Volume 85 — Kentucky Reports

Oase 1-PETITION ORDINARY appeal prom jefferson court op common pleas. 1. The prompt payment of the premiums in ordinary life insurance is a condition precedent to the continuation of the risk where it is provided in the contract that the policy shall be forfeited for non-payment; and the assured need not be formally notified to appear and show cause against the forfeiture. (Manhattan Life Ins. Co. v. LePert, 52 Texas, 504; 93 N. Y., 70; St. Louis Mut. Life Ins.

<p>Case 2 — FORCIBLE DETAINER</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. A tenancy from year to year may exist in Kentucky. (Morehead v. Watkyns, 5 B. Monroe, 229; Hauser v. Rorner, Ky. Law Jour, and Rep., p. 816, April, 1883; Mendel v. Hall, 13 Bush, 234; Taylor’s Landlord and Tenant, chapter 11, section 475, p. 344; Bell v. Norris, 79 Ky. Reports, p. 49.)</p> <p>2. Though tenancies from year to year had been abrogated by sec. 1, art. 4, chapter 66, General Statutes, it would nevertheless have been competent and lawful for a landlord and his tenant to agree that the tenancy should be from year to year.</p> <p>3. Eorfeitures aside, a tenancy from, year to year can be terminated in two ways only, viz.: (1) by agreement, and (^2) by a notice to quit, given a proper time before the end of the rental year, by either party, the notice to end with the end of the year. If, without such notice, the occupation goes beyond the expiration of any year, a new year is entered upon, and a right to enjoy it arises. (Taylor’s Land, and Ten., section 476.)</p> <p>4. If a tenant, from year to year, after the end of any year, pays rent to his landlord which he receives as such, and said rent is owed or paid for the use of the premises after the end of a year, such payment and receipt of itself creates a new contract or renewal of the tenancy from year to year, and for the current year in which the rent is paid the tenant will have the right to remain in possession of the leased premises. (Taylor’s Land, and Ten., sections 22 and 58.)</p> <p>5 Where, by verbal contract, á landlord lets premises to his tenant for a longer period than one year, and the tenant holds for a longer period than one year with the landlord’s consent, the law makes this holding a tenancy from year to year. (Moorehead v. Watkyns, 5 B. Monroe, 229, and Hauser v. Romer, supra.)</p> <p>6. At common law where a case was tried, and no issue was made up, a new trial would be given. Handly v. Travis, Sneed, 139; Goodloe v. Chapman, Sneed, 226.)</p> <p>7. Demand of possession and refusal by tenant must be proved to have been made on the day the forcible detention is charged to have occurred. (Civil Code, section 454; Thompson v. Shepherd, 2 Bush, 177; Beymoth v. Mandeville, 5 Bush, 584.)</p> <p>8. At common law only the plaintiff could have judgment non obstante veredicto, and this judgment was always on the merits. (Chitty on Pleading, volume 1, p. 657; Bouvier Law Diet., title Judgment, section 31. But under the Code either party may have the judgment if entitled to it on the pleadings, and this irrespective of the merits of the case. (Civil Code, 386; Evans v. Stone, 80 Ky. Reports, p. 79.)</p> <p>8. The traverser, in case of forcible detainer,' is entitled to judgment in the circuit court, though a verdict may have been rendered against him, if the traversee fail, by written plea, to join issue on the traverse. (Civil Code, sections 115, 114, 386 and 465; Evans v. Stone, supra; Dibble v. Porter, 1 Duvall, 190; Todd v. Bates, 3 Bibb, 100; Act 1810, approved January 31, 1810. Nor is this right waived by a motion made for a new trial. Howser v. Watson, Ky. Law Jour., December, 1881, p. 306.)</p> <p>1. A wide discretion is allowed in permitting a party to introduce additional testimony after announcing himself through. (6 Ky. Law Rep., 306; Larman v. Hurley’s Heirs, 13 B. Mon., 438.)</p> <p>2. Appellant’s tenancy began at a certain date, to end one year from that time, and is just such a tenancy as is contemplated by article 4 of chapter 66, General Statutes. Therefore, as appellee demanded and instituted proceedings to obtain possession within the ninety days fixed by the statute, he was clearly entitled thereto. (Mlendel v. Hall 13 Bush, 232.)</p> <p>3. The words “express contract,” as used in the statute, refer to an agreement made before the expiration of the term for another definite term.</p> <p>4. Appellant, by making a motion for a new trial, waived his motion for judgment non obstante veredicto. The motion for a new trial admits an issue of fact, while the motion non obstante is based upon the id that there was no issue. (Stephen on Pleading (Tyler), p. 1 Owensboro Water Co. v. City of Owensboro, 5 Ky. Law Rep., 665.)</p> <p>5. This is a special proceeding that requires no pleadings. A motion for judgment, notwithstanding the verdict, cannot be made in such a proceeding. (Civil Code, sections 87, 88, 89 and 386.</p> <p>Such proceedings should not be scrutinized with technical strictness. (Pollard v. Otter, 4 Dana, 517; Case v. Roberts, 4 Dana, 596; Dibble v. Porter, 1 Duv., 190; Barrett v. Chitwood, 2 Bibb, 431; Jones v. Sidles, 1 A. K. Mar., 54.)</p> <p>6. Judgment non obstante can be rendered only on application of plaintiff. (Freeman on Judgments, section 7, subsection 4, chap. 1. and cases referred to in note 1; Stephen on Pleading (Tyler), ed. 1875, p. 126.)</p>

<p>1. Trespass — Injunction.—To enter upon land forcibly, and against the consent of the person having the title and actual possession, and deface his land-marks or make new ones, is such a trespass as the chancellor will, by injunction, restrain.</p> <p>2. Caveat. — A party in possession and claiming the title to land is not required to enter a caveat with the Register in order to prevent the issuing of a grant, to another, but may commence his action for that purpose in a court of chancery, without resorting to the preliminary proceeding by caveat. The filing of a caveat in the Register’s office is a proceeding provided for by the Civil Code, to prevent the emanation therefrom of a patent for vacant and unappropriated land, to a claimant who is not entitled thereto, where there is a controversy between conflicting claimants as to the right to a patent.</p>

<p>Transfer by Husband in Eraud of Wife’s Marital Rights.— Where the husband, in contemplation of death, gives to his children the whole of his personal estate, including his money, dioses in action, etc., with the fraudulent intent to deprive his wife of the interest therein to which she would be entitled as his widow, the gift will be set aside at the instance of the widow, in so far as it affects her rights, and it is no response to her claim that her dower interest in the land left by her husband is sufficient to support her.</p>

Case 5 — PETITION OBDINAKY APPEAL PROM CLARK COURT OP COMMON PLEAS. The appellee’s conduct amounted to a waiver of his right to rely upon appellant’s default in the payment of the first installment as a forfeiture of further time in which to pay the debt; and the fact that lie was to continue to receive more than six per cent, interest, was sufficient consideration for the waiver.

Case 6 — PETITION EQUITY APPEAL FROM MERCER CIRCUIT COURT. Statement of Eacts.

<p>Case 7 — PETITION EQUITY</p> <p>APPEAL FROM BRECKINRIDGE CIRCUIT COURT.</p> <p>1. The guardian ad litem may appeal in the name of the infants. (Reed v. Louisville Bridge Co., 8 Bush, 69.)</p> <p>2. The Breckinridge Circuit Court was without jurisdiction. A trustee must settle his accounts in the county of his appointment and qualification. (Snyder v. Snyder, 1 Md. Ch’y, 295; Brown v. Wallace, 4 Gill & J., 479; McAfee v. Bolden, 6 Bush, 537; Civil Code, secs. 471 and 472.)</p>

Case 8 — PETITION EQUITY APPEAL EROM LAUREL CIRCUIT COURT. 1. The owner of a homestead which is exempt, has the right to sell it and invest the proceeds in another, which will also be exempt as against any debts from which the original homestead would have been exempt.

Case 9 — PETITION EQUITY APPEAL FROM GARRARD CIRCUIT COURT. 1. A material alteration of a note or a mutilation thereof, made by the payee or by his procurement or consent, vitiates the note and renders' it void for all purposes, discharging the obligors from liability for the debt itself, and not merely destroying the evidence of the debt.

Case 10 — PETITION EQUITY APPEAR PROM PENDLETON CHANCERY COURT. The contract between appellee and appellants’ intestate is not enforceable because of the want of mutuality. Appellee had no power to contract for the sale of her infant’s real estate, and signed no writing to bind herself. 1. The appellee had the right to maintain this action in her own name. (Oivil Code, sec. 21.) 2.

Oase 11 — PETITION EQUITY APPEAL PROM BULLITT CIRCUIT COURT. 1. Where a marriage is contracted by both parties with full knowledge that a former valid marriage has been contracted by one of the parties with a third person who is still living, the issue of the second marriage is not legitimate. (Sections 3 and 4 of article 1, chapter 52, General Statutes.) 2. In construing a statute effect should be given to every provision. (Potter’s Dwarris, p. 144.) 3.

<p>1. A JUDGMENT DISMISSING AN ACTION WILL NOT BAR ANOTHER SUIT founded on the same cause of action if the first suit was dismissed because the court had not jurisdiction to hear it upon its merits.</p> <p>The dismissal of an action to set aside a fraudulent conveyance does-not bar another action for the same purpose, the first suit having been dismissed because the plaintiff had not obtained a return of “ no property.”</p> <p>2. In an action to set aside a conveyance as constructively fraudulent, the fact that the grantor had other property subject to execution sufficient to pay the plaintiff’s debt, upon which the plaintiff' refused to have his execution levied, in order that he might subject the' property fraudulently conveyed, and thus deprive the grantee's-husband of his marital rights, is not a valid defense, as a voluntary conveyance passes to the grantee no title whatever as against the existing liabilities of the grantor.</p> <p>3. Curtesy. — "While, as a general rule, the husband is required to take actual possession of the wife's land as a condition precedent to his-right of curtesy therein, the reason of the rule is complied with, and the husband is entitled to curtesy, if any person at the death of the1 wife is seized of her land for her use.</p> <p>A father conveyed land to his daughter, but held and possessed the land thereafter until her death, she and her husband living with him. Held — That the father’s holding must be construed as for the use of the daughter, and her husband is entitled to curtesy.</p> <p>4. Same — Conveyance in Consideration oe Support. — A father conveyed land to his daughter in consideration of love and affection, and the additional consideration of the grantee undertaking to support, the grantor and his wife during their natural lives, a lien being retained in the deed as a. security for the support of the grantor and his-wife. The grantee died, her husband and the grantor surviving. In this action by the husband against the grantor 'to recover the land, upon the ground that he is entitled to curtesy, it ajjpears that the plaintiff and the defendant are unfriendly, and that this estrangement will probably continue. Held — That the defendant is entitled not-only to the exclusive use and control of the land during his life, but. is entitled also to have so much of the land itself as may be necessary for his reasonably comfortable support during life applied to that purpose.</p>

Case 13 — FORFEITED BAIL BOND APPEAL PROM CUMBERLAND CIRCUIT COURT. 1. In order to bind the bail after the trial begins, there must be an agreement or consent upon his part, in open court, to stand bound on the bond. Nothing short of this will bind the bail. (Criminal Code, ■ sections 183 and 229; Askins v. Commonwealth, 1 Duvall, 275; White v. Commonwealth, 80 Ky., 488.) 2. The court erred in holding that as the jury had not been sworn the trial had not begun.

Case 14 — PETITION ORDINARY APPEAL FROM BARREN CIRCUIT COURT. 1. It is not, and never was, the law in this State “ that usury paid upon a decree in equity can not be recovered back in equity, because decree will not be rendered against decree,” or for any other reason.

<p>Case 15 —INDICTMENT</p> <p>APPEAL PROM PAYETTE CIRCUIT COURT.</p> <p>1. All threats, whether communicated or not, are competent to aid the jury in determining the intention of the parties at the time of the difficulty. (Cornelius v. Commonwealth, 15 B. Mon., 546.)</p> <p>2. The court erred in instructing the jury, in effect, that in order to acquit upon the ground of self-defense, they must believe that the defendant had a valid or sufficient cause to believe that he was in danger, when in fact he. was entitled to an acquittal if he believed and had reasonable grpunds to believe that he was in danger. (Holloway v. Commonwealth, 14 Bush, 346.)</p> <p>1. The court erred in refusing a continuance.because of the absenceof important witnesses, the defendant having been diligent in his efforts to procure their presence.</p> <p>2. Evidence of threats against the party to which the defendant belonged, which were communicated to him, were competent both for the purpose of showing who began the difficulty, and for the purpose of showing that the defendant had reasonable grounds to believe that he was in danger. (Bishop on Crimiual Law, vol. 1, sec. 305.)</p> <p>3. The court erred in rejecting evidence to show that Veal had been engaged in other difficulties at the polls, as this evidence tended to show that he was ready to carry out the threats he had made.</p> <p>4. The instruction as to self-defense was misleading, as it was calculated to make the impression upon the minds of the jury that actual danger was necessary in order to justify the defendant in acting in his self-defense.</p> <p>Authorities cited (upon what point does not appear): Morgan v. Commonwealth, 14 Bush, 106; Holloway v. Commonwealth, 11 Bush, 344; Kennedy v. Commonwealth, 14 Bush, 352; Oder v. Commonwealth, 80 Ky., 32; Munday v. Commonwealth, 2 Ky. Law Bep., 67.</p> <p>1. Evidence of threats not communicated to the defendant was properly excluded.</p> <p>2. The court has the right to determine from the whole case whether the refusal to continue prejudiced the appellant. (Vonderhide v. Commonwealth.)</p> <p>As the testimony of the absent witness would have been merely cumulative, the refusal to continue was not prejudicial.</p> <p>3. The instructions were most favorable to the accused, and certainly were not prejudicial.</p>

<p>1. Execution Sales — Mistake of Appraisers. — "While a mere mistaken opinion of appraisers as to the value of land levied on, and about to be sold under execution, will not give the defendant the right to redeem where the land brings more than two-thirds of its appraised value, but less than two-thirds of its real value, yet where such a result is caused by a mistake of the appraisers as to the tract of land they are called on to value, and a different tract is in fact valued, the debtor will be afforded relief in equity and allowed to redeem, the right of no third person having intervened.</p> <p>2. Where land is surrendered by an execution defendant to be levied ON, it is not necessary that he should, on the day of sale, direct the land to be sold; nor can he complain because the officer levied and sold without the production of the title papers.</p> <p>3. To constitute a valid levy on land where the execution defendant surrenders the land to be levied on, it is not necessary that the officer should go upon the land and make the levy, or that he should notify the defendant of the indorsement of the levy, the object of such acts being to apprise the defendant of the levy, of which he is already apprised when he surrenders the land to be levied on.</p>

Case 17 — PETITION OBDINAEY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The plaintiff had no insurable interest in the life of the insured. (Bayse v. Adams, 81 Ky., 368.) 2. The certificate of membership was void on account of false and fraudulent misrepresentations contained in the application. Eraud consists in the suppression of truth as well as in the representation of falsehood.

Case 18 — PETITION EQUITY APPEAL PROM BOURBON CIRCUIT COURT. 1. The order entered by the Bourbon county court on the fifth of June, 1885, was a judicial, and not a ministerial act, and the correctness of that judgment, which remains unreversed, cannot be collaterally questioned in this proceeding.

<p>Case 19 —INDICTMENT</p> <p>APPEAL PROM LETCHER CIRCUIT COURT.</p> <p>The parties attempting to arrest the appellant and his brother were without authority to do so, and even if they had authority, did not attempt to exercise it in a lawful manner. Therefore, the appellant had the right to use such force as appeared to him at the time to be necessary to protect himself or family or guests from loss of life or great bodily harm, and the court should have so instructed the jury.</p> <p>No brief in record.</p>

<p>1. Merger op Estates — Power op Appointment — Remainders.— Where a testator devises land to a stranger for life, with power to devise the estate to whomsoever he pleases, making no disposition of the remainder, the remainder passes to the heir-at-law of the testator, subject to be defeated by the execution of tbe power; but where such a devise is made to the heir-at law, the life estate and the fee in remainder being united in one person, he takes the absolute estate, and being already vested with the fee without reference to the power to devise, that power gives him no greater right than he already had</p> <p>H. devised his estate to S., his son, and to G., a stranger, for life, the income to be equally divided between them, and gave to each full power to devise to whomsoever he pleased the share of the estate devised to him for life, but made no disposition of the remainder in the event either of the devisees for life failed to execute the power of appointment. S. and G., the devisees for life, with the testator’s widow, were appointed and qualified as executors. S., after consuming that part of-the estate devised to him, died, leaving a will, by which he devised all of his estate, real and personal, to his widow and his only child. The devisees of S. seek to make his co-executors account to them for one-half of the estate of H., claiming that the devise to them by S. was an exercise of the power conferred upon him by his father’s will, and that they take one-half of the estate of H. under his will, having been designated as the persons to take; or, that if the power has never been executed, the title to the estate of S. vested in his son as the heir of H. Held — That the absolute foe to one-half of the estate of H. passed to •S., and the fee in remainder to the other half, subject to be defeated by the exercise by G. of the power of appointment vested in him; and even if the will of S. is to be deemed an exercise of the power of appointment vested in him, he can not, after consuming the estate devised to him, as he had the right to do, make his co-executors responsible by devising the estate to another, even though the attempt to exercise the power be binding on his executor, or those entitled to hold under him.</p> <p>'2. Exercise oe Power qe Appointment. — Under our statute, where one having a power of appointment to be exercised by last will, devises his whole estate to a person whom, in his discretion, he has the right to designate, the devise will be regarded as the execution of the power, although the power given may not be mentioned or referred to, unless a contrary intention appears from the will.</p> <p>It is not necessary in this case to determine whether or not the testator intended to execute the power of appointment vested in him.</p>

Case 21 — PETITION OEDINAEY APPEAL FROM BULLITT CIRCUIT COURT. 1. Appellees have no right to recover in this action, for the reason that they were guilty of contributory negligence in not having their lands inclosed. J2. It was error to instruct the jury that it was the duty of those in charge of the train to use all the means at their command to avoid injury to the mules. This was too broad, and misleading. (L. & N. E. E. (Jo. v. Ganóte, MS. Op., Nov. 18, 1879.) 3.

Case 22 — PETITION EQUITY APPEAL PROM CARTER CIRCUIT COURT. The thirty years’ statute of limitations seems to be a bar to appellee’s action. But if not, the fifteen years’ statute is certainly a complete bar. (Gen. Stats., chap. 71, art. 1, secs. 1 and 4; Conner and Wife v. Donner, &c., 6 Bush, 634;- Chambers v. Pleak, 6 Dana, 431-2; Morton, &c., v. Lawson, 1 B. Mon., 46; Gossom v. Donaldson, 18 B. M., 241; Branson v. Thompson, 5 ICy. Law Bep., 361-2; Odell v. Little, 6 Ky.

<p>Although a conveyance was intended to defeat the law, a court of equity will set it aside at the instance of the grantor if a relation of confidence and trust existed between the grantor and grantee, and the grantor was induced to execute the conveyance through false alarms or fear of legal consequences excited by the grantee, the parties in such a case being in delicto but not in pari delicto.</p> <p>An aged mother, being induced by her son. to believe that a suit for slander was about to be instituted against her, which would result in the loss of all her property, conveyed to her son the hulk of her estate. The suit for slander was never brought, and there was no foundation whatever for the son’s suggestion that it was about to be brought. The grantor by this action seeks to have the conveyance set aside. Held — That the relief should be granted.</p>

<p>Case 24 — PETITION EQUITY</p> <p>APPEALS PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The money with which Mrs. Gross began business was saved from time-to time in small amounts, out of money given to her by her husband for her personal expenses, and was, therefore, her separate estate, (Story’s Equity, vol. 2, section 1375a.)</p> <p>To create a separate estate, no writing or particular form is necessary. (McOlanahan v. Beasley, 17 B. Mon., 113; Shackleford v. Collins, 6 Bush, 157 ; Walton v. Broadus, 6 Bush, 329.)</p> <p>Personalty given or. sold by husband to wife makes the husband trustee for his wife, he holding the property as her separate estate in trust for her. (Maraman v. Maraman, 4 Met., 84; Campbell v. Gal-breath, 12 Bush, 459; Thomas v. Hafkness, 13 Bush, 23.)</p> <p>Trivia] gifts made in good faith cannot be regarded as fraudulent, (Waite on Eraudulent Conveyances and Creditor’s Bills, sections 15,. 23 and 41; Hopkirk v. Randall, 2 Brock., 140.)</p> <p>The giving of a reasonable sum by an insolvent husband to his wife-is not a fraud on his creditors. (Thompson v. Cundiff, -11 Bush, 569; Mayo v. Eerguson, 3 Ky. Law Rep., 687; Marshall v. Marshall, 2 Bush, 415.)</p> <p>2. The husband’s creditors can not subject the profits of the wife’s business: after she became empowered to trade as a feme sole. (Wiggins v. Johnson, &c., 8 Ky. Law Rep.; Morel v. Haller, 7 Ky. Law Rep., 122 j Unz v. Oswald, 6 Ky. Law Rep., 518; Carter v. Drewerry, 4 Ky-Law Rep., 888; Clifford v. Thompson, 4 Ky. Law Rep., 1002.)</p> <p>1. The property sought to be subjected was paid for with the proceeds of the husband’s property, and, therefore, the conveyance to the-wife was fraudulent as to his creditors.</p> <p>Where a deed is made to one person, and the consideration paid by another, such deed is to be deemed 'fraudulent as against the existing debts and liabilities of the person paying the consideration. (General Statutes, chap. 63, art. 1, sec. 20; 16 B. Mon., 183; 8 B. Mon., 568.)</p> <p>2. Mrs. Gross, at the time she was empowered to, trade as a feme sole, owned no estate, general or separate, and has received nothing since that was not given to her by her husband. Therefore, the fact that she was empowed to trade as a feme sole does not exempt property paid for by the husband and conveyed to her from being subjected by his creditors.</p> <p>An insolvent husband can not carry, on his own trade with his own money, or with money donated by him, in the name of his wife and under cover of being her trustee, and thereby defeat his creditors. (Bump on Fraudulent Conveyances, p. 249; Robinson v. Bernes, 90 111., 351; Glidden v. Taylor, 16 Ohio, 509; Powley v. Vogel, 42 Mo., 291; Penn v. Whitehead, 12 Grattan, 74; Shephard v. Hill, 6 Lan sing, 387; Franklin, Ex Parte, 79 Ky., 497; Hall v. Scrouft,-52 111. 421.)</p> <p>3. The judgment of the chancellor upon'the questions of fact must be taken as the verdict of a properly instructed jury. '</p>

Case 25 —INDICTMENT APPEAL PROM SPENCER CIRCUIT COURT. 1. The indictment is insufficient in that it does not charge that the money was intrusted to the defendant to be delivered to some particular person or corporation at a certain time and place. It merely charges that it was the defendant’s duty to have delivered the money to the officers of the church, which is not sufficient.

Case 26 —MANDAMUS APPEAL PROM KENTON CIRCUIT COURT. 1. The motion to verify the petition should have been sustained. (Civil Code, sec. 116.) 2. A. Graves should have been made a defendant. Where the suit is pending, and it is proposed by the mandamus to compel the judge to move in the case and try it, it is not necessary to make the opposing party a defendant. It is otherwise, however, where the suit has been dismissed. 3.

<p>Case 27 — PETITION OEDINAKY</p> <p>APPEAL EROM PENDLETON CIRCUIT COURT.</p> <p>1. The appellant is not liable, as it is neither alleged nor proved that he subscribed the amount sued for. Nothing more is shown than a mere verbal promise to subscribe upon certain conditions which have never been complied with, and that promise made at a time when there was no corporation or association in existence that could contract with appellant. Such a promise is not binding, and none of the cases hold that it is. (Twin Creek and Colemansville Turnpike Road Co. v. Renaker, 3 Ky. Law Rep., 368, and authorities cited; Thompson v. page, 1 Met. (Mass.), 570; Goff and others v. Winchester College, 6 Bush, 443; Lackey v. Richmond & Lancaster T. P. R. Co., 17 B. M., 48 ; Mt. Sterling Coal Road Co. v. Little, 14 Bush, 429; 25 111., 393; Winchester & Mt. Sterling T. P. R. Co. v. Clark County Court, 3 Met., 140; 11 B. M„ 143.)</p> <p>2. The court en-ed in rejecting the amended answer alleging that there was no subscription in writing, and that the agreement charged was not to be performed within a year, and was therefore within the statute of frauds.</p> <p>1. There can be no such thing as a verbal subscription. A contract of subscription must be in writing. (Pittsburgh & Steubenville R. R. Co. v. Garram, 32, Pa. St., 349; Pittsburgh & Steubenville R. R. Co. v. Clai-ke, &c., 29 Pa. St., 152; Thomas Tunnel v. Sheldon, 6 B. & Ores., 341.)</p> <p>2. At the time of the alleged contract there was no corporation in existence with which appellant could contract, and therefore he is not bound. (21 Pa. St., 222.)</p> <p>Such contracts entered into before the act of incorporation are upheld only where there is a provision for the transfer of the promise to the corporation when created. (Anderson v. Bichmond & New Castle Bailway Co., 12 Ind., 376; Heaton v. Cincinnati & Ft. Wayne E. B. Co., 16 Ind.; Buffalo & N. Y. City B. B. Co. v. Dudley, 14 N. Y., 354; Eastern Plank Boad Co. v. Yaughan, 14 N. Y., 547; Twin Creek, &e., Turnpike Co. v. Benaker, 3 Ky. Law Bep., 370.)</p> <p>3. There was no consideration for the contract, as there was no mutual agreement to uphold it. (Twin Creek, &c., Turnpike Co. v. Benaker, 3 Ky. Law Bep., 370; 15 Mich., 237.)</p> <p>4: Even if there can be a recovery it must be, not for the par value of the stock, but for damages for breach of the contract to subscribe. (Thrasher v. Pike Co. B. B. Co., 25 111., 405.)</p> <p>1. A contract can be made in the interest of a corporation before it is created and enforced by the corporation after it is incorporated. (Twin Creek & Colemansville Turnpike Boad Co. v. Benaker, and Same v. Lancaster, 3 Ky. Law Bep., 368; Lackey v. Turnpike Co., 17 B. M..)</p> <p>2. The contract upon which appellant is sought to be made liable, was not, required by law to be in writing.</p>

<p>Case 28 — PETITION ORDINARY</p> <p>appeal prom mercer circuit court.</p> <p>1. A town is liable for damage resulting from a public nuisance, althrugh on private property, if that nuisance is adjacent to the public highway, and the town has power to suppress it and has notice thereof. (Wood on Law of Nuisances, secs. 739 and 744; Parker v. Macon, 39 6a., 725; Kelsey v. Glover, 15 Vt., 714; Palmer v. City of Andover, 2 Cush., 607; Coggshill v. Lexington, 4 Cush., 307; Snow v. Adams, 1 Cush., 443.)</p> <p>2. The blasting of rock in the vicinity of a highway by the use of gunpowderor other explosives is a nuisance. (Wood on Law of Nuisances, sec. 142; Chicago v. Bobbins, 2 Black, 426.)</p> <p>3. The appellees have the power, and it is their duty, to suppress nuisances in the town of Harrodsburg. (Session Acts 1881-2, vol. 2, p. 78.)</p> <p>4. The case of Greenwood v. Louisville, 13 Bush, 229, has no application to the case at bar.</p> <p>1. A failure by a municipal corporation to exercise its charter power to abate nuisances does not give a person who is injured by the failure a private action against the corporation. (Dillon’s Municipal Corporations, secs. 950, 951, 952; Cooley on Torts, p. 620; Thompson on Negligence, vol. 2, note 1, p. 731; Greenwood v. Louisville, 13 Bush, 229; Buehmeyer v. City of Evansville, 29 Ind., 190; Prather v. City of Lexington, 13 B. M., 563; Ward v. Louisville, 17 B. M., 192.)</p> <p>2. It is a question of doubt whether appellees’ officers would have had the right to summarily suppress what they might consider a nuisance without some judicial process to determine that a nuisance existed. (Dillon’s Municipal Corporations, sec. 374; Varden v. Mount, 78 Ky., 86.)</p> <p>3. The town is not liable because its negligence or failure of duty, if any, was not the natural and proximate cause of the injury sustained by appellant’s intestate. (Bosworth v. Brand, 1 Dana, 377; Patch v. Covington, 17 B. M., 728.)</p>

Case 29 — PROCEEDINGS AGAINST DELINQUENT TAX-PAYER APPEALS FROM LINCOLN CIRCUIT COURT. APPEAL FROM WARREN CIRCUIT COURT. APPEAL EROM MARION CIRCUIT COURT. I. The act of March 17, 1870, was repealed by the act of April 3, 1878, as to railroad companies. The ruling to the contrary in the case of Lincoln County Court v. Lex. & Nash. B. B. Co., 3 Ky. Law Bep., was not necessary to the decision of that case, and should be reconsidered.

Case 30 — PETITION ORDINARY APPEAL PROM LEWIS CIRCUIT COURT. 1. Appellees were the sureties of Warder as well as of the other defendants in the judgment, and the judgment having been affirmed as to him, appellees are liable on the bond.

<p>Punishment by City no bar to Prosecution by State. — Where, by the same act, one violates the police regulations of a city, and also the criminal laws of the State, the punishment of the offender by the city for the violation of its ordinances does not bar a prosecution by the State for the violation of its criminal laws. And the fact that the city charter gives the city court exclusive jurisdiction of all offenses committed against the ordinances of the city, does not give that court jurisdiction of an offense against the laws of the State where the same act is a violation of both the city ordinances and the State laws.</p>

<p>Case 32 — PETITION ORDINARY</p> <p>APPEAL FROM BOYLE CIRCUIT COURT.</p> <p>1. The question as to the degree of the negligence was for the. jury and not the court to determine. (L„ C. & and L. R. R. Oo. v. Mahoney’s Adm’r, 7 Bush, 237.)</p> <p>'2. Under the circumstances appellant’s intestate was not guilty of contributory negligence in going upon the side-track.</p> <p>3. If the negligence of the defendant was willful, tho contributory negligence of plaintiff, if any, is not a defense to the action. (7 Bush, 239.)</p> <p>•4. Even though tho negligence was not willful, contributory negligence can not bo relied on as a defense if the accident might still have been prevented by the exercise of proper care upon the part of defendant. (L. & N. R. R. Co. v. Yandell, 17 B. M., 598; L. & N. R. R. Co. v. Collins, 2 Duv., 116; L. & N. R. R. Co. v. Robinson, 4 Bush, 509; Jacobs’ Adm’r v. L. & N. R. R. Co., 10 Bush, 273; L., C. & L. R. R. Co. v. Sullivan, 5 Ky. Law Rep., 722; Pennsylvania Co. v. Maloney’s Adm’r, 5 Ky. Law Eep., 859; Bronson’s Adm’r v. Labrot & Graham, ■5 Ky. Law Eep., 830, 831; L. & N. E. E. Co. v. McCoy, '5 Ky. Law Eep., 406; Wharton on Negligence, vol. 1, secs. 326, 329, 335, 336, 338, 348 and 388.) '</p> <p>5. The defendant was guilty of willful negligence in running the detached car on the side-track at such a rate of speed without any one in charge of it.</p> <p>As appellant’s intestate was a trespasser on appellee’s track, and appellee had no notice of his presence there it owed him no duty, and this action can, therefore, not be maintained. No cause of action arises without a breach of duty, and in the absence of notice to appellee ■that the boy was on the track, the fact that he was a child of tender years is not material. (Ky. Cen. E. E. Co. v. Gastineau’s Adm’r, 7 Ky. Law Eep., 4; Thompson on Negligence, vol. 2, p. 1183, no;e 3.)</p>

Case 33 — PETITION ORDINARY APPEAL PROM GRAVES CIRCUIT COURT. APPEAL PROM CALDWELL CIRCUIT COURT. 1. It is legitimate to speculate in the future prices of articles of commerce by making executory contracts for their future delivery at an agreed price, and then, before the contracts mature, to sell them to any person who may desire to purchase; and there is nothing to show that such was not the intention of the parties in this case. (Sawyer-Wallaco Case, 14 Bush, 735.) 2.

Case 34 — PETITION EQUITY APPEAL PROM BATH CIRCUIT COURT. 1. After the president and directors of appellant have caused gates to be erected, they have power, should occasion require, to change the site of such gates. 2. The evidence shows conclusively that the site of the new. gate that appellant attempted to erect is not upon appellee’s land but upon appellant’s land. 3..

<p>Case 35 — BOAD CASE</p> <p>APPEAL PROM GREENUP CIRCUIT COURT.</p> <p>1. The verdict of the jury as to damages was final, and the county court had no authority to hear testimony upon that subject. The court should have overruled the exceptions, and sustained the verdict of the jury. (Sanders v. McCracken, Hardin, 259; McCauley v. Dunlap, 4 B. M.,'58; Bibb v. Montjoy, 2 Bibb, 4; Henderson & HashvilieB. B. v. Dickerson, 17 B. M., 177.)</p> <p>2. It was error to require that the several amounts adjudged to Biggs should be paid to him before the road should be established. (Gashweller’s Heirs v. Mcllvoy, 1 A. E. Mar., 85; Jackson, &e., v. Winn’s Heirs, 4 Litt., 328.)</p> <p>3. The county court abused its discretion in requiring one of the applicants to pay the whole of the assessed damages and costs. (Gen. Stats., chap. 94, sees. 16 and 17; Commonwealth v. Bainhridge, 6 J. J. M., 437; Hawkins v. Robinson, 5 J. ,1. M., 10; Commonwealth v. Thompson, 4 Bibb., 231.)</p> <p>4. The appellee must be required to pay the costs of the writ, as the finding of the jury gives him loss than the viewer’s report, which he refused to accept. (Gen. Stats., chap.' 94, sec. 16.)</p> <p>5. As the circuit court reversed the judgment of the county court refusing-to establish the road, it was error to adjudge against one of the applicants the costs of the whole proceedings. (Helm, &c., v. Short, &e.,. 7 Bush, 629; Hawkins v. Robinson, 5 J. J. M„ 9.)</p> <p>6. It is the duty of this court to point out any error of law in either of the-lower courts, and issue its mandate to the circuit court, requiring that court to remand the case to the county court, with directions to correct, the errors. (Bennet v. Bryan, MS. Op., Sept. 22, 1880.)</p> <p>1. This appeal is barred as to such orders and judgments as were rendered more than two years before .the appeal was granted.</p> <p>2. The court is authorized to hear proof in such cases to show error of the-jury in assessing damages. (Gen. Stats., chap. 94, art. 1, sec. 12; Winston v. Wagoner, 5 J. J. M., 41.)</p> <p>3. The circuit court had a judicial discretion to require the road to be opened on terms and conditions. This power is expressly given to the-county court, and when the case gets to the circuit court that court has all the power the county court has. (Thurman v. Emmons, 4 Bibb, 279; Mellvov v. Speed, Ibid., 85-87.)</p> <p>4. This court can reverse only for errors in the circuit court, and not for ei-rors in the county court. (Gen. Stats., chap. 94, art. 1, sec. 43.)</p> <p>5. Authorities commented upon : Hardin, 259; 4 Litt., 328; 6 J. J. M.r 437; 4 Bibb, 231.-</p> <p>1. The jury in assessing damages should be required to hear such evidence as either the applicant or the owner of the land may offer, and not be confined alone to their own view.</p> <p>2. The county court, upon exceptions to the report and inquest, should be allowed to hear other testimony, and determine therefrom whether the report and inquest are just and ought to be affirmed. And if that court should be of opinion that the report and inquest are not just, it. should set them aside and order another jury. (Gen. Stats., chap. 94,. art. 1, sec. 11.)</p>

<p>An execution creditor is not deprived of his lien on the debtor’s land by the failure of the clerk to record the sheriffs return as required by the act March 6, 1878, where the execution has issued from another county than that where the land lies, or, as required by the General Statutes, where it has issued from the same county.</p> <p>An execution issued upon a judgment of the Henderson Circuit Court was levied upon land in Daviess county. Between the date of the levy and the sale the defendant sold the land to appellees. The plaintiff, the purchaser at the execution sale, brought this action to remove the incumbrance by reason of the sale and conveyance to appellees. This right was denied him upon the ground that his lien was lost by the failure of the clerk of the Daviess Circuit Court to record the sheriff’s return upon the execution as required by the act of March 6, 1878. Held — That the lien is not lost by the failure of the clerk to discharge his duty, as the statute does not so provide.</p>

Cabe 37 — FORCIBLE DETAINER APPEAL FROM FAYETTE CIRCUIT COURT. In consequence of the transactions between appellant and appellee after the expiration of the lease, appellant became at. the least a tenant at will (if not entitled to hold another year), and could not be evicted except after legal notice. (Addison on Contracts, p. 328; Ibid., sec. 742, p. 408; Conway v. Starkweather, 1 Den., 113.) 1.

Case 38 — PETITION EQUITY APPEAL EROM DAVIESS CIRCUIT COURT. STATEMENT OF FACTS.

<p>1. Eminent Domain — Change oe Remedy. — As there is no element of a contract in a special remedy given to a railroad company to condemn land'for its use, the Legislature lias the power to repeal such a remedy, and substitute new remedies in its stead. . .</p> <p>2. Same. — The general law of April 11, 1882, prescribing the modo of condemning land for the use of railroad companies, repealed the provisions of appellee’s charter, being inconsistent therewith.</p> <p>3. Same — Effect of Bepeal of Statute. — The general law applies to the trial in the circuit court of proceedings for the condemnation of land which were begun prior to its passage, provided the railroad company had not, prior to the passage of the law, acquired title to the land by a compliance with the conditions precedent to its right to condemn the land under its charter, and thus left nothing to be determined but the amount of damages.</p> <p>In 1880 appellee instituted a proceeding to condemn land belonging to appellant, and in February, 1880, the jury’s inquest of damages was returned to and confirmed by the circuit court. This court, upon appeal, reversed the judgment of confirmation, upon the ground that appellee had not shown that the taking was for a public use, and that the land was necessary for that use, which were held to be conditions precedent to its right to condemn the land. Upon the return of the case the circuit court, in 1884, again confirmed the inquest. Held— That the case should have been tried de novo, as provided by the general law of 1882, and not tried in accordance with the provisions of appellee’s charter.</p>

<p>Murder — Death prom Exposure. — Where the husband uses such force- and violence as to cause the wife to leavp the house from fear of death or great bodily harm, and she dies from exposure, the husband is not responsible for her death unless her fear was well grounded or reasonable, and unless her death was. the natural and-probable consequence of leaving the house at the time and under the circumstances; and the error of the court in failing to thus qualify an instruction as to manslaughter in this case was prejudicial, the accused being a cripple in one arm, and it appearing that the deceased, his wife, was able to whip him, and had done so.</p>

Case 41 — PETITION EQUITY APPEAL PROM SIMPSON CIRCUIT COURT. 1. As appellee did not have actual and adverse possession of the land, a court of equity had no jurisdiction to render the judgment quieting his title. It is not enough to show possession as a coparcener under an agent or tenant who represents as well the defendant as the plaintiff. 2.

Case 42 — PETITION OBDINABY APPEAL PROM -WARREN CIRCUIT COURT. 1. The application should have been exhibited and declared on in the petition, and it was error to overrule defendant’s motion to require the plaintiff to file it. (Wood on Fire Insurance, sec. 492; Bobbitt v. Liverpool Ins. Co., 8 Am. Rep., 222.) :2.

Case 43 — PETITION OBDINABY APPEAL PROM MARION CIRCUIT COURT. This being an action for breach of contract, and there being no circumstances of oppression or insult, no more than compensation can be awarded. It was, therefore, error to submit to the jury the question ot exemplary damages, and an outrage on the part of the jury to return the verdict complained of, which was, evidently, the result of passion or prejudice. 1.

<p>Case 44 — APPEAL PROM COUNTY COURT</p> <p>APPEAL FROM CLARK CIRCUIT COURT.</p> <p>1. The county court may, at any time, when demanded by some one interested in the estate, require of an executor bond, with surety, although the will may direct that surety shall not be required, and the court may act either upon the evidence produced or “• from its personal knowledge.” (Gen. Stats., chap. 39, art. 1, sec. 4; Eastin’s Ex’r v._ Spratt, &e., MS. Op. (note to Gen. Stats.); Atwood’s Ex’r v. Helm, &c., 7 Bush, 504). Therefore, neither the circuit court nor this court can undertake to revise its action.</p> <p>2. Aside from the personal knowledge of the county court, the proof produced in the circuit court in this case shows that it was proper to require bond with surety.</p> <p>The eases of Bowman’s Ex’rs v. Wooton and Wife, 8 B. M., 67, and Bronaugh v. Bronaugh, 7 J. J. M., 622, distinguished from this case.</p> <p>1. The county court has an absolute discretion as to whether or not, “ on the motion of some one interested,” bond, with surety, shall be required of an executor where the will directs that surety shall not be required. (Gen. Stats., chap. 39, art. 1, sec. 4.)</p> <p>2. Even if the evidence in the record can be considered, it is sufficient to show that the action of the county court in requiring bond was proper.</p> <p>The cases of Bronaugh v. Bronaugh, 7 J. J. Mar., 621, and Bowman’s Ex’rs v. Wooton and Wife, 8 B. M., 67, arose under a statute different from that now in existence.</p> <p>Brief not in record.</p> <p>1. The evidence in this case meets the utmost requirements of the rule laid down in the opinion requiring that an executor shall not be required, in such cases, to execute bond capriciously and without cause.</p> <p>2. The great consideration allowed by this court to the conclusions of the county court are not admissible under the laws which govern this appeal from the county to the circuit court. Such appeals are to be tried anew as if no judgment had been rendered. (Act of May 5, 1880, 1 Sess. Acts 1879, p. 198; Bullitt & Eeland’s Statutes, ed. 1883, p. 906; Civil Code, secs. 724, 731, 700, 726; Kimble v. Eeisher, 81 Ky., 384).</p> <p>3. The order appointing appellant as administrator was not a final judgment, but remained within the control of the county court until made final by his qualification. Therefore the mandate of this court should operate only on the order for the removal of appellee as executor, •leaving the county court free as to the selection of his successor.</p>

Case 45 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. After judgment was rendered against Whipps he was a competent witness for appellant to prove payment. The reversal of the judgment upon Worthington’s appeal did not affect Whipps. 1. The question as to the competency of Whipps’ testimony was settled upon the first appeal in this case, and can not be reopened. (Miller’s Adm’r v. Worthington, &c., MS. Op., March 20, 1879.) 2.

Case á6 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. T. The deed of trust of December 16,1882, and the instrument of May 12, 1880, should be set aside for the following among many other reasons: 1.

<p>N 0 INTEREST ACCRUING ON A CLAIM AFTER THE DEATH OF THE DEBTOR can be allowed, unless the claim is verified as required by law, and payment demanded of the personal representative within one year after his appointment; and the personal representative, by merely making a payment on the claim before it is .verified, does not waive his right to require, as a condition precedent to the recovery of interest accruing after the debtor’s death, that the claim be verified, and the payment of the balance due thereon demanded within a year from the time of his qualification.</p>

<p>Case 48—</p> <p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>(Brief not in record.)</p> <p>1. An assignee for the benefit of creditors, by the execution of the deed of assignment, acquires a lien which, like any other lien, is superior to any lien subsequently acquired. (Civil Code, sec. 438; Zaring, &c., v. Cox, 78 Ky., 527; Gibson v. Moore, 7 B. M., 92; Repplier v. Buck, Potter, &c., 5 B. M„ 96.)</p> <p>2. The lien of the assignee is superior to the lien of the landlord acquired by the taking out of .a distress warrant, subsequent to the execution of the deed of assignment, for rent that has been due more than 120 days. Any state of facts that would defeat the landlord’s lien as against any other lien, will defeat it as against the lien of the assignee. (Gen. Stats., chap. 66, art. 2, secs. 10 and 15; Gedge v. Shoenberger, 7 Ky. Law Rep., 31; Bridgeford v. Bowles, 80 Ky., 529 ; Dobyns v. Dobyns, 79 Ky., 95; Bohm Bros. & Co. v. Stone, 79 Ky., 141.)</p>

Case 49 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT 1. Appellant, Mrs. Boes, was empowered to trade as a feme sole, and had power to create the debts sued on. (Hart v. Grigsby, 14 Bush, 554.) 2. The certificates or policies of insurance in the three benefit societies were originally made payable to her, and created a vested estate and property right in her, which was subject to her debts. (Weisert v. Muehl, 81 Ky., 336.) 3.

Case 50 — PETITION ORDINARY appeal from barren circuit court. 1. The negative answer of the witness Mansfield to the question as to whether or not he had made a certain statement to Melvin Lowry having been brought out by appellee on cross-examination, appellee was bound thereby and had no right to contradict him. (Kennedy v. Commonwealth, 14 Bush-, 340; 1 Greenleaf on Evidence, sec. 449.) 2.

Case 51 — PETITION EQUITY APPEAL PROM MASON CIRCUIT COURT. 1. Where the property of the defendant is sold'under a judgment which is subsequently reversed, he is entitled to restitution of the proceeds of the sale, and not the value of the thing sold.

Case 52 — PETITION EQUITY APPEAL PROM JESSAMINE CIRCUIT COURT. 1. As the fact of possession in the appellee was expressly denied and not proved, lie was not entitled to a judgment quieting his title. 2.

Case 53 — PETITION EQUITY APPEAR PROM ESTILL CIRCUIT COURT. The statute is conclusive as to the legitimacy of appellants. The statute applies where any man, whether married or single, has children by a woman and afterwards marries her, provided he recognizes the children as his. The question of public policy is one to be addressed to the Legislature and not to the courts, which must enforce the law as they find it.

Case 54 — PETITION EQUITY APPEAL PROM TRIMBLE CIRCUIT COURT.

<p>I. Vendor and Vendee — Pleading.—In an action by a vendor to recover the purchase price of land which he has covenanted by title bond to convey, the plaintiff should allege in his petition the character of title he covenanted to convey, and that he has title to the land, and the petition in this case failing to allege these facts, a demurrer thereto should have been sustained; but the defect was cured and the right to a reversal on that account waived by the defendant’s answer, by which he admitted that the plaintiff had title, and consented to take the quantity embraced in the boundary sold, whatever it was, at the contract price per acre, the only issue being as to the number of acres.</p> <p>2. A judgment ordering the sale of real estate directed the commissioner to sell on a credit of six months, and to take bond, payable to himself, but gave no direction as to the time and place of sale, except to direct the commissioner “to post notices of the time, place,, and terms of sale as sheriffs are required to do before selling land under execution ” Held — That this was sufficient.</p> <p>3. Same — Blace of Sale. — Unless a judgment ordering the sale of real estate otherwise directs, the sale is to be riiade at the court-house door of the county in which the property, or the greater part thereof, is situated.</p>

<p>Case 56 — PETITION EQUITY</p> <p>APPEAL PROM TODD CIRCUIT COURT.</p> <p>1. The existence of a corporation organized under chapter 56 of the General Statutes depends upon a literal and exact compliance with the provisions of the statute. (Bamberger, Bloom & Co. v. White et. al.r 5 Ky. Law Rep., 292; Heinig, &c., v. The Adams & Westlake Co.,. 81 Ky., 300; People v. Kingston T. R. Co., 23 Wend., 193; S. C., 35< Am. Dec., 551.)</p> <p>In this case there was a failure to record the articles in the county court in a booh kept for that purpose, as required by the statute, a failure to make the required newspaper publication within three months, and a failure to file a copy of the articles in the office of the Secretary of State within three months as-required.</p> <p>2. The county court had no power to submit the question of taxation until after the incorporation of the turnpike company. (Goff v. Winchester College, 6 Bush, 447; Allison v. L. H. & C. W. R. R. Co., 9 Bush, 248.)</p> <p>3. The vote should have been taken at a general election. Section 36 of article 2 of the Kentucky Constitution embraces debts contracted by subordinate civil divisions of the State as well as State debts. (People v. Mayor of Chicago, 51 111., 17; S. C., 2 Am. Rep., 298; Cooley’s Const. Limit., 273.) The cases of Slack v. M. & L. R. R. Co., 13 B. Mon., 1, and Shelby County Court v. C. & O. R. R. Co., 8 Bush, 209, commented on.</p> <p>4. The mode of assessment prescribed by the Legislature, and followed by the county court, results in gross inequality. Although persons living in the district and owning property elsewhere in the county have listed it in the district, and persons owning property in the district and living elsewhere have listed it where they are domiciled, the Legislature has restricted the county court to the assessor’s report as the exclusive source from which to derive information as to what taxable property was in the district.</p> <p>5. The last annual assessor’s report was that of 1882, upon which the court should have based its levy.</p> <p>1. It is not essential to the existence of a corporation organized under chapter 56 of the General Statutes, that the newspaper publication required by the sixth section of that chapter should be made within three months from the filing of the articles of incorporation. The publication within that time is essential only to the validity of the acts of the corporation done prior to the publication.</p> <p>2. It was not essential to the validity of the acts of the corporation that the articles of incorporation should be recorded. The statute expressly provides that the corporation may commence business as soon as the articles are filed for record in the office of the county court clerk, and their acts shall be valid if the publication in a newspaper is made within three months from that time.</p> <p>But, even if it was essential that they should be recorded in a book kept for that purpose, the clerk certifies that they were duly recorded, and the presumption must be indulged that he did his duty, and recorded them in the proper book.</p> <p>3. The filing of a copy of the articles of incorporation in the office of the Secretary of State was not necessary. That is required only of those companies which are “ required to pay a tax or money to the Commonwealth,” and not of a more construction company which does not and can not charge tolls, and does not want the additional powers given by chapter 110 of the General Statutes.</p> <p>But even if the filing of a copy in the office of the Secretary of State was necessary, it was not necessary that it should be filed within three months in order to give validity to subsequent acts of the- corporation.</p>

Case 57 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. As the jury were unable to agree as to the facts, their conclusion of law, that Needham’s death was not caused by the willful neglect of the defendant, is of no avail. The question of negligence is a question of law for the court, to be-determined upon the finding of facts by the jury.

Case 58 — PETITION EQITITy APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The opinion delivered by this court upon the former appeal in this case settles the appellants’ right to the recovery of some damages, and, as we think, to an amount at least as much as the profits which resulted to and were realized by appellees from their manufacture and sale of the pirated articles. (81 Ky., pp. 73 to 116.) 2.

<p>1 Constitutional Law — Elections—Filling Vacancies. — Judicial offices created by statute must be filled in the mode prescribed by the Constitution for filling those of the same class named therein. Therefore, a vacancy in the office of Judge of the Louisville Law and Equity Court must be filled in the same manner as vacancies in the office of circuit judge are directed by the Constitution to be filled.</p> <p>The act of the Legislature creating the Vice-Chancellor’s Court, the name of which was subsequently changed to that of the Louisville Law and Equity Court, provided for the election of a vice-chancellor at the next general election, but further provided, however, that “ until the next general election the vacancy existing, as well as all vacancies hereafter occurring, shall be filled by appointment by the Governor.” A vacancy occurring, the Governor appointed appellee to fill it for the whole of the unexpired term, which was for more than one year. In this action by appellant, who claims to have boon elected to fill the vacancy, to recover the office, 'Held — That the act was intended to empower the Governor to fill the vacancies occurring, after the. first election under the act, for the whole of the term unexpired when an appointment is made, and not merely until the next general election; but whether the one or the other, the act was unconstitutional, and where the unexpired term was for more than one yeai', the Governor had no power to make the appointment for longer than the time required by law to be fixed by proclamation for filling the vacancy by election. The appointment by the Governor was legal, however, and his appointee should be regarded as judge de jure, and his official acts valid until his successor is elected and qualified.</p> <p>2. One who seeks by suit to recover an office must, as the plaintiff in every other ease must do, show a legal title to that which he demands.</p> <p>3. Certificate of Election. — The State Board for examining returns of elections, and not the county board, must give the certificate of election to one who has been elected judge of the Louisville Law and Equity Court, that being a “district, office,” although within the gift of the voters of a single county.</p> <p>4. Suit for Recovery of Office. — Neither the refusal of the State Board to give a certificate of election, nor the refusal of the Governor to give a commission to one entitled thereto, will deprive such person of the right to sue for and recover the office to which he has been elected.</p> <p>5. To make an election legal, there must be a time fixecl for holding such election, either by law or by the officer empowered by law to do so. Therefore, as the first Monday in August is not prescribed either by the Constitution or by statute as the day in course for holding an election to fill a vacancy in the office of judge of the circuit court, or other courts of the same class, such election can be legally held on that day only when appointed by a writ of election.</p> <p>As the election under which appellant claims was held on that day without a writ of election, it was void, and conferred upon him no right to the office.</p>

<p>Case 60 — PETITION ORDINARY</p> <p>APPEAL FROM OLDHAM CIRCUIT COURTl</p> <p>1. Appellant’s attempt to arrest appellee was in the manner provided by law. (Criminal Code, secs. 42, 43; Sharswood’s Blackstone, 3d book, p. 288.)</p> <p>2. The officer had the right to use such means as were necessary to make the arrest. (Fleetwood v. Commonwealth, 80 Ky. 2; Wharton on Criminal Law, sec. 1260.)</p> <p>Whether the means used wore necessary, was a question of fact which should have been left to the jury. (2 Wharton on Grim. Law, sec. 1259.)</p> <p>3. Even if the answer be construed as alleging that appellee had been arrested, and that he was shot to prevent his escape, appellant was, under the circumstances, justifiable. (2 Wharton’s Crim. Law, see. 2615; Blackstone, Book 4, p. 131; Criminal Code, sec. 44.)</p> <p>An ofiicer is liable for the escape of a prisoner from his custody, unless caused by act of God or the public enemy. (Gen. Stats., p. 404; 3 Blackstone, 415; Bouvier’s Law Diet., title Escape; Alsept v. Eyles, 2 H. Bl., 108; Elliott v. Norfolk, 4 T. B., 789; Nicholl v. Durlcy, 2 Y. & X, 399; Jacob’s Fisher’s Digest, title Escape, pp., 4684-4685.)</p> <p>Therefore, he should have, and has, the right to use such force as may be necessary to recapture the prisoner when he attempts to escape.</p> <p>1. At common law an officer had the right to use force in preventing the escape of a prisoner in his custody, and if necessary to take his life, although the charge against him was a more misdemeanor. But the common law has nothing to do with the question at issue in this case. Our statutes prescribe the powers and duties of an officer in making arrests, and as they are full and complete they must be regarded as all the law on the subject. (Gen. Stats., chap. 7, sec. 3; Criminal Code, secs. 36, 39, 42, 43 and 44.)</p> <p>2. As the statute provides that “ no unnecessary force or violence shall be used in making the arrest” (Criminal Code, sec. 43), by necessary implication just such force and violence as are necessary may be used. (Fleetwood v. Commonwealth, 80 Ky., 1.) ‘ •</p> <p>3. The Criminal Code of Practice ignores the common law distinction between the rights of an officer in- arresting a felon and his rights when arresting a person charged with a misdemeanor.</p> <p>4. The question whether more force than was necessary was used should have been submitted to the jury.</p> <p>1. There is no statute in this State which prescribes the powers and duties of a peace officer as to the force to be used in making an arrest, or recapturing a prisoner after escape, and therefore the question must be determined by the rules of the common law.</p> <p>2. A bastardy proceeding is neither a criminal nor a penal prosecution, but is essentially a civil proceeding. (3 Mon., 213; 6 J. J. Mar., 585; 3 Bush, 6.)</p> <p>3. "While in felony cases the officer may use such force as may be necessary to capture the prisoner, even to killing him while in flight, the same severe rule does not apply in cases of arrests for misdemeanors; and in such cases the officer has no right, when the prisoner is not resisting, but fleeing, to shoot and wound, which would imply the right to kill. (Bishop on Crim. Law, vol. 2, p. 355, secs. 662 and 663; Hale’s Pleas of the Crown, vol. 1, p. 481; Foster’s Crown Law, 271; "Wharton on Crim. Law, sec. 1032; Wharton on Homicide, sec. 213.)</p> <p>á. The case of a defendant flying after an arrest actually made is governed by the same rules as where the party flies to avoid an arrest. (Bishop on Crim. Law, vol. 2, sec. 664; Wharton on Homicide, secs. 212-214.)</p> <p>5. The cases of Fleetwood v. Commonwealth, 80 Ky. 1, and Moccabee v. Commonwealth 78 Ky., have no application to this case.</p>

Case 61 — PETITION ORDINARY APPEALS PROM CLARK CIRCUIT COURT. The testator intended that the devise over provided for by the seventh clause of his will should take effect only in the event of the death of any one of his children in his life-time, and that after distribution each child should have an absolute estate in his share and not merely an estate for life or a defeasible fee.

Case 62 — PETITION OED1NABY APPEAL PROM KENTON CIRCUIT COURT. 1. The court, by excluding the deed offered by the defendant, decided that, the defendant was in the adverse possession of the land when the deed was executed, which was a question of fact for the jury and should, have been left to them. 2. The person in the adverse possession of land conveyed by another can alone avail himself of the provisions of the champerty statute.

<p>1. Partnership Land — Mortgages.—Land conveyed to members of a copartnership as tenants in common, but purchased with copartnership funds and used for copartnership purposes, is treated in equity as copartnership property, and the creditors of the copartnership are entitled to priority of payment out of it in preference to the creditors of the individual members of the firm. But if one member of the copartnership mortgages his apparent interest as tenant in common of such land for a consideration paid him at the time, the mortgagee having no notice of the character of the property in equity as copa.r.tnership property, he is entitled to hold it under his mortgage in preference to the partnership or its creditors.</p> <p>2. Judicial Sales — Lis Pendens. — C. executed a mortgage to M. after a judgment in favor of B., for the enforcement of a lien upon the same property had been rendered. B. assigned his judgment to S. In an action to which both M. and S. were parties, S. set up the judgment lien which B. had assigned to him, and asked for its enforcement, and M. thereupon asked for the enforcement of his mortgage lien, subject to the judgment lien of S. Pending this action S. had the property sold under the judgment which was assigned to him, and became the purchaser, and in response to M.’s pleading asserting a lien he claims the property absolutely. Held — That the conduct of S. must be held to have been an abandonment of his right to enforce his judgment -save in this action, and he cannot now be heard to say that M. acquired his lien pendente lite.</p> <p>8. Parties to Appeal. — The court cannot, upon appeal, review a settlement of partnership accounts, one of the partners not being a party to the appeal.</p>

<p>"Case 64 — PETITION ORDINARY (Transferred to Equity)—</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. By giving up the land to the sheriff to sell, by written indorsement on tlie execution, tlio defendant conferred power upon liim to make tlie sale without a levy. (Bev. Stats., eliap. 36, art. 14, sec. 4; Gen. Slats., chap 38, art. 13, sec. 3.)</p> <p>2. Even if a levy was necessary to authorize the sheriff to sell, the court must presume from the facts appearing in this record that a levy was actually made. '(Evans v. Davis, 8 B. M., 346.)</p> <p>I. Tlie failure of the sheriff to state in his return what the land was valued at, or to return the appraisement, did not invalidate the sale. (Bell, &c„ v. Weatherford, 12 Bush, 505; Beid v. Heasley, 9 Dana, 324.)</p> <p>4. It does not appear that either tract of land was in tlie adverse possession of any of the defendants at the time the conveyance was made. But, independent of this, the statute in relation to ehampertous contracts, etc., does not apply to conveyances made in cases like this.</p> <p>1. The defendant in the execution having surrendered tlie land, he and those claiming under him are estopped to say- that it was not subject to levy. (Harrison v. Griffith. 4 Bush, 148; 5 J. J. M., 412; Moore v. Simpson, 3 Met., 351; Anderson v. Brisco. 12 Bush, 346.)</p> <p>2. Prom the fact that the land was surrendered, sold and conveyed, the court must presume it was levied on. (Evans v. Davis, 8 B. M., 346; Terry v. Blight, 3 Mon., 272; Freeman on Executions, sec. 274; Howard v.,Nortb, 51 Am. Dec., 769; 5 Texas, 290; Blight v. Tobin, 7 Moil., 622; 18 Am. Dec., 219; Forman v. Hunt, 3 Dana.)</p> <p>3. The levy sufficiently describes the land. That is certain which can be made certain. (Freeman on Executions, sec. 281; Swan v. Parker, 27 Am. Dec.. 522 and Note (7 Yeager, 490); Note to Atwood v. Crabb, 26 Am. Dec., 666; 15 Mo., 309 (55 Am. Dec., 145.)</p> <p>4. The fact that the land was adversely hold when the sheriff’s deed was made, if true, is immaterial, as the deed relates hack to the levy and sale. (Rorer on Sales, sec. 810; Freeman on Executions, sec. 833.)</p> <p>.5. As Wintersmith claims under Shean, and the other parties under Wintersmith, they are all estopped to dispute Shean’s title. (Carlyle v. Patterson, 3 Bibb, 93; McLean v. Gregg, 2 Mar., 455; 2 Mot., 289.)</p> <p>6. As Wintersmith’s purchase was made' under execution issuing and levied after the sale to Greer, it must give way to Greer’s purchase.</p> <p>7. As Kelly’s purchase of Shean’s property was made under an execution issued on a bond in which he was principal and Shean was surety, it inured to Shean’s benefit.</p> <p>Brief not in record.</p>

Case 65 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Appellant Johnston, being the owner of the lots on both sides of the newly laid out Highland Avenue, and desiring to prevent a-stable or other objectionable building on the corner lot at the entrance to the avenue, expressly refused to sell the lot at all to the street car com. pany; and when he sold it to Allman required the restrictive clause in the deed against any other use than as a residence.

Case 66 — PETITION EQUITY APPEAL FROM M’LEAN CIRCUIT COURT. Brief not in record. The purchaser of real property by executory contract is the equitable-owner of it, and has to sustain any accidental loss of buildings on the: premises that may occur after the purchase, and before the conveyance of the legal title, unless there be an agreement by the vendor to deliver the property in the same condition as when the purchase was made.

<p>Case 67 —PETITION</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>1. The land in which dower is sought was partnership property. The fact that one tract was conveyed to the two partners by name does not militate against this conclusion. (Spalding v. Wilson & Muir, 80' Ky., 591; Parsons on Partnership, 363; Bowler, &c., v. Blair, MS. Op., Mar., 1885.)</p> <p>2. Appellee was entitled, as dower, to only on e-sixth of each of the two' tracts and not to one-third.</p> <p>3. The court should have directed the commissioner, in allotting dower, to-consider the land in the same condition it was in when purchased by appellants.</p> <p>4. There is nothing in the deeds to appellants that estops them from resisting the claim of appellee to dower.</p> <p>5. The appellee, by accepting the devise of all her husband’s estate, surrendered her claim to dower m lands hold by her husband during the coverture, but which he sold and conveyed before his death. (Grider v. Eubanks, 12 Bush, 510; Vance v. Campbell, 1 Dana, 229; General Statutes, chap. 52, art. 4, sec. 6.)</p> <p>1. The action of the court in allotting to appellee dower, in on e-third of the land instead of on e-sixth, as claimed by her in her petition, was a clerical misprision. (Speed v. Hahn, 1 Mon., 18; Smith v. Todd, 3 J. J. Mar., 298; Wilson v. Barnes, 13 B. Mon., 332; Clark v. Finnell,, 16 B. M., 334; Johnson v. Bank of Kentucky, 2 Duv., 521; Dodd v. Combs, &c., 3 Met., 28; Hieronymus v. Mayhall, 1 Bush, 510; Long v. Gaines, Berry & Co.. 4 Bush, 353; Smith v. Mullins, 3 Met., 182; Oldham v. Brannon, 2 Met., 302 ; Cin. Ham. R. R. v. Day., Mich. R. R., 2 Duv., 4.)</p> <p>'2. While the com missioner, in allotting dower, should consider the land in the same condition it was in when alienated (Fritz v. Tudor,. X Bush, 30), it is not necessary that the court should give him specific directions to do so. (Taylor v. Brodrick, 1 Dana, 348.)</p> <p>3. The question as to whether the land in which dower is sought was partnership property is res adjudicada. The judgment in the proceeding under the deed of assignment is conclusive against the creditors as to all questions they might have made, and appellants as purchasers under that judgment are in no bettor condition. (Davis v. McCorkle, 14 Bush, 115.)</p> <p>■4. Appellee did not, by accepting the devise of-her husband, surrender her right to dower in the land in contest. The intention of the husband determines whether the gift or devise is by way of jointure, or in lieu or satisfaction of dower. (Yancey v. Smith, 2 Met,, 410; Tevis’ Executors v. McCreary, 3 Met., 153.)</p> <p>■5. Appellants, having purchased subject to appellee’s right of dower, are estopped to resist her claim.</p>

<p>Case 68 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. This is a suit to recover damages for a breach of the implied contract of a common carrier of passengers that the passenger shall be well treated and protected, and the petition states a cause of action. (2 Parsons on Contracts (5 ed.), 225; Sherley v. Billings, 8 Bush, 147; Goddard v. R. R. Co , 57 Maine, 202; R. R. Co. v. Riley, 39 Ind., 568; Weed v. R. R., 17 N. Y., 362; R. R. v. Derby, 14 How., 468; R. R. v. Yandiveer, 42 Pa. St., 365.)</p> <p>2. The relation of passenger existed. Appellee was bound to carry all who were ready and willing to pay it the customary hire. (1 Addison on Torts, sec. 649.) Neither entry on cars nor payment of fare is necessary to constitute the relation of passenger. (Gordon v. R. R. Co., 40 Barb., 546; Jeff. R. R. Co. v. Riley, 39 Ind., 568; Batton and Wife v. N. A. R. R. Co., Cent. Law J., May 14, 1886, p. 467.)</p> <p>3. This action was not brought, and could not properly have been brought, under secton 3 of chapter 57 of General Statutes, as the injury resulting in the killing was intentional. (Spring v. Glenn, 12 Bush, 173.)</p> <p>Nor is it an action of trespass vi et armis for assault and battery brought against the master for the act of the servant. (Brasliier v. Kennedy, 10 B. M., 28; Wood’s Law of Master and Servant, p. 644.)</p> <p>Therefore, the provisions of chapter 10 of General Statutes do not apply.</p> <p>1. This action is not authorized by any statute; for the statutes only authorize an “ administrator ” to sue in cases where the death is caused by “ negligence; ” and the allegation here is not of any negligence, but of death from a “ willful and unlawful assault.” (Gen. Stats., chap. 57, secs. 1 and 3; Spring v. Glenn, 12 Bush, 173; Morgan v. Thompson, 82 Ky., 383.)</p> <p>2. Nor can it be sustained on common law principles, as an action for damages for the death of the party; for at common law no action could be brought by an administrator for damages for the death of his decedent. (Cooley on Torts, pages 15 and 28; Eden v. R R. Co., 14 Ben. Monroe, 206; Murphy v. Canal Co., 9 Bush, 534; R. R. Co. v. Case, 9 Bush, 733; Morgan v. Thompson, 82 Ky., 383.)</p> <p>3. Nor can the administrator sue to recover damages for the suffering which occurred in the twelve days between the “ assault ” and the death; for this action being, not for negligence, but’for a “ willful and unlawful assault,” it did not survive at common law; and our statute expressly provides that “ an action for assault shall cease or die with the person injured.” (Gen. Stats., chap 10, sec. 3.)</p> <p>4. The case of Sherley v. Billings, 8 Bush, is not decisive of this; for the assault there did not produce death, and the suit was by the living injured party. (Sherley v. Billings, 8 Bush, 150.)</p> <p>5. Nor are the cases of Hansford v. Payne, 11 Bush, 382, and Oonnor v. Paul, 12 Bush, 145, applicable; for those were actions for “negligence;” and, by express statute, actions for “negligence” survive to the administrator; while actions like this, not for negligence, but for a “willful and unlawful assault,” do not survive. (Gen. Stats., chap. 10, see. 1; chap. 57, sec. 1.)</p> <p>6. Nor should the statute, which provides that actions for an “assault” shall not survive, be evaded by a theory that the assault complained of was a breach of an implied contract on the part of the common carrier that it would not assault passengers. Whether the defendant has or has not contracted that he will not commit an assault, does not •prevent it from being an assault when committed; and does not remove the statutory provision that an action therefor shall not survive. It is an over-refinement to say that this is notan action for the assault, but is an action for a breach of an implied contract not to assault. (Gen. Stats., chap. 1, sec. 1; Morgan v. Thompson, 82 Ky., 383.)</p>

Case 69-PETITION EQUITY APPEALS PROM PULTON CIRCUIT COURT. 1. Where the Legislature grants to another tribunal the power to tax, it can only be exercised in strict conformity to the terms in which the power is granted.

Case 70 — PETITION ORDINARY APPEAL PROM CARROLL CIRCUIT COURT. 1. As the husband is liable for debts of the wife contracted dum sola to the extent of property acquired by the marriage, it follows that an issue must be tendered him.

<p>1. Assignments by Operation op Law — Homestead.—"Where a debtor, in contemplation of insolvency, and with a design to prefer one creditor to the exclusion of others, makes a transfer of property, which under the statute operates as an assignment of all his property for the benefit of his creditors, and a petition attacking the transfer is filed within six months, the right of the creditors to the debtor’s property relates back to the time the transfer was made, and is not affected by the acts of the debtor between the date of the transfer and the date of the filing of the petition,, pr of the sale of the property.</p> <p>At the time of the exobution of a mortgage which, in an action filed within six months thereafter, was declared to operate as an assignment of all the mortgagor’s property for the benefit of his creditors, the mortgagor did not reside upon the land mortgaged, but after the filing of the petition attacking the transfer, removed to it and occupied it as a home. He now claims it as a homestead as against the creditors. Held — That the mortgage operated as an immediate transfer of the mortgagor’s property to the use and benefit of his creditors, and the mortgagor, by subsequently removing to the land, acquired no right to it as a homestead.</p> <p>2. Same.. — If a debtor, knowing that he is insolvent, in order to give a particular creditor a preference over other creditors, gives him a mortgage to secure a debt or liability already created, together with a liability simultaneously created, and the creditor, knowing the true state of case, aids the arrangement, he is not a mortgagee in good faith to secure a debt or liability created simultaneously with the execution of. the mortgage, and obtains no advantage over other creditors by reason of the fact that a portion of his debt was so created. But where the liability thus simultaneously created is that of surety upon a debt previously existing, the mortgagee is entitled to prorate with other creditors, if he pays the debt, since the original creditor would be entitled to prorate, and the surety should be allowed to stand in his shoes. 'Whether the creditor under such circumstances would be allowed to prorate with the other creditors if the debt itself was created simultaneously with the execution of the mortgage, is an open question.</p> <p>3. Same. — Where a surety, subsequently to his becoming bound as such, takes a mortgage for his indemnity from the principal, he is not protected by the exception of the statute in favor of a creditor whose debt is created simultaneously with the execution of the mortgage.</p>

<p>Case 72 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>The act of the Legislature upon which plaintiffs rely is unconstitutional, because</p> <p>1. The subject of the act is not expressed in the title. The title gives notice that only those to be benefited are to be taxed. Hence, all legislation providing for a tax upon those not benefited is not germain to the title of the act.</p> <p>2. The tax imposed upon the land-owners within the district is burdensome and oppressive, amounting to spoliation, and also is in violation of the principle which requires taxation to be uniform and equal. That principle applies as well to taxation to keep up the county roads as to taxation for street improvements. (Howell v. Bristol, 8 Bush, 498; Lexington v. McQuillan’s Heirs, 9 Dana, 517-18.)</p> <p>The act does not come within the decisions of the Court of Appeals sustaining taxation for railroads, for in each instance where the tax was sustained there was subscription to the stock of the railroad in contemplation, or made. Besides, a railroad or turnpike improvement is not like a street or county road improvement, being special instances of taxation, while the latter are general and incident to the cities or counties, and only valid when the taxation resulting from them is uniform and approximately equal. (13 B. M., 9; 8 Bush, 219; 9 bush, 515; 17 B. M., 355; 2 Met., 175; 10 Bush, 574; Ibid., 611; Id., 718; 5 Bush, 226.)</p> <p>The case of Malchus v. Highland, &e., 4 Bush, 547, distinguished.</p> <p>(Counsel filed petition for extension of mandate so as to direct the dismissal of the petition, which was overruled.)</p> <p>1. The subject of the act imposing the burden is sufficiently expressed in the title. (Sess. Acts 1881, vol. 2, p. 683; IVIcRynolds v. Smallhouse, 8 Bush, 453; Howland Coal and Iron Works v. Brown, 13 Bush, 681; Hoke v. Commonwealth, 79 Ky., 569; Jacobs v. L. & N. R. R. Co., 10 Bush, 271.)</p> <p>2. The provisions of the act are within the scope of legislative power.</p> <p>It is competent to provide for the grading and macadamizing any public road within a district, at the cost of the lands-abutting on such road. (Malchus v. District of Highlands, 4 Bush, 547.)</p> <p>A tax on a section of a county is constitutional. The Legislature Is not confined in such taxation to existing civil or political districts. {County Judge of Shelby County v. Shelby R. R. Co., 5 Bush, 228.)</p> <p>All street improvements are paid for on the idea that the square bound for the tax is a taxing district. (Lexington v. McQuillan, 9 Dana, 513.)</p> <p>The Legislature may even require a county court to subscribe for stock in a railroad company in behalf of a precinct through which the railroad passes. (Allison v. L. H. C. & W. R. R. Co., 10 Bush, 2)</p> <p>The right to impose such a tax as that imposed in this case does not depend on a popular vote. Uor does the fact that a lot within the district is injured, instead of benefited, exempt it from thetax. (Pearson v. Zable, 78 Ky., 173.)</p> <p>The fact that other roads in the county are not to be macadamized and kept in repair at public expense, is no matter of inequality of taxation.</p> <p>These doctrines are not confined to this State. (Spencer v. Merchant, 100 N. Y., 586.)</p> <p>1. An act of the Legislature ought not to he pronounced unconstitutional, unless on its face it is void. The question of constitutionality can not - be tried as an issue of fact.</p> <p>2. If the judgment of this court stands, the appellees ask leave to reply and show that there is a special and peculiar benefit from the improvement to the district taxed, and that appellants’ land is greatly increased in value.</p> <p>1. The only thing the opinion urges against the act relied on is an abuse of power by the General Assembly, and this in no manner calls in question their power to act, or the constitutionality of their action. (Sharpless, &c., v. The Mayor, &c., 21 Penn., 147; 2 W. & S., 271; 10 Watts, 63; 3 Dallas, 386; 6 Crancb, 87; 18 Wend., 9; 9 Craneh,. 43; 1 Bay, 252; 1 Baldwin, C. C., 205.)</p> <p>Judicial tribunals can not interfere with legislative discretion, however erroneous it may be. (1 Ohio, 126; 5 Ohio St., 243; 47 N. Y., 608; 44 Vt., 174; 38 Miss., 652; 58 Penn., 320; 20 Graft., 61; 8 Ind., 358; 4 Bush, 547; 11 Kansas, 394; 6 Allen, 353.)</p> <p>2. The power to determine what shall be the taxing district for any particular burden is purely a legislative power, and not to be interfered with or controlled by the courts. (Cooley on Taxation, 111; Howell v. Buffalo, 37 N. Y., 267.)</p> <p>3. Tlie court should extend its opinion and indicate whether the defense-relied on is spoliation or want of power in the Legislature to pass the act in question.</p>

Case 73 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. Prior to the act of 1843, the tenant by mortgaging his property upon; the leased premises could defeat the landlord’s lien upon the mortgaged property for all rent due or to become due. (Beckwith v. Bent, Duval, &c., 10 B. M., 96; 2 Dana, 204; 3 J. J. M., 432 ; 4 Dana, 22.) 2.

Case 74 — CONTESTED ELECTION APPEAL PROM CHRISTIAN CIRCUIT COURT. 1. Where a vote appears to have been recorded and counted for both candidates, it should be altogether rejected, or, what is the same thing, counted for both parties, unless, from evidence on the book, or circumstances surrounding the election, it may bo ascertained that the vote was intended for a particular candidate.

Case 75 —INDICTMENT APPEAL EROM NICHOLAS CIRCUIT COURT. 1. The indictment charges two separate .and distinct offenses. — • housebreaking and petit larceny — and the court should have required the Commonwealth to elect which it would prosecute. 2. Mrs. Boyd, by her conduct, consented that appellant might enter her house, and, therefore, the breaking was not felonious. 3.

Case 76 — PETITION ORDINARY APPEAL FROM HARDIN CIRCUIT COURT.' 1. The instrument under which appellant claims is a deed of bargain and sale from the P. & E. R. R. Co., and does not evidence a -consolidation of the two companies, or a merger or amalgamation of the one into and with the other. The writing contains all the words, expressions and clauses which are usual in conveyances or deeds.

Case 77 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS! 1. The intention of appellent was to sue appellee, and not the Louisville, Cincinnati and Lexington Railway Company. The facts present the common case of a misnomer. (Sherman v. Proprietors of Connecticut River Bridge, 11 Mass., 338; Smith v. Bowker, 1 Mass., 76.) 2. But appellee’s course renders plaintiffs intention immaterial.

<p>1. Elevated Railroads. — A company chartered to build a “railroad” merely, has the right to elevate it wherever the character of the country makes it either convenient or essential to do so.</p> <p>2. Same. — An amended charter of a railroad company referring to city ordinances requiring the road to be elevated at the street crossings, must be deemed a legislative recognition of the Tight to “ elevate” a portion of the road.</p> <p>8. Eminent Domain. — When private property has been taken for a specific public use, and compensation made, it should not be used for a foreign purpose without a new legal taking, or the consent of the party from whom it was derived; but it may be applied to any new mode of user tending to the primary or general purpose. Therefore, a railroad may bo laid out over a highway, provided it is so laid out and constructed as not to bo incompatible with the use of the highway in the other usual modes of passage and conveyance.</p> <p>4. The construction of a railroad along a street is not, per se, an encroachment upon the individual right of the abutting lot-owner, and whether he can complain depends not upon the fact of the existence of the railroad, but the manner of its construction and operation. If he is thereby deprived of the reasonable use of the street, he may appeal to the courts for relief, but if he is merely inconvenienced thereby, and suffers some remote consequential injury, he is without relief.</p> <p>In this case it is held that an elevated railroad, the construction of which is sought to be enjoined, will not, by reason of the manner of its elevation, bo an unreasonable obstruction of the street.</p> <p>5. Same — Injunction.—When the construction and operation of a railroad over the streets of a city result in special and substantial injury to abutting lot-owners by reason of smoke and cinders, the cracking of walls, etc., they may recover for damages directly resulting from such causes; but until the road is built, it is a matter of mere speculation whether any such injury will result, and as the law affords an adequate remedy for such injuries, and their character or extent can mot be ascertained until the road is built, the chancellor will not interfere with the construction of the road merely because such injuries may result.</p>

<p>1. Estoppel. — A. desiring to provide for B.’s wife and children, transferred to B. some notes in consideration of B.’s. agreement to convey to him a certain tract of land, A. agreeing to convey the land to B.’s wife for her separate use for life, and at her death to her children. A. supposing the land had been conveyed to him pursuant to the agreement, executed to B.’s wife and children a conveyance therefor as agreed, B. ratifying the conveyance after it was executed. In fact, however, B. had not conveyed the land to A., and never did so. Thereafter B. and wife executed to appellant a mortgage upon the land to secure a debt of B.; the mortgage describing the land as that conveyed by A. to B.’s wife. Held — That B. Is estopped to deny that the deed from A. to his wife and children is binding upon him, and his vendees and privies are likewise bound by estoppel. Therefore the mortgage to appellant is invalid.</p> <p>2. Ealse Recital in Mortgage. — Husband and wife united in a mortgage of the husband’s land, the mortgage, however, describing the land as that of the wife. Held — That while the false recital in the mortgage renders it inoperative as against third persons without notice of the true state of the case, yet, like an unrecorded mortgage, it is good as between the parties, and also good as against third persons with notice of all the facts.</p> <p>3. Liens. — The mortgageor of a life estate in lands having acquired also the reversion, C., the mortgagee, asserted a lien upon the mortgageor’s. absolute estate, which was sold to satisfy the mortgagee's debt, the claim of a lien upon the fee not being resisted by the mortgageor D., the holder of a mortgage upon the mortgageor’s absolute estate in the same land, not having been made party to C.’s action, now asserts his lien. D.’s mortgage, by reason of a false recital therein, was not good as against 0., who had no notice of the facts. Held — That while C. had a lien only on the mortgageor’s life estate, yet as his claim to a lien upon ■the fee was not resisted, and he could have purchased the reversion from the mortgageor, or could have had his execution is•sued and .levied thereon and acquired -a good title as against D., the latter can not complain because the same thing has been •accomplished in another way.</p>

Case 80 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. The possession of Mrs. Robinson was not adverse. So long as the donee or vendee under a parol contract looks to the donor or vendor for title, the possession is amicable, and the statute of limitations is not a bar to the recovery by the donor. (Speers v. Sewell, 4 Bush, 241; Strother v. Cyrus, 5 Ky. Law Rep., 58; Pite v. Orr’s Assee., 8 Ky. Law Rep., 349; PragofF v. Elood, 7 Ky. Law Rep., 636-645.) 1.

Case 81 — PETITION EQUITY APPEAL PROM CASEY CIRCUIT COURT. 1. Such an act of adoption as that under which appellants claim creates-the adopting parent a propositus from whom a line of descent is cast pursuant to the statute of descent, substituting an adoptive child for a natural one for all purposes, except as expressly limited by the statute under which the adoption is had; and the jus representationis attaches as fully to the adoptive child as to the child by blood.

Case 82 — PETITION ORDINARY APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. 1. The written order was in effect a bill of exchange; for it did not limit the railroad company to paying each installment out of a particular month’s earnings only; but was a general order to pay out of any funds of Bane’s the railroad company might have, orto advance the money for Bane.

<p>Case 83 — PETITION OEDINABY</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The Jefferson Court of Common Pleas had jurisdiction.</p> <p>As the offense was not indictable, the Jefferson Circuit Court did not have jurisdiction. (Acts of 1876, vol. 1, p. 19.)</p> <p>Jurisdiction of an action to recover a fine is not confined to courts having criminal jurisdiction. (Civil Code, sec. 63; Gen. Stats., chap. 29, art. 1, sec. 27; Commonwealth v. Avery, 14 Bush.)</p> <p>2. Even though the forty-eighth section of the insurance act be unconstitutional in so far as it gives unlimited discretion as to the power of imprisonment, that is a question which can be raised only when that part of the section is sought to be enforced. A law may be constitutional in part and unconstitutional in part, and the unconstitutional part may be disregarded and the remainder enforced. (Cooley’s Const. Limit., side page 177; Commonwealth v. McClelland, 83 Ky.)</p> <p>Other authorities cited at close of brief: People v. Stevens, 13 Wend.; Waddell v. Commonwealth, 8 Ky. Law Bep.; Aeree <fc Kinman v. Commonwealth, 13 Bush, 353.</p> <p>1. Process on the amended petition was necessary (Newman’s Pleading and Practice, pp. 697-698), and none having been issued, the judgment was void, and no appeal can be prosecuted therefrom until there has first been a motion in the lower court to set it aside.</p> <p>2. So much of the insurance act as authorizes such actions as this to be brought in the name of the State of Kentucky was repealed by the Criminal Code, which took effect January 1, 1877. (Criminal Code, secs. 1, 2, 3, 4, 5 and 11.)</p> <p>3. The Jefferson Court of Common Pleas did not have jurisdiction of such penal actions as this under the insurance act. But even if it be conceded that it did have jurisdiction under that act, it was wholly deprived thereof by subsequent legislation. (Criminal Code, sec. 13 subsec. 3; act of April 19, 1884.)</p> <p>4. When a remedy is given by statute in a particular action in a particular court, it is a virtual exclusion of all other modes in any other-court. (Howard v. K. & L. M. Ins. Co., 13 B. M., 285; Johnston v Louisville, 11 Bush, 533; Bussell v. M. H. C. & C. T. P. B. Co., 13 Bush, 307), and, therefore, the act of April 19, 1884, deprived every other court, except those specified therein, of all the jurisdiction it had, if it had any, for the enforcement of the penalty provided by that act.</p> <p>5. As the act of April 19, 1884, was in force at the time the proceedings: in this case were had, they should have conformed to the provisions, of that act. (Gen. Stats., chap. 21, sec. 23.)</p> <p>6. After the act of April 19, 1886, took effect, repealing all laws inconsistent therewith, no court whatever had jurisdiction to enforce or render judgment for the penalty sued for in the petition herein.</p> <p>7. The fact that said repealing act of April 19, 1886, was passed subsequent to the rendition of the judgment complained of, or during the pendency of the appeal heroin, is immaterial, as the court is bound to decide this case according to the law as it now exists. (Cooley’s Const. Limit., 5th ed., top pages 471, 470 and note; Sedgwick on Stat. & Const. Law, pp. 129-131; Commonwealth v. Cain, 14 Bush, 525; Speckert v. City of Louisville, 78 Ky., 287.)</p>