Volume 87 — Kentucky Reports

Case 1 — PETITION EQUITY APPEAL PROM CAMPBELL CHANCERY COURT. 1. The grant of probate is a judicial act, and when done by a court of competent jurisdiction can not be collaterally attacked. (Sanders v. Sanders, 17 B. M., 10; Roderigas v. East River Saving Inst., 20 Am. Rep., 555; Bolton v. Jacks, 6 Rob’t. Sup’r., 166; Johnson v. Beazley, 27 Am.

Case 2 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. I. A contract to be specifically enforced must be mutual. The requisite mutuality includes both a mutuality- of legal rights and a mutuality in the equitable remedy. An “ option to purchase ” can not be specifically enforced, and conveys no title, legal or equitable, in land to the holder of the option, and a mortgage of the option- conveys nothing.

<p>1. Removal op Partition Pences. — Under section 1, of article 2, chapter 55, General Statutes, which prohibits the removal of a partition fence which exists as such “ by agreement or acquiescence,” except between the first of December and the first of March next ensuing it is not necessary that the fence should be on the division line, or that it should be partly on the land of each, to make it a partition fence. Nor is it necessary, in order to prevent the removal, that the party complaining should show that any injury would result to him, the statute being intended as an absolute security against any possible injury that might arise from any removal, however short the distance.</p> <p>2. Same. — The statute applies as well to partition fences in towns and cities as to partition fences in the country.</p> <p>3. Same. — Appellant and appellees owning adjoining lots in a city, and appellees being about to remove a partition fence between the two lots, appellant brought this action to enjoin removal. The fence had been placed, by agreement, on appellees’ lot, where it had stood for many years, and appellees were in the act of removing the fence and resetting it about sixteen inches nearer appellant’s lino, but, as appellees claim, still upon their land. The attempt to remove the fence occurred in the month of November. He Id — That appellant is entitled to the relief sought, it being immaterial on whose land the fence is now located.</p>

<p>1. A NEW TRIAL SHOULD NOT BE GRANTED UPON THE GROUND OF NEWLY discovered evidenoe, unless the new evidence be of a decisive char acter. If it be doubtful whether it would have any preponderating influence upon another trial, then a new trial will not be granted. Especially should this rule apply where the newly-discovered evidenoe is parol and relates to a point litigated upon the former trial.</p> <p>2. Lost Wills. — Where a will which was last seen in the custody'of the testator can not, after due search, be found, the law presumes that the testator, in some way, with the intention of revoking the will, destroyed it, and if its absence is not accounted for, this presumption will prevail.</p>

Case 5 — PETITION ORDINARY APPEAL FROM PIKE CIRCUIT COURT. 1.

Case 6 — PETITION ORDINARY APPEAL PROM MARION CIRCUIT COURT. The moral obligation resting upon the putative father of a bastard child to support and provide for it constitutes a sufficient consideration to impart a legal obligation to a promise by the father to support or provide for the child. (Bergen v. Straughan, 7 J. J. M., 583; Commonwealth v. Turner, á Dana, 513.) 1.

<p>1. Indictment — Aiders and Abettors. — The actual doer of a criminal act and one present aiding and abetting may be jointly indicted, both being guilty of the same offense, the one as principal and the other as accessory, and it makes no difference that under the statute the actual doer may be guilty of a felony, while the one present aiding and abetting is guilty of a misdemeanor.</p> <p>2. Verdict. — Appellant and B were jointly indicted for willfully and malicously cutting another with intent to kill. The indictment contains three counts. In the first both are charged with the cutting. In the second B is charged therewith, and appellant with being present counseling, aiding or abetting. In the third appellant is charged as principal, and B as aider or abettor. By the verdict appellant was found guilty “as charged in the indictment,” and his punishment fixed at confinement in the penitentiary, and B was found guilty ©f aiding and abetting, as charged in the indictment, and his punishment fixed at fifty dollars. Held — That the verdict is sufficiently definite and certain.</p> <p>8. Evidence. — Whether the prosecutor did or did not use certain profane and insulting language, which both the defendants, in contradiction of him, swore he did use, had an important bearing upon the defense, and it was, therefore, error to the prejudice of appellant to permit the statement of another witness that he knew the moral character of the prosecutor, which had not been attacked by the defense, and that he had never heard him use any profane language, as such testimony was calculated in an illegal manner to support the testimony of the prosecution, and discredit the testimony and defense of the accused.</p> <p>4. The Commonwealth’s Attorney, as he began his argument to the jury, called the prosecutor in front of the jury and said to them, putting his hand on the prosecutor’s face: “ Gentlemen, look at that scar on his face; is that worth only fifty dollars ? ” The defendants objected. Held — That the Criminal Code prescribes the mode and order in which testimony may be given to the jury, and courts can not afford to permit a departure therefrom, when the object or effect is to give to either party an undue advantage of the other.</p> <p>5. Improper Comment op Court on Instruction. — The Commonwealth’s Attorney proposing, in the course of his argument, to talk about the instruction as to self-defense, the court, addressing him in presence of the jury, said, “Never mind. I withdraw that instruction.” The defendants objecting, the court said, again addressing the * attorney in the presence of the jury, “The defendants object; let the instruction go for what it is worth.” Held — That if the court had failed or refused to give that instruction, it would have been a reversible error, but it would have been far better for the defendants for the court to have withheld it than to accompany it with the comments made. It is clear, therefore, that the defendants did not have a fair and impartial trial.</p>

<p>Case 8 — INDICTMENT—February</p> <p>APPEAL PROM LAUREL CIRCUIT COURT.</p> <p>1. One cannot be convicted of bribery upon the testimony of the bribing witness alone. (Civil Code, sec. 241; Gen. Stats., secs. 11, 12, p. 529.) The amendment to the statute authorizing a conviction for bribery upon the testimony of one witness was not intended to authorize a conviction upon the testimony of an accomplice.</p> <p>2. There is a variance between the proof and the indictment.</p> <p>3. The verdict is erroneous in excluding the defendant from office and suffrage, that being a matter for the court and not the jury.</p> <p>Aside from the amendment to the statute, the testimony of the giver of the bribe was sufficient to convict, as he was not an accomplice within the meaning of section 241 of the Code.</p>

Case 9 — PETITION EQUITY APPEAL FROM CARTER CIRCUIT COURT. A purchaser entering upon and improving land'under title of record, in good faith believing his title good,'shall be allowed the value of his improvements before eviction by successful claimant.

Case 10 — PETITION EQUITY APPEAL PROM MONTGOMERY COURT OP COMMON PLEAS. A purchaser at tax sale who takes no certificate of purchase, and where there is no record evidence of the tax sale and purchase, takes no title superior to that of a creditor whose execution is levied before any certificate is issued, and before all the money for the tax purchase iá paid.

<p>Case 11 — PETITION ORDINARY</p> <p>APPEAL PROM DAVIESS CIRCUIT COURT.</p> <p>Briefs not in record.</p> <p>1. The service of the attachment was sufficient. In order to attach a. demand due the defendant, it is not necessary to serve upon the garnishee a notice specifying the demand. (Civil Code, sections 203, 205, 212, 223, 224, 225, 226, 327; Drake on Attachments, section 451; Sergeant on Attachments, pages 14, 15; Brashear v. West, 7 Peters, 620 j Smith v. Gower, 3 Met., 175; Griswold v. Popham, 1 Duv., 170.)</p> <p>The case of Henderson v. Specker, 79 Ky., 509, was unlike this case, but if not, that case should be overruled.</p> <p>2. After issue joined and judgment, appellant can not complain of irregularity in process or proceeding. (Duff v. Combs, 8 B. M., 386; Bives’ Executor v. Bives, 4 J. J. H., 535; Drake on Attachments, section 451c.)</p> <p>3. The attorneys for Norris had a lien on the judgment recovered against Bell, and this lien could not be defeated by any act of the parties. (Wood v. Anders, 5 Bush, 602; Bobertson v. Shutt, 9 Bush, 660; General Statutes, chapter 5, section 15.)</p> <p>4. It is immaterial whether a lien was had upon the judgment by the mere process in the action; it is sufficient that this action was pending at the compromise, and that the parties had notice of the action and the object of it. (Biggs, &c., v. Kouns, 7 Dana, 412.)</p>

Case 12 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT.. 1. The statute of limitations does not begin to run against a married woman until after she shall have become discovert. (Gen. Stats., chap. 71, art. 4, sec. 2.) 2. The statute does not apply to an express trust, and a subsisting and continuing trust is an express trust.

Case 13 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The right to condemn property necessary for the construction of a railroad exists only hy virtue of express grant, and when such right is granted and passed to another railroad corporation hy legislative act, the grantee company takes the right, subject to and with notice of all the limitations and restrictions imposed upon the first corporation. (White & Tudor’s Leading Cases, vol. 2, p. 189.) 2.

Case 14 — PETITION EQUITY APPEAL EROM BATH CIRCUIT COURT. To recover for the breach of a general warranty to land the vendee must allege and prove that he has been evicted by one having superior or paramount title to the vendor; unless he gave notice to his vendor of the adverse claim and called upon him to defend the utle.

<p>1. In judicial sales op real estate there is no warranty op title, ancl after the sale has been made complete hy confirmation the purchaser can not resist the payment of the purchase price on the ground that he acquired no title, unless he can show that he was induced to make the purchase by the misrepresentations of the creditor or person making the sale as to the condition of the title, and that he did not discover, and could not have discovered with reasonable diligence, the true condition of the title until after the confirmation of the sale.</p> <p>2. Where the purchaser acquires no title he may recover of the debtor what he has paid for the land upon the ground that he has paid the latter’s debt without having received value therefor.</p>

<p>1. Vendor and Vendee. — Where A agrees to convey land to B, upon condition that B exercises his option to do a certain thing at a specified time, but tbe contract imposes no obligation upon B to do the thing specified, no immediate interest in the land passes to B.</p> <p>2. Time is op tiie essence op such a contract, and unless B complies with its terms he can not demand its enforcement.</p> <p>A agreed to convey to B a certain interest in a tract of land, covered by a mortgage, if B would pay a certain amount on the mortgage debt when it became due. Although B failed to pay any part of the mortgage debt, either at or after its maturity, his administrator seeks by this action to have the agreement treated as investing B with an equitable interest in the land, and to enforce a specific performance of the contract. Held — That the failure of B to pay the amount specified at the time fixed for its payment, amounted to a decision upon his part not to purchase the land upon the terms proposed, and deprived him of any right to enforce the contract.</p>

Case 17 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. The opinion of this court in Kraft’s Guardian v. Koenig, &c., decided March 81, 1887, determines the construction of the will — giving the widow a life estate with remainder to the child. The construction placed on the will in Kraft’s Guardian v. Koenig, &c., is contrary to the previous rulings of this court. (Prather v. Smith, 8 Bush, 82.)

Case 18 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. Under an agreement to buy tobacco with funds advanced, and to ship the tobacco to the person making the advances, and out of which ho is to be reimbursed, no lien for such advances is completed until a purchase and delivery of the tobacco; and there can be no perfecting of the lien if the person to whom advances are made dies before delivery of the tobacco to the person making the advances.

Case 19 — PETITION EQUITY APPEALS PROM GRANT CIRCUIT COURT. 1. In a proceeding to distribute a debtor’s estate on the ground of insol. vency, the court has no'jurisdiction, on the cross-petition of a creditor living in another county, to enforce a mortgage lien to decree the sale of land lying in that other county. (Civil Code, sections 62, 65, 66, 70; “Webb v. “Wright, 1 Bush, 107.) 2.

<p>1. Trust Estate Subject to Debts. — A testator can not, nor can any one, vest property or funds in trustees for the use of another without subjecting it to the debts of the cestui que trust, and, although a discretion may be given to the trustee in the management and control of the estate, and as to the amount of profits therefrom to be paid, and the manner of paying them to the person for whose use and benefit it is held, the rights of creditors are not thereby impaired, for such discretion is subject to the control of a court of equity.</p> <p>2. Same. — The estate itself may be subjected and sold; or, if practicable, and to the interest of the parties, the rents, interest or profits may be subjected and applied by a court of equity to the payment of the debts of the cestui que trust.</p> <p>A testator devised real estate to his two brothers, John and William, providing that John’s part should be held in trust by his brother William, “who shall manage and control John’s part and pay him only such parts of the proceeds and profits as in his discretion the said William may think best, the intention being to invest William with the legal title to John’s part to be held in trust as aforesaid.” John’s creditors seek to subject his interest, the land having been divided. Held — That as it does not appear that the debts could have all been satisfied in a reasonable time from the rent? and profits, the court did not abuse a sound discretion in directing a sale of the land for that purpose.</p>

Case 21 — PETITION EQUITY To authorize the enforcement of a lien for purchase money for land, or to authorize a judgment for a deferred payment, the petition must set forth the terms of the agreement, character of title to be made, and the ability and willingness to convey according to the terms of purchase.

Case 22 — PETITION ORDINARY APPEAL PROM M:CRACItEN COURT OP COMMON PLEAS. A provision in a policy of insurance that the insured shall give the insurer notice of any additional insurance on the property, and that the taking of other insurance without such notice shall forfeit the policy, is waived by notice to the agent at the time of applying for the policy that the insured intends to take out additional insurance in other companies. (Ins.

<p>Case 23 — INDICTMENT</p> <p>APPEAL PROM LIVINGSTON CIRCUIT COURT.</p> <p>Briefs not in record.</p>

<p>Case 24 — PETITION EQUITY</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>A taxing district for a specific purpose having been fixed by the Legislature and the tax voted, the Legislature has no constitutional power to change the district so as to put the whole subsequent burden of taxation for the specified purpose upon a part only of the district as first defined.</p> <p>The Legislature having the power to impose a tax for school purposes upon a defined district without submitting the question to the voters of the district, may modify or repeal the act in any way so that vested rights are not interfered with. (Hempstead v. Hempstead, 2 Ward., 109; Hartford Bridge Co. v. East Hartford, 16 Conn., 149; Windham v. Portland, 4 Mass., 384; Medford v. Pratt, 4 Pick., 222.)</p>

Case 25 — PETITION EQUITY APPEAL PROM PLEMING CIRCUIT COURT. A devise of bonds and stocks to one for life with the use of the dividends for life gives a life estate only in the dividends as well as in- the stocks.

Case 26 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. The legatee is entitled to interest on the legacy annually without awaiting a final division of the estate. (Williams on Executors, pages 1226, 1227; Smith’s Ex’r v. Field, 6 Dana, 361.) Brief not in record.

<p>Case 27 — PETITION EQUITY</p> <p>APPEAL PROM CAMPBELL CHANCERY COURT.</p> <p>1. Whenever the ends of substantial justice are subserved thereby, the court should allow an amendment to a pleading at any time, and the failure to allow the filing of an amendment under such circumstances is a reversible error. (Civil Code, sections 134-5; Todd v. Wheeler, 1 Dana, 401.)</p> <p>2. The matters set up in the rejected pleading were not res adjudicada, because they had not been previously put in issue, and could not have been because arising subsequent to the former litigation.</p> <p>Allowing amendments to pleadings is a matter within the sound discretion of the court, and when the proposed amendment sets up matter already litigated, or that should have been litigated in a previous action, the amendment is properly rejected.</p>

<p>Champerty. — While a sale by one tenant in common to his co-tenant of his undivided interest in the land is not champertous, that rule has no-application in this case.</p> <p>All of several tenants in common, except V, sold their interest in the land to a stranger to the title, who sold the whole land, including Y’s interest, to another stranger to the title, and the latter entered upon the land in his own right, and was holding the actual adverse possession of the whole tract when Y sold his interest to A, who was also a stranger to the title. Held—</p> <p>1. That the sale to A was champertous, and, therefore, void.</p> <p>2. Although Y, by his deed to A, conveyed only one-eighth interest, when, in fact, he owned one-seventh, yet as Y and A, by this action, sought to have one-seventh allotted to A, alleging that the interest was described in the deed as one-eighth by mistake, Y was not entitled to have the difference between one-seventh and one-eighth allotted to him.</p>

<p>In a proceeding to establish a public road, if the writ of ad quod damnum follows the statute, the exception that it is not sufficiently descriptive is unavailing. The same particularity is not required that is required in the application and the report of viewers.</p> <p>In this case the writ directs the sheriff to summon a jury to meet on the land of the proprietors over which it is proposed the road shall run, and to assess the damages in the mode specified hy the statute, that mode being distinctly set forth in the writ. Held — That the circuit court erred in quashing the writ.</p>

<p>1. Warranty in Sales op Personal Property. — No particular form of words is necessary to constitute a warranty .in the sale of personal property, and while a mere expression of opinion is not sufficient to constitute one a warrantor, a clear, positive affirmation by the vendor made during the negotiation will be treated as an express warranty, and in this respect there is no difference between written and parol contracts, nor is the intention of the vendor material.</p> <p>2. Same. — Where, upon the evidence, it is doubtful whether the vendor, by the language used, intended to assert a fact or merely express an opinion, and it is uncertain how the parties understood it, then the question of warranty or no warranty should be left to the jury; and in such a case if the petition sets forth merely the language of the vendor it should also aver his intention in order that the testimony may be supported by pleading. But where there is a positive, unequivocal representation of a fact, it is not necessary that the vendee, in suing upon the warranty, should allege that the vendor intended that the plaintiff should rely upon it.</p> <p>In this suit for damages, resulting from the unsoundness of a lot of mules purchased by plaintiffs from defendant, it is alleged in the petition “that the defendants represented to these plaintiffs that the said mules were all right; * * that they relied upon the said statements made as aforesaid, and were induced thereby to make said purchase.” Held — That this was a sufficient averment of a warranty of soundness. There being a positive, unequivocal representation by the vendor that the mules were sound, it was not necessary for the plaintiff to allege that the defendant intended that he should rely upon that representation.</p> <p>'3. Same — In determining whether or not words constitute a warranty, they should receive their common acceptation; therefore, as the vendor in this case stated, in response to a direct question, that the mules were “ all right,” there was a warranty of soundness by an absolute and unqualified representation to that effect.</p>

<p>1. Submission to Jury op Legal Issues in Equitable Action.— When the equitable issues in an equitable action, properly commenced as such, depend upon the decision of the legal issues, the latter clause of section 12 of the Code does not prevent a transfer of the legal issues to the ordinary docket in order that they may be tried first. That provision has reference to the determination of such equitable issues as may settle the rights of the parties.</p> <p>In this action to recover the value of legal services and to enforce a lien on land therefor, the court properly transferred the issue as to the value of the services to the ordinary docket to be tried by a jury.</p> <p>2. Same. — In a case of purely equitable cognizance, the chancellor has the discretionary power to direct an issue of fact to be tried by a jury, and their verdict is generally treated by the chancellor as conclusive between the parties; but it is not necessarily so, as the chancellor simply seeks the advice of the jury to aid him in coming to a correct conclusion. But this principle does not apply where there is a distinct legal issue made in an equitable action. In such a case, either party having a right to the verdict of a jury, the verdict, as in ordinary jury trials, is conclusive between the parties, unless the court, upon a motion for a new trial, is satisfied that it is palpably against the weight of the evidence.</p>

<p>Case 32 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. An agreement, through the form of a judicial sale, between the committee of a lunatic and the purchaser, whereby the purchaser gets the property of the lunatic for less than its value, and gives in part payment an individual debt owing him by the committee, is void for fraud.</p> <p>2. In a judicial proceeding by a committee to sell the lunatic’s land the wife of the lunatic is a necessary party. (Civil Code, sec. 492.)</p> <p>In deciding a case presented by the record, the Court of Appeals cannot consider the record of another case in the same or in any other court unless such record is by annexation made a part of the case being considered. (Bank v. Bryant, 13 Bush, 423.)</p>

Case 33 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. A conveyance by husband and wife which is actually fraudulent as to creditors, when set aside leaves the homestead right of the wife intact ; but when the conveyance is fraudulent under the act of 1856, as a preference of creditors, the homestead passes by the conveyance. (Gideon, Barton & Go. v. Streeve, &c., 78 Ky., 134.) Brief not in record.

Case 34 — PETITION OKDTNAKY APPEAL FROM FICHOLAS CIRCUIT COURT. 1. In action to recover damages for willfully negligent wrong to another, it is not necessary to allege the particular circumstances constituting the willful negligence. (2 Ohitty on Pleading, 650; Bliss on Code Pleading, sec. 211; Childs v. Drake, 2 Met., 146.) 2.

Case 35 — INDICTMENT APPEAL PROM J EPPERSON CIRCUIT COURT. Under an indictment charging that the accused broke and entered, with intent to steal therefrom, a house in the possession of “ W,” there can he no conviction where the proof shows that the house was in the joint possession of W & O. The variance between the allegations in the indictment and the proof is not material. (Criminal Code, section 128; 5 Bush, 377.)

Cask 36 — PETITION EQUITY APPEAL FROM CHRISTIAN CIRCUIT COURT. A devise to one and “the lawful heirs of her body ” passes a life-estate with remainder to the children of the life tenant.

Case 37 — -PETITION EQUITY APPEAL PROM TAYLOR CIRCUIT COURT. A county judge is liable on his official bond for failure to use reasonable care and diligence in ascertaining whether the surety offered on a guardian’s bond is solvent, or for failure to take security. (Colter v. Mclntire, 11 Bush, 565; Bevised Statutes, art. 1, chap. 43, see. 4.) 1.

Case 38 — INDICTMENT APPEAL FROM DAVIESS CIRCUIT COURT. 1. An indictment for uttering a forged instrument is bad for failure to allege the place of uttering. (Stowes v. Commonwealth, 12 Bush, 342; Commonwealth v. Williams, 13 Bush, 267.) 2. When the accused testifies in his own behalf the Commonwealth should not be allowed to prove his general bad character. (McDonald v. Commonwealth, Ky. Law Rep., vol. 9, p. 230.) No brief in record.

Case 39 — PETITION ORDINARY APPEAL FROM MASON CIRCUIT COURT. A county may be held liable for a tort. (May v. Mercer County Court, 30 Eed. Rep., 246.) There is no liability on a county for a tort except by provision of a statute. (Wheatley v. Mercer, 9 Bush, 704; Brabham v. Supervisors of Hinds Co., 28 Am. Rep., 352; Wood v. Tipton, 32 Am. Rep., 561; White v. Commissioners, 47 Am. Rep., 534; Wehn v. Commissioners, 25 Am. Rep., 497.)

Case 40 — INDICTMENT APPEAL FROM LESLIE CIRCUIT COURT. One has the right to resist arrest, even to killing, when he has reasonable grounds to believe and does believe that the officer and his posse are using the process of the law, not in good faith, but as an excuse for taking his life or inflicting on him great bodily harm.

Case — 41—PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. The child of a bastard, although legitimate, can not inherit from the bastard brother or sister of his bastard parent. The statute enabling bastard brothers and sisters of the same mother to inherit from each other does not enable the children of a bastard who is dead to inherit from the bastard brothers and sisters of the deceased parent.

Case 43 — PETITION EQUITY APPEAL BROM LOUISVILLE LAW AND EQUITY COURT. 1. Where one street railroad company obtains from the Legislature the right to condemn the privilege of running over the existing tracks of another company, the value of the franchise must be paid as compensation to the company whose tracks are thus entered on.

<p>Case 43 — PETITION EQUITY</p> <p>APPEAL PROM MADISON COURT OP COMMON PLEAS.</p> <p>Change of domicile is determined by the intention of the party and by the acquisition of a domicile elsewhere by the exercise of acts of citizenship. (State v. Judge, 13 Ala., 806; Harbrough v. Ciscott,33 Mich., 241; McCrary on Elections, section 40; McDowell’s Case, 3 Penn L. P., 310; Mitchell v. U. S., 21 Wall, 253; Demond v. U. S., 93 U. S., 605.)</p> <p>Brief not in record.</p>

<p>1. Devise in Lieu of Dower. — While hy the common law a devise to the testator’s wife is' not construed as in lieu of dower, unless such an intention is expressed or plainly inferable from the will; under our statute the widow is not entitled to dower in addition to the devise, unless it affirmatively appears, from the will, that the testator so intended.</p> <p>In this case, such á purpose is not plainly expressed, nor does the will contain any expression from which it is necessarily inferable, and, therefore, the widow is not entitled to dower in addition to the devise.</p> <p>-2. To entitle the widow of a testator to dower, she must relinquish the provisions of the will within twelve months after probate, unless, under the provisions of the will, she is entitled to dower in addition to the devise.</p> <p>3. Where the widow elects to take under the will, by failing to relinquish its provisions within the time required, she must comply with the requests or directions attached to the devise. The burden accompanies the benefit.</p> <p>In this case the testator provided that his wife should furnish his imbecile daughter a home with her, care for her, and take charge of her estate. Held — -That these conditions were an executory charge upon the devise to the wife, and that she is not entitled to compensation for the support of her imbecile step-daughter.</p> <p>4. Wills — Estoppel.—If a testator leaves a portion of his estate to A, and at the same time disposes of property belonging to A, and A accepts the bounty under the will, he must abide by the disposition of his own property made by the testator.</p> <p>In this ease the testator devised land to his wife, and at the same time devised to his daughter a part of the proceeds of an insurance policy payable to his wife. Held — That the widow, having accepted the devise of the land, is estopped from claiming the insurance money devised to another.</p> <p>5. It was the duty of the chancellor to guard the interest of the imbecile daughter of the testator, and see that her estate was protected. It was, therefore, not error to grant her, upon a cross-petition filed by her guardian ad litem, relief not asked in express terms.</p> <p>G. It was not equitable to charge the widow with interest upon the sums allowed the testator’s imbecile daughter as her portion of the insurance money, and of the personal estate of the testator. The spirit of the will does not authorize it.</p> <p>7. Allowance to Guardian ad litem. — Affirmative relief having been granted upon a cross-petition filed by the guardian ad litem, it was error to require the plaintiff to pay the allowance to the guardian ad' litem without providing that she should have credit therefor upon the amount adjudged against her in favor of the ward. While it was proper to require the plaintiff to pay the allowance, she should have, credit therefor.</p>

Case 45 — PETITION EQUITY APPEAL FROM WHITLEY CIRCUIT COURT. A conveyance calling for an object on the bank of a stream “and thence with the meanders thereof,” gives title to the middle of the stream, subject only to the right of the public to the use thereof. (Boom Company v. Smith, 8 Ky. Law Rep., 3(59.) Brief not in record.

<p>Casts 46 — PETITION</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>The dismissal of an action otherwise than on its merits is not a bar to another action. (Kendal v. Talbot, 1 A. K. M., 321; Thomas v. Hite, 5 B. M., 590; Freeman on Judgments, section 267; Huey’s Adm’r v. Bedding’s Heirs, 3 Dana, 488; Bracken County Court v. Eobertson County Court, 6 Bush, 74; Jones v. Gallatin County, 78 Ky., 495; Poster v. The Bichard Busteed, 100 Mass., 411; Post v. Pearson, 108 TJ. S., 418; Brackett v. Hoitt, 20 N. H., 260.)</p> <p>Brief not in record.</p>

<p>Case 47 — APPEAL</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>Brief withdrawn.</p> <p>The provision of the statute authoinzing a private corporation to take possession of property condemned for its use upon the execution of a bond merely, is unconstitutional. The bond provided for is not “just compensation previously made” within the meaning of the Constitution. (Gen. Stats., ed. 1887, p. 281; Cooley on Const. Limit., pp. 694-697; Thompson v. Grand Gulf B. & B. Co., 3 Howard (Miss.), 240; Bloodgood v. Mohawk, &c., B. B. Co., 18 Wend., 9; s. c., 31 Am. Dec., 313, 320, and note, p. 375.)</p> <p>There must at least be a payment of the money into court, if not into the hands of the property-owner, before the corporation can take possession. (Arnold v. Cov. and Cin. Bridge Co., 1 Duv., 372; Tracy v. E., L. & B. S. B. B. Co., 80 JKy., 259.)</p> <p>The cases decided by this court in which it is held that the damages need not be actually paid before the property is taken are eases in which the property was condemned for the benefit of a municipality and not for the benefit of a private corporation. (Gaslnveller’s Heirs v. Mcllvoy, 1 A. It. Mar., 184; Jackson v. Winn, 4 Litt., 322; Duncan v. Louisville, 8 Bush, 98.)</p> <p>As to the distinction between that class of cases and the class to which this case belongs: Sanborn v. Belden, 51 Cal., 266; Mill on Law of Eminent Domain, secs. 120, 130, 132, 136.</p>

<p>Case 48 — PETITION ORDINARY</p> <p>APPEAL PROM PENDLETON CIRCUIT COURT</p> <p>1. An employe of a railroad engaged in duty on one train can not recover for injury inflicted by the negligence of another employe of the same grade engaged in operating another train. (Port Hill Stone Co. v. Orm’s Adm’r, 8 Ky. L. R., 73; Casey’s Adm’r v. L.’& N. R. R. Co., 8 Ky. L. R„ 439.)</p> <p>2. An instruction that the jury may give such damages as they believe the one injured has suffered is wrong, because in effect an instruction to find exemplary damages. (Chiles v. Drake, 2 Met., 151; Ky. Cen. R. R. Co. v. Gasteneau’s Adm’r, 83 Ky., 121; L. & N. R. R. Co. v. Brooks’ Adm’r, 83 Ky., 129.)</p> <p>■3. An instruction to find compensatory damages, without defining what compensatory damages are, is erroneous. (M., H. C. & C. T. Co. v. Maupin,’ 79 Ky., 105.)</p> <p>A. peremptory instruction should not bo given unless the mind of the judge is entirely clear that such right should be exorcised. (L. & P. Canal Co. v. Murphy, 9 Bush, 583; Barrett v. Meek, Sneed, 34; Tavlor v. White, 2 Monroe, 94; Clark v. Castloman, 1 J. J. M., 69; Gregory v. Nesbitt, 5 Pana, 422.)</p>

Cask 49 — PETITION ORDINARY APPEAL FROM OWEN CIRCUIT COURT. 1. The waiver of the right by a company to rely upon a breach of a condition in the policy as a release from liability must he unequivocal and of such character as to mislead the insured to his prejudice. (Plicenix Ins. Oo. v. Stephenson, 78 Ky., 155.) A mere local agent and surveyor of an insurance company' has no authority to waive a condition contained in the policy of insurance. 1.

Case 50 — PETITION ORDINARY APPEAL FROM BOURBON CIRCUIT COURT. 1. Insurance against death through “external, violent and accidental means,” embraces a killing for the purpose of robbery. (Bostwiek v. Stiles, 35 Conn., 198; Bliss on Life Ins., sec. 396; Ripley’s Case, 2 Bigelow’s Life Ins. Cases, 738.) 2. An exhibit must be taken into view as controlling any statement inconsistent with it. (Bush v. Maderia, 14 B. M., 213.) 1.

<p>Case 51 — PETITION EQUITY</p> <p>APPEALS FROM LOUISVILLE CHANCERY COURT.</p> <p>1. The question is, what duty did the directors owe? and not as to the degree of negligence. The law can do no more than to ascertain that the defendant failed in his duty. It is not necessary or profitable to discriminate as to the degrees or differences in his negligence. (Wilson v. Brett., 11 M. & W., 115; Wyld v. Pickford, 8 M. & W., 461; Grill v. Iron Co., L. R., 1 C. P., 614; Hunton v. Dibbon, 2 Q. B., 646; Steamboat v. King, 16 How., 474; R. R. Co. v. Derby, 14 How., 486; 2 Kent, 560.)</p> <p>2. Classification of cases on the liability of bank directors:</p> <p>(a.) Where the director does some act with respect to property of the corporation, or makes some contract with or for the corporation, by which the director is individually benefited at the expense of the corporation, or where he is guilty of reckless mismanagement of the corporation's property. All such are cases of fraud, and the director is held liable as a trustee. (Charitable Corporation v. Sutton, 2 Atk.,. 405; Smith v. Robinson, 3 Paige, 231; Board of Commissioners, &c., v. Reynolds, 44 Ind., 513; Koehler v. Black River Co., 2 Black, 720; Dury v. Cross, 7 Wall., 302; Bradley v. Harwell, 1 Holmes, 437; Sawyer v. Hoag, 17 Wall., 620; Corbett v. Woodward, 5 Sawyer, 417; Coal & Iron Co. v. Parish, 42 Md., 598.) 1</p> <p>(5.) Where the loss arises from exceeding, or failing to comply with, charter provisions, or from bad investments, etc. In all such eases where the illegal act done was committed through a mistake of law, or where the bad investment arose from a bona fide mistake of judgment, the directors are excused. (Spering’s Appeal, 71 Pa. St., 11; Godbold v. Bank of Mobile, 11 Ala., 149; Scott v. De Peyster, 1 Edw. Chan’y, 513; Vance v. Phoenix Ins. Co., 4 Lea, 386; Hun v. Cary, 82 N. V,, 71; Percy v. Millandon, La. Con. R., vol. 4, N. S., 430; Hodges v, New England Screw Company, 1 R. I., 312; 3 R. I.,9.)</p> <p>(c.) Where loss has arisen through the negligence of the directors! as where an embezzlement has occurred by an officer, or some other loss of property, by reason of the negligent and insufficient supervision of the directors. (Dunn v. Kyle, 14 Bush, 134; Shakers v. Underwood, 9 Bush, 609; Scott v. De Peyster, 1 Edw. Chan’y, 513; Manhattan Co. v. Lydig, 4 Johns., 376.)</p> <p>As to liability of bank directors, see also: Turquand v. Marshall, L. R., 4 Ch. App.,376; 2 Pomeroy’s Equity, note, sec. 1070, page 642; Graves v. Lebanon Nat. Bank, 10 Bush, 30; Jones v. Johnson, 10 Bush, 658; SwigeTt v. Graham, 7 B. M., 663; Smith v. Prattville Co., 29 Ala., 509; Morse on Banking, 117; Thompson on Officers and Agents Corp., 357; Colt v. Wallaston, 2 P. Wms., 153.)</p> <p>8. The duty owed by directors of a bank is to the corporation. Por a breach of that duty they arc. liable to the corporation. Where the corporation has made an assignment, any right of action against the directors passes to the assignee. Neither a creditor nor a stockholder can sue the directors, unless it appear that the corporation, being under the control of the delinquent directors, will not sue, or, where an assignment has been .made, the assignee refuses to sue. (Zinn v. Mendell, 9 W. Va., 580; Jones v. Johnson, 10 Bush, 660; Hodge v. New England Screw Co., 1 R. I., 312; 3 R. I., 9; Allen v. Curtis, 26 Conn., 461; Smith v. Poor, 40 Me., 415; Smith v. Hurd, 12 Met., 371 ; Brinkerhoff v. Bostwick, 88 N. Y, 52; Greaves v. Gouge, 69 N. Y., 157; Robinson v. Smith. 3 Paige, 231.)</p> <p>4 It was necessary for the appellees, Myers, &c., to have shown a bona fide effort to get the assignee to sue, and an unqualified refusal on his part. (Detroit v. Dean, 106 U. S., 537; Humes v. Oakland, 104 U. S., 401.)</p> <p>5. The Savings Bank was a necessary party to the suit by Myers, &c. The bank not having been made a party defendant, no cause of action was stated in the petition. (Shawhan v. Zinn, 79 Ky., 300; Davenport v. Dawes, 18 Wall., 626; Greaves v. Gouge, 69 N. Y., 157; Robinson v. Smith, 3 Paige, 231.)</p> <p>6. The suit being in behalf of the directors in the savings department only, and no relief having been asked for the other depositors, general creditors or stockholders, the petition was fatally defective.</p> <p>1. Directors of a bank are liable for failure to use ordinary care and diligence, and they cannot be heard to say that they were ignorant of facts which appeared from entries on the books of the bank. (Shakers’ Case, 9 Bush, 621; Percy v. Millandon, 8 Mart. (N. S.), 68.)</p> <p>The failure of the directors in this case to have the ordinary methods of book-keeping observed; consolidating all the duties of cashier, teller and book-keeper in one person; permitting that person to make “statements” of the condition of the bank on slips of paper, which were accepted as true without any attempt at verification; counting the cash on stated days known beforehand to the cashier, and basing their count on the assumption that the cashier had correctly furnished the amount he ought to have; never during the existence of the bank making any examination of the books to see if they agreed with each other, thus virtually surrendering the whole management and direction of the bank into Bhorer’s hands, was culpable negligence. ’</p> <p>2. The judgment determining that Jones, the assignee, liad no right to sue was a final order, and he, having failed to prosecute an appeal therefrom within the time allowed, cannot now question the correctness of that ruling. (Helm v. Short, 7 Bush, 625, Maysville & L. B. B. v. Punnett, 15 B. M., 48; Turner v. Browder, 18 B. M., 826; Bobinson v. Scott, 3 Litt., 233; Garrison v. Singleton, 5 Dana, 161; May v. Hardin’s Ex’r, 13 B. M., 346; Offult v. Bradford, 4 Bush.)</p> <p>3. The action in behalf of creditors should have been brought by the assignee, Jones, hut behaving refused to sue, Myers and others had the right to sue.</p> <p>1. Directors of a corporation are only required, in the management of its affairs, to keep within the limits of the power conferred upon them, and to exercise good faith and honesty. Unless there is shown to be a want of good faith or a willful abuse of discretion there will be no personal liability. (Eield on Corporations, sec. 169; Dunn v. Kyle, 14 Bush, 134; Spering’s Appeal, 21 Penn. St., 11; Scott v. De Peyster, 1 Edw. Oh'y, 526; Hodges v. New England Screw Co., 1 B. I., 312; ■Walceman v. Dailey, 51 N. Y., 57; Manhattan Bank v. Lydig, 4 Johns. Bep., 347; Smith v. Prattville Man’f’g Co., 29 Ala., 504; Watts’ Appeal, 78 Penn. St., 370; Turquand v. Marshall, 6 Law Bep., Equity Cases, 112; Overend, &c., v. Gibb, 4 Law Bep., Ch. Cases, 701; s. c., 4 Law Bop., 5 H. L, 480; Thompson on Liability of Officers of Corp., pp. 358, 359, 360, notes.)</p> <p>In every ease where directors have been held liable it was because they were the wrong-doers themselves, not because others had done wrong. (Bank v. Hill, 56 Me., 385; Charitable Corp. v. Sutton, reported in Thompson on Liability of Officers of Corp., 227; Shea v. Malry, 1 B. J. Lee, Tenn., 344; Percy v. Millandon, 8 Martin, 68; s. c., 3 La., 568; Attorney-General v. Wilson, 1 Or. and Ph., 1; Butts v. Wood, 38 Barb., 181; Attornéy-Geueral v. Corp. Leicester, 7 Beavan, 17C.) ' ■</p> <p>2. The court will not look to cases which hold that a bill charging gross neglect is a good bill on demurrer, as: Shakers v. Underwood, 9 Bush, 609; Bobertson v. Smith, 3 Paige, 222; Brinkerhoff v. Bostwick, 85 N. Y., 52; Maisch v. Savings Bund, 5 Phila., 30; Sears v. Hotchkiss, 25 Conn., 171.)</p> <p>Nor to cases which hold that suits against directors on the ground of negligence belong in equity, as: Smith v. Hurd, 12 Met. (Mass.), 371; Zinn v. Mendell, 9 W. Ya., 580; Allen v. Curtis, 26 Conn., 456; Butz v. Shaunhurst, 69 Mo., 265; 34 How. Pr., 180.)</p> <p>But to cases tried and decided on their merits.</p> <p>3. the character of negligence that would render directors liable, in the absence of fraud or positive misconduct, is that which is known as gross. (Morse on Banking, p. 450.)</p> <p>Gross negligence defined. (Sher. and Bed. Neg., sec. 18; Story, Bail., sections 17-22; L. & N. B. B. Co. v. Bobinson, 4 Bush, 509.)</p> <p>4. The directors were not obliged to know of the falsification of the books by Bhorer. (Bachelor v. Planters’ Bank, 78 Ky., 446; Ackerman v. Halsey, 17 Cont. Law J., 433.)</p> <p>This was not a case in which the falsification of the books could have been discovered by a cursory examination, as was the case in Graves v. Lebanon Bank, 10 Bush, 23.</p> <p>5. In a controversy between the bank itself and a creditor the law indulges certain presumptions against the bank. It presumes directors know all that is going on. (Bank U. S. v. Danbridge, 12 Wheat., 64; Morse on Banking, 91-107.) But there is no such presumption where directors are sought to be held personally liable.</p>

Case 52 — PETITION ORDINARY APPEAL FROM JEFFERS.ON COURT OF COMMON PLEAS. 1. The findings of the jury to the effect that the injury was traceable to neglect on the part of the conductor of the train are wholly unsupported by the evidence. 2. The special interrogatories propounded by the court were misleading and suggestive of the answers to be given, and some of them were wholly unauthorized by any testimony in the record. 3.

Case — 53—PETITION EQUITY APPEALS FROM ESTILL CIRCUIT COURT. 1. An administratrix is a quasi trustee, and as such, having funds in her hands belonging to the estate, she cannot permit the land of the decedent to he sold for debt and redeem the land from the purchaser with assets of the estate and take title to herself. She will hold the land in trust for the creditors and heirs of the decedent.

<p>Immunity from taxation is a personal privilege which can he granted by the Legislature only in consideration of public service to be rendered by the beneficiary, or to religious bodies, charitable institutions or schools. It is not an estate or interest running with the particular property exempted; nor can it be transferred by sale or succession without statutory authority, and to entitle a purchaser or successor to the benefit of it, the intention of the Legislature to continue the privilege must be clear and express, as relinquishment of the taxing power of a State is never to be presumed.</p> <p>An act of the Legislature exempting from taxation property belonging to “ The Masonic Fraternity of Louisville,” known as the “Masonic Temple,” does not exempt the same property from taxation in the hands of the appellee, the “ Masonic Temple Company,” although the latter corporation was organized under an act of the Legislature providing for the reorganization of “ The Masonic Fraternity of Louisville,” and was empowered by that act to purchase the property and the “ corporate rights ” of that corporation, the act providing “ when the corporation is organized and becomes the purchaser of the Masonic Temple it shall be the successor of the corporation, the ‘ Masonic Fraternity of Louisville.’ ” The “ corporate rights” which the new corporation was empowered to purchase from the old do not include immunity from taxation; but, whether so or not, the new corporation, by the terms of the deed executed to it by the old corporation, acquired title to nothing except the property and the claims due to the old corporation. Moreovei-, neither by the act under which the appellee was organized, nor by the deed under which it acquired title to the property, is any obligation imposed upon appellee to establish and maintain a school for the education of poor and orphan children, which was the inducement and condition of the exemption originally granted to the Masonic Fraternity 6of Louisville as expressed in the act providing for the exemption.</p>

Case 55 — PETITION EQUITY APPEAL FROM BOYD CIRCUIT COURT. 1. Appellants were not creditors of M. H. Johns in the sense in which that term is used in- the statute. (Napper v. Yager, 79 Ky., 243.) 2.The delivery of the timber by Johns in February and March, 1884, was not a sale and delivery of the timber at these dates, but simply a delivery pursuant to and in compliance with a contract long before made, and is not within the operation of the statute.

<p>Case 56 — INDICTMENT</p> <p>APPEALS PROM HARLAN-CIRCUIT COURT.</p> <p>No brief in record.</p> <p>There being no motion nor grounds for a new trial, the appeal should he dismissed. (Louisville Chemical Works v. Commonwealth, 8 Bush, 188.)</p>

Case 57 — INDICTMENT APPEAL PROM DAVIESS CIRCUIT COURT. 1. The amendment of May 15, 1886, to section 189 of the Criminal Code, is unconstitutional. The defondant is entitled to the presence of his witnesses. (Const, of Ky., art. 13, sec. 12; State v. Berkley (Mo.), 4 S. W. Rep., 24; 3 Cooley’s Blackstone, 373; Starkie on Evidence, 9th ed., 727, 728 and 766; 2 Story on the Const. (4th ed.), section 1943; Ex parte Milligan, 4 Wall., 120.) 2.

Cask 58 — PETITIONS EQUITY 1. There was no Rower in the Legislature to Grant Alleged Exemption. (a.) Taxation must be equal and uniform. (State and Federal Constitutions; R. Tax Cases v. Commonwealth, Ky. Law Rep., vol. 5, 451.) (b.) Private property cannot bo taken for public use without just compensation.

<p>1. Eminent Domain — Compensation.—The Constitution requires that in the taking of private property for public use, just compensation must he previously made the owner, by the payment in money of the value of his property, before the writ of possession can he ’issued. Therefore, as much of the act providing, the mode of condemning private property for railroad purposes as authorizes the company to enter into possession upon the execution of a bond of indemnity is unconstitutional.</p> <p>2. Same — Measure op Damages. — In arriving at the just compensation which the Constitution requires shall be made to the owner before entry, the value ol' the land taken for actual use is to be considered in its relation to the entire tract, and must include the actual injury to the improvements and every direct damage tending to diminish in value the entire tract by reason of the use and appropriation of the land taken, all of which enters into the estimate of compensation, and must he paid for before entry. And from this amount nothing can he deducted by reason of the benefits and advantages that may reasonably be anticipated from the construction and operation of the road.</p> <p>Under the act of April, 1882, it is only the ordinary inconvenience1 and damage that results from a prudent operation of the road against which such benefits and advantages may be set off, for if the “ incidental damages ” from which the act provides such benefits and advantages may he deducted includes any thing more, the act is to that extent unconstitutional.</p> <p>3. Same — Verdict.—In this ease the jury, under instructions, fixed the value of the land taken at six hundred dollars, and the damages to the adjacent land, including dwelling-house, barn, orchard, etc., at two thousand five hundred and forty-three dollars and eighty-five cents. Held — That the instructions and verdict show that the last named sum must have been for the diminished value of the property from the injury that would result to the dwelling, etc., from the construction of the road. Therefore, the company can not be allowed to take possession upon the payment of the six hundred dollars alone.</p>

<p>Case 60 — PETITION EQUITY</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>1. After judgment against him, Menzies might have enforced the mort» gage in his own behalf (Tilford, &c., v. James’ Adm’r, 7 B. M., 336; Haven v. Poudry, 4 Met., 247, 249), and, therefore, the hank might likewise have done so.</p> <p>2. The creditor is entitled to he substituted to any security held by the surety as indemnity. (Sheldon on Sub., secs. 162, 163; Northern Bank of Ky. v. Macldin, &c., MS. Op.) And this is especially true where the principal debtor and his surety are insolvent, as in this case. (Bispham’s Principles of Equity, sec. 337, and cases cited.)</p> <p>The right of the creditor is to he measured by that of the surety who holds the indemnity. (Sheldon on Subrogation, section 157; 7 B. Mon., 337.)</p> <p>3. The creditor may, if necessary, compel the surety to surrender to him the security he holds. (Kedfield, Oh. J., in McCollum v. Hinckly, 9 Yer., 143, 149; Sheldon on Sub., sec. 154.)</p> <p>4. It is immaterial in this case that it was the wife’s property that was pledged. (Sheldon on Sub., sec. 104.)</p> <p>5. The fact that Mrs. Timberlake, who furnished the security, was not a party to the debt due the bank, is not a material circumstance. (Alexander v. Ellison, 79 Ky., 153.) Northern Bank of Ky. v. Macklin, MS. Op., commented on.</p> <p>6. The creditor can substitute his assignee to his right of subrogation. (Sheldon on Sub., section 248; Neely v. Jones, 16 W. Va., 641; Kichmond v. Martin, 15 Ind., 137; 1 Leading Cases in Equity, 113, and authorities cited.)</p> <p>1. The contract or agreement of indemnity was purely personal, and intended to indemnify the surety alone; and the surety never having paid any part of the debt, nor sustained any damage, and being wholly insolvent, there has been no breach of the condition of the mortgage. (Macklin v. Northern Bank oí Ky., 2 MS. Opinions of date June 19,1879, and October 24,1885 (7 Kentucky Law Hop., 277); Leggett v. McClelland, 39 Ohio St., 624; Osborne v. Noble, 46 Miss., 449; Horner v. Savings Bank, 7 Conn., 478.)</p> <p>2. The execution of the mortgage on the part of Mrs. Timberlake was purely gratuitous; and a gratuitous promise will not support an action. (McGee v. Bast, 7 J. J. M., 455; Proctor v. Keith, 12 B. M., 253; Buford v. McKee, 1 Dana, 107; Sawyer v. Fernold, 59 Me., 500; Hetherington v. Hixon, 14 Ala., 297; Bishop on Married Women, vol. 2, sec. 374.)</p> <p>3. The appellants having undertaken to show what the consideration for the mortgage was, the presumption of a consideration ceases. (Stead-man v. Guthrie, 4 Met., 152.)</p>

Case 61 — PETITION EQUITY APPEAL FROM GALLATIN CIRCUIT COURT. 1. The active participation of a married woman in the perpetration of a fraud may operate by way of estoppel to divest her of interest in real estate. (Busk v. Benton, 14 Bush, 490; Craddock v. Tyler, 3 Bush, 360; Stone v. Waits, Ibid., 487; Connelly v. Branstler, Ibid., 702; Heck v. Bisher, 78 Ky., 646; Johnson v-. Green, 17 B. M., 122.) 2.

<p>Case 62 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>Becord and briefs not accessible.</p>

<p>Constitutional Law — Taking of Private Property for Private Use. — The Legislature has no power to take the property of one citizen to advance the private interests of another. Private property may be taken by way of taxation to improve a public highway, or for a purpose promoting the public health; but not to improve a particular tract of land, thus merely-promoting the private interest of the owner or owners.</p> <p>By an act of the Legislature certain persons, therein named, were appointed trustees to erect and keep in repair a fence around a large boundary of land, the owners of which resorted to the plan of inclosing their lands for crop purposes by one common feuce, their fences having been swept away by a recent flood. The trustees were authorized to levy and collect a tax from the property-owners within the boundary, and penalties were provided for injuries to the fencing. By an amended act the appellant was created a corporation, and the boundary extended so as to include a part of the land of appellee, without whose knowledge or consent the act was procured. In this action by appellant to enjoin appellee from interfering with the fence on his land, Held — That the act of the Legislature, as to appellee, is unconstitutional, he having never in any way consented to or ratified it.</p>

<p>Trespass — Adverse Possession. — Where one has been in possession of land, although without title, claiming and using it as his own to a well defined marked boundary, continually for fifteen years before the commission of a trespass within his boundary, he may maintain an action therefor, whether the trespass was committed outside or within his inclosure.</p>

Case 65 — PETITION EQUITY APPEAL FROM HENRY CIRCUIT COURT. 1. The same rule applies in this case that would apply if it were a contest between a creditor of J. C. Scobee and the appellees, for the reason that the other heirs having paid the creditors, are substituted to the rights of the creditors. 2. Even if appellants are not substituted to the rights of the creditors whom they paid, they have still a right to contribution from the estate descended to J. W. Scobee. 3.

Case 66 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. ' 1. The Governor respited the entire judgment except “commissions, fees and costs ” of officers. Hence, whatever defendant had forfeited to the Commonwealth by the offense was respited, leaving only the claims of officers for their services unrespited. Only that forfeited to the Commonwealth could be enforced by imprisonment.

<p>Criminal Law — Evidence.—It is competent for the Commonwealth to prove that the defendant, after he was accused of the crime with which he is charged, fled or concealed himself, or was guilty of any other conduct inconsistent with his innocence. It was, therefore, competent in this case to prove that, after the defendant was put in jail by the order of the examing court, he conducted himself in such a way as indicated that he was feigning insanity.</p>

Case 68 — PETITION EQUITY APPEAL PROM SHELBY CIRCUIT COURT. • Before land can be sold at the suit of an assignee in trust for the payment of debts there must be an appraisement, and the right of redemption exists as in sales under execution. (Gen. Stats., 835; Bose v. Taylor, 8 Ky. Law Bep., 182; Cantrill v. Perry’s Adm’r, 7 Ky. Law Bep., 446.) 2. No decree for sale should have been made until all the debts had matured and all lien-liolders were before the court.

Case 69 — PETITION EQUITY APPEAL FROM HARDIN CIRCUIT COURT. 1. By an assignment in trust for the payment of debts the crops growing on the land at the time of the assignment, or planted before sale by the assignee, passes by the assignment to the trustee. 2. As appellee never lived on the land in controversy up to the time it was sold, he is not entitled to a homestead, nor is appellant estopped to deny his right to a homestead. 1.

Case 70 — INDICTMENT APPEAL FROM MONROE CIRCUIT COURT. Under an indictment charging a breaking into an out-house used in connection with a dwelling, and proof of breaking into a tobacco barn, there can be no conviction under sec. 4, art. 5, chap. 29, Gen. Stats.

<p>Case 71 — PETITION EQUITY</p> <p>APPEAL PROM PULASKI CIRCUIT COURT;</p> <p>Whore land is held jointly by husband and wife; the whole must contribute to make up the homestead exemption to the husband. (Giblin v. Jordan, 6 Cal., 417; Lowell v. Shannon, 60 Iowa, 713; Miles v. Hall, 12 Bush, 105-9.)</p> <p>When the husband and wife own jointly property occupied as a homestead, the husband’s homestead exemption must be carved out of his interest only.</p>

<p>1. Appeals — Piling of Mandate. — Where the opinion and mandate of the appellate court, upon the return of a case to the circuit court, are filed of record in open court, no notice is required to be served on the adverse party in order to give the case the same position on the docket it had before the appeal was taken, as both parties are regarded as being present in court; and the case stands ready for submission, subject to an order of continuance, if not then prepared for trial com sistent with the opinion of this court.</p> <p>2. Reversal of Judgment — Restitution.—The rule that the reversal of a judgment for the sale of land does not divest the title of the purchaser under the judgment, even though he be the plaintiff in the action, does not apply whore the land ordered to be sold and purchased by the plaintiff was the property of another than the defendant, and the supposed indebtedness of the defendant, which it was sold to satisfy, has been finally adjudged not to exist.</p> <p>A personal judgment was rendered against the defendant, and land which he had conveyed to others was ordered to be sold to satisfy it. Upon appeal that judgment was reversed and the plaintiff adjudged to he indebted to the defendant. The land having been sold under the judgment, and purchased by the plaintiff, upon the return of the case, the owners of the land, by motion and pleading, asked to have the land restored to them, which was done. Held — That they were entitled to the relief granted.</p>

Case 73 — PETITION OEDINABY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. It was within the scope of the powers of the president of the Main Jellico Mountain Coal Company to execute the contract and notes for convict labor sued on; and the directors and stockholders approved of those contracts, and enjoyed the benefit of them; and the company’s plea of non est factum is, therefore, not sustained. 2.

Case 74 — PETITION APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. Where A and B sign a note, and B is surety for A, and C signs, without the knowledge of B, designating himself as surety, as between B and C, B is liable for only one-half of the debt and C for the other.

<p>Case 75 — PETITION EQUITY</p> <p>APPEAL PROM PRANKLIN COURT OP COMMON PLEAS.</p> <p>1. When a vendor of- land, by bond for title, sues to enforce his lien for purchase money, he must tender with his petition a sufficient deed to the vendee-defendant. (Williams v. Abrahams, 3 Bush, 187; Calvin v. Duncan, 12 Bush, 104.)</p> <p>And so a mortgagee should be required by the court in which he enforces the payment of his mortgage debt to release his mortgage by deed of release, if he fails to do so in the mode provided for by statute.</p> <p>2. As the land in this case was in two different counties, the defendant was entitled to a deed of release that he might have it recorded in each of said counties. And the court unquestionably had jurisdiction to compel the plaintiff to execute the deed of release, the clerk’s fees being tendered. (Wickliffe v. Lee, 6 B. M., 552; Stemmons v. Duncan, 9 B. M., 354; Breckinridge v. Ormsby, 1 J. J. M., 259; Breckinridge v. Brooks, 2 Mar., 338; Jones on Mortgages, volume 2, sections 988, 988a, 989, 990, 950.)</p> <p>Where a mortgage debt has been satisfied by a sale of the mortgaged property under judgment of court, the mortgagee can not he required to execute to the mortgageor a formal deed of release. The record of the suit furnishes the highest and best possible record evidence of the satisfaction and extinguishment of the mortgage lien.</p>

Case 76-INDICTMENT APPEAL PROM JBPPERSON CIRCUIT COURT. 1. An indictment charging murder, with specifications showing a different. offense, is insufficient on demurrer. (Gen. Stats., chap. 29, art. 4, sec. 2; Trimble v. Commonwealth, 78 Ky., 176.) 2. One procuring an abortion upon herself is an accomplice in the crime, and no conviction can be had upon her testimony without corroboration. (Civil Code, sec. 240, 241.) 3.

Case 77 — PETITION OEDIN AEY APPEAL FROM BULLITT CIRCUIT COURT. 1. As this action is by the administrator under section 3, of chapter 57, General Statutes, and the decedent left no widow or child, there can be no recovery. (Henderson’s Adm’r v. Ky. O. E. E. Co., 85 Ky.) 2.

Case 78 — PETITION ORDINARY APPEAL PROM HARDIN CIRCUIT COURT. A petition averring that defendant “ assaulted plaintiff while under arrest, and did thereby so excite him as to cause permanent injury to his health,” is good on demurrer. A petition charging an assault, without allegation of the manner of the assault, is not good either at common law or under the statute.

<p>1. Deeds op Married Women — Certificate.—When tlie deed of a married woman is acknowledged before a deputy clerk, and the memorandum of the deputy sets forth the fact that the deed was acknowledged by the feme covert, and when, and is signed by the deputy, thus amounting in fact to a certificate of acknowledgment, it is not necessary that the clerk, if he certifies the deed, should incorporate in his certificate the deputy’s indorsement in order to make the deed valid. Nor is it necessary that the deputy’s indorsement, in order to amount to a certificate, should state that the deed1 was acknowledged “ before me,” as that will be presumed; or that it was acknowledged by the feme covert “as her act and deed,” as the more statement of the acknowledgment by her conclusively shows that fact.</p> <p>The indorsement held to be sufficient to amount to a certificate in this case is as follows: “Acknowledged by Willia C. Woods, this May 5, 1873. J. H. Lapsley, D. C. M. G. G.”</p> <p>2. Limitation — Fraud.—Where an action -for relief on the ground of fraud is sought to be maintained after the expiration of five years from the commission of the fraud, the plaintiff must allege, and prove, if denied, not only that he did not discover the fraud until within five years before the commencement of the action, hut that he could not, by ordinary diligence, have discovered it until within that time.</p> <p>As this action to set aside a deed as fraudulent was brought more than five years after the deed was executed, and the only allegation or proof by the plaintiffs as to the discovery of the fraud is, that “ said fraud has been discovered by them within the last five years,” the action is barred by limitation.</p>

<p>Case 80 — PETITION EQUITY</p> <p>APPEAL PROM SCOTT COURT OP COMMON -PLEAS.</p> <p>1. A will containing a specific devise to one child and remainder of the estate to the widow for life, with the following codicil: “ It is further my will, that if any of my children should die without children“or heirs of their body, the estate above devised to them shall be equally divided between any surviving children and the heirs of those that may die, in equal share as my children,” is to be construed as dispos-, ing of only that portion of the estate specifically mentioned, and the remainder of the estate as passing by descent to the other children of the testator. (Bailey v. Wilson, MS. Op., March, 1883.)</p> <p>2. The expression in the codicil: “If any of my children should die without children or heirs,” is to be construed as referring to death before the termination of the life estate. (Thaekston v. Watson, 8 Ky. Law Bept., 193; Binney v. Bichardson, 5 Dana, á32; Pool v. Burning, 9 B. M., 623.)</p> <p>The expression in the codicil: “Should die without children,” is to be construed as referring to death whenever it might occur.</p> <p>The cases relied on by counsel for appellant distinguished from this case.</p>

Case 81 — PETITION ORDINARY APPEAL PROM PRANKLIN CIRCUIT COURT. 1. A dormant partner is liable for a partnership debt without regard to whether credit was extended to the firm because of his connection with it. (Bishop on Contracts, secs. 392-4.) 2. A dormant partnership being known to one dealing with the firm, the dormant partner continues liable to such creditor in subsequent dealings until the creditor has notice of the withdrawal of the dormant partner.

Case 82 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. 1. After the court had disposed of the only equitable issue in the case, appellant was entitled to a transfer to the ordinary docket and to a trial by jury (Civil Code, section 12.) 2. The court did right in refusing to reform the policy. The only power the court has is to change the written evidence of the contract so as to make it express the contract really made.

<p>1. Life Insurance — Suicide While Insane. — A policy of insurance provided that “ in case the insured shall die hy his own hands ® * * this policy to he null and void, except that in case he shall die hy his own hands while insane, the amount to he paid hy this company on the policy shall he the amount of the premium actually paid thereon, with the interest.” The insured was found dead with a pistol hy his side, from which the hall which caused his death was fired. In this action to recover the full amount of the policy the plaintiff admitted that the insured was insane at the time of his death, hut denied that he died hy his own hand. Held — That the mere fact that the insured was insane when he took his life, if he did so, is not of itself sufficient to defeat the recovery. In order to defeat a recovery the defendant must show that the insured knew the physical nature of the act he was about.to commit, and that it would result in self-destruction; hut it is not necessary for the defendant to show that he was either legally or morally responsible for his acts.</p> <p>It was error in this caseto instruct the jury that the law presumes that the insured did not intentionally shoot and- kill himself, as no legal presumption arises on such an issue.</p> <p>2. Misrepresentations. — A misrepresentation by the insured in his application will not avoid the policy unless material to the risk. The false statement of the insured that ho never had “vertigo” was not material, as.his trouble was merely temporary, the result of indigestion, and did not affect his general health.</p> <p>3. Same — Estoppel.—Where an insurance agent, with a full knowledge of the facts, causes the assured to make an untrue answer to a question propounded in his application, the company is estopped from relying upon the misrepresentation, in the absence of fraud or bad faith on the part of the assured.</p>

Oase 84 — PETITION EQUITY APPEAL PROM NICHOLAS CIRCUIT COURT. N o brief in record. There exists no right to a homestead unless the claimant is in actual possession, or only temporarily absent with intention to resume possession. (Knevan v. Specker, 11 Bush, 1.)

Case 85 — PETITION OBDINABY APPEAL EROM CARTER CIRCUIT COURT. In an action to recover land, plaintiff must recover, if at all, upon the strength of his own title, and not by reason rof want of title in the defendant in possession. The attornment of a tenant to a stranger is void, unless it be with the consent of the landlord or pursuant to a judgment of a court. (General Statutes, chapter 63, article 1, section 16.)

Case 86 — PETITION EQUITY APPEAL PROM NELSON CIRCUIT COURT. Ají execution lien on land is not lost by delay in selling, when the party seeking to subject the land knew of the lien. (2 Bush, 239; 2 Mon- . roe, 13; Nielson v. Churchill, 6 Dana, 339.) An execution lien may remain good as between the parties, but laches in enforcing it will destroy it as to others, although they 'may have notice of the levy.

<p>Case 87 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The court will take judicial notice of the course of the calendar, and, therefore, that the fifteenth day of March, 1885, was Sunday. (1 Greenleaf s Evidence, sec. 5; 1 Wharton’s Evidence, sec. 282; Minor’s Institutes, vol. 4, part 2, p. 998.)</p> <p>2. If the last day for the performance of a contract falls on Sunday, the time for performance is extended to the next day — Monday. (Hammond v. Am. Mut. Life Ins. Co., 10 Gray, 201; Keits v. Temple, 48 Mo., 75; Barrett v. Allen, 10 Ohio, 426; Avery v. Stewart, 2‘Count., 29; Edmonson v. Wragg, 104 Pa. St., 500; Chicago v. Yulcan Iron Works, 93 111., 292; Muir v. Galloway, 61 California, 498; Long v. Hughes, 1 Duvall, 387; Brown v. McKee’s Rep., 1 J. J. M., 473; L. & N. R. R. Co. v. Turner, 81 Ky., '599; Salter v. Burt, 20 Wend., 205; Campbell v. International Life Ins. Co., 4 Bos., 317.)</p> <p>1. The contract of insurance provided that no action should bo brought except within twelve months next after the occurrence of the fire causing the loss. An action brought on Monday, where the twelve months expired on the Sunday preceding', is barred. (Riddlesbargar v. Hart. Ins. Co., 7 Wall., 386; Woodbury Bank v. Insurance Co., 31 Conn., 517; Roach v. N. Y. & E._Ins. Co., 30 N. Y., 546; Mayor v. Hamilton, &c., Co., 39 N. Y., 45.)</p> <p>2. When the computation of time is from the “act done,” the day on which it is done must be included. (Moar v. Covington, 80 Ky., 306; Childs v. Smith, 13 B. M., 462; Geoghan v. Beeler, 8 Ky. Law Rep., 514; Batman v. McGowan, 1 Met., 543; Bush v. Com., 80,Ky., 251; White v. Crutcher, 1 Bush, 473; Wood v. Com., 11 Bush, 220; Handley v. Cunningham, 12 Bush, 403; Long v. Hughes, 1 Duvall, 387.)</p> <p>3. In computing limitations, final Sundays must be counted. (Cooley v. Cook, 125 Mass., 406; Haley v. Young, 134 Mass., 365.)</p>

<p>1. Indictment — Libel.—An indictment for libel, which charges that the-defendant did “ unlawfully and maliciously compose, write and cause to be printed and published of and concerning ” a certain person or persons the libelous matter set out, is sufficient without stating the mode of publication. The averment that the libel was printed and published is not a mere legal conclusion, but the statement of a fact.</p> <p>2. Same. — -A man may be indicted for a libel on two or more persons where the libel is contained in a single writing, published at onetime and by a single act, without rendering the indictment liable to the objection that it charges more than one offense; for, if the defendant be guilty of as many offenses as there are persons libeled, he-can not complain because the Commonwealth has seen proper to regard the entire publication as one offense. And this is true, although the acts condemned by the libel may have been committed by the-several persons named therein at different times.</p> <p>3. Same. — Under such an indictment the defendant may justify as to the-libel on the one, where the statements are divisible, and plead not guilty as to the libels on the others; but where the defense omits or fails to deny statements in the indictment that are libelous, and attempts to justify other statements, the prosecution has then made out the case, and the defendant will be subjected to punishment for the libel admitted.</p> <p>4. Same — Evidence.—The defendant in this case being indicted for a . libel by reason of the publication of a writing condemning the official action of the sheriff and jury upon the trial of a writ of ad quod damnum, and the action of the circuit judge who subsequently tried the case upon appeal, upon the trial the entire publication was read in evidence over the defendant’s objection. The instructions were based alone on the libelous matter, so far as it related to the action of the judge. Held — That the entire publication was competent, as it would have been, for the purpose of showing the animus of defendant in its publication, if the indictment had been framed alone on the charges made against the circuit judge.</p>

Case 89 — INDICTMENT APPEAL PROM JEPPERSON CIRCUIT COURT. 1. The provisions of the General Statute prescribing penalties for bribery and forgery of poll-books, apply as well to the election of municipal officers as to State, county,'and district officers. (Dillon on Municipal Corporations, sec. 367; March v. Commonwealth, 12 B. M., 25.) 2.

<p>Case 90 — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT</p> <p>No briefs in record.</p>

<p>Case 91 — PETITION ORDINARY</p> <p>APPEAL PROM BOONE CIRCUIT COURT.</p> <p>In case of the renewal of a note with several obligors, when one of the names to the renewal, without the knowledge of the payee, is a forgery, the payee may recover on the original note. (Stratton v. Mc-Makin, 84 Ky., 641; Wait’s Actions and Defenses, vol. 1, 572; vol. ' 6,408.)</p> <p>1. Where there is a successful plea of non est factum to a suit on a note, the plaintiff can not recover on a genuine note of which the note sued on purports to be a renewal without declaring upon the original.</p> <p>2. An agent can not bind his principal as surety for another unless his authority so to do is in writing. (Gen. St., 252; Kagan v. Chenault, '"78 Ky, 545.)</p>

<p>Case 92 — PETITIONS</p> <p>APPEALS PROM CHRISTIAN CIRCUIT COURT.</p> <p>I. A railroad constructed by means secured by subscriptions to its capital stock can not be taxed to pay for those subscriptions, even though the road has passed into the hands of a new company. (Applegate v. Ernst, 3 Bush, 648; Clark County Court v. E., L. & B. S. B. B. Co., MS. Op., April, 1886; O. & N. B. B. Co. v. Daviess County, 8 Ky. Law Bep., 773; L. & N. B. B. Co. v. Warren County Court, ’.5' Bush, 245.)</p> <p>2. As appellant has exactly the road which it purchased from the old company, and the improvements are only such as time and wear and waste have made necessary, to supply other things of the same kind that have worn out, no part of the property is subject to this tax.</p> <p>3. When a party has paid money, through a mere mistake of law, without any legal or moral obligation, he can recover it back in the common law action for money had and received ; and taxes paid through a mistake of law are not exceptions to the rule. Nor does the fact that such a demand was voluntarily paid prevent a recovery. (Underwood v. Brockman, 4 Dana, 310; Bay, &c., v. Bank, &c., 3 B. M. 513; Louisville v. Zenone, 1 Met., 153; Covington v. Powell, 2 Met., 227; Tyler v. Smith, 18 B. M., 799; Louisville v. Henning & Speed, 1 Bush, 38; Louisville v. Anderson, 79 Ky., 334; Cooley on Taxation; Eecheimer Bros. & Co. v. Louisville, 8 Ky. Law Bep.; McMurtry v_ Ky. Cent. B. B. Co., 8 Ky. Law Bep.) Cited on this point in petition for rehearing: Elliott v. Stiirtevant, 10 Pet., 137; Mayor of Baltimore v. Leffirman, 45 Am. Dee., 145, and note; Wait’s Actions and Defenses, vol. 4, pages 486 to 506.</p> <p>4. Interest is not allowable upon taxes. (Amboy, &c., v. Louisville, 79' Ky., 202 ; Cooley on Taxation, page 17.)</p> <p>5. Where one is entitled to recover taxes improperly paid, interest is recoverable from the time the repayment is demanded. (Cooley on Taxation, page 815, and note.)</p> <p>1. The appellant was liable to pay taxes upon its property, levied to pay the principal and interest of the county’s railroad debt, as well as for all other county purposes. (Session Acts, 1867, vol. 1, page 146; lb,, vol. 2, page 553; Act April 3, 1878, Gen. Stats., 1019, ed. 1883; Session Acts 1878, vol. 1, page 68; Session Acts 1879, vol. 1, page 656; Session Acts 1876, vol. 1, page 78.) • ■</p> <p>2. The imposition, modification and removal of taxes, and the exemption of property therefrom, belong exclusively to the legislative branch of the government. (Cooley on Taxation, chapter 11; Gillman v. Sheboygan, 2 Black, 5JO; Meriwether v. Garrett, 102 TJ. S., 472; United States v. New Orleans, 98 U. S., 381; Union Pacific R. R. Co. v. Peniston, 18 "Wall., 5.) ...</p> <p>3. The taxing power of the State is never presumed to be relinquished, but can be relinquished only by express, positive and unambiguous terms, showing an unmistakable intention on the part of the lawmaking power to relinquish, or to exempt from taxation. (Providence Bank v. Billings, 4 Pet., 514; North Mo. R. R. Co. v. Maguire, 20 'Wall., 46; Memphis Gas. Light Co. v. Shelby Co. Taxing District, 109 U. S., 398;. Tennessee v.' Whitworth, 117 U. S., 139; Vicksburg & S. P. R. R. Co. v. Dennis, 116 U. S., 665; E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 233.)</p> <p>4. Appellant can not claim an exemption from taxation by reason of its succeeding to the rights and franchises of the Evansville, Henderson & Nashville R. R. Co. (E., H. & N. R. R. Co. v. Commonwealth, 9 Bush, 438; L. & N. R. R. Co. v. Palmes, 109 U. S., 204; Morgan v. Louisiana, 93 U. S.,217; C. & O. R. R. Co. v. Berry, 112 U. S., 609.)</p> <p>5. The taxes paid by appellant could have been recovered only by action. (E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 239); and, therefore, the payment was voluntary. (City of Louisville_v. Anderson, &c., 79 Ky., 334.)</p> <p>6. Appellee was entitled to interest.</p>

Cask 93 — PETITION EQUITY Appeal prom bourbon circuit court. 1. One can not prosecute an action as next friend for an adult alleged to be of unsound mind, without an order of court authorizing him to do so, nor without a previous judicial finding that the person represented is of unsound mind. (Gen. Stats., chapter 53, art. 1, secs. 1, 2 d 4; Nailor v. Nailor, 4 Dana, 339; Newland on Contracts, 17; 2 Maddocks’ Ohaneery, 728; Shaw v. Dixson, 6 Bush, 645. 2.

Case 8á — PETITION ORDINARY APPEAL EROM JBEEBRSON COURT OE COMMON PLEAS. 1. Defendant’s attempted plea of contributory negligence is insufficient, because it does not state that the alleged negligence of plaintiff was a cause of the injury. 2. This being a case of willful negligence on the part of the railroad company, there could be no plea of contributory negligence. (Claxton v. Lex.

<p>1. Taxes paid under a mistake of law may be recovered back.</p> <p>2. Municipal Taxation.' — The charter of the city of Newport, as amended in 1874, provides that the city council' shall have power to cause to be annually levied and collected an ad valorem tax on the “real, personal and mixed estate within the limits of said city subject to taxation by the city under the laws o'f the State;” and further provides that the assessor shall assess all property in said city “subject to taxation under the provisions of this charter and the laws of the State.” Held- — -That under these provisions the city is authorized to tax money and choses in action as well as visible personal property.</p> <p>3. Same. — The legal sittis of money and choses in action is the domicile of the owner, and although the charter of the city authorizes the taxation of only such property as is “ within the limits of the city,” it includes all such property owned by persons who reside within the city.</p>

<p>Case 96 — PETITION EQUITY</p> <p>APPEAL FROM BATH CIRCUIT COURT.</p> <p>It is a condition precedent to jurisdiction, when the defendant is under fourteen years of age, that there he sex-vice of summons as provided in section 52 of Civil Code. (Loyd v. McCarty, 14 B. M., 543.)</p> <p>Brief not in record.</p>

Case 97 — PETITION ORDINARY TRANSFERRED TO EQUITY— APPEAL FROM FLEMING CIRCUIT COURT. 1. The plea of the thirty years statute is not good, because it does not aver an adverse holding for more than thirty years before the institution of the action. 2.

Case 98 — PETITION ORDINARY APPEAL PROM M’CRACKER COURT OP COMMON PLEAS. A plea in abatement to the jurisdiction of the court for want of service of process is not an entry of appearance for any other purpose than to test that question. (Harkness v. Hyde, 98 U. S., 476; Barbour v. Newkirk, 7 Ky.

<p>Exemption prom Taxation.' — A provision in the charter of a railroad company regulating the mode of assessing its property, and thus exempting it from the general law applicable to other railroad companies, confers a mere personal privilege not transferable by sale or succession. And where a railroad company, whose charter confers such a privilege, sells to another company its property and franchises, an act of the Legislature investing the purchasing corporation “ with all the powers, privileges, rights, immunities and franchises” of its vendor, does not confer upon it the privilege possessed by its vendor as to the assessment of its property.</p>

Case 100 — PETITION EQUITY APPEAL PROM ADAIR CIRCUIT COURT. One who voluntarily pays the debt of another has no right to be substituted to any liens the creditor may have had to secure the debt. (Griffin v. Procter, 14 Bush, 571; Elannary v. Utley, 9 Ky. Law R. 581.) Taking additional security does not release the original security, nor will the renewal of a note release a mortgage executed to secure the payment of the original note.