Volume 92 — Kentucky Reports

<p>Case 1 —INDICTMENT—</p> <p>APPEAL PROM CLAY CIRCUIT COURT.</p> <p>1. The court erred in refusing a continuance. The accused has the right to meet the witnesses face to face. (Bill of Rights, section 12.)</p> <p>2. If appellant was an accessory, the Commonwealth could not have a conviction until the guilt of the principal was first established. (Gen. Stats., chap. 29, art. 1, sec. 10; Tully v. Commonwealth, 11 Bush, 158; Mulligan v. Commonwealth, 84 Ky., 229.)</p> <p>3. The indictment is not good. Mere conclusions and not facts are stated. It is essential to a good indictment that it should state, in ordinary and concise language, the acts constituting the offense. (White v. Commonwealth, 9 Bush, 178; Commonwealth v. Perrigo, 3 Met., 5; Mulligan v. Commonwealth, 84 Ky., 229; Conner v. Common- ' wealth, 13 Bush, 714; Purn,ish v. Commonwealth, 14 Bush, 180; Criminal Code, see. 121; Bishop on Criminal Procedure, sec. 277.)</p> <p>4. The appellant, being indicted as aider and abettor, can not be convicted as principal.</p> <p>1. Appellant was not prejudiced by the refusal to grant a continuance, as the facts he states in his affidavit he can prove by his absent witnesses were proved by him upon the trial by other witnesses.</p> <p>2. Conceding that there can be no conviction of an accessory until the guilt of the principal has been shown, the guilt of the principal in this case is shown with reasonable clearness.</p> <p>3. The evidence was sufficient to authorize appellant’s conviction as principal.</p>

<p>Case 2 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The appellee was not a housekeeper with a “family” within the meaning of the statute. (Brooks v. Oollins, 11 Bush, 625; Carter v. Adams, 9 Ky. Law Rep., 91; Riley v. Smith, Ky. Law Rep., 616; Ellis v. Davis, 11 Ky. Law Rep., 893.)</p> <p>2. The ceasing to have a family put an end to the exemption. (Cooper v. Cooper, 24 Ohio Stat., 488.)</p> <p>3. Exemptions are allowed for the benefit of the debtor’s family, and not for his own benefit. (McMurray v. Shuck, 6 Bush, 111; Thorn v. Darlington, 6 Bush, 449; Bell v. Keach, 80 Ky., 47.)</p> <p>1. While a homestead can not be acquired, except by a housekeeper having a family, yet when once acquired it is not defeated by the death or absence of his wife and children. (Gen. Stats., chap. 38, secs. 9, 14, 15, 16; Ellis v. Davis, 11 Ky. Law Rep., 893; Thompson on Homestead and Exemptions, sec. 72; Silloway v. Brown, 12 Allen, 34; Bennett v. Baird, 81 Ky., 557.)</p> <p>2. The fact that the debtor rents out a part of his homestead does not deprive him of the exemption. He would have a right to sell and claim the proceeds as exempt. (Musgrave v. Parish, 10 Ky. Law Rep., 998; Skinner v. Chad well, 8 Ky. Law Rep., 258; Thomasson v. Settle, 7 Ky. Law Rep., 749; Brooks v. Oollins, 11 Bush, 622; Eeighan, assignee, v. Jackson, 7 Ky. Law Rep., 749.)</p>

' Case 3 — AGREED CASE APPEAL PROM FRANKLIN CIRCUIT COURT. 1. The setting apart of the $19,500, mentioned in the resolution, was not in any sense an expenditure of the same, being, as the report shows, $3,500 more money than they had in the treasury. 2. The Auditor had the right to withhold the $16,000 whenever he was possessed of accurate and reliable information that that balance remained in the treasury of the asylum. 3.

Case 4 — PETITION EQUITY APPEAL FROM BARREN CIRCUIT COURT. 1. The widow of E. W. Lee took only a life estate under his will, the fee vesting on the death of the testator in his brothers and sisters, subject to he divested in the event the widow should die leaving child or children surviving her. 2. B. B. Lee took, under the will, the same estate that his brothers and sister took, which was an estate he had the power, under the statute, to devise.

<p>Case 5 —INDICTMENT—</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p> <p>1. The statute denounces the advertising of lottery tickets for sale in this State and not the advertising of lottery tickets for sale outside the State. (Gen. Stats., chap. 29, art. 23, sec. 5.)</p> <p>2. The indictment is defective in that it does not set out the words of the advertisement.</p> <p>3. The charge that defendant advertised a lottery called the “Louisiana State Lottery ” is not sustained by proof of the advertisement of a lottery called the “Louisiana State Lottery Company.” (Hensley v. Commonwealth, 1 Bush, 11; 2 Eng. C. 0., 303; Roscoe, 107, 433; 2 Russell, 788, 789; 1 Wharton’s Criminal Law, secs. 250-259 and 595; McGay v. The People, 45 N. Y., 153; 1 Greenleaf on Evidence, sec. 76.)</p> <p>4. The Louisiana Lottery is legal under the Constitution of Louisiana and • the Constitution of the United States, and therefore, it is not an offense to publish it.</p> <p>The indictment is good. The statute forbids the advertisement, by printing or otherwise, of lotteries and lottery tickets of all kinds whether the lottery is located within or out of the State. (Acts, 1869, vol. 1, p. 185; Gen. Stats., chap. 29, art. 23, secs. 1-6; Criminal Code, sec. 125; Sims v. Sims, 75 N. Y.; Bishop on Statutory Crimes, secs. 205, 356 and 950.)</p>

<p>Case 6 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE LAW AND'EQUITY COURT.</p> <p>1. The question whether or not the facts alleged show the existence of a written contract or agreement, such as is required under the statute, is properly raised by demurrer. (Smith v. Theobald, 86 Ky., 144.)</p> <p>2. The court will not enforce a parol contract for the sale of land. (Thomas’ Ex’rs v. Trustees of Harrodsburg, 3 Mar., 299; Holtzclaw v. Blackaby, 9 Bush, 41.)</p> <p>3. The contract must be proved by the writing, and parol proof of any change or modification is incompetent. (Wardell v. Williams, 4 Am. St. Bep., 817.)</p> <p>4. The verbal acceptance of a written proposition does not constitute a contract in writing. The acceptance must be in writing. (Lanly v. McLaughlin, 14 Minn., 73.)-</p> <p>5. While the consideration need not be expressed in the writing, yet if the writing shows that the parties have not come to an agreement as to the consideration, it is not the memorandum of a contract, and can not be enforced. (Waterman on Specific Performance, sec. 234.)</p> <p>6. The contract must be mutual in order to render it binding on either .party. (Usher’s Ex’r v. Mood, 83 Ky., 556; Dean v. Cassiday, 11 Ky. Law Bep., 105.)</p> <p>7. As appellee’s counter proposition was never delivered to appellant, it is not binding on him.</p> <p>There was in writing an offer to purchase the lana, and an acceptance in writing to sell it. The only question left open was as to the time of payments and interest. These are matters relating to the consideration and may be proved by parol. (Camp v. Moreman, 84 Ky., 636.)</p>

Case 7 — PETITION ORDINARY APPEAL PROM BOYLE CIRCUIT COURT. 1. Under the facts in the case as developed in appellant’s testimony a knowledge on the part of defendant’s employes that Potts was in a dangerous position or grounds of expectation of danger to him was a necessary element to establish willful neglect, and the jury should have been so told. (9 Busb, 88.) 2.

Case 8-INDICTMENT— APPEAL FROM KENTON CRIMINAL COURT. Brief not in record. The record from the office of the Inspector of Vital Statistics, certified to by the Consul of the United States for the District of Toronto and its dependencies, answers fully the requisition of the law. (Gen. Stats., chap. 37., sec. 15.)

<p>Case 9 — PETITIONS ORDINARY</p> <p>APPEALS PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The question of construction as to whether the tax is aimed at the inter state business of these companies, and the question whether or not if aimed only at the property and business within the State it is consistent with the State Constitution, are questions solely within the jurisdiction of this court, and with which the Supreme Court of the United States has nothing to do. (W. U. Tel. Co. v. Seay, 10 Sup. Ot. Rep., 162.) Therefore, in considering these questions this court should be governed by its own views and decisions.</p> <p>2. Whenever an act of the Legislature is open to two different constructions, one of which would make it constitutional and the other of • which would make it unconstitutional, the courts will adopt the construction which makes the act valid. (Waller v. Martin, 17 B. M., 190; State v. Western Union Tel. Co., 73 Me., 618.)</p> <p>3. A specific tax is a legitimate form of taxation. (Lexington v. Mc-Quillan’s Heirs, 9 Dana, 516; Livingston v. City of Paducah, 80 Ky., 656; C., N. 0. & T.'P. Ry. Co. v. Commonwealth, 80 Ky., 504; Cooley on Const. Limit., star page 496.)</p> <p>4. The State has the power to levy specific taxes against corporations whose property is used not only in doing a business within the State but also in doing a business between this State and other States. (Lou. &Nash. R. R. Co. v. Warren County, 5 Bush, 243; Evansville, Henderson & Nashville R. R. Co. v. Commonwealth, 9 Bush, 438; State of Maine v. Western Union Tel. Co., 73 Me., 518; Railroad Co. v. Penniston, 18 Wall., 5; Western Union Tel. Co. v. Massachusetts, 125 U. S., 530.)</p> <p>While the tax in each of the cases cited was in form ad valorem, it was practically a specific tax.</p> <p>It is only where the tax is made to depend, to some extent, upon the interstate business or on the question of whether interstate business is or is not done, or where it is imposed in such a form as to be a prohibition against coming into the State at all unless the tax should be paid, that it can be regarded as a regulation of interstate commerce. (Telegraph Co. v. Texas, 105 U. S. 464; Woodward v. Commonwealth, 9 Ky. Law Rep., 674; Gibbons v. Ogden, 9 Wheat., 1; Brown v. Maryland, 12 Wheat., 419 ; Case of the State Freight Tax, 15 Wall., 232; State Tax on Railway Gross Receipts, 15 Wall., 284; Philadelphia Steamship Co. v. Pennsylvania, 122 IT. S., 326 ; Telegraph Co. v. Texas, 105 U. S., 460; Pickard v. Pullman Southern Car Co., 117 U. S., 34; Le Loup v. Mobile, 127 U. S., 640; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 206; Moran v. New Orleans, 112 U. S., 60; Robbins v. Taxing District, 120 U. S., 489; Asher v. Texas, 128 U. S., 129; West. Union Tel. Co. v. Seay, 10 Sup. Ct. Rep., 161.)</p> <p>While the tax on the United States Express Company is called a License Tax,” it is not, in fact, such a tax in the sense of prohibiting the company’s entry into the State until the taxes should be paid, and therein this case differs from Crutcher v. Kentucky, 141 U. S., 47. (Youngblood v. Sexton, 32 Mich., 20 Am. Rep., 663.)</p> <p>1. Telegraphy is commerce, and the Western Union Telegraph Company is an agent of interstate commerce. (Western Union Tel. Co. v. Texas, 105 U. S., 460; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S., 1.)</p> <p>2. No State has a right to demand of an agent of interstate commerce a license tax or to compel such agent to pay a specific tax, such taxes being a regulation of commerce between the States within the prohibition of the Federal Constitution. Agents of interstate commerce can be taxed only upon their property by an ad valorem tax, and in the-same way that the property of other citizens is taxed. (-Brown v. Maryland, 12 Wheaton, 4S6; Passenger Cases, 7 How., 122; Almy v. State of California, 24 How., 172; .State Tonnage Cases, 12 Wall., 204; Cook v. Pennsylvania, 97 U. S., 566; Webber v. Virginia, 103 U. S., 344; Moran v. New Orleans, 112 U. S., 69; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 212; State Freight Tax Case. 15 Wall., 276; Pickard v. Pullman Co., 117 U. S., 34; Walling v. Michigan, 116 U. S., 446; Robbins v. Taxing District, 120 U. S., 489; Asher v. Texas, 128, 129; Steamship Co. v. Pennsylvania, 122’ U. S., 326; Telegraph Co. v. Texas, 105 U. S., 460; Western Union Tel. Co. v. Massachusetts, 125 U. S., 550; Railroad Co. v. Penniston, 18 Wall., 5; Ratterman v. Western Union Tel. Co., 127 U. S. 41; Le Loup v. Port of Mobile, 127 U. S., 640; Western Union Tel. Co. v. Seay, 10 Sup. Ct. Rep., 161.)</p> <p>3. The tax in this case is in no sense a property tax, but a tax on the business of the company, and is a regulation of interstate commerce. (Webber v. Virginia, 103 U. S., 350; State Freight Taxes, 15 Wall-, 276; Pickard v. Pullman Southern Car Co., 117 U. S., 34.)</p> <p>4. If the tax in question here can be considered an ad valorem tax it is contrary to the State Constitution. The Legislature can not count or weigh or measure. Such acts are ministerial, or, if not, at least judicial'. (Slaughter v. City of Louisville, 89 Ky., 112.)</p> <p>Section 6 of article 4, chapter 92, General Statutes, which imposes a special tax upon express companies, is a regulation of commerce and is in plain contravention of section 8, article 1 of the Constitution of the United States. (Gibbons v. Ogden, 9 Wheat., 189; Passenger Cases, 7 How., 416; State Freight Tax, 15 Wall., 275; Welton v. Missouri, 91 U. S., 280; Hall v. DeCuir, 95 U. S., 485; Railroad v. Husen, 95 U. S., 469; Telegraph Co. v. Telegraph Co., 96 U. S., 1; TelegraphjCo. v. Texas, 105 U. S., 464; Ferry Co. v. Pennsylvania, 114 U.S., 196; Pickard v. Pullman Southern Car Co., 117 U. S„ 34; Tennessee v. Pullman Southern Car Co., 117 U. S.,34;, Fargo v. Michigan, 121 U. S., 230; Steamship Co. v. Pennsylvania, 122 U. S., 326; Bowman v. Railway Co., 125 TJ. 8., 479; Ratterman v. Telegraph Co., 127 TJ. S., 411; Le Loup v. Mobile, 127 TJ. S., 640; Brown t. Maryland, 12 Wheat., 419; Passenger Cases, 7 How., 283; State Tax on Railway Gross Receipts, 15 Wall.,’ 284; Osborne v. Mobile, 16 Wall., 479; Welton v. Missouri, 91 TJ. S,, 275; Moran v. New Orleans, 112 TJ. S., 69; Gloucester Perry Co. v. Pennsylvania, 114 TJ. S., 196; Robbins v. Taxing District, 120 TJ. S., 489; LeLoup v. Port of Mobile, 127 TJ. S., 640; Asher v. Texas, 128 TJ. S., 129; Stontenburgh v. Hennick, 129 U. S., 141; Telegraph Co. v. Seay, 10 Sup. Ct. Rep., 161.)</p>

<p>Case 10 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. The aggregate of all the claims is the amount in controversy. The true principle is that wherever parties have a right to join and a right to sue one defendant for a sum aggregating more than the jurisdictional amount either party may appeal. (Ereeman v. Dauson, 110 U. S., 269; Shields v. Thomas, 17 How., 3; The Oonnemara, 103 H. S., 754; Market Co. v. Hoffman, 101 U. S., 112; Wilde & Co. v. Hay-craft &c., 2 Duv., 311; Civil Code, see. 25.)</p> <p>But even if the'test of the amount in controversy is as laid down in Shufeldt v. Gibson, 122 U. S., 27, the court has jurisdiction of this appeal.</p> <p>2. In Kentucky where one sues for the benefit of others, the consent of the others is presumed unless they come'into the case and object. (Flint v. Speer and others, 17 B. M., 499.)</p> <p>The amount in controversy is not sufficient to authorize an appeal either to 'this court or the Superior Court. The claim of each of the appellants must stand or fall by itself, and, therefore, their claims can not be added together in order to give jurisdiction of the appeal. (Zable v. Harris, 6 Ky. Law Rep., 642; Stoll v. Stoll, Superior Court, 7 Ky. Law Rep., 286; Gibson v. Shufeldt, 122 U. S., 27.)</p>

Case 11 — PETITION OBDINABY APPEAL FROM TODD CIRCUIT COURT. 1. When the plaintiff sets out specifically the kind of negligence and fixes it upon certain identified agents or servants of the defendant, he must prove his case as alleged. A party is bound by any material fact pleaded, though he need not have stated it. (Phoenix Ins.

Case 12 — PETITIONS EQUITY APPEAL PROM CALDWELL CIRCUIT COURT. 1. The report of the Master Commissioner in the original suit that he had collected the purchase money and paid it out must, in the absence of anything to contradict it, be taken as true. Every officer, acting under the sanction of an oath, must be presumed to have done his duty until the contrary is proved. (Hickman v. Boffman, Hardin, 362.) 2.

<p>1. In a Suit to Enforce a Lien for Taxes, although a common law judgment for the taxes has "been rendered, it is necessary, as against one who has purchased the property since the rendition of that judgment and was therefore not a party to it, to aver the preliminary steps necessary to create the lien, as if no judgment had been rendered. Whether the same rule applies as against the original owner, against whom the judgment was rendered, where he has not parted with the property, is not determined.</p> <p>2. The Lien for Taxes does not Exist Longer Than Eive Years. And the rendition of a common law judgment for the taxes does not extend the period of limitation.</p>

<p>To Entitle the Defendant in a Criminal Case to a Continuance on account of the absence of witnesses it must be made to appear that he has used due diligence to procure their attendance. But it is not necessary that the facts showing diligence should be stated in the affidavit; it is sufficient that a subpoena issued and placed in the hands of an officer in ample time and returned executed is exhibited to the court, or that notice of the court is called to it.</p>

Case 15 — PETITION EQUITY APPEAL PROM RUSSELL CIRCUIT COURT. I. The Legislature has the power to provide, either by a general law or a. special law, how the title to lands held by a society shall vest upon its dissolution. 2. A legislative enactment must he clearly unconstitutional to authorize the courts to so adjudge. 3. The Chancellor has jurisdiction to enjoin trespass and injury to property.

Case 16 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. 1. Two or more persons may execute a joint will which will operate the same as if executed separately by each, and will be entitled to probate upon the death of either, but will require a separate probate upon the death of the other. (Redfield on Wills, vol. 1, top page 182; Betts v. Harper, 39 Ohio, 639, 48 Am. Rep. 477.) 2.

<p>Case 17 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>Brief not in record.</p> <p>1. The Legislature has power to exempt charitable institutions and schools from taxation. (Barbour v. Louisville Board of Trade, 82 Ky., 645.)</p> <p>2. The petition is defective in that it fails to show that the Council ever took any action to fix the depth of the grade. The Council had no power to leave the question of grade either to the contractor or the City Engineer. (Joyes v. Hydes & Goose, 4 Bush, 464; Henderson v. Brown, 7 Ky. Law Rep., 609.)</p>

<p>1. The Power oe a Municipal Corporation to Acquire Land eor the ; Purpose oe Erecting Whares Thereon, and to charge wharfage, is not a necessary incident of its charter, but must, like all its other powers, be derived directly from the Legislature, to be exercised within the limits and upon conditions of the grant.</p> <p>2. Whare Property Acquired by a City Under Legislative . Authority is Held by it in Trust eor the Public, and the city can not transfer the title or possession; nor can the General Council, when invested by statute with power of control, and burdened with the duty of maintaining, preserving and operating the wharfs, either delegate that power or disable itself from performing that duty. And a court of equity may, if needful, compel the General Council to perform the duty of preserving and maintaining the wharf property for the purpose intended.</p> <p>3. Injunction Lies in Eavor oe Taxpayers to Prevent a Municipal Corporation, and its officers, from making an illegal or wrongful disposition of the corporate property, or from passing an ordinance authorizing such a disposition of the corporate property whenever irreparable injury will be done to the plaintiffs, and they have no , adequate remedy at law.</p> <p>4. Injunction to Prevent Passage oe Ordinance. — Municipal corporations have a dual character: One, governmental or public, the other, private or proprietary. And the general proposition that a court of equity may not enjoin the passage of a municipal ordinance must be confined in its application to subjects over which the corporation, in its governmental or public character, has discretionary authority.</p> <p>5. “Tiie Commissioners oe the Sinking Pund” oe the City oe Louisville, which is a distinct corporation created by that name for specified purposes and invested with limited power, can not hold or control the wharf property of the city, authority to do so being nowhere given by their charter.</p> <p>6. Case Adjudged. — The General Council of the City of Louisville being about to pass an ordinance authorizing the Mayor of the city to convey to the Commissioners of the Sinking Pund the property acquired and held by the city for wharf purposes, the appellants brought this action to enjoin the city from either passing the ordinance or transferring the property, alleging that the intention was that the Commissioners of the Sinking Pund should transfer the property at discretion to private individuals, thereby preventing public use of the wharves, which is indispensable to the business of plaintiffs and others similarly situated. Held — That as the plain legal duty is imposed upon the General Council to hold and control the wharf property for the use of the public, the plaintiffs are entitled to the relief sought. And the fact that the proposed ordinance has been withdrawn from the Council, pending this action, does not affect the plaintiffs’ right of action.</p>

Case 19 — PETITION EQUITY appeal prom barren circuit court. 1. A married woman can devise her separate estate. (Gen. Stats:, chap. 113, sec. 4; Bishop on Law of Married Women, vol. 1, p. 853; Mitchell, &c., v. Holder, &e., 8 Bush, 362; Parrott, &c., v. Kelly, &c., 79 Ky., 490.) 2. Where property is secured to the wife hy deed from her husband, no particular form of words is necessary to create in her a separate estate, but the deed itself is effectual for that purpose.

Case 20 — PETITION ORDINARY APPEAL FROM GREEN CIRCUIT COURT. 1. The repairing by a railroad company of its track is'a “work of necessity,” within the meaning of the statute against Sabbath-breaking. (Edgerton v. State, 67 Ind., 588; 33 State Rep., 110; 7 Baxter, Tenn. Rep., 95; 59 Ind., 416; Commonwealth v. L. & N. R. R. Co., 80-Ky-, 291.) 2. The Commonwealth was bound to negative the exception contained in the statute by showing that the work was not one of necessity. 3.

<p>No Appeal lies to this Court from the Decision of the Judge of an Inferior Court upon a Writ of Habeas Corpus. The jurisdiction of this court only extends to final orders and judgments of inferior courts as such, and not to such orders or judgments as judicial officers are authorized to make out of court, unless an appeal is expressly allowed by statute.</p>

<p>False Swearing — Competency oe Grand Juror as Witness. — Upon the trial of one for false swearing- alleged to have been committed before a grand jury, a grand juror can not testify to what the accused swore before the grand jury. False swearing and perjury are distinct offenses, and the provisions of section 113 of the Criminal Code which make a grand juror a competent witness in a prosecution for perjury as to the defendant’s testimony before tbe grand jury do-not apply to prosecutions for false swearing. In fact, the expression of tbe one excludes tbe other.</p>

Case 23 — PETITION ORDINARY APPEAL prom bourbon court op common pleas. 1. The person making the deposit has the right under the statute to recover the money of the stakeholder, although he acted as agent of another. (Gen. Stats., chap. 47, sec. 5; Graves v. Eord, 3 B. M., 115; 15 B. M., 636; 18 B. M., 776.) ‘2.

Case 24 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The word “ children ” as used by the testator in the sixth and seventh clauses of his will was intended as a synonym for the word “heirs.” (Tyler v. Tyler, 5 Ky.

<p>Case 25 —INDICTMENT—</p> <p>APPEAL PROM CRITTENDEN CIRCUIT COURT.</p> <p>The court had no right to change the offense charged in the indictment. If the descriptive part of the indictment did not contain a statement of facts sufficient to constitute the crime charged, then the court should have sustained the demurrer to the indictment.</p> <p>If an indictment charges a public offense within the jurisdiction of the court a demurrer should be overruled, and where the facts stated show that the defendant is guilty of an offense of lower degree than that charged the court may put him on trial for the lesser offense. (Commonwealth v. Maynard, 12 Ky. Law Rep., 710; Lee v. Commonwealth, 12 Ky. Law Rep., 872; Johnson v. Commonwealth, 12 Ky. Law Rep., 835; Swan v. Commonwealth, 5 Ky. Law Rep., 238.)</p>

<p>1. Grant to Railroad Company in Consideration op Location op Depot. — When one has granted land to a railroad company upon consideration, as recited in the deed, that the grantee will locate its depot on the ground, the grantor believing that his adjoining lands will thereby be enhanced in value, the fact that both the granting clause and the habendum recite that the land is for the use of said depot “and other railroad purposes” does not entitle the company, after removing its depot to another part of the city, to continue to use the land for “other railroad purposes,” it being expressly stipulated in the deed that the grantor shall have the right to resume possession of the land “in the event the said railroad shall discontinue the said point as a depot for the said road, and said ground shall no longer be useful for said purposes.” The erection of a depot on the ground and its continuous use as a depot was the sole consideration of the possessory grant, and the other uses to which the ground might be applied were merely privileges that might be enjoyed in conjunction with its use for a depot, and not independently of that use.</p> <p>2. Where there is a Conflict between the Granting Clause op a Deed and the Habendum, the habendum must yield unless a contrary intention appears.</p>

Case 27 — MOTION— APPEAL PROM MASON CIRCUIT COURT. The appeal being “improperly granted” appellee is entitled to its dis- • missal with damages. Appellant, having voluntarily executed the bond and had supprsedeas issued, ought not to be heard to say the bond is void. (Civil Code, secs. 734, 757 and 764; Hanna, &c., v. McKenzie, &c., 5 B. M., 316; Spooner v. Best’s Ex’r, 8 Ky.

Case 28 — PETITION EQUITY APPEAL PROM DAVEISS CIRCUIT COURT. 1. -As Woodson Eletcher paid the purchase price and-, procured the deed to be made it should be construed as though he were himself the grantor. (Smith v. Upton,. 12 Ky. Law Bep., 28.) 2. Where the husband makes provision for the wife and children an intention should be presumed upon his part to give the whole of it to her for life, remainder to the children. (Davis v. Hardin, 80 Ky., 672.) 1.

<p>1. Grant by City of Bight of Way to Eailroad Company. — A city has no power to grant to a railroad company the right to construct and operate a railway through its streets and alleys, unless it is expressly authorized to do so either by its own charter or by the charter of the railroad company.</p> <p>•A provision in the charter of the Louisville & Nashville Eailroad Company authorizing it to construct lateral or side tracks from its main track, to^ terminate on the bank of the Kentucky river, in the city of Frankfort, does not authorize the construction of a lateral or side track which does not commence at the main track or terminate at the river, and the city had no power to grant the right of way across its streets and through an alley for the construction of such a track, no such power being conferred by its charter.</p> <p>2. Same. — To the grant by a city of a right of way upon its public streets and alleys the law attaches the condition that the use by the grantee shall not “prevent, obstruct or unreasonably impede the passage of persons, wagons or other vehicles” through said streets and alleys. And where the grantee has the right to use a street or alley as often as he pleases, and every time he uses it such use totally obstructs for the time, however short, the ordinary public travel, the obstruction is an unreasonable one and the grant is unauthorized.</p> <p>3. Same. — Where the owners of a mill applied to the City Council for the right of way through a public alley for the purpose of constructing a railroad track to connect with a track of the Louisville & Nashville Eailroad Company, and the city refused to grant the right because it did not have the power to grant it, a grant of the right of way to the railroad company, which was evidently for the sole benefit of the mill-owners, who constructed the track at their own expense, was but an evasion, and the owners of the mill will not be allowed to secure for themselves, in this indirect way, a privilege which no citizen would be allowed to secure for himself directly.</p>

<p>IIight oe Married Woman to Decree Empowering Her to Trade in Her Own N ame. — A married woman is entitled, notwithstanding the objection of her husband, to a decree conferring upon her the powers of a single woman, as provided in section 6, article 2, chapter 52, General Statutes, if it appear necessary for her proper support, or if for any cause the husband fails or refuses to support and protect her, provided she has estate of her own and is competent to manage her own buisness. The court must, however, be satisfied, before rendering judgment, that the application is not made with intent to cheat, hinder or delay the husband’s creditors, and that his creditors will not be injured.</p> <p>In this case the fact that the plaintiff and her husband, who is made a defendant, have been living apart for the last two years, after living together eighteen or twenty years, and that she is now out of her own estate and by her own exertions supporting herself, is sufficient to authorize the relief sought, notwithstanding objection by her husband. And tbe fact that no creditor of tbe husband appears to object to rendition of tbe judgment, although the required notice has been duly published, and that it is not stated by the husband, and does not otherwise appear, that his creditors will be at all prejudiced by the judgment, or that .he has any creditors, is sufficient to satisfy the court that the husband’s creditors were not intended to be and will not be injured.</p>

Case 31 —INDICTMENT— APPEAL PROM JEFFERSON CIRCUIT COURT. The indictment is good. The means' by which the conspiracy was to be carried out are sufficiently set forth. (U. S. v. Warner, 17 Eed. Rep., 145; Owen v. Steely, 16 Lea. Tenn., 1; Spies v. People; 122 111.; State y. Rindskoff, 6 Bris.

Case 32 — PETITION EQUITY APPEAL FROM NICHOLAS CIRCUIT COURT. 1. There is’no release or waiver of the homestead exemption in a mortgage unless executed by husband and wife and recorded in the same manner as conveyances of real estate are recorded. The allegation of the ' answer that the mortgage was neither recorded nor lodged for record not being denied must be taken as true. (Brame and wife v. Craig, 12 Bush, 404.) 2.

<p>1, Benepit Societies — Widow and Inpant Children Constitute •“Eamily” op Deceased Member.. — The “Widows’ and Orphans’ Benefit Eund,” created by the charter of the Knights of Honor for the benefit of the “families” of deceased members, is primarily for the benefit of the widow and infant children; and where a certificate is made payable to the widow, who occupies the home with the infant children, they constitute the “family” within the meaning of the charter, and the fund is for their benefit; adult children who are not dependent and do not live in the immediate household not being ... included.</p> <p>2. Same — Change oe Beneeiciaby. — While a member who has had a certificate issued payable to one member of his family may, ordinarily, with the consent of the order, have a new certificate issued substituting the name of any other member of his family as the beneficiary, yet equities may arise which will prevent such a change; and '. . where, as in this case, the wife, to whom the original certificate was issued, has kept it alive by paying the assessments out of her own earnings and has surrendered property to her husband upon the faith ' that she was to have the fund, she has a superior equity to all others ; and, although the husband had a new certificate issued, naming his adult children as the beneficiaries, the widow, upon his death, is entitled to the fund for the benefit of herself and infant children residing with her.</p> <p>'3. Same — Beeect oe Divoece. — Whether or not the wife’s right to insurance on the life of the husband for her benefit is, as a general rule, forfeited by a divorce subsequently obtained, her right still continues, notwithstanding the divorce, where equities have arisen in her favor, ' as in this case.</p> <p>•4. Same. — Where a member to whom a certificate has been issued by a - - Kentucky Lodge has the right to a new certificate changing the beneficiary, the Supreme Lodge of Missouri has the power to make the change, the Kentucky lodges being a part of or subordinate to that Supreme Lodge.</p> <p>.5., Same. — Where a new certificate, changing the beneficiary, has been issued and the society has paid the money over to the new beneficiaries, with or without notice of an equity on the part of the beneficiaries in the first certificate, the society will be protected. But where, as in this case, the money has not been paid over and the litigation is be- ' tween the different persons claiming to be entitled as beneficiaries, the Chancellor should carry into effect the object of the corporation.</p>

<p>Case 34 — PETITION EQUITY</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>Í. If appellee, Trimble, knew of the faulty condition of the bank and represented it to be sound, there can be no question as to Ms liability - to appellant. (Seals v. Baker, 70 Texas, 283.)</p> <p>2. But it is not necessary that he should have known of the unsoundness of the bank in order that his statements may amount to fraudulent representations. (Reese River Oo. v. Smith, L. R., 4 H. L., 64; Edgington v. Fitzmaurice, L. R., 29, Oh. D., 459; Eoard, &c., v. McComb, 12 Bush, 723; Bigelow on Fraud, pp. 410, 412 and 415; Cole v. Oassiday, 138 Mass., 437.)</p> <p>3. The president of a bank will not be heard to say that he did not know facts it was Ms duty to know. (Morse on Banks and Banking, sec. 137; Main v. Mills, 6 Biss, 103; Lou. Oity Nat. Bankv. Loving, &c., -6 Ky. Law Rep., 328; German Savings Bankv. Wulfekuhler, 5 Gent. ■ L. J., 366; Merchants’ Bankv. Rudolph, 5 Neb., 527; UnitedSoeiety of Shakers v. Underwood, 9 Bush, 609; Morse on Banks and Banking, 90 et. seq., 97, et. seq., and 115; Seals v. Baker, 70 Texas, 283; Bigelow on Fraud, 516; Hallmark’s Case, 9 Oh. D., 329.)</p> <p>4. If a purchaser of stock made his purchase relying upon material statements in corporate reports, which were false, he has his remedy against all persons who knowingly made or issued the report. (Scott v. Dixon, 29 L. J., (Ex.) 62; Cross v. Sackett, 2 Bosw., 617; Morse v. Sints, 19 Hon. Pr., 175; Graves v. Lebanon Nat. Bank, 10 Bush, 23.)</p> <p>■5. An innocent misrepresentation ceases to be innocent when the party who makes it undertakes, after learning of its falsity, to maintain the advantage gained by means of it. (Bigelow on Fraud, p. 520.)</p> <p>6. Equity has jurisdiction to grant the relief sought. (Bigelow on Fraud, 410^412; Hill v. Lane, L. R., 11 Eqr., 215.)</p> <p>1. The statements of defendant only amounted to an opinion and not to a warranty, and plaintiff could not recover damages if this were a suit at law. (Wait’s Actions and Defenses, vol. 8, p. 275; Gordon v. Butler, 105 U. S., 553; Cooper v. Sobiessinger, et al., Ill TJ. S., 148.)</p> <p>2. A rescission can not be had in the absence of allegation and proof of actual fraud. (Stewart v. Daugherty, 3 Dana, 480; Buford v. Brown, 6 B. M.; Mathey v. Wood, 12 Bush, 293.)</p> <p>3. The president of a bank, selling stock of the bank that he owns himself, is only bound by representations he makes at the time of the sale, and a rescission can not be had except in cases of absolute fraud. (Cook on the Law of Stock and Stockholders, secs. 320 and 330-336; Wakeman v. Dally, 51 N. Y., 27; Thompson on Liability of Officers- and Agents of Corporations, p. 299.)</p>

Case 35 — INDICTMENT— APPEAL PROM BELL CIRCUIT COURT. The dying declaration of the deceased should have been admitted as evidence for defendant. 1. The refusal of the court to grant a continuance did not prejudice the appellant as other witnesses testified to the facts which he claimed he could prove by the absent witness. 2. There was no error in the admission of evidence or in the instructions to the jury.

Case 36-PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 'The after-horn child takes her interest, no matter what the testator’s intention was, unless that intention be expressed on the face of the will itself. Extrinsic evidence is not competent to show the testator’s intention. The law was once otherwise but has been changed.

<p>1. Dower — Partnership Lands. — 'Whenever land is purchased by a firm for partnership purposes, appropriated for those purposes and paid for with partnership funds, it is to be treated in equity as partnership property, and, therefore, made subject to partnership debts in preference to the dower right of the wife of any member of the firm. And it is not material in what name the title of such land may stand, if it is in fact partnership property. But where the title is conveyed to the husband the land should never he treated as partnership property to the exclusion of the widow’s dower right, unless all the relations and conditions upon which the equitable doctrine may be enforced are clearly shown to exist.</p> <p>2. Same. — A partnership in the farming business and personal property used in carrying it on is entirely consistent with a joint ownership of the land; and, consequently, when the land is purchased, agreed to be paid for and conveyed to the owners individually, it should be regarded as their individual property in the absence of satisfactory evidence it was intended to be partnership property.</p> <p>3. Same. — "When the title is once vested in the husband the dower right of the wife can not in any case be defeated by subsequent appropriation of the land for partnership purposes by a firm not in existence when it was purchased.</p> <p>In this case a deed investing plaintiff’s husband with the title to an undivided moiety of the land in which plaintiff claims dower, vested her with the right to dower, and the fact that 'the land was used by the husband and the other co-owner in carrying on the partnership business of farming is not sufficient to deprive the plaintiff of that right or to show that the land was purchased as partnership property, especially as it does not. clearly appear that the partnership existed when the land was purchased and conveyed.</p> <p>4. Where the Land of the Husband is Sold in Good Faith to Satisfy a Lien for Purchase Money the wife is not entitled to dower in the land, although it may have been sold for more than the amount of the lien. And this is true whether the sale was made directly by the husband or under a judgment of court.</p> <p>5. Where the Sale is Necessary to Satisfy the Lien for Purchase Money, whether it be made in pursuance of a deed of assignment or directly by the husband, it must, in the meaning of the stat- ■ ute, be regarded as made in good faith, as that which a person is legally bound to do can not be said to have been done in bad faith.</p>

<p>1. Corporations are Liable to Indictment whenever the offense consists either in a misfeasance or in a non-feasance of duty to the public, and the corporation can be reached for punishment as by a fine and the seizure of its property. If the penalty prescribed for the offense be both fine and imprisonment the statute is inoperative as to the imprisonment, as that part of the punishment can not, from the nature of the offender, be carried out.</p> <p>An incorporated fair association is liable to indictment for permitting gaming upon its fair grounds.</p> <p>2. Gaming — Repeal oe Statute. — The act of March 25, 1886, amending article 1 of chapter 47 of the General Statutes, entitled “Gaming,” is not in conflict with sections 7 and 10 of that article, and therefore does not repeal them.</p>

Case 39 — CONTESTED WILL APPEAL PROM JEPPERSON COURT OP COMMON PLEAS. 1. It was error to instruct the jury that the testimony of an attesting witness that the testator was not competent to make a will, should be received with great caution. (Stokes v. Shippen, 13 Bush, 180; Bohlsen v. Bohlsen, 5 Ky. Law Rep., 613; Ogden v. Ogden, 6 Ky. Law Rep., 310; Becker v. Crow, 7 Bush, 204; Bowman v. Bartlett, 3 Mar., 98; Sullivan v. Bnders, 3 Dana, 66; Blair v. Pollock, LRt.

Case 40 — INDICTMENT— APPEAL PROM ESTILL CIRCUIT COURT. 1. The third section of the statute is independent of the first two sections. To constitute the offense created by that section it is not necessary that the brand defaced should be registered. Nor does the law contemplate proof of ownership independent of the brand. The brand prima facie evidence of ownership, and the offense, is complete when the brand is cut out, off or defaced.

<p>Case 41 — PETITION EQUITY</p> <p>APPEAL PROM OWEN CIRCUIT COURT.</p> <p>1. The presumption of law is that the parties contemplated that the grantee should be entitled to receive to his own use all'the rents accruing after the execution and delivery of the deed. (Gen. Stats., chap. 24, sec. 3 ; Epperson v. Blakemore, 2 Bush, 242; Casey v. Gregory, 13 B. M., 507; Breeding’s Heirs v. Taylor’s Heirs, 13 B. M., 481.)</p> <p>2. It was not competent to prove that the rents for the ensuing year were, by a parol agreement, reserved by the grantor. (Epperson v. Blake-more, 2 Bush, 242; 13 B. M., 507; Idem, 481; 4 Dana, 547; 5 Conn., 263; 2 B. M., 157; Wood on Statute of Erauds, sec. 225.)</p> <p>The evidence sustains the alleged agreement as to disposition of rents.</p> <p>The appellate court will not reverse the judgment of the Chancellor on a question of fact unless the judgment is flagrantly against the proof. (Union Ins. Co. v. Groom, 4 Bush, 294; Bell v. Wood, 87 Ky., 59.)</p>

<p>1. Constitutional Law — Failure of Governor to Return Bill to-General Assembly. — "Where a member of the General Assembly,, who has introduced a bill, or those interested in the passage of the bill, withdraw it from the Governor immediately after its delivery to him, upon his indication of some objection to the bill, and it is never returned to him, it does not become a law upon his failure to return it to the General Assembly within ten days, as it is not to be regarded as having been “presented” to the Governor within the meaning of section 22, of article 3, of the Constitution of 1850.</p> <p>2. Same. — Where the Journal of the House showed that leave was given, a particular member to withdraw from the Governor a bill of a certain number, when no bill of that number was or had been in the Governor’s hands, the leave must be regarded as referring to the only bill' in the Governor’s hands which had been introduced by the member to whom the leave was given, when considered in connection with the fact that soon after the leave to withdraw was given the same member introduced another bill for the benefit of the same person, containing a provision like to one which the Governor had objected to in the former bill for their benefit upon the ground that it conferred a lottery privilege. The record corrects itself.</p> <p>3. Same — Mandamus.—In this proceeding for a mandarpus against the Secretary of State, to compel him to admit to the files of enrolled acts-of the General Assembly a bill creating a corporation, upon the ground', that it became a law by reason of the Governor’s failure to return it to the General Assembly within ten days after it was presented to him, as it appears from the response of the defendant that the bill was never presented to the Governor within the meaning of the Constitution, and, if presented, that leave was given by the House to withdraw it, the response presented a good defense, especially as the bill remained in the custody of the parties in interest for more than a year after the adjournment of the Legislature and was then presented to the Secretary of State for the first time.</p>

Case 43 — PETITION ORDINARY APPEAL PROM LINCOLN CIRCUIT COURT. 1. Degree of neglect alleged determines whether action is brought under section 1 or section 3 of chapter 57 of the General Statutes. (Given’s Adm’r v. Ky. Cent. Ry. Co., 11 Ky. L. R., 452.) When allegation is one of negligence, or gross negligence, or gross negligence coupled with any other allegation, action is regarded as under section 1.

Case 44 —MANDAMUS— APPEAL PROM BATH COURT OE COMMON PLEAS. The duties of the County Court with regard to the assessment, listing'and certification of delinquent taxes, are purely ministerial, and therefore mandamus lies.

<p>Case 45— PETITION ORDINARY</p> <p>APPEAL EKOM LOUISVILLE LAW AND EQUITY COURT.</p> <p>Section 3 of chapter 57 of the General Statutes is not unconstitutional. (Board of Int. Imp. v. Scearce, 2 Duv., 578; Pierce on Railroads, pp. 40-42.)</p> <p>1. The degree of neglect alleged determines whether the action is brought under the first or third section of chapter 57, General Statutes; and as the allegations of willful negligence still stand in the petition in this case, this must be treated as an action under the third section, and as plaintiff’s intestate left neither widow nor child the action can not be maintained. (Henderson’s Adm’r v. Ky. Cent. R. Co., 86 Ky., 389; Jordan’s Adm’r v. Cincinnati, &c., R. Co., 89 Ky., 40; Givens’ Adm’r v. Ky. Cent. R. Co., 89 Ky., 231.)</p> <p>2. Even if this can be regarded as an action under section 1 of chapter 57, General Statutes, it can not be maintained as that statute is uncoRstitutional and void, being repugnant to both the State and Federal Constitutions.</p> <p>In respect to the Constitution of Kentucky: (Gordon v. Winchester, &e., 12 Bush, 110; Smithy. Warden, 80Ky., 608; Citizens’ Gas Co. v. Louisville Gas Light Co., 81 Ky., 270; Kentucky Trust Company v. Lewis, 82 Ky., 579 ; Henderson’s Adm’r v. Kentucky Central Railroad Co., 86 Ky., 389; Kentucky Central Railroad Co. v. McGinty, 9 Ky. Law Rep., 860; Jordan’s Adm’r v. C., N. O. & T. P. R. Co., 89 Ky., 40; Given’s Adm’r v. C., N. O. & T. P. R. Co., 89 Ky., 231; Henderson Building, &c., Association v. Johnson, 10 Ky. Law Rep., 833; Henderson Building, &c., Association v. Zeiler, 11 Ky. Law Rep., 702; Henning v. Louisville. Leather Co., 11 Ky. Law Bep., 544; C., N. 0. & T. P. B. Co. v. ■Clark & Heimet, 11 Ky. Law Bep., 286; German Insurance Co. v. Miller, 12 Ky. Law Bep., 138; Daniel v. Trustees of Bichmond, 78 Ky., 542; Feehheimer Bros. v. City of Louisville, 84 Ky., 306; Dawsou v. Lee, 83 Ky., 49; Barbour v. Louisville Board of Trade, 82 Ky., 645; Msrawetz on Corporations, section 1; Civil ■Code of Practice, section 732.) 1</p> <p>In respect to the Constitution of the United States — The Fourteenth Amendment: (Santa Clara County v. Southern Pacific KailToad Company, 118 U. S., 396; Pembina Mining Co. v. Pennsylvania, 125 U. S., 181; Minneapolis, &c., Ky. Co. v. Beckwith, 129 U. S., 26; Davidson v. New Orleans, 95 U. S., 97; Murray, &c., v. Hoboken, &c., 18 Howard, 276; Ex Parte Virginia, 100 U- S., 367; Missouri v. Lewis, 101 U. S., 22; Soon Hing v. Crowley, 113 U. S., 703; San Mateo County v. Southern Pacific Bailroad Company, 8 American and English Bailroad Cases, 1; Santa Clara County v. Southern Pacific Bailroad Company, 13 American and English Bail-road Cases, 182; San Bernardino County v. Southern Pacific Bailroad Company, 118 U. S., 422; Barbier v. Connolly, 118 U. S., 27; Ohy Lung v. Freeman, 92 U. S., 275; People v. Compagne Generate, &e., 107 U. S., 59; Henderson v. Mayor of New York, 92 U. S., 259;’ Bailroad Company v. Husen, 95 U. S., 465.)</p> <p>In respect to General Constitutional Principles : (Cooley’s Constitutional Limitations, 483-486.; Wally’s heirs v. Kennedy, 2 Yerger, 554; Smith v. Louisville & Nashville Bailroad Company, 75 Ala., 449; Brown v. Alabama, &c., Bailroad Company, 6 So. Bep., 295; Wilder v. C. & W. M. Ky. Co., 38 N. W. Bep., 289; Park v. Detroit Free Press Company, 40 N. W. Bep., 731; State v. Staten, 6 Coldwell, 234; Ervine’s appeal, 16 Penn. State, 256; Parsons v.Bussell, 11 Michigan, 229; Zeigler v. South & North Alabama Bail-road Company, 58 Ala., 598.)</p>

<p>Recovery op Laud over which Railroad is Built — Estoppel.—If one permits a railroad to be built over his land, and the interests of the public to intervene by the road being put into operation over it, and by his conduct induces the belief that he has consented, he should not be allowed to recover the land, although he may be entitled to ■some relief by way of compensation. And this rule should be applied ■to married women as well as to persons vdio are free from disability. But the mere fact that a railroad is being operated and that the public is interested in its continuance will not bar the right of the owner of the land over which the road is built to recover it, in the absence of any conduct upon his part which would amount to an estoppel.</p> <p>In this action of ejectment by husband and wife to recover a strip of the wife’s land over which the defendant’s railroad is being operated, there being testimony tending to show that plaintiffs had objected to the building of the road, it was error to peremptorily instruct the jury to find for defendant. Under proper instructions as to what would estop the owner the case should have been submitted to the jury.</p>

Case 47 — PETITION ORDINARY APPEAL PROM MASON CIRCUIT COURT. No brief in record. The testator’s will does not vest in his executors such a title to his realty as entitles them to maintain ejectment. (Warfield v. English 11 Ky. Law Rep., 265; Ware v. Murph., 33 Am. Dec., 97; Nodine v. Greenfield, 34 Am. Dec., 363; Thomson v. Gaillard, 45 Am. Dec., 778; Going v. Emery, 26 Am. Dec., 645; Lockwood v. Stradley, 12 Am.

Case 48 — PETITION OKDINAPY— APPEAR PROM HENRY CIRCUIT COURT. A national bank can acquire title to a note or bill only by the act of discounting it, and the court should have given the instructions asked by appellants drawing the distinction between a discounting and & purchase. (First Nat. Bank of Rochester v. Pierson Thompson’s National Bank Cases, 637; Weckler v. First Nat. Bank of Hagerstown, 14 Am. Law Reg., 610; Rev. Stats., U. S., sec. 5136; Fowler v. Scully, 72 Pa.

Case 49 — MANDAMUS— APPEAL FROM JOHNSON CIRCUIT COURT. 1. The death of a candidate before the close of election day, no matter' how many votes he may have received, will not prevent the election-of a rival candidate at said election, who also received votes, though, less in number than the votes cast for the dead man. 2.

Case 50 — PETITION OEDINAEY APPEAL PROM JOHNSON CIRCUIT COURT. Appellant stands elected as though his name alone had been upon the poll books and he had received the votes he did. The votes cast for the dead man, whether cast before or after his death, are nullities. 1. A minority candidate can not, under any circumstances, be held to be elected to a public office. (Cooley’s Const. Limit, star page 620; Crawford v. Moliter, 23 Mich., 340.) 2.

Case 51 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The intention -of a testator must control and that intention should he reached by construing all parts of the will together, giving to the language used its ordinarily accepted meaning. (Burleigh v. Clough,. 52 N. H., 267; Stewart v. Walker, 72 Maine, 146; Smith v. Bell, 6 Peters, 68; Brant v. Virginia Coal and Iron Co., 93 U. S.; Anderson v. Hall, 80 Ky., 91; Barclay v. Dupuy, 6 B. M., 98.) 2.

<p>Case 52 — RULE—</p> <p>APPEAL FROM M’ CRACKEN COURT OF COMMON PLEAS.</p>

<p>Curative Statute. — Although the County Court of Claims can not levy an ad valorem tax to meet the general indebtedness of the county unless authorized to do so by the Legislature, yet, as it has jurisdiction of the subject of the general indebtedness of the county, if it ipakes a levy in excess of its authority in the particular case the act is a mere irregularity and not a want of jurisdiction, and, hence, may be validated by the Legislature.</p>

Case 54-INDICTMENT. APPEAL FROM MONTGOMERY CIRCUIT COURT. A confession by the accused in the presence of an officer having him in charge and procured by threats or promise of immunity from punishment, is not competent evidence against the accused. (1 Greenleaf on Evidence, sec. 222; Roscoe’s Criminal Evidence, 32; 1 Wharton’s Am. Grim.

Case 55 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The conclusive effect of recitals in deeds and contracts is restricted to the recital of things in particular as being in existence at the time of its execution, and does not extend to the mention of things in general terms. (1 Greenleaf on Evidence, vol. 1, sec. 26.) 2.

Case 56 — PETITION EQUITY APPEAL PROM WASHINGTON CIRCUIT- COURT. Although the plan of insurance is changed from “assessment” to “straight insurance,” without the consent of the insured, he is not entitled to recover anything on his policy, nor has the agent of the company any power to bind the company outside of the expressed limits of his agency. No brief in the record.

<p>Case 57 — PETITION EQUITY</p> <p>APPEAL FROM CAMPBELL CHANCERY COURT.</p> <p>Whei-e a case is reversed in the Court of Appeals and sent back for a new trial or other proceedings, no new trial can be had nor judgment entered to conform to the mandate of the Court of Appeals, unless the mandate is filed in the lower court and notice given thereof ten days before the beginning of the term. (Civil Code, sec. 761, sub-sec. 2.}</p> <p>Brief not in record.</p>

<p>Case 58 — PETITION EQUITY</p> <p>APPEAL PROM CLARK CIRCUIT COURT.</p> <p>1. A promise for a valuable consideration to make a certain provision for another by will is sufficient to sustain an action if the promise is not complied with. (Myles Ex’r, &c., v. Myles, 6 Bush, 245; McGuire v. McGuire, 11 Bush, 143.)</p> <p>2. "When a note is surrendered in consideration of a promise to make a certain provision in a will, which is not done, the action must be for a breach of the promise and not upon the note.</p> <p>Brief not in record.</p>

Case 59 — ORDINANCE WARRANTS APPEALS FROM LOUISVILLE CITY COURT. Furnishing liquor by a social club to its members is not selling by retail as forbidden by ordinance of the city. (Louisville City Code, pp. 395, 396, 405, sec. 32.) Such furnishing is not a sale within the meaning of the law.

Case 60 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. At the time of the assessment of the franchise of appellant company it was. not taxable under the laws of the State, and the ordinance of the city authorizing the assessment was without warrant of law.

<p>Cabe 61 — PETITION EQUITY</p> <p>APPEAL PROM TODD CIRCUIT COURT.</p> <p>1. Where the widow dies before the articles of personal property exempt from distribution and sale have been set apart to her, those who take after her are entitled to recover what she would have received had the appraisers acted in her lifetime. (Crabtree v. Crabtree’s Adm’r, MS. Op., Superior Court, January Term, 1890; Singleton v. Mc-Querry, 8 Ky. Law Rep., 782; Brown v. Joiner, 77 G-a., 232.)</p> <p>2. The ante-nuptial contract relied on was a contract “in consideration of marriage” and therefore within the Statute of Nrauds. (Potts v. Merritt, 14 B. M., 406; Norwood v. Norwood, 86 Ky., 114.)</p> <p>3. Unless the contrary appears it is to be presumed the contract was intended to control the rights of the parties merely during their lives. (Brown’s Adm’r v. Brown’s Ex’r, 11 Ky. Law Rep., 798.)</p> <p>1. The ante-nuptial contract having been executed as far as it could be, it is valid and binding even if it was verbal. (Southerland v. Southerland, 5 Bush, 591; Basham v. Chamberlain, 7 B. M., 444.)</p> <p>2. The widow having died before the articles exempt from distribution were set apart the title to the property did not vest in her and therefore did not pass to her distributees. (Newman v. Winlock’s Adm’r, 3 Bush, 241.)</p>

<p>Sale by Warehouseman op Goods not Belonging ~o eis Principal. A public warehouseman to whom goods are consigned for sale and who in ignorance of any claim adverse to that of his principal, the apparent owner, sells the goods and pays over the proceeds to his principal, who, it is afterward discovered, was not the owner or authorized to sell them, is not liable to the real owner or to a mortgagee for the proceeds of the sale.</p>

Case 63 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. A provision in a life insurance policy on the life of the husband for the benefit of his wife, to the effect that the insured may change the beneficiaries, is void because not within the charter powers of the company, and is in violation of the general law. (Gen. Stats., Appendix, p. 40-2, secs. 30-3; Charter of Southern Mutual Life Ins.

Case 64 —INDICTMENT— APPEAL PROM HARLAN CIRCUIT COURT. Ho brief in record. In order to avail of error in the admission of incompetent evidence there must be an objection to the admission of the evidence and an exception to the action of the court in admitting it.

<p>Compensation op Executors. — The court is not authorized to allow an executor "for all his services more than five per cent, on the amounts received and distributed by him. The statute fixes that amount as the maximum of his compensation for all his services, and not merely for his services in receiving and distributing the estate. But the court may, in addition to that amount, allow him his expenditures.</p> <p>In this case, although the executor, in addition to his other duties, performed valuable services in a protracted and bitter contest over the will, which was finally probated, the court is not authorized to allow him for his services more than five per cent, on the amounts received and distributed by him.</p>

Case 66 — PETITION ORDINARY APPEAL PROM CLARK CIRCUIT COURT. 1. On the trial of an issue out of Chancery a motion and grounds for new trial were not necessary to save errors occurring on the trial. (-Hendrix v. Money, 1 Bush, 309; Moore v. Payne, 7 Dana, 380; Lea v. Beatty, 8 Dana, 207.) 2.

Case 67 — APPEAL TO CIRCUIT COURT APPEAL FROM HARDIN CIRCUIT COURT. 1. Private property can not be taken for public use without compensation first paid. An agreement to pay does not comply with the constitutional requirement. (Gashweller v. Mcllvoy, 1 Mar., 86; Covington, &c., R. R. Co. v. Piel, 10 Ky.

<p>Case 68 — PETITION ORDINARY</p> <p>APPEAL PROM KENTON CIRCUIT COURT.</p> <p>1. When a private crossing of a railroad is established by agreement or acquiescence a person crossing the road is not a trespasser and the railroad company owes the duty of active vigilance. (Bishop on Non-Contract Law, secs. 1094, 1054; Shearman & Redfield on Negligence, secs. 463, 464, 484; 12 Bush, 50; Thompson on Negligence, vol. 1, p. 418; vol. 2, p. 257; Bishop on Non-Contract Law, sec. 466.)</p> <p>2. It is not only the duty of a train approaching a crossing to give timely warning, but it must be given in such a way as not to mislead. (Pierce on Railroads, pp. 350-1.)</p> <p>The fact that a train is behind time is an element to be taken into consideration in determining the question of negligence. (L. & N. R. Co. v. Hudson, 1 Ky. Law Rep., 66; Roberts v. Alexandria R. Co., S. E. Rep., 518.)</p> <p>3. When an injury is caused by the negligence of one and the negligence of another contributed to the injury the person injured is entitled to recover against either or both. (Danville T. P. Co. v. Stewart, 2 Met., 119; Sherman & Redfield, sec. 66; Louisville & Nashville R. Go. v. Case, 9 Bush, 728; Little v. Hackett, 116 N. S., 366; N. Y., &c., R. Co. v. Steinbrenner, 47 N. J., 161; 23 Am. and Eng. R. Cases, 330; Dyer v. Emd. Railway Co., 71 N. Y., 228; Masterson v. N. Y. Cent. R. Co., 84 N. Y., 247; St. Clair St. R. Co. v. Eadie, 43 Ohio St., 91; Robinson v. N. Y. Cent. R. Co., 66 N. Y., 11; 23 Am. Rep., p. 1.)</p> <p>4. The burden of proof when there is a plea of contributory negligence is on the pleader. (Gasty v. L., C. & L. R. Co., 79 Ky., 451; Baltimore & Ohio R. Co. v. McKenzie, 24 Am. and Eng. Oases, 400; Long Island R. Co. v. Gxeany, Am. and Eng. R. Cases, 473; Schum v. Penna. R. Co., 107 Pa. St.)</p> <p>il. Negligence must be proved. (44 Pa. St., 375; 8 Common Bench, N. S., 568; 3 Appeal Oases, 1155; 116 Mass., 401; L. R., 3 Appeal Cases, 197; 9 Bush, 90.)</p> <p>2. Railroad not required to whistle at private crossing. (13 Am. and Eng. R. Cases, 623; 84 Ky., 43; 82 Ky., 212; 7 Ky. L. R., 161.)</p> <p>3. Under fence law private crossings must be fenced. (13 Am. and Eng. R. Cases, 625; 84 Ind., 194; 39 Ohio St., 327.)</p> <p>•4. It is presumed that one seeing train will avoid danger. (13 Am. and Eng. R. Cases, 625; 5 Am. and Eng. R. Cases, 5; 12 Bush, 49; 9 Ky. L. R., 702.)</p> <p>5. High rate of speed not negligence for express train. (8 Am. and Eng. R. Cases, 467; 79 Pa. St., 33; 12 Kan., 328; 4 Col., 30; 2 Neb., 319; 7N.Y., 119; 26 Conn., 591; 84 111., 397; 26 Ind., 76.)</p> <p>6. Failure to whistle at public crossing is not negligence as to person at private crossing or elsewhere. (84 Ky., 43; 7 Ky. L. R., 761; 82 Ky., 212; 67 N. Y., 535; Patterson on Railway Accident Law, sec. 160.)</p> <p>7. Purpose of whistling. (84 Ky., 4'3; 6 R. I., 211; 47 Pa. St., 300; 4 Hun., N. T., 508; 42 N. J., 468; 37 Ga„ 593; 4 Am. and Eng. R. Cases, 580; 12 Am. and. Eng. R. Cases, 64; 15 Am. and Eng. R. Oases, 448; Patterson on Railway Accident Law, sec. 160; Johnson’s Adm’r v. L. & N. R. Co., 13 Am. and Eng. R. Cases, 623; Huclcer’s Adm’r v. K. O. R. Co., 7 Ky. L. R., 761; L. & N. R. Co. v. Howard’s Adm’r, 82 Ky., 212.)</p> <p>8. “Willful neglect” is a statutory degree of negligence and has no application to this case. Contributory negligence is a defense and clearly shown. (Gen. Stats, chap. 57, sec. 3; 13 Bush, 122-6; 87 Ky., 626; Beach on Contributory Negligence, p. 193; 79 Ky., 447; 12 Bush, 41; 2 Am. and Eng. R. Cases, 212; 6 Am. and Eng. R Cases, 38, 84; 9 Fed. R., 867; 19 Am. and Eng. R. Cases, 376; 95 U. S., 697; 114 U. S., 615; 84 Ky., 43; 77 Maine, 85; 23 Am. and Eng. R. Cases, 258, 262; 28 Am. and Eng. R. Oases, 665; 1 Thompson Neg., 426; Wharton on Neg., sec. 384.)</p> <p>9 Whether a particular witness could have seen the train was an improper question. (Eskridge’s Ex. v. C., N. O. & T. P. Ry., 12 S. W. Rep., 581; 8 Am. and Eng. R. Cases, 306; Thompson on Jury Trials, secs. 377, 605; 11 S. W. Rep., 563; 100 N. C„ 310; 5 Atla. Rep., 346; 3 Southern Rep., 207; 7 S. W. Rep., 1.)</p>

<p>1. Partnership — Counter-claim.—Where one’ member of a firm is sued upon a claim against the firm he has the right to rely upon any claim which his firm has against the plaintiff, which the firm could have asserted as a counter-claim.</p> <p>2. Commission Merchants — Penalties.—TJnder the statute which provides that commission merchants storing and selling tobacco shall cause to he weighed every hogshead which may be sent to them for storage and sale, and after the tobacco is stripped shall take the tare weight of each cask in -which the tobacco has been prized, and after each hogshead has been sold and properly recoopered shall again cause it to be weighed by the person who first weighed it, and shall 1 ‘ settle ” with the seller according to the highest weight after deducting the exact tare, a commission merchant who, in suing his customer for money advanced upon tobacco, gives him credit by the lowest weight of the tobacco instead of the highest weight, as required by the statute, does not thereby incur the penalty denounced by the statute for its violation, as he is not to he regarded as having “settled” with his customer within the meaning of the statute, the account being changed before judgment so as to conform to the statute, although not done until the defendant had by his counter-claim sought to enforce the penalty. Besides, the right to recover the penalty is given to the “party aggrieved,” and the defendant under such circumstances is not an “ aggrieved ” party.</p> <p>3. Statutes imposing penalties are to he strictly construed.</p>

Case 70 — PETITION EQUITY APPEAL PROM SHELBY CIRCUIT COURT. 1. An administrator is guilty of devistavit and personally liable when ho turns over the personal property to the heirs, although he did not know of the creditor’s claim.

Case 71 — PETITION ORDINARY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The peremptory instruction for defendant should have been given, because there was no proof that defendant had failed to do what persons of ordinary prudence usually did under similar circumstances.

<p>Case 72 — PETITION EQUITY</p> <p>APPEAL EROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The words, “in case of the death of Nancy Martin and her children, so that she or they leave no living issue,” were intended by the testator to mean the death of his child and four grandchildren not before but after his death. The cases of Ferguson v. Thompson, 87 Ky., 519, and "Wills v. Wills, 85 Ky., 487, only state a well-recognized canon of construction, and hold that there can be no “iron rule” in such cases. The intention of the testator must control all artificial rules.</p> <p>2. The warning order was based upon an affidavit made the day before the petition was filed, and the statement that the defendants were then absent from the State did not authorize a warning order on the next day. In cases of constructive service there must be a strict compliance • with the statute. (Brownfield v. Dyer, 7 Bush, 505; Jackson v. Speed, 2 Duv., 426; Grigsby v. Barr, 14 Bush, 330; Arthur v. Harlan, 78 Ky., 138.)</p> <p>3. The judgment must bo reversed because there are tinreleased liens upon the property which exceed the cash payment.</p> <p>1. It is a rule of property in Kentucky that a devise by a father to his daughter and her children makes the daughter and children joint devisees; whereas, if a husband conveys dr devises property to his wife and her children, then the estate is to be construed as vesting a life interest in the wife with remainder to the children. (Smith v. Upton, 12 Ky. Law Bep., 29; Davis v. Hardin, 80 Ky., 672; Bullock v. Oaldwell, 81 Ky., 566.)</p> <p>2. Where property is devised directly, with a limitation over in case of the death of the devisee, the period of absolute vesting will be construed to be the lifetime of the devisee. If the devise is of a life estate only, with remainder over, and a clause devising the remainder over in the event of a certain contingency, then the estate will become vested, provided such event does not occur in the lifetime of the life-tenant. (Ferguson v. Thomason, 87 Ky., 519; Wills v. Wills, 85 Ky., 487.)</p> <p>3. If the will in controversy here is not so construed then it would create a perpetuity; that is, a perpetuity might possibly happen; and it matters not that in the particular case at bar the event has turned out so that there was no actual perpetuity, as it is the possibility of perpetuity that the courts look at. (Ludwig v. Combs, 1 Met., 129.)</p> <p>4. Where a petition, including an affidavit for a warning order, was sworn to on one day and not filed until a subsequent day, the warning order is good, provided the filing of the petition and affidavit is done within a reasonable time after it was sworn to. (Armstrong v. Middlestaff, 36 N. W., 151; s. c., 22 Neb., 712; Creach v. DeLane, 1 Nott & McCord, s. c. 189; Wright v. Bagland, 18 Texas, 289; Graham v. Bradbury, 7 Mo., 281; McClanahan v. Bratt, 46 Miss., 246; Campbell v. Wilson, 6 Texas, 394; Arthurs v. Harlan, 78 Ky., 139.)</p>

<p>1. In pleading a judgment op court it is not necessary to state the facts conferring jurisdiction; it is sufficient to state that the judgment was duly given or made. (Civil Code, see. 122.) And this statutory rule applies to all judgments of superior courts, whether the facts necessary to give jurisdiction are special or general. Therefore, where one relies upon or claims under a judgment conferring upon a married woman the powers of a feme sole, it is not necessary for him to allege publication of the notice required to give jurisdiction in such proceedings; and, where the judgment is not filed with the plea, or, if filed, is silent as to notice, the court will presume that notice was published as required by the statute.</p> <p>2. Power op Feme Sole to Make Will. — "Where a married woman disposes of her land by will under a judgment of court conferring upon her the powers" of an unmarried woman, the husband is deprived of his right of curtesy and his creditors can not complain.</p> <p>3. Devise to One Person por Support op Another — Eights op Creditors. — "Where a devisee is directed by the will to give to another “each year a sum sufficient to support him in a comfortable manner,” the will providing that if the devisee shall fail to perform this duty the devise to him shall become void, the person directed to be supported tabes no estate under the will, and there is nothing that can be subjected to the payment of his debts unless he receives what is directed to be paid to him and puts it together as an estate.</p>

Case 74 — MANDAMUS AND INJUNCTION APPEALS PROM KENTON CIRCUIT COURT. 1. One who stands idly by and allows the voting of a tax and the expenditure of money on the faith of such vote is estopped to question the regularity of the proceedings by which the tax was voted. (Kerr on Injunctions, 16; High on Injunctions, secs. 549, 554; Preston v. Roberts, 12 Bush, 590.) 2. A tax for graded schools is not in derogation of the common-school law nor in violation of the Constitution.

Case 75 — PETITION EQUITY APPEALS FROM LOUISVILLE CHANCERY COURT. 3. If real estate is purchased with partnership funds and to be used for partnership purposes it is impressed with the character of personalty. (Homes v. Self, 79 Ky., 298; Darby v. Darby, 3 Drewery, Eng. Chy., 495; Lindley on Partnership, vol. 1, p. 670; Lowe v. Lowe, 13 Bush, 688; Cornwall v. Cornwall, 6 Bush, 339; Elanagan v. Shock, 82 Ky., 617.) 2.

<p>1. The pee in land over which a public highway passes is in the owner of the abutting property, and he may maintain ejectment against any person who without right appropriates the land to his permanent use.</p> <p>2. Right to Recover Land over which Railroad is Built. — The owner of land over which a railroad has been built and put into operation may, notwithstanding the public interest in the operation of the road, maintain an action to recover the land, provided he has not by his conduct estopped himself; and the mere fact that he acquiesced in the building of the road until it was completed and put into operation-does not amount to an estoppel.</p>

<p>1. Subscription by County to Stock op Bailroad Company — Interest on Stock — Stock Dividend.. — Under the charter of a railroad company which authorized counties to subscribe for stock, and provided that the company should allow to all holders of stock ‘ ‘ interest on the same from the time of paying for said stock up to the time of making the first dividend, and issue to the holder stock therefor,” the railroad company, by declaring a stock dividend of one-fourth of one per cent., did not acquire the right to stop the running of interest on stock subscribed and held by a county. The “dividend” intended by the charter provision was a cash dividend.</p> <p>2. Same — Estoppel.—The fact that one of several sinking-fund commissioners of a county holding stock was present at a meeting of stockholders of the railroad company, at which they adopted a resolution recommending that, in order to prevent the further accumulation of interest stock, a dividend of one-fourth of one per cent, payable in stock be made, did not bind the county by that recommendation. But. even assuming that the county was fully represented at that meeting, that recommendation to the board of directors does not estop the county from claiming that the declaring of the stock dividend did not stop the running of interest.</p> <p>3. Same. — The right-of one of several counties which had subscribed for-stock was not affected or impaired by the acquiescence of other counties in the mode adopted by the board of directors for adjusting the stock and interest accounts.</p> <p>4. Same. — As a county subscribing for stock did not become holder of the stock until delivery and acceptance of the bonds in payment of it, the date of that transaction, rather than date of the bonds, should be treated as the time interest on the stock commenced.</p>

Case 78 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. Each policy requires as a condition precedent that it must be surrendered within six months after default in payment of premiums, freed of indebtedness to the company, before the right to a paid-up policy can accrue. This condition precedent was never performed.

Case 79 — PETITIONS— APPEALS PROM PRANKLIN CIRCUIT COURT. APPEALS FROM JEFFERSON CIRCUIT COURT. 1. When the trustee of the jury fund voluntarily assumes to lend out the State’s money on his own responsibility the profit belongs to the State and not to him. 2. The allegations of the petitions are as specific as the pleader could make them. 3.

<p>1. Appeal prom Judgment punishing Oontempt. — The provision of the statute that no appeal shall be taken to reverse a judgment punishing contempt applies only to criminal contempt, and not to civil contempt, which is to be looked upon as a civil proceeding for the benefit of the other party, although in name a contempt of court.</p> <p>Where, in response to a rule against defendants to show cause for contempt in disobeying an injunction which has been made perpetual, the defendants contend that what they have done is not a violation of the injunction, and rely upon an alleged changed status of the parties since the judgment, and the response is held insufficient and they are adjudged to be in contempt, they are entitled to an appeal.</p> <p>2. Final Order. — Such a judgment is a final determination of the rights of the parties, and not a mere step toward the enforcement of the judgment perpetuating the injunction.</p>

<p>Case 81-INDICTMENT—</p> <p>APPEAL PROM BOONE CIRCUIT COURT.</p> <p>Record and briefs misplaced.</p>

Case 82 —INDICTMENT— APPEAL PROM CUMBERLAND CIRCUIT COURT. The indictment is good. (Commonwealth v. Powell,- 2 Met., 13.) 1. The indictment is defective in that it fails to allege that the accused was sworn by an officer authorized to administer an oath. (Crim. Code, secs. 124, 134; Commonwealth v. Still, 83 Ky., 275; Bitchy v. Commonwealth, 81 Ky., 525.) 2.

Case 83 —INDICTMENT— APPEAL PROM SHELBY CIRCUIT COURT. It is not necessary to corroborate two witnesses swearing to the same state of fact to convict one of false swearing. One may be convicted of perjury or false swearing upon written or documentary evidence alone. (Greenleaf’s Evidence, vol. 1, sec. 258.) There is no difference in principle between perjury and false swearing. (Commonwealth v. Scowden, MS. Op., September Term, 1891.)

Case 84 — PETITION ORDINARY APPEAL PROM NELSON CIRCUIT COURT. The failure of plaintiff to pay the costs of the former action within the time prescribed left in force the order dismissing without prejudice, and therefore the court erred in adjudging the plea in bar in this case to be sufficient. The former action was still pending when the plea in abatement was filed, and therefore the lower court did right in sustaining the plea.

<p>Railroads — Granting op Exclusive Right to Stand Vehicles at Depot. — A railroad company can not grant to one person— a common carrier — to the exclusion of all other persons engaged in a like "business, the right to come upon its depot grounds with his vehicles for the purpose of receiving freight and passengers.</p>

Case 86 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The decisions of this court have fixed the method of distribution of an estate under a voluntary assignment where a creditor holds security for his debt.

Case 87 — PETITION ORDINARY APPEAL PROM ANDERSON CIRCUIT COURT. 1.

<p>1. Evidence of Insanity. — To authorize the admission of evidence of the insanity of the parents of one on trial for a homicide there must be other independent testimony to show he was himself insane at the time of the killing; but where the act of the defendant was without apparent motive, and at the same time unnatural and extraordinary, that is of itself sufficient evidence of insanity to authorize the admission of tetimony to show the insanity of defendant’s parents.</p> <p>2. Same. — -While proof of independent acts or conversation occurring subsequent to the commission of a crime are not sufficient to show insanity at the time, yet such evidence may be heard and considered in. connection with acts before or at the time of the crime which tend to establish the fact.</p> <p>3. Continuance. — -The defendant, who is unable to read or write, and entirely without friends to help him, or property or money with which to employ counsel to defend him (the attorney who is doing so being a volunteer from another county), should, upon his application, have been granted a continuance, it appearing from the affidavit that he had from the day of his arrest until the term at which he was indicted and tried been confined in the jail of another county; and that if afforded an opportunity he could prove certain facts, material to his defense, .the importance of which he did not know until informed by his counsel. And the agreement of the attorney for the Commonwealth that the statements of the affidavit might be read as evidence did not authorize the court to refuse a continuance. But even if it did, the court erred in refusing to allow the affidavit to be read when subsequently offered as evidence.</p>

<p>Where there is a devise by a husband directly to his wipe and children, the wife takes a life estate only, unless there is some- • thing in the will showing a contrary intention.</p> <p>Under a will directing the executor to take charge of all the testator’s estate, real and personal, and after paying debts to deliver the remainder to the widow, “who is requested and expected to manage same to the best advantage in caring for and educating the children and supporting herself,” the widow takes a life estate only, remainder to the children.</p>

Case 90 — PETITIONS ORDINARY TRANSFERRED TO EQUITY— APPEALS PROM LOUISVILLE CHANCERY COURT. 1. The agreement in the policy that no action shall be brought until the-amount of the loss has been fixed by arbitration, is against public policy and void. (Story’s Eq. Jur., sec. 670; Home Ins. Co. v. Moss, 20 Wall., 445.) 2. The submission to arbitration in this case was void because made without the consent of the mortgagee, to whom the loss was made payable.

Case 91 — PETITION EQUITY APPEAL PROM BREATHITT CIRCUIT COURT. 1. The power given to appellant to sell with consent of her husband was not intended to remove the disability of infancy. 2. The so-called contract was highly prejudicial to Mrs. Sewell. Therefore, inasmuch as she was an infant, the presumption is it was procured by fraud. (Middleton v. Hoge, 5 Bush, 487; Bransom v. Thompson, 81 Ry., 387.) 3.

<p>1. Deed of Married Woman — Certificate by Deputy Clerk in his own Name. — While a deputy clerk should act in the name of his principal, and not in his own name, a certificate to a deed made and signed by him in his own name, as “Deputy Clerk,” without using the name of the principal either in the body of the certificate or in the subscription, is not void. And although the grantor in such a deed be a married woman, she will not be allowed to repudiate the deed, it being admitted by her that the person who took and certified the acknowledgment was in fact the deputy clerk, and that he was acting for his principal.</p> <p>2. Same — Failure of Trustee to join in Deed. — When land is held in trust for a married woman, a deed by her and her husband will pass her equitable right, although the trustee does not unite in the deed, and the wife can not, after she becomes discovert, recover the land.</p>

<p>Cask 93— INDICTMENT—</p> <p>APPEAL PROM SHELBY CIRCUIT COURT.</p> <p>1. To constitute the offense charged in this case the intention to cheat or-defraud must appear, but the intent is to be inferred from all the circumstances of the transaction and is always a question for the jury. (7 Am. and Eng. Encj'clopedia of Law, 105; 76 Mo., 180; People v.. Kendall, 37 Am. Dec., 240.)</p> <p>There was abundant evidence from which the jury might have inferred the intention to deceive, and that question at least should not have been taken from them.</p> <p>2. Where there is a combined falsehood and promise the case is within the 'statute, though it appear that the promise, as well as the representation, was the inducement of the prosecutor to part with his money. (Commonwealth v. "Wallace, 114 Pa. St., 405; Queen v. "West Cox, C. C., 12; 7 Am. and Eng. Encyclopedia of Law, 717.)</p> <p>3. As there was testimony tending to show that the representations were-made by defendant with a knowledge of their falsity, that question was for the jury.</p> <p>4. The falsity of the pretense and the maker’s knowledge of it are to be-proved only approximately and inferentially. (Wharton’s Crim. Law, 1165 and 1185.)</p> <p>5. If any one of defendant’s statements was untrue, and designedly made with the intention of cheating prosecutrix out of her money, the offense-was rruide out. (Bishop’s Crim. Law, vol. 2, 418.)</p> <p>6. It was not necessary to show an actual manual delivery by prosecutrix to defendant in order to make out the offense.</p> <p>All statutes should be construed with a view to carry out the intention of the Legislature. (Gen. Stats., chap. 21, see. 15.)</p> <p>1. "Whenever money is deposited in bank the relation of debtor and creditor is at once established between the bank and the depositor, and the-bank simply owes the depositor the amount of money deposited.</p> <p>2. To establish the offense charged in the indictment, it was necessary to-show that the prosecuting witness was induced by defendant’s false-representations to part not only with the title, but with the possession, of twenty-five hundred dollars in money, United States currency or bank notes.</p> <p>3. A defendant can not be proved guilty of one offense by showing that he has committed other similar offenses. (Miller & Smith v. Commonwealth, 83 Ky., 23; Cowan v. State, 23 Neb., 524; People v. Bishop, 81 Cal., 117; People v. Van Alsten, 57 Mich., 80; Jackson v. People,. 126 111., 148; Malcolm v. State, 25 Tex. App., 290.)</p> <p>4. Any variance as to the money obtained or as to the nature of the property between the allegations in the indictment, and the proof introduced by the prosecution, is fatal. (Am. and Eng. Encyclopedia of' Law, vol. 7, p. 789; Commonwealth v. Howe, 132 Mass., 250; Reg. v. Brady, 26 Up. Can. Q. B., 13.)</p> <p>5. To constitute the offense charged the money must have been actually and not impliedly obtained. There is a broad distinction between money obtained and money retained. (Jameson v. State, 37 Ark., 445; "Watson v. People, 27 111. App., 493.)</p>

Case 94-PETITION EQUITY APPEAL FROM BREATHITT COURT OF COMMON PLEAS. 1. Where an infant repudiates his former contract by a subsequent conveyance it is not necessary to place the first purchaser in statu quo in order to make his last conveyance effectual. (Vallandingham v. Johnson, 85 Ky., 288; Story on Contracts, sec. 60.) 2.

<p>. 1. Bobbery — Drunkenness as a Defense. — Where a felonious intent is essential to constitute an offense, such as the offense of robbery, the accused may show that he was too drunk to have any intent at the time he committed the act.</p> <p>2. Joinder of Offenses. — When one presents a pistol at two persons at the same time and compels both to surrender their property at once he is, if guilty at all, guilty of two separate acts of robbery, and may be separately indicted and tried for the two offenses.</p>

<p>Case 96 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. A general power of appointment can not be given in a deed of bargain and sale because (1) the appointee is not within the consideration and (2) because the persons who may take under the appointment are uncertain. (Mildmay’s Case, 1 Coke’s Eep., 177; Sugden on Powers, vol. 1 (Ed. 1836), chap. 3, sec. 2, par. 165; Minor’s Institutes, vol. 2, pp. 820, 825, 826; 2 Th. Co. Lit., 579 N. “A,” 586 N. (B), Lord Chief Baron Gilbert; Saunders on Uses and Trusts, vol. 2, p. 42;, Statute 27 Henry VIII., chap. 10; Virginia Code, 1873, chap. 112,. sec. 1; Perry on Trusts, sec. 299, note; 1 Morehead and Brown, p. 443; Gen. Stats., Ky., chap. 24, sec. 3; Tiedeman on Eeal Property, sec. 559; 1 Lorn. Dig., 220, 576; 2 do., 184; 8 and 9 Vic., chap-106; Virginia Code, 1873, chap. 112, sec. 4; Smith v. Smith, 1 Jones’ • Law, 135; 59 Am. Dee., 581; Latham v. Skinner, Phillip’s Equity,, 298; Levy v. Griffis, 65 N. C., 284; Hogan v. Strayhorn, 65 N. C.,, 284; Eev. Stats., N. C., chap, 37, sec. 1, Eev. Code, chap. 37, sec. 1.)</p> <p>2. The courts of this State are disinclined to give effect to such a power because (1) it has the effect to take away property from infant children and (2) because it is against public policy for a man to have the practical ownership of property not subject to his debts. (Powell v. Powell, 5 Bush, 619.)</p> <p>3. As to the power to mortgage a married woman’s separate estate. (Hirschman v. Brashears, 79 Ky., 258; Magill v. Mer. Trust Co., 81 Ky., 129; Hounshell v. O. JF. Ins. Co., 81 Ky., 304.)</p> <p>4. As to defect of parties. (Civil Code, sec. 36; Civil Code, sec. 24.)</p> <p>1. Whatever may be the English law, it is unquestionable that in Kentucky, both under the decisions and by express statute, a power created in a deed of bargain and sale may be well exercised although the pecuniary consideration supporting the deed did not move from the appointees under the power. (Gen. Stats., chap. 24, sec. 3; Idem, art. 1, secs. 6, 19; Johnson v. Yates, 9 Dana, 495; Duvall v. Graves, 7 Bush, 461; O’Bannon v. Musselman, 2 Duv., 523; Walker v. Smyser’s Executors, 80 Ky., 620; Ricketts v. St. Louis, &c., R. Co., 12 Ky. Law Rep., 863.)</p> <p>2. Even under the authority cited as representing the English law the power is well created, for Antoine Dumesnil is not a stranger to the deed nor a stranger to the consideration.</p> <p>3. The reasoning on which the objection made by appellant is based is extremely technical and has never been satisfactory even to the most technical English lawyers. (Sugden on Rowers, p. 160, chap. 3, sec. 2, 2STo. 5.)</p>

<p>Case 97 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. A married woman, notwithstanding her coverture, has the power to dispose prospectively of her separate estate, or of the property over which she is given the power of disposal under a decree in chancery, by a will executed as provided by the statute, and it makes no difference whether she had a separate estate, or the power she thus attempts to exercise, at the time of the execution of the will, provided she acquires the power or the separate estate during her marriage and before her death. (Jarman on Wills, vol. 1, pp. 54 and 79; Gen. Stats., chap. 113, secs. 4 and 6, chap. 52, art. 2, sec. 6; Thomas v. Jones, 66 Eng. Oh’y, 63; Noble v. Willock, L. R. 8, Ch’y App., 788; Thorn-dyke v. Reynolds, 22 Gratt., 23; Willock v. Noble, 2 Prob. and D., 276; Womack'v. Watson, 4 Ky. Law Rep., 907; Hickman v. Brown, 10 Ky. Law Rep., 952.)</p> <p>2. If the appellant derived no estate in the property in question under the will of his deceased wife, he was under our laws entitled to a homestead right. (Phipps v. Acton, 12 Bush, 379; Sansbury v. Simms, 79 Ky., 629; Ellis v. Davis, 11 Ky. Law Bep., 893; Gen. Stats., chap. 38, art. 13, sees. 14 and 15; Thorne v. Darlington, 6 Bush, 448; Garter v. Goodman, 11 Bush, 299; Black v. Black, 11 Ky. Law Bep., 379.)</p> <p>1. A feme -covert can not devise her general estate, nor is her will by which she attempts to do so rendered valid for that purpose by a subsequent decree creating her a feme sole and empowering her to dispose of her property by will, unless the will executed when covert be re-executed and re-acknowledged before witnesses after the decree. (Gen. Stats., chap. 113, secs. 2 and 4; Porter, &c., v. Eord, 82 Ky., 192; Robinson v. Robinson, 11 Bush, 175; Payne v. Pollard, 3 Bush, 175; Crain v. Edwards, ante, p. 109.)</p> <p>2. The homestead in this case, which the husband claims he derived through his deceased wife, if there was one, was lost by his abandonment. (Gen. Stats., chap. 38, art. 13, secs. 14 and 15; Little’s Guardian v. "Woodward, 14 Bush, 585; Gains v. Casey, 10 Bush, 93; Carter, &c., v. Goodman, 11 Bush, 229; Nethercutt v. Herron, 10 Ky. Law Rep., 247; Curran v. Culp, filed January 31, 1891.)</p> <p>3. The appellant having elected to claim the property in controversy as sole devisee of his deceased wife, is estopped to assert a derivative right of homestead in it through his wife. (Bigelow on Estoppel, p. 578; Smith v. Smith, 14 Gray, 532; Watson v. Christian, 12 Bush, 524; Yance v. Campbell’s Heirs, 1 Dana, 229; Chambers v. Davis, 15 B. M., 522; Oschsver v. German Association, 5 Ky. Law Rep., 177.)</p>

Case 98-PETITION ORDINARY APPEAL FROM WARREN CIRCUIT COURT. The word “election,” as used in the statute against bribery, means only the choice of officers and does not include the decision of questions submitted to the voters. (Gen. Stats., pp. 506 and 529; Acts 1887-8, vol. 2, p. 1188; Marshall v. Donovan, 10 Bush, 694; Hall v. Marshall, 80 Ky., 558; Acts 1883-4, vol. 1, p. 754; 7 Ky. Law Rep., 292.) 1.

Case 99 — PETITION OBDINABY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. A married woman empowered by decree of court to act as a feme sole can not sue her husband at law. (Matson v. Matson, 4 Met., 262; Penn v. Green, 11 Ky. Law Eep., 812; Moran v. Moran, 12 Bush, 301; Eranldin ex parte, 79 Ky., 497; Hackett v. Metcalfe, 6 Bush, 352; Uhrig v. Horstman, 8 Bush, 172; Penn v. Young, 10 Bush, 628; Wiggins v. Johnson, 8 Ky.

<p>Case 100 — PETITION OBDINAEY</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State. (Thompson v. Whitman, 18 Wall., 457; Knowles v. Gaslight Co., 19 Wall.; Kerr v. Oondy, 9 Bush, 372; Ferguson v. Crawford, 70 N. Y., 257; People v. Baker (N.Y.), 19 Law Journal, 200; Penny-wit v. Foote, 27 Ohio St., 600; Jardine v. Keichert, 39 N. J. Law, 167; Borden v. Fitch, 15 John., 121; Starbuck v. Murray, 5 Wend., 148; Shumway v. Stillman, 6 Wend., 447; Kerr v. Kerr, 47 N. Y., 272; Hoffman v. Hoffman, 46 N. Y., 30; Phelps v. Duffy, 11 Nev., 80.)</p> <p>2. The insufficiency of the service of process rendered utterly void and of no effect all proceedings had under it. (Loughridge v. City of Huntington, 56 Ind., 260; Nall v. Combs, 1 J. J. Mar., 324; Thruston v. Martinson, 4 Dana, 127; Berryman r. Mullins, 8 B. M., 154; Jackson v. Speed, 2 Duv., 428; Brownfield v. Dyer, 7 Bush, 504; Galpin v. Page, 18 Wall., 350.)</p> <p>3. An attachment issued before the legal technical beginning of the action is void, and a sale under it confers no rights on the purchaser. (Kellar v. Stanley, 86 Ky., 247.)</p> <p>4. The attachment being without legal authority all proceedings under it were void. (Earl v. Matheny, 60 Tnd., 202; Barkelor v. Bandall, 4 Blackf., 278.)</p> <p>5. The attorney is liable jointly with his client for the malicious procurement of an order of attachment. ("Woodv. Weir, 5 B. M., 550; Port-man v. Bother, 8 Ohio St., 348; note to Williams v. Hunter, 14 Am. Dec., 600; Lawrence v. Hagerman, 56 111., 79.)</p> <p>6. The plaintiffs have a cause of action for the slander of their title. (Heard on Libel and Slander, sec. 10, p. 59, et seqr.; Peiten v. City of Milwaukee, 47 Wis., 498; Meyrose v. Adams, 12 Mo. App., 329; Akerly v. Yilas, 23 Wis., 167.)</p> <p>1. No action can be maintained to recover damages resulting from the bringing of a civil suit unless there was both malice and want of probable cause. (Cox v. Taylor, 10 B. M., 20; Hilliard on Torts, vol. 1, chap. 16, sec. 11.)</p> <p>2. The petition is defective in failing to allege a termination in plaintiff’s favor of the legal proceedings complained of. (Wood v. Laycoek, 3 Met., 194.)</p> <p>3. The amended petition does not state a cause of action. It is always lawful for a man to assert his own title. (Odgers on Libel, p. 109.)</p> <p>To sustain an action for slander of title there must be a want of probable cause. (Bailey v. Dean, 5 Barb., 301.)</p>

<p>1. Warning Order — Yoid Judgment. — The fact that an affidavit for a. warning order does not state either the name of the defendant’s post-office or the affiant’s ignorance in regard to that matter does not render the judgment void.</p> <p>2. Judgment Prematurely Rendered. — A judgment upon a constructive service of process is not void by reason of the fact that it was-prematurely rendered.</p> <p>3. Dower. — A judgment of divorce bars the wife’s claim to dower.</p> <p>4. Divorce — New Trial after Husband’s Death. — Even if a judgment of divorce against the wife upon constructive service of process can be re-opened and vacated as erroneous in an action by her, after' the husband’s death, to recover dower, this action for that purpose-should have been dismissed, although a defect in the affidavit for a. warning order rendered the judgment of divorce erroneous, as the evidence shows that even if the wife had appeared and made defense to. the divorce suit the husband would have been entitled to the decree.</p>

Case 102 — PETITION EQUITY APPEAL FROM MASON CIRCUIT COURT. 1. As the plaintiff alleges that the note for $500.00 was given for money borrowed from her by her father she can not recover except upon proof of the particular consideration alleged. (James v. Hayden’s Adm’r, 10 Ky. Law Bep., 534; Howard v. Cornelison, 5 Ky. Law Bep., 919; Boone v. Shackleford, 4 Bibb, 68; Cutter v. Beynolds, 8 B. M., 598; Bullitt v. Ealston, 1 A.'K. Mar., 531; Steadman v. Guthrie, 4 Met., 152.) 2.

Case 103 — PETITION EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. The execution of the note and mortgage by the wife sufficiently evidences her intention to bind her separate estate. And she is bound by the mortgage, although the money was paid to the husband, it appearing that he acted as her agent. (ílounshell v. Clay, Fire Ins. Co., 5 Ky.

<p>1. Recovery op Money Lost to Pool-seller in Wagering on Horse Races. — Persons who engage in gaming by means of selling pools on horse races are not within the protection of the statute which gives to one who loses money at gaming a right of action against the winner to recover the money lost. Gaining being carried on by them as a business, they are not within the spirit of the statute. But where one seeks to recover of pool-sellers, under that statute, money which they have won from him in wagering on horse races, they are entitled to deduct from the amount he claims the sums which he has won from them, thus giving him the right to recover only the excess.</p> <p>2. Same — Pleading—Inconsistent Allegations. — In such an action the denial by defendants, in one paragraph of their answer, that the plaintiff has lost to them the amount sued for is not inconsistent with the averment in another paragraph that at the times and in the transactions mentioned in the petition they have lost to plaintiff certain sums, which they plead as a counter-claim.</p>

<p>1. Venue of Action for Injury to Land. — An action for injury to-real property must be brought in the county in which the property is situated.</p> <p>2. Possession not Necessary to Maintain Action for Injury to Land. — An action for injury to land by cutting and removing timber may be maintained by the owner, although not in the actual possession of the land when the injury was committed. The common law rule which requires that in trespass for breaking the close the plaintiif must allege possession does not apply where the action is for an injury to the land and not merely for a wrongful entry. And this was true even prior to the Act of March 13, 1888, which provides that the owner of land may maintain an action for trespass although not in the actual possession of the land when the trespass was committed.</p> <p>3. Measure of Damages for Cutting of Timber. — Where the injury to land which is complained of is the cutting and removal of timber, the value of the timber as it stood upon the land is a just criterion of recovery.</p> <p>4. "Waiver of Objection to Jurisdiction. — Where only one of several defendants in an action is served in the county in which the action is brought, an order dismissing the action as to him by consent, with leave to the other defendants to file an answer, is to be regarded as a waiver by them 'of their right to object to the jurisdiction upon the ground that the action is transitory and has been dismissed as to the only defendant served in the county.</p> <p>5. "Where more land is sold under execution than is necessary to pay the debt, long acquiescence of the execution defendant will he treated as a confirmation by him of the sale and thus make perfect the title of the execution purchaser, especially as against a mere trespasser.</p> <p>In this case the execution defendant having acquiesced for more than twenty years in a sale of more land than was necessary to pay the debt, the title of the execution purchaser is sufficient to enable him to maintain trespass.</p> <p>6. A JUDGMENT FOR AN ADDITIONAL AMOUNT RENDERED SUBSEQUENT TO THE TERM AT WHICH FINAL JUDGMENT WAS RENDERED Was 110t Void, it being evident that it was intended to correct a clerical misprision, and the record reciting that the defendant appeared by attorney.</p> <p>7. Execution Sales — Mistake as to Number of Acres in Tract of Land Sold. — The fact that a tract of land was levied on and sold as containing one hundred and three acres, when it in fact contained one hundred and thirty-three acres, as was afterward ascertained by actual survey, did not render the sale void.</p>

<p>Case 106 — PETITION OBDIN ABY</p> <p>APPEAL prom eranklin circuit court.</p> <p>The court should have granted appellant a new trial. (Peebles, &c., v. Balls, 1 Litt., 25; Guthrie v. Bogart, 1 A. K. Mar.,,35; Price v. Eord, 7 Mon., 400; Turner’s Adm’r-v. Booker, 2 Dana, 337; Donallen v. Lennox, 7 Dana, 91; Call v. Hitchcock, 9 Bush, 66, Benicke v. Morse, 10 Ky. Law Bep., 767.)</p> <p>"That appellant did not know on what day his cause would be tried is no ground for a new trial. (Brevard-v. Graham, 2 Bibb, 177; Cotton v. Brashier, 2 Met., 153; Legrand v. Baker, 6 Mon., 247; Babbit v. Woolley, 2 Bush, 704; Brannin, Brand & Glover v. Trent, &c., 9 Ky. Law Bep., 577.)</p>

Case 107 — PETITION EQUITY APPEAL FROM BELL COURT OF COMMON PLEAS. 1. Upon demurrer every material allegation of the petition must be taken as true. (Civil Code, sec. 126.) 2. The petition states a cause of action. (Wharton’s Law Dictionary and Bouvier’s Law Dictionary, “Conspiracy.”)

<p>1. "Where a state constitution has been formed and promul- ■ gated according to the forms of law and accepted and recognized as valid by the political department of the Government, the courts will not declare the instrument or any part of it invalid. The question of its validity is then not a judicial but a political one. Therefore, where a constitution after'it has been submitted to .and ratified by a vote of the people is amended by the convention which framed it, and the amended instrument is promulgated by the convention as the constitution and acted upon by the people as the organic law of the State, the courts will not inquire as to the power of the convention to promulgate as the constitution an instrument different in some of its parts from that which had been submitted to a vote of the people.</p> <p>2. The courts will declare a mere amendment to a constitution invalid if the method provided by the constitution for its amendment has not been followed.</p>

<p>Case 109— INDICTMENT—</p> <p>APPEAL PROM NELSON CIRCUIT COURT</p> <p>Section 248 of the new Constitution, in so far as it provides that “a grand jury shall consist of twelve persons,” requires no legislation to put it into operation, and is now the law of the State.</p> <p>Section 248 of the new Constitution is not self-executing. (Bndlich on Interpretation of Statutes, p. 711; Cooley, Const. Lim., 101; Story, Const., sec. 454.)</p>

Case 110 — PETITION EQUITY APPEAL PROM MARION CIRCUIT COURT. 1. The provisions of the National Bank Act prescribing a penalty for the taking of usury by national banks may be enforced in the State courts, the form of procedure being regulated by the local rules of practice, but the decisions of the Supreme Court of the United States are of binding authority. (Farmers’ Nat. Bank v. Deering, 91 U. S., 29; Bletz v. Columbia Nat. Bank, 30 Am. Bep., 343; Henderson Nat.

Case 111— INDICTMENT— APPEAL PROM METCALPE CIRCUIT COURT. 1. The court erred in refusing to instruct the jury that they are the sole judges of the credibility of the witnesses. 2. The court should have granted appellant’s motion for a continuance. 3. The Commonwealth had no right, for the purpose of showing motive, to prove that defendant had committed crimes and misdemeanors other than that charged in the indictment. 4.

<p>Oase 112 — PETITION ORDINARY</p> <p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>I. The section of the statute of limitations excepting from its operation. persons under disability applies as well against the surety in a note as against the principal. (Gen. Stats., chap. 71, art. 4, sec. 2; Idem, art. 3, sec. 1.)</p> <p>2. The court should have allowed the amended petition to be filed, and by its instructions controlled the recovery on the original obligations or on the renewal note according to the facts developed on the trial. (Civil Code, sec. 113, sub-sec. 4.)</p> <p>3. The court should have allowed appellant to file at least so much of the amended petition as alleged fraud on the part of appellee and an estoppel against his plea of the statutory bar. These allegations of fraud were sufficient to uphold and support the original cause of action notwithstanding the plea of the Statute of Limitations. (Tillett v. Commonwealth, 9 B. M., 443; Newton v. Carson, 80 By.. 312.)</p> <p>4. The execution of the renewal note by Hamilton, together with his letter to Judge Reid with reference to the same, are to all intents and purposes an assent in writing to delay.</p> <p>•5. The debtor can not complain of an elongation of time resulting from ' his own act. (Hopkins v. Stout, 6 Bush, 379.)</p> <p>•6. An agreement by a surety upon a sufficient consideration to pay the debt on which he is liable before the statute has run has the effect to prolong the statute seven years from the date of such agreement. (Gilmore v. Green, 14 Bush, 775; Emmons v. Overton, 18 B, M., 649; Tillett v. Commonwealth, 9 B. M., 443.)</p> <p>1. The record shows such acts on the part of appellee as meet the requirements of the decisions for a new promise. (Whitcom v. Whiting, 6 Dong, 629; Brandt on Sureties, sec. 119; Robinson v. Offutt, 7 T. B. Mon., 540; Walker v. Sayres, 5 Bush, 579; Tillett v. Commonwealth, 9 B. M., 443; Emmons v. Overton, 18 B. M., 649; Buckner v. Clark’s Ex’r, 6 Bush, 168.)</p> <p>2. Eraud will take a case out of the Statute of Limitation for sureties. (Tillett v. Commonwealth, 9 B. M., 443; Newton v. Carson, 80 Ky., 309.)</p> <p>And the statute may also be avoided by estoppel. (Cundiff v. Luce, .Superior Court, 11 Ky. Law Rep., 860.)</p> <p>3. The facts of this case constitute a hinderance or obstruction within the meaning of the statute. (Walker v. Sayres & Hopkins, 5 Bush, 579; Newton v. Carson, 80 Ky., 309.)</p> <p>Coleman v. Walker, 3 Met., 65, and Kennedy v. Eoster, 14 Bush, 480, commented on.</p> <p>4. The new note and letter of December 6th furnish the evidence our courts have deemed sufficient to bring a case within the specified exception of “assent to delay in writing.” (Kennedy v. Eoster, 14 Bush, 480.)</p> <p>1. The facts of this case are not sufficient to establish an obstruction within the meaning of section 5, article 6, chapter 71, General Statutes, nor do they amount to an “assent to delay in writing.” (Kennedy v. Eoster, 14 Bush, 579; Coleman v. Walker, 3 Met., 68.)</p> <p>The surety is absolutely discharged at the end of seven years unless some of the things enumerated in that section supervene to prevent or suspend the statute. The maxim expressio unius exalusio alterius applies. (Endlich on Statutes, sec. 397; Brocket v. O. & P. R. Co., 14 Pa. St., 43; Miller v. Kirkpatrick, 29 Pa. St., 229; Warfield v. Eox, 53 Pa. St., 385.)</p> <p>2. The agreement to reduce interest was not a sufficient consideration for the acknowledgment of appellee to take the case out of the statute, as that agreement was itself without consideration and not binding on appellant. (Emmons v. Overton, 18 B. M., 643.)</p> <p>But if that agreement was available at all it was simply the basis of a new and independent action. (Gilmore v. Green, 14 Bush, 572; Poth. on Obligations, 3d ed., vol. 1, 314.)</p> <p>3. Newton v. Carson, 80 Ky., 309, is not a parallel case to the one at Bar, and is not authority.</p>

<p>"Where one takes an estate under a will upon a condition subsequent his failure to comply with the condition, without fault on his part, does not divest him of title.</p> <p>A testator after devising a tract of land to his wife devised the' same land to their grandson “ tp go to him ” at the death of his grandmother “upon the condition that he stays with her and supports her until her death, then he is to have her part of said farm and homestead, otherwise to be void if he shall fail to perform my will.” Held — That the grandson took a vested remainder upon a condition subsequent, and as his grandmother refused to live with him or to allow him to support and care for her, his failure to do so did not operate as a forfeiture of his estate.</p>

Case 114— INDICTMENT— APPEAL PROM HARDIN CIRCUIT COURT. 1. The-forgery of a witness certificate is not embraced by either section 5 or section 7 of article 9, chapter 29 General Statutes.- 2.

Case 1X5 — PETITION EQUITY APPEAL PROM ESTILL COURT OP COMMON PLEAS. 1. There is no foundation to authorize a recovery for trespass to land without title or possession in complainant. (Bebee v. Hutchinson, 17 B. M'., 498; Holderman v. Middleton, 6 Bush, 45.) 2. It was error to instruct the jury that appellant’s boundary must he “ marked and defined.” 3.

<p>Case 116 — PETITION EQUITY</p> <p>APPEAL PROM ALLEN CIRCUIT COURT.</p> <p>The words ’“bodily heirs ” and “ heirs of her body,” as used in the will, were intended to indicate children. (88 Ky., 125.)</p> <p>An estate tail must descend; it can not ascend or take in collateral relations. (Jarman on 'Wills, vol. 3. p. 90.)</p> <p>The words “bodily heirs,’’(“heirs of her body” and “heirs of their bodies,” are used in the will in the sense of children. (Righter v. Eorrester, 1 Bush, 278; Mitchell v. Simpson, 10 Ky. Law Rep., 709; Schuder on Wills, sec. 542; Tucker v. Tucker, 78 Ky., 503; Jones v. Miller, 13 Ind., 337; Berg. v. Anderson, 72 Pa. St., 87; Johnson v. Johnson, 2 Met., 383.)</p> <p>An indefeasible title vested in the daughters of the testator at his death, or in any event at the death of the life tenant. (Birney v. Richardson, 5 Dana, 424; "Wills v. "Wills, &c., 85 Ky., 486; Komps’ Ex’or v. Hallenberg, &c,, 88 Ky., 114; Martin v. Renaker, 10 Ky. Law Rep., 469; Trabue v. Terry, &e., 10 Ky. Law Rep., 347; Hannon v. Dyer, &c., 11 Ky. Law Rep., 654.)</p>

<p>1. Liability op Railroad Company por Baggage op Passenger.— Bailroad companies are not liable as common carriers for the baggage of their passengers after the baggage is ready to be delivered to the owner at his place of destination and he has had reasonable time to take control of it. They are then liable only as warehousemen for hire, and no.presumption of negligence arises from the destruction of the baggage by fire.</p> <p>A passenger on a railway train got off the train about 9 o’clock at night and his baggage was also put off and placed at his disposal. Bailing to call for his trunks, they were put in the depot for safe keeping. During the night the depot, with its contents, was burned. Held — That in the absence of any negligence on the part of the railroad company, it is not liable to the owner of the baggage.</p> <p>2. Same. — -The fact that the depot in which plaintiff’s baggage was stored was constructed of pine timber, is not evidence of negligence, the depot being in a small town and not exposed to any unusual danger from fire.</p> <p>3. Same. — The fact that the agents of the railroad company in charge of the depot.failed to take steps to prevent a traction engine near the depot from being moved by steam at night, is not evidence of negligence, as there was no reasonable ground to apprehend danger from escaping sparks, and, therefore, the court properly refused to submit the question of negligence to the jury.</p>

Case 118 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. 1. The attention of the jury should have been confined to such representations as were material to th.e contract of suretyship, and such as the appellee professed to have relied on and had the right to rely on. He had no right to rely on the representations as to value. 2. The court should have instructed the jury to consider only the specific averments of fraud, and also informed them in what legal fraud consists.