Volume 84 — Kentucky Reports

<p>Case 1 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. Common law presumption in favor of tax title. (Hiclcman v. Boffman, Hardin, 362; Allen v. Robinson, 3 Bibb, 326; Bodley v. Hord, 2 Marsh., 244; Graves v. Hayden, 2 Litt., 65; Hickman v. Skinner, 3 Mon., 211; Blight’s Heirs v. Banks, &c„ 6 Mon., 206; Curry v. Fowler, 5 J. J. Mar., 152; Oldham v. Jones, 5 B. M., 462; Vincent v. Eaves, 1 Met., 248; Trustees of Common School District v. Garvey, 80 Ky., 163. Cases explained: McKee v. Walker, 2 Ky. Law Rep., 320; Helm v. Payne, 1 Ky. Law Rep., 350; Ormsby v. City of Louisville, '79 Ky., 197.)</p> <p>2. Presumption in favor of tax title under Act May 6, 1880. (Acts of 1879-80, page 206; Acts of 1881-82, page 107; Griffin v..Dogan, 48 Miss., 11.)</p> <p>3. Even if Act of May 6, 1880, changes the burden of proof as to a tax title, it is constitutional. (Cooley’s Const. Limit., side page 367; Blackwell on Tax Titles, side page 79; Kendall v. Kingston, 5 Mass., 533; Ogden v. Saunders, 12 Wheat., 349; Hood v. Ballou, 12 N. Y., 542; Pales v. Wadsworth, 23 Maine 533; Karnoy v. Paisley, 13 Iowa, 89; Allen v. Armstrong, 16 Iowa, 508; Adams v. Beale, 19 Iowa, 61; Pillow v. Roberts, 13 How., 472; Porbes v. Halsey, 26 N. Y., 53.)</p> <p>3. If the bur,den of proof as to defects in a tax title is on the one disputing it, then the burden of pleading such defects is also on that party, and the other party does not have to anticipate them (Byington v. Robertson, 17 Iowa, 562; Belcher v. Mhoon, 47 Miss., 619; Hibernia S. & L. S. v. Ordway, 38 Cal., 681; Blackwell on Tax Titles, side page 503; L. & P. Canal Co. v. Murphy, 9 Bush, 527; Newman’s Pleading and Practice. 279; Safford v. Drew, 3 Duor (N. Y.), 632'; Union Mu. Life Ins. Co. v. Osgood, 1 Duer (N. Y.), 708; Chitty on Pleading, side page 221; Bliss on Code Pleading, sections 176 and 200; Stephen on Pleading, 314, 318. Cases explained: Gregory v. McFarland, 1 Duv., 59; Williams v. Gordon, 11 Bush, 693.)</p> <p>4. Distinction between the object of the Board of Supervisors of State taxes and the object of the Board of Commissioners of city taxes. (General Statutes, chapter 92, articles 6 and 7; Ibid, (edition 1881), page 1016; Elliott’s Acts and Ordinances, page 153, section 3; Ormsby v. City of Louisville, 79 Ky., 202; S. C., 4 Ky. Law Rep., page 14.)</p> <p>1. The presumption that the officer has done-his duty is indulged in favor of the organs of the law in cases where lands have been sold for taxes as well as in other cases. (Hickman v. Boffman, Hardin, 362; Allen v. Robinson, 3 Bibb, 326; Bodley v. Hord, 2 Marsh., 244; Graves v. Hardin, 2 Litt., 65; Hickman, v. Skinner, 3 Mon., 211; Blight’s Heirs v. Banks & Lewis, 6 Mon., 206; Currey v. Fowler, 5 J. J. Mar., 152; Oldham v. Jones, 5 B. M., 462; Vincent v. Evans, 1 Met., 248; Trustees of Common School District v. Garvey, 80 Ky., 163.)</p> <p>2. By express provision of the law, or what is equivalent thereto, a presumption is indulged in favor of the organs of the law in all sales made in pursuance of the Auditor’s Agent Act. (Griffin v Dogan, 48 Miss., 18.)</p> <p>3. The Legislature may do that retrospectively which it might in the first instance have done. (Cooley’s Constitutional Limitations, side page 371; Gwynn v. Nieswanger, 18 Ohio, 406; Smith v. Cleveland, 17' IVis., 566; Baley v. Gwynn, 16 Cent. Law Journal. 92.)</p> <p>4. The legislation under consideration in this case was entirely prospective and not retrospective, in its nature.</p> <p>1. Under the general law, one who claims land under a sale for taxes must allege and prove facts showing that all the steps necessary to a valid tax sale were taken. (Blackwell on Tax Titles, pages 501, 502;. Cooley on Taxation, page 354; Helm v. Payne, 1 Ky. Law Bep., 351;, McKee v. Walker, 2 Ky. Law Bep., 320; McArthur v. City of Dayton, 5 Ky. Law Bep.. 333; Quinlan v. Callahan, 5 Ky. Law Bep., 720; City of Louisville v. Cochran, 5 Ky. Law Bep., 833; Beamer v. City of Louisville, 6 Ky. Law Bep., 748.)</p> <p>2 The Auditor’s A.gent Act, in so far as it attempts to make a tax deed conchisive 'evidence of essential facts, is unconstitutional. (Cooley’s Const Limit., page 367; Blackwell on Tax Titles, note 4, pages 69, 77; Abbott v. Lindenbower, 42 Mo.. 162; McCready v. Sexton. 29 Iowa, 356; Smith v. Cleaveland, 17 Wis., 563; Gwynne v. Nieswanger, 18 Ohio, 400; Standenmore v. Brown, 48 Ala., 699; Scales v. Alvis, 12 Ala., 617; Cooley’s Const. Limit., pages 176, 181; Moulton v. Blaisdell, 24 Maine, 285; Davis v. Minge, 56 Ala., 121; Gwynn v. Sherman, 23 Ind., 32; White v. Flynn, Ibid., 46; Wilson v. Seman, Ibid., 437; Williams v. Underhill, 58 111., 138; Scott v. Detroit Young Men’s Society, 1 Doug. (Mich.), 121; Latimer v. Douglass, 2 Doug. (Mich.), 204; Wright v. Cradlebaugh, 3 Nev., 316 and 325; Groesbeck v. Seeley, 13 Mich.; Wantlow v. White, 19 Ind., 472; Corbin v. Hill, 21 Iowa; Farrar v. Clark, 85 Ind., 449; Marshall v. McDaniel, 12 Bush, 383; Gaines v. Buford, 1 Dana. 481; Barry v. Bansdall, 4 Met., 294; Allison v. Louisville & Harrod’s Creek B. B., 9 Bush, 254-5; 9 B. M., 302.)</p> <p>3. The act cuts off material defenses, and for that reason is unconstitutional. (Gen. Stats., chapter 92, article 8, sections 12 and 14; Hooser v. Buckner, 11 B. M, 183; Bishop v. Lavan, 4 B. M., 116; Cooley on Taxation, 307; Catterlin v. Douglass, 17 Ind., 213; Scales v. Alvis, 12 Ala., 617; Helm v. Payne, 1 Ky. Law Bep., 350; McKee v. Walker, 2 Ky. Law Bep., 320; McArthur v. City of Dayton, 4 Ky. Law Rep., 333; McDonald v. Covington, 5 Ky. Law Rep., 612; Quinlan v. Callahan, 5 Ky. Law Rep., 719; Davis v. Sims, 4 Bibb, 465; Allen v. Robinson, 3 Bibb, 329; Ormsby v. City of Louisville, 4 Ky. Law Rep., 14; Kendall v. Thomasson, 2 Ky. Law Rep., 422; Bell v. Pry, 5 Dana, 344; Currie v. Powler, 5 J. J. Mar.; Gresham v. Montgomery, 2 Ky. Law Rep., 397; Kinnou v. Pope, 1 Gilman (111.), 431; Cooley on Taxation, page 334.)</p> <p>4. There is no presumption that every step necessary to a valid tax sale has been taken. Titles acquired under tax sales depend upon different principles from those which are derived under government grants. (Blackwell on Tax Titles, page 78; Boardman v. Lessees of Reed, •&c., 6 Peters, 342; Hulich v. Scovil, 4 Gilman (111.), 172; Varrick v. Tallman, 2 Barb., 115; Allen v. Robinson, 3 Bibb, 326; Bodley v. Hord, 2 A. K. Mar.; Graves v. Hayden, 2 Litt., 64.)</p> <p>5. Oases explained: Alien v. Robinson, 3 Bibb, 326; Bodley v. Hord, 2 A. K. Mar.; Blight v. Banks, 6 Mon., 192; Currie v. Powler, 5 J. J. Mar.; Hickman v. Skinner, 3 Mon., 210; Terry v. Blight, Ibid., 271 ; Oldham v. Jones, 5 B. M., 462; Vincent v. Eaves, 1 Met., 248; Trustees of School District v. Garvey, 80 Ky., 160.)</p> <p>6. The tax deed relied on in this case is invalid, because it does not recite the power under which it was made. (Blackwell on Tax Titles, pages 61, 368; 3 Washburn on Real Property, pages 545-6, 4lh edition; Gaines v. Stiles, 14 Pet., 322; Cogel v. Raph, 24 Minn., 197, 198.)</p> <p>7. The statement of a fact constituting a cause of action can not be dispensed with by the statement of a fact which raises only a prima facie presumption of the fact relied upon. (Gregory v. McFarland, 1 Duv., 59; Williams v. Gordon, 11 Bush, 693; Louisville, <Sc., Canal Co. v. Murphy, 9 Bush, 527.)</p> <p>8. No title can pass to the purchaser at a tax sale from the Auditor’s Agent unless there has been an assessment. (Clark v. Cummings, 1 Ky. Law Rep., 419; Blackwell on Tax Titles, 107; Cooley on Taxation, page 259; L. & N. R. R. Co. v. Commonwealth, 1 Bush, 258.)</p> <p>1. The Auditor’s deed to one who purchased land at a sale for delinquent taxes should show the grantor’s authority, and in a suit to obtain a clear title under such a deed, the petition must set forth the various official acts and steps which preceded and resulted in the final sale by the Auditor’s agent. The presumption that officers have done their duty is merely prima facie. Facts in regard to which the law raises a prima facie presumption must be pleaded by one who relies upon the presumption so created. (Scott v. Marshall, 5 J. J. Marsh., 434; Hickman v. Boff'man, Hardin, 370; Lewis v. Quimper, 2 Met., 284; Allen v. Robinson, 3 Bibb, 328; Currie v. Fowler, 5 J. J. Marsh., 145, 152; Terry v. Bleight, 3 Mon., 271, 272; Graves v. Hayden, 2 Littell, 65; Bustard v. Gates, 4 Dana, 430; Hickman v. Skinner, 3 Mon., 211; Slaughter v. McCain, 1 A. It. Marsh.', 485; Hoy’s Heirs v. McMurry, 1 Litt., 365; Section 119, Civil Code; Section 144, Stanton’s Code; Gregory v. McFarland, 1 Duv., 59; Williams v. Gordon, 11 Bush, 693; Haggard v. Hays’ Adm’r, 13 B. Mon., 175; Ransdall v. Shropshire, 4 Met., 327, 330; Gould’s Pleadings, chapter 3, section 12; Wharton’s “Law of Evidence,” section 1304; Galpin v. Page, 18 Wallace, 356; Bowling Green & Madisonville R. R. Co. v. Warren County Court, Bush, 714, 721; Wharton’s “Law of Evidence,” section 1318; United States v. Ross, 92 Otto, 283, 285; Rudd v. Jehnson, 5 Littell, 19, 20; White v. White, 2 Met., 185, 190; McKee v. Walker, MS. Op., Ky. Law Rep., volumes 1 and 2; Helm v. Payne, MS. Op., Ky. Law Rep., volume 1, page 350; McArthur v. City of Dayton, Ky. Law Rep., March, 1883, page 733; Shanks v. Stephens, Ky. Law Rep., April, 1883, pages 838, 839; Shanks v. Stephens, Ky. Law Rep., February, 1885, page 525; Cooley's “Law of Taxation,” 324, 354; Brown v. Veagie, 25 Maine, 359, 362; Stead’s Lessee v. Course, 4 Oranch, 403; Parker v. Over-man, 18 How., 137; Bishop v. Loran, 4 B. Mon., 120.)</p> <p>2. It is beyond the power of the Legislature to make a tax deed conclusive evidence of the holder’s title.</p> <p>The act of May 6, 1880, which gives the Auditor’s deed the element of conclusiveness, is unconstitutional. (Cooley’s Constitutional Limi- • tations, 174; Sill v. Conning, 13 N. Y., 303; Constitution of Ky., articles 1, 2; Cooley’s Constitutional Limitations, 368, 175, 353, 354, 355, 368; Dartmouth College v. Woodward, 4 Wheat., 519; Taylor v. Porter, 4 Hill, 140; Westervelt v. Gregg, 12 N. Y., 209; Constitution of Kentucky, article 13, sections 12, 2; Adams v. Beale, 19 Iowa, 61; Yan Alstyn v. Erwin, 11 N. Y., 331; Wantlow v. White, 19 Ind., 470; Cooley’s Law of Taxation. 356; McCready v. Sexton, 29 Iowa, 356; Groesbeek v. Seeley, 13 Mich., 329; Case v. Dean, 16 Mich., 19; White v. Flynn, 23 Ind., 46; Allen v. Armstrong, 16 Iowa, 508; East Kingston v. Towle, 48 N. H., 57; Cooley’s Law of Taxation, 324, 329 ; Piseataqua v. Portsmouth Bridge Co., 4 N. H., 566; Hanson v. Yernon, 29 Iowa, 28.)</p> <p>3. The act of May 6, 1880, is unconstitutional in precluding all defenses except those enumerated therein. (Cooley’s Law of Taxation, 265, 267, 346; General Statutes, article 6, chapter 92; article 8, section 7, chapter 92; article 8, section 14, chapter 92; article 13, chapter 38; Walker v. MeKnight, 15 B. Mon., 467, 476; Gathwrighl v. Hazard, 17 B. Mon., 557, 561; Shropshire v. Pullen, 3 Bush, 512, 515; Hickman v. Skinner. 3 Mon., 211; General Statutes, article 15, section 1, chapter 38; Slater v. Maxwell, 6 Wallace, 268, 276; Webber v. Cox, 6 Mon., 116; Chatham v. Pointer, 1 Bush, 423; Oldham v. Jones, 5 B. Mon., 458; Baílame v. Forsyth, 13 Howard, 18; Corporation of Washington v. Pratt, 8 Wheat., 681; McCready v. Sexton, 29 Iowa, 356; Eoukendorf v. Taylor’s Lessee, 4 Pet., 349, 360; Ky. Law Eep. & Jour., Deo., 1883, 435, title “Taxation;” City of Louisville v. Cochran, Ky. Law Eep. & Jour., May, 1884, page 833.)</p>

Case 2 — PETITION ORDINARY APPEAL PROM OWEN CIRCUIT COURT. 1. A void judgment is an absolute nullity, and may be assailed in a collateral proceeding by any party whose rights are affected by it. (Freeman on Judgments, ed. 1881, section 117; Jones & Kelly v. Commonwealth, 2 Duvall, 82; Carpenter v. Strother’s Heirs, 16 B. ' M., 295; Landrum v. Farmer, 7 Bush, 49; Roberts v. Stowers, 7 Bush, 295, 297.) 2.

Case 3 — MANDAMUS APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The county court having the sole jurisdiction in the matter of the probate of wills, there can be no change of venue from that court in such cases. (General Statutes, chapter 113, sections 26 and 28; Civil Code, section 64.) 2. There is no statute authorizing a county judge to be sworn off the bench.

Case 4 — PETITION ORDINARY APPEAL PROM -WAYNE CIRCUIT COURT. 1.

<p>1. An application por the opening or alteration op a public road may be made to the county judge alone, and although the damages be assessed by a jury, or fixed by agreement, at a sum exceeding fifty dollars, the court of claims has no discretion, but is obliged to levy a tax to pay the damages and costs, and may be compelled by mandamus so to do. The statute which prohibits the county court, unless composed of a majority of the justices, from making an appropriation or charge on the county of any sum exceeding fifty dollars for any one object, does not apply to such cases.</p> <p>2. The county judge declining to act; the statute authorizes the nearest justice to take the bench, and the justice having heard the ease without objection, it is not necessary to determine whether or not the reasons of the regular judge for declining to act were sufficient.</p>

Case 6 — PETITION ORDINARY APPEAL FROM LARUE CIRCUIT COURT. 1. The unusual speed of the train and the failure to give any signal of its approach constituted willful neglect. (Sherman & Redfield on Negligence, sections 481, 482; 12 Bush, 41; L. & N. R. R. Co. v. Howard’s Adm’r, 6 Ky. Law Rep., 165; L. & N. R. R. Co. v. Trent, by &c„ 6 Ily. Law Rep., 95; L. & N. R. R. Co. v. Wallace’s Adm’r, page 302.) 2.

Case 7 — PETITION EQUITY APPEAL PROM MASON CIRCUIT COURT. 1. A written contract for the sale of real estate if certain, fair, just, and mutual, will be specifically enforced by a court of equity at the suit of either party.

<p>Case 8 — INDICTMENT</p> <p>APPEAL FROM DAVIESS CIRCUIT COURT.</p> <p>(Bi'ief not in record.)</p> <p>1. The indictment is not sufficiently certain, in that it charges the defendant with keeping a faro bank “for himself and another.” Two offenses are charged, and the defendant could not know which he would be required to defend. (Commonwealth v. Perrigo, 3 Met., 5.)</p> <p>2. The Commonwealth must prove the charge as made. Proof that the defendant kept the faro bank for himself does not support the charge that he kept it for himself and another. (Clarke v. Commonwealth, 16 B. M., 211; Mount v. Commonwealth, 1 Duv., 90; Bishop’s Criminal Procedure, volume 1, section 484, second edition; United States v. Porter, 3 Day’s Cases, 283; 6 Maine, 476; Commonwealth v. Livermore, 4 Gray, 18; Jackson v. State, 4 Ind., 560; Icely v. State, 8 Blackf., 403.1</p> <p>3. The defendant was a- competent witness, upon the motion for a new trial, to prove his inability to attend the trial.</p> <p>1. The allegations of the indictment are sufficient to show that the offense was committed before the finding off the indictment. (Jones v. Commonwealth, 1 Bush, 35; Commonwealth v. Miller, 79 Ky., 452.)</p> <p>2. The indictment charges but a single offense. (Bishop on Statutory Crimes, 557, 965, and 966 and note; Hinkle v. Commonwealth, 4 Dana, 518; Miller v. Commonwealth, 13 Bush, 735.)</p> <p>3. There was no proper application for a continuance, and whether the court erred in overruling^the motion for a new trial, based upon the ground that the defendant was unable to attend the trial, can not be considered. (Kennedy v. Commonwealth, 13 Bush.)</p>

Case 9 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. 1. In order to disqualify a witness by reason of his conviction of crime the record of conviction must be produced. (Greenleaf on Evidence, volume 1, page 524.) 2. A person is not disqualified as a witness by reason of having been convicted of grand larceny.

Case 10 — PETITION EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The constitutional requirement of equality in taxation necessitates the taxation of railroads for county purposes equally with other real property in the county. (Marshall v. Donovan, 10 Bush, 681; Preston v. Roberts, 12 Bush. 570; Lexington v. McQuillan, 9 Dana, 516; •Lincoln County Court v. L. & N. R. R. Co., 3 Ky. Law Rep., 436; Louisville Water Co. v. Hamilton, 5 Ky. Law Rep., 557.) 2.

Case 11 — PETITION EQUITY APPEALS FROM SHELBY CIRCUIT COURT. The act of Pebruary 3, 1869, confers no authority upon the Shelby Railroad District of Shelby county to hold or vote stock in the Shelby Railroad Company, or to receive dividends thereon. Such a right never exists in a municipality or quasi municipality unless secured by express language. 1.

Case 12-PETITION OBDINAEY APPEAL PROM SHELBY CIRCUIT COURT. 1. While the deceased is reasonably presumed to have taken upon himself all the risks and hazards necessarily incident to his employment, it can not be presumed that he risked or hazarded the gross or willful negligence of his co-employes. (L. & N. R. R. Co. v. Robinson, 4 Bush, 507; L. & N. R. R. Co. v. Pilbrun’s Adm’x, 6 Bush, 574.) 2.

Case 13 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1.

Case 14 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The provision of the charter of the city of Covington exempting from taxation “ machinery in manufactories,” exempts the pipes, posts and meters of a gas company, these forming a part of the “machinery” of the company. (Commonwealth v. Lowell Gaslight Co., 12 Allen, 75; Frovidence Gas Co. v. Thurber, 2 R. I., 15; Commonwealth v. Byrne, 20 Grattan, 165; Phillips, &o., v. Winslow, Trustee, 18 B. M., 431, 445.) 2.

<p>In resisting an unlawful arrest the citizen is not justified in talcing the life of the trespasser, unless it is necessary to save his own life or to save his person from great bodily harm.</p>

<p>1. Insurance — Waiver of Forfeiture. — If the practice of an insurance company and its course of dealings with the insured, and those known to him, have been such as to induce the belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.</p> <p>A member of appellant failed to pay an assessment within thirty days, as required by its charter in order to prevent a forfeiture, but afterwards paid it, and the secretary, whose duty it was to receive assessments, gave him a receipt therefor. The seeretai-y afterwards accepted from him payment of other assessments. It had been the custom of the company, through its secretary and treasurer, to receive from members over-due assessments without question or condition. Held — That the company is estopped to insist upon a forfeiture, although its charter provides a special mode in which a member may be reinstated.</p> <p>2. Amendment of Pleadings. — It was not error to set aside the order of submission, and permit an amended answer to be filed to conform to the facts proved, and in furtherance of justice.</p>

<p>Case 17 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>Brief not in record.</p> <p>1. If municipal corporations, in making street improvements, exercise reasonable care and skill in the performance of the work, and do not trespass upon the property of the adjoining owner, they are not answerable to him for consequential damages to his premises. (Dillon on Municipal Corporations, section 990, 3d ed.; Callender v. Marsh> 1 Pick. (Mass.), 418.)</p> <p>2. The charter of the city of Louisville is a pdblic statute of local application, and a provision therein fixing -a period of limitation as to actions against the city of Louisville ‘different from that fixed by the general law is not unconstitutional as cónfer’úng a special privilege.. {O’Bannon v. L., O. & L. R. R. Co., 8.Bush; Mortimer v. L. & N. R. R. Co., 10 Bush; Covingtón v_Voskqtter, 80 ICy., 219; Louisville v Commonwealth, 1 Duv., 297; O’Connor v. Pittsburgh, 18 Pa., 187; Dillon on Municipal Corporations, section 657, 3d ed.; Smith v. Harden, 4 Ely. Law Rep., 554; Qóqlpy’s Const. Limit., 4th ed., page 489; Nichols v. City of Minneapolis, volume 2, Eng. and Am. •Corporation Cases, page 562; Cerro Gordo Co. v. Wright, 50 Iowa, 439; State v. Stout, 7 Neb., 89; State v. Lancaster Bank, 8 Neb., 218; Elelly v. Madison, 43 Wis., 688; Howell v. City of Buffalo, 15 N. Y., 512; Alden v. Alameda Co., 43 Cal., 270; McGoffin v. Oahoes, 74 N. Y., 387; Smyth v. Bangor, 72 Mea 249; Wagner v. Camden, 73 Me., 485; Pratt v. Sherburn, 53 Vt., 370; Butts v. Stowe, 53 Vt., 600; Bliss v. Whittingham, 54 Vt., 172';, .Bartlett v. Cabot, 54 Vt., 242; Campbell v. Pairhaven, Ibid., 36; White v. Stowe, Ibid., 510; Donelly v. Pall River, 130 Mass., 115; Noonan v. Lawrence, Ibid., 161; Madden v. Springfield, 131 Mass., 141; Taylor v. Woken, 130 Mass., 474; Plum v. Pon du Lac, 51 Wis* 393; Teagarden v. Caledonia, 50 Wis., 292; Perry v. Putney, 52' Vt., 582; Maddox v. Randolph Co., 65 Ga., 216; Gay v. Cambridge, 128 Mass., 357; Miles v. Lynn, 130 Mass.. 398.)</p>

Case 18 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The defense of mistake relied on by appellees is wholly destitute of; support. 2. To constitute adverse possession, there must be not only actual occupation, but also a claim of title hostile to that of the true owner.

Case 19 — AGREED CASE APPEAL EROM LINCOLN CIRCUIT COURT. 1. A receiver may bring an action in his own name without joining with him the person for whose benefit it is prosecuted. (Civil Code, section 21.) 2. In making the agreed case, the receiver but exercised one of the powers conferred upon him by his order of appointment. 3. The appointment of the receiver was in the sound legal discretion of the Chancellor. (Douglass v. Cline, 12 Bush, 622; Civil Code, section 300.) 1.

<p>Case 20 — AGREED CASE</p> <p>APPEAL EROM LOUISVILLE CHANCERY COURT.</p> <p>1. A banker has-a lien upon any securities in his hands to cover any general balance, unless the circumstances under which the pledge was made, or the language of the pledge itself, is of such a character as necessarily to restrict the pledge to a particular debt. (Story on Agency, sections 362, 362a, 363 and 380; Morse on Banking, pages 42 and 43; Metropolis Bank v. Blew England Bank, 1 Blow., 369; 6 How., 212; Kelly v. Eeland, 5 Dillon, 228; Lucas v. Darrien. 7 Taunt., 278; Wilson v. Smith, 3 How., 763; Brandar v. Barnett,. &c., 12 Clark & Einnelly, 806; Davis v. Bowsher, 5 Term Bep., 491 ; Boland v. Bygrave, 21 Eng. Com. Law Bep., 437; General Provident Assurance Co. Case, Law Beports, 14 Equity, 516; In re Haselfoot’s Estate, Law Bep., 13 Eq., 327; Spalding v. Thompson, 26 Bovan, 637; In re European Bank, Law Bep., & Ch. App., 44.)</p> <p>Authorities explained: Story on Bailments, 9th edition, sections-304 and 305; Vandcrzee v. Willis, 3 Brown’s Ch’y, 21; Duncan v. Brennan, 83 BT. Y.: Wyckoff v. Anthony, 90 N. Y., 448; Bleponset. Bank v. Leland, 5 Met.; Jarvis v. Bichards, 15 Mass.; Hathaway v. Fall Biver Bank, 181 Mass.; 2 Leigh., 493; Green v. Farmer, 4 B. B.; Talbot v. Fare, 9 Ch. Div., 568.</p> <p>2. Waiving the question of lien, in this case the bank is entitled to set off its demands on the intestate against the claim of the administator, both claims arising in the same right. (Ely v. Herne, 5 Dana, 402; Warfield v. Gardner’s Adm'r, 79 Ky„ 586; Clark v. Tselin, 9 B. B„ 19; S. C., 11 B. B., 337; S. O., 10 Blatch., 204; S. C., 21 Wall., 360; In re Don et al., 14 B. B., 307; Sparhawk v. Drexel, 12 B. B., 450; In re Farnsworth, Brown & Co., 14 B. B„ 148; S. C., 5 Biss., 224.)</p> <p>1. If securities have been deposited with a banker as a pledge for a specific sum, and not as a pledge generally, that will repel the inference that they were intended to give a lien for the general account or balance between the parties. (Story on Bailments (9th edition), section 304; Story on Agency (8th edition), sections 362, 380 and 381; Parsons on' Contracts (6th edition), volume 3, pages 364-5; Kent’s Com., volume 2, page 775; Smith’s Mereantilé Law, page 695; Dos Passos on Stock Brokers and Stock Exchanges, page 705; Morse on Banking, page 42; Grant on Banking, page 168; Myers’ TJ. S. Cases on Banks, pages 145, 150; Story’s £q. Juris (10th edition), section 1034; Metropolis Bank v. New England Bank, 1 How., 239; Duncan v. Brennan, 83 N. Y., 487; Wyckoff v. Anthony, 9 Daly, 423; Wyckoff v. Anthony, 90 N. Y.,’448; Gould v. Farmers’ Loan and Trust Co., 23 Hun., 322; Gould v. Central Trust Co., 6 Ab. New Cases, 381; Neponset Bank v. Léland, 5 Met. (Mass.), 259; Jarvis’ Adm’r v. Bogers, 15 Mass., 369; Hathaway v. Fall Biver National Bank, 131 Mass., 14; Galliat v. Lynch, 2 Leigh., 493; James' Appeal, 89 Penn., 56; Baldwin v. Bradley. 69 111., 35; South worth Co. v. Lamb, 82 Mo., 242; Vanderzee v. Willis, 3 Bro. Oh’y, 20; Jones v. Smith, 2 Yes., Jr., 372: Davis v. Bowsher, 5 Tenn. Bep., 491; Brandar v. Barnett, 12 Clark & Finnelly; Green v. Farmer, 4 Burr., 2214.)</p> <p>2. The principle of set-off does not apply to this case. (General Statutes, chapter 39, section 30; Lane vi Bodley,'47 Barb., 395; Talbott v. Frere, 9 Ch’y Div., 568; Hamilton v. Wagner, 2 Mar., 334; Cole v. Cole’s Adm’r, 4 Bibb, 340; Prentice v. Burton, 3 B. Mon., 35; Bonta v. Curry, 3 Bush, 678; Civil Code, sections 637, 638 and 639.)</p>

Case 21 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. 1. Vested real estate of infants can be sold only under the provisions of title 10, chapter 14, Civil Code, and the proceedings must be in conformity thereto. 2. In a suit under subsection 2, of section 490, of the Civil Code, for the sale of the real estate of infants, it must not only be alleged but proved that the property can not be divided without greatly impairing its value. 3.

Case 22 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. Brief not in record. 1. The Legislature may provide for an assessment to pay the cost of the local improvement of a public way according to benefits, or by square feet within a given area, or according to frontage, and if the Legislature has fixed the district and laid the tax for the reason that in the opinion of the legislative. body such district is peculiarly benefited, its decision is conclusive.

Case 23 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. When an instrument shows an intention to pass an estate or interest in property to take effect after the death of the maker, it is a will,, and revocable at any time before his death. (Johnson v. Gancy, 20 Ga., 707; Steward v. Steward, 5 Conn., 317; Pitkin v. Pitkin, 7 Conn., 315; Meek’s Appeal, 97 Pa.

<p>Case 24-PETITIONS EQUITY</p> <p>APPEALS PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. It is a condition precedent to the validitjT of the ordinance in question in these cases, that it should have been passed, etc., in the mode prescribed by the charter of the city of Newport. A municipality can only be bound by contracts entered into in the mode pointed out by the act conferring upon them the power to contract. (Dillon on Municipal Corporations, second edition, section 373; Cray-craft v. Selvage &c., 10 Bush, 708: Averbeck, &c., v. Hall, 14 Bush, 505; Ormsby v. City of Louisville, 79 Ky., 197.)</p> <p>2. The passage of the ordinance relied on is not well pleaded. Eacts, and not conclusions, should be pleaded (Trustees of Bellevue v. Kahn & Trapp, 5 Ky. Law Rep., 130.)</p> <p>1. As to power of city of Newport to procure gas and to regulate its use. (Acts of 1873-4, page 333.)</p> <p>2. The city has power to construct, maintain, 'and operate gas and water-works, and to pass all ordinances necessary to regulate the same, provided that no existing contract shall be affected thereby. (Dillon’s Municipal Corporations (third edition), section 89.)</p> <p>'3. This power is not to be extended by inference or implication. .It is to be strictly construed and closely pursued. (Kniper v. Louisville, 7 Bush, 603.)</p> <p>4. A municipality has no powers except those expressly granted or necessarily implied from an express grant. (Johnson v. Louisville, 11 Bush, 532; Henderson v. Covington, 14 Bush, 312.)</p> <p>5. A municipality can not make contracts which create, or tend to create, monopolies, without express grant. (Dillon’s Municipal Corporations, section 362.)</p> <p>6. General grant of power to cause city to be lighted with gas does not include power to grant away exclusive use of streets. (Dillon’s Municipal Corporations (third edition), section 692; State v. Cincinnati Gas Co., 18 Ohio St., 290.)</p> <p>7. Municipal corporations- must have express grant in order to confer exclusive privileges. (Dillon on Municipal Corporations (third edition), section 695; People v. Benson, 30 Barb., 24; City of Oakland v. Carpenter, 13 Cal., 540.)</p> <p>8. City can not contract away power and duty to control use of streets-for public convenience.- (L., C. & L. R. R. Co. v. Louisville, 8 Bush, 407.)</p> <p>9. Express delegation of power to grant exclusive privileges is subject to repeal. (Richmond Gas-light Co. v. Middleton, 59 N. Y., 228; Butchers’ Association v. Crescent City Slaughter House, 111 u. a, 7.)</p> <p>10. Injunction is not the proper remedy as against city. (Des MoinesGas Co. v. Des Moines, 44 Iowa, 508; High on Injunctions, section-1246.)</p> <p>11. As to implied power in private corporation to use or tear up streets- or commit nuisance. (Fertilizing Co. v. Hyde Park, 97 U. S., 666.)</p> <p>1. The contract between the city of Newport and appellee does not. contain an exclusive grant to appellee to furnish gas, nor any grant for a specified period. Such grants are to be restricted rather than enlarged by construction, and are to be strictly construed and closely pursued. (Dillon on Municipal Corporations, section 89; Kniper v.. City of Louisville, 7 Bush, 603; 11 Bush, 532; 14 Bush, 312; 11 Peters, 420; 27 N. Y., 87; 21 Penn., 22.)</p> <p>2. The contract relied on by appellee reserves to the board of councilmen complete discretionary and legislative control over the quantity of gas to be supplied, whether much, little or none is required; and where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in-the absence of fraud, be disturbed. (High on Injunctions, section 1240; 32 Barb., 410, 702; 29 N. J., 164; 51 N. II., 422; 70 111., 65; 26 Barb., 133; 62 Barb., 630; 61 Barb., 121; 92 111., 372.)</p> <p>3. Even if the contract gives the exclusive right to the use of the streets-for the purpose of laying pipes, therein for twenty-five years, the right to furnish gas exclusively for twenty-five years does not follow as a necessary sequence.</p> <p>4. A municipal corporation can not grant to any other corporation a right exclusive for any period to lay pipes in its streets, unless power-is conferred upon it by the sovereign power of the State to do so. (Dillon on Municipal Corporations, section 691; 18 Ohio St., 292; 13 Peters, 519.)</p> <p>5. There can be no implied power in a municipal corporation to create-a monopoly of any kind. (Dillon on Municipal Corporations, section 362; 45 111.. 90.)</p> <p>6. The contract relied on by appellee is inoperative and void, being forbidden by the first section of the thirteenth article of the State-Constitution. (Citizens’ Gas-light Co. v. Louisville Gas Co., 5 Ky. Law Rep., 72.)</p> <p>7. There was never a regularly executed contract between the city and appellee. When the charter of a corporation prescribes the mode " of contracting, that mode must be rigidly pursued. (Waite’s Actions and Defenses, volume 4, page 603.)</p> <p>1. Injunction was the proper remedy to prevent the city from repudiating its contract made with appellee, and from malting a similar contract with another corporation. (High on Injunctions, section 695; The Jersey City Gas Co. v. Dwight et al., 29 N. J. Eq., 242; Citizens’ Gas-light Co. v. Louisville Gas Co., 81 Ky., 263.)</p> <p>2. While municipal corporations can not barter away their legislative powers, they may contract the same 'as individuals; and the rules which govern the responsibility of individuals are applicable. (8 Rush, 420; 12 Ohio St., 377.)</p> <p>3. The Dueber Company has no right to complain, for the reason that it has no franchise whatever in respect of the streets of Newport. A franchise does not belong to natural persons, and as the Dueber Company possesses under its charter no rights not possessed by a natural person, it has no right to lay pipes in the streets, which is a franchise. (Dillon on Municipal Corporations, section 546; 18 Ohio St., 292; 29 N. J. Eq„ 242; 13 Peters, 519, 595.)</p> <p>4. The city of Newport had no power to grant the privilege of laying pipes in the streets for the purpose of furnishing gas to private consumers. The city can grant no such privilege unless empowered to do so by the Legislature, either in express terms or by clear implication ; and no such implication arises here, for the reason that the furnishing of private consumers with gas is not a corporate purpose or function.</p> <p>5. The grant of a franchise is, by its own intrinsic force, exclusive against all except the State. (29 N. J. Eq., 249, 250.)</p> <p>6. The notice required by section 5, chapter 56, General Statutes, is a condition precedent to any valid act by the corporation organized under that chapter, and, therefore, the publication of that notice should have been averred. (Field on Private Corporations, section . 385; 14 Bush, 505.)</p> <p>7. It is not essential that the Legislature grant the city, in express terms, the right to grant the exclusive use of the streets. It is sufficient if it flow by reasonable implication from the language used. (Dillon on Municipal Corporations, section 550.)</p> <p>8. Cases explained: State v. Cincinnati Gas Co, 18 Ohio St., 292; City of Oakland v. Carpenter, 13 Cal, 540.</p> <p>9. The privilege granted appellee is not a “public” privilege within the meaning of section one of the Bill of Bights; but if it were, the services rendered under it and growing out of it are “public” services within the meaning of that section.</p>

<p>' Master and Servant — Eespondeat Superior. — When one enters into the service of another he assumes to run all the ordinary risks pertaining to such service; and when a number of persons contract to perform service for another, the employes not being superior or .subordinate the one to another in its performance, and one is injured ■through the negligence of another, they are regarded as the agents ■of each other, and no recovery can be had against the employer.</p> <p>Appellant was the owner of a stone quarry on the side of a hill, :at the foot of which was machinery for crushing the stone. The stone was moved by trucks to a turn-table on the side of the hill, from which it was carried by an inclined railway to the hopper at the foot of the hill. Several men were employed at the turn-table to shove the loaded cars to the top of the incline, the special duty of one man being to attach to the loaded car a cable, for which he received extra pay. Two other men were employed at the foot of the hill to unload the cars and superintend the crushing of the stone. Through the negligence of some one at the turn-table, a car was shoved down the incline without the cable being attached, and one of the men at the foot of the hill was killed. In this action by his personal representative, alleging that his death was caused by the willful neglect of appellant, Held — That appellant is not liable.</p>

<p>To SITE TO THE COURT OP APPEALS JURISDICTION IN A FELONY CASE a certified transcript of the record must be filed in the clerk’s office within sixty days after the judgment, unless the Court of Appeals, by an order made within that time, grants further time to lodge the-transcript, or unless time he given beyond the term at which the-judgment is rendered to present a bill of exceptions. Tbe fac-t that the record was mislaid by the clerk and not found until tbe expiration of tbe sixty days can not confer jurisdiction upon the court to-hear tbe appeal.</p>

Case 27 — INDICTMENT APPEAL PROM PAYETTE CIRCUIT COURT. 1.Appellant having been tried and acquitted under an indictment charging him with burglary, can not be prosecuted for larceny committed at the same time and place. (Fisher v. 'Commonwealth, 1 Bush, 211; Hinckle v. Commonwealth, 4 Dana, 519; 1 Bishop’s Criminal Law (5th edition), 1050, 1051, 1062, 10.63, 1064, and extract from Waite, C. J., in foot notes to 1062.) '.2.

<p>Case 28 — MOTION</p> <p>APPEAL EROM DAVIESS CIRCUIT COURT.</p> <p>I. The notice upon which this proceeding is based is not sufficient. (Bunnell v. Thompson, 12 Bush, 116; Sharpe v. Roe, &e., 13 Bush, 461.)</p> <p>2. Even if’ the notice is to be tested by the form prescribed in the amendment of March 23, 1882, to section 9, of article 12, chapter 38, of the General Statutes, it is not good for the reason that it refers to the venditioni instead of to the execution as required. (Acts 1881, volume 1, page 49.)</p> <p>3. In making out title to land under execution sale it is always necessary to exhibit the judgment.'execution, levy, sale and deed. (Bunnell v. Thompson, 12 Bush, 116; Sharpe v. Roe, &c., 13 Bush, 461; Civil Code, section 120.)</p> <p>4. The motion should have been entered on -the motion docket. (Civil Code, sections 347, 352, 355, 356 and 362; General Statutes, chapter 38, article 12, section 9.)</p> <p>1. The notice in this case is an exact copy of the form prescribed by the statute, and is, therefore, sufficient. (Acts 1881, volume 1, page 49.)</p> <p>2. The description in the sheriff's return of the land levied on and sold was sufficient. (Beid v. Heasley, 9 Dana, 324; Herman on Executions, section 294; Lisa v. Lindell, 27 Mo., 127.)</p>

<p>Res Judicata — Homestead.—The judgment of a court having jurisdiction of the subject-matter and the parties, is conclusive not only as to all matters determined by it, but as to all incidental matters ■which might have been properly litigated and .decided in the same suit.</p> <p>Where husband and wife have united in a mortgage waiving their right of homestead as directed by statute, and the mortgage appears to be duly acknowledged, a judgment of foreclosure in an action in which both husband and wife were before the court and made no defense, is a bar to an action by them claiming a homestead in the land upon the ground that the mortgage was not acknowledged by the wife as required by statute.</p>

Case 30 — PETITION EQUITY APPEAL PROM MASON CIRCUIT COURT. The appellee’ took under his father’s will a defeasible fee — a fee to be defeated or divested by his dying at any time without bodily heirs— and not a fee subject to be defeated only in the event he died without bodily heirs before arriving at the age of twenty-one years.

Case 31 — PETITION EQUITY APPEAL PROM CAMPBELL CIRCUIT COURT. 1. The land being indivisible, the vendor’s right to enforce his lien is postponed until all the purchase money notes are due. (Burton v. McKinney, 6 Bush, 428; Faught v..Henry, 13 Bush, 471; Civil Code, section 694, subsection 3.) 2. It was error to make the commissioner's power to sell depend upon whether or not the judgment was paid by a certain time.

<p>Case 32 — PETITION EQUITY</p> <p>APPEAL prom barren circuit court.</p> <p>1. The loss or disappearance of the vouchers filed with the commissioner was a “surprise on a material point,” which, taken in connection with the other facts of the case, was sufficient to entitle appellant to a new trial. (Hughes v. McGee, 1 Mar., 29; McCall v. Hitchcock, 9 Bush, 66; Ewing v. Price, 3 J. J. Mar., 523.)</p> <p>2. A trustee can not be allowed to purchase property at a judicial sale if the trust estate is interested in having the property bring the highest price; and this rule applies to a commissioner of court. The sale-in this case should, therefore, be set aside. (Kerr on Praud, page-160.)</p> <p>1. The sale can not be set aside, as there is no question raised as to the-jurisdiction of the court, nor any irregularity charged in making the sale.</p> <p>2. If appellant saw proper to neglect the suit and failed to attend and have the proper credits allowed him without any cause or excuse for it, he is now without remedy.</p>

<p>In order to convict one as aider and .abettor, the principal must be indicted jointly with him; or, if he be indicted alone, the in- • dictment must disclose the name of the principal, and give a description of. his acts.</p>

Case 34 — INDICTMENT APPEAL PROM M’LEAN CIRCUIT COURT. 1. The indictment was defective in that it did not charge that the pistol with which the shooting was done was a deadly weapon, and loaded with powder and a leaden ball or other hard sub- ■ stance. This case is unlike the case of Burton v. State, 8 Tex. Ot. Ap.. 408, reported in 30 Am. Bep., 146. :2.

Case 35 — PETITION EQUITY APPEAL FROM HOPKINS CIRCUIT COURT. 1. The least certain and material parts of the description in a deed. must yield to those which are most certain and material, if they can not be reconciled.

<p>Case 36 — PETITION EQUITY</p> <p>APPEAL FROM CAMPBELL CHANCERY COURT.</p> <p>1. The petition should have alleged that the improvement was necessary for the comfort or shelter of the wife or her family. (Gen. Stats., chap. 52, art. 2, see. 2; Pell v. Cole, 2 Met., 252; Harris v. Dale & Co., 5 Bush, 61; Gatewood v. Bryan, 7 Bush, 509.)</p> <p>2. The defendants’ claim to a homestead is superior to the mechanic’s-lien claimed by plaintiffs, the original improvements having been erected prior to the creation of plaintiff’s debt. (Gen. Stats., chap. 38, art. 13, sec. 16.)</p> <p>3. The plaintiff’s reply, which was filed in vacation, is not a part. of the record, as it is not identified by a bill of exceptions or by order of court. (Young, McDonald & Co. v. Bennett, &c., 7 Bush, 474.)</p> <p>4. A general plea of fraud is good without stating the particulars of the fraud. It was, therefore, sufficient for defendants to plead that -‘the acceptance of tjie house mentioned in plaintiff’s petition was obtained from them by fraud.” (1 Chitty, 558; Sharp v. White, 1 J. J. Mar., 107; Ross v. Braydon, 2 Dana, 161; Whitehead v. Root, &c., 2 Met., 588; Boyd, &c., v. Smoot, MS. Op., May 30,1883, 5 Ky. Law Rep., 119; Evans v. Stone, 80 Ky., 78.</p> <p>The lien of a mechanic upon a house which he has built is superior-to the owner’s claim of homestead. (Gen. Stats., chap. „70, sec. 1 24 Ohio St., 402, 413; 26 Texas, 309; 44 Texas, 196; Phillips on Mechanic’s Liens, sec. 183a; Thompson o.n Homesteads, sec. 372 j: Lennen, &c., v. Eitzpatricli, &c., MS. Op., January 22, 1885.)</p>

<p>1. Constant trespasses by one on the property op another may be enjoined by tlie chancellor when the party injured has no adequate remedy at law; and the fact that redress can alone be had by a multiplicity of actions at law for - similar and continued trespasses upon the property, presents strong grounds in favor of the jurisdiction of a court of equity.</p> <p>2. Stone is a part op the realty and passes with it, although it has heen gathered up on the land by the owner or his tenants, so as to enable the land to be cultivated.</p> <p>3. The duty op a curator to whom the estate of a decedent has been intrusted pending the question of will or no will, is confined alone to the preservation of the estate, and while he can sell such perishable goods as the county court may order to be sold and, no doubt, may take possession of the real estate under an order of court, when its control and possession are with the executor, he has no power to sell the realty or any thing that is part thereof, although the will may invest the executors with full power to do so..</p>

Case 38 — PETITION EQUITY APPEAL FROM ANDERSON CIRCUIT COURT. 1. In the construction of wills, effect should be given, as far as practicable, to every part of the will, in order that the intention of the testator may be fully carried out. (Baird v. Kowan, 1 Mar., 217; Morse v. Cross, 17 B. M., 740.) 2.

Case 39 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. The court erred in assuming, in its instructions to the jury, that it was-negligence to leave the brake unattended, instead of leaving it to the jury to determine, under all the circumstances, whether or not it was-negligence. 2.

<p>1. Although the law under which an offense was committed has been repealed, the offender may still he convicted and punished, provided there is nothing in the repealing statute which impairs the force or in any way affects section 23 of chapter 21 of the General Statutes, which provides that “ no new law shall be constraed to repeal a former law as to any offense committed against the former law,’’ etc. This general provision and the repealing statute must be construed together.</p> <p>Therefore, one who committed the offense of “ setting up, exhibiting and keeping a faro bank,” prior to the act of March 25, 1886, amending the gaming laws, may still be convicted and punished, although the law under which the offense was committed has been repealed.</p> <p>2. Existing laws must be construed together, and reconciled if it be possible.</p> <p>3 In an indictment for setting up, exhibiting and keeping a faro bank, it is sufficient to simply allege that it was set up, exhibited and kept, without adding any words descriptive or explanatory of the purpose for which it was or may be used, the faro bank being mentioned in the statute by name. It is only where the machine or contrivance sot up, exhibited and kept is not specially mentioned and designated in the statute, nor the puroose for which it is ordinarily' used otherwise indicated, that it is necessary to allege that the contrivance was one “ whereby money or property or other thing is or may be won or lost,” or to describe it by the use of equivalent words.</p>

<p>IN AN ACTION TO SUBJECT THE REAL ESTATE OF A DEFENDANT CONSTRUCTIVELY served, the levy of an attachment is not necessary to give the court jurisdiction to sell the property, if a lien exists by contract, by statute, by the nature of the action or in equity.</p> <p>Therefore, in an action upon a return of no property, an attachment is not necessary to create a lien if the property sought to be subjected is specifically described in the petition, as a lien is thereby created.</p>

Case 42 — PETITIONS EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The existence of the contract of Wible & Willinger with the city is established by the evidence. There is sufficient evidence of its approval by the Board of Aldermen, and the subsequent refusal of the Board to approve the minutes of the meeting at which the contract was approved could not affect its validity. 2.

Case 43 — PETITION ORDINARY APPEAL FROM CHRISTIAN CIRCUIT COURT. 1. The court should have given a peremptory instruction to find for defendant. Where the facts are clear, and show that the defendant has or has not been guilty of negligence, the court should so instruct the jury. (Nehros v. R. R. Oo., 14 Eng. and Am. R. R. Cases.) 2.

<p>1. A CITY ORDINANCE WHICH DISCRIMINATES AGAINST THE RESIDENTS op other states is in violation of the Federal Constitution, although it makes the same discrimination against the residents of this State outside of the city. An ordinance of the city of Louisville provides that any person who conducts his principal place of business without the city, and shall offer to sell goods by sample within the city, shall be required to obtain an annual license therefor, and shall be required to pay for such license a sum not required to be paid by persons having their" principal place of business within the city. Hud — -That this ordinance discriminates against the residents of other States, and is, therefore in violation of the Federal Constitution.</p> <p>2 One who has paid money to a city under a mistaken belief as to the validity op an ordinance, which required the money to be paid for a license to do business, may recover the money hack, the ordinance being invalid.</p>

<p>1. The tenant, and not the landlord, has the exclusive right of action for any injury to the possession of the rented premises; and this is true whether he retains the possession or not, since it is his exclusive right of possession that gives him the exclusive right of action.</p> <p>2. The wrongful ouster of a tenant by a stranger is not of itself a legal ground of recovery by the landlord against the stranger.. To authorize the landlord to recover, it must appear that he has sustained a loss of his rents which he would have received of the tenant, or that he has sustained damages in the destruction of the premises, or in the dilapidation of them, injurious to the reversion, by reason of their being unoccupied, and to recover such damages be may have an action in the nature of a special action on the case.</p>

■ Case 46 — PETITION EQUITY APPEAL FROM HARRISON CHANCERY COURT. 1. The testator gave to his daughter and granddaughter each a life estate in all the property, both real and personal, devised to them, and having each a life estate, each was entitled to the rents, issues and profits of her share. (Pattie v. Hall, 2 B. M., 461; Hooker v. Gentry, 3 Met., 467.) 2. Postponing the time when the slaves and money were to be divided did not fix the time when the estate was to vest.

Case 47 — PETITION EQUITY APPEAL prom butler circuit court. 1. The statute fixes the conditions upon which a new ferry may be established in close proximity to a pre-exis.ting ferry, and as those conditions did not exist in this case, the order establishing the ferry of appellees was unauthorized. (Gen. Stats., chap. 42, sec. 20.) 2.

<p>1. In an action by a servant against his master to recover damages for personal injury caused by the defective state of machinery or premises or materials provided by the master for the purposes of the work, it is necessary for the plaintiff to allege and prove that the danger or defect was known to the defendant and not known to the plaintiff.</p> <p>2. A DEFECT IN THE PETITION RESULTING FROM THE FAILURE TO MAKE such allegations is not cured by an answer pleading contributory negligence, or by a verdict for plaintiff.</p> <p>3. Contributory negligence is purely a matter of defense as to which the burden of proof is on the defendant.</p> <p>4. A VERDICT MAY CUBE AN AMBIGUITY IN THE PETITION, hut does not avail if there be an omission to allege a. matter which is essential to make out a cause of action.</p> <p>5. The servant is not bound, in all cases, to inform himself as to the safety OF the premises or material to he used, as the master may have superior means of knowledge, and the circumstances may ithorize the servant to rely upon him because of want of equal opportunity.</p> <p>6. Instructions. — As the negligence alleged in the petition was the arrangement of a certain part of the machinery in such a way as to be dangerous, it was error to submit to the jury the question whether another part of the machinery furnished by the master was defective in construction, that question not being in issue under the pleadings.</p> <p>7. Same. — It was error to submit to the jury the question whether, through “ want of care” upon the part of the defendant, the materials furnished the plaintiff for his work were defective in preparation, without defining the degree of care that should have been exercised.</p> <p>8. A pleading is to be construed most strongly against the pleader.</p>

<p>1. The right to plead a statute oe limitation to a particular cause oe action is a vested right when the bar has become complete, and that right can not be disturbed by subsequent legislation extending the time within which such actions may he brought.</p> <p>2. There is no statute oe limitation as to liens, and if the claim to secure which the lien existed becomes barred, the lien dies with it.</p>

Case 50 — INDICTMENT APPEAL PROM JEPPERSON CIRCUIT COURT. 1. Inheritance is the most frequent cause of insanity, and the proof in this ease shows beyond contradiction that insanity is hereditary in appellant’s family. (Practice of Medicine by Professor G. B. Wood, vol. 2, p. 672; 1 Warton & Stilles’ Medical Jurisprudence, secs. 366 and 367.) 2. It was error to refuse to allow appellant to take the depositions of witnesses in Switzerland to prove insanity.

Case 51 — PETITION EQUITY APPEAL PROM MEADE CIRCUIT COURT. The purpose of the injunction in this case was to prevent a threatened trespass upon appellant’s property, and not to stay proceedings under the judgment or execution. Therefore, section 285 of the Civil Code does not apply.

Case 52 — PETITION ORDINARY APPEAL PROM WHITLEY CIRCUIT COURT. 1. Grants of land bounded on rivers or upon the margin of the same, or along the same above tide-water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river.

Case 53 — PETITION APPEAL FROM WOODFORD CIRCUIT COURT. (Brief not in record.) 1. As the petition shows on its face that the alleged cause of action is barred by the thirty years’ statute of limitations, it was not necessary for the defendant to plead the statute. (Chiles v. Drake, 2 Met., 146; Rankin v. Turney, 2 Bush, 555; Board v. Jolly, 5 Bush, 86; Conner and Wife v. Donner, &c., 4 Bush, 631.) 2.

Case 54 — PETITION ORDINARY APPEAL PROM LIVINGSTON CIRCUIT COURT. 1. The court, m submitting special findings to the jury, should have submitted a special finding on each point in the case. (4 Dana, 270 and 280.) 2. In joint tenancy, all must recover or node. (Newman on Pleading, 277, 278; 1 Mar., 39; 2 Mar., 231 and 387; 3 Mar., 19, 378 and 462; Litt. Select Cases, 420; 7 Mon., 230.) ' 3.

Case 55 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The doctrine of caveat emptor applies to judicial sales; and after the sale has been confirmed, no relief will be granted because of a defect in the title. (Harrison v. Hord, 12 B. M., 472; Dawson, &c., v. Litsey, 10 Bush. 410; Yocum v. Foreman, 14 Bush, 499 ; Farmers’ Bank v. Peter, 13 Bush, 594.) 2.

<p>V. "Where our probate court admits to probate a copy of a will-WHICH HAS been PROBATED IN A foreign court, without defining' whether it is admitted as a will of realty or of personalty, the pre-sumption is that the copy was admitted to probate as a will of both real and personal estate, if the evidence contained in the transcript of the proceedings and judgment of the foreign court was sufficient tc authorize the probate of the original will under our laws; otherwise,, the presumption is that the copy was admitted hy our court of probate' as a will of personalty only, the court having no authority in such a case to admit it as a will of realty.</p> <p>In this case, the presumption is that the copy was admitted hy the Kentucky probate court as a will of both realty and personalty, the evidence of two witnesses contained in the transcript of the proceedings of the foreign court of probate showing conclusively that the will was wholly written in the handwriting of the testator.</p> <p>2. A holographic will could he admitted to probate under the Revised Statutes upon the proof of only one witness that it was in the handwriting of the testator.</p> <p>3. To AUTHORIZE THE PROOF BY THIRD PERSONS OF THE DECLARATIONS of others as to the relationship of a certain person to another, it must appear that the declarant is dead, and that he was related to the person in question hy blood or marriage; and any person who heard such declarations, whether related or not, may prove them, if otherwise competent as a witness. If, however, the relationship is at-, tempted to be proved by general repute in the family, and not by the declarations of its deceased members, the proof can he made alone by the surviving numbers of the family.</p> <p>In this contest between appellant and appellee, it being a question in issue whether appellee was a certain person named as devisee in a will, the declaration of the other devisees in the will that appellee was the person named was mere hearsay and incompetent, the contest not being between appellee and the other devisees.</p>

<p>Case 57 — PETITION EQUITY</p> <p>APPEALS FROM LOUISVILLE( CHANCERY COURT.</p> <p>1. The order, of sale should be set aside because of the gross abuse of discretion by the chancellor in prescribing the terms of sale. A credit of six and twelve months is not reasonable in selling a farm, of such value as that ordered to be sold in this case. (Civil Code, section 827.)</p> <p>2. The chancellor had power to cause the land to be divided, but had no power to make the division by his judgment. (Civil Code, section 694.)</p> <p>3. Johnson and Willett had the right to make any new or modified contract as to interest, provided the new contract did not exceed nine per cent. It was error, therefore, to prefer Finzer to Mrs. Johnson, unless the now contract gave her a lien exceeding nine per cent., and then only to the extent of the excess.</p> <p>2. The compounding of the interest at 7J per cent, semi-annually does not exceed simple interest at 9 per cent.</p> <p>1. The judgment of April 27, 1883, was a final judgment in so far as it was in personam, and the court had no power, after the expiration of sixty days, to modify or change it in any way. Therefore, the judgment of November 8, 1883, in so far as it lessens the amount of the money judgment of April 27, 1833, was unauthorized. (Bullitt’s Code, section 772.)</p> <p>2. Mrs. Johnson is entitled to a superior lien not only for the principal of her debt, but for interest as contracted for.</p> <p>3. The judgment appealed from does not possess sufficient legal certainty as to the terms and conditions of sale. A judgment must leave nothing touching the amounts or parties doubtful or uncertain. (Stratton v. Mut. Ins. Soc., 6 Rand., 30 and seq.)</p> <p>4. The contract between Willett and Johnson as to interest was valid and binding. Within the limits and restrictions of the statute, contracting parties may enter into any agreement as to the amount of a loan, and the period it shall cover, and rate of interest it shall bear, and the. times or rests when said interest shall become due and payable. (Phinney v. Baldwin, 16 111., 108; Crosthwait v. Misc.er, 13 Bush, 543; Corcoran v. Doll, 32 Cal., 88; Sessions v. Richmond, 1 R. I., 305; Brewster v. Wakefield, 1 Minn., 352.)</p> <p>1. The judgment of November 8, 1883, is not in conflict with that of April 27, 1883, as the one is purely a personal judgment, while the other enforces a lien therefor, and adjusts priorities.</p> <p>2. The contract between Willett and Johnson for the compounding of interest can not vary the rights of the Finzers, as they existed before the making of that contract.</p>

Case 58 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1.

Case 59 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. 1. All the banks and assignees had notice of the provisions of appellant’s charter. The provisions of the - charter of a corporation are per se notice to all the world, and a by-law authorized by the charter has the same effect. (Transfer of Stock, Lowell, sections 165, 167, 168, 171, 172 and 176.) 2.

<p>Case 60-INDICTMENT</p> <p>APPEAL FROM UNION CIRCUIT COURT.</p> <p>1. It is error in instructing a jury to caution them in regard to any species or character of evidence, or the mode in which they shall consider any class of witnesses or any character of testimony. The case of Eleetwood v. Commonwealth. 80 Ky., 5, is the only case approving such an instruction as that complained of by appellant. (Brady v. Commonwealth, 11 Bush, 235-6; Elswick v. Commonwealth, 13 Bush, 155-157; Berry v. Branham, &c., 3 Ky. Law Rep., 756; Cook v. Commonwealth, 4 Ky. Law Rep., 33; 4 Ky. Law Rep., 226; Ibid.., 827; 3 Ky. Law Rep., 394; 6 Ky. Law Rep., 50.)</p> <p>2. It was error to leave it to the jury to judge of the materiality of the testimony which they might believe to be false.</p> <p>3.' Every error in instructions ought to be taUen as prejudicial to the party objecting, unless there is something in the record showing the contrary.</p> <p>While such an instruction as that complained of by appellant has been condemned, the giving of such an instruction has never been held to be a reversible error, as it can not prejudice the accused.</p>

<p>Sale by Chancellor op MIrried Woman’s Eeal Estate. — While the chancellor may, in such an action as is provided for by section 491 of the Civil Code, order the sale of the life estate or remainder interest of a married woman in real estate, he has no power to sell the absolute estate of a married woman. She can divest herself of title only in the manner pointed out by the statute.</p> <p>Husband and wife filed an equitable action against their children, asking for the sale of two tracts of land, in which they alleged the wife had a life estate and the children the remainder. The exhibit filgd shows that the wife had an absolute estate in one of the tracts of land. A sale was made under the chancellor’s order, and the purchaser appeals from the order confirming the sale. Held — That the title did not pass, but as the chancellor had jurisdiction to sell one of the tracts, and the proper proceedings -were had therefor, the chancellor should give the plaintiffs an opportunity to execute to the purchaser a deed to the other tract, and, if they do so, should not disturb the sale.</p>

Case 62 — INDICTMENT APPEAL PROM HENDERSON CIRCUIT COURT. 1. When it is sought to enforce any rule of the common law in Kentucky, it must first be shown that it was established and recognized as the common law of England in 1603: (Bay v. Sweeney; 14 Bush, 9; Constitution of Kentucky, art. 8, sec. 8.) 2. In order to establish the offense of having carnal knowledge of a woman at common law, it is necessary to show both penetration and emission.

Case 63 — PETITION EQUITY APPEAL PROM HARRISON CHANCERY COURT. 1. Appellee can not recover the interest paid, even if not due in the first place, the payment being purely voluntary. (City of Louisville v. Anderson, 79 Ky., 334.) 2. All judgments bear interest in this State except such as are embraced by sec. 6, art. 1, of chap. 60, Gen. Stats. 3. The appellant’s action was not for an “ injury to the person ” within the meaning of the statute.

Case 64 — PETITION EQUITY APPEALS FROM DAVIESS CIRCUIT COURT. 1. The petition, as amended, presented no cause of action against the Springfield Insurance Company. The amended petition refers to the Springfield Fire Insurance Company, while the caption of the original petition has Springfield Insurance Company. (Kelly v. Owensboro Savings Bank, MS. Op., Nov. 2, 1875.) 2.

Case 65 — PETITION EQUITY APPEAL PROM PLEMING CIRCUIT COURT. 1. A voluntary conveyance by an insolvent debtor is fraudulent and void as to the grantor’s pre-existing creditors.

<p>Case 66 — MOTION</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>Briefs not in record.</p>

<p>Case 67 — PETITION EQUITY</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. When property belonging to such an organization as the appellant has been taken from its members by the mere arbitrary will of those constituting the judicature of such organization, without regard to the constitutional restraints by which such property rights should be protected, the civil courts may interfere. (Gartin, &c., v. Penick, 5 Bush, 113; Kinkead v. McKee, 9 Bush, 536.)</p> <p>2. Appellant is not entitled to a writ of mandamus to compel the appellee to obey the order of the Grand Lodge restoring the appellant to his membership, and to all its incidental rights and benefits. Mandamus will not lie against a private corporation, or the officers thereof, intrusted with the performance of no governmental function, and having no right to exercise any power of a public nature. (Cook v. College of Physicians, &c., 9 Bush, 541.)</p> <p>1. The allegation of appellant that he was unlawfully expelled from the order is a conclusion of law. He should have alleged the facts upon which the expulsion rested.</p> <p>2. If the appellant failed to have the order of the higher court obeyed, or if there was no power in the higher court to compel an obeyance of its order, that was the misfortune of appellant, and affords no ground upon which to ask the courts of law to investigate the grounds of expulsion in a proceeding of this character.</p> <p>8. Appellant’s remedy, if he had any, was by a mandamus against the appellee to compel it to restore him to his rights in the order.</p> <p>4. Appellant has acquiesced too long in the refusal of the appellee to restore him to membership to now complain. (Bostwick v. Eire Department, — N. W. Rep., 501.)</p> <p>•5. Appellant is not entitled to have the civil courts inquire into the legality or regularity of the proceedings by which he was expelled. (Hitter v. German Roman Catholic Society, 4 Iiy. Law Rep. 872; Society for Visiting the Sick v. Commonwealth ex rel, Meyer, 52 Pa.; s. c. 6 Am. Law Reg., N. S., 633; Osceola Tribe Independent Order of Red Men v. Schmidt, 57 Md.; s. c. 25 Alb. Law J., 333; Anacosta Tribe of Red Men v. Murbock, 13 Md., 94; Black, &c., v. Vandyke, 2 'Wharton, 309.)</p>

<p>1. In NO CASE CAN THE SHERIFF POSTPONE THE EXECUTION OF HIS REVENUE bond longer than the first Monday in January, whether the bond is for the first or second year of his term; and unless the bond is accepted by the court within the time fixed by the statute, it is void.</p> <p>2. The power of the county court to continue its session from day to day for the purpose of transacting business, and make its session only one day, relates to the transaction of such business as it may lawfully do on any of those days, and not to the transaction of such business as the statute requires to bo done on a particular day or within a given time.</p> <p>The court can not, therefore, extend the time for the execution or acceptance of the sheriff’s bond by making no adjourning order, and continuing its session from day to day.</p> <p>3. Parol Proof to Contradict Record. — The sureties of the sheriff may show by parol proof that the bond was executed on a da er than that which the record recites.</p>

Case 69 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. 1. Evidences of indebtedness can not be taxed in this State when due to or owned by a non-resident. Held: in this State, to be a ministerial proceeding, and relief can not be had by appeal. As to the reasons whj' assessments will not be enjoined in other States, see Cooley on Taxation, p. 540; Western R. Co. v. Nolan, 48 N. Y-, 513. 5.

Case 70 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. The devise to Mrs. Chambers did. not create a separate estate. While no technical words are necessary to create such an estate, the intention to do so must be clearly indicated. There must be a sufficient expression of an intention to exclude the marital rights of the husband. (Eev.

<p>A. CONVEYANCE BY THE HUSBAND BEFORE MARRIAGE, IN CONTEMPLATION thereof, will not be set aside for the purpose of giving the wife dower, if the intention of the grantor was to provide for his children by a former marriage, and not to defraud the wife, the advancement or gift being reasonable when considered with reference to the property owned by the grantor.</p> <p>In this case the promises of the grantor to his former wife to execute the conveyances, and his continued purpose to do so, are considered as circumstances showing his good faith.</p>

Case 72 — PETITION EQUITY APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. Appellee’s claim, if he has any, is not against the firm of Stevenson & Williams, but it is against James G. Williams and W. D. Stevenson as individuals, and he must look to their individual assets respectively for contribution. (Northern Bank of Ky. v. Keiser, 2 Duv., 169; Whitehead v. Ohadwell, Ibid., 432.) 2.

Case 73 — FORFEITED BAIL BOND APPEAL FROM JEFFERSON CIRCUIT COURT. l.The proceedings contemplated by sections 22 and 23 of article 1, chapter 47, of the General Statutes, are not of that character' which the Criminal Code was intended to repeal, or in anywise affect. They are meant for special offenses, and are intended to be auxiliary to the general cause of criminal procedure.

Case 74 — PETITION EQUITY APPEAL FROM BOURBON CIRCUIT COURT. 1. The court erred in failing to quash the summons, and strike the so-called petition from the files. The Code requires a caption, and provides what that shall contain. The change of parties made by the amended petition without leave of court was improper and unauthorized. (Civil Code, section 110.) 2.

<p>1. In EVERY SALE OF GOODS WHERE THE VENDOR SELLS AN ARTICLE BY A particular description, it is a condition precedent to his right to recover the purchase price that the thing which he offers to deliver should answer the description; and even if the thing has been delivered. the purchaser may, upon discovering, within a reasonable time, the fact that it does not answer the description, return it and avoid recovery of the price.</p> <p>In this case appellee purchased at public sale a number of stacks of what was represented to be hemp. When he spread it he discovered that the stacks were composed of so large a proportion of weeds that they could not be characterized as stacks of hemp, whereupon he notified the vendor of the fact, and tendered to him the stacks. Held_ That the vendor failed to perform his contract, and can not recover the purchase price.</p> <p>2. Evidence. — It was not improper to permit bundles taken from the stacks to be exhibited to the jury.</p> <p>3. Same. — The statute prohibiting one from testifying for himself as to a. transaction with a decedent does not 'prevent one from testifying for himself as to a transaction with the living administrator.</p>

<p>1. No PARTICULAR FORM OF WORDS IS NECESSARY TO CREATE A SEPARATE estate in a married woman. It is only needful that an intention to vest the property in the wife to the exclusion of the husband shall clearly appear. Nor is it necessary, where the wife’s right to personal property is based upon a writing, that the paper itself should show an intent to exclude the husband in order to create a separate estate in the wife. The intention may he shown by evidence aliunde the writing.</p> <p>2. The mere raising op a trust for a married woman may not create a separate estate in her as to personalty, but it is at least a circumstance tending strongly to show an intention to invest the wife with the exclusive use of the property.</p> <p>In this case the wife’s portion of the estate of a deceased brother was invested for her by a friend in certain shares of bank stock, and the certificate made out in the name of the husband as trustee for the wife. The husband was absent at the time, but, upon his return, approved the investment, and the dividends were received by the wife, the husband always recognizing the trust. Held — That the stock was the separate estate of the wife.</p> <p>3. A married woman resident in Kentucky can not execute a power of attorney.</p> <p>4. A sale by an agent to himself of the property of the principal is void at the option of the principal, and one who purchases from the agent with notice of the facts holds as a trustee for the principal.</p> <p>An agent to sell bank stock belonging to the principal had the stock transferred to himself on the books of the bank. The agent after-wards transferred the stock to the bank. Held — That the bank is not an innocent purchaser, and holds the stock as trustee for the principal.</p> <p>5. Trusts — Adverse Holding. — The bank, standing in the attitude of a trustee, can not be regarded as holding either the stock or dividends adversely to the real owner.</p> <p>6. Limitation. — Dividends upon bank stock are payable upon demand; until demanded, the bank holds them in trust for the stockholder; and until then, time does not begin to run against the owner’s right to them.</p>

Case 77 — PETITION EQUITY APPEAL PROM CLARK COURT OP COMMON PLEAS. 1. The Clark Court of Common Pleas was without authority to order this case to be transferred from the Montgomery Circuit Court. There is no provision of the Civil Code authorizing the transfer of an action from one court to another, except in sections 13 and 210, and neither of those sections is sufficient to authorize the transfer made in this ease.

Case 78 — INDICTMENT APPEAL FROM MONTGOMERY CIRCUIT COURT. X. There is no such statutory offense in Kentucky as assault and battery. If that offense exists in Kentucky, it is in virtue of the common law, and must be punished according to the common law. 2. A battery is an assault in which force is applied by material agencies to the person of another. (Stephens’ Dig. Crim. Law, art. 241; Wharton’s Am. Crim. Law, sec. 017.) 3.

<p>Case 79 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. Appellant was entitled to the peremptory instruction asked.</p> <p>2. The indictment is insufficient in that it does not allege the name of the person murdered. It is essential under the Code, as it was under the old system of pleading, to allege in the indictment every fact necessary to constitute guilt.</p> <p>3. As the defendant could admit the facts alleged, and yet make proof that Wheeler did not die of the wound inflicted by defendant, the indictment is not good when tested by the rule laid down in Kaelin v. Commonwealth, 8 Ky. Law Hep., 295.</p>

<p>1. Under the “Pharmacy Act” of this State all “graduates in pharmacy ” are entitled to be entered as registered pharmacists without submitting to an examination, and without having served an apprenticeship, and any rule of the State Board of Pharmacy to the contrary is void.</p> <p>2. A graduate of a “ School op Pharmacy,” which is one of the departments of an advanced institution of learning, whether in this State or not, such as the University of Michigan, is a graduate of a “College of Pharmacy” within the meaning of the “Pharmacy Act.”</p> <p>3. Graduation as a pharmaceutical chemist confers the honor of a “ graduate in pharmacy.”</p> <p>4. Mandamus will lie to compel the State Board of Pharmacy to enter a “ graduate in pharmacy ” as a registered pharmacist, the board having no discretion in the matter.</p>

Case 81 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The contract sought to be enforced in this case is sufficient to satisfy the requirements of the Statute of Frauds, as the Kentucky statute expressly provides that in contracts for the sale of real estate, the consideration need not be expressed in the writing. (General Statutes, chapter 22, section 1; Steadman v. Guthrie, &c.,'4 Met., 152; Gully v. Grubbs, 1 J. J. M., 391.) :2.

Case 82 — PETITION EQUITY APPEAL PROM NELSON CIRCUIT COURT. The appellee is not released from liability on the note sued on, as its surrender was without consideration, -the two notes accepted in lieu thereof being forgeries. (Williamson v. Martin, 2 Duv., 493.) The judgment in the former action in which appellee pleaded non est factum, is a bar to the recovery sought in this action.

<p>[This opinion was ordered to he reported when delivered, but the fact was overlooked at the time, and it has never been reported.]</p> <p>A MARRIED WOMAN MAY BIND HER SEPARATE ESTATE or its proceeds, by express contract or necessary implication, for the payment of such debts as she may create, or the discharge of any contract she may make, for her own use and benefit; and her husband’s concurrence is necessary only where a conveyance is required.</p> <p>Husband and wife executed a note, which recited that it was for materials, furnished at the special instance and request of the wife, to be “ used in the necessary repair of her house.” Held — That the wife’s separate estate may be subjected to the payment of the debt.</p>

<p>Case 84 — PETITION EQUITY</p> <p>APPEAL EROM TAYLOR CIRCUIT COURT.</p> <p>1. If the oral representations and promises alleged to have been set out in the printed pamphlet can be tortured into an undertaking to issue a paid-up policy, it was a contract not possible to be performed within a year, not signed by the party to be charged, and, therefore, within the statute of frauds.</p> <p>2. If the alleged representations deceived the assured into the acceptance of the policy, he might have rescinded the contract, but there can be no specific execution, in the absence of averment that the contract as made entitled the assured to the paid-up policy, and that the stipulation to that effect was left out of the writing by mistake, inadvertence or fraud.</p> <p>3. As to policy No. 2826, the insured had the right to pursue either of two courses: either continue the policy in force for the full amount of the insurance so long as the dividends declared and unpaid, or dividend additions, and the value of the policy would keep it alive, or, at the election of the party to be benefited,.he might, within thirty days from the default, have surrendered the old policy and demanded a new and paid-up policy. Remaining silent for thirty days (in this case more than three years), the insured is to be held to have elected to pursue the former of these two courses. (Attorney General v. Conn. Mut. Life Ins. Co., 93 N. Y., 70; Insurance Co. v. Robinson, 40 Ohio St., 273.)</p> <p>The cases of Montgomery v. Phcenix Mut. Life Ins. Co., 14 Bush, 51, and Southern Mut. Life Ins. Co. v. Johnson, 79 Ky., explained and distinguished from this case.</p> <p>(A petition for rehearing, filed in the Superior Court, which is referred to as a part of this brief, is not in the record.)</p> <p>1. Admitting that the alleged representations were made, the subsequent application and policy make the whole completed contract which can not be added to, varied or contradicted. (1 Greenleaf on Evidence, section 275; Insurance Co. v. Mowry, 6 Otto, 548; Bliss on Life Insurance, section 271.)</p> <p>2. Appellee agreed to a condition subsequent on the happening of which his policy became void, and equity should not relieve him. (Bliss on Life Insurance, section 181; New York Life Ins. Co. v. Stalham, 8 Otto, 24; Robert v. N. E. Mut. Life Ins. Co., 1 Desney, 355; 2 Desney, 106.)</p> <p>3. As to policy'2826, the insured should, at least, have demanded a paid-up policy within a reasonable time. (Southern Mut. Life Ins. Co. v. Johnson, 79 Ky„ —.)</p> <p>It is to be determined in this case whether five years is a reasonable time.</p> <p>4. Can the action be maintained without alleging any prior demand or any offer to surrender the policy ?</p> <p>5. If appellee is entitled to a paid-up policy for either or both of his policies, the amount adjudged by the court is largely in excess of the correct sum.</p> <p>1. The representations made by appellant’s agent and set out in the pamphlet exhibited by him, form a part of the contract between the parties, and entitle appellee to a paid-up policy for policy 127.</p> <p>2. The clause in the note executed by appellee, providing that the policy should “cease and determine,” if he made default in the payment of the note, did not deprive him of the right to a paid-up policy upon his failure to pay the note at maturity. (Montgomery v. Jfhcenix Mutual Life Ins. Co., 14 Bush, 58.)</p> <p>3. If the company had a right to declare a forfeiture of the policy upon appellee’s failure to pay the note at maturity, the company waived that right by holding on to the note. (Montgomery v. Phoenix Mutual Life Ins. Co., 14 Bush, 58.)</p> <p>4. As to policy 2826, it was not necessary that appellee should deliver up the original policy within thirty days, in order to entitle him to a paid-up policy. (Hancock v. Southern Mutual Life Ins. Co., MS. Op., October 25, 1878.)</p> <p>5. The judgment is not for too large an amount.</p>

Case 85 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. j. The plaintiff is entitled to notice of every defense intended to be relied upon, consisting of any new matter constituting a defense, by a statement of such new matter in the answer. (Denton v. Logan, 3 Met., 435; Newman on Pleading. 523; Hunt v. Daniel, 6 J. J. Mar., 404.) 2.

Case 86 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. I. As a written promise to pay imports a valuable consideration, and the obligation sued on recites the fact that it was executed as well for “value received,” as for love and affection, the demurrer should have been overruled, and the defendants required to aver and prove the want of a valuable consideration. II.

<p>Under the law of this State a dog is property, and, therefore, the subject of larceny, the ancient common law rule having, in effect, been abrogated by statute in Kentucky, and this was true even prior to the act of the Legislature of May 17, 1886.</p>

Case 88 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The purchase of property under decretal sale at’extraordinary sacrifice is sufficient ground to enable a court of equity to set aside the sale and relieve the parties. (Adams’ Equity, sec. 115; Ross v. Norvell, 1 Wash. Va, 19; Fennick v. Macey. 1 Dana, 276; Baker v. Baker, 13 B. Mon., 408; Montgomery v. Caldwell, 4 Bibb, 306; Blight’s Heirs v. Tobin, 7 Mon., 622; Moyers v. Williams, 1 Duv., 336.) 2.