Volume 91 — Kentucky Reports

Case 1 — PETITION ORDINARY — APPEAL FROM NELSON CIRCUIT COURT. 1. Judgment dismissing an action upon general demurrer may be pleaded in bar to another suit for same cause of action. (Gould v. Evansville R. Go., 91 U. S, 526; Alley v. Nott, 111 U. S., 472; Price V. Sthroshly, 2 Bibb. 589; Daniel v. Morrison, 6 Dana, 187; Curts v. Trustees of Bardstown, 6 J. J. M., 538; Woolley, &c., v. Louisville Banking Co., 81 Ky., 527.) 2.

<p>1. The Agricultural and Mechanical College of Kentucky furnishes something more than a common school education, and, therefore, does not constitute a part of the common school system of the Stale.</p> <p>2. Constitutional Law — Taxation in aid of other than Common Schools. — The Constitution of Kentucky does not require that all money raised by the State by taxation, for educational purposes, shall he applied to the support of the common^ schools. Therefore, the Legislature may impose a tax in aid of an educational institution, although it does not form a part of the common school system.</p> <p>3. Construction of Constitution. — Where the words of a particular provision of a Constitution leave the meaning in doubt, the courts will look to its history, the mischief intended to be remedied, and the practical construction which has been given to it in order to arrive at the intention.</p> <p>4. The debates of a Constitutional Convention are not conclusive OF THE MEANING OF THE CONSTITUTION, but it ÍS proper to examine them in order to ascertain the purpose sought to be accomplished by a particular provision where the language of the Constitution leaves the meaning in doubt.</p>

Case 3 — PETITION EQUITY — APPEAL FROM LOUISVILLE LAW AN.D EQUITY COURT. Where the terms of a partnership, being in parol, are doubtful, either in language or construction, the conduct of the partners in carrying on the business and the entries upon the books will largely influence the court in determining the true meaning and effect of the partnership agreement.

Case 4 — PETITION ORDINARY TRANSFERRED TO EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. -It is not a misjoinder when seeking to recover of appellees as “ winners’ of the money lost at gaming to also pray a recovery of them because they invited or induced appellant to play. (McKinly v. Call, 1 Mon., 54; Powell v. Weiler, 11 B. M., 187; Jones v. Johnston, 10 Bush, 650; Hinkle v. Commonwealth, 4 Dana, 518.) 2.

Case 5 — PETITION EQUITY — APPEALS FROM LOUISVILLE LAW AND EQUITY COURT. 1, An order of the county court admitting a will to probate is conclusive except as to matters of jurisdiction. (Gen. Stats., chap. 113, see. 28; Jacobs’ Adm’r v. L. & N. R. Co., 10 Bush, 263; Happy’s Will, 4 Bibb, 553; Payne’s Will, 4 Mon., 427; Walters v. Ratcliffe, 5 Bush, 576; Thompson v. Beadles, 14 Bush, 47; Schouler on Administrators, sec. 392.) 2.

<p>1. Death of Railroad Employe from Negligence of Company— Survivor of Action for Suffering. — Where an employe of a railroad company is injured by the neglect of the company, and there is an appreciable interval of suffering between the time of the injury and death, he may recover for the suffering; and upon his death the right of action, by virtue of chapter 10 of the General Statutes, survives to his personal representative, although he may have left neither widow nor child.</p> <p>2. The question of negligence is a mixed one of law and fact. If disputed, it is the province of the jury to find the degree. If undisputed, the court determines the question. If it be questionable where this duty rests in a particular ease, it should be left to the jury.</p> <p>The defendant was not prejudiced in this case by leaving the character of the negligence to the jury, because the court would have been bound upon the facts of the case to have found it to have been willful.</p> <p>3. Willful Negligence. — In descending a grade a heavily-loaded freight train was in some way broken into two sections. The engineer, becoming apprised of tlie fact, put on additional steam and ran ahead with the front section to avoid a collision. He repeatedly gave the signal for a stop of the rear section, and when he finally cheeked the front section, supposing that those in charge of the rear section had stopped it, a collision occurred, resulting in the injury of the brakeman on the front section. The brakeman on the rear section was in the caboose with the conductor, and neither paid any attention to the repeated alarms. Held — That both the brakeman and the conductor were guilty of willful negligence.</p> <p>4. Fellow Servants. — While the master is not liable unless the negligent servant was the superior of the one injured, yet, as the conductor in this ease, who was a party to the neglect, was the superior of the injured brakeman, the rule of respondeat superior applies, and the . company is liable.</p> <p>5. Excessive Verdict. — As the jury had the right not only to award compensation, hut also to award such exemplary damages as they saw fit, the court can not say that a verdict for seven thousand five hundrod dollars is so excessive as to authorize a reversal, as no person can tell the extent of the mental and physical suffering of the decedent during the nine hours which elapsed from the time of injury until death.</p>

<p>Construction oe Devise. — A direction by a testator that a certain sum per annum be paid to one of his daughters during each and every year of his wife’s life is to be regarded as a charge upon the testator’s estate until the death of his widow, payable to his daughter, or to her children in the event, of her death prior to that of her mother, the bequests by the testator to his other daughters tending to show that such was his intention.</p>

Case 8 — PETITION EQUITY — appeal prom union circuit court. Even conceding that the word children should he construed as a word of purchase, and not one of limitation, there is a direct conflict between the premises of the deed and the habendum. When that is the caso the premises must control. (Greenleaf’s Cruise on Real Property, secs. 75 and 76; 42 Am. Rep., 703; Washburne on Real Property, vol. 3, pp. 372-374; 9 Ky. Law Rep., 524; 10 Ky.

Case 9 — PETITION EQUITY — APPEAL FROM HENRY CIRCUIT COURT. 1. The homestead as first set apart is to be conclusively held as worth no more than one thousand dollars, unless it be shown that such valuation was the result of fraud or a material mistake. An honest error of judgment will not avail. (Lawrence v. Edelin, 6 Bush, 55; Knight v. Whitman, 6 Bush, 52.) 2.

<p>Case 10 — PETITION ORDINARY —</p> <p>APPEAL FROM HARRISON CIRCUIT COURT.</p> <p>Brief not in record.</p> <p>1. The act of the Legislature creating the State Board of Equalization is not unconstitutional. (Spalding v. Hill, 9 Ky. Law Rep., 852; Russell, Sheriff, v. Carlisle & Litsey, 10 Ky. Law Rep., 25.)</p> <p>2. Section 3 of article 8, chapter 92, General Statutes, applies solely to taxes assessed after the meeting of the county board of supervisors, and not tp persons who became dissatis’fied after such meeting with the assessment of their property. (Gen. Stats., chap. 92, art. 6, sec. 4; Idem, art. 7, secs. 6, 7; Idem, secs. 9, 14, 22.)</p> <p>In the case at bar there was no assessment of any property of appellant after the meeting of the board of supervisors. The action of the State Board of Equalization was not an assessment.</p> <p>3. The present chapter 92 of the General Statutes must be construed to be the whole law upon the subject of revenue and taxation. (Broadus’ Heirs v. Broadus’ Devisees, 10 Bush, 299.)</p>

Case 11 — AGREED CASE — appeal from warren circuit court. 1. Private banks are subject to taxation by municipal corporations Section 1 of article 2, chapter 92, General Statutes, does not apply to unincorporated banks. (Campbell’s Ex’r v. Farmers’ Bank, 10 Bush, 154; Gen. Stats., chap. 92, art. 2, secs. 2, 4, 6, 7; Idem, art. 0, sec. 25.) 2.

Case 12 — PETITION ORDINARY APPEAL FROM DAVEISS CIRCUIT COURT. 1. Whatever may be the distributive rights of the parties, the husband had the right to maintain this action as administrator. 2. Section 15, article 4, chapter 52, General Statutes, excludes the husband only during coverture. (Brown, &c., v. Alden, &c., 14 B. M., 141.) 3.

Case 13 — PETITION EQUITY — APPEAL FROM FLEMING CIRCUIT COURT. In the absence of an indorsement on the summons conferring authority, service by a special bailiff is void, and can not be made valid by a subsequent indorsement on the summons. There must be a strict compliance with the statute providing for service of summons by a special bailiff. (Simms, &c., v. Simms, &c., 88 Ily., 642.) It is the right and duty of the sheriff to amend an erroneous return upon process.

Case 14 — PETITION ORDINARY — APPEAL FROM BOYD CIRCUIT COURT. No act or statement of appellant that amounts to an estoppel is proved. As to the elements necessary to constitute an estoppel, see Bigelow on Estoppel, 480; Biddle v. Mercie Mining Co., 14 Cal., 279; Wood v. Miller, 37 Pa.

Case 15 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. To enable executors to sell land the power must either be expressly given to them, or necessarily implied from the avails having to pass through their hands in the execution of their office, as in the payment of debts or legacies. (2 Redfield, 124; 1 Williams, 550; Schouler on Executors, p. 509.) 2. The intention of the testator as expressed in his will is to govern. (1 Redfield, 433.) 8.

Case 16 — PETITION EQUITY — APPEAL FROM KENTON CHANCERY COURT. 1. When the incapacity to sue appears in the petition, a failure to object by demurrer is a waiver of the objection which might have been made. (Betty v. Malier, 14 B. M., 200; Johnson’s Heirs v. Chandler’s Heirs, 15 B. M„ 584; Hardee, Son & Co. v. Hall & Long, 12 'Bush. 327; Warfield v. Gardner’s Adm’r, 79 Ky., 583; McAllister’s Adm’r v. Savings Bank, 80 Ky , 687.) 2.

<p>Purchase with Notice of Equity. — Although one may have purchased property with notice of the equity of another and with the intention to defraud him, the equitable owner can not set aside the sale if he had consented to a sale of the property.</p>

<p>Case 18 — PETITION ORDINARY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>1. Authorities cited upon statute of limitations, and as to damages recoverable under original cause of action: Chicago, &c., E. Oo. v. Loeb, 5 West. Bep., 887; Chicago, &c., E. Co. v. McAuloy, 8 West. Bop., 457; Pratt v. Des Moines, &c., E. Co., 33 N. W. Bep., 666; Haiso'h v. Keokuk, &c., R. Oo., 33 N. W. Rep., 126; Frankie v. Jackson, Receiver, 30 Fed. Rep., 398; Troy v. Cheshire R. Co., 23 N. H., 101; 45 la., 652; Ottawa Gas Co. v. Graham, 28 111., 73; 111. Cent. R. Co. v. Grabill, 50 111., 242; Cooper v. Randall, 59 111., 321; Decatur Gas</p> <p>Oo.v. Howell, 92 111., 19; Chicago, &c., R. Oo. v. Maher, 91 111., 312; 65 Mo., 332; 73 Pa., 38; E., L. & B. S. R. Co. v. Combs, 10 Bush, 382; J., M. & I. R. Co. v. Esterle, 13 Bush, 667.</p> <p>2. Every day’s continuance of a nuisance is, in judgment of law, a fresh and original injury, and accordingly the right to sue does not expire until, by lapse of time, the oilending party has acquired a prescriptive right. (Railroad Oo. v. Ilambleton, 40 Ohio St., 496; Cooley on Torts, p. 619; Wood on Nuisances, sec. 865; Taylor’s Landlord and Tenant, sec. 175.)</p> <p>But this is not a case of nuisance, as appellant occupies Saratoga street both by legislative and municipal sanction.</p> <p>3. Appellant is not liable for damages accruing- prior to its operation of road on Saratoga street, as it neither expressly nor by implication assumed the payment of its predecessor’s liabilities. (Chicago, &c., R. Oo. v. Loeb, 5 West. Rop., 887, and authorities cited.)</p> <p>4. Even if this could be regarded as a case of nuisance, the grantee of a nuisance can not be held liable on account of it until after notice and request to discontinue. (1 Duv., 254; Wood on Nuisances, sec. 73; Cooley on Torts, 611; 98 Miss., 39; 107 Mass., 355; 3 Allen, 264.)</p> <p>5. Upon question of ingress and egress, and as to sufficiency of passway for ordinary purposes of travel, see Crosby v. O. & R. R. Co., 272; 10 Bush, 293; 10 Bush, 391; 13 Bush.</p> <p>6. As to damnum absque injuria, see 8 Cent. Rep., 818, 827 (Pa.); 5 West. Rep., 893; 50 111., 242; 108 U. S., 317; 8 Ky. Law Rep., 788; 8 Pa., 366; 34 Serg. & Rawle, 71; Weeks on Damnum Absque Injuria, secs. 4 and 8.</p> <p>1. If the railroad company unreasonably abridges the right of the lot-owner in the use of the street, such exercise of its right by the railroad company ceases to bo lawful as to the lot-owner, and subjects the company to an action for damages by him. (Lexington & Ohio R. Co. v. Applegate, 8 Dana, 293; 13 Bush, G67; 8 Dana, 289; 17 B. M., 772; 9 Bush, 264; 10 Bush, 288; 38 Ohio St., 45; Kemper v. Louisville, 14 Bush, 87.)</p> <p>2. The court properly refused defendant’s amended answer setting up the claim that it had purchased the road, and was not liable for the acts of its predecessor. But the instructions practically gave defendant the benefit of the plea, as the jury were told, in effect, that the obstruction must be continuous to enable plaintiff to recover.</p> <p>One who receives property on which a nuisance exists and con-times the nuisance is liable for all damages. (Railroad Co. v. Hamilton, 40 Ohio St., 497; Taylor’s Landlord and Tenant, see. 175; Brown v. Woodworth, 2 Barb., 550; Swords v. Edgar, 59 N. Y., 28; Wood on Nuisances, 951, 2d ed.; Shearman & Redfield on Negligence, sec. 56; Cooley on Torts, 608.)</p> <p>Notice to defendant to abate the nuisance was not necessary. (Cooley on Torts, 612.)</p> <p>3. If there be any limitation at all to such an action it is fifteen years. Such actions are not for trespasses to real estate, but actions on the case for the taking of property under the Constitution. (Esterle case, 13 Bush, 667; Railroad Oo. v. Applegate, 8 Dana, 293; 17 B. M., 772; 9 Bush, 264; 10 Bush, 288, 382; 14 Bush, 87; 38 Ohio St., 45; 14 Ohio St., 243; 7 Ohio St., 459; 17 N. J. Bq., 75; Gen. Stats., p. 246; Railroad Oo. v. Hamilton, 40 Ohio St,, 497; Anderson v. Arnold, 79 By.( 370.)</p> <p>4. No length of time will prescribe for a nuisance. (Bowler v. Landers, Oro. Jac., 446; Weld v. Hornby, 7 Bast; Rex v. Cross, 3 Camp., 227; Wood on Nuisances, secs. 705, 706, p. 720; Cooley on Torts, pp. 613, 614.)</p> <p>5. Mere failure to order the company off, or failing to sue promptly for damages, will not operate as a license to the company. (Roach v. Railroad Co., 54 Wis., 136.)</p> <p>6. Upon the subject of trespass and limitation, see Wood on Limitations, p.365, sec. 177; Bonomi v. Blackhouse, 5 Jur. U. S., 1345; Darby Colliery Case, Cent. L. J.; Wood on Lim., secs. 177, 180, 181, 182; Whitehouse v. Bellows, 10 C. B., IJ. S., 765; 72 Mass., 72; Wood on Nuisances, 717; Mam v. Gilliam, 1 Cold., Tenn., 488; Pollard v. Barnes, 2 Cush., 191.</p>

Case 19 — INDICTMENT APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. The indictment plainly charges an offense under the statute. (Act of April 9, 1873, Gen. Stats., p. 843, 1st ed.; act of April 12,1873, see. 3 ) 2. As to the time when the offense was committed, it is only necessary to allege that it was before the finding of the indictment. (Commonwealth v. Jones, 1 Bush, 34.) 3. It is not necessary that the indictment should negative any matters of defense.

Case 20 — PETITION ORDINARY — APPEAL PROM MASON CIRCUIT COURT. A man who maliciously procures another to break his contract with a third person is responsible to such third person for the damages thereby sustained by him.

<p>Case 21 — INDICTMENT</p> <p>APPEAL PROM PIKE CRIMINAL COURT.</p> <p>The facts alleged in the indictment are sufficient to constitute the statutory offense of false swearing. (Gen. Stats., chap. 29, art. 8, sec. 2; Richey v. Commonwealth, 81 Ky., 525; Commonwealth v. Steel, 8 Ky. Lgw Rep., 205; Ferguson v. Commonwealth, 1 S. W. Rep., 435.)</p>

Case 22 — PETITION ORDINARY — APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. Brief not in record. 1. One party to a contract can not maintain an action against a person who has procured the other party‘to the contract to break ,it. (Cooley on Torts, p. 497; Chambers v. Baldwin, Superior Court, 11 Ky. Law Rep., 228.) 2. An act in itself legal does not become illegal because of the motive which prompts it.

Case 23 — PETITION ORDINARY — APPEAL PROM HENDERSON CIRCUIT COURT. 1. If a plaintiff wishes to waive his common law remedy for the recovery of usury, and rely upon the action given by section 5198 of the Revised Statutes of the United States, he should declare upon that statute. (Bell v. Morris, 79 Ky., 48; Judy v. Howard, 2 Met., 46.) 2. The petition is fatally defective in failing to allege that the usurious interest was knowingly taken.

Case 24 — PETITION EQUITY — APPEAL FROM GRANT CIRCUIT COURT. 1. A judgment of conviction against one wlio has had no opportunity to be heard is void. (Constitution of Kentucky, art. 13, sec. 12.) 2.

<p>Construction op Devise. — A testator devised to his wife, “ in lieu of her dower,” the farm upon which they resided until his youngest child should come to the age of twenty-one years, and then to his children in equal shares. Held — That the widow’s, right to the enjoyment of the estate did not cease upon the death of the youngest child before coming to the age of twenty-one, hut continues until the youngest child would, if she had lived, reached that age.</p>

<p>Case 26 — INDICTMENT—</p> <p>APPEAL PROM CLARK CIRCUIT COURT.</p> <p>No brief in record.</p>

Case 27 — PETITION ORDINARY — APPEAL FROM WHITLEY COURT OF COMMON PLEAS. No brief in record. No action can be maintained against a county for failure to erect and keep in repair a good and sufficient county jail. Such an action is allowed only against the members of the county court whose names do not appear in favor thereof. (Gen. Stats., chap. 28, art. 17, sec. 4.)

Case 28 — PETITION ORDINARY — APPEAL FROM OWEN CIRCUIT COURT. 1. Municipal corporations possess only such powers vs are expressly granted by statute, and such as may be implied as essential to carry into effect those which are expressly granted. (Ravenna v. Pa. Co. (Ohio), 10 Western Rep., 463; Brenham v. Brenham Water Co., 67 Texas, 542; State v. Hunter, 38 Kan., 578; Re Standiford, 8 Cent.

Case 29 — PETITION ORDINARY — APPEAL FROM DAVEISS CIRCUIT COURT. The act of the Legislature, entitled “An act to amend article 1, chapter 55, of the General Statutes, title ‘ Division Fences,’ ” is unconstitutional. The objections to it are: 1. The subject is not expressed in the title (Constitution of Kentucky, ai't. 2, sec. 37; Pennington v. Woolfolk, 79 Ky., 13; Rushing v. Sebree, 12 Bush, 198.) 2.

<p>Cas® 30 — PETITION ORDINARY—</p> <p>APPEAL PROM GARRARD CIRCUIT COURT.</p> <p>1. A State court has no jurisdiction as to penalties under a federal statute. (Prigg v. Penn, 16 Peters, 539; Houston- v. Moore, 5 Wheat., 1; Martin v. Hunter, 1 Wheat., 324; Olafilin v. Houseman, 93 U. S., 150; 1 Kent, star page 401-2, and citations; U. S. Rev. Stats., sec. 5198; 1 Kent, star pp. 400 and 403; Teal v. Felton, 1 Comst., 537; Teal v. Felton, 12 How., 285; 4 Black., 156; Act of Virginia of 1730, 2 Stat. Laws of Ky., 852; sec. 6, art. 8, first Const, of Ky.; Haney v. Sharp, 1 Dana, 442; Newell v. National Bank of Somerset, 12 Bush, 58; Barnett v. National Bank, 98 U. S., 559;. Steadman v. Redfield, 8 Baxter, 337; Ham bright v. National Bank, 3 Lea, 40; Barnett v. Shelbyville Bank, 85 Tenn., 326; Hintermister v. First National Bank of Chittenaugo, Thompson’s National Bank Cases, 401; Brown v. Second National Bank of Erie, 72 Pa., 209.)</p> <p>2. As our State courts can enfoz'ce the federal statute only upon thu theory that it is a State law, and that it became such by the force of its own terms, we can refer it for its validity or the z'everse to our State Constitution. Applying this test, we find' that it does not impose equal burdens upon all, and, therefore, a State court can not enforce it. (Cooley’s Const. Lim., 393.)</p> <p>3. Under the statute in question, the borrower1 can recover only twice the usury, and ziot twice the interest paid. (Hintermister v. First National Bank of Chittenaugo, Thompson’s National Bank Cases, 401; Brown v. Second National Bank of Ez-ie, 72 Pa., 209.)</p> <p>1. In a case like that at bar the State court has jurisdiction. (Thompson & Bz-own’s National Bank Cases, vol. 1, pp. 741, 745, 835, 849; Idem., vol. 2, pp. 209, 367, 385, 396, 421; Idem, vol,. 3, pp. 557, 737, 746 Blatz v. Columbia, 30 Am. Rep., 346 Lynch v. Merchants’ National Bank, 46 Am. Rep., 522; Haney v. Sharpe, 1 Dana, 442; notes in 28 Am. Rep., 463; 1 Otto, 29; 3 Otto, 130; 12 How., 284; Tucker & Gould’s Notes on Rev. Stats. U. S., 941.)</p> <p>2. The criterion of recovery is twice the amount of the interest paid, and not merely twice the amount of usury. (Thompson & Brown’s National Bank Oases, vol. 1, pp. 317, 118, 350, 835, 849; vol. 2, pp. 19, 209, 395; vol. 3, pp. 737, 750; 28 Am. Rep., 455; 30 Am. Rep., 348; Tucker & Gould’s Notes on Rev. Stats. IT. S., p. 940; Hill v. National Bank of Barre, 15 Red. Rep., 432.)</p>

Case 31 — PETITION EQUITY — APPEAL PROM DAVEISS CIRCUIT COURT. The sub-tenant is not the debtor of the landlord, and is, therefore, not entitled to the exemptions allowed by the statute. The sub-tenant is entitled to exemptions. (Patterson v. Mosby, MS. Op., by Judge Gofer, 1880.)

Case 32 — PETITION EQUITY — APPEAL PROM MERCER CIRCUIT COURT. 1. The heirs of Lucy Bronaugh were necessary parties, and, therefore, appellant’s demurrer should have been sustained. 2. The life estate of appellant can not be sold for debts contracted for any other purpose than that of raising and educating the testator’s two youngest sons. 3.

Case 33 — PETITION EQUITY — APPEAL PROM CAMPBELL CIRCUIT COURT. 1. A court of equity has jurisdiction to rescind a contract in relation to personal property on the ground of fraud. (Holcombe’s Fq. Jur., p. 43; Bradbury v. Keas, 5 J. J. Mar., 446; Gibson v. Mbore, 7 B. M., 94; Lane, &c., v. Bobinson, 18 B. M., 630; Carroll’s Code of Practice, sec. 250.) 2.

Case 34 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. 1. As there is no testimony tending to show that appellant’s land is benefited in any manner by the incorporation, it can not be subjected to municipal taxation. (Covington v. Southgate, 15 B. M., 498; Courtney v. Louisville, 12 Bush, 420.) 2. Appellant’s conduct in office or his vote could only be meant to affect any property of his which the law rendered taxable. Brief not in record.

Case 35 —INDICTMENT— APPEAL FROM LEWIS CIRCUIT COURT. 1. Unless the former indictment was lost or dismissed, and a proper order made by the court, the grand jury had no right to return a second indictment, nor could appellant be tried thereon while the original proceeding was still pending. (Commonwealth v. Keger, 1 Duv., 240.) 2. Appellant was entitled to a new trial on account of tho separation of tho jury. (Commonwealth v. Shields. 2 Bush 81.) 3.

Case 36 — PETITION EQUITY — APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS.

Case 37 — PETITION ORDINARY — APPEAL PROM HARRISON CIRCUIT COURT. 1. The burden of proof was upon the plaintiff, and his counsel was entitled to the conclusion of the argument to the jury- (Royal Ins Co. v. Sell wing, 10 Ky. Law Rep., 380; Fireman’s Ins. Co. v. Schwing, 10 K3'. Law Rep , 883.) 2. An insurance company is bound by act of agent in making false statement in filling up application, and is estopped from relying upon such false statement. (Ins.

<p>Case 38 — PETITION EQUITY —</p> <p>APPEAL PROM DAVEISS CIRCUIT COURT.</p> <p>1. When the owners of the land who licensed the ditch induced the owners of the land drained to expend their money in the construction of the ditch, the license became irrevocable, and the present appellees, being j. the vendees of the licensors, and having notice of the existence of the ditch, which was visible on the land, are estopped to dispute appellant’s right to use the ditch. (Angelí on Water Courses, section 318; Washburne on Easements, side pages 317-318; Herman’s Law of Estoppel, p- 494, secs. 517, 518, 519; Cobb v. Smith, 16 Wis., 661; Kerr on Injunctions, side pages 41-44.)</p> <p>2. The chancellor interposes by injunction only where the right is manifest. (Kerr on Injunctions, side pages 200-203.)</p> <p>3. In any event it was error to enjoin appellants from permitting any water to flow through the ditch.</p> <p>1. Where the owner of an estate has by parol granted an easement in his . land, upon the faith of which the other party has expended moneys which will be lost if the right to enjoy such easement is revoked, equity will enjoin the owner of the first estate from preventing the use of the easement. (Wasbburne on Basements and Servitudes, p. 90; Dillon v. Crook, &c., 11 Bush, 323.)</p> <p>2. While one may not collect surface water into artificial channels on his own land, and pour the same through these upon a lower proprietor’s land, he may discharge the same through such channels into a natural stream flowing through his own land, though it may swell the natural quantity in such streams when it reaches the lands below his. (Washburne on Easements, pages 460-463; Ogburn v. Conner, 13 Am. Rep., 215; McCormick v. Horan, 37 Am. Rep., 479.)</p> <p>3. No injunction should be granted in a case like this unless the injury to be done by the ditch is obvious, and such as to require immediate interference in order to prevent great and permanent mischief. (Story’s Bq. Jur., secs. 925, 926.)</p> <p>4. The ditch in question has been adopted by the county court as a road ditch, and is, therefore, a public as well as a private ditch, and is not governed by the rules applicable to a private ditch. (Gen. Stats., chap. 94, sec. 21.)</p> <p>5. The facts did not authorize a mandatory injunction.</p> <p>1. Surface water can not be lawfully collected into ditches and discharged upon adjoining lands. (Pettigrew v. Village of Evansville, 25 Wis., 223; High on Injunctions, secs. 751, 809, note 2, and 852, note 4; Washburne on Easements and Servitudes, sec. 6, pp. 353 to 355; Angelí on Water Courses, secs. 108.) and 108 k.)</p> <p>The following cases support the plaintiff’s action : Miller v. Lauback, 47 Pa.; s. e., 86 Am. Dec., 522; Butler v. Beck, 16 Ohio, 335; s. c.., 88 Am. Dec., 452, and note; Adams v. Walker, 34 Conn., 466; s. c., 91 Am. Dec., 7Í2; Nevins v. City of Peoria, 41 111., 502; s. c., 89 Am. Dec., 392, and note, Gannon v. Hargadon, 10 Allen, 106; s. c., 87 Am. Dec., 626, and note.</p> <p>2. The county, without first making compensation, has no more right to construct ditches and flood a land-owner’s lands than an individual would have. (Pumpelly v. Green Bay Co'., 13 Wall, 166; Nevins v. Peoria, 41 111., 502; Pettigrew v. Evansville, 25 Wis., 223.)</p> <p>3. The power of courts of equity to grant mandatory injunctions can not be questioned. (High on Injunctions, secs. 2 and 809; Lane v. Newdigate, 10 Ves., 192.)</p>

Case 39 — PETITION ORDINARY — APPEAL FROM MEADE CIRCUIT COURT. 1. By the deed alone is the court enabled to know the intention of the contracting parties. (Brown v. Parish, 2 Dana, 9.) 2. As the parties understood the contract, and its conditions are not unlawful, the court will enforce it, although it may seem absurd. (Huff v. Thomas, 1 Mon, 160; Hatcher v. Andrews, 5 Bush, 566; Parrish v. Vaughan, 12 Bush, 99; Spurrier’s Heirs v. Parker, &c., 16 B. M., 275.) 3.

<p>1. Bes Adjudicata — Suit for Part of Demand. — Where one has sued for a part of an entire demand, he will not be allowed to sue for the residue in another action; and this is true, although the court in which the first suit was brought did not have jurisdiction of the full amount of plaintiff’s claim, and although the judgment was for defendant. ■ "</p> <p>2. Same. — As the record of á suit in a justice’s court shows “judgment for defendant, and judgment for defendant against plaintiff on counter-claim,” the record is conclusive that the case was heard and judgment rendered upon the merits, and plaintiff will not be hoard to contradict the record by saying that ho dismissed the case without prejudice for the purpose of bringing an action in the circuit court for the full amount of his claim, suit having been brought in the justice’s court for only a part of the claim.</p>

<p>Instruction to Jury Limiting Eppect op Testimony. — Testimony-introduced by the Commonwealth being competent only by way ol contradicting the testimony of one of defendant’s witnesses, it was errpr to allow it to go to the jury without instructing them that it was allowed to be considered only for that purpose.</p> <p>Upon a trial for murder, a witness for defendant stated upon his original examination that defendant had no pistol at the time of the killing, and then stated upon cross-examination that he did not see defendant shoot at deceased. He was then asked if he had stated before the grand jury that he saw the defendant shoot the deceased, and answered in the negative. After defendant had closed his testimony the Commonwealth was permitted to prove by a member of the grand jury that the witness had stated before that body that ho saw defendant shoot deceased. Held — That it was a prejudicial error to allow the testimony of the grand juror to go to the jury without an instruction telling them that it could be considered only for the purpose of contradicting defendant’s witness. ■ •</p>

<p>A county judge is liable upon his bond for damage resulting to a ward from his failure to annually inquire into the solvency of the guardian’s sureties, or from his failure to require of the guardians additional security, when, from such inquiry, or from information acquired in any other way, he has reasonable grounds to believe that the sureties are insolvent or in failing circumstances. These duties being enjoined by statute, the judge and his sureties are liable for the failure to perform them, although the statute leaves a discretion as to how they shall be done.</p>

Case 43 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. There having been no appraisement, the court should have set aside the sale. The statute of April 9, 1878, is not merely directory, but “mandatory and prohibitory,” and forbids the sale of any real estate other than in the manner provided. (Wooldridge v. Jacob, 79 Ky., 250; 8 Ky.

Case 44 — PETITION EQUITY — APPEAL PROM BUTLER CIRCUIT COURT. 1. Until a special commissioner takes oath and gives bond he has no more authority to make sale than any private person not named in the judgment. (Gen. Stats., chap. 75, art. 2, secs. 10-12; Constitution, of Kentucky, art. 8, sec. 1.) 2.

<p>Case 46 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. Judgment should have been rendered against each of the appellants for only his or her proportion of appellee’s claim. (Stroud’s Heirs v. Barnett, 8 Dana, 391; Roberts and Wife v. Phillips, &c., 11 Bush, 11; Hood v. Hood, 80 Ky., 39; Cox’s Heirs v. Strode, 2 Bibb, 273; Blaekstone, 2d book, 511, 513; Williams on Executors, pages 970 and 971; Schouler’s Executors and Administrators, 382, 383, 384, 385, 491.)</p> <p>This equitable rule has not been changed by statute. (Gen. Stats., ed. 1887, chap. 31, sec. 11; Idem, chap. 44, art. 1, secs. 9, 10; Idem, chap. 39, sec. 11; Civil Code, sees. 434, 435.)</p> <p>2. If there were assets remaining in the administrator’s hands sufficient to pay his claim when presented, he had no cause of action against the distributees.</p> <p>•3. The land should have been subjected before rendering judgment against the heirs.</p> <p>The heir taking his ancestor’s estate is liable for the debts of the ancestor to the extent of assets received. (Newman’s Pleading and Practice, page 189; Cox’s Heirs v. Strode, 2 Bibb, 273; Pisher’s Heirs v. Kay, 2 Bibb, 436: Lansdale v. Cox, 7 Mon., 402; Ellis v. Gosney's Heirs, 1 J. ,T. M., 347; Sneed v. Phillips, 2 J. J. M., 132; 4 Dana, 552; 5 Dana, 283; 6 Dana, 450; 1 B. M„ 282 ; 3 B. M., 506; 8 B. M., 389; 10 B. M., 217; 6 B. M., 567; Olay v. Hopkins, 3 Mar, 489; Ransdell, &c., v. Threlkeld’s-Adm’r, 4 Bush, 347; Civil Code, sec. 434; Gen. Stats., chap. 31, sec. 11; Idem, chap. 44, art. 1, secs. 9 and 10.)</p>

<p>Case 46 — PETITION EQUITY —</p> <p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>1. The order appealed from is, in substance, an order dismissing the petition as to both appellants, and is, therefore, final.</p> <p>2. A verification by one of those who join in a pleading is sufficient in any case where verification is needed. But in any event, it was error to dismiss as to Harrison, who had verified the whole petition as amended, and was entitled to litigate the questions involved.</p> <p>1. There is no final order in the case from which an appeal can be taken.</p> <p>2. Harrison was never made a party to the action. As Lanham, by reason of his failure to verify his petition, had no standing in court, Harrison, by uniting with him in his amended petition, could not become a party.</p>

Case 47 — PETITION EQUITY — APPEAL FROM DAVEISS CIRCUIT COURT. A homestead is not exempt as against a debt created before it was paid for, although it may have been purchased before the creation of the debt. (Earmers and Drovers’ Ins. Co. v. Curry, 13 Bush, 318; Jewell v. Clark’s Ex’rs, 78 Ky., 399; Dwelly v. Galbraith, 5 Ky. Law Rep,, 210; Story’s Eq. Jur., sec. 1217.) No brief in record,

<p>1. Construction-of Will — Life Estate. — A provision in a will that property devised to the testator’s sons “shall only be in trust for them, and thoy shall have no right to sell or otherwise dispose thereof, but to be left to their heirs,” does not make the sons merely trustees for their children, but creates in them a life estate, with remainder to their children.</p> <p>2. Sale for Reinvestment not Forbidden by Will. — Such a provision in a will' can not be regarded as forbidding a sale of the property under decree of court for the purpose of reinvestment, as provided by sections 491 and 492 of the Civil Code.</p>

<p>Case 49 — PETITION EQUITY —</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>No brief in record.</p> <p>The title of a purchaser in good faith of land from a devisee under a will duly admitted to probate is not affected by proceedings subsequently instituted, and resulting in annulling the will. (Broderick Will Case, 21 Wail.; Steele v. Renn, 50 Texas, 467.)</p>

<p>Decedents’ Estates — Exemptions to Widow. — Where the articles of personal property belonging to the estaté of a decedent, which are directed by statute to be set apart to tbe widow as exempt, are not on hand, she is not entitled to their value out of the real estate. The statute, in directing that the widow shall have the value of such articles out of “ other property,” refers to personal property.</p>

Case 51 — PETITION EQUITY- APPEAL PROM MARION CIRCUIT COURT. Brief not in record. This court has already decided that the estate descended to the nephew free from any lien for the debts due to the uncle, and the appellees having levied their attachments, will hold them against any other creditor where no lion exists. The statute gives no lion, and the most vigilant in acquiring a lien by operation of law will be entitled as against those who fail to coerce payment.

Case 52 — PETITION ORDINARY — APPEAL from warren circuit court. The burden of proof was upon the plaintiff, and he had the right to conclude the argument to the jury. (Branham v. Berry, 4 Ky. Law Rep., 413; Johnson v. Clem, Idem, 860; Duffy v. Casey, MS. Op., 3 Ky. Law Rep., 334; McMinimy v. Airs, 4 Ky.

Case 53 — PETITION EQUITY — APPEAL PROM SHELBY CIRCUIT COURT. 1. In arriving at the meaning of the antenuptial contract, some effect must be given to every part of it. (Broom’s Legal Maxims, marginal page 522; Peter v. Daniel, 5 O. B., 579; Shep. Touch., mar. p. 87.) 2. The pretended transaction is not supported by either a good or a valuable consideration.

Case 54 — PETITION EQUITY — APPEAL PROM LOGAN CIRCUIT COURT. Plaintiff’s road was built under an express contract with the State, that no other corporation should open any lateral public road running from and to the same place within one mile of said turnpike road. (Acts 1834-35, page 394.) By reason of this contract plaintiff has a vested interest of which the' opening of defendant’s proposed road would divest it. 1.

Case 55 — PETITION EQUITY — APPEAL FROM WARREN CIRCUIT COURT. 1. C. S. Martin has, in fact, conducted his own business in his wife’s name. But conceding (for the sake of argument) that the wife was really the party in interest, she can not legally receive and retain the benefit of her husband’s labor and services in the exclusive management of tbe business done in her name, and thereby deprive his creditors of the reasonable value of those services in payment of his debts.

Case 56 — PETITION EQUITY — APPEAL PROM MONTGOMERY COURT OP COMMON PLEAS. 1. An order appointing a receiver may bo superseded when coupled with an order directing a sale of the property to he taken possession of by him. Section 298 of the Givil Gode does not authorize a sale of. the property. 2. Section 299 of the Civil Gode does not authorize the appointment of a-receiver by the judge in vacation.

<p>Case 57 — PETITION EQUITY —</p> <p>APPEAL FROM CLARK CIRCUIT COURT.</p> <p>A child is not born alive unless there is an independent circulation of the blood of the child after complete birth, and by “ independent circulation ” is meant a circulation maintained by the child’s own vitality independent of that of the mother. (Doe v. Killen, 5 Houst., 16; 2 Black., 127; Beck’s Med. Jur., vol. 1, pages 412, 416; Wharton & Stille, sec. 128; Reg. v. Wright, 9 Car. & P„ 754 (38 E. C. L., 322), Rex. v. Enoch, 5 Oar. & P., 539 (24 E. C. 'L., 446); 1 Chitty’s Black., side pages 126-7.)</p> <p>A child is born alive whenever it gives signs of' life after it is completely external to the mother. It is not necessary to constitute live birth that it should give signs of life after the separation of the umbilical cord. (Tidy’s Legal Medicine, vol. 3, pages 154, 155; Ewell’s Med. Jur., p. Ill; Taylor’s Med. Jur., p. Ill; Taylor’s Med. Jur'., American edition, by Reese, pages 665, 666, 667 and 672; Traill’s Med. Jur., p. 47; Wharton’s American Crim. Law, vol. 1, sec. 874; Beck’s Med. Jur., vol.-1, pages 356, 357 (notes at foot), and page 448 (10th ed.)</p>

<p>Cask 58 —INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Appellant, if guilty at all, is guilty of only a misdemeanor. He is not guilty of the statutory offense of unlawfully detaining a woman against her will.</p> <p>Brief not in record.</p>

<p>Where an appeal is granted by the clerk of this court after THE DEATH OF THE PLAINTIFF IN THE JUDGMENT, all the appellant, need do in order to perfect bis appeal is to make the personal representative a party-appellee, and by proper process bring him before the court. A revivor of the judgment is not necessary.</p>

Case 60 —INDICTMENT—March 10. APPEAL PROM JEPPERSON CIRCUIT COURT. 1. The Able jury law, approved Api-il 21, 1890, is unconstitutional, because it severs Jefferson county from the balance of tlie State as to its jury system, and gives to that county a system the necessary result of which is to produce juries inferior in quality to those produced by the. general law of the State.

<p>1. To constitute a Lis pendens tlie property sought to be affected by it must be such that the title will be immediately affected by the judgment, the court must have jurisdiction both of the person and the property, and the property must be sufficiently described in the proceedings. If any one of these three essentials is wanting, there is no valid Us pendens.</p> <p>2. An action to enforce a vendor’s lien on land is not a lis pen- • dens as to the rents, as the vendor can acquire río right to subject the rents except by contract, by attachment, or by having a receiver appointed to take charge of the rents. And as the vendee in this action by the vendor to enforce his lien was claiming a rescission, orders and agreements as to rents made with reference to the rights of the parties in the event there should be a rescission of the contract were annulled by the reversal by this court of a judgment rescinding the contract. Therefore, there was no lis pendens as to the rents, and one to whom the vendee, in good faith, assigned a bond executed for rent pending this action is entitled to priority over plaintiff, who claims the right to subject the rent because the land is not sufficient to satisfy his debt.</p> <p>3. Pinal Order. — An order refusing, upon plaintiff’s application, to appoint a receiver to take possession of the land and collect the rents was final, and, not being appealed from, is conclusive upon plaintiff.</p>

<p>Case 62 —RULE—</p> <p>APPEAL PROM HARDIN CIRCUIT COURT.</p> <p>I. The proceeding should have- been in the name of the Commonwealth of Kentucky. (Rice v. Commonwealth, 18 B. M., 483; Turner v. Commonwealth, 2 Met., 621; Walker v. Commonwealth, 8 Bush, 87.)</p> <p>2. The rule is defective, in that it merely calls on appellant to show cause why he should -not pay appellee certain money, and gives no notice that he is to be disbarred from the practice upon his failure to pay the money.</p> <p>3. It was error to allow the county attorney to file an amended affidavit pending appellant’s demurrer.</p> <p>4. It was error to suspend appellant from practice in any of the courts of this Commonwealth. The statute provides for suspension from practice in any court of this Commonwealth.</p>

<p>1. Combinations in Restraint op Trade — Voluntary Associations. —In all classes of business the employer and employe should be allowed to contract with each other unrestrained by others, either as to the number of men to be employed or as to the compensation to be paid, and, as a general rule, when restrictions are placed upon these rights by combinations or associations of men, they will be regarded as unlawful and void.</p> <p>By-laws of a board of underwriters, an unincorporated voluntary association, by which members of the association are limited as to the number of solicitors they may employ, the time of employment and the compensation to be paid, and are prohibited from contracting with a solicitor so as to make his pay depend upon the risks lie procures, and are prohibited to employ a solicitor who has, within a certain time, severed his connection with another member, are each and all in violation of the law of the land and contrary to the organic law of the association, and the association will not he allowed to enforce them.</p> <p>2. The chancellor will interfere to prevent the unlawful suspension or expulsion op a member op a voluntary association, if his suspension or expulsion would necessarily result in affecting his financial standing, as well as in depriving him of the use of property that is common to all, however insignificant its value.</p> <p>3. Members op voluntary associations must abide by its rules and regulations, unless contrary to the fundamental law of the order or in violation of the law of the land.</p>

Case 64 — PETITION ORDINARY — APPEAL PROM HENDERSON CIRCUIT COURT. 1. Assuming that the note to Gillispie & Co. was void, because it was executed for goods sold by unlicensed peddlers, yet the defendant, by-executing the new note to plaintiff, so ratified and changed the contract that he is now estopped to plead the original consideration for the Gillispie note. (Beal v. Bethel, 3 Ky. Law Rep.) 2.

Case 65 — PETITION EQUITY — APPEAL erom estill court op common pleas. Upon the refusal of the county judge to verify the petition, the justices should have been permitted to do so. The justices having the power to direct the suit to be brought have the power to do every thing necessary and incident to the enjoyment of that power.

<p>Case 66 —TRAVERSE—</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. Only an express contract could secure to Stege the right to remain after his term expired. (Gen. Stat., chap. 66, art. 1.)</p> <p>2, This was a summary proceeding for forcible detainer, and the sole question in such proceeding is the right of possession at the time the writ issues. The title is not in issue. (Civil Code, sec. 452; Jones v. Overton, 4 Bibb, 534; Taylor v. White, 1 Mon., 37; Maddox v. Helm, 5 Litt., 185; Childs v. Stevens, 3 Mar., 340; Smith v. White, 5 Dana, 382; Penny v. Skirvin, 9 B. M., 238; Dils v. Justice, 10 Ky. L. R., 547; Estes v. McIntosh, 9 Ky. L. R., 980; Collins v. Karratstapsky, 33 Ark., 328; McQuirck v. Bussey, 93 111., 38 111., 98, 237; 70 111., 205; 50 111., 326; 45 111., 250; 18 111., 539; Kepley v. Luke, 106 111., 397; Yocum v. Lovell, 107 111., 209; Spence v. Anderson, 108 111., 415; Gruenwald v. Schaales, 17 Mo. Ap„ 324; Newton v. Laiy, 64 Wis., 190; Yan Ness v. The State, 93 Ind., 211; 4 Minor’s Inst., 466; Mendel v. Hall, 13 Bush, 234.)</p> <p>Irvine v. Scott, 85 Ky., 260, commented on.</p> <p>1. Conduct of the landlord, by which he equitably estops himself from ousting his tenant, may be given in evidence at the trial, and will defeat proceedings of forcible detainer, though the tenancy may have ended on a day certain. (Irvine v. Scott, 85 Ky., 260.)</p> <p>2. Where, by agreement, disadvantages to one party are to follow unless he does a certain act within a certain time, and before the end of the time negotiations are begun between the parties, which, if successful, would dispense with the act, then, if the negotiations fail, the running of the time within which such act was to be done is deemed suspended by the negotiations. (Hughes v. Metropolitan R’y Co., L. R. 2 App. Cas., 444.)</p> <p>3. As long as the tenant retains the right to remove buildings erected on the premises, so long has he, by necessity, the right of possession to the part of the premises covered by the buildings, because by surrendering possession he would abandon the right of removal. (Taylor on L. and T., sec. 551; Wood on L. and T., sec. 532.)</p> <p>4. Where the lease provides that the tenant may remove buildings erected by him “at” or “on” the expiration of the term, he may use the buildings during the whole term, and remove them within a reasonable time thereafter. (Burk v. Hollis, 98 Mass., 55; Smith v. Park, 31 Minn., 72; Cheatham v. Plinke, 1 Tenn. Ch. K, 576.)</p> <p>5. "Where, before the expiration of a lease, the landlord enters into negotiations for the purchase of buildings erected by the tenant, and extends the negotiations beyond the term, his conduct gives to the tenant implied consent to continue the occupation for an indefinite time after the end of the term until the end of the negotiations, and makes the tenant a tenant at will, so that he is entitled to one month’s notice to quit. (Wood on Landlord and Tenant, secs. 14, 15; Learned v. Hudson, 60 N. Y., 102; Hollingsworth v. Stennett, 2 Esp., 717.)</p>

<p>Case 67 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>Brief not i i record.</p> <p>Cases cited in petition for rehearing: Montgomery v:' Insurance Co., 14 Bush, 51; Johnson v. Insurance Co., 79 Ky., 403, Insurance Co. v. Fort, 82 Ky., 269; Insurance Co. v. Montague, 84 Ky., 653; Insurance Co. v. Grigsby, 10 Bush, 317.</p> <p>1. By the laws of New York and Pennsylvania, the uniy States in which any of the transactions took place, the provision requiring a surrender of the policy within twelve months is valid and binding, and as an action could not be maintained in those States by reason of that lapse of time, an action can not be maintained here. (Gen. Stats., chap. 71, art. 4, sec. 19.)</p> <p>If a contract made in another State is not enforceable there, it will not he enforced here. (Ford v. Buckeye Insurance Co., 6 Bush, 140; Archer ". Insurance Co., 2 Bush, 227.)</p> <p>2. The stipulation that in case the insured shall not pay tho premium reserved the company shall not be liable to the payment of the sum insured, or any part thereof, and the policy shall cease and determine, is valid in Kentucky, as well as everywhere else.</p> <p>3. The fifteen-year Kentucky limitation is a valid defense. Tho right to recover the new policy is barred by the lex fori, and, therefore, the right to recover the money it would have agreed to pay is barred.</p>

Case 68 — PETITION OBDINABY — APPEAL FROM KENTON CIRCUIT COURT. 1. By the execution of the new bond the surety was released from all liability for the acts of the principal thereafter done. The “act1' for which the administrator is liable to be sued is the wasting of the estate, and this occurred after appellant’s release. The case of Jones v. Gallatin Co., 78 Ky., is not in point. 2. The court should have permitted the amended answer pleading limitation to be filed.

<p>1. If this sheriff fails to execute a county levy bond, and the county court failing to appoint a collector, the sheriff proceeds to collect the county levy, he and his sureties are liable therefor, by virtue of section 9, article 2, chapter 27, of the General Statutes, upon the bond executed by him for the performance of his duties as sheriff proper.</p> <p>2. Limitation. — The statute referred to simply prescribes a duty which is to be performed by the sheriff .in virtue of his office, and was not intended to create a liability outside of and independent of the bond required by law. Therefore, the limitation of seven years applies to • such an action against the sureties upori the bond, and not the limitation of five years, which, by section 2, article 3, chapter 71, of the General -Statutes, is made applicable to an action upon a liability created by statute when no other time is fixed by the statute creating the liability.</p>

<p>Appellate Jurisdiction. — The Superior Court, and not the Court of Appeals, has jurisdiction of an appeal where the only question presented is as to the manner in which land is adjudged to he sold to satisfy a lien, provided the value in controversy is not greater than ($8,000) three thousand dollars. Such an appeal does not involve the title to a freehold.</p>

Case 71 — PETITION ORDINARY — APPEAL PROM CLARK COURT OP COMMON PLEAS. An express warranty in sales of personal property is never conclusively waived by any acceptance of the goods, unless, perchance, in some cases of known defects. A waiver may arise as a presumption of facts, but never as a conclusive presumption of law.

Case 72 — PETITION EQUITY — APPEAL PROM HENRY CIRCUIT COURT. 1. A judgment, when once paid off or satisfied, can not afterwards, by any agreement of the parties, be restored to life or vitality. (Freeman on Judgments, sec. 466; Averill v. Louoks, 6 Barb. Ch’y, 25; Marion v. Vedder, 5 Cow., 671; Troup v. Wood, 4 John. Ch’y, 228; Winslow v. Clark, 2 Lans., p. 380; Thompson v. George, 86 Ky., 311.) 2.

Case 73 — PETITION EQUITY — APPEAR PROM MARION CIRCUIT COURT. 1. The Legislature may validate retrospectively the proceedings which it might have authorized in advance. (Cooley on Taxation, pages 306, 307, 311, 312; Hewitt’s Appeal, 88 Pa. St., 55; Desty .on Taxation, vol. 2, page 218; Mattingly v. District of Columbia, 97 U. S., 687; Cooley’s Const. Limit., 371; Spencer v. Merchant, 8 Sup.

<p>Case 74 — PETITIONS ORDINARY, TRANSFERRED TO EQUITY</p> <p>APPEAL FROM WASHINGTON CIRCUIT COURT.</p> <p>1. Appellees were not misled as to the object for which the money subscribed was to be used.</p> <p>2. The obligation sued on is that of the corporation, and not of the individual, signing it. (Pack v. White, 78 Ky., 243; Trask v. ltoberts, 1 B. M., 201;' Yowell v. Dodd, 3 Bush, 582.)</p> <p>3. The contract is not ultra vires. (Germantown Farmers’ Mut. Ins. Co. v. Dliein, 43 Wis., 420; Bock Biver Bank v. Sherwood, 10 Ind., 230; Farmers and Traders’ Bank v. Harrison, 57 Mo.; Eastern Counties B. Co. v. Hawkins, 5 H. L. Cases, 331, 373; Carey v. Cleveland & Toledo B. Co., 29 Barb., 35; Converse v. Norwich, 33 Conn., 166; Waterman on Corporations, vol. 1, pages 604, 605. 606; Oil Creek, &c.., B. Co. v. Pa. Trans. Co., 83 Pa. St., 160; Perkins v. Portland, &c., B. Co., 47 Me., 573; Worrell v. First Pres. Church, 23 N. J. Eq., 96.)</p> <p>4. There was a valuable consideration for the contract. (Kent’s Comm., vol. 2, side page 465.)</p> <p>1. There was no consideration for the contract sued on. Such donations have never been uphold, except where they were made to strictly charitable institutions. (8 B. M., 68; 10 Bush, 238.)</p> <p>2. While ordinarily a written contract imports a valuation consideration, vet if the obligee alleges specially what the consideration was, he is confined to the consideration alleged, and, if it is not sufficient, the contract can not be enforced. (Noe v. Keen, &c., MS. Op., April 30, 1884; Bullitt v. Balston, 1 A. K. Mar., 331; Steadman v. Guthrie, &c., 4 Met., 15,2; Jerome v. Whitney, 7 John., 321.)</p> <p>3. There was such suppression of truth in obtaining the writings sued on as amounts to actual fraud. (Talbot v. Todd, 5 Dana, 196; 10 Bush, 32; 1 Bibb., 183.)</p> <p>4. The contracts are ultra vires. (Angelí & Ames on Corp., 323; 21 How., 443.)</p>

Case 75 — PETITION EQUITY — APPEAL PROM MARTIN CIRCUIT COURT. If the purchaser should, within thirty days of his purchase, file his certificate, the sheriff having failed to file his, then in that event he would • be entitled to the thirty per cent, damages given by the statute; but if filed after thirty days, his right to the thirty per cent, dates from the filing, and does not reach back to the sale.

Case 76 — PETITION ORDINARY — APPEAL FROM JEPFERSON COURT OP COMMON PLEAS. The appellant, by failing to except to the findings of law by the trial judge in the court below, has waived the error which it now relies upon for a reversal of the judgment. (Henderson v. Dupree, 82 Ky., 680; Cincinnati National Bank v. Silva, 9 Ky. Law Rep., 405: Byring v. Brown, 7 Ky. Law Rep., 359; Haverin v. Otter, &c., 5 Ky. Law Rep., 180; Paducah, &c., v. Terrell, 5 Ky.

<p>Case 77 — PETITION ORDINARY —</p> <p>APPEAL PROM TAYLOR CIRCUIT COURT.</p> <p>1. Where a judgment which does not bear interest is superseded, the plaintiff is not entitled, upon the affirmance of the judgment, to interest as damages.</p> <p>2. The statute allowing interest on judgments for personal injuries is not retrospective. (Cooley's Const. Limit., 370; C. & O. R. Co. v. Washington County, 10 Bush, 574; 2 Duv., 480; 1 J. J. M., 284.)</p> <p>1. Appellee is entitled to interest as damages.</p> <p>2. Plaintiff’s motion for judgment for interest nunc pro tunc should have been sustained. The statute denying the right to interest on judgments for injury to the person does not apply to railroads. (Gen. Stats., chap. 60, art. 1, sec. 6; Idem, art. 3, sec. 1.)</p>

<p>V bubal Grant op Passway — Adverse Use. — -While a verbal grant of a passway is within the statute of frauds, and therefore not enforceable, the use of the way by the grantee under such a grant for fifteen years raises the presumption that the use was as a matter of right, . and the burden is on the grantor to show that notwithstanding the grant the user was permissive only; and the fact that the grantee has deviated from the way granted is not sufficient to show that the use was permissive only, as the deviation was merely for the purpose of avoiding defects in the way.</p>

Case 79 — PETITION EQUITY — APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. Time may be given during the term at which the judgment becomes final to reduce to writing the exceptions taken on the trial of a case. (Civil Code, sec. 337, subsee. 2.) 2. The failure of the guardian to make a settlement of his accounts constitutes a breach of his bond. 3.

Case 80 — PETITION EQUITY — appeal prom union circuit court. 1. In the absence of any allegation of fraud or mistake it was not competent to show, by parol evidence, that the note was not to bear interest. All debts due at a fixed date bear interest as matter of law in this State, even if they exist only by oral agreement. (Henderson Cotton Manufacturing Co. v. Lowell Machine Shops, 86 Ky., 676.) 2.

<p>1. Negligence — Injury to One Laboring tn Violation op Sunday Law. — To deprive a party of redress because of his own illegal conduct the illegality must have contributed to the injury. Therefore, the mere fact that one who has been injured through the negligence of another was, when he received the injury, returning from work he had been doing on Sunday, in violation of the Sunday law, will not deprive him of redress, as the same injury would have happened upon any other day under the same circumstances and conditions.</p> <p>2. Contributory N egligence. — It is only in cases of willful neglect, which exists by reason of statute only, and applies only in cases where death results, that contributory neglect is no defense. Where the plaintiff sues for an injury resulting from defendant’s ordinary or gross neglect, he can not recover if there was such negligence upon his part that but for it the injury would not have happened.</p> <p>3. Railroads — Care Required in Running Trains in City. — A railroad company, in operating its trains within the limits of a city at a point where persons are accustomed to crossing its tracks, is required to use greater caution than is required in the country.</p> <p>4. Same — Duty to Licensees. — A railroad company, by acquiescing for a long time in laborers crossing its yard in going to and returning from their work, thereby licenses them to do so, and imposes upon itself a precautionary duty as to such persons, as they are not to be regarded as trespassers; but they are not absolved from all care for their own safety.</p> <p>The plaintiff in this case was guilty of contributory neglect in walking along the edge of a switch track in defendant’s yard when he knew that a switch train was behind him on the track, and must have known that it was liable to move at any time, and that he would probably not hear any signal of its movement by reason of the noise of a passing freight train. Under such circumstances he had no right to depend upon his hearing alone, but should have exercised his sight, and, as he failed to do so, he can not recover, although the company may have been negligent in failing to give any signal of the train’s movement.</p> <p>5. Sufficiency of Signal. — In signaling the movement of the train, it was not necessary to ring the bell of the locomotive continuously. If the ringing of the bell upon starting was sufficient “ under usual existing circumstances ” to give passers-by reasonable warning of the train’s approach, nothing more was required.</p>

<p>1. The trial court has a larqe discretion in the matter of allowing amended petitions to be filed, and this discretion should not be controlled unless manifestly abused,</p> <p>A denial having been omitted from the original answer by oversight, it was not error to allow an amendment to be filed after the court had ordered a trial of the case, but before the trial was, in fact, begun.</p> <p>2. Railroads — Failure to Remove Decayed Tree Standing N ear Track. — -In case of probable danger of obstruction of its track by falling timber it is the duty of a railroad company, if the timber bo standing upon its own right of way, to at once remove it, and if it be upon the adjoining land, then the company should take steps to have it done. The company is not, however, required to remove, or have removed, every thing which may possibly become an obstruction. It is only required to use reasonable care in this respect, and if injury results, notwithstanding this care, the company is not chargeable with willful neglect.</p> <p>Where a partially decayed tree, standing fifty-five feet from a railroad track, leaned in the opposite direction to such an extent that it was not reasonable to suppose that it would ever fall across the track, and it was only from the force of a storm that it did fall in that direction, the company was not chargeable with willful neglect in failing to remove the tree before it fell, although it had notice that the tree was decayed.</p> <p>3. Willful neglect is a reckless indifference to the safety of human life, or an intentional failure to perform a manifest duty to the public.</p>

Cask 83 — PETITION EQUITY — APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The fact that the deed is “degrading and humiliating ” to plaintiff will not authorize the court to set it aside. Courts of equity will not enforce the strict rule of morality in such cases. (Story’s Eq. Jur., sec. 308; Holmes v. Hill, 22 Neb., 433; Taylor v. Taylor, 8 How., 200.) 2.

<p>Case 84 — PETITION EQUITY-</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>1. By the terms of testator’s will the trust was to be terminated upon the happening of only one condition, which never happened. The trust, in order to carry out the intention of the testator, should continue at least during the life-time of Mrs. Horace Buckner.</p> <p>2. If the trust is terminated, then Horace Buckner never had such an interest in the fund as would pass to his administrator, and become subject to distribution so as to give his widow one-third thereof absolutely.</p> <p>The trust ended with the death of J. Horace Buckner, and the widow and children take the estate under the laws of descent and distribution. (Thomas v. Harkness, 13 Bush, 28.)</p>

<p>Limitation — Absence of Debtor from State. — Where a debtor, a resident of this State, departs from the State after a cause of action has accrued against him, and the creditor, by reason of the debtor’s absence, is prevented from suing, the time of such absence is not to be computed as a part of the period within which the action may he commenced. But if the debtor was only temporarily absent, and was frequently in the county of his residence in this State during the period within which the action was required to be brought, and the creditor knew of his presence here, or could, by the exercise of reasonable diligence, have known of such presence, the time of bis absence should not be deducted.</p>

Case 86 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. This is not a case for election. Before a devisee can he required to make an election the will must clearly show that the testator so intended. (Story’s Equity, secs. 1075, 1088, 1089; Adams’ Equity, pages 92, 94; Bispham, see. 303; Pomeroy’s Equity, vol. 1, secs. 472, 504; Paris v. Dunn, 7 Bush, 286; Baker v. Bed, 4 Dana, 158; Bailey v. Duncan, 4 Mon., 267; Wood v. Lee, 5 Mon., 58; Bryson v. Osenton, 5 Ky.

Case 87 — APPEAL FROM COUNTY COURT — APPEALS PROW CHRISTIAN CIRCUIT COURT. 1. There was no statute in force that authorized these proceedings against appellants. Section 3 of the Auditor’s Agent act, under which the proceedings were commenced, had been repealed. But if not, it is unconstitutional and void, because there is no intimation in the title of the act of what is provided for in that section. 2. The Commonwealth was a necessary party to the proceedings.

Case 88 — PETITION EQUITY — APPEAL PROM TRIMBLE CIRCUIT COURT. A parol lease of real estate for the term of one year, to commence at a future day, is valid. The seventh clause of the statute of frauds does not relate to agreements concerning land. (Gen. Stats., chap. 22, art. 1, sec. 1, clauses 6 and 7; Idem, chap. 63, art. 1, sec. 6; 2 Preston’s Shep.

<p>Case 89 — PETITION ORDINARY —</p> <p>APPEAL PROM OWEN CIRCUIT COURT.</p> <p>It was error to instruct the jury in substance that if plaintiff used the road with knowledge of the defect, he did so at his own peril, and must take the consequence. (White v. Cincinnati, &c., R’y Co., 89 Ky., 478.)</p> <p>There was no error in the instructions.</p>

Case 90 — APPEAL TO CIRCUIT COURT — APPEAL PROM DAVEISS CIRCUIT COURT. 1. The ex'parte communication made to the commissioners by the principal defendant in the case rendered their action invalid, and the court should have quashed the report. (Lewis on Eminent Domain, section 420; Peary v. Wolfborough, 37 N. H., 280; Patten’s Petition, 16 N. H., 277; Harris v. Woodstock, 27 Conn., 567; Lennox v. Knox 2.

Case 91 — PETITION EQUITY — APPEAL PROM KENTON CHANCERY COURT. 1. A debt due to a woman is extinguished by her intermarriage with the debtor. (Schouler on Husband and Wife, page 133; Sutiles, &c., v. Whitlock, 4 Mojí., 451; Smiley v. Smiley’s Adm’r, 18 Ohio St., 543.) 2. The mortgage lien is a mere security, and if no action can be maintained on the note, the lien can not be enforced. (Vandiver v. Hodge, Adm’r, 4 Bush, 538.) Brief not in record.

<p>Case 92 — PETITION EQUITY —</p> <p>APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>The life tenant is not entitled to compensation for improvements put upon the land with the knowledge that he had only a life estate. (Bell v. Barnett, 2 J. J. M., 516; Taylor v. Whiting, 9 Dana, 401; Barlow v. Bell, 1 A. K. M., 246; Scroggs v, Taylor, 1 A. K. M., 247; Harrison v. Fleming, 7 Mon., 538.)</p> <p>The history of the growth of the law on the subject of allowing compensation for improvements made by an occupant upon land which is subsequently recovered by another party under a better title shows that the reason and the spirit of that rule applies to this case. (Parsons V. Moses, 16 Iowa, 444; note to Jaokson v. Loomis, 15 Am. Deo., 349; Bell v. Barnett, 2 J. J, M., 516; Taylor v. Whiting, 9 Dana, 401.)</p>

<p>A CONVEYANCE TO THE GRANTOR’S WIPE AND CHILDREN will, UllleSS a contrary intention is expressed, be construed as vesting in the wife a life estate, remainder to the children. But, independent of this rule of construction, the fact that the grantor in this case reserves to himself the power to sell the property in ease his wife dies before ho does shows that her interest was to terminate at her death.</p>

Case 94 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. Under the general prayer for relief, the court can not grant other relief than that specifically prayed for. (Hansford v. Holdam, 14 Bush, 210; Howland Coal and Iron Works v. Brown, 13 Bush, 681.) 2. A special bailiff has no authority outside of the county in which he was appointed. (Civil Code, sec. 48.) 1.

Case 95 — PETITION EQUITY — APPEAL FROM CHRISTIAN COURT OF COMMON PLEAS. 1. The creditor was a necessary party to the action. (Civil Code, sec. 242, subsec. 2.) 2. The vested rights of appellants acquired prior to the date of the amended petition can not be prejudiced thereby. (Bell, &e., v. Hall, 2 Duv., 288; Civil Code, sec. 268, subsec. 2; 7 Bush, 131; 1 Met., 42.) 1.

Case 96 — PETITION EQUITY — APPEAL PROM HARRISON CIRCUIT COURT. The writing purporting to he a mortgage does not divest appellants of a homestead. It is essential to the validity of a deed or mortgage that the names of the grantors shall be given in the body of the mortgage.

<p>Burden on Plaintiff to Show Negligence — Peremptory Instruction. — In an action to recover damages for an injury arising from defendant’s neglect, the burden of showing neglect is upon tho plaintiff; and if the evidence shows that the injury may have resulted from any one of two causes, only one of which was due to defendant’s negligence, and the inference that the injury resulted from the one cause is no stronger than that it resulted from the other, the plaintiff has failed to make out his case, and it is not competent for the court to leave the question to the jury.</p> <p>After a freight train had passed through several tunnels in close succession a brakeman was found on one of the box-ears in a dying condition. There were loose timbers hanging from the roof of one of the tunnels, and the theory of the plaintiff is that his intestate was struck by these timbers, while the theory of the defendant is that the injury was due to his failure to take the usual precaution to sit or lie down by the brakes in passing through the tunnels, it being impossible to pass through one of the tunnels standing upright upon an ordinary box-car. The evidence does not show the position of the loose timbers in the tunnel in which plaintiff claims the accident occurred. Held — That there is nothing to show that the injury occurred in the tunnel in which the hanging timbers were, and even if there were, there is nothing tending to show that it was caused by the hanging timbers. Therefore, the court did right in giving a peremptory instruction to find for defendant.</p>

Case 98 — PETITION EQUITY — APPEAL FROM MASON CIRCUIT COURT. 1. The life tenant is entitled to take timber for repairs. (Kerr’s Injunctions in Equity, page 63; 1 Washb. on Real Property (5th ed.), pages 134-135; Wood’s Landlord and Tenant, sec. 251; Loudon v. War field, 5 J. J. Mar., 196; Loomis v. Wilbur, 5 Mason, 13.) 2.

Case 99 — PETITION ORDINARY — APPEAL PROM KENTON CIRCUIT COURT. Brief not in record. To entitle the appellant to maintain an action against the appellee for the alleged assault committed, it devolved upon him to show that the act complained of was done in the course of the servant’s employment. (Shearman & Redfield on Negligence, 4th ed., sec. 152; 'Winnegar’s Adm’r v. Central Passenger Railway Co., 85 Ky., 552; Sherley v Billings, 8 Bush, 147.)

<p>Case 100 — PETITION ORDINARY —</p> <p>APPEAL PROM JEPPERSON COURT OP COMMON PLEAS.</p> <p>1. When one company runs its trains over the defective road of another the former is responsible. (2 Rorer on Railroads, 1118; 2 Redfield on Railways, 329; Central Railroad v. Kanouse, 39 111., 272.)</p> <p>2. Appellant’s negligence is no justification of injury perpetrated by appellee if, by reasonable care and prudence on the part of appellee, the injury could have been avoided. (Yandell v. L. & N. R. Co., 17 B. M., 598; L. & N. R. Co. v. Collins, 2 Duv., 116; L. & N. R. Co. v. Sickings, 5 Bush, 10; L. & N. R. Co. v. Pilbern, 6 Bush, 575; L., C. & L. R. Co. v. Mahoney, 7 Bush, 239; P. & M. R. Co. v. Hoehl, 12 Bush, 43; L. & N. R. Co. v. Wolf, 80 Ky., 82)</p> <p>3. Contributory negligence is no defense if appellee, by ordinary care, could have avoided the injury, or if willful neglect is shown. (Sullivan v. Lou. & Nash. R. Co., 9 Bush, 90; Jacob v. L. & N. R. Co., 10 Bush, 267; K. O. R. Co. v. Lebus, 14 Bush, 518; L. & N. R. Co. v. Brice, 84 Ky., 298.)</p> <p>Morel v. Miss. Valley Ins. Co., 4 Bush, 555, and L. & N. R. Co. v. Sickings, 5 Bush, 1, explained.</p> <p>4. The allegations of the petition show gross or willful negligence on the part of appellee. (Spencer v. Milwaukee, &c., R. Co., 17 Wis., 487; Chicago & Alton R. Co. v. Pondron, 51 111., 333.)</p> <p>5. The question of negligence was for the jury, and the demurrer should have been overruled. (52 'Mo., 253; 51 111., 333; 17 Wis., 487; 21 Penn., 203; 108 U. S., 288.)</p> <p>6. Even if plaintiff was guilty of gross negligence, the defendant is liable if it was also guilty of gross negligence. (Yandell v. Lou. & Nash. R. Co., 17 B. M., 598; Lou. & Nash. R. Co. v. Sickings, 5 Bush, 10.)</p> <p>1. The conduct of appellant in unnecessarily putting his hand and arm outside the car window was gross negligence on his part. (Lou. & Nash. R. Co. v. Sickings, 5 Bush, 1-10; 2 Wood on Railways, pages 1104-1109; Pittsburg, &c., R. Co. v. McClung, 56 Pa. St., 295.)</p> <p>2. If the plaintiff, by his own negligence, contributed to such an extent to produce the injury that but for his negligence it would not have happened, then he has no cause of action, unless the defendant’s agents knew, or could have known by ordinary attention, of the peril in which plaintiff’s negligence had placed him, and failed to observe reasonable care to avoid the injury. (Ky. Cent. R. Co. v. Thomas’ Adm’r, 79 Ky., 163; L. & N. R. Co. v. McCoy, 81 Ky„ 415.)</p> <p>1. The petition shows upon its face such reckless and gross negligence on the part of plaintiff as to utterly preclude a recovery. (Morel v. Miss. ValleysLife Ins. Co., 4 Bush, 535; Lou. & Nash. R. Co. v. Sickings, 5 Bush, 1; Pittsburg & Connellsville R. Co. v. McClurg, 56 Pa. St., 295; Todd v. Old Colony B. Co., 8 Allen, 18, and 7 Allen, 207; Holbrook v. Utica & Schenectady R. Co., 12 N. Y., 236; Lafayette & Ind. R. Co. v. Huffman, 27 Ind., 288; Ind. & Cin. R. Co. v. Rutherford, 29 Ind., 82; Telfer v. Northern R. Co., 30 N. J. Law, 190; Dale v. Delaware, &c., R. Co., 73 N. Y., 468; Hickey v. Boston & Lowell R. Co., 14 Allen, 429; Dunn v. Seaboard, &c., R. Co., 78 Va., 645; Pittsburg, &c., R. Co. v. Andrews, 39 Md., 329.)</p> <p>2. Where the facts are stated and uneontradicted, whether such facts constitute negligence in the one party or the other to the proceedings, is purely a question of law to he determined by the court. (Lou. & Portland Canal Co. v. Murphy’s Adm’r, 9 Bush, 527; Dolfinger v. Eishback, 12 Bush, 478; Jones’ Adm’r v. Lou. & Nash. R. Co., 6 Ky. Law Rep., 694.)</p>

<p>Case 101 — PETITION EQUITY —</p> <p>APPEAL PROM UNION CIRCUIT COURT.</p> <p>1. There is nothing in the will which gives the widow the right to use and control the entire farm until the time when the son would have reached the age of twenty-one years. But even if the will gives her that right, appellants are entitled to maintain this action in order to have their rights determined. (Simmons v. McKey, 5 Bush, 25.)</p> <p>2. The son took an estate in fee, the word “ heirs ” being used as a word of limitation, and not a word of purchase, and upon the death of the devisee in infancy the title to the lands passed, under the provisions of our statute of descents, to the kindred of the testator. (General Statutes, chap. 31, sec. 9.)</p> <p>To escape a manifest absurdity the word “or” should be read “and.” (Robb v. Belt, 12 B. M., 647; Jarman on Wills, 5th ed., Bigelow’s, pages 505, 515.)</p> <p>1. Even if the will postpones appellants’ right of possession, they may maintain this action to have their rights passed upon and defined. (Simmons v. McKey, 5 Bush, 25.)</p> <p>2. The word or in the expression or his heirs is to be read and. (Robb v. Belt, 12 B. M., 643.)</p> <p>3. But if not, then the word “heirs” is to be construed in the sense of children. (Williamson v. Williamson, 18 B. M., 876.)</p> <p>But if it was used in its legal sense, it applies to “ those upon whom the law casts the inheritance,” who, i.n this case, are the brother and sisters of the testator. (Gen. Stats., chap. 31, sec, 9; Ohitty’s Blackstone, second book, p. 179; case of Henry Clay’s Will, 2 Duv., 296.)</p> <p>4. The right of the heir to inherit can only be displaced or precluded by direct words or plain intention evincing a desire on the part of the testator that he shall not take. (Allen, &c., v. Allen, &c., 18 How., 390; Augustus, &e., v. Seabolt, &c„ 8 Met., 165; Clarkson, &c., v. Clarkson, &p., 8 Bush, 655.)</p> <p>5. The son took a vested and not a contingent interest. (2 Cooley’s Blackstone, pages 153, 168, 169, 172; 4 Kent, pages 228, 232, 233.)</p> <p>Brief not in record.</p> <p>Cited in petition for rehearing: Smith v. Bell, 6 Peters, 75-83; Parish v. Vaughn, 12 Bush, 101; Jarman on Wills, vol. 2,169; Idem, vol. 1, 760; Willitts’ Adm’r v, Butler’s Adm’r, 84 Ky., 318; Briscoe v. Wickliffe, 9 Dana, 192; Eanforth v. Talbott, 7 B. M., 623; Grigsby v. Breckinridge, 12 B. M,, 632; Allan v. Vanmeter, 1 Met., 264; Eedfield on Wills, vol. '1, pp. 486-7; Bobb v. Belt, &o., 12 B, M., 643; Gedges v. Western Baptist Theological Institute, 13 B.M., 580.</p>

Case 102 — PETITION EQUITY — APPEAL PROM KENTON CIRCUIT COURT. 1. The drawee has not been released. A receipt is only prima facie evidence, and may be contradicted by parol. (Hitt, &c., v. Holliday, &c., 2 Litt., 333; Baugh v. Brassfield, 5 J. J. M., 79; Tribble v. Old-ham, Idem, 144; Caldwell v. Harlan, 3 Mon., 351; Peddicord v. Hill, 4 Idem, 373; Williams v. Cummins, 6 Idem, 157; Gordon v. Gordon, 1 Mot., 288.) 2. Money paid under mistake may be recovered back.

<p>1. Conspiracy — Evidence.—Circumstances connecting one of two persons with the commission of an offense are not competent evidence against the other, unless their acts are so connected as to show a conspiracy. The mere fact that a conspiracy is charged in the indictment is not sufficient to make such testimony competent.</p> <p>2. Same. — What was said or done by one of two co-conspirators after the commission of the offense, not in the presence of or approved by the other, is not competent evidence against him.</p> <p>3. Prejudicial Errors. — The admission of incompetent testimony may be prejudicial although excluded by instructions from the consideration of the jury.</p> <p>4. No INSTRUCTION AS TO A CONSPIRACY SHOULD BE GIVEN Where the acts and circumstances proved fail to show a conspiracy.</p> <p>5. The right to challenge a juror without cause arises where there are twelve men in the box competent to try the case, and while this right may be waived, the examination of the individual juror as to his fitness to try the case is not a waiver of the right.</p> <p>In this case the court erred in refusing to allow the defendant’s peremptory challenge of two jurors after twelve men had, upon examination, been found competent to try the case, the examination of the jurors as to their fitness to try the case'not being a waiver of the right of peremptory challenge.</p> <p>6. Impaneling oe Jury. — After a jury had been selected, but before they were sworn to try the issue, it appeared from affidavits filed by the attorney for the Commonwealth that one of the jurymen had formed and expressed an opinion from hearing the statements of those familiar with the facts, and thereupon the entire jury was discharged, and an order made directing the sheriff to summon twenty-four jurors, including among the number the eleven jurors who had been discharged. Held — That it would have been proper, under the circumstances, to have had an entire new panel, but the failure to do so is not a reversible error.</p>

Case 104 — PETITION EQUITY — APPEAL PROM M’CRACKEN CIRCUIT COURT. A devise of the testator’s entire estate for the erection of a monument is unauthorized by law. Such a devise is not for a “ charitable or humane purpose.” (Gen. Stats., chap. 113, sec. 2; Idem, chap. 13, sec. 1; Bates v. Bates, 134 Mass., 116 (45 Am.

Case 105 — APPEAL FROM CITY COURT — APPEAL PROM SHELBY CIRCUIT COURT. Appellant is taxable only upon its capital stock paid in, and not upon its authorized capital stock. (Franklin County Court v. Deposit Bank of Frankfort, 87 Ky., 370.) 1. No appeal lies from the judgment of the Shelbyville City Court in such a proceeding as this.

Case 106 — PETITION ORDINARY — APPEALS FROM HENRY CIRCUIT COURT. 1. The sureties in the bond executed in 1887 were only liable for the acts of the sheriff for one year from the date of the execution of the bond. (Gen. Stats., chap. 100, sec. 3; Idem, sec. 25; Rev. Stats., vol. 2, page 344, see. 25; Eletcher v. Leight, 4 Bush, 303; Ketler v. Thompson, 13 Bush,1i87: Moss v. State, 10 Mo, 338; s. c., 47 Am. Dec., 116; County of Wapello v. Bigham, 10 Iowa, 39; s. c., 79 Am.

Case 107 — FORFEITED BAIL BOND — APPEAL FROM WARREN CIRCUIT COURT. 1. There being a warrant from Jefferson county, as also one from Warren county, for the arrest of Yon Arnold on the same complaint, and he being incarcerated in the Jefferson county jail on both warrants, the surrender by appellant to the Jefferson county jail was a compliance with the letter and spirit of section 86, Criminal Code. 2.

<p>Case 108 —INDICTMENT—</p> <p>APPEAL FROM MERCER CIRCUIT COURT.</p> <p>A deadly weapon is any thing that can he used to produce death by striking, and as to whether the rock used in this instance was large enough to produce death was a question that should haye been left to the jury. (Philpot v. Commonwealth, 86 Ky., 595; State v. Calhoun, 72 Iowa, 432.)</p> <p>The statute under which the indictment in this case was found is different from the statute under which the case of Commonwealth V. Hawkins, 11 Bush, 603, was decided.</p>

<p>The assignment op wages to be earned in puture under an existing contract vests in the assignee an equity superior to that of a subsequent attaching creditor. In such a case that which is assigned has a potential existence.</p> <p>A policeman elected for the term of four years, whose salary was payable at the end of each month, at the rate of two dollars per day for the days served, assigned for value on the first day of the month his salary for the month. Subsequently a creditor garnished his wages for the month in the hands of the city. Held — That there was, at the time of the assignment, an expectation of wages under an employment entered upon under a subsisting contract, and, therefore, the assignee has an equity which, being prior in time to that of the attaching creditor, must he given the preference.</p>

Case 110 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. The title to the lot in question here is in the clouds, and will continue so until the death of Mrs. Dumesnil. Therefore, the deed from her children to her is premature, and, being in that condition, Dumesnil and wife can not pass a legal vendible title, or a title clear of clouds to Ormsby. (Bohon v. Bohon, 78 Ky., 408.) 1.

Case 110 — PETITION ORDINARY — APPEAL PROM MADISON COURT OE COMMON PLEAS. 1. The judgments confirming the sale and approving the conveyance of the land are valid and binding, and operate to bar by estoppel all the parties to the record, notwithstanding previous errors and irregularities of the court.

<p>The sureties op A bank officer are not liable for a loss to the bank caused by the employment of the officer out of his sphere. But the mere fact that the officer was employed out of his sphere is not sufficient to release his sureties, if the extra duties had nothing to do with the loss.</p> <p>Where a bank clerk was enabled, by simply changing figures in books of which he had exclusive control, not only to perpetrate, but to conceal from other officers, a fraud, the loss thereby caused to the bank had no connection with his occasional performance of the duties of cashier during the temporary absence of that officer, and, therefore, the sureties in a bond executed by him for the faithful performance of his duties as clerk are liable for such loss, notwithstanding his occasional performance of the duties of cashier. But the sureties are not liable for a sum which their principal, by being authorized to act as cashier, was enabled, as well as tempted, to abstract from the funds of the bank, the theft of which he was enabled to conceal by false entries in books which were under the exclusive charge of the cashier</p>

<p>1. Under a devise by a testator to his wife “for her own use AND THE BENEFIT OF OUR CHILDREN FOREVER,” the wife took a life estate and the children -the remainder in fee. The fact that the wife was by the will appointed guardian for the children is not sufficient to show an intention to give the children the present use and enjoyment jointly with their mother.</p> <p>2. Bight of Bemaindermkn to Compel- Life Tenant to Settle Accounts as Executrix. — Although the children are not entitled to the use of any part of the estate during the life of their mother, yet they are entitled to a settlement of her accounts as executrix, that they may know what estate was left by their father, and, that such a settlement may be had, the judgment is reversed.</p>

Case 113 —RULE— APPEAL PROM LOUISVILLE CHANCERY COURT. 1. No violation of any order of injunction, and, therefore, no contempt, is shown to have been committed by appellant. 2. If any violation of a valid order is shown, it was not violent or contemptuous in fact, but has occurred because practically impossible to avoid it, except by the failure of appellant to perform a plain imperative duty to the public.

<p>Case 114 — PETITION EQUITY —</p> <p>APPEAL PROM BOURBON COURT OP COMMON PLEAS.</p> <p>Record and briefs misplaced.</p>

<p>1. Fraudulent Conveyances — Limitation.—To entitle a creditor to bring an action to set aside a conveyance" as fraudulent after the lapse of five years from its execution, he must allege and prove that he discovered the fraud within five years next before bringing- the suit, and that he could not, with the use of reasonable diligence, have discovered it sooner; and this is true, although the plaintiff did not obtain a return of “ no property ” until within five years before the institution of his suit.</p> <p>2. A CREDITOR IS NOT CONFINED TO AN EQITABLE ACTION TO SET ASIDE A fraudulent conveyance executed "by the debtor. He may have an attachment at the commencement of his common law action, or may have an execution levied upon the property fraudulently convoyed.</p>

<p>* Case 116 — PETITION EQUITY —</p> <p>APPEAL PROM ROBERTSON CIRCUIT COURT.</p> <p>1. Appellees have no cause of action against appellant on the assigned note except as assignees of Reed. The action on the assigned note was not so brought; therefore, the motion of appellant for appellees to elect, &c., should have been sustained. (Oivil Code, sections 83 to 86, inclusive.)</p> <p>2. The vendor, by mingling and merging his original debt on Reed with a different obligation from a third party, waived any lien he may have had.</p> <p>3. Reed must have first, if he had brought suit on the Hitt note, set out the terms of the contract of sale to Hitt, alleged and exhibited his title, and tendered Hitt a good title to the land before he could have obtained judgment against Hitt. Appellees are in no better attitude. (Calvin v. Duncan, 12 Bush, 101; Williams v. Abrahams, 3 Bush, 187.)</p> <p>1. Appellant is simply a sub-vendee, holding by executory contract, and such a holding is not adverse to the vendor. (Greene v. Munson, 31 Am. Dec., 605; s. c., 9 Vt., 37; Lewis v. Hawkins, 23 Wall., 119.)</p> <p>2. When a vendor sells land without conveyin ’the legal title he holds that legal title as security for the payment of the purchase money, and does not have a mere lien. (Jones on Mortgages, vol. 1, sec. 225; 3 Pomeroy’s Eq. Jur., sec. 1260; 2 Jones on Liens, see. 1107.)</p> <p>3. Where the vendor retains the legal title as security for the payment of the purchase price, he does not lose or -waive that security by accepting other security or by a change of notes. (Jones on Mortgages, vol. 1, sec. 232; 2 Jones on Liens, sec. 1116; Eogg v. Rogers, 2 Cold., 290.)</p> <p>4. Even if such a security could he -waived, there was no act done in this case amounting to a -waiver. (Bradley v. Curtis, 79 Ky., 327.)</p> <p>5. A vendor who retains the legal title can subject the land sold to the payment of the purchase money, although he can not recover on the notes given for the purchase money. (Gallagher v. Whalen, 9 S. W. Rep., 890; Singleton v. McQuerry, 8 Ky. Law Rep., 711; Lewis v. Hawkins, 23 Wall., 119; Thacker v. Booth, &c., 9 Ky. Law Rep., 747.)</p> <p>6. The purchaser of merely equitable title can not he entitled to the protection of a purchaser in good faith without notice. (3 Pomeroy’s Eq. Jur., sec. 1260.)</p>

<p>* Case 117 — PETITION ORDINARY —</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>Record and briefs misplaced.</p>

<p>* Case 118 — PETITION EQUITY —</p> <p>APPEAL PROM GREENUP CIRCUIT COURT.</p> <p>1. Plaintiffs have not shown such title or possession in themselves as entitles them to recover. (McLaurin v. Salmons, &c., 11 B. M., 96; Campbell v. Roberts, &c., 3 A. K. Mar.; Riley, &c., v. Million, 4 J. J. Mar.; Steele’s Heirs v. Logan, 3 A. K, Mar.; Miller v. Humphries, &c., 2 A. K. Mar.; Walton v. Clark, 4 Bibb, 218, 219; Wilson v. Bibb, 1 Dana, 9; Neely, &c., v. Butler, 1 OB. M., 50.)</p> <p>2. Where one enters upon land, knowing it to belong to another, he should not he allowed for improvements. (Childs v. Patterson, 1 Mar., 445; Hawkins’ Heirs v. King’s Heirs, 1 Mon., 163.)</p> <p>But here the appellant, J. W. Smith, settled on the land in good faith, and made the improvements with the knowledge of appellees, and it was error to refuse to allow him any thing for his improvements, and at the same time charge him with enormous rents for the land he had cleared and made fit for cultivation.</p> <p>1. As the court heard oral testimony, and there is no bill of exceptions showing what that testimony was, the judgment must be affirmed. (Beauchamp v. Morris, 1 A. K. Mar., 520; Erazier v. Harris, 2 Litt., 181.)</p> <p>2. The attorneys’ fees were part of the damages sustained by appellees, and were properly allowed by the court. (Trustees of Augusta v. Perkins, 8 B. M., 200.)</p>