Volume 94 — Kentucky Reports

Case 1 — PETITION ORDINARY — •The evidence is sufficient to show a dedication of the land in controversy as a public street. (Section 2, page 6, of city charter; E. & P. R. Co. v. Thompson, 79 Ky.; Southgate, &c„ v. Regenthal, MS. Op., February 11, 1886; Gen. Stats.-, chap. 71, p. 637; Dillon Mun. Oorp., secs. 636, 638, 640, 642V) ' 1. There has been no dedication of the land in controversy.

<p>APPEAL FROM ADAIR CIRCUIT COURT.</p> <p>1. Consolidated Actions — Dependants not Served with Process regarded as before the Court. — Where an insolvent debtor, subsequent to the execution by him of various mortgages to antecedent creditors with the design to prefer, executed a deed of assignment for the benefit of all his creditors, and in separate actions by the preferred creditors to enforce their mortgage liens, the assignee, by answer, attacked the mortgages as preferences under the statute, these actions by the preferred creditors having been consolidated with an action by unsecured creditors attacking the mortgages as preferences under the statute, the preferred creditors, who were nonresidents, must be regarded as before the court in the suit of the unsecured creditors, although there was neither actual nor constructive service of process upon them in that case.</p> <p>2. Unlawful Preference op Oreditors — Duty op Assignee for creditors. — Whether or not the assignee could have maintained an independent action to have the mortgages declared to operate as an assignment it was his duty, under the circumstances, to have the question determined as to the validity of these transfers.</p> <p>3. Same — Action by one Creditor Inures to Benefit of all. — A petition filed by one creditor seeking to have an act of the debtor declared to operate as an assignment under the statute, imires to the benefit of all, and any creditor has the right to proceed under it. Therefore, although the petition in this case was dismissed by the creditors who filed it, yet creditors yrho had been made plaintiffs with them by an amended petition, had the right to prosecute the action, and it is not material whether process on the amended petition was served, on the defendants.</p> <p>4. Same.: — Where the indebtedness of a merchant amounted to three times as much as his assets, and his creditors were making a race of vigilance in obtaining securities for their respective claims, one mortgage after another being executed by the debtor, the design to prefer is manifest, and the several transfers must be declared to operate as an assignment under the statute.</p> <p>5. Same. — A mortgage executed by the debtor to indemnify one who became his surety in the renewal of a note in bank which was overdue, it being recited in the mortgage that it was to inure to the benefit of the bank, must be regarded as a device to prefer the bank, the note being subsequently renewed by the surety in his own name, and the mortgage assigned by him to the bank without any recollection upon his part that he had done so.</p> <p>6. Money that has been paid to preferred creditors on their collaterals must be refunded by them or credited on their claims if the amount does not exceed the sum to which the creditor collecting it is entitled in the distribution, of the debtor’s estate. They can not be regarded as bona fide purchasers.</p> <p>7. A PREFERRED CREDITOR TO WHOM THE DEBTOR’S HOMESTEAD HAS been transferred with other property may retain the homestead, the debtor having the right to dispose of that as he pleased.</p>

<p>APPEAL FROM GREENUP CIRCUIT COURT.</p> <p>1. Resulting Trusts.— Where a deed to land is made to one person, and the consideration paid by another, no trust results in favor of the person paying the' consideration, the law as to resulting trusts having been changed by statute in this State.</p> <p>■2. Same — Statute of Frauds. — Even under the equitable, rule as.to resulting trusts, a verbal agreement by the holder of the legal title to land that another shall-be interested in tbe title, or an agreement to buy land from a stranger_ for the benefit of another without that other paying the consideration, comes directly within the statute of frauds,-and does not create an enforceable trust. Besides, in this case the evidence fails to, establish the alleged agreement,by,the holder of the legal title to buy the land for the benefit of another. .</p> <p>■ 3. RxeMption from' 'ÍáXation. — 'Á'railroad company having agreed, as a part of the; consideration"for-the Use of land leased by it-for a thousand years, to pay the taxes on t^e land,, a statute exempting its property from taxation for 'five years from the completion of its road does not exemptdt from the payment of taxes on the leased property during that time., But the lessor may be compelled to-list the ' property for taxation unless the lessee gives it in.</p>

Cask 4 — PETITION ORDINARY — 1. 'Where a statute pronounces a penalty for an act, a contract founded on such act is void, although the statute does not pronounce it void, or in express words prohibit it. (5 Lawson on Rights, &c., sec. 2393; 1 Parsons on Contracts, 456; Collins v. Merrell, 2 Met., 164; Vannoy v. Patton, 5 B. M., 248; Creekmore v. Chitwood, 7 Busb, 318; Slade v. Arnold, 14 B. M., 287; Murphy v.- Thompson, 14 B. M., 419; Franklin Ins.

Case 5 — PETITION EQUITY — When the bid cried by the' sheriff is made by letter, message or otherwise, by a person who does not attend the sale, of a specified amount, thus depriving the sheriff of any discretion in the matter,, the sale is valid. It is only where the sheriff is instructed in such manner as to leave it to his discretion as to the manner of bidding and the amount, that the sale should be set aside.

<p>Case 6 — PETITION EQUITY —</p> <p>'"he account of A. K. Bussell, collector, was a fiduciary account, and the alleged arrangement between the bank and Bussell by which the private debt of Bussell was to be liquidated out of that fiduciary account was unlawful. (Addison on Contracts, sec. 824.)</p> <p>Bussell simply deposited his money in bank as any other ordinary depositor, and the uncontradicted proof is, that as a depositor he directed this money to be applied to the payment of a balance due on his seven thousand dollar loan. But the bank had the right, even without Bussell’s direction, to make this appropriation, the bank being the holder of the note. (Morse on Banking, vol. 2, sec. 559.)</p> <p>The sureties 'of Bussell had no lien on this money collected and deposited by Bussell. (Clore v. Bailey, 6 Bush, 77.)</p> <p>The fact that it was tax money, and ihe bank knew, or ought to have known, it was tax money, does not alter the case. (McAfee v. Bland, 11 Iiy. Law Bep., 3.)</p> <p>All deposits are loans. The identity of the particular money is lost. (“Williams v. Bogers, 14 Bush, 787; Taylor v. Taylor, 78 Ky.v 470; Addison on Contracts, sec. 817; Morse on Banking, vol. 1, sec. 289.)</p> <p>A banker can not excuse his disobedience to his customers’ orders in due course of business by setting up that he knew, or had reason to believe, that the customer’s order was given in promotion of an unlawful purpose, or that the customer is going to make a fraudulent use of the funds. (Morse on Banking, vol. 1, see. 317; Wetherell v. O’Brien, Superior Ct. of 111., Jan. 18, 1892, reported in Chicago Law-Journal for January, 1892.)</p> <p>As Marion county could not maintain the suit appellants are trying to prosecute, there is no equity to which they can be substituted.</p> <p>Cited: Patterson v. Pope, 5 Dana, 241; Rice v. Downing, 12 B. M., 44; Havens v. Eoudry, 4 Met., 247; E. & D. Bank v. Sherley, 12 Bush, 304; Story’s Eq.Jur., note 4 to sec. 499c.; Clore v. Bailey, 6 Bush, 77; Eishback v. Bodman, 14 Bush, 117; Commonwealth v. Tate, 89 Ky., 608; McAfee v. Bland, 11 Ky. Law Rep., 1.</p>

<p>APPEAL FROM CRITTENDEN CIRCUIT COURT.</p> <p>1. AN APPEAL LIES FROM THE DECISION OF THE CONTESTING BOARD OF elections at tbe instance of any person in interest feeling himself aggrieved; and the fact that upon the decision of the contesting board finding the vote to be a tie, the right to office was determined by lot, as provided by statute, does not deprive the unsuccessful candidate of the right of appeal from the decision of the board by which the vote was found to be a tie.</p> <p>2. The finding of the lower court that a certain voter was of legal AGE" will not-be disturbed, the testimony being conflicting, and especially when the preponderance of the proof sustains the decision.</p>

Case 8 — PETITION EQUITY — Section 2 of article 7 of chapter 92 of the revision of 1873 is not only constitutional; but it confers an exclusive jurisdiction upon the county court, and the judgments and orders of the county court in the exercise of this jurisdiction are binding and. conclusive until set aside by appropriate proceedings on appeal.

Case 9 — INDIOTMEISIT— 1. The court erred in refusing a continuance, the testimony of the absent witnesses being material. 2. The petition for a change of venue, with the accompanying affidavits, made for the defendant a prima facie case, and the court, in the absence of proof, erred in refusing to grant the application. 3. To constitute the offense charged in this case, it must be alleged and proved that the taking or detention of the woman was against her will.

Case 10 — PETITION EQUITY — 1. The conveyance from Mrs. Moore to her husband did not pass her title. (Gen. Stats., chap. 24, secs. 19, 20; Idem, chap. 52, art. 2, sec. 3; New-by v. Cox, 81 Ky., 59; Moore v. Tibbatts, 5 B. M., 355; Robinson v. Henning, 9 Ky. Law Rep., 141; Kennedy v. Ten Broeclc, 11 Bush, 251; Scarborough v. Watkins, 9 B. M., 545; Chaney v. Flynn, 2 Ky. Law Rep., 417; Oraine, &c., v. Edwards, &e., 13 Ky. Law Rep., 499.) 2.

<p>Case 11 — PETITIONS ORDINARY —</p> <p>Briefs not in record.</p>

Case 12 — PETITION ORDINARY — 1. No liability for fire where railroad company uses best and most effective-preventive to prevent escape of sparks. (Wharton on Negligence, sec. 869; Pierce on Bailroads, p. 433; Thompson on Negligence, vol. 1, p. 154; Kentucky Central B. Co. v. Barrow, 89 Ky., 638; L. & N. B. Co. v. Taylor, 92 Ky., 55.) 2. Plaintiff has burden of proving fire originated from defendant’s engine.

CASE 13 — PETITION EQUITY — 1. The appellee Eisenman was guilty of intentional fraud, (a) in that he failed and refused to comply with the charter of the corporation in owning all the stock and being the sole director and officer of the corporation.

Case 14 — .PETITION ORDINARY — .•As the payees -of. the note sued on were peddlers, and had not taken out license as required by law, there can .be no recovery on the note. (Rash v. Holloway, 82 Xy., 674; Rash v. Farley, 12 Xy. Law Rep., 913.1 If the plaintiffs in the purchase of the note relied upon the statement* in the certificates, they operate to estop the defendant from relying upon the defense of want of consideration and fraud in procuring- the note.

Case 15 — PETITION ORDINARY — Plaintiif was not guilty of contributory negligence in not stopping. It is only where there can be no sight or no hearing without stopping that stopping is held to 1 e necessary. 1. The facts being conceded upon which the claim of contributory negligence was based, contributory negligence became a question of law. (Lou. & Portland Canal Co. v. Murphy’s Adm’r, 9 Bush, 533; Dolfinger & Co. v. Eishback, 12 Bush, 479; Beach on Cont.

Case 16 — PETITION EQUITY — The long continued use of the passway by appellant, and those under-whom he claims, creates the presumption that the use was adverse,, and it was not necessary to show, by positive testimony, that the-appellant had claimed this use as a matter of right, and so proclaimed to his neighbors. (O'Daniel v. O’Daniel, 88 Ky., 189; Butt v. Napier, 14 Bush, 39; Hall v. McLeod, 2 Met., 98.) Bowman v. Wickliffe, 15 B. M., 99, distinguished.

Case 17— PETITION ORDINARY — 1. The county courts are courts of limited jurisdiction, and derive all their powers from express statutory enactments. (Gilchrist v. Bartlett, 9 Bush, 49.) There is no jurisdiction in the county court under section 1 of chapter 104, General Statutes, unless the steps inquired by that statute are taken. The jurisdiction can not be acquired by consent. 2. Donnelly was bound on his bond of 1876.

Case 18 — PETITION EQUITY — 'The fact that one of the plaintiffs is a non-resident does not bring the defendants’ claim for unliquidated damages within the rules of equitable set-off, there being nothing to show that either of the other plaintiffs is a non-resident or insolvent. (Shropshire v. Conrad, 2 Met., 144; Eorbes v. Cooper, 10 Ky.

<p>APPEAL FROM TODD CIRCUIT COURT.</p> <p>1. An act op the Legislature extending the limits op a town or CITY WILL NOT BE DECLARED UNCONSTITUTIONAL Upon the ground that property thus subjected to municipal taxation derives no benefit from the town or city government, unless it appears that the imposition of the tax amounts -to the taking of private property without just compensation.</p> <p>Ü. Municipal Taxation. — "Whether the benefit and advantages derived from a municipal government are in a given case adequate compensation for local taxation imposed is not the province of courts to decide, legislative determination of that matter being conclusive.</p> <p>In this action to enjoin the collection of town taxes imposed upon plaintiff’s residence and lawn, it appears that the tract of land upon which plaintiff resides contains forty-six acres, which is used for farming purposes, but the area included in the town limits by the act, the validity of which is questioned here, and which is the land sought to taxed, does not much exceed six acres. There is a street, improved and kept in repair by the town, on each side and adjacent to plaintiff’s land and extending beyond his residence. There is another street connecting these two, and extending along the front of his lawn. There is a sidewalk made by the town by which he can go from his gate to the central part of the town. Opposite his lawn is a church building and several dwelling-houses. He has sold off his land several lots at the rate of three hundred dollars per acre, that for farming purposes could not have been sold for more than thirty dollars per acre; and on one street there are no vacant building lots between a point beyond plaintiff’s dwelling-house and the court-house square. The plaintiff is a minister of the gospel, and preaches in one of the town churches. Held — That there is no reason for exempting plaintiff’s residence and lawn from municipal taxation.</p>

Case 20 — APPEAL TO CIRCUIT COURT — The Legislature has no power to authorize the private property of one person to be taken for the use of another private person with or without compensation. (Robinson v. Swope, 12 Bush, 21; Mills on Eminent Domain, sec. 22; Cooley on Const.

CASE 21 — PETITION EQUITY — Where a married woman refuses to perform her contract for the sale of land, one to whom she has assigned the purchase money notes is entitled to a lien on the land therefor. As the allegations of the cross-petition are all denied in the reply, and appellant offered, no evidence whatever in the case, the judgment of the chancellor was proper.

Case 22 — PETITION ORDINARY — 1. The action of the court in refusing to consolidate the actions can not be reviewed, as appellee does not pray a cross-appeal. But the decision of the court upon this question is undoubtedly correct. Persons severally interested can not join, and even if these actions had been joined they might have been separated on motion. (Civil Code, sec., 83.) 2.

Cask 23 — PETITION ORDINARY — TRANSFERRED TO EQUITY Long continued possession by the mortgagees and their heirs has de-, prived the mortgagor of the right to redeem, and vested those claiming under the mortgagees with a perfect title.

Case 24 — PETITION EQUITY — 1. So far as the rights of abutting property owners are concerned, there is no difference between the streets of a city and the public roads of a county. Both are public highways, and in each case the abutting property owner has an inviolable right to the unobstructed use of the contiguous highway, of which he can not be deprived without just compensation.

Case 25 — PETITION ORDINARY — ■1. One entering service is presumed to understand the business and to be able to transact it with experience and skill, and he can not be heard to complain that he did not have the experience and skill. (Alexander v. Lou. &'Nash. R. Co., 83 Ky., 589; Bogensehutz v. Smith, 84 Ky., 330; Derby’s Adm’r v. Ky. Cent. R. Co., 9 Ky. Law Rep., 153; Ray v. Joffvus, 86 Ky., 367.) 2.

<p>APPEAL FROM PULASKI CIRCUIT COURT.</p> <p>1. A DEED MAX BE DELIVERED TO A THIRD PERSON POR THE GRANTKE; and if subsequently assented to by the grantee, it will be as good a delivery as if it had been made directly to him. And this is true, although the deed may not have been delivered to or accepted by the grantee until after the death of the grantor.</p> <p>2. Delivery op Deed. — "Where the grantor handed to his wife a deed in which his children were named as grantees, and told her to put it away or to take care of it, and after the death of the grantor she delivered it to the grantees, there was no delivery of the deed so as to pass the estate. The fact that the grantor had retained a life estate in the property and may have thought the immediate delivery of the deed would be of no service to the grantees, did not dispense with the necessity of delivery.</p>

<p>Case 27 — PETITION ORDINARY —</p> <p>1. The appellee acquired no legal title to the tickets in the Little Louisiana Lottery, nor to any prize drawn by them, under the purchase from appellant. (Gen. Stats, chap. 29, art. 23, sec. 3; Idem, chap. 22, sec. 5; 13 Am. & Eng. Eno. of Law, p. 1167; Idem, p. 1187.)</p> <p>2. The exchange of tickets was an exchange of articles without any value. Neither ticket was worth any thing, except it was made valuable by the voluntary act of the lottery company. Therefore, appellee lost nothing by the exchange, and the law will not recognize and adjudicate transactions involving no valuable consideration. There oan be no assumption (as in the case of Bibb, &c., v. Miller, &c, 11 Bush, 310), that the lottery was legal, it being admitted by the pleadings. that the lottery in Kentucky (where the contract was made) was illegal.</p> <p>3. The exchange of tickets, although occurring after the drawing, was as much in violation of our statute as if made before the drawing occurred, and appellee would have as much right to sue for the ticket itself as for its proceeds.</p> <p>Whenever the contract which the party seeks to enforce is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. And persons co-operating in an illegal transaction oan not obtain relief from the courts. (Buck v. Albee, 26 Vt., p. 184; Ohitty on Contracts, p. 730; Duncanson v. McLuer, 4 Dallas, 306.)</p> <p>1. There is nothing in the pleadings to show that the ticket'which drew the prize was purchased or subsequently exchanged in Kentucky, and, therefore, the court can not know that the transaction was in violation of law. In fact, the presumption is in favor of the transaction, and if it be susceptible of two meanings, the one legal and the other not, that interpretation will be put upon it which will support and give it operation. (Bibb, &e., v. Miller, &c., 11 Bush, 309.)</p> <p>2. As the legality of the Little Louisiana Lottery was in issue, and the evidence is not berg, this court must presume that its legality was proved, or rather that it was not proved to be illegal, the presumption being in favor of its legality.</p> <p>3. The original illegal transaction was complete prior to the time defendant perpetrated upon plaintiff the fraud by which he obtained the possession of the ticket, and defendant is in no better attitude than a stranger to that transaction would be. Therefore, he must be regarded as having received to the use of plaintiff the money he collected upon the ticket he had procured from plaintiff by fraud, and the mere fact that the money received was a prize in a lottery, drawn by a ticket purchased in violation of law, does not prevent plaintiff from recovering. (Story on Contracts, 4th ed., vol. 1, sec. 622; Farmer v. Russell, et al., 1 B. & P, 295; Armstrong v. Toler. 11 Wheat., 258; Willson v. Owen, 30 Mich., 474; Rothrock v. Perkinson, 61 Ind., 39.)</p> <p>4. If the connection of defendant with the original sale is to be considered, there is still no obstacle to a recovery. There is a difference between enforcing illegal contracts, and asserting title to money which has arisen from them. (Brooks v. Martin, 2 Wall., 70; Catts v. Phalen, 2 How., 376.)</p> <p>5. The parties were not in pari delicto even in the original transaction, for he who offers a lottery ticket for sale, and thus tempts others to buy, is guilty of a greater wrong than he who buys, and under such, circumstances relief may be granted. (Harper v. Harper, 85 Ky... 165; Anderson v. Meredith, 82 Ky , 571.)</p>

Case 28 — PETITION- ORDINARY — 1. It was error to send the jury to view the premises after the case was finally submitted to them, the information received by the view being evidence. (Civil Code, secs. 318, 319, 321; City of Topeka v. Martineau, 5 L. R. A., 775; People v. Bush, 68 Cal.,' 623; Burton v. State, 30 Ark„ 328; Railroad Co. v. Dunlap, 47 Mich., 456; State v. Bertin, 24 La. An., 46; Eastwood v. People, 3 Parke Cv.

Case 20 — PETITION ORDINARY — I. Prior verbal negotiations were merged in written application. (Oastleman v. So. Mu. Life Ins. Co., 14 Bush, 197.) 2. Parol testimony was inadmisible to modify the application. (Insurance Co. v. Holzkraft, 53 111., 516; Castleman v. So. Mu. Life Ins. Co., 14 Bush, 197.) 3. Agent had no power to insure after fire. (Stebbins v. Lancaster Ins. Co., 60 N. H., 65; Bentley v. Columbia, &c., 17 N. Y., 421.) 4.

Case 30 — PETITION EQUITY — Brief withdrawn. The action of the lower court in sustaining a demurrer to the petition for want of jurisdiction was proper. (Civil Code, sec. 62, subsecs. 1, 2;. 2 Bush, 49; Idem, 126; 7 Bush, 46.)

<p>Case 31 — PETITION EQUITY —</p> <p>1. The Edmonson court had no jurisdiction. The cause of action is the demand for specific performance. The alleged lien is only an incident. (Kendrick v. Wheatley, 3 Dana, 34; Lewis v. Morton, 5 Mon., 2.)</p> <p>2. The writing sued on is not sufficient under the Statute of Frauds. There is no description or identification of the property sold Henderson. (Madeira v. Hopkins, 12 B. M., 595.)</p> <p>3. The title tendered by appellee is not sufficient. A court of equity will not force a doubtful title upon a purchaser. (Morgan v. Morgan, 2 Wheat., 290; Hightower v. Smith, 5 J. J. Mar., 544; Bartlett v Blanton, 4 J. J. Mar., 429; Lewis v. Herndon, 3 Litt., 361; Watts v. Waddle, 6 Pet., 389; Davis v. Dycus, 7 Bush, 4; Bodley v. McChord, 4 J. J. Mar., 475; Tevis v. Richardson. 7 Mon., 654; Dobbs v. Norcross, 24 N. J. Eq., 327.)</p> <p>There is no grant from the State; several of the deeds do not pass dower; others are not properly certified, and the deed to appellee shows the existence of a lien for about one thousand dollars. (Hatcher v. Andrews, 5 Bush, 565; McDowell v. Prather, 8 Bush, 61; Miller v. Henshaw, 4 Dana, 330; Franklin v. Becker, 11 Bush, 595; Hynes v. Campbell, 6 Mon., 287; Bartlett v. Blanton, 4 J. J. Mar., 428; Beckwith v. Kowns, 6 B. M., 222; Taylor v. Bush, 5 Mon., 88; Tomlin v. McChord, 5 J. J. Mar., 135.) ,</p> <p>4. As time was of the essence of the contract, and appellee did not have title when he was bound to convey and deliver possession, it would not he equitable to decree specific performance, although the defects were afterwards cured. (3 Parsons on Contracts 384; Walker v. Jeffries, 1 Hare, 348; Waterman on Spec. Perf, sec. 463; Gale v. Archer, 42 Barb. (N. Y.), 320.)</p> <p>5. The appellant averred in his answer that the appellee did not have any title at all. This was sufficient to put appellee on an exhibition of his title. (Logan v. Bull, 78 Ky., 630.)</p> <p>6. Appellee contracted and was hound to deliver possession of the storehouse. Tf he is not in condition to comply, appellant should not he compelled to accept the tendered conveyance.</p> <p>7. The evidence shows that appellee burned the store-house, and for that reason he is not entitled to specific performance.</p> <p>8. It was error to require the appellant Joicey R. Henderson to join in the conveyance with her husband. (Tevis v. Richardson, 7 Mon., 660.)</p> <p>9. Specific execution of a contract in equity is a matter of sound discretion in the court, and will not he decreed where it would work injustice. (1 Story’s Eq., sec. 769.)</p> <p>1. This was an action for the sale of real property under a lien, and, therefore, the action was properly brought in the county in which the property was situated, (Civil Code, sec. 62, subsec. 3; Collins v. Park, 93 Ky., 6.)</p> <p>2. The description of the property in the contract is sufficient to satisfy the requirements of the Statute of Erauds. (Ellis v. Deadman, 4 Bihh, 467; Winn v. Henry, 84 Ky., 48.)</p> <p>• 3. After the lapse of forty years a grant from the State will be presumed. (Járboe v. McAtee’s heirs, 7 B. M. 280.)</p> <p>4. After the great lapse of time the court will not presume that the wives ' of the grantors in the deeds exhibited are still living. (Jarboe v. McAtee’s heirs, 7 B. M., 282.)</p> <p>5. It would be inequitable to allow the vendee to insist that the title was not perfect at the time fixed for performance when a deed was then tendered and he made no objection to the title. (More v. Smedburgh, 8 Paige, Chy., 605.)</p> <p>6. A lien for purchase money does not constitute such a defect in the title as entitles the vendee to a rescisssion. (Tapp, &e., v. Nock, 89 Ky., 419)</p> <p>7. The vendor did not assume the risk of the destruction of the storehouse by fire! (Marks v. Tichenof, 85 Ky., 536.)</p> <p>8. The title being subsequently made perfect, it is immaterial that the vendor was not able to make a good title at the time agreed on for performance, time not being of the essence of the contract. (Smith, &c., v. Oansler, 83 Ky., 367.)</p> <p>9. The lapse of time may give perfect title. (Logan v. Bull, 78 Ky., 614.)</p>

Case 32 — PETITION EQUITY — Appellants are the maternal kindred of the intestate, and therefore they . and not the widow inherit. (Gen. Stats., chap. 31, sec. 5; Idem, sub. sec., 9 of sec. 1; Idem, chap. 21, sec. 16; Cooley, The estate of a bastard descends in the maternal line to the mother, and she being dead her legal representatives succeed to her right.

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. Negligence — Pleading.—In this action against a railroad company ''u to recover damages for injuries received by plaintiff while coupling-cars in the discharge of his duty as brakeman, although it was alleged in the petition that the conductor was negligent’ in signaling . the engineer to back the locomotive while plaintiff was between the . cars, and that the injury would not have been received but for such, negligence of the conductor, yet as it is elsewhere in the petition alleged that the injury resulted from the negligent backing of the locomotive, and from defects in the coupling apparatus, the plaintiff was-entitled to recover if the injury resulted from negligence in either of these respects, whether the conductor was or was not guilty of negligence in signaling the engineer to back the locomotive.</p> <p>2. Master.and Servant — Defective Appliances — An employer can: not escape liability for an injury to a subordinate employe by reason of the defective machinery or appliances provided for his use, merely because the latter does not show he exercised care and diligence to-discover the character and condition thereof. The limit of inquiry in ■ such case is whether as matter of fact the employe did, before exposing himself to danger, know the machinery'or implements causing the injury to be defective. And while this rule does not apply where examination and inspection is in the line of the injured employe’s duty, yet a brakeman can not be reasonably expected or required to know: whether all the machinery and appliances of a railroad train are in proper condition.</p> <p>3. Evidence — Res Cestíe. — The declaration of the car inspector that he had been troubled with coupling of the two cars in question before the train started from the yard was competent as a part of the res gestae, although made ten minutes after the injury, and after plaintiff had been carried to the depot near where the injury oocurred. But even if proof of that declaration had been incompetent it would not have been prejudicial because the defective condition of the coupling . apparatus was otherwise fully proved.</p> <p>4. A written agreement by plaintiff to use a coupling stick in coupling cars was not binding, unless the coupling stick was in fact indispensable, or at least clearly necessaiy for security of brakemen against danger incident to coupling cars. And in determining whether a brakeman was guilty of contributory negligence in failing to use a coupling stick, it is in every case proper for the jury to consider the merit of the coupling stick; and as tending strongly to show that it does not answer the purpose for which it was designed, it is competent to show that it has been generally discarded by brakemen.</p> <p>5. Excessive Verdict. — A verdict for five thousand dollars for the loss of two fingers is so excessive as, to indicate passion or prejudice.</p>

<p>Casio 34 — PETITION ORDINARY —</p> <p>Briefs not in record.</p>

Case 35 — APPEAL TO CIRCUIT COURT — The measure of recovery is the market value of the land at the time it was taken without reference to uses to which it might be put in future, and without reference to its peculiar value for railroad purposes. (Henderson, &c,, R. Go. v. Dickerson, 17 B. M., ¡78; Elizabethtown, c&c., R. Co v. Helm,-8 Bush, 684; Robb v. Mt Sterling Turnpike Co., 3 Met., 117, Lewis on Eminent Domain, sec. 478 and notes.) 1.

Case 36 — PETITION EQUITY AND INDICTMENT — Whether or not the amended charter repealed tbe local option law as to the city, it is clear that the city, after it's passage, had the right to regulate the liquor question for itself, and the city having taken a separate vote, as it had a right to do, and voted in favor of the sale of liquor, the local option law no longer existed in the city.

<p>Case 37 — PETITION EQUITY —</p> <p>1. The defense set forth in the amended answer of the appellee B. H. Yancey as trustee of B. S. Yancey, can not he pleaded in this action by B. S. Yancey, or his trustee or other privies, such defense being pleadable only in the action in which the judgment now sought to be enforced was rendered. And so long as that judgment remains in force . this plea of appellee is barred. (Bochester v. Anderson, 3 Bibb, 339; Allen v. Hall, 1 Mar., 526; Hayden v. Booth, 2 Mar., 354; Carlysle v. Long, 3 Mar., 435; Moore v. Lockett, 2 Mar., 527; Cates v. Loftus, 4 Mon., 444; Hardin v. Smith, 7 B. M., 400’; City of Newport v. Taylor, 11 B. M., 362; Crahh v. Larkin, 9 Bush, 166; Talbott v. Todd, 5 Dana, 193; Webb v. Galloway, 1 Litt., 79; Lewis v. Stafford, 4 Bibb, 320; Shadburn v. Jennings, 1 Mar., 179; Clary v. Marshall, 5 B. M., 273; Alexander v. Slavens, 7 B. M., 356; Cates v. Woodson, 2 Dana, 455; McChord v. McClintock, 5 Litt., 304; .Eeltman v. Butt, 8 Bush, 120; 'Walker v. Thomas, 88 Ky., 486.)</p> <p>2. The amended answer of R. H. Yancey, trustee, failing to allege that appellant was “not a party on record” is fatally defective. (Gen. Stats , chap. 11, sec. 1.)</p> <p>1. The trustee is not bound by the judgment against the cestui que trust.</p> <p>2. To constitute a champertous contract, it is not necessary that a suit should be pending (Gen. Stats., chap. 11, sec. 1; Rust v. Larue, 4 Litt., 427; Davis v. Shannon, 15 B. M., 64; Miles v. Collins, 1 Met., 311; Brown v. Beauchamp, 5 Mon., 416; Chiles v. Conley, 9 Dana, 387; Swanger v. Crutchfield, 9 Bush, 416; Crowley v. Vaughan, 11 Bush, 518.)</p>

<p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>1.'Elections under new Constitution — Election of Coroner.— Section 148 of the new Constitution, which provides that no county officer “ shall be elected in the same year in which members of the House of Reprsentatives of the United States are elected,” did not forbid an election in 1892 to fill a vacancy in the office of coroner, although members of the House of Representatives of the United States were then elected. Section 148 of the Constitution, even conceding that it applies to vacancies, can not he given full effect until the elective machinery of the new Constitution shall have been put into full running order, the election of county officers in 1894, expressly provided for by section 99, being in the face of section 148.</p> <p>2. Notice of Election. — Where the time for holding an election is fixed by the Constitution or by statute, a notice of tbe election is not essential to its validity.</p>

Case 39 — PETITION ORDINARY — 1. Upon the issue made as to whether or not there had been any delivery of the policy and completion of the contract of insurance, the burden of proof was upon the plaintiffs, and it was error to assume in favor of the plaintiffs all the facts in issue upon this branch of the case, and then instructing them peremptorily as to the effect of those facts. 2.

Case 40 — PETITION ORDINARY — The indorsement of the name of Bowers & Carter on the note fixed their liability as assignors if it was a simple promissory note, or as indorsers if it had been placed on the footing of a foreign hill of exchange; and to admit parol testimony of any other liability is to change that evidenced by the indorsement. (Macklin v. Crutcher, 6 Bush, 401.) The case of Smith v. Turner’s Adm’r, 9 Bush, 417, distinguished.

<p>APPEAL FR^M CAMPBELL CIRCUIT COURT.</p> <p>1. Instruction as to Self-Defense. — -Upon a trial for murder, there being no testimony tending to show that the accused sought or provoked the difficulty, it was error to give any instruction upon that hypothesis. But even if the evidence authorized an instruction of that character, it was misleading to tell the jury they could not acquit upon the ground of self-defense, if they believed “from all the evidence,” that immediately before the shooting “the defendant, by his own wrongful acts then and there done by him,” gave the deceased reasonable grounds to believe that his life was in danger, as the instruction intimates that defendant's acts were wrongful; and, besides, requires the jury to believe only from a preponderance of the evidence, and not to the exclusion of a reasonable doubt, the facts that are said to be sufficient to deprive defendant of the right of self-defense.</p> <p>2. Same. — The court properly refused an instruction' to the jury on the subject of defendant’s right to pursue the deceased, as the testimony does not, in fact, show pursuit.</p> <p>3. Same. — The evidence did not authorize an instruction requiring defendant to seek some “ reasonable means of escape from the im- ' pending, peril ” before using the necessary or apparently necessary means at hand to protect himself.</p> <p>4. Evidence.— As the defendant had been informed of threatening language used by deceased, and there was some proof tending to show the deceased had, in anger, sought him, and the Commonwealth was allowed to show that deceased had no pistol on his person at the time of the killing, it was competent for defendant to show that deceased was a man of violent temper, and was in the habit of carrying concealed weapons just prior to the shooting.</p> <p>5.'Same. — Testimony showing the feeling .and mental condition of deceased at or near the time he had a conversation which was brought out by defendant was competent, as it was closely interwoven with that conversation and formed a part of the transaction.</p>

<p>Case 42 — PETITION EQUITY —</p> <p>1. The unsatisfied mortgage barred an eviction of the purchaser in possession, and appellee’s voluntary surrender by purchasing the rights of outside claimants was an unlawful surrender. While it was not necessary for appellee to wait until ousted by judgment and writ of possession, yet he should have waited until action was brought wherein appellant might have been substituted to defend. (Hamilton v. Outts, 4 Mass., 350; Rawle on Covenants for Title, pp. 264, 265; Sprague v. Baker, ! 7 Mass., 590; Dupuy v. Koeback, 17 Ala., 488.)</p> <p>By a conveyance of mortgage, the fee vests in and remains in the mortgagee until satisfaction of the mortgage, though held for security only. (Fitzhugh v. Croghan, 2 J. J. Mar., 438; McGoodwin v. Stephenson, 11 B. M., 21; Rawle on Covenants for Title, p. 368; Bartlett v. Borden, 13 Bush, 47.)</p> <p>2. If the grantor was seized in fact, though not of an indefeasible estate, then the covenant of seisin is not broken. (Bachus y. McCoy, 3 Ohio, 211; Forte v. Burnett, 10 Ohio, 327; Devore v. Sutherland, 17 Ohio, 60; Rawle on. Covenants, p. 63; Blanchard v. Cushman, 2 Oreenleaf, 268.)</p> <p>■3. The fact that the court erred in directing the warning order does not divest the purchaser at decretal sale of title to the land. ( V'ocum v. Foreman, 14 Bush, 494.)</p> <p>The judgment was erroneous only and not void. (Bullitt v. Commonwealth, 14 Bush, 74; Dorsey v. Kendal, 8 Bush, 294; Benningfield v. Reed, 8 B. M., Í02; Beasly v. Doty, 3 Dana, 32.)</p> <p>'1. The decree of the Federal court is void, and the sale made pursuant thereto conferred no rights on the purchaser as to the interest of the six abs nt defendants. (Hunt v. Wickliffe, 2 Pet., 214; In re King 7 Nát. Bankrupt' Register, 279; Brownfield v. Dyer, 7 Bush, 505; Gray v. Larrimore, 4 Sawyer, 645; Cissel v. Pulaski County, 3 M.OCreary, 446.)</p> <p>2. The covenant of seisin is broken the instant it is made, if at that time ■ the grantor did not have good title, and a suit may be maintained for a breach of the covenant before and without any eviction. (Fitzhugh v. Croghan, 2 J. J. Mar , 438-; Rawle'on Covenants, 4 ed., p. 83.)</p> <p>S. A covenant for seisin is satisfied only by the transfer of an indefeasible title. (Howell-v. Richards, 11 East, 641.)</p> <p>■4. The grantee is not bound to wait until he has been disturbed in his possession, but may purchase in the outstanding title and recover from the grantor the reasonable price which he has fairly and necessarily paid for the same. ('Warvelle on Vendors, vol. 2, p 988; Anderson v. Kuon, 20 Ala., 156; Berry v. Berry, 9 B. M., 487; Vanmeter v. Griffith, 4 Dana, 90; Rawle on Covenants, pp. 289, 175.)</p> <p>And he may also recover his necessary costs, including a reasonable attorney’s fee. (Robertson v. Lemon, 2 Bush, 301; Warvelle on Vendors, vol. 2, p. 1010.)'</p> <p>• 5. A mortgage is, simply a security to the mortgagee for his debt,' and the , mortgagor still remains the owner. (Jones on Mortgages, vol. 1, sec 31; .Woolley v. Holt-, 14 Bush, 788; Douglass v. Cline, 12 Bush, 608; Taliaferro v.. Gay, 78 Ky., 496.)</p>

Case 43 — INDICTMENT— 1. As the two writings exhibited by the witness Karr were not mentioned or described in the indictment, the court should have excluded them from the jury. (Claeban v. Commonwealth, 3 Met., 234;, Criminal Code, see. 124.) 2. To constitute the offense of obtaining money by false pretenses, the false pretense must consist of some past occurrence or some present existing fact.

Cane 44 — INDICTMENT 'The court should- have instructed the jury as to the offenfe of assault and battery, that offense being .included in the one charged in the indictment. (Criminal Code, secs. 262, 264.) Under the Code of Practice, the offense of assault and battery is not a degree of the offense of assault with intent to rob. (Criminal Code, sec. 265.).

<p>APPEAL PROM J EPPERSON COURT OP COMMON PLEAS.</p> <p>The master is not liable pok the act op his servant in directing a stranger into a dark room on the premises not used as a passage way for strangers; and if the stranger is there injured by-stepping into an unguarded opening in the floor he can not recover, of the master. And although the stranger may have been seeking the master for the purpose of delivering to him a message from one of his employes, he is to be treated as a mere intruder, so far as the duty or care oWed him by the master is concerned.</p>

<p>APPEAL FROM HENDERSON CIRCUIT COURT.</p> <p>Construction of Devise. — Under a devisé of land by a testator to his daughter “and her lineage,” the daughter takes a■fee-simple estate, the word “ lineage ” being used in tile sense of heirs.</p>

Case 47 — PETITION ORDINARY — No brief filed. Under the circumstances attending’ the settlement the burden was on the defendant to show'that no advantage was taken of plaintiff in its' procurement.

CASE 48 — PETITION — 1. The statutes of Kentucky give an appeal from the county court to the circuit court in a “ will case” only where the county court has “ probated ”. or “ rejected” the will. (Gen. Stat., chapter on “ Wills,” sections 26, 27, 35, 36; act April 23, 1873, Public Acts 1873, p. 60; Carroll’s Code, p. 380; State v. Fowler, 108 Mo., 465; Walkerley’sEstate, 94 California, 352.) 2.

<p>Case 41 — PETÍTION EQUITY —</p> <p>'The will, made and probated long before the act of April 29, 1890, was passed, vested appellant as executrix with full power, at her own discretion, to sell the stock and invest the proceeds, and she could not he deprived of that vested right, or controlled, by the act in question, or any.act passed by the Legislature after that right vested in her.</p> <p>'The ICenton Chancery Court is the only court of competent jurisdiction to decree a sale of this stock, or to confirm a sale already made by the executrix. (Act of April 29,1890, Acts 1889-1890, vol. 1, p..115.)</p>

<p>Case 50 — PETITION EQUITY —</p> <p>The plaintiff is entitled to a divorce upon any one of three grounds: Such impotency of the wife as prevents sexual intercourse; living apart without cohabitation for five years; contracting a loathsome disease.after marriage.</p>

Case 51 — PETITION EQUITY — Under section 1 of art. 5, chap. 71, General Statutes, the possession was amjcable so long as the city held the property. The city did not acquire the fee-simple title, but acquired only a public easement in the land condemned.

Case 52 — PETITION EQUITY — 1. The plaintiff’s sole ground for relief is fraud, and the burden of proof is upon him to establish that fact, which he has failed to do. The evidence as to the value of the land and of the mineral rights, relates to the time the testimony was given, and not to the time of the contract, and is, therefore, irrelevant. 2. The order of revivor was not made in time.

Case 53 — PETITION EQUITY — Where one induces a mother to part with the custody, company and service of her child, upon a promise that the child shall have his property, his estate is liable for the non-performance of the contract, and the child may sue in his own name, although the undertaking was not directly to or with him.

<p>Case 54 — INDICTMENT—</p> <p>Record and briefs misplaced.</p>

Case 55 — PETITION EQUITY — 1. Tlie moneys sent to the supreme lodge in response to the distress call did not belong to those who were injured, but were simply sent to the supreme lodge to put it in funds so that it could apply them, as it could any other funds it had, in the manner that, in the judgment of its committee, should appear necessary to relieve the distress. (Pulpress v. M. B. African Church, 48 Pa.

Case 56 — PETITION ORDINARY — 1. Undei; the. Code, there is no such thing as general pleading. (Civi; Code, sec. 95.) And under no- system of pleading, common law or Code, can the ■defendant admit the.facts from which .the law infers ownership and then merely deny the ownership. If he admits the seizin of the plaintiffs he is required, if he claims tifie in himself, to plead spedallj-his derivation of title.

<p>APPEAL FROM CHRISTIAN CIRCUIT COURT.</p> <p>TO CONSTITUTE A GOOD INDICTMENT FOR WILLFULLY AND MALICIOUSLY STRIKING ANOTHER WITH INTENTION TO KILL HIM, it ÍS not necessary to allege that the person struck was “bruised” thereby, although that word is used in the statute. It is sufficient to allege that the defendant did willfully and maliciously “ strike and wound” him.</p>

<p>Case 58 — MANDAMUS—</p> <p>The county judge acts ministerially upon the application for the writ of ad quod damnum, and, therefore, mandamus lies to compel him to issue the writ. (Gen. Stats, chap. 18i,- Common School Law, art. 8, sec. 6; McDonald, Justice, &e., v. Jenkins, &c., 14 Ky. Law Rep., 157; s. c., 93 Ky., 249.)</p> <p>1. As only one of the trustees is suing, there is a defect of parties. (Civil Code, sec. 24.)</p> <p>.2. The county judite acted judicially in refusing the writ, and, therefore, mandamus does not lie. (Commonwealth for, &c., v. Boone County Court, 82 Ky., 632.)</p>

Case 59 — PETITION EQUITY — 1. It will not be presumed that the testator intended to create an estate tail, such estates being forbidden by law. (Moore v. Howe, 4 Mon., 221; Moore v. Mooi’e, 12 B. M., 659.) 2. The words “ heirs of her own body ” are to be construed as synonymous with children, and the will, therefore, vested the mother with only a life estate, remainder to her children.

Case 60 — PETITION EQUITY — 'The word “heirs” was used in the sense of children. (Thurman v. White’s heirs, 14 B. M., 578; Harper v. Wilson, 2 A. K. Mar, 466; Feltman v. Butts, 8 Bush, 12 .) The words “equally divided,” and “share and share alike, ’clearly import a distribution per capita. (Purnell v. Culbertson, 12 Bush, 369 ; Brown’s Ex’or v. Brown’s devisees,.6 Bush, 648.) A distribution per stirpes, and not per capita., was intended.

<p>APPEAL PROM KENTON CHANCERY COURT.</p> <p>1. Municipal Corporations — Notice of Ordinance for Construction of Side-walks. — Whore a city charter authorized the city to construct side-walks and assess the cost of construction against abutting property, provided that the owners of such abutting property should, for the period of fifteen days, have the privilege of doing the work themselves, notice to the lot-owner of the passage of the ordinance or resolution providing for the improvement was necessary in order to give a lien for the cost of construction ; hut actual notice was not required. The passage and publication of the ordinance furnished the owner with constructive notice, which was sufficient.</p> <p>2. Actual notice is such notice as is required to be given in some particular way to each owner. Constructive notice is such as results ^from some public act required tobe done, and in a particular manner, and of which the owners of the property upon which the burdens are imposed are required to take notice.</p>

Case 62 — PETITION EQUITY — Under a suit to set aside a conveyance as absolutely fraudulent, a judgment can not be rendered declaring a preference. (Wintersmith v. Pointer, 2 Met., 460; Beatty v. Dudley, 80 Ky., 381.) 1. The appellant Wm. Stamper shows by his answer that he has no interest in the property adjudged to be sold, and he nowhere shows that his substantial rights are affected by the judgment. 2. The evidence establishes the alleged fraud.

Case 63 — INDICTMENT— The case at bar comes within the rules laid down in Sawyer, Wallace & Oo. v. Taggart, 14 Bush, 231, 232, and is unlike the cases of Smith v. Western -Union Telegraph Co., 84 Ky., 664, and Beadles, Wood &■ Co. v. McElrath & Co., 85 Ky., 230.

Case 64 — PETITION ORDINARY — As appellee continued in the employment of appellant with knowledge of the danger, he can not recover. (Hughes v. C,, N. O. & T. B. Co., 13 Ky. Law Bep., 72; Sullivan, etc., v. Louisville Bridge Co., 9 Bush, 89; Bogcnschutz v. Smith, 84 Ky., 330; Needham v. L. & N. B. Co., 9 Ky. Law Bep., 65; Derby’s Adm’r v. Ky. Central B. Co., 9 Ky.

<p>APPEAL PROM HART CIRCUIT COURT.</p> <p>I. New Trial — Plaintiff Required to Remit Part of Verdict.— In this action to recover damages for personal injuries, the court had no power to require the plaintiff, in order to avoid a new trial, to accept judgment for a less amount than that found in his favor by the jury, and upon appeal by the defendant from the judgment for the reduced amount, which plaintiff accepted under protest, there must be a reversal, either upon the appeal or cross appeal, as the court should have granted defendant a new trial, if there were errors to its prejudice, and, if not, should have rendered judgment for plaintiff in pursuance of the finding of the jury.</p> <p>'R. It was inexcusable negligence on the part of a fireman ac ring as engineer to leave a detached car standing on the side-track of. a railroad in such close proximity to the main track as not to allow a man’s body to pass between the car and moving cars on the main track, and a brakeman riding on the ladder of a car on the main track, going from one point of work to another, was not guilty of such contributory negligence as to preclude him from recovering of the company for injuries received by him by being crushed between the moving car and the car on the side-track, it being the custom of brakemen to ride in that way in the discharge of their duties.</p> <p>■3. Evidence — Res Gestie. — Statements made by the injured brakeman as to.how the injury occurred having been, brought out by defendant, it was competent for plaintiff to prove all that was said, as all the statements were made within a few seconds and evidently formed part of the same conversation. Besides, as the expressions were , within a few seconds after the accident, they were competent as forming part of the transaction.</p> <p>4. Instructions. — An uncontradicted fact may properly he assumed in an instruction.</p> <p>■5. Punitive Damages. — Gross, negligence is sufficient to warrant the finding of punitive damages, and, therefore, so far as the instructions in this ciise required the jury to find willful neglect' in order to give punitive damages, they were-too favorable to defendant.</p> <p>3. Contributory Negligence. — Although the plaintiff’s intestate was guilty of contributory negligence, the defendant is liable if the fireman in charge of the engine could, by reasonable diligence, have discovered his danger in time to avert the injury. To authorize a recovery, it is not necessary that the defendant should have had actual notice of the injured party’s fault in time to protect him.</p> <p>7. Limiting Time eou Argument. — The court did not abuse its discretion in limiting the time of counsel in their argument to twenty-five minutes, there being comparatively little conflict of testimony, and the instructions being unusually simple and direct. •</p> <p>• 8. Excessive Damages. — A verdict for $4,000 for the “ pain, anguish, loss of time,” etc., suffered by the plaintiff’s intestate during the ten days he lived after the accident was not excessive.</p>

<p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. Purchase by One Corporation of Property of Another — Liability for Debts of Vendor. — Where one corporation purcuases under legislative authority the property and franchises of another, it holds the property free from the claims of creditors of the vendor as if it had been an individual transaction.</p> <p>2. Same. — Where a town made a subscription to the capital stock of a railroad co.rpo-ation in consideration of the company building its machine shops in the town, a subsequent purchaser of the property and franchises of the corporation did not become bound to continue the machine shops in the town, and having removed .them the t >wn has no cause of action against it therefor. And oven if the town had a lien upon the property of the original corporation to secure performance of its contract, it waived its lien by allowing the property to be sold under judgment of court without asserting its lien.</p> <p>3. The failure of the purchaser to comply with a provision of its charter requiring it to continue certain trains run by the vendor dpes not give a right of action to the town for damages on that account. Por a violation of that statute the Commonwealth alone can maintain an action.</p>

Case 67 — PETITION EQUITY — 1. Appellants are entitled to the homestead exemption. (Allensworth v, Kimbrough, 79 Ky., 332; Myers’ Guardian v. Myers’ Adm’r, 89 Ky., 442.) 2. Injunction was the proper remedy. (High on Injunctions, secs. 147-269 ; Willard on Injunctions, sees. 125, 126.) 1. An order dissolving an injunction is not a final order and can not be appealed from. (Civil Code, secs. 296, 297; Rodman v. Eorline, 2 Met., 325.) 2.

Case 68 — PETITION EQUITY — A verbal agreement for the division of land is void. (White, &c., v. O’Bannon, 9 Ky. Law Rep., 334; Duncan v. Duncan, 13 Ky.

<p>APPEAL PROM MONTGOMERY CIRCUIT COURT.</p> <p>1. Homicide — Continuance.—Upon the trial of appellant for murder he was entitled to a continuance on account of the absence of a witness, who, if present, would have testified that the deceased, just before the killing, advanced rapidly toward defendant with an angry look, having his hand in his pocket, and when he came up threatened to kill defendant, the affidavit for a ¡continuance) showing that due diligence had heen used to procure the attendance of the witness.. And in view of the conflict in the testimony as to what took place immediately preceding the killing, the error in refusing a continuance was prejudicial.</p> <p>2. Same. — Defendant was also entitled to a continuance on account of the absence of witnesses whose attendance he had used due diligence to ■ procure, and who, if present, would have testified that deceased had offered to hire one of them to kill defendant, and also that deceased had purchased a rifle for the purpose, as stated by bim, of killing defendant.</p> <p>3. Instruction as to Manslaughter. — Upon a trial for murder, if there is any evidence tending to show the homicide is of the degr e of manslaughter, the accused is entitled to an instruction upon that hypothesis, as it is not the province of the court to weigh evidence for the purpose of determining whether the defendant is entitled to-such an instruction.</p>

<p>Case 70 — PETITION EQUITY —</p> <p>1. Where a city is indebted to the extent of twelve per cent, of the assessed value of all the taxable“property in the city, no further indebtedness except for ordinary current expenses necessary to carry on the machinery of the government of the city can be incurred until the indebtedness is reduced to ten per cent, of the assessment value of the taxable property in the city; and if it was indebted to the extent of ten per cent, at the time of the adoption of the new Constitution and has such authority under laws in force prior to the adoption of the Constitution, it may incur two per cent, additional indebtedness under these laws, under certain limitations and restrictions; that is, the debt may be created and increased from year to year until the limit of the additional two per cent, is reached, provided the debt incurred each year does not exceed the current revenue and income of the city for the year in which the debt is incurred; and if a debt is desired to be created in any one year beyond the current income and revenue for that year, it can not be done “ without the assent of ■ two-thirds of the voters thereof, voting at an election held for that purpose,” as provided in section 157 of the Constitution; and any indebtedness created in violation of that section is void. (Constitution, ■secs. 158, 159, 157, 166, 156; Spillman v. City of Parkersburg, 5 Am. Railroad and Corp. Rep., 370.)</p> <p>Bonds issued by a city in violation of the provisions of the Constitution as to the limit of indebtedness are void. (Buchanan v. Litchfield, 102 U. S., 278; Litchfield v. Ballou, 114 U. S., 191; Dixon County v. Pields, 111 U. ¡3., 83; Lake County v. Rollins, 130 U. S., 669; Scott v. Davenport, 34 Iowa, 208; Sutliff v. Board of County Commissioners, 147 U. S., 230.)</p> <p>'2. Section 158 of the Constitution was directed to the cities and towns, and was intended to bring them at once under its operation, the Constitution itself fixing the class to which the towns and cities shall belong. (Bast St. Louis v. United States ex rel Amy., 120 U. S., 600.)</p> <p>The courts will take notice of the Pederal census in matters of the population of the different towns and cities in the State at any particular date. (MeConnel v. Bowdry, 4 Mon., 394; Hart v. Bodley, Hard. 98; Coughton v. Bilbo, 1 Mon., 140.)</p> <p>3. The provisions of the Constitution limiting the tax rate of cities and towns operated directly upon all cities and towns in the State immediately upon the adoption of the Constitution. (15 Am. & Eng. Enc. of Law, p. 1123; List v. “Wheeling, 7 W. Va., 501; East St. Louis v. People, 114. 111., 655; East St. Louis v. United States ex rel Amy., 120 U. S., 798; Norton v. Board of Commissioners, &c., 129 U. S., 479; Scott v. Davenport, 34 Iowa, 208.)</p> <p>4. Special assessments upon abutting property to pay' the cost of street improvements are a violation of the requirements of the Constitution that taxes “ shall he uniform,” and that property “ shall he assessed for taxation at its fair cash value.’' (Constitution, sees. 171, 172; City of Norfolk, ei al., v. Chamberlain, 20 Va. Law Journal, pp 50-89; “Weeks, &c., v. Milwaukee, 10 “Wis., 258; Hammett v. Philadelphia, 65 Pa. tt., 146; Washington Avenue Case, 69 Pa. St., 362; Seely v. Pittsburgh, 82 Pa. St., 360; MeBean v. Chandler, 9 Heislt (Tenn.), 349; 2 Dillon on Mun. Corp., sec. 753.)</p> <p>1. As the general laws for the government of towns and cities provided for in section 166 of the Constitution, have not yet been enacted, the-city of Newport is still operating under its old charter and the amendments thereto.</p> <p>2. Even conceding that section 166 is in some degree qualified by section 158 of the Constitution, it can not help the case of appellant, as the first proviso of that section expressly authorizes an indebtedness in excess of the limitation prescribed therein, “when the same has been authorized under laws in force prior to the adoption of this Constitution.”</p> <p>But if it be doubtful from the language used, whether the meaning is that the law in force prior to the adoption of the Constitution, shall, as to the indebtedness authorized by it, remain in force, the debates make it clear that such was the meaning. (Debates of Const. Conv., vol. 2, pp. 2885 and 2886.)</p> <p>The courts will look to the Debates in construing the Constitution where the language used leaves the meaning in doubt. (Cooley’s Const. Limit., ed. 1883, Marg., p. 66.)</p> <p>3. The limitation of two per cent, referred to in the second proviso of section 158 applies solely to an indebtedness contracted subsequently to the adoption of the Constitution, under charter provisions, and independently of whatever indebtedness may have been contracted in virtue of special enactments prior to the Constitution.</p> <p>4. Sections 157 and 159 of the Constitution require future legislation tq give them effect.</p> <p>Courts must lean in favor of construction which will render every word operative. (Cooley’s Const. Limit., marg. p. 58, ed. of 1885.)</p> <p>5. Section 171 of the Constitution in requiring that taxes shall be uniform merely puts in express terms what has always heretofore been deemed a cardinal principle of taxation. (Lexington v. McQuillan’s heirs, 9 Dana, 517; Pearson v. Zable, 78 Ky., 173; 8 Bush, 513; Cooley’s Const. Limit., star page, 495, ed. 1883.)</p> <p>Local assessments for street improvements do not violate the rule requiring uniformity. (Lexington v. McQuillan’s Heirs, 9 Dana, 513; Louisville v. Hyatt, 2 B. M., 177; 78 Ky., 173; Burroughs on Taxation, pp. 459, 460; Cooley’s Const. Limit, marg. p. 507; People v. Mayor, &c., of Brooklyn, p. 419; 14 Bush, 21; Maddux v. City of Newport, 12 Ky. Law Bep., 657; Palmyra v. Morton, 25] Mo., 593; Dillon on Mun. Corp., sec. 596; 8 Bush, 511; 4 N. Y., '428; Cooley’s Const. Limit., top pp. 627, 628, 634, 635.)</p> <p>The words “tax” and “taxation” in the Constitution do not include the idea of local assessments. (Burroughs on Taxation, pp. 461, 462; Dillon on Mun. Corp., secs. 593, 600, 617, (1 st. ed.); Cooley on Taxation, p. 456; Broadway Baptist Church v. McAtee, &c., 8 Bush, 518; Buffalo City Cemetery Case, 46 N. Y., 506; Patterson v. Society, 24 N. J., 385; Bridgeport v. New York, &c., R. Co., 36 Conn., 255; Emery v. Gas Co., 28 Cal., 345; Street Cases, 20 La. An., 497; Garrett v. St. Louis, 25 Mo., 505; Beeves v. Treasurer of "Wood Co., 8 Ohio St., 333; Johnston v. Louisville, 11 Bush, 532; 13 Ky. Law Bep., 387.)</p> <p>6. There is an element of fairness in local assessments for street improvements. (Municipality v. Dunn, 10 La. An , 57; Philadelphia v. Eryon, 35 Pa. St, 40', 404.)</p>

Case 71 — PETITION ORDINARY — 1. The amended answer pleading in avoidance of plaintiff’s right to recover the land itself, the permission, consent and acquiescence of plaintiff in the building of defendant’s road on his land, and the putting of same in operation, stated a good defense, and the court erred in sustaining demurrer thereto. (Holloway v. Louisville, &c.., R. do., 92 Ky., 244.) 2.

Case 72 — PETITION ORDINARY — 1. The verdict is so excessive as to indicate passion or prejudice.

<p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. Construction of Devise to “ Wife and Children.” — A devise by a testator “ to my beloved wife and children,” naming the persons intended, and including in the list a step-son, and omitting one of the testator’s own children, gives to the persons named a joint and equal interest in the property devised, and not merely a life estate to the wife, remainder to the other persons named.</p> <p>2. Where a testator disposes of his -homestead by his will, and the widow accepts the provisions of the will, neither she nor the testator’s children can claim a homestead right, a person having the right to dispose of his homestead by his will as he may choose, subject only to the right of the wife to renounce the will and claim under the statute.</p> <p>A testator having devised his homestead to his wife and a portion of his children, an excluded child having inherited an interest by the death of one of the devisees, is entitled to have the property divided and her interest allotted to her.</p>

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. Railroads — Movemf.nt of Detached Cars. — A railroad company is guilty of willful neglect if it permits cars detached from an engine to- move along its track in a city or town without some servant in a position to give warning of the approach of the cars, and to control their movement. And where the company is guilty of such neglect, a pedestrian on the track who is struck by the cars and injured may recover of the company, although he failed to look to see whether cars were approaching.</p> <p>2. Same — Duty to Persons "Walking on Track by License of Company — Accidental Breaking of Train. — A person who uses a railroad track as a passway, whether by the license or mere acquiescence of the company, must he held to know the danger attending; the running of railroad trains, and to assume the ordinary risks attending such a use of the track. Therefore, where cars have become detached from an engine by accident, and are moving in that way without any servant in position to give warning of their approach, a pedestrian on the track who is struck hy the cars and injured can not recover of the company unless the break in the train was due to negligence on the part of the servants in charge, or to some defect in the machinery which- the company had failed, after notice, to repair, as such a person can not exact of the company a higher degree of diligence than it owes to an employe. Nor does the fact that such breaks in a train are frequent at a particular part of the track, by-reason of the grade, impose upon the company .the duty of placing-servants in a position to give warning to persons walking on. the track.</p>

Case 75 — PETITION ORDINARY — 1. Mere acts of n'-gligence do. not constitute an-assault and, .‘battery within the meaning of section 1 of chapter 10, General Statutes. (Anderson v. Arnold’s Ex’or, 79 Ky , 370.) 2.

<p>Case 76 — PETITION EQUITY —</p> <p>I. The exemption claimed is without consideration, and, therefore, unconstitutional. (St. Mary Industrial School v. Brown, 45 Md., 328; Commonwealth v. Masonic Temple Co., 87 Ky., 356; Gordon v. ■Winchester, 12 Bush, 114; Barbour v. Louisville Board of Trade, 82 Ky., 646; Burroughs on Taxation, sec. 25; Cooley on Taxation, pp. 88, 89; Philadelphia v. Wood, 39 Pa. St., 82; 11 Ky. Law Pep, 838; Cooley on Taxation, p. 107; Sharpless v. Philadelphia, 21 Pa. St., 147; 69 Pa. St, 352; 1 Hill, 50; 11 Pick., 396; 16 Mich., 209; 22 Wis., 660; 64 111., 427; 6 N. J., 352.)</p> <p>2. Even if the exemption is valid, it does not apply to local assessments for street improvements. (Broadway, &c., v. MeAtee, 8 Bush, 518; Loeser v. Bedd, 14 Bush, 23; Elliott on Boads and Streets, 376.)</p> <p>The defendants being charitable institutions, the exemption is valid, and it applies as well’ to local assessments for street improvements as to .any other form of taxation. (Commonwealth v. Masonic Temple Co, 87 Ky., 356; Lancaster v. Clayton. 86 Ky , 376, 379; Barbour v. Louisville Board of Trade, 82 Ky., 654; Burroughs on Taxation, p. ■ 25; Zable v. Baptist Orphans’ Home, 92 Ky., 89.)</p>

<p>Case 77 — PETITION EQUITY —</p> <p>The writing upon which appellant relies is a deed and not a will. The intention of the grantor as gathered from the whole instrument must control. (Henderson v. Mack, 82 Ky., 379; Bodine’s Adm’r v. Arthur, &c., 91 Ky., 53; Eeynolds v. McEarland, 10 Ky. Law Bep., 932; Owings v. Hill, 9 Ky. Law Bep., 468; Bench, et al. v. Nicks, et al., 50 Ark., 367; White v. Hopkins, 79 Ga., 430.)</p> <p>'The instrument under consideration does not take effect until the death of the maker, and is, therefore, testamentary in its character, and for that reason revocable. (Leaver v. Gauss, 62 Iowa, 214; Babb v. Harrison, 9 Eich. Eq., Ill; s. c, 70 Am. Dec., 203; Turner v. Scott, 51 Pa. St, 126; Devlin on Deeds, sec. 309; Johnson v. Yancey, 20 Ga., 707; s. c., 65 Am. Dec., 646; Simon v. Wildt, 84 Ky., 157; Habersham v. Yincent, 2 Yes. Jr., 204.)</p> <p>Subsequent acts and conduct respecting the land are entitled to great weight as showing the interpretation put upon the instrument by the maker. (Livingston v. Ten Broeck, 16 John., 23.)</p> <p>2. The petition of appellant is not sufficient in that it fails to specifically-charge that the purchase by appellee was with actual notice of the previous alienation of, the land by Jesse Phillips to appellant. Actual notice is a vital requirement .in every case where a volunteer seeks to recover against the subsequent deed of his grantor to a purchaser for value. (Endersjv. Williams, 1 Met., 353; Winter, &c., v. Mannen, &c, 81 Ky., 123; 1 Duv., 62; 84 Ky., 2; 2 Duv,, 167; 2 Met., 230; Story’s Eq. Pleadings, sec. 263.)</p>

<p>APPEAL FROM M’CRACKEN COURT OF COMMON PLEAS.</p> <p>1. An easement may be acquired and perfected by prescription so as to pass by descent to heirs at law, and whether acquired by deed or by possession, may be lost by entry and continuous adverse possession for the statutory period of fifteen years by even a tortfeasor.</p> <p>2. Adverse Possession of Basement of Burial. — Burial of the dead body in a cemetery lot is the only possession, when claimed and known, necessary to ultimately create complete ownership of the easement so as to render it inheritable; and as long as gravestones stand, marking the place as burial-ground, the possession is actual, adverse and notorious. Nor can there be an actual adverse possession by an intruder, nor running of the statute of limitations in his favor, while such gravestones stand there, indicating by inscription the previous burial of another.</p> <p>In this action, by which appellee seeks as heir-at-law to recover of appellant a cemetery lot, in which the bodies of his parents are buried,. the title to which is in the city, and in which no more than an easement could at any time exist, the instructions to the jury were as favorable to the appellant as he was entitled to ask.</p>

Case 79 — PETITION EQUITY — Rrief withdrawn. A mortgage executed pursuant to a contract made at the time the debt was created is not a preference. (Brooks, Waterfield & Co. v. Sta-ton’s adm’r, 79 By., 174; Zaxing v. Cox, 78 By., 527; Newby & Taylor v. Million, 2 Met.,(530; Grover v. Smith, 5 By. Law Bep., 250.) The case of McCutcheon v. Caldwell, 90 By., 249, distinguished.

Case 80 — PETITION ORDINARY — 1. The appellant is not estopped by mere silence from asserting her claim. (Ballard’s Real Estate Statutes, section 802; Story’s Equity, vol. 2, section 1533; Martin v. Wurts, 1 Ky. Law Rep., 406; Connolly v. Branstler, 3 Bush; Wright v. Arnold, 14 B. M.; Arnold y. Stephens, 13 Ky. Law Rep., 623; Riggs v. Stephens, 13 Ky. Law Rep., 634; 26 Ala., 547; 11 Ohio St., 42; 47 Ohio St., 366.) 2.

<p>APPEAL PROM LOUISVILLE CHANCERT COURT.</p> <p>1. Contract por Construction op Street — Agreement to Keep in Repair — Pleading—Where a contractor undertook by contract with a city to construct an asphalt pavement, and to keep it in repair for a term of five years from the completion of the work, the city to retain ten per cent, of the eost as -security for the performanee of the contract to keep the street in repair, in an action' brought at the end of the five years by persons who had succeeded by purchase to the right of the original contractor, seeking to recover of the city the ten per cent, retained, it was essential to the plaintiffs' cause of action that they should allege that the street was kept in repair as covenanted by the original contractor. It was not sufficient for them to allege that they were without knowledge or information sufficient to form a belief as to that matter, or that it was either kept in repair or was not kept in repair, and that they did not know which was true.</p> <p>2. Same — Parties to Action. — A company which covenanted with ■plaintiffs to keep the street in repair was improperly joined as a defendant, there being no contract between that company and the city-</p> <p>2.Transfer of Suits. — If there had been an issue made by the pleadings concerning the fact of the original contractor having kept the-street in repair, it would have been the duty of the chancellor, upon motion, to transfer the action for trial by jury.</p>

<p>Jurisdiction. — While a civil action can not be instituted in or transferred to the criminal branch of the Jefferson Circuit Court, the judge thereof may be empowered by statute, as has been done, to hear and determine, according to prescribed rules, a case pending in any other branch when the ends of justice require it.</p>

Case 83 — RULE— 1. The Kentuckyrule (whatever it may be elsewhere) is, that where a preliminary injunction is issued, and it is by the final judgment dissolved, and an appeal is prayed, and the final judgment is “ superseded,” the effect is to leave the preliminary injunction in full force pending the appeal. (Smith v. Western U. Tel. Co., 83 Ky., 279; K. & I. Bridge Co. v. Krieger, 91 Ky., 625.) 2.

Case 84 — PETITION EQUITY — As the infant was not made a defendant, nor the action brought by her guardian, nor the bond executed by the guardian to the infant before the order of sale, the entire proceeding is void, and confers no title whatever upon the appellant. (Civil Code, sees. 491, 493; subsee. 5 of sec. 489; Barnett v. Bull, 81 Ky., 127.) 'The amendment of April 4, 1882, published as part of see. 498 of Civil Code, has no application. 1.

<p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. Sales of Personal Property — Passing of title. — Under a contract for the sale of personal property, if any thing remains to he done by the vendor for ascertaining the weight or extent or price of property sold by him, whether the sale vests the right of property in the vendee presently or not until the thing has been done by the vendor f for ascertaining the weight, extent or price of such property, depends upon the intention of the parties manifested by the character of the ■contract, or circumstances under which it was made; and the question may sometimes be determined by the custom of the trade in respect to a particular commodity.</p> <p>In this action to recover the purchase price of tobacco which was destroyed by fire before it was delivered, it was competent for plaintiffs to show, in the absence of an express agreement between the parties in regard to manner of ascertaining net weight of the tobacco, that according to the custom of the tobacco trade, defendant, as purchaser was required to take it at the last ascertained weight, looking to plaintiffs to make good any loss or diminution.</p> <p>"2.. Same — -Even if the title to the tobacco was according to a fair construction of the contract not to vest until the quantity of tobacco and certain amount of price were ascertained, it was so vested when those things were done by plaintiffs in the manner indicated.</p> <p>'3. Evidence — Original Entries. — Independent of the provision of the Civil Code authorizing a person to testify for himself as to correctness of original entries, it was competent for plaintiffs to read to the jury from their warehouse books the original entries in reference to the alleged sale, and to exhibit the unsigned sale notes or invoices, for the purpose of showing they had complied with the conditions of the sale, or were ready to do so.</p> <p>4. Insurance by “Warehouseman for Benefit of Purchasers.— Defendant was entitled to bistro rata share of the money collected on open policies of insurance which plaintiffs had obtained prior to their sale to him. and which were in force at the time the warehouse was destroyed by fire, as the policies were not only upon tobacco owned by plaintiffs, but upon tobacco “ sold but not delivered.”</p>

<p>APPEAL FROM BREATHITT CIRCUIT COURT.</p> <p>1. The defendant was not prejudiced by the refusal of the court to grant a continuance, asked because of the absence of a witness, who, if present, would have sworn that defendant was of unsound mind, there being other witnesses present who did so testify, and the affidavit for a continuance, so far as competent, being read to the jury as evidence.</p> <p>2. Irregularity in the formation of the jury, or in the mode of summoning it, can not he shown by affidavit of the defendant, there being a record easy of access disclosing the facts. And where it appears that the jury was summoned by the sheriff and not by the jury commissioners, it is to be presumed that he performed this service under order of the court as provided by section 11 of article 4, ■ chapter 62 of the General Statutes.</p> <p>3. Exceptions. — Decisions of the court upon challenges to the panel and for cause are not subject to exception.</p> <p>4. The manner in which the judge is to satisfy himself of the impracticability of obtaining ,a jury free of bias in the county wherein a pi’osecution is pending|is by making a fair effort to obtain the jury in that county. He can not he controlled and guided by the unsupported affidavit of the defendant.</p> <p>5. Person other than Sheriff Appointed to Summon Jurors. — The court did not err in designating two persons other than the sheriff to summon petit jurors after the regular panel was exhausted, such a practice being authorized by section 193 of the Criminal Code.</p> <p>6. Statement of Case for Commonwealth.' — It was not error to permit an attorney, other than the regular attorney for the Commonwealth, to state to the jury the nature of the charge against the defendant.</p> <p>7. The fact that one of the witnesses for the Commonwealth heard the statement OF the case.ís not ground for reversal, the attention of the court not being called to the presence of the witnesses.</p> <p>8. Evidence — Prejudicial Error. — It was improper to allow a witness to testify as to inducements offered him by one of, defendant’s relatives and witnesses to testify for defendant, hut, as he was not present at the killing, and could have known nothing touching which he could have sworn for defendant material to his defense, the testimony was not prejudicial, as it is not to be presumed an intelligent jury would hold defendant responsible for the supposed imprudences of his friends, especially when they appear incredible and absurd on their face.</p> <p>9. Same. — The Commonwealth having been allowed, without objection, to prove by a witness for defendant that he was under indictment for perjury, it was competent for defendant to prove by the witness that the indictment had been procured by the relatives and friends of deceased who were prosecuting defendant; but as the indictment for perjury grew out of the testimony of the witness on a former trial of the case being tried, and all the testimony on the subject-matter of the alleged perjury was heard by the jury, they were in an attitude to judge. of the weight to be given the pendency of the indictment as affecting the credibility of the witness, and, therefore, defendant was not prejudiced by the refusal of the court to allow the witness to state by whom the indictment for perjury had been procured.</p> <p>10. Sending Jury to View' Ground. — Whether the jury should be sent to view the ground was á matter within the sound discretion of the court.</p>

Case 87 — PETITION EQUITY — The direction that the order of the county judge shall be made at the next regular term of his court after he receives the petition is mandatory, and not being complied with in this case, the order is void. Directions concerning the exercise of a delegated power to tax, have been universally held to be mandatory, and must be strictly complied with.

Case 88 — INDICTMENT— 1. The letter from the husband was confidential and privileged, and,, therefore, not competent evidence against the husband. (Civil Code-sec. 606; McGuire v. Malony, 1 B. M., 224; Elswick v. Commonwealth, 13 Bush, 155; Selden v. State, 74 Wis., 271; s. c., 17 Am. St. Bep., 144; 1 Greenleaf, secs. 334, 337, 342; 2 Bussell on Crimes, 981-6.) 2. The instruction as to manslaughter was erroneous.

<p>APPEAL PROM ALLEN CIRCUIT COURT.</p> <p>1. Forgery. — Making an alteration or erasure in any material part of a true instrument, whereby another may be defrauded, is a forgery. It is not necessary that the whole instrument should be made false or fictitious.</p> <p>Where a check for “ seventy cents,” the amount of which was also written in figures, thus “f -¿fo,” near the top of the check, was altered by inserting the figure “ 8 ” between the dollar mark and the figures “ 70,” leaving the words “ seventy cents ” in the body of the check unchanged, the alteration constituted a forgery, although the person to whom the check was presented for payment could, by close observation, have detected the forgery and prevented the consummation of the fraud.</p> <p>2. Same. — Upon the trial of the payee for the forgery, the fact that he alone had possession of the check, so far as the proof shows, from the time of its execution until its presentation for payment, coupled with the fact that he alone got the benefit of the .change made, was sufficient to authorize the conclusion that he was guilty of the forgery, and therefore the case should have been submitted to the jury.</p>

<p>APPEAL PROM MARION CIRCUIT COURT.</p> <p>1. Change op Venue — Waiver op Objection to Jurisdiction.— Where a criminal case in which there has been a change of venue is upon motion of defendant remanded to the court of original jurisdiction, he can not, alter being tried and convicted in that court, complain that it had no jurisdiction.</p> <p>2. Same. — Where the defendant has obtained a change of venue without. observing the formalities provided by the statute, the Commonwealth consenting, he can not, after being tried in the forum thus selected by him, question its jurisdiction.</p> <p>3. Same — The provision of the statute requiring that the record of a case, the venue of which has been changed, shall he filed in the court to which it is removed ten days before the first day of the next term of court, in order that it may stand for trial at that term, does not apply to criminal cases.</p> <p>4. A VERDICT WILL NOT BE SET ASIDE ON ACCOUNT OP THE MISCONDUCT; OP ATTORNEYS IN ARGUMENT TO tee jury where the trial was in other respects fairly conducted, and it is apparent that no other verdict could have been rendered without misconduct on the part of the jury-</p> <p>5. The court did not abuse its discretion in repusing a continuance becausejof the absence of witnesses, on account of whose absence continuances had repeatedly been granted, there being nothing to show that by á continuance their presence could he had at the next term, and the affidavit for a continuance being read as their deposition.</p>

Case 91 — INDICTMENT— There is a lack of harmony in the decisions of this court upon the question presented in this case, and the court is asked to review the cases and determine whether Stamper v. Commonwealth, 7 Bush, 612, is to be applied to all such statutes, or is to be restricted or is overruled. (Ward v Commonwealth, 3 4 Bush, 233; Evans v. Commonwealth, 11 Ey. Law Rep., 674; Mullins v. Commonwealth, 14 Ey. Law Rep., 569.)

Case 92 — INDICTMENT— 1. As the indictment does not charge that the shooting was done willfully,” it charges only a misdemeanor, and it was error to give instructions authorizing the jury to convict… Held: and the appellant properly convicted.

Case 93 — PETITION EQUITY — The appellant is entitled to a rescission because of the false representations as to value and the concealment of the existence of incumbrances, appellee having represented that he would make a good and clear title to said property, “ free from liens and mortgages,” and covenanted to “ execute a good and legal title.” 1.

Case 94 — PETITION ORDINARY — 1. The person entitled to an office can not bring an action to prevent usurpation of the office unless he brings it during the three months next after the usurpation. After that time it must be brought by the Commonwealth’s attorney, and the person entitled to the office can not sue to recover the fees until it has first been adjudged in the action brought by the Commonwealth’s attorney that he is entitled to the office.

Case 95 — PETITION EQUITY — There was an abandonment by appellee of his homestead, his conduct being.inconsistent with “a fixed purpose to return.” (Carter, Eisher & Co. v. Goodman, &c., 11 Bush, 228; Burch v. Atchison, &c., 6 Ky. Law Bep., 636; Curran v. Culf, Adm’r, 13 Ky. Law Bep., 84; Neth- ■ ercutt v. Herron, &c., 10 Ky.

Case 96 — PETITION ORDINARY — 1. To authorize a recovery on the policy sued on it is not sufficient that death resulted from accident, but the. accident must have been caused by external violence, or by means externally violent. In the case at bar there was no external violence, and, therefore, can be no recovery. McG-linchey v. Fidelity and Casualty Co., 80 Me., 251 (6 Am. St. Rep., 190), and Paul v. Travelers’ Ins. Co., 112 N. Y., 472 (8 Am. Rep., 758), distinguished. 2.

Case 97 — PETITION EQUITY — 1. The devisees having all consented to the probate of the will, and each having taken possession of his portion of the land as laid off to him by his father, it is now too late to complain. 2.

Case 98 — PETITION EQUITY — 1. The annoyances described in the petition constitute such a private; nuisance as will justify the interference of the chancellor. (High on Injunctions, sec. 778; Walker v. Brewster, L. R., 5 Eq, 25; Incbbald v. Robinson, L. R., 4 Ch, 388; Soltan v. DeHeld, 2 -Sim. N. S., 133; Snyder v. Cabell, 29 W. Ya, 48.) 2. The fact that the nuisances are only threatened is no reason for denying the injunction.

Case 99 — PETITION EQUITY — 1. James T. McDaniel was not seized with title in or possession of the-lands in his lifetime, and, therefore, his widow is not entitled to dower' therein or the rent thereof. There must be actual possession or right of possession in the husband during his lifetime to entitle his widow to dower. (Butler v. Cheatham, 8 Bush, 594; Gassaway v. Woods. 9 Bush, 72; Bustache v. Rodaquest, 11 Bush. 47.) 2.

Case 100 — PETITION EQUITY — 1. The grantor’s son Barry had no such vested estate in the trust property as he could devise by will, and his children take under the deed and not under his will the one-sixth interest which would have accrued to him had he survived the period at which it might have become vested in him. (Berry, Trustee, v. Williamson, &c., 11 B. M., 245.) 2.

Case 101 — PETITION ORDINARY — Brief withdrawn. 1. The rule of the company requiring a passenger to put his fare in the fare-box, and forbidding fares to he paid to the driver, is a reasonable and valid rule, necessary to protect the company, and to enable it to prevent losses and frauds, and to perform its public service. (Reese v. Pa.

<p>APPEAL FROM PIKE CIRCUIT COURT.</p> <p>1. Instruction as to Self-Defense. — Upon the trial of appellant for murder the court did not err in instructing the jury that they could not acquit, upon the ground of self-defense, if they believed from the evidence/ that at the time of the killing of deceased the defendant brought on the difficulty with him and sought his life.”. While the intention with which the difficulty was 11 brought on ” must be submitted to the jury in order to prevent such an instruction from misleading, and that intention must be to kill or seriously injure, yet in this case the felonious intent with which the difficulty must be believed by the jury to have been brought on sufficiently appears from the use of the words, “and sought his life.”</p> <p>2. Same. — Although the killing took place on the premises of accused, he was not prejudiced by an instruction telling the jury that they could not acquit on the ground of self-defense, if he had any 11 other safe or apparently safe moans of escape or protection,” as there was at the only time when defendant could, if ever, have reasonably believed himself to be in danger, manifestly no possible avenue of escape from the danger, and it is evident that the jury thought he was never in any danger from which he was required to escape.</p> <p>3. Prejudicial Error. — An instruction telling the jury they were the judges of the character and credibility of the witnesses was not prejudicial, as the effort of the Commonwealth to impeach the character of defendant’s witnesses resulted in establishing overwhelmingly their reputation for truth and veracity.</p> <p>4. The court did not err in refusing a continuance on account of the absence of witnesses, as the tri'alVas had four years after the indictment was found, and the affidavit disclosing what the absent witnesses would testify was read as a deposition.</p> <p>5. Impeachment of Absent 'Witnesses. — It was not error to allow the Commonwealth to impeach the reputation of the absent witnesses, as their testimony was placed upon the same footing as that of witnesses, who were present.</p>

Cask 103 — PETITION EQUITY — 1. The contract relied upon by appellees should be set aside upon tha ground that appellant was overreached and defrauded in its execution. (Woodward v. Woodward, 5 Sneed, 50; Bierer’s Appeal, 92 Pa. St., 266; Kline v. Kline, 57 Pa., 120; Kline’s Estate, 64 Pa, 122; Pierce v. Pierce,-71 N. Y., 157; 6 Ky.

<p>¡APPEAL FROM GREEN CIRCUIT COURT.</p> <p>The mandate of this court, in a criminal case, may issue immediately upon the decision of the appeal, as the provision of the Civil Code that no mandate shall issue, nor decision become final, until after thirty days from the day on which the decision is rendered, applies to civil cases alone.</p>

Case 106 — APPEAL TO CIRCUIT COURT — Land and the undeveloped minerals in or on it cannot be separately taxed. The land includes the minerals. (Gen. Stats., chap. 92, art. 1, secs. 1, 3, 4, 6, 7, 27; Cooley on Taxation, p. 227, and Notes; Idem, p. 225, 241, 267, 268, 269; People v. Parks, 58 Cal.,. 624.) The judgment should he affirmed. (Gen. Sats., chap. 92, art. 1, secs. 1, 3, 4, 7, 9.)

Case 106 — PETITION ORDINARY — While a carrier of passengers may, in good faith, with a view of facilitating business, adopt a rule which requires a traveler to purchase a ticket Before entering upon his journey, and upon' his failing to do so may charge and collect additional fare, when paid on the train, yet, as a condition precedent, it is the duty of the carrier to establish a depot at a convenient place, and provide it with tickets and a ticket agent, who shall be in…

<p>Oasis 107 — PETITION ORDINARY —</p> <p>1. Such patents as the one to Clapp, notwithstanding the fact that it excludes several thousand acres of land previously legally surveyed and patented, have been sustained by all recent decisions of this court. (Hall v. Martin, 11 Ky. Law Rep., 241 ; Moses v. Gatliff, &c., Idem, 356.)</p> <p>2. One can not have possession of land not patented in such a way as to avail himself of such possession anterior to an older patent. (Chiles v. Calk, 4 Bibb, 554.)</p> <p>3. Appellee’s possession will he limited to his actual close. (Brooks v. Clay, 3 Mar., 545; Smith v. Morrow, 5 Litt., 211; Hunter v. Christ-man, &o., 6 B. M., 465; Trimble v. Smith, 4 Bibb, 257.)</p> <p>4. Appellee’s possession could not by construction be extended beyond his enclosure even though his possession were within the interference. (Davidson, &c., v. Coombs, 5 Ky. Law Rep., 815.)</p> <p>No brief in record.</p>

Case 108 — INDICTMENT— The facts and circumstances alleged in the indictment do not constitute the offense of manslaughter, and, therefore, the demurrer should have been sustained. (Grim. Code, sec. 124; Idem, sec. 161, subsec. 2.) The indictment is ’sufficient. (Bishop on Crim. Rroo., vol.-2, secs. 502, 514; People v. Choiser, 10 Cal., 310; People v. Stevenson, 9 Cal., 273; Rex v. Mackalley, 9 Co., 65, 67a; Rex v. Briggs, 1 Moody, 318.)

Case 109 — PETITION EQUITY — 1. The widow took one-third of the land for life, and the son two-thirds in fee. Where two clauses of a will, or two devises in a will, are repugnant, the clause which is posterior in local position must prevail.

Case 110 — INDICTMENT— The lower court erred in not admitting the record of the bastardy proceeding. The fact that the date did not correspond with that stated in the indictment was immaterial. (Barnard v. Commonwealth, 94 Ky.)

Case 111 — INDICTMENT— The indictment is good, and the demurrer should have been overruled. (Bishop’s Crim. Proc., vol. 2, title, Raise Pretense; Barnard v. Commonwealth, 94 Ky.) 1. To constitute a false pretense within the meaning of the statute, the representation must be as to a then existing or past fact in contradistinction to something to be done in the future. (Wharton’s Am. Crim.

<p>APPEAL FROM KENTON CHANCERY COURT.</p> <p>1. To ENTITLE THE HUSBAND TO curtesy in the wife’s land it is not necessary that she should in person have been in possession of the land at the time of her death; it is sufficient that another was in possession for her use</p> <p>2. Same — Pleading.—The allegation by the husband in his answer that the wife died “ owning and possessing ’’ the land sued for is sufficient, if supported by proof, to sustain his claim to curtesy.</p>

Gash 113— PETITION EQUITY — 1. There was a misjoinder of parties and,of causes of action, and the court erred in refusing to require plaintiffs to elect. (Civil Code, sec. 83, and subsec. 4 of sec. 113; Sale v. Crutchfield, 8 Bush, 636.) 2.