Volume 83 — Kentucky Reports

<p>Case 1 — INDICTMENT—</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. Where, the accused has been convicted of manslaughter under an indictment for murder, and a new trial has been granted at his instance .and request, the implied acquittal of murder involved in the first verdict is not a bar to another trial of the defendant for that offense ■under the same indictment. (State v. Behimer, 20 Ohio State, 572; Veatch v. State, 60 Ind., 291; Morris v. State, 1 Blackf., 37; State v. Commissioners of Cross-roads, 3 Hill (S. C.), 241; Bailey v. State, 26 <Ga., 579; Mitchell v. State, 8 Yerg., 514.)</p> <p>2. The granting of a new trial places the parties in the same position as if no trial had been had. (Criminal Code, section 270; State v. Simms,. 71 Mo., 358.)</p> <p>3. The Legislature has the right to prescribe the terms upon which the accused may have a new trial.</p> <p>1. The ordering of a new trial leaves the parties in the same position as. they were before the first trial.</p> <p>2. The verdict of a jury is a legal unit, and where there is but one count-the verdict can not be set aside in part and sustained in part. (Bishop’s Criminal Law, section 1005.)</p> <p>3. When the defendant applied to the Court of Appeals to vacate the-judgment and sentence of manslaughter against him, he waived any objection to being put in jeopardy a second time. (Bishop’s Criminal Law, section 998; McKee v. People, 32 N. Y., 239; Cooley’s Constitutional Limitations, pages 327, 328.)</p> <p>1. Where a new trial is granted to one found guilty of manslaughter lindaran indictment for murder, he is protected from any further prosecution for the murder. (Bishop’s Criminal Law, sections 1004, 1056, 1057; Breenan v. People, 15 111., 511; Hunt v. State, 25 Miss., 378;, Slaughter v. State, 6 Humph. (Tenn.), 411; State v. Kemper, 17 Wis., 699; State v. Martin, 30 Wis., 216; Gee v. Keenan, 7 Wis., 695; Leslie v. State, 18 Ohio State, 390; Cooley’s Constitutional Limitations, 328; Campbell v. State, 9 Yérg., 333; State v. Kettle, 2 Tyler, 471; Morris v. State, 8 S. & M, 672; Enson v. State, 1 Swan., 14; Guenther v. People, 24 N. Y., 100; Criminal Code, section 6; State v. Gleason, 56 Iowa, 203; Lipple v. People, 10 Brader (111.), 144; People v. Dow-ling, 86 N. Y., 478; People v. McDonnell, 17 Weekly Digest, 19;. State v. Dennison, 31 La. Ann., 419; Nutt v. State, 63 Ala., 180;: Berry v. State, 65 Ala., 117; Smith v. State, 68 Ala.,. 424.)</p> <p>2. Section 270 of the Criminal Code was intended to regulate the' conduct'. of a new trial only as to those matters about which a new trial has been sought and granted. (People v. Gilmore, 4 Cal., 376.)</p> <p>3. The Legislature has no power to impose, as a condition of a new trial, that the party shall again place himself in j,eopardy as to an offense of' which he has been acquitted.</p>

'Case 2 — PETITION OKDINAItY APPEAL PROM SCOTT COURT OE COMMON PLEAS. 1. Where a policy of insurance provides that it shall be void if the insured takes out other insurance on the property insured, the taking out of other insurance does not work a forfeiture of the first policy if the second policy, by reason of a provision to that effect, is void because of the prior insurance.

Case 3 — PETITION BQTIITY APPEAL PROM KENTON CHANCERY COURT. 1. As the fact that appellant was a married woman did not appear in the record in which judgment was rendered against her, and the error to. her prejudice for that reason does not appear upon the record, she is entitled to have the judgment vacated under the provisions of the Code in force at the time the judgment was rendered. 2.

<p>1. Appeals — Taxation oe Cost. — Where the clerk of the Court of Appeals has allowed a party, or his counsel, to use the original transcript in a case under an agreement to pay therefor, as if a copy had been actually made, and the party thus using the record’, is successful, he is entitled to have the cost of a -copy taxed as a part of his cost against the unsuccessful party.</p> <p>2. Bepeal oe Statutes. — Where the General Statutes treat of any subject under a separate title, they must be regarded as containing-all the statute law on the subject, and as repealing any previous, statutory provision upon the subject omitted therefrom.</p>

<p>1. A separate-general verdict was intended- to apply in cases where there is more than one issue, and is a finding for the plaintiff or defendant upon a particular issue.</p> <p>2. A special yerdict is a finding of facts, without reference to their relation to any issue.</p> <p>3. If a general yerdict is asked, the court must grant it, and require the jury to return also a general verdict.</p> <p>4. If a special verdict is asked, the court must grant it, and may in its discretion, also direct a general verdict, but is not compelled to do ■so as in the case of a separate-general verdict; if, however, the court does direct a general verdict, it must instruct the jury as to the whole law of the case. (But see Acts 1886, volume 1, page 120.)</p> <p>15. In directing a special verdict the court should'confine the questions propounded to the controlling facts in the case, and they should be such as to enable the court, on the return of the verdict, to apply the law and enter judgment without any thing further from the jury; and where either party may be entitled to recover money, or where damages are to be assessed, the court should direct the jury to assess the amount of recovery.</p> <p>'8. Negligence is a Question of Law.' — In this action, for willful and gross neglect, in which the court directed only a special verdict, the failure of the court to instruct the jury as to what is ordinary and what is willful or gross neglect, was not an error, because when all the facts are found by the jury this is a question of law properly reserved by the court under section 317 of the-Oode.</p>

Case 6 — PETITION EQUITY APPEAL PROM GRAVES CIRCUIT COURT. ,1.

Case 7 — PETITION IN EQUITY APPEAL EROM ANDERSON CIRCUIT COURT. 1. The active, visible partner in a dormant partnership has in the eyes of the law, as to creditors and purchasers, no partner at all, and has a right to dispose of the partnership effects or securities in any manner, and to bind his partners by his acts. (Cammaok v. Johnson, 1 Green’s Ch’y, 168; Lord v. Baldwin, 6 Pick., 348; French v. Chase, 6 Greenleaf, 166; Talcott v. Dudley, 4 Scammon (111.) 2.

<p>1. Constitutional Law — Discrimination against Negroes — Taxation. — All legislation which discriminates against any particular race or class of persons is in violation of the Constitution of the United States. Therefore, State taxation for purposes of education should be provided for by general laws, applicable to all (classes and races alike, all the children of the State being entitled •to an equal share of the proceeds of the “ Common School Eund,” (and of all State taxation for purposes of education.</p> <p>An act, entitled “An act to establish a uniform system of common schools for the colored children of this Commonwealth,” approved Eebruary 23, 1874, is unconstitutional, because, by implication, it excludes the negro children of the State from any share of the proceeds of the “ Common School Eund ” set apart by the Constitution, as well as from the annual tax levied on the property of white persons for school purposes.</p> <p>:2. Sureties-j-Signing op Name by Agent. — Where the name of a person is signed as surety by an agent, he is not bound thereby unless the agent’s authority was in writing signed by him. A writing signed by another for the person to be bound is not a suffi■cient authority,</p> <p>3. Payment by Surety not bound. — Where one pays a debt for which he supposes himself to be bound as surety, when in fact he was under no legal obligation to pay, he occupies no better attitude than a mere stranger or volunteer, and can not be substituted to the creditor’s rights against the principal or the principal’s vendee.</p> <p>4. Sheriff — Lien of Sureties — Rights of Vendee. — Where the sureties of a sheriff claim a -lien, by substitution to the rights of the Commonwealth, upon land which the sheriff has conveyed to-another, the sheriff’s vendee is entitled to share pro rata with the sureties in the proceeds of the land, to the extent that the amount, p'aid by him upon the purchase price was paid by the sheriff upon the revenue for which the sureties were bound; but he is not entitled to priority, the lien of the Commonwealth existing where he made the payment.</p> <p>5. Purchaser from defaulting Sheriff — Improvements.—Where,one purchases land from a defaulting sheriff, and in good faith makes necessary improvements; without’ notice that his vendor hasi defaulted, he is entitled, as against the sheriff’s sureties claiming; a lien upon the' land by 'substitution to the rights of the Commonwealth, to be re-imbursed out of the proceeds of sale to the extent that the improvements are shown to have increased the vendible-value of the land.</p> <p>6. Sheriff — Taxes collected under void Act. — The Commonwealth is not entitled to money collected by the sheriff, as taxes, - under a. void statute, and, therefore, has no lien therefor to, which the sureties of the sheriff can be substituted.</p>

Case 9 — PETITION OEDINAEY APPEAL PROM SHELBY CIRCUIT COURT. 1. As the appellant-did not hire the■ appellee’s son and was guilty of no neglect, it is not liable for an injury resulting to .the boy from his voluntary attempt to render a personal service to the company’s conductor. ' ‘.2.

Case 10 — PETITION EQUITY APPEAL PROM OWEN CIRCUIT COURT. 1. The appellants were entitled to any one of the three remedies: mandamus, prohibition and injunction. As to mandamus. (Civil Code, section 477.) As to prohibition. (Civil Code, section 479; Pennington v. Woolfolk, 79 Ky., 13.) As to injunction.

Case 11 — PETITION EQUITY APPEAL PROM M’CRACKEN COURT OF COMMON PLEAS. 1. Since the adoption of the General Statutes, a married woman can not, by parol proof, contradict the certificate of the county clerk to a deed executed by her, as to the things he is by law required to certify in regard to signing and ’ acknowledging deeds. (General Statutes, chapter 81, section 17; Harpending’s Ex’rs v. Wylie, 14 Bush, 380; Pribble v. Hall, 13 Bush, 61.) 2.

Case 12 — PETITION .[ORDINARY APPEAL FROM HICKMAN CIRCUIT COURT. A.n insurance company can not escape the payment of a policy issued by it upon the ground that the insured failed to pay a premium when due, the insured having failed to pay because the company had become insolvent and ceased to do business. (Buckbee v. IJ. S. Insurance, Annuity and Trust Co., Bigelow’s Ins. Rep., 406; Ins.

Case 13 — PETITION EQUITY APPEAL PROM CAMPBELL CHANCERY COURT. Brief'not in record. 1. The deed attacked in this case has all the badges- of fraud. The consideration was inadequate, and was paid out. of the wife’s general estate, and not out of her separate estate. (Adams’' Assee. v. Branch 3 Ky. Law Bep., 179; Adams’ Ex’r v. Orear,. 80) Ky., 134; Stokes &.

Case 14 — PETITION EQUITY APPEAL PROM HARDIN CIRCUIT COURT. Neither the execution defendant whose land has been sold under execution, nor the purchaser of his equity of redemption, can redeem after the expiration of a year from the date of the first sale; and, therefore, the equity can not be sold after that time, although levied on-before the year expired. (General Statutes, chapter 38, article 12„ sections 4 and 6.) Brief not in record.

Case 15 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. (Brief does not discuss the questions of practice decided by the-court.) Brief not. in record. Appellant can not complain of the overruling of his demurrer to-amended rejoinder, as no instruction was based upon that pleading. (Remainder of brief devoted to the discussion of the merits of the-case.) 1.

Case 16 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The landlord’s lien is superior only when he asserts it within ninety days after the rent becomes due. (General Statutes, chapter 66, article 2, sections 11, 12 and 13; Revised Statutes, volume 2, chapter 56, article 2, sections lá and 15; English v. Duncan, 14 Bush, 378; Eisher v. Kollerts, 16 B. M., 406.) 2.

Case 17 — AGREED CASE APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The settled policy of the State has never authorized, nor has any legislative act ever authorized, fines and forfeitures of the circuit court to be given to the city of Louisville.

Case 18 — PETITION ORDINARY APPEAL PROM HENRY CIRCUIT COURT. 1. A telegraph company can not restrict its liability for loss resulting from its. negligence in failing to deliver messages. (Camp v. Western Union Telegraph Co., 1 Met., 164; U. S. Telegraph Co. v„ Wenger, 55 Pa.

Case 19 — PETITION ORDINARY APPEAL PROM PAYETTE COURT OP COMMON PLEAS.. I. Where a stranger comes upon ground to which the right of a railroad company is exclusive, and voluntarily assists its employes in the performance of a dangerous work, the company is not liable' for an injury resulting to him from the negligence of its employes, unless, perhaps, the negligence be “ willful,” and be after the discovery of his danger. (Flower v. Penn. E. E. Co., 69 Pa. St., 210, 8 Amer.

Case 20 — PETITION ORDINARY — ‘ APPEAL EROM MARION CIRCUIT COURT. 1. In actions under section 3 of chapter 57, General Statutes, for willful neglect, the jury may or may not, in their discretion, give pu■nitive damages, and it was error in this case to instruct the jury that they “should give punitive damages, if they should find will:ful neglect.

Case 21 — INDICTMENT— APPEAL PROM SCOTT CIRCUIT COURT. 1. The deceased was not marshal, either de jure or de facto, at the-time lie was killed. (Acts 1879, volume 2,- page 996; General Statutes, pages 683, 809, 811.) . 2. As to rights and liabilities of officers de facto and de jure. (Rod-man v. Harcourt, etc., 4 B. Mon., 224; Morgan v. Vance,'4 Bush, 323; Alsop v. Commonwealth, 4 Ky. Law Rep., 547; Mockabee v_ Commonwealth, 78 Ky., 380; York v. Commonwealth, 6 Ky.

Case 22 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Under the “Act of 1856” there can be no action unless the debtor and the transferee are made defendants; and although the transferee has made an assignment for the benefit of creditors he is still the owner of the property, and must be made a party within, the six months. (General Statutes, chapter 44, article 2, section 3; Lyons v. Pields, 17 B. M., 549.) !2.

Case 23 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. ■1.

Case 24 — PETITION. EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. 1. An order of the county court allowing an assessor’s claim is a judgment, and can not be collaterally attacked, the jurisdiction of the county court as to that matter being unlimited. (Commonwealth v. Cain, 80 Ky., 318; Jacobs’ Adm’r v. L. & N. R. R. Co., 10 Bush, 369.) 2.

Case 25 — PETITION ORDINARY — APPEAL PROMT PULASKI CIRCUIT COURT. 1. Where the statute of another State allows an action for damages-by the personal representative of one who has been killed by the-negligence of another, a personal representative appointed in this State may maintain an action here under that statute, the defendant being served here, this State having a statute similar in character.

Case 26 — PETITION EQUITY — APPEAL PROM BATH CIRCUIT COURT. ■Upon the death of the infant without issue the estate derived by him from his mother passed to her kindred, without regard to how she had obtained title. Therefore, his uncles and aunts on the mother’s side are to be preferred to his grandfather on the same side.

Case 27 — INDICTMENT— APPEAL EROM LOGAN CIRCUIT COURT. 1. Where the punishment imposed by a statute is upon the person alone committing the offense, and not in general terms upon those' who are guilty, mere aiders and abettors are n.ot within the act. (Stamper v. Commonwealth, 7 Bush, 613.) 2. The indictment is bad, because it does not charge the guilt of the' principal except inferentially. (Tully v. Commonwealth, 11 Bush, 154.) 3.

Case 28 — INDICTMENT— APPEAL PROM DAVIESS CIRCUIT COURT. Brief not in record. 1. The Commonwealth is not required to traverse a plea of former conviction or acquittal. (Criminal Code, section 172.) 2. The sufficiency of the evidence to support the verdict can not he* considered. (Criminal Code, section 281.) 3. The instructions present clearly the law of the case.

Case 29 — PETITION EQUITY — APPEAL EROM WHITLEY CIRCUIT COURT. 1. The act of April 9, 1878, providing for the redemption of lands sold under decree is unconstitutional in so far as it applies to sales for debts created prior to the passage of the act. (Constitution of United States, article 1, subsection 1; Thweatt, &c., v. Bank of Hopkinsville, 81 Ky.) 2.

Case 30 — PETITION EQUITY — APPEAL PROM WHITLEY CIRCUIT COURT. A divorce does not bar the wife’s claim to dower in any land of which the husband was possessed during the existence of the marriage relation. (Bich v. Bich, 7 Bush, 53.) 1. “A divorce bars all claim to curtesy or dower.” The statute makes no exception. (General Statutes, chapter 52, article 4, section 14.) : 2.

Case 31 — MOTION— APPEAL EROM CHRISTIAN CIRCUIT COURT. Cited, in support of motion, Civil Code, section 737, subsection 4; Haw- ■ thorne v. McArthur, 7 Ky. Law Rep., 39. 1. Since the repeal of so much of the Code as required errors to be-assigned, the failure to file a schedule is not ground for dismissal where the appellant has brought up the entire record. 2. It is in the discretion of the court as to whether or not it will dismiss for the failure to file a schedule.

Case 32 — PETITION EQUITY — APPEAL FROM CLARK CIRCUIT COURT. The owner of the soil may use as he pleases what is below the surface, and if he chooses to cut off a spring of water below the surface his neighbor has no right to complain, although he may be damaged thereby.

Case 33 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The amended petition should have been stricken from the files because it sets up a new cause of action, and is a departure from the-original petition. (Taylor v. Moran, 4 Met., 130; Brookover v. Hurst, 1 Met., 669; Swan v. Goodwin, 2 Duv., 300.) 2.

Case 34 — PETITION ORDINARY — APPEAL PROM KENTON CIRCUIT COURT. 1. By the expression “ our children ” the testator meant the children of his wife by him, and did not mean to include her child by her former husband. 2. The widow, under the devise to her, took only a life estate, with the-power to divide the property between the testator’s two children in any proportion she might see proper.

• Case 35 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The judgment should have perpetuated the injunction, without sale or further order, because the execution was not levied subject to ■ the incumbrances, as it should have been levied. (Act of 1828, 1 Stat. Laws, 653; 1 Bev. Stats., page 327; General Statutes, pages 256, 435; Eorost v. Phillips, 2 Met., 197; Campbell v. Woolridge, 6 Bush, 324; Atkins v. Emerson, 10 Bush, 12.) '2.

<p>Case 36 — MOTION—</p> <p>APPEAL PROM PRANKLIN CIRCUIT COURT.</p> <p>1. In construing the power of attorney the intention and not the letter must control. (Schultz v. Johnson, 5 B. M., 499; Meriwether v. Lewis, 9 B. M., 168.)</p> <p>2. As the covenant of indemnity to the former sureties and the covenant to the Staie are separate and distinct, the latter may be enforced even though the former be void because the agent exceeded his authority in including it in the bond. (Vanada’s Heirs v. Hopkins, X J. J. M., 294.)</p> <p>1. The power of attorney did not authorize the agent to execute a bond containing a clause of indemnity to the sureties in the old bond.</p> <p>2. A special agent does not bind his principal unless his authority is strictly pursued, and those dealing with him are chargeable with. notice of its extent. (Dunlap’s Paley’s Agency, 202; 2 Kent’s Com., 620; Story on Agency, sections 21, 126; 1 Am. Leading Cases, 560, and note; 8 Wendell, 494; Thompson v. Stewart, 3 Conn., 171; 15 Johns., 44; 18 Johns., 363; Batty v. Oorswell, 2 Johns., 48; DeHart, &c., v. Wilson, &c.. 6 Mon., 580; 4 J. J. M., 456; Boss v. Davis, Ibid., 386; Craycroft v. Selvage, &c., 10 Bush, 709; Craighead v. Peterson, 72 N. Y.; Wood v. Goodridge, 6 Cush., 117; Attwood v. Munnings, 7 B. & C., 278; Huhbard v. Elmer, 7 Wend., 446; Hodge v. Combs, 1 Black, 192; Draper v. Bice, 56 Iowa, 114.)</p> <p>-3. The act of the agent is regarded as a whole, and can not he separated. It must be good for all it purports to he, or good for nothing. (DeHart, &c., v. Wilson, &c., 6 Mon., 580; Park v. President and Managers of S. & L. Turnpike Boad Company, 4 J. J. M., 456.)</p> <p>■4. As to what is necessary to bind one as surety. (Billington v. Commonwealth, 79 Ky., 401.)</p> <p>1. The intention is to be gathered from the words of the writing. There can be no construction or interpretation of words which mean nothing.</p> <p>2. It is not a question of mere intention upon the part of the surety when he is sought to be bound. (Billington v. Commonwealth, 79 Ky., 400.)</p> <p>3. The power of attorney ought to be as certain as the bond to be executed pursuant to it. (Trumbow v. Aldrich, 8 N. H., 31.)</p> <p>■4. The bond upon which appellant seeks to recover was taken at the instance, and for the benefit, of the dissatisfied sureties. It is but .a single undertaking, and must be wholly good or wholly had. (General Statutes, chapter 100, section 25; Ibid., chapter 104, sections 1, 2, 3, 4, 5, 6 and 7; Commonwealth v. Adams, 3 Bush, 41; Bartley v. Eraine, 4 Bush, 375; DeHart v. Wilson, 6 Mon., 577.)</p> <p>•'5. The county court saw, or should have seen, that the bond offered was not the bond authorized by the power of attorney to be executed. (Bracken County, &c., v. Damn, 80 Ky., 388.)</p> <p>6. If the signature of Berry’s name to the bond upon which appellant seeks to recover was unauthorized, then the bond does not correspond with the paper accepted by the county court, and no recovery can be had upon it against any of the obligors therein. (Eletcher v. Leight, Barrett ■ & Co., 4 Bush, 303.)</p>

<p>Receiving stolen property, knowing it to be stolen, is a complete-offense distinct from the larceny of the same property, and the-circuit court of the county in which the property was received,. and not of the county in which the larceny was committed, has-jurisdiction of the offense of receiving the property, knowing it to be stolen.</p>

Case 38 — CONTESTED WILL — APPEAL PROM KERTOR CIRCUIT COURT. .1. The motion by defendants for a peremptory instruction should have been sustained, because the propounder failed to adduce any testimony that the deceased was of sound and disposing ' mind and memory at the time when, if at all, he wrote the alleged will.

Casi;'39 — PETITION ORDINARY — APPEAL FROM M’CRACKEN CIRCUIT COURT. .1. The ferry franchise claimed by appellants was granted to the city of Paducah, with power to lease it. (Session Acts 1836-7, page 148; Session Acts 1846-7, page 100; Session Acts, vol. 2, page 286; Session Acts 1871, vol. 1, page 155; Session Acts 1883-4, vol. 2, page 1080.) :2.

<p>Case 40 — MOTION—</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>If a final judgment dissolves an injunction and dismisses the action, the injunction is continued in force by appeal and supersedeas. (Talbott v. Morton, &c., 5 Litt., 326; Yocum v. Moore, 4 Bibb, 221; Steele v. Wilson, 9 Bush, 699; Civil Code, sections 747, 752; Whitehead v. Booram, 8 Bush, 400; Johnson v. Williams, 5 Ky. Law Hep., 733; Hutchcraft’s Ex’r v. Gentry, &c., 2 J. J. Mar., 500; Runyan v. Bennett, 4 Dana, 598; Turner v. Scott, 5 Ban., 332; Penrice v. Wallace, 37 Miss., .172; Brersler v. McOune, 56 111., 477; Williams v. Pound, 48 Texas, 145; Drake on Attachments, 428.)</p> <p>'Where a final judgment dissolves an injunction, an appeal by the plaintiff with supersedeas does not continue the injunction in force. Under the Code an appeal with supersedeas simply stays the execution of the judgment, and does not suspend the judgment itself. The old cases of Yocum v. Moore, 4 Bibb, 221, and Talbott v. Morton, &c., 5 Litt., 326, do not now apply. (Sixth Avenue B. B. Co. v. Gilbert, 71 N. Y., 430; High on Injunctions, section 1709.)</p> <p>STATEMENT OE PACTS.</p> <p>The appellee, the Western Union Telegraph Company, furnishes the market quotations direct to its patrons in the city of Louisville, by means of wires running into the offices 5f its customers, and by means of an instrument owned by it called a “ ticker.” Appellee threatening to remove the “ticker” from the office of appellant, to whom it had been furnishing the quotations in the manner described, appellant obtained an injunction restraining appellee from refusing to furnish him the market quotations it had theretofore furnished him in any manner less speedy and certain ■ than it furnished the same to other customers, from diseonnecting appellant’s wire, and from removing the ticker.” The injunction being dissolved on final hearing, appellant executed a supersedeas bond and had an order of supersedeas served. Other-facts are stated in the opinion.</p>

<p>1. Indictment — Ealse Swearing. — The provisions of section 134 of' the Code, as to the requisites of an indictment for perjury, do not. apply to an indictment for false swearing, it being sufficient in; such an indictment to charge that the accused willfully and knowingly swore, deposed or gave in evidence that which was false in a1, matter which was judicially pending, or on a subject on which he* could be legally sworn, or on which he was required to he sworn..' Nevertheless, proper allegations of the falsity of the testimony off the defendant are as necessary in an indictment for false swearing’ as in an indictment for perjury, and it is not sufficient to allege in general terms that the statements of the defendant as a witness-were false, hut the matter alleged to have been sworn to must be; negatived by special averment.</p> <p>2. Case Adjudged.- — It being charged in an indictment for false; swearing that the defendant testified falsely that he did not see’ a game of cards played at a particular time and place, it was not’, sufficient to state merely that his statements were false, and known; by him to be false, but it should have been averred that the accused ’did see the game of cards played at the time and place; mentioned.</p>

Case 42 — -MANDAMUS— APPEAL EROM PULASKI CIRCUIT COURT. 1. The Stewart and Porter patent is void for uncertainty, the excluded lands not being described. (Hamilton v. Eugate, 3 Ky. Law Rep., ' 158.) S.^The patent being void for uncertainty, the judgment prohibiting the surveyor from surveying within its uncertain bounds is also void for uncertainty. 3.

Case 43 — PETITION EQUITY — APPEAL PROM LOUISVILLE CHANCERY COURT. Brief not in record. Where the maker of negotiable paper which has been lost or stolen pays it to an innocent purchaser for value, who took it before-maturity, he is not liable to the original owner. In this respect, municipal bonds are upon the same. footing as other negotiable-instruments.

<p>Case 44 — PETITION EQUITY —</p> <p>APPEAL PROM ALLEN CIRCUIT COURT.</p> <p>1. The circumstances proved show an enforceable contract by the- . father with the mother of his bastard child to support the child, and make her his heir as if born in lawful wedlock. Such an agreement can be enforced by the child. (Clark v. McEarland,. 5 Dana, 47; Burgen v. Straughan, 7 J. J. Mar., 583.)</p> <p>2. Even if the agreement can not be specifically enforced, the child is entitled to recover' for a breach of it. (Benge v. Hiatt’s. Adm’r, 6 Ky. Law Rep., 714.)</p> <p>3. The proof shows that the father was prevented from making provision for his daughter, by will or otherwise, by reason of appellee’s agreement to divide the estate with her. The appellee should, therefore, be treated as holding one-half of the estate in trust for his sister. (Perry on Trusts, section 181; Caldwell ^ v. Caldwell,. 7 Bush, 515.)</p> <p>1. The father, by treating his bastard daughter as if she were his legiti- ■ mate child, an'd holding her out to the world as. such, did not vest her with the right to inherit his estate. The statute points out the only way in which one person can be made the heir of another. (General Statutes, page 374.)</p> <p>2. The plaintiffs fail to establish an agreement by the defendant to divide his father’s estate with his sister; but if the agreement had been established it could not be enforced, the subject-matter-of the contract having only a potential existence. (Wheeler’s Ex’r v. Wheeler, 2 Met., 475.)</p> <p>3. To enable either party to compel the specific execution of a contract, it must be mutually binding. (2 Mon., 345; 3 Bush, 697.)</p> <p>■4. Part performance of .a contract not founded on a valuable consideration will not bind the party to a full performance. (3 Bush, 298.)</p> <p>■ 5. The mere expression of a desire by the father that his illegitimate daughter should share in his estate as if an heir, does not impose upon the heir receiving the estate the burden of carrying into execution the desire of his ancestor. (Perry on Trusts, 2d ed., section 181.)</p> <p>'8. The ca^e of Oaldwell v. Caldwell, 7 Bush, 515, distinguished from the case at bar.</p>

<p>Case 45 — PETITION OKDINABY —</p> <p>APPEAL EROM PENDLETON CIRCUIT COURT.</p> <p>It was proper'to allow the additional grounds for a new trial to be filed. The objection to them is technical, and should not be.considered.</p> <p>The court has no power to allow additional grounds for a new trial to be filed after the expiration of the three days within which the motion for a new trial is required to be made, unless within the three days the court extends the time for filing additional grounds. (Civil Code, sections 342, 343; White v. Crutcher, 1 Bush, 473; C. H. O. & T. P. R. R. Co. v. Barr, 6 Ky. Law Rep., 450.)</p>

Case 46 — PETITION EQUITY — APPEAL PROM MARION CIRCUIT COURT. 1. As the judgment sought to be enforced does not show on its face that Mrs. Spencer was a married woman at the time judgment was rendered against her, that fact must be taken advantage of by plea and not by demurrer. 2. There are many cases in which it is proper to render a personal judgment against a married woman; therefore, the presumption is-in favor of the validity of such a judgment. 3.

Case 47 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. 1. Equity will not subrogate the creditor to an indemnity given the surety by a stranger, unless it be under circumstances of inducement to the creditor to extend the credit upon the faith of the indemnity, at the instance of the party giving the indemnity, thereby creating a priority between the stranger and the creditor. (Cooper, &c., v. Martin, &e., 1 Dana? 28; Francis v. Smith, 1 Duvall, 124.) '2.

<p>Case á8 — PETITION EQUITY —</p> <p>APPEAL FROM GRATES CIRCUIT COURT. ‘</p> <p>1. At common law could a court of chancery entertain jurisdiction in a suit attacking a conveyance as voluntary or fraudulent without a judgment and return of nulla bona, even though the debtor be a. non-resident? (Comstock v. Rayford, 40 Am. Dec., 103; Zechorie ■ v. Bowers, Ibid., Ill, 112.)</p> <p>2. Our present Code and Statutes have abrogated all former statutory-law on the subject. ' (Grigsby v. Barr, &c., 14 Bush, 330.)</p> <p>3. The court can now entertain jurisdiction only when there is a judgment and return of nulla bona, or upon the grounds specified in subsection 7 of section 194, Civil Code. (Vance v. Campbell, 3. Ky. Law Rep., 449.)</p> <p>4. In the case of Blalock v. Little, &c., the plaintiff alleges, but fails to prove, that the principal in the note, who is a resident of this-State, is insolvent, and therefore fails to show an exhaustion of' legal remedies. (Martz v. Pfeifer, 4 Ky. Law Rep., 595; Napper-v. Yager, 3 Ky. Law Rep., 51.)</p> <p>5. The debt of Ragan Brothers must be treated as one subsequent to-the conveyance. The account was current until merged in the note, and, therefore, the credits must be applied to the payment of the debits in the account in the order of lime in which they were-made. (Kersey -v. Bennett, 41 Am. Rep., 271; Miller v. Miller,. 39 Am. Dec., 598.)</p> <p>6. The date of the deed determines whether the debt is prior or subsequent, though unrecorded for a short time after its date. (Eletcher vs. Karl, 3 Ky. Law Rep., 335.)</p> <p>7. The appellant could prove the agreement between father and son regardless of recitals in deed. (Beverley, &c., v. Noel, 4 Ky. Law Bop.. 985.)</p> <p>1. A court of equity'has jurisdiction to set aside a conveyance as fraudulent where the creditor proceeds by attachment, although he may not have a return of “no property.” (Martz v. Pfeifer, 4 Ky. Law Rep., 392; Yance v. Campbell, 3 Ky. Law Rep., 449.)</p> <p>2. The fact that the debtor is a non-resident is alone sufficient to-authorize the court to subject property which he has fraudulently conveyed. (Scott v. McMillen, 1 Litt., 302.)</p> <p>■3. A conveyance which is actually fraudulent is void, both as to prior and. subsequent creditors. (Haskell v. Wynne & Oo., 3 Ky. Law Rep., 54; Lowery v. Fisher, 2 Bush, 70; Doyle et al. v. Sleeper et al., 1 Dana, 533; Farmers’ Bank of Ky. v. Long, &c., 7 Bush, 337.)</p> <p>4. The fact that defendants relied Upon a false theory to find a consideration is strong evidence of fraud, and makes out more than, a prima facie case against them.</p>

<p>.1. Exclusive Privilege — Sale op Liquor. — A statute which prohibits the sale of liquor within a certain territory, but provides that physicians may keep and prescribe it as a medicine, when necessary as such, does not confer an “exclusive privilege” within the meaning of the “Bill of Rights,” and is not unconstitutional.</p> <p>2. Failure oe Physician to Record Prescription oe Liquor.— Where such a statute requires the physician to record, every pre- ” scription of liquor in a hook to he kept hy him, and provides a penalty for his failure to do so, under an indictment against a physician for unlawfully selling liquor, the only question is, whether he in good faith prescribed the liquor as a medicine, when necessary as such; and, if so, he is not guilty, although he may have, failed to record the prescription, .that being a separate and distinct offense.</p> <p>3. Where an act oe the Legislature prohibits the sale oe' liquor in a particular locality, it is not essential to the validity of the act that the locality should be defined by the boundary of a city, town or civil district.</p>

Case 50 — PETITIONS EQUITY — APPEALS PROM KENTON CIRCUIT COURT. 1. It was error to set aside the conveyance from P. E. Martin to Mary Martin, or the mortgage to Kate Martin, in the absence of any pleading asking that it be done. (Civil Code, section 90.) 2. Property which has been fraudulently conveyed can not be levied on and sold under attachment as that of the debtor. The conveyance must first be directly and successfully attacked. 3.

Case 51 —PROBATE OF WILL — APPEAL PROM CAMPBELL CIRCUIT COURT. 1. Whether the testator had capacity to “take charge of a large business” was not the test of the testator’s testamentary capacity, and it was misleading to allow the question to be asked. 2. The letters from the testator to his son were incompetent as evidence in the absence of the other part of the correspondence. 3. It was error not to. allow the propounder of the will to testify in chief.

<p>Case 52 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>.1. "When a man occupies the dual position that Morrill did, he can not make a payment without separating the money from his own. Therefore, the fund which was misappropriated by J. W. Morrill & Co. has, to the extent of 53,900, never been replaced.</p> <p>:2. So soon as the firm of J. W. Morrill & Co. knew of the breach of trust by Morrill, the receiver, they became indebted to the cestui que trust, and this debt could only be discharged by actually ' bringing the money into court, and putting it into the actual custody of the court, or by paying it to the cestui que trust. (Collyer on Partnership, section 456; Ex parte Watson, 2 Vesey & Beames, 414; Smith v. Jameson, 5 Tenn. Rep., 601; Hutchison v. Smith, 7 Paige, 26; Perry on Trusts, section 808.)</p> <p>'3. A receiver has no power other than the power granted by the court, and all persons dealing with him must see to it that the orders of the coux't authorize such dealing. (Kerr on Receivers, page 207; Ibid., note 1 to chapter 11, page 196.)</p> <p>.1. If a partner, in the course of a transaction outside of the business of the firm obtains money and misapplies it, the firm is not then liable to make good the loss; and a fraud committed by a partner while acting on his own separate account is not imputable to the firm, nor can the firm be charged with any of its consequences. (Lindley on Partnership, volume 1, page 302, 4th ed.)</p> <p>'2. There was a complete separation of the money paid over to Morrillin settlement of his receiver’s account, and a complete transmission of the fund from one to another.</p> <p>-3. It is established by the cases cited for appellants that a party borrowing trust money wrongfully may be treated as the debtor .of the cestui que trust, at any time before he has actually repaid the money to the trustee, and may be requii’ed to pay it directly to the beneficiax-y, if the latter should so elect; bixt no case ca-n be found which recognizes any liability on the part of the borrower after the money has been paid back', in good faith and without notice, to the trustee from whom it was borrowed. (Collyer on Partnership, section 571; Perry on Trusts, section 808; Sheridan v. Joyce, 7 Irish Eq. Rep., 118; Landon v. Weston, Jurist, H. S., volume 2, page 58; Hutchison v. Smith, 7 Paige, 26; Ex parte Watson, 2 Vesey & Beames, 414; Smith v. Jameson, 5 Tenn. Rep., 601.)</p>

<p>1. Constitutional Law — Title op Act. — An act of the Legislature,. entitled “An act to amend the charter of the city of Covington,” which prescribes, among other things, conditions upon which deeds, may he recorded in the office of the clerk of the county court, and imposes upon that officer a penalty for doing what it is made his. duty to do by the general law regulating conveyances, is, to that' extent, unconstitutional, as these subjects do not relate to municipal government, and are, therefore, not expressed in the title.</p> <p>2. Mandamus lies to compel the clerk of the county court to record an instrument which it is made by statute his duty to record.</p>

Case 54 — PETITION EQUITY — APPEAL PROM CHRISTIAN CIRCUIT COURT. 1. The modern rule is, that although the title of the vendor was de-fective when the contract was made, or even at the date of the-institution of the suit for a rescission, yet, if time is not of the essence of the contract, the Chancellor will give the vendor an opportunity to perfect his title, if he can do so within a reasonable-time.

<p>Case 55 — PETITION OBDINABY —</p> <p>APPEAL PROM JEEEERSON CIRCUIT COURT.</p> <p>;1. What a witness says must be pertinent, or believed so by him, in order to be privileged. (White v. Nichols, 3 How., 266White v. Carroll, 42 N. Y., 161; Barnes v. McOrate, 32 Maine, 442; Hawkins v. Summer, 13 Wis., 193; McLaughlin v. Cowley, 127 Mass., 316; Story v. Wallace, 60 111., 51; Morgan v. Booth,. 13 Bush, 480; Eorbes v. Johnston, 11 B. Mon., 51; Thom v. Blanchard, 5 Johns., 523; Elam v. Badger, 23 111., 498; Gilbert'v. People, 1 Denio, 41; Odgers on Libel and Slander, side pages 266, 268, 269; B. v. Lord Abbington, 1 Esp., 226; B. v. Oreery, 1, M. & S., -.273.) i</p> <p>2. Where the occasion renders the publication privileged, the jury may-take the language into consideration to determine the intent. (Townshend on Slander and Libel, sections 2445, 288, 388, 399;-19 Md., 450.)</p> <p>3. Whenever there is evidence of malice, either extrinsic or intrinsic, in answer to the immunity claimed by reason of the occasion, a question arises which the jury, and the jury alone, ought to determine. (Addison on Torts, section 1169; Campbell v. Gray, 5 Ky. Law Rep., 240; Nix v. Caldwell, Ibid., 275.)</p> <p>1. The alleged defamatory matter having been published in the course-of a judicial proceeding, t'o-wit: In the brief of counsel,, furnished to the court, pursuant to its rules, it was absolutely privileged.. (Odgers on Libel and Slander, side pages 182, 183, 184 and 186.)</p> <p>2. If not absolutely privileged, the manner and occasion of its publication show it to be privileged, unless it is alleged and proved by the plaintiff that there was express malice, and that the-publication was made in bad faith, wantonly and needlessly, and as a mere cover to an attack upon plaintiff’s character. (Odgerson Slander and Libel, side pages '183, 184, 190, 196 and 197; Eorbes v. Johnson, 11 B. M., 51; Townshend on Slander and Libel, section-209 and note, 224 and note, 224a and note, and sections 225 and 226.)</p> <p>3. The burden of proof is upon the plaintiff to show this express-malice. (Odgers on Slander and Libel, side page 269; Harper v. Harper, 10 Bush, 455.)</p> <p>4. When the facts are ascertained, the judge is to decide whether the-publication is privileged. (Odgers on Slander and Libel, side page-185.)</p>

<p>"1. Bills of Exceptions. — A positive or direct statement in a bilí'of exceptions that it contains all the evidence, or all the instructions given and refused, is not essential to make the bill complete. "When it appears from the hill that instructions were given by the court of .its own motion, or for the plaintiff and then for the defendant, or at the instance of the one party or the other, and then instructions by the court, the bill, so 'far as the instructions are concerned, will he regarded as complete, unless it appears upon the face of the record that other instructions were given or refused. So, if the hill shows that the plaintiff introduced his testimony, and then the defendant introduced his testimony, or examined the following witnesses, the presumption is that the hill contains all the evidence.</p> <p>'2. Same. — "Where the instructions are not excepted to, it is immaterial whether or not they are in the hill of exceptions, as the only question to be considered is the sufficiency of the evidence to support the verdict.</p> <p>:3. Certificate of Judge. — The signing by the judge at the foot of the hill of exceptions is in substance certifying that it contains all the evidence, or that the hill of exceptions is true, whichever it may he proper for him to certify, as provided by section 339 of the Code.</p> <p>■4. Affidavits to Controvert Bill. — The truth of what the judge certifies in the hill of exceptions as to his own rulings and exceptions taken during the progress of the trial can not he controverted by affidavits.</p> <p>•5. "Where, the instructions are not incorporated in the original bill of exceptions, but the clerk is directed to “here insert,” and does so in making out the transcript, the instructions thus inserted will be considered as if originally embodied in' the bill, unless the appellee comes with an affidavit that they are not the instructions directed to he inserted.</p> <p>«6. Ratification of Forgery. — "Where one’s name has been signed to a note as surety without his authority, a subsequent promise to pay the note is not binding.</p> <p>'.7. Under a plea of non est factum, the obligors in a note can not, upon the ground that they were sureties, require the plaintiff to show that their names were signed by their written authority.</p>

<p>Case 57 — PETITION EQUITY —</p> <p>APPEAL PROM CALDWELL CIRCUIT COURT.</p> <p>1. The plea of the defendant that the note and mortgage were executed without a "valid” consideration was not sufficient. (Willett v. Forman, 3 J. J. Mar., 293; Helm’s Ex’r v. Jones’ Adm’r, 9 Dana, 27; Morton v. Waring’s Heirs, 18 B. Mon., 82.)</p> <p>:2. The plaintiff was entitled to judgment on the pleadings, as every allegation of a pleading is to be ' taken as true, unless specifically traversed. (Civil Code, sections 95 and 126; Trustees Ky. E. O. S. v. Fleming, Ex’r, &c., 10 Bush, 238; Preston v. Roberts, &c., 12 Bush, 581.)</p> <p>:3. The rule that a man shall not take advantage of his own wrong applies in this case. (Bibb v. Bibb, &c., 17 B. M., 307; Brook-over v. Hurst, 1 Met., 668; Martin v. Martin, &c., 5 Bush, 54.)</p> <p>4. A party is estopped to deny any fact which, by his own deed, he has admitted. (Rau & Rieke v. Boyle & Boyle, 5 Bush, 262; Eitzhugh’s Heirs v. Tyler, 9 B. Mon., 561; Breckinridge, &c., v. Ormsby, 1 J. J. Mar., 255; Lyne v. Bank of Ky., 5 J. J. Mar.,. 569.)</p> <p>1. A court of equity will not enforce a mortgage given without consideration, and for the purpose of defrauding the mortgageor’s creditors. (Enders v. Williams, 1 Met., 348; 34 Am. Dec., 765, 767.)</p> <p>2. As the note sued on was without consideration, the court properly refused to give judgment for the amount thereof. (Brookover v. Hurst, 1 Met., 668.)</p>

Case 58 — PETITION ORDINARY — APPEAL PROM NELSON CIRCUIT COURT. The bill of exceptions can not be certified by by-standers if the judge who presided at the trial also presided when the motion for a new trial was overruled, although he may be absent at the time fixed for filing the bill. In such a case, it is proper for the judge who .may be presiding to spread the bill on the order-book.

<p>Case 59 — PETITION EQUITY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>Brief not in record.</p> <p>Brief not in record.</p>

<p>Case 60 — PETITION ORDINARY —</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>Becord and briefs misplaced.</p>

Case 61 — PETITION EQUITY — APPEAL PROM'CHRISTIAN CIRCUIT COURT. .No lien exists in favor of the vendors as against the infant' remainder-man, because the deed shows on its face that the purchase money was paid. (General Statutes, chapter 63, article^,, section 24.) The infant defendant’s interest accrued long after the purchase, and! subject to the payment of the purchase money, which the proof shows has never been paid.

Dase 62 — PETITION EQUITY — APPEAI. PROM KENTON CIRCUIT COURT. 1. The court had jurisdiction to determine the validity of the ordinance by writ of prohibition. (Acts of 1849-50, ^rol. 1, page 238; Talbot v. Dent, 9 B. M., 528.) 2.

<p>Case 63 — PETITION ORDINARY —</p> <p>APPEAL PROM SOOTT CIRCUIT COURT.</p> <p>1. The statute is plain. The personal representative, whenever he has paid a creditor an undue proportion of his demand, is entitled to recover the amount of the overpayment. (Gen. Stat., chapter 39, article 2, section 42; Lawson’s Adm’r v. Hansbrough, &c., 10 B. M., 147.)</p> <p>2. The sureties are not released. A surety is never released from liability on account of an act done by the creditor in entire good faith, and which appeared at the time to be for the benefit of the surety. (Calloway v. Snapp, 78 Ky., 561; Aaron v. Mendel, Ibid.i 427; Story’s Eq. Juris., sections 324, 326; Northern Bank of Ky. v. Cook, 13 Bush, 342; Watson v. Poage, 42 Iowa, 582; White & Tudor’s Leading Cases, vol. 2, part 2, 4th ed., pages 1877-8; Lee’s Adm’r v. Reed, 4 Dana, 118.)</p> <p>3. The plaintiff is not precluded from recovering, unless he acted in bad faith, or did some act of improper, officious or unwarranted intermeddling, which prevented the sureties from seeking indemnity, which’ it does not appear that he did.</p> <p>4. The settlement of the decedent’s estate in the Court of Common Pleas is prima facie correct as against the defendants, although they were not parties to the suit. (Fauntleroy v. Lyle, 5 Mon., 267; Burns v. Benton, 1 A. K. Mar., 258; Logan’s Adm’r v. Trout-man, 3 A. K. Mar., 66; 2 Litt., 346; 5 Lift., 121.)</p> <p>Appellant was guilty of the grossest negligence • in not making both the creditor and the sureties parties to the suit against him by the ward of his intestate praying a settlement of his accounts as administrator, which was, in substance and in form, a suit to settle an insolvent estate, and having been thus negligent he can not recover. (Civil Code, section 428.)</p> <p>"The sureties are released by reason of the negligence of the creditor in accepting payment without consulting them, and of the administrator in not making them parties to the action against him for a settlement of his accounts. (Calloway v. Snapp, 78 Ky., 563; Aaron v. Mendel, Ibid., 427; Northern Bank v. Cook, 13 Bush, 344.)</p>

<p>1. As estates tail are forbidden by our law, and estates that would in former times have been deemed estates tail are now held to be estates in fee-simple, a grantor will not be deemed to have intended to create such an estate if any other construction can be-adopted without distorting the meaning of the words used.</p> <p>2. Case Adjudged. — -The deed construed in this case is as follows: “I, John W. "Williams, have this day bargained and sold, and do . hereby transfer and convey, to Jane Williams (wife of Isaac Williams), and to the heirs of her body by the said Isaac Williams, a certain tract or parcel of land. * * * * To have and to hold the same to the said Jane Williams and the heirs of her body by the said Isaac Williams. Held — That the children of Jane and Isaac Williams are as certainly identified as if they had been named, and that the children topic a present interest with their mother.</p>

Case 65 — PETITION EQUITY — ■ APPEAL PROM KENTON CIRCUIT COURT. Brief not in record. 1. The language of the limitation'plea is general. It.is, therefore, only a plea of the general limitation law of five years. (Bell v. Norris, 79 Ky., 48; Howell v. Bogers, 47 Cal., 291.) :2. The special limitation law is invalid because it violates the constitutional rule of equality, and invades private rights.

Case 66 — MANDAMUS— APPEALS FROM'DAVIESS CIRCUIT COURT. 1. The approval of an official bond is a judicial and not a ministerial act or duty, and is not compellable by mandamus. (Civil Code, section 477; Goheen v. Myers, 18 B. Mon., 426; Cate v. Ross, 2 Duv., 244; Ex parte Harris, 52 Ala., 87; 23 Am. Rep., 559; General Statutes, chapter 61, section 1, page 565; Ibid., chapter 48, section 4, page 503.) 3.

<p>.1. Eire Insurance — Condition as to Occupancy. — Where a policy of fire insurance describes the house insured as “occupied as a family residence,” and by a subsequent clause provides that the policy shall become void if the house “shall be or become vacant or unoccupied,” the words “occupied as a family residence” must be regarded as but a representation as to the then use of the house, and the subsequent words as but an undertaking by the insured that the house shall not be without an occupant during the time covered by the policy.</p> <p>In this case it is held that such a policy did not become void ■upon the house insured ceasing to be occupied as a family resi- ■ denee, it continuing to be occupied by one person, who had access-. . to the entire building for the purpose of caring for it.</p> <p>2. A motion por a new trial must be made within three days after-the verdict is returned, whether the verdict be general or special,although judgment may not have been entered upon the verdict.</p> <p>3. Special Verdicts. — The finding of facts by a jury in answer to-questions submitted to them in writing constitutes a special verdict, and to entitle the plaintiff to judgment upon.such a verdict, it is not necessary that the jury should declare that if, upon the facts found, the plaintiff is entitled to recover, he is entitled to a certain sum, naming it, or that his damages are so much.</p> <p>In an action upon a policy of insurance, it was admitted that the parties had, by agreement through arbitrators, fixed the entire-loss, but what amount had been awarded was in issue. The jury found the amount of the award, which was greater than the amount, of the policy. Held — That upon this verdict the court was authorized to render judgment for the amount of the policy, the question as to the amount for which judgment should be rendered being,, under the circumstances, merely a legal one, and involving no-question of fact.</p>

<p>ü. Bemainders. — -The present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent.</p> <p>A devise for life, with remainder to the children of the life tenant, creates a vested remainder in the children, whether or not they are born when the will takes effect. The use of the word “children” makes the persons to take as certain as if the names of the remaindermen had been given. It is otherwise where the word “heirs” is used, unless it can properly be construed to mean children.</p> <p>2. Same. — The fact that the interest of the remainderman may be divested by his death before the death of the life tenant does not make the remainder a contingent one.</p> <p>Devise to A for life, remainder to B, but if B is dead at the termination of the life estate then to C, passes to B a vested estate and a contingent interest .to 0.</p> <p>'3. The intervention of trustees does not modify these rules of construction. The same rules apply as when the conveyance is direct. •.</p> <p>Oase Adjudged. — A testator devised real estate to trustees for the use of his daughter, providing .that “after her death, or if she die before me, the fee-simple of said property shall he conveyed to her children and their descendants in the same proportion as if it had descended from her; but if she have no child, nor descendant ■of a child, then to he held in trust for my son.” Held.■ — That the children of the life tenant took a vested remainder.</p>

Case 69 — PETITION EQUITY — APPEAL PROM PAYETTE CIRCUIT COURT. Brief withdrawn. .1. The third clause of the will invested the three trustees with the legal title to, and the absolute control over, the estate for the purposes of the trusts created; and the title to the realty, and the power and duty of controlling it, remained in the trustees, the survivor and his successor. (Perry on Trusts, sections 305, 343; Clark v. Anderson, 10 Bush, 103; Kev.

Case 70 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. Brief not in record. 1. The heir or devisee may be sued in equity for any liability of the decedent. (Gen. Stat., chapter 44, article 1, sections 9 and 10.) 2. The widow’s claim under the Ohio statute is a debt of the estate, to be paid out of the assets the same as other debts.

<p>Case 71 — PETITION ORDINARY —</p> <p>APPEAL PROM ROCKCASTLE CIRCUIT COURT.</p> <p>1. After all the evidence on betli sides had been heard, it was too late to ask a peremptory instruction. (Hurt v. Miller, 3 A. K. Mar., 337; Dallam v. Handly, 2 A. K. Mar., 423; Woods v. McCombs’ Adm’r, -5 Ky. Law Eep., 694.)</p> <p>2. A railroad company is liable for detention caused by negligence. It was, therefore, error to strike out tlaat part of the petition which charged that the wreck was caused by defendant’s negligence. (Hutchinson on Carriers, section 608; Quamley v. Vanderbilt, 17 ST. Y., 306; Williams v. Same, 28 N. Y., 217; Vanbuskirk v. Roberts, 31 N. Y., 661; Cobb v. Howard, 3 Blatch., 524; Hamlin v. The Railway, 1 H. & NT., 408.)</p> <p>3. Even if the plaintiff’s ticket would ordinarily have entitled him only to a continuous ride, yet the defendant having failed to prosecute the journey with reasonable speed, plaintiff had the right to stop over and wait for another train. (Hutchinson on Carriers, sections 5138 and 603.)</p> <p>4. There being no condition attached to the ticket which plaintiff purchased, he had the absolute right to stop over.</p> <p>15. The .defendant had no right, in any event, to charge plaintiff more than conductor’s rates. It could not enfore.e against the plaintiff a regulation which had been a dead letter as to others. (Am. Law Reg., July, 1884, page 417.)</p> <p>6. The conductor demanded even more than conductor^ rates, and having demanded more than he was entitled to, he had no right to put off the plaintiff for failing to comply.</p> <p>1. The plaintiff, knowing what the consequences would be, deliberately violated regulations of the company, which it is well settled the ■company had the right to make. He is, therefore, not entitled to recover.</p> <p>2. While it is unusual to instruct peremptorily after the evidence has been heard on both sides, yet as the plaintiff wholly failed to make out his case, be was not prejudiced by the peremptory instruction.</p> <p>1. As there was nothing on the face of the ticket that entitled the holder to any stop-over privilege, the ticket conferred no such privilege. (Hatton v: R. R. Co., 13 Am. & Eng. Railroad Cases, page 53; R. R. Co. v. Bartram, 11 Ohio St., 457.)</p> <p>2. The company has the right to charge a higher rate of fare where the passenger has not procured a ticket, and to expel from the train a passenger who refuses to pay such extra rate. (Skillman v. R. R. Co, 13 Am. & Eng. Railroad Cases, page 31; R. R. Co. v. South. 43 111., 176; Stephen v. Smith, 29 Vt.. 160; R.’R. Co. v. Rogers, 38 Ind., 116; Hilliard v. Gould, 34 N. H., 230; R. R. Co. v. Guinan, 11 Tenn., 98; Steele v. Chovin, 7 Iowa, 204.)</p> <p><3. The peremptory instruction was proper. (Hilliard on Torts, 125; L. & P. Canal Co. v. Murphy’s Adm’r, 9 Bush, 533.)</p>

<p>1. Where injury to the business of a firm results from the dishonest practices of one of the partners, the other members of the firm may have an action against him for damages.</p> <p>In this action upon a note executed for the purchase price of an interest in a partnership, the defendant is allowed to plead as a counter-claim damages resulting to the business of the firm from the dishonest conduct of the payee of the note, plaintiff’s assign- or, who continued to be a partner.</p> <p>2. Pleading — Objection too Late. — After an issue has been formed upon the general averments of a petition or counter-claim, and a verdict or judgment rendered, it is too late to object that the pleading should have been more specific.</p>

Case 73 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The return of an officer upon process is conclusive, and can not be traversed in the case in which it is made. (Taylor v. Lewis, 2 J. J. Marsh., 400; Shaffet v. Menifee, 4 Dana, ISO;’ Smith v. Horn-back, 3 Marsh., 392; Armstrong v. Easton, 1 B. Mon., 66; G-wynne on Sheriffs, page 473.) 2. The officer’s return of a process need not show that the court has jurisdiction.

'Case 74 — FORFEITED RECOGNIZANCE — APPEAL FROM PIKE CRIMINAL COURT. 'The undertaking of appellants was for the appearance of the defendant at the March term, 1884, of the Pike Circuit Court, and when the defendant appeared at that term, appellants were no longer ‘bound, as they did not undertake that the defendant would at all times render himself amenable to the orders and process of the •court.

Case 75 — PETITION EQUITY — APPEAL PROM WASHINGTON CIRCUIT COURT. As the trustee appointed refuses to act, and the court fails to accept, his resignation, the trust has failed, and should be discharged.. (Perry on Trusts, section 920.) Brief not in record.

Case 76 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The common law does not impose upon a man an obligation to support his bastard, child. That obligation depends entirely upon the statute, and to fix the' liability arising from this obligation, the statutory requirements must be strictly complied with. The promise of the father must be expressly alleged and proved; also the time at which it is to be fulfilled.

Case 77 — PETITION EQUITY — APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. Mere possession by a parol donee or vendee of land, will not enable ■ him to defeat an action brought by the owner to recover the possession. None of the cases hold that possession alone is sufficient for that purpose; they go no farther than to hold that a court of equity, will enforce the defendant’s equitable rights.

■Case 78 — INDICTMENT— APPEAL EROM WOLEE CIRCUIT COURT. .1. The facts alleged in the indictment do not sustain the charge of murder. They render the defendant liable simply as an accessory ■ before the fact. (Able v. Commonwealth, 5 Bush, 698.) :2. It was error to admit in evidence against the defendant letters written hy another upon the statement of the writer that they were written with the knowledge of the defendant.

Case 79 — PETITION EQUITY — APPEAL PROM BARREN CIRCUIT COURT. .1. In an action to enforce a mortgage lién, to entitle husband and wife • to claim a homestead in the mortgaged property, they must allege specifically that they are bona fide housekeepers in this State, and reside upon the land in which they claim a homestead. (General Statutes, article 3, section 16, page 434.) '2.

Case 80 — PETITION ORDINARY — APPEAL PROM HENRY CIRCUIT COURT. 1. A provision .in a contract of insurance that, on default of payment-. of any installment of a premium note, the policy shall lapse, and. the whole amount of premium be considered as earned, is invalid for want of mutuality. (Montgomery v. Phcenix Mut. Life Ins. Co., 14 Bush, 60.) 2.

Case 81 — CONTESTED WILL — APPEAL PROM CHRISTIAN CIRCUIT COURT. (Brief not in record.) 1. In the absence of a motion for a new trial the court can consider' nothing except the sufficiency of the petition. (Helm v. Coffey, 80-Ky., 776; Lynch v. Stapleton, 4 Ky. Law Kep., 986; Arstman v. Thoma (Superior Ct.), Ibid, 430.) 2.

Case 82 — PETITION OEDINAEY — APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. If m an action by an employee of a railroad company to recover for injuries sustained in the course of his employment, the company admits negligence, but relies upon the negligence of plaintiff as a defense, there can be no judgment rendered for the defendant unless the jury find the plaintiff guilty of the contributory negligence alleged.

<p>1. Limitation — Lex Pori. — When a cause of action, which has arisen in another State between a resident of such State and a resident ' of this State, is sought to be enforced in the courts of this State, the Kentucky statute of limitations applies. Section 19 of article 4, chapter 71, Gen. Stat., has no reference to residents of this State, but was enacted only for the relief of those who are not residents, but who, having come within the jurisdiction of our State courts, are sought to be made liable by residents of some other State or country on a cause of action originating in another jurisdiction than that of the State of Kentucky.</p> <p>■2. Overruled Case. — The case of Allen v. Hill’s Adm’r, 78 Ky., 119, is overruled, in so far as it is in conflict with this.</p>

<p>X. In pleading a discharge in bankruptcy, it is not necessary to-allege that the court granting the discharge had jurisdiction, or to state the facts conferring jurisdiction, but it is necessary to-allege, in substance, that the discharge was “ duly granted.”</p> <p>The certificate, of discharge need not be set forth in the answer in hmc verba, it being sufficient to refer to it, file it and make it. part of the answer.</p> <p>2. A DISCHARGE IN BANKRUPTCY CAN NOT BE ADJUDGED NULL AND void by a Stale court, in a collateral proceeding, for want of jurisdiction in the bankrupt court to grant it.</p> <p>3. Judicial notice is taken by the State courts of the laws’of Con-jgress. i</p>

Case 85 — PETITION EQUITY — APPEAL FROM HENRY CIRCUIT COURT. 1. The deed declared on as a mortgage does not pass appellant’s homestead. The words Mrs. Hayden hereby conveys to the second party her dower in the property hereby conveyed,” are words of limitation entitled to full meaning and effect (Spurrier, &c., v. Parker, &c., 16 B. M., 280; Churchill v. Reamer, 8 Bush, 260), and can only be construed to mean that Mrs. Hayden conveyed her dower but not the homestead.

Case 86 — PETITION EQUITY — APPEAL PROM. MARION CIRCUIT COURT. The record shows clearly a mistake of fact in that the parties supposed' the tract of land sold contained but forty acres, whereas it in fact contained one hundred and twenty-eight acres. Equity should relieve against such a mistake. (Hardeman v. Sanders, 5 Ky.

<p>Case 87 — PETITIONS EQUITY —</p> <p>APPEALS PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The charter of a municipal corporation must be strictly construed. Its terms can not be extended by intendment. It can confer no powers other than those expressly granted. The charter of Louisville of 1865 does not give the city the power to condemn private property for the purpose of making a canal basin. Hence the condemnation proceedings were void. (Johnston v. Louisville, 11 Bush, 533; Cooley’s Const. Lim., 530, 594; Elliott’s Charter and Ordinances of Louisville, pages 146, 147; Hays v. Briggs, 74 Pa. St., 373; 55 Pa. St., 25.) '</p> <p>2. Under the condemnation proceedings the city took only an easement in the land condemned, the fee remaining in the original owners. (Eggleston v. Haff, 26 Ind., 38, 39; Washington Co. v. Prospect Park R. R. Co., 68 N. Y., 591; In re Amsterdam Water Commissioners, 96 N. Y., 351; West Cov. v. Ereking, 8 Bush, 123; 16 N. Y., 97; article 7, section 1, Charter of Louisville; section 10 of an act to amend the charter of Louisville, approved June 2, 1865; Green’s Brice’s Ultra Vires, page 100 and note; Barclay v. Howell’s Lessee, 6 Pet., 498; Jackson v. Rut. <fe Bur. R. R. Co., 25 Vt., 151; Jackson v. Hathaway, 15 Johns., 447; Adams v. Rivers, 11 Barb., 390; Hooker v. T. P. Co., 12 Wend., 371; People v. White, 11 Barb., 26; Heard v. City of Brooklyn, 60 N. Y., 242; Dean v. Sullivan R. R. Co., 22 N. H., 282; Quimby v. Ver. C. R. R. Co., 23 Vt., 387; Weston v. Poster, 7 Met., 297; Henry v. Dubuque «fe Cal. R. R. Co., 2 Iowa, 288; Geisy v. R. R. Co., 4 Ohio St., 308; 41 Ind., 364.)</p> <p>3. This easement was lost by non-user or abandonment.' (123 Mass., 155; American Law Reg. (N. S.), vol. 2, page 513; 2 Washb. Real Prop., page 370; Parkins v. Denham, 3 Strob. (S. C.), 224; Steiner v. . Tiffany, 13 R. I., 568.)</p> <p>4. An easement in land condemned and taken for public use, is lost ■by being diverted from its original purpose, flmlay v. Union Branch R. R. Co., 26 Conn., 255; 21 Mo., 582; 48 Mo., 363; 22 Iowa, 357; Malone v. City of Toledo, 28 Ohio St., 643; Chase v. Sutton, 4 Cush., 167.)</p> <p>1. Mere non-user does not operate as a forfeiture of an easement. To produce this effect, there must be an adverse use by the servient estate for such a period as would create a prescriptive right. (D. «& N. R. R. v. Covington, 2 Bush, 526; Rowan v. Portland, 8 B. Mon., 250; Boone-Law of Beal Prop.,-sec. .147; Arnold v. Stephens, 24 Pi'ck., 106; Chandler v. Jamaica, 125 Mass.,- 544.)</p> <p>“2. In order to show an abandonment, -acts must be shown of such a conclusive character as to indicate clearly an- intention to ■ abandon. (Dyer v. Sanford, 9 Mete., 395; Hayford v. Spokesfield, 100 Mass., 491.)</p> <p>-3. A mere change of the purpose for which the easement was acquired, will not constitute an abandonment. (Boone Beal Prop., sec. 147; Mendel v. Delano, 7 Mete., 176; Proprietors v. B. B. Co., 104 Mass., 1; Hatch v. B. B. Co., 18 Ohio St., 92; Malone v. Toledo, 28 Ohio St., 643; Chase v. Sutton, 4 Cush., 167.)</p> <p>4. Leasing premises subject’ to an easement does not operate as a forfeiture. If the city bad no right to make the leases, they are void •and of no effect. (Belcher v. St. Louis, 5 Arm. & Bng. Corpora^ tion Cases, 417; Illinois, &c., v. St. Louis, 2 Dillon, 82.)</p>

Case 88 — PETITION EQUITY — APPEAL PROM SIMPSON CIRCUIT COURT. ' The ward’s claims constituted debts against the Federal Government and the failure to take steps to collect these claims was as much negligence as if they had been debts against an individual. Ut was Milliken’s duty to collect the claim of his ward at once, or to notify the Pension Department of his appointment. His failure to do so was gross negligence, for which he is liable.

Case 89 — PETITION ORDINARY — APPEAL PROM WARREN CIRCUIT COURT Appellant’s charter empowers it to collect tolls from boats, barges, and rafts whenever they start within the influence of slack-water. There is no exemption, except- that when they do not pass through the look they pay no lockage.

<p>Case 90 — PETITION EQUITY —</p> <p>APPEAL PROM KENTON CHANCERY COURT.</p> <p>1. A foreign assignment will not be enforced as against resident attaching creditors. (Johnson v. Parker, 4 Bush, 151; Warren v. Union Nat. Bank, 7 Phila., 156; Booth v. Clark, 17 How., 322; Farmers. & Mechanics’ Ins. Co. v. Needless, 52 Mo., 17; Hope Mut. Life-Ins. Co. v. Taylor, 2 Bob., 278; Hunt v. Columbian Ins. Co., 55-Me., 290; Taylor v. Columbian Ins. Co., 14 Allen, 352; Hoyt v. Thompson, 6 N. Y., 320; Osborn v. Adams, 18 Pick., 248; Hurd v. City of Elizabeth, 41 N. J. L., 1; Bunk v. St. John, 29 Barb., 585; Bagby v. Atlantic, &c., B. B. Co., 86 Pa. St., 294; -Chaffee v. Fourth Nat. Bank, Supreme Judicial Court of Maine, January, 1881, 11 Beporter; Fox v. Adams. 5 Me., 245; Todd v. Darling, 11 Me., 34; Felch v. Bugbee, 48 Ibid., 9; South Boston Iron Co. v. Boston Locomotive Works, 51 Ibid., 585; Pierce v. O’Brien, Supreme Judicial Court of Mass., Sept., 1880, 10 Beporter; Chicago, Mid. & St. P. Baihvay Co. v. Keokuk F. L. Packet Co., 108 111.; Burrill on Assignments, secs. 306 and 310.)</p> <p>2. An assignment under the laws of Ohio is not an assignment by contract such as is valid everywhere, as the statute takes hold of the deed the instant it is made, and gives it the effect of what the-statute says.</p> <p>3. An assignment under the Ohio statute by reason of the large exemption and the preferred claims it allows is against the “well settled policy” of Kentucky, and also against our “direct legislation.” (Ohio Statutes, secs. 5430, 5441, 6348, and 6355.)</p> <p>'4. It does 'not appear that there was an acceptance of the .trust before the attachment issued, which was necessary to the validity of the assignment. (Burrill on Assignments, section 265.)</p> <p>■'5. A bond in Kentucky — a prerequisite to the assertion of any right by the assignee — was never given.</p> <p>1. A foreign assignment passes the title to personal property in Kentucky. (Porepaugh, &c., v. Appold, &c., 17 B. M., 625.)</p> <p>•3. If an assignment be in harmony with the laws of the State where the property is situated, the title passes and the rights of the assignee •should be protected against subsequent attaching creditors. ("Wharton on Conflict of Laws, section 353; Story on Sales, section 515 ; Brooks v. Marbury, 11 Wheat., 78; Halsey v. Whitney, 4 Mason, 213; Puller v. Steiglitz, 27 Ohio St., 355; Johnson v. Sharp, 31 Ohio St., 617.)</p> <p>'3. The case of Johnson v. Parker, &c., 4 Bush, 151, distinguished.</p>

Case 91 — PETITION EQUITY — .A statute is not repealed by implication, unless there is such a positive repugnancy between its provisions and the provisions of a subsequent statute that the two can not stand together or can not consistently be reconciled. The charter of appellee must be construed as authorizing the imposition of a license fee on express companies other than foreign express companies, which are alone exempted by the general law.

Case 92 — PETITION EQUITY — APPEAL EROM KENTON CHANCERY COURT. .1. The verification, authentication and demand within the year was waived by the personal representatives, and appellant is entitled to recover interest from the date of his claims. (Howard’s Adm’r v. Leavell’s Adm’r, 10 Rush, 483; General Statutes, chapter 39, article 1, sections 35, 40 and 53; Johnson v. Belt, 4 Bush, 405; Thomas v. Thomas, 15 B. M., 184; Trabue v. Harrison, 1 Met., 600; Holmesv.

Case 93 — PETITION EQUITY — APPEAL PROM BARREN CIRCUIT COURT. The cause was prematurely submitted, as the time allowed by law to the defendants for filing their rejoinder had not expired. This was a clerical misprision, for which the judgment should be reversed. (Civil Code, sections 105, 364 and 517.) 1. The cause was submitted for trial and judgment without objection, and, therefore, appellants can not complain that the submission was premature. 2.

Case 94 — PETITION ORDINARY — APPEAL PROM HARDIN CIRCUIT COURT. 1. Where a servant who has voluntarily taken a dangerous employment receives an injury in the course of his employment, the burden is upon him to prove that the employer was negligent, and that he was free from contributory neglect. (Pierce on Railways, page 382; Sherman & Redfield on Negligence, section 99; 111. Cent.

<p>1. Registration Law Constitutional. — The Legislature has the power to enact a law requiring qualified voters to he registered before the day of election as a condition of the exercise of their right of suffrage, and such a law may he local in its application.</p> <p>2. It is not essential to the validity op a registration law that it should Contain a provision for an examination on the day of election, of the qualification of voters, who from sickness or other cause have been prevented from registering, and, therefore, if the law contains such a provision, it is no objection to it that it may be impossible for the person claiming the right to vote to furnish on the day of election the required evidence of his qualifications.</p> <p>3. Persons Entitled to Vote. — A residence of one year in a county-next preceding the election by a male citizen of the age of twenty-one years gives him a right under the Constitution to vote in any-precinct of the county of which he may have been a resident for-sixty days next preceding the election, and a registration law is not valid if it requires other qualifications to entitle a person to. register.</p> <p>The statute considered in this case provides that “every person shall be entitled to be registered who would be entitled to vote at the next succeeding August election; that is to say, every male citizen who on that day shall have attained the age of twenty-one years, and shall have resided in the State two years, or in the city one year, and in the precinct in which he offers to register sixty days.” Held — That the latter or explanatory clause of this section is in conflict with the Constitution, and inconsistent with the first part of the clause; but, as the first part is complete in itself, the latter part may be severed and stricken out without invalidating the residue of the section.</p> <p>4. An Indictment for perjury alleged to have been committed in making a false affidavit under the registration law, as to the residence of a voter, was defective in failing to make it appear whether the place at which the defendant stated the person offering to vote resided was or was not in the limits of the precinct in’ which it is charged he voted.</p>