Volume 93 — Kentucky Reports

<p>'The title to a freehold is not involved so as to give the Court of Appeals jurisdiction where the question as to title is only incidental to the real matter in issue, and the judgment does not determine the rights of adverse claimants.</p> <p>The plaintiff in this case seeks to recover a sum which he alleges defendant agreed to pay him if he would procure the right to the minerals in certain lands, which he alleges he has done, the defendant alleging that the title to the lands is defective, and that, therefore, the plaintiff ought not to recover. Held — That the title to a freehold is not involved, and the amount in controversy being less than three thousand dollars the Superior Court has jurisdiction of the appeal.</p>

<p>Construction op Deed — Life Estate. — A conveyance by a father to his son and daughter in consideration of love and affection, habendum: “ To have and to hold to them, my said daughter and son, and their children forever,” creates in the son and daughter merely a life estate, remainder to their children.</p>

<p>1. Venue of Action- for Specific Execution of Contract for Sale of Land. — An action by the vendor to enforce specific execution of a contract for the sale of land and for enforcement of his lien for the purchase money must be brought in the county in which the land is situated, and that court, having jurisdiction for the purpose of enforcing the contract, has jurisdiction also to render a personal judgment for the purchase money, although the defendant is not a resident of and has not been summoned in the county.</p> <p>2. In an action by the vendor to enforce specific execution of a contract for the sale of land, the defendant can not demand an exhibition of the plaintiff’s title, unless he either alleges an entire want of title or points out the particular defects of which ho complains.</p> <p>3. Same — Reasonable Time to Cube Defects in Title. — If the vendor is able to convey a good title at the time the contract is to be performed and tenders a deed, the contract will be enforced, although his title was defective at date of sale. And the chancellor should permit a vendor, even after he commences his action, to supply defects in his title so as to comply with his contract, if he can do so within a reasonable time, provided time is not of the essence of the contract.</p> <p>4. Where no time is fixed in the contract for the vendor to make the conveyance it will be treated as an undertaking by him. to do so within a reasonable time.</p> <p>In the contract in this case, executed March 6, 1890, there is a provision that the purchaser is to have a reasonable time to examine the title, following which is this clause: “The parties of the first part are to be allowed to retain possession of the house and to feed their stock on the lands uhtil June 1, 1890; with these exceptions the party of the second part is to have possession when the deed is made.” It had been provided in a previous part of the contract that the first payment was not to be made until execution and delivery of the deed. Held — That it is a fair inference that the parties to the contract contemplated June 1, 1890, as a time on or before which a good title might be made and tendered.</p> <p>8. Immaterial Defect in Title. — Although at the time when the vendor should have performed the contract he had no deed to a part of the land, yet as he had been previously adjudged entitled to such conveyance, and it only remained for an officer of the court to perform a mere ministerial act, there was no such defect of title as should nullify the contract.</p> <p>6. Power oe Legislature to Remove Disability. — Under the old Constitution the Legislature had the power, hy special act, to relieve a married woman of the disability of infancy so as to authorize her to unite with her husband in a deed to land for the purpose of relinquishing her dower.</p>

Case 4 — PETITION EQUITY APPEAL FROM EDMONSON CIRCUIT COURT. 1. With the admissions of appellee that he recognized the ferry in controversy as the property of appellant, and that he is using the land, the private property of appellant, to run the ferry, a court of equity can not adjudge the ferry to he the property of appellee. The appellee is estopped to claim the ferry or to claim that he has any right under his license. 2.

Case 5 — PETITION EQUITY APPEAL FROM CAMPBELL CHANCERY COURT. 1. The reclaimed land is “accretion” under the common law and belongs to the person holding the legal title when it was formed.

<p>Cask 6 — PETITION ORDINARY</p> <p>APPEAL FROM CAMPBELL CIRCUIT COURT.</p> <p>1. Towns are not liable for obstructions in portions of the highway not part of the traveled path. (Dubois v. City of Kingston, 102 N. Y., 219; 2 Dillon, p. 912, note; 7 Cush., 498; 13 Met., 55; 4 Gray, 65; 8 Gray, 504; 16 Pick., 189; 4 Cush., 307; 7 Gray, 338; 30Wis., 329; 13 Gray, 59.)</p> <p>A city is bound to keep only such parts of the streets in good repair as are necessary for the convenience of the public. (2 Dillon, p. 1413, sec. 67.)</p> <p>2. The plaintiff can not recover if he could have averted the injury by reasonable care and prudence. (4 Wait, 718; 8 Allen, 137; 12 Cush., 488; 2 Dillon, 919; 8 Am. L. Beg. (N. S.), 758; 13 Am. L. Beg. (N. S.), 284; 73 Cal., 137; 14 Pac.'Bep., 578; 116 Ind., 173; 99 N. C., 576; 14 Hun., 544; 19 Alb. L. J., 315; 8 By. Law Bep., 961; 7 By. Law Bep., 364; 7 Bush, 249.)</p> <p>3. The court erred in excluding testimony tending to show that the obstruction complained of was in that part of the sidewalk not used for travel, in which there are hitching posts, gas and water plugs, etc., for the convenience of the public.</p> <p>The existence of obstructions in a street is such evidence of negligence as requires of the authorities explanation in order to escape liability; and the city authorities in the case at bar have not given any' such explanations as should exonerate them from liability. (Mayer, etc., v. Sheffield, 4 Wall., 189.)</p>

<p>1. Assignments por Creditors — Exemptions.—The fact that a deed of assignment for the benefit of creditors reserves to the debtor the property that is exempt to him by law without specifying the exemptions, does not render the assignment void or prevent it from taking effect at once, although the exempt property has not been set apart.</p> <p>2. Same — Eraud.—The intent with which a deed of assignment is made and not the actual effect of it must determine whether or not it is fraudulent. And, unless it is the result of a scheme for the debtor’s advantage,' and made for the purpose of overreaching creditors, it should be upheld, such conveyances being favored in law.</p> <p>The mere fact that a debtor when he made an assignment hoped to compromise with his creditors is not sufficient to invalidate the assignment.</p> <p>3. Bes judicata — A judgment discharging the first of two attachments and sustaining the second, having been reversed by the Superior Court only in so far as it sustained the second attachment, the decision of that court is to be regarded as an affirmance of the judgment in so far as it discharged the first attachment; and the question as to the correctness of the court’s judgment in that respect is now res ¡judicata.</p>

Case 8 — APPEAL PROM MENEPEE CIRCUIT COURT. 1. Montgomery county is the real party in interest and the action was properly brought in the name of the county. (Civil Code, sec. 18; Christian County Court v. Kankin, &c., 2 Duv., 502; Lawrence County Court v. The Chattaroi Bailroad, 81 Ky., 225; Dunn v. Bedford, 8 Ky. Law Bop., 874.) 2.

Case 9 — PETITION EQUITY APPEAL PROM -WARREN .CIRCUIT COURT. Real estate held as partnership property is treated as personalty and, therefore, a verbal division of such property is binding. (6 Bush, 369 ; Buchan v. Sumner, 5 3ST. Y., Chy. 600.) 1. The finding of the commissioner and the court that there had been no division of the land, not being flagrantly against the evidence, will not be disturbed. 2. A verbal division of land is void under the statute of frauds.

<p>The petition in an action to quiet the title to land need not describe tlie title that the defendant claims, but facts must be alleged showing that the claim he asserts is hostile to the title of plaintiff. It is not sufficient to allege that defendant “ is sotting up claim to the land,” as that does not necessarily mean a hostile claim.</p>

<p>Case 11 — PETITION EQUITY</p> <p>APPEAL EROM CAMPBELL CHANCERY COURT.</p> <p>1. In construing the powers of a municipal corporation or city, the rule is that nothing will be held to be granted by the State unless clearly expressed, or unless absolutely essential to carry out the powers granted. (Dillon on Mun. Oorp., sec. 89, 3d ed.; Henderson v. City of Covington, 14 Bush, 312; Patton v. Stephens, 14 Bush, 324; Johnston v. Louisville, 11 Bush, 533; Kniper v. City of Louisville, 7 Bush, 603.)</p> <p>The city of Newport has no power to regulate the number of employes on street railway cars. (Thornhill v. City of Cincinnati, 4 Ohio Cir. Ot. Kep., 354; Bavenna v. Pennsylvania Co., 45 Ohio St., 118; Brooklyn Crosstown B. Co. v. City of Brooklyn, 37 Hun., 413; City of Toronto v. Toronto St. By. Co., 15 Ontario, 30; same case, 36 Am. & Eng. B. Cases, 44.)</p> <p>In view of the length of time the cars have been running without having two employes, the ordinance is void as unreasonable and oppressive. (People v. Armstrong, 41 N. W. Bep., 275; Anderson v. City of Wellington, 19 Pac. Bep., 719.)</p> <p>2. The ordinance in question impairs appellant’s contract lights, ('ll Ky. Law Kep., 321.)</p> <p>3. The ordinance is void because it undertakes to deprive a person serving the public of the right to use his property before it has been judicially determined that he is in fault, or that such use is unlawful. Varden v. Mount, 78 Ky., 86.)</p> <p>4. Injunction is the proper remedy. (City of Newport v. Newport & Cincinnati Bridge Co., 12 Ky. Law Bep., 39; Brown v. Trustees of Catlottsburg, 11 Bush, 435; Henderson v. City of Covington, 14 Bush, 312; Patton v.'Stephens, 14 Bush, 324; Shinkle v. City of Covington, 83 Ky., 420.)</p> <p>The ordinance in question is a legitimate exercise of the police power. (Charles Biver Bridge v. Warren Bridge, et al., 11 Pet., 420; Louisville City B. Co. v. City of Louisville, 8 Bush, 421; Bailroad Company v. Richmond, 96 IT. S., 521; St. Louis v. St Louis R. Co., 89 Mo., 44; S. C. 58, Am. Rep., 82; McKee v. McKee, 8 B. M., 433; Commonwealth v. Steffee, 7 Bush, 162; Commonwealth v. Markham, 7 Bush, 486.)</p> <p>The provision of the ordinance directing the police to return the cars to the- stable is not a forfeiture of the property in any sense of the word; it is the mildest form of the exercise of police power.</p> <p>Not only does a general good government clause in the charter give authority to pass ordinances of the nature of the one at bar, but the right to enforce them by forfeiture is implied. (McKee v. McKee, 8 B. M., 433; Varden v. Mount, 78 Ky., 89.)</p>

Case 12 — PETITION EQUITY APPEAL FROM WEBSTER CIRCUIT COURT. The mortgage is not effectual against the appellant, Sarah E. Meazels, because not properly signed.

Case 13 — PETITION ORDINARY APPEAL PROM MEADE CIRCUIT COURT. 1. The deed executed by plaintiffs to defendant is a written contract, and suit to recover compensation or damages for a breach of the contract should set forth what the written contract was, and if the consideration therein expressed was erroneous should charge that the consideration was expressed by mistake, and should seek to have the writing reformed, and for relief based on the re-formed instrument.

<p>Marriase revokes A will previously made by the husband, although there be an ante-nuptial contract fixing the rights of each party in the property of the other.</p>

<p>Case 15 — PETITION EQUITY</p> <p>APPEAL FROM LOUISVILLE CHANCERY COURT.</p> <p>1. The attachment having been endorsed upon the summons, and the summons running in the name of the Commonwealth, the attachment also ran in the name of the Commonwealth. Such was the effect of the indorsement upon the process. (Hawkins v. Walker, 4 Bibb, 292; Williams v. Handley, 5 Bibb, 10; Jones v. Overstreet, 4 Monroe, 547 ; Nichols v. Taylor, 0 Monroe, 426; Cloyd v. Trotter, 118, 111, 393; Keller v. Stanley, 86 Ky., 242.)</p> <p>2. The usage of the Louisville Chancery Court having been for thirty years to indorse the attachment upon the back of the summons, it is conclusive. (5 W. Va., 22; Sedgwick on Statutory and Constitutional Law, 217; Phelps v. Taylor, 4 Monroe, 170; Talbert v. Hooser, 12 Bush, 408.)</p> <p>3. This practice of indorsing the attachment upon the summons having been adopted upon the passage of the Code of 1852, the contemporaneous construction should govern. (Harrison v. Commonwealth, 83 Ky., 171; Bai'bour v. Louisville, 83 Ky., 103; Edwards v. Darby, 12 Wheaton, 210; United States v. Bank of North Carolina, 6 Peters, 39; United States v. McDaniel, 7 Peters, 15; United States v. Moore, 95 U. S., 763; United States v. Philbrick, 120 U. S., 59.)</p> <p>4. This being partnership property, and having been sold to pay a partnership debt, the heirs of one of the partners can not recover the property without paying the debt. (Bank of Kentucky v. Herndon, 1 Bush, 360; Black v. Bush, 7 Ben Monroe, 211; O’Bannon v. Miller, 4 Bush, 26; Howell v. Commercial Bank, 5 Bush, 100; 2 Pomeroy Equity, sections 620 and 1046; Shanks v. Klein, 104 U. S., 18; Logan v. Groeirwall, 25 Eederal Reporter, 299.)</p> <p>5. .The fact that one of the summonses was against “Thomas H. Hunt & Co.” did not make it void. (Barneman v. Quackenboss, 11 Daly, 529.)</p> <p>6. The fact that the court directed the clerk to enter the warning order did not affect its validity. (Newcomb v. Newcomb, 13 Bush, 544.)</p>

Case 16 — INDICTMENT - APPEAL FROM PAYETTE CIRCUIT COURT. The defendant in a criminal case, when he testifies in 1ns own behalf, should not be cross-examined as to prior acts of misconduct.

Case 17 — PETITION ORDINARY APPEAL FROM MASON CIRCUIT COURT. 1. Matrimonial intercourse is the principal end of marriage, and whore by reason of supervening disease or impotency this end can not bo answered, either party to a contract of marriage may refuse performance without incurring any liability: provided, the changed condition was not brought about by his fault.

<p>Cash 18 — PETITION EQUITY</p> <p>APPEAL PROM PAYETTE COURT OP COMMON PLEAS.</p> <p>1. The action was notprosecuted by the realpartyin interest. (Civil Code, sec. 18.)</p> <p>. The title of the personal representative continues until he makes distribution, or, in some way, gives his assent to the legatee’s taking the chattel. Thenceforth, title is in the devisee and he only can sue for the property. (Williams on Executors, Side, p. 1235, etc..; Boone v. Dykes, 3 Mon., 535; Adió v. Cromwell, 3 Mon., 282.)</p> <p>The mere assent of the real party in interest will not give jurisdiction. (Worthington v. Greer, 17 B. M., 747.)</p> <p>2. The court had no jurisdiction over the person of the defendant. The Code defines the parties to such an action, and the definition excludes a case like this. (Civil Code, secs. 71, 428.)</p> <p>3. Mrs. Graham had no right to the form of certificate demanded for her by the administrator.</p> <p>1. The Payette court alone has jurisdiction of the suit to settle the estate. (Civil Code, see. 65.) And that court, having adjudged, as it had the power to do, that Mrs. Graham is the owner of the stock assigned to her in the division of her father’s estate, has jurisdiction over appellant (a mere stakeholder and without any interest adverse to the parties) for the purpose of requiring it to issue a certificate as evidence of that ownership, in order that its decree may be carried into effect.</p> <p>2. The administrator alone bad the right to ask the court to effectuate its order. But if not, the devisee was a party, and, therefore, there was no defect of parties.</p>

<p>1. Insurance — Forfeiture por Failure to Pay Premium. — Although a policy of insurance provides that it shall bo void upon the failure of the insured to pay a premium note within a certain time after maturity, a breach of the condition does not ipso facto render the policy void, but merely voidable at the option of the insurer, who may elect to continue the policy in force, notwithstanding the default in payment.</p> <p>2. Marine Insurance — Negligence op Master. — Where a policy insures against the perils of the sea or river, the more neglect of those in charge of the vessel will not free the insurer of liability. And this rule applies, although the policy insures against the “unavoidable dangers ” of the rivers, as such a provision relates to the peril embraced by the policy, and not to the skill or care to bo exercised by the master of the boat.</p> <p>Although a boat was stranded through the negligence of the master- in making a landing, when the river, which was out of its banks, was falling rapidly, the loss resulting is covered by a policy insuring against “ the unavoidable dangers of the rivers.” •</p> <p>3. General Average. — Where there is a common danger to the vessel and the cargo, everything which is saved by one continued, unremitted effort, must, by way of general average, pay the expense in proportion to its value. But this principle is not applicable when expenses are incurred for a separate interest, the other interests not being involved in the danger.</p> <p>As tlie cargo in this case was in no danger, and was taken off merely to lighten the boat, the court properly disregarded the question of general average.</p> <p>4. Abandonment. — To constitute an abandonment under a policy of marine insurance, so as to give the insured the right to claim the full amount of the insurance upon the ground of a total constructive loss, there must bo not only the intention to abandon, but a relinquishment by the owner of all right to the property. And although he may give notice to the insurer that he has abandoned the vessel, yet, if he continues to hold against the right of the insurer, and claim and use the property as his own, there is in fact no abandonment, and he can recover only what may in fact be his loss.</p> <p>5. Same. — Where the policy provides that there shall be no abandonment as for a total loss, unless the injury sustained bo equivalent to fifty per centum of the agreed value of the policy, if in all probability the expenditures that must be incurred to deliver the vessel from her peril will bo moi-e than half her value, and her peril be such that a considerate owner, if uninsured, would not attempt to save her because of such groat expense, then there may be an abandonment. And the fact that the vessel is subsequently saved will not defeat the claim.</p> <p>6. Amended Answer. — The court properly rejected an amended answer, pleading that the policy sued on had been canceled prior to the accident, as the action had been pending nearly two years and the pleading was not offered until the close of the testimony, the decided weight of which tended to show that the policy was still in force.</p>

Case 20 — PETITION EQUITY APPEAL PROM DAVEISS CIRCUIT COURT. 1. The assignment from Levy to Baer was not fraudulent, and the title to the goods passed to him and from him to Goldnamer. But if fraudulent there is no sufficient evidence that Goldnamer was cognizant thereof. 2. The question is res judicata. 3. The creditors participated in the distribution, and thereby ratified the assignment and sale thereunder. 4.

- Case 21 — PETITION ORDINARY APPEAL PROM MARION CIRCUIT COURT. If, when a railroad company provides a commodious platform for persons to alight, and they, without any consent on the company’s part, or any necessity for so doing, alight elsewhere, they have no right to hold the company responsible for accidents that would not have occurred had they alighted on the platform. (Forsythe v. Boston and Albany R. Co., 103 Mass, 510; Pennsylvania R. Co. v. Tebe, 33 Pa.

<p>1. In an action to quiet title to land it is not necessary that the-petition should.aver the nature of the adverse-claim and point out its-defects. And although the statements of the petition do not amount, to an averment that the defendant is claiming adversely, yet if the-answer sots forth the nature of defendant’s claim and shows that it is adverse, this cures the defect in the petition.</p> <p>2. To maintain an action to quiet title the plaintiff' must have both the possession and the legal title.</p> <p>8. Adverse Possession. — A tenant may, by open and notorious renunciation of his allegiance to his landlord, hold adversely to him. And in like manner an agent may manifest an intention to hold for himself and against his principal.</p> <p>Whore the widow of a debtor, as she was leaving for a distant State, placed the creditor of her deceased husband in possession of a tract of' land which belonged to the decedent under an agreement that she would soon send him what was owing him or a deed to the property, it is to be presumed that after a reasonable time his possession was not friendly, but adverse. But in addition to that presumption there is positive proof in this case that the creditor, after a few years, began to-hold and claim the property adversely, and that his adverse claim was-open, notorious and continued for such a length of time as to ripen into a perfect title prior to the bringing of this action by his heirs to quiet the title.</p> <p>’ 4. The continuity of plaintiffs’ possession was not in law broken by the unlawful entry of another, as they at once sued out a writ of forcible entry and were again put into possession under the judgment of the court.</p> <p>5. The attempt of the defendants in an action to quiet title to take possession pending the action can not affect the possession which the plaintiff had at the bringing of the suit.</p> <p>6. The burden is upon one wi-io claims land under a tax sale to prove that taxes were duly assessed, which were a charge upon the land, and that the successive steps necessary to a lawful sale thereunder were taken.</p> <p>7. Personal Judqment Against Married Wom an. — It is error to render personal judgment against a married woman for cost.</p>

<p>1. Interest — Estoppel.—Wherever one person has the money of another in his possession and uses it as his own, ho is chargeable with interest for its use.</p> <p>Where ponding a contest between two creditors as to which has the superior lion on certain property of their common debtor, the property is, by consent of all parties, ordered to bo sold and the proceeds paid to one of the creditors, subject to the order of court, and it is finally adjudged that the other creditor has the superior lion, the creditor having the use of the fund, pending the litigation, is liable to the other.creditor for interest thereon, - although the fund was paid to him by consent of all parties in interest.</p> <p>2. Same — -Subrogation.—Where one creditor had such a claim against the other for interest, and had also a lien upon the property of another which he had the right to subject and did subject to the payment of the balance of the debt after exhausting the property in litigation, the person whoso property was thus subjected is entitled to be subrogated to his claim against the other creditor for interest.</p> <p>A. 0. ELLIS FOR APPELLANTS, THE SHINKLE CHILDREN.</p> <p>A party who gets the use of a fund in dispute must account for the interest. (Breckinridge v. Hoke, 4 Bibb, 273; Taylor v. Knox’s Heirs, 1 Dana, 308.)</p>

Case 24 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. The franchise of the Bridge Company to conduct the business which it was authorized by its charter to do, was exclusive. 2. The use of a public highway by a street railway can only bo made by legislative grant, supplemented by the consent of the local authority controlling such highway; and a highway belonging to a private corporation, can only be so used by its consent. 3.

Case 25 — PETITION EQUITY APPEAL PROM TAYLOR CIRCUIT COURT. The lion ought not to have been given on the homestead to pay appellee’s judgment for $137.60, or any part of it. If the appellee ever had any lien it was waived by the execution of the note upon which judgment was rendered. Besides,'there never was any claim set up under the mechanic’s lien law.

<p>Usury — Limitation.—All payments on a debt should be first applied to the principal and legal interest, and so long as any part of the principal and legal interest remains unpaid, the debtor may elect to have any payments he has made on the debt, at any time in the past, applied in that way, although the money was paid as usury. And this is true, although the note evidencing the debt may have been renewed from ■ time to time since the payments were made, and although there may hare been a change of a part of the obligors. The limitation of one year, which applies to actions to recover’usury paid, does not apply.</p>

<p>1. Contested Election — Appeal.—TJpon appeal to the circuit court from the decision of a contesting election board, 'the court may grant leave-to either party to supply material and necessary proof that the contesting board had erroneously denied a reasonable opportunity to procure. But with that exception no other proof can be heard by the circuit court than that which was heard by the contesting board.</p> <p>2. Begistration Law.. — Legislative power exists to enact a registration law either local or general in its character,- no unreasonable or illegal conditions being imposed upon those having the right to vote.</p> <p>■3. Same. — Under the Christian county registration law, if a person who is entitled to vote obtains a certificate of registration, and has his vote duly recorded, it is legal although the certificate may have been procured by fraud, provision being made for punishing him by imprisonment, and not by disfranchisement.</p> <p>4. Same. — Under a special act of the Legislature establishing an additional voting place in an existing precinct, it is not necessary that the vote of one residing in that precinct should be cast at the identical voting place where he registered.</p> <p>■5. Same — Registration after Hour Prescribed. — Testimony about a question of time being generally uncertain and conflicting, especially when reckoned by minutes, a court should not take cognizance of a complaint that voters were permitted to register after the time of day prescribed by law, except whore there has been a palpable or flagrant disregard of the law by the officers.</p> <p>6. Same — Naturalization.—An alien who has enlisted in the army or navy and been honorably discharged therefrom, may become a citizen of the United States without any previous declaration of his intention to become such, upon taking the oath of allegiance and of abjuration of allegiance to any other sovereign, provided the court admitting him be satisfied by competent proof of his having been honorably discharged from the service of the United States, of his good moral character, and previous residence of one year. And if he in fact made the required oath of present allegiance and abjuration, and that fact is stated in the certificate, it is immaterial that the record shows the declaration to have been one of intention merely. Nor is it indispensable that there should be a formal order of court admitting him to become a citizen. And, although the record does not show that he filed a certificate or made other proof of his honorable discharge from the service, yet after long and undisputed exercise by him of the right of a.citizen, a reasonable presumption arises that the required proof was made, evei-y other requirement of the statute having been complied with.</p> <p>7. A vote obtained by a bribe is a bad vote and should, upon proper proof, be rejected by a tribunal trying a case of contest, a judgment of conviction for the offense not being necessary in order to exclude the vote. Nor is it indispensable that there should bo other evidence of the — bribe than the testimony of the voter himself.</p> <p>' 8. Crimes Which Deprive One of Right of Suffrage. — Under Section 4 of Article 8 of the Constitution of 1850, and Section 15, Article 12, Chap. 33, General Statutes, enacted pursuant thereto, a person convicted of any crime or high misdemeanor is deprived of the right of suffrage. Therefore, persons convicted of the offenses of malicious shooting and malicious cutting, which are made felonies by statute, are not entitled to vote.</p> <p>9. Where the Constitution imperativety requires certain laws TO BE passed, in construing a statute enacted pursuant to that requiremont, a reasonable presumption arises that tho , Legislature intended such meaning should be given tho language of the statute as is necessary to faithfully carry out the mandate of the Constitution.</p> <p>10. Exclusion from Suffrage. — A conviction of crime in a Federal court has the effect to exclude the person convicted from office and suffrage in this State as if convicted in a court of this State of a crime against its statute.</p> <p>11. A PARDON BY THE PRESIDENT OF THE UNITED STATES RESTORES THE'. right of suffrage to one who has been deprived of the right by a ,_conviction of crime in a Federal court.</p> <p>12. Correction of Mistake in Recording Vote. — In an election contest the court will not undertake to add to the record and count votes it does not show were cast, or to take from the record votes it shows were actually cast. And while the court may correct a mistake of the clerk in recording for a candidate a vote which was cast for his opponent, it does not necessarily follow from the fact that a mistake was made that it was tho mistake of the clerk and not of the voter; and whether an alleged mistake was made by the clerk being a question of fact, this court will not reverse the finding of the contesting board and the circuit court that the evidence is insufficient to overcome the presumption of the verity of the record.</p> <p>13. Power of County Court to Change Election Precincts. — Every order of a county court for the transfer of the voting place of a person without changing the division line of the two precincts so as to include his place of residence within the boundary of the one to which the transfer is attempted to bo made is absolutely void. And while it is not indispensable for precinct lines to be fixed by instrumental survey and measurement, they should be so fully and clearly described by roads, water courses, adjacent farms or other known objects as that their location will be certain, or capable of being made certain.</p> <p>An order that transfers the voting place of a person by changing the division line so as to include his farm in the precinct to which he applies to bo transferred is valid, and so is an order providing for change of the line of a designated precinct so as to include the person mentioned, as the farm or place of residence of such person is to be treated as tho object by which the new line is intended to bo described.</p>

Cash 28 — PETITION EQUITY APPEAL PROM TAYLOR CIRCUIT COURT. 1. The county superintendent had no right to require appellants to litigate-with the teachers and officers of Taylor Academy. Section 30 of thcOivil Code is not applicable to this action. 2. The act incorporating the Taylor Academy violates section 37 of article-2, of the old Constitution, because it relates to more than one» subject,, and only one of the several subjects to which it relates is expressed m the title.

Case 29 — PETITION EQUITY APPEAL PROM PIKE CIRCUIT COURT. The contract sued on is enforceable. The lower court did right in sustaining demurrer to the petition. First: Because there is no description of the land in the petition or amended petition, or in the exhibits filed with the petition. Second: Because the contract lacks mutuality, the essential element, of a binding contract. (Fry on Specific Performance, Bd ed., p. 214,. sec. 440; Pomeroy’s Eq.

<p>Case 30 — INDICTMENT -</p> <p>APPEAL PROM METOALPE CIRCUIT COURT.</p> <p>1. Instruction 5, given hy the court, is in conflict with the law of self-defense as laid down hy this court. It in effect excludes from the jury the evidence as to threats made hy the deceased and as to his reckless and bloodthirsty character. (Young v. Commonwealth, 6 Bush, 312; Bohannon v. Commonwealth, 8 Bush, 481; Holloway v. Commonwealth; 11 Bush, 344; Oder v. Commonwealth, 80 Ky., 32.)</p> <p>2. Instruction “ C ” asked by appellant is, in accordance with the law, as laid down hy this court, and should have been given. (Bohannon v. Commonwealth, 8 Bush, 481; Holloway v. Commonwealth, 11 Bush, 344.)</p> <p>3. A new trial should have heen granted, because of improper statements made hy the Commonwealth’s Attorney in his closing argument to the jury.</p> <p>4. The action of the sheriff in delivering to the jury the clothing worn hy the deceased at the time he was killed was improper, and was prejudicial to appellant.</p> <p>J. The court erred in allowing any portion of the record of the trial for robbery to be road, except the indictment and indorsement thereon, showing that the indictment was obtained on Burk’s testimony; and erred in allowing oral testimony to show that the offense of robbery had been committed; and the court orrod in not, by instruction, confining the effect of the evidence to the establishment of a motive, on behalf of appellant, for the killing charged. (State v. Lewis, 19 Oregon, 481; People v. Sharp, 107 N. Y., 427; s. c. 1 Am. St. Pop., 809; Pinckord v. The State, 13 Texas App., 478; Commonwealth v. Shepherd, 1 Allen 581.)</p> <p>2. The qualification of the instruction as to self-defense was error, because it deprived appellant of the right of self-defense at the time of the killing. (Terrell v. Commonwealth, 13 Bush, 255.)</p> <p>3. The court erred in permitting a witness to testity as to a threat made hy appellant to kill some person not designated.</p> <p>1. The court erred in permitting the State to prove facts tending to show that appellant was guilty of the offense of robbery.</p> <p>2. The court should have granted a new trial, because one of the jurors had formed and expressed an opinion as to appellant’s guilt prior to the trial.</p> <p>3. The regular jury should have been adjourned over to the special term at which appellant was tried and they should have been exhausted before other jurors were selected.</p> <p>1. Instruction 5, which is complained of, contains the law of self-defense as laid down by this court. (Kennedy v. Commonwealth, 14 Bush, 340; Parris v. Commonwealth, 14 Bush, 362; Parsons v. Commonwealth, 78 Ky., 102; Lightfoot v. Commonwealth, 80 Ky., 516; Oder v. Commonwealth, 80 Ky., 32.)</p> <p>2. The action of the court in allowing the jury to take to their rooms the clothing worn by the deceased when he was killed, and a diagram of the grounds and surroundings used at the trial, is not a reversible error. (Benge v. Commonwealth, MS. Op., Sept. Term, 1891; Puckett v. Commonwealth, MS. Op., Sept. Term, 1891.)</p> <p>3. The record of the Barren Circuit Court, showing the indictment of appellant for robbery, was competent to show motive. (Pranklin v. Commonwealth, 18 S. ~W. Rep., 562.)</p>

<p>1. Liability of Executor for Acts of Co-executor. — If two executors execute a joint bond for the faithful discharge of their duties, each is liable for the acts of the other falling within its conditions. And while as between themselves each may be regarded as surety for the other, yet as to their sureties, the creditors and distributees each is bound for the other as a principal.</p> <p>The case of Collins, etc., v. Carlisle’s heirs, etc., 7 B. M., 13, in so far as it holds otherwise, is overruled.</p> <p>2. Compensation oe Executor — Right of Surety to Subrogation.— Where an executor is entitled to compensation for his services, co-executors or sureties who are sought to be made liable for his default, are entitled to be subrogated to his claim for the purpose of reducing theit liability; and he can not deprive them of that right by electing, after he becomes insolvent, not to assert the claim.</p> <p>3. The compensation oe executors can not exceed 5 per cent, upon the estate administered. And this is true in this case, although the executors were required to sell the real estate and invest the share of one of the devisees in profitable securities and pay to her the profits until she reached her majority, as they were responsible all the time as executors, and so denominated themselves in their settlements.</p>

Case 32 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The verdict should have been for appellant upon the facts, and the court erred in refusing a new trial on that ground. Under our peculiar practice, it may be erroneous to instruct peremptorily upon the plaintiff s evidence, and equally erroneous to refuse a new trial if the jury rests a verdict upon such evidence. (Buford v. L. & N. R. Co., 82 Ky., 287.) 2.

Case 33 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. When Maize bought the mare at judicial sale, he acquired a good title« to the foal she was then carrying. The doctrine of Partus Sequitur Ventrem is in force in Kentucky. (2 Blaekstone, 390; Hughes v. Graves 1 Litt., 317; Bernard’s Ex’r v. Chiles, 7 Dana, 22; Eorman v. Procter, 9 B. M., 126; Osborn v. Taylor, 9 Ky. Law Rep., 495; Eowler v. Merrill, 11 Howard, 396; Backhouse’s Admr. v. Jett., 1 Brock.

<p>Case 34 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE CHANCERY COURT.</p> <p>1. A voluntary settlement can not be set aside in the absence of clear proof of fraud or undue influence. (Huguenin v. Baseley, .14 Ves., 290; Toker v. Toker, 31 Beav., 629; Villers v. Beaumont, 1 Vern.,. 100; Lumley v. Desborough, 22 L. T. (N. S.), 597; Profit v. Lawless, L. B., 2 P. & ID., 462; Jennings v. Broughton, 17 Bov., 239; Smith v. Kay, 7 H. L., 750; Mowattv. Blake, 31 L. T., 287.)</p> <p>A gift obtained by fraud or undue influence can not be set aside if the donor has acquiesced in the transaction after becoming aware of his right to sot it aside. (Hoghton v. Hoghton, 15 Beav., 278; Wright v. Verplank, 2 K. & J. 1; Crozier v. A cer, 7 Paige, 137; McNaughton, v. Partridge, 11 0., 223; Kerr on Fraud, 296.)</p> <p>2. The rule as to priviledged communications does not apply as to the testimony of Samuel McKee. (Civil Code, sec. 606, sub-sec. 5; Taylor on Evidence, sec. 928; Bussell v. Jackson, 9 Piare, 396; Caldwell v-Davis, 10 Col.; 1 Greenloaf on Evidence, 239, 240; Maehette v. Wan-less, 2 Col., 175; Blackburn v. Crawford, 3 Wall., 175; Gaul v. Tower, 85 Mo., 249; Graham v. O’Fallon, 4 Mo., 358; Hager v, Schindler, 29 Cal., 63; Hatton v. Robinson, 14 Pick., 416; DeWolfv. Streater, 26 111., 230; Bandall v. Yates, 48 Miss., 689; Burns v. Foots, 15 111., 50; Corse v. Swan, 30 Ver., 6; Bussell v. Jackson, 15 Jurist.)</p> <p>1. The confidential relation existing between the parties raises a presumption of fraud which has not been overcome. (Bigelow on Ph-aud, pp. 269,270,271 and 374; Story’s Eq. Jur., sec. 310; 11 Lawyers’ Bop. Ann., 65; Stewart on Marriage and Divorce, 28; Pierce v. Pierce, 71 N. Y, 154; Bussell’s Appeal, 75 Pa., 269; 2 Lea, 126; 92 Pa., 265; 71 Ind., 255; Eh-azier v. Bass, 66 Ind., 1; Tarbell v. Tarboll, 10 Allen, 278; Taylor v. Bickman, 1 Bush, Eq. (N. C.), 278; Wood v. Chit-wood, 12 Cent. Bep., 248; Woodruff v. Clark, 42 N. J. L., 198; Gould v. Gould, 35 N. J, Eq., 37, 562; Lane v. Lane, 76 Mo., 525; Carleton v. Lovejoy, 54 Me., 445; Wing v. Merchant, 57 Me., 383; Jennings v. Davis, 31 Conn., 134; Lloyd v. Pughe, L. B., 8, ch. 88; Be Briton’s Estate, L. R., 17 ch. Div., 416; 2 Story’s Eq. Jur., 1375; Fishor v. Bishop, 10 Cent. Bep., 707; s. c. 108 N. Y., 25; Weller v. Weller, 112 N. Y., 655; Jones v. Bolles, 9 Wall., 364; Adkins v. Dick, 39 H.S.(14 Pet.), 114; 15 Wall., 548; 14 Vos. Jr., 273; 6 Ves. Jr., 266; Be Smith, 95 N. Y., 516; Haydock v. Haydock, 34N. J. Eq., 570; Ken-on Fraud and Mistake, p. 183; Perry on Trusts, 197.)</p> <p>2. The objection to the tostimany of Samuel McKee must be sustained. (Civil Code, sec. 606, sub-sec. 5;)</p> <p>1. If Milly O’Bannon caused the deed to be made under the belief that Carter was her nephew, it should be remodeled. It is equally clear that if Carter was her attorney, or had so recently been so as to exercise a controlling influence over her, the deed should be remodeled. (Bigelow on Fraud, vol. 1, pp. 263 and 373.)</p> <p>2. The testimony of Samuel McKee, as to communications made to him by his client, was properly excluded. (Civil Code, sec. 606, sub-sec. 5; Greenleaf’s Evidence, vol. 1, sec. 241.)</p> <p>1. The confidential relation existing between Milly O’Bannon and Carter makes the conveyance to him, under the circumstances of this case, absolutely void. (Huguenin v. Basely, W. & T. Leading Cases Eq., vol. 2, Ft. 2, p. 122; Story’s Eq. Jnr., secs. 307, 311 and 410; Harris v. Tremenber, 15 Ves., 401; Sharswood on Prof. Ethics, 109; White v. Smith, 51 Ala., 405; Hoghton v. Hoghton, 15 Beav., 288; Gibson v. Joyes, 6 Ves., 268-278; Bigelow on Fraud, 269; Adams’ Equity, 184; Pomeroy’s Eq. Jur., secs, 960 and 1052; Morgan v. Minett, L. B., 6 ch. Div., 638; Hatch v. Hatch, 9 Vos., 292; Mills v. Mills, 26 Conn., 213; Hawley v. Cramer, 4 Cowan, 717; Mottv. Harrington, 12 Vt., 199; 6 Hand (N. V.), 51; 11 Sickles (N. Y.), 32; James v. Langdon, ■7 B. M., 195; Bispham’s Eq., 213; Beard v. Campbell, 2 Mar., 661.)</p> <p>2. What Milly O’Bannon said to Samuel McKee, her attorney, in reference to drafting the deed, is incompetent as evidence. (Civil Code, sec. 606, sub-sec. 5; Bigelow on Fraud, sec. 186; Bice v. Bice, 14 B. M., 416.)</p>

<p>Case 35 — PETITION EQUITY</p> <p>APPEAL PROM WOLPE COURT OP COMMON PLEAS.</p> <p>A lien does not arise in favor of one who advances money to the vendee at his request for the payment of a part of the purchase money. (Jones on Liens, vol. 2, sec. 1067; Chapman v. Abrahams, 61 Ala., 108; Gray v. Biard, 4 Lea., 212; Gaines, &o., v. Casey, &c., 10 Bush, 93; Bank of Hopkinsville, &c., v. Rudy, 2 Bush, 331; Reid, &c., v. Jackson, 6 Ky. Law Rep., 743; Cecil v. Aud, 7 Ky. Law Rep., 298; Anderson v. Griffith, 55 Mo., 254; 18 lnd., 422 ; 26 Ind., 364; Haskell v. Scott, 5 Cent. L. J., 370.)</p> <p>Unless Puckett had a lien for the payment of his note, it can avail him nothing, even if Trimble had notice that Puckett claimed a lien before he purchased the land. (Chapman, &c., v. Stockwell, 18 B. M., 654.)</p>

Case 36 — PETITION EQUITY APPEAL FKOM PAYETTE CIBCTTIT COTJKT. 1.

Case 37 — PETITION EQUITY APPEAL PROM GRAVES COURT OP COMMON PLEAS. 1. The assessment is void because not completed and returned within the time prescribed by the charter. (Charter of Mayfield, acts 1883-4, p. 759.) 2. The assessment should have been made under the State law in force at the time, and not under the law .in force prior to March 17, 1886. In making an assessment the statute must he observed with particularity.

<p>Case 38 — INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT.</p> <p>1. The court erred in refusing a continuance upon the ground of newly discovered evidence.</p> <p>2. The use of the words “ considerable provocation,"’ in the instruction to' the jury, was misleading and prejudicial. (Payne v. Commonwealth,. 1 Met., 371; Donnellan v. Commonwealth, 7 Bush. 677; Campbell v. Commonwealth, 88 Ivy., 402.)</p> <p>"W. J. HENDRICK, Attobney-Genebal, rob appellee.</p> <p>No provocation can render homicide justifiable, or even excusable. The least it can amount to is manslaughter. (Cottrell v. Commonwealth, MS. Op. Sept. Term, 1891.)</p>

<p>1. Railroad Company Enjoined from Making up Trains on Street —Right of Court to Limit Number of Trains — While a railroad company may he enjoined from purposely stopping, switching or making up trains on a public street, as that is not a legitimate use of the street, a court has no power to prescribe, as a condition precedent of the occupation and use of a public street by a railway company under legislative authority, the number of freight trains that may pass over its road. Whenever any person has been hindered or obstructed by the unreasonable use by the company of its road, the remedy may he afforded if applied for, hut a hard condition can not be put upon the business of the company in anticipation of an injury to abutting property owners, that may never occur.</p> <p>2. An order confining a railroad company to a single track upon a particular street was proper, there -being nothing to show any necessity for a double track.</p> <p>3. Judgment Prescribing Gauge of Road. — The company can not complain that the judgment prescribes that the road shall be of a certain gauge, when the gauge prescribed is the one the company intended to adopt.</p> <p>4. Court may Prescribe Mode of Laying Down Rails. — As the particular mode of laying down the rails prescribed in the judgment was intended to secure, as far as practicable, safe passage of vehicles over the defendant’s track, and it does not appear that compliance therewith will hinder the free and safe movement of defendant’s trains, it can not complain of that part of the judgment.</p>

Case 40 —MANDAMUS APPEAL EEOM EBANKLIN CIKCTJIT COUET. The discretion of an officer in deciding upon the sufficiency of a surety on a bond can not be controlled by the circuit court, by mandamus. (Arberry v. Beavers, 6 Texas, 457; s. c. 55 Am. Dec., 791; 2 Texas; 357; 3 Texas, 51 and 58; 4 Texas, 400; Hullv. Oneida, 19 Johns., 259; Ricev. Oommissioners, 13 Pick., 225; Dane v. Derby, 89 Am. Dec., 728; Ex rel.

Case 41 — PETITION OBDINABY APPEAL FROM ROBERTSON CIRCUIT COURT. 1. The statute does not require that the sheriff’s county levy bond shall be taken by the county levy court. The court presided over by the county judge alone is the proper court to take the bond. (Thompson v. Commonwealth, 10 Ky. Law Bep., 118; Gen. Stats., chap. 28, art, 2, sec. 4.) 2.

<p>1. Construction of Will — Life Tenants — Equitable Conversion. —A testator having, by his will, given the executors full power to sell his real and personal estate and re-invest the proceeds so as to be safe and produce income, and then directed that the net income be paid to certain persons for life, remainder to others, the life tenants are only entitled to income actually realized, and not to any part of the principal as compensation for the delay in converting the unproductive estate. The doctrine of equitable conversion will not be applied, it being manifest from the entire will that it was the testator’s intention that nothing should be allowed the life tenant, save actual income. If, however, any taxes upon, or sums by way of improving, the unproductive real estate have been paid out of the income of the other estate, the same should be allowed the life tenant out of the sales of the unproductive estate.</p> <p>2. Eight of Devisee of Stock to Dividend Earned Before Testator’s Death. — Dividends, whether of stock or payable in money, are non-apportionable, and must be considered as accruing in their entirety as of the date when they are declared. Therefore, when the stock is devised to one person for life, remainder to others, if a dividend is declared after the life tenancy has begun the whole of it belongs to the life tenant, although a portion of it may have been earned before the death of the testator.</p> <p>3. Life Tenant Entitled to Dividend Declared in Stock. — -If a dividend declared by a corporation be, in fact, a profit, it should, although declared in stock, be held to be income, and therefore is not to be treated as a part of the capital, but paid to the life tenant. But this rule should not be held to embrace a dividend which was not declared out of earnings, but out of profits made by the sale of a piece of real estate that the corporation owned at the testator’s death, and which is, therefore, capital and not income.</p> <p>4. The privilege given by a corporation to its stockholder to take additional stock at par, when the stock is worth more, can not be regarded as income, and, therefore, does not belong to the life tenant.</p> <p>•5. Where trustees purchase stocks by way of re-investment at more than their par value, the cost of the stocks is to be charged to the principal without any deduction from the life tenant on account of" the excess above the par value.</p> <p>6. The income should bear the annual expense oe its collection and disbursement, but the expense of conversion and re-investment, being for the benefit of both the remainderman and the life tenant, should be apportioned.</p>

<p>Cask 43 — PETITION OBDINABY</p> <p>APPEALS FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The word “ incumbrances,” in fire insurance policies, refers only to such incumbrances as are created by the act of the parties, not to those created by law. .(Bailey v. Homestead Fire Ins. Co., 9 Ins. Law Jour.,. 187; s. c. 80 N. Y., 21; Phoenix Ins. Co. v. Pickel, 18 Ins. Law Jour., 592; s. c. 119 Ind., 155.)</p> <p>The attachment obtained by Mrs. Merriwether did not effect any change either in the title or the possession of the property. (Oldham v. Scrivner, 3 B. M., 579; Phoenix Ins. Co. v.' Lawrence, 4 Met., 9;. Manhattan Ins. Co. v. Stein, 5 Bush, 656.)</p> <p>2. Upon a sale and transfer of property covered by a policy of insurance, and an assignment of the policy to the purchaser duly assented to by the company, a new and original contract of insurance arises between the insurance company and the assignee, which the latter may enforce without regard to what may have occurred prior to the assignment. (Continental Ins. Co. v. Munns, 19 Ins. Law Jour., 57; Ellis v. Ins. Co. of North America, 171ns. Law Jour., 205; s. c. 32 Fed. Bep., 646; Pitney v. Glenn’s Fall Ins. Co., 4 Ins. Law Jour., 765; s. c. 65 N. Y., 15 ^ Dwelling House Ins. Co. v. Gould, 134 Pa. St., 570; Shearman v. Niagara Ins. Co., 46 N. Y., 526; s. c. 7 Am. Rep., 380; Wood on. Insurance, sec. 116.)</p> <p>3. In the absence of any interrogatory on the subject, the non-disclosure of the fact that the title to the insured premises was in litigation does not avoid a policy of insurance. (May on Insurance, 2d ed., sec. 284; Lycoming Pire Ins. Co. v. Haven, &c., 7 Ins. Law Jour., 456; s. c. 95 IT. S., 249; Agricultural Ins. Co. v. Yates, 10 Ky. Law Rep., 984; Hartford Pire Ins. Co. v. Haas, 8 Ky. Law Rep., 610; s. c. 10 Ky. Law Rep., 573, and 87 Ky., 531; Hill v. Lafayette Ins. Co., 2 Gibbs-(Mich.), 476; Cheek v. Columbia Pire Ins. Co., 4 Ins. Law Jour., 99; Kenton Ins. Co. v. Wigginton, 89 Ky., 330.</p> <p>4. The words “entire, unconditional and sole ownership,” as used in fire-insurance policies, do not refer to incumbrances but to the character and quality of the title: i. e., whether it is held in fee-simple or by leasehold, orlby Iife;estate, etc. (Dolliver, &c., v. St. Joseph P. & M. Ins. Co., 9 Ins. Law Jour., 289; s.c.128 Mass., 315; Richardson’s Adms’r. v. German Ins. Co., 12 Ky. Law Rep., 38; Judge v. Conn. Pire Ins. Co., 11 Ins. Law Jour., 843; s. c. 132 Mass., 521; Ellis v. Ins. Co. of North America, 17 Ins. Law Jour., 205; s. c. 32 Ped. Rep., 646; Manhattan Pire Ins. Co. v. Weill & Ullman, 6 Ins. Law Jour., 526; s. c. 28-Gratt., 389; Wooddy v. Old Dominion Ins. Co., 9 Ins. Law Jour., 285; s. c. 31 Gratt., 362; Priezen v. Allemania Pire Ins. Co., 16 Ins. Law Jour., 513; Imperial P’ire Ins. Co. v. Dunham, 17 Ins. Law Jour.,. 401; s. c. 117 Pa. St., 460; Parmers’ Mut. Eire Ins. Co. v. Pogelman,. 6 Ins. Law Jour., 192; s. c. 35 Mich., 481; Monroe County Mut. Ins. Co. v. Robinson,'7 Ins. Law Jour., 636; Security Ins. Co. v. Bronger,. 6 Bush, 146; Parmers’ and Drovers’ Ins. Co. v. Curry, &c., 13 Bush,. 312; Germania Ins. Co. v. Rudwig, &c., 80 Ky., 223; Ky. Mut. Ins. Co. v. Harrison, 7 Ky. Law Rep., 43; Kenton Ins. Co. v. Wigginton,. 89 Ky., 330; Hartford Eire Ins. Co. v. Haas, 8 Ky. Law Rep., 610;, Agricultural Ins. Co. v. Yates, 10 Ky. Law Rep., 984.)</p> <p>6. Conveyances, although fraudulent as to creditors, are good as between the parties. (Martz v. Pfeifer, 80 Ky., 602; Dorsey v. Phillips, &c.,. 84 Ky., 224; Crafts v. Union Mutual Pire Ins. Co., 36 N. H., 44; ■ McLean, &c., v. Hess, &c., 16 Ins. Law Jour., 227; Pence v. Make-peace, 65 Ind., 345; Le Rose v. Wilmarth, 9 Allen, 382; Nipps’ Appeal, 75 Pa. St., 472; Bernheim v. Beer, 56 Miss., 149.)</p>

Case 44 — PETITION OBDINABY APPEAL PROM KENTON CIRCUIT COURT. 1. As to the city of Covington, Eisele was a mere servant. The city reserved the entire control over the manner of doing and shaping every part of the work. In such cases the relation of independent contractor does not arise. (City of Cincinnati v. Stone, &e., 5 Ohio St., 38-42.)- 2.

Case 45 — PETITION OEDINABY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. The owner of land adjacent to the lands of another has no right to remove the earth and thus.withdraw the natural support of his neighbor’s soil; . and if he does, lie is liable for damages.

<p>Case 46 —INDICTMENT</p> <p>APPEAL FROM MADISON CIRCUIT COURT.</p> <p>1. The statute under which appellant was tried and convicted is unconstitutional, because it inflicts a cruel punishment. (Old Constitution, art. 13, sec. 17.)</p> <p>2. The indictment is too indefinite. It is not sufficient to charge that a game has been set up, conducted and carried on without stating where it was set up, carried on or conducted.</p> <p>3. It was error to instruct the jury that they were authorized to find appellant guilty if they believed he set up or conducted a game for compensation “ in any form whatever.” The addition of the words quoted was unauthorized and prejudicial.</p> <p>1. The statute under which appellant was indicted is constitutional. (Commonwealth v. Burns, 4 J. J. Mar., 177; Ervine v. Commonwealth, 5 Dana; Ashlockv. Commonwealth, 7 B. M.; Hinkle v. Commonwealth, 4 Dana; Commonwealth v. Avery, 14 Bush; Cheek v. Commonwealth, 79 Ky., 359; Commonwealth v. Simonds, 79 Ky., 618.)</p> <p>2. The indictment follows the language of the statute and is good.</p> <p>3. The instruction as given by the court followed closely the language of the statute and accurately stated the law of the case to the jury.</p>

Case 47 —INDICTMENT APPEAL PROM NICHOLAS CIRCUIT COURT. 1. The boundary line between Nicholas and Eobertson counties is in the center of the turnpike road called for as one of the boundaries in the legislative act creating the county of Eobertson. (Trustees of Hawesville v. Lander, 8 Bush, 679; 2 Devlin on Deeds, pp. 339, 340.) 2.

<p>Case 48 — MOTION</p> <p>APPEAL FROM BATH CIRCUIT COURT.</p>

<p>Case 49 —INDICTMENT</p> <p>APPEAL PROM KNOX CIRCUIT COURT.</p> <p>1. N o conspiracy is established against defendants'nor any of them to do any unlawful act, and, therefore, any statement made by JohnW. Baker, Mariah Baker, or any party jointly indicted and not made in the presence of appellant was incompetent. (Starkie on Evidence, vol. 2, p. 400.)</p> <p>2. The court should have given an instruction telling the jury that appellant had a right to protect his property, and if, in attempting to do so,, deceased or those with him put appellant in danger of death or great bodily harm, appellant had a right to defend himself.</p> <p>1. To prove a conspiracy the acts, declarations and conduct of the alleged' co-conspirators are not competent until the conspiracy has been proved aliunde. (Greenleaf on Bvid., sec. Ill; Metcalfe v. Conner, Litt. Sel. Cas., 497; Miller v. Commonwealth, 78 Ky., 15; Wright v. Commonwealth, 85 Ky., 123; People v. Parker, 67 Mich., 225; 4 Am. &. Eng. Bnc, of Law, 631.)</p> <p>2. As there is no evidence competent or incompetent of a criminal conspiracy, no instruction on conspiracy ought to have 'been given. (Sparks v. Commonwealth, 89 Ky., 644.)</p> <p>3. There ought to have been a plain unequivocal instruction to the effect that defendant was not bound to retreat, buthad.a right to defend himself with all the force necessary to rid himself of the apparently impending danger, without diverting the minds of the jury by any suggestion of a conspiracy. (Estep v. Commonwealth, 86 Ky., 39; Wright v. Commonwealth, 85 Ky., 123; Sparks v. Commonwealth,. 89 Ky., 644; Tingle v. Commonwealth, 11 Ky. Law Bep., 224;, Herald v. Commonwealth, 12 Ky. Law Bep., 439.)</p> <p>It was the duty of the court to give the entire law of the case whether requested to do so or not. (Trimble v. Commonwealth 78 Ky., 176; Heilman v. Commonwealth, 84 Ky., 457.)</p> <p>4. A witness can not be cross-examined on an outside matter and then contradicted. (Civil Code, sec. 597; Kennedy v. Commonwealth, 14 Bush, 340; Loving v. Commonwealth, 80 Ky., 507; Crittenden v. Commonwealth, 82 Ky., 164.)</p> <p>1. It is not necessary to show the existence of a conspiracy by direct proof; it may bo shown circumstantially to exist, and the fact of its existence may be determined by the jury from the introduction in evidence of' any such circumstantial acts as those presented by this record, the only limitation being that the trial judge should not submit such facts to the jury unless they, in his opinion, amount to enough to tend to establish the fact of the conspiracy. (Greenleaf, sec. 111.)</p> <p>2. While it is not proper practice to cross-examine a witness upon a collateral point for the mere purpose of contradicting him later on, yet such was not the purpose of the cross-examination complained of here. The question was asked with the direct object of eliciting-facts that would materially afieet the weight of the witness’ testimony,, and he was only contradicted because it appeared he had answered falsely.</p>

<p>1. Construction oe Deed. — Under a deed in which “Julia James and her heirs ” are named as the parties of the second part and the granting clause of which recites that the party of the first part “hath granted, bargained and sold unto the said Julia A. James and her heirs” the-land described, habendum, “To have end to he. Id unto the said Julia A. James and her heirs and assigns forever,” Julia A. James takes a fee-simple title to the land conveyed and her children take no interest, the word “heirs” being used as a word of limitation and not as synonymous with the word children.</p> <p>2. Parol testimony is not competent to show that the word “heirs” as used in the deed was intended to mean children.</p>

Case 51 —INDICTMENT APPEAL PROM WEBSTER CIRCUIT COURT. The instructions, as given by the court, are crude in form and are wanting in the essentials of instructions for murder and manslaughter.

Case 52 — PETITION EQUITY APPEAL PROM MERCER CIRCUIT' COURT. 1. It was error to overrule demurrer on ground of defect of parties. As the notes sued on are assigned in blank and the blank is not filled, the legal title is still in the assignor. 2. The unreleased lien upon the land clouded appellant’s title and presented a perfect defense to the collection of the notes until it was released. -3.

Case 63 —INDICTMENT APPEAL EROM KNOTT CIRCUIT COURT. 1. The indictment charges two separate and distinct offenses and the Commonwealth should have been required to elect. (Gen. Stats., chap. 29, art. 7, secs. 1, 4.) 2. The indictment did not set forth the facts with sufficient certainty to apprise the defendant of the accusation against him or to constitute a bar to any subsequent prosecution for the same offense. (White v. Commonwealth, 9 Bush, 179.) 3.

Case 54 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. The circuit court had no jurisdiction of the action, the amount of plaintiffs claim being less than fifty dollars. 1. No appeal lies from a void judgment until there has first been a motion in the lower court to set it aside. (Civil Code, sec. 763.) 2. Has the circuit court jurisdiction of an original action to enforce a lien on land for a sum less than fifty dollars ?

Case 55 —INDICTMENT APPEAL FROM KNOX CIRCUIT COURT. The record does not show what the grounds for new trial were. The question therefore suggests itself whether appellant without a motion for new trial can prosecute an appeal to this court. This question has been considered hy this court in the following cases,: Harper v. Harper, 10 Bush, 447; McAllister v. Ins. Co., 78 Ky., 631; Helm v. Coffey, 80 Ky., 176; Henderson v. Dupree, 82 Ky., 678.

Case 56 — PETITION ORDINARY APPEAL EROM MASON CIRCUIT COURT. 1. Appellants arc the proper plaintiffs in this suit, notwithstanding they, in December, 1889, conveyed the property to another. (Chicago, &c., R. Co. v. Loeb, 59 Am. Rep., 341.) 2. If appellants had a cause of action growing out of the prudent operation of the road, it existed against whoever operated the road. (Opinion of Superior Court in L. & N. R. Co. v. Orr, 9 Ky.

<p>1. To CONSTITUTE A VALID CONTRACT FOR THE SALE OF LAND UNDER THE statute of frauds, the memorandum or note thereof should be so full that its meaning may bo ascertained and the contract enforced without aid of extrinsic verbal testimony, and if it be executory on both sides the terms or consideration should likewise appear independent of parol evidence.</p> <p>A writing executed by the vendor acknowledging receipt of the vendee of “ One hundred dollars, part of cash payment on lot 4, block - 9, N. E., in Middlosborough, Ivy., on following terms: $5,100, $2,500 cash, $1,181.25 in four months, $1,181.25 in eight months, and three company notes, $62.50 each, in one, two and three years,” is a sufficient compliance with the statute.</p> <p>2. The vendee did not forfeit his right to relief by his failure to make the entire cash payment of twenty-five hundred dollars at the time of the contract, for acceptance of one hundred dollars of that amount by the vendor’s agent simultaneously with the execution and delivery of the writing to the vendee shows the parties did not contemplate payment or tender of the whole amount presently. Moreover, time is not generally deemed in equity to be of the essence of such a contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. And in any view of the case the vendee had a reasonable time in which to make the complete cash payment, that had certainly not expired when he commenced this action, which was within ten days after date of contract.</p> <p>'3. Specific Performance. — While payment of the entire sum of twenty-five hundred dollars is a condition precedent of the vendee’s right to specific execution of the contract, yet, as the vendor was a non-resident of the State, had asserted his refusal to comply with the contract and placed the lot in the hands of an agent for the purpose of selling it to another party, these facts should be regarded as sufficient excuse». for not paying or tendering the residue of the twenty-five hundred dollars. And though the tender of the cash payment made in the petition does not amount to a deposit in court, yet, as the chancellor has it in his power to make such deposit a condition of granting relief, the failure should not be treated as sufficient ground for sustaining a general demurrer.</p>

Cash 68 — PETITION ORDINARY APPEAL EROM DAVEISS CIRCUIT COURT. 1. The court erred in giving appellees the burden. 2. The paper signed at the time the note was executed was obtained by the same fraudulent act that procured the execution of the note, and, therefore, does not constitute an estoppel. (Jaqua v. Montgomery, 33 lnd., 36; s. c., 5 Am. Rep., 108.) 1.

Case 59 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. Argued orally by Harvey Myers. No brief in record.

Case 60 — PETITION ORDINARY APPEAL PROM LESLIE COURT OP COMMON PLEAS. 1. The case submitted to the jury by the instructions is not the case made by the pleadings. The petition docs not allege plaintiff’s defeat for the Legislature as a cause of action, but the allegation is that the slanders complained were uttered “ for the purpose of destroying his character.” '2. The answer contains no such denial of the utterance of the slanderous words as the Code requires.

Case 61 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The judgment was not a consent judgment. 2. Neither an objection nor an exception to a final judgment is necessary. (Coffman v. Wilson, 2 Met., 543.) 3. Section 773 of the Civil Code does not give the city of Louisville the right to intervene in an action to which she is not a party, and collect taxes therein without pleading, motion or evidence. .

<p>1. Mortgage — "Waiver of Homestead and Dower. — Where a mortgage on land, which is signed and acknowledged by the wife of the mortgagor, contains apt words waiving her right of homestead and dower, it is not material that her name does not appear in the granting clause.</p> <p>2. Same- — Oonclusiveness op Judgment. — A judgment by default against husband and wife foreclosing a .mortgage executed by them, and ordering a sale of the homestead embraced therein, is binding on the parties, and can not he set aside at a subsequent term of the court upon the ground that the mortgage or the acknowledgment of it by the wife was void.</p> <p>3. The clerk’s certificate of the acknowledgment of a deed or mortgage can not he called in question, unless in a direct proceeding against the officer or his sureties, except for fraud of the party benefited, or mistake of the officer.</p>

Cask 63 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. Appellee was not competent to testify for himself concerning vcrbal statements and transactions with James 1?. Irvin, the payee of the note sued on, who was dead at the time said evidence was given. (Civil Code, sec. 606, suhsec., 2; Apperson’s Ex’or v. Exchange Bank, 10 Ky.

Case 64 — PETITION ORDINARY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The rule is that if the employer knew or ought to have known of the defect complained of he is liable; or when the employe has the right to depend upon the judgment of Ms employer as to the safety of the machinery, and there is negleefcin this regard, a recovery may he had. (Sturm v. Meyer, 12 Ky. Law Rep., .350.) 2.

<p>Case 65 — PETITION EQUITY</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p> <p>The only question in this case is, has Hobson been, or is he now, incommoded. in light or air ? If he is so incommoded, both the letter and. spirit of the covenants in the deeds of Graham & Co. are violated. Not only do these deeds and these covenants forbid anything to be done to Hob-son’s detriment, but time and prescription have worked out the problem definitely and settled this controversy. They have defined the meaning of the word “ incommoded ” as well as the height of this one-story. (High on Injunctions, sec. 547; Washburn on Basements and Servitudes, p. 654; side page, 495; 2 Washburn on Real Property, pp. 317, 322, 323-4-5.)</p> <p>W. B. SETTLE on same side cites the following additional authorities: 3 Am. Rep., 398; 10 Am. Rep., 545-6; 24 Am. Dec., 222; 3 Pomeroy’s Eq., secs. 1337, 1340, 1342, 1359; 80 Ivy., 391.</p> <p>The intent of the law is to favor progress, and to restrict the right of the grantee in a case like this no more than is necessary to give substantial effect to the easement fairly and liberally construed.</p> <p>The parties to the deeds in this case used the term “ one-story ” in view of the needs and demands of various times and purposes for which said property might be used, intending thereby to prevent any “ high building ” being erected there, and not to prevent any slight change such as has been made in the wall. ^ Devlin on Deeds, sec. 840; 20 Pick., 291; Ray v. Sweeney, 14 Bush, 1; Morrison v. Marquart, 24 Iowa, 35; Mullen v. Strieker, 19 Ohio St., 142; Haverstick v. Sipe, 33 Pa., St., 368.)</p>

<p>Case 66 — PETITION EQUITY</p> <p>APPEAL PROM ESTILL COURT OP COMMON PLEAS.</p> <p>The subject of the act of May 9, 1890, defining the boundary line of Estill county, is sufficiently expressed in the title. (Chiles v. Drake, 2 Met., 150; Phillips v. Cin. & Oov. Bridge Co., 2 Met., 222; Johnson v. Higgins, 3 Met., 569; Smith v. Cochran, 8 Bush, 112; Collins v. Henderson, 11 Bush, 74.</p> <p>As the Act of May 9, 1890, purporting to define the boundary line of Estill county, does not merely make certain that which was before uncertain, but establishes manifestly a new and different line whereby a large extent of territory is taken from Estill county and attached to another co.unty, the title is misleading and deceptive, and for this reason the court should declare the act unconstitutional.</p>

Case 67 — PETITION EQUITY APPEAL PROM ROCKCASTLE CIRCUIT COURT. 1. Defendants are, by the very nature of the case, but trustees for the holders of the legal title; and as donee of the lands for the benefit of the county, the county court has such an intei’est, standing as it does in place of the State, as authorizes it to sue for correction of abuses of the trust. (Acts 1834, p. 733; Acts 1834-5, p. 281; Acts 1855-6, vol. 2, p. 304; Acts 1859-60, vol. 2, p. 578.) 2.

Case 68 — MANDAMUS APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. Plaintiff had the right to sell and convey her cemetery lot. (Lantz v. Buckingham, 4 Lansing (N. Y.), 484.) 2. Though defendant be called a private corporation, nevertheless plaintiff is entitled to the writ of mandamus against it for the purposes prayed in her petition. (Maddox, &c., v. Graham & Knox, 2 Met. 65; Black.

<p>Statute op Frauds. — A receipt for purchase money executed by vendor to vendee, if it describes the land sold, is a sufficient memorandum of the contract to satisfy the statute of frauds. But as the receipt executed in this case contains no other description of the land than a reference to it as “ adjoining the MeKibly land,” it is not a sufficient memorandum of the contract to satisfy the statute, as there are two tracts of land which answer the desci’iption, and verbal testimony can not be resorted to for the purpose of determining which tract is referred to.</p>

<p>Case 70 —INFORMATION</p> <p>APPEALS PROM LOUISVILLE CITY COURT.</p> <p>1. The demurrer to the warrant should have been sustained because the ' affidavit stated mere conclusion's and not facts.</p> <p>2. The statute does not impose a penalty for illegally registering, hut for a failure to register, and therefore a mere error in the registration does not warrant a fine.</p> <p>3. The admission of the Commonwealth that the appellant is a graduate of the Starling Medical College, and that the Starling Medical College is a reputable school of medicine, is fatal to the Commonwealth’s cause.</p> <p>4. The act under which this proceeding was had is in violation of the fundamental law.</p> <p>1. Appellee having a diploma from a chartered school of medicine in another State was entitled to practice under the Act of 1874, and was also entitled to register at the time he did in April, 1889, the provision of the amendment of April 25, 1888, requiring the diploma to be indorsed by the faculty of a legally chartered medical school in this State being unreasonable and void.</p> <p>The right to practice one’s profession or vocation is a property right of which he can not bo arbitrarily deprived. (Cons, of Ky. (1849), art. 13, sec. 2; Cummins v. State of Missouri, 4 Wall., 277; Ex parte Garland, 4 Wall., 333; Dent v. West Va., 129 TJ. S., 114; Yick Wo v. Hopkins, 118 U. S., 356; Baltimore v. Radeeke, 49 Md., 217.)</p> <p>Upon the refusal of the faculty of a chartered medical school to indorse a diploma, mandamus does not lie to compel them to do so, they not being executive or ministerial officers. (Civil Code, sec. 477; Lowe v. Phelps, 14 Bush, 642; Merrill on Mandamus, sec. 23.) And for that reason the provision of the statute requiring such indorsement was unreasonable and arbitrary.</p> <p>'2. Appellee’s registration being valid at the time it was made was not invalidated by. the amendment of 1890 requiring diplomas to be indorsed by the State Board of Health, that amendment not being retrospective in its operation.</p> <p>3. Even though appellee had no right to register by virtue of his diploma, he was entitled to register by reason of. the fact that he had practiced medicine under his diploma for ten years prior to April, 1889, when the act of 1888 went into operation.</p> <p>That act should not be construed as retroactive in its operation, especially when to so construe it would prejudicially affect vested rights. (Endlich on Interpretation of Statutes, sec. 273 ; People v. Spicer, 99 N. Y., 225; Cooley’s Cons. Limit., 77, 455; O’Donoghue v. Aiken, 2 Duv., 478; Head v. Ward, 1 J. J. Mar.)</p> <p>1. The registration required by the amendments of 1888 and 1890 to the Act of Eebruary 23,1874, is a prerequisite to the right to practice medicine in this State.</p> <p>2. It is competent for the Legislature to prescribe conditions on which any one shall follow a dangerous trade or calling requiring skill and learning for its proper practice. (Dent v. State, 129 IJ. S., 114; Williams v. People, 121 111., 84; Eastman v. State, 109 Ind., 278.)</p> <p>3. Ten years’ practice does not entitle a physician to register unless it was prior to the Act of 1874.</p>

Case 71 — PETITION EQUITY APPEAL FROM KENTON' CHANCERY COURT. 1. Where there is a conflict in the provisions of a will the clause last written must eontx’ol as being the later expressioxx of the testatoi’’s will. (Jacob v. Jacob, 4 Bush, 113; Baugh v. Baugh, 4 Bibb, 556; Nelson v. Nelson, 2 Ky. Law Bop., 63; Howard v. Howard, 4 Bush, 497.) 2.

Case 72 — PETITION EQUITY APPEAL PROM MADISON CIRCUIT COURT. 1. The sale should be set aside because the laud sold for less than it was worth. 2. It was error to order a sale of the land when one of the lien notes was not due. 1. This case is not before this court as required by law, either on the judgment of sale or judgment confirming the sale. The first is barred by lapse of time, and no appeal has been asked for or granted as to either judgment here or below.

<p>Case 73 — PETITION ORDINARY</p> <p>APPEAL FROM BOURBON COURT OF COMMON PLEAS.</p> <p>1. If there be any evidence, however slight, conducing to show the right of recovery, the plaintiff has the right to have the question settled by the jury. (Given’s Adm’r v. Ky. Cent. R. Co., 12 Ky. Law Rep., 950.)</p> <p>2. It is the duty of the servants in charge of an engine or train of cars on that part of a railroad track in a town or city known to be used by the public as a passway, to keep a lookout for persons on the track. (Lou. & Nash. R. Co. v. Potts’ Adm’r, 13 Ky. Law Rep., 345 ; Oonlo3r v. Cincinnati, &c., R. Co., 89 Ky., 402; Lou. & Nash. R. Co. v. Schuster, 10 Ky. Law Rep., 67; Shelby’s Adm’r v. Cincinnati, &o„, R. Co., 85 Kv., 224.)</p> <p>3. The neglect of the parent in taking care of the child can not be imputed to the child so as to prevent a recovery by it. (G. H. & H. Railway Co. v. Moore, 46 Am. Rep., 265; Huff v. Ames, 49 Am. Rep., 716.)</p> <p>Plaintiff had neither the express nor implied consent of the railroad company to go or be upon its tracks or in its yard, and the company not being bound to anticipate his presence on the track owed him no duty except to avoid injuring him after his peril was discovered. (Shackleford’s Adm’r v. L. & N. R. Co., 84 Ky., 43; Gastineau’s Adm’r v. Ky. Cent. R. Co., 83 Ky., 119; Shelby’s Adm’r v. Cincinnati, &c., R. Co., 85 Ky., 224.)</p> <p>2. The plaintiff was guilty of such contributory negligence that he can not recover. Although young, lie was capable of the discretion of an adult and the rule applicable to adults must be applied to him. (Gastineau's Adm’r v. Ky. Cent. R. Co., 83 Ky., 119; Twist v. St. Peter, &e., R. Co., 37 Am. and Eng. Railroad Cases, 340.)</p>

<p>Case 74 — PETITION EQUITION</p> <p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>The homestead exemption does not apply in a case like this as against debts created before the property was occupied as a homestead. (Gen. Stat., chap. 38, art. 13, secs. 9 and 16; Thompson on Homestead Exemptions, secs. 130, 245, 246 and 299; Laing v. Cunningham, 17 Iowa, 510; Brainard v. Van Kuran, 22 Iowa, 264; Caldwell v. Seivers & Co., 85 Ky., 38; Williams v. Bose, MS. Op., Jan., 1885; Pish v. Hunt, 81 Ky., 585 ; Griffin v. Proctor’s Adm’r., 14 Bush, 573,)</p> <p>Cases commented on: Carter, Bisher & Co. v. Goodman, 11 Bush, 228; Nichols v. Sennett, 78 Ky., 632; Bennett v. Baird, 81 Ky., 554;. Hayden v. Bobinson & Co., 83 Ky., 615; Pranks v. Lucas, 14 Bush, 395; Hansford v. Holden, 14 Bush, 219; Jarboe v. Colvin, 4 Bush, 70.</p> <p>Where the debtor is in the actual occupancy of the homestead at the time the attempt is made to subject it he is entitled to the exemption. (Nichols v. Sennett, 78 Ky., 630; Pish v. Hunt, 81 Ky., 585.)</p>

Case 75 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. 1. Where there are mutual and independent covenants, it is not performance of the thing covenanted to ho done on the one side, hut the covenant itself, which is the consideration of the covenant on the other side. In such case the consideration can not have failed while the promise, which was the consideration, is valid and obligatory. (Sanders v. Beall’s Adm’r, 4 Bibb, 343; Crawford v. Brand, 4 J. J. M., 187.) 2.

Case 7C — PETITION ORDINARY APPEAL PROM LYON CIRCUIT COURT. I. Ten years’ regular and' honorable practice of medicine subsequent to the Act of 1874 comes as fully up to the standard of qualification fixed by the act as ten years’ practice prior to its approval. (Act of February 23, 1874, Gen. Stats., ed. of 1887, p. 1006; Amendment of April 25, 1888, Acts 1887-8, vol. 1, p. 97.) Statutes should be construed not according to the letter, but according to the spirit and meaning.

<p>1. Consolidation of Railroads — Exemptions from Taxation..— Where two railroad companies are consolidated by authority of law, each retaining its rights of property, privileges and exemptions, such consolidation does not deprive either of the privileges and exemptions given it by its charter. But if the companies are not authorized by law to transfer their property to and consolidate it into one new company, each retaining its chartered privileges and exemptions, then such transfer creates a new corporation and is equivalent to a sale by each company of its property to the new company, which will have the effect of depriving each company of any exemptions from taxation that may be granted in its charter, and of denying the same to the new company, exemption from taxation being a persona] privilege which does not follow the transfer of the title to the property, unless expressly authorized by law.</p> <p>2. A LEASE OF A RAILROAD FOR ONE THOUSAND YEARS IS EQUIVALENT to A sale, or it is at least such a transfer as will defeat an exemption from taxation granted to the lessor by its charter.</p>

<p>1. Where one enters upon land under a verbal gift and continues in possession for fifteen years, claiming the land' as his own, the donor’s right to recover the land is barred, and in an action brought by him for that purpose he is not entitled to an instruction telling the jury that in order to defeat his title the adverse possession must have been “open and of such character as to clearly show that .the occupant claimed the land as his own,” as the donor must be presumed to have had notice of such adverse claim, he having put the defendant in possession intending that he should claim the land as his own.</p> <p>2. Admissions of the defendant as to the terms upon which he held the land, made by him after the plaintiff’s right to recover the land was barred by adverse possession, do not constitute an estoppel. What they amounted to as evidence on the issue of fact was for the jury to determine.</p> <p>3. Burden of Proof. — The defendant having confessed'by his answer that title was once in the plaintiff, the burden is upon him to show that the plaintiff has been divested of title by adverse possession.</p> <p>4. New Trial — Reversible Error. — Although it is by the Civil Code made in terms a cause for new trial that the verdict is not sustained by sufficient evidence, this court will reverse upon that ground only when the verdict is clearly and palpably against the weight of evidence.</p>

Case 79 — PETITION ORDINARY appeal prom jeppbrson court op common pleas. The appellee should have removed the debris thrown upon the house and goods of appellant by the cyclone when they were notified so to remove it, and from the injury resulting to appellant’s goods from the delay in doing this appellee is liable. 1. The question of negligence is one of mingled law and fact to he decided as a question of law by the court when the facts are undisputed.

Case 80 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. The line as claimed by appellants agrees with the calls of the boundary act in every respect. In construing- an act effect must be given to every part of it. (Dazey v. Killam, 1 Duv., 407.) “Southward,” in the absence of anything to the contrary, means due south.

<p>*Case 81 — PETITION ORDINARY</p> <p>APPEAL EROM KENTON CIRCUIT COURT.</p> <p>1. The court had control of its orders and judgments during the term, and, therefore, could at any time during the term set aside its order overruling appellant’s motion for a new trial, and permit appellant to file and rely on additional grounds in support of its motion for a new trial.</p> <p>3. The first instruction is erroneous in that the court instructs the jury peremptorily as to a controverted and material fact, that the plaintiff, when injured, was on the intersection of the railway and Washington and Ninth streets, “where he had a right to he,” whereas there was evidence introduced hy appellant tending to show that the plaintiff, when injured, was not on a public crossing, but was on the railroad tracks between Eighth and Ninth streets, where he was a trespasser.</p> <p>3. The second instruction is erroneous in that it sets out the acts and omissions which would constitute negligence on the part of defendant, entitling the plaintiff to recover, without any qualification as to the duty imposed by law on the plaintiff in approaching or going on the railroad track. (L., C. & L. R. Co. v. Goetz’s Adm’r, 79 Ky., 442.)</p> <p>4. The plea of contributory negligence involves a confession of negligence on the part of the defendant, ,and it is self-contradictory to say that the contributory negligence of plaintiff is an available defense tmless there was negligence on the part of the defendant; yet this is in effect what the court did by its qualification of the’ instruction as to contributory negligence.</p> <p>5. It was error to instruct the jury that they could find damages by way of smart money if the injury was attended “ by circumstances of aggravation.”</p> <p>6. The refusal' of the court to admit the testimony of Dr. Whitaker was error.</p> <p>1. The court had no power to allow additional grounds for new trial to be filed after the motion for new trial had been overruled, and, therefore, the additional grounds can not be considered. (Houston v. Kidwell, 83 Ky., 302.)</p> <p>3. It is gross negligence upon the part of a railroad company to make a running switch in a town or city, or to permit detached cars to move at a crossing or át a place where persons are constantly passing about, without having a servant in position to give warning. (Ferguson v. Wisconsin Cent. R. Co., 63 Wis., 145 ; Butler v. Milwaukee, &c., R. Co., 28 Wis., 487; 111. Cent. R. Co. v. Baches, 55 111., 379; Brown v. N. Y. Cent. R. Co., 32 N. Y., 597; French v. Taunton Branch Railroad, 116 Mass., 537; Greenleaf v. 111. Cent. R. Co., 29 Iowa, 14; Central Pass. Ry. Co. v. Kuhn, 86 Ky., 589; • Shelby’s Adm’r v. Cincinnati, &c., R Co., 85 Ky., 225 ; L. & N. R. Co. v. Schuster, 10 Ky. Law Rep., 67 ; Eskridge’s Exo’r v. Cincinnati, &c., R. Co., 11 Ky. Law Rep., 558; L. & N. R. Co. v. Potts’Adm’r, 13 Ky. Law Rep., 344; Shearman & Redfield on Negligence, 4 ed., sec. 408.)</p> <p>3. The failure to look and listen for a train before attempting to cross a 'railroad track is not negligence. (Louisville, &c., R. Co. v. Goetz’s Adm’r, Y9 Ky., 442; Ramsey v. Louisville, &c., R. Co., 12 Ky. Law Rep., 560.)</p> <p>4. It does not He in the mouth of appellant to complain of any of the instructions. By them its duty was to use only ordinary care.</p>

<p>Insurance — Distribution op “Security Fund.” — In the distribution of the “security fund ” provided for by the charter of the Kentucky Mutual Security Fund Company, both the living members and the representatives of those that are dead share in proportion to the amount of their respective certificates, neither class being entitled to a preference over the other.</p>

Case 83 — PETITION ORDINARY APPEAL PROM CALLOWAY CIRCUIT COURT. 1. The claim of appellee to the land in controversy is res judicata. To render a matter res judicata, it is not essential that it should have been distinctly and specifically put in issue by the pleadings. It is sufficient that it is shown to have been tried and settled in the former suit. (Henderson v. Henderson, 3 Hare, 100, 115; Talbott v. Todd, 5 Dana, 190 ; La Green v. Gouverneur, 1 Johns.

Case 84 — PETITION ORDINARY APPEAL PROM MERCER CIRCUIT COURT. 1. Where the work contracted for must necessarily result in a nuisance the responsibility can not be shifted on the independent contractor. (Matheney v. Wolffs, 2 Duv., 137; Robinson v.Webb, 11 Bush, 476; Chicago v. Robbins, 2 Black, 427; 4 Wall., 679.

<p>1. Restriction in Deed as to Erection op Buildings. — The condition in a deed that the building or buildings erected on the lot conveyed should be of brick and set the same distance back from the street as a house then standing on an adjoining corner lot o.wned by the grantor, and should be suitable dwellings for the neighborhood, only requires that the front wall of each building erected on the land shall conform, in respect to distance from the street, with the front wall of the house then standing on the corner lot referred to, and was not intended to forbid the erection, or prescribe the shape or dimension, of any porch, stoop or platform the respective owners might choose to build.</p> <p>2. Same. — Assuming that the condition is an easement, it was created for the benefit of the corner lot mentioned, and probably such other lots in the neighborhood as were then owned by the grantor, there being no intention that any one of several lots into which the land conveyed might be divided should be subject to the restriction for the benefit of another of such lots. Therefore, the owner of one of several lots into which the land has been divided, can not maintain this action against the owner of another of such lots to enjoin him from erecting a building in violation of that condition, or to compel him to tear away a portion of a building already erected.</p> <p>■3. Same — Estoppel.—The fact that plaintiff, although he passed in going into and out of his dwelling-house only a few feet from where work was going on, gave no intimation to defendant of his objection to the location of his building, but waited until nearly three months’ work had been done and a large sum of money expended and then commenced this action, does not quite amount to a legal estoppel, and would not prevent him from maintaining this action if the condition had been created for his benefit.</p>

<p>Case 86 — PETITION EQUITY</p> <p>APPEALS PROM LOUISVILLE CHANCERY COURT.</p> <p>1. While the general rule is that the person surcharging and falsifying an account, settled either inter partes or settled in the county court, must specify the items of his complaint, yet that rule'is not. applicable to a case like this one, where the complaint is that the-aggregate of the guardian’s expenditures, when the ward’s age and, condition are considered, was grossly extravagant.</p> <p>3. As to the law of the case upon the question of expenditures in. excess of income, see Ohapline v. Moore, 7 Mon., 170; Withers v. Hickman, 6 B. M., 295; Reemer v. Judah, MS. Op., Dec. 14, 1876; Rinker and wife v. Streit, 33 Grat., 663; Johnston v. Haynes, 68 N. C., 514.</p> <p>3. The release executed by the ward within a year after she became of age, without any period for deliberation intervening between the settlement of the guardian’s accounts and the presentation to her of the release for signature, does not stand in the way of her recovery Contracts made by guardians with their wards immediately after they become of age are always regarded with suspicion by the chancellor. (Richardson v. Spencer, 18 B. M., 465; Richardson v. Linney, 7 B. M., 573; Garvin’s Adm’r v. Williams 44 Mo., 465; s. c., 100 Am., Dec., 314; Hatch v. Hatch, 9 Ves., 292; Ferguson v. Lowery, 54 Ala., 510; s. c., 25 Am. Rep., 718; Waller v. Armistead, 2 Leigh, 14; Adair v. Brinner, 74 N. Y., 554; Hoff man Steam Coal Co. v. Cumberland Coal and Iron Co., 16 Md., 508; s. c., 77 Am. Dec., 311; 2 Perry on Trusts, sec. 851; 2 Herman on Estoppel and Res Judicata, sec. 1095; Lewin on Trusts, ed. 1858, 615.)</p> <p>4. These actions are not barred by limitation. (Wood on Limitations, p. 622; Joyes v. Hamilton, 10 Bush, 544; Horton v. Banner, 6 Bush, 596.)</p> <p>1. Where a party being “ mi juris" has invoked the jurisdiction of the county court, the judgment rendered is final between the parties, and the only remedy is by appeal. (Acts 1879, vol. 1, p. 198 (1880); Brady v. Cooper, 12 Ky. Law Rep., 420.)</p> <p>2. A guardian’s account settled in the county court is prima facie correct, but it may be surcharged or falsified. (Gen. Stats., 507, sec. 13.)</p> <p>3. A surcharge is the omission of a credit; a falsification is the insertion of an improper charge. (Adams’ Eq., 227.)</p> <p>4. The particular items attacked must be distinctly pointed out in pleadings, and successfully attacked in proof. (Story’s Eq., 800; Adams’ Eq., 452; Wooldridge v. Watkins, 3 Bibb, 352(1814); Lee’s. Adm’r v. Reed, 4 Dana, 113(1836); Simon v. Stockton, 2 Litt., 346; Sanders v. Sanders, 2 Litt., 316; Wood’s Ex’r v. Wickliffe, 15 B. M., 190; Tanner v. Skinner, 11 Bush, 129; Purcell v. Purcell, 81 Ky., 147; Loesser v. Loesser, 81 Ky., 139; Smith’s Adm’r v. Nichols, 5 Ky. Law Rep., 426; Kirtley v. Jamison, 6 Ky. Law Rep., 740.)</p> <p>5. Limitation runs against each item of open account seriatim. (Smith v. Dawson, 10 B. M., 113; Hearn v. Van Ingen, 7 Bush, 427.)</p> <p>6. Limitation runs until the filing of an amendment attacking the particular item. (Dudley v. Price, 10 B. M., 88; Hyett v. Bank of Ky., 8 Bush.)</p> <p>7. An action for relief on the ground of fraud or mistake must be commenced within five years next after the cause of action accrued. (Gen. Stats., sec. 2, p. 890; Adams’Eq., 227; Story’s Eq., 526; Lupton v. Janney, 13 Peters, 386; Wilde v. Jenkins, 4 Paige, 481; Ellison v. Moffat, 2 Johns. Ch’y, 46; Baker v. Biddle, 1 Baldwin’s Hep. (Pa.), 418; Hardin’s Adm’r v. Taylor, 78 Ky., 601; Aaron v. Mendel, 78 Ky., 427.)</p> <p>8. Reference to a commissioner is not a matter of right. (Ky. Code, 379; Loesser v. Loesser, 81 Ky., 144.)</p> <p>9. A guardian may exceed the income of the ward for maintenance and education. (Gen. Stats., sec. 9, p. 702; Campbell v. Golden, 79 Ky., 544; Maupin v. Dulaney, 5 Dana, 593; Reamer v. Crawford, MS. Op.)</p> <p>10. Guardian may consider value of ward’s estate and station in life. (Withers v. Hickman, 6 B. M., 295; Jarrett v. Andrews, 7 Bush, 315.)</p> <p>11. Chancellor will approve that which he would have authorized if applied to beforehand. (Maupin v. Dulaney, 5 Dana, 593.)</p> <p>12. Duty of guardian to employ able counsel. (Chapline v. Moore, 7 Mon., 166.)</p> <p>13. Guardian entitled to commissions. (Gen. Stats., sec. 11, p. 703.)</p> <p>14. Allowance by county court will not be disturbed unless there has been an abuse of authority. (Wood v. Lee, 5 Mon., 65; Brewer v. Vanarsdale, 6 Dana, 207.)</p> <p>15. A release given by a ward after becoming of age is valid. (Kirby v. Taylor, 6 Johns. Ch’y., 242; Sherry v. Sansberry, 3 Ind., 320; ■ Hawkins’ Appeal, 8 Casey (Pa. St.), 263.)</p>

Case 87 — INDICTMENT APPEAL FROM KENTON CRIMINAL COURT. 1. The verdict is not sustained by the evidence. 2. Where an amendment of a verdict is necessary it is proper for the jury to retire. (Proffatt on Jury Trial, secs. 450 to 463; Arch-bold’s Crim. Plead, and Prac. (Waterman’s notes), vol. 1, pp. 601, 667.) 1. As the correction of the verdict was simplj' as to form it was not error for the court to make the correction in the presence of the jury- 2.

Case 88 — PETITION EQUITY APPEAL PROM LINCOLN CIRCUIT COURT. Section 16 of article 2, chapter 48 of the General Statutes, is not repealed by sub-section 4 of section 35 of the Civil Code, and a foreign guardian can not prosecute such an action as this without complying with the provisions of that statute. (Civil Code of Practice, sec. 37; Sedgwick on Statutory Construction, pp. 98, 98 («), 99 (m), 100 («),' 105, 106; Eliz. & Pad.

<p>1. Wills — Partial Testacy — Exclusion op child. — Where a father gives to one of his children certain property by deed or will, der daring in the instrument that it is all he intends that child to' have of his estate, he does not thereby exclude the child from participation in his undevised estate. The only way in which he can exclude the child from further participation in his estate is by disposing of his whole estate.</p> <p>2. Same.' — A devise by a father to certain of his children, who alone are mentioned in the will, with the provision that they shall have no more of his estate, can not be regarded as an implied devise to> his other children of the estate not disposed of by the will.</p>

<p>Case 90 — PETITION EQUITY</p> <p>appeal prom: todd circuit court.</p> <p>Where a general devise of bonds or money is made to one for life with ■ remainder over, it is the duty of the executor to retain possession and pay to the life-tenant the income, unless from the whole will , it appears that it was the intention of the testator that the life-tenant should have possession of the thing devised; and in this case no such intention appears. (Hill v. Harding, 13 Ky. Law Rep., 385; Field v. Hitchcock, 17 Pick., 182; Freeman v. Knight, 2 Ired. Eq., 72; Brannock v. Stokes, 76 Ind., 558; Rich v. Morris, 78 N. 0., 377; Evans v. Iglebott, 6 Gill & J„ 171; Clarke v. Clarke, 8 Paige, 152; Saunderson v. Stearne, 6 Mass., 37; Covenhaven v. Schuler, 2 Paige, 122; Wood v. Sullivan, 1 Swan, 507; 2 Williams on Executors, 1396.)</p> <p>1. The court erred in even attempting to construe the will as to land lying in another State.</p> <p>2. The executors are trustees for both the life-tenants and the remaindermen and, therefore, the life-tenants are not entitled to the possession of the notes, bonds and cash on hand, (Perry on Trusts, secs. 539, 543; Hill on Trustees, p. 385 ; 8 Dana, 33; 6 B. M., 35; 10 B. M., 290; Williams on Executors, p. 1717; 5 Dana, 411; 3 Dana, 292; 1 Maddock’s Chan. Rep., 577; 11 Maddock’s Chan. Rep., 126.)</p> <p>3. If the testator does not make the executors in so many words trustees in this case, yet the law is that where money, stocks and bonds are given to one for life with remainder over, the life-tenant is not entitled to the possession of the same unless the testator so expresses himself, or it can be gathered from the whole will that he intended they should have possession. (21 N. W. Rep., 951; Hooper v. Bradbury, 133 Mass., 303 ; 17 Pick., 182 ; 30 Wis., 351.)</p> <p>And even conceding that this rule does not apply to the specific devises under this will, it' does apply to the residuary devises. (Hill v. Harding, 13 Ky. Law Rep., .380.)</p> <p>The court will not single out any particular expression and construe the whole will from it alone, but will consider the whole will and from the whole give an opinion, although it may be apparently contradictory to some particular clause. (Roach v. Dabney, 11 Ky. Law Rep., 123; Hill v. Harding, 13 Ky. Law Rep., 380.)</p> <p>4. The court erred in directing the executors to pay over to the life-tenants the whole of this property, less $75,000 to be retained to pay debts and expenses. This was not a suit to settle the estate, but was simply a prayer to construe the will.</p> <p>1. Whether the bequest be general or specific, l,he intent of the testator must determine whether the life-tenant is entitled to receive and manage the legacy given him for life, without giving security. The only difference between general and specific bequests is as to the manner in which the intent is manifested. When the legacy is specific the intent is a necessary presumption from the nature of the legacy. When it is general the intent is manifested by particular expressions, or by the whole scheme of the will. (Hill v. Harding, 13 Ky. Law Rep., 380; Hubbard v. Young, 10 Beav., 203 ; Rowe v. Rowe, 29 Beav., 276 ; Alcock v. Sloper, 2 Myl. & K., 699 ; Pickering v. Pickering, 4 Mvl. & O., 289 ; Simpson v. Lester, 4 Jur. (N. S.), 1269; Woods v. Sullivan, 1 Swan, 507; Henderson v. Yaulx, 10 Yerg., 35 ; Hill v. Hill, 2 Lans., 43; Healey v. Toppan, 86 Am. Dec., 160; 57 Am. Dec., 586; 2 Lead Cas. Eq., 284 (Howe v. Dartmouth); Pomeroy’s Eq. Jur., 1168; 2 Red. Wills, 476.)</p> <p>2. Executors are bound by a provision of the will disallowing compensation for their services, either in whole or in part. (Bate v. Bate, 11 Bush, 643 ; Brown v. Brown, 6 Bush, 652; In re Kernochan, 7 Cent. Hep., 90.)</p>

Case 91 — INDICTMENT— APPEAL FROM LAUREL CIRCUIT COURT. The failure of a jailer to perform the duties prescribed by the act of April 10, 1878, does not amount to misfeasance in office and is not punishable as such. (Bullitt & Peland’s Statutes, 1887, pp. 464, 465; Gen. Stats., chap. 61, art. 1, secs. 4, 6.) Appellant’s failure to perform the duties prescribed by the act of April 10, 1878, constituted misfeasance in office.

Case 93 — PETITION EQUITY APPEAL PROM ROCKCASTLE CIRCUIT COURT. 1. The contract with the wife relied upon by the husband is not void. Such contracts are valid where there has been a separation, or where an immediate separation is in contemplation, as was the case here. (Gaines v. Poore, 3 Met., 506; Loud v. Loud, 4 Bush, 460.) 2.

<p>Case 98 — PETITION EQUITY</p> <p>APPEAL PROM WASHINGTON CIRCUIT COURT.</p> <p>1. The action was prematurely tried during the unavoidable absence of appellants’ attorney.</p> <p>2. A long delay of payment of the balance of the consideration of a contract if attended with palliating circumstances will not, per se, furnish grounds for refusing specific execution, but reasonable time will be allowed in which payment is to be made. (Logan v. McOhord, 2 Litt., 224.)</p> <p>1. In actions for specific performance, where the covenants on the part of the defendant are to be performed concurrently with or subsequent to the covenants on the part of the plaintiff, the plaintiff must aver a performance or readiness to perform on his part. (Luchett v. Moore, 4 Bibb, 305; Cleaveland v. Moore, 9 B. M., 880 ; McCall v. Welsh, 3 Bibb, 389 ; .Baker, &c., v. Le Grand, Litt. Sel. Cases, 253 ; Chandler v. Robertson, 9 Dana, 396 ; McChord v. Tomlin, 3 Dana, 144; Hawley v. Mason, 4 Dana, 34; Spriggs v. Albin, 6 J. J. Mar., 161, 163; Jones v. Noble, 3 Bush, 697; Stone v. First Nat. Bank, 4 Ky. Law Rep., 438.)</p> <p>2. Written contracts can be altered or modified by a subsequent parol agreement entered into by the parties, although containing a stipulation that they can not be altered or modified except in writing. (3 Ky. Law Rep., 162, 163 ; 4 Ky. Law Rep., 438.)</p> <p>3. Appellants’ action is really an action for relief from alleged fraud, and is barred by the statute of limitations pleaded in the answer. (Gen. Stats., chap. 71, art. 3, sec. 6.)</p> <p>4. There was no error in refusing a continuance. (Stephens v. Commonwealth, 9 Ky. Law Rep., 742; Ellis v. Commonwealth, Idem, 824; Ison v. Ison, 10 Ky. Law Rep., 38; Reed v. Ingalls, Idem, 195.)</p>

<p>Case 94 — PETITION EQUITY</p> <p>APPEALS PROM CAMPBELL CHANCERY COURT.</p> <p>1. The verified proof of claim — in substance, though not in name, a petition — should have been taken as true in the absence of a. written objection or exception or verified ground of defense. (Francis v. Smith, 1 Duv., 121, 125 ; Homer v. Harris’ Ex’or, 10' Bush, 357; Dobyns v. Dobyns’ Ass’ee, 79 Ky., 95 ; Longdale Iron Co. v. Swift’s Iron and Steel Works, 12 Ky. Law Rep., 848; s. c., 91 Ky., 191.)</p> <p>2. As the notes were dated and made payable in the State of Ohio, their'scope and effect are to be determined by the law of that State if the corporation had power to issue them at all. (Stevens v. Gregg, 89 Ky., 461.)</p> <p>3. One who purchases such instruments for value in the ordinary course of business, before maturity, takes them free from alL defenses of which he has no notice. (Woolfolk v. Bank of America,, 10 Bush, 504; Johnson v. Way, 27 Ohio St., 374; Kitchen v. Loudenback, 26 N. E. Rep., 979.)</p> <p>A lender who takes such instruments as collateral security in substitution for other security received by 'him when he made the-loan, as did the Chemical National Bank in the case at bar, is a purchaser for value in the ordinary course of business. (Roxborough v. Messick, 6 Ohio St., 448.)</p> <p>4. A corporation may exercise its charter powers any where if not forbidden by the law either of its domicile or of the place of performance. (Bank of Augusta v. Earle, 13 Peters, 588; Morawetz, on Corporations, secs. 958-961; Lathrop v. Commercial Bank, & Dana, 114; Phoenix Ins. Co. v. Commonwealth, 5 Bush, 68.)</p> <p>5. There is no evidence in the record that the law of Ohio forbids Kentucky corporations or any foreign mercantile corporation to make-contracts within that State; nór could such evidence have been produced. (Hanna v. International Petroleuip Co., 22 Ohio St., 625; Newburg Petroleum Oo. v. Weare, 27 Ohio St., 343; Second National Bank v. Hall, 35 Ohio St., 158.)</p> <p>6. Where a corporation has power to issue negotiable paper for value, its paper in the hands of a bona fide purchaser for value before maturity, is as free from defense of want of consideration as that of an individual under like circumstances: (2 Morawetz on Corporations, secs. 597-602; 1 Daniel on Negotiable Instruments, sec. 386.)</p> <p>7. Where a writing purports to be an obligation of a corporation to the individual who as officer executes it, it is not necessarily void,, but only in case the officer had no authority to issue it in that form. (1 Morawetz on Corporations, sec. 527; Mecham on Agency, secs. 66-68; Bell v. McConnel, 37 Ohio St., 396.)</p> <p>8. One purchasing negotiable paper without inquiry, and without actual notice of defects, takes it subject only to the risk that inquiry would have established the existence of an infirmity suggested by the face of the paper. If inquiry would have shown the non-existence of infirmities so suggested, it matters not what-other defenses there may be; the purchaser is not affected by them. (Willis v. Yallette, 4Met., 186,190; 4 Kent’s Comm., 179; Railway Co. v. Sprague, 103 U. S., 756; Wilson v. Metropolitan Ry. Co., 120 N. Y., 145 ; Metropolitan Ry. Co. v. Kneeland, 120 N. Y., 134 ;. Cowing v. Altman, 71 N. Y., 435; McSparran v. Neely, 91 Pa. St., 117; The Citizens’ Savings Bank v. Blakesley, 42 Ohio St., 645.)</p> <p>9. The extension of time is a valuable consideration. (2 Daniel on Negotiable Instruments, secs. 1272, 1329.)</p> <p>1. Being payable in New York, these notes are to be construed by the law of that State. (Tyler v. Trabue, 8 B. M., 307; 2 Stanton’s Ky. Dig., 1016; Hyatt v. Bank of Ky., 8 Bush, 198; Woolfolk v. Bank of America, 10 Bush, 504 ; Stevens v. Gregg, 89 Ky., 461.)</p> <p>2. Assuming for the purpose of argument that the form of the notes-was such as to put the purchaser on inquiry, the inquiry would not be general into all the possible defects and defenses, but simply as to the authority of Matthews, treasurer, to sign the name of the corporation to the paper. (Wilson v. Metropolitan Ry. Co., 120" N. Y., 145.)</p>

Case 95 — PETITION EQUITY APPEAL PROM CLARK CIRCUIT COURT. The testator intended the estate to be kept together during the life of the widow, as he would have kept it if he had lived, the income to furnish a fund for the common support of the family, acording to their respective necessities, from time to time; and the “ control” which he gave her of the estate was not merely a control for the purpose of making it profitable, but a control of the profits when collected for…

Case 96 —MANDAMUS— appeal prom pranklin circuit court. 1. An appropriation of money to make an exhibit of the resources of the State at the World’s Fair, along with similar exhibits from other States and nations of the world, was a valid exercise of legislative power. (Daggett v. Oolgan, 92 Cal., 53 ; 27 Am.

<p>Case 97 — INDICTMENT—</p> <p>APPEAL PROM GRAVES CIRCUIT COURT.</p> <p>1. It was error to allow the jury to take the indictment with a former verdict of guilty indorsed upon it. (Smith v. Commonwealth, 11 Ky. Law Rep., 219; Brewer v. Commonwealth, Idem, 601-2.)</p> <p>2. The court erred in refusing to instruct the jury as to the effect of a confession on the part of defendant. (Criminal Code, sec. 240.)</p> <p>3. It was error to allow the Commonwealth, after both sideshad closed, to introduce testimony to contradict defendant.</p> <p>4. The court should have permitted witnesses to testify that up to the time the prosecuting witness brought this charge against defendant they were having sexual intercourse with her.</p> <p>5. The action of the Commonwealth’s attorney in denouncing defendant as “an infamous, perjured scoundrel” is sufficient to authorize a reversal.</p> <p>6. The verdict is not sustained by the facts.</p> <p>1. The action of the court in allowing the jury to take the indictment with the former verdict indorsed upon it is not a reversible error.</p> <p>2. It was the province of the jury to determine whether the detention was against the will of the woman, and as they have, under liberal instructions, decided that point against defendant, this court will not interfere.</p> <p>3. The court properly refused to allow evidence of particular acts of unchastity on the part of the prosecuting witness. (Greenleaf on Evidence, vol. 3, sec. 214.)</p>

<p>Case 98 — PETITION EQUITY</p> <p>APPEAL FROM BELL COURT OF COMMON PLEAS.</p> <p>The specific execution of a contract in equity is not a matter of absolute right in a party, but of sound.discretion in the court, and the chancellor will not decree specific performance unless the plaintitf comes with clean hands and shows that he has performed his part of the contract with promptness. (Petty v. Roberts, 7 Bush, 419 2 Story’s Eq. Jur., 769; Jones v. Noble, &c., 3 Bush, 694; Bigelow on Fraud, 450 ; Burnam v. Innis, 2 Bibb, 79; Turner v. Clay, 3 Bibb, 53; Butt v. Bondurant, 7 Mon., 422; Simon v. Wildt, &c., 84 Ky., 165; Eastland v. Vanarsdell, 3 Bibb, 276; Patterson v. Bloomer, 95 Am. Dec., 218; 42 Am. Dec., 466; Story’s Eq. Jur., 206; Talbott v. Hooser, 12 Bush, 413 ; Pinlcard v. Smith, Litt. . Sel. cases, 333.)</p> <p>As to the charge that the contract was procured by fraud there is a failure of proof. Inadequacy of consideration is not fraud per se, but is simply a circumstance which may be considered as evidence of fraud. (January v. Martin, 1 Bibb, 588 ; Craig- v. Gar-nett, 9 Bush, 100.)</p> <p>If there was no inadequacy either in the price or in the subject matter at the formation of the contract none can arise from subsequent events or change of circumstances. (Pomeroy on Specific Performance of Contracts, sec. 195.)</p> <p>In this case there is not a shadow of proof as to the value, at the time of making this contract, of either the land itself or of the minerals in the land.</p>

<p>Oas® 99 — INDICTMENT—</p> <p>APPEAL FROM OWEN CIRCUIT COURT.</p> <p>The presiding judge erred in refusing ft) retire from the bench. (Gen. Stats., chap. 28, art. 7, sec. 1; Vance v. Field, 89 Ky., 178; German Ins. Co. v. Landram, 88 Ky., 433; Russell v. Russell, 11 Ky. Law Rep., 548; Turner v. Com., 2 Met., 625.)</p> <p>An affidavit in support of a motion to require the presiding judge to vacate the bench must state the facts upon which is based the affiant’s belief that the judgé will not give him a fair trial. It is not sufficient to state conclusions. (German Ins. Co. v. Landram, 88 Ky., 440.)</p>

Case 100 — PETITION ORDINARY APPEAL PROM PENDLETON CIRCUIT COURT. 1. The duty of the master to provide safe machinery for his servant and keep it in repair can not be delegated so as to relieve the master from liability. 3. Where the master furnishes defective machinery or premises for the servant’s use, the promise by the master to repair within a reasonable time after notice from the servant of the danger,' places the risk on the master.

<p>Construction of Town Charter — Appropriation of Fines fob Benefit of Town. — Under the provision oí the charter of the town of Greenville “that for all fines imposed for violation of the by-laws and ordinances of said town, as well as for all violations of the penal laws of the Commonwealth committed within the corporate limits of said town, the fine and penalty so assessed shall he for the use and benefit of the town of Greenville,” the town is not entitled to fines imposed in the circuit court. The charter provision quoted must be regarded as referring only to fines imposed in the police court, as that was the court under consideration, and is the only court mentioned in the act. And especially should this construction be adopted, as it removes all doubt as to the constitutionality of the provisions of the charter.</p>

<p>Case 102 — PETITION ORDINARY</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. As the plaintiff, Otter, is suing for the office, and the defendant, Tillman, is in possession, the burden of x>roof is on Otter to establisli liis own title ; and, as lie failed to do so, defendant is not called on to show defendant’s title. (Code, sec. 483; Justices V. liar-court, 4 B. Mon., 501; Lehman v. Hinton, 1 Duv., 42; Justices v. Clark, 1 Mon., 86; Toney v. Harris, 85 Ky., 464; McCune v. Weller, 11 Cal., 68.)</p> <p>2. The Act creating the Sinking Fund Commissioners, and the city ordinance, both provided that three Commissioners should be elected in “ October ” by the two Boards of the General Council on “joint ballot; ” and, by an amendment to the Act, it was provided that, unless the Council should make such election in October of each year, it should be treated as a vacancy, and.the, remaining Commissioners should elect them. (Burnett’s City Code, pp. 692, 698, 702.) 1</p> <p>3. The City Charter provided that the General Council should meet every two weeks, and not adjourn for longer than two weeks; that no one of the two Boards should adjourn for longer than twenty-four hours without concurrence of the other; and that if they could not agree upon an adjournment, the Mayor should adjourn them to a day not beyond the regular two weeks ; and the Mayor could convene them at any time. (Charter of 1870, secs. 3, 6 and 24.)</p> <p>4. The provision was, not that the members of the two Boards should meet together, but that the “two Boards” should meet; and a meeting of the “ two Boards ” in joint session for “joint ballot”' can only be lawfully had by each Board separately voting to meet the other. A more meeting together of the “members” of' both Boards is not a lawful meeting of the two Boards. (Dillon on Municipal Corporations, secs. 284, 288, 292; Morton v. Jungerman, 11 Ky. Law. Rep., 886; Beck v. Hanscom, 29 N. H., 224; Kim-ball v. Marshall, 44 N. H., 465.)</p> <p>5. The two Boards, on October 24th, failed to agree on an adjournment ; the Board of Council voting to adjourn until October 28th, and the Aldermen refusing to concur ; and thereupon the Mayor adjourned the Board of Aldermen until November 7th. This operated to adjourn both Boards until November 7th.</p> <p>6. The gathering of the twenty-four Councilman and six of the twelve Aldermen in the Common Council chamber the next night (October 25th) without the consent of either Board, without any official call or agreement and without the presidents or clerks of either Board present; and the pretended election of a temporary chairman and clerk, and the holding of a pretended joint ballot and the election of Otter, were illegal and a nullity. (Dillon on Municipal Corporations, secs. 2S4, 288; Beck v. Hanscom, 29 N. H., 224.)></p> <p>7. The Act of 1871, amending the Sinking Fund Act, entitled “An Act to further increase the resources of the Sinking Fund of' Louisville,” and which contained the provisions for electing the members, was not void for a defective title. In order to “ increase the resources” of the Sinking Fund it was proper to provide for officers to do the increasing and to manage the increase, and the general subject of the Act is the “Sinking Fund,” and that is properly expressed in the title. (Burnett’s City Code, pp. 692, 698, 703; Elliott's Charter and Ordinances, p. 781; Citizens’ Gaslight Company v. Louisville Gas Co., 81 Ky.,269; McArthur v. Nelson, 81 Ky., 67; Cassel v. Lexington Turnpike Company, 10 Ky. Law Rep., 488 ; Rogers v. Jacob, 11 Ky. Law Rep., 46 ; Phillips v. Covington Bridge Company, 2 Metcalfe, 221; Jacob v. L. & N, R. Co., Í0 Bush, 271.)</p> <p>1. A Commissioner of the Sinking Fund of the City of Louisville is a public officer. (Moses on Mandamus, p. 150; Shelby v. Alcorn, 72 Am. Dec., 182, and note; Ado.r v. City of Newport, 9 Ky. Law Rep., 749; Bradford v. Justices, 33Ga.,'332; Acts of 1867, vol. 2, chap. 1887, sec. 10, p. 420.)</p> <p>3. In lieu of the writs of scire facias and quo warranto, or of an information in the nature of a quo warranto, ordinary actions may be brought to prevent the usurpation of an office or franchise; and the action may be brought by either the Commonwealth or “ the person entitled” to the office. (Civil Code, secs. 480, 483, 487.) Formerly by quo warranto the. intruder was ejected ; by mandamus the legal officer was put in his place. The provisions of our Code accomplish by one and the same process the objects contemplated by both these results. They oust the unlawful incumbent and give the rightful claimant the right to which he is entitled. (Prince v. Skillin, 71 Me., 361.)</p> <p>3. The answer of appellant presented no defense to appellee’s petition. His title was not derived from or dependent upon a commission or certificate, or declaration of election, the office being elective. “The title to an elective office is derived from the election.” (Attorney-General v. Barstow, 4 Wis., 567; People v. Pease, 30 Barbour, N. Y., 591.) The answer denies an “election,” but does not deny the facts alleged in the petition as constituting an election ; and the demurrer to the answer was properly sustained. (Boone on Code Pleading, sec. 61.)</p> <p>4. The answer of appellant was further defective in not showing his own title to the office. Forms have been abolished by the Code, but the substance of the common law rules remains, except where they conflict with the spirit of our statutory regulations upon the subject of pleading and practice. (R. & L. T. P. R. Co. v. Rogers, 7 Bush, 535; Hill v. Barrett, 14 B. Mon., 83; State v. McDaniel, 22 Ohio St., 354; Note to 100 Am. Dec.,.270 to 271; People v. Thacher, 55 N. Y., 529; People v! Hall, 80 X. Y., 117; High Ex. Rem., sec. 713; Hoglan v. Carpenter, 4 Bush, 91.)</p> <p>5. As the Board of Councilmen adjourned on October 21, 1889, without naming any time, and the Board of Aldermen did not adjourn at all, both Boards were, by law, in session on the following day, October 25th, 1889, when appellee’s first election was held. The action of the Mayor was a nullity. Neither Board requested his interference, and he did not attempt to adjourn both Boards. The conditions authorizing his interposition never arose. (People v. Hatch, 33 111., p. 13, argument of Melville W. Puller.)</p> <p>■6. The rule with respect to legislation that a quorum of both branches of a legislative body must be present in order to enact a valid law can have no just application in the conduct of elections. An election is not a legislative act. (Dillon on Mun. Corp., sec. 284 ; Whitesides v. People, 26 Wendell, N. Y., 634; Kimball v. Marshall, 44 N. H., 465 ; Ex parte Humphrey, 10 Wendell, N. Y., 612; Beck v. Hanseom, 29 N. H., 213 ; 9 Poster ; First Parish v. Steans, 21 Pick., Mass., 148; Coles county v. Allison, 23 111., 437; Senate Election Cases, 164, 505.)</p> <p>Had the six Aldermen who refused to go into the election been present their votes could not have changed the result. “It is a canon of election law, that an election is not to be set aside for a mere irregularity or informality, which can not be said in any manner to have affected the result of the election.” (Dillon on Mun. Corp., note to section 197.)</p>

Case 103 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. To fasten a trust on property by parol declaration it is only necessary that the language used clearly and explicitly manifests the owner’s purpose to transfer the right, and points out with certainty both the subject of the trust and the person who is to take the beneficiary interest. (Snell’s Principles of Equity, 98; Bispham’s Principles of Eq., secs.

Case 104 — PETITION EQUITY appeal prom lewis circuit court. 1. The signing of the names of the sureties in their presence and by their direction is to be regarded as their act and not as the act of an agent; and, therefore,' sec. 20 of chap. 22, Gen. Stats., does not apply.

<p>Construction of Devise — Distribution per Stirpes. — Under the provision of a will directing the executor to sell certain real’ estate and pay the proceeds “equally to the children of my brother, Wm. Fields, and the living children of my brother, James Fields,’ the children of the two brothers take per stirpes and not per capita, such an intention being indicated by another clause of the will in which the testator refers to the children of each brother collectively as a “branch” of his kindred, and directs the payment to the children of each brother of one-fourth of the residue of his estate.</p>

<p>An assignee por the benepit op creditors will not be permitted to charge an attorney’s pee for legal services which he has rendered to himself as trustee. Nor will a provision in the deed of assignment authorizing the payment of reasonable attorney’s fees authorize him to make such a charge for his own services as attorney. Even if such a provision could be construed as authorizing the charge, it would be a fraud upon creditors and have a tendency to render the assignment invalid.</p>

Case 107 — PETITION EQUITY APPEAL PROM GRANT CIRCUIT COURT. Where the facts are such as to show that at the time of making the mortgage, preferring one creditor to others, the debtor must have known he was insolvent, the mortgage will be within the statute.

Case 108 — PETITION EQUITY APPEAL PROM HARDIN CIRCUIT COURT. 1. Held: under the well-settled rules of construction, to create in Mrs. Webster a defeasible fee that will be defeated at any time by her death without issue. (Thackston v. Watson, 84 Ky., 20C; Britton v. Thornton, 112 U. S., 526; Parish v. Farris, 6 Ohio St., 563; Jones v. Miller, 13 Ind., 337; Abbott v. Essex, 18 How.

<p>The power to sell property por taxes is altogether statutory, and must be strictly pursued ; and where a party is setting up claim to property in virtue of a purchase bjr him at such a sale, he must aver by pleading, and show by his testimony, that the statutory, steps necessary to a valid sale were taken. The tax deed is not conclusive in his favor. And this rule applies as well where the purchaser is a defendant resisting recovery, as where he is plaintiff seeking recovery.</p>

<p>Cask 110 — PETITION EQUITY</p> <p>I. The coupons in the possession of Lloyd, trustee, are secured by the mortgage upon the real estate of .the Swift’s Iron and Steel Works. (4 Am'. & Eng. Enc. of Law, pp. 440, 442 ; Cameron v. Tome, 24 Am. & Eng. Railroad Cases, 203 ; Virginia v. Ches. & Ohio Canal Co., 32 Md., 501; Harbeck v. Vanderbilt, 20 N. Y., 388; Robinson v. Leavitt, 7 N. H., 100; James v. Johnson, 6 Johns. Ch. (N. Y.), 425; Union Trust Co. v. Monticello, &c., R. Co., 63 N. Y., 313.)</p> <p>3.Although Harper was president of the company there was no law prohibiting him from purchasing these coupons and holding them as obligations against the company for the amount he gave for them. He bought them before maturity. (Duncomb et al. v. New York, &c., R. Co., 84 N. Y., 190 ; Gould v. Little Rock, &c., R. Co., 52 Fed. Rep., 680 ; Lexington, &c., Ins. Co. v. Page, 17 B. Hon., 439 ; Evertson v. First Nat. Bank, 66 N. Y., 14 ; Ketchum v. Duncan, 96 U. S., 659.)</p> <p>3. Suit may be brought on coupons detached from the bond. (City v. Lawson, 9 Wall., 477; Commissioners v. Aspinwall, 21 How., 539; Walnut v. Wade, 103 U. S., 683; Thompson v. Perrine, 106 U. S., 589 ; Cromwell v. County of Sac, 96 U. S., 51.)</p> <p>4. Payment will not be permitted in equity to operate as an extinguishment against those equitably entitled to substitution in the place of the party receiving payment. (Waite’s Actions and Defenses, vol. 7, 422; Richardson v. Washington Bank, 3 Met., 536; Morris ■ v. Oakford, 9 Pa. St., 498; Eddy v. Traver, 6 Paige, 521; Matter of Fort, 8 Benedict, 228.)</p> <p>Harper was equitably entitled to be substituted for Swift and Hubbard as against the company. (Mattison v. Marks, 31 Mich., 421; s. c., 18 Am. Rep., 197; Waite’s Actions and Defenses, vol. 4, p. 537; Wheeler v. Willard, 44 Vt., 601.)</p> <p>5. Each coupon bears interest at 6 per cent, per annum from the date of its maturity. (Town of Geneva v. Woodruff, 92 U. S., 502; Aurora City v. West, 7 Wall., 82; Welch v. First Div., &c., R. Co., 25 Minn., 323.)</p> <p>6. The court has no jurisdiction in any case to order a re-sale of the property to satisfy sale bonds unless all the parties to the action consent. The lien of the. sale bonds must be enforced by an independent action instituted for that purpose.</p> <p>1. There was a payment and not a purchase of the coupons by Harper. They were paid at maturity at the place where payment was promised, and by the proper officer of the company which promised to pay. (ICetchum v. Duncan, 98 U. 8., 059.)</p> <p>2. Harper is not entitled to subrogation. (JStna Life Ins. Co. v. Middleport, 124 U. S., 537; Shinn v. Budd, 14 N. J. Eq., 234; Sanford v. McLean, 3 Paige, 117; Hoover v. Epler, 52 Pa., 522; Gadsden v. Brown, Speer’s Eq., s. c., 37, 41 ; Memphis, &c., R. Co. v. Dow, 120 U. S., 287; Suppiger v. Garrels, 20 Bradw., 625; Sawyer v. Hoag, 17 Wall., 033.)</p> <p>The mere payment of a debt for another, or the furnishing the means to do so, will not entitle the person paying it or advancing the money, ipso facto, to subrogation to the security the creditor held. (Griffin v. Proctor’s Adm’r, 14 Bush, 573; Newport, &c., Bridge Co., v. Douglas, 12 Bush, 714; Evans, &c., v. Rhea, 12 Ky. Law Rep., 220.)</p>

Case 111 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. 1. Testimony as to the condition of the track beyond the point at which the car was derailed was incompetent. (L: & N. R. Co. v. Fox, 11 Bush, 505.) 2. By taking passage upon a freight train the passenger takes upon himself the increased risk incident thereto. He can only expect such security as the mode of conveyance affords.