Volume 129 — Kentucky Reports

<p>CASE 1 — ACTION BY VIRGTE O’BRIEN AGAINST FLORENCE SCOTT FOR ALIENATING THE AFFECTIONS OF HER HUSBAND. — May 12.</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is a valid defense to a suit by a wife for the alienation of her husband’s affections, that said husband voluntarily sought and endeavored to seduce defendant, without any direct intervention or effort on defendant’s part. (15 Amer. and Eng. Enc. of Law, 865; 21 Cyc., 1621, 1st Enc. of Evidence, Ed. 1902, 760; 3rd Elliott on Evidence, 1643; Waldron v. Waldron, 45 Fed. Rep., 315; Ash v. Prunier, 105 Fed. Rep., 723; Also the New York cases found in notes to the above citations' and on page 8 of brief.</p> <p>2. Evidence to show that the plaintiff’s husband, voluntarily sought and endeavored to seduce defendant, without any direct intervention or effort upon her part, may be introduced under a general traverse, without being pleaded as new matter. Civil Code Prac., 95; Newman’s New Pleading and Practice, 424b, 543.)</p> <p>3. The amended answer offered should have been permitted to be filed.</p> <p>4. Evidence of the words; conduct, and demeanor of the plaintiff’s husband, with and toward defendant, prior to the' time of the abandonment complained of, is competent, though in the absence of the plaintiff. (Bailey v. Bailey, 63 N. W. Rep., 341; Price v. Price, 29 L. R. A., 150, 153; First Greenleaf on Evidence, 16th Ed., sec. 162d, p. 259; Brander on Evidence, p. 13, sec. B., also pages 325 and 326; 2nd Ed. on Evidence, sec. 347, p. 771; also section 350, p. 777; Rudd v. Rounds, 64 Vermont, 432.)</p> <p>5. Evidence of the defendant’s financial circumstances was competent as bearing upon the inducement or incitement to the plaintiff’s husband in his endeavors to seduce the defendant. (Ash v. Prunier, 105 Fed. Rep., 724; Price v. Price, 29 L. R. A., 153).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. That the statements of John O’Brien, the husband of appellee, not made in the presence of both parties, were incompetent as evidence in the trial of this case, in behalf of appellant. (Klien v. Klien, 31 Ky. Law Rep., 28; Leavell v. Leavell, et ah, (Mo.)' 99 N. W., 460; Westlake v. Westlake, 34 Ohio, 634, 32 Am. Rep., 397; Winsmore v. Greenbank, Willes 577; Manswarren v. Mason, 79 Hun, (N. Y. 572; Rice v. Rice, 104 Mich., 62 N. W., 833; Wigmore on Evidence,-; Higham v. Venosdol, 101 Ind., 160; Price v. Price, 29 L. R. A., 153; Ash v. Prunier, 105 Fed. Rep., 723; Civil Code, 606; Commonwealth v. Sapp, 90 Ky., 580). The court did not abuse its discretion in refusing .to allow appellant to file an amended answer setting up a new defense after she had begun the introduction of her evidence. (Nolin v. Pearson, 191 Mass., 283; Am. & Eng. Ann. Cases, 6, 661; Plant v. Woods, 176 Mass., 492, 57 N. E., 1011; Civil Code, 164; Newman on Pleading & Practice, 704-705; Greer v. City of Covington, 83 Ky., 410; Yocum v. Foreman, 14 Bush, 494; Donnelly v. Pepper, 91 Ky., 363.)</p> <p>3. Evidence of appellant’s financial condition and circumstances was incompetent. Givens v. Berkley, 21 Ky. Law Rep., 1653; Overruling L. C. & L. R. R. Co. v. Mahoney’s Admr’x, 7 Bush, etc.)</p> <p>4. Evidence showing that the appellee’s husband was the seducer and not the .seduced, is incompetent in actions of this character. (Nolin v. Peason, supra; Nichols v. Nichols, (Mo.) 48 S. W., 947.)</p> <p>5. The judgment for five thousand and five hundred dollars is not excessive. (Klien v. Klien, 31 Ky. Law Rep., 28; Hartpence v. Rogers, 143 Mo. 623, 45S. W. -; Nichols v. Nichols, supra; Lockwood v. Lockwood, 67 Minn., 476, 70 N. W., 784.)</p> <p>SUMMARY AND AUTHORITIES.</p> <p>1.4A plea that plaintiff’s husband was the aggressor and caused the acts in question did not present a good defense. (Hart v. Knapp, (Conn.) 100 Am. St. Rep., 989.)</p> <p>2. These facts being in confession and avoidance could not be proved under a general traverse. (Newman’s Pleading & Prac., (New Edition) 424b, 424c, 424f, and 4241; Klien v. Klien, 101 S. W., 383, (X Hobson.) '</p> <p>3. The court did not abuse its discretion in refusing an amendment pleading such facts.</p> <p>4. Evidence of words, conduct, and demeanor of plaintiff’s husband not in her presence is incompetent. (Klien v. Klien (supra.) 5. Evidence of financial condition of. defendant is incompetent in this action. (Givens v. Barkley, (Ky.) 56 S. W., 158; Beavers v. Bowen, (Ky.) 70 S. W., 195.)</p>

<p>CASE 2. — ACTION BY T. E. RUSSELL, AGAINST THE NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY CO., FOR KILLING STOCK. — May 12.</p> <p>Appeal from Marshall Circuit Court.</p> <p>W. M. Need, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals' —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It was error in the court to permit the appellee to challenge and dismiss from the jury two of the members thereof after the jury had been sworn, and to place two other men on the jury in their places.</p> <p>2. A peremptory instruction should have been given. (L. H. & St. L. Ry. v. Beauchamp, 21 Ky. Law Rep., 1476; Kentucky Statutes, 1793.)</p> <p>LEGAL QUESTIONS PRESENTED AND AUTHORITIES CITED.</p> <p>1. The cattle guard required by section 1793 Kentucky Statutes, is such an appliance as will prevent animals from passing over same. Where the statute fails to prescribe how such cattle guards shall be constructed, a compliance with the statutory provisions is by constructing and maintaining such a device as meets the requirements of the common law — an appliance that will effectually prevent stock from crossing over same. (Kentucky Statutes, 1793; Thompson on Negligence, 2d Ed., v. 2; Sec. 2079, 2082, p. 720; L. H. & St. L. Ry. v. Beauchamp, 21 Ky. Law Rep., 1476; Illinois Central R. R. Co. v. Stanley, 96 S. W. Reporter, 846.)</p> <p>2. Peremptory instructions should never be given to find for defendant, except in cases where the evidence of plaintiff taken as true, and every inference that is or may be fairly dedueible from it, shows that plaintiff has- no right to recover. (Shay v. R. & L. T. P. Co., 1 Bush, 108; Burford v. L. & N. R. R. Co., 82 Ky., 286; Baumeister & Bro., &c. v. Markam, 19 Ky. Law Rep., 311; U. S. of Shakers v. Underwood, 11 Bush, 277; L. & N. R. R. Co. v. Howard, 82 Ky., 215.)</p> <p>DISCHARGE OP JURORS.</p> <p>3. An immaterial irregularity in the-proceedings which do not prevent a fair and impartial trial is not such error as will Authorize a reversal of the case.</p>

<p>CASE 3. — ACTION BY MARY C. WRIGHT, A MARRIED WOMAN, AND. OTHERS AGAINST THE DAVIESS COUNTY BANK & TRUST COMPANY TO HAVE COLLATERAL NOTES, PLEDGED AS SECURITY, ADJUDGED RELEASED. — May 12.</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. P. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>SYNOPSIS AND LIST OP AUTHORITIES.</p> <p>1. Positions assumed as settled.</p> <p>(ab) The pledge of collaterals as security by the appellee, Mrs. Wright, a married woman, was valid although she was not personally bound. (Ky. St., 2127; Wirgman v. Miller, 9S Ky., 620; N. Y. Life Ins. Co. v. Miller, 22 Ky. Law Rep., 230.)</p> <p>(b)The property pledged stands in the relation of a surety. (Colebrook Collateral Securities, 2 Ed. 426.)</p> <p>2. Was there an agreement to extend the time of payment?</p> <p>(a) The essentials of such an agreement. (Brandt on Surety-ship, 3 Ed., sec. 376.)</p> <p>(b) The receipt of interest in advance not ipso facto an extension of time. (Stearns on Suretyship, 118; 7 Cyc., 890; Brandt on Suretyship, 3 Ed. sec. 386; Preston v. Henning, &c., 6 Bush, 556.)</p> <p>(c) The minds of the parties must meet in a contract to extend the time, or else there is no extension and- no release of a surety. (Weaver v. Prebster, (Ind.) 77 N. E., 673.)</p> <p>(d) The evidence examined in support of the proposition that it fails to establish a contract of extension.</p> <p>3. The administrator had no power to bind the estate by an agreement for extension.</p> <p>(a) The petition fails to show any such power and indeed fails to allege that Maleom Thompson’s estate was bound by such an agreement.</p> <p>(b) Administrators have no power to bind the estate of their decedents by contracts. (Page on Contracts, vol. 2, sec. 992; 18 Cyc., 881; Moody v. Ewing, 8 B. Mon., 521; Heasley v. Dunn, 5 B. Mon., 145; Proctor v. Terrill, 47 Ky. (8 B. Mon.) 451; Ellis’ Administrator v. Merrim-an, 5 B. Mon., 296; Pullins’ Admr. v. Smith, 106 Ky. 418; 50 S. W. 833; 20 Ky. Law Rep., 1903 (Citing Ky. St. sec. 3882 and Bitteler v. Bittelers’ Admr., 13 Ky. Law-Rep., 368); Rice, &c. v. Strange, 72 S. W., 756.)</p> <p>(c) If any agreement for extension was made, it did not bind Malcom Thompson’s estate, hut only the administrator personally.</p> <p>4. Irrespective of the power of the administrator generally to bind the estate of his decedent, no such power exists in, this case, because the administrator had invoked the jurisdiction of the chancellor for the settlement of the estate, and therefore could not bind the estate in the absence of authority from the court.</p> <p>(a)West v. Brison, (Mo.) 13 S. W. 95, distinguished; Jackson v. Michie, 33 La. Ann. 723, referred to as in line with above position.</p> <p>5. Where, as in this case, there is legal impossibility of injury to the surety from an extension, the surety is not released.</p> <p>(a) Plaintiff’s bill shows that she could not have been injured, and therefore shows a want of equity. The principles on which sureties are released are “not a mere shadow without substance.” (6 How. 283, (12 L. Ed. 437.)</p> <p>(b) Cessante Ratione, cessat ipsa lex; 2 Dan. Neg. Inst. sec. 1313; Ibid, sec. 1319; Revel v. Thrash (N. C.), 44 S. E., 596.)</p> <p>6. Plaintiff entitled to recover against appellees, Hawes and Thompson.</p> <p>(a) A third party for whose benefit a contract is made with another may sue directly upon it. (Blakely, &c. v. Adams, 68 S. W., 393; Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky., 340; Dodge’s Admr. v. Moss, &c., 82 Ky., 440; Munday v. JVfunday, &c., 21 L. R. 693.)</p> <p>(b) Appellees not released by an extension. (1st), because they do not plead or rely on the extension; (2nd), because by their obligation they became principals to Mrs. Wright. (Brandt on Suretyship, 3 Ed., sec.. 1); (3rd), because the appellant did not know of their suretyship (27 Am. Eng. Encyc., 2 Ed, 505.)</p> <p>(c) On the plea of no consideration, there is ground for the contention (not insisted upon) that the writing is binding although executed subsequently to the original note and without additional consideration. (6 Am. Eng. Law. 2 Ed., 694; 16 Ibid, 173.)</p> <p>(d) On the plea of no consideration the burden of proof Is on the defendants (appellees.) (Brown v. Ready, 14 Ky. Law Rep., 583.)</p> <p>(e) The evidence of appellees, Hawes and Thompson, incompetent. (Civil Code of Prae., sec. 606, subsec. 2.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellant, bank, is estopped from escaping the consequences of its act of receiving the interest and making said extension of time, by saying the administrator had no power to make such contract.</p> <p>2. Nor can appellant bank, escape the disastrous result of said reception of interest and extension of time by saying that Mrs. Wright was in no wise injured by such extension, because such is not the law, and again because her rights were impaired by such extension. (Levy v. Roth, &c., 103 S. W., 293.)</p> <p>3. Mrs. Wright was released as surety by said bank receiving the interest on said note and extending the time of payment thereon, and there was a contract expressed or implied by which said bank did extend the time of payment of said note. (Robinson, &c. v. Miller, 2 Bush, 179; Preston v.' Henning '& Speed, 6 Bush, 566.)</p> <p>4. There was a sufficient consideration to uphold the writing executed by Thompson and Hawes to indemnify Mrs. Wright by reason of her suretyship and pledge of collateral notes; and the writing itself stated the consideration which is not impeached in this record.</p> <p>5. The continuing existing liability of Mrs. Wright as surety, together with her collateral notes was a sufficient consideration of itself for the execution of the indemnifying contract by Hawes and Thompson, _ even though it .was executed subsequent to the execution of the original note. (Williams v. Sillman, (Texas) 32 S. W., 534; Vol. 9 Cyc., p. 362; Vol. 12, 2nd Ed., A. & E. of X^aw, p. 173.)</p> <p>6. On the face of the pleadings the burden of proof of no consideration was on appellees, Thomspon and Hawes. (Brown v. Ready, 14 Ky. Law Rep., 583.)</p> <p>7. There is no competent evidence in the record to sustain the plea of no consideration on the part of Thompson and Hawes, and the lower court should have sustained exceptions and their entire depositions. (Civ. Code Prac., 606; Northrip’s Admr. v. Williams, &c., 30 Ky. Law Rep., 1279; Black v. McCarley’s Ex’r, 104 S. W., 987.)</p> <p>SUMMARY.</p> <p>1. If Mrs. Wright is released by reason of the extension of the time of payment, then Thompson and Hawes are, for that reason, released.</p> <p>2. Although Mrs. Wright may not be released, Thompson and Hawes are nevertheless not bound, because there was never any consideration for their undertaking.</p> <p>3. The want of consideration is admitted by Mrs. Wright and by her attorney, and is proven by the testimony of Thompson and Hawes, who were competent witnesses.</p> <p>4. The burden of proof to show consideration, was upon Mrs. Wright and the bank.</p> <p>We respectfully submit that Thompson and Hawes are not bound and ask this court to so adjudge.</p> <p>ADDITIONAL AUTHORITIES RELIED ON.</p> <p>1. No consideration. (Am. & Eng. Ency. of Law, vol. 6, 691, 692 and notes; Mason & Co. v. Collins, 9 Ky. Law Reporter, 578.)</p> <p>2. Burden of proof. (Bullitt v. Raison, 1 A. K. Mar. 331 side page; Mason & Co. v. Collins, 9 Ky. Law Reporter, 578; Am. & Eng. Ency. of Law, vol. 14, 1135; L. & N. R. R. Co. v. Literary Society, 13 Ky. Law Rep., 5; Howard v. Corneilson, 5 Ky. Law Reporter, 905; Noe v. Keene, 5 Ky. Law Reporter, 928.)</p>

<p>1. Schools and School Districts — Suspension of Pupil — Reinstatement. — A pupil having been suspended from school for “the remainder of the present term,” which expired April 29th, had no right to sue July 28th to require the trustees to allow him to reenter school, on the theory that he had been expelled, where an inspection of the trustees’ journal, which was open to their inspection under the express terms of Ky. St. 1903, section 4473, would have shown suspension only.</p> <p>2. Same — Pleading—Evidence Not Supported by Pleadings — Admissibility. — In an action to require school trustees to allow a pupil to enter school on the theory that he had been expelled, he could not show that a resolution of the trustees purporting to merely suspend him did not correctly state their decision, or that it was not entered in the journal as adopted, where neither the petition nor reply attacked the resolution on either ground, nor alleged fraud or mistake in its form or language.</p> <p>3. Same — “Disobedience” — “Insubordination” — Suspension — Grounds. — Ky. St. 1903, section 4367, requires common school pupils to comply with legal regulations for their government, and makes wilful disobedience or defiance of teachers’ authority, etc., ground for suspension. Section 4473 authorizes school trustees to adopt such legal regulations as they may deem necessary. The trustees of a common school gave the principal general supervision over the pupils, and provided for annual commencement exercises. Plaintiff, a pupil, was familiar with the rules of the -school. He was suspended for the remainder of a term, three weeks, for refusing to take a part in a dialogue in annual commencement exercises, as directed by the principal. Held that, though he could ask to be excused from taking the part assigned and to give his reasons for his request, if the principal' regarded his reason insufficient, it was plaintiff’s duty to «bey, and his refusal to do so constituted' disobedience, and his continued disobedience and refusal of offers permitting his return on taking another part constituted insubordination, and was- good cause for the suspension.</p> <p>4. Same — -Trustees’ Action — Conelusiveness.—The action of the trustees of a common school in approving the suspension of a pupil for disobedience is conclusive, and not subject to judicial -interference, unless they acted arbitrarily or maliciously.</p>

<p>1. Counties — County Treasurer — Claims—Allowance—Payment.— Since under Ky. St. 1903, section 931, providing that the county treasurer shall receive all moneys due to the county, and shall hold the same subject to the order of the fiscal court, etc., the treasurer is a ministerial officer only, and as the custodian of the funds of the county must pay them out under the orders of the fiscal court, a treasurer paying in good faith county money on orders of the fiscal court is not liable to the county on the grounds that the orders were void, and that the fiscal court was without authority to direct the payments, and if the county has paid out money through its treasurer to persons not entitled to it the remedy is against such persons.</p> <p>2. Same — Warrant—Sufficiency.—A warrant issued by the clerk of the fiscal court, reciting, “It is ordered by the court that” ■a person named “be and he is hereby allowed” a specified sum, “payable out of levy 1905, for courthouse commr.,” and signed by the clerk, is sufficient authority for the county treasurer to pay the sum to the person named; it not being the duty of the clerk to copy the whole of the order of the fiscal court.</p> <p>3. Same. — Ky. St. 1903, section 4311, requires the overseers of roads to work the roads in the manner directed by the fiscal court. The fiscal court set apart a sum of money for road work, and placed it in the hands of the treasurer as the road and bridge fund. The clerk of the fiscal court was required to issue vouchers against the fund on the written certificate of the various overseers of the county as work was done. The method was followed except in few instances, where persons ¡signing the certificate or order failed to add to his signature the word “overseer.” Held that, as it would be presumed that the fiscal court would perform its duty to the qounty, the treasurer of the county paying orders of the clerk was protected, and was not responsible for such payments.</p> <p>4. Same — Settlement with County Treasurer — Effect.—Under Ky. St. 1903, section 933, providing that all settlements made by the county treasurer shall be approved by the fiscal court in open court, and the settlement shall by order of the court be recorded, etc., the settlement made by the county treasurer and approved by the fiscal court is prima facie correct, and the county and the treasurer succeeding in office have the burden of showing mistakes therein.</p> <p>5. Same — Payment of Claims — Irregular Orders — Effect. — The county treasurer, paying in good faith just claims against the county, will not be required to repay the sums to the county because the orders on which the payments were made were irregular.</p>

<p>CASE 6. — ACTION BY A. R. BARGHOLT AGAINST THE MERCHANTS ICE & COLD STORAGE COMPANY AND ANOTHER FOR AN INJURY BY FALLING OVER A BLOCK OF ICE PLACED BY DEFENDANTS ON THE SIDE WALK — May 14.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 7. — ACTION BY CLARA BLOCKER AGAINST THE CITY OF OWENSBORO AND OTHERS TO RECOVER DAMAGES FOR PERSONAL INJURIES. — May 14.</p> <p>Appeal from'Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals —</p> <p>POINTS CONTENDED FOR BY APPELLANT.</p> <p>1. Mandamus is the appropriate remedy to enforce payment of a judgment against a municipal corporation where remedy, by execution, is not avoidable. (19 A. & E. Ency. of Law, 800, (2d Ed.)</p> <p>2. A remedy against a third person will hot have the effect of defeating the right to mandamus against a municipality. (19 A & E. Ency, of Law, 746 (2d Ed.); Williams v. Clayton, 6 Utah, 860; American Bridge Company v. Wheeler, 35 Wash., 40.)</p> <p>3. WhPre the judgment is against a municipality and an individual jointly, the fact that the individual has property subject to execution, or is primarily liable to the municipality, is- no bar to a mandamus to enforce the judgment against the municipality.</p> <p>4. Both defendants are primarily liable (o the plaintiff, and equally and severally bound to pay the judgment, and the judgment may be enforced against either, or both, at plaintiff’s option, nor can the plaintiff's rights be abridged in order to prevent a circuity of actions. (19 A. & E. Eney. of Law, 802, (2nd Ed).: Palmer v. Staoev, 44 Iowa, 340.)</p> <p>5. Under the pleadings in this case, the municipality is shown to be primarily liable for the injury, for which a joint judgment was rendered against it and another.</p> <p>6. The record of the proceedings in the action in which the judgment was rendered, pleaded by appellee, fails to show that the other defendant was primarily liable, as between himself and appellee, for the injury.</p> <p>7. The plea that appellant and the other defendant (J. J. Blocher) were jointly and primarily liable for the injury, is not sustained by the record.</p> <p>8. The defense to the effect that appellant paid, instead of purchasing, the judgment, and that her purchase was not made in good faith, is not sustained, because every allegation of fact is denied, and there was no evidence heard upon the trial.</p> <p>9. The appellant's motion to eliminate from the taxation of appellee’s cost the sum of $59.10, paid by it for copy of transcript of record in the court of appeals, which it filed with its answer, as an exhibit, should have been sustained.</p> <p>10. Appellee having withdrawn the demurrer, which it had filed to the petition, and then having filed an answer, is liable for all costs resulting subsequent to the filing of the demurrer, if it shall be held the petition failed to state a cause of action. (Civil Code, section 93; Combs v. Pridmore, 19 Ky. Law Rep., 1936; Mast, Crowell & Kirkpatrick v. Lehman, 100 Ky., 464.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There is no issue of fact presented by the record as to the conduct of defendant Blocher relied upon as negligence. His action as pleaded in the petition and established by the evidence has uniformly been held to be negligence by this court. (Dillon, Municipal Corporations, 1032; Note: Baumeister v. Markham, 101 Ky., 122; Covington S. M. & M. Co. v. Drexilius, 27 Ky. Law Rep., 905.)</p> <p>2. It is no defense for Blocher that the situation of the dangerous obstruction which he confessedly left unguarded in the street was charged by the wrongful act of some third party. Nor is it defensive as to him that he claims plaintiff was pushed uopn this dangerous obstruction by some other person. (Pugh v. C. & O. R. R. Co., 101 Ky., 77; Louisville Home Tele. Co. v. Gasper. 93 S. W., 1057, 29 Ky. Law Rep., 580; Whitman McNamara Tob Co. v. Wurm, 66 S. W., 609.)</p> <p>3. The fact that plaintiff knew in a general way of the conditions about the place where she was injured does not preclude her right to recovery; it is to be considered by the jury only in determining the question of contributory negligence. (West Ky. Tele. Co. v. Pharis, 78 S. W., 917; City of Carlisle v. Screst, 25 Ky. Law Rep., 336.)</p> <p>4. Liability of defendant city is established:</p> <p>(a) By actual knowledge through its - policeman and agent of the dangerous condition of the street resulting in plaintiff’s injury.</p> <p>(b) By its actual knowledge that its co-defendant was obstructing the street shown by its having issued a permit to him to do so, and being thereby chargeable with the duty, as to plaintiff, of seeking that he did not leave unguarded dangers upon the street.</p> <p>(c) The long continued obstruction of the street at that point— shown to be a much used street near the heart of the city — charges the city as matter of law with constructive knowledge of the existence of the danger. (District of Columbia v. Woodbury, 131 TJ. S., 450, Book 34, L. E. p. 472; City of Carlisle v. Screst, 25 Ky. Law Rep., 336; City of Louisville, v. Keher, 79 S. W., 270, 25 Ky. Law Rep., 2003; Sherman & Redfield on Negligence, 367.)</p>

<p>1- Carriers — Control — Offenses- — Failure to Furnish Separate Coaches — Ky. St. 1903, section 801. as amended by Act March 15, 1894, provides that, the provisions of section 795, requiring ail railroads to furnish separate coaches for white and colored passengers, shall not apply to the transportation of passengers in a- caboose car attached to a freight train. Ky. St. 1903, section 772a, provides that all railway corporations owning or operating a road exceeding five miles in length shall run at .least one passenger train each way daily, provided it may run a mixed train carrying both freight and passengers. The only train run by defendant on a certain branch, and the only ear in which passengers could ride, was a caboose car, and defendant sold tickets to both white and colored passengers for use on such caboose car, there being no separate compartments therein, or no sign on the car indicating which compartment was intended for white or colored passengers. The prosecution contended that, since defendant was hound to run at least one passenger train daily, the caboose car in which passengers were hauled must be considered a passenger train so as to require defendant to. ■maintain separate compartments therein. Held, that the train was simply a freight train with a caboose attached, even though it carried passengers, and defendant did not operate any other passenger train or the road, and hence the case-was within the exception contained in section 801, and defendant was not liable for failure to maintain separate compartments in such train.</p> <p>2. Same- — Indictment—Issues.—In a prosecution by defendant for failure to maintain separate compartments in its passenger train for white and colored passengers as required by Ky. St. 1903, section 795, it may not be considered whether defendant has been guilty of a violation of section 772a, requiring all railroads to run one passenger train each way daily on the road, and even though the agreed facts show that defendant had not complied with that section, the proper manner of proceeding would be by indictment under that section, and the question may not be considered in this prosecution.</p>

<p>CASE 9. — ACTION BY J. J. SMITH AND OTHERS, AGAINST D. G. SIMMONS AND OTHERS, TRUSTEES, TO ENJOIN THE COLLECTION OF A SCHOOL TAX.— May 14.</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment of dismissal. Plaintiffs appeal. —</p>

<p>CASE 10. — ACTION BY J. P. MILLER AGAINST THE SOUTHERN RAILWAY IN KENTUCKY, FOR DAMAGES IN DELAYING THE TRAIN AND NOT PROVIDING A COMFORTABLE CAR IN WHICH TO CARRY HIM)— May 19.</p> <p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court erred in rejecting certain evidence. (Hutchinson on Carriers, U04; 6 Cyc. p. 587; 5 Am. & Eng. Ency. cf Law, 585; Gordon v. Manchester, &e. Ry Co., 52 N. H., 596, 13 Am. Rep., 97; Cooley v. Penn. R. R. Co., 81 N. Y. Supp., 692; Gerardy v. L. & N. R. R., 102 N. Y. Supp., 548.)</p> <p>2. Erroneous instruction. (Lou. Ry. Co. v. Hoskins Adrar., 28 Ky. Law Rep., 124, 88 S. W., 1087; Lou. Ry. Co. v. Hartman’s Admr., 26 Ky. Law Rep. 1174, 83 S. W., 570; Drake v. Holbrook, 92 S. W., 2°7; South Covington & Cincinnati Street Ry. Co. v. Nelson, 28 Ky. Law Rep., 287; Paducah Traction Co. v. Burradell, 31 Ky. Law Rep:, 1052.)</p> <p>3. Verdict is excessive.</p> <p>We submit that the unlighted and unheated passenger coach in which the plaintiff was compelled to ride, and which was kept in that condition during an entire, cold March night, is evidence sufficient to show the company’s utter indifference to the traveling public, and for this indifference and breach of duty which resulted in such serious injury to the plaintiff the verdict is none too large.</p>

<p>CASE 11. — ACTION BY THE GRAY & DUDLEY HARDWARE COMPANY ' AGAINST THE AMERICAN-GERMAN NATIONAL BANK OP PADUCAH AND OTHERS, TO RECOVER A LOT OP MERCHNDISE. — May 22.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant bank appeals. — ■</p> <p>FLOURNEY & REED and W. D. GREEN of counsel.</p> <p>ARGUMENT.</p> <p>The appellant, American-German National Bank, contends that there are three valid and sound reasons why the judgment of the lower court should not be permitted to stánd:</p> <p>First. Because on the merits of the case there was absolutely no evidence to sustain a verdict for the appellée against any of the defendants except E. Rehkopf Saddlery Company or even against.it in this proceeding.</p> <p>Second. There was a fatal variance between appellees pleadings and proof.</p> <p>Third. The court erred in rendering judgment against the appellee, American-German National Bank, because there was no proof of detention or possession by it at the time of the institution of the action, but on the contrary defendant, Starke-Ullman Saddlery Company, admitted detention and possession by it at said time.</p> <p>CITATIONS.</p> <p>Union Trust Company v. Bulkeley, 150 Fed. Rep., 510; Union Trust Company v. Wilson, 158 U. S., 154; Gibson v. Moore, 7 B. Mon., 92; Mansel's Admr. v. Israel, 3 Bibb., 510; Civil Code of Prac. of Ky., 90; Baldwin & Co. v. DeWitt, 19 Ky. Law Rep., 1250; Berlin Moil. Works v. Ala. City Furniture Co., 112 Ala., 488, 20 So., 418; Bowling v. Fanning, 97 Ala., 619, 12 So., 59; Graham v. Myers, 74 Ala., 432; Gilbreath v. Jones, 66 Ala., 129; Henderson v. Felts, 58 Ala., 590; Walker- v. Fenner, 20 Ala., 192; Davis v. Herndon, 32 Miss., 484; Haughton v. Newberry, 69 N. C., 456; Foscue v. Eubank, 32 N. C., 424; Charles v. Elliott, 20 N. C., 606; American & Eng. Encyc. of Law, 1st Ed., vol. 5, p. 653; Pool v. Atkisson, 1 Dana, 110; Bush, et al. v. White, 3 T. B. Monroe, 100.</p>

<p>CASE 12. — ACTION BY MRS. A. O. ELLIOTT, AGAINST THE ILLINOIS CENTRAL RAILWAY COMPANY, FOR DAMAGES TO HER PROPERTY BY THE CONSTRUCTION' AND OPERATION OF ITS RAILROAD. —May 21.</p> <p>Appeal from Ballard Circuit Court.</p> <p>E. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where the occlusion of a street is in a block distant from the block in which the plaintiff’s property is located, and there are cross streets between such property and the point of occlusion affording ingress and egress to plaintiff’s property no right of action exists for the occlusion of the street. (Gargan v. L., N. A. & C. R. R. Co., 89 Ky., 212; Bailey v. Culver, 12 Mo. App., 175; Smith v. Boston, 7 Cush., 255; Davis v. County Commissioners, 150 Mass., 218, 55 A. & E. R; R. Cas., 52.)</p> <p>2. For doing an act authorized by law no action lies except by statute, which statute in such case operates a qualification of the legal right. (Fisher v. Seaboard, etc. Ry. Co., 46 S. E. Rep., 281, 38 A. & E. R. R. Cas. (n. s.), 683; L & N. Terminal Co. v.'Lellyett, 85 S. W. Rep., 81, 38 A. & E. R. R. Cas. (n. s.) 498; Note 38 A. & E. R. R. Cas. 498, 526, 527, 529, 544; Traction Co. v. Chicago, 99 TJ. S., 635; B. & P. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 11 A. & E. R. R. Cas., 28.)</p> <p>3. Where land is taken, or an easement like a street obstructed, there is a statutory right in the State Constitution. (J. M. & I. v. Esterle, 13 Bush, 674; R. R. Co. v. Appelgate, 8 Dana, 289; Cosby v. R. R. Co., 10 Bush, 288, etc.)</p> <p>4. There is no distinction between a railroad company and an individual, both having equal rights, and an individual is not liable, although his or its enterprise may be noisy, dusty or smoky. (Louisville Coffin Co. v. Warren, 78 Ky., 48; Railroads v. Kleymeier, 105 Ky.,' 609; Willis v. K. & I. Bridge, 104 Ky., 186, and L. & N. v. Walton, 24 Ky. Law Rep., 9, 67 S. W„ 988 distinguished and criticised.)</p> <p>5. The road complained of was not new, but simply a case of changed location from one side of' appellee’s residence to the other, the Old road being about 230 and the new about 180 • feet from her residence, and there was, therefore, no additional annoyance or inconvenience actual, real or capable of being described and appreciated, so she had no right of recovery. (C. & O. v. Gross, 19 Ky. Law Rep., 1926, 43 S. W., 203; L. & N. Terminal v. Lellyett, 85 S. W. Rep., 81, 38 A. & E. R.- R. Cas. (n. s.) 498.)</p> <p>6. The criterion of damages embodied in the instruction, viz., the difference in value before and after construction of the road, was erroneous; the real criterion is “the diminution of the value of the property occasioned by these circumstances, and not the difference between the value of the property before and after the building of the road.” (E. L. & B. S. R. R. Co. v. Combs, 10 Bush, 383, syllabus 6; J.'M. & I. R. R. Co. v. Esterle, 13 Bush, 667; L. & N. v. Geikel, 9 Ky. Law Rep., 813; M. & B. S. R. Co. v. Urban, 10 Ky. Law Rep., 1061; Ibid v- Lynch, 14 Ky. Law Rep., 671: C. & O. R’y Co. v. Smith, 21 Ky. Law Rep., 175, 51 S. W. Rep., 12; Paducah v. Allen, 111 Ky., 361.)</p> <p>7. No cause of action exists for noise. (C. & O. v. Gross, 43 S. W. 203, supra; Henderson, etc. v. DeChamp, 95 Ky., 219, 224.)</p> <p>8. Upon supposed injuries so intangible as those shown by the evidence no action lies, and a peremptory instruction was required. (C. & O. v. Gross, supra.)</p> <p>The injury as shown by the proof in this case being of such nature as there was no intention on the part of appellant to at any time abandon the nuisance, the criterion of damages was properly submitted in the instructions, and we submit that the appellants should not be heard to complain at the verdict, when in fact the proof warranted a much larger verdict.</p> <p>AUTHORITIES CITED.</p> <p>L. & N. Railroad Company v. Carter, 77 S. W. Rep., 719; Same case, 76 S. W. Rep., 364; L. R. A. Book 22, p. 666; L. R. A. Book 24, p. 396; L. R. A. Book 27, p. 551; L. R. A. Book 29, p. 88; . R. A. Book 40, p. 370; L. R. A. Book 22, p. 627; L. R. A. Book 37, p. 856; L. R. A. Book 1, p. 493.</p>

<p>1. Deeds — Estate Conveyed. — A conveyance to L. and her bodily heirs after her death, parties of the second part, created an estate tail at common law, which was converted by Ky. St. 1903, section 2343, into a fee in L., under section 2342, declaring that, unless a different purpose appears by express words or necessary inference, every estate in land created shall be deemed a fee simple or such other estate as the grantor or testator was entitled to dispose of.</p> <p>2. “Pairty” — "Parties.”—The words “party” or “parties” are commonly employed interchangeably in deeds, regardless of whether their antecedents are singular or plural.</p>

<p>1: Trusts — Parol Trusts — Essentials.—In order to fasten a trust by mere parol declaration, the subject of the trust as well as the cestui que trust must be definitely ascertained.</p> <p>2. Same — Proceedings to Establish ■ — ■ Pleading — Sufficiency.—In an action to enforce a parol trust, the petition alleged that during the life of petitioner’s mother petitioner’s father sold two slaves belonging to the mother for $500, investing the proceeds in land for the mother’s benefit, but taking title thereto in himself; that during the mother’s lifetime the father recognized the claim of the wife for $500, and after her death, • up to the time of his death, he recognized the claim as belonging to the petitioner, claiming to hold the same in trust for her. Held, that the petition was insufficient to show a complete trust, but at most showed an intention at some future time on the part of the father to set apart $500 for the benefit of petitioner.</p>

<p>1. Damages — Personal Injuries — Pleading—Evidence Admissible. —Where plaintiff alleged that she received certain specified internal injuries, and sustained a shock to her nervous system, from a collision, but did not allege injury to her eyes, evidence as to the condition of her eyes after the injury was admissible, as bearing upon the question of the internal injuries received and the shock to the nervous system, which of necessity must he manifested by outward symptoms.</p> <p>2. Same. — Such evidence should be excluded from consideration of the jury in fixing damages, as the injury to the eyes was not sued for.</p> <p>3. Pleading — Matters to be Pleaded- — Evidence.—Plaintiff by his • pleading in an action for personal injuries should apprise the defendant of the injury for which 'recovery is sought, but the evidence by which the injury is to be established need not be indicated by the pleading.</p> <p>4. Evidence — Relevancy—Facts Not in Issue. — A fact, though not in issue, is relevant when it is or probably may have been the cause of a fact in issue or the effect of it.</p> <p>5. Same — Materialty. — Evidence which conduces, though but slightly, to prove a fact in issue or to repel a presumption which might otherwise arise favorable to the opposite party, is admissible, and in cases of doubt the evidence should not be excluded.</p> <p>6. Appeal and Error- — Presumptions—Conduct of Trial — Refusal of Continuance. — Where an affidavit for continuance in an action for personal injuries on the ground of surprise occasioned by the introduction of evidence as to plaintiff’s condition was not incorporated in the transcript on appeal, it would be presumed that the trial court ruled correctly in refusing the continuance, especially where plaintiff’s condition was at the time of the introduction of the evidence discoverable by a physician, -and the trial court offered to allow a further examination of plaintiff by physicians to ascertain the truth.</p>

<p>1. Trial — Statement to Jury — Duty to Make — Discretion.—Under -Civ. Code Prac. section 317, requiring a trial to “proceed in 'the following order, unless the court, for special reasons, 'direct otherwise, (1) plaintiff must briefly state his claim and the evidence which he expects to sustain it,” it was not an abuse of discretion to refuse to require plaintiff to make a statement to the jury of the facts he expected to prove.</p> <p>2. Evidence — Res Gestae — Railroad Accident. — In an action against a railway company for death of a brakeman thrown from the top of a freight car by a sudden stopping of a train, plaintiff could show that, upon being informed of the accident immediately after it occurred, the engineer said: “That is the way whenever I get mad. I either hurt or kill somebody.”</p> <p>3. Trial — Witnesses—Credibility—Province of Jury. — The credibility of witnesses is for the jury.</p> <p>4. Removal of Causes — Motion to Remove — Time for Making.— Under the act of Congress requiring a motion to remove a cause to be made when or before defendant is required to answer a motion to remove an action against a railway company and its employe made at the close of plaintiff’s evidence, and after a verdict had been directed for the employe, was properly denied as being made too late.</p> <p>5. Master and Servant — Railroads—Death of Brakeman — Question for Jury. — In an action against a railway company for death of a brakeman thrown from the top of a freight car by a sudden. stopping of a train, held proper, under the evidence, to refuse to direct a verdict for the company.</p> <p>6.- Pleading — Prayer — Amendment. — Where a petition averred $20,000 damages to plaintiff, but, apparently through a clerical error, failed to ask relief, concluding with the words, “for all proper and general relief,” where no objection had been ' made to the petition because it did not ask relief, and the reply contained a sufficient prayer, plaintiff was properly allowed to file an amended petition asking judgment for $20,000 on defendant first calling attention to the defect under a motion for a directed verdict at the close of the evidence.</p> <p>7. Removal of Causes — Motion to Remove — Effect of Amendment of Petition. — A motion to remove a cause made at the close of the evidence and after plaintiff was allowed to file an amended petition asking judgment for the amount of damages alleged in the petition which the petition apparently through clerical error omitted to ask, was properly overruled, .as the amendment did not change the cause of action nor .affect defendant’s appearance.</p> <p>8. Death — Negligent Death — Degree of Negligence. — Under Ky. St. 1903, section 6, giving a cause of action for a death caused by another’s “negligence,” gross negligence need not be shown.</p> <p>9. Trial — Instructions—Province of Court and Jury. — Instructions on an action for negligent death are erroneous where they submit both the law and the facts for the jury’s determination.</p> <p>10. Master and Servant — Brakeman Thrown from Car — Negligence. — If a locomotive engineer negligently gave a ear on which a brakeman was standing an unusual and unnecessary jerk, so violent as to show want of ordinary care fdr the brakeman’s safety, resulting in the brakeman’s being thrown from the car and killed, and if the brakeman was performing his duty and using ordinary care for his safety, the company is liable; but, if the engineer stopped the train in a usual manner in obedience to a signal from the head brakeman, or if decedent believed the engine had been uncoupled from the cars, and the accident was due to such misunderstanding and not to the engineer’s negligence, or if the brakeman was not on the car in the'performance of his duty, the company is not liable.</p> <p>11. Negligence — "Ordinary Care” Defined. — Ordinary care is such care as one of ordinary prudence usually exercises under given circumstances.</p> <p>12. Same. — Negligence is the want of ordinary care.</p> <p>13. Master and Servant — Railroads—Assumption of Risk. — When decedent became a railway brakeman, he assumed all the risks of the employment as usually conducted, including the negligence of his fellow brakeman and jerks of cars resulting from the taking up of the slack in the movement of cars made with ordinary care by the engineer.</p>

<p>1. Trial — Reception of Evidence — Necessity of Making Objections. —Where incompetent evidence is introduced without objection, such evidence may properly be considered by the jury, although the court would have been bound, to exclude it had objection been made.</p> <p>2. Telegraphs and Telephones — Delay in Delivery of Message— Actions — Presumptions.—Though, in an action for delay in delivering a telegram that the mother of the addressee was dead and telling him to come at once, there was no direct statement in evidence that the person to whom it was sent would have taken the first train after receiving the message, the reasonable presumption would be that he would take the first train after receiving the telegram if it had been delivered in time, especially in view of the fact that he did take the first train after the delivery yas made.</p> <p>S. Same — Proximate Cause of Injury.- — Negligence of a telegraph company in failing to deliver within a reasonable time a telegram .informing the addressee of his mother’s death, whereby he missed two trains by which he might have gotten to his dead mother in time for the funeral, was the proximate cause of his failure to arrive in time therefor, though after the telegram was finally delivered he did get a train which ordinarily would have brought him in time for the funeral, but which by reason of a slip in the earth ahead of the train was delayed in its progress, so that he was unable to get there, where the slip in' the earth occurred after the two trains which he could otherwise have taken had passed.</p>

<p>1. Carriers — Carriage of Goods — Nature of Liability as Common Carrier. — The common carrier of inanimate freight is an insurer of its safe delivery, except where the loss results from the act of God or the public enemy, or from the inherent infirmity of the goods.</p> <p>2. Same — Carriage of Live Stock — Loss—Liability in General.— Where plaintiff’s horses were destroyed by a conflagration while in charge of a common carrier, the loss was in no wise connected with or the result of any infirmity in the animals themselves, so as to raise the question of the negligence, or care of the carrier, but was one falling under the common law rule, which makes the carrier an insurer of the safe delivery of goods committed to it for transportation.</p>

<p>1. Attachments — Liabilities on Bonds — Forthcoming Bond — Discharge of Surety — Remedies Against Co-Surety — LEstoppel by Execution of Supersedeas Bond. — Plaintiff and defendant were sureties on a forthcoming bond. Plaintiff subsequently became a surety on a supersedeas bond given on an appeal by the principals in the same action, and after the appeal was dismissed by the court, in proceedings against the sureties on the forthcoming bond, plaintiff was required to pay the value of the property for which the bond was executed. Held, that he could not recover against defendant, since by the execution of the supersedeas bond the sureties on the forthcoming bond were released.</p> <p>2. Same — Solvency of Principals — Effect.—Whether the principles, in the forthcoming bond were solvent would be immaterial.</p> <p>3. Same — Co-Surety Advising Appeal as Attorney — Effect.—The fact that defendant as attorney for the principals on a forthcoming bond, advised an appeal, would not estop him from interposing the defense that the execution of the supersedeas bond released him from liability on the forthcoming bond,, where he did not request or urge the execution of the supersedeas bond in his relation as surety on the forthcoming bond.</p> <p>4. Same — Effect of Co-Suretyship on Forthcoming Bond. — The fact that plaintiff was a co-surety of defendant on a forthcoming bon'd did not affect the liabilities of either thereon, where plaintiff subsequently signed a supersedeas bond in the same action, and in proceedings on the forthcoming bond was required to pay the value of the property for which it was given.</p>

<p>1. Intoxicating Liquors — Liquor Dealer’s Bond — Right to Exact— Power of County Court. — Under Ky. St. 1903, section 4224, authorizing county courts alone to grant merchants licenses to retail liquors, and prescribing the procedure for procuring such licenses, the county court has little discretion whether a license shall be granted to an applicant of good character, who keeps an orderly house, has complied with the statutory requirements as to posting notices of his application, and against the granting of a license to whom the majority of the voters of the neighborhood have not protested, and the county court is not authorized to exact a bond for the faithful observance by the applicant of the law with respect to the conduct of his business, in the absence of a statutory provision authorizing the taking of such bond.</p> <p>2. Same. — Statutory Provisions — Application.—A statute requiring the taking «of bonds from tavern keepers, conditioned upon the faithful observance by them of the law respecting the conduct of their business, does not apply to merchant dealers in liquors.</p> <p>3. Same — Common-Law Bonds. — A bond required by the county court of a merchant liquor dealer, which bond the county court had no authority to take, was not a voluntary bond so as to make it good as a common-law bond upon which an action could be maintained for its breach.</p>

<p>1. Elections — Irregularities ■— Effect — Contests—Statutory Provisions. — While, as a general rule, irregularities, the result of which on -an election can be shown with reasonable certainty to have been not prejudicial, may be disregarded, and the result of legal votes cast in the manner authorized by law be allowed to stand, yet under the express provisions of Ky. St. 1903, section 1596a, subsec. 12, where it appears from the whole record that there has been such fraud, intimidation, bribery, or violence in the conduct of the election that neither contestant nor contestee can be adjudged to have been fairly elected, the circuit court, subject to revision by appeal, or the Court of Appeals finally, may adjudge that there has been no election.</p> <p>2. Same. — An election was void where the officers of election permitted about 20 per cent, of the voters to vote openly, instead of by secret ballot, as required by the Constitution and the statutes.</p> <p>3. Injunction — Public Officers — Exercise of Office — Election Contests. — In an election contest, it was error to grant a restraining order and temporary and permanent injunction enjoining contestee from discharging the duties of his office pending the hearing since the writ of injunction cannot be used in an election contest to prevent the holder of the certificate of election from qualifying and discharging the duties of the office pending the contest.</p> <p>4. Elections- — -Contests—Equity—jurisdiction.—In the absence of statutory authority, courts of equity have n-o jurisdiction over election contests.</p>

<p>1. Insurance — Mutual Benefit Insurance — Contract—Constitution as Part of Contract — Statutes.—Ky. St. 1903, section 679, providing that all policies or certificates! “hereafter issued” which contain any reference to the 'constitution of the corporation shall have attached to the policy or certificate the portion of the constitution referred to, or the same shall not he considered a part of the contract, has no application to a certificate issued prior to its adoption.</p> <p>2. Same — Change of Beneficiaries. — A certificate of a fraternal order recited that it was controlled by the laws of the order, which provided that the member had no property right in the fund named in the certificate; that the beneficiary named therein had no vested right therein until the death of the member; that the member might at any time change the beneficiary without his consent; and that the society should not be liable for the payment of the certificate unless the member named therein should comply with all the laws of the order, etc. A new certificate designated the member’s son as beneficiary. The certificate was given to the son under an ■agreement that he should thereafter pay dues and assessments thereon. The order knew the facts, and for several years accepted payments from the son. Held, that the member could thereafter change the beneficiary or withdraw his membership from the order.</p>

<p>1. Judgment — Entry on Order Book and Signing — Necessity For. —Under Civ. Code Prac. section 390, providing that a judgment must be entered on the order book, and Ky. St. 1903, section 378, providing that the proceedings of each day shall be drawn up by the clerk from his minutes and signed by the presiding judge, it is indispensable to the validity of a judgment that it shall be entered on the order book and signed.</p> <p>2. Judges — Special Judges — Powers of Successor or Regular Judge as to Proceedings Before Special Judge — Ky. St. 1903, section 977, providing that on the death of a circuit judge, or when from any cause the office is vacant or the judge absent, his successor may sign any orders left unsigned, applies to special as well as regular judges; and, where a special judge because of death or absence or retirement from the case shall fail to sign orders therein, they may be signed by the special judge who succeeds him, or hy the regular judge, unless disqualified from presiding.</p> <p>3. Judgment — Signing—Judgment Entered hy Special Judge. — It' is not indispensable to the validity of a judgment entered by a special judge, hut not signed hy him, that it be signed at its close by his successor in office or by the regular judge, where the orders of the day, among which it is entered, are signed by the regular judge, or the person acting in his place as judge.</p> <p>4. Judges — Disqualification.—Where the regular judge is disqualified to preside in the trial of a cause, he cannot sign the judgment or orders made by the special judge.</p> <p>5. Execution — Issuance of Unsigned Judgment. — An unsigned judgment is no judgment, and an execution cannot issue thereon.</p> <p>6. Same — Relief Against- — Injunction.—Execution defendants may enjoin the sheriff from seizing and selling their property under an execution where there is no judgment on which it can issue.</p>

<p>CASE 24. — ACTIONS. BY THE CITY OF HICKMAN, AND BY DR. S. K. DAVIDSON AND OTHERS AGAINST THE CUMBERLAND TELEPHONE AND TELEGRAPH CO., TO FORFEIT ITS FRANCHISE — June 10.</p> <p>Appeal from Fulton Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.-</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An ordinance creating a franchise by a city of the sixth class, passed on the night of its introduction is void. (Maraman v. Ohio V-alley Telp. Co., 25 , Ky. Law Rep., 784; East Tenn. Telp. Co. v. Anderson Co. Telp. Co., 22 Ky. Law Rep., 418.</p> <p>2. A franchise ordinance passed at a called meeting of the city council is inhibited by law. (Section 3636, Kentucky Statutes.)</p> <p>3. In the passage- of ordinances where- cities are legislating in matters pertaining to the state, as many passages must be given to such ordinance as is required by' the Constitution of bills passed by the Legislature. (Section 42 bf the Constitution.)</p> <p>4. Where a corporation is wrongfully exercising a franchise it is its duty to cease doing so and to obey the law. (Thomas v. Railroad- Company, 101 U. S., 71.</p> <p>5. A chancellor has no power to compel a' telephone company to -exercise a franchise by operating its plant with or without a franchise.</p> <p>6. The power of the court is limited to forfeiture of a fran-chis-e rightfully obtained or compelling the contracting parties to abide by their agreement.</p> <p>AUTHORITIES CITED.</p> <p>1. The remote vendor of the appellant never procured any franchise, privilege or right from the city of Hickman to construct therein a telephone system, because the ordinance granting the right and embodying the contract was not legally passed. (Kentucky Statutes, section 3666; Kentucky Statutes, section 3633; Constitution, section 164; 25 Ky. Law Rep., 784; 22 Ky. Law Rep., 418.)</p> <p>2. It is alleged that if the original grantee and acceptor of the franchise or privilege procured a valid one, he possessed no power in law to assign or transfer it. (Cyc., vol. 19, 1452; 13 Bush, 185; 6 Ky. Law Rep., 295; 130 Illinois, 42; 38 Michigan, 154; 17 Washington, 661; 10 Wallace (U. S.) 38; Thompson on Corporations, sections 5341, 5374 and 5375; Constitution, 201; Constitution, section 203; Kentucky Statutes, sections- 560 and 562; 21 Ky. Law Rep., 300; 31 Ky. Law Rep., 783; 100 Southwestern, 310; Thompson on Corporations, sections 257, 5352, 5362, 5369 and 8294; 84 Ky., 176; 95 U. S. Supreme Court Reports, 644; 127 Federal Reporter, 187.)</p> <p>3. It is claimed that there is a defect of parties plaintiff. (89 Kentucky, 340; 23 Ky. Law Rep., 2149; Civil Code, section 25; Thompson -on Corporations, sections 6679, 6680 and 7830; 19 Wendel, 56; 11 Illinois, 202; 48 Illinois, 233; 3 Indiana, 452; 7 Iowa, 186; 11 Louisiana, 141; Dillon -on- Municipal Corporations, section 695; High on Extraordinary Remedies, sections 431 and 432.)</p>

CASE 25. — PROSECUTION AGAINST CHARLES EWING POR MURDER. Appeal from Warren Circuit Court. John M. Galloway, Circuit Judge. Defendant convicted and appeals — 1. Appellant was tried upon the charge of willful murder in the Warren Circuit Court of Kentucky, at its February term, 1907. 2. The jury found appellant guilty as charged in the indictment and fixed his punishment at confinement in the penitentiary for life. 3.

<p>CASE 26. — PERSONAL INJURY ACTION BY WILLIS SWARTWOOD’S GUARDIAN AND OTHERS AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. AND OTHERS.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. MoD. Siiaw, Circuit Judge.</p> <p>From’ a dismissal on demurrer plaintiffs appeal—</p> <p>It is shown by the petition:</p> <p>First, that the defendant company maintained an unfenced strip of land, and deposited a pile of sand thereon.</p> <p>Second, that tracks lay upon Washington street immediately adjacent to the sand pile.</p> <p>Third, that appellees maintained and operated a tower-house on the lot overlooking where the boys were at play, with a watchman by day and by night in the tower-house.</p> <p>Fourth, that Tenth and Washington streets was a thickly populated part of the city of Covington, in the heart of the city, where hundreds of children daily congregated and played and ■“jumped” the trains that lay on the track or passed by.</p> <p>Fifth, that the watchman in the tower-house and the employees In charge of the train saw these boys “jumping” trains', and knew it for months before the date of the appellant’s injury.</p> <p>Sixth, that the sand-pile on the unfenced strip of land was seductive and alluring to children of the neighborhood, and the children of the neighborhood resorted there and were permitted by the defendants to there congregate and play; that it was generally, commonly, and daily the habit of the children to jump upon the train® as they passed by this strip of ground; that the watchman, and the servant® of the company saw the children doing this, and notwithstanding that fact failed to prevent the action on the part of the children.</p> <p>AUTHORITIES CITED.</p> <p>The proposition that there is no liability upon the part of appellees for the unfortunate accident which the appellant brought upon himself by reason of his own gross carelessness, seems to us to be so plain, that we will not impose upon the court the labor of reading a long brief from us in this case. We do not think the court will need any authority for the proposition. that the trial court could not ha.ve done otherwise than it did do in sustaining appellee’s demurrers to- the1 petition. Therefore, we have not quoted from most of the cases we have cited at all; and have quoted only very briefly from those from, which we have quoted. If the court has - any doubt that the cases we have quoted from and cited sustain the propositions on which we use them, of course the court will read those cases, most of which have been numerously reported.</p> <p>AUTHORITIES CITED.</p> <p>Setter’s- Admr. v. City of Maysville, 114 Ky., 68; 2 Shearman & Redfield on Negligence, section 26; Whatton, Law of Neg., section 134; N. N. & M. Y. R. R. Co, v. Deuser, 97 Ky., 92; L. & N. R. R. Co. v. Vittitoe’s Admr., 19 Ky. Law Rep., 612; L. & N. R. R. Co. v. Webb, by &c., 99 Ky., 348-9; L. & N. R. R. Co. v. Hurt, by &e., 11 Ky. Law Rep., 825; Jackson’s Admr. v. L. & N. R. R. Co., 20 R., 309; L. & N. R.’ Co. v. Logsdon’s. Admr., 118 Ky., 605; O’Bannion’s Admr. v. Southern Ry. Co. in Ky.; Wheeling & L E. R. Co. v.. Harvey; Swarts v. Akron Water Works Co., 83 N. W., 66. See also Frost v. Eastern R. Co., 64 N. H., 220; Danials v. N. Y. & N. E. R. R. Co. (Mass.) 13 L. R. A., 248; McAlpin v. Powell, 70 N. Y., 126; 26 Am. Rep., 555; St. L. V. & T. R. R. Cq v. Bell, 81 111., 76; McCabe v. American Woolen Co., 124 Fed., 283; 132 Fed., 1006; Slack v. Suddoth (Tenn.) '45 L. R. A., 591; Peters, v. Bowman, 115 Cal., 345; 56 Am. St. Rep., 106; 47 Pac., 113, 598; Stenidal v. Boyd, 73 Minn., 53; 42 L. R. A. 288; 72 Am. St. Rep., 854; 32 N. W., 223; Moran v. Pullman Car Co., 134 Mo., 641; 33 L. R. A., 291; 75 Am. St. Rep., 447; 53 S. W., 900; (Arnold, et ux., v. City of St. Louis, et al.); Ritz v. Wheeling (W. Ya.) 43 L.' R. A., 148; Gillespie v. McGowan, 100 Pa. St., 144; 45 Am. Rep., 356; Sullivan v. Huidekoper, 27 App. D. C., 154; 5 L. R. A. (N. S.) 265; Railroad Co. v. Beavers, 113 Ga., 393; 54 L. R. A., 314.</p>

<p>1. Homicide — Evidence—Sufficiency—Manslaughter.—In a prosecution for murder, evidence held sufficient to sustain a judgment of conviction of voluntary manslaughter.</p> <p>2 District and Prosecuting Attorneys — -Substitutes—Commonwealth’s Attorney Pro Tern. — Statutes.—-Ky. Stas. 1903, section 120, provides that, in the absence of the commonwealth’s attorney, the circuit judge may appoint a suitable attorney to act, but shall not appoint such attorney to act in his place, unless he and the county attorney are both absent, or of Kin to; or of counsel for, accused, except in felony cases. Section 127 provides that the county attorney shall attend to the prosecution of cases in his county in which the commonwealth or county is interested, and also attend the circuit courts held in the county, and aid the commonwealth’s attorney in all prosecutions, and, in the latter’s absence, shall attend to the commonwealth’s business- in said courts. In a homicide case the regular commonwealth’s attorney was disqualified to prosecute by reason of his employment by accused before his election to defend accused for the same crime. Held that, construing the two sections together, the circuit judge was, authorized, in the absence of both the commonwealth’s attorney and the county attorney, or when both are of kin t,o, or counsel for, accused, to appoint a commonwealth’s, attorney pro tern, to perform the duties of both, whether in felony or misdemeanor cases, but the judge should not, though the commonwealth’s attorney be absent or of kin to or counsel for accused, appoint a commonwealth’s attorney pro tern, when the county attorney is present and eligible to serve, except in, felony cases, in which event he may appoint a commonwealth’s, attorney pro tern, but need not do so; and hence the failure of the circuit court to appoint a commonwealth’s attorney to assist the commonwealth in accused’s trial was not error.</p> <p>3. Same — Assistants.—While neither the courts nor the commonwealth’s or county attorneys should turn over the prosecution or criminal cases to those who are under no responsibility to the state, employed counsel may assist m such cases, and such assistance may be accepted by official prosecutors.</p> <p>4. Same — County Attorney — Powers and Duties. — While the commonwealth’s attorney is.the representative of the state in all prosecutions for violations of its penal laws, the county attorney is not less so, and his responsibility under the law is the same, both being required to be honest, fearless, and impartial in the performance of official duty.</p> <p>5. Criminal Law — Appeal—Reversal—Grounds—Participation of Employed Counsel -in Trial. — A judgment of conviction should not be reversed upon the ground that employed counsel were permitted to make the opening statement or closing argument, if it appears that the trial was otherwise properly conducted, and, defendant’s guilt is- reasonably certain.</p> <p>6. Same — Harmless Error — Argument of Counsel — Retaliatory Statements. — In a homicide case, even though statements by the county attorney in argument as to the peaceable character of decedent were not strictly within the record, where they were made in reply to equally improper statements by defendant’s counsel, imputing a violent character to decedent, the court’s failure to exclude the statements was not prejudicial, error.</p> <p>7. Same — Trial—Statements of Counsel — Action of Court. — In a homicide case, where the court excluded statements of counsel in argument that certain witnesses testified before the coroner’s jury and would have been contradicted by members of that jury had their testimony differed on trial, and Instructed the jury not to consider it, such statements cannot be considéred prejudicial.</p> <p>8. Same — Reception of Evidence — Rebuttal.—In a homicide case, testimony as to the location, of the body of decedent immediately after the killing, location of blood spots, and that no arms were found on decedent, much of which might have been introduced in chief, but which differed in many respects from the other testimony in chief, was proper in rebuttal, where its admission in rebuttal was made necessary by the testimony of accused, which brought out new particulars as to these matters.</p>

<p>CASE 28. — ACTION BY HUGH DARLINGTON’S ADMINISTRA-TRIX AGAINST THE PITTSBURG. CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO. FOR CAUSING DEATH OF INTESTATE. — June 17.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>On the trial of this case against two defendants the jury returned the following verdict: “We, the jury, find a verdict for the plaintiff to the amount of $10,000 and fix the píame on the Pennsylvania R. R. Co.” We submit that on the face of the record, the verdict as returned did not warrant the entry of any judgment.</p> <p>Two defendants were sued in their respective corporate names, viz: The Louisville. & Nashville Railroad Company; The Pitts-burg, Cincinnati, Chicago & St. Louis Railway Co. Each defendant was charged with such negligence — joint, separate, and concurrent — as resulted in Darlington’s death. Manifestly but one of three verdicts could properly be rendered:</p> <p>First, a verdict for both defendants.</p> <p>Second, a verdict against both defendants, joint or several. •</p> <p>Third, a verdict against one defendant and for the other.</p> <p>POINTS AND AUTHORITIES.</p> <p>Statement — This action was against the Louisville & Nashville R. R. Co. and the Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co.; tlhe jury returned a verdict for plaintiff for $10,000, fixing the blame on the “Pennsylvania R. R. Co.;” judgment was entered against the Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co., “sometimes called the Pennsylvania Railroad Co.” The P., C., C. & St. L. Ry. Co. appeals questioning the sufficiency of the verdict to support the judgment.</p> <p>1. Where* a verdict is returned against one of two defendants, it should be construed as a verdict in favor of the other defendant. (111. Cent. R. R. Co. V. Murphy’s Admr., 30 Ky. Law Rep., 93, 97 S. W. 729; 2-2 Ency. Plead. & Prac., 959, 957; Handley v. Lawley, 90 Ala., 427; Maynard v. Powder, 75 Ga., 664; Howard v. Johnson, 91 Ga., 319; Sternberger v. Bernheimer, 121 N. Y., 194; Gulf, &c. Ry. Co. v. James, 73 Tex., 12; Mo. Poe. Ry. v. Kingsbury, 25 S. W., 322; Jones v. Grimmet, 4 W. Va., 104; AVestfield Gas Co. v. Abernathy, 8 Ind. App., 73; Alexander, &c. Co. v. Painter, 1 Ind. App., 587; Kinkier v. Junica, 84 Tex., 116; Spineer v. N. Y. &c. R. R. Co., 62 Conn., 242; McKee v. Cunningham, 84 Pac., 260; James v. Evans, 149 Fed., 136; T. & P. Ry. Co. v. Huber, 95 S. W., 658.)</p> <p>2. Where a verdict is returned against one of two defendants, the unsuccessful defendant cannot complain that its co-defendant was not mentioned. (Ill Cent. R. R. Co. v. Murphy’s Admr., 30 Ky. Law Rep., 93, 97 S. W., 729.)</p> <p>3. Verdicts are to be upheld if the intention of the jury can be ascertained. The verdict is to be construed in the light of pleadings and evidence, and an informal verdict will stand if reference to' pleadings and record will' supply the deficiency. (22 Ency. Plead. & Prac., 959, 955; Brannin, &c. v. Foree, &c., 12 B. Mon., 506; Miller, &c. v. Shackelford, 4 Dana, 264; Pickett v. Richet, 2 Bibb, 178; Worford v. Isbel, 1 Bibb, 247; Crozier v, Gano, 1 Bibb, 257; Buckeye Engine Co. v. -, 61 S. W., 263; Baker v. Thompson, 89 Ga., 486; State v. West, 45 La. Ann., 928; Wilson v. McCrilles, 50 Mich., 347; Miller v. Hospital Assoc., 73 Mo., 242; Smith vs. Shields, 194 Pa. St., 635; Cooper v. State, 20 S. W., 979; Hobeek v. Com., 28 Gratt., 922; Mark v. Bensley, 74 Wis., 112; Ft. Wayne v. Hardendorg, 72 N. E., 593; Ind. St. Ry. Co. v. Johnson, 72 N. E., 571; C. I. & L. R. Co. v. Woodward1. 72 N. E., 558; Gillespie v. Ashby, (-) N. Y., 649; Atkins v. Winter, 122 Ga., 644; Lee & Co. v. Bradwery, 25 la., 216; Red River, &c. Co. v. Stine, 32 Minn., 95; Austin, &c. Co. v. Makemson, 27 S. W., 588; Fay & Co. v. Richmond, 18 Mo. App., 355.)</p> <p>4. In the case at bar, the transcript of testimony shows that in the taking of testimony appellant was not even once referred to before the jury aa tihe “Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co.,” but was called the “Panhandle” 73 times, and the “Pennsylvania” 36 times, its own counsel and employes using these names. The intention of the jury to find against appellant when it used the name “Pennsylvania R. R, Co.” is, therefore, clear, and the verdict supports the judgment.</p> <p>5. The error in the verdict was one which did not affect the substantial rights of appellant and is immaterial. (Civil Code, 137, 756, 338.)</p>

<p>1. Statutes — Subjects and Titles — Act to Promote Sheep Industry. — Act March 1, 1906 (Acts 1906, p. 25, c. 10), entitled “An act to promote the sheep industry and to provide a tax on ■ dogs,” is not repugnant to Const. Sec. 51, providing that no law enacted by the General Assembly shall relate to more than one subject, which shall be expressed in the title, where it is apparent that the subject-matter o£ the act is the promotion of the sheep industry, and that this is accomplished by the imposition of a tax on dogs for the purpose of creating a fund to remunerate the owners of sheep killed by dogs.</p> <p>2. Licenses — Constitutional Restrictions — Public Purposes. — Act Marcih 1, 1906 (Acts 1906, p. 25, c. 10), providing for the imposition of a tax on, dogs to create a fund for the remuneration of the owners of sheep for losses suffered by the killing , cf their sheep by dogs, is not a revenue statute, but is a police regulation for the keeping and ownership of dogs, and therefore .such statute is not repugnant to Const, sec. 171, providing that taxes shall not be levied for other than public purposes.</p> <p>8. Same — Taxation According to Value. — Act March 1, 1906 (Acts 1§,06, p. 25, c. 10), providing for the imposition of a tax on dogs to create a fund for tlhe remuneration of the owners of sheep suffering losses from the killing of sheep by dogs, is not a revenue measure, but is a police regulation of the keeping and ownership of dogs, and therefore is not repugnant to Const., sections 172, 174, providing that all property not exempt from taxation shall be assessed, at its fair cash value, and taxed in proportion thereto.</p> <p>4. Same — Regulation of Dogs — Killing Sheep — Remuneration of Owners of Sheep. — Act March 1, 1906 (Acts 1906, p. 25, c. 10), providing for the imposition of a tax on dogs for the creation of a fund to remunerate owners of sheep for losses arising from the killing of .sheep by dogs, is a valid exercise o'f the police power of the Legislature to regulate the keeping and ownership of dogs.</p> <p>6. Same — Collection of License Tax — Compensation of Collector. —Act March 1, 1906 (Acts 1906, p. 25, c. 10), providing for a license tax on dogs to provide a fund for the remuneration of the owners of sheep suffering losses from dogs, and providing that the tax shall be assessed and collected as other taxes, is not invalid for failure to provide compensation to the sheriff for collecting the tax, since it is apparent from the act that the gross amount of the dog tax .collected is to be added to the total amount of the revenue tax collected, and upon the whole amount the officer’s remunerat5""' is fixed by Ky. St. 1903, sec. 4148.</p> <p>O’Rear, C. J., and Nunn and Carroll, JJ., dissenting.</p>

CASE 30. — PROSECUTION AGAINST' P. H. MORSE FOR EMBEZZLEMENT. — Jume 17. Appeal from Kenton Circuit Court. W. MoD. Shaw, Circuit Judge. Defendant convicted and appeals — AUTHORITIES CITED. 1. A peremptory instruction should have been given. (Roberson on Ky. Crim. Law, vol. 1, sec. 445, p. 642; Amer. & Eng. Ency. of Law, vol. 6, pp. 465, 473 and 474; Russell on Crimes-, vol. 2, sec. 188; Stone v. Commonwealth, 104 Ky., 220.) 2.

<p>Taxation — Levy—Statement of Purpose of Tax. — Under Constitution, section 180, providing that every ordinance of any county, etc., levying a tax shall specify “distinctly the purpose for which” the- tax is levied, an order of the fiscal court levying a tax of 50 cents- on the $100 valuation and $1.50 poll tax on each poll is void for failing to designate the purpose for which the tax is levied, though Ky. Stats. 1903, section 1839, authorizes the fiscal court to 1-evy each year for county purposes a poll tax not exceeding $1.50 and an ad valorem tax not exceeding 50 cents/ on. each $100 worth of property.</p>

<p>1. District and Prosecuting Attorneys — Assistants—Appointment by Governor. — Ky. Stats-. 1903, section 118, requires the Commonwealth's attorney to prosecute all violations of the criminal and penal laws within his district, and authorizes the Governor in civil cases- to employ counsel to assist the Commonwealth’s attorney. Section 127 declares that the county attorney shall prosecute cases in his county in which the Commonwealth or the county is interested, aid the Commonwealth’s attorney, and, in the absence of the acting Commonwealth’s attorney, shall attend to all the Commonwealth’s business in the courts. Section 135 declares that, the county attorney shall not dismiss or control any prosecution or proceeding in the circuit court when the Commonwealth's attorney or the attorney appointed in his place is present, except by the advice 'and with the consent of such attorney. Held that, where the Commonwealth’s attorney refused institute civil proceedings at the suggestion of the Governor, the Governor had power to employ special counsel at the expense of the State to assist and co-operate with the county attorney in the prosecution of such proceedings1.</p> <p>2. Intoxicating Liquors — Wrongful Sale — Sunday—Penalties— Action> — Nature and Form. — Crim. Code Prac., section 11, provides that a public offense of which the only punishment is a fine may be prosecuted by a penal action ,in the name of the Commonwealth or in the name of an individual or corporation, if the whole fine be given to such individual or corporation, and. that th© proceedings in penal actions' are regulated by the Code of Practice in civil actions, aind Civil Code Prac., section 92, declares that, where suit is brought to recover a fine, penalty, or forfeiture imposed by statute, it must be brought in the county where the action or some part of it arose. Held, that an action by the Commonwealth to recover penalties imposed by statute for violation of the law prohibiting the sale of liquors on Sunday was civil, both, in form and nature, and this notwithstanding the defendant is entitled to certain privileges and immunities applicable to criminal proceedings not recognized in a civil suit.</p>

<p>Innkeepers — Licenses—“Restaurants”—European Plan. — A city-ordinance imposed an annual license tax on -hotels and also on restaurants, and defined “restaurants” as “every place-where food' or refreshments are prepared for casual visitor» and sold for consumption therein.” Held, that a hotel conducted on the. “European” plan, with an'eating place in connection, could not be charged with a restaurant license, since the fumisihing of food to casual visitors is only an incident to the business of a hotel, whether it be run on the “American” or “European” plan.,</p>

<p>CASE 34 — APPLICATION. TO THE APPELLATE COURT BY •J. M. RENSHAW FOR A WRIT OF PROHIBITION AGAINST THOMAS P. COOK, JUDGE OF THE THIRD JUDICIAL DISTRICT OF KENTUCKY, TO RESTRAIN HIM FROM INTERFERING WITH THE TRIAL OF AN APPLICATION FOR AN INJUNCTION BEFORE THE COUNTY JUDGE. — June 20.</p> <p>Application heard by the full court. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A public office is- not property nor any contract right. (Throop on. Public Officers, sec. 345; Meachem on Public Officers, secs. 463, 464; Taylor v. Beckham, 221 Ky. Law Rep., 1743.)</p> <p>2. The failure of a sheriff to execute his annual bonds on or before the day prescribed by law ipso facto forfeits his office. (Kentucky Statutes, 4130, 4131, 4557; Acts of 1906, 152 and 153; Basham v. Commonwealth, 13 Bush, 38; Lowe v. Phelps, 14 Bush, 644; Commonwealth v. Yarbrough, 84 Ky., 496; Schuff v. Pflanz, '99 Ky., 97;; Meachem on Public Officers, 167.)</p> <p>3. Even though the sheriff by failure to execute his bonds- at the time required does not thereby ipso facto forfeit his office, yet the county court has jurisdiction both of his person and of the subject matter to make an order without any notice to him vacating the office and appointing his successor. (Calloway v. Commonwealth, 4 Bush, 383; Stokes v. Kirkpatrick, 1 Metcalf, 144.)</p> <p>4. It isi no-t necessary that the sheriff shall produce a quietus from the fiscal court of his county before the execution of his annual bonds or any of th-em. (Kentucky Statutes, s'ections 4130 and 4131; Acts of 1906, 152 and 153.)</p> <p>5. Even though some other official was remiss in the performance of his duty, this was no excuse for a failure on the part of the sheriff to comply with the law requiring him to -execute his bond-s. (Lowe v. Phelps, 14 Bush, 644.)</p> <p>6. The records of the county court show that the regular March term was continued from day to day until March 11, and that the orders of each day were duly signed by the judge thereof and which is conclusive. (Kentucky Statutes, 1060; Middleton v. Hensley, 21 Ky. Law Rep., 703; Commonwealth v. Howard, 99 Ky., 542; Pish v. Genett, 22 Ky. Law Rep., 174.)</p> <p>7. Even though the regular March term of the Christian county court was not in session on March 11, 1908, when the order of removal was made, and if n-ot at the regular term, it was certainly a special term, such as the county judge had authority to hold at any time for this purpose. (Kentucky Statutes, 1058.)</p> <p>8. An injunction bond is necessary to the validity of an injunction. (Civil Code, section 278, subsection 3.)</p> <p>1. The cases now pending before Judge Cook in the circuit court at Hopkinsville, are (1) an appeal from the order of removal made by the county judge, and (2) a petition in which Judge Smith, as plaintiff sought to enjoin Renshaw from qualifying and assuming to act as.sheriff of Christian county; (3) a petition by Renshaw in which he seeks by mandatory injunction, to require Smith to surrender to him the office-room and furniture belonging to the sheriff, and to prevent him from acting as sheriff; . (4) a petition filed by Smith against Renshaw and Prowse in which the plaintiff seeks, by prohibition, to prevent Prowse, county judge, from hearing an application for the mandatory injunction in the third named suit. These cases all involve the question of the power of the county judge to remove the sheriff, Smith; without notice or hearing and the right of Smith to appeal from that order to the circuit court.</p> <p>2. The statute under which this order was made (section 4557, Ky. Stats.), does not expressly or by implication, dispense with notice or hearing. It simply provides that the sheriff may be suspended until he shall execute a bond, or he may be removed.</p> <p>3. The rule laid down in all the authorities cited must apply to this case, and from these authorities it is clear that before the county judge can remove a sheriff under the statute, there must be notice of the charges iagainst him with an opportunity to be heard. In this case there is no pretense that any such notice was given, or opportunity for hearing. The authorities clearly denounce a removal under such circumstances and under such statute, as void.</p> <p>4. The sneriff, Smith, at the time this' order of removal waa made, nad in full force 'and effect six bonds, and the surety was liable for any default of his upon each and all of said bonds at any time during his term of office. This is expressly provided by section 4134 of the Ky. Stats.</p> <p>5. So that there could have been no ground of apprehension that the revenues of the state or the county were in any danger by reason of Smith remaining in the office of sheriff.</p> <p>AUTHORITIES CITED.</p> <p>Todd v. Dunlap, 99 Ky., 460; Johnson v. Ginn & Co., 20 Ky. Daw Rep., 1478; Meachem on Public Officers, sec. 454; Troop on Public Officers, 364; Commissioners v. Johnson, 124 Ind., 145; State v. Walbridge, 119 Mo., 383; Coleman v. Glenn, 103 Ga., 458; Ridgeway v. Moody, 91 Ky., 581; 2 Cyc., 547; Dryden v. Swim burn, 15 W. Va., 246; Boyd County v. Ross, 95 Ky., 167; section 2276 Civil Code.</p>

<p>CASE 35 — ACTION BY J. H. POYNTER AND OTHERS AGAINST ANDREW PHELPS AND OTHERS TO BE ADJUDGED THE RIGHT TO USE A CERTAIN BAPTIST CHURCH FOR DIVINE WORSHIP — June 20.</p> <p>Appeal from PulasM Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Judgment for defendants. Plaintiffs appeal. —</p>

<p>1. Electricity — Injuries Incident to Use. — Where electric light wires are put upon poles and placed 18 feet above the street, the owner need not anticipate that children will reach such wires by climbing poles or walking up guy wires which extend from the top of a pole to the ground at an angle of 45 degrees'.</p> <p>2. Negligence — Children—Trespassing.—Where children trespass on the property of another, they take the risk, unless the circumstaracs in the case are within the principle applicable to cases where dangerous instrumentalities are maintained alluring to children.</p> <p>3. Same — Places Attractive to Children. — An electric wire, 18 feet above the ground, which could only be reached by climbing a pole or guy wires stretched from a pole to the ground at 'an angle of 45 degrees, was not a dangerous instrumentality attractive or alluring to children.</p>

<p>1. Injunction — Grounds of Relief1 — Discretion of Court. — The granting or refusing of am injunction depends on the facts of each particular case, and rests in the sound discretion of the court.</p> <p>2. Same — Restraining Discharge of Sewage. — Where a sewer •had, been comstructecl many years before with the consent of the then owner of the property on which the sewage was discharged, and. was. afterwards extended on the request of one of the then joint owners of the property, and several years, elapsed without any action looking to the abatement of the nuisance, and the discontinuance of the sewer would work a great hardship on a large portion of the public in the city and prove a great menace to health, and the injury to the property was of a permanent nature, and the owner could recover in one action for all damages, past and future, and would not be required to bring a number of suits, such owner was not entitled to an injunction to restrain the discharge of sewage on the property.</p>

<p>Municipal Corporations — Appointment of Employes — Statutory Provisions — Construction.—Under Ky. Stats. 1903, section 3118, providing that the mayor shall appoint a superintendent of public works, but tnat such superintendent shall not make any appointments or employments until the number and compensation of appointees and employes shall have been fixed by ordinance, etc., .held that while the superintendent has no power to make any appointment until so authorized by the council, yet when by ordinance the council authorizes the appointment, etc., the superintendent has the right of appointment of the employes, and the board of eouncilmen could not elect a person to hold the position created by them of overseer of the street. cleaning department.</p>

<p>1. Adverse Possession — Contiguous Property — Boundaries—Extent of Possession. — Where an owner of property purchases contiguous land, not held by another under superior title nor in the actual possession of another and his record title is defective, it is not necessary that a new entry be made on the purchased land in order to sustain adverse possession thereof from the time of purchase; since, the land being contiguous and surrounded by a well-defined boundary, the owners’ possession on acquiring the land immediately extended to the whole boundary thereof.</p> <p>2. Same — Color of Title — Defective Deed. — Though a deed to land is de-fective and insufficient to give a record title thereto, the deed is admissible on a claim of adverse possession to show the' extent thereof.</p> <p>3. • Same — Evidence—Sufficiency.—In. an action to quiet title to land, evidence. considered, and held to show that defendant had acquired the title to the land by adverse possession.</p> <p>4. Appeal and Error — Review—Findings—Evidence.—Where a finding of the .chancellor is based on evidence such as to leave the mind ¿n doubt, it will not be disturbed on appeal.</p>

<p>1. Intoxicating Liquors — Delivering Liquors into Local Option Territory — Offenses-Indictment.—An indictment alleging that accused was a common carrier, an incorporated or joint-stock company, and that it brought and delivered liquor into a local option territory to ianother than a licensed physician or druggist, charged a violation of Acts 1906, p. 320, c. 63, prohibiting persons from delivering liquors into a local option territory, provided that individuals may bring into such territory on their own person, or as their personal baggage, such liquors, and provided the act shall not apply to licensed physicians or druggists to whom carriers may deliver such goods, etc., and it sufficiently negatived the provisos.</p> <p>2. Indictment and Information — Statutory Offenses. — An indictment under a statute whose enacting clause contains exceptions must negative such exceptions, but need not do so in the terms of the statute, provided the whole indictment leaves no doubt that accused does not belong to the excepted class.</p> <p>3. Intoxicating Liquors — Bringing Liquors into Local Option Territory — Offenses—Evidence—Sufficiency.—On a trial of an express company for bringing and delivering spirituous liquors into local option, territory, evidence held to justify a finding that the company or its agents knew or had reason to know that the package delivered contained intoxicating liquors, justifying a conviction, though, if the agents were actually deceived and acted in good faith, the company would not be liable.</p> <p>4. Carriers — Conduct of Business — Notice to Agent. — Carriers must obey the law, and their agents must exercise the same kind of judgment in the employer’s business as if doing business for themselves, and wnat would convince them that a certain fact exists is notice to the carrier of the,, existence thereof, so that agenta must act on knowledge, probabilities, information, and judgment and infer facts as men generally do in similar matters when acting for themselves.</p> <p>5. Intoxicating Liquors — Bringing Liquors into Local Option Territory — Offenses—Instructions.—An instruction on the trial</p> <p>. of an express company for bringing liquor into local option territory; in violation of Acts 1906, p. 320, c. 63, that if the jury believed that the company’s agents receiving and bringing the box of liquor into the territory and 'in delivering the same to a person there acted in good faith, believing the box contained something other than whisky, they should find the company not guilty, was more favorable to the company than it was entitled to for, in addition to the good faith, the agents must act with ordinary caution.</p> <p>6. Same — Inspection of Goods. — Where a carrier has reasonable suspicion’that a shipper is attempting to use its vehicle to violate the law, it ought to require enough evidence of the legality of the shipment to satisfy a reasonably prudent mind that the suspicion is not well founded, though, in the absence of statutory right of inspection, a carrier is not bound to have more knowledge than he has notice of.</p> <p>7. Same. — Acts 1906, p. 320, c. 63, prohibiting any person from delivering liquor into local option territory, is not enacted for the benefit of commerce, but aims to protect people from the vices of an article of commerce deemed an evil, and the legislation is anti-commercial, and, where a carrier knows that an article is contraband, it must be rejected no matter what the shipper may say to the contrary.</p>

<p>Embezzlement — Public Officers- — Statutes'—Construction.—Under Ky. Stats. 1903, section 1205, providing that, when a person having custody of any money belonging to the State or county shall willfully misappropriate the same, he shall-be punished, etc., and section 4067, prohibiting a sheriff from receiving any tax until a copy of the assessor’s books ha» been delivered to him by the county clerk, etc., and section 4241, defining the duties, of the sheriff as to property omitted by the assessor from taxation, a sheriff embezzling money collected from taxpayers' on property not assessed for taxation, does not violate section 1205, which assumes that the officer is legally in possession, of the money for the State or county, and then misappropriates it.</p>

<p>CASE 42. — PROSECUTION AGAINST CHARLES SMITH FOR HORSE STEALING. — September 23.</p> <p>Appeal from Hardin Circuit Court.</p> <p>John Allen Dean, Special Judge.</p> <p>Defendant convicted and appeals —</p> <p>1. Our contention is that a person who has obtained possession of property fraudulently, and with intention to convert it to his own use, must subsequently do some overt act towards carrying out that intention before he can be found guilty of larqeny, and the overt act must be something other than that which he agreed to do when ne obtained the possession, and other than that for which the possession was delivered to him.</p> <p>2. The instructions- were erroneous.</p> <p>3. The verdict is against the law and evidence.</p> <p>AUTHORITIES "CITED.</p> <p>Roberson’s Criminal Law, vol. 1, secs. 417, 418, 425; State v. Humphrey, 78 Am. Dec., 605; Elliott v. Commonwealth, 12 Bush. 176; Am. & Eng. Ency. of Law, 1 ed., vol. 4, pp. 673, 677.</p> <p>Our conception of the law leads us to believe that the court below stated the law correctly; that the matter hinges upon tho intuition to steal or carry away or convert to the use of the one taking the goods or property under such intention, and not on the fact that he followed up such intention by converting to his use the property that he took.</p> <p>CITATIONS.</p> <p>Alexander v. Commonwealth, 14 Ky. Law Rep., 290; Roberson’s Criminal Law, sec. 417, 418; Kentucky Statutes-, sec. 1195.</p>

<p>1. Intoxicating Liquors — Renting Premises for Unlawful Sale— ■Essentials of Offense. — To sustain a conviction under Ky. Stats. 1903,. section 2557, for knowingly renting a house, etc., in which intoxicants are sold, etc., unlawfully, it must he shown that the owner or controller of the leased property knew or by ordinary prudence would have known, when or before the lease was made that the lessee intended to sell intoxicants' unlawfully in or upon the property; and the lessors of a storeroom to he used as a drugstore are not guilty where they did not have such knowledge, and did not consent to or approve unlawful sales, though they knew that such sales were made after the loase was given.</p> <p>2. Landlord and Tenant — Use of Premises — Unlawful Sales of Intoxicants — Landlord’s Rights. — That a tenant sells intoxicants on the premises .unlawfully will not warrant the landlord in ejecting him, in the absence of authority to do so conferred by statute or the lease contract;' and a landlord need not stipulate in the lease that a violation of law by the ■tenant will forfeit the lease.</p>

<p>CASE 44. — PROSECUTION AGAINST J. C. LANDIS FOR RAPE. —September 24.</p> <p>Appeal from Pulaski Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Defendant having been convicted, was granted a new trial, and the Commonwealth appeals. —</p>

<p>Limitation of Actions — Limitation Applicable — Transportation of Live Stock — Contracts.—Plaintiff made an express contract with an initial carrier to transport a carload of hogs to the junction between its road and that of defendant and deliver the same to defendant for transportation at the rate of $36 per car for the whole distance; the contract providing that the initial carrier should deliver the hogs- to defendants as the shipper’s agent, and that they should be forwarded by defendant on the same terms as those specified in such contract. By an agreement between the two carriers the freight received of either designated to points of the line of the other was shipped on a through rate divided between them, and the agent of the initial carrier in making the contract in question acted on behalf of both roads. Held, that defendant, by accepting and forwarding the hogs to destination under the original contract, ratified the execution thereof by the initial carrier’s agent on its behalf, so that an action for injuries to the hogs might be brought against defendant on the written contract, and was therefore not barred until after 15 years under Ky. Stats. 1903, section 2514, limiting actions on written contracts to 15 years after the cause of action accrued</p> <p>Judges Hobson and Barker dissenting.</p> <p>ON PETITION FOR REHEARING.</p> <p>1. Venue — Action in Wrong County — Mode of Objection — .Waiver of Objection, — Under Civil Code .Prac., section 73, providing that an action against a carrier on a contract of carriage must be brought in the county where defendant resides, or where the contract is made, etc., and section 92, providing that a special demurrer is .an objection to.a pleading which shows chat the court has no jurisdiction of defendant, etc., a demurrer to the petition in such an action for want of jurisdiction, of the cause of action is bad, where the petition does nor show that the county where the action is brought is not the county where the contract was made or where defendant resides,, and the objection of want of jurisdiction over defendant, not being raised by answer, is waived.</p> <p>2. Pleading — Plea to Jurisdiction — Contents.—Where the petition to which it is desired to demur specially on the ground that the court has no jurisdiction of defendant, or of the subject of the action, fails to disclose the want of jurisdiction, defendant, if he desires to raise the- question, should point out distinctly, in an answer or other pleading, as provided in Civil Code Prac., section, 118, the reasons why the court has not jurisdiction, so that the court may be informed of the grounds on which the special demurrer is rested.</p> <p>3. Courts — Circuit Courts — Jurisdiction—Presumptions.—Circuit courts are courts, of general jurisdiction, and it will be presumed, in the absence of a showing to the contrary, that they have jurisdiction of defendant.</p>

CASE 46. — PROSECUTION AGAINST PETER GEARHART FOR SELLING LIQUOR IN VIOLATION OF THE LOCAL OPTION LAW. — September 25. Appeal from Elliott Circuit Court. J. B. Hannah, Circuit Judge.

<p>CASE 47. — ACTION BY SARAH FIBLE AGAINST W. L. CRABB. ' ON NOTES EXECUTED BY DEFENDANT TO HER. DECEASED FATHER AND ASSIGNED TO HER BY HER FATHER’S ADMINISTRATRIX. — September 25.</p> <p>Appeal from Henry Circuit Court.</p> <p>E. F. Peak, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals —</p> <p>points and authorities.</p> <p>1. A discharge in bankruptcy under the Act of 1898, does not bar a creditor who is not named in the schedule, whose residence is not given, if known, or if unknown so stated, who has had no notice and who had no actual knowledge of the proceedings'. (U. S. Comp. Statutes, sec. 7, p. 3425; U. S. Comp. Statutes, sec. 17, p. 3428; Gatliff v. Mackey, 104 S. W., 379; 31 Ky. Law Rep., 947; Custard v. Wiggerson (Wisconsin) 17 Am. Bankrupt Rep.,b 337; Liesum v. Kraus, 35 Mise. Rep., 376; 71 N. Y. Supp., 1022; Haak v. Thiese 99 N. Y. Supp., 905; 16 Am. Bankrupt Rep., 481; Columbia Bank v. Birkitt, 107 Am. Stat. Rep., 478; 9 Am. Bankrupt Rep., 478; Birkett v. Columbia Bank, 195 U. S. S. C., 345; 449 L. Ed., 232.)</p> <p>2. Courts of Kentucky have jurisdiction to try whether name of creditor and residence scheduled, property, notice given, etc., so as to bar creditors. (Jones v. Walter, 115 Ky., 556.)</p> <p>The record shows that appellee surrendered all his estate to his creditors and has taken no steps to avoid paying his debts or to obtain a discharge in bankruptcy without notice to appellant or other creditor.</p> <p>We submit that the court will not disturb a verdict unless flagrantly against the evidence.</p>

<p>1. Intoxicating Liquors — Offenses—Sales at Prohibited Places.— Under Ky. Stats. 1903, section 4198, requiring applicants for a license to sell intoxicating liquor to state the county, city, town, and place where it is proposed to carry on the business, and that licenses shall specify the place where the business is to be conducted, and forbidding the exercise of the privilege granted in any other place than that mentioned in the license, two barrooms in separate and distinct buildings cannot be conducted under one license.</p> <p>2. Same. — Licensee’s ownership of both buildings does not affect the question.</p> <p>3. Same. — Where, when licensee commenced the sale of liquor in a building, he was already selling liquor in another building, it is no defense to an indictment for selling liquor in the former building without a license that, as he .had a right to run one bar, it cannot be said which of the two was unlawful, and that therefore the selling in the former building was' not unlawful, as such defense overlooks, the fact that licensee commenced the saie in the former building after he had located his license by selling liquor in the latter building.</p> <p>4. Same. — One who, under one license, opens two bars in separate and distinct buildings, cannot maintain that he cannot be punished for maintaining either, as one or the other is lawful.</p> <p>5. Same — Indictment—Sufficiency.—An indictment for .conducting a bar for the sale of intoxicating liquor without a license, which gave the name of the offense with sufficient certainty .to apprise defendant of what was meant, and described it in the usual form, was sufficient.</p> <p>6. Same — Evidence—Admissibility.—On a trial for conducting a bar for the sale of intoxicating liquor without a license, evidence that other persons in the county were conducting two bars under one license, as defendant was doing, was properly excluded.</p> <p>7. Same. — On a trial for conducting a bar for the sale of intoxicating liquor without a license, evidence that the county officials had construed the statute to permit the conducting of .two bars under one license, as defendant was doing, was properly excluded.</p>

<p>1. Damages — Fright.—A cause of action will not lie in favor of a woman for pain and suffering resulting solely from fright, unaccompanied by physical injury, superinduced by one who, without seeing her or knowing of her presence, and without trespassing on her premises, assaulted a third person who-occupied a room in her house; the damages being too remote- and speculative.</p> <p>2. Same. — No recovery can be had for injuries resulting from mere fright caused by the negligence of another, where no immediate personal injury is received.</p> <p>3. Negligence — Unforeseen Consequences. — One assaulting another, without seeing a third person, and without knowing of her presence in an adjacent room, and without being, seen by her, is not guilty of negligence toward the third person.</p>

<p>1. Bail — Forfeiture—Relief:—It is a defense to recovery on a bail bond that the person under bond was prevented from. attending court by reason of being accidentally shot, though he was at the time out of the State on a visit.</p> <p>2. Judgment — Vacation After Term — “Casualty.”—That one was accidentally shot, preventing his appearing at court, is ground for setting aside judgment on his forfeited bail, within Civil Code Prae., section 518, empowering the court rendering a judgment to vacate it, after the term, “for unavoidable casualty or misfortune, preventing the party from appearing or defending;” ‘“casualty” being that which, happens without design or without being forseen.</p>

<p>1. Indictment and Information — Statutory Offenses — Sufficiency. —An indictment alleging in tbe language of the statute the statutory offense of carnally knowing a female under the age of 16 years is sufficient without alleging a felonious intent.</p> <p>2. Same — Charging Felony at Common Law — Sufficiency.—An indictment charging a felony under the common law must charge its commission feloniously or with a felonious intent.</p> <p>2. Same — Statutory Offenses — Sufficiency.—An indictment charging a statutory crime, defined by the statute itself, in the language of the statute, is sufficient without using the words “feloniously” or “with felonious intent.”</p> <p>4. Criminal Law — Continuance—Grounds.—The refusal to grant accused a continuance because of illness of counsel was not erroneous where it was not made to appear by his affidavit that the two attorneys who were present and conducted his1 defense were not equal to the task, especially where such attorneys in fact managed the case with skill and fidelity.</p> <p>5. Same — Admissions to Prevent Continuance — Conclusiveness— Improper Argument of Counsel. — Where the prosecution admitted, to avoid a continuance, that an absent witness, if present, would testify to facts averred in the affidavit for a continuance, it was reversible error for the proscuting attorney to argue that the absent witness, if present, would not make the statement shown by the affidavit.</p> <p>6. Same. — Where the prosecution admitted, to avoid a continuance, that an absent witness would, if present, testify to the facts as averred' in the affidavit for a continuance, the prosecution might contradict the affidavit by other testimony.</p> <p>7. Same. — Prosecuting attorneys should see that justice is fairly meted out, and that accused is fairly dealt with, and it is not a part of their duty to abuse accused in the hearing of the jury.</p> <p>8. Rape — Evidence—Admissibility.—Where, on a trial for carnally knowing a female under the age of 16 years, the evi- . dence of the age of the prosecutrix was conflicting, evidence that the monthly sickness of prosecutrix had regularly occurred for five years preceding the offense was admissible to show that prosecutrix was over 16 years of age at the time of the commission of the offense.</p>

<p>1. Husband and Wife — Wife as Husband’s Surety — Discharge.— That a married woman might have pleaded coverture to defeat judgment on a note signed by her as her husband’s surety does not prevent her from moving, under Ky. Stats. 1903, section 2548, providing that a surety shall be discharged under any judgment after seven years unless execution' issues thereon, to quash an execution issued on a judgment obtained against both of them; the statute applying to all sureties.</p> <p>2. Principal and Surety — Judgment Against Surety — Discharge.— Judgment having gone against a principal and his surety on a debt, it is immaterial to the surety's right under Ky. Stats. 1903, section 2548, providing that a surety shall be discharged from a judgment alter seven years unless execution issues thereon, that the record does not show that he was only a surety in the debt.</p> <p>3. Execution — Right to Quash. — A court, having inherent power over its own process, may quash an execution where it is issued after the time has elapsed within which it may be lawfully issued for after the judgment is satisfied, or when for any other reason it may not be enforced.</p> <p>4. Same — Form of Remedy — The proper remedy to quash process improperly issued is ly motion; an audita querela having been the ancient remedy.</p> <p>5.Same — Validity—Procedure.—Whether property levied upon is subject to execution must be determined by action; but questions simply going to the validity of the process may be determined summarily on motion.</p>

<p>Partition — Sale—Disposition of Infant’s Share of Proceeds.— Under Civil Code Prac., section 497, providing that, in an action for sale and division of the proceeds of real estate owned by several and incapable of division without materially impairing its value, the share of an infant shall not be paid by the purchaser, but shall remain a lien on the land till the infant becomes' of age, or till his guardian execute a bond to. account to the infant for all money belonging to the infant,. ' the proceeds of the sale, including the share of an infant, having been paid into court, when the infant had no- statutory guarnían, and the commissioner having squandered the infant’s share, a guardian, being afterwards appointed and giving bond, may maintain an action to enforce the statutory lien on the land for the infant’s share; but he has no right of action against the commissioner and his surety, the payment into court being without right, notwithstanding any order of the court with respect to it.</p>

<p>CASE 54. — PROSECUTION AGAINST THOMAS LEACH FOR MURDER. — -September 30.</p> <p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Defendant convicted and appeals —</p> <p>We think first that the defendant’s case was prejudiced by the refusal to admit the testimony as to the relations between the Clark woman and Gayle. She was the chief witness against the accused, and it was of the utmost importance that all the points bearing on the improbability of her not telling the truth should be shown.</p> <p>Second, we think that no testimony, or instructions as to insanity should have been admitted, as this confused the jury, and prejudiced the defendant, by placing him in a contradictory attitude, and also by making him to seem to rely on a defense entirely unsupported by any testimony, and lastly, again, we recall to you the fact that no instruction at all was given as to the right of the accused to defend his home.</p> <p>Every man is entitled to have his whole case presented to the jury in the most favorable light that the law allows, and we ask that this honorable court order a reversal of this cause, that-this accused ma.y not be unlawfully deprived of his life or liberty.</p> <p>All of which is respectfully submitted.</p> <p>AUTHORITIES.</p> <p>Holly v. Commonwealth, 18 Ky. Law Rep., 441; Allen v. Commonwealth, 86 Ky., 642; Feltner v. Commonwealth, 23 Ky. Law Rep., 1110; Gyc., vol. 21, r 828; McPherson v. State, 22 Ga., 478; Thompson v. State, 61 Neb., 210; Saylor v. State, 97 Ky., 184; Wright v. Commonwealth, 85 Ky„ 123; Saylor v. Commonwealth, 17 Ky. Law Rep., 959; Sparks v. Commonwealth, 89 Ky., 644.</p> <p>The Commonwealth contends as follows:</p> <p>1. That it was no reversible error to refuse to permit evidence to show the intimate relations of deceased with Becky Clark.</p> <p>2. That it was proper under the evidence to give an instruction upon insanity.</p> <p>3. That no reversible error was committed in giving the law of this case to the jury.</p> <p>4. That appellant has had a fair and impartial trial and should be satisfied with the verdict against him.</p> <p>We do not seriously take t)he 'contention of appellant that the court committed a reversible error in refusing to permit testimony to be introduced in showing the intimacy that may have existed between Becky Clark, the Commonwealth’s witness, and the deceased; his only reason being to show the motive or interest of the witness, in so testifying against him.</p> <p>In fact appellant introduced evidence to impeach the testimony of this1 witness, Becky Clark, and then sought *to further introduce evidence of intimacy with the deceased. The record shows of their improper association. It- was the province of the appellant to introduce any evidence he could find to impeach her, either by contradicting her, proving her general reputation for veracity, to discredit her, or by proving collateral and irrelevant facts. Appellant took this liberty and exercised it. And we contend that he exercised all the right given to him under the rules of admission of testimony.</p> <p>AUTHORITIES CITED.</p> <p>Robinson’s Criminal Law, 1098; Franklin v. Commonwealth, 92 Ky., 612; Taylor v. Commonwealth, 13 Ky. Law Rep., 860; 18 Ky. Law Rep., 441; Pennington v. Commonwealth, 24 Ky. Law Rep., 321; Eversole v. Commonwealth, 17 Ky. Law Rep., 1259; Redmon v. Commonwealth, 21 Ky. Law Rep., 331; Pence v. Commonwealth, 21 Ky. 'Law Rep., 500; Benge v. Commonwealth, 24 Ky. Law Rep., 1466; Taylor v. Commonwealth, 17 Ky. Law Rep., 1214; Wharton, 3d ed., 794.</p>

<p>States — Legislative Expenses — Constitutional Provisions. — Constitution, section 249, provides that the senate shall not employ or pay for exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one janitor, one cloakroom keeper, and three pages. Ky. Stats. 1903, section 342, provides for the payment of the contingent expenses of the General Assembly on vouchers countersigned by the clerks of the respective houses. Held that, since the Constitution is a limitation on the right of the senate to hire employes, one employed by the chief clerk ,of the senate to copy bills is not, on the production of a voucher countersigned by the chief clerk, entitled to payment out of the state treasury as a contingent expense, though the services rendered were necessary.</p>

<p>CASE 56. — ACTION BY J. M. WILLIAMS AGAINST THE WESTERN UNION TELEGRAPH COMPANY FOR DAMAGES FOR FAILING TO DELIVER A TELEGRAM.— September 30.</p> <p>Appeal from Rockcastle Circuit Court.</p> <p>L. F. Johnson, Special Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p>

<p>1. Indictme it and Information — Parties to Offenses — Principals— Aiders' and Abettors. — One indicted as principal may be convicted on a showing that he was present at the time of the commission of the offense, counseling, aiding, or assisting the perpetrator thereof.</p> <p>2. Criminal Law — Trial—Instructions—Applicability to Evidence. —No instruction based on any theory not supported by the evidence or on a theory opposed to the evidence, should be given.</p> <p>' 3. Same. — Where accused was charged with killing decedent by cutting him, and the proof showed that the cutting was done by her son, instructions based on the idea that she did the cutting should not be given.</p> <p>4- Homicide — Instructions—Self-Defense.—Where decedent struck accused, knocking her down, and she called to her son to cut decedent, exclaiming that she was killed, and the son did so, the court should have instructed that if. the son cut decedent, from which wound he died, and accused, his mother, was advising the said son so to do, yet if at the time either the accused or her son had reasonable grounds to believe,, and in good faith did believe, that decedent was then and there about to take her life, or inflict great bodily harm, the son had the right to use any means at his command that were necessary, or to him apparently necessary to protect, the accused, and the accused under such circumstances had' the right to advise her son so to do, and was not guilty on. the ground of self-defense.</p> <p>5. Same — Evidence—Degrees of Homicide. — Where the Jury bolieve beyond a reasonable doubt that accused has been proven guilty of a homicide, and they entertain a doubt as to the degree of guilt, they must give her the- benefit of the doubt,, and find her guilty of manslaughter.</p>

<p>CASE 58. — ACTION BY THOMAS GUILFOYLE’S EXECUTOR. AGAINST THE CITY OF MAYSVILLE, HEARD ON MOTION TO DISSOLVE AN INJUNCTION. — Sept. 29..</p> <p>Heard by the Appellate Court on motion to dissolve an injunction —</p>

<p>CASE 59. — ACTION BY RUFUS CHILDERS’ ADMINISTRATOR. AGAINST THE GOULD CONSTRUCTION COMPANY FOR DAMAGES FOR DECEDENT’S DEATH. — Oct. 1.</p> <p>Appeal from Rockcastle Circuit Court.</p> <p>L. F. Johnson, Special Judge.</p> <p>' Judgment for plaintiff defendant appeals —</p> <p>We submit that this case shall be reversed.</p> <p>1. Because the law is that the servant is bound at his peril to select a position which will protect him from unnecessary risks in so far as they are known or ought to have been known, and when he takes a position obviously more dangerous than another which was available, he is guilty of contributory negligence and there can be no recovery.</p> <p>2. Because appellee’s intestate was the fellow servant of Mc-Ewan the acting foreman of those engaged in the work, whose negligence caused his death.</p> <p>AUTHORITIES CITED.</p> <p>Crookstone Lumber Co. v. Bruton, 149 Fed., 685; Gilbert v. B. C. R. R. Co., 128 Fed.,- 529; Brice v. L. & N. R. R. Co., 10 Ky. Law Rep., 526; Helm v. L. & N-. R. R. Co., 17 Ky. Law Rep.. 1004; R. R. Co. v. Jones', 95 U. S., 439; Dawson v. C. R. I. Co., 114 Fed.,'870; Brie R. R. Co. v. Cain, 118 Fed., 223; Labott, Master and Servant, 334.</p> <p>We submit:</p> <p>,1. That the sole cause of intestate’s death was the wrongful act on the part of acting foreman McEwan in giving the signal in obedience to which those in charge of the machinery let the log fall, which struck and knocked deceased from the bridge and killed him.</p> <p>2. The acting foreman was not the fellow servant of deceased. The regular foreman was absent and in his absence McEwan always took his place and regulated, directed and controlled the movements of those in charge of the machinery, and was ,o all “intents and purposes” the foreman for the time being.</p> <p>CITATIONS.</p> <p>L. & N. R. R. Co. v. Sullivan’s Admr., 25 Ky. Law Rep., 355; L. & N. R. R. Co. v. Moore, 83 Ky., 680; Mayfield Woolen Mills v. Frazier, 25 Ky. Law Rep., 2263; Red River Lumber Co. v. Newkirk, 12 Ky. Law Rep., 635.</p>

<p>1. Taxation — Sale of Property of One for Taxes of Another. — ■ Taxes against a man not being a lien on his wife’s property, sale of such property for such taxes is void.</p> <p>2. Same — Purchase at Void Tax Sale — Remedies of Owner. — The purchaser of property at a void tax sale, who takes it and converts it to his own use, is liable to the owner for conversion, though the owner may, at his election, sue for cn« property.</p> <p>3. Estoppel. — If the owner- of property stood by and without objection allowed it to be sold for taxes- of another, this is matter of estoppel, which, to be available in an action by the owner against the purchaser for conversion, must be pleaded by answer.</p>

<p>1. Appeal and Error — Objections Below — Motion for New Trial— Necessity. — Under Cr. Code Prac. section 11, providing that proceedings in penal actions are regulated by the Code of Practice in civil actions, the court, in the absence of a . motion and grounds for a new trial in a penal action as well as in a civil action can only determine whether the pleadings are sufficient to support the judgment.</p> <p>2. Inspection — 'Statutes — Construction. — Ky. St. 1903, section 2209, pohibiting the sale or offering for sale of illuminating oil with an ignition point of less than 130 degrees Fahrenheit, or oil condemned by an authorized inspector and branded unsafe for illuminating purposes, does not prohibit the owner of oil that has been found below the test or that has been condemned from mixing it, before it is sold or offered for sale, with other oil, thereby bringing the entire quantity up to the standard test.</p> <p>S. Penalties — Actions — Burden of Proof. — In prosecutions, whether by indictment or penal action, the burden of proving every fact necessary to establish the guilt of accused is, as a general rule, on the Commonwealth.</p> <p>4. Same — Pleadings—Issues.—In a penal action, a plea of not guilty is a traverse of every material averment of the petition, and a conviction cannot be had unless accused is proven guilty beyond a reasonable doubt of the offense charged.</p> <p>5. Same. — Where defendant in a penal action sets up in his answer an affirmative defense, the defense must be judged by the rules of practice applicable to pleadings in civil actions.</p> <p>6. Same — Issues—Burden of Proof. — Where, in a penal action for offering for sale illuminating oil below the test fixed by Ky. St. 1903, section -2209, the petition charged that defendant offered for sale 8,000 gallons of oil that had been condemned as unsafe because below the test, and defendant admitted that the oil had been condemned as below standard, and alleged that, to bring the oil up to the standard; he put the same in a tank containing oil above the standard, thereby raising the whole body of the oil above the legal test, etc., the only ■ issue was whether the mixture was up to the standard, and defendant had the burden to prove that it was.</p> <p>7. Same. — Matters of defense in a penal action, consisting of facts either justifying or excusing or exempting from criminal liability, which are wholly disconnected from the particular offense charged, constitute affirmative matter, and the burden of proof is on defendant,, unless the fact relied on otherwise appears in evidence to such an extent as to create a reasonable doubt of guilt.</p> <p>8. Same. — In many statutory misdemeanors, defendant may, .by relying on a distinct affirmative defense, relieve the Commonwealth of proving all the facts necessary to constitute his guilt, especially in penal actions where defendant may set up his defense in a written pleading.</p> <p>9. Appeal and Error — Review. — Where defendant in a penal action for offering for sale illuminating oil below the test fixed by Ky. St. 1903, section 2209, presented a valid affirmative defense, and the evidence is not in the record, the court on appeal from a judgment for defendant after a peremptory instruction in his favor must presume that the proof offered by defendant sustained the affirmative defense.</p>

<p>1. Appeal and Error — Right to Appeal — Amount in Controversy. —Several creditors filed a joint petition against their common debtor and his transferees, asserting claims of less than $200 each. The court approved the claims, found that a transfer of stock was fraudulent, and directed that the stock be subjected to the extent of $1,000 to the payment of the claims. Held, that the amount involved, as affecting the transferees’ right to appeal, was $1,000.</p> <p>2. Same — Review—Scope.—The chancellor, in a suit by several creditors against a common debtor and his transferees, not having found that a particular transfer was fraudulent as to the creditors, that branch of the case is not presented on appeal by another transferee from a judgment subjecting property transferred to him to payment of the claims.</p> <p>3. Pleading — Answer — Sufficiency of Denial. — Under the rule that a pleading must be construed most strongly against the pleader, creditors having alleged in a suit brought July 23d that their debtor transferred property April 27th, an answer denying that the transfer was made April 27th, or on any other date in April, did not put the date of the transfer in issue, as affected by the statute requiring suit to be brought within 90 days from that date, since under the answer, the transfer might have been made between May 1st and the bringing of suit.</p> <p>4. Fraudulent Conveyances — Constructive Fraud — Creditors’ Right to Recovery. — Where creditors base their right to recover solely upon Acts 1904, p. 72, c. 22, protecting them against certain constructive fraudulent conveyances, but providing that no jobber, etc., shall have any lien on goods not sold by him, they must by pleading and proof bring .themselves within the statute; and plaintiff creditors, having failed to show that goods sold by them formed a part of the stock transferred by their debtor to defendant, cannot subject the stock to their claims.</p> <p>5. Same. — In a suit to subject goods to the transferror’s creditor’s claims, it is improper to adjudge a sale for a sum exceeding the amount of the claims.</p> <p>6. Appeal and Error — Review—Objections Not Raised Below.— No objection having been made in the trial court in a suit to subject goods to the transferror’s creditors’ claims to the court’s jurisdiction, or to joinder of parties, and the transferror not appealing from the judgment, the Court of Appeals will not review such objections on the transferee’s complaint.</p>

<p>CASE 63. — PROCEEDINGS AGAINST RICHARD LOWE AND' OTHERS TO REQUIRE THEM TO GIVE BONDS TO KEEP THE PEACE. — October 2.</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>From the judgment requiring defendants to give peace bonds they appeal —</p> <p>The contention of appellants is, that when the magistrate issued the warrant against the accused, the circuit court had no jurisdiction to try the parties upon that warrant, or at all, but that they must first be tried on the warrant .before the magistrate and then before the circuit court as authorized by section 385 of the Code.</p> <p>CITATIONS.</p> <p>Sec. 382, 383, 384, Criminal Code; Neely v. Commonwealth, 12 Ky. Law Rep. 844; Ky. Stats., 966.</p> <p>It is the contention of the Commonwealth that under the authority given in the Criminal Code, in sections 382, 383, 385, 386, 387, 388, 389, 390, 391, 392 and 393 the proceeding in the circuit court was proper and that no error was committed.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., '966 and 193; Cr. Code, sec. 13, subsec. 3, sec. 382,' subsec. 3, and sections 382 to 393; See also 12 Ky. Law Rep., 844.</p>

<p>.Judges — Guardian and Ward — Settlements—Liability of County Judge. — Ky. St. 1903, section 1065, 1068, providing that a county judge shall every two years require fiduciaries to settle their accounts, and at least once in each year inquire into the solvency of the sureties of each fiduciary, etc., are mandatory; and a county judge, acting as such from December, 1899, until January, 1902, cannot excuse nonperformance of such duties on the ground that the last settlement made by a guardian was in 1899, for, when the record showed the appointment of a guardian and his settlement, showing that he had in his hands money due the ward, it became the duty of the county judge to perform the statutory duties.</p>

<p>CASE 65. — ACTION BY D. E. BURROW AGAINST O. W. MAXON FOR A WRIT OF POSSESSION FOR LAND BOUGHT AT AN EXECUTION SALE, WHICH DEFENDANT CLAIMS IS EXEMPT AS A HOMESTEAD — Oct. 2.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>SYNOPSIS AND CITATIONS.</p> <p>Issues, formed by answer and reply:</p> <p>1. Was appellee owner of the land under parole gift or by deed of gift.</p> <p>2. Was he owner by gift or by purchase within the meaning of section 1702 Kentucky Statutes?</p> <p>3. If by purchase was the land subject to the debt and execution.</p> <p>(a) Debt created in the years 1896 to 1902 under allegations of reply and admissions of answer; also shown by deposition of R. C. Burrow.</p> <p>(b) A proceeding under section 1689 Ky. Statutes and sections 444-449 Civil Code. Error of Court in over-ruling plaintiffs motion to transfer to equity. (Civil Code, section 449; Sargeant v. Farrar, 2 Ky. Law Rep., 212; Couchman v. Maupin, 78 Ky., 33; Scott v. Mitchell, 19 Ky. Law Rep., 218; Wilson v. Flanders, 24 Ky. Law Rep., 1302.)</p> <p>(c) In such proceedings purely common law issues are triable before jury, etc.; otherwise when an equitable issue is presented. (Pendergrist v. Heekin, 94 Ky., 484; Holcomb v. Hood, 12 Ky. Law Rep., 240; Hester v. Lynn, 20 Ky. Law Rep., 1460.)</p> <p>(j) Appellant not entitled to writ of possession if deed from Jesse Ware, etc., is not a deed of purchase within the common or statutory meaning.</p> <p>(k) Though lower courts are frequently biased in favor of the homestead claimant, courts of last resort should not be. Reference to the affidavit in plaintiffs behalf and his motion to be allowed to introduce further evidence.</p> <p>(l) The deed from Jesse Ware, etc., shows conclusively the character of appellee’s title, there being no evidence to the contrary. This deed is not a deed of gift but of purchase within the statutory meaning. (Bouvier’s Law Dictionary (Rawl’s Revision) “Gift;” Am. & Ency. of Law, 1st Ed., vol. 8, 1309.)</p> <p>(m) The deed from Jesse Ware, etc., to the appellee, the only evidence in the record of his title or-the character of his title to the land which was sold under execution to the appellant, is clearly a deed of bargain and sale to him and a purchase by him within the meaning of section 1702 Ky. Statutes. The transaction between the grantors and appellee shows clearly and positively that the appellee by contract and trade purchased or acquired this land and other valuable property.</p>

<p>I. Mandamus — When Proper — Re-entry of Judgment. — Under Ky. St. 1903,' section 3991, providing that, upon “satisfactory proof” that an unexecuted judgment has been entered and the record thereof destroyed, the court must re-enter the judgment, mandamus will not lie to compel re-entry since the court acts judicially in determining whether the proof is satisfactory; the remedy being by appeal from the order refusing to re-enter the judgment.</p> <p>2. Same. — Mandamus lies to compel performance of a mandatory duty, or to compel exercise of a judicial function, where there is no other legal remedy, but the exercise of discretion cannot be controlled in a particular direction.</p>

CASE 67. — ACTION BY JAMES NIXON AGAINST AUGUST OSSENBECK AND OTHERS. — October 6. Appeal from Kenton Circuit Court. W. McD. Shaw, Circuit Judge. From the judgment plaintiff’s attorney appeals— POINTS AND AUTHORITIES. 1. The whole of indivisible property must be sold to satisfy a judgment, even if the property be homestead.

<p>1.Carriers — Transportation of Live Stock — Designation of Cars. —A carrier’s duty to designate the car in which hogs offered for shipment shall be loaded is not sufficiently performed by the exercise of ordinary care.</p> <p>2. Same — Misdirection.-ÍWhere a shipper is directed by a carrier’s agent to load ulogs in the wrong car, the carrier is responsible for such damages as naturally result from removal of the hogs'required by the carrier; but if the shipper loads the hogs in the wrong car, without inquiry from the carrier’s agent, he assumes the risk. ^</p> <p>3. Same — Proximate Cause — Instructions.—Where plaintiff’s hog, intended for shipment, was loaded in the wrong car, as plaintiffs alleged by misdirection of defendant’s agent, and the hog died as the alleged result of plaintiffs being compelled to transfer him to another car, the court, in an action for the death of the hog, should have charged that if he was in such condition that he would have died, notwithstanding -the removal, or if defendant’s agent offered to let the hog remain until he could be safely removed, or if plaintiffs were themselves negligent in not loading him into the ear designated, or if his death resulted from the careless manner in which he was removed and thereafter handled, plaintiffs could not recover.</p> <p>4. Same — Evidence—Identity.—In an action against a carrier for death of a hog alleged to have been caused by defendant’s agent in requiring his removal from one car to another, evidence that on the night in question, when several hogs were driven to the station with others, witness heard a hog squealing, was inadmissible to support defendant’s claim that the hog was very hot and would probably have died, notwithstanding his removal, unless the hog that squealed was identified as that in question.</p>

<p>1. Partition — Sale—Estate in Possession. — Civ. Code Prac. section 490, subsec. 2, authorizing a sale of a vested estate jointly owned by two or more persons, by order of a court of equity in an action by either of them, if the estate be in possession and the property cannot be divided without materially impairing its value, does not require the joint owners to be in actual possession, but only that the estate be a present and not a future one.</p> <p>2. Infants — Action Against — Guardian Ad Litem — Propriety of Appointment in Partition Suits. — Civ. Code Prac. section 38, subsec. 2, provides that a guardian ad litem may be appointed for an infant defendant, whether his guardian appears or not. By section 36, subsec. 3, no judgment can be rendered against an infant until the regular guardian or a guardian ad litem files an answer or a report as therein provided. Section 499 provides that the statutory guardián may defend for an infant, and if he fails to do so the court shall appoint a person for that purpose. Held, in partition, where the guardian of an infant defendant was a plaintiff, that the court, upon affidavit filed, properly appointed a guardian ad litem for such infant; the appointment of a guardian in such case being within the court’s discretion.</p> <p>3. Same — Filing of Report of Guardian Ad Litem. — Under Civ. Code Prac. section 36, subsec. 3, providing that no judgment may be rendered against an infant until the regular guardian or a guardian ad litem files answer or a report that he is unable to defend, judgment may be rendered when a proper report is made by the guardian ad litem.</p> <p>4. Partition — Action Against Nonresidents — Necessity of Refunding Bond. — In partition between beirs, etc., to sell land, no bond to nonresident defendants was necessary before judgment under Civ. Code Prac. section 410, providing that before judgment is rendered against a defendant constructively summoned, and who has not appeared, a refunding bond shall be executed to such defendant, as plaintiffs have no interest in such defendant’s share; allegations in the petition that an heir’s interest was subject to her debts being only to enable the claims of all the parties against the land to be settled in one suit.</p> <p>5. Same — Parties Defendant — Cross Petition — Nonjoinder—Effect on Sale. — Civ. Code Prac. section 411, provides that, if a bond is not given to nonresident defendants constructively summoned, but who do not appear, before judgment, as provided by section 410, the court may enter judgment ascertaining the rights of the parties, but shall retain control over the property or its proceeds until the expiration of the time allowed defendant to appear and defend, but it shall be delivered according to the judgment. In partition by heirs, etc., some of defendants constructively stimmoned were not before the court on a cross-petition of a mortgage of- the ■property. Held, that the fact that such defendants were not before the court on the cross-petition did not invalidate the partition sale; the court having required the mortgagee to execute a bond before the proceeds were paid out.</p> <p>6. Wills — Probate—Conclusiveness—Collateral Attack. — It will be conclusively presumed that the county court had proper evidence before it when it probated a will, and the probate is conclusive unless legally vacated; and hence the probated will of an ancestor was properly admitted in partition proceedings, though not properly authenticated.</p> <p>7. Partition — Construction of Ancestor’s Will — Effect on Purchasers’ Title. — In partition by heirs for the sale of land, that the circuit court did not properly construe the will of an ancestor of one of the parties did not affect the title of the purchaser on partition sale; the heirs being before the court.</p>

<p>1. Taxation — Uniformity—Equality.—Under the Constitution, declaring that taxes shall be uniform on all property subject to taxation within the territorial limits of the authority levying the tax and shall be assessed at a fair cash value, the fundamental theory on which all poperty taxes are imposed is that the property shall contribute in proportion to its value, and thus bear as near as may be its equal share of the burden.</p> <p>2 Municipal Corporations — Special Taxes for Local Improvements —Validity.—A municipality may levy a tax on the abutting land for a local impovement and the tax may' be assessed according to the frontage of the property without regard to Its value; the constitutional provisions relating to equality and uniformity of taxation not being applicable to special taxes.</p> <p>:S. Same. — Special taxes cannot be levied by a municipality unless the property charged receives a corresponding physical, material, and substantial benefit therefrom.</p> <p>4. Same. — The sprinkling of streets does not confer a special benefit on adjacent property in the sense of contributing to its value, and a special tax for such purpose cannot be sustained, and Act March 21, 1906 (Laws 1906, p. 276, c. 94), authorizing the common council of cities to provide for sprinkling the streets and to assess the cost thereof by front foot against the property abutting on I he streets, is invalid.</p>

<p>Navigable Waters — Right to. Float Lumber. — A stream across which one can step, in its ordinary stages,- 10 or 12 feet wide at the top of the banks, about 4 feet deep when the banks are full, with bushes growing on the sides and meeting in the middle of the stream, with water gate across it, incapable of use for floating' staves at any stage unless men walk along the banks with poles to push the staves from the banks and around the shoals, is not a navigable stream, and cannot be used for the purpose of floating out staves against, the wishes of the owners of the land through which the stream flows, without compensation.</p>

<p>1. Insurance — Forfeitures—Waiver.—Forfeitures are not favored in law, and, when once waived, cannot be afterwards insisted upon.</p> <p>2. Same. — A life policy provided that it should be void if any . premium note was not paid when due. After a note became due, defendant’s agents wrote insured that, unless the note wias paid at once, they would be compelled to return the note; which would cancel the insurance. When the letter reached insured’s home, he was unconscious and died the next day, but, after his death, the widow remitted to defendant the amount of the note. Held, that defendant had waived the forfeiture, and was liable on the policy.</p> <p>3. Same — Powers of Agents. — A provision in a life policy that no alteration or waiver of any of the conditions of the policy shall be valid, unless made in writing and signed by an officer of the company, may be waived by a general agent of the company for the State.</p> <p>ON REHEARING.</p> <p>4. Forfeiture — Recovery of Premium. — Where a life policy provides that it shall be void if any premium note is not paid when due, insurer, after the maturity of a premium, demanding payment thereof, is' estopped to insist on a forfeiture of the policy. ,*</p>

<p>1. Depositories — States—Public Funds — Contract—Termination.— Under Ky. St. 1903, section 4692, prescribing the manner of designating a State depository, but silent as to how long the depository shall act as such, in the absence of an agreement specifically fixing the time, the relation continues during the mutual will of the State Treasurer and-the depository designated.</p> <p>„2. Same — Notice.—Where an agreement appointing a bank a State depository contained no provision for its termination, it was terminable only by notice, on the part of the Treasurer, that he elected to withdraw the deposit, or by the bank that it desired to be relieved from its responsibility and tender of the existing deposit.</p> <p>3. Same — Bonds to Secure Deposits — Renewal.—Where a bank’s bond to secure State deposits covered any delinquency of the bank, during such time as it should act, and contained the bank’s agreement to pay ,2% per cent, interest on daily balances, a renewal bond in the succeeding year did not relieve the obligors in the first bond from liability to the Commonwealth, as Ky. St. 1903, section 4693, providing for renewal bond was only to protect the State’s interest.</p> <p>■4, Same — Liability for Interest. — Where when a bank refused to execute a renewal bond as State depository because of a contest for the office of State Treasurer, it was acting under a subsisting bond calling for 2% per cent, interest on daily balances and no new bond was required, the bank having continued to act as State depository during such contest was liable for the agreed interest on the deposits during such period, notwithstanding it deemed it unsafe to use the deposits during such time.</p>

<p>CASE 74. — PROCEEDINGS BY THE COMMONWEALTH FOR DISBARMENT OF C. C. ROE, A PRACTICING ATTORNEY. — October 8.</p> <p>Appeal from Jefferson Circuit Court (C. P. Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Prom a judgment of dismissal, the Commonwealth appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An information supported by affidavits and a motion for a rule against the defendant to show cause why he should not be disbarred is the proper way to proceed in disbarment proceedings for acts which do not occur in the presence of the court. (4 Cyc., 915; Randall v. Bingham, 7 Wall., 523; Barr Ass’n City of Boston v. Greenhood, (Mass.), 46 N. E., 568; Walker v. Commonwealth, 8 Bush, 86; Turner v. Commonwealth, 2 Met., 619.)</p> <p>2. Information properly brought in name of Commonwealth. (Wilson v. Popham, 91 Ky., 327; Commonwealth v. Richie, 24 Ky. Law Rep., 218.) As Ky. Statutes, section 104 gives no new right the remedy there prescribed is not exclusive. (Richardson v. People’s Life & Accident Insurance Co., 28 Ky. Law Rep., 919; 92 S. W., 284.)</p> <p>3. It has always been -one of the inherent powers of the courts in Kentucky to disbar an attorney. (Wilson v. Commonwealth, - Ky., -; 33 Ky. Law Rep., 143.)</p> <p>4. The information alleges facts sufficient to show defendant should no longer be allowed to practice as an attorney. (Baker v. Commonwealth, 10 Bush, 592; Tudor v. Commonwealth, 27 Law Rep., 87, 84 S. W., 522).</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An information must be supported in every particular by affidavit. (Walker v. Commonwealth, 18 Bush, 86; Rice v. Commonwealth, 18 B. Mon., 472.)</p> <p>2. The information is filed in the name of the wrong party. (Wilson v. Popham, 91 Ky., 327).</p> <p>3. The information is fatally defective in not charging that the money was demanded of the attorney in the county of his residence and in not stating in what county the money was collected. (Wilson v. Popham, 91 Ky., 327.)</p> <p>4. As the affidavit must support- the information in every particular, it is defective for the same reason. -See same case.</p> <p>5. Where a statute prescribes causes for which an attorney may be disbarred, the court cannot disbar him for any cause not specified in statute. (Ex. P. Smith, 28 Ind., 47; Redmond v. State, 28 Ind., 207; In Re Eaton, 62 N. W. R., (N. Dab.), 597).</p>

<p>1. Appeal 'and Error — Verdict—Amount of Recovery. — Where a. verdict appears to be the result of the jury’s honest judgment, and not of passion or prejudice, it will not be disturbed on appeal as allowing an excessive recovery.</p> <p>2. Carriers — Transportation of Horses — Action of Injuries — Negligence — Evidence.—Evidence held to show that horses were injured during transportation by the carrier’s negligent handling of the car in its switching yard.</p> <p>3. Carriers — Carriage of Live Stock — Liability of Carrier. — A carrier undertaking to transport live stock becomes an insurer of its safe delivery, except where injury or loss results from the act of God or the public enemy, or from the inherent nature, propensities, or viciousness of the animals.</p> <p>4. Continuance — Absence of Witness — Discretion of Court — Diligence. — Where an affidavit in support of a motion for a continuance on the principal ground of defendant’s lack of time to prepare its defense named a witness who would testify to' facts which were admitted in evidence in a deposition, and' stated that there were other witnesses who would testify for defendant, without naming them or stating what they would testify to, and it appeared that plaintiff’s claim was known to defendant several days before suit was brought and two weeks prior to the beginning of the trial term of court, and it did not appear that defendant had taken any steps to procure the-attendance of witnesses, the affidavit did; not sufficiently show-diligence, and the court acted within its discretion in denying-the continuance.</p>

<p>CASE 76. — ACTION BY FRANCIS F. PALMS’ ADMINISTRATORS AGAINST CALLOWAY HOWARD TO RECOVER MONEY PAID DEFENDANT FOR LEGAL SERVICES. —October 7.</p> <p>Appeal from Magoffin Circuit Court.</p> <p>James P. Adams, Circuit Judge.</p> <p>Judgment for defendant, plaintiffs appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court erred in refusing to transfer the case to the ordinary docket. * . .</p> <p>2. The court erred in refusing to continue the case for appellant.</p> <p>3. The court erred in restricting appellants in their rebuttal evidence.</p> <p>4. Also in calling term so soon after the regular term.</p> <p>5. Also in not allowing the affidavit of appellants’ attorney to be read as a deposition.</p> <p>6. Also in giving appellee a judgment on his counterclaim.</p> <p>7. Also in overruling appellants’ motion for a jury to try the ■questions of fact.</p> <p>AUTHORITIES CITED.</p> <p>Henry v. Vance, &c., Ill Ky. Law Rep., 772; Ruffner v. Ridley, '81 Ky. Law Rep., 166; Prewitt v. Trimble, 92 Ky. Law Rep., 176; 12 Bush, 726; Birch v. Nichols, &c., 26 Ky. Law Rep., 264; 'Story’s Equity Jurisprudence, 210,* 219, 192; Greenleaf on Evidence, vol. 3, sec. 253; Weeks on Attorneys, p. 533, sec. 258, '259; Weeks on Attorneys, p. 536, sec. 262, p, 531, sec. 258; Smith v. Thompson, 7 B. Mon., 308; Hill v. Phillips, 87 Ky., 169; Weeks on Attorneys, 558; Meeks v. McCall, 80 Ky., 278; 'Cader ■and Valandingham v. Wessenburgh, 95 Ky., 136; 13 Bush, 424; Chamberlin , v. McCulister, &c., 6 Dana, 352; 25 Ky. Law Reporter, 1875.</p> <p>AUTHORITIES CITED.</p> <p>Í. A party who is himself guilty of wrong cannot obtain relief in a, court of equity on account of the fraud or wrong of another in connection with the same transaction. (Cyc. of Law, vol. 16, p. 144; Newstadt v. Hall, 58 111., 172; Bacon v. Early, 116 Iowa, 532; Lowton v. Estes, 167 Mass., 181; Richardson v. Walton, 49 Fed. Rep., 88; Cyc. of Law, vol. 16, p. Í45; Bagwell v. Johnson. 116 Ga„ 464; Kassing v. Durand, 41 111., App., 93; Wright v Wright, 2 Litt., 8; O’Conner v. Ryan, 9 Ohio Dec., 575; Hukell v. Gorder, 189 Pa. St. 233; James v. Bird, 8 Leigh (Va.), 510; Northup v. Phillips, 99 111., 449; McClure v. Purcell, 3 A. K. Mar.. 61; Pineville Land & Lumber Co. v. Hollingsworth, 53 S. W. (Ky.), 279; American Association v. Innis Co., 60 S. W., (Ky.), 388; Oneal v. Finwick, 64 S. W., 952).</p> <p>2. Upon a partial transcript judgment must be affirmed. (Huffaker v. National Bank, 13 Bush, 64; Percif'ul v. Hurd’s heirs, 5 J. J. Mar., 670; Dougherty v. Ringo, 7 Ky. Law Rep., 360; Terrill v. Rowland, 4 S. W. (Ky.), 825; Park v. Bolinger, 10 Ky. Law Rep., 303; Brockle- v. Brockle, 7 Ky. Law Rep., 760; Brossfield v. Burgess, 10 S. W. (Ky.), 122; Whitefield v. Hippie, 12 S. W. (Ky.l, 150; Stucky v. Brown, 11 Ky. Law Rep., 404; Bright v. Buhr’s Adm’r, 11 Ky. Law Rep., 579; Taders’ Deposit Bank v. MeGuair, 13 Ky. Lajv Rep., 95; Jones v. Jackson, 16 S. W., (Ky.) 458; Scott v. Means, etc., 19 S. W. (Ky.), 189; Bradford v. Bradford, 15 Ky. Law Rep., 61; Bean v. Meguiar, 29 S. W., (Ky.) 306; May v. Ewing, 29 S. W., (Ky.) 634; Courier Journal Job Printing Co. v. Cplumbia Fire Ins. Co., 54 S. W., (Ky.) 966; Bowman v. Moss,. 77 S. W., (Ky.) 184; Whitt v. Napier, 101 S. W., (Ky.) 887; Keene v. Whitaker, 38 U. S., 459; City of Chicago v. McLean, 35. 111. App., 273; Dow v. Northern Land & Loan Co., 51 Minn., 326; Williams v. Grant, 28 Ala.; City of Wayeross v. Neal, 94 Ga., ,731; Napier v. Wiseman, 3 G. Greene, (la.) 246; Attorney General y. Williams, 140 Mass., 329; Gwinn v. Williams, 27 Miss., 324; Hyndman v. Hogsett, 111 Pa. St., 643; International & G. N. R. Co. v. Folliard, 9 S. W.,« (Tex.) 259).</p> <p>3. The judgment, of the chan’cellor is entitled to as much weight as the verdict of a properly instructed jury, and where there is any evidence to sustain it, it will not be disturbed. (Owing v. Gray, 2 A. K. Mar., 520; Bagby v. Lewis, 2 T. B. Mon., 76; Rooch v. Wade, 2 T. B. Mon., 142; Garrard v. .White, 14 S. W.,.966; Hampton v. Meek, 12 Ky. Law Rep., 79Ó; Swope v. Shafer, 15-JKy. Law Rep., 42; Hall v. Roberts, 74 S. W„ 200; Wilson r. Johnson’s Adm’x, 96 S. W., 529; Whiteworth v. Pool, 96 S. W, 800).</p>

<p>CASE 77 — ACTION BY FARMERS’ BANK OF WICKLIFFE AGAINST THE CITY OF WICKLIFFE. — October 8.</p> <p>Appeal xrom Ballard Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Prom a judgment dismissing the petition the plaintiff appeals —</p>

<p>CASE 78. — ACTION BY CLARENCE C. CLAYPOOL AGAINST THE CONTINENTAL CASUALTY COMPANY ON AN ACCIDENT INSURANCE POLICY. — October 8.</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The matter of fraud alleged in the answer presented no defense, and the lower court erred in transferring the case to equity.</p> <p>2. The defense that the plaintiff in his application for Commercial policy No. 834133, fraudulently represented that his weekly earnings exceeded his weekly indemnity under the policy, is not available in a suit for the loss of life or limb. (Aetna Insurance Co. v. Claypool, 107 S. W. 325.)</p> <p>3. When pplication is made for insurance and the insurer accepts the remittance sent therewith, and applies same to payment of the premium, the contract of insurance thereupon becomes complete, and can not be rescinded except by mutual consent of the parties. (Hartford Life Ins. Co. v. Milet, 105 S. W., 144.)</p> <p>4. Proof of claim under wrong policy, made by mistake of another, without the knowledge or consent of the insured, would be no bar to recovery on the proper policy, and could in no event work estoppel.</p> <p>5. The issue as to whether the plaintiff unnecessarily exposed himself to the obvious risk of danger, having been found .by the jury favorable to the plaintiff, the court will not disturb the finding. (Aetna Ins. Co. v. Claypool, 107 S. W., 325.) The case of Aetna v.. Claypool was tried on same evidence as the case at bar.</p> <p>6. Where a jury trial is demanded upon a legal issue to be tried out of chancery, the finding of the jury is binding upon the court, and the court must either render judgment according to the finding, or set aside the finding of the jury and grant a new trial when the verdict is palpably against the evidence. The court can not ignore the verdict of the jury and decide the fact himself. (Morawick v. Martineck, 107 S. W., 759.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The appellant and appellee agreed that the pap'er sued on should not become effective until the application was received, examined and approved and the policy written up, signed by the policy-writer, and delivered. When this was done the appellant had lost that part of his body for the loss of which this suit was brought. The minds of the parties had not met and there was no contract. (Parson on Contracts, vol. 1, p. 476; N. Y. Life Ins. Co. v. Long's Admr., 26 Ky. L. F.; Dickey v. Continental Casualty Co.„ 89 S. W., 436, p. 6.)</p> <p>2. There was no finding of the jury that would have authorized a verdict for appellant.</p> <p>3. The court, did not err in transferring the cause to equity nor in giving judgment for appellee.</p> <p>4 It was the duty of the lower court and of this court to disregard any error or defect in the proceedings which did not affect the substantial rights of the appellant. (Civil Code, sections 134 and 756.)</p>

<p>1. Landlord, and Tenant — Notice to Quit — Waiver.—Notice to a. tenant to quit is waived by the landlord giving a subsequent' notice, fixing a later date for a surrender of the premises.</p> <p>2. Forcible Entry and Detainer — Notice to Quit. — A tenant under an indefinite tenancy, the term beginning the seventh day of the month, was not guilty of forcible detainer until June1 7th, though 30 days’ notice to quit was given April 15th, since a landlord cannot change the rental day nor the terms of the tenancy.</p>

<p>CASE 80. — ACTION BY MINNIE LEUCHT AGAINST BARBARA LEUCHT FOR ALIENATION OF HER HUSBAND’S AFFECTIONS. — October 8.</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD. Shaw, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals. —</p> <p>CLASSIFICATION UNDER RULE XVII.</p> <p>1. The court erred in permitting the contradiction of appellant tin matters irrelevant and immaterial to the issue. (Kennedy v. Commonwealth, 14 Bush, 357; Loving v. Commonwealth, 30 Ky., 651.)</p> <p>2. The court erred in refusing to admit proof of the divorce proceeding instituted by the husband against his wife.</p> <p>3. The court erred in admitting the testimony of Charles Hardebeck.</p> <p>4. The court erred in its construction of section 606 of the Code.</p> <p>(a.) The Legislature intended to enact the common law rule and the Code should be construed in the light of the common law construction. (Greenleaf, section 254; 6 Ency. of Evd.; 894; Arnett v. Commonwealth, 114 Ky., 593; Shepard v. Commonwealth, 85 S. W., 191; 28 Ky. Law Rep., 376; Ditto v. Slaughter, 92 S, W., 2; 28 Ky. Law Rep., 1164.)</p> <p>(b.) The Legislative purpose is entirely out of harmony with a construction excluding all communications between husband and wife. Statutes of other states identical in language with section 606 of our Code have been construed so as to express the common law rule. (Wigmore on Evidence, sec. 2336; Sexton v. Sexton, 129 Iowa, 387; Hardwick v. Hardwick, 130 Iowa, 230; Sackman v. Thomas, 24 Wash.,, 660; Hageman v. Wignett, 10S Mich., 194; In Re Van Alstine, 26 Utah, 198; Spivey v. Platon’s Admr., 29 Ark., 60S; Insurance Co. v. Shoemaker, 95 Tenn., 72; Stanley v. Stanley, 112 Ind., 143; Poulson v. Stanley, 122 Cal., 655.)</p> <p>(c.) The exceptions mentioned in section 606 of the Code qualify the rule prohibiting husband and wife from testifying against one another and not the rule relating to communications between husband and wife.</p> <p>5. Only confidential or marital communications are excluded under our Code.</p> <p>(a.) Communications made in the known presence of third parties are not confidential. (Sessions v. Trevitt, 390 S. W., 267; Fay v. Guynon, 131 Mass., 31; Insurance Company v. Shoemaker, 95 Tenn., 72; Re Buckkman, 64 Vt., 314; Lyons v. Prouty, 154 Mass., 490; Long v. Martin, 152 Mo., 674.)</p> <p>(b.) Mere business transactions cannot be considered privileged. (Dittoe v. Slaughter, 92 S. (Ky.) 2; Gordon Rankin Co. v. Tweedy,-71 Ala., 210; Gidding v. Savings Bank, 104 Iowa, 679; Cook v. Henry, 25 Wis., 570; Spivey v. Platon’s Admr., 29 Ark., 605; Parkhurst v. Bardell, 110 N. Y., 222; Hageman v. Wignett, 108 Mich., 194.)</p> <p>(c.) Mistreatment of wife by the husband cannot be considered privileged. (Seitz v. Seitz, 170 Pa. St., 71; Polsen v. State, 137 Ind., 524; Rudd v. Rounds, 64 Vt., 441; State v. Luper, 91 Pac. (Oregon) 444; Schmeid v. Frank, 86 Ind., 250; Yowell v. Vaugh, 85 Mo. App., 206.)</p> <p>CONCLUSION.</p> <p>The judgment of the lower court should be sustained, because there was no error committed:</p> <p>I. In permitting appellee to prove by the workmen, Whitcomb, Atkinson, and. others, that appellant had herseli paid them for work done for the family, thus showing, the confidence and trust confided in appellant by the husband in permitting her to handle and disburse the money of the household.</p> <p>2. In excluding the record of the action for divorce by the husband. Appellant having failed to make the rejected record a part of the record of this case this court has nothing before it upon which to determine whether or not an error was committed.</p> <p>3. In overruling appellant's objection to the testimony of the witness, Charles Hardebeck. Any testimony which tended to show the state of the wife’s feelings toward her husband, was clearly admissible upon the measure of damages.</p> <p>4. In excluding all testimony of wife of communications between husband and wife. This testimony was rightly ■ excluded because: First, the Civil Code expressly provides, that husband and wife cannot testify as to any communication between them during marriage or afterwards; second, because our courts have held that “Any Communication” means in effect “All Communications;” third, because our Statute having expressly provided the exceptions as to which the privilege shall not apply, should be taken as excluding all other exceptions against the rule; fourth, because the construction placed upon section 606 of the Civil Code is supported by the weight of authority in other states, and is the only logical construction that could be placed upon the section; fifth, because the declarations sought to be testified to were narrations of'past occurrences, and excluded under the rule against hearsay testimony; sixth, in limiting the use to which the declarations of husband to third parties might be •applied.</p> <p>AUTHORITIES CITED.</p> <p>Greenleaf on Evidence, 16th ed., 443 B. — 254; Wharton on Evidence, 3rd ed., 559, 259; Phillips on Evidence, 3rd ed., 189; sec. •606 Civil Code of Kentucky; Commonwealth v. Minor, 89 Ky., 555; Hilbert, Jr., v. Commonwealth, 21 Ky. Law Rep., 537; Arnett v. Commonwealth, 114 Ky., 596; Bright v. Commonwealth, 86 S. W., 527; 27 Ky. Law Rep., 677; State v. Luper, 91 Pac. 444 (Oregon); Manhattan Life Ins. Co. v. Beard, 66 S. W., 35; 23 Ky. Law Rep., 1747; Buckel, et al., v. Smith’s Admr., 82 S. W., 235; 26 Ky Law Rep., 494; New York Life Ins. Co. v. Johnson, Admr., 72 S. W., 762; 24 Ky. Law Rep., 1867; Ency. of Evd., vol. 6, p. 894; Saekman v. Thomas, 24 Wash., 660; Hageman v. Wigent, 108 Mich., 192; Chattock v. Chattock, 134 Mich., 49; Van Alstine, 26 Utah, 193; Spivey, et al., v. Platon’s Admr., 29 Ark., 603; Hanna-ford, et al., v. Dawdly, et al., 86 S. W., 818; Insurance Co. v. Shoemaker, 95 Tenn., 72; Brewer v. Ferguson, 30 Team, 565; Atanley v. Stanley, 112 Ind., 145; Poison v. State, 137 Ind., 824; Smith v. Smith, 77 Ind., 82; Schmeid v. Frank, 86 Ind., 250; Higham v. Vanosdol, 101 Ind., 160; Poulson v. Stanley, Admr., 122 Cal., 655; Emons v. Barton, 109 Cal., 663; Dolan v. Leary, et al., 68 N. Y. S., 91; People v. Hayes, 140 N. Y., 484; State Bank of Chatham N. Y. v. Hutchison, et al., 61 Pac , 443 (Kan.); Chicago, Kan. & Neb. Ry. Co. v. Ellis, 52 Kan., 41; Godrum v. State of Georgia, 60 Ga., 509; Dodge v. Rush, 28 App. D. C., 149; Yokem by Guardian, &c., v. R. T. Hicks Admr., et al., 93 111. App., 667; Leveridge, et al., v. Evans, et ux., 86 N. W., 283 (Iowa); White v: White, et al., 112 N. W., 627 (Minn.); State v. Ulrich, 110 Mo., 364; Stiles v. State, 68 S. W„ 993 (Texas); Robin, et al., v. King, 2 Leighs Rep. Ct. App. Va., 140; Am. & Eng. Ency. of Law, vol. 212, p. 99 (1st ed.); Greenleaf on Evidence, vol. 1, sec. 110 (14th ed.); Westlake v. Westlake, 34 Ohio St., 634; Derham v. Derham, 1225 Mich., 109; Huling v. Huling, 32 111. App., 520; Love v. Love, 90 Mo. App., 571; Stanley v. Stanley, 27 Wash., 574; Preston v. Bowers, 13 Ohio St., 1; Bryon Edgell Lewis Francis, 66 Mich., 303; Billings v. Albright, 66 N. Y. App. Div., 239; Hardwick v. Hardwick, 106 N. Y„ 639 (Iowa); Humphrey v. Pope, 82 Pac., 223; Williams v. Williams, 20 Col., 52; Tenney v. Evans, W N. H., 343; Sessions v. Little, 9 N. H., 271; Sexton v. Sexton, 105 N. W„ 314 (Iowa 1905); Nevins v. Nevins, 75 Pa., 492 (Kan.); Edgell v. Francis, 66 Mich., 303.</p>

<p>1. Criminal Law — Appeal—Dismissal Improper — Plea of Guilty.— One appealing to the circuit court from a conviction of disturbing the peace on a plea of guilty had the right to introduce evidence to mitigate the punishment without attempting to withdraw the plea; the magistrate having fixed the punishment at the maximum limit.</p> <p>2.Same — Plea of Guilty — Effect.—A plea of guilty in justice court of disturbing the peace did not prevent accused from appealing to the circuit court, nor deprive her of the right to a trial de ,novo expressly provided for hy Crim. Code Prac. sections 174, 366; she having the right to withdraw her plea at any time during her trial in the circuit court.</p> <p>2. Same — Evidence—Duress.—Where, in a trial de novo in the ‘circuit court on accused’s appeal from a conviction in justice court, the Commonwealth introduces as tending to show guilt a plea of guilty in justice court, accused can show that the plea was obtained through duress.</p>

<p>1. Burglary — Statutes—Construction.—Ky. Stats. 1903, section 1163, punishing any person forcibly breaking and entering into any railroad ear with intent to steal, etc., does not authorize a conviction for the breaking of a car with intent to steal, but the prosecution must show an entry for that purpose, though an entry, however slight, such as putting the hand through an opening with intent to steal, is sufficient, but proof that accused cut the seal on the car door and slid it back a little, and then pushed the door back in place and. walked away, is insufficient.</p> <p>2. Indictment and Information — Included Offenses — Statutes.— Under Crim. Code Prac., section 264, providing that, where an indictment charges- an offense to have been committed with particular circumstances as to time, place, or intent, the offense without the circtímstances or with part only is-included, the court on the trial for a violation of Ky. Stats. 1903, section 1163, punishing the forcibly breaking and entering a railroad car with intent to steal, on evidence that, accused cut the seal on the car door, slid it back a little, then pushed the door back in place, and walked away, should, instruct the jury on trespass as defined in section 1256.</p>

<p>1. Courts — Inferior Courts — Statutes—Constitutional Provisions —“City and Town.” — Constitution, sections 109, 135, 143, vesting the judicial power in designated courts, and authorizing the establishment of a police court in each “city and town,” and declaring that all laws inconsistent with the Constitution shall cease on its adoption, repeal so much of the charter of the district of Clifton as provides for a police court thereof; the words, “city and town” referring to cities and towns classified by section 143.</p> <p>2. Prohibition — Office of Writ — “Writ of Prohibition.” — Under Civil Code Prac., section 479, defining the “writ of prohibition” as an order to an inferior court to prevent the usurpation and Crim. Code Prac., section 25, authorizing the circuit court, by writ of prohibition, io restrain other courts of inferior jurisdiction from exceeding their criminal jurisdiction, to prevent one, claiming to oe police judge of a district, from executing a judgmnt of his court for a fine and costs, where the provision creating the police court has been repealed.</p>

<p>CASE 84. — ACTION BY C. F. GARNETT AND OTHERS AGAINST H. F. DUNN AND ANOTHER TO RECOVER LAND.— October 13.</p> <p>Appeal from Barren Circuit Court.</p> <p>S. E. Jones, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal —</p> <p>1. It is shown by the record that appellees are children of Eva a slave, born during' slavery, and claiming Jordan Garnett to be their father, and the burden is upon them to show that they are the “issue of a customary marriage of negroes Eva and Jordan” before they shall be held to be legitimate, in order to enable them to inherit from Jordan, their putative father.</p> <p>2. We insist that the evidence fails to disclose a marriage or such recognition by them as husband and wife, to authorize a recovery by plaintiffs of land owned by Jordan Garnett at the time of his death. (Botts v. Botts, 108 Ky., 418; Brown v. McGee, &c., 12 Bush, 432.)</p> <p>SUBJECTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. Marriages may be proven by hearsay evidence. (Cozier v. Gans and Wife, 1 Bibb, 357; Stover v. Boswell Heirs, 3 Dana, 232; Taylor and Tisdale v. Shemwell, 4 B. Mon., 575; Kuhl v. Knauer, 7 B. Mon., 130; Birney v. Hann, 3 A. K. M., 322; Chiles v. Drake, 2 Met., 146; Chancellor v. Milly, 9 Dana, 22; Boots v. Boots, 22 Ky. Law Rep., 212.)</p> <p>2. The law presumes- marriage. Dannelli v. Danelli, 4 Bush, 51; Strode v. Magowan, Heirs, 2 Bush, 621; Boots v. Boots, 22 Ky. Law Rep., 212; Talbott v. Owen, 29 Ky. Law Rep., 550.)</p>

<p>CASE 85. — ACTION BY MARY J. MORGAN AGATNST THE CHESAPEAKE & OHIO RAILWAY COMPANY AND OTHERS FOR PERSONAL INJURIES. — October 13.</p> <p>Appeal from Lewis Circuit Court.</p> <p>S. G. Kinner, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The verdict of the jury is flagrantly against the evidence. A jury’s verdict which is supported only by a presumption and which is contrary to all the direct and uncontradicted evidence introduced, cannot be sustained upon the theory of conflicting evidence. (Ky. Cent. R. Co. v. Talbot, 78 Ky., 621; N. N. & M. V. R. Co. v. Mitchell, 33 S. W., 622; McGhee v. Guyn, 98 Ky., 209; McGhee v. Gaines, 98 Ky., 182; Mobile, etc. Ry. Co. v. Whayne, 64 S. W., 723; I. C. R. Co. v. Gholson, 66 S. W., 1018; L. & E. Mail Co. v. Gilliland, 72 S. W., 1102; Louisville, etc. Ry. Co. v. Hall, 94 S. W., 26.)</p> <p>2. Instruction number one is erroneous in so far as it permits recovery for negligence not relied upon in the pleadings. (L. & N. R. Co. v. McGary’s Admr., 104 Ky., 509, 47 S. W., 440; Edwards v. C. & ,0. Ry. Co., 108 S. W., 303; Gaines v. Johnson, 105 S. W., 381; I. C. R. Co. v. Vinson, 74 S. W., 671; Sandy River Cannel Coal Co. v. Caudill, 60 S. W., 180; Chums v. K. & I. Bidge Co., 64 S. W„ 649; L. & N. R. Co. v. Penrod, 56 S. W., 1, 108 Ky., 172; L. & N. R. Co. v. Clark, 105 Ky., 571, 49 S. W., 323; Thomas v. L. & N. R. Co., 35 S. W., 910; Green v. L. & N. R. Co., 94 Ky., 169; McCain v. L. & N. R. Co., 18 S. W., 537.)</p> <p>We submit that the verdict of a jury properly instructed is ■conclusive, if there is any evidence to sustain it, and where evidence is circumstantial and convincing the verdict will not be set asido. (Sharpe v. Wickliffe, 3 Litt., 10 Ky. Digest, vol. 1, section 511-12.</p>

<p>CASE 86. — ACTION BY THE COMMONWEALTH BY T. C. HALTEMAN, REVENUE AGENT, AGAINST THE MORRELL REFRIGERATOR CAR COMPANY, TO RECOVER A PENALTY. — October 13.</p> <p>• Appeal from Carlisle Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>From a judgment of dismissal plaintiff appeals—</p> <p>1. We submit that under section 4263, Ky. Stats.; the auditor’s agent had the right to institute an action to recover of appellee the penalty sued for in this action. This right is not confined to proceedings against diligent officers but he may proceed against any person from whom money is due to the Commonwealth. As to whether the auditor directed his agent to institute the suit or not is not a jurisdictional fact and cannot be-raised by special demurrer. The presumption is that the agent has done his duty and acted within his authority.</p> <p>2. We submit that the judgment sustaining the special demurrer and dismissing the petition is erroneous and should be reversed.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., 4078, 4087, 4263; Cr. Cede, sec. 11; Civ. Code, sec. 63; Portland Rry Dock Co. v. Trustees of Portland, 12 B. Mon., 77; Economy B. & L. Co. v. Paris M’f’g Co., 68 S. W., 211; Comlth. v. Central B. & L. Co., 97 Ky., 325; Comlth. v. Sherman, 85 Ky., 686; Com. v. Avery, 14 Bush, 625.</p> <p>SUMMARY.</p> <p>1. The special demurrer in this action was properly sustained. Because the revenue agent had no authority, and the petition shows no cause of action, giving him a right to sue as a co-plaintiff in this action. In all actions and proceedings enumerated which a revenue agent can institute he is merely the agent of the Commonwealth, and not a co-plaintiff. (Ky. Statutes, 4263; Commonwealth v. Southern Pacific Co., 32 Ky. Law Rep., 285; Commonwealth v. Bacon, 31 Ky. Law Rep., 472.)</p> <p>2. Because the Carlisle county circuit court has no jurisdiction over this offense—</p> <p>(a) Because actions must be brought in the county where the cause of action arose. (Code 63.)</p> <p>(b) This was a non-feasance committed in Franklin county, which court has sole jurisdiction. (Louisville & Jeffersonville Ferry Company v. Commonwealth, 104 Ky., 726, 20 Ky. Law Rep., 927; Louisville Tobacco Warehouse Company v. Commonwealth, 106 Ky., 165, 20 Ky. Law Rep., 1047; Suburban Electric Company v. - Commonwealth, 21 Ky. Law Rep., 1556.)</p> <p>(c) Non-feasances are punishable in the courts of the county where the non-feasance was committed. McBride v. CommonWealth, 4 Bush,- 331; Commonwealth v. Kinnaird, 18 Ky. Law Rep., 647; Commonwealth v. Boyle County Fiscal Court, 113 Ky., 325.) ...</p> <p>3. The cases cited by appellants to support the contention that the Carlisle circuit court has jurisdiction are not similar to the present one, but are for the affirmative offense of doing business without a license, and doing business without previously filing a report, and not for a non-feasance. (Commonwealth v. Grand Central Building & Loan Association, 97 Ky., 325; Commonwealth v. Sherman, 85 Ky., 686; Commonwealth v. Avery, 14 Bush, 625, Ky. Stat., 571; “Act for incorporation and regulation of Life Insurance Companies,” affirmed March 12, 1870, section 42.)</p> <p>4. Because the record shows this action to have been brought by a revenue agent, and a revenue agent has no capacity to bring a penal action to punish a misdemeanor, such as the present action is. • The Commonwealth’s attorney is the only person who can bring such an action. (Ky. Stats., 118, 4261, 4263; Louisville & Jeffersonville Bridge Co. v. Commonwealth, 104 Ky., 726, 20 Ky. Law Rep., 927; Louisville Tobacco Warehouse Company v. Commonwealth, 106 Ky., 165, 20 Ky. Law Rep., 1047; Suburban Electric Company v. Commonwealth, 21 Ky. Law Rep., 1556.)</p> <p>5. The motion to quash in this action should have been sustained.</p> <p>(a) That served upon Hon. R. J. Bugg, because his uncontradicted affidavit and the record show that prior to the service thereof upon him he had ceased to be an officer of the defendant upon whom process could be served, and his successor had been appointed under all the requirements of sections 571, Kentucky Statutes.</p> <p>(b) That served upon R. E. Kane, because by his uncontroverted affidavit and the record it is shown that the defendant corporation had been duly dissolved before the service thereof upon him, and because this character of penal action for punishing a misdemeanor does not survive under section 561 Ky. Statutes.</p> <p>(c) Taking depositions in this case cannot revive a dissolved and non-existent corporation, and any attempt to do so must of necessity be unauthorized and void.</p>

<p>1. Licenses — Mercantile Business — Sales of Oil From Wagons— “Peddling” — Transactions Distinguished. — Sales of oil delivered from wagons to retail dealers for resale are within Ky. St. 1903, section 4224, requiring payment of an annual license fee of $5 for each wagon; but sales from wagons to others than retail dealers constitute “peddling” within section 4215, requiring peddlers to take out licenses.</p> <p>2. Statutes — Construction—Criminal Statutes. — Criminal statutes should never be so construed as to punish those who have honestly conformed to the law as declared by the proper authorities; and, when a certain thing has been held by the Supreme Court to be allowable under a statute, refined distinction should never be made to bring within the statute persons who honestly acted in conformity to the rule declared.</p> <p>3. Hawkers and Peddlers — Who are “Peddlers” — Licenses—Oil Companies. — Am oil company, which fills tanks of regular customers every week under a standing order, is not a “peddler,” within Ky. St. 1903, section 4215, requiring “peddlers” to take out licenses.</p> <p>4. Same — “Peddling.”—Mere delivery of goods to a customer is not “peddling,” within Ky. St. 1903, section 4215, requiring peddlers to take out licenses; “peddling,” consisting in hawking goods about and offering and selling to any one who will buy.</p> <p>5. Same — “Selling by Sample.” — The words “selling by sample,” as used in Ky. St. 1903, section 4218, which provides that “agents for selling by sample” shall not be considered as peddlers, mean taking orders for future delivery, as the commercial traveler does.</p>

<p>CASE 88. — FORCIBLE DETAINER PROCEEDING BY OWEN COUNTY. BY ITS FISCAL COURT. AGAINST F. C. GREENE TO RECOVER POSSESSION OF A ROOM IN ITS COURT HOUSE. — October 14.</p> <p>Appeal from Owen Circuit Court.</p> <p>J. W. Cammack, Circuit Judge.</p> <p>Judgment for defendant on demurrer. Plaintiff appeals. —</p> <p>While it is conceded that the jailer has power to institute legal proceedings to recover possession of public property, in the name of the county, this power is not in him exclusively, but is only co-ordinate with that of the county acting through its fiscal court. The county is a quasi public corporation, and under Ky. Stats., section 1834, its corporate powers are exercised by the fiscal court unless otherwise provided by law. (Ky. Statutes, 1834, 1840, 3948.)</p> <p>We have been unable to find any law regulating such proceedings other than section 3948, Ky. Statutes, which is plain, positive and unequivocal and which provides: “He (the jailer) shall have the power and it shall be his duty to institute and carry on the appropriate civil procedure in the name of the county to recover possession of, etc.” The fiscal court as we understand it, may direct the jailer to sue'out the warrant of forcible detainer, which, was not done in the case at bar, and for this reason we think the circuit judge properly sustained the special demurrer, based on the idea that the county has not the legal capacity to maintain, the action.</p>

<p>CASE 89. — ACTION BETWEEN THE HOME SAVINGS FUND-COMPANY BUILDING ASSOCIATION AND H. B. DRIVER, &C., INVOLVING THE RIGHT OF THE ASSOCIATION TO ACQUIRE AND HOLD CERTAIN-REAL ESTATE — October 14.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment, the association appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The provisions of chapter 32 relative to corporations generally do not embrace building and loan associations. Section 192, Constitution; Chapter 32, sections 567, 538, 582, 612, 632, 685, Ky. Statutes.)</p> <p>2. Section 870 of Kentucky Statutes restricts such, corporations-to real estate referred to in said action. (Ky. Stats., 870; GloboBuilding & Loan. Co.’s Assignee v. Wood, &c., 110 Ky., 4.)</p> <p>3. The right to own real estate is purely statutory. (Thornton. & Blackledge on Building & Loan Assns., 400; Cyc. vol. 6, p. 120, 140; A. & E. Encyc. vol. 4, pp. 1025, 1026; Illinois Revised Stat.,. (Stau and Curtis) 1896, pp. 1046-1054.)</p> <p>4. Section 863 povides what disposition shall be made of moneys-accumulated and there being no provision for investments contemplated herein the appellant has no authority to divert the funds. (Ky. Stats., 854, 863.)</p> <p>5. The Constitutional and statutory provisions concerning the' ownership of real estate for business purposes forbid the use.of more ground than is absolutely necessary for the construction of a new building or remodeling of the old improvements would be such an investment of funds not contemplated by the framers, of that portion of act relative to building and loan associations.</p> <p>6. The provisions of section 870, under any construction forbid, the holding of real estate by corporations of character of appellant, for a longer period than five years.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellant under the Statutes of Kentucky has the power to-purchase and hold real estate necessary and proper for carrying-on its legitimate business. (Ky. Stats. 538, 567, 870; Cynthiana, etc., T. P. Co. v. Hutchinson, 22 Ky. Law Rep., 1233.)</p> <p>2. Appellant has the power to use any part of its accumulated money for the purchase of any such real estate. (Ky. Stats, 863.)</p> <p>3. Appellant has the further power of erecting, remodeling and owning a building of more than sufficient capacity to accommodate-its own business and to rent out the excess. (Cyc. vol. 10, p. 1096.)-</p>

<p>Negligence- — Use of Premises — Obstructions—Liability.—An individual built a walk from the grade of the main line of a railroad to his store, 40 feet away. Two feet from the end of the walk, and about 6 inches above it, the railroad company maintained a signal wire as a necessary appendage of the railroad. A pedestrian-, who knew of the existence of the wire, was injured by coming in contact therewith. Held, that the company was not liable for the injuries sustained.</p>

<p>1. Municipal Corporations — Street Improvements — Original Construction. — A city, ordering the grading and paving of a street, a part of which had been improved by an abutting owner at his own cost on his own initiative, orders the original construction of the street, and the abutting owners may be taxed for the cost thereof.</p> <p>2. Same — “Constructed.”—A street is not “constructed,” within the law authorizing the original construction of a street at the cost of abutting owners, until its construction is prescribed by the city authorities.</p>

<p>CASE 92. — ACTION BY THOMAS VEACH’S ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY FOR NEGLIGENT DEATH.</p> <p>Appeal from Christian Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The verdict of the jury is not sustained by sufficient evidence, Is flagrantly against the weight of the evidence, and the court erred to appellant’s prejudice in not granting it a new trial on 'this ground. (L. & N. R. Co. v. McGary’s Admr., 104 Ky., 509; Hurt v. L. & N. R. Co., 116 Ky., 545; L. & N. R. Co. v. Carter, 23 Ky. Law Rep., 2020; L. E. Mail Line v. Gilliland, 24 Ky. Law Rep., 2081; L. & N. R. Co. v. Hall, 115 Ky., 567; Strother v. Jones, 20 Ky. Law Rep., 1369.)</p> <p>2. The court erred in instructing the jury that unless appellant placed some one on the leading car, in .a position to give warning of its approach to the crossing, the plaintiff could recover, all other questions aside.</p> <p>3. Instruction No. 1 requiring a lookout on the leading car was erroneous, for the further reason that it was not shown that this crossing was more dangerous than any ordinary city crossing. (L. & N. R. Co. v. Cummins’ Admr., Ill Ky., 330, 340; Hutcherson v. L. & N. R. Co., 21 Ky. Law Rep., 733.)</p> <p>4. Although a train may be negligently operated over a highway crossing, a traveler who negligently places himself on the crossing can not recover for injuries received thereat, for the injury is then due to the concurrent negligence of both parties.</p> <p>5. Instruction No. 1 is erroneous in requiring appellant to have a person on the leading car to warn “all persons approaching” said crossing. Appellant was required to give warnings to only such persons as were about to use the crossing. (L. & N. R. Co. v. Smith, 107 Ky., 178;. 2 Thompson’s Commentaries, 2485; N., N. & M. V. R. Co. v. Howard, 14 Ky. Law Rep., 476; N. Y., etc., R. Co. v. Kistler, 64 N. E. p. 134; Gahagan v. B. & M. R. Co., 55 L. R. A. 426; L. & N. R. Co. v. Redmon’s Admx., 122 Ky. pp. 396, 397, and cases cited.)</p> <p>6. Instruction No. 1 is erroneous in requiring appellant to have a person on the leading car to “give all reasonable signals” of the approach of the cars to the crossing. Appellant was required to give only such signals as were reasonably sufficient to warn a person approaching and about to use the crossing of the approach of the train. (Paducah & M. R. Co. v. Hoehl, 12 Bush, 41; L. & N. R. Co. v. Cooper, 23 Ky. Law Rep, 1658; 65 S. W., 795; L., C. & L. Ry. Co. v. Goetz’s Admr., 79 Ky. 442; Eskridge’s Exors. v. C., N. O. & T. P. Ry. Co., 89 Ky., 367; and the testimony is overwhelming that such signals were given.</p> <p>7. Instruction No. 2 is erroneous in not requiring the jury to be governed by the evidence in arriving at the compensatory damages awardable.</p> <p>8. The. court erred in qualifying Instruction No. 3. (L. & N. R. Co. v. McCombs, 21 Ky. Law Rep., 1238; L. ’& N. R.' Co. v. Molloy’s Admr., 122 Ky., 231.)</p> <p>1. The trial court did not err in overruling appellant’s motion for a peremptory instruction to the jury to find for it.</p> <p>(a) The case of Hummer’s Ext’x v. L. & N. R. R. Co., 108 S. W. 885, which is relied upon by appellant in support of its motion for peremptory instructions, is not applicable to the case at bar.</p> <p>(b) Contributory negligence will not be presumed. It must be proven and the burden of proving it is on the appellant. (Cahill v. Cin. etc. Ry. Co., 92 Ky., 345; L. & N. R. R. Co. v. Luacs’ Adm’r, 96 S. W., 309.)</p> <p>(c) The failure of a traveler to stop, look or listen, to ascertain whether a train is approaching, is not of itself proof of contributory negligence sufficient to prevent a recovery. (L. & N. R. R. Co. v. Lucas’ Adm’r, 98 S. W. 308; L. & N. R. R. Co. v. McNary’s Adm’r, 108 S. W., 898.)</p> <p>2. The verdict is sustained by sufficient evidence and is in keeping with the weight of the evidence.</p> <p>(a) There is sufficient evidence to sustain the verdict in this case even if all the evidence offered by appellee, showing that appellant’s servants failed to give the usual and customary signals, was of a negative character (which appellee denies. (L. & N. R. Co. v. Molloy’s Adm’x, 107 S. W„ 217.)</p> <p>(b) In the case at bar defendant’s position of peril was not occasioned by his own negligence, therefore he had the right to make a choice as to the means to be used to avoid the peril, and the fact that he made an unwise choice will not make him guilty of contributory negligence. (L. & N. R. R. Co. v. Molloy’s Adm’x, 107 S. W., 217.)</p> <p>3. The language of instruction No. 1 can not be construed to mean that appellee could recover unless appellant had some one on the leading car to keep a lookout.</p> <p>4. Under the facts and circumstances proven in this case the law made it tlie duty of appellant to have some one on the moving cars in such a position that he could give warning on their approach. (Shelby’s Adm’r v. Cincinnati, etc. R. Co., 85 Ky., 225; L. & N. R. R. Co. v. McNary’s Adm’r, 108 S. W., 898.)</p> <p>5. A reversal can not be had where the party complaining asked for an instruction of the same import as the instruction complained of. (L. & N. R. R. Co. v. Penrod’s Adm’ir, 66 S. W., 1013.)</p> <p>6. Instruction No. 1 correctly authorized the jury to find for plaintiff if defendant failed ’ to place some one on said moving cars in such a position as to give reasonable warning. (L. & N. R. R. Co. v. Molloy’s Adm’r, 91 S. W., 685.)</p> <p>7. Instructions taken together as a whole, properly instructs the jury as to measure of damages.</p>

<p>1. Telegraphs and Telephones — Transmission of Money — Delay— Company’s Liability. — That, through defendant telephone company’s negligent delay in transmitting money to prepare plaintiff’s daughter’s remains for transportation, plaintiff suffered great mental anguish because of the delay in transporting the remains, lost time, and expended money shows a, cause of action against the company.</p> <p>2. Same. — A telephone company cannot escape liability for negligently delaying transmission of money, sent by plaintiff for necessary use in preparing his daughter’s remains for transportation, on the theory that it is uncertain that, if the money had been promptly delivered, the sender would have prepared the remains for shipment earlier than she did, or that the railroad company would have delivered them promptly, where the telephone company knew the use for which the money was sent.</p> <p>3. Same — Damages—Elements.—A telephone company, having negligently delayed transmission of money, sent to its knowledge for use in preparing the sender’s daughter’s remains for transportation, resulting in delayed shipment of the remains, is liable to the sender for mental anguish and humiliation arising because he was unable to make prompt burial, and to see her remains before decomposition set in, and for loss of time and money expended.</p> <p>4. Trial — Misconduct of Counsel. — In an action against a telephone company for negligent delay in transmitting money to prepare remains for transportation, the company was not prejudiced by plaintiff’s counsel, statement to the jury that the sendee showed that the company had not notified her by trying to mortgage her only furniture to procure the necessary money, though there was no evidence of such attempt, where the jury were instructed to disregard counsel’s remark if he went beyond the evidence.</p> <p>5. Telegraphs and Telephones —Verdict not Excessive. — Two-hundred dollars was not excessive recovery against a teleT phone company for negligently delaying transmission of money, sent, to the company’s knowledge, for use in preparing plaintiff’s daughter’s remains for transportation, where transportation was delayed from Friday to Sunday, resulting in mental anguish and humiliation, and loss of time and money, to plaintiff.</p>

<p>1. Trial — Refusal to Give Instructions — Failure to Request— Effect. — It is not reversible error to fail to instruct on a point, where no instruction is reguested.</p> <p>2. Master and Servant — Fellow Servants — Who are. — An employe,' engaged on the first floor of a sawmill in oiling and caring for the machinery and an employe on the second floor charged with the duty of looking after the logs and removing the staves, are not fellow servants, neither having an opportunity to observe the other in the performance of his duty, or to assist or direct him in the discharge thereof.</p> <p>S. Same — Assumption of Risk — Negligence of Fellow Servant.— An employe, engaged on the first floor of a sawmill in oiling and caring for the machinery, was injured while in discharge of his duty, and while -just outside of the door of the mill, and on a passway by being struck by a stave thrown from a second story window by a co-employe. The employe knew that staves were not thrown out on the passway, and he had no reason to expect that any would be thrown thereon. It was gross carelessness for the co-employe to throw the stave onto the passway, for he had reason to know that employes were liable to use it. Held, that the employe did not assume the risk.</p> <p>4. Same — Contributory Negligence. — Where two courses are open to an employe in the discharge of his duty, and each is attended, under normal conditions, with practically the same degree of safety, it is not negligence for him to take one course rather than the other.</p> <p>5. Same. — Where an employe, engaged on the first floor of a sawmill in earing for the machinery, could observe a part of the machinery by looking out of a side window, and he could observe it more satisfactorily by going out on a passway, and the passway was, under normal conditions, safe, the employe was not guilty of contributory negligence in going on the passway, where he was struck by a stave negligently thrown from a window above him.</p> <p>6. Same — Trial — Instructions — Evidence — Applicability.— Where the injury to an employe resulted solely from the negligence of a co-employe, an instruction that the employe might presume that the place where his duty called him was reasonably safe was not prejudicial to the employer.</p> <p>7. Same. — An instruction, in an action for injuries to an employe struck by a stave thrown from an upper window by a co-employe, which requires the jury to find, to render a verdict for the employe, that the stave was thrown from the upper floor by an employe under the direction of the employer, and that it was the result of careless, wanton, or wilful negligence, was not prejudicial to the employer, but to the employe.</p> <p>8. Same. — The use of the words “or any,” in an instruction in an action for injuries to an employe that the jury should find for the employe if his injury “was the direct or any result of an order of” the employer, was not prejudicial to the employer.</p> <p>9. Appeal and Error — Erroneous Instructions — Prejudicial Error. —A judgment will not be reversed for errors in the instructions, unless they are prejudicial to the substantial rights of the party complaining.</p> <p>10. Same. — Where, in an action for injuries to an employe, the instructions fairly presented the issues, and were more favorable to the employer than to the employe, a recovery will not be disturbed because of an error in the use of the word “wilful” in an instruction authorizing a recovery, if the injuries were the result of careless, wanton, or wilful negli-J gence.</p>

<p>CASE 95. — ACTION BY JAMES E. STEGAR AGAINST THE SUN INSURANCE OFFICE. — October 16.</p> <p>Appeal from Caldwell Circuit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>The grounds relied on for reversal and a new trial are:</p> <p>1. The court erred in refusing to grant the appellant a continuance.</p> <p>2. The verdict is contrary to law and is not sustained by the evidence.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, 315; Simms v. Alcorn, 1 Bibb, 348; Gaskin v. City of Georgetown, 80 S. W., 821, 26 Ky. Law Rep., 89; McClain, etc. v. Esham, 17 B. Mon., 146; Mayes v. Farrish, 11 B. Mon., 38; Breeding v. Taylor, 13 B. Mon., 478; Brown v. Bunger, 19 Ky. Law Rep., 1527 Smith’s Heirs v. Dixon, et al,, 3 Met. 438; Cox v. Odelesdorf, etc., 21 Ky. Law Rep., 421.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court will not reverse because of failure of two of the four attorneys representing appellant to attend the trial. (Forked Deer Pants Co. v. Shipley, 25 Ky. Law Rep., 2299; Dowdy v. Preston, 3 Ky. Law Rep., 76; Ison v. Ison, 10 Ky. Law Rep., 38; Cornet v. Combs, 21 Ky. Law Rep., 837; U. S. Fidelity & Guarantee Co. v. Body, 29 Ky. Law Rep., 588.)</p> <p>2. Granting or refusing a continuance in discretion of trial court. (McCracken v. Church, 1 A. K. Marsh., 272.)</p> <p>3. Insufficiency of affidavit for continuance. (Helfic Saw & Planing Mills Co. v. Eevrly, 17 Ky. Law Rep., 1795; Mitchell v. Bean, 13 Ky. Law Rep., 142.)</p> <p>4. Not error to refuse to re-open case for further evidence after rial had progressed to and including argument. (Hailey v. Hickman’s Heirs, 16 Ky., (Litt. Sel. Cas.) 266; Brandon v. Goulman, 1 T. B. Mon., 115; Parker v. Davis, 2 T. B. Mon., 118; Prather v. Nailor, 1 Ben. Mon., 244; Cumberland T. & T. Co. v. Weaver, 13 Ky. Law Rep., 207; Mutual Life Ins. Co. v. Thompson, 94 Ky., 253; Ballowe v. Hillman, 18 Ky. Law Rep., 677; Western Union Tel. Co. v. Parsons, 24 Ky. Law Rep., 2008.)</p>

<p>Negligence — Imputed Negligence — Husband and Wife. — Under the Weissinger act, defining the rights of married women, a wife is not chargeable with the negligent acts of her husband, unless tbe relation of master and servant or principal and agent exists; and, where personal injury results to the wife from the concurrent negligence of the husband and a third person, the negligence of the husband is not ordinarily attributable to the wife, so as to bar a recovery by her.</p>

<p>Taxation — Place of Taxation — Money Wrongfully Withheld from Insurance Company. — Where a foreign life insurance company bought out a domestic life insurance company, which bad securities on deposit with the State Treasurer, and the Treasurer wrongfully withheld the securities from the purchasing company, they could not be taxed while so withheld at the place of residence of the wrongful custodian.</p>

<p>1. Master and Servant — Railroads—Death of Fireman — Disobedience of Orders — Actions.—Where a conductor read aloud an order to the engineer in the presence of the fireman, the fireman was charged with the duty of understanding it, where it was in the usual form prescribed by the company for such orders, or was written in such language as would convey its meaning to a person of ordinary intelligence in the fireman’s position, and where the order was disobeyed by him, and his death resulted, there could be no recovery therefor.</p> <p>2.Appeal and Error — Review—Subsequent Appeals^Former Decisons as Law of the Case. — On a subsequent appeal the opinion on the former appeal is the law of the case.</p> <p>.‘3. Evidence — -Weight—Witnesses—Credibility—Power of Jury to Disregard Testimony. — Where a witness testifies unequivocally to a fact, and there is nothing in his evidence to warrant the jury in rejecting it, and he is not contradicted or impeached, the jury cannot disregard his testimony.</p> <p>4. Trial — Direction of Verdict. — Where the proof is such that, had the case been submitted to the jury, they would have been bound to find a verdict for defendant, a verdict for defendant is properly directed.</p>

<p>CASE 99. — ACTION BY COMMONWEALTH, BY SUPERINTENDENT OP SCHOOLS OP MERCER COUNTY, AGAINST D. C. HEATH & CO., AND OTHERS FOR BREACH OP BOND IN SELLING SCHOOL BOOKS.— October 21.</p> <p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal —</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., 1903, sec. 4423; B. F. Johnson Pub. Co. v. Commonwealth, 97 S. W., 749, 30 Ky. Law Rep., 148; Am. Book Co. v.. Wells, 26 Ky. Law Rep., 1159, 83 S. W., 622; Mills v. Myers, 70 S. W., 412, 24 Ky. Law Rep., 971; Ky. Stats., (1903) 2017, 130; Ency. PI. and Pr., vol. 17, p. 147; Eckford v. Hogan, 44 Miss., 348; Civ. Code, 117-4; Wheeler v. Wales, 3 Bush, 225; Harrison v. Lebanon Water W. Co., 91 Ky., 255; Civ. Code, see. 550, subsec. 1; 3 Met., 278, 2 Duv., 480/14 B. M., 517; Parks v. Reynolds, 111 Ky., 651; Acts 1906, p. 341; Practice Act, 1902 (Civil Code, sec. 367-A), subsec. 11; Com. v. Ginn & Co., Ill Ky., Ill; 9 Cyc., 615; citing, Hicks v. Shouse, 17 B. M., 483; Button v. Higgins, 38 Pacific, 390; Wicks v. Heashey, 35 Iowa, 340; De Wolf v. French, 51 Main, 420; Randal v. Johnson, 59 Miss., 37; Nolan v. Bull, 24 Ore., 479; Ubsdell v. Cunningham, 22 Mo., 124; Capron v. Capron, 44 Vt., 410; Nunez v. Dautel, 19 Wall., 560; Leake, Contracts, 635; Hicks v. Shouse, 17 B. M., 483; Nolan v. Bull, 24 Ore., 479; 16 Cyc., 140-3; citing, Deppen v. German-Am. Title Co., 24 Ky. Law Rep., 1110; Wicks v. Dean, 19 Ky. Law Rep., 1708; Home Benefit Society of N. Y. v. Meuhl, 109 Ky., 479; Railroad Co. v. McElroy, 100 Ky., 153; Deppen v. German-Am. Title Co.,- 24 Ky. Law Rep., 1110; Wicks v. Dean, 19 Ky. Law Rep., 1708; Cunningham v. Belknap, 22 Ky. Law Rep., 1580; Huffaker v. Jones, 13 Ky. Law Rep., 432; Reed v. Hubbard, 6 Wis., 174; Althoff v. St. Louis Transit Co., 102 S. W., 642 (Mo. 1907); Lee v. Vacuum Oil Co., 126 N. Y., 579; Home Benefit Society v. Muehl, 109 Ky., 479; Althoff v. St. Louis Transit Co., 102 S. W., 642 (Mo. 1907); Taylor v. Patrick, 1 Bibb (Ky.), 168; Kennedy v. Davis, 2 Bibb (Ky.), 343; Fisher v. May, Id., 448; Hunt v; Duncan, 12 Ky. Law. Rep., 45; Bates v. Todd, 4 Litt., (Ky.) 177; -Agnew v. Brail, 124 111., 312; Hardesty v. Graham, 8 Ky. Law Rep., 95, 3 S. W., 909; 8 Cyc.j 510, note 28 and cases cited; 8 Cyc., 512, note 34; Breckenridge v. Wales, 4 Dana (Ky.), 620; Bates v. Todd, 4 Litt. (Ky.), 177; Galusha et al. v. Sherman et ál., 105 Wis., 268; Smith v. Farra, 21 Ore., 400; Jones v. Chappell, 21 Ky. (5 T.. B. Mon.), 422; Collins v. Welch, 58 Iowa, 72; Ky. Stats., 4423; Ency. PI. and Pr., vol. 17, 147; Wayman, Law of Administration, 83; Agnew v. Brail, 124 111., 312; Cooley, Taxation, 2nd Ed., chap 1, p. 15; State v. Davis, 11 S. D., 11, 75 N. W., 897; 16 Cyc., p. 162, subsec. 7; Id., note 95; citing Hanover v. Calumet, 1 J. J. M., (Ky.) 506; Mason v. Byers, 24 Ky. Law Rep., 344, 68 S. W., 444; Spalding v. St. Joseph Industrial Scohol, 107 Ky., 382, etc.; Ky. Stats., (1903) 2523; Gray v. Soden, 120 Ky., 277, 86 S. W., 515, 27 Ky. Law; Rep., 673; Ky. Stats., (1903) 1138, 2515; Commonwealth v. Equitable Life Co., 100 Ky., 341; Dillon, Municipal Corporations, Vol. 2, p. 746; City of Paris v. Commonwealth, 4 Ky. Law Rep., 597; Commonwealth v. City of Lexington, 6 Ky. Law Rep., 519.</p> <p>1. The technical questions raised herein are in our opinion, of no merit, and were not made for the purpose of reaching the issue; but to lead away from it. They are the smoke raised by the tail of the cuttte fish behind which it seeks refuge. It is simply an effort to get in the record some technical error, hoping thereby to induce, not prevent, the miscarriage of justice.</p> <p>2. Appellant has forfeited his bond, the penalty is fixed at $10,000; a judgment has been rendered against it therefor. Can it by trickery, by fraud, deceit, chicanery, by log-rolling with officials, save itself from the operation of the law? Its efforts have, as we see it, the nerve, not merit, of coming out in the open to fight for the enforcement of a shameful, sordid bargaining; putting itself in a position where there may be a question only whether it should be pitied for its deficiencies or condemned for its baseness</p> <p>AUTHORITIES CITED.</p> <p>Reilley v. Call, 7 Ky. Law Rep., 516; Harrow v. Farrow, ,46 Ky., 126; Smith v. Dixon, 60 Ky., 438; Cox v. Alexbof, 21 Ky. Law Rep., 421; Benedict v. Wilhoit, 26 Ky. Law Rep., 178; Com. v. Ward, 1 J. J. M., 310; McAllerter v. Com., 6 Bush, 581;' Com. v Shepperd, 5 Ky. Law Rep., 766; Howard v. Brown, 13 Ky. Aiaw Rep., 271.</p>