of these bonds as we propose to show by the published opinions of this court.</p> <p>5. The appellees have sued in this case for the enforcement of a lien to secure an issue of $250,000.00 of bonds and coupons attached. If any of these bonds have been cancelled or redeemed either by the act of the parties or by the act of the law, it was the duty of the respondent to plead that fact in defence of this action.</p> <p>CONCLUSION.</p> <p>The absurdity of the appellant’s contention in this- case will appear when we consider that they have not complied with either of the judgments of this court awarding the plaintiffs the recovery of fixed sums of money. After these judgments have been rendered they have undertaken to credit themselves as a bondholder. If they had paid into court the monies due them pursuant to these judgments there could be n-o shadow of a doubt that this court would hia.ve allowed the expenses which have been .incurred as charges against the fund, and- the Louisville & Nashville Railroad Company would then have stood on the footing of every other bondholder.</p>

<p>CASE 21. — SUIT BY THE FIDELITY TRUST CO. AS EXECUTOR OF THOS. WALSH, DECEASED, AND OTHERS, TO SETTLE THE ESTATE IN WHICH E. V. AND MOSES MANDEL FILED EXCEPTIONS TO THE REPORT OF SALE. —</p> <p>Appeal, from Jefferson Circuit Court; (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for plaintiffs, defendants appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Right of a life tenant with power of sale to enlarge the life estate into a fee simple estate. (4 Kent, 535, 536.)</p> <p>2. Right of one not a chief officer of a corporation to make ani affidavit in support of a warning order. (Subsec. 33, of sec. 732 of the Civil Code; subsec. 3, of sec. 51 of the Civil Code; subsec. 2, of sec. 117 of the Civil Code; Ky. Jeans Clothing Co. v. Bohn, 20 Ky. Law Rep. 612.)</p> <p>3. Does the inheritance tax constitute a lien upon real estate? (Article 19, of the 1906 Acts .of the Ky. Legislature; American and English Eneye. of Law, vol. 27, p. 354.)</p> <p>4. Jurisdiction of the court.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Inheritance tax is not a tax on the property and is therefore a lien on the real estate sold in this action. (McGown v. Illinois Trust Co., 170 U. S., 283; Knowlton v. Moore, 178 U. S., 41; Plummer v. Coler, 178 U. S., 115; Eyre v. Jacob, 14 Graft 422, 73 Am. Dec., 377; State v. Switzler, (Mo) 40 L. R. A., 280; Kochersperger v. Drake, 167 111. 122; 51 L. R. A., 466; State v Alston, 94 Tenn., 674, 28 L. R. A., 179; Wallace v. Meyers, 387 Fed. 184, 4 L. R. A., 171; State v. Tunnell, 39 L. R. A., 170.)</p> <p>(a) The plaintiff literally complied with section 58 of the Code when its vice president swore to the affidavit for. the warn ing order. While an agent of the plaintiff is required to state that plaintiff is absent from the county, ' a chief officer of a corporation is not.-such an agent, and-is not and could not be required to state that the corporation is absent from the county.</p> <p>(b) Section 117 of the Code does' not apply. Section 58 being under another heading contains all the law on this particular subject. (Broadus v. Broadus, 10 Bush, 308.)</p> <p>(c) It is too late after final judgment to raise this question. The jurisdiction of the court depends not on the affidavit which procured the warning order but on the fact that the warning order is property issued. (Hynes v. Oldham, T. B. Mon., 266; Benn-ingfield v. Reed, 8 B. Mon., 102; Newcomb v. Newcomb, 13 Bush, 562; Sears v. Sears, 95 Ky., 174;-Carr v. Carr, 92 Ky-., 522; Brownfield v. Dyer, 7 Bush, 505.)</p>

<p>1. Railroads: — 'Liens for “Supplies.” — Groceries furnished a subcontractor to supply bjs boarding house, where he boarded his laborers while constructing a railroad are not “supplies” furnished for the construction of a railroad, for the price of which the seller is entitled to a lien under Ky. St. 1903, section 2492.</p> <p>2. Statutes — Construction — Meaning of Language. — In construing statutes, a word is construed in conection with the words with which it is associated, and, where several things are referred to, they are presumed to be of the same class, when connected by a copulative conjunction, unless, a contrary intent appears».</p>

<p>1. Intoxicating Liquors — Licenses — Revocation. — Ky. St. 1903, section 3030, provides for a license board in the oity of Louisville. Other sections prescribe the qualification of the persons entitled to licenses. Section 3034 provides that any license granted by said board may be revoked by it after an open trial with due notice to the licensee, whenever in the judgment of the board the licensee has violated the law, and either party aggrieved by the decision of the board may have an appeal to the circuit court. Held, that the city is entitled to notice of an appeal by the licensee from an order ■of the board revoking the license, and that, in the absence of such notice, judgment of the circuit court restoring the license was irregular.</p> <p>2. Same. — Under Ky. St. 1903, section 2909, providing that the mayor in cities of the first class shall appoint a city attorney, who shall give legal advice to all officers and boards of the city in discharge of their official duties, and who shall prosecute and defend all suits by and against the city and attend to such other legal business as might be prescribed by the general council, the city of Louisville was entitled to be represented by the city attorney on appeal to the circuit court from an order of the license board revoking a liquor license.</p> <p>3. Same — Representation of City by Commonwealth Attorney.— On appeal to the circuit court from an order of the license board of the city of Louisville revoking a liquor license, the Commonwealth attorney, if he had the right to waive summons and advance the appeal, should not have done either without notice to the city attorney, and giving him opportunity to be present at the trial.</p> <p>4. Same. — While a proceeding resulting in the revocation of a liquor license was not a criminal or penal prosecution, yet as its object was to deprive the licensee of her license, in order to accomplish which the board had first to find that she violated the law, the questions involved on the appeal were such as could be more properly decided by the criminal division than other of the circuit court.</p> <p>5. Appeal — Affirmance—Reversal Useless — Error of the circuit court in hearing an appeal from an order of the license board of the city of Louisville revoking a liquor license without notice to the city of such appeal is not ground for reversal, where upon the evidence introduced before the license board, contained in the bill of exceptions, the judgment of the circuit court restoring the license was correct, and the case, if reversed and remanded to the circuit court, would have to be heard on the same evidence in the bill of exceptions on appeal to that court.</p>

<p>CASE 25. — ACTION BY T. J. McQUEEN AGAINST H. M. WHITTAKER FOR SLANDER. —</p> <p>Appeal from Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p>

<p>1. Taxation — Railroads — Franchise — Assessment — Review — Estoppel to Dispute Liability. — Where a railroad corporation reported the value oí a certain line of road to the auditor for a certain year, and upon the report the value of its franchise was fixed, it cannot complain that it was not the owner of the line at that time, so as to defeat the payment of the tax.</p> <p>2. Same — Assessment — Conclusiveness. — Where the assessment of a franchise tax on a railroad has become final by failure of the railroad to object and seek a reduction, a member of the board of valuations and assessment after his term is out cannot affect its finality by testimony that the board did not consider the assessment a valid act or final.</p> <p>3. Same — Levy and Assessment — Agreements Not to Collect.— An agreement between the State board of valuations and ■ assessment and a railroad to release the railroad for taxes • for previous years on condition that it pay the taxes for the particular year is void where the assessment for the previous years have become final.</p> <p>4. Same — Collection—Limitation of Action. — Acts 1890 (Laws 1889-90, p. 149, c. 1763) authorizes the State to collect taxes by suit, but provided that no action shall be instituted or maintained “under the provisions of this act” upon any claim for taxes' that "might have been assessed” more than five years before the commencement of the same. By the act of 1893 (Laws 1891-92.-93, p. 331, c. 103, art. 8, section 3) a franchise tax on railroads was placed, and that act authorized the collection of the tax by action in the Franklin circuit court. The act of 1890 (Laws 1889-90, p. 149, c. 1763) did not confer jurisdiction on the Franklin circuit court, but left the venue of the suit to be that of defendant’s residence. Held, that an action in the Franklin circuit court to recover a franchise tax brought more than five years after the tax might have been assessed, though within five years from the time it wasi actually assessed, was not barred by the limitations provided by the act of 1890, since the limitations in the act of 1890 could not be made applicable to a suit which could not be brought under its provision.</p> <p>5. Limitation of Actions — Limitations Applicable — 'Statutory-Causes of Action1 — Franchise Tax. — Actions brought to recover franchise taxes under the act of 1893 (Laws 1891-92-93, p. 331, e. 103, art. 8, section 3) providing for such taxes and authorizing suits in the Franklin circuit • court for their recovery, in the absence of any special limitation in the act, are governed by the general law (Ky. St. section 2915), providing a limitation of five years on liabilities created by statute.</p>

<p>1.’ Guardian and Ward — Sales Under Order.-of Court — Petition—In an. action by a guardian to sell bis ward’s interest in lands for ’the maintenance' and édúcation of the ward, as provided by Civ. Code Prac. section 489, subsec. S, where it ■was alleged in tbe petition and shown in the judgment that the ward inherited* the land from her mother and uncle, it was unnecessary that the title papers should have been filed, since, as the estate was cast upon her by the laws of descent, she had no muniments of title to be filed.</p> <p>2. Same — Care of Ward’s Estate — Sale of Real Property. — Under Civ. Code Prac. section 489, subsec. 3, which provides that á court of equity may allow a guardian to sell his ward’s real estate for the maintenance and education of the ward, a guardian, who is also the father of the infant ward, will not be permitted to sell her real estate, which constitutes her whole inheritance, unless it be clearly shown that he is unable to support and educate her, and his inability so to do must be alleged in the petition.</p>

<p>CASE 27. — INJUNCTION BY THE HIGHLAND APARTMENT CO. AGAINST NETTIE C. O’BRYAN AND OTHERS TO ENJOIN THE BUILDING OF A STABLE IN VIOLATION OF BUILDING ORDINANCE —</p> <p>Appeal from Jefferson Circuit Court; (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From an order continuing a' temporary restraining order.defendants appeal —</p>

<p>CASE 29. — ACTION BY THE COMMONWEALTH AGAINST THE ALBIN COMPANY. —</p> <p>Appeal from. Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>From the judgment for plaintiff the Albin Company appeals —</p>

<p>Sales — Breach of Warranty — Right to Set-Off in Action for Price. —Plaintiff sold defendant boots and shoes by sample by falsely representing that the sample was of leather, and that the goods to be delivered were of the same quality as the sample. Defendant could not and did not discover that the goods were not according to representations until they had been worn by his customers, when he notified plaintiff of the fact. Held, that defendant, in an aotion for the price of the goods, could- use the breach of warranty as a defense by way of set-off.</p>

<p>CASE 31 — PROCEEDINGS BY W. T. EGGEN AND OTHERS AGAINST PRANK B: OPPUTT AND OTHERS TO CONTEST A LOCAL OPTION ELECTION. —</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>From a judgment for defendants, Eggen and others appeal —</p> <p>Our contention is that when a county has Voted ,as a whole, it is legal to sell under license in any portion of the county in which a license can lawfully be issued, except in such precincts or districts as were previous to the county vote under the prohibition law, and that no vote oan be taken in any subdivision’ of the county until after three years from the date of the county election.</p> <p>STATEMENT OF PROPOSITIONS.</p> <p>1. The holding of an election in Nelson county as a whole or unit on the question whether or not spirituous, vinous, or malt liquors, should be sold, bartered, or loaned, therein, which resulted in favor of the sale of such liquors, leaves the status of the county as if no such election had been held, and is no bar to the holding of an election, on .that question, by a magisterial district, or any other of the subdivisions1 mentioned in section 61 of the Kentucky Constitution.</p> <p>2. Where the vote at an election held by the entire county as a unit is recorded in favor of the sale of such liquors. Section 2563 of the Kentucky Statutes, which, reads as follows-“The election or elections herein provided for shall not be held for any city, town, district, or precinct oftener than once m every three years, applies only to the holding of an election in the identical territory, and does not prevent the holding of an election on the same question by one of the subdivisions of the county.</p> <p>AUTHORITIES CITED.</p> <p>Board of Trustees of New Castle v. Scott, 30 Ky. Law Rep., 895; O’Neal v. Minary, 101 S. W. P., 951; Section 61, Constitution of Kentucky; Section 2560, Kentucky Statutes; Section 2563, Kentucky Statutes; Washington v. Giddens, 31 Ky. Law Rep., 647; DeHaven v. Bommer, 31 Ky. Law Rep., 416).</p>

<p>1. Waters1 23 — Diversion—Actions1—Evidence.—In an action by the owner of a gristmill for the diversion of water from a stream supplying power to operate the mill, evidence ‘ that roller flour had supplanted burr flour, for the manufacture of which plaintiff’s mill was suitable, and that there was very little demand for the latter flour, was admissible on the issue of damages1; it being proper for defendant to show that the value of the' mill had been diminished from other causes.</p> <p>2. Same — Instructions.—An instruction that if there had been, prior to five years before the commencement of the action, such a change in the market in the locality of the mill that there was such a preference for' flotlr made' by the roller process, as distinguished from the burr process, that it had rendered it unprofitable for the owner to operate the mill for any purpose, there could be no recovery, though water was diverted to such'an-extent as to forbid’the operation of the mill, was erroneous, for the owner had the right to operate the mill for the use of himself and family, though there was no market for his flour. - ■</p> <p>3. Same — Damages;—One 'diminishing the natural flow of the water in a stream supplying power to operate a mill, and thereby preventing the owner from operating it as fully as he otherwise might have done, resulting in pecuniary loss in its operation, is liable to the owner for such sum as will compensate him for the diminished value of the use of the mill; but if the diversion' of the water did not affect the running of the mill, or cause any material injury to the owner, he could not recover.</p> <p>4. Limitation of Actions — Accrual of Right of Action — Injury to Real Estate. — Where injury to real estate results from the construction of a permanent structure, the cause of action •accrues on the completion of the structure.</p> <p>5. Damages — Injury to Real Estate — Measure of Damages. — The ‘ measure of damages for injury to real estate resulting from the construction of a permanent structure is the difference between the value of the property before it became generally known that the structure would be built and its value just after the completion thereof.</p> <p>6. Action — Splitting Causes of Action. — The damages to real ■estate resulting from the construction of a permanent structure are recoverable in one action, and the owner must sue for all the damages, past and future.</p> <p>7. Limitation of Actions — Nature of Aetion-^Action for Damages to Real Estate. — An action for damages to real estate, occasioned solely by the construction of a dam in a stream, is barred in five years after the construction of the dam.</p> <p>8. Same — Time of Accrual. — An action for damages to real estate, resulting from the wrongful diversion and unlawful use of the water in a stream, does not accrue on the erection by the wrongdoes of a dam across the stream, and the owner of the real estate may recover for such damages as resulted from the diversion of the water during five years next preceding the commencement of the action, without reference to the time of the construction of the dam.</p>

<p>CASE 33. — ACTION BY JERRY CRANK AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Lawrence Circuit Court.</p> <p>S. G-. Kinner, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The trial court erred in overruling appellant’s motion for peremptory instruction. (L. & N. R. Co. v. Logan, 88 Ky., 239, 10 S. W., 655; Smith v. L. & N. R. Co., 95 Ky, 11, 23 S. W., 652; C. & O. Ry. Co. v. Saulsberry, 112 Ky. 915, 66 S. W., 1051; Section 806, Kentucky" Statutes; Tuttle v. C. N. O. & T. P. Ry. Co., 80 S. W., 802; Brown’s Admr. v. L. & N. R. Co., 103 Ky. 211, 44 S. W., 648; L. C. & L. R. Co. v. Sullivan, 81 Ky. 624, 5 Ky. Law Rep., 722; L. & N. R. Co. v. Ellis’ Admr., 97 Ky. 330, 30 S. W. 979; Fogg’s Admr. v. L. '& N. R. Co., 63 S. W., 580.)”</p> <p>2. Appellee was not entitled to complain of the jerking of the train or recover therefor. L. & N. R. Co. v. Penrod’S- Admr., 56 S. W., 1; L. & N. R. Co. v. M-eGary’s Admr., 104 Ky. 509, 47 S. W., 440; L. & N. R. Co. v. Morris, 62 S. W., 1012.)</p> <p>3. Instructions “3” and “4” are erroneous in that they exclude from the jury’s consideration the question as to whether the act of appellant’s conductor was reasonable and proper, (L. & N R. Co. v. Logan, Supra; Smith v. L. & N. R. Co., Supra; C. 6 O. Ry. Co. v. Saulsberry ,Supra; Section 806, Kentucky Statutes; Tuttle v. C. N. O. & T. P. R. Co., Supra; Bohannon’s Admr. v. So. Ry. Co., 65 S. W. 169, 112 Ky., .106.)</p> <p>4. Instruction “3” is also erroneous in so far as it attempts to lay down a rule as to the measure of damages. (L. & N. R. Co. v. Cottengim, 104 S. W., 280; So. Cov. &c. Ry. Co. v. Core, 96 S. W., 562.)</p> <p>1. The defendant owed to the plaintiff a high degree of care for his protection as one of its passengers, which it did not extend to him, but required him to go out on the platform of the coach in the most dangerous place it could locate him; (See C. & O. Ry. Co. v. Langs Admr., 19 Ky. Law Rep., 65.)</p> <p>2. There is no proof that appellee was guilty of any negligence that brought the fall and his ■ injury.</p> <p>3. If appellee was drunk, as was claimed by some of the witnesses, then they owed him a higher degree of care and protection. (See L. & T. R. R. Co. v. Gatewood, 14 Ky. Law Rep., 108.)</p>

<p>Waters — Public Water Supply — Rents—Liability.—A purchaser of a building, the former tenants of which were owing for water rents', of which he had no knowledge, is not liable for the payment of such rents due the city under Hall’s Ordinances of the City of Covington, section 1063, providing that for failure to pay the rents water may he turned off until rents are paid, since it is a claim against the occupant, and not the property.</p>

<p>CASE 35. — ACTION BY JACOB LUNKENHEIMER AND OTHERS AGAINST F. WILDHARBER AND OTHERS, TO RECOVER LAND. —</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. .Heksen, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendants appeal. —</p> <p>POINTS AND AUTHORITIES.</p> <p>A deed made by a sheriff under a tax sale is prima facie evidence of the correctness of all preliminary steps taken priqr to the sale, and places the burden upon the taxpayer to show the contrary.</p> <p>CITATIONS.</p> <p>Husbands v. Polivick, 96 S. W. 825; Hughes v. Owens, 92 S. W. 595; Alexander v. Aud, 88 S. W., 1103; Metcalfe v. Comlth., &c., 66 S. W. 1100, 113 Ky., 751; Griffin v. Sparks, 70 S. W. 30, 24 Ky. Law Rep., 849; Shuck v. City Lebanon, 53 S. W. 655, 21 Ky. Law Rep., 970.</p> <p>QUESTIONS AND AUTHORITIES.</p> <p>1. Pleading. The petition of appellants, Handley and Lockett, asking that they be made .parties defendants, which was taken as their answer, is a waiver of any right they may have had to avail themselves of their co-defendanfs answer, which they did not adopt as their own. (Civil Code, 29.)</p> <p>2. Where one defendant does not adopt a plea of co-defendant, and does, not himself plead the defense made by his co-defendant, a trial on the merits is had, judgment rendered against the party pleading, and also against his co-defendants, and no complaint is made by the one who has pleaded, the defendants who have not pleaded cannot then come in, file a motion for a .new trial in their own names, and have reviewed in this court the proceedings upon the trial in the lower court on an issue not pleaded by them. (City of Covington v. Noland & Cot, 89 'S. W., 216; Meadors v. Brown, -16 Ky. Law Rep., 620.)</p> <p>3. When one voluntarily comes in by petition and has himself made a party defendant, claims the land in dispute, sets up his claim, ¡and this claim is denied by the plaintiffs,' the burden is upon him to prove that he has an interest in, or claim to the subject matter of the action, and to prove his title. (Meadors v. Brown, 16 Ky. Law Rep., 620.)</p> <p>4. (a) Section/ 4030 Kentucky Statutes is not retroactive, and has no application to a tax deed made in 1883, before the section was enacted. (Norris v. Russell, 5 Cal., 249; Keane v. Connovan, '21 Cal., 291; McPhail v. Burris, 42 Tex., 142.)</p> <p>(b) Under the law as it existed in 1883, the burden is upon the party relying on a tax deed to allege and prove that the essential statutory steps/ were taken. (Jones v. Miracle, 93 Ky , 639; Carlisle v. Cassady, 20 Ky. Law Rep., 562, 46 S. W., 490; Durrett v. Stewart, 88 Ky., 665; Cornish v. Three Porks Coal Co., 95 Ky., 273; Smith v. Ry.an, 88 Ky., 636.)</p> <p>Even if section 4030 Kentucky Statutes applies it does not relieve the tax claimant of the burden of pleading facts showing the statutory steps were taken. Only when this is done does the burden shift to the original owner. (Maguiar v. Henry, 84 Ky., 1)</p>

<p>1. Insurance — Pire Insurance — Existence of Contract — Evidence —Evidence examined, and held to show that on the day on which buildings were destroyed by fire, and prior to the loss, plaintiff, the owner, entered into a parol contract with the •agent of defendant insurance company, whereby it was agreed ■that the buildings should he insured from that time in defendant company.</p> <p>2. Same — Premiums—Payment.—Where an insured has a running account with an insurance agency with whom- he settles his insurance premium accounts from time -to time as called upon to do so, a policy of insurance taken out by him through the agency is' not invalidated because the premiums were not paid when the policy was taken out, hut insured is entitled to pay upon demand only.</p> <p>3. Same — Power of General Agents. — A general agent of an insurance company has authority to bind the company by bis .acts, to the extent of modifying or varying the terms -and conditions of the policy, which would, in the absence of such waiver, operate as a forfeiture.</p> <p>4. Same — Liability for Acts of Subagents. — Where a general agent -of an insurance company employed a subagent as an “outside man1 234* to solicit applications, receive premiums, and deliver policies, and he was the only man with whom the public came into contact, and, so far as the public could know, had full power to represent the company in all matters pertaining to insurance, a person who is induced by him to take insurance may, in the absence of notice to the contrary, regard him as an agent of the company, -with authority to bind it. • ■ - ‘ ■ ' ’ 1 •</p>

<p>1. Constitutional Law — Distribution of Powers — Judicial Functions — Political Questions. — A legislative apportionment of the State into congressional districts cannot be judicially reviewed, in ,the absence of a constitutional provision controlling apportionment.</p> <p>2. United States — Congressional Apportionment of Districts.— The Constitution of the United States contains no direction to the States on the matter of apportionment of the State into congressional districts.</p> <p>3.' Same. — There is nothing in the State Constitution, as to the manner of the apportionment of the State into congressional districts. ■ '</p>

<p>1. Infants — Disaffirmance of Deed. — A husband, while an infant, joined his wife'in a deed of trust of her land. After coming of age he joined her in a mortgage thereof for another purpose. Held, the mortgage operated as -a disaffirmance of his deed.</p> <p>2. Husband and Wife — Deed of Wife’s Land — Disaffirmance by Husband. — Under Ky. St. 1903, section 2129, providing that the husband must join in a deed of the wife’s land, he having,' after coming of age, disaffirmed such a deed executed while he was an infant, she is not bound thereby.</p>

<p>CASE 39. — ACTION BY MICHAEL MONAHAN AGAINST WILLIAM SCHWARTZ AND WIFE. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry, Circuit Judge.</p> <p>From the judgment plaintiff appeals —</p> <p>3. Appbal — New Trial After Verdict and Judgment — Determination 'on Reversal. — Where á new 'trial is improperly granted •' after judgment, and the party aggrieved properly enters his exceptions and files a bill of .exceptions, he is entitled to have the case-reversed for such error, with directions to set aside the order and to re-enter the original judgment.</p> <p>PROPOSITIONS AND CITATIONS.</p> <p>1. A wife may testify for her husband, to facts, which she learned while acting as his agent, and are not within his< knowledge. (Section 606, Ky. Code as amended by Act of February 23, 1898;Logsden v. Stern, 25 Ky. La.w Rep., 1649.)</p> <p>2. Are forcible entry and detainer cases, upon appeal to the Circuit Court, tried de novo, and can the action be dismissed against one defendant without affecting the action against the other defendant. (Beauchamp v. Morris, 4 Bibb., 312; Section 465 and 134 Ky. Code; Atchley v. Lathan, 3 Mar., 164 (1048); Swanson v. Smith, 25 Ky. Law Rep., 1260; Willis v. McNeal, 3 Ky. Law Rep., 411; Witt v. Willis, 85 S. W., 223; Hoffman v. Mann, 25 Ky. Law Rep., 255.)</p> <p>We submit that:</p> <p>Whether a new trial was properly granted in the first instance, the record shows that the appellee was entitled to a judgment upon the pleadings and this point may be presented for the first time even in the Court of Appeals; just as a general demurrer may be presented in this court. '</p> <p>AUTHORITIES CITED.</p> <p>Pearce v. Cooper, 9 Ky. Law Rep., 933 and ms. opinion therein; Powers v. Sutherland, 1 Duvall, 151; Code, sec. 465, Ed. 1906; Carrico v. McGee, 1 Dana, 6; Jeffers v. Simpson, 11 Ky. Law Rep., 328; Phoenix Insurance Co. v. McKernan, 100 Ky., 102; Ship’s Admr. v. Suggett’s Adrnr,, 48 Ky., 8; Logsden v. Stern, 25 Rep., 1651.) .</p>

<p>CASE 40. — ACTION BY FIRST NATIONAL BANK OF HOPKINSVILLE KENTUCKY AGAINST THE CITY OF HOPKINSVILLE TO RECOVER TAXES' CLAIMED TO HAVE BEEN ILLEGALLY ■ COLLECTED BY THE CITY. —</p> <p>Appeal from Christian Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Prom a judgment dismissing the petition plaintiff appeals, —</p> <p>CLASSIFICATION OF. AUTHORITIES.</p> <p>1. Taxation of United States Bonds. (Marion National Bank of Lebanon' v. Burton, Sheriff, "28 Ky." Law Reporter, 864; Citizen’s National 'Bank of Lebanon v. Samel ’ ' " • ' '</p> <p>2. Involuntary payment of taxes.. Ky. Stats., 3544; City of Louisville v. Anderson, &c., .79 Ky. Law Rep.. 334, .343, 344; Louisville & Nashville R. R. Co. v. Hopkins, County, 87. Ky. Law Rep., "613, 614; Sam© v. Commbn-wealth,. Use of Marion ' County, 89 Ky. Law Rep., 539; -German Security .Bank v." Coulter, Auditor, 23 Ky. Law Reporter, 1888.) •</p> <p>3. Correcting Assessment — Money Had and Received. (Cooley on Taxation, 746, 815, 816,' 822; City of Louisville v. Anderson, &c., 79 Ky. Law Rep., 334, 339; German Security Bank v. Coulter, Auditor, 23 Ky. Law Reporter, 1890, 1888; Newman’s Pleading & Practice, (2d Ed.), 122d; Underwood v. Brockman, 4 Dana, 309; Ray v. Bank of Kentucky, 3 B. Mon., 51’3; Gratz v. Redd, 4 A. Mon., 191; City of Louisville v. Zanone, 1 Metcalfe, • 151.')</p> <p>4. The equity of appellant’s- claim. (Acts of 1904, 145.)</p> <p>5. -Conclusion." -.(Acts of 1906, T34;- Kentucky Statutes, 3481; Marion National' Dank of Lebanon v. Burton, Sheriff; Citizen’s National Bank of Lebanon v. Same, 28 Ky. Law Reporter, 864.)</p> <p>QUESTIONS DISCUSSED. AND AUTHORITIES CITED.</p> <p>1. This is in the nature of an action for relief on account of an excessive assessment. -'And it is- -a well settled principle of law that when the proper assessing officers, in the time and 'substantially in the manner prescribed by Ia.w, ha.ye .acted, in fixing the value of property liable to assessment for taxation, and no relief has been sought in the time allowed for correction; théir action is final. (Coulter, Auditor, v. Louisville Bridge Co., 24 Ky. Law Rep., 809; German- Security-Bank v. Coulter, Auditor, 23 Ky.. Law Rep.,. 1888; .Royal Wheel Co.,-vr Taylor County, 20 Ky.-Law Rep., 904.) •< - • ■</p> <p>2. Appellant’s taxes were -not paid- under- a mistake of -law, but its property was assessed and its taxes, paid..according to the laws of this State, as enacted by the General Assembly, and as interpreted by all the courts of this State including the court of last resort, at the time. (Henderson National Bank v. City of Henderson, 91 Ky. Law Rep., 728; Franklin County v. L. & N. R. R. Co., 84 Ky., 59.)</p> <p>3. The rule that money paid under a mistake of law may be recovered by suit, applies to money paid as taxes, where the payment was involuntary, and when the whole assessment was void, and no part of the property was subject to taxation by the authorities levying and collecting the tax. (City of Covington v. Powell, 2 Met., 326; City of Louisville v. Anderson, 79 Ky., 284.)</p> <p>4. The rule laid down in the above cases does not apply where the payment was voluntary, or a part of the property was subject to taxation, or where the proper deduction was not made in assessing the property, as in this- case. (German Security Bank v. Coulter, Auditor; L. & N. R. R. Co. v. Hopkins County, 87 Ky., 60S.)</p> <p>5. There is a total want of equity in appellant’s claim. Its property was assessed at at least twenty thousand dollars below its actual value on the statement furnished by it.</p> <p>6. The lower court erred in refusing to allow appellee to file its amended petition.</p>

<p>1. Insurance — Destruction of Property hy Insured — Liability Under Policy. — Though there is no clause in a fire policy that insurer shall not be liable if the property "is destroyed by injured, it will not be liable if the poperty is destroyed hy his voluntary, fraudulent, corrupt, or wrongful act.</p> <p>2. Same — Destruction of Property hy Insured While Insane— Pleading. — The reply, in an action on a fire policy, stating that, if the fire was started hy insured, he was' temporarily insane and incapable _of forming any wrongful or fraudulent design, sufficiently, though inaptly, avers the insanity of insured at the time he burned the property.</p> <p>3. Same — Liability of Insurer. — Though ordinarily an insane per- ■ son is' civilly liable for his acts, yet his burning .his insured property does not relieve insured of liability, any more than would the destruction of it hy insured through his carelesssness or negligence, not amounting to fraud or wilful misconduct.</p>

<p>1. Pleading — Answer—Striking out Matter. — The court properly-struck from an answer a paragraph merely pleading in affirmative form matters of- defense put in issue by a traverse contained -in a preceding paragraph.</p> <p>2. Frauds, Statute of — Operation and Effect. — Where plaintiff’s right to have their private telephone line connected with defendant telephone company’s exchange was conferred by contracts under which defendant obtained its franchises from a city and county, and conditioned on deféndant’s failure to build the necessary line and furnish plaintiff’s telephone service, which contracts' were in writing, one in the form of an ordinance, and the other as an order or judgment of the fiscal court, the statute of frauds did not bar plaintiff’s right to compel defendant to make the connection.</p> <p>3. Telegraphs and Telephones — Private Lines — Franchise.— Where a telephone company purchased from a city and county franchises to operate its system, agreeing to furnish any person for whom it might not construct a line, telephone service over the ’line constructed by such person, parties constructing for their private use and not for operation in competition with the company’s system a connecting line were not required to obtain a franchise therefor.</p> <p>4. Same. — Where, under its franchises from a city and county, defendant telephone company contracted to furnish any person for whom it might not construct a line telephone service over a line of his own construction, defendant could not, after standing by and seeing plaintiff’s practically complete a private line, refuse to connect such line with its exchange on the ground that it was itself willing to build the line.</p> <p>5. Same — Repudiation of Contract. — A telephone company accepting and enjoying franchises from a city and county for the operation of a telephone system was. estopped to repudiate the provisions of the contracts evidenced by' the franchises.</p> <p>6. Trial — Transfer of Causes. — Where a complaint prayed that defendant telephone company be' made to comply with the contracts under which.its franchises were obtained by connecting plaintiff’s private line with its exchange, and also demanded damages for being deprived of the use of the telephone resulting from defendant’s refusal to make the connection, the two grounds of relief were not inconsistent, and it was not error for the court, following a trial of the issues of fact by the jury, to transfer the cause to the equity docket for the purpose of determining the equitable rights of the parties.</p> <p>7 Damages — Punitive Damages- — Breach of Contract. — Punitive damages are not recoverable for a mere breach of contract.</p> <p>8. Telegraphs and Telephones — -Breach of Contract — Failure to Furnish Service — Damages.-—In an action- against a telephone company for failing to connect plaintiff’s private line with defendant’s exchange, in accordance with the contracts under which its franchises were obtained, plaintiffs were entitled to recover such damages as would compensate them for the loss, if any, of the value to them of the telephone service they were entitled to receive of defendant, between the date of the completion of their private line and the time of the trial, less the rental cost to them, at the rate provided by the contract, of the transmitters and receivers that defendant would have been required to furnish them during the same time, such damages not to exceed the amount claimed in the petition.</p>

<p>1. Railroads — Operation of Trains — Care as to Trespassers.— The rule that a railroad company ordinarily owes no duty to a trespasser until his peril is discovered, and that it is not liable for an injury to him unless after his peril is discovered the injury may be avoided with proper care, does not apply in cities and towns where the danger to life is great, and in such localities it is the duty of those operating trains to moderate the speed, give notice of their approach, and keep a lookout and take such precautions as the circumstances demand.</p> <p>2. Same — Notice of Approaching Train — Right to Rely Thereon. —Though a pedestrian killed in crossing in front of a train could have seen it if she had looked just before she went on the track, she had a right to assume that proper notice of its approach would be given.</p> <p>3. Same — Contributory Negligence — Question for Jury. — If there is any evidence of contributory negligence of a pedestrian crossing the track in front of a train, the question is for the jury, and the scintilla rule applies to such question no less than to others.</p> <p>4. Same — Private Crossing — Through Express Trains — Knowledge of Danger. — While though express trainmen naturally know nothing of a private path across the track near a way station, the company is charged with knowledge that at such station is a town of 400 or 500 people, and that its depot is approached hy persons walking along the track in both directions, there being no other adequate way to get to it, and so must he held to know that this is a place at which the presence of persons on the track might reasonably be anticipated.</p> <p>5. Same. — A railroad company is not exempt from liability for killing a pedestrian because she was at a private crossing and was not going to its station,, where the crossing is in a town where the presence of persons on the track is to be anticipated, and where it is required to keep a lookout for them and give adequate notice of the approach of a train.</p> <p>6. Same — Speed of Train — Notice of Approach. — Where a train passes through a cut and emerges' from a curve within a •town, and so close to the station where the presence of persons on the. track or about it may reasonably be expected, adequate notice of its approach should be given, and the speed he such that the lookout would not he idle.</p> <p>7. Same — Gross Negligence — Punitive Damages. — A pedestrian was killed by a through express train at a private crossing just before passing a way station. The trainmen did not see her in time to stop, and the right to recover was based on evidence o-f their negligence in failing to check the speed of the train, keep a lookout, and give proper signals of their approach. Held, that it was error to submit the question of punitive damages or of gross negligence.</p> <p>8. Same — Approaching Train — Reasonable Signal. — A signal of a train’s approach ordinarily sufficient to give notice to persons exercising ordinary care for their own safety, and in possession of their ordinary faculties is reasonable.</p> <p>9. Same — Contributory Negligence. — If a pedestrian in going on the track in front of train failed to use ordinary care, and but for this would not have been injured, there can be no recovery notwithstanding the negligence of the trainmen.</p>

<p>CASE 44. — PROSECUTION AGAINST THE HERALD PUBLISHING CO., THE LOUISVILLE TIMES CO., AND THE EVENING POST GO. FOR SELLING OBSCENE NEWSPAPERS. —</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>These cases consolidated on appeal; Defendants acquitted, Commonwealth appeals —</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>I. In an indictment against a corporation for an act that is equally unlawful whether eommittéd by a corporation or a natural person, it is not necessary to allege corporate existence, but sufficient t'o charge defendant by name. (Halbert v. Skyles, 1 A. K. Mar., 368; Commercial Bank of New Orleans v. Newport Manufacturing Company, 1 B. Mon., 13; Henderson and Nashville R. R. Co. v. Laavell, 16 B. Mon., 358; Note — 35 Am. St. Rep., 291.)</p> <p>2. In considering a statute, if the will of the legislature can be clearly ascertained, such a construction will be given as will promote the harmonious- operation of the law as a whole, even though -the grammatical sense of the words must be modified, clerical errors corrected, some words rejected and others substituted. And all parts of thestatute, /including- amendments, will be read as one declaration of legislative .will, and be considered in connection with other statutes, in pari materia. (Commonwealth v. Grinstead, 55 S. W., 720; Bird v. Kenton County, 95 Ky., 195; Maysville, etc. R. Co. v. Herrick, 13 Bush, 123; 26 Am. and Eng. Ency. of Law, 602-604, 612, 616, 620,' 653-655, 659, 712.)</p> <p>3. Section 1352 of the Kentucky Statutes, forbidding obscene and indecent publications, is valid and enforceable, under the rule above cited, when read in connection- with secs. 1351, 1353, 1354, and 979, Ky. Statutes.</p> <p>4. Sec. 3839, U. S. Rev. Statutes, describing non-mailable matter, and sec. 1352 Ky. Statutes, denounce the same kind of publications, being confined to ma/bter that is obscene or indecent (the words signifying that form of immorality which has relation to sexual impurity), and ’ were designated to protect decency, purity and chastity in social life. A single obscene article will bring a paper within this statute. (Swearingen v. U. S., 151 U. S., 446; L. Ed. Book 40, p. 765; Lew Rosen v. U. S., 161, U. S. - L. Ed. Book 40, p. 606.)</p> <p>5. Secs. 1351 and 1353, Ky. Statutes apply to criminal news, police reports, etc., and accounts of crimes, when collected or massed in one publication to such extent as to' constitute the chief feature of the paper, or to show that it is devoted to the dissemination of such news. They were not intended to prevent an occasional account of a crime committed, or even continual publications of such news, merely incidental to the general contents and make up of the paper — because criminal news may be demoralizing unless dealt out in lafge doses, while obscene or indecent matter is always unlawful.</p> <p>6. Similar statutes have been construed and enforced in other states, and are not violative of any constitutional rights. (People v. Muller, (N. Y.) 48 Am. Rep., 635; St'ate v. Van Wye, (Mo.) 58 Am. St. Rep. 627; State v. McKee, (Conn.) 84 Am. St. Rep. 124.)</p> <p>7. Obscene or indecent language, whether, printed, or publicly uttered, was indictable and punishable at common law, and statutes similar to sec. 1352 Ky. Statutes, are but declaratory of the common la.w (State v. Appling, (Mo.) 69 Am. Dec. 469), and an indictment not good under the statute, though concluding “contra formam Statuti,” will be upheld if the acts charged constitute an offense at common law. (Ibid, and Gregory v. Commonwealth (32 Ky.), 2 Dana, 417.)</p> <p>8. Where the only punishment that could be imposed on conviction for misdemeanor, is a fine, because of the fact that the defendant is a corporation, even though the statute in its terms prescribes fine or imprisonment or both, a judgment of acquittal' of the corporation may be reversed on appeal. (Commonwealth v. L. & N. R. R. Co., 17 Ky. Law Rep., 563; Criminal Code, secs. 347, 352.)</p> <p>POINTS AND AUTHORITIES..</p> <p>1. Kentucky Statutes, secs. 1351, 1352, 1353, do not apply to publications such as are complained of in the indictments. (People v. Meuller, 96 N. Y., 408, 48 Am. Rep., 635; State v Applig, 50 Miss., 315, 69 Am. Dec., 459; Rosen v. U. S., 29; Swearingen v. U. S., 161 U. S., 446; Montrauss v. State, 72 Ga., 261, sc. 53 Am. Rep., 480; U. S. v. Harmon, 43 Fed., 414.)</p> <p>2. The matter complained of was for the information of the public. Public policy demands that the public shall be advised of what occurs in courts of justice and no cause of action arises out of a fair report of ■ the ■ proceedings in la court of justice. (Besier y. Scripps-McRae Pub. Co., 113 Ky., 389; Stewart v. Hall, 83 Ky., 375; Am. Cyc. of Law, vol. 18, p. 1043; Register Newspaper Co. v. Stone, 31 Ky. Law Rep., 458.)</p> <p>3. The indictment against the Herald Publishing Co. is fatally defective. '(Criminal Code, secs. 122; 124; Thompson on Corporations, vol. 5, see. 6436; Cyc., vol. 10, p. 1-231; Com. v. C., N. O'. & T. P. R. R.,.6 Ky. Law Rep., 306; Nichols v. Bardwell, 105 Ky., 172; Brooksville v. Bryon, 20 Ky. Law Rep., 1941; Ky. Stat., secs. 539, 542, 576, 540, 1627, 1624; Robertson’s Crim. Law, vol. 2, sec. 930; Ellison v. Commonwealth, 6 Ky. Law Rep., 306; Commonwealth v.'Adair, 6 Ky. Law Rep., 306; Commonwealth v. Neyrick, 6 Ky. Law Rep., 530; Herald Publishing Co. v. Com., 28 Ky. Law Rep., 1253; Archibald Crim,. Law, vol. 1, p. 47; Standard Oil Co. v. Commonwealth, 29 Ky. Law Rep., 5.)</p>

<p>1. Appeal — Mandate and Proceedings in Lower Court — Law of the Case. — The decision of the Court of Appeals on appeal is the law of the case on a subsequent trial, and the principles settled thereby are not open for reargument.</p> <p>2. Principal and Surety — Contribution Among Sureties. — Co-securities will, on a surety paying in fuli the debt for the benefit of all the sureties, be indebted to- him”, for their proportionate part .of the debt. . . .</p> <p>3. .Same — Actions Between Co-Sureties — Relief.—Where, in a proceeding under' Civ. Code Prac.' section 439, tó subject the property of a surety to the satisfaction of a judgment for' the debt, the petition alleged, that plaintiff was a surety of . the debtor, and that defendant was plaintiff’s surety, .and was liable for the debt paid by plaintiff, and the evidence showed that plaintiff and defendant were sureties, and that plaintiff had paid the judgment, the court was required- under the-general prayer in the petition for. proper and equitable relief to give judgment against defendant for his proportionate part of the debt. ' ' •</p> <p>4.‘ Corporations' — Defective Corporations; — Liability of Promoters. —A corporation was organized with a capital stock of $100 to engage in the business of buying lands and boring oil wells. Thereafter the articles of incorporation were amended vby increasing the capital stock to $60,000. None of the new stock was issued, and $8,220 was all that was subscribed and paid for. Some of the incorporators took an option on a farm. The corporation borrowed money to pay for the farm, and some of the incorporators indorsed the notes given for the money. Held, that the- incorporators were liable as- partners, the facts not showing a valid incorporation.</p> <p>5. Equity — Bringing in New Parties. — In a suit under Civ. Code Prac. section 439, to subject the property of defendant to the payment of a judgment rendered;, on, notes signed by an alleged corporation and defendant and plaintiff and others as sureties, based on the fact that plaintiff had satisfied the judgment, the court, with a view- of settling 'the liabilities of the incorporators as- partners because of the invalidity of the incorporation, should make 'all the incorporators parties.</p> <p>6. Equity — Mutiplicity of Suits. — Equity abhors both circuity and mutiplicity of actions, and will adjust equities of persons in one suit. '</p>

<p>1. Taxation — Constitutional Requirements — Classification of Subjects — Uniformity.—While- a state may- classify the subjects of taxation within its territory upon a reasonable basis, and such classification cannot be objected to so long as there is equality within the limits of the classification, under Const, section 174, requiring equality in taxation, and IT. S. Const. Amend. 14, prohibiting a state from depriving any person of his property without due process of law, or denying to any person the equal protection of the law, an arbitrary classification for purposes of taxation is void. • "</p> <p>2. Statutes — Construction.—It is a fundamental rule of statutory construction that a law will be construed, if possible, so as to render it valid, rather than-so as to render it invalid.</p> <p>3. Taxation — Levy—Assessment—Mode of Assessment of Corporate Property — Valuation of Franchise. — Ky. St. 1903,, section 4081, provides that iu taxing railroad, telegraph, telephone, express, sleeping, and. palace car companies, etc., the lines of which extend beyond the State, that proportion of the value of capital stock which the length of the lines in this State bears to the total length of the lines shall be considered in • fixing the value of the corporate franchise ■ taxable in this State, and such franchise shall be taxed in each county, incorporated town, etc., through which such lines are operated, in the same proportion that the length of the line in such county, etc., bears to the whole length of the lines within the State. Defendant is a Kentucky corporation, engaged in manufacturing refrigerator cars in this State which it leased to a packing house company in another state. Held, that, while refrigerator car companies were not expressly included in the statute, the Legislature intended to include within the statute all corporations similar to those enumerated; and, defendant’s business being similar to that of the car companies named, it was subject to taxation under section 4081.</p> <p>4. Towns — Taxation—Omitted Property. — The cities of this State have power to levy and collect taxes-, and to retrospectively assess all omitted property, and have an ample fiscal system of their own; and since; where the statute gives a special •remedy, it is exclusive, Ky'. St. 1903, section 4241, making it the duty of the sheriff or auditor’s agent to list for taxation all property omitted by the assessor, etc., for any years, and providing t)he manner in which such property may be assessed, does not authorize the assessment of defendant’s corporate franchise thereunder for the benefit of a town; the statute being intended to apply only to State, county, and district taxes.</p> <p>5. Schools and School Districts — Taxes—Levy and Assessment— Statement of Purpose of Tax. — Const, section 180, provides that every resolution passed by any county, city, town, etc., levying a tax- shall specify the purpose for which the tax is levied. A resolution of the trustees of a school district declared that a property tax of 50 cents on. each $100 worth of taxable property should be levied. He’d, that the levy was void,' as omitting to state the purpose thereof.</p> <p>6. Same — Subsequent Levy. — Though the levy was void for failure to specify the purpose thereof, the .trustees may subsequently make a valid levy.</p> <p>7. Taxation — Place of Taxation — Corporate Property — Rolling Stock of Car Company. — Where defendant refrigerator car company, a Kentucky corporation, leased the greater number of its cars for use in another state, but operated a small number of them in this State, -only-those cars operated in this State are taxable here.</p> <p>Nunn, J., dissenting.</p>

<p>CASE 47. — ACTION BY WILLIAM McGEE AGAINST T. S. Mc-CLURE TO RECOyER TIMBER CUT FROM PLAINTIFF’S LAND. —</p> <p>Appeal from Martin Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>From a motion by defendant to set aside an order to appoint a receiver, he appeals. —</p>

<p>1. Banks and Banking — Interest on Deposit — Action to Recover —Evidence—Sufficiency.—In an action to recover interest on a bank deposit, evidence held to show that defendant bank’s-president agreed to pay interest.</p> <p>2. Evidence — Best Evidence — Bank Books. — A bank’s books furnish better evidence as to whether a deposit was entered as a time deposit than the president’s oral testimony.</p> <p>3. Banks and Banking- — President’s Power. — A bank president may be authorized by the directors to do anything within the-authority of the bank’s charter.</p> <p>4. Same — Agreement to Pay Interest on Deposit — Authority.—A. bank is liable for interest on a deposit secured through the president’s promise that interest would be paid thereon, where in making the promise he acted within the scope of his. authority, in the absence of proof that he was without such authority and that the depositor knew it when he deposited.</p>

<p>1. Chattel Mortgages — Recording — Place. — Ordinarily personal property has the situs of the residence of the owner, and a mortgage thereof should be recorded in that county.</p> <p>2. Same — Description of Property — Certainty.—A chattel mortgage which does not locate the property as to State, county, or town, and which contains no 'reference to supply the omission, is void for uncertainty.</p> <p>3. Same. — A chattel mortgage executed by the owner of a franchise to build and operate a waterworks plant, which describes the property as a designated number of feet of “spiral pipe,” and which does not use any language by which i.t may be identified from pipe furnished by third persons, is void for uncertainty.</p> <p>4. Assignments for Benefit of Creditors — Priorities—Judgment— Right of Creditors to Complain. — A water company having a franchise to operate a water plant in a town made an assignment for benefit of creditors, consisting, among others, of citizens entitled to receive water until the money advanced by them .had been repaid. The plant was sold, and the purchaser assumed obligation to furnish the citizens with water. Held, that the error, if any, in imposing on the purchaser such 'Obligation, did not affect the other creditors, and the court •on the appeal of a creditor would not consider it.</p> <p>5. Same — Liens—Priorities.—Where an assignor for the benefit of creditors was indebted to sellers of goods under contracts stipulating that the title should 'remain in the sellers until the price was paid, which contracts was recorded, the sellers had a lien on the goods for the price.</p> <p>C. Same. — A water company operating a water plant in a town made an assignment for the benefit of creditors. "It had bought an engine and pumps under contracts stipulating that the title should remain in the sellers until the price was paid. The price had not been paid. The engine and pumps were used as a part of the plant, and could not be sold separately without .injury to the plant. Held, that the court, on directing the sale of the plant as a whole, should ascertain the cost of each item constituting it, and ’ascertain what per cent, the cost of the engine and pumps bore to the total of all the items, and give the sellers that per cent, of the proceeds of the whole plant, and, if their whole claims were not then satisfied, they should be permitted to present the balance as a general claim and to share with the other creditors pro rata, as provided by Ky. St. 1903, section 74.</p>

<p>1. Appeal — Invited Error — Right to Complain. — A party cannot complain of an instruction which he himself requested.</p> <p>2. Railroads — Injuries to Travelers at Crossings1 2*4 — Evidence—Instructions. — Where the undisputed evidence showed that the crossing where the accident happened was much frequented, an instruction that if the crossing was such that the presence of persons on the track might reasonably he expected and those in charge of the train negligently failed to keep a lookout, etc., a verdict should he rendered for plaintiff, was not erroneous because the duties therein required of the trainmen were predicated on the crossing being a place where the presence of persons on the track was to he expected.</p> <p>8. Same — Duty of Railroad Employes. — Employes in charge of a train need not slacken tihe speed of the train at ordinary public crossings; this being ordinarly required only at places where the population is crowded and the presence of persons on the track is to he expeeted.</p> <p>4. Trial — Instructions—Construction as a Whole. — Where, in an action for the death of a traveler struck by a train at a crossing, the evidence -showed that the engineer could not see on account of the obstruction -of the boiler an instruction that if those in charge of the engine “negligently” failed to keep a lookout, etc., a recovery was authorized, was not erroneous because of the use of the word “negligently,” when considered in connection with another instruction that those in charge of the train must use -ordinary care in discovering whether decedent was ignorant of the approach of the train and was about-to go on the track.</p> <p>5. Railroads — Accidents at Crossings- — Contributory Negligence-Effect. — Contributory negligence bars a recovery for-the death of one struck by a train at a public crossing unless, notwithstanding his negligence and after his peril was, or might by ordinary care have been, perceived, the operators of the train could by ordinary care have avoided- injury to him; and if the triain was by negligence running too fast, and decedent was by negligence on the track, the injury was due to the concurrent negligence of both, defeating a recovery.</p> <p>6. Same. — In -an action for tlhe death of a traveler struck by a train at a public crossing, the proper speed of the train may be taken into consideration with the other facts in determining whether decedent used- ordinary oare ini going on the track, and the jury must determine from all the evidence whether there was negligence on the part of the employes in charge of the train and contributory negligence on decedent’s part, but for which the injury would not have occurred.</p> <p>7. Negligence — “Contributory .Negligence.” — The term “contributory negligence” implies the existence of negligence on the part of defendant.</p> <p>8. Trial — Instructions—Undue Prominence to Particular Matters. —In an action for the death of a traveler struck by a train at a’ public - crossing, an instruction that, as' decedent was deaf,' it was his duty to exercise great caution in the use of his- remaining senses to avoid- danger from the' train,' was ■not erroneous as singling out facts or giving und-ue prominence to them, but correctly stated the law.</p> <p>9. Railroads — Injuries to Persons at Public Crossings — Care Required. — -Where a railroad crossing is especially dangerous, the railroad company and the travelers must use increased care commensurate with the danger.</p> <p>10. Appeal — Harmless Error — -Erroneous Instructions. — In an action for the death of a traveler struck by a train at a public crossing, where the evidence did not show that defendant’s negligence was the proximate cause o-f the accident, the error in an instruction that, as decedent was deaf, there could he no recovery because of the failure to sound the whistle or ring the bell on the approach of the train, was not prejudicial.</p> <p>11. Negligence^-Proximate Cause. — There can be no recovery on ■account of the negligence of another which was not the proximate cause of the injury complained of.</p>

<p>Specific Performance — Contracts • Enforceable — Sale of Land — Fairness. — Though a purchaser, where he accepts a conveyance of land with knowledge of the existence of a highway or railway through-the land, cannot thereafter obtain an abatement of the purchase price or a cancellation of the contract on account of the incumbrance, a contract to buy at .a specified price per acre an entire tract of land through which a railroad had condemned and paid for a right of way will not he specifically enforced, where nothing was said before or at the time -the contract was made which would show the purchaser’s intention to pay for the land embraced in- the right of way, .and where he refused to accept the deed requiring such payment, since such a contract is not fair and equitable.</p>

<p>1. Replevin — Redelivery Bond — Conditions.—Though plaintiff in replevin is unsuccessful in maintaining his title or right to the property,, the condition of his bond to “duly prosecute’’ the action is satisfied' by his prompt trial of the action in the circuit court and in the court of appeals.</p> <p>2. Same' — Liabilities*'—Plaintiff in replevin, who obtained the property by giving a bond conditioned to perform the judgment rendered and return the property, if return be adjudged, though unsuccessful in the action, is not liable on his bond for failure to return the property, where defendant failed to obtain a judgment for such return or any amount for the seizure or detention of the property.</p>

<p>1. Highways — Supervisors—Appointment.—Where the fiscal court levied a' specified tax “for the purpose of paying off the existing indebtedness of the county, and to defray the current and necessary expenses of the same,” and afterward appropriated a specified portion of such tax for road and bridge purposes, the roads and bridges were maintained by taxation within Ky. St. 1903, section 4313, authorizing the appointment of ia road supervisor in any county where the roads are worked by taxation, though the levy did not specify that any ■portion of the tax was for the purpose of maintaining roads and bridges.</p> <p>2. Counties — Taxation—Use of Funds — Purpose of Appropriation. Wlhere a tax was levied "for the purpose of paying off the existing indebtedness' of the county, and to defray current and necessary expenses of the same,” the appropriation of a portion thereof for road and bridge purposes was not a use of the money for purposes other than for which i; was col- , lected, as prohibited by Const, section 180.</p> <p>3. Highways — Supervisors — Appointment. —■ Where $7,000 per annum is actually collected by taxation and expended for road and bridge purposes, it is a sufficient maintenance of roads and bridges by taxation within Ky. St. 1903, section 4313, to authorize the employment of a road supervisor with a reasonable salary.</p>

<p>1. District and Prosecuting Attorneys — Duties.—Under Ky. St. 1903, section 127, making it a county attorney’s duty to prosecute all cases in his county in which the county is interested, and when so directed by the fiscal court to institute actions before any court in the Commonwealth iin which the county is interested, it is his duty to conduct a proceeding to ascertain the amount of taxes due and unpaid preliminary to a suit for their collection, when directed to do so by the fiscal court.</p> <p>2. Same — Compensation.—The salary paid to a county attorney for his services under the express provisions of Ky. St. 1903, section 132, is in full for all his official services, including those required' of him expressly by the statute and those rendered by direction of tlhe fiscal court in the prosecution and defense of actions under Ky. St. 1903, section 127, and, where the salary has been fixed by the fiscal court, it has, under the express provisions of Const, section 161, no power to diminish his compensation during the term for which he was elected; nor to increase it by allowing him a commission on unpaid taxes collected by him.</p> <p>3. Counties — County Expenses — Expenses of County Attorney.— A county is entitled to a county attorney’s personal time and attention, but when it requires him to go outside the county and attend to i'ts business; it is liable for the 'reasonable expenses incurred by him.</p> <p>4. Same — -Hiring Assistant Counsel. — Where the fiscal court directs the county attorney to prosecute a case, and authorizes .him to employ counsel to assist him, and acquiesces- in such employment, or ratifies it, the county is responsible for the compensation of the ’ counsel so employed.</p>

<p>1. Municipal Corporations — Public Improvements — Change of Grade of Street — Damages.—A lot owner is not entitled to recover from a city for consequential damages to a lot adjacent to a street because of the original grading of the street when not done negligently, the street having been previously dedicated or acquired by -the city for that purpose, since, where a street is dedicated or acquired by condemnation, it is implied that it may -be graded so far as necessary to fit it for a highway, and it will be presumed that the inconvenience of the owner of adjacent property and the injury to such property from the grading were compensated for at the time of acquiring the right of way; either by the dedicator or by the jury in awarding compensation under a writ ad quod damnum.</p> <p>2. Eminent Domain — Injury to Property not Taken — Change of Street Grade. — Where a city changes the grade of a street after it has been established, it is liable to' owners of adjacent property for injuries thereto under Const, section 242, providing that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed by them. ■</p> <p>3. Municipal Corporations — Change of Street Grade — Payment of Damages. — The establishment and maintenance for more than 15 years of improvements on lots adjacent to an ungraded street was not an establishment by the city by acquiescence of the natural grade of the street as the permanent grade so as to estop it subsequently from changing that grade without compensating the owners for damages sustained.</p>

<p>First Opinion.</p> <p>1. District and. Prosecuting Attorneys — Salaries.—Under Const, section 161, providing that the compensation of any county officer shall not he changed after hi& election or appointment during his. term of office, where the salary of a county attorney was not fixed before his election, the fiscal court had jurisdiction to fix the salary after his election, and, when fixed, it could not he changed during his term.</p> <p>.2. Same — Back Tax Collector — Appointment—Contingent Fees. — . Ky. St. 1903, section 126, provides that each county attorney shall attend all county and fiscal courts held in the county and conduct all cases and business in such courts affecting the county’s interest, etc. Section 127 requires him to represent the county and Commonwealth in all cases in which they.are interested, and, when directed by the fiscal court, to. institute proceedings before it. Section 132 .provides that the county attorney shall be allowed annually a reasonable salary, to he paid out of the county levy. Held, that the fiscal court had no power to appoint the county attorney back-tax collector, and to require him to collect such, taxes for a contingent fee.</p> <p>Extended Opinion.</p> <p>1. District and Prosecuting Attorneys — Salaries—Additional Compensation. — Ky. St. 1903, section 126, provides that each county attorney shall attend all county and fiscal courts, held in the county, and conduct all cases and business in such courts affecting tihe county’s interest, etc. Section 127 requires him, when so directed by the county or fiscal court,' to institute or defend actions and proceedings of every character before 'any of the courts of the Commonwealth. Sections 128, 129, 130, and 131 impose other duties on him. Section 132 provides that he shall be allowed annually a reasonable salary, .to be paid out of the county levy. Held, that services rendered by the county attorney, when directed by the county or fiscal court, are included in his official duties, and are. covered by ¡his annual salary allowed by section 132, though where, by statute, duties are imposed, on him and compensation by way of commissions or otherwise is provided, he is entitled to such compensation in addition to the .salary by the fiscal 'court under said section.</p> <p>2. Words and Phrases — “Salary.”—The word “salary” may be defined generally as a fixed annual or periodical payment for services, depending on the time, and not on the amount of the services rendered; and though, to give a statute effect, the word will sometimes be more broadly construed, this will ■not be done where the language of the statute forbids such construction.</p> <p>3'. District and Prosecuting Attorneys — Salaries—Statutory Provisions' — Construction.—Under Ky. St. 1903, section 132, providing that the county attorney shall be allowed annually a reasonable salary to be paid out of the county levy, the’salary must be a fixed sum, and not dependent on contingent fees, since to make an allowance payable out of such levy necessarily means that a certain sum is to be allowed, so that the county treasurer will have a definite order of the fiscal court to direct him in paying the claim.</p> <p>4. Counties — Fiscal Court — Powers — Correction of Mistakes.-^ The fiscal court has power to correct a mistake in the amount allowed by it to the county, attorney as his annual salary.</p>

<p>CASE 57. — ACTION BY THE COMMONWEALTH AGAINST THE CHESAPEAKE & OHIO RAILROAD COMPANY FOR A STATUTORY PENALTY. —</p> <p>Appeal from Bracken Circnit Court.</p> <p>James P. Hakbeson, Circuit Judge. .</p> <p>Demurrer to petition sustained, and plaintiff appeals. —</p>

<p>CASE 58. — ACTION BY LOU A. RAGLAND’S ADMR. AGAINST THE LEONORA ■ NATIONAL BANK TO RECOVER MONEY ALLEGED TO HAVE BEEN DEPOSITED BY THE INTESTATE. —</p> <p>Appeal from Rowan Circuit Court.</p> <p>A. W. Young, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>AUTHORITIES CITED.</p> <p>1. Competency of witnesses: (Civil Code, sec. 606, subsec. 1; Civil Code, sec. 606, .subsec. 6; Apperson’s Ex’ors v. Exchange Bank, 10 Ky. Law Rep., 943; Preston v. Adkins, 106 S. W., 213; Greenleaf on Evidence, vol. 1, sec. 390; Doty v. Doty, 26 Ky. Law Rep., 63.)</p> <p>2. Admission of 'books: (Roor v. Robinson, 13 Bush, 290; Galbraith v. Stark, 117 Ky., 922.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A stockholder in a corporation is not a competent witness in an action where the corporation is interested as to alleged transactions with, or alleged verbal statements of, one who is dead, etc. (Sub-sec. 2, sec. 606, Civil Code; Story v. First National Bank, &c., 24 Ky. Law Rep., 1800; Kentucky Stove Co., v. Bryan/s Admr., 27 Ky. Law Rep., 137.)</p> <p>2. Nor can a stockholder by selling or otherwise disposing of his stock thereby make himself competent. (Subsec. 7, sec. 606, Civil Code; Neale’s Admr. v. Neale, &c., 18 Ky. Law Rep., 345; Hardin’s Admr. v. Taylor, 78'Ky., 593; Harpending’s Ex’r v. Daniel, 80 Ky., 449; Hopkin’s Admr. v. Faeber, Trust., 86 Ky., 223; Hurry v. Kline, 93 Ky., 358; Hubbs Exrs. v. Russell’s Ex’r, 79 Ky., 61; Alexander’s Ex’rs v. Alford, &e., 89 Ky., 105.)</p> <p>3. The person who made the entries in a bank book can alone prove them if in the jurisdiction of the court. (Walden v. Citizen’s Savings Bank, 19 Ky. Law Rep., 1410; Poor, &c. v. Robinson, &c., 13 Bush, 294.) ’</p>

<p>CASE 59. — ACTION BY ELSWORTH WOODS AGAINST JAMES T. THOMAS TO ENFORCE A LIEN FOR THE CONSTRUCTION OF A SEWER. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>M. L. Harbbson, Circuit Judge.</p> <p>Judgment for plaintiff Defendant appeals.- —</p> <p>1. The liability of the owner of property for improvements of this character is purely statutory. There is no common law liability. The liability being statutory, the statute mus-t he strictly pursued. These principles are fully established by the following decisions: (Caldwell v. Rupert, 10 Bush, 179; City of Henderson v. Sutton-, 7 Ky. Law Rep., 378; Harris v. Zable, 5 Ky. Law Rep., 114.)</p> <p>2. The s-trictness with which the courts have held that municipal corporations are required to pursue the charter provisions as to the imposition of burdens of this sort, is well illustrated.</p> <p>3. Even -if there had been a valid ordinance and contract, which we deny, the general council had no right to delegate its legislative powers to the engineer, or to leave to his caprice the important matter of fixing the grade of St. Louis street in front of appellant’s property and the equally important matter of fixing the depth below the natural surface at which the sewer was to be laid.</p> <p>POINTS AND CASES CITED.</p> <p>1. A sewer is not an “original improvement as contemplated by section 3100 of Kentucky Statutes. (Sections 3094 to 3100, both inclusive, Kentucky Statutes.)</p> <p>2. Failure of council to allow two week® to elapse between the passage by one board- and the other of an ordinance ordering the construction of a sewer is an error in the proceedings which is cured by the language of section 3100 of the Kentucky Statutes. (Cases cited and distinguished; Caldwell v. Rupert, 10 Bush, 179; City of Henderson v. Sutton, 7 Ky. Law Rep., 378; Kaye v. Hall, 13 B. Mon., 455; East Tenn-. Tel. Co. v. Anderson Co. Tel. Co., 22 Ky. Law Rep., 418; Manaman v. Ohio Tel. Co., 25 Ky. Law Rep., 784; City of Covington v. Brinkman, 25 Ky. Law Rep., 1949; Fehlar v. Gosnell, 99 Ky., 380; Louisville v. Gleason, 20 Ky. Law Rep., 1865; Louisville v. Gast, 26 Ky. Law Rep., 412; Noland v. Mildenberger, 29 Ky. Law Rep., 1179; Section 3100 Kentucky Statutes.)</p> <p>3. Where the diepth of a sewer is left to the judgment of a. city engineer, it is such an error ini the proceedings of the general council as is cured by the language. of -section 3100 Kentucky Statutes. (Louisville v. Gast, 26 Ky. Law Rep., 412; Noland v. Mildenberger, 29 Ky. Law Rep., 1179; Section 3100, Kentucky Statutes.)</p>

<p>CASE 60. — CONDEMNATION PROCEEDINGS BY THE MADI-SONVILLE, HARTFORD & EASTERN R. R. CO. AGAINST W. M. WARDEN. —</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>SYNOPSIS OF POINTS DISCUSSED.</p> <p>1. The only questions determined- by the lower court are whether the railroad company had been properly incorporated and the necessity for taking the strip of land 200 feet wide.</p> <p>2. The judgment appealed from determines that the" railroad company was properly organized and that it is necessary for the use of the company to have a strip of appellant’s land 200 feet widg and it is to the latter finding that we direct attention.</p> <p>,3. We do not think that the testimony heard on the'trial shows any necessity for the use of a strip of land 200 feet wide.</p> <p>4. The width of a strip of ground which a railroad company may take for a right of way, is fixed by the statute and no land can be taken beyond the limits of that strip except as may be specifically authorized by the statute for cuttings and embankments or material necessary for the construction of the road-bed. (Subsec. 4 of sec. 768, Ky. Stats., Elliot on Railroads-, vol. 3, sec. 973, and authorities cited.)</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The company was properly organized. This was shown by a properly -attested copy of its articles of incorporation and certificate of the secretary of the railroad commission. (Warden v. M. H. & B. Ry. Co., 31 Ky. Law Rep., 234.)</p> <p>2. A railroad company properly organized is, under our statute, invested with the power of eminent domain and to condemn the amount of land necessary for its purposes. (Warden v. M. H. & E. R., 31 Ky. Law Rep., 234.)</p> <p>3. Necessity meant is a reasonable necessity, having due regard to the interests of the condemning party, the public as well as the land owner and also having regard -for the future interests and needs of the company in the probabl-e -extension and develop-' ment -of its business. (15 Cyc. 632; Auroa G. Ry. Co. v. Harvey* 53 N. E., 331; Hays v. Briggs* 3 Pittsb., 504; Commissioners v* Maesto (Mich.), 51 N. W., 903; Pettingil v. Porter, 8 Allen, 1; Cates v. Mayor, &c., 7 Cow. 585; Prather v. Chicago & R. Co.* 77 N. E., 430; Application! Stanten Island Rapid Transit Co., 8 N. E„ 548; O’Hare v. Chicago & N. R. Co., 28 .N. E„ 923, arid, cases cited; Platt v. P-enn. Co., 1 N. E., 420; Clausen v. C. P. D.. & L. Bis., 82 N. E., 278; Tracy v. E. L. •& B. R., 80 Ky., 259; L. & N. R. R. Oo. v. Scomp, &c., 30 Ky. Law Rep., 487.)</p> <p>4. The necessity shown is a reasonable necessity for its use for the purpose of the company, taking into consideration -all the-facts and circumstances shown in the proof.</p> <p>5. The necessity referred to in the decisions means “expedient,” “reasonably convenient” or “useful to the public” or for the legitimate purposes of the condemning party.</p>

<p>1. Judges — Disqualification to Act — Association with. Attorney for One of the- Parties in Another Case. — The facts that a special judge is counsel for a railroad, and that another attorney, who isi his superior in authority in the same employment, was attorney for one of the parties in a former action, and therein showed, his personal hostility toward defendant’s interests, are not sufficient to disqualify the judge.</p> <p>2. Same* — Interest in Possible Future Litigation. — The facts that a special judge was counsel for a railroad which might be involved in litigation in respect to land in controversy in the instant case, and in case of such litigation the judge might not impartially decide-the matters involved in-the instant case, are not sufficient to disqualify the judge.</p> <p>S.Same — Social Favoritism. — It' is only judicial favoritism that ■ disqualifies a judge, and mere personal or social favoritism shown a party or his attorneys Is not sufficient.</p> <p>4. Same. — The fact that ini a former hearing of an application for the appointment of a receiver of the property in controversy in the instant case, where evidence was heard upon the question whether a partnership existed, the judge, after deciding that a partnership did exist, expressed his satisfaction with the proof on that issue and complimented the attorneys on the other- side for their presentation of their case, did not prejudice the issue of the existence of the partnership, which was the main issue in the instant case to settle partnership accounts, so as to disqualify him from - further service as judge in the case.</p> <p>5. Same — Intention to Appoint Prejudiced Commissioner. — The fact that a judge intended' to appoint as commissioner to hear proof and settle partnership accounts a person prejudiced against one of the parties and in favor of another, while good caus© for objection to the commissioner’s appointment, is no ground for disqualification of the judge.</p> <p>6. Same — Sufficiency of Affidavit. — An affidavit that a judge is disqualified to act must set forth the facts upon which the general allegation is made, and mere inferences, suspicions, ■and conjectures are not sufficient.</p> <p>7. Appeal — Review—Scope—Rulings Against Party Not Appealing. — On appeal by the unsuccessful parties, where no cross-appeal was taken by the two successful parties, in a controversy over their transaction with a deceased person, the ruling of the court that neither one -of them could testify for the other asi to what was said or done by or with decedent need not be reviewed.</p> <p>8. Partnership — Sharing Profits — Evidence.—While profit sharing is not a conclusive test of partnership, it is important as evidence tending to prove the relation, as an agreement to 'share- profits is an essential element of every partnership, and its absence is conclusive that a partnership does not exist.</p> <p>9. Same — Mutual 'Agency. — Mutual agency is not a test of partnership, since agency results from partnership, and not part- . nership from agency; and though the absence of mutual agency is a circumstance to be considered, it' is not conclusive . proof that a partnership doea not exist.</p> <p>10. Same" — Intention of Parties. — -The intention of the parties is the controlling element in deciding whether a partnership .e.xists, and if.they by their acts, conduct, and writings show that they intended a partnership, and did in fact agree to share the profits of the business as. joint owners, they are partners..</p> <p>11. Same — Existence ■ of Relation — Evidence.—Evidence examined, and held to show that a partnership existed among certain persons.</p> <p>12. Witnesses — Competency — Transactions with Person Since Deceased. — A defendant in a proceeding to settle partnership accounts, who had received machinery from one of the part- . ners, since deceased, may testify for the adverse party that he purchased the machinery from decedent at a certain price, . where the only question involved was whether he paid a certain sum to decedent for the machinery, and the recovery of the machinery was not an issue; Civ. Code Prac. section 606, snbd. 2, providing that no person shall testify for himself concerning any transaction with one who is dead, etc., and subd. 7, providing that the assignment of a claim by a person who is incompetent to testify for himself shall not make him competent to testify for another, not being applicable.</p> <p>13. Partnership — Settlement—Evidence.—In a proceeding to settle0 partnership accounts evidence examined, and held to warrant a charge against the estate of a deceased partner for 500 acres of partnership land sold by him at ?40 per acre.</p> <p>14. Same — Application of Payments for Land Partly Belonging to Firm. — Where a partner sold land owned partly by the firm and partly by himself, and received in stock and cash an-amount in excess of the price of the firm land, but less than the price of the entire tract, good faith requires that the . ■ payments should be applied om the debt due upon the partnership lands before applying any of it to that owned by the partner individually.</p> <p>15. Same — Sale of - Firm Land by Partner for Stock — Payment of Purchase Price to Firm. — Where -a partner' sells firm land as his own, takes stock in part payment, and converts it to his own use, upon settlement of the partnership accounts 12 years' thereafter, the firm will not be required to take any part of the stock as payment for the firm land.</p> <p>16. Same — Accounts- Between Partner and Firm — Mutual Accounts. — A partner agreed to advance to -his firm money needed for the purchase of land, expenses of business, etc., and he was to receive interest on' advancements made. He also received and retained sums of firm money, the proceeds ■ of sales of the land negotiated by him. Held, that the accounts between him and the firm, showing the amounts advanced by him and the amounts received by him from the sales of firm property negotiated by him as trustee, constituted, not a case of partial payments, but one. of mutual accounts of equal rank, and the same rate of interest should be allowed upon the proceeds of sales of firm property while in his hands as upon advancements made to the firm.</p> <p>17. Trial — Submission “for Hearing and Trial in Chief” — Power of Court. — In a proceeding for the settlement of partnership . accounts, where the case was submitted on exceptions to certain depositions and “for hearing and trial in chief,” the court, without any agreement between counsel, could take up and pass upon- the controversy relating to certain items, without referring them to a commissioner to hear proof and report thereon.</p> <p>18. New Trial — Additional' Evidence — Sufficiency of Affidavit.— Affidavits for a, new1 trial on the ground of certain facts, some of which were recited in a deed, which do not show any reaiSon why the evidence could not be secured in time for the final hearing, n-or why a copy, of the deed, which was on record, was not secured for the- hearing, are insufficient.</p>

CASE 62. — PROCEEDING BY THE COMMONWEALTH AGAINST THE KENTUCKY UNION COMPANY TO FORFEIT LAND OWNED BY DEFENDANT FOR NON-POYMENT OF TAXES. — Appeal from Leslie Circuit Court. H. C. Faulkner, Circuit Judge. From a judgment forfeiting the land and authorizing its sale by the Commonwealth defendant appeals— POINTS AND AUTHORITIES. 1. The forfeiture act of 1906 is an utter and abject failure as a revenue raiser, or title quieter. 2.

<p>l.Judgment — Notwithstanding Verdict — Contributory Negligence —Reply—Necessity.—Unless the plea of contributory negligence is controverted of record or replied to, defendant is entitled to judgment on the pleadings, though plaintiff may have obtained a verdict.</p> <p>2. Pleading — Amendments — Discretion of Court. — Under Civil Code Prac. section 134, authorizing the court at any time in furtherance of justice and on proper terms to- permit a pleading to be amended, the discretion of the trial court in allowing amendment of pleadings during a trial should be exercised with liberality to secure a trial on the merits; and, where it does not appear that the substantial rights of the ladverse party will be prejudiced by an amendment, but that injustice will be done if it is rejected, the court should allow it on such terms- as will protect the rights of the parties.</p> <p>3. Same — Reply.—In an action for injuries, through negligence, the trial court should have permitted plaintiff to file on the trial a reply to defendant’s plea of contributory negligence, on motion by defendant, at the close of plaintiff’s evidence, for judgment on the pleadings for want of reply, on condition that plaintiff pay the costs up to the time of the filing, 'and that he continue the case if defendant so desired.</p> <p>4. Damages — Injuries to Personal Property — Interest. — Where personal property, is injured -or destroyed-by-negligent, wrongful, or unlawful acts, and the owner is thereby deprived of its use and possession, he is entitled- in. a suit for its loss to recover the value of the property and' interest thereon in the discretion of the jury.</p> <p>5. “Negligence” — Definition. — -Negligence, generally speaking, whether it be ordinary or gross, is merely an omission to perform a duty, and is not an-a ffirmative wrongful act, though there may be instances where gross negligence is of an affirmative character, and amounts to .an intentional wrong, or a reckless disregard of the rights of others.</p> <p>6. Railroads — Accident at Street Crossing — Damages—Injuries to Personal Property — Punitive Damages.1 — Where, in an action against a railroad for injuries to plaintiff’s horses and wagon through being- struck by a train at a street crossing, the only act of negligence committed was- the failure of defendant’s gate watchman to close the gates,, plaintiff was not entitled to recover punitive damages.</p> <p>7. Damages — Punitive Damages — Grounds.—Exemplary damages may be -awarded in trespass, or where there is injury to personal property, if it is attended by affirmative- acts of aggravation, or is the res-ult of wilful, reckless or malicious conduct.</p> <p>8. Same — Pleading.—Where, in an action for injuries to personal property through negligence, plaintiff desires to recover for loss of its use, he must specifically plead it; such element of dam-age not being recoverable un-d-er a general allegation of negligence.</p> <p>9. Same — Loss of Use of Property. — Where damages are sought fo-r injury to personal property, as well as damages for the deprivation of its use, interest is- not allowable, as the recovery for the use takes the place of interest.</p> <p>10. Railroads — Operation — -Companies Liable — Accidents- at Crossings — Gates at Crossing. — Where gates for the- protection of the public are necessary where a street crosses a. railroad track, it is the duty of every railroad company using the track to protect the- crossing, and each company and the owner of the track are jointly and severally liable-for injuries by trains resulting from a failure to perform such duty.</p> <p>11. Same — Crossing Accidents — Duty of Persons Crossing.— When -gates at a crossing are kept closed .when trains are approaching, and open when they -are not, the fact that they are open is an invitation to the public to cross, and persons desiring to cross have a right to assume that they can d-o-so without being struck by approaching trains, though they are not thereby relieved from exercising ordinary eare for their own safety or from attending to other notice or warning of the approach of trains.</p> <p>12. Appeal — Review—Harmless Error — Pleading—Instructions.—Where, in an action against' two railroads for injuries to plaintiff’s horses and wagon through being struck by a train operated by one of defendants over the other’s track, the judgment recovered by plaintiff against one of defendants was substantially all that he was entitled to recover against either or both of them, and was collectible, error of the trial court in refusing to' permit a reply to be filed to the answer of the other defendant, and in declining to instruct that the jury might allow interest on the value of the property from the time of. the injury, was not ground for reversal; the matter of interest being small, and the probability of its recovery being indefinite.</p>

<p>CASE 64. — ACTION BY MARY ■ E. IRONS . AND OTHERS AGAINST THE UNITED STATES LIFE INSURANCE COMPANY OF NEW YORK AND OTHERS TO RE- ■ COVER THE PROCEEDS OF A POLICY. —</p> <p>Appeal from Cray son. Circuit Court.</p> <p>Weed S. CAelf, Circuit Judge.</p> <p>From a judgment of dismissal plaintiffs appeal — -</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Infants must be defendants. (Civil Code, see. 489, sub-sec. 3; Allen v. Stump, 3 Ky. Daw Rep., 564; Devlin v. Bethshears, 7 Ky. Laiw Rep., 522; Shelby v. Hairrison, 8 Ky. Law Rep., 83.)</p> <p>2. Ward® over fourteen must appear in court. (Kentucky Stats., 2022; Garth v. Taylor, 24 Ky. Law Rep., 1963.)</p> <p>3. Insurance policies can not be sold. (Settle v. Hill, 5 Ky. Law Rep., 691; Mutual Life Insurance Co.. Twyman, 28 Ky. Law Rep., 160, 1159, 1160.)</p> <p>3. Informal judgment and sale. (Civil Code,' section 696; Runyan v. Darnall, 9 Bush, 668; Myers v. City of Covington, 20 Ky. Law Rep., 241; Luttrell v. Wells, 16 Ky. Law Rep., 812-15.)</p> <p>4. Necessity for insurable interest. (Kentucky Statutes, section 678; Throckmorton’s Adm’r v. Nat. Mut. Ben. Assn., 4 Ky. Law Rep., 61; Warnock v. Davis, U. S. Supreme Court, 4 Ky. Law Rep., 67; Bayse v. Adams, 5 Ky. Law Rep., 91; Settle v. Hill, 5 Ky. Law Rep., 691; Beard v. Sharp, 18 Ky. Law Rep., 1029; Sehlamp v. -Berners, Adm., 21 Ky. Law Rep,, 324; Bromley's Adm’r v. Washington Life Ins. Co., 28 Ky. Law Rep., 1300; Doty' v. Dickey, 29 Ky. Law Rep., 900; Bramlette v. Hargin, 29 Ky. Law Rep., 610.)</p> <p>5. Void judgments attacked collaterally. (Stevens v. Dearing, 10 Ky. Law Rep., 393; Miller v. Swann & Brown, 12 Ky. Law Rep., 621.)</p> <p>6. The courts and illegal contracts, etc. (Bromley’s Adm’r v. Washington Life Insurance Co., 28 Ky. Law Rep., 1300.)</p> <p>7. Insurance policies testementary, and as to the vested rights of beneficiaries'. (Robinson v. Duvall, 3 Ky. Law Rep., 94; Mutual Life Insurance Co v. Twyman, 28 ky. Law Rep., 160; Power of guardians to sell personal property of wards. Kentucky Stats., 2031.)</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. Judgment and sale void because purchaser had no insurable interest in life of insured. (Basye v. Adams, 81 Ky., 568; Sehlamp v. Berner’s Admr., 21 Ky. Law Rep., 324; Caudell v. Woodward, 96 Ky., 646; Throckmorton’s Admr. v. Insurance Co-., 4 Ky. Law Rep., 61; Warnock v. Davis, 4 Ky. Law Rep., 67 (U. S. Supreme Court); Leaf v. Leaf, 92 Ky., 166; Beard v. Sharp, 18 Ky. Law Rep., 1029; Burnam v. White, 16 Ky. Law Rep., 241; Robinson v. Duval, 79 Ky., 83;' Baldwin v. Hayden, 24 Ky. Law Rep., 900; Wolf v. Pierce, 20 Ky.- Law Rep., 296; Bramblett v. Hargis’ Exr’trx, 29 Ky. Law Rep., 610.)</p> <p>2. Sale and assignment void as against public policy. (Ky. Stats., 678; Settle v. Hill, 5 Ky. Law Rep., 691; Insurance Company v. Twyman, 28 Ky. Law Rep., 1159; Bramblett v. Hargis, Ex’trix, 29 Ky. Law Rep., 610.)</p> <p>3. Sale and assignment vo-id because of contingent interest of beneficiaries. (Connecticutt Life Ins. Co. v. Buroughs, 91 Am. Dec., 725.)</p> <p>4. Order appointing Mrs. Buncb. guardian void. (Ky. Stats., 2022! Garth’s Guardian v. Taylor, 24 Ky. Law Rep., 1963.)</p> <p>5. Raymer case not in point. (Raymer v. Trustees, &c., 30 Ky. Law Rep., 332; Stevens v. Deering, 10 Ky. Law Rep., 393; Parsons v. Spencer, 83 Ky., 305; Green v. Page, 80 Ky., 368; Spencer v. Parsons, 89 Ky., 577.)</p> <p>We contend:</p> <p>1. That tbe order of the county court of Grayson county, appointing Lydia Spriggs Bunch guardian of the appellants is not void nor even erroneous, from which it inevitably follows that tbe appellants were properly joined by her -as tbeir guardian in tbe petition for tbe sale of tbe insurance policy.</p> <p>2. That the judgment, decreeing a sale of the insurance policy, was not void nor even erroneous, but that if erroneous, the infant plaintiffs were bound to show cause against it and move for its vacation within one year , after arriving at full age, and having failed to do so, they cannot assail that judgment collaterally in this proceeding.</p> <p>3. That the question whether the insurance policy could or could not be sold to one having no insurable interest in tbe life of the insured, does not -affect the jurisdiction of the court to direct the sale, and if error at all, is no more error than a judgment decreeing a sale of a homestead, wbien, under tbe statute, was exempt from sale, or a judgment enforcing a contract, which, under the -statute or Constitution of the State was void.</p> <p>4. That irregularities, if any, in the conduct of the sale must be brought to the attention of tbe Chancellor before its confirmation or they are waived, and if brought to tbe attention of tb-Sf Chancellor and overruled, tbe party affected must appeal from the order of confirmation as in other cases, or fie will be concluded by tfie judgment or order of confirmation, however erroneous it may be.</p> <p>THE LAW.</p> <p>Tfie appellants, who were infants in tfie equity suit for tfie sale of tfie policy, had one year after arriving at age, to show cause against tfie judgment in that case and to apply for a new trial.</p> <p>“An infant — other than a married woman, may, within twelve months after attaining tfie age of twenty one years, show cause against a judgment * * *, but tfie vacation of such, judgment shall not affect tfie title of a bona fide purchaser under it.” (Civil Code, section 391.)</p> <p>“Tfie court in which a judgment has been rendered, shall have power, after tfie expiration of the term, to vacate or modify it: — ■</p> <p>8. For errors in a judgment, shown by an infant within twelve months after arriving at full age 'as* is. prescribed in section 391 Civil Code.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, secs. 391, 518, 36 subsection. 3, 517 subsec. 2, 21; Kentucky Statutes, secs. 2015, 4849, 2022, 2021, 1706; Prince v. Antle, et al., 90 Ky., 138; Kellar v. Wilson, 90 Ky., 351; Jacob’s Admr. v. Louisville & Nashville R. R. Co., 10 Bush, 268; Garth’s Guardian v Taylor, et al., 24 Ky. Law.Rep., 1963; Mahan v. Steele, Guardian, 22 Ky. Law Rep., 48; Derr v. Wilson, 84 Ky., 14; Thompson v. Pettibone, 79 Ky., 319.</p> <p>I contend that tfie law I have cited in this brief establishes tfie following:</p> <p>1. No judgment except it is absolutely void can be attacked in a collateral proceeding.</p> <p>2. Ño judgment is void where tfie court had jurisdiction of tfie parties and tfie subject matter.</p> <p>3. In order to ascertain whether or not .the judgment is void in tfie action of Lydia Spriggs Bunch, &c., v. Ben Wells, &c., tfie court can not iook outside of that record, and it must appear affirmatively from that record.</p> <p>4. The court had jurisdiction of the parties in that action. *</p> <p>5. The court had jurisdiction of the subject matter. A court of equity has inherent jurisdiction of infants and their property, and- has a right to so dispose of that property as 'will.best conduce to the welfare of the infants.</p> <p>6. If_ that judgment is merely erroneous -the appellants had their remedy, either to appeal or to move to vacate it.</p> <p>7. They had until one year next after they became twenty-one years of age in which to show cause against said judgment, and having failed to do so within that time they have lost their remedy, if any they had.</p> <p>8. The petition itself must show facts disclosing that the suit was brought within the time allowed by law after they became twenty-one year® of age, or it is subject to demurrer.</p> <p>9. The appellants can not hold on to our money and repudiate tie acts by which they got it. They must pay it back or offer to pay it back.</p> <p>I insist that the demurrer to the petition as amended’ was properly sustained and the case should be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Newcombs Executors v. Newcomb, 13 Bush, 564, 562; Am. & Eng. Encye. of Law, 1st Ed., vol. 12, 147 b. w. and x.; Davis v. Packard, 8 Pet., (U. S.) 324; Civil Code, sec. 35, subsec. 1; Wilson, Grd. v. Unsielts’ Admr., 12 Bush, 223; McCord v. Fisher’s Heirs, 13 B. Mon., 194; Powers v. Powers, 12 Ky. Law Rep., 793; Bacon v. Bills, 6 Ky. Law Rep., 217; Henning v.’ Barringer, 10 Ky. Law Rep., 674; Smith v. Leavill, 16 Ky. Law Rep., 609; Revills v. Claxon’s Heirs, 12 Bush, 562; Lee v. Page, 12 Bush, 202, 208;Bouviers Institutes, vol. 4, pp. 23, 265, 267, 268; 56 American Decisions, 164; Beech on Contracts, 1498; Withers, &c. v. Hickman, &c., 6 B. Mon., 294; Campbell v. Golden, 79 Ky., 548; Thompson v. Pettibone, 79 Ky., 322; Prather v. Davis, 13 Bus-h, 372; Prescott” v. Prescott’s Heirs, 10 B. Mon., 60, 61; Amer. & Eng. Encye. of Law, 2nd Ed., vol. 17, pp. 1073, 1074; Hersey v. Walsh, 3 Am. . St. Rep., 690; Sear’s Heirs v. Sear’» Heirs, 95 Ky., 174; Dawson v. Litsey, 10 Bush, 412; Carlisle v. Howes, 19 Ky. Law Rep., 1238; Moran v. Yicroy, 117 Ky., 198; Derr v. Wilson, 84 Ky., 14; Francis v. Wood, 81 Ky., 22'; Civil Code, see. 391; Figg v. Richardson; 6 Ky. Law Rep., 49; Back, &c.' v. Combs, 96 Ky., 524; Kentucky-Statutes, 2127; Shanklin v. Moody, 23 Ky. Law Rep., 2063; Wren v. Ficklin, 22 Ky. Law Rep., 1035; Howard v. Gibson, 22 Ky. Law Rep., 1294; Turner ,v. Gill, 20 Ky. Law Rep., 1253; Raymer v.. Trustees, 98 S. W., 323; Kentucky Statutes, 1955; Cocnran v. German Ins. Bank, 9 Ky. Law Rep., 196; Kentucky Statutes, 4223; Bohon’s Assne. v. Brown, 101 Ky., 354; Sondheim v. Gilbert, 10 Am. St. Rep., 26; Minor v. Kelley, 5 Mon., 274; Green v: Southworth, 2 Ky. Law Rep., 233; German Natl. Bank v. Louisville, Butchers, &c. Co., 16 Ky. Law Rep., 883; Purcell v. Dittman, 84 Ky., 149; Stein-hack v. Diepenbrock, 70 Am. St. Rep., 424; Garth’s Gdn. v. Taylor, &c., 24 Ky. Law Rep., 1963; Kentucky Statutes, secs. 2022, 2015; Isaacs v. Taylor, 3 Dana, 601; Linder v. Sewall, 5 Ky. Law Rep., 304; Benningfield v. Reed, 8 B. Mon., 104, 102; Shackelford v. Miller, 9 Dana, 277, 276; Harvey v. Doe, 7 Ind., 133; Dequidr© v. Williams, 31 Ind., 446, 456; Collins v. Ellison, 13 Ohio St., 446; Lawler v. White, 27 Tex., 253, 254; Swearinger v. Gerlick, 67 111., 209; McGuire v. Justices, 7 B. Mon., 342; Graham v. Blount, 12 B. Mon., 244; Dorsey v. Kendall, 8 Bush, 299; 1 Smith’s L. Cas. part 2, 1021-1026; 2 Am. L. Cas., 638; Sanford v. Sanford, 28 Conn., 1199, 15 and 16; Broadhead v. McConnell, 3 Barb, 184; Voorhees v. Bank, U. S., 10 Pet., 473; Mclnboy v. Speed, 4 Bibb., 86; Hahn v. Kelly, 34 Cal., 391; Dunbar v. Hallowell, 34 111., 169; Granger v. Clark, 22 Main, 130; Trimble v. Longworth, 13 Ohio St., 438; Hatcher v. Rochela, 18 N. Y„ 95; Tellman v. Ely, 6 Wis., 259; Pilslbury v. Gugan, 9 Ohio, 118; Prince v. Grifffin, 16 Iowa, 554; Cooley’s Con. Lim. 1st. Ed., 306; 2nd. Am. L. Cas., 5th Ed., 605; Coit v. Haven, 20 Conn., 1908; Moore.v. Starks, 1 Ohio-St., 369; Cook v. Darling, 18 Pick.,,293; McCahill v. Equitable Life Ass, Society, 26 N. J., 536, 537; Thompson v. Tolmie, 2 Pet., 157; Homer v. Doe, 1 Ind., 131; Reynolds v. Stanberry, 20 Ohio, 350; Baker v. Chaplin, 12 Ohio, 206.</p>

<p>CASE 65. — ACTION BY F. J. POLIVICK AGAINST W. M. HUSBANDS TO RECOVER LAND. —</p> <p>Appeal from McCracken Circuit Court.</p> <p>Judgment for plaintiffs, defendant appeals —</p>

<p>CASE 66. — SEPARATE CONDEMNATION PROCEEDINGS TO SECURE RIGHT OP WAY BY THE KIRK-CHRISTY COMPANY, AGAINST THE AMERICAN ASSOCIATION, INCORPORATED, AND THE LOUISVILLE PROPERTY CO.</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>From a judgment dismissing the proceedings plaintiff appeals —</p> <p>1. We submit that the 'act of the Kentucky Legislature of 1904, c. 126,. p. 311, authorizing the condemnation of lands for the purpose of hauling timber from other lands over them to market, is a valid exercise of the legislative power, demanded by necessity in the interest of justice, and dictated by public policy and the best interest of the State.</p> <p>2. The people of Kentucky have an interest in the development of every portion of the State, in inviting capital of individuals as well as corporations, both foreign and resident,' to invest in its resources, but it is not to the interest of the people of the State that corporations such as appellee, inspired by greed, shall be permitted to confiscate the property of another even though that other be a foreign corporation.</p> <p>3. We submit that the act of 1904, when construed under section 457 of the Ky.' Statutes, authorizes any corporation foreign or domestic to’ condemn land for a passway or haulroad, that is needful to reach a market for timber. (Robinson v. Swope, 12 Bush, 21; Thompson on Corporations, vol. 4, sec. 5596.)</p> <p>POINTS AND CITATIONS.</p> <p>Construction and validity of the act of 1904 amending section 4348 of 'Ky. Statutes and providing for condemnation of “private passways” and “private tramways and haulroads;” and the sufficiency of the pleadings herein.</p> <p>1. Said act does not apply to foreign corporations. Even if it does so apply, the appellant has shown no right in itself to sue thereunder. (Ky. Constitution, 194, 199, 202, 211; Ky. Stats., 570, 571, 842a (Interurban Electric Railroads; 843 (Bridge Companies); 4689a (Telegraph Companies); chapters: 49 (Ferries); 87 (Mills); 110 , (Roads & Passways); 129 (Turnpike & Gravel Roads); Warden v. Madisonville -H. & E. Co., 101 S. W. 914, 13 A. & E„ 2nd. Ed., pp. 837, 839, 858; 10 A. & E., 2nd. End., p. 1054; 15 Cyc. of L. & P., p. 573; Life Ass’n of America v. Rundle,’ 103 U. S., 222; Bank of Augusta v.- Earle, 13 Peters, 585; Postal Telegraph Cable Co. v. M. & O. R. R. Co., 21 Ky. Law Rep., 1188; Gates v. Commonwealth, 105 S. W. 432, In re Est. of Prime, 18 L. R. A., 713; Spratt v. Helena Power, &c., Co. 8 L. R. A., New Series*, 567; Cooley’s Constitutional Limitations, 5th Ed., p. 656;. Black’s Constitutional Law, pp. 354, 355; Evansville & H. Traction Co. v. Henderson Bridge Co., 72 C. C. A., 539; L. & N. R. R. Co. v. Brantley’s Admr., 96 Ky., 297).</p> <p>2. Said act is void because it conflicts with article 13 of the constitution of Kentucky, and with the fourteenth amendment to the constitution of the United States and with section 10 of article 1 thereof. (Const, of Ky., 1799, art. 10, sec. 12; Const, of Ky. 1850, art. 13, sec. 14; Const, of Ky. 1891, secs. 13, 242; Const, of United States, art. l,'.sec. 10 and Fourteenth Amend.; Ky. Stats, on Ferries, Mills, &c., as above cited; Robinson v. Swope, 12 Bush, 21; Scuffletown Fence Co. v. McAllister, 12 Bush, 312; Hancock Stock, &c. Co. v. Adams, 87 Ky., 417; Pierce’s Heirs v. Patton, 7 B. Mon., 162; Tracy v. Elizabethtown, &c. R. R. Co., 80 Ky., 259; Shake v. Frazier, 94 Ky., 143; Black’s Const. Law, pp. 355, 356; Cooley’s Const. Lim. pp. 666, 657; Minn. Oanal & P. Co. v. Kooch Co., 5 L. R. A. N. £>. 642; Brown v. Gerald, 70 L. R. A., 472; Miocene Ditch Co. v. Lyng, 70 C. C. A., 485; Mo. Pac. R. R. Co. v. Nebraska, 164 U. S., 416, and cases cited theein.)</p>

<p>1. Statutes) — Construction—Meaning of Words. — In reaching a proper construction of a statute, words, unless a technical meaning.is to be given them, must be understood in their ordinary signification.</p> <p>2. Same — Statutes Imposing Taxes — Construction.—Tax laws will not be enlarged by intendment, and no property will be held. ' as embraced within the terms of a tax statute by implication.</p> <p>3. Municipal Corporations — Street Improvements — Assessments— Property Liable. — Ky. St. 1903, sections 3664, 3566, 3567, 3571, 3572, providing that the original construction of any street, etc., may be at the exclusive cost of the owners of “the lots and parts of lots o.r lands” abutting on the street improved, etc., when corrected by substituting the word “of” for the word “or” in the quoted clause, and when considered in connection with the history of the legislation as shown in section 3564, providing that the construction of any street may be made at the cost of owners of lots in each fourth of a square apportioned according to the number of square feet, and as amended by Acts March 24, 1894, p. 350, c. 114, section 5), constituting section 3572, does not -authorize a municipality to assess for a street improvement a street car franchise to operate a line of road in the center of the street improved.</p>

<p>CASE 67. — PROSECUTION AGAINST DEMBTRI NIOUM FOR MALICIOUS SHOOTING AND WOUNDING —</p> <p>Appeal from Mason Circuit Court.</p> <p>J. P. ITarbeson, Circuit Judge.</p> <p>Defeudaut convicted and appeals —</p> <p>(No briefs — Record not in office.)</p>

<p>CASE 68. — PROCEEDINGS BY L. COMINGOR, ASSIGNEE OF SIMONSON, WHITESON &. CO., FOR A SETTLEMENT OF THE ESTATE IN WHICH THE LOUISVILLE TRUST CO; FILED A CROSS-PETITION.—</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>From the judgment both parties appeal —</p> <p>We shall argue earnestly and confidently.</p> <p>1. That the proceeding at every stép is vitiated by errors of law, principal among which are:</p> <p>(a) The trustee in bankruptcy has no authority to maintain this action.</p> <p>(b) The assignee settled his accounts before the referee in bankruptcy who alone had jurisdiction to require the.same after adjudication in bankruptcy and all the functions of this old case were thereby exhausted.</p> <p>(c) The action was improperly .tried in a defunct equity suit instead of in an original proceeding at ■ law.</p> <p>(d) If, as contended by appellees, after the bankruptcy proceedings, this .case was still alive for the settlement of any item of Comingor’s accounts, not disposed of by the Referee in Bankruptcy, then nevertheless, the judgment fails because uo claimant has filed herein ia demand verified as required by law. (Kentucky Statutes, 90).</p> <p>e) Petition against Comingor should have been dismissed because of the acts in which he was found remiss by the court were done in good faith on the advice of counsel.</p> <p>2. The judgment is not supported by the evidence and is in fact contrary thereto.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A superseded money judgment upon which an order of supersedeas has been issued bears damages. (Civil Code, 757; O’Conner & McCulloch v. Henderson Bridge Co., 95 Ky., 633.)</p> <p>2. Wade v. First National Bank, 11 Bush, 698, has no application and is distinguished. '</p> <p>3. The appellant is entitled to a judgment against the assignee on account of his fraudulent acts for the loss occasioned the creditors to the extent of $48,000 with interest from July 5, 1900, instead of $24,398.90.</p>

CASE 69. — CONDEMNATION PROCEEDINGS BY THE CALOR OIL & GAS CO. AGAINST NICHOLAS FRANZELL, THE KENTUCKY HEATING CO., AND OTHERS.— Appeal from Meade Circuit .Court. Weed S. Chele, Circuit Judge. From a judgment for Franzell and wife, all parties appeal — Our contention in this case is: 1. That the Calor Oil & Gas Company is not a corporation, defacto or dejure. 2.

<p>CASE 70. — ACTION BY GEORGE M. CLINGER’S ADMX., AGAINST THE CHESAPEAKE & OHIO RY. CO. OP KY. AND OTHERS. —</p> <p>Appeal from Mason Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>From an order transferring the case to the Federal Court plaintiff appeals —</p> <p>POINTS AND AUTHORITIES.</p> <p>Removal of case to federal court was error. (Chesapeake & Ohio Railway Co. v. Dixson, 179 U. S., 131; Alabama Great Southern Railway Co. v. H. C. Thompson, 200 U. S., 206; Cin. N. O. & Tex. Pacific R. Co. v. Bohon, 200 U. S., 221; Rutherford v, Ilbnois Central R. Co., et al., 85 S. W., 199; 111. Central R. R. Co- v. Sheegog’s Admr., 103 S. W., 323; McCabe Admx. v. M. & B. S. R. R. Co., 23 Ky. Law Rep., 2328, 112 Ky.)</p> <p>AUTHORITIES CITED.</p> <p>McCabe’s Admx. v. Maysville & Big Sandy R. Co., 112 Ky., 861; Kentucky Statutes, Section 573;, 769; Sinkhorn v. Lexington Turnpike Co., 112 Ky., 205; Illinois Central' R. Go. v. Sheegog’s Admr., 103 S. W., 327; Lee v. Southern Pacific R. Co., 116 Cal. 97, 38 L. R. A., 71, 58 Am. St. Rep., 140; McCabe’s Admx. v. Maysville & Big Sandy R. Co., 23 Ky. Law Rep., 2328; Davis’ Admr. v. C. & O. Ry. Co., 116 Ky., 144; Illinois Central R. Co. v. Coley, 28 Ky. Law Rep., 336; McAlister, Admx., &c. v. C. & O. Ry. Co., U. S. Circuit Court of Appeals, Sixth Circuit, decided Dec. 3, 1907; Dishon v. C. N. O. & T. P.' Ry. Co.; 133 Fed., 471; Kentucky v. Powers, 201 U. S., 1).</p>

<p>CASE 71. — PROSECUTION AGAINST THE CHESAPEAKE & OHIO RAILWAY CO. FOR CREATING A NUISANCE BY PERMITTING ITS TRAINS TO BLOCK A PUBLIC STREET. —</p> <p>Appeal from Clark Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Prom a judgment dismissing the indictment on demurrer the Commonwealth appeals- —</p>

<p>CASE 72. — ACTION BY W. A. BEAN’S EXECUTOR AGAINST THE NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY CO. —</p> <p>Appeal from Marshall Circuit Court.</p> <p>W. M. Need, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p>

<p>CASE 73. — PROSECUTION AGAINST JOHN OCHSNER FOB ROBBERY. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>"W. MeD. Shaw, Circuit Judge.</p> <p>Defendant convicted and appeals —</p>

CASE 74. — CONDEMNATION PROCEEDINGS BY THE CINCINNATI, COVINGTON & ERLANGER RY. CO., AGAINST SARAH O. DEVON. — Appeal .from Kenton Circuit Court. W: McD. Shaw, Circuit Judge. Prom the judgment of the circuit court defendant appeals — POINTS RELIED ON. 1.

<p>1. Attorney and Client — Disbarment—Grounds—Forgery!—Ky. St. 1903, section 97, providing that no person convicted of treason or felony shall be permitted to practice as attorney, is simply declaratory of the right already existing in the courts to disbar an "attorney who does not possess a character for honesty, probity, and good demeanor, and the court has power, independent of the statute, to disbar an attorney who has been guilty of forgery, on the ground that the commission of the offense shows that he is lacking in those qualities which are necessary for him to possess in order to continue as an attorney.</p> <p>2. Same — Evidence — Sufficiency. — Where an attorney pleaded guilty to the offense of forgery, no other evidence was necessary to show his unfitness as an attorney, and he might be disbarred.</p> <p>■3. Pardon — Effect—Disbarment of Attorney. — A pardon of one convicted of forgery does not prevent his disbarment as an attorney for the offense.</p>

<p>CASE 76. — CLAIM BY THE COMMONWEALTH AGAINST THE LOUISVILLE PROPERTY CO. AND ANOTHER..—</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals —</p> <p>(No brief in the record for appellant.)</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The trial court properly held that the attorneys who brought this suit, and used the name of the Commonwealth as plaintiff therein, were without authority so to do. Therefore, the judgment of the trial court awarding rules against said attorneys to show by what authority .of attorney they were prosecuting said suit; adjudging their responses to said rules insufficient; making said rules absolute, and dismissing the.petition, was correct and should be affirmed by this Court. (Const, sec. 192; Ch. 44 Ky. Stats., Sec. 567 Ky. Stat.; Comth. v. Wisconsin Chair Co., 27 Ky. Law Rep., 170; Comth. v. Farmers Bank, lb., 153; Comth. ex rel Louisville School Board v. I. C. R. Co., 30 Ky. Law Rep., 673; Jones v. MsMaster, 20 Howard (U. S.), 8; Louisville School Board v. King, 107 S. W„ 247.)-</p> <p>2. The forfeiture prescribed by the Constitution (sec. 192) can not be enforced because there has been no legislation provided as yet for the enforcement of such forfeiture. Even if there had been, and even though this action could otherwise have been maintained, it can not be maintained for the reason that the petition shows on its face that the property sought to be escheated was -being held for the very purpose for which the Louisville Property Company was created, and, therefore, was not held contrary to section 192 Constitution. No cause of action whatever is stated in the petition against the Louisville & Nashville Railroad Company, 3. Under the circumstances, the trial court properly adjudged the costs of this suit, on dismissal of the petition, against the attorneys who brought the suit without authority to do so.</p>

<p>1. Insurance — Assignment of Policy — Duress in Procuring Assignment — Evidence.—In an action by a wife on an insurance policy on the life of her husband in which she was'the beneficiary, the defense being payment to an assignee of the policy, evidence examined and held not to fairly sustain plaintiff’s contention that her signature to the assignment was the result of duress.</p> <p>2. Same — Consent of Beneficiary to Assignment hy Insured.— Where a wife joined her husband in the assignment of an insurance policy upon his life in which she was the beneficiary, even if her signature to the assignment was the result of duress consisting in the conduct and threats of her husband, such duress would not affect the validity of the assignment in the absence of proof sufficient to connect the assignee with it or show knowledge of it.</p> <p>3. Contracts — Validity of Assent — Duress. — Duress to avoid a contract must he the .act of the other party himself or hia agent, or must be imposed with his knowledge and taken advantage of by him to obtain the agreement, so that duress hy a third person will not avoid a contract made with a party who was not cognizant of it.</p> <p>4. Judgment — Foreign Judgments — Gonclusiveness of Adjudica■tion. — Plaintiff joined her husband in assigning to an Ohio corporation an insurance policy upon his life and in which she was the beneficiary. After his death, the assignee, having possession of the policy, sued on it in Ohio. Rev St. Ohio 1908, section 5045, relating to service on non-residents by publication in actions relating to real or personal property within the State, provides “that, when service may be made by publication, personal service of a copy of the summons and petition may be made out of the State upon such defendant.” The insurance company brought plaintiff into the Ohio action by cross-petition, and, though properly served twice at her home in this State with summons and copies of the pleadings, she failed to appear in such action. In due time the Ohio court entered judgment -against the insurance company and for the assignee. After she had been served with process from the Ohio court, plaintiff in this State sued on the policv. Held, that the situs of the property being in Ohio and within the jurisdiction of the Ohio court, the judgment of such court was a final determination between plaintiff, the assignee, and the insurance company as to the disposition of the proceeds of the policy.</p> <p>5. Same — Judgments in Rem. — While it is unquestionably the law that -a judgment in personam against a nonresident defendant not served with process in the jurisdiction of the court is void, it is equally true that a judgment in rem against a monresident defendant, though only before the court on constructive service, is not only good against him, but as against all other persons claiming interest in or title to the property proceeded against having notice of the proceedings.</p> <p>6. Same — Operation and Effect. — A debt due -a nonresident from a person in this State may be attached and recovered by the creditor of such nonresident by bringing the latter before the court by constructive service only, and a judgment rendered in such cases is a complete bar to an action subsequently brought by the nonresident against the debtor in whose hands the money was garnished; the doctrine being that the proceedings so far as the thing attached is concerned is an action in- rem.</p> <p>7. Same — Foreign Judgment in Rem — Operation -in Other State.— To entitle a judgment in a proceeding in rem, authorized by a statute of the State in which such proceeding is Instituted, but in which the defendant was not personally served with process, and did not appear, to full faith and''credit in another state, the res must have been attached or seized, or at least have been within the jurisdiction of the court rendering the judgment.</p>

<p>CASE 78. — PROSECUTION AGAINST MORGAN, OATES & CO., FOR SELLING SEWING MACHINES WITHOUT A LICENSE. —</p> <p>Appeal from. Hopkins Circuit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Defendants convicted and appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>An agent is a personal representative of another person, firm or company in business. To support our contention in this matter, we submit the following authorities on the subject of agent and agencies:</p> <p>1. Agent. — One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it. 1 Liverm. Prin. & Ag. 67; 2 Bouv. Inst., 3.)</p> <p>An agent is one who represents another called the “principal,” in dealings with third persons. Such representation is called agency. (Civil Code Dak., 1337; Black’s Law Dictionary, p. 52.)</p> <p>2. Agency. — The contract of agency may be defined to be a contract by ■ which one of the contracting parties confides the management of some affair, to be transacted on his account, to the other party, who undertakes to do the business and render ian account of it. (1 Liverm. Prin. & Ag. 2.)</p> <p>A contract by which one person, with greater or less discretionary power- undertakes to represent another in certain business relations.</p> <p>3. Agent. — One who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter, and to render an account of it. (1 Livermore, Ag., 67; 2 Bouvier, Inst., 3; Bouvier’s Law Dictionary, vol. 1, p. 100.)</p> <p>4. Agency. — A relation between two or more persons, by which one party, usually called the agent or attorney, is authorized to do certain acts for, or in relation to the rights or property of, the other, who is denominated the principal, constituent, or emBouvier’s Law Dictionary, vol. 1, pp. 99, 100.)</p> <p>The business of the agency may concern either the property of the principal, of a third person, of the principal and a third person, or of the principal and the agent, but must not relate solely to the business of the agent. (1 Livermore, Ag. 6, 14. Bousiev’s Law Dictionary, vol. 1, pp. 99, 100.)</p> <p>5. Agency, how constituted. — Agency is founded upon a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it. (Kent’s Commentaries, vol. 2, p. 880.)</p> <p>We earnestly insist, in view of the facts in this case and authorities' above stated, that there is no element of agent or agency in this action.</p> <p>POINTS AND AUTHORITIES.</p> <p>All the authorities on agency clearly show that this was an agency for selling sewing machines.</p> <p>1. “Agency. — The contract of agency may be defined to be a contract by which, one of the contracting parties confides the management of some affair, to be transacted on his account, to the other party, who undertakes to do the business and render an account of it. (1 Liverm. Prin. & Ag.', 2.) A contract by which one person, with greater or less discretionary power, undertakes to represent another in certain business relations.”</p> <p>2. Agency, how constituted. — Agency is founded upon a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it.</p> <p>AUTHORITIES CITED.</p> <p>Acts of 1906, sec. 12, p. 186, subdiv. 4, p. 202'; 1 Liverm. Prin. & Ag. 2; Kent’s Commentaries, vol. 2, p. 880.</p>

<p>CASE 79. — PROSECUTION AGAINST BILL, HOUSMAN • FOR MALICIOUS CUTTING AND WOUNDING. —</p> <p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Defendant convicted and appeals —</p> <p>AUTHORITIES CITED.</p> <p>Gills v. Commonwealth, 18 Ky. Law Rep., 562; Buckner v. Commonwealth, 14 Bush, 603; Connor v. Commonwealth, 13 Bush, 722; O’Neal v. Commonwealth, 27 Ky. Law Rep., 549; Commonwealth v. Hoskins, 18 Ky. Law Rep., 61; Johnson v. Commonwealth, 94 Ky., 578; Carnes v. Commonwealth, 28 Ky. Law Rep., 1208; Century Dictionary and Cyclopedia, vol. 1, pp. 244, 369; Wilcoxen v. Commonwealth, 15 Ky. Law Rep., 262; Robertson v. Commonwealth, 10 Ky. Law Rep., 915; Radford v. Commonwealth, 9 Ky. Law Rep., 378; Crawford v. Commonwealth, 15 Ky. Law Rep., 356; Morris v. Commonwealth, 20 Ky. Law Rep., 402; Boner v. Comlth., 19 Ky. Law Rep., 409.</p> <p>(No brief.)</p>

<p>1. Master and Servant — Duty to Employ Competent Servants— Acts Done Outside Scope of Employment. — While a master owes the duty to a servant to exercise ordinary care in selecting competent fellow servants for him, he is not liable where an apprentice in a machine shop, intending to play a prank, took a compressed air hose not committed to his use, but which is a harmless implement when properly employed, and turned it upon a fellow servant, causing his death, though the-apprentice had been retained in the employ with knowledge that he was in the habit of turning the hose on other boys as a prank.</p> <p>2. Same — Duty to Guard Dangerous Agency. — A compressed air hose used in a machine shop to blow away filings or cuttings is not a dangerous agency which must be guarded by a master to prevent its being used by unfit employes.</p>

<p>1. Husband and Wife — Disabilities and Privileges of Coverture— Statutory Provisions. — The statute was not designed to prevent a married woman from borrowing money or to deny her the right to discharge her husband’s debts or to do with her money as she pleases, and a lender’s rights are not prejudiced by the wife’s disposition of the money borrowed upon her note, provided the transaction is npt a subterfuge to evade the statute, or a scheme to procure the obligation of the wife as surety for her husband or another.</p> <p>2. Same. — A married woman under the statute may make contracts, sell and dispose of her personal property, sue and be sued as a single woman, and is liable for her debts and in all respects stands in the same position as if she were a single woman, except that under Ky. St. 1903, section 2127, no part of her estate may be subjected to the satisfaction of any contract made after marriage to answer for the debt of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance.</p> <p>•3. Same. — By Ky. St. 1903, section 2127, which provides that no part of a married woman’s estate may be subjected to the satisfaction of any contract to answer for the debt of another even her husband, it was intended to preserve the estate of married women, from being wasted or impaired by the assumption of debts created for the use and benefit of other persons and from which they might derive mo benefit, and the courts will not allow the statute to be defeated by any misleading transaction, but will look beneath the surface to ascertain the real purposes of the parties.</p> <p>4. Same. — Ky. St. 1903, section 2127, provides that no part of a married woman’s estate shall be subjected to the satisfaction of any contract made after marriage to answer for the deed of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. A wife executed a note to a bank to take up notes executed by her husband and held by the bank. She received no part of the proceeds of his notes or her note. No part of her estate was set aside as provided in section 2127 to secure the payment of her husband’s indebtedness to the bank. The bank knew of the marriage relation, and that her note was to be used to take up and discharge the husband’s indebtedness. Certain stock which he had pledged to secure his notes was also pledged as collateral to the wife’s note. When she executed her note, such stock was worth more than the amount of it, and her husband was solvent, but soon thereafter the stock greatly decreased in value, and he became insolvent. Held, that the wife was not liable on the note, since by its execution she assumed the debt of her husband, within the meaning of the statute, the same as though she had signed her name as surety to a writing, promising to pay the debt.</p>