Volume 86 — Kentucky Reports

Case 1 — INDICTMENT APPEAL PROM HENDERSON CIRCUIT COURT. To constitute the offense with which appellant is charged, the property obtained by the accused must be the subject of grand larceny, the word “ larceny being used in the statute in a restricted sense.

Case 2 — PETITION ORDINARY APPEAL PROM FRANKLIN CIRCUIT COURT. 1. The imprisonment of appellant was unlawful for the reason that the marshal should have accepted the fine and discharged appellant to that extent, whatever course he may have intended to pursue in respect to the cost. 2. Appellant could not be lawfully imprisoned for the cost, which was no part of the penalty. (Gen. Stats., chap. 26, sec. 2; Commonwealth v. Wilson, 3 Ky.

<p>1. The burning of a ciiurch edifice is punishable by confinement in the penitentiary under section 3, of article 7, chapter 29, General Statutes.</p> <p>2. Impeachment of Defendant’s Character. — Where the defendant in a criminal ease is introduced as a witness for himself, his general character for truth and veracity may be impeached as that of any other witness.</p>

Case 4 — PETITION EQUITY I. At the time the judgment appealed from was rendered, the whole controversy on the merits and on the question of revivor was res judicata. (MS. Op., May 28, 1878; Williams, Receiver, v, Thomson’s Administrator, 80 Ky., 325.) 2. The judgment now appealed from is null and void. The court had no - power over the case, as it was not properly on the docket; nor had there been a revivor in the mode proscribed by law.

Case 5 — MANDAMUS APPEALS FROM FRANKLIN CIRCUIT COURT. Brief not in record. i. Gen. Eodman, under section 15, page 149 of General Statutes, had a lien upon the claim of Craig against the State from the time he first appeared before the legislative committees in advocacy of said claims. (Robertson & Cleary v. Shutt, &c., 9 Bush, 659.) 2.

Case 6 — PETITION EQUITY APPEAL PROM BOYD CIRCUIT COURT. 1. If the husband, by his improper conduct towards his wife, drives her from his home, or by improper conduct or deportment renders his house unfit for her residence, and she thereupon removes and lives apart from him, the law will hold him bound to maintain her as his wife, notwithstanding her constrained separation/rom him.

Case 7 — INDICTMENT APPEAL FROM PIKE CIRCUIT COURT. The judgment should be reversed for the reason that the evidence shows a clear case of justification, and for the further reason that the court misinstructed the jury.

<p>1. Water-Courses — Rights of Riparian Owners. — Each proprietor of land through which water flows may use as much of it as is necessary for natural and domestic purposes, even if it be entirely consumed in the úse, but he is limited as regards other purposes to a reasonable and proportionate use, which must not be such as to exclude others from a benefit to which they are equally entitled with himself.</p> <p>2. Same — Dams.—One may build a dam across a stream flowing through his land without obtaining leave from the county court as provided by section 1, of chapter 77, General Statutes, but if in doing so he interferes with the previous supply to other riparian owners he must an-' swor in damages.</p> <p>A railroad company built a dam across a creek near a point at ■which its road crossed the creek, by which a reservoir was formed from which water ivas taken to a tank to supply its locomotives. Appellant, the owner of a mill located two miles below tliis dam, and erected under an order of the county court granting leave as provided by statute, brings this action to recover damages for the unlawful obstruction of the stream that hitherto supplied the power for the operation of his mill. Held — That if there is such a detention of the ’ water as impedes or delays the running of plaintiff’s mill he is entitied to recover, the use by defendant not being an ordinary use of the water ,</p> <p>3. Same. — The fact that the defendant has leased its road and appurtenances to another does not deprive the plaintiff of his right of action against the defendant, the dam being the primary and continuing cause of the injury complained of.</p> <p>4. Same. — Under the leave granted by the county court, under the statute, to erect a mill or manufactory on a water-course in this State, the owner acquires a vested right which cannot lawfully be infringed by any other person or corporation, or taken or applied to public use without just compensation.</p>

Case 10 — PETITION EQUITY APPEALS PROM LOUISVILLE CHANCERY COURT. 1. It was improper to admit the commissioners of the sinking fund as parties. Until money gets into the sinking fund the power of the commissioners over it does not exist. (City Code, 699, sec. 29; Elliott’s Dig., 818; City Code, 631, sec. 5; City Code, sec. 14; Id., 262, sec. 36; Id., 473, sec. 23; Id., 630, sec. 2; McBeynolds v. Smallhouse, 8 Bush, 456; Commonwealth v. Todd, 9 Bush, 713.) 2.

Case 10 — PETITION EQUITY APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS. 1. To surcharge and falsify the settlement of a fiduciary, there must be specific allegations as to the items objected to. 2. A claim against an estate, created after the death of the decedent, need not bo verified, and the claimant is a competent witness to establish the claim. (Lucking’s Administrator v. Gegg, 12 Bush, 299; Berry v. Graddy, 1 Met., 558.) 3.

<p>Case 11 — PETITION EQUITY</p> <p>APPEAL PROM CLARK COURT OP COMMON PLEAS.</p> <p>1. When the gift is not immediate but in remainder, the law will not incline to another construction than that the death must be during the particular estate, unless the letter or context of the will plainly .shows that the testator intended a death either in his own life-time, or at any time whenever it might occur. (Birney v. Richardson & Ford, 5 Dana, 293.)</p> <p>2. A devise to A. for life, but if he die without issue to B., the children of A. take as purchasers. (Moore’s Trustee v. Home’s Heirs, 4 Mon., 133; Best v Conn, &c., 10 Bush, 37; Davis v. Buford’s Ex., MS. Op., February 8. 1887; Carr v. Jeanneret and Carr v. Green, 2 McCord, 66-75 ; Daniel v. Thomson, 14 B. M., 667.)</p> <p>1, Dabney N. Parrish took (subject to his mother’s estate during widowhood, or until he attains majority) a fee-simple liable to be defeated in case of his death without surviving children or grandchildren before the period named in the will for the delivery of the eslaie to hvm; in which event his mother will take an absolute estate. (Birney v, Richardson, 5 Dana, 293; 2 Jarman on Wills, 790 (5th edition); Edward v. Edwards, 15 Beavan, 357; Galland v. Leonard, 1 Swans., 161; Home v. Pillans, 2 My. and K., 24; Hughes v. Hughes, 12 B. M., 115; Wills v. Wills, 9 Ky. Law Rep., 76.)</p> <p>2. The mere fact that the subject of the devise was given over, in case of the death of the first taker without surviving issue, does not create by implication a remainder in his issue, if he should leave any surviving him. (Pells v. Brown, Oro., Jac., 590; Daniel v. Thompson, 14 B. M., 669 )</p> <p>1. The will does not create, by implication, a remainder in the surviving issue of D. N". Parrish.</p> <p>Cases cited by counsel for appellant commented on : Best v. Conn; Moore’s Trustees v. Home’s Heirs, 4 Mon., 200; Carr'v. Green, and Carr v. Jeanneret, 2 McCord, 66-75; Davis y. Buford, MS. Op., Feb. 7, 1887.</p> <p>2. The interest of Mrs. Parrish, although in a certain sense contingent, is one that can be sold and conveyed. (Grayson v. Tyler,• 80 Ky., 361; 4 Kent., 261-2; Gen. Stats., chap. 63, art. 1, sec. 6.)</p> <p>1. The devise over to the wife of the testator was to take effect only in the event of the death of Dabney N\ Parrish, without children or grandchildren, before the period of distribution. He is not to be divested of his estate after he once receives it. (O’Mahoney v. Burdett, English and Irish Appeals; Brown v. Brown, 5 Chancery Appeals, 248; Home v. Pillans, 2 My. & K. 15; Birney v. Richardson, 5 Dana, 432; Hughes v. Hughes, 12 B. M., 116; Wren v. Hymes’ Adm’r, 2 Met., 129; Gen. Stats., chap. 63, sec. 7; Drayton v. Drayton's Ex’r, 1 Desaussure, 328; Whitney v. Whitney, 45 N. H., 811; Hansford v. Elliott, 9 Leigh, 88; 25 Wendell, 139; Johnson v. Maston, 10 Penn. St., 15; Rose v, Drake, 37 Penn. St., 373; Leunier’s Lessee v. McAtee, 10 Ohio, 38; 2 Pick., 470; 2 Grant’s Cases, 28; 20 111., 193.)</p> <p>2. Should the estate of Dabney 1ST. Parrish be declared a defeasible fee, his children, if any survive him, take direct from him, and not through the will.</p> <p>3. Even if Mrs. Parrish has a contingent interest in the land, did it not pass by the assignment? (Grayson v. Tyler, 80 Ky., 358.)</p>

Case 12 — PETITION ORDINARY — APPEAL PROM PIKE CIRCUIT COURT. A deputy sheriff is liable to his principal for failing to account for and pay over public dues, and his principal may sue to recover before he has been [sued or has accounted for the public money. (Colter v. Morgan, 12 B. M., 279; Kouns v. Davis, 2 B. M., 279.)

Case 13 — PETITION EQUITY APPEAL FROM HENRY CIRCUIT COURT. 1. Sale of land under execution or attachment is void where the officer’ return does not identify the land sufficiently to enable a conveyance to be made from the description. (Johnson v. Rowe, MS. Op , Sept, 1880.) 2. Attached property can not be sold by sheriff as such — only by commissioner of court or special commissioner. (Gen. Stats., chap. 75, secs. 2, 11.) 1.

Case 14 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. A conveyance of land abutting on a highway or street carries the fee to the center, if the grantor has title. (Winker v. Peterson, 4 Zabriskie, 524; Paul v. Carver, 26 Penn. St.; Dodd v. Witt, 63 Mass., 139; 3 Kent’s Commentaries, 428; Warren v. Southworth, 6 Conn., 471; Peck v. Smith, 1 Conn., 103; Cox v. Ereedley, 33 Pa.

Case 15 — INDICTMEN APPEAL FROM WOLFE CIRCUIT COURT. 1. As the witness offered to prove the condition of .the mind of the accused at the time of the killing showed that she had an opportunity of forming an opinion from the facts observed by her, her testimony was competent. (Wharton & Slillé’s Medical Jurisprudence, vol. 1, sec. 272 and Notes, p. 273.) 2. While drunkenness is no excuse for crime, it may be proved to show the absence of malice.

<p>Case 16 — PETITION EQUITY</p> <p>APPEALS PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>Marriage is a sufficient consideration to uphold a marriage contract. (Bell on Husband and Wife, 306; 1 Bishop on Married Women, sees.. 418-427; Dyke v. Bandall, 13 Eng. L. & E., 404; Gesler v. Gesler, 1 Bailey, 379; Andrews v. Andrews, 8 Conn., 79; Spina v. Jeter, 9 Bichardson Eq., 437; 4 Kent’s Com., 464; Johnson v. Dillard, 1 Bay, 232; Maguire v. Thompson, 7 Peters, 438; 103 U. S., 24; Naill v„ Maurer, 25 Md., 538; Gould v. Wonack, 2 Ala., 83 ; Kline v. Kline, 64 Penn. St., 122; Bierer’s Appeal, 92 Pa. St., 268; Pearce v. Pearce»' 71 New York, 154.)</p> <p>Cite: 4 Kent’s Com., 464; Naill v. Maurer, 25 Md., 527; Dyke v. Bandall, 13 Eng. L. & E., 404; Andrews v. Andrews, 8 Conn., 79; Shiver v. Leter, 9 Bichardson Eq., 434; Gesler v. Gesler, 1 Bailey, 379; Kline v. Kline, 57 Pa., 120; 64 Pa., 126; Bierer’s Appeal, 92 Pa.» 266.</p> <p>1. The antenuptial contract is not binding upon appellee. (Bishop on Married Women, vol. 1, sec. 424; Pierce v. Pierce, 71 N. Y., 154; Kline’s Estate, 64 Pa. St., 126 ; Beevis’ Appeal, 92 Pa. St., 265.)</p> <p>2. Since the Bevised Statutes, widow may claim dower and distributive share — being charged value of property devised to her. (Gen. Stats., chap. 31, secs. 11 and 12; chap. 52, art. 4, sec. 6; Story’s Equity, sec. 1098; Craig v. Walthall, 14 Gratt., 524.)</p> <p>3. Judgment determining right to dower and distribution is not a final ’ judgment from which an appeal can be taken. (Freeman on Judgments, secs. 12, 16, 30, 34; Bondurant v. Apperson, 4 Met., 32.)</p>

Case 17 — INDICTMENT APPEAL FROM WHITLEY CIRCUIT COURT. It is the act of marrying a second time while his first wife was alive which constitutes the offense of appellant, if any he has committed, and since the indictment shows that act was committed in another State, the facts stated in the indictment do not constitute an offenso within the jurisdiction of the Whitley circuit court. (Gen. Stats., chap. 29, art. 4, sec. 10; Ibid., chap. 52, subsec. 3 of sec. 2; Bishop on Crim.

Case 18 — RULE APPEAL PROM PENDLETON CIRCUIT COURT. It is the duty of the clerk to make out a transcript for the unsuccessful litigant in the circuit court, without previously demanding payment or security for the fee. (Bates v. Eoreo, 4 Bush, 430; Collins v. Cleaveland, 17 B. M., 365; Duncan v. Baker, 13 Bush, 516.) Brief not in record.

<p>Case 19 — PETITION EQTJIT Y</p> <p>APPEAL PROM KENTON CHANCERY COURT.</p> <p>1. A deed absolute upon its face may be shown to be only a mortgage. (Secrost v. Turner, 2 J. J. M., 471; Oldham v. Halley, 2 J. J. M., 115; Bright, &c., v. Wagle, 3 Dana, 252; Honoré v. Hutchings, 8 Bush, 695; De France v. De France, 34 Pa. St., 385; Jones on Mortgages, vol. 1, sec. 327.)</p> <p>2. All errors that could have been corrected on first appeal must on second appeal be regarded as settled. (Davis v. McCorkle, 14 Bush, 746; Mason v. Mason, 5 Bush, 187; Bordv. Gregory, 10 B. M., 175; Bierer v. Bretz, 14 Pacific Reporter, 558; Golson v. Dunlap, 14 Pacific Reporter, 576.)</p> <p>Cites: Stroshly v. Powell, 12 B. M., 280; Gully v. Grubbs, 1 'J. J. M., 389.</p> <p>■On second appeal nothing is brought up but the proceedings subsequent to the mandate. (Ex Parte Slidell, 12 Peters, 483; Hunly v. Rose, 5 Crunch, 314; Tharp v. Collon, 7 B. M., 643.)</p>

<p>Benefit Societies — Change of Beneficiary. — A provision in the charter of a benefit society to the effect that a new direction as to the payment of a beneficiary certificate shall be valid only when made in a certain way, is for the protection of the society, and does not govern as between claimants to the benefit. Therefore, if the society chooses to waive the failure to comply with that provision and pay the fund to the new beneficiary named, it may do so, although the-change of beneficiary was not made as required by the charter.</p>

<p>Case 21 — PETITION ORDINARY</p> <p>APPEAL PROM JEPPERSON COURT OP COMMON PLEAS.</p> <p>No briefs in record.</p>

<p>1. Constitutional Law' — Escheats.—The Legislature has no power to authorize a corporation or private citizen to sue for and recover money or property of one in the rightful possession thereof because it has no real owner, or upon the presumption, by reason of the lapse of time, that no owner exists, and to hold it as a gift from the State, leaving the bailee responsible to the real owner, if he should appear, and requiring both to look to the donee of the State for its value. Such legislation changes the legal status of the parties without their consent, and is in violation of the Constitution.</p> <p>The act of April 22, 1882, amending article 1, chapter 36, General Statutes, is, therefore, unconstitutional, in so far that it vests certain bank deposits in the Board of Trustees of the public schools; and the defect in that act is not cured by the act of 1884, amending the general law of escheats.</p> <p>2. Same. — While there is no objection to the validity of the statute authorizing the presumption of death, and the non-existence of heirs or • devisees to take the estate, where no claim has been asserted or heirs heard of for the period mentioned in the statute, the presumption may be overcome by testimony showing that persons are living who are entitled to the estate, or who have boon or are asserting claim to the property as the lawful heirs of the decedent; and where there are such claimants they should at least be brought before the court.</p> <p>3. Issue Triable at Law. — If the statute were valid and the title to the money sued for vested in the appellant by reason of the lapse of time, and the presumption arising from the facts mentioned in the statute, there would be no reason why the issue could not be tried at law.</p>

Case 23 — PETITION EQUITY APPEAL FROM NELSON CIRCUIT COURT. Brief not in record. A restriction in a deed not to sell on the premises conveyed, spirituous liquors in less quantity than live gallons, is a covenant running with the land, and is not void as in restraint of trade. (Story’s Equity Jurisprudence, secs. 292, 928; Smith’s Mercantile Law, 38; Stephens’ Nisi Prius, 1113; 4 Bibb, 488; 7 J. J. M., 369.)

<p>1. Trusts — Debtor and Creditor. — Where one is vested by devise with an interest in the profits of an estate, that interest may he subjected to the payment of his debts, although the testator has provided that it shall “ in no way be liable for his debts.”</p> <p>2. Same. — Under a devise by a testator to his son for the support and maintenance of himself, wife and children, the wife and children take an interest equal to that of the husband in the income of the estate, and in an action by a creditor of the husband to subject his interest, it being charged by the children that their father has wasted the rents and profits of the estate in the payment of his debts and in disregard of their rights, there should be no sale of his interest until there has been a settlement of his accounts as trustee for his wife and children; and if upon a settlement it appears that he is indebted to them, they must first he made whole out of the trust fund.</p>

Case 25 — PETITION EQUITY APPEAL FROM SCOTT CIRCUIT COURT. When there is nothing in the context to indicate a contrary intention, the word “ survivors ” must be construed strictly.

<p>Case 26 — PETITION ORDINARY</p> <p>APPEAL FROM M’LEAN CIRCUIT COURT. ,</p> <p>Cites: Potter’s Dwarris on Statutes, 145, 473; Gen. St., chap. 38, art. 13, sec. 6; Session Act 1883-4, p. 45; Cooley’s Constitutional Limitations, pp. 205, 287, 349; Garnett v. Cheshire, 12 American Reports, 647; Bronson v. Kenzie, 1 Howard (U. S.), 315; Yon Hoffman v. City of Quincy, 4 Wall., 535; 23 American Reports, 494.</p> <p>Cites: Gen. St., chap. 38, art. 13, sec. 6; Acts of Ky., 1883-4, pp. 45, 75; Potter’s Dwarris on Statutes, 183, 185; Tennessee v. Sneed, 96 U. S., 69; Edwards v. Kearzey, 96 U. S., 595; Louisiana v. New Orleans, 103 H. S., 203; Planters’ Bank v. Sharp, &c., 6 How., 301; Wilson v. Brown, 58 Ala., 52; 29 American Reports, 727; Johnson v. Pletcher, 54 Miss., 628; 28 American Reports, 388.</p>

Case 27 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. Í. A money judgment in an equitable action toehforce a lien is not allowable unless there is a clear equitable jurisdiction at the beginning of the action and subsequent circumstances render it impossible to give equitable relief. (St. Clair v. Cox, 106 II. S.,'851; D’Arcy v. Ketchum 11 How., 137.) '2. The receiver being an officer of the court can not be sued without its leave.

<p>1. While proceedings for the removal of an officer for cause belong properly to the judicial power of the State, unless its Constitution or laws provide otherwise, yet when the Legislature creates an office it may refer the power of removal to the Governor or other tribunal not judicial.</p> <p>2. The Commissioners of the Sinking Pund have the power to remove the Warden of the penitentiary without trial in their discretion, and their action is not subject to judicial investigation; and while the Legislature has reserved to itself revisory power over the action of the Commissioners in this matter, their order of removal takes effect at once, and does not operate merely as a suspension of the Warden pending the action of the Legislature. The removed Warden, therefore, has no right to retain possession of the property set apart by the Legislature for the use of the Warden and his family.</p>

Case 29 — PETITION EQUITY APPEAL FROM WHITLEY CIRCUIT COURT. 1. A note “ to boar interest from date at the rate of ten per centum per annum,” bears that rate only to maturity, and after that six per cent, (McDonald v. Green, MS. Op., April 21, 1883; Robertson v. 'Waltrip, MS. Op., January 17, 1883; Ballow v. Jones, MS. Op., March 12, 1886.) 2. Usurious interest paid must be applied first to payment of legal interest, and then as credit on debt.

Case 30 —INDICTMENT APPEAL FROM OHIO CIRCUIT COURT. An indictment charging that appellant maliciously shot at and wounded another with intent to kill him, whereof he did not die, is insufficient, because it fails to state that the shooting was done with felbnious intent. The offense charged being statutory, it is sufficient that the indictment follows the language of the statute.

<p>Case 31 — PETITION EQUITY</p> <p>APPEAL EROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. Prayer for general relief under Code of 1854, section 118, authorized a judgment for any relief to which the pleadings showed the party entitled. (5 J. J. M., 125, Pruett v. Graves; 7 J. J. M., 459, Talbot v. Todd; 5 B. H., 98, Eapplee v. Breck; 12 B. M., 587, Basey v. Board.)</p> <p>2. A judgment is final which determines the right of one to land, though the description of the land be too general to authorize sale without further identification. (2 Dana, 421, Barton v. Campbell; Brittain’s Adm’r v. Eoley, MS. Op., Eeb. 23, 1886.)</p> <p>1. A decree allotting dower of “fifty acres including the dwelling and other huildings,” is void for uncertainty.</p> <p>2. A defendant not entitled to judgment against co-defendant without cross-pleading setting up grounds for recovery and process thereon. (82 Ky., 135, Case v. Owensboro & Nashville R. R. Co.)</p> <p>•3. In suit to settle an estate, where there are infant heirs, chapter 86 of General Statutes applies. (Code of 1854, secs. 466, 539; 4 Met., 198, Gill v. Givens’ Adm’r.l</p>

<p>1. The directors and managers op a corporation may maintain an action against the corporation for the collection of their demands against it, and. to subject property of the corporation mortgaged to secure their demands; and neither the judgment nor the purchase of the property under it by the plaintiff will be held to be fraudulent, or in trust for other creditors.</p> <p>2. Actton to Set Aside Fraudulent Judgment and Sale. — A creditor of a corporation can not maintain an action to set aside for fraud such a judgment against the corporation, and the sale under it, in the absence of a judgment on his demand and execution returned nulla bona. A mere allegation of the insolvency of the corporation is not sufficient.</p> <p>3. Judicial Sales — Revivor.—The sale having been made and con firmed before the death of the purchaser, one of the plaintiffs, the property was then as much beyond the reach of the creditor as if the deed had been made. Therefore, it is immaterial whether or not the action had been revived when the deed was made.</p> <p>4. Parties to Actions. — A mortgagee is not required to make a creditor who has no lien a party to his action to enforce his mortgage lien.</p> <p>5. Judgments. — Although a decree for the sale of mortgaged property of a corporation provided that the sale should be made subject to certain bonds issued by the corporation, which were a lien on the property, without the amount, number or time for the payment of such bonds being fixed in the judgment, the court will presume, in an action to set aside the sale, that any one desiring to bid at the sale might have ascertained, by an inspection of the record, the extent of the incumbrance by reason of the bonds.</p>

<p>Case 33 — PETITION EQUITY</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>1. Injunction is the proper remedy to restrain the collection of an illegal, erroneous, or void tax. (Dudley v. Trustees of Frankfort, 12 B. M., 615; Dawes v. City of Chicago, 11 Wallace, 111; L. & N. R. R. Co. v. Warren Co., 5 Bush, 247; E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 239; Gates v. Barrett, 79 Ky., 296; Dumesnil v. DuPont, 18 B. M., 804.)</p> <p>2. The Kenton Ins. Co. being a corporation for loan and discount can be taxed only fifty cents upon the one hundred dollars of capital stock, as other similar institutions. (Johnson v. Commonwealth, 7 Dana, 342. Farmers’ B. Ky. v. Commonwealth, 6 Bush, 127; Applegate-v. Ernst, 8 Bush, 650; E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 238; City of Louisville v. Shirley, 80 Ky., 71; Trustees of Eminence v. Deposit Bank, 12 Bush, 539.)</p> <p>1. Overvaluation of property for taxation, in the absence of fraud, is not a ground for injunction. (State R. R. Tax Cases, 92 U. S., 614; Gil-let v. City of Denver, 7 Am. & Eng. Corp. Oases, 234.)</p> <p>2. An act prescribing what taxes an insurance company shall pay to the State is not an exemption from municipal taxation. (Johnson v. Commonwealth, 7 Dana, 342; Farmers’ Bank v. Commonwealth, 6 Bush, 127.)</p> <p>3. “Reinsurance reserve” or “unearned premiums,” are assets and subject to taxation. (Insurance Co. v. Cappellar, 38 Ohio St., 580.)</p>

Case 34 — PETITION EQUITY APPEAL FROM HARRISON CHANCERY COURT. A beneficiary in a trust fund is not a competent witness for the trustee in an action against tlie personal representative to recover the fund. (Civil Code, subseo. 2, sec. 606.) 1.

<p>Case 35 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. A contract of insurance may be complete without the payment of premium or issuing of policy. (Wood on Fire Insurance, sec. 20.)</p> <p>2. Failure of assured to make proof of loss to one company will not release that company from liability to contribute to another company which pays the loss. (5 Insurance Law Journal, 664; Liverpool, London & Globe Ins. Co. v. Yendier, &c., 33 Mich., 138; 6 Insurance Law Journal, 203.)</p> <p>1. By provisions of policies in suit the right to contribution as co-sureties is destroyed between concurrent insurers. The assured can recover from each company only its proportion of the loss. (Lucas v. The Jefferson Ins. Co., 6 Cowan, 635; Haley v. The Dorchester New F. Ins. Co., 12 Gray, 551.)</p> <p>'% The Court of Appeals will not consider errors of the trial court unless specifically pointed out in grounds for new trial. (Commonwealth v. Williams, 14 Bush, 299; Meaux v. Meaux, 81 Ky., 479.)</p> <p>.3. The verdict of the jury is not only not against the evidence but strictly in conformity with it.</p>

<p>Case 36 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The court having jurisdiction of the person and of the subject-matter, the judgment can not be collaterally attacked, no matter how irregulai the proceedings. (Grigsby v. Barr, 14 Bush, 332.)</p> <p>.2. Jurisdiction in attachment oases depends upon the actual or constructive service of process, and not upon the plaintiff’s affidavit nor upon the clerk’s order. (Allen v. Brown, 4 Met., 342; Cooper v. Reynolds, 10 Wallace; Paul v. Smith, 82 ICy., 451; Freeman on Judgments, sec. 119.)</p> <p>1. Remainderman may have action against life tenant to remove cloud from title or to quiet title. (Simmons v. McKay, 5 Bush, 32; Aikens v. Settle, 4 Lea, 103; Dodd v. Benthall, 4 Heiskell, 608; Coleman v. Sutterfield, 2 Head, 260; Chandler v. Chandler, 55 Cal., 267.)</p> <p>2. Limitation, does not run against remainderman until termination of the particular estate and the right of possession has accrued. (McCux-ry v. King, 3 Humph., 274; Gill v. Eauntleroy, 8 B. M., 177; Vanarsdale v. Eauntleroy, 7 B. M., 401; Merriman v. Caldwell, 8 B. M., 32; Thurman v. White, 14 B. M., 569.)</p> <p>'3. A writ of attachment to he effective must run in the name of the Commonwealth of Kentucky. (Sec. 4, art. 4, Constitution of Kentucky; 78 Kentucky, 278.)</p>

Case 37 — PETITION ORDINARY APPEAL PROM EDMONSON CIRCUIT COURT. 1. The petition is defective in failing to allege that the debt had not been paid. (Crawford v. Wool-worth, 5 Bush, 746.) 2. The petition is defective in failing to state that by reason of the injunction appellee was prevented from making his debt, and in not stating that there was no other property out of which it could be made. (Keel v. Ogden, 3 Dana, 109; Hanley v. Wallace, 3 B. M., 194.) 3.

Case 38 — PETITION ORDINARY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. The liability of the company being limited to the amount that might be realized by assessment, the judgment should have been that the company make an assessment, and not for a sum in gross. Evidence of verbal agreements entered into before or at the time of the execution of a written contract, but not embraced therein, is not admissible to alter or vary the written contract.

<p>Limitation — Infants.--An action under section 3 of chapter 57, General Statutes, by the heir of one whose life has been lost by the willful neglect of another, to recover therefor, is barred after the lapse of one year, although the plaintiff be an infant, if there was either a widow or personal representative of the deceased who might have sued. The saving of the statute in behalf of the infant is only intended to apply when there is no other person in being who has power to sue.</p>

Case 40 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. A devise in fee-simple, coupled with a request that the devisee shall “ see that the interests of our children are protected,” raises a trust in favor of the children. (Bohon v. Barrett, 79 Ky., 378.) The words of the will do not create a precatory trust of such definite and certain character as to authorize its enforcement in favor of the children.

Case 41 — MOTION APPEAL PROM MONTGOMERY CIRCUIT COURT. 1. An execution sale of land cannot he set aside on motion on the ground that the execution defendant had no title. (2 J. J. M., 292; Weiseger v. McClure.) 2. Motion to set aside sale under execution for fraud, covin or collusion must he made within one year from date of sale. (Gen. Stat., chap. 38, art. 15, sec. 1; Gen. Stat., chap. 38, art. 17, sec. 8; Rorer on Judicial Sales, secs. 602, 603, 694.) 1.

Case 42 — PETITION EQUITY APPEAL FROM BRECKINRIDGE CIRCUIT COURT. No brief in record. 1. Party claiming under sheriff's deed at execution sale may show by other proof than sheriff’s return that the land was levied upon and sold. (Phillips v. Jameson, 14 B. M., 583.) 2. Sale under several executions — if one or more is valid, title of purchaser will be sustained, though one or more of the executions are void. (Rorer on Judicial Sales, secs. 711, 1021. 3.

<p>The county court has jURisDiCTroN to divtde land which is held jointly by two or more persons, and upon an application for a division by one of several joint owners, may hear and determine any equitable defense that may be pleaded against a division.</p> <p>A owned one undivided half of a tract of land in remainder, and B. owned the other half in remainder. C owned a life estate in the entire tract. A having leased C’s life estate, applied to the county court for a division of the land, which was resisted by B. The court upon hearing dismissed A’s petition. Held — That the court acted properly in refusing the division, as to divide the land would furnish A both the motive and the power to improve his portion of the land, and throw the burden of cultivation on C’s portion.</p>

<p>1. Local Option. — “ An act to prohibit the sale of spirituous, vinous and malt liquors in the county of Fleming,” which provides that it shall not apply “to the sale from a distillery in the county by the owner thereof, or his agent, at any one time, in a quantity not less than ten gallons, and then not to be drunk on the premises where sold,” repeals as to that county section 3 of article 2, chapter 106 of the General Statutes, which confers upon distillers the privilege of selling at their residences n quantities not less than a quart.</p> <p>2 Same — Title of Act. — An act to prohibit the sale of liquor is not unconstitutional because in the body of the act it is made unlawful also to give or loan spirituous, vinous or malt liquors. But even if such an act be unconstitutional in so far as the body of the act varies from the title, so much of the act as makes the sale of liquor unlawful is still in force, and one indicted for an unlawful selling can not call in question the validity of the act because of variance between the title and the body of the act.</p> <p>3. The legislature may regulate the sale by retail of intoxicating liquors as a beverage, and an act to prohibit the sale may be applied to a single county, civil district or other described territory, and its operation made to depend in each case upon the popular will expressed at the polls by voters to be immediately affected by it.</p> <p>4. A prohibitory liquor law may he constitutionally applied to the sale of liquor manufactured by the seller before the passage of the law.</p> <p>5. Under the police power to prohibit the sale of liquor by retail the Legislature may, in its wisdom, fix ten gallons as the minimum quantity .that can be lawfully sold at one time.</p>

Case 45 — PETITION ORDINARY APPEAL PROM WHITLEY CIRCUIT COURT. The injury complained of being common to all, and the damages being consequential and not direct, no action will lie.

Case 46 — PETITION APPEAL PROM HENDERSON CIRCUIT COURT. 1. “An act to quiet title to lands,” passed in 1854, authorizing suit for that purpose by one having both title and possession, is still in force. (Barker v. Warren, 6 Ky. Law Bep., 87; Kincaid v. Magowan, 6 Ky. Law Bep., 102; 7 Bush, 49.) 2. The estate of the wife not having been reduced to possession by the husband might have been, by the court, settled upon the wife for her benefit and that of her children.

<p>TThE RE-DELIVERY OF A MORTGAGE WHICH HAS BEEN SATISFIED by the payment of the debt it was executed to secure, upon the agreement that it shall secure another debt than the one originally secured by it does not create a lien.</p> <p>In an action upon a note and to enforce a mortgage lien it was developed that the note and mortgage had been satisfied, and that the note had been re-delivered to secure its payment. Thereupon an amended petition was filed setting forth these facts. Held — That the plaintiff is entitled to judgment for his debt, but no lien exists.</p>

<p>1. Reversible Errors. — A. judgment of conviction in a criminal prosecution can not be reversed upon the ground that the evidence is not sufficient to support the verdict.</p> <p>2. Practice. — The right to object to an indictment because it was not properly indorsed and presented was waived by failing to demur or to move to set it aside.</p> <p>3. Indictment. — As the order filing the indictment states that “ the foreman of the grand jury reported an indictment, a true bill,” it sufficiently appears that sections 119 and 121 of the Code were substantially complied with.</p> <p>4. Practice. — As the record states that “ the defendant having heretofore pleaded not guilty of the offense charged in the indictment, for his trial puts himself upon his country, and the attorney for the Commonwealth likewise,” it is a fair inference that the indictment was read, and the defendant’s plea stated to the jury.</p> <p>5. Competency of Witnesses. — One who has been convicted of a felony is competent to testify in a judicial proceeding, unless expressly ex- [*• excluded by section 8, article 8, chapter 29, General Statutes.</p> <p>Upon the trial of appellant for murder, an accomplice, who had already been convicted, was competent to testify in behalf of the ’ Commonwealth.</p> <p>6. Repeal of Statutes. — A provision of the Revised Statutes omitted from the General Statutes is treated as repealed where the General Statutes treat of the same subject.</p> <p>7. Extra-judicial Confession — Accomplice — Corroborative Evi- ^ dence. — The law does not authorize the court to require other and [■ o’ additional evidence than proof of an extra-judicial confession of guilt to corroborate the testimony of an accomplice, or other than the “h" testimony of an accomplice to accompany proof of a confession. It i is for the jury in either case to say whether the additional evidence does or does not conduce to prove the guilt or to corroborate.</p> <p>8. Verdict. — A verdict which finds the defendant “guilty as charged in - the indictment,” is sufficient where the indictment charges but a single offense.</p> <p>9. Bills of Exceptions. — Where the judge certifies as to his own rulings and exceptions taken during the progress of the trial, his statement can not be assailed by the affidavits of by-standers.</p> <p>10. Instructions. — There can be no reversal for the refusal to give an instruction where the same idea is embodied in other instructions which were given.</p> <p>11. Prejudicial Errors. — The accused was not prejudiced by the action of the court in allowing a witness to testify that he had made a certain statement to another, as ho testified to the same fact before the jury.</p>

Case 49 — APPLICATION FOR ALLOWANCE APPEAL FROM CAMPBELL CHANCERY COURT. The office of jailer is not a constitutional office so far as concerns the duties of. taking care of the court rooms, furnishing fuel and lights. This is entirely a matter of legislative control. (Horsefall v. Com-, monwealth, 1 Bush, 103; Miller v. Porter, 8. B. M., 283; Sullivan v. New York, 53 N. Y., 652.) No brief in record.

Case 50 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. No one can acquire the exclusive right to use the name of a place as part of a trade-mark as against other persons manufacturing the same article in that place. (Canal Co. v. Clarke, 13 Wall., 311; Newman v.. Alvord, 49 Barb., 588; Browne’s Trade-marks, sections 83, 93, 111, 125, 127, 130, 133, 136, 143, 148, 155, 160, 162, 164, 166, 169, 182, 194;.

<p>Case 51 — PETITION EQUITY</p> <p>APPEAL FROM CALDWELL CIRCUIT COURT.</p> <p>1. A will wholly contingent may he made absolute and operative by a properly executed codicil. (Beal v. Cunningham, 3 B. M., 390; 76 Am. Dec., 699; Redfield on Wills, vol. 1, p. 273.)</p> <p>2. Judgment of a county court admitting a will to probate can only be questioned by appeal to the circuit court. (Abbott v. Taylor, 11 Bush, 337; Hughey v. Sidwell’s Heirs, 18 B. M., 260.).</p> <p>3. The plain and unambiguous provisions of a will must prevail over doubtful or ambiguous provisions. (2 Jarman on Wills, page 57; 3 Jarman on Wills, p. 706; 6 Vesey, 129; 1 Redfield on Wills, 356-57, 429-30, 433-34, 446-48 and 450-51; Barksdale v. White, 28 Gratt., 224; Thornhill v. Hall, 8 Bligh, 88; Moobery v. Maege, 2 Munf., 453; Bayfield v. Gains, 17 Gratt., 1; Catlett y. Lawrence, 1 Yesey, Jr., 269; Blake v. Brenberry, 1 Yesey, Jr., p. 194; Jones v. Colbeek, .8 Yesey, p. 38.)</p> <p>4. The intention of the testator as gathered from the whole will must govern. (1 Redfield on Wills, 432-4-5; Hawkinson on Construction of Wills, 1 & 2, 45 Am. Dec., 608.)</p> <p>5. When it is necessary for the executor to apply to a court of equity for the construction of a will the cost, including attorney’s fees, should be paid out of the estate. (Straw v. Societies, &c., 67 Maine, 495; Dean v. Home, &c., Ill Mass., 132; 2 Daniels’ Chancery, 1503, 1506.)</p> <p>1. A will purely contingent can not be revived and made absolute by the addition of a codicil added after the time for the happening of the contingency had expired. (Maxwell v. Maxwell, 3 Met., 109.)</p> <p>2. When action is brought by an executor to obtain a construction of a will for the sole benefit of the executor, the costs should' not be paid out of the estate.</p> <p>1. Appending a codicil to a contingent will is a republication of the will. (3 B. M., 390; 76 Am. Dec., 699.)</p> <p>2. Pees to attorneys for parties seeking affirmative relief should not he allowed out of the estate. (Williamson v. Williamson, 1 Met., 305.)</p>

<p>Case 52—PETITION ORDINARY</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. Master is responsible to servant for injuries to servant caused by the use of dangerous machinery or materials when the servant is not informed of its dangerous nature. Ignorance on part of master will not excuse, and master is bound to inform his servant of the dangers incident to Ms employment. (Wood on Master and Servant, sees. 348, 356; Cooley on Torts, 555; Smith v. Oxford Iron Co., 36 AM. Rep., 535; Parkhurst v. Johnson, 45 Am. Rep., 28; Spelman v. Pisher Iron Co., 56 Barb., 151.)</p> <p>2. A new trial should be granted where the jury, from passion or prejudice, has awarded too much or too little damage. (1 Sutherland on Damages, 810; 3 Waits’ Practice, 413; Amitage v. Halsey, 4 Q. B., 917; Richards v. Sandford, 2 E. D. Smith, 349 ; McDonald v. Walter, 40 New York, 551; Civil Code, sec. 341; Bayly v. Cincinnati, 1 Handy, 438; Taylor v. Howser, 12 Bush, 465.)</p> <p>1. Materials furnished by master for use of servant must be known by master to be dangerous, and it must be so alleged to constitute a cause of action. (Sanders on Negligence, 95; Commonwealth v. Steffee, 7 Bush, 163; Sullivan’s Adm’r v. Lon. Bridge Co., 9 Bush, 89; Wood on Master and Servant, sec. 366.)</p> <p>2. A defective pleading is not cured by verdict where the party who obtained the verdict is seeking to set it aside. (Chitty on Pleadings, 713.)</p> <p>3. Servant receiving injury incident to the business in which he is engaged, and having the same knowledge as the master as to the danger, cannot recover. (Sullivan v. Bridge Co., 9 Bush, 89; Wood on Master and Servant, sec. 366.)</p>

<p>1. The legislature may conper the taxing power upon municipalities in such manner as it deems expedient, but it cannot confer any greater power than the State itself possesses, and must observe the restrictions and limitations of the organic lawl</p> <p>2- Exemption prom Taxation — Public Service. — The Legislature cannot exempt property from taxation save in consideration of public service, and in determining what constitutes a public service the true test is, is the object of such a character that the municipality, in the exercise of a governmental function, can aid it. This test, however, does not apply to educational, religious and benevolent institutions, the property of which the Legislature may exempt, although, as to some of them, a tax could not be levied for their support.</p> <p>3. Same. — Whatever directly promotes individual interest, although it may also tend incidentally to the public welfare, is essentially a private and not a public object, and it is the essential character of the object of the expenditure, and not the degree of the incidental public benefit, which must determine the validity of the tax.</p> <p>4. Same. — The fact that one, in order to conduct a particular business for his own profit, must comply with certain regulations or submit to certain rules of law. does not so far render him the ward of the government that the exercise of the taxing power can be invoked in his behalf.</p> <p>5. An agreement by a city to exempt a hotel prom taxation, when built, can not be enforced, although the hotel was built upon the faith of the city’s agreement. The exemption not being in consideration of public service, is not valid.</p>

Case 54 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. A judgment for a specific sum, reserving the right to enforce it by the sale of specific property, if not paid within a given time, is a final judgment from which an appeal will lie. (Helm v. Short, 7 Bush, 625; M. & L. R. R. Oo. v. Punnet, 15 B. M.; Applegate v. Apple-gate, 4 Met., 236; Benton v. Campbell, 2 Dana, 421; Hay v. Hardin, 13 Bush, 346; Robinson v. Scott, 3 Litt., 233.) 2.

<p>Case 55 — PETITION ORDINARY</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>The institution of an action by a personal representative, under section 3, chapter 57, General Statutes, precludes any action by the widow or heir for the same cause.</p> <p>No brief in record.</p>

<p>1. Ancient deeds can not be read as evidence against an adverse claimant in possession, with, his title of record, to establish, on. the part of the plaintiff, a right of entry, where no possession prior to the execution of the deed, under the same chain of title, or since its execution, has been shown.</p> <p>2. Parties to Actions — Equitable Ejectment. — This action by the beneficial owner to have land sold and the proceeds divided as directed by the will under which the plaintiff claims, is, in fact, an action for the recovery of the land, as the relief sought can not be had until the defendants are ousted; and as the defendants failed to demur because the holders of the legal title were not before the court, but accepted the issue tendered, it is now too late to object for the first time that the plaintiff can not maintain the action upon an equitable title.</p> <p>.3. Chancellor’s Pending as to Heirship Upheld. — The plaintiff and the defendant claim the land through different persons, each alleging that the persons through whom he claims are the heirs of the original patentee. The defendant and those through whom he claims have been in possession for many years, while neither the plaintiff nor those through whom he claims have ever had the possession. Held— That even if the evidence as to heirship preponderates in favor of the plaintiff, the finding of the chancellor for the defendants will not, under the circumstances, be disturbed.</p>

Case 57 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The certificates of stock being in the actual possession of Wilson and in hispíame, Thurber was justified in dealing with him as the true owner, and got good title by his purchase thereof; and upon so obtaining them, had the right to demand their transfer to him on the corporation books. 2.

Case 58 — PETITION APPEAL FROM GARRARD CIRCUIT COURT. A defendant in an action pending in the State court petitioned for dis- ■ charge in bankruptcy, but did not ask for stay of proceedings in State court. A'judgment was rendered against him before bis final discharge in bankruptcy. The discharge in bankruptcy did not bar the judgment.

Case 59 — APPLICATION FOR TAVERN LICENSE APPEAL FROM LINCOLN CIRCUIT COURT. 1. “ An act to authorize the people of Lincoln county to vote on prohibiting the sale of liquors, and fixing'the penalty for the sale of liquors-in said county,” is in violation of sec. 37, art. 2, of the State Constitution.” * 2. To forbid the sale of liquor for all purposes is the exercise of an arbitrary power, and unconstitutional. (Cooley’s Const.

Case 60 —INDICTMENT APPEAL FROM FLOYD CIRCUIT COURT. 1. One previously threatened and assaulted may hear arms openly to protect himself, and on casually meeting his adversary, and having reasonable grounds to believe that his life is in immediate danger, and that there are no apparently safe means of escape, may take the life of his adversary without waiting to be attacked.

Case 61 — INDICTMENTS APPEALS FROM MONTGOMERY CIRCUIT COURT. I. A city election held by a sheriff or coroner is void. It should he by the officers of the municipality. 2. A majority of the legal voters in a civil district having voted against the sale of .liquor within that district, a municipality therein can not by vote authorize the sale of liquor.

Case 62 — INDICTMENT APPEAL FROM CHRISTIAN CIRCUIT COURT. The law of self-defense applies to every one who kills in the apparently necessary defense of another from death or great bodily harm. It is-not confined to the relations of parent and child, husband and wife, master and servant, and brother and sister.

Case 63 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. A deed of assignment purporting to be for the benefit of creditors is within the statute, and fraudulent, where the intention to hinder or delay creditors influenced in whole or in part the assignor in making the deed. It is not the fact of delay, but its character and the motive which actuated it, that is deemed fraudulent in law.

<p>1. Compensation oe School Commissioner. — A school commissioner who was elected under the provisions of the General Statutes and held over until a county superintendent was elected and qualified under the present school law, approved May 12, 1884, is entitled to compensation as provided by the General Statutes for reporting the census of the school children of the county for the year 1884, although the service was performed after the present law went into effect.</p> <p>2. Same. — The provision of the statute requiring the commissioner to make his report of the census of the school children on or before the first day of June, was directory merely, and the commissioner was entitled to compensation, although he did not make the report until after the first day of June.</p> <p>8. Same. — It was not necessary that the report of the commissioner should show that he had visited the schools as required by the statute, the compensation allowed being, not for that service, but for reporting the census.</p>

Case 65 — PETITIONS EQUITY APPEALS FROM LOUISVILLE LAW AND EQUITY COURT. 1. Assessment for street improvement should extend an equal distance on each side of the street, except when there are parallel streets on each side already dedicated — then the assessment to extend one-half of the distance between the streets on each side. (12 Bush, 586, Preston v. Roberts.) 2.

Case 66 — MOTION APPEAL FROM CLARK CIRCUIT COURT. 1. The appellant is not required to file a perfect and complete transcript within the time allowed by section 738 of the Code, upon pain of having his appeal dismissed. If the transcript be not complete, the court will affirm the judgment if it be possible for the omitted portion of the transcript to sustain the judgment, or upon the application of either party will require the omitted portion to be brought up by certiorari.

<p>1. Assignments by Operation op Law. — When an insolvent debtor makes a transfer or payment to one of his creditors, with the knowledge that he is insolvent, the design to prefer will be presumed, and the act of the debtor will operate as an assignment for the benefit of all his creditors, under the statute, unless the circumstances accompanying the transaction show plainly that there was no motive or thought of giving an advantage or preference. In that event, the presumption will be repelled, and the transaction will not be within the statute.</p> <p>In this case the creditor to whom the debtor made a payment was a cousin and had been especially kind, which were the reasons assigned for giving him an advantage over other creditors. At the time the payment was made, the debtor knew that he was hopelessly insolvent. Held — That the circumstances not only do not rebut the presumption of an intent to prefer, but confirm it.</p> <p>2. Same — Priority.—In the distribution of the assets of an insolvent debtor who has committed an act operating as an assignment under the statute, a debt due by the debtor as guardian is entitled to pri« ority over debts due general creditors.</p>

<p>Case 68 — PETITION ORDINARY</p> <p>APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. Counsel fees for services in procuring the dissolution of a temporary injunction should he allowed to he recovered as damages on the hond. (5 Ky. Law Rep., 691, May v. Deposit Bank; 6 Ky. Law Rep., 661, Reading v. Davis.)</p> <p>A hond for an injunction conditioned for the payment of the “damages” does not embrace attorney’s fees, and no recovery can he had therefor on the hond. (14 B. M., 497, Burgen v. Sharer.)</p>

Case 69 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. Pees for issuing liquor license are to he collected hy the county clerk, and not hy the county judge. (Gen. Stat., p. 682, sec. 7; Gen. Stat., pp. 302, 199, 307, 1007; 13 Bush, 306, Williams v. Commonwealth.) It is now the duty of the county judge and not the duty of the county clerk to collect fees for liquor license. (A.cts Gen. Assembly, approved May 17, 1886, pp. 140 to 202, vol. 1, Acts 1885-86.)

Case 70 — PETITION EQUITY APPEAL FROM LAUREL CIRCUIT COURT. A vendor can not enforce a lien for purchase price of land when the land sought to be subjected is shown by the deed of the vendor not to be the land embraced in the contract of sale. No brief in record.

<p>1. Banks — Duties and Liabilities op Directors. — The directors of a corporation, or a president who is a mere figure-head of the institution and does not receive sufficient salary to compensate him for devoting his entire time and attention to its business, are liable only for gross neglect in the management of the affairs of the corporation, in the absence of fraud.</p> <p>The directors of a bank were not chargeable with gross neglect in discounting paper which they had every reason to believe was good,, although it turned out to be worthless; nor in allowing the cashier, who was regarded as solvent, to overdraw his account, it appearing that such overdrafts, when not too large, are not unusual with those connected with such institutions, the directors in this case having no reason to believe that the cashier was drawing such large sums of money as was afterwards discovered.</p> <p>2. Same. — The directors of the bank had the right, in their discretion, to allow the cashier, after he had been removed from that position, compensation to which he was not,entitled, in order to obtain a settlement and secure what he owed the bank on account of overdrafts.</p> <p>3. Same. — The stockholders cannot complain of the fact that the cashier, after he was removed from that position, was elected a director, as it does not appear that any damage or injury resulted from his appointment as director...</p> <p>4. Same — Conditional Sale of Stock. — A purchaser of stock executed his note therefor, stipulating that the certificate of stock should be-received by the bank in discharge of the note if he should so elect, that being the condition of the purchase. Held — That the contract, was binding on the bank, and the stock having been received by the bank in discharge of the note, thp stockholders can not complain.</p> <p>5. Compensation of Officer by Surrendering! Note for Stock.— The directors had the right to surrender to an officer of the bank his note executed for stock, in discharge of his claim for services, the value of his services exceeding the amount of the note, and the validity of his claim not being questioned.</p> <p>6. Purchases of stock by directors in their own names, although done to. sustain the credit of the hank,, should be enforced.</p> <p>7. Same — Priority oe Creditors Over Stockholders. — The board of directors of a bank, by resolution, authorized the president and cashier to issue to the latter four hundred shares of stock in consideration of his two notes for twenty thousand dollars each, the resolution reciting that the purpose was to enable the cashier to borrow money on the stock as collateral, for the use of the bank, and that the bank would “ take care to protect him in the transaction.” The stock was issued to'the cashier and money borrowed by him from E.’s Sons, the stock being pledged as collateral. The money thus obtained by him was deposited in the bank to his credit, less the discount, which was restored to him. In this action by the stockholders of the bank for a settlement and distribution of the bank’s assets, in -which E.’s Sons appeared and sought to make the bank liable as their debtor, and the directors personally liable on the ground of fraud, Held — That whether the stock was sold to enable the cashier to raise money to pay his debt to the bank, or for the purposes of the bank, it is apparent that the bank resorted to this means of raising money for its own benefit, and, therefore, E.’s Sons have the right as creditors of the ■ bank to priority over stockholders.</p> <p>8. Joinder oe Actions. — The right of action against the directors, if any existed, was purely in tort, and could not be joined in the suit by stockholders to settle the affairs of the insolvent bank, or by creditors to enforce their contracts.</p> <p>9. Principal and Agent. — Where an agent deals with another without disclosing his agency he is personally liable, as is also the principal, but the liability is not joint, and the creditor may relieve the principal by electing to look alone to the agent, after the fact of the agency has been discovered. But whether there has been such an election is a question of fact which is not determined by the mere act of charging the_agijn±_after-k.nowledge of the principal.</p> <p>In this case an election had been made, and an action was progressing in which the creditors were seeking to make the real principal liable, when the creditors filed their claim in an action for the settlement of the agent’s estate, which was insolvent; and received a small pro raid thereon. Held — That it would be unreasonable to hold, as a matter of law, under such a state of facts as exists in this case, that the right to pursue the principal was lost, and that the creditors intended to look alone to the agent’s estate for their money.</p>

Case 72 — PETITION ORDINARY APPEAL FROM WARREN CIRCUIT COURT. 1. A railroad company has the right to the exclusive use of its tracks, and as to trespassers thereon, it is required to fise only reasonable and ordinary care to prevent injury after discovering the trespasser; and when one of two means is apparently sufficient to prevent the injury, and is adopted, the company is not responsible for failure to adopt the other means that might have prevented the injury.

Case 73 — PETITION ORDINARY APPEAL FROM OWEN CIRCUIT COURT. 1. The charge of “ wrongfully, wantonly, willfully and negligently ” causing injury, is not equivalent to a charge of “willful or gross neglect,” and does not authorize a recovery of punitive damages. (10 Bush, 679, Lexington v. Lewis; 2 Bibb, 217, Langford v. Owsley; 9 Bush, 527, L. & P. Canal Co. v. Murphy; 10 Bush, 267, Jacob v. L. & N. R. R. Co.) ■ • 2.

Case 74 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. 1. The deed of an infant is not void, and may be confirmed by acts in pais after arriving at full age. (5 Monroe, 351, Phillips v. Green; I J. J. M., 248, Breckinridge v. Ormsby; 11 Bush, 138, Kobinson v. Robinson; 7 Bush, 465, Davol v. Graves; 5 Bush, 490, Middleton v. Hoye; 8 B. M., 168, Meriweather v. Herran.) ] 2. The right to avoid a contract made during infancy must be exercised without unreasonable delay.

<p>Case 75 — PETITION ORDINARY</p> <p>APPEALS FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The act of Eebruary 14, 1839, authorizing separate verdicts against joint trespassers, not being re-enacted in General Statutes, is repealed.</p> <p>'2. That statute, if in force, does not authorize separate verdicts for different sums against joint trespassers. (1 J. J. M., 3G1, Cox v. Cook; 1 Bibb, 439, Rochester v. Anderson; Sutherland on Damages, vol. 1, pp. 823-4.)</p> <p>3. Taking judgment on the larger verdict against the Central Passenger Co. was a waiver of the right to take judgment against the L. & N. R. R. C. for the smaller sum. (1 Bibb, 441, Rochester v. Anderson; 3 Monroe, 136, Stone & Waters v. Mathorly; 1 J. J. M., 360, Cox v. Cook.)</p> <p>4. It was error to admit evidence that the person injured had a family— being an action not for punitive but for compensator}’’ damages. (Thompson on Negligence, vol. 2, p. 1203; 74 111., 343, P., Ft. W. & C. Ry. v. Powers; 65 111., 160, City of Chicago v. O’Brannon.)</p> <p>1. It was error in the court below to instruct the jury that the burden was on the street car company to prove there was no negligence; -while it did not put any such burden on the steam railroad company. The burden should have been put on the plaintiff, Kuhn, or on both railroads alike. (Wood on Railways, vol. 2, pages 1095 to 1100.)</p> <p>2. The rule (stated in Smith v. Louisville and Portland Railroad Company, 2 Duvall, 556), that whore an accident happens to a passenger by reason of the carriage or car breaking down or running off the track, it is prima facie evidence of negligence, and throws the burden on the company, only applies where the accident is of such a nature as to show that the negligence, if it existed, was confined to the carrier himself; and does not apply to cases where the car was knocked off the track by an intervening outside force. (Curtis v. Rochester R. R., 18 New York, 534; Woods on Railways, pages 1095 to 1098.)</p> <p>3. The court below erred in instructing that the obstructions to the view erected by the steam railroad company at the crossing imposed a greater duty upon the street car driver; and in refusing to instruct ! that it was not the duty of the street car driver to leave his car and go ahead to the crossing and look up and down the steam railroad track for trains. To keep a careful lookout from his car was all that the law required of the driver; and if the obstructions were such that such lookout would not avail, the liability is not on the street car company but on the steam railroad company which wrongfully ' placed the obstructions there. (McKay v. New York Central R. R., 35 New York, 75; Bilbeo v. R. R. Co., 114 English Com. Law Re- | ports, 584; Cliff v. Midland Railway, Law Reports, 5 Exchequer, 265.)</p> <p>4. There is no law requiring a street car to have a conductor; nor does necessity, safety or custom require it; more than three-foui'ths of the street cars in the United States do not have conductors; and the use of conductors would necessarily increase the cost and lessen the number of cars and other public conveniences. (Cross Town R. R. v. Brooklyn, 37 Hun. (N. Y.), 415; Hestonville R. R. Co. v. Connell, 88 Pa. St., 523 ; Emerson v. Peteler, 35 Michigan, 481; Bishop v. Union R. R., 14 Rhode Island, 320; 44 Pa. St., 320; 101 Pa. St., 258; 1 Abbott’s New Cases (N. Y.), 433; Citizens R. R. v. Carey, 56 Indiana, 396.) ></p> <p>5. The court below erred in instructing that the street car company was responsible for the highest and utmost degree of skill and care, while the steam railroad was only held to owe ordinary care. The steam car train, being far the most dangerous, should not be held to the . lower degree of care. (Woods on Railroads, vol. 2, page 1074; Smith v. Portland R. R, 2 Duvall, 556, 558; Rhorer on Railroads, vol. 2, 1437 ; 51 N. Y., 497; 18 Ohio St.,. 255; 22 Ohio St., 19.)</p> <p>6. It was error to permit the plaintiff, over our objection, to prove that he had a wife and three small children, and thereby arouse the jury’s sympathies, enhance the damages, and indirectly obtain damages for the wife and children. (Thompson on Negligence, vol. 2, page 1263; Rhorer on Railroads, vol. 2, page 1099; Sedgwick on Damages, vol. 2, page 641; City Chicago v. O’Brennan, 65 Illinois, 163; Pennsylvania Co. v. Roy, 102 U. S., 451; Railway Company v. Powers, 74 111., 341.)</p> <p>7. It was error to exclude from the jury the city ordinance which required the steam railroad company to keep a flagman at the railroad crossing, (Dolfinger v. Eishback, 12 Bush, 475.)</p> <p>8. There being no willful injury and no circumstances of aggravation, and no case for exemplary or punitive damages, the court erred in not limiting the damages to compensation for the loss of power to earn money; and in allowing damages vaguely for “ any mental impairment,” irrespective of its effect upon plaintiff’s capacity to earn a living. (L. C. & L. R R. v. Case, 9 Bush, 736.)</p> <p>9. This being a case of alleged joint negligence on the part of the two railroad companies, the judgment should have been joint; and it was error in the court to require a verdict and enter judgment for different sums against each of the two, thus measuring, apportioning and dividing the joint wrong. The damages can not be severed and assessed in different amounts against the different joint tort-feasors. (Sutherland on Damages, vol. 1, 323, 824; Haden’s Case, 11 Coke’s Reports; Hill v. Goodchild, 5th Burrows, 2790; Stone v. Matherly, 3 Mon., 136; Rochester v. Anderson, 1 Bibb, 439; Dougherty v. Dorsey, 4 Bibb, 208; Cox v. Cox, 1 J. J. Mar., 361.)</p> <p>10. The statute of 1839, allowing the jury to sever the damages between different defendants, only applied to oases of trespass, and not to actions for personal injuries. (Iienry v. Sennett, 3 Ben. Mon., 312.) And that statute was not re-enacted in the Revised or General Statutes, and is no longer in force. (Broadus v. Broadus, 10 Bush, 308; Grigsby v. Barr, 14 Bush, 339.)</p> <p>1. The condition of appellee's family was a proper element to bo considered in estimating compensatory damages. (7 Bush, 238, L., C. & L. R. R. Co. v. Mahoney; Sedgwick on Damages, 405; Sutherland on Damages, vol. 3, p. 201; Redfiold on Negligence, 000.)</p> <p>2. It was not error to exclude from the consideration of the jury an ordinance requiring the railroad company to have flagmen at railroad crossing. (12 Bush, 474, Dolfinger v. Fishback.)</p> <p>3. Central Passenger Railroad Company having admitted that appellee was injured while a passenger on its car, the burden of proof was upon that company to show that the injury was not caused by its negligence. (2 Duvall, 550, L. & P. R. R. Co. v. Smith.)</p> <p>4. A carrier of passengers as to thorn must use the utmost care and skill that prudent persons are accustomed to use under like circumstances. (80 Ky., 420, Louisville City R. R. Co. v. Weams.)</p> <p>6.When the view is obstructed at a railroad crossing, the same degree of care is required of those in charge of a train and one traveling to cross the track. (79 Ky., 449, L., C. & L. R. R. Co. v. Goetz, Administrator; 5 Otto, 163, Cont. Imp. Co. v. Stead.)</p> <p>6. It was error to instruct the jury that the street car company should be held to the highest degree of care and skill, and the steam railroad company only to ordinary care. (Wood’s Railroad Law, vol. 2, page 1074'; 2 Duvall, 556, Smith v. Portland R. R. Co.)</p> <p>7. Damages in actions where death has not ensued is confined to expense of care, value of time lost, compensation for physical and mental suffering, and' for permanent reduction of power to earn money. (9 Bush, 736, L., O. & L. R. R. Co. v. Case.)</p> <p>8. It was error to render separate judgments agaipst the two companies. (Sutherland on Damages, vol. 1, 823; 3 M.onroo, 136, Stone v. Matlierly; 1 Bibb, 439, Rochester v. Anderson.)</p>

Case 76 — INDICTMENT APPEAL FROM WHITLEY CIRCUIT COURT. A sledge-hammer is not a deadly weapon within the meaning of sec. 2, art. 6, chap. 29, of Gen. Stats. (8 Bush, 387, Commonwealth v. Branham.) A sledge-hammer-is a deadly weapon within the meaning of sec. 2, art. 6, chap. 29, Gen Stats. (Commonwealth v. Branham, 8 Bush, 387.)

Case 77 — CONTESTED ELECTION APPEAL FROM PIKE CIRCUIT COURT. 1. Held: is mandatory. (McCrary on Elections, secs. 114, 127, 141; 4 Penn. L. J., 341; Cooley’s Constitutional Limitations, 78, 79.)

Case 78 — PETITION EQUITY APPEAL FROM MADISON COURT OF COMMON PLEAS. 1. Any interest in land, whether vested or contingent, may bo disposed of by deed or will. (Gen. Stats., chap. 63, art. 1, sec. 6.) 2.

<p>1. Reversible Errors. — The decision of the lower court upon a challenge to the panel of the jury, or upon, a motion for a new trial, is not subject to revision upon appeal.</p> <p>2. Summoning Jury. — Where the court has failed to appoint commissioners to select jurymen, as required by the statute, it may order the sheriff to summon a jury of a proper number for the succeeding term.</p> <p>-3. Same. — Where the court, for cause, appoints a person other than a sheriff to summon a jury, the person thus designated has the power to appoint an assistant when the court may, in its discretion, deem it necessary; and even if the defendant in a criminal prosecution has the right to object to the person designated by the court or to his assistant, the unsupported affidavit of the defendant should not be regarded by this court as sufficient evidence that the lower court erred in overruling such an objection.</p> <p>4. Instructions. — While the jury should never be instructed that they “are the sole judges of the evidence and credibility of the witnesses,” such an instruction given in this case was not prejudicial to the defendant, as it could not reasonably have been regarded by the jury as an invidious reference to the defendant’s witnesses.</p> <p>■5. Hearsay testimony was properly rejected by the court.</p>

<p>1. A devise to a church, “ to be applied to foreign missions,” is within the scope of our statute permitting devises to charitable uses, and is valid.</p> <p>The provision of the statute that no church shall be capable of holding the title to exceeding fifty acres of land does not apply to a devise which merely gives the property to the church in trust, to be applied by it to a charitable purpose, the restriction in the statute being intended to prevent a church from taking or holding for its own use more than fifty acres of land,</p> <p>2. Such a devise is not void por indepiniteness or vagueness, as the-language used by the testator indicates definitely the purpose to which he desired his bounty to be applied.</p>

Case 81 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. A judgment against an infant under fourteen years old is void, unless there is service of process on the infant and on the father or guardian, and a subsequent appointment of a guardian ad litem to defend.

Case 82 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. The judicial sale of the Nicholas lands to Preston, Payne and Ewing was not of a mere unenforceable and worthless “ claim” to lands; but the court offered for sale and invited bidders to buy the “ lands ” themselves, and expressly promised “possession” and good title to the buyer.

<p>Judicial Sales — Trust—Notice.—At a judicial sale of land made to satisfy, first, the costs of the action; second, a debt to H., and third, a debt to C., the land was purchased by S. for the benefit of C. under-an agreement whereby S. was to advance the amount necessary to pay the costs of the action and the debt to H., and hold the land in trust for C. until repaid out of the rents the amount so advanced, with interest, and as a part of this agreement O. executed upon the margin of the order booh, in which the order was recorded, the following r “ For value received of S. * * * I hereby assign to him all my right, interest, claim or demand, either in law or equity, in and to tho within judgment, he to assume and pay such claims, fees and costs as I am liable for under this judgment.” Thereupon S. executed a mort gage on this land to W. to indemnify him as surety. Both upon a motion by S. for a deed, and in an action by W. to enforce his mortgage lien, C. set up the foregoing facts, and the additional fact that he had re-paid to S. the money the latter had advanced, and asked that a deed be made to him. Held — That as against W. claiming under an intervening mortgage C. has neither a prior right to the land nor prior lien upon it, as it does not appear that W., at the time he became surety and took the mortgage to indemnify him, had notice of ■ the agreement between O. and S. And the assignment by O. on the margin of the order book operates as an estoppel to his assertion of a lien on the land superior to that of the mortgagee as well as to his claim to an interest in the judgment.</p>

<p>Case 84 — INDICTMENT</p> <p>APPEAL FROM BARREN CIRCUIT COURT.</p> <p>1. The accused in a felony case is entitled to be present during the whole-trial. (Cooley’s Const. Limit., 319; Sperry v. Commonwealth, 9-Leigh, 623; State v. Hughes, 2 Ala., 102; Sneed v. State, 5 Ark.,. 431; Criminal Code, secs. 183, 245, 247, 248.)</p> <p>2. The instructions as to self-defense were erroneous. One engaged in committing an offense against another does not thereby lose his right of self-defense any further than the law authorizes the injured person to make defense. (Terrell v. Commonwealth, 13 Bush, 257; Minton v. Commonwealth, 79 Ky., 461; 2 Bishop’s Criminal Law, 571.)</p> <p>The proof in the case authorized the instructions given. If the defendant intentionally provoked the difficulty, and thereby produced the necessity for taking the life of the deceased, he cannot plead the necessity in justification of himself unless he, in good faith, abandoned his purpose.</p>

Case 85 — PETITION ORDINARY APPEAL FROM BRECKINRIDGE CIRCUIT COURT. An agreement between an accommodation drawer and the drawee of a. hill of exchange that it should he discounted at a particular hank may ' he shown in defense hy the drawer, where the hill is in the hands of a holder for value, and the holder knew, or could have known hy the exercise of ordinary care, of the restriction as to place of discount.

<p>Deeds — Estoppel.-—R. died, leaving three sons, I., W., and P., his only-heirs. I. and W. having received each his portion of his father’s land, in consideration of that fact, and at the request of P., executed to the wife of P. a conveyance to “ the remaining one-third of said land, * * * with covenant of general warranty.” Although P. was not named in the body of the deed as one of the grantors, he signed and acknowledged it as well as I. and W. P. having died, his widow sold the land, and the purchaser resists the payment of the purchase money on the ground that she has no title. The children of P. claim the land as his heirs-at-law. Held — That as P. requested I. and 'W. to ■convey with warranty the entire tract, although they had title to only an undivided two-thirds, he, to that extent, at least, became a party to the deed, and could not, while living, have recovered any part of the land, and if he could not, neither can his heirs now do so, and to confirm the title to his then wife is but carrying out the purpose of the deed and enforcing his implied agreement to convey to her.</p>

Case 87 — PETITION EQUITY APPEAL FROM MARION CIRCUIT COURT. 1. The act creating the State Board of Equalization is not unconstitutional. The functions of the Board do not encroach upon the functions of the assessors. (Pennington v. “Woolfolk, 79 Ky., 16; Sav.

Case 88 — INDICTMENT APPEAL FROM WHITLEY CIRCUIT COURT. 1. Statement by Commonwealth’s Attorney in presence of the jury that the evidence of a witness was directly in conflict with his evidence before the grand jury was prejudicial to the accused, and warrants a reversal. 2.

Case 89 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. 1. An account for merchandise, whether liquidated or unliquidated, does not bear interest as matter of law. Interest cannot be allowed on unliquidated accounts, and as to liquidated accounts, it is discretionary with the jury to allow or refuse interest.

Case 90 — PETITION EQUITY APPEAL FROM JESSAMINE CIRCUIT COURT. 1. In the absence of fraud on third persons; the title on a sale of personal property remains where the parties by their contract have placed it. (Chitty on Contracts, 405-407, and notes; Smith on Personal Property, 40 and notes; 2 Kent’s Com., 497 and notes; Patton v. McCane, 15 B. M., 555; Benjamin on Sales, sec. 320; 2 Kent, 497; Vaughn v. Hopson, 10 Bush, 341; Greer v. Church & Co., 13 Bush, 430.) 2.

Case 91-PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The widow is entitled to the personal estate of the decedent which is exempt from distribution. It was, therefore, error to divide the fund in controversy between the widow and the infant child of the decedent. (General Statutes, chapter 31, section 11; Miller v. Miller, G Ky. Law Pep., 738; Burgett v. Clai-li, 4 ICy.