Volume 89 — Kentucky Reports

Case 1 — PETITION EQUITY APPEAL FROM NELSON CIRCUIT COURT. 1. On the dissolution of an injunction to stay the execution of a judgment there must be an assessment of damages by the court in order to; authorize a recovery on the injunction bond. (Oivil Code, sec. 295 Crawford v. Woodworth, 9 Bush, 747; Rankin v. Estes, 13 Bush, 428; Logsden v. Willis, 14 Bush, 183.) 2.

<p>Case 2 —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>The business of the United States Express Company is commerce, and the statute requiring each of its agents to obtain a license, for which he must pay a fee of five dollars, is a regulation of interstate commerce, and, therefore, in violation of the Constitution of the United States. (Gibbons v. Ogden, 9 Wheat., 19; Passenger Cases, 7 How., 416: State Freight Tax, 15 Wall., 275; Welton v. Missouri, 91 U. S., 280; Ilali v. DeCuir, 95 U. S., 485; Railroad v. Husen, 95 U. S., 469; Telegraph Co. v. Telegraph Co., 96 U. S., 1; Telegraph Co. v. Texas, 105 U. S., 464; Perry Co. v. Pennsylvania, 114 U. 8., 196; Pickard v. Pullman Southern Car Co., 117 U. S., 34; Tennessee v. Pullman Southern Oar Co., 117 U. S., 51; Pargo v. Michigan, 121 U- S-, 230; Steamship Co. v. Pennsylvania, 122 U. S., 326; Bowman v. Railway Co., 125 U. S., 479; Ratlerman v. Telegraph Co., 127 U, S., 411; Leloup v. Mobile, 127 U. S., 640; Brown v. Maryland, 12 Wheat., 419, Moran v. New Orleans, 112 U. S., 69; Attorney-General v. Railway Co., 6 Q.. B. Div., 216; Railway Co. v. Illinois, 118 U. S., 557; Robbins v. Taxing District, 120 U. S., 489 • Asher v. Texas, 328 U. S., 129.)</p> <p>The statutes complained of were passed in the execution of what is known as t)ie police power of the State. (Woodward v. Commonwealth, 9 Ky. Law Rep., 670.)</p> <p>That being true, those statutes are not an infringement of the commerce clause of the Constitution. (Nashville, &c., Railroad Co. v. Alabama, 128 U. S., 97; Smith v. Alabama, 124 U. S., 465.)</p>

<p>Case 3 — PETITION ORDINARY TRANSFERRED TO EQUITY—</p> <p>APPEAL FROM FLOYU CIRCUIT COURT.</p> <p>1. This was an action of ejectment, and the court erred in transferring the case to equity.</p> <p>2. The McNew patent under which plaintiff claims is absolutely void by reason of the fact that it excludes prior grants without describing them. (Hamilton v. Fugett, 81 Ky., 367.)</p> <p>3. This proceeding can not be maintained as a bill of peace, because neither dons it prevent a multiplicity of suits nor has tho plaintiff’s ftlaim the sanction of long or any possession. (Story’s Equity Juris., sec. 853; Mitford’s Equity Pleading, 145-6, cited in Story’s Equity Juris., note to sec. 854.)</p> <p>4. But if plaintiff’s McNew patent were a valid one, his purchase was champertous and no title passed, defendant being in adverse possession at the time of his purchase. (Gen. Stats., chap. 11, sec. 1, p. 231.)</p> <p>5. The statute of limitations affords a complete bar to the plaintiff’s recovery of the land claimed by him. (Gen. Stats., ed. of 1887, chap. 71, sec. 1, note 4 and authorities there cited, p. 881; Idem, chap. 72, art. 2, sec. 1, p. 888, note 3; Idem, notes 7 and 9.)</p> <p>6. The court erred in giving plaintiff judgment for land which ho admitted by his pleadings belonged to defendant.</p> <p>1. The mere fact that a patent contains within its exterior boundary exclusions of prior grants, which are not described and identified in the grant, does not render it void. (Drake v. Ramsey, Hardin, 34; Craig v. Cogar, Idem, 386; Madison’s Heirs v. Owens, Littell’s Select Gases, 281; Scott’s Lessees v. Ratcliffe, 5 Peters, 86; Overton & Reed v. Roberts, 4 Bibb, 154; Yocum v. Renfro’s Heirs, 2 Mar., 395; Thmatón v. Masterson, 9 Dana, 233; Armstrong v. Morrill, 14 Wall., 120; Van Rensselear v. Kearney, 11 How., 297; Sears v. Bryant, MS. Op., June, 1872; Stewart v. Balt, MS. Op.. Sept., 1876; Fairfax’s Devisees v. Hunter’s Lessees, 7 Crunch, 618; Fremont v. United States, 17 How., 545; Rutherford v. Green’s Heirs, 2 Wheaton.)</p> <p>In the case of Hamilton v. Fugett, 81 Ky.. 366, relied on by counsel for defendant, the patent was void for uncertainty, because the exterior lines of the survey were so vague and indefinite as not to be susceptible of definite location; and in so far as that opinion assigns, as a reason for declaring the patent void, that-the exclusions were not described, it should not be followed. Besides, in that case there was a grant of a large quantity of land, with a larger quantity excluded in gross, and it is only in that class of cases that the decision necessarily applies. (Kirk v. Williamson, 82 Ky., 161; Hill-man v. Hurley, 82 Ky., 626; Roberts v. Davidson, 83 Ky , 279.)</p> <p>2. The following rules govern in the construction of land grants: (1) The grants shall be so construed as to give them validity. (2) Grants are to be construed against the grantor and in favor of the grantee. (3)_ If the grant contains exceptions, and they ave uncertain, the grant is good but the exceptions are void. (Armstrong v. Mudd, 10 B. M., 145; Alexander v. Lively, 5 Mon., 159; Charles River Bridge v Warren Bridge, 11 Peters, 557; Viner’s Abridg’t, vol. 14, 149; Shepherd's Touchstone, vol. 1, 250.)</p> <p>3. The patent can not be declared void, except by a direct proceeding on the part of the Commonwealth by scire facias or otherwise. It can not be attacked collaterally. (Taylor v. Fletcher, 7 B. M., 82; Bledsoe's Heirs v. Wells, 4 Bibb, 329; Jennings v. Whitaker, 4 Mon., 51; Marshall v. McDaniel, 12 Bush, 378.)</p> <p>4. The grantee in any case where a patent is declared void has yet a valid entry and survey which vests in him an equitable title of which he can not be divested. (Kirk v. Williamson, 82 Ky., 161; Hillman v. Hurley, 82 Ky., 626; Roberts v. Davidson, 83 Ky., 279; Godlet v. Smithson, 30 Am. Dec., 561.)</p>

Case 4 — PETITION EQUITY APPEAL ESO^E LOUISVILLE LAW AND EQUITY COURT The will of Joseph Enders does not create a trust in favor of appellee. Words of recommendation or request in a will do not create a trust, where the testator expressly declares that no trust is intended. (Hill on Trustees, side p. 72; Perry on Trusts, sec. 115.) This case does not come within the rule laid down in Bohon v. Barrett’s Ex’r, 79 Ky. 1.

Case 5 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. The testator did not intend that the estate devised to his wife for life should be divided until her death. Until then, it cannot be ascertained who will fill the description of “her lawful heirs.” The right of any heir apparent is contingent upon his surviving the life-tenant.

<p>1. Taxation op Street Railways. — By one section of a city ordinance there was granted to a street railway company the exclusive privilege of constructing and operating a street railway over certain streets of the city, and by another section of the same ordinance it was provided that said company should pay into the city treasury “ the sum of ten dollars annually for each and every car run and operated upon said railway.” Held — That the ten dollars per car is, in no sense, a tax, but a bonus for the franchise granted to the company, and, therefore, a clause of the city charter providing that “merchants and others paying a license or specific tax on their business or calling shall be exempt from an ad valorem, tax thereon,” does not exempt the street railway company from the payment of an ad valorem tax upon its property.</p> <p>2. Penalties eor Eailure to Pay Taxes When Due. — Where taxes are due semi-annually, and a penalty is provided for failure to pay when due, each one-half year’s taxes, with the penalty, should not be added to those of the next half year, and then a penalty counted upon the aggregate; but the penalty should be counted upon and added to each half year’s taxes merely.</p>

<p>Case 7 — PETITION ORDINARY</p> <p>4PPEAL FROM OWEN CIRCUIT COURT.</p> <p>Ice having been placed in an ice-house, built above ground, was, by its very nature, essentially a chattel, being- incapable of annexation; and, by no reasonable intendment, a permanent accession to the freehold, and not a fixture, hut an emblement, and, therefore, the property of the appellant.</p> <p>To constitute a thing a fixture, so as to pass with the realty, there must he actual or constructive annexation, adaptation to the use to which the realty is applied, and intention on the part of the person making- the annexation that it shall he permanent. (Bouvier’s Law Dictionary; Amos & Ferard’s Law of Fixtures, 2; Ewell’s Law of Fixtures, 293, 10; 'Washburn on Real Property, 17; Blackstone, vol. 2, p. 281; Kent’s Commentaries, vol. 2, p. 409; Elwes v. Maw, Smith’s Leading Cases, 238; Hill on Fixtures, 13; Broom’s Legal Maxims, 404; Clemens v. Wood, L. R., 3 Exch., 257, 260; Trappes v. Harter, 3 Tyr., 603; Cook, &c., vl Champlain Transp. Co., 1 Denio, 102; Sweetzer v. Jones, 35 Vermont, 322; Johnson v. Wise-man, 4 Met., 359; Clore v. Lambert, 78 Ky.; Thomas v. Crout, 5 Bush, 39; Gray v. Oyler, 2 Bush, 256; Blackstone, vol. 4, page 223; Williams on Executors, vol. 1, p. 450; Blackstone, vol. 2, p. 123; Washburn on Keal Property, 118, 19, 20 and 21; Ewell on Fixtures, 246 to 270, inclusive; Blackstone, vol. 2, p. 403.)</p> <p>While the law of fixtures is construed most favorably for a tenant, it is construed most strongly against a vendor; and, considering the use of the property sold in this case, the season of the year, and. the fact that there was no reservation of the ice, it is clear that it passed with the land. (Kent’s Commentaries, vol. 2, p. 409; Trappes v. Harter, 3 Tyr., 603; Cook v. Champlain Transp. Co., 1 Denio, 102; Parsons on Contracts, vol. 1, p. 431; Johnson v. Wiseman, 4 Met., 358; Fairis v. Walker, 1 Bail., 540.)</p>

Case 8 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT. The personal representative may recover under section 3 of chapter 57, General Statutes, although there is neither widow nor child. The intention of the Legislature must prevail, and that intention must be ascertained by the canon of construction provided by section 17 of chapter 21, General Statutes. Therefore, the word “ heir ” must be given the peculiar and appropriate meaning which it has acquired in the law.

Case 9 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. 1. Appellant was bound to make defense in good faith to the suit of Nancy Walls and others against himself; or, failing in that, assumed the burden of showing that the title to which he surrendered was actually paramount to that he derived from his vendor. His failure to make defense was at his peril. (Sedgwick on Damages, pp 175-6.) 2.

<p>‘Construction op Devise — Lipe Estate. — A testator devised to his son “ and to his children, the heirs of his body,” a tract of land, which he referred to in a subsequent part of the will as the land “ I have given my son.” Held — That the son takes only a life estate, remainder to his children.</p>

<p>'Sureties — Cancellation of Note Induced by Praud of Principal —Surety Released by Laches of Creditor After Notice of Praud. — The cancellation of a note upon which a surety is bound does not have the effect to release the surety where the creditor was induced by the fraudulent representations of the principal obligor, to ■cancel the note; but the laches of the creditor, after he has notice of the fraud, or his release of any indemnity he has received, may have the effect to release the surety.</p> <p>A debtor who was about to make an assignment for the benefit of his creditors, desiring to save his brother, who was his surety in a note, proposed to the payee of the note that if he would release the surety and extend the time for the payment of the note five years, he would have his wife secure the debt by a mortgage on her land, which both he and his wife represented was free from incumbrance. The creditor accepted this proposition, and a note payable in five years was executed, secured by a mortgage executed by the wife as agreed. The note upon which the brother was bound as surety was canceled in his presence. It was discovered by the creditor the next day after this transaction that the legal title to the mortgaged land was in the husband, and also that it was incumbered to such an extent that it would satisfy but a small part of the mortgage debt; but, notwithstanding this discovery, the surety received no notice that the creditor would look to him for payment until this action was instituted about five months after the creditor had notice of the fraud, the creditor having, in the meantime, released the mortgage executed to him by the principal obligor and his wife. Held — That the surety is released by reason of the laches of the creditor after he had notice of the fraud, and also by reason of the release of the mortgage, winch would have afforded the surety some indemnity after the satisfaction of prior incumbrances, for while the legal title was in the husband, he hold it in equity for the wife; and the court will not inquire in such a case whether the surety could have obtained indemnity if it had not been for the laches of the creditor.</p>

<p>Case 12 — PETITION EQUITY</p> <p>APPEAL PROM CARTER CIRCUIT COURT.</p> <p>1. The title hond executed by appellees hound them to make to appellant Day a deed of general warranty. (Hedges v. Kerr, 4 B. M., 526; Andrews v. Word, 17 B. M., 520; Fleming v. Harrison, 2 Bibb, 171; Vanada v. Hopkins, 1 J. J. Mar., 293.)</p> <p>2. The judgment is erroneous, if for no other reason, because there is no recover}1" against Shumate, who is in possession of the land, and the judgment would not ho a bar to an action by him to recover the land.</p>

* Cash 13 — APPEAL PROM CLAY CIRCUIT COURT. 1. The rule of this court giving to the appellee the right to a non-suit upon the failure of the appellant to appear upon the calling of the cause cannot be applied to appeals in criminal cases. If the personal appearance of the prisoner is dispensed with in appellate courts, he must be there represented by counsel, and the denial to the prisoner of both personal presence and counsel is a violation of his constitutional rights.

* Oase 14 — PETITION EQUITY 1. The same transaction which deprived Spalding and Mattingly of the slop at B. E. Mattingly’s distillery also deprived them of the means by which they might have used to advantage slop procured elsewhere in the market, so that they were prevented from purchasing elsewhere, and the effect to them is as if no slop could have been procured at all.

<p>* Case 15 — PETITION EQUITY</p> <p>APPEAL EROM LOUISVILLE CHANCERY COURT.</p> <p>. 1. The warehouse statute intended to make warehouse receipts “ negotiable,” so that they would pass freely, without being- subject to secret liens or equities of others; and lienee provided that “if encumbered bjr prior lien,” the “character and extent” of that lien “shall” be “fully set forth and explained in the receipt.” (Acts 1869, vol. 1, page 57.)</p> <p>2. The negotiable receipt in this ease was negotiated to the bank for full value, and the bank had no actual notice that there was any other or prior lien on the whisky the receipt represented, but was informed by the pledgeor, Wolf, and believed, that the whisky was free of all lien, and that the title was perfect and unencumbered.</p> <p>3. The words in the receipt “deliverable to the holder upon surrender to me of the same, and payment of the purchase price of said whisky,” did not reserve or create a prior lien, because the “ extent ” of tlie unpaid purchase money was not “fully” or at all “set forth and explained in the receipt.” (Greenbaum v. Megibben, 10 Bush, 422.)</p> <p>4. It is no answer to this to say that the words in the receipt put the bank upon “inquiry.” and required it to find out, from outside sources, the extent of the alleged lien. The statute requires the extent to he “fullj' ” set forth “in the receipt” itself. Nothing less than the precise notice required in the statute will sustain the lien. (Pearce v. Hall, 12 Bush, 212; Long v. Burk, 2 Bush, 90; Fousliee v. Grigsby, 12 Bush, 75.)</p> <p>5. To reserve a valid lien in a deed to land, the amount of the debt must be set forth in the deed; and so of a lien on personalty, and so as to a mechanic’s lien. There is still greater reason that the amount of the debt must he “ fully ” set forth “ in the warehouse receipt ” before its negotiability will bo thus lessened. Merely stating that “ the purchase price” is still unpaid is insufficient. (Long v. Burk, 2 Bush, 91; Gritton v. McDonald, 3 Met., 253; Pearce v. Hall, 12 Bush, 213.)</p> <p>1. By the common law no one could obtain possession of the whisky in controversy without first paying appellee the purchase price thereof.</p> <p>The purchaser of goods can not demand delivery of the goods without alleging that he is ready and willing to pay the purchase price. (Benjamin on Sales, sec. 677.)</p> <p>2. Appellant accepted the pledge of the receipts with full notice that the purchase price was unpaid, and must he paid before the whisky would be delivered, and such a pledgee has no standing in a court of equity as against the former owner having a lien for unpaid purchase money. (Morton v. Robards, 4 Dana, 258; Bailey & Carter v. Welch, 4 B. M, 244.)</p> <p>3. The warehouse receipts are good common law warehouse receipts, and . the lien for unpaid purchase money is sufficiently retained therein.</p> <p>Section 5 of the act of 1809 does not apply to this case. That section applies only where one issues a warehouse receipt for his own goods.</p> <p>4. Even if these receipts are governed by section 5 of the act of 1869, still the lien is sufficiently retained. (Greenbaum v. Megibben, 10 Bush, 419; Cochran, &c., v. Ripy, 13 Bush, 550; Commonwealth v. Mason, 5 Ky. Law Rep., 248.)</p> <p>5. It is no excuse that the holder of such a receipt accepted it without reading it. The court will not relieve against such inattention. (L. & N. R. Co. v. Brounlee, 14 Bush, 599.)</p> <p>6. So far as the decisions under the registration laws are analogous to this case, they are against the appellant. (Johnston v. Gwathmey, 4 Litt. 320; Thornton v. Knox, 6 B. M., 74; Tierman v. Thurman, 14 B. M.’ 279.)</p> <p>The case of Pearce, Tolle & Holton v. Hall, 12 Bush, 210, com- ■ meuted on.</p>

* 16 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT. 1. If, admitting all the evidence for plaintiff to be true, and every fact fairly deducible therefrom, the plaintiff has made out his case, it is error to instruct the jury to find for defendant.

* Case 17 — PETITION EQUITY APPEAL FROM WOODFORD COURT OF COMMON PLEAS. Davenport is a competent witness.

<p>* Case 18 — PETITIONS EQUITY</p> <p>APPEALS PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. Where a penalty is imposed by a tax law, such as forfeiture of the-lands, the law should be strictly taken; but where nothing is demanded beyond the citizen’s fair share of the public burdens, tlieconstruotion should be liberal. Curative acts, like those of April 25, or May 12, 1884, should be liberally construed, because it is the evident intent of the law-maker to get rid of technicalities, which stood in the way of the full collection of taxes. The same canon will apply to the curative sections of the charter amendment of March 29, 1882, in which this intent is avowed.</p> <p>This court has lately shown its displeasure at quibbles against municipal taxes (Greer v. City of Covington, 7 Ily. Law Kep.), and has also undertaken to act with some liberality upon a title-closely resembling a tax title. (Paúl v. Smith, 6 Kv. Law Kep., 532.)</p> <p>2. The taxes for 1877, 1878 and 1879 wore “ re-assessed ” under the fifth section of the act of March 29, 1882. The assessor exercised his judgment, and the result of his judgment was put into form, which was all that was required to sustain the levies.</p> <p>By requiring that the board, made up by section 5, should be “ in continuous session,” it was only intended that it should sit when called on.</p> <p>3. The Legislature may extend the period of limitation as to a cause of action which is not yet barred by the law in force. Therefore, the extension of time as to the taxes for 1877 and the subsequent years is good.</p> <p>The fact that the board of “ 4,” under the act of March 29, 1882, has never met is immaterial, for it may meet yet; it may meet at any time, even after judgment and before the tax is paid, and reduce its amount. This act has not been repealed. On the contrary, the curative act of May 12, 1884, undertakes to aid it. Such a provision is sufficient. (Hagar v. Reclamation District, 111 U. S., 701)</p> <p>A hearing before a board of review is not a constitutional requirement. (McMillan v. Anderson, 95 U. S., 42.)</p> <p>4. Whatever steps the Legislature could have dispensed with originally, it may dispense with by retrospective act, provided the tax-paver is given the opportunities for hearing, for payment before sale, for redemption, &c., afterward, that he is constitutionally entitled to. (People v. Lynch, 51 Cal., 1; Cross v. Milwaukee, 19 Wis.; Tallman v. Janesville, 17 Wis., 71 ; Smith v. Cleveland, 17 Wis., 556-565.)</p> <p>5. Under the curative act of April 25, 1884, no judgment can be rendered for the newly imposed arrears, until a new board of equalization has met, and the members of this board must be elected by the board of aldermen of Louisville. Therefore, the act does not violate the rule that local bodies must tax themselves. (Pairfield v. The-People, ex rel M’Crea, 94 111., 291.)</p> <p>6. A legislative assessment is not necessarily void. (Evansville R. Co. v Commonwealth, 9 Bush.)</p> <p>7. The terms of the act have been complied with. The notice given by the board of equalization on the 24th of July, 1884, for the meeting on that day, was sufficient. It was not necessary that the notice should be given by the board in its organized capacity; but even if this was-necessary, the board ratified the notice published in the Courier-Journal by spreading it on its minutes, and it became, from that time, a lawful notice. The notices in the Ormsby case (4 Ky. Law Bep., 711) were different from the notice in this case.</p> <p>The act of February 14, 1866, says: '“The board shall cause to be published.” The new law says: “They shall give notice.” Where a provision in a statute has received a judicial construction, and is afterwards inserted in another statute, the same construction will bo given to it. But if the clause varies, it shows a different intent on the part of the Legislature. (Blackwell’s Buies of Construction; 1 Pick., 154-5; Mass.,'462.)</p> <p>The board was both organized and sworn when it gave validity to the notice at the board meeting. But even if the giving of the notice was complete when it was published in the Courier-Journal, and the subsequent action of the board could not aid it, the fact that the members of the board were not sworn when they gave the notice did not render it void. There is no reason for withdrawing this case from the general rule that the acts of de fació officers are valid. (People v. Collins, 7 Johnson, 549; Bice v. Commonwealth, 3 Bush, 14; Rodman v. Harcourt, &c., 4 B. M., 224; Patterson v. Miller, 2 Met., 496; Morgan v. Yanee, 4 Bush, 325; Horn v. Lockhart, 17 • Wall., 570; Cooley on Taxation, 190, 191; Blackwell on Tax Titles, pp. 98, 99; Tucker v. Aikin, 7 N. H., 107-140; Smith v. Messer, 17 N. H., 429; Hale v. Cushing, 2 Greenleaf, 218; Donner v. Wood-bury, 19 Vt., 329; Spear v. Ditty, 8 Vt„ 419; Allen v. Armstrong, 16 Iowa, 108; Washington Co. v. Miller, 14 Iowa, 584; 38 Miss., 692; Benkendorf v. Taylor, 4 Pet., 212.)</p> <p>8. It is no objection to the assessment books for 1883 and 1884 that they were not signed. A signature is no part of the form prescribed by the statute, and a signature is necessary only where the statute requires it. (Lacy v. Davis, 4 Mich.) A signature of municipal records in general is not necessary. (Slaughter v. Hudmon, 70 Ala., 546.) And an unsigned private writing is as binding as one that is signed. (Farmer v. Gregory & Stagg, 78 Ky., 475.)</p> <p>9. The omission of some articles of personalty in the levy ordinances for 1883 and 1884 does not avoid them. Nor did the attempt of the general council to exempt residuary from some of the rates avoid the levy. At all events, the tax bills for 1883 and 1884 on lands and improvements would be good for the 72 and 70 cents imposed on residuary. (Kersey v. Supervisors of Milwaukee, 16 Wis.)</p> <p>If the body of an act is legal, and a saving clause or exception is illegal, the exception should be rejected. (Rash v. Holloway, 6 Ky. Law Rep.)</p> <p>If an illegal exemption does not increase the amount which others are taxed, they are not injured. If it does, their remedy is by mandamus to compel the city authorities to assess all the property liable to taxation. At all events, the omission should not have the effect to vitiate the whole tax list for the year. (Dillon on Municipal Corporations, vol. 2, secs. 776, 779; People v. McCreeny, 37 Cal., 243; Dunham v. Chicago, 55 111., 357; Schofield v. Watkins, 22 111., 66; Merritt v. Harris, 22 111., 303.</p> <p>10. The assessments for the years 1883 and 1884 were good from the start. The non-existence of a lawful equalization board did not excuse assessed property-owners from filing their written complaints. The boards appointed by the mayor were at least good de facto boards in November, 1882 and November 1883 (for, 1883 and 1884), and the ordinary rules, as to the validity of all acts of de facto officers, apply.</p> <p>11. But if the original assessments and bills for 1883 and 1884 were not good, there is no trouble under the curative act of May 1, 1884. It is no objection to the proceedings under this act that only two members of the board were present at the first sitting. Two members were a quorum, which was all that was necessary in order to begin business. (Wright v. Commonwealth, Am. and Bng. Corporation Cases, vol. 11, p. 609.)</p> <p>12. Section 18 of the act of April 8, 1884, which provides that all courts in the county of Jefferson shall take judicial notice of the passage and contents of each ordinance of the city of Louisville, is not in violation of the Constitution of Kentucky. There is nothing in the Constitution requiring that the same rules of evidence should prevail in all courts of the Commonwealth as to judicial notice and pleading of ordinances. (March v. Commonwealth, 12 B. M., 28; Ourboy v. Iowa City, 2 Iowa, 95;' Preston v. Roberts, 12 Bush; Dillon on Mun. Corp., section 413; 24 N. J. L., 142, 145.)</p>

<p>* Case 19 — PETITION—</p> <p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>1. The undenied allegations of appellants’ pleadings show that the notes sued on bear or carry with them a usurious rate of interest, and, therefore, the j udgment should be affirmed on the cross-appeal.</p> <p>2. Appellee, by charging usury, forfeited the right to recover any interest whatever. (Revised Statutes of United States, secs. 5197, 5198; Bar. nett v. National Bank, 8 Otto, 555; s. c. 2 Brown's National Bank Cases, p. 18; Eirst National Bank of Uniontown v. Stauffer, 2 Brown's National Bank Cases, p. 178; s. c. 1 Eed. Rep., 187.)</p> <p>1. The burden of proof was upon appellants to show that the notes sued on contained usury, which they failed to do.</p> <p>2. There is nothing in the statute relied on by appellants which forfeits interest after maturity. The statute annuls the contrató for interest, where the rate stipulated for is usurious; but does not affect the interest that the note bears by operation of law. (Revised Statutes of United States, secs. 5197, 5198.)</p> <p>The statute being penal in its nature, and out of harmony with our State statute upon the subject of interest, this court will give it a strict construction. (Newell v. National Bank of Somerset, 12 Bush, 59.)</p> <p>This statute has been considered in the following cases: Tiffany v. National Bank, 18 Wall., 409; Earmers’ National Bank v. Dealing, 91 U. S., 30; Barnett v. National Bank, 98 U. S., 555; Driesbach v National Bank, 104 U. S., 52; National Bank v. Johnson, 104 U. S., 271.</p>

* Case 20 — APPEAL PROM MARION CIRCUIT COURT. 1. Exemptions from taxation, embodied in the charter of a railroad com. pany, in consideration of the “public services” which those companies are supposed to render, will be upheld, although always rigidly construed, (The Delaware Railroad Tax, 18 Wall., 206; West Wis. R. Co. v. Supervisors, &c., 93 U. S., 595; Ky.

Case 21 — APPEAL PROM TAYLOR CIRCUIT COURT. The allegation in the indictment that defendant took his “corporal oath” was mere surplusage, and not necessary to be proved. (Commonwealth v. Howard, 3 Met., 408; Robinson v. Commonwealth, 16 B. M„ 615.)

Case 22 — APPEAL FROM FLEMING CIRCUIT COURT. 1. Roth the letter and the spirit o'f the act prohibiting the sale of liquor in Fleming county prohibit druggists from selling oven for medicinal purposes upon the prescription of a physician. 2. The Legislature has the power to restrict the right to sell liquor for medicinal purposes to a particular class of persons, and therefore may provide that physicians alone shall have that right.

<p>Case 23 — FORFEITED BAIL BOND</p> <p>APPEAL PROM DAVEISS CIRCUIT COURT.</p> <p>The discharge of the jury in the absence of the accused operated as a bar to any further prosecution of the accused .for the offense charged in the indictment. (State V. Wilson, 19 Am. Rep., 719; Nolan v. State, 21 Am. Rep., 281; Criminal Code, sec. 183.)</p> <p>Therefore, there was no longer any prosecution pending against him upon which he could have been tried, even if be had appeared at the time his bond was declared forfeited, and, therefore, the appellants are not liable on his bail bond. (Commonwealth v. Overby, 80 Ky., 2Í2.)</p> <p>1. Even if the accused was deprived of a constitutional right, by the discharge of the jury in his absence, it affirmatively appears that he was not prejudiced, and, therefore, it did not operate as a bar to a further prosecution. (Meece v. Commonwealth, 78 Ky., 586; Rutherford v. Commonwealth, 78 Ky., 639.)</p> <p>2. But even if the action of the court in thus discharging the jury would have been a bar to a further prosecution, the sureties in the bail bond have no right to make the plea.</p> <p>The purpose of the bond was to secure the presence of the accused. ("Walker & Hubbard v. Commonwealth, 79 Ky., 292.)</p> <p>The case of Commonwealth v. Overby, 80 Ky.,, 208, commented' on, and distinguished from this case.</p>

Case 24 — APPEAL PROM HARLAN CIRCUIT COURT. While the indictment contains some surplusage, it contains all of the elements necessary to make it a good indictment.

Case 25 — APPEAL PROM ■WARREN CIRCUIT COURT. The children of Mary Jane Dickison did not acquire such an interest under the will of Thomas Rogers as can be subjected to the payment, of their debts. The children of Mary Jane Dickison took a contingent interest under-the will of Thomas Rogers, which may be subjected to the payment of their debts. (Gen. Stats., sec. 1, p. 426.)

<p>Case 26 — PETITION EQUITY</p> <p>APPEALS EROM CAMPBELL CHANCERY COURT.</p> <p>1. There is no proof in the case whatever, either showing or tending to show any realization by appellants from legal services by appellee. Proof that appellants wrongfully prevented appellee from securing for them a realization oh their claims would be competent if the actions were based upon a quantum meruit, but is valueless in a suit on the contract.</p> <p>2. The Louisville and Nashville Eailroad Company is a bona, fide purchaser, without any notice of the attorney’s lien. Prosecution of the suit by the attorney is not constructive notice to a stranger that he has a lien for his fee. (Stephens & Hermes v. Parrar, 4 Bush, 13; Isom v. Bell & Wilson, 7 Ky. Law Bep., 589 ; Fillmore v. Wells, 10 Col., 228, 3 Am. St. Bep., 567; Humphrey v. Browning, 46 111., 476,95 Am. Dec., 446; Andrews v. Morse, 12 Conn., 444, 31 Am. Dec., 572; Bumerill v. Huntington, 5 Day, 163; Bobertson, &c., v. Shutt, 9 Bush, 662; Gager v. Watson, 11 Conn., 168; Martin v. Hawks, 15 John., 405; Welsh v. Hole, Douglass, 238; Eeed v. Dupper, 6 T. R., 361; Pinder v. Morris, 3 Cal., 166; Andrews v. Morse, 12 Conn., 444; Willis, &c., v. Yallette, 4 Met., 186.)</p> <p>3. In order to make a case against the Louisville and Nashville Railroad Company, which was necessary to sustain the jurisdiction of the chancellor, the plaintiff should have alleged in his pleading that the Louisville and Nashville Railroad Company is not a bona fide purchaser without notice. (Bassett v. Nosworthy, Leading Cases in Equity, vol. 2, part 1, 4th Am. ed.; Sullivan’s Heirs v. Bates, &c., 1 Litt., 41; Mason, &c., v. Reck, 7 J. J. Mar., 300.)</p> <p>4. The suits were not brought in the proper county. No suit of this charaetei; can be brought against appellant in any county in this State except in 4 efferson county, where appellant has its office and place of business, and where its vice-president, its chief officer in this State, resides. (Civil Code, secs. 51, 72, 73, 78, 80. 732.)</p> <p>5. The suits brought by appellee against Morton and Morion & Company, in the Jefferson Court of Common Pleas, seeking a personal judgment-for the money claimed in this suit, was a waiver of the lien he novr asserts.</p> <p>1. The statute giving the attorney a lien is not only notice to the judgment debtor, but to any person who deals with or concerning the judgment, that the attorney has a lien. It is a matter of record that all persons who touch it in any manner must obseiwe; and the lien follows the judgment in every transition until it is satisfied. It can not matter how many changes have been made, as long as the judgment can he traced the lien exists and may he enforced. (Gen. Stats., chap'. 5, art. 1, sec. 15; Stephens, &c., v. Farrar Brothers, 4 Bush, 13; Wood v. Anders, 5 Bush, 001; Reid & Stone v. Punch, 2 Ky. Law Rep., 62; Robertson & Oleary v. Shutt, 9 Bush, 661.)</p> <p>2. The institution of the ordinary actions in the Jefferson Court of Common Pleas was not a waiver of appellee’s lien.</p> <p>8. The venue is transitory, and roaches the railroad company in any county where it is served with summons.</p> <p>4. Morton & Co. and Morton have each appeared and answered the amended and supplemental petition without any service of summons, and have thereby confessed the jurisdiction of the court.</p> <p>5. As the Louisville and Nashville Railroad Company has appeared and answerered to the merits, it is now too late to raise any question as to the summons issued and served on that company in Campbell county, even if such service be irregular. (Thomas & Pattie v. Warford, 1 Bibb, 261; Reading v. Ford’s Heirs, 1 Bibb, 338; Starling & Davis v. Hardin, 2 Bibb, 520; Frankfort Bank v. Anderson, 3 Mar., 2; Duff v. Combs', 8 B. M., 386.)</p> <p>•6. Appellee’s services contributed to the realization in stock of the full claims of John P. Morton & Co. and John P. Morton, and under the ruling of this court in Simrall v. Morton (MS. Op., Jan. Term, 1885), he is “ entitled to recover under the contract,” and has his attorney’s lien for ten per centum of the value of the stock realized.</p> <p>7. Exceptions to orders sustaining demurrers to answers came too late, (Carroll’s Code, sec, 334; Beavan v. Phillips, 83 Ey., 88.)</p>

<p>Case 27 —</p> <p>APPEAL PROM HARDIN CIRCUIT COURT.</p> <p>The indictment is not sufficient. It should have alleged facts showing the authority to pass an ordinance forbidding the sale of whisky, that such an ordinance had been passed by the proper authorities, naming them, and that the police judge was a person authorized to administer an oath to appellant. In the absence of such allegations, it does not appear that the subject which the police court was investigating was one in which appellant could be legally sworn, or that the oath was administered by an officer having authority to administer it. (Roundtree v. Roundtree, Sneed, p. 56; Gen. Stats., chap. 29, art. 8, sec. 2.)</p> <p>By the authority of the general law police judges may administer oaths; and all towns may pass such ordinances for the government of the town as are not inconsistent with the Constitution and general law of the land. (Gen. Stats., chap. 107, art. 3, sec. 1.) Therefore, the allegations of the indictment make a prima facie case, both as to the authority to pass the alleged ordinance, and.the jurisdiction of the court, which is all that is required. (Biggerstaff v. Commonwealth, 11 Bush, 172.)</p>

Case 28 — APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. 1. The section of the Civil Code, 477, which defines the writ of mandamus, as treated of in the Code, does not exhaust the power of the courts to issue a mandamus. That section relates only to the writ of mandamus as treated of in chapter 12 of the Code, which is the mandamus as an original proceeding.

Case 29 — PETITION EQUITY APPEARS PROM KENTON CHANCERY COURT. 1. The devise of the note itself to N. B. Stephens as trustee vested the title thereof in him, and as to him canceled that obligation to pay the money, and put the liability to pay the same upon him as trustee solely. (2 Redfield on Wills, subsee. 2 of sec. 10, chap. 1.) 2. One cannot at the same time claim under and against a will.

<p>Case 30 — PETITION ORDINARY</p> <p>APPEAL PROM LOGAN CIRCUIT COURT.</p> <p>1. The petition is insufficient, because it does not aver that the owner of the land had not received compensation for fencing. It merely avers that the plaintiff occupied the land, and that he had not received compensation for fencing it.</p> <p>;2. The statute, by virtue of which the plaintiff seeks to recover (section '2 of chapter 57, General Statutes) is unconstitutional</p> <p>Where a person in the performance of a lawful act causes an injury to the person or property of another, he is not liable in the absence of negligence. (L. & F. B. Co. v. Milton, 14 B. M., 61; Hartsman v. 0. & L. B. Co., 18 B. M., 221; Morrison v. Thurman,. 17 B. M., 260; Brown v. Kendall, 6 Cush., 292; Wakeman v. Bohinson, 1 Bing., 213; Vincent v. Stenehour, 7 Vt., 69; Strongs v. Whittlesey, 41 Conn.; Clarke v. Foote, 8 Johns., 422; Simons v. Monier, 29 Barb., 419; Stuart v. Handley, 22 Barb., 619; Bizzell v. Booker, 16 Ark., 308; Lansing v. Stone, 37 Barb., 15; Hinds v. Barton, 25-N. Y., 544; Brown v. Collins, 53 N. H., 422; Sheldon v. Sherman, 42 N. Y., 484; Levezzey v. Philadelphia, 64 Penn., 106; By an v. N. Y. C. B. Co., 35 N. Y., 210; Gault v. Hume, 20 Md„ 297.)</p> <p>And any statute which singles out railroad corporations, and makes them liable for losses resulting to others from the lawful use of their property, without fault or negligence on their part, while other classes, of citizens are by law granted immunity from such liability, is a denial of “the equal protection of the laws” to one class of citizens, and deprives them of their property without “due jjrocess of law,” and is, therefore, in violation of both the State and Federal Constitutions. (Federal Const., art. 14, sec. 1; Idem, art. 5; Const, of Ky., art. 13, seos. 1, 2, 3; Cooley’s Const. Limit., pp, 433, 437; Missouri Pacific B. Co. v. Humes, 115 U. S., 512; Atchison & Nebraska B. Co. v. Baty, 5 Neb., 37; 29 Am. Bep., 356; Hancock Stock and Fence Law Co. v. Adams, 10 Ky. Law Bep.)</p> <p>There is no legal obligation resting upon appellant to fence any part of its road in this Commonwealth (L. & F. B. Co. v. Milton, 14 B. M., 01; Hartsman v. 0. & L, B. Co., 18 B. M., 221), and, therefore, it cannot bo required to compensate or pay adjacent land-owners, the cost of fencing their lands along its right of way.</p> <p>In consideration of the powers and privileges which the Legislature-confers upon a corporation, it may impose such liabilities and re- , strictions as it deems proper. Therefore, section 2 of chapter 57 of the General Statutes is not in violation of the Constitution. (Mortimer v. L. & N. B. Co., 10 Bush, 480; O’Bannon v. L., C. & L. B. Co., 8 Bush, 350; Townsley v. Missouri Pac. B’y Co., 1 S. W.. Bep., p. 15 and note; Donovan and others v. Hannibal & St. J. B. Co., Id., p. 232; Beckdolph v. Grand Bapids & I. B., 1 Northeastern Bep., p. 686.)</p>

<p>Pinal Order. — An order transferring- a case from one court to another of the same government, invested with like jurisdiction, is not f, final order, and an appeal does not lie.</p>

Case 32 — APPEAL PROM HARLAN CIRCUIT COURT, 1. The court erred in refusing a continuance. Section 189 of the Criminal ' Code is unconstitutional in so far as it provides that the accused may he forced into trial in the absence of material witnesses. (Constitution of Ky., art. 13, sec. 12; Taylor v. Commonwealth, 9 Ky. Law Rep., 317; Commonwealth v. Jones, 10 Bush, 327.) 2.

Case 33 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERT COURT. 1. The ordinance of November 5, 1886, did not authorize the city of Louisville to institute this action; it merely authorized the appearance of the city to be entered to any action that might be instituted to have the street closed. 2. The act of 1866 limited to the city alone the right to institute such a suit, and, therefore, said ordinance is in conflict with that statute.

<p>Contract to pay Money in Consideration oe Payee Abstaining prom use oe Tobacco. — An agreement to pay money in consideration of tile payee abstaining from the use of that which he has the legal right to use is supported by a sufficient consideration, and will be enforced.</p> <p>A grandmother and. her grandson executed a writing by which the former agreed to give the latter five hundred dollars at her death if he would never take another chew of tobacco or smoke another cigar during her life, the grandson agreeing to refund double the amount to his mother if he should break the pledge. The grandmother having died, the grandson brings this action against her administrator to recover the amount named, alleging the performance of the contract on his part. Held — That the plaintiff is entitled to recover.</p>

Case 35 — APPEAL PROM DAVEISS CIRCUIT COURT. 1. The appellant being indicted for forgery alleged to have been committed by signing the name of another, it was error to instruct the jury that they might find him guilty if he caused the name to be signed. The instruction allowed him to he found guilty under facts showing him to have been a mere accessory before the fact.

Case 36 — PETITION ORDINARV APPEAL PROM HARRISON CIRCUIT COURT. 1. The administrator of a person killed by a railroad company can maintain an action for such killing under section 1, chapter 57, Genera] Statutes, although the decedent left neither widow nor child. The case of Henderson’s Adm’r v. Ky. Cent. R. Co., 9 Ky. Law Rep., was an action under section 3 of chapter 57, and therefore has no application. 2.

Case 37 — PETITION EQUITY APPEAL PROM TRIMBLE CIRCUIT COURT. Appellant is entitled to be reimbursed for what he has spent in improving the land and in discharging encumbrances. Held: then no action or defense originating- in that alleged fraud can be maintained.

Case 38 — APPEAL PROM TAYLOR CIRCUIT COURT. 1. The Commonwealth was entitled to a judgment by default. (Commonwealth v. Cheek, 1 Duv., 26.) 2. The act of April 10, 1878, authorizing a jury to provide for punishishment at hard labor for the failure to pay a fine is not a discrimination against the poor, and violates no provision of the Constitution.

<p>Case 89 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. In determining whether or not a statute is constitutional, all doubts in the mind of the judge must result in favor of the validity of the law. (Louisville v. Hyatt, 2 B. M, 178; McReynolds v. Smallhouse, 8 Bush, 454.)</p> <p>2. The Legislature has the power to exempt the water-works property from taxation upon the ground that it is held, owned and used by the city the more efficiently to serve the public.</p> <p>The case of Louisville v. Commonwealth, 1 Duv., 595, does not decide that the Legislature has not the power to exempt property so held by a municipal corporation.</p> <p><5. But conceding that the water company is a private corporation, it • renders public services, and the Legislature may, in consideration of that fact, exempt its property from taxation.</p> <p>The statement in the case of Barbour v. The Board of Trade, that “the test'of the right to exempt property is -the existence of the right to levy a tax to foster such property,” was not necessary to the decision of the question before the court, and is against the immemorial practice of all the departments of the State government. (2d Stat. Laws, M. & B., page 1372; Bov. Stats., sec. 3, art. 5, chap. 83; Gen. Stats., sec. 3, art. 1, chap. 92; Nazareth L. B. Inst,, 14 B. M., 266.)</p> <p>But if that test be accepted as correct, still the Louisville Water Company performs public services such as are contemplated by the first section of the Bill of Bights. (Deuber Light Co. v. Newport Light Co., 8 By. Law Bep., 222; New Orleans v. Clark, 95 U. S., 644; Louisville Gas Co. v. The Citizens’ Gas Light Co., 115 U. S., 683; Now Orleans Gas Co. case, 115 U. S., 669; Water-works case, 115 U. S., 691; Lancaster v. Clayton, 9 By. Law Bep.; Morris Aqueduct case, 46 N. J. Law, 499; Burroughs on Taxation, sec. 26; Sedgwick on Const. & Stat. Law, 446; Water Co. v. Hamilton, 81 By., 522.)</p> <p>4. While the city of Louisville might be required to bear the expense of the construction and maintenance of the works of the Louisville Water Company, it is a question of State policy and not of constitutional law, whether that municipality shall be required to bear the whole of such expense, or whether a part of the expense shall be borne by the State (Slack v. Maysville B. Co., 13 B. M., 26.)</p> <p>5. The surrender by appellant of its right to be paid for water furnished the city for fire protection was a sufficient consideration for the exemption from taxation. The court will not inquire into the adequacy of the consideration. (Barbour v. Board of Trade, 81 By., 517; Lancaster v. Clayton, 9 By. Law Bep.)</p> <p>The court will not declare a law unconstitutional because the Legislature undertook to state a reason for its enactment and gave an insufficient one.</p> <p>6. The public service that is required to support an exemption from taxation may be past, present or future. (Barbour v. Board of Trade, 6 By. Law Bep., 774.)</p> <p>1. The sheriff was the proper party to sue (Louisville Water Co. v. Hamilton, 81 Ky., 517); hut, in any event, it was proper to allow the name of the Commonwealth to be added for the purpose of removing any question that might exist as to the right of the sheriff to maintain the action. (Ansonia Rubber Co. v. Wolf, 1 Handy’s Rep., 236.)</p> <p>2. The function of assessing taxes is not judicial, and, therefore, the sheriff may he empowered to make the assessment. (Pennington v. Woolfolk, 79 Ky., 16; McLean County Precinct v. Deposit Bank, 81 Ky., 262; State Railroad tax cases, 92 TJ. S., 614.)</p> <p>3. It was too late, after the Law and Equity Court had gotten jurisdiction of the parties, to undertake to oust that jurisdiction by-procuring the county court to decide the same question, and, indeed, the only question submitted to the Law and Equity Court for its decision. (Saunders v. Saunders, 2 Litt., 316; Wood v. Lee, 5^ Mon., 61; Blackley v. Holton, 5 Dana, 529.)</p> <p>4. Furnishing water to the public fire plugs and fire cisterns of Louisville is not a governmental duty of the Commonwealth of Kentucky, and does not constitute a consideration for the exemption from taxation. Therefore, the act of exemption is unconstitutional.</p> <p>Through- a long course of legislation it had been the universal rule to require this water to be paid for by the city of Louisville, and never once does an intimation appear that it is the governmental duty of the State of Kentucky to furnish, or aid in furnishing, this convenience, directly or indirectly. (Session Acts, 1837-8, page 206; Session Acts, 1841, page 14L; Session Acts, 1847-8, page 405; 2 Session Acts, 1850-1, page 626; 2 Session Acts, 1853-4, page 121; 2 Session Acts, 1865, page 506; 2 Session Acts, 1867-8 (sec. 23), page 417; 2 Session Acts, 1869-70, page 61; 1 Session Acts, 1871, page 325.)</p> <p>Municipal corporations have a dual character; some of their functions are those of a public corporation, and others are those of a private corporation.’ The provision of water as a protection against fire is made by the municipality in its private and not in its public capacity. (Cooley on Taxation, 688; City of Louisville v. President and Trustees of University of Louisville, 15 B. M., 642, 673; City of Louisville v. Commonwealth, 1 Duv., 295; Preston v. City ot Louisville, 7 Ky. Law Rep., 798; Bailey v. Mayor of New York, 3 mil, 539; Western Savings Fund Association v. Philadelphia, 31 Pa. St., 175; Gas Company v. San Francisco, 9 Cal., 468; Jones v. City of Now Haven, 34 Conn., 12; Norwich Gas Co. v. Norwich City Gas Co., 25 Conn., 1; City of Detroit v. Corey, 9 Mich., 184; Board Park Commissioners v. Common Council of Detroit, 28 Mich., 228; People v. HurlbuTt, 24 Mich., 44.) Greenwood v. City of Louisville, 13 Bush, 226, commented on.</p> <p>The principles upon which municipal taxation is based are different from those which control State taxation. (Willard v. Newburyport, 12 Pick., 227; People v. Detroit, 28 Mich., 228; Cheany v. Hoover, 9 B. Mon., 335; Covington v. Southgate, 15 B. M., 492; Courtney v. Louisville, 12 Bush, 420; Preston v. Roberts, 12 Bush, 588.)</p> <p>The expression “ public purposes ” has acquired a different meaning when used in connection with the right of eminent domain from that which it has when used in connection with the subject of taxation. -(Ryerson v. Brown, 35 Mich., 333; Robinson v. Swope, 12 Bush, 25; People v. Salem, 20 Mich., 452; Cooley’s Const. Limit., note 3, beginning page 264, side-page 214.)</p> <p>The case of City of Newport v. Light Co., 8 Ky. Law Rep., 22, does not apply, or, if it does, ought not to control in this case, because in that case a Pederal question was involved, and this court was bound by the Pederal decisions.</p> <p>$. Where a tax is imposed by a statute, and no remedy provided for enforcing its payment, or a lien is given to secure it, and no means provided for enforcing the lien, resort may be had to judicial proceedings to enforce the obligation or the lien. (Cooley on Taxation, 2d ed., chap. 1, p. 15; Id., chapter 14, p. 435; Desty on Taxation, vol. 2, ch. 21, sec. 126; Burroughs on Taxation, sec. 105; Dillon on Mun. Corp., ch. 19, sec. 815, 3d ed.; Id.., sec. 818; Mayor of Baltimore v. Howard, 6 H. & J., 394; State, ex rel, v. Severance, 55 Mo., 389; Perry County, &c., v. Railroad Co., 58 Ala., 563; State v. Williams, 8 Tex., 836; H. & T. C. R. Co. v. State, 39 Tex., 153; State v. Duncan, 3 Lea, 679; Mclnery v. Reed, 23 Iowa, 410; Merriam v. Moody’s Bx’rs, 25 Iowa, 172; United States v. Lyman, 1 Mason, 481; United .States v. Mills, 2 Clif., 607; Meredith v. U. S., 13 Peters, 486, 493; 'Savings Bank v. U. S., 19 Wall., 240; Dollar Savings Bank v. United States, 19 Wall., 227; U. S. v. Truck’s Adm’r, 28 Ped. Rep., 846; City of Dubuque v. 111. Cent. R. Co., 39 Iowa, 56; City of New Haven v. P. H. & W. R. Co., 28 Conn., 422-, 7 Am. Rep., 399; Town of Geneva v. Cole, 61 111.. 398; Dunlap v. Gallatin County, 15 111., 7; Eyan v. Gallatin County, 14 111., 78; Portland Dry Dock and Insurance Company v. Trustees of Portland, 12 B. Mon., 77; Instonc v. Prankfort Bridge, 2 Bibb, 578; Thompson v. Buchannon, 2 J. J. M., 417; Tull v. Geoghegan, 3 J. J. M„ 378; Prather v. Davis, 13 Bush, 377; Russell v. Muldraugh’s Hill, <fcc., Turnpike Co., 13 Bush, 310; Brightwell v. Commonwealth, 79 Ky., 535; Stephens v. Miller, 80 Ky., 49; Johnston v. City of Louisville, 11 Bush, 533; E. & P. R. Co. v. Elizabethtown, 12 Bush, 233; Lincoln County Court v. L. & N. R. Co., 3 Ky. Law. Rep., 438; Louisville Water Co. v. Hamilton, 81 Ky., 517.)</p> <p>Cases commented on: City of Camden v. Allen, 26 N. J. L., 2 Dutcher, 398; Pierce v. City of Boston, 3 Met. (Mass.), 520; Shaw v. Pickett, 26 Yt., 482; Board of Education v. Old Dominion Co., 18 W. Ya., 441; Andover & M. Turnpike Co. v. Gould, G Mass., 158; Packard v. Tisdale, 50 Me., 376; City of Augusta v. North, 57 Me., 392; Hibbard v. Clark, 45 N. H., 155; Staley v. Columbus, 36 Midi,, 39; Crasso v. Stetson, 8 Mete. (Mass.), 394; Pierce v. Boston, 3 Mete., 520; Merriwether v. Garrett, 102 U. S.; Thompson v. Allen County, 115 IT. S.; Walkley v. City of Muscatine, 6 Wall., 481; United States v. Lyman, 1 Mason; Bees v. City of Watertown, 19 Wall., 107; Heine v. Levee Comsrs., 19 Wall., 655; Barkley v. Levee Cornsrs., 93 U. S., 258; Merriwether v. Garrett, 102 U. S., 472; Baldwin v. Whitaker, MS. Op., Juno, 1889; McLean County Precinct v. Deposit Bank, 81 Ky., 254; Jones v. Gibson, 82 Ky., 561; Greer v. Covington, 83 Ky., 414.</p> <p>6. There is statutory authority for collecting taxes by suit. (Gen. Stats., chap. 92, art. 11, sec. 17.)</p> <p>While the rule of ejusdem generis might require that the words “and others,” used in the title of that article, should be interpreted “ and other officers,” yet this is simply a rule of construction, and the presumption raised by the rule may be rebutted. (Bndlick on Interpretation of Statutes, sec. 413; Id., sec. 23.)</p>

<p>Case 40 — PETITION ORDINARY</p> <p>APPEALS PROM LOGAN CIRCUIT COURT.</p>

Case 41 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The act of February 7, 1884, relating to the transfer of actions between the courts of Jefferson county, is unconstitutional. 2.

<p>Case 42 — PETITION EQUITY</p> <p>APPEAL PROM ORANT CIRCUIT COURT.</p> <p>1. It is only the “first election” that is required to be held on the first Saturday in June. The time for future elections is left to the discretion of the trustees, with the limitation that they shall not be held oftener than once in two years.</p> <p>2. The notice of the election was. sufficient to put before the voters the timé, place and purposes of the election to be held, and in taking • the sense of the voters as to the levy of the tax, the act was sub- „ stantially complied with.</p> <p>3. Even if the election was invalid or irregular, the defect was cured by the subsequent act. (Norman v. Boaz, 4 S. W. E., 316.)</p> <p>4. Such of the plaintiffs as have accepted the benefits of the act areestopped to resist the tax. (Ferguson, &c., v. Landrum, &c., 1 Bush, 548; Cooley’s Const. Limit., p. 181.)</p> <p>5. The act complained of is not only not within the prohibition of the-Constitution with reference to the common school fund, but is in aid of it in many ways. (Fitzpatrick, &c., v. Board of Trustees, ot Mt. Sterling Public Graded School, «fee.. 9 Ky. Law Eep.; Trustees v. Harrodsburg Educational District, 7 S. W. B., 312; Norman v. Boaz, 4 S. W. E., 316.)</p> <p>The cases of Halbert v. Sparks, 9 Bush, 259, and Collins v Henderson, 11 Bush, 74, are not opposed to this conclusion.</p> <p>1. The law in contest, in so far as it attempts to deprive Common School District No. 1 of its money and its property, without providing a school where common school education is required to be taught, is unconstitutional. (Halbert v. Sparks, 9 Bush, 262; Collins v. Henderson, 11 Bush, 74; Auditor v. Holland, «fee., 14 Bush, 147.)</p> <p>The oases of Trustees of Harrodsburg v. Board of Education of Harrodsburg,- 9 Ky. Law Eep., and Newman v. Thompson, 4 S. W. Eep., 341, distinguished from this case.</p> <p>2. The election was not held at the proper time, nor was the question as to whether the voters were in favor of establishing a graded free school submitted to thorn. The question submitted was, whether they were in favor of a tax of fifty cents?</p> <p>3. The trustees had no right to take the assessor’s hook for 1886 as the basis of their levy. The hook returned December 15, 1887, should have been made the basis.</p> <p>4. The plaintiffs are not estopped by reason of the fact, if it he a fact, that they have accepted the benefits of the act. They had no agency in procuring the passage of the act, and have the right, at any time, to question its constitutionality. (Gardner v. Boston, 106 Mass., 549; 25 Mich., 456; 22 Mich., 104; 56 N. Y., 257; 34 Wis., 381; 29 Wis., 419; Loan Association v. Topeka, 20 Wall., 655.)</p> <p>5. A curative statute can not make valid an election, or the levy of a tax which is absolutely void. (Norman v. Boaz, 4 S. W. Eep., 316.)</p> <p>1. The vote taken was void because not taken at the proper time. There was no authority to take such vote on any other day than the first Saturday in Juno. ,</p> <p>2. No question could he lawfully submitted except whether the graded school should or not he established. The voie in favor of levying the tax was not a vote in favor of establishing the graded school.</p> <p>3. When the net of 1887-8 was passed, the graded school act of 1884 was not, and never had been, in force. Therefore, there was no election of trustees to validate; and if the General Assembly could not have, made the appointment of the trustees by the original act, it could not, hv an ae.l in the nature of a curative statute, work out their appointment. (Norman v. Boaz, 8 Ky. Law Eep., 129; Cooley’s Const. Limit., 463.)</p> <p>4. While the General Assembly may select its own officers, and such as are charged with the preservation of its books and papers, or of the public buildings in which its sessions are to be held, or the public property directly connected therewith, it can not appoint any other officers, whether general or local, as that is the constitutional prerogative of the people, or of the Executive Department of the government. (Taylor v. Commonwealth, 3 J. J. Mar., 405.)</p>

Case 43 — APPEAL FROM PIKE CIRCUIT COURT. 1. The court erred in allowing the Commonwealth to introduce a witness to inflame the minds of the jury after appellant had entered a plea of guilty. 2. The appellant should have been allowed to withdraw his plea of guilty, and enter a plea of not guilty.

Case 44 — PETITION ORDINARY APPEAL PROM HANCOCK CIRCUIT COURT. 1. As the city marshal is a corporate officer, and it was his duty to have prevented such occurrences as that which resulted in the death of appellant’s intestate, and it was for the special benefit of the corporation that he should have done so, the defendant is liable. (Dillon on Mun. Corp., sec. 974.) 2.

Case 45 — PETITION ORDINARY APPEAL PROM KEFTOF CIRCUIT COURT. The supersedeas did not prevent appellee from having an order requiring the garnishee to pay the fund in controversy into court, and any loss he has suffered is due to his failure to take such an order and not to the supersedeas. Therefore, he is not entitled to recover on the supersedeas bond.

<p>1. The Commonwealth may prosecute an appeal from a decision of the trial court, although not final. Therefore, where there has been a trial and the jury has failed to agree, the Commonwealth may prosecute an appeal in order that this court may review the decisions of the trial court in admitting and rejecting evidence, and in giving and refusing instructions.</p> <p>2. Degrees op Homicide. — The general rule is, that one who causes death hy his negligence is criminally responsible, whether he was at the time engaged in legal or illegal business. If the business he in character felonious, then he is guilty of murder. If legal, and homicide result from negligence in the discharge of it, it is manslaughter. This rule, however, is subject to exception, as when the act, although careless in itself, is done under such circumstances that it could not reasonably he supposed injury would result.</p> <p>3. Evidence. — Under an indictment for manslaughter, it was incompetent to prove declarations of the defendant for the purpose of showing malice.</p> <p>4. Dying Declarations. — Whether a statement offered as a dying declaration was made hy the defendant when he was in extremis, and had given up all hope of life, may he determined, not only by what he may say, hut hy his evident danger and all the surrounding circumstances.</p> <p>About fifteen minutes after he was shot, the deceased, when lying upon the ground bleeding and suffering, said he hoped he would live long enough to take the gun home; he died in about twenty minutes. Held — That a statement made hy the deceased under these circumstances was made under a sense of impending death.</p> <p>5. Same. — The statement of the deceased that he and the accused were playing, and that the shooting was an accident, was the statement of a fact, and not the more expression of an opinion, and was competent.</p> <p>6. Involuntary Manslaughter. — The court, in instructing the jury as to involuntary manslaughter, should have told them, in substance, that if they believed, from the evidence, the accused had reasonable grounds to believe, and did believe, there was no danger in handling the gun as he did, and that it was done without any purpose of harm on his part, hut further believed that the killing resulted from the careless use of the weapon,'they should find him guilty of involuntary manslaughter; but if they believed the killing was accidental and without carelessness, they should acquit him.</p>

<p>Case 47 — PETITION ORDINARY</p> <p>APPEAR from daveiss circuit court.</p> <p>1. The direction to the clerk to issue execution was not sufficiently definite to make him liable.</p> <p>.2. The jury having found that the clerk was not negligent, the action failed. While it is the duty of the clerk to keep safely and securely the records of his office, his liability stops when he has exercised the proper degree of care. He is liable only for loss resulting from his negligence.</p> <p>2. The clerk being unable to tax the cost, it was not his duty to issue execution for the debt and interest, omitting the cost. Such an execution would have been irregular, and, therefore, a nullity. (Bartlett v. Pentland, 1 B. & A., 704; Atkinson v. Gatcher, 23 Ark., 101; Bead v. Mackle, 3 John., 523; Clerk v. Clement, C. T. R., 525.)</p> <p>■4. The measure of recovery is the loss to appellees of the amount that would have been made by the execution, and not the loss of recourse or the loss of liens, except as it had been averred and proved that the clerk was aware of the fact that the judgment had been recovered on an assigned note, and that there were liens on land for it.</p> <p>1. As to the duties of clerks in the matters of issuing executions and the preservation of records, see Gen. Stats., chap. 26, sec. 24; Id., chap. 16, art. 1, secs. 5, 6; Id., chap. 16, art. 1, secs. 1, 2, 11.</p> <p>2. Clerks and like officers are liable on their bonds for acts of negligent commission or omission to persons suffering injury thereby. (Shear-man & Redfield'on Negligence, pp. 328-331.)</p> <p>But the mere tact of injury having been suffered is not enough to establish negligence. {Id., p. 3.)</p> <p>Negligence is a mixed question of law and fact. (1 Hilliard on Torts, p. 116, sec. 40.)</p> <p>-3. The fact that the papers of the suit had been abstracted from the clerk’s office, so that the clerk could not tax the cost, and that as soon as he discovered that fact he notified appellee’s attorneys, was a sufficient excuse for the failure to issue execution. (Mitchuson v. Poster, 3 Met., 324; 2 Hilliard on Torts, p. 201.)</p> <p>"4. If it was impossible for the clerk to issue the execution as directed, lie can not be held'responsible for failing to issue it in a diffeient and illegal form.</p> <p>6. Appellants were entitled to judgment upon the findings of the jury..</p> <p>S. The court erred in rejecting the amended answer pleading contributory negligence^</p> <p>■ 1. The bill of exceptions was not filed in time. The bill being tendered at the proper time, but in the absence of the judge who presided, should have been signed by by-standers. (Hayden v. Ortkeiss, 7 Ky. Law Bep., 399.)</p> <p>The amendment of May 32, 1886, to section 334 of the Code was not passed until after the motion for new trial was overruled, and,, therefore, has no application to the case at bar.</p> <p>• Bui even if that amendment applies, it provides for a slate of ease where the judge who presides at the trial is not present at the term of court to which leave was given to file the bill. It is not sufficient that he was absent on the day to which the' time was-extended.</p> <p>2. The fact .that the record was not in the clerk’s office does not excuse the failure of the clerk to issue execution, as it does hot appear that appellees or their attorneys were responsible for the absence of the record.</p> <p>Moreover, if the record was out, it was the duty of the clerk to-issue execution for the judgment, exclusive of costs.</p> <p>8. As the verdict of November, 1882., was set aside, and no appeal was. asked or prosecuted from the judgment setting aside that verdict, it. can not be considered upon this appeal.</p>

Case 48 — PETITION ORDINARY APPEAL EROM HARBIN CIRCUIT COURT. 1. The father has no cause of action for the death of his son under the statute. (Henderson v. K. C. R. Co., 9 Ky. Law Rep., 625; L. & N. R. Co. v. Sanders, 9 Ky. Law Rep.) 2. The Hardin Circuit Court had no jurisdiction of the action. (Civil Code, section 73.) The defendant’s principal office and place of business being in Louisville, it was a resident of that county within the meaning of section 73 of the Code.

Case 49 — APPEAL’ PROM TAYLOR CIRCUIT COURT. 1. The Commonwealth may appeal in a felony case, although there has-not been a final judgment. (Commonwealth v. Cain, 14 Bush, 526; Commonwealth v. Bruce, 79 Ky., 560; Criminal Code, sec. 335.) 2. The Commonwealth was entitled to have some sort of a bill of exceptions signed by the judge. (Criminal Code, sec. 282; Civil Code,, sees. 335, 337.) 3.

Case 50 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. An agreement between husband and wife of such a character as that alleged in this case may ho evidenced by a promissory note in connection with other evidence tending clearly to show it, but the note alone is not sufficient evidence of the alleged agreement. The case of Maraman v. Maraman, 4 Met., 76, commented on. 1.

Case 51 — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. On the issue of the legitimacy of a claimant to heirship, any evidence that tends to establish illegitimacy is competent. That evidence may be as to the impotency of the husband, non-access by the husband, or any other fact or circumstance conducing to show that the husband is not the father of the child. (Radwell’s case, Rolle’s Abridgment, 356; Wright v. Hicks, 12 Ga., 155; s. c., 56 Am.

©ash 52 — PETITION ORDINARY APPEAL PROM CARROLL CIRCUIT COURT. 1. An admission of an agent can only be proved against the principal when made while the business was being transacted, and not long after it was done. (Toeum v. Barnes, 8 B. M., 498.) 2. The facts proved do not amount to a waiver of proofs of loss.

Case 53 — PETITION ORDINARY APPEAL PROM M’CRAOICEN COURT OF COMMON PLEAS. 1. This is not an action ex delicto to recover damages for a tort or for tortious negligence, but it is an action ex contractu seeking to recover for a 'loss occasioned by a breach of an express contract. Different and distinct rules as to damages govern in these two classes of cases.

Case 54 — APPEAL EROM EAYETTE CIRCUIT COURT. 1. It was error to allow the attorney for the Commonwealth, in his opening statement to the jury, to read letters which he expected to introduce in evidence. This statement should be limited to a concise statement of the nature of the charge, and the law and evidence upon which the Commonwealth relies.

<p>Case 55 — PETITION ORDINARY</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>1. It was competent for plaintiff to prove that it was the custom of trains not to whistle as they approached the crossing where the injury occurred. (Field v. N. Y. C. B. Co., 22 N. Y., 339; Ky. C. B. Co. v. Barrow, 0 Ky. Law Bep., 243.)</p> <p>2. It was competent for plaintiff to show by one of the witnesses that if a signal had been given he could have heard it.</p> <p>3. The court erred in striking out that part of the amended petition which states particularly the facts constituting willful negligence. This statement of facts was necessary to show the character of the negligence, and to distinguish it from ordinary negligence. (9 Bush, 728.)</p> <p>•4. The court erred in giving a peremptory instruction to find for defendant.</p> <p>The failure of the agent in charge of a train to give the usual notice of the approach of the train to a public crossing is negligence; and where the crossing is an extraordinarily dangerous one, the failure to give such notice is willful negligence. (Shackleford’* Adm’r v. L. & N. B. Co.. 7 Ky. Law Bep., 732; L., C. & .L. B. Co. v. Goetz’s Adm’r, 79 Ky., 446; P. & M. B. Co. v. Hoehl, 12 Bush, 45; Claxton’s Adm’r v. L. & B. S. B. Co., 13 Bush, 642; L. & N. B. Co. v. Commonwealth, 80 Ky., 143; Gastineau’s Case, 83 Ky., 119.)</p> <p>Where there is any evidence conducing to show a right of recovery, the court should not take the case from the jury. (Shay v. B. & L. T P. Co., 1 Bush, 109; Stephens v. Brooks, 2 B. M., 140; Thompson v. Thompson, 17 B. M, 27; Buford v. L. & N. E. Co., 82 Ky., 286; Goetz’s case, 79 Ky., 447; Spence v. 111. Cent. B. Co., 29 111., 60.)</p> <p>There may be proper diligence without stopping and looking to see whether a train is approaching. (Phil. & Tren. B. Co. v. Hagan, •47 Penn., 246.)</p> <p>If the neglect was willful, contributory neglect will not excuse appellee. (L. & N. E. Co. v. Mackoy, 81, Ky., 403.)</p> <p>The degree of care was not a question for the court, but for the jury. (Needham v. L. & N. E. Co., 9 Ky. Law Bep., 61.)</p> <p>'1. Evidence by which facts relied on are proved should not be stated in the petition. (Bentley v. Bustard, 16 B. Mon., 686; L. & P. Canal Co. v. Murphy, 9 Bush, 527; Barret v. Goldshaw, 12 Bush, 597.)</p> <p>3. Opinion evidence is incompetent where the jury themselves are to judge the fact. (Marcott v. M., H. & O. E. Co., 8., Am. and Eng. E’y Cases, 306.)</p> <p>:¡i. In Kentucky a peremptory instruction is proper where plaintiff fails to make out his case. (Thompson v. Thompson, 17 B. Mon., 22; Jarman v. Howard et al., 3 Marsh., 384; Shay v. E. & L. T. Co., 1 Bush, 109; United Society of Shakers v. Underwood, 11 Bush, 276; Pollock’s Adm’r v. Louisville, 12 Bush, 221; Wilsey v. L. & N. E. B., 83 Ky., 512.)</p> <p>Some cases say such instruction is proper where there is no evidence “tending to establish the matter in issue.” (Buford v. L. & N. E. B., 82 Ky.', 286.)</p> <p>Other cases say the instruction is proper where there is no evidence “ conducing to show the right of recovery.” (Stephens v. Brooks, 2 B. M., 140; 'Shay v. E. & L. T. Co., 1 Bush, 108.)</p> <p>‘‘Evidence tending to prove” means more than “scintilla of evidence.” (Bartelott v. International Bank, 119 Ills., 259, per Schofield, J.)</p>

<p>■Combinations to Prevent Competition in- Trade. — Any combination or agreement, the object of which is to destroy or interfere with free competition in any line of business, is void, whether or not in the particular instance it has the desired effect.</p> <p>The owners of two steamboats, which were rivals as public carriers, entered into a written agreement by which it was provided that,- in order to prevent the rivalry that then existed between said boats in -the carrying business, each should thereafter share, in fixed proportions, in the net profits of both, each boat to bear its own expenses; and in the event the owner of either boat should sell it with a view of going out of the trade, notice thereof should be given to the other-owner, and the owner so selling- should not come into the trade again within one year thereafter. One of the parties sold his boat with the-view of going out of the trade, and gave proper notice of that, fact; The other owner thereupon purchased another boat to take its place,, and was running the two boats, when the owner who had sold his boat brought it into the trade again within a year from the time at which he had sold it. The owner who had remained in the trade brings this action to recover damages for breach of the contract. Held — That as the object of the contract was to destroy competition in trade, it was void, and, therefore, there can be no recovery.</p>

Case 57 — PETITION EQUITY APPEAL PROM PENDLETON CHANCERY COURT. No right of action accrued to appellant until the death of her husband, and, therefore, limitation runs only from that date. (Bransom, &e., v. Thompson, &c., 81 Ky., 638; Anderson’s Trustee v. Sterritt, &c., 79 Ky., 499; McGuire v. Bowman and Others, 6 Bush, 550.) 1. The appellant claims through Eelix Williams, and her claim is barred by the thirty years statute.

<p>Case 58 — PETITION ORDINARY</p> <p>APPEAL FROM CASEY CIRCUIT COURT.</p> <p>1. If the timber was cut from plaintiff’s lands by trespassers, plaintiffs were not divested of title, and had the right to recover it in this form of action from any purchaser from the trespasser, however innocent of wrong that purchaser might be. (Strubbs v. Trustees C. S. Railway, 78 Ky., 481.)</p> <p>2. The deed was good between the parties. No one but a creditor of Wm. Reid could, under any circumstances, attack it as void-. (Gilpin v. Davis, 2 Bibb, 417; McCreery v. Pursley, 1 Mar., 114.)</p> <p>3. In case of an innocent mingling or confusion of articles of like qualify, dimensions and value, the claimant is not required to identify his own, but each takes his given quantity. (Colwell,v. Reeves, 2 Camp., cited in note f, 2 Parsons on Contracts, star page 475 ; 2 Kent’s Com., star page 465; 1 Am. and Eng. Ene. Law, page 55, note 2.)</p> <p>As to the rule in case of fraudulent confusion, see Weil v. Silver-stone, 6 Bush, 698.</p> <p>4. Appellee, McEerran, having purchased from trespassers, it is immaterial whether or not he had notice that Wm. Reid had sold his interest in the land.</p> <p>1. The deed relied on in this case was not acknowledged by the party making the deed; and, therefore, was not ready for record, and the record was not constructive notice. (Gen. Stats., p. 316, sec. 15, sub-sec. 1.)</p> <p>2. The plaintiff, failing to identify his property, was not entitled to recover. (Ames v. Miss. Boom Co., 8 Minn., 467; 3 Blaekstone’s Com.^ pp. 145, 152; 1 Chitty’s Pleading, 163.)</p> <p>3. As the record showed that the deed relied on was acknowledged by Samuel Reid, it was not competent for appellant to contradict the record by showing that it was acknowledged by Wm. Reid, the grantor.</p>

<p>Case 59 — CONTESTED WILL</p> <p>APPEAL FROM CL^RK CIRCUIT COURT.</p> <p>1. Although the testator was physically helpless, his mind was as bright as it had ever been. The proof shows clearly his capacity to make a will. (Harper’s Will, 4 Bibb, 274; Eeed’s Will, 2 B. M., 79; Man-pin’s Ex’r v. Woods, 1 Duv., 223; Jones v. Jones, 14 B. M., 374; James v. Langelm, 14 B. M., 198.)</p> <p>Testamentary capacity defined. (Wise, &e., v. Eoote, &c., 81 Ky., 13.)</p> <p>2. There is no proof of undue influence. Influence obtained by proper persuasion and argument, or by mere appeals to the affections, is not undue influence, in a legal sense. _ (Wise, &c._, v. Foote, &c.., 81 Ky., 13; Sechrest, &c., v. Edwards,'<6c., 4'Mét.¡ 173; Broaddus’ Devisees v. Broaddus' Heirs, &c., 10 Bush, 303.)</p> <p>3. The testimony of the experts is at best of an exceedingly unsatisfactory character. Such testimony is often as much calculated to mislead a jury as to guide to a correct conclusion. (Bussell v. State, 53 . Miss., 365; Lawson’.’s Expert Evidence, 240; Daniels v. Foster, 26 Wis., 686; Parker v. Johnson, 25 Ga., 585; Hays v. Wells, 34 Md., 513.)</p> <p>4. The order appointing special' sheriffs tó sum'nion jhrors was prejudicial to appellants.</p> <p>i. The court erred in refusing to allow appellants to recall the attesting witnesses to show that the testator was not under the influence of morphine, and was fully competent when he executed the paper in controversy. (Hunter v. Milton, 13 Bush, 163; Fee, &c., v. Taylor, 83 Ky., 261; Hawkins v. Grimes, 13 B. M., 270.)</p> <p>6. This court should order the probate of the paper offered as the will of F. M. Lisle. (Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299.)</p> <p>1. As important evidence heard on the trial is not in the record, this court will not reverse.</p> <p>2. This court will not reverse, unless, on the whole case, it is convinced that the conclusion reached by the jury and the trial court is manifestly erroneous. (Smith v. Northern Bank, 1 Met., 579; Millet v. Parker, 2 Met., 613; Waller v. Logan, 5 B. M., 519; Tuder v. Tuder, 17 B. M, 388; Walrath v. Viley, 2 Bush, 478; Kennedy v. Commonwealth, 3 B. M., 330; Phillips’ Adm’r v. Phillips’ Ex’r, 81 Ky, 333.)</p> <p>3. If every alleged erroneous decision had been otherwise decided, and all the excluded evidence admitted, there would have been no change in the case; the case as then made out would have been the same as the case now made.</p> <p>4. For the refusal to permit witnesses to be recalled, there can be no reversal, unless there was a clear case of abuse of discretion. (Civil Code, sec. 600.)</p> <p>The usual and proper course is to interrogate the subscribing witnesses as to the competency of the testator. (Milton, &c., v. Hunter, &c, 13 Bush, 171.) And this court-will not reverse, merely because the propounders did not follow the usual and proper course.</p> <p>If the court finds that there has'been any error of law, which prevented the appellants from having a fair trial, or that the weight of the testimony does not justify the verdict, the utmost this court can do is to remand the case for another trial. It must be an absolutely clear Case to aúthórize this court to:direct the pi’pfrate of the,will.</p>

<p>1. Duty of Bailroads to Trespassers. — Where one is injured as the-result of non-performance or violation by another of a plain and manifest duty for the protection of human life or safety, the party thus causing the injury will not be beard to say, in justification, that he was dealing with his own property, and that the person injured was, technically, a trespasser. This rule, however, does not apply if the injured party, knowing the existence of the danger, purposely or negligently put himself in the way.</p> <p>To. turn cars loose at night, to move by their own momentum, without an engine attached, and without a light in front to warn persons on the track of their approach, is negligence even as to a trespasser on the track.</p> <p>2. Bights to Becover for Willful Neglect. — An administrator who-sued in two counts for the killing of his intestate — in one for willful neglect, and in the other for gross and ordinary neglect — can not recover on the count for willful neglect, the intestate having left neither widow nor child.</p>

Case 61 — APPEAL FROM HARLAN CIRCUIT COURT. 1. There is a variance between the indictment and the proof as to the suit in which appellant gave the alleged false testimony. 2. The court should have instructed the jury not to find appellant guilty unless they believed his name was signed to the note by his written authority.

<p>1. Yendor and Yendee — .Vendor Entitled to Time to Perpect Title — Abstract op Title. — A vendor who undertakes to make a good title- and give general warranty deed does not undertake that he has the legal title, and ho is entitled to a reasonable time in which to perfect his title and make a deed. Nor is it the vendor’s duly, under shell a contract, to furnish an abstract of title.</p> <p>2. Time op Essence op Contract. — Where no time is fixed in the con. tract for making the deed, time is not of the- essence of the contract, although the vendor may have known that the property was purchased for immediate speculation; and the fact that the property declined in value before the' deed was tendered does not release the vendee from his obligation, unless it can be shown that the vendor unnecessarily delayed to make the deed, and thereby the loss was sustained.</p> <p>In this case the contract was made on the 28th of March, and deed was tendered on the 28th of May. At the time of the sale, the vendor had no deed to the property, but owned it by executory purchase. A part of the purchase price remained unpaid. There was no unnecessary delay in perfecting the title. BeiderThat the deed was tendered in time.</p> <p>3. Vendor and Vendee. — The fact that the deed to the plaintiff from his vendor recited that there was a lien for unpaid purchase money was not prejudicial to defendant, for the reason that the incumbrance had, in fact, been discharged; and, if not, the defendant still owed on the land a sum sufficient to discharge the incumbrance.</p>

Case 68 — PETITION EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. 1. The original plaintiff in an action, under the act of 1856, can not. dismiss his petition so as to defeat the action as to other creditors who have filed their claims, and thus made themselves parties. Nor can he dismiss an appeal which he has prosecuted jointly with such. creditors from a judgment dismissing his petition. (Sawyers v. Langford, 5 Bush, 539; Brenner v. Downard, 11 Ky.

Case 64 — PETITION EQUITY APPEAL PROM CAMPBELL CHANCERY COURT. 1. The compromise of a disputed claim, asserted in good faith, is good consideration for a promise, whether or not the litigation has commenced, even though it should ultimately appear that the claim was wholly unfounded. (Jones v. Chappell, 5 Mon., 424; Berdell v. Bessell (Superior Court of Colorado), 4 Ky.

Case 65 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. 1. In order to show heirship in mother, brothers and sisters, the petition must aver want of children and their descendants. It is not to be presumed a man died without issue. When the fact is necessary to make out a complainant’s title it must be averred and proved. (Dudley v. Grayson, 6 M.on., 263.) 2.

<p>1; Homestead. — The homestead exemption in favor of a debtor continues. after his death for the benefit of his widow and infant children as against claims of creditors proved in an action for the settlement of the decedent’s estate.</p> <p>% Same. — The widow and children can not be disturbed in their possession of the homestead while the widow lives; and, in ease of her death or abandonment, the children can not be deprived of the enjoyment and possession of it before they arrive at full age. And, in ease of a sale of the homestead, the widow, or, in the event of her death or abandonment, the infant children, are entitled to the use of the proceeds.</p> <p>.8. Same. — The failure of the widow to renounce the provisions of her husband’s will can not affect the rights of the infant children as to the homestead.</p> <p>4. Same. — The owner of a homestead, not exceeding one thousand dollars in value, can pass title to the property to his widow and children by will, and his creditors can not complain.</p>

<p>1. Taxation of School Property. — Section 3 of article 1, chapter 92, General; Statutes (edition of 1873), which, exempted from State taxation “real estate and investments devoted to public schools, seminaries, universities, colleges,” etc., was not intended to exempt school prop- • erty in use for private gain merely, and entirely devoid- -of a public or charitable character; and, therefore, such property is not exempt from municipal taxation under a city charter, enacted while that statute was in force, authorizing the taxation of property “ subject to taxation under the revenue laws of, this State.”</p> <p>2. Exemptions from Taxation. — The Legislature can not exempt property from taxation save in consideration of public service, unless it be of a benevolent or charitable character. If the object directly promotes individual interests, and be essentially a private enterprise, then the exemption of its, property from taxation by the Legislature isa violation of the Constitution. '</p>

Case 68 — PETITION EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. 1. The right to use the streets of a city by a light company for lighting the city in any way is a franchise that can be granted only by the Legislature, or some local or municipal authority authorized to confer it. (City of Newport v. Newport Light Co., 84 Ky., 176.) 2. The appellee has no legislative authority, direct or indirect, to enter ■on the streets of the appellant to erect poles for any purpose.

Case 69 — PETITION ORDINARY APPEAL PROM. CAMPBELL CIRCUIT COURT. 1. The right of set-off pertains to the remedy, and is governed by the law of the place where the action is brought.

<p>1. Injury to Neighbor’s Spring prom Storing Oir on One’s Premises. —Where one stores oil on his premises in such a way that the leaking oil penetrates the ground, and thus pollutes his neighbor’s spring, he is liable to his neighbor for the injury that results, although he may have been ignorant of the fact that the oil was affecting the water of his neighbor’s spring. While the owner of land may appropriate to his own use hidden or undefined veins of water under his soil, and thus,.out off the supply of water from a neighbor’s well or spring, he has no right to contaminate the water so as to render it unhealthy or ' unfit for use whén it reaches his neighbor’s land.</p> <p>2. Same — Measure oe Damages. — Where such an injury does not result ' ■ in the entire destruction of the spring or the water for use, the criterion of recovery is the actual damage the plaintiff has sustained in being- deprived of the use of the water for domestic or farm purposes up to the time of trial. The failure of defendant to take any additional precaution to prevent the flow of oil to plaintiff’s spring will subject him to another action. . ' ■</p>

<p>Case 71 — PETITION OKDINABY</p> <p>APPEAL FROM GRANT CIRCUIT COURT.</p> <p>1. It was the duty of the railroad company to keep the apron in repair; and its failure to repair, after knowledge of the defect, constituted gross neglect. (Wharton on Negligence, section 564; Brainerd v. Railroad Company, 48 Vt., 107; Allender v. Railroad Company, 43 Iowa, 276; Ky. Central Railroad Co. v. Gastineau’s Adm’r, 83 Ky. 128.)</p> <p>2. Contributory negligence will not prevent the plaintiff from recovering, unless, for this negligence, the injury would not have occurred; or, if the defendant, by the exercise of ordinary care, could have avoided the consequences of plaintiff's negligence. (Saunders on Negligence, p. 58; Sullivan’s Adm’r v. Louisville Bridge Co., 9 Bush, 90; L., C. & L. Railroad Co. v. Sullivan, 81 Ky., 630.)</p> <p>1. In a proper case, the court may peremptorily instruct the jury to return a verdict for defendant. (Jarman v. Howard & Co., 3 Marsh., 384; Shay v. R. & L. Turnpike Co., 1 Bush, 108;. L. & P. Canal Co. v. Murphy’s Adm’r, 9 Bush, 534; United Society of Shakers v. Underwood, 11 Bush, 276; Pollock’s Adm’r v. Louisville, 13 Bush, 221; Tubb’s Adm’r v. Cin. Railroad Co., MS. Op., Jan. 26, 1886; Wilsey v. L. & N. Railroad Co., 83 Ky., 512.)</p> <p>Such a motion is proper, even in a case where testimony has been offered by both sides. (Wilsey v. L. & N. R. Co., 83 Ky., 512.)</p> <p>2. In an action for personal injuries, by reason of defective machinery on premises, the plaintiff must not only allege, but also prove, that the danger or defect was known to the defendant, and not known to the plaintiff. (Bogenschutz v. Smith, 84 Ky., 331.)</p> <p>3. There can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened, except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. (Beach on Contributory Negligence, section 7, and cases cited; Sullivan v. Bridge Co., 9 Bush, 81; Jacobs v. Louisville, &c., Railroad Co., 10 Bush, 263; Louisville, &c., Railroad Co., v. Collins, 2 Duv., 114; Louisville, &c., R. Co. v. Robinson, 4 Bush, 507; Louisville, &e., Railroad Co. v. Goetz, 79 Ky., 442; Ky. Oen. R. Co. v. Lebus, 14 Bush, 518; Paducah R. Co. v. Hoehl, 12 Bush, 41; Wharton on Negligence, section 300, and cases cited; Id., sec 332; Shearman & Redfield on Negligence, section 25, and cases cited; 2 Thompson on Negligence, p. 1146; Smith on Negligence, p. 227; Pollock on Torts, p. 374; Wood on! Master and .Servant, section 319, and cases cited; Smith on Master and Servant, p. 344; Patterson on R’y Accident Law, page 45, and cases cited; Sullivan’s Adm'r r. Louisville Bridge Co., 9 Bush, 81.)</p>

Case 72 — PETITION OBDINAEY APPEAL PROM GRAYSON CIRCUIT COURT. The petition states a cause of action. The words charged are libelous, and there was a sufficient publication. (Bobbins v. Treadway, 2 J. J. M., 541; Cole v. Wilson, 18 B. M., 217; McClure v. Wilson, Litt. Select Cases, 188; Hart v. Beed, 1 B. M„ 168; McIntosh v. Matherly, 9 B. M., 120.) 1. The language charged in the petition is not libelous.

Case 73 — PETITION EQUITY APPEAL PROM BATH CIRCUIT COURT. 1.

<p>Constitutional Law — Retrospective Legislation. — One who was never hound, either legally or equitably, can not have a demand created against him by mere legislative enactment. The Legislature can act retrospectively only for the purpose of furnishing a remedy for the enforcement of some pre-existing legal or equitable right or duty, and not for the purpose of creating such right or duty.</p> <p>A town .entered into a contract for the improvement of a street, by the terms of which the contractors were to look for their pay to assessments upon the abutting property, both parties believing that the charter of the town conferred the power to impose the cost of the improvement upon the abutting property. This court having held that the charter of the town conferred no such power, the Legislature passed an act giving the town a lien upon the abutting property, for the benefit of the creditors, for the cost of the improvement. Held, — That as no right whatever existed to look to the abutting lot-owners for payment, the act is unconstitutional.</p>

<p>Reservation of Homestead in Mortgage. — Where a mortgage on land expressly reserves to the mortgagor a “ homestead,” this, nothing else appearing, will be treated as the reservation of one thousand dollars’ worth of land from the operation of the mortgage, without regard to whether the conditions exist which are necessary to entitle the debtor to the exemption of a homestead under the statute. But,,if the reservation was merely intended to express what was supposed by mistake to be the legal right of the debtor, when, in fact,, he was not entitled, under the statute, to the exemption of a home-, stead, the mortgage.. may, as against the husband at least, be so reformed as to include the homestead; but, to entitle the mortgagor to this relief, he must allege and prove that all the land that waR subject to mortgage was intended to be mortgaged, and that but for the mistaken belief that the homestead was not subject to ther mortgage it would have been included:</p>

. Case 76 — PETITION OBDINABY APPEAL FROM CAMPBELL CIRCUIT COURT. 1. Held: is not in conflict with the city charter or with any provision of our Constitution. (Buckner v. Gordon, 81 Ky., 670, 671.) 2. In the absence of legislative provision a city council may prescribe its own method of performing duties enjoined upon it. (Dillon on Mun. Corp., see. 151; Idem., sec. 244, n. 1; 10 Ohio, 194.) 3.

Case 77 — PETITION EQUITY APPEAL PROM DAYEISS CIRCUIT COURT. Where there is a clear case of a mistake in the boundary of the land intended to be mortgaged, the mistake can be rectified and the intention of the parties carried into effect. (Pribble v. Hall, 13 Bush, 61; Gen. Stats., chap. 71, art. 4, sec. 5; Id., chap. 81, sec. 17.) 1. The court can not make a contract for the parties. The act, and not the intent, must govern. 2.

<p>Husband and Wife — Wife's Equity. — "Where the wife’s money has come into the possession of the husband under an agreement by him to invest it for her use and benefit, and, in violation of that agreement, the husband has converted it to his own use by investing it in land and taking the title to himself, the rights of creditors, without notice of the latent trust, are superior to the wife’s-equity. And, even if the wife’s right is superior to that of an antecedent creditor (which is not decided), the right of a creditov who has, without notice of the wife’s equity, taken a mortgage upon the property to secure his debt, is superior to that of the wife, whether his debt was created prior or subsequent to the purchase of the property by the husband..</p>

<p>1. Transfer of Suits Between Courts of Jeff'erson Countv. — ■ Under the various acts regulating the proceedings in the courts of Jefferson county and the city of Louisville, it is only where the judge fails to attend his court that the members of the bar can elect a special judge. If the regular judge attends, and can not properly preside in a particular case, it is his duty to transfer the ' case, as provided by the statute; or, if he fails to do so, it becomes the duty of the clerk to make the transfer, and to so enter it upon the order hook.</p> <p>2. Same. — The statute regulating the transfer of oases between the courts of Jefferson county is not in violation of that provision of the Constitution which requires the Legislature to provide by law for holding circuit courts when the regular judge fails to attend or can not properly preside.</p> <p>X Election of Special Judge — Objections.—The appellant, having objected to the election of a special judge, and the order so showing, it was not necessary, when that judge took his seat, to make a motion to transfer or to object to his hearing the case, in order to enable the appellant to avail himself of the error in failing to make the transfer upon the refusal of the regular judge to preside.</p> <p>4. Louisville Law and Equity Coubt. — The same statutes that formerly applied to the Vice Chancellor’s Court now apply to the Louisville Law and Equity Court, there having been a change merely in the name of the court.</p>

Case 80 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. This court, in order to affirm the decision of the court below, must not only find that there was some evidence upon which the case should have been submitted to the jury, but must also find that this evidence was sufficient to sustain the verdict. 2.

-Case 81 — PETITION EQUITY APPEAL PROM KNOX CIRCUIT COURT. 1. The writing sought to be canceled is only an executory devise, which the appellant has the right to cancel at any time. 2. Even if the writing is to be regarded as an executed conveyance, the grantor may have it canceled, upon the ground that the grantee has failed to comply with his part of the contract.

<p>Case 82 — PETITION ORDINARY</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>1. In the absence of a statute authorizing it, it was error to render judgment for interest on the unpaid taxes. (Act of April 3, 1878, Gen. Stats., p. 1019; Idem, p. 733; Ky. Cent. R. Co. v. Pendleton County, 8 Ky. Law Rep., 517.)</p> <p>"What shall be taxed and how taxed, the Legislature alone has the right to determine. (Newport Bridge v. Douglass, 12 Bush, 716.)</p> <p>2. The judgment is erroneous, in that it wholly fails to give appellants credit by the amount overpaid on the railroad taxes for the year 1882. This amount should have been deducted from the taxes for 188S, and judgment rendered for the residue. The juries of the country do not, in the absence of applications made by the parties, make applications of payments. This is always done by the courts on equitable principles. (Nutall v. Brannin, 5 Bush, 19; McDaniels v. Barnes, 5 Bush, 185; Hammer v. Rochester, 2 J. J. M., 145; Carr v. Robinson, 8 Bush, 277.)</p> <p>3. A railroad can not be taxed by a county to pay bonds issued by the county in aid of the railroad. (Applegate v. Ernst, 3 Bush,'648; Clark County Court v. E. L. & B. S. R. Co., 7 Ky. Law Rep., 761; O. & N. R. Co. v. Daviess County, 8 Ky. Law Rep., 773.'</p> <p>There must be statute laws authorizing any and all taxation. (Cooley on Taxation, chap. 65, p. 65.)</p> <p>4. The Southern Division of the Cumberland and Ohio Railroad Company is not a purchaser of the lights and properties of the Cumberland and Ohio Railroad Company. There was simply a division hy the Legislature of the property of the latter company among joint owners; and, hy this division, the stock Marion county held in the Cumberland and Ohio was transferred to the Southern Division.</p> <p>5. The Louisville and Nashville Eailroad Company is not liable for taxes on the value of the improvements it has put upon the Southern Division of the Cumberland and Ohio. Eor all those improvements, the Louisville and Nashville Eailroad Company holds only a mortgage debt, which, under the act of April 3, 1878, can not be taxed. (Oin., N. 0. & Tex. Pac. E. Co. v. Commonwealth, 81 Ky., 503.)</p> <p>The whole method of assessing and taxing railroads, and the collection of taxes, is one of legislative discretion. (Broadway Church v. McAtee, &c., 8 Bush, 508; Caldwell v. Eupert, 10 Bush, 179; Kniper v. City of Louisville, 7 Bush, 599.)</p> <p>In the absence of statute law, there is no inherent power in any judicial tribunal to levy and collect taxes. (McLean County Precinct v. Deposit Bank of Owensboro, 81 Ky., 254.)</p> <p>The statute forbids any other assessment for taxation of railroad properties than that supervised by the Eailroad Commissioners. (Ky. Cent. E. Co. v. Pendleton County, 8 Ky. Law Eep., 517.) Therefore, the circuit court can not ignore the action of the Eailroad Commissioners, and assess the Southern Division differently from the way in which they assessed it, and enforce the assessment.</p> <p>Even if the mortgage debt due the Louisville and Nashville Eailroad Company could be taxed, it could not be taxed in Marion county, the railroad company having no residence there. (Civil Code, sec. 723, subsec. 33.)</p> <p>6. The Louisville and Nashville Eailroad Company is not liable for the county levies for the years 1882, 1883 and 1884, because it does not appear what is to be done with the money.</p> <p>Every municipal corporation, when it imposes taxes, must bo able to show due authority to make the demand. (Cooley on Taxation, chap. 21, p. 474; Cooley on Const. Lim., pp. 641, 643; Price v. Trustees of Bellevue, cited in 1 Ky. Law Eep., p. 276.)</p> <p>The tax-paver, when he pays his taxes, has the right to know for what ho is paying taxes, and what disposition is to be made of the money.</p> <p>I. The property of the Southern Division of the Cumberland and Ohio Eailroad Company is liable for the taxes to pay the bonds issued in aid of the old Cumberland and Ohio Eailroad.</p> <p>a. In order to constitute an identity of one corporation with another, which it succeeds, there must be (1) an identity of stockholders, original or as assignees; (2) the rights, franchises, immunities and liabilities must be the same; and (3) they must reasonably subserve the same purposes. It is clear that the “ Southern Division of the Cumberland and Ohio ” does not conform to this standard. When it came into existence, the “ Cumberland and Ohio Bailroad Company,” its predecessor, eo instanti, ceased to exist. (State v. Sherman, 22 Ohio St., 411; Marsh v. Pulton County, 10 Wall:, 676; Shields v. Ohio, 95 II. S., 319; Bailroad Company v. Maine, 96 TJ. S., 499.)</p> <p>b. Where one corporation succeeds to the property of another by purchase or succession, it takes it freed from the contracts, immunities, equities or liabilities which were personal to its predecessor. (E. H. & N. B. Oo. v. Commonwealth, 9 Bush, 438; Newport, &c., v. Douglass, 12 Bush, 673; Ches., 0. & S. W. B. Co. v. Griest, 9 Ky. Law Bep., 177; Bailroad Company v. Maine, 96 TJ. S., 499; Memphis, &e., v. Berry, 112 U. S., 609; Morgan v. Louisiana, 93 IT. S., 217; Wilson v. Gaines, 103 IJ. S., 417; People, &c., v. L. & N. B. Co., 120 111., 48.)</p> <p>2. Even if the Cumberland and Ohio Bailroad were now in existence, it would be liable.</p> <p>a. Marion county, having paid its subscription to the Cumberland and Ohio Bailroad Company in “bonds payable to bearer,” is as much a paid-up stockholder as the individual who has bought stock with money. (Kreiger v. Shelby Bailroad, 8 Ky. Law Bep., 8.) Therefore, the case of Applegate v. Ernst, 3 Bush, and similar cases, do not apply. (Murray v. Charleston, 96 U. S., 435.) In the case of Lou. & Nash. B. Co. v. Hopkins County, 10 Ky. L. B., 806, the subscription was a paid-up one, as in this case; but the point here raised was not decided by the court, because it was not presented.</p> <p>b. No exemption from taxation ever arises, except from “express grant,” in consideration of public services, and then the grant is strictly construed. Every intendment is against the intention to surrender the power of taxation. (Providence Bank v. Billings, 4 Peters, 514; Ky. Cent. B. Co. v. Bourbon County, 82 Ky., 497; V., S. & P. Bailroad Co. v. Dennis, 116 H. S., 665; Jefferson Branch Bank v. Skolly, 1 Black., 436, 446; Gilman v. Sheboygan, 2 Black., 510, 513; Delaware Bailroad Tax, 18 Wall., 206, 225; Hoge v. Bailroad Co., 99 U. S., 348; Southwestern B. Co. v. Wright, 116 U. S., 231; Er-ie Bailway v. Penn, 21 Wall., 492; Memphis Gaslight Co. v. Speakby Taxing District, 109 IJ. S., 398, 401; Tucker v. Eerguson, 22 Wall., 527, 575; West Wis. Bailway v. Supervisors, 93 H. S., 595; Memphis & L. B. Co. v. Bailroad Oom’rs, 112 H. S., 609; Louisville Water Co. v. Hamilton, 81 Ky., 517; E., L. & V. T. Oo. v. Commonwealth, 82 Ky., 386; Lancaster v. Clayton, 9 Ky. Law Rep., 611.)</p> <p>c. He who seeks equity must do equity. The subscription was made on the definite understanding and agreement that the Cumberland and Ohio should be completed pursuant to the purpose of its incorporation. This has never been done. Until the road company complies with that condition, it is in no position to ask for a mere equity.</p> <p>'3. In any event, the “Southern Division of the Cumberland and Ohio,” having added to the road actually more than the road is assessed at, is liable.</p> <p>-4. Marion county has not estopped itself by consenting to the change in the corporations. It is merely a trustee; and, where the interests of the beneficiaries are involved, may repudiate an act which, in a person suri jwris, would operate as an estoppel. (Brookie v. Portwood, 84 Ky., 259.) Besides, Marion county did not consent, and eould not have consented, to any transfer of the equities or franchises of the Cumberland and Ohio, except pursuant to the terms of the act of 1878, and that act is silent as to any attempted transfer of equities.</p> <p>•6. It is not necessary that an order of the county court making a levy should set forth the purpose for which the levy is made, or the statute under which it is made. The jurisdiction of the county court in fiscal matters being general, the facts showing jurisdiction will be presumed, and need not appear on the record. (Jacobs’ Adm’r v. Lou. & Hash. R. Co., 10 Bush, 268.)</p> <p>‘6. If the levy of 30 cents for 1882 was void, it was voluntarily paid, and could not be recovered back. (City, of Louisville v. Anderson, 79 Ky., 334.) If it could not be recovered, it could not be set-off against the company’s admitted liability for 1883.</p> <p>Against suits for taxes, set-off - can not be pleaded. A set-off can only be allowed in an action on a “ contract, judgment or award.” (Civil Code, section 96,' subsection 2.)</p> <p>'7. As a tax claim against a railroad company is collectible only by suit, it is an ordinary chose in action, and, therefore, interest may be allowed.</p>

<p>1. Obtaining Money Under False Pretenses. — To constitute the statutory offense of obtaining money under false pretenses, the pretenses whereby the money was obtained must relate to some pretended past occurrence or existing- fact. No representation of any thing to he done in future is a pretense, within the meaning of the statute.</p> <p>2. Same. — One who obtained money from the mother of a hoy confined in jail by falsely representing that her son was threatened with mob-violence; that it was necessary, in order to protect him, to remove him to the jail of another county; that defendant had been employed as his counsel, and needed money to effect the removal, was guilty of obtaining money under false pretenses, and the court erred in sustaining a demurrer to an indictment alleging these facts.</p>

Case 84 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The Louisville and Nashville Bailroad does not own any thing except the road-bed of 40 feet upon which the double-track railroad is built-The city did not convey all of the 110 feet, but merely the right of way for a double-track railroad, which it had agreed to convey. (Burnett’s City Code, p. 566, secs. 51, 52, 53, 54.) 2.

Case 85 — APPEAL FROM OWEN CIRCUIT COURT. Subsection 8 of section 606 of the Civil Code, which provides that no. prisoner in a penitentiary shall testify, does not apply to criminal cases. The General Statutes define who shall be disqualified as witnesses. (Commonwealth v. McGuire, 7 Ky. Law Rep.) 1. Under the common law, a felon was not a competent witness. (Cooley’s Blaekstone, Book' 3, side page 370; Idem, Book 3, pages-363, 364.) 2.

<p>1. Validity op Judgment. — A judgment in favor of the “descendants” of a person, without naming them, is not void for uncertainty; and, in this action to enforce such a judgment, there is no sufficient denial of the averment of the petition that plaintiffs are the same persons who obtained the judgment.</p> <p>2. Same — Pleading.—The denial of defendants “that they were parties to any action wherein the said plaintiffs herein were parties-plaintiflj and in which any cause of action against the defendants was alleged as the foundation for the alleged judgment,” can not be regarded as negativing the averment of the petition that defendants were parties to the suit in which the judgment was rendered.</p> <p>.3. A judgment against a personal representative is prima facie evidence against devisees in a proceeding against them to subject land devised to them to the payment of the testator’s debt.</p> <p>A. Suit to Enforce Judgment — Contradiction of Record. — In a suit to enforce a judgment, the record of which shows affirmatively that the defendant was before the court, defendant can not contradict the record by showing that he was not served with process or did not enter his appearance. Until vacated or reversed in the mode pointed out by the Code, the judgment is conclusive, unless attacked for fraud.</p> <p>■•5. Settlement of Decedent’s Estate — Cross-Petition.—In this action to settle an estate, a cross-petition was not necessary, in order to authorize the court to give defendants judgment for the sums to which they were entitled against the estate.</p> <p>■6. Practice — Amendment of Petition. — The court, having erroneously sustained a general demurrer to the petition upon the ground that no cause of action was stated, acted properly in subsequently disregarding that ruling, and in allowing the filing of an amended petition merely giving the names of additional parties-plaintiff.</p> <p>7. Judgment Against Married Woman for Debt of Testator. — A married woman having received estate by devise, a personal judgment against her for a debt of the testator, to be levied only of estate derived from him, was not void. And, in a suit to enforce that judgment, she can not plead that the debt for which it was rendered is barred by limitation. It being in issue in the old suit whether the estate received'by her from the testator was liable, the judgment is conclusive as to that question.</p>

<p>Case 87 — PETITION OBDINABY</p> <p>APPEAL FROM GARRARD CIRCUIT COURT.</p> <p>The policy sued on did not become void upon the death of the insured, the contract being to pay to the insured, “his executors,” &c. If it was intended that the policy should cease on the death of the insured, it should have been so expressed in the policy.</p> <p>An instrument is to he construed most strongly against the maker of it, and an insurance policy is not an exception to this rule. (Steel v. Mitchell, Sneed, 37; Thompson v. Thompson, 2 B. M., 166; Louisville Marine, &e., Oo. v. Bland & Coleman, 9 Dana, 143.)</p> <p>'The death of the insured caused such a change in the title of the insured property as, hy the express terms of the policy, rendered the policy void. (Hiñe v. Woolworlk, Receiver, &c., 13 Ins. Law J., 71; Sherwood v. Agr. .Ins. Co., 73 ÍT. Y., 447; s. c., 29 Am. Rep., 180, and 7 Ins. Law J., 520.)</p> <p>Additional authorities cited in petition for rehearing: Wood on Fire Insurance, p. 750, sec. 360; Waits’ Actions and Defenses, vol. 1,. sec. 329; 2d ed.; Carpenter v. The Providence Washington Ins. Co., 16 Pet. (U. S:), 502; May on Insurance, sec. 377, 378, 381, 264;. Savage v. Howard Ins. Co., 52 N. Y., 502; Davenport v. N. E. Ins. Co., 6 Cush., 340; Wood on Fire Ins., vol. 1, p. 706, sec. 336; Lop-pin v. Charter Oak Fire Ins. Co., 58 Barb., 325.)</p>

Case 88 — PETITION EQUITY APPEAL PROM MARION CIRCUIT COURT. The debt for which the judgment sued on was rendered was not a debt for which the wife was hound; and, therefore, the judgment is void. Held: upon the former appeal, the burden was upon Spencer and wife to show that the judgment was void, which they have wholly failed to do. The proof in this case is so meagre the court can not intelligently determine what was litigated in the original ease. 6.

<p>Case 89 — PETITION EQUITY</p> <p>APPEAL PROM HARLAN CIRCUIT COURT.</p> <p>1. Win. Turner, Sr., being entitled to a homestead, his infant children were entitled to the use and occupation of the homestead after his death. And, while the court may sell the homestead for the benefit of creditors, subject to the right of use and occupation by the widow and infant children, the court can not deprive the infant children of the right to occupy the homestead, as was done by the judgment in this case. (Gen. Stats., chap. 38, art. 13, sec. 14.)</p> <p>2. The fact that the homestead has increased in value since it was allotted to the debtor, does not deprive his infant children of the right to any part of it. Therefore, they are entitled to the interest on the entire proceeds until.the youngest reaches the age of twenty-one years.</p>

<p>Case 90 — PETITION ORDINARY</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>1. The court should not grant a - peremptory instruction, although the • presiding judge should be of the opinion that if the jury should find adversely to the request for such instruction, he would he compelled to sustain a motion for a new trial. (Buford v. L. & N. B. B. Co., 82 Ky.; 287; Thompson v. Thompson, 17 B. M., 22.)</p> <p>2. Not only was there evidence tending to show that public funds were-misappropriated by the Treasurer during the time for which defendants were his sureties, but it is made conclusively to appear, by the highest grade of evidence, that the public moneys were converted to the extent alleged.</p> <p>3. The negligence- charged against the Auditor and the Secretai-y of State is not sufficient to release the sureties of the Treasurer. The requirements of the statute, as to the statement of the accounts of' the Treasurer, are for the security of the State, are directory only to the officers required • to make the statement, and constitute no part of the contract with the sureties on the bond of the Treasurer. (Gen. Stats., chap. 108, art. 1, sec. 4; United States v. Kirkpatrick, 9 Wheaton, 735-6; Postmaster-General v. Beefier, 4 Wash., 684; United States v. Vanzant, 11 Wheaton, 189; Jones v. United States, 18 Wallace, 622; Byan v. United States, 19 Wallace, 517-18; Osborne v. United States, 19 Wallace, 578; Hart v. United States, 95 U. S., 316; Board of Supervisors v. Otis, 62 N. Y., 89; Banta v. Mercer County Court, 7 Bush, 577; Keel v. Preston, 5 Mon., 584;-Brandt on Suretyship, sec. 474; People’s Building Asso. v. Wroth, 43 N. J. L., 70; Supervisors v. Birdsall, 4 Wend., 453; Supervisors v. Jones, 19 Wis., 61; Earmington v. Stanley, 60 Me., 474; State v. Tax Collector, 40 La. Ann., 236.)</p> <p>4. It is not necessary that all the evidence given to the jury should be exhibited in the bill of exceptions, in order to enable this court to say that the trial court erred in giving a peremptory instruction to find for defendant. It is necessary only for appellant to present, in the bill of exceptions, enough evidence to show a prima facie right to recover. (Easley v. Easley, 18 B. M., 93.)</p> <p>■6. The records of the Auditor’s office and of . the Treasurer’s office were competent evidence against the sureties. (Gen. Stats., chap. 108, art. 2, sec. 1; Idem, chap. 6, art. 1; State v. Tax Collector, 40 La. Ann., 437.)</p> <p>The report of the Treasurer, made to the Legislature June 30, 1883, was competent evidence against the sureties as to the amount of money in the Treasurer’s hands at the beginning of his term. (Gen. Stats., chap. 108, art. 2, sec. 2; Bruce v. United States, 17 Howard, 439; Cassidy v. Trustees, 105 111., 560; United States v. Gaussen, 19 Wall., 198; Bhodes v. Commonwealth, 6 B. M., 359, 362; Van Sickle v. The County of Buffalo, 13 Neb., 103.)</p> <p>1. I he bill of exceptions must contain all the evidence, otherwise the court can not review the judgment below upon the testimony, even for the purpose of determining whether or not the court erred in giving a peremptory instruction. (L. & N. B. Co. v. Einley, 86 Ky., 297; Brockle v. Brockle, 7 Ky. Law Bep., 760; Haggard v. L., C. & L. B. Co., 7 Ky. Law Bep., 660.)</p> <p>Deeds, wills, books, and other writings introduced as evidence should be copied into the bill of exceptions. (Vaughn v. Mills, 18 B. M„ 633; Haney v. Tempest, 3 Met., 95; Duncan v. Brown, 15 Mon., 186.)</p> <p>The bill of exceptions in this case does not contain any of the books, papers and documents in evidence below, and, therefore, this court can not review the judgment for the purpose of determining whether the court erred in giving a peremptory instruction.</p> <p>2. Where, as in this case, an officer is his own successor, the sureties are only liable for defaults of their principal committed during the term of office for which they became his sureties, and are not responsible for any misappropriations occurring either before the commencement or after the end of the term covered by their bond. (Murfree on 'Official Bonds, sec. 639; Vivian v. Otis, &c., 24 Wis., 518; s. c., 1 Am. Bep., 199; Meyers v. United States, 1 McLean, 493; iJissell v. Saxton, 66 N. Y., 55; Earrer v. United States, 5 Peters, 389; United States v. Boyd, 5 How., 50; Treasurer of Vermont v. Mann, 80 Am. Dec., 88.)</p> <p>3. The books and papers introduced as evidence on the trial below were not only the best evidence, but the only legal evidence (as they were to be had and were present) of what they contained, and of the facts-their contents would establish. (Wharton on the Law of Evidence, vol. 1, sec. 60; Poore, &c., v. Robinson, 18 Bush, 293.)</p> <p>As a general principle, a written copy of a written instrument will not be received when the original can be had. (Wharton on Evidence, vol. 1, sec. 73.)</p> <p>4. It was necessary for appellant to establish the amount of money Tate, as Treasurer, actually had on hand at the beginning of the term, on the first Monday in January, 1882, as a basis to commence with, in order to show any defalcation for which appellees would be responsible. (Myers v. United .States, 1 McLean, 296.)</p> <p>6.As it is the duty of an officer to have on hand balances charged to him. in his official accounts, he is presumed to have such funds in his hands. (Murfree on Official Bonds, sec. 219; Bruce v. United States, 17 How., 437; American Leading Oases, Hare & Wallace, 5th ed., vol. 2, p. 480.)</p> <p>But this presumption will not avail to establish the money Tate had on hand when appellees became his sureties, because both parties allege the presumption is not true.</p> <p>6. The “pass-books” were but copies from the bank-books, and,'in the presence of the original books, it was proper to reject the copies, especially when, in some respects, the latter were shown to have been deficient, and not altogether reliable.</p> <p>A party must produce the beat evidence of which the case is, in its nature, susceptible. (Greenleaf on Evidence, vol. 1, sec. 82; Starkie on Evidence, vol. 1, pages 103 and 390; Philips on Evidence, pages 418 and 424; Wharton on Evidence, vol. 1, sec. 73; Davidson v. Davidson, 10 B. M., 115.)</p> <p>7. The court properly refused to allow Mr. Weaver, as an expert in bookkeeping, to answer certain questions propounded to him, as the result of allowing the witness to answer the questions would have been to permit him to try the case and announce to the court and jury the result of the trial. Expert testimony is not admissible upon a question which the court or jury can decide upon the facts. (Stutmore v. Shaw, 6 Stat. Rep., 412; Lawson on Expert and Opinion Evidence, 203; Rogers on Expert Testimony, 11; 66 Am. Dec., p. 230, note; Eerguson v. Hubbell, 97 hi. Y., 507.)</p> <p>The mere conclusions of witnesses as to the substance and effect of entries are not competent. The entry itself, or an exact copy thereof, must be presented to the court. (Poor, &e., v. Robinson, &c., 13 Bush, 294.)</p> <p>8. The law relating to a contract, in force when the contract is made, enters into and becomes a part of it; and even conceding that statutes merely directory to officers form an exception to this rule,.section 4 of article 1, chapter 108, General Statutes, is not directory merely.</p> <p>For a definition of a directory provision of a statute, see Rapaje & Lawrence’s Law Dictionary.</p> <p>9. But whether the provisions of the section of the statute referred to are mandatory or merely directory, the agency of the State, charged with the duty thereunder, undertook to perform it, and certified that they had performed it according to law, and that Tate had the money with which he was properly chargeable at the commencement of his succeeding term; and in either event, this action of the State’s agents having lulled the sureties into the belief that their principal had performed the conditions of his bond, and thus deprived them of the power of procuring indemnity, operates to release them. (Hobson & Sureties v. Commonwealth, 1 Duv., 172; ex parte Robert B. Randolph, 2 Brock., 447; Banta v. Mercer County Qourt, 7 Bush, 576; Story on Agency, 9th ed., sec. 307a; Baker v. Briggs, 19 Am. Dec., 311; Hunt v. Brigham, 2 Rick., 583; 13 A. D., 458; Sneed’s Ex’r v. "White, 3 J. J. M., 525; Am. Leading Cases, 5th ed., vol. 2, p. 461.)</p> <p>In each of the cases relied upon by counsel for appellant the laches, which the court held as insufficient to discharge the sureties, was the failure of the obligee in the bond, through its officer, to comply with some statute, provision or rule, merely directory; in each instance, the government’s officer failed to act in the premises. In ho one of those cases did the sureties rely upon an acquittance, executed to the officer at the end of his term by public agents, acting strictly within the scope of their authority, and charged with the duty of themselves stating and adjusting the accounts of the retiring officer, and making a public record of such statement and adjustment.</p> <p>10. The appellees were induced to enter into the contract of suretyship by reason of the representation of the State, through its agents, that Tate’s accounts and books had been examined according to law, and that the proper amount of public money was found in the Treasury. This representation being untrue, the, contract must be adjudged invalid. (Ford, &c., v. McComb, 12 Bush, 726; Graves, &c., v. Lebanon Hat.', Bank, 10 Bush, 23.)</p> <p>11. The several statings of the accounts of Tate, Treasurer, by the Auditor and Secretary of State, were the acts of the State. (Fletcher v. Peck, 6 Cranch, 87; Story on Agency, 9th ed., sec. 307a.)</p> <p>12. The motion to transfer to equity was properly overruled. There was no error made as to the form of action. (Civil Code, sec.-6.) : But if there was an error as to the form of the action, it was waived by failure to move for its correction at the time and in the manner prescribed by the Code. (Civil Code, secs. 8, 9, 15.)</p>

Cabe 91 — PETITION OBDINAEY APPEAL FROM FRANKLIN CIRCUIT COURT. ’There was no misjoinder of causes of action. The provisions of th« Civil Code of Practice clearly establish the right to join parties and causes of action, as in this case. (Civil Code, secs. 26, 27, 83.) 1.

Case 92 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. I. The fact that the property is not benefited by the improvement constitutes no defense to the assessment. (Pearson v. Zable, 78 Ky., 170;-Baltimore v. Hospital, 56 Md., 1; Spencer v. Merchant, 125 TJ. S.r 345; Preston v. Roberts, 12 Bush, 589.) 2.

<p>1. Conflict of Laws — Creditor Preferred by Debtor in Another State. — At common law, a debtor had a right to prefer a creditor, ■ either by a payment, or by an express preference in a deed of assignment. And, in the absence of any showing of the existence of a statute in another State forbidding such a preference, it must be presumed that the common law is in force there.</p> <p>2. Same. — Although by the statutes of this State, a preference by an insolvent debtor of one creditor, to the exclusion of others, is dedeclared to operate as an assignment for the benefit of creditors generally, provided it is attacked in the time and manner provided by the statute; yet such a preference, made in another State by a debtor residing there, will be upheld by the courts of this State, provided it is valid under the laws of the State where it was made; and there is nothing to show that any citizen of this State will be prejudiced by the preference.</p> <p>¡3. Pore ion Assignments for Creditors. — If an assignment made in another State he contrary to the law or the settled policy of this State, it will not he enforced here to the prejudice of our own citizen creditors.</p> <p>4. Parties to Action. — In a contest between a preferred creditor and a trustee for creditors generally as to the ownership of property transferred by tbe debtor to tbe favored creditor prior to tbe general assignment, tbe debtor is not a necessary party.</p> <p>16. Pleading — Affirmative Allegations. — An averment in a reply tbat a transfer was fraudulent must be regarded as merely a denial ■of. an averment in the answer tbat the transfer was liona fide, and upon sufficient consideration; and, therefore, the allegation of fraud! was not admitted hy a failure to deny it.</p>

<p>Case 94 — PETITION OEDINAEY</p> <p>APPEAL PROM DAVEISS CIRCUIT COURT.</p> <p>1. The appellant’s title and possession were rightful and legal, under the terms of the contract of December 10, 1886, when appellee took possession of the logs at Glenn’s bridge, and the possession was rightfully resumed by appellant, under the order of delivery in this action.</p> <p>The contract conferred upon appellant the right to take and hold the logs, in case of Whitescarver’s death. This was not an “incipient” right or lien, as in the case of Cook’s Adm’r v. Brannin. &c., 9 Ky. Law Bep., 957; but was a complete contract right. (Brooks, &e., v. Staton’s Adm’r, 79 Ky., 174; Benjamin on Sales, 3d ed., pp. 94-98; Idem, p. 322, sec. 309, and notes thereto; Hoffman v. Brungs, 83 Ky.)</p> <p>2. The rightful possession of personal property, especially when coupled with an interest therein, is such a title as will support this action. (1 Chitty’s Pleading, side pages 159, 160, 161; 2 Parsons on Contracts, p. 110, and note u.)</p> <p>There are Kentucky authorities to the effect that the mortgagee of chattels, even in possession, can not maintain replevin against an officer levying on the property under legal process; but this is upon the distinct idea that, under our statutes, the mortgagor’s interest was subject to levy and seizure, and the possession was to be taken by the officer levying on it. (Mclsaacs v. Hobbs, 8 Dana, 269; Dillon v. Wright, 7 J. J. Mar., 10; Squires v. Smith, 10 B. M., 35.)</p> <p>3. The appellant was, at least, entitled to a lien; and, as the facts on which the lien rested were presented in the pleadings, evidence and findings of the court as fully as they could have been presented in a court of equity, it was the duty of the court to adjudge that the lien existed. (Civil Code, sec. 8; Fraley v. Peters, 12 Bush, 469; Whitlock v. Ledford, 82 Ky., 390.)</p> <p>An amended petition was not necessary to authorize the court to enforce the lien of appellant. The claim of title to the logs was broad enough to cover the claim of lien. But even if not, the contract, evidencing appellant’s lien on the timber, was brought into the case by the answer of appellees, which may be resorted to, in order to supply the defects of the plaintiff’s pleadings.</p> <p>It is immaterial that no motion was made to transfer to equity. It was the duty of the court to render such judgment as was warranted by the pleadings and evidence, without regard to the docket on which the case stood. (Civil Code, sec. 8, and subsec. 3 of sec. 10; Lounsdale v. Mitchell, 14 B. M., 281; Frazer v. Nalor, 1 Met., 594; Fraley v. Peters. 12 Bush, 469.)</p> <p>1. The title to the logs was in Whitescarver at the time of his death, and, therefore, passed to his administrator; and the logs, being personal property, immediately underwent a “statutory sequestration,” and no creditor had any right to subject or interfere with them. (Cook’s Adm’r v. Brannin, Brand & Glover, 9 Ky. Law Rep., 955.)</p> <p>The fact that appellant had advanced money to Whitescarver for the logs to be delivered him, gave him neither title to nor a lien upon said logs. (Jennings v. Elannagan, 5 Dana, 217; Allen v. Shortridge, 1 Duvall, 36.)</p> <p>The stipulation that if Whitescarver should die, appellant should have the right to take enough timber to pay for advancements, did not give him any right to the timber, unless the title vested in him at the time of the agreement; and, as it was dependent on the happening of a contingency — Whitescavver’s death — the title did not pass. (Harrison v. Hobbs, 1 Bibb, 153.)</p> <p>Giving to the contract the broadest construction, appellant had only a lien, which did not give him the right to take possession of the property.</p> <p>2. This is a controversy between Whitescarver’s administrator, representing all the creditors of Whitescarver, who died insolvent, and appellant, who claims the logs as his own; in such a case, appellant has not’ even a lien for advancements, the contract not being recorded. (Barney & Smith Manufacturing Co. v. Hart, 8 Ky. Law Rep., 223; Roach, &c., v. Ames, 80 ICy., 6.)</p> <p>3. In sales of personal property, when any thing remains to be done by the seller, such as to ascertain quantity or price, and there is no stipulation for passing the title before that is done, the title remains with the seller. (Newcomb v. Cabell, 10 Bush, 468; Crawford v. ■Smith, 7 Dana, 60.).</p> <p>Hére there was simply a sale of the timber on certain land; and, as the trees were not marked or designated so as to identify them, no title passed to appellant. (Moss v. Meshew, 8 Bush, 189.)</p>

* Case 95 — PETITION ORDINARY APPEAL FROM CLARK CIRCUIT COURT. 1. It was error to allow plaintiff' to prove how engines “ usually,” and at other times and places, appeared as to their smoke-stacks and fenders or screens, and that trains had set fire to other property at other times. 2. The fact that fire has been occasioned by sparks from a railroad engine will not render the railroad liable, if it has used reasonable precaution to prevent the occurrence of the accident.

* Case 96 — APPEAL FROM LAUREL CIRCUIT COURT. 1. It is the duty of the court in a criminal case to give the whole law, whether asked or not. (Blim v. Commonwealth, 7 Bush, 327; Brady v. Commonwealth, 11 lb., 285-6.) 2. In arriving at the guilt or innocence of accused, the jury should be instructed to take into consideration all .the facts and circumstances proven. (Lightfoot v. Commonwealth, 80 ICy., 516.) 3.

<p>1. Criminal Evidence — Uncommunicated Threats. — Where it is a material inquiry, upon a trial for murder, whether the accused' or the deceased began the difficulty, it is competent, upon this issue, to prove threats by the deceased, although they had not been communicated to the accused.</p> <p>2. Evidence Showing Accused Advised Absent Witness not to Leave. — Pacts having been gotten prominently before the jury which were calculated to induce the suspicion that an absent witness had been improperly induced to absent himself, because he would, if present, testify to facts prejudicial to the defense, the' court erred in refusing to permit the father of the absent witness to state that one of the defendants advised his son not to go.</p>

<p>Case 98 — PETITION EQUITY</p> <p>Al’I’EAL FROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The sheriff for the time being must collect all taxes due in his county (Gen. Stats., chap. 92, art. 8, secs. 1, 7); and as the taxes in controversy in this case again became collectible in Jefferson county upon the reversal of the chancellor’s judgment enjoining their collection, and the ex-sheriff, Barbour, having received his final quietus, and been discharged from his revenue bonds, had no right to collect, the present sheriff' was the only one who had the right to collect the taxes, section 11 of article 9, chapter 92, of the General Statutes having no application.</p> <p>Cases explained: Hobson v. Commonwealth, 1 Duv., 172; Middleton v. Caldwell, 4 Bush, 392; Jones v. Gibson, 82 Ky., 561.</p> <p>2. While a sheriff to whom a quietus has been given is no longer liable on his bond, that can not. possibly have the effect to discharge, or even affect, the liability of the delinquent. The taxes are still due, and the sheriff covenants in his next year’s bond to collect them; and this is true, although the Auditor may have acted improvidently in granting the quietus.</p> <p>3. A sheriff is entitled to his quietus when he has paid or “accounted for” the taxes; and where he shows that the chancellor has enjoined him from the collection of certain taxes, the Auditor should accept this as an “accounting for” the taxes within the meaning of the statute. (Gen. Stats., chap. 92, art. 8, sec. 8; Idem, art. 9, sec. 10.)</p> <p>4. Even if Clark was not the proper officer to collect these taxes, it was the duty of the Masonic Temple Company, after its liability had been ascertained by this court, to pay the taxes into court, if it had any doubt as to whether or not Clark had the right to collect. (Ellis v. Brannin, 1 Duv., 48; State Railroad Tax Cases, 92 U. S., 575; national Bank v. Kimball, 103 U. S., 732; Dundee Mortgage Trust Inv. Co. v. Parish, 24 Eed. Rop., 197; Huntington v. Palmer, 8 Eed. Rep., 449; Merrill v. Humphrey, 24 Mich., 170; Rio Grande R. Co. v. Seanlan, 44 Texas, 649; London v. City of Wilmington, 78 H. C., 109; City Council of Montgomery v. Saver, 65 Ala., 564; Morrison v. Hershire, 32 Iowa, 271; Wood v. Helmer, 10 Keb., 65; Erazer v. Leibern, 16 Ohio St., 614; Harrison v. Haas, 25 Ind., 282; City of Ottawa v. Barnes, 10 Kan., 270; Koehler v. Dopporpool, 56 Wis., 480; Allenbeek v. Hall, 2 Kob., 426; Overall v. Ruenzi, 67 Mo., 203; Parmley v. Railroad Co., 3 Dillon, 34; Worthen v. Badgett, 32 Ark, 496; Johnson v: Roberts, 102 111., 655.)</p> <p>1. A sheriff has the exclusive power-, even after his term of office has expired, to collect the taxes that foil due during his term, and is not permitted to turn over to his successor any uncollected taxes or tax-bills. (Edwards v. Taylor, 4 Bibb., 353; Commonwealth v. Young, 5 Dana, 665; Middleton v. Caldwell, 4 Bush, 392; Kirk v. Roberts, 7 Ky. Law Rep., 306; Jones v. Gibson, 82 Ky., 664.)</p> <p>The State gives the sheriff' five years after the expiration of his term in which to fight out all matters of issue between himself and individual tax-payers (Gen. Stats., chap. 92, art. 9, sec. 11), but looks alone to him and the sureties in his revenue bond for the taxes.</p> <p>2. The matters for which a sheriff is allowed a credit, or entitled to a credit upon his revenue bond, are specifically enumerated in the statute, and this enumeration excludes any and all others. Therefore, resistance, legal or illegal, to the payment of a tax does not constitute a credit on the revenue bond of the sheriff, as the statute recognizes no such credit. (Gen. Stats, (revision of 1873), chap. 92, art. 8, secs. 9, 10, 14; Idem, art. 7, sec. 2; Idem, art. 9, sec. 7; Jones v. Gibson, 82 Ky., 563.)</p> <p>3. The obligation of the sheriff's bond to the State is that he will collect, account for and pay over, and it is no response to this obligation for the sheriff to say that the remedies and means afforded him by the State to collect the taxes were not efficient or ample, or that he was enjoined by the tax-payers from collecting the tax. (Cooley-on Taxation, 504; Timberlake v. Brown, 59 Ala., 122; Inhabitants v. Clark, 33 Me., 482; State v. Britt, 8 Heisk, 298; Needham v. Morton, 146 Mass., 476; Painter v. Blairstown, 43 N. J. T5q., 317; Yassalboro v. Norvell, 75 Me., 247; Houston v. Duryer, 59 Texas, 113; State v. Lott, 69 Ala., 147; Yermillion v. Brookskin, 31 La. Ann., 736; Berks County v. Levan, 86 Pa. St., 360; Timberlake v. Brown, 59 Ala., 108; State v. McNeil, 74 N. C., 535; McLean v. State, 8 Heisk., 22.)</p> <p>If the statute is defective, that is a matter for the Legislature, and not for a court of equity. (McLean County v. Deposit Bank, 81 Ky., 258; Campbell v. The State, 8 Heisk., 340.)</p> <p>4. Until set aside by a direct pr-oceeding, as authorized by the statute, the quietus of the Auditor is conclusive that Barbour paid into the treasury all the taxes with which he was charged. (Hobson v. Commonwealth, 1 Duv., 172; Thomas v. Ireland, 88 Ky.; Taylor v. Lewis, 2 J. J. Mar., 392; Sergeant v. George, 5 Litt., 192.)</p> <p>5. When a sheriff is invested with no power to collect a debt or demand, a payment to him does not, to any extent, discharge the debt or demand. (Craigs v. Graves, 4 J. J. Mar., 603; Hawkins v. Commonwealth, 17 B. Mon., 146; Commonwealth v. Shanks, 6 Ky. Law Rep., 524; Blackwell on Tax Titles, side pages 167-168; Cooley on Taxation, 292.)</p> <p>6. The Auditor had no right to give Barbour a credit for the amount of the taxes he was enjoined from collecting; but if he gave the credit, the claim of the State against Barbour’s sureties for that amount went with it. The State had no claim against the Masonic Temple Conipany. (61 Ala., 319’; 50 FT. Y., 620; 2 Denio, 26; 1 Duv., 172; .3 3. & M., 529; 49. Miss.,..404 ; 8 Peters, 375; 18 Pa. St., 144; 61 Pa. St., 290; 12 Peters, 524 ; 2 Brock., 447.)</p>

Case 99 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The demurrer to defendant’s answer related back to the petition, ■ and as that did not set up a cause of action of which the court had jurisdiction, it ivas bad, and the demurrer should not have been sustained against the answer, as the plaintiff had committed the first fault. (Wilie v. Sweeny, 2 Duv., 61; Young v. Duhme, 4 Met., 239; Martin v. McDonald, 14 B. M.) 2.