Volume 95 — Kentucky Reports

<p>Case 1 — PETITION EQUITY</p> <p>APPEAL PROM LOUISVILLE LAW AND EQUITY COURT.</p> <p>1. The facts stated in the petition show a resulting trust independent of contract and not affected by the statute of frauds. (Trimble v. Puckett, 14 Kv. Law Rep., 209; s.e., 93 IIy.,218; Letcherv. Letcher,4J.J.M., 590; Bailey v. Welch, 4 B. M., 244; Paris v. Dunn, 7 Bush, 278; Montague v. Garnett, 3 Bush, 298; Pisclili v. Dumaresly, 3 Mar., 23; Pugh v. Boll, 1 J. J. M., 403; Brothers v. Porter, 6 B. M., 106.)</p> <p>2.'A resulting trust is not affected by Gen. Stats., chap. 63, art. 1, see. 19, unless it appears that the party furnishing the money assented to the borrower’s taking the title absolutely without recognition of the trust. (Lindsay v. Williams, 2 Duv., 475; Paris v. Dunn, 7 Bush, 278; Aynesworth v. Haldeman, 2 Duv., 566.)</p> <p>3. The written contract sued on is a valid equitable mortgage. (Jones on Mortgages, sees. 163 to 168; Courtney v. Scott, 6 Litt., 457; McGee v. Davis, 4 J. J. M., 70.)</p> <p>4. | Appellant’s older equity has priority over a purchaser at an attachment sale with notice. (Baldwin v. Crow, 86 Ky., 679; Carroll’s Code, sec. 212, note 8, and cases cited; Trimble v. Puckett, 14 Ky, Law Rep., 209; s. c. 98 Ky., 218.)</p> <p>1. The instrument of June 3, 1889, creates no equity at ail. It is only a promissory note, the latter part being merely descriptive of what the money was loaned for.</p> <p>2. There was at most but an agreement to mortgage, and such an agreement can'not take precedence over an attachment or execution without notice. The court should not widen the rule giving to an unrecorded mortgage priority over an attachment or execution lien where actual notice is given before a sale is had under the attachment or execution. (Gen. Stats., chap. 24, see. 10; Rarney & Smith M’f’g Co. v. Hart, Receiver, 8 Ky. Law Rep., 223.)</p> <p>3. Even if a mortgage was intended, the description is so indefinite that parol testimony would be necessary to identify the property, and. therefore the writing is within the statute of frauds. (Howler v.. Lewis, &e., 3 Mar., 445; Kay & Casey v. Curd, 6 B. M., 103; Hugate v. Hansford, 3 Litt., 262; Reed’s Heirs v. Hornbach, 4 J. J. M., 377; Caskey v. Williams, 10 Ky. Law Rep., 877; Hox v. Courtney (Mo.), 20 S. W. Rep., 20; Holmes v. Evans, 48 Miss., 250; King, &c., v. Wood, 7 Mo., 389; Ives v. Armstrong, 5 R. I., 568; Clarke v. Chamberlin, 112 Mass., 21; Horee v. Dutcher, 18 N. J. Bq., 402; Sheid v. Stamps, &c., 2 Sneed, 174; Gigos, &c., v. Cochran, &e., 54 Ind., 596.)</p> <p>4. An intervening creditor can plead the statute of frauds as against a parol contract made before his lien attached and which is executed after his lien. (White v. O’Bannon, 86 Ky., 93; Jones v. Allan, 88 Ky., 384.)</p> <p>5. Specific performance is discretionary with the court, and under the circumstances of this case ought not to be decreed.</p>

Cask 2 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The order of March 7, 1892, dismissing the action without prejudice, after it had been reversed by this court (13 Ky. Law Rep., 619), was void as to appellant, because it was entered without notice, which the rule of court.expressly requires. (Rule 4 of court; 16 Am. & Eng. Ency. of Law, 807; Varden v. Mount, 78 Ky„ 86.) 2.

Case 3 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. The brakeman was acting within the scope of his employment, and therefore the company is liable for his wrongful act. (4 Am. and Er.g. Railroad Oases, 587; 1 Am. and Eng. Railroad Cases, 461; 87 N. Y., 25; 46N.Y., 626.) 1. It was no part of the duty of the brakeman to eject trespassers from the train, and therefore the company is not liable.

Cask 4 — INDICTMENT APPEAL PROM LAWRENCE CIRCUIT COURT. 1. Any testimony tending to show that a person other than the accused committed the crime is competent. Therefore the dying confession of Granville Pearl should have been admitted. 2. It was error to allow the Commonwealth to impeach the defendant’ witnesses by showing their reputation three or four years before the trial. 1.

Case 5 — INDICTMENT APPEAL PROM ESTILL CIRCUIT COURT. 1. Instruction 3 is erroneous in that it excludes entirely from the consideration of the jury what appellant might have believed as to the danger or the reasonableness of that belief, and also in that it requires the jury, in order to acquit on the ground of self-defense, to believe that there was “ no other safe, or apparently safe, means of escape.” 2.

Case 6 — INDICTMENT •APPEAL PROM PULASKI .(CIRCUIT COURT. 1. The alleged dying declaration was incompetent as evidence because it did not appear that it was made under a sense of impending death (Vaughn v. Commonwealth, 86 Ky., 434; Bales v. Commonwealth, 14 Ky. Law Rep., 178.) 2.

Case 7 — INDICTMENT APPEAL FROM HARRISON CIRCUIT COURT. 1. The court erred in its instructions in excluding from the consideration of the jury all previous acts of hostility by the deceased toward the accused. (Bohannon v. Commonwealth, 8 Bush, 481; Oder v. Commonwealth, 80 ICy., 32.) • 2.

<p>Case 8 — INDICTMENT</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>In the absence of any qualification the legal day means from twelve o’clock midnight until twelve o’clock midnight. There are no fractions of a day ini the law. (Sec. 10 of art. 13, Election Law, Acts 1891-92-93, p. 168.)</p> <p>1. Tlie statute forbidding the selling or giving of liquor on election day is unconstitutional, as under it liquor can not be used on that day for medicinal or sacramental purposes.</p> <p>2. Election day ends at four p. m., and after that hour liquor may be sold without violating the election law. A calendar day was not in the contemplation of the framers of the Constitution or of the Legislature-(Con. of Ky., secs. 148, 154; sec. 10of art. 13, Election Law.)</p>

Case 9 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The publication complained of is plain and unambiguous in its terms; therefore the question as to whether the charge is bribery or not is a matter for the court and not for the jury to determine. (2 Thompson on Trials, sec. 2029, ed. 1889; Townsend on Slander and Libel, pp. 502-4, ed. 1890; Odgers on Slander and Libel, chap. 3.) 2.

Case 10 — PETITION ORDINARY APPEAL PROM WHITLEY COURT OP COMMON PLEAS. The warning order having been made without any affidavit upon which to base it, and that fact appearing affirmatively on the face of the record the decree and sale. thereunder were void. The provisions of the Code upon the subject of warning orders should he strictly pursued.

Case 11 — PETITION EQUITY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. The acts of the Legislature are silent as to v'hat kind oi system of electric railroads or electric propulsion is to be used, and in order to destroy the presumption that a dangerous system was not intended to be authorized by the Legislature, the burden is upon the defendant to show that the present sj’stem, being a dangerous system, is the only one by which it can use electricity at all for its cars.

<p>1. The right to a passway may be created by prescription over woodland as well as over inclosed land. In either ease the use of the way as a matter of right for the period of fifteen, years perfects the right.</p> <p>2. Discontinuance op Passway. — If the owner of land over which another has acquired a right of way by prescription wishes to inclose his land, he may apply to the county court to discontinue the right of way thus established and have another right of way opened for the benefit of tbe person who has acquired the right, and upon such an application the court will talco into consideration the equities of all the parties, and act accordingly.</p>

_Case 13 — PETITIONS ORDINARY Al-PEALS EROM ERANKLIN CIRCUIT COURT. 1. The act of 1884, conferring an exemption from taxation upon newly constructed railroads for five years, was repealed by the revenue law of May 17, 1886. Express Repeal: Bishop on Written Law, sec. 152; Sutherland on Statutory Construction, p. 199; State v. Kelly, 34 N. J. Law, 77; Commonwealth v. Churchill, 2 Met., 122. Legislative Intent: Endlich on Interpretation of Statutes, sec. 8.

Case 14 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. A condition defeats the estate to which it is annexed only at the election of him who has a right to enforce it; and notwithstanding its breach the estate, if a freehold, can only be defeated by an entry made. (2 Waslib. on Beal Property, p. 12; Cross v. Carson, 8 Blackf. (Ind.), 138; s. c., 44 Am. Dec., 743; Kenner v. American Contract Co., 9 Bush, 206.) 2.

Case 15 — PETITION EQUITY APPEALS PROM KENTON CHANCERY COURT. 1. The legal title of Vincent Shinkle to the property mentioned in the trust deed passed to the grantees in that deed, and therefore the separate deed of Emily Shinkle passed her dower.

<p>Case 16 — PETITIONS EQUITY</p> <p>APPEALS FROM LOUISVILLE CHANCERY COURT.</p> <p>1. Specific performance should never be compelled, unless an undoubted, good and marketable title can be made. (2 Warvelle on Vendors, p. 760; Bawle on Covenants of Title, sec. 32; Jeffries v. Jeffries, 117 Mass., 184; Bichmond v. Gray, 3 Allen, 523; Griffin v. Cunningham, 19 Grat. (Va.), 571; Morgan v. Morgan, 2 Wheaton, 290; Gill v. Wells, 59 Mo., 492; Kelly v. Bradford, 3 Bibb, 317; Lyon v. Swayne, 67 Pa. St., 439; Pratt v. Eby, 67 Pa. St., 404.)</p> <p>2. Courts of equity have no inherent jurisdiction to sell property of persons under disability, but must look solely to the statute for jurisdiction. (Henning v. Harrison, 13 Bush, 723; Smyser v. Walker, 79 Ky., 581; Civil Code, secs. 490, 491.)</p> <p>3. Dower and curtesy are entirely different estates, and dower does not constitute an estate in land until assigned. • (2 Minor’s Institutes, 157; Scribner on Dower, vol. 2, 27; Powers v. Powers, 12 Ky. Law Bep., 723.)</p> <p>4. A trustee or person occupying a fiduciary relation will not be permitted to traffic in the trust estate for his own benefit. (Eaucett v. Eaucett, 1 Bush, 544; Mitchell v. Moore, 7 Bush, 660; Covington & Lexington B. Co. v. Bowser, 9 Bush, 492, 508; Perry on Trusts, sec. 197; Clements v. Bamsey, 7 Ky. Law Bep., 445; Bogers v. Burbridge, 7 Ky. Law Bep., 48.)</p> <p>1. The Law and Equity Court had jurisdiction to order the sale. (Civil Code, sec. 490; Power ,v. Power, 12 Ky. Law Bep., 793; Kean v. Tilford, 81 Ky., 605; Henning v. Barringer, 10 Ky. Law Bep., 674.).</p> <p>2. The confirmation of the sale passes a good title, unless some secret fraud has been practiced upon the court, and only those are affected who. have notice. (Clements v. Bamsey, 9 Ky. Law Bep., 174.)</p> <p>3. The policy of the courts in this State has always been to uphold judicial sales whenever it can be consistently done, and where there is a doubt it is generally solved in favor of the validity of such sales.</p>

Case 17 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. 1. The bank was entitled to an attachment under the second subdivision, of sec. 194 of Civil Code. (Burdett v. Phillips & Bro., 78 Ky., 246; Francis v. Burnett, 84 Ky., 80.) 2. A deed of assignment does not convey even an equitable title until lodged for record. (Gen. Stats., chap. 24, sec. 10.) 3.

Case 18 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Breckinridge street had not been dedicated as a public street when the contractor did this work; nor was the property sought to be charged situated within a square bounded by streets; and, for each of these reasons, this tax can not be enforced against the property owners. (Preston y. Roberts, 12 Bush, 570.) 2.

Cash 19 — PETITION EQUITY APPEAL PROM WOLPE COURT OP COMMON PLEAS. The wife is entitled to alimony, although she did not institute the action for divorce. Sec. 6 of art. 3, chap. 52, Gen. Stats., applies only where the wife is in fault, and the grounds alleged by the husband are not sufficient if embraced in a petition by the wife to entitle her to a divorce. (Davis v. Davis, 86 Ky., 33.) 1.

<p>Case 20 — PETITION EQUITY</p> <p>APPEAL PROM DAVEISS CIRCUIT COURT.</p> <p>The special act regulating the practice in the Daveiss Circuit Court was not repealed by the new Constitution.</p> <p>No brief in record.</p>

Case 21 — INDICTMENT APPEAL FROM FLEMING CIRCUIT COURT. 1. Under the Fleming county prohibition law only a druggist can sell liquor upon the prescription of a physician and only one sale can be made on each prescription. (Commonwealth v. Reynolds, 89 Ky., 147; Parker v. Commonwealth, 11 Ky. Law Rep., 454.) 2. The act in question does not enlarge the rights and privileges of the distillers, but on the contrary abbreviates them. (Stickrod v. Commonwealth, 86 Ky., 285.) 3.

Case 22 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON X'LEAS. 1. The verdict is palpably against the evidence. 2. The letters admitted as evidence over the objections of appellant wei-e incompetent. 3. The court erred in instructing the jury that the burden was on the contestants to establish undue influence. (Civil Code, sec. 526; Idem, sec. 317, subsec. 6; Lyman v. Campbell, 88 Ala., 469; Harrel v. Harrel, 1 Duv., 203. 4.

Case 23 — PETITION EQUITY APPEAL PROM GRANT COURT OP COMMON PLEAS. The action of the court in refusing to transfer the action to the ordinary docket for a trial of the “legal issues” by jury is a reversible error, the chairccllor having no discretion. (Civil Code of Practice, sec. 12 ; Aulman & Co. v. Gibson & Co., 8 Ky. Law Rep., 62; Meek v. McCall, 80 Ky., 871; Hill v. Phillips’ Admr., 87 Ky., 170; Walker v. Leslie,. 90 Ky., 642; Hall v. Martin, 89 Ky., 9.) 1.

<p>Case 24 — PETITION EQUITY</p> <p>APPEAL FROM ^LOUISVILLE CHANCERY COURT.</p> <p>1. An unrecorded moi'tgage is good between mortgagor and mortgagee and between the mortgagee and attaching and execution creditors of the mortgagor. (Baldwin v. Crow, 86 Ky., 680.)</p> <p>2. A mortgage given only for a simultaneous loan is not a preference, though it remains unrecorded. (Farmer v. Hawkins, 79 Ky., 182.) See Terrell v. Jennings, 1 Met., 455; O’Neil v. Miller, 2 Bush, 295; Heidrich v. Silva, 89 Ky., 423; Brooks-Waterfield Co. v. Staton’s Adm’r,. 79 Ky., 176.</p> <p>3. A transfer claimed to be a preference must be attacked as such directly in the petition. It can not be attacked by proof, when the petition attacks another transaction. (Napper v. Yeager,. 79 Ky., 241; Fuqua v. Ferrell, 80 Ky., 69; Southwortk v. Casey, 78 Ky., 397.)</p> <p>4. A mortgagee in bad faith within the meaning of the preference act is one who assists the debtor in preferring other creditors. (McCann v. Hill, 85 Ky., 581; O’Neil v. Miller, 2 Bush, 280; Southworth v. Casey, 78 Ky., 397.)</p> <p>5. A deed for an adequate price without any agreement of the grantor to refund the price nor of the grantee to reconvey does not become a mortgage by an agreement of the grantee to pajr to the grantor the profit of a resale. Such agreement makes the sale a conditional sale and raises a trust in the profits. (Holmes v. Grant, 8 Paige, 243; Honoré v. Hutchings, 8 Bush, 695; Ogden v. Grant, 6 Dana, 473; Macauley v. Porter, 71 N. Y., 178.)</p> <p>6. Such a deed will certainly be considered as a deed and not as a mortgage within the meaning of the recording laws between the grantee and a stranger. (Macauley v. Porter, 71 N„ Y., 178.)</p> <p>1. Theodore Schwartz & Co. were insolvent. (Commonwealth v. Schwartz, 13 Ky. Law Rep., 929.)</p> <p>2. If the act complained of was a preference, then the intent to prefer is plain in this case. (Grimes v. Grimes, 86 Ky., 511; Hoffman v. Brungs, 83 Ky., 406; Terrell v. Jennings, 1 Met., 452; Drake v. Ellman, 80 Ky., 434.)</p> <p>3. The transfers to Robert Meier were, mortgages. (Pomeroy’s Eq. Jur., sec. 1195; Jones on Mortgages, vol. 1, secs. 264, 266, 274, 271 and 279; Am. and Eng. Ency. of Law, vol. 15, p. 783 and notes; Skinner v. Miller, 5 Litt., 85; Bright v. Wagle, 3 Dana, 253; Bdrington v. Harper, 3 J. J. Mar., 354; Honoré v. Hutchings, 8 Bush, 687; Oldham v. Healey, 2 J. J. Mar., 113; Blanchard v. Kenton, 4 Bibb, 457; Murphy v. Trigg, 1 Mon., 72; Stapp v. Phelps, 7 Dana, 296; . . Bright v. Taylor, 3 Dana, 252; Perkins v. Dye, 3 Dana, 170.)</p> <p>4. The lien of creditors, under the act of 1856, relates back to the time of the commission of the preference and overreaches subsequent liens. (Shouse v. Utterback, 2 Met., 53; Givens v. Gordon, 3 Met., 5S9; Drake v. Ellman, 80 Ky., 438.)</p> <p>5. An unrecorded mortgage is ineffectual against creditors acquiring a right before notice. (Helm v. Logan, 4 Bibb, 78; Graham v. Samuels, 1 Dana, 166; Stephens v. Barnett, 7 Dana, 258; Bank of United States v. Huth, 4 B. Mon., 450; Alexander v. Smith, 2 Duval, 518.)</p> <p>6. The equity of creditors, under the act of 1856, is superior to that of the holder of an unrecorded mortgage. (Hildeburn v. Brown, 17 B. Mon., ■ ■ 782.)</p> <p>7. If the recipient of the preference assists in procuring it or is guilty of fraud, he is prevented from prorating his claim. (McCann v. Hill, 85 Ky., 574; Southworth v. Gasey, 78 Ky., 397; O’Neil v. Miller, 2 Bush, 291; White v. Graves, 7 J. J. Mar., 523.)</p> <p>8. An agreement not to record a mortgage is an actual fraud. (Lehman v. Yan Winkle, 8 South, llep., 870; Hildeburn v. Brown, 17 B. Mon., 782.)</p> <p>9. The proviso of the act of 1856, art. 2, sec. 1, chap. 44, Gen. Stats., brings mortgages given for simultaneously created debts within the operation of the statute as preferences, unless recorded within thirty days and is made in good faith. (Terrell v. Jennings, 1 Met., 452; McCann v. Hill, 85 Ky., 574; Farmer v. Hawkins, 79 Ky., 182.)</p> <p>10. A mortgage may be good in part and a preference in part. (Whitaker v. Garnet, 3 Bush, 402.)</p> <p>11. A mortgage operating as a preference can be attacked any time within six months after it is recorded. (Sec. 2, art. 2, chap. 44, Gen. Stats.; Coger v. Stewart, 78 Ky., 59.)</p> <p>12. The object of pleading in actions brought under the act of 1856 is to compel the surrender of property for equal distribution among the creditors, and it is the last transfer that must be attacked to accomplish this purpose. (Fuqua v. Ferrell, 80 Ky., 69.)</p>

Cash 25 — PETITION ORDINARY APPEAL PROM LINCOLN CIRCUIT COURT. The court should have set aside the verdict as flagrantly against the evidence. (Bush v. Lisle, 89 Ky , 401; Zimlich, &c., v. Zimlich, &c., 90 Ky., 657; Hoerth v. Zable, 92 Ky., 202.) Cited: Jarman on Wills, ed. 1880, star pages 35, 36, 37 and notes; Snyder’s Ex’or v. Cunningham, 13 Ky. Law Rep., 24; Wills, &c., v. Tanner, &c., 13 Ky.

Case 26 — APPEAL TO CIRCUIT COURT APPEAL EROM MONROE CIRCUIT COURT. 1. As the ante-nuptial contract is not denied or attacked for fraud or want of consideration, it ought to he uphold. (Forwood v. Forwood, &c., 86 Ky., 115.) 2. As the wife bj^ that contract deprived herself of any interest in the husband’ s estate, she had no right to prosecute an appeal from the order probating the husband’s will. (Tinker v. Ringo’s Ex’or, 11 Ky. Law Rep., 120.) 3.

Case 27 — AGREED CASE APPEAL PROM DAVEISS CIRCUIT COURT. The general rule is that the mayor can not bind the city by the employment of an attorney without the concurrence of the council. (Memphis v. Adams, 9 Heisk (Tenn.), 518; s. c., 24 Am. Rep., 331; Bryan v. Page, 51 Tex., 532; s. c., 32 Am. Rep., 637; Carroll v. St. Louis, 12 Mo., 444, cited and approved in 15 Am. and Eng. Ency. of Law, 1119 ; Butler v. Charleston, 7 Gray (Mass.), 14, cited and approved in 15 Am. and Eng.

Case 28 — APPEAR TO CIRCUIT COURT APPEAL EKOM BOYD CIRCUIT COURT. ’ The general power of any court to make nunc pro tune orders such as was made in this case, the evidence being satisfactory, is not denied. The difficulty lies in the character of the evidence that is admissible to prove the oversight or misprision that is sought to be corrected.

Case 29 — PETITION EQUITY APPEAL FROM WHITLEY COURT OF COMMON PLEAS. 1. In cases of constructive service of process, if there is an entire absence of evidence as to the necessary preliminary steps having been taken, the court will presume that its officers did their duty. But when the record shows that certain steps were taken to obtain jurisdiction, and the law does not consider those steps sufficient, the judgment will be regarded as void for want of jurisdiction.

Case 30 — PETITION EQUITY APPEAL FROM PAYETTE CIRCUIT COURT. 1. The complex conveyances creating the liens to secure the payment of the notes sued on are to he regarded as mere mortgages. 2. An instrument will not he treated as the execution of a power unless the intention to execute is apparent and olear, so that the transaction' is not fairly susceptible of any other interpretation. (Blagge v. Miles, 1 Story, 426.) 3.

<p>Cask 31 — PETITION ORDINARY</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>1. Gross negligence makes employer liable even for act of fellow-servant of plaintiff. (Wagner v. Wetmoro, 12 Ky. Law Rep., G38; Greenwood v. McHenry Coal Co., 14 Ky. Law Rep., 330; Doyle v. Swift’s Iron & Steel Works, 5 Ky. Law Rep., 59; L. & N. It. Co. v. Robinson, 4 Rush, 509; L. & N. R. Co. v. Pilburn, C Bush, 575; L. & N. R. Oo. v. Brooks,-83 Ky.,135; L. & N. R. Co. v. Moore, 83 Ky., 075.)</p> <p>2. Appellee is liable if appellant’s injuries were caused by the negligence of appellee’s servants or agents superior to or in control of appellant. (L. & N. R. Co. y. Moore, 83 Ky., 675.)</p> <p>3. Appellee is liable for the acts of a fellow-servant of appellant if negligent in the selection and retention of such fellow-servant. (L. & N. R. Oo. v. Moore, 83 Ky., 675; O., M. & St. Paul R. Oo. v. Ross, 112. IT. S„ 377.)</p> <p>4. Was the engineer a mere fellow-servant of appellant? (See L. & N. R. Co. v. Collins, 2 Duv., 114; Port Hill Stone Co. v. Orme’s Adm’r, 84 Ky., 183.)</p> <p>1. If an employe incurs a risk that is as well known to him as to his superior officers, and an injury results, he can not look to the railroad for compensation. (L. & N. R. Oo. v. Shivell’s Adm’r, 13 Ky. Law Rep., 903; 2 Thompson, on Negligence, p. 1008; Bogenschutz v. Smith, 84 Ky., 338; Louisville, &e., R. Co. v. Cavens’ Adm’r, 9 Bush, 565; Cooley on Torts, 542.)</p> <p>2. Where two servants are in the same field of labor and in the same grade of employment, the one not superior or subordinate to the other, neither can recover of the master for an injury caused hy the neglect of his co-lahorer, although the neglect he gross or even willful. (83 Ky., 675; 84Ky.,173; Casey’s Adm’rv. L. & N. R. Co., 84 Ky., 79.)</p>

Case 32 — PETITION EQUITY APPEAL PIIOM KENTON CIRCUIT COURT. 1. The power of the court is limited to the reading of the statute as it is, and it can not alter or change the language to conform, to what it may suppose the Legislature intended contrary to the unambiguous meaning of the words used. Nor can anything found in the original and unsigned bill be resorted to for the purpose of aiding in the construction of the act. (Field v. Clark, 143 IT.

Cape 33 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. The car by which plaintiff was injured being a car from another railroad, if the defect was one of construction, arising from the way in which the car was built, and in consequence of that defect plaintiff was injured, defendant is not liable therefor.

Cass 34 — CONTESTED WILL APPEAL PROM GRAXT CIRCUIT COURT. I. The opinions of witnesses as to the capacity of one to make a will are not entitled to much weight; the facts from which their opinions are deduced are more satisfactory. (McDaniel’s Will, 2 J.'J. Mar., 337; Hunt v. Hunt, 3 B. M., 577.) 2.

<p>Case 35 — PETITION ORDINARY</p> <p>'1. If one grants a right of way for a railroad be is, by his grant, held to have consented to the consequences resulting from the proper use of the right of way. (Hortsman v. Lexington, &c., R. Co., 18 B. M., 221; Wolfe v. C. & L. R. Co., 15 B. M., 410.)</p> <p>And this rule should' he applied to the plaintiff in this case, the county court being hut the Commonwealth so far as this action is concerned, and so far as concerns its rights to the control, management and ownership of the public roads.</p> <p>2. Even if we are not correct in this proposition, the peculiar circumstances here are such that it must he held that by necessary implication the Commonwealth assented to the natural consequences of building the railroad in that place, and that no duty devolved on the company to protect the property of the public from tbe consequences resulting from the proper building of the railroad there. (McAboy v. Railroad Co., 107 Pa. St., 548; C. & P. R. Co. v. Speer, 6 P. E. Smith, 325; Inhabitants of Springfield v. Conn. River R. Co., 4 Cush., 71.)</p> <p>3. While a charter does not confer upon a railroad company the right to take a highway for its road-bed, unless that power is conferred in the charter by express words or by necessary implication, yet the power of the Legislature to gz'ant such authority is well established. (Inhabitants of Springfield v. Railroad Co., 4 Cush., 71; Kenton County Court v. Bank Lick Turnpike Co., 10 Bush, 531; Lawrence County Court v. Chatteroi R. Co., 81 Ky., 225.)</p> <p>4. In such cases as this the plaintiff is only entitled to l'eeover such damages as he could not, by his own act, have avoided. (Sedgwick ozi Daznages, side page 95.)</p> <p>1. A county may maintain an action for damages on account of an injury to a highway. (Lawrence County v. Chattaroi R. Co., 81 Ky., 225; L. & N. R. Co. v. Eiziley, 7 Ky. Law Rep.; Sedgwick on Daznages, sees. 69-75.)</p> <p>2. The county has a vested right in its highways, and while it may he that under the right of eminent domain the Legislature would have the power to gz'ant away this public franchise to one of still greater public utility, yet, in order to do this, the power would have to he clearly defined under the act; it can not he done by construction. (Inhabitants of Springfield v. Conn. River R. Co., 4 Cush., 63; 13 How., 81; 91 N. Y., 552; Boston & Albany R. Co., 53 N. Y„ 574.)</p>

Case 36 — PETITION ORDINARY APPEALS PROM HENDERSON CIRCUIT COURT. 1. Every owner of property in a city holds it subject to the right of the' city to improve its streets, and must submit to any loss or inconvenience occasioned thereby. (Dillon on IVIun. Corp., secs. 989-991; Newport Bridge Co. v. Eoote, 9 Bush, 272-3.) 2.

Case 37 — PETITION ORDINARY APPEAL PROM M’CRACKEN COURT OP COMMON PLEAS. 1. The rights of each party being derived from entries made by authority of Virginia, the laws of Virginia must control. (Compact with Virginia; Read v. Smith, 6 Mon., 455-499.) 2. When a patent bears two dates, the later must be taken as the true date. (McGowan v. Crooks, 5 Dana, 67.) A. fortiori, where the entry bears two dates, the later must be taken as the true date. 3.

Cask 88 — APPEAL TO CIRCUIT COURT APPEAL FROM LAWRENCE' CIRCUIT COURT. The appellant being a druggist and having given the notice required by law, the county court had no right to refuse to grant him license to retail spirituous and vinous liquors. The fact that he had been indicted for selling liquors did not show that he had assumed the business of a druggist for the purpose of retailing liquors.

Case 39 — PETITION ORDINARY APPEAL FROM BELL CIRCUIT COURT. The power to classify the various cities of the Commonwealth is vested in thelLegislature and in no other department of the government, and the courts have no power to review the action of the Legislature. (Constitution of Ky., sec. 156; Cooley’s Const. Limit.

Case 40 — PETITION ORDINARY APPEAL PROM DAVEISS CIRCUIT COURT. It is not possible to reach the conclusion that the injury would not have-occurred hut for the act of the plaintiff’s intestate. But even though it were by her fault the timber was precipitated upon her, the appellee is liable. (Bransom’s Adm’r v. Labrot, &c., 81 Ky., 639.) Given’s Adm’r v. Ky. Cent. R. Go., 12 Ky. Law Rep., 950, distinguished. 1. This was an action under section 3 of chapter 57, Gen. Stats.

*Casto 41 — PETITION EQUITY APPEAL FROM CHRISTIAN CIRCUIT COURT. 1. The limitation in the charter of the City of Hopkinsville on the power of the city and its authorities to create indebtedness was unrepealed and in full force at the date of the contract in question here. (Acts 1869-70, vol. 2, pp. 96, 106; Acts 1879, vol. 2, p. 970.) 2. Section 157 of the new Constitution was self-executing and in force at the date of the contract. (New Const., sec. 166; Cooley’s Const.

*Oase 42 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. Brief withdrawn. The defendant is an agency of the Commonwealth of Kentucky and can not 'be sued without the consent, of the Commonwealth. (Earnham v. Pierce, 141 Mass., 203; 1 Duv., 297; 81 Ky., 212; 82 Ky., 666; 13 Bush, 226.

Case 43 — PETITION ORDINARY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. Considering all the provisions of the act of 1884, the right of action accrues on the first of May, the second year after the assessment, when, for the first time, the bills are reported to the city attorney for suits to be brought on them. (Sessions Acts, 1883-84, vol. 2, p. 1260, et seq.; Gay v. City of Louisville, 14 Ky.

Case 44 — PETITION EQUITY APPEAL PROM JEPPERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Covenant to renew is a right of the lessee. (Wood on Landlord and Tenant, p. 675.) 2. The lessors having declined to buy, the lease was binding for fifty years.

(Use 45 — PETITION EQUITY APPEAL PROM HARLAN COURT OF COMMON PLEAS. The legal title not being in the vendor, his answer waiving his right to rely upon the statute, and asking in effect that a deed he made to plaintiff, should be given the same effect that would be given to a deed executed by him to plaintiff if the legal title had been in him.

Case 46 —PETITION ORDINARY APPEAL FROM LEE COURT OP COMMON PLEAS. The petition is good and the defendant should be compelled to plead to it. The demurrers do not reach to a defect of parties, but even if they did the parties are properly joined. r Cited in petition for rehearing: Husbands v. City of Paducah, 4 Kv. Law Rep., 992. Brief not in record.

Case 47 — PETITION ORDINARY APPEAL PROM LAWRENCE CIRCUIT COURT. The judgment is void, and for the error of the court in refusing to set it aside, it should be reversed. (Civil Code, secs, 125, 763; Blackwell v. Townsend, 13 Ky. Law Rep., 290; Dorsey v. Kendall, 8 Bush, 294; Anthony v. Kasey, 5 Am. St. Rep., 27; Falls v. Wright, 29 Am. St. Rep., 74; Seamster v. Blackstock, 5 Am. St. Rep., 262.) 1.

Case 48 — PETITION ORDINARY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. Where a new trial is improperly awarded and the second verdict is for the party obtaining the new trial, it will be ordered by the Court of Appeals to be set aside and judgment entered on the first verdict. (Hutcheson v. Plummer, Sneed, 322; Brevard v. Graham, 2 Bibb, 177; LeGrand v. Baker, 6 Mon., 243; Meek & McCall t. Patton, 12 Ky. Law Bep., 796.) 2.

Case 49-PETITION EQUITY APPEAL FRO At LOUISVILLE LAW AND EQUITY COURT. 1. Our contract is not that rve shall have the net earnings of the Louisville, Cincinnati & Lexington Railway Company on business coming to it from or over the Cumberland & Ohio road after it has been thrown into hotch-potch with the business of the Louisville & Nashville Railroad and borne a proportion of the general expenses of the entire system.

Case 50 — INDICTMENT APPEALS MOM PULASKI CINCUIT COUNT. The statute is broad enough to cover, and was intended to cover, the obtention of money or property by any one under or by a false pretense, statement or token, whether he made the pretense, statement or token himself or . procured it to be made by another; and thus construing the statute, the indictment contains all the material averments necessary to constitute the offense charged.

Case 51 — PETITION EQUITY APPEAL FROM LAWRENCE CIRCUIT COURT. The word “parent,” as used in section 9 of chapter 81, General Statutes,, does not include the putative father of an illegitimate child.

Case 52 — PETITION EQUITY APPEAR FROM FAYETTE CIRCUIT COURT. While a note signed by another than the firm name does not jrrima Jade bind the firm, yet where the partners authorize or direct a note to be signed by some other than the regular firm name, given for money or property received for and used by the firm, that note binds the firm and every member of it. (Macklin v. Crutcher, 6 Bush, 403; Carter v. Mitchell, 94 Ky.) 1.

Case 53 — PETITION ORDINARY APPEAL PROM HARD IN CIRCUIT COURT.

Cask 54 — PETITION EQUITY APPEAL FROM MONTGOMERY CIRCUIT COURT. The orders appealed from should he reversed, because tlie court below had no power or jurisdiction to rent out the land in controversy after its final judgment dismissing Ross’ petition, or to require the appellants, either as principal or sureties, to execute bonds for the rent of lot No. 2, in which Ross claimed’a life estate, nor to appoint a receiver to collect said rent bonds by execution or otherwise.

Cash 55 — INDIOTMENT ARRISA I. J.'I'.OM I! KT..1, CIRCUIT COURT. 1. The act of May 26, 1890, providing for a change of venue by the Commonwealth, is not unconstitutional. (Com. v. Davidson, 12 Ky. Raw Rep., 767.) 2. The Perry Circuit Court divested itself of jurisdiction by the change of venue to the Clark Circuit Court, and could not again acquire jurisdiction except by the case being remanded to it by that court, which was never done. (Hourigan y. Com., 15 Ky.

<p>1. Repeal op Statute — Local Option. — An act approved May 5, 1884, , making it unlawful to sell liquor in Hardin County, which took effect upon its ratification by the voters of the county at an election held for that purpose, as provided by the act, was not repealed by an act approved March 15, 1890, entitled “An act resubmitting to the voters of Hardin County the question, as to whether or not spirituous, vinous or malt liquors shall be sold in said county,” the latter act, which pro-' vided for a vote by magisterial districts, being intended merely as an amendment to the act of May 5, 1884, it being manifest that it was the intention that the act of 1884 should continue in force, except in such districts as might under the act of March 15, 1890, vote in favor of the sale of liquor. But even if that intention did not appear from the act itself, an act passed May 22, 1890, and at the same session, expressly amending the act of 1884, is sufficient to show that the Legislature did not by the act of March, 1890, intend to' repeal the act of 1884.</p> <p>'2. Be-enactment op Statute. — Even if the act of 1884 was repealed hy the act of March, 1890, as the act of May 22,1890, shows that it was the intention to amend it merely, the court will, in order to effectuate that intention so clearly expressed, treat the act of May 22, 1890, as re-enacting the act of 1884.</p>

Case 57 — PETITION ORDINARY API-KAI..FROM OAMPBUI.T. CIRCUIT COURT. 3. Appellant having received a plurality of the votes cast, or a majority of the quorum, was elected. (Morton v. Yungerman, 11 Ky. Law Hep., •886; 1 Dillon on Mun. Corp., p. 334; section 23 of the Kevised and Amended Charter of the City of Newport, approved February 17, 1874.) 2. The city had authority to enact the ordinance under consideration.

Cake 58 — INDICTMENT API'BAL FROM WOI.FU CIRCUIT COURT. 1. The indictment is bad in that it charges the defendants with “confederating and banding themselves,” when the offense, as set out in the statute, is that of unlawfully confederating- and banding themselves together, etc. 2.

<p>1. A motion in this court for a mandamus is tlie proper remedy to compel the lower court to grant an appeal in cases where the party complaining is entitled to an appeal.</p> <p>2. Final Order. — A judgment restraining a party from prosecuting any proceeding in another State to obtain possession of certain property and requiring him to dismiss an action then being prosecuted by him for such possession, and to send a telegram to bis attorneys -to that effect, appears upon its face to bo a final order from which an appeal lies, and the judge of the lower court having refused to grant an appeal, a motion in this court'for a mandamus to compel him to do so is sustained, as the term of the lower court at which tlie judgment was-rendered has not yet expired. The mere fact that the judgment is made operative only “until the further order” of the court, does|not make it merely an iniei-locutory order.</p>

Case 60 — MOTION APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The order appealed from is a final order and appealable. (Civil Code, sec. 368; City of Newport v. Newport Light Co., 92 Ky., 445.) 2. The clerk had a right to grant the appeal and issue the supersedeas. (Civil Code, sec. 7á4; City of Newport v. Newport Light Co., 92 Ky., 445.) The case of Louisville Industrial School of Reform v. City of Louisville, 88 Ky., 584, explained. 3.

Case 81-PETITION EQUITY APPEAL PROM PLEMING CIRCUIT COURT. 1. Whether a writing is a deed or a will depends upon the intention of the maker to he gathered from the instrument as a whole. (Simon v. Wildt, 84 Ky., 183 ; Phillips, &c., v. Thomas Lumber Co., 94 Ky.; Habersham v. Vincent, 2 Ves. Jr., 231.) 2.

Case 62 — INDICTMENT APPEAL PROM UNION CIRCUIT COURT. L If illegal evidence prejudicial to the accused has been admitted over bis objection, this court will not speculate as to its effect on the jury, but reverse the case and order a new trial. (Ooppage v. Commonwealth, 3 Bush, 533; Kennedy v. Commonwealth, 14 Bush, 361 McGraw v. Commonwealth, 14 Ky. Law Kep., 344-5.) 2. The explanations of bystanders in the absence of the accused were not competent evidence against him.

<p>Bank stock held by a- married woman in her namp. is not her separate estate under section 15, article 4, chapter 52, General Statutes, unless there is some indication or expression on the face of the certificate or transfer-book of such stock to the effect that it is for her “use.” The requirement of the statute, that it shall he expressed “that it is for the use of such female,” means the same thing as the requirement of the former statute that it should be expressed to he for her “ exclusive use; ” and in the absence of some such indication or expression other than the mere fact that the stock was taken in'the name of the “female,” the statute extinguishing the marital rights of the husband has no application, and upon the death of the wife the stock passes as any other unfettered personalty belonging to her.</p>

Cash 64 — PETITION ORDINARY APPEAL PROM DAYEISS CIRCUIT COURT. If the deed designates the persons who are to take the remainder upon the death of the life tenant, these persons alone can take under the deed; if it does not, the law of inheritance governs. This right of inheritance can not he from the life tenant who had no estate to transmit. It must he from Jeremiah Yewell, as we think, but in any event through him.

Case 65 — INDICTMENT APPEAL FROM I'ERRY CIRCUIT COURT. No brief in record. 1. The law denouncing a penalty for cutting or sawing off the brands of saw-logs is constitutional. (Commonwealth v. Puckett, 92 Ky., 206.) 2. Is it necessary to the validity of an indictment that it should have indorsed on the back thereof “a true bill,” followed by the signature of the foreman ?

<p>Options — Consideration.—An optional agreement to convey, although without any covenant or obligation to purchase and without any mutuality of remedy, will he enforced in equity if it is made upon proper consideration or forms part of a lease or other contract between the parties that may he the true consideration for it.</p> <p>Where it was stipulated in a lease of land to a railroad company that at the expiration of the lease the company should have the right to purchase the land at a certain price, the agreement was binding on the lessor, although there was no obligation upon the part of the lessee to purchase, the other undertakings of the lessee being a sufficient consideration.</p>

<p>1. Divorce and Alimony. — The provision of the statutes denying alimony to the wife, except “on a divorce obtained by her,” was intended to apply only in that class of cases where a divorce obtained by the husband involves fault of the wife, and not in cases where either party may maintain the action without reference to which is in fault. Therefore the wife was entitled to alimony in this case, although the divorce was obtained by the husband, the divorce being granted upon the ground that the parties had lived apart five years. And where the divorce is granted upon such a ground the husband should he required, as was done in this case, to pay costs of each party without inquiring whether the wife is in fault.</p> <p>2. Same. — It would be oppressive in this case to require the husband to pay for the support of the wife $400 annually during her life «or widowhood, as she may in due course of nature live unmarried twenty years, while he can. not be reasonably expected to earn money by his own labor more than a few years longer. He should, therefore, be permitted to pay whatever may be amount of allowance in a gross sum, and in a reasonable time; and under all the circumstances and in view of what he has already paid hy order of court, the sum of $1,000, payable as of the date of the judgment appealed from would be reasonable, the estate' of the husband, consisting of houses and lots, being worth about $20,000, and the wife owning property given her hy the husband worth $2,500, and also $500 in money.</p>

Case 68 — PETITION ORDINARY TRANSFERRED TO EQUITY— APPEAL PROM DAVEISS CIRCUIT COURT. 1. The couft was right in deciding that appellants and appellees were not partners in the tobacco, but was wrong in holding that they were partners in the commissions. (1 Bates on Partnership, sees. 1,17,19, 20, 21, 22, 23; Beecher v. Bush, 45 Mich., 188; s. c., 40 Am. Bep., 468; Boston & Colorado Smelting Co. v. Smith, 13 B. I., 27; s. c., 43 Am.

Case 69 — PETITION EQUITY APPEAL PROM MONTGOMERY' COURT OP COMMON PLEAS. 1. In this country it is the rule in case of a partition by a court, although no deeds he made, that there is an implied warranty of title, and it is not broken until eviction, and limitation does not begin to run until then. (Walker v. Hall, 15 Ohio St., 355; Dugan v. Hollins, 4 Md. Ohy., 139; 17 Am. and Eng. Ency. of Law, p. 784, and authorities there cited; Venable, &e., v. Beauchamp, 3 Dana, 321.) 2.

Cake 70 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT. The appellant prefers to take the land if the appellees can make a good title. This appeal is taken only because it fears. 1. The devise to the three children of David is a fee defeasible. (Yarble v. Phillips, 14 Ky. Law Itep., 363; Hart v. Thompson, 3 B. Mon., 488; Deboe v. Lowen, 8 B. Mon., 620.) 2. Who are included in “ survivor or survivors ” ? See Carter v. Blood-good, 3 Sandf., 293. 3.

<p>Case 71 — MOTION</p> <p>APPEAR PROM GRANT COURT OP COMMON PLEAS.</p> <p>1. The administrator can have no title or interest in the real estate of the decedent, and therefore had no right or power to maintain or even institute the action or special proceeding, whichever it may be called. (Gen. Stats., chap. 39, art. 2; 9 Dana, 281; Heeter, &o.t v. Jewell, 6 Bush, 512.)</p> <p>2. The administrator having no right to maintain the action, the heirs had no right to be substituted to the benefit of the notice or the motion made by him and thus become plaintiffs. (Gen. Stats., chap. 38, art. 12, sec. 9; Civil Code, seo. 131.)</p> <p>3. While the judgment, the execution, the sale and the deed are copied into the record, there is no order introducing them as evidence, nor were they used as such, and unless it affirmatively appear that they were used on’ the trial this court will not consider them on the trial here; and in their absence there is no support for the judgment. (Lynn Boyd Tobaoco Warehouse Co. v. Terrill, 12 Bush, 163.)</p> <p>1. The notice contained all the necessary allegations. (Gen. Stats., chap. 38, art. 12, see. 9; McGhee v. Sutherland, 8 Ky. Law Rep., 87.)</p> <p>2. The administrator having the right to maintain the action for the debt due bis decedent bad tlie right to purchase the land to satisfy his judgment and therefore to maintain this proceeding for its recovery. (ICrieger v. Bissell, Trustee, á Ky. Law Rep., 11; Civil Code, sec. 21.)</p>

Case 72 — AGREED CASE APPEAL PROM PAYETTE CIRCUIT COURT. The election of appellee in November, 1893, was unauthorized, and therefore appellant is entitled to hold the office until the election and qual- . ■ ilication of his successor as provided by law. (Secs. 160, 166,167 of the Constitution of Kentucky; seo. 1 of the schedule to the Constitution.) Cited: Secs. 148, 160 and 167 of the Constitution.

Case 73 — MOTION (Brief not in record.) The salient point in the application is the fact that in this particular case the Daveiss Circuit Court had no jurisdiction to set aside the assignment as 'fraudulent or to appoint a receiver, because the petition shows that the plaintiffs in the action where the assignment was canceled and the receiver was appointed were simple creditors and had no judgment and return of “no property found,” and no attachment was sued out. 1.

Case 74 — CONTEST OE ELECTION APPEAL FROM GARRARD CIRCUIT COURT. 1. There was not a sufficient service of the notice of contest. (Civil Code, sec. 625; Election Law, art. 8, sec. 5; Eleece v. Goodrnm, 1 Duv., 306.) 2. The appellant did not enter his appearance and neither did, nor could. do, any act to give the contesting hoard jurisdiction. (Batman v. Megman, 1 Met., 537.) 3.

<p>1. Where a married -woman did not voluntarily acknowledge a mortgage executed by her on her land, and was not examined separately and apart from her husband, in an action to enforce the mortgage, she had the right, upon an allegation that the clerk had made a mistake in his certificate, to show the truth by parol evidence, the mortgagee having knowledge of the facts, having been present by agent at the time of the acknowledgment.</p> <p>2. The wife’s execution of the mortgage having been procured by fraud of the husband, in which the agent of the mortgagee participated, and also by coercion, the mortgage is void as to her whether the acknowledgment was regular or not.</p>

Case 76 — PETITION EQUITY APPEAL PROM BRACKEN CIRCUIT COURT. 1. The Legislature had the power to pass the act of February 27, 1890, by which the so-called Bracken Academy and its trustees were abolished and the control of the property turned over to the appellants, the Trustees of Common School District No. 2.

•Case 77 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT.

Case 78 — PETITION EQUITY APPEAL PROM MABION CIRCUIT COURT. 1. J. M. Miller, by his marriage with Eliza J. Ray, took a freehold interest in her lands, both by common and statute law. . Whether that freehold would continue to him longer than her life depended, of course, upon the birth of a child. (Schouler on Domestic Relations, p. 142; Gen. Stats., p. 721.) 2.

<p>Cask 71) -PETITION ORDINARY TRANSFERRED TO EQUITY—</p> <p>APPEAL PROM HOPKINS CIRCUIT COURT.</p> <p>1. Mrs. Roden did not “join with her husband in the conveyance of her land,” nor did she acknowledge any such conveyance, but expressly limits the instrument she signed with her husband to the release of dower. For thisTeason and the further reason that Mrs. Roden was under twenty-one years of age when she signed the deed with her husband, Roden, the three years statute does not apply. (Gen. Stats., chap. 71, art. 1, sec. 6; Hatcher & wife v. Andrews, 5 Bush, 561; Hedger v. Ward, 15 B. M., 116.)</p> <p>_2. A married woman can not divest herself of title to her realty in any other manner than that prescribed in the statute, nor can the court undertake to reform a deed that she may have signed so as to make it conform to her supposed intention. (Meier v. Blume, 80 Mo., ]84; Schooler's Domestic Relations, sec. 94, p. 161.)</p> <p>3. "Where the husband conveys .the wife’s land without her joining in the deed, the statute of limitations does not begin to run against the wife until she becomes discovert, and then the statute must run fifteen years before the wife is barred of her right to recover the land. (Stephens v. McCormick, 5 Bush, 182.)</p> <p>1. The court erred in transferring the action to equity. (3 Pomeroy’s Equity, see. 1374; Newman’s Pleading and Practice, 125, 239 to 241; Bennett & wife v. Titherington, 6 Bush, 70.)</p> <p>2. Neither the deed nor the acknowledgment of the deed of a married woman can be reformed in equity. (Abbott’s Trial Evidence, p. 174; Williams v. Gatmen, 53 Miss., 721; Bishop on Contracts, sec. 926; Boone’s Law of Real Property (Pony series), sec. 374; Butler v. Buckingham, 5 Day, 492; Dunlop v. Mitchell, 10 Ohio, 117; Bresser v. Kent, 61 111., 426).</p> <p>3. A release of dower operates only by way of estoppel, and then only in behalf of tlie husband’s purchaser. It can never take effect as a grant. (Stewart’s Husband and Wife, sec. 272; Reiff v. Horst, 05 Md., 42, 47; Drench v. Lord, 60 Me., 527, 542; Mallory v. Horan, 12 Abb.. Pr., N. S., 289, 295; Itetzmeller v. Van Rensselaer, 10 O. St., 63; Robinson v. Bates, 3 Met., 40; Dearborn v. Taylor, 18 N. II., 153.)</p> <p>4. Limitation did not begin to run until the husband’s death, and the action was not barred until fifteen years from that time. (McLain v. Edwards, 6 B. M., 210; 1 Bishop on Married "Women, secs. 535, 537, 538, 568; Miller v. Miller, Meigs’ Rep., 484; Eaton v. Whittaker, 18 Conn., 222; Butterfield v. Beall, 3 Ind., 203; Bruce v. Wood, 1 Met., 542; McLain v. Gregg, 2-Mon., 260; Stephenson v. McCormick, 5 Bush, 181; Bailey .v. Duncan, 4 Mon., 260; Merriman v. Caldwell, 8 B. M., 33; Miller v. Shackleford, 3 Dana, 299; Oldham v. Henderson, 5 Dana, 256.)</p> <p>1. Since the act of 1846 the husband has had no vendible interest in the wife’s land, and therefore if the deed of April 13, 1871, he regarded as the deed of James H. Roden alone, it passed nothing, and the wife’s right of action accrued at once. (Johnson v. Sweat, &c., 81 Kv., 392;. Butler, &c., v. McMillan, &c., 88 Ky., 414.)</p> <p>2. Limitation as to actions for the recovery of real property runs as to persons under disability, and the only difference between them and other persons is that the bar can not become complete as to them until three.. years after the disability is removed. If the disability is removed as much as three years before the expiration of the fifteen years, then the action is barred at.the end of fifteen years as in other cases. (O’Dell v. Little, 82 Ky., 146)</p> <p>3. Even if the cause of action is to be regarded as not accruing until the death of the husband, still the action is barred. Section 6, of article 1, chapter 71, General Statutes, was intended to cure all defects in the conveyances of manned”women after ¡the expiration of three years from the death of the husband, and where the wife has, together with the husband, signed and acknowledged the conveyance, she must be deemed to have “joined” in it within the meaning of that statute. (Hargis, &c., v. Ditmore, &c., 86 Ky., 653.)</p>

Case 80 — PETITION ORDINARY APPEAL PROM WARREN CIRCUIT COURT. 1. Defendant’s motion for a peremptory instruction should have been sustained, because the affirmative allegations of the facts constituting-contributory negligence set up in the second paragraph of the answer are not denied. (Civil Code, sec. 126; Depp v. L. & N. B. Co., 12 Ky. Law Bep., 366; L. & N. B. Co. v. Schuster, &c., 10 Ky.

Case 81 — PETITION ORDINARY APPEAL PROM LYON CIRCUIT COURT. 1. The testimony of Henry A; Nisbet, one of the appellees, as to statements of his deceased father and aunt were incompetent. And the fact that those statements related to “pedigree” does not alter the rule. (Subsection 2, of sec. 606, Civil Code; Hurry v. Kline, 14 Ky. Law Iiep., 330.) 2. Much of the testimony of this witness would be inadmissible as “pedigree” even if testified to by a competent witness.

(Jase 8‘2 — MOTION APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 'The supersedeas has the effect to suspend tlie judgment dissolving the temporary preventive order and all proceedings until this appeal is determined. (Smith v. Western Union Telegraph Company, 83 Ky., 269; Elizabethtown, &c., B. Co., v. Ashland, &c., Street R. Co., 15 Ky. Law Rep., 258; Barker v. Edlin, 9 Ky.

Case 83 — PETITION EQUITY APPEAL FROM ANDERSON CIRCUIT COURT. 1. Tlie proper construction of the will is that the testator wished his “business ” to be carried on in his name, and at the risk and profit of his estate, for three years after his death; and then the “business” was no longer to be carried on as his, and at the risk of his estate. It does not require a destruction of the value of the distillery by the destruction of its name and trade-mark. 2.

Oak to 84 — PETITION ORDINARY APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1.

Case 85 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1. The trial court did not have jurisdiction of appellant. (Civil Code, secs. 58, 73, 78, 80, 419.) 2. It was error to take from the jury, by peremptory instruction, the issues of fact. 3. In the absence of allegation and proof of legislative authority the appellant could not lease, or be made liable for injuries occurring on the Western & Atlantic Railway. 1.

Case 86 — PETITION EQUITY APPEAL PROM.CLARK CIRCUIT COURT. 1. Where stock is paid for at less than par under a fair understanding between the corporation and the stockholders, the contract is valid and there is no debt. (Scoville v. Thayer, 105 U. S., 143.) 2.

<p>Improvement by Guardian of Ward’s Beal Estate — Bight of Contractor to Subject Increase, in Rents. — Where the property of wards had been enhanced in valnebyimprovements erected under acontract made by the guardian in good faith for the benefit of the wards, and it was held upon a former appeal that, although the guardian had no power to make the contract, the contractors might subject the rents of the property to the payment of the actual cost of the improvements to the extent that they had been increased by reason of the improvements,- the fact that it now appears that by reason of the decline in business or from other causes there has been such a falling off in the rents that they are very little in excess of what they were prior to the making of the improvements, does not entitle the contractors to apportion the rent so as to throw upon the infants any part of the burden of the loss. Tiie contractors can subject only the amount in excess of that which the property yielded before the improvements were made.</p>

Case 88 — PETITION EQUITY appeal prom jeeeerson circuit court, law and EQUITY DIVISION. (No brief in reoonh) 1. Appellees have a right to be protected in the use of the words “ Blue Lick ” as a brand or trade-mark in the prosecution of their business.

Case 89 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. 1. To satisfy the requirements of the Statute of Frauds, it is not necessary that the contract itself between the parties be reduced to writing, but it is sufficient if its terms can be ascertained from some note or memorandum which is authenticated by the signature of the party to be charged. (Lawson on Contracts, sec. 77; 8 Am. & Eng.

Case 90 — PETITION EQUITY APPEALS FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. ’By the deed from Wni. Cornwall to his sons, as trustees for his daughter, the title passed completely, subject only to be divested by the exercise of the reserved power of revocation. (Jones v. Clifton, 101 TJ.-S., 229.) Bland v. Bland, 90 Ky., 400 ; Dumesnil v. Dumesnil, 92 Ky., 526,. explained. 2. The power of revocation did not pass to the assignee. (18 Am. and Eng.

Cast: 91 — INDICTMENT APPEAL FROM MAGOFFIN CIRCUIT COURT. The jury that tried the ease was not selected and impaneled in the manner prescribed by law. As to whether tlie jury was secured in accordance with law, see chapter 210, jiage 948 of Acts 1891-2-8, and especially section 27 of article 4 of that Act.

Case 92 — PETITION EQUITY APPEAL PROM CAMPBELL CHANCERY COURT. 1. The court had full power to settle all property rights of the parties in any litigation subsequent to divorce. The order of restoration rendered by the court, when the divorce was granted, cuts off no equities or rights of the appellants. She lost thereby no rights which the law gives her as the former wife of the appellee.

Case 98 — PETITION 'EQUITY— APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The writing relied on by appellee is at best nothing more than a license, and the fact that the license is in writing gives it no more force than if it had been verbal. (Johnson v. Skillman, 43 Am. Rep., 194; 'Wiseman v. Lucksinger, 38 Am. Rep., 479; St. Louis National Stock Yards v. Wiggins Kerry Co., 54 Am. Rep., 243; Jackson ex de Hull v. Babcock, 4 John., 419.) Licensee is not entitled to notice to quit.

Case 94 — PETITION EQUITY APPEAL FROM GRANT CIRCUIT COURT. The debt owing to the estate of J. C. Hedger, deceased, for the purchase money lien on the three hundred acres of land is tobe treated as any other .debt owing by the testator, and the personal estate of the testator must first be applied to its payment.

<p>1. The statute of the United States as to the removal of causes from State courts to the Circuit Court of the United States does not in terms require any other proof of a fact stated as a cause for removal than affidavit of the party applying or his attorney. In this case, however, no question can arise about sufficiency of the proof, because the statement of the essential fact in the petition for removal not being controverted was properly accepted by the court as true.</p> <p>2. Same — Amended Petition. — The defendant, having filed his petition for, removal at the proper time, had the right, before plaintiff had taken any other step nr the case, to file an amended petition setting up an additional cause for removal.</p> <p>■3. Same — A suit against a receiver of a railroad company, appointed by judgment of the Circuit Court of the United States, to recover damages resulting from alleged improper construction and operation of the road upon plaintiff’s land, is a suit “ arising under the Constitution and laws of the United States” and subject to removal from a State court to Circuit Court of the United States.</p>

Case 96 — PETITION EQUITY APPEAR FROM JEFFERSON CIRCUIT, CHANCERY DIVISION. Brief withdrawn. 1. The right of renewal in a lease entitles the lessee to only one renewal. Otherwise it may lead to a perpetuity, and this would be illegal, or, in this case, continue during the pleasure of Gray and his heirs and descendants forever. (Morrison v. Bossignol, 5 Cal., 164; Cunningham v. Pattee, 29 Mass., 248.) 2.

Case 97 — PETITION ORDINARY APPEAL FROM HARDIN CIRCUIT COURT. 1. The evidence shows that appellant had been a farm laborer, and when he began to work for appellee, told the foreman that he knew nothing of the business and that he would have to instruct him, which he agreed to do.

Case 98 — PETITION EQUITY APPEAL FROM MENIFEE CIRCUIT COURT. 1. In construing a deed, the intention of the parties at the time of making the deed should prevail, and technicalities should give way to such intention. (6 Ky. Law Kepi, 568; 9 Ky.'Law Bep., 523; 10 Ky. Law Bep., 779, 852; 60 Ind., 337,; 122 111., 317; 38 Cal., 481; 25 Cal., 449; 61 N. Y., 631; ■ 82 Ky., 379.) 2.

<p>i. Constitutional Law — Power op Legislature to Change Compensation op Oppicbr During His Term. — Under the present Constitution of this State the Legislature has no power to change the compensation of an officer during his term of office, whether he be a salaried officer or paid by fees. Therefore the act of June, 1893, requiring- the clerk of the Court of Appeals to pay into the State Treasury all fees received by him after retaining-, as a salary for himself, four thousand dollars, and after paying- his assistants or deputies, can not, oven if otherwise constitutional, apply to the present clerk, who was in office at the time of the passage of the act, and even prior to the adoption of the present Constitution, which continued him in office during the term for which he was elected, which has not yet expired.</p> <p>2. The Legislature can not delegate to another department oe the Government its power to make laws, and therefore the act in question here is unconstitutional in that it attempts to delegate to this court the power to fix the salaries of the deputies of the clerk of this court, which section 246 of the Constitution provides shall he fixed “by law.”</p>

<p>A CLAIM AGAINST THE STATE'FOR WORK DONE IN COPYING AND ENGROSSING bills under employmknt of the CLERK of the House of Representatives, by direction of the House, is a “contingent expense” of the House, and payable out of the State Treasury upon a voucher, countersigned by the clerk, as provided by section 3 of article 1, chapter 15, General Statutes, now section 342 of the Kentucky Statutes.</p> <p>And as the payment of such “contingent expenses” is expressly provided for by a statute duly passed, the payment does not violate section 230 of the Constitution, which provides that “ no money shall be drawn from the State Treasury except in pursuance of appropriations made ’ by law.”</p>

Case 101 — PETITION EQUITY APPEAL FROM BOONE CIRCUIT COURT. 1. The children take the estate from their mother, or just as she would have taken it if she had survived her husband and died after him. (Gen. Stats., chap. 113, sec. 18.) 2. The real estate of a decedent descends to the heir free from any lien for debts due by the heir to the decedent, the estate of the decedent being upon the same footing as any other creditor of the heir.

Case 102 — PETITION EQUITY APPEAL PROM HOPKINS CIRCUIT COURT. 1. The debtor is not entitled to the exemption claimed as he does not allege or prove that when ho sold the Henderson land he intended to invest any part of the proceeds in other lands or real estate of any kind. 2.

<p>Case 103 — PETITION EQUITY</p> <p>APPEAL J’ROM KENTON OIROUIT COURT.</p> <p>1. The will does not create an estate tail.</p> <p>Breckinridge v. Denny, 8 Bush, 523, distinguished.</p> <p>2. Appellant does not contend that the provisions in the will which declare that the real estate shall never be sold are valid. On the contrary, such provisions are clearly invalid; not, however, because they create an estate tail, but because they are contrary to tlie statute or rule against perpetuities. (Gen. Stats., chap. 63, art. 1, sec. 27.)</p> <p>3. We are not disposed to contend that appellees have a life estate only, or that there is a limitation on their power to convey, and we do not desire that the court shall so find, hut are unwilling to take the property until the question is judicially determined. The question is therefore submitted to the court.</p> <p>Nowhere in the will under consideration is there any attempt to put any limitation whatever on the estate devised to appellees, except to inhibit its alienation, and by it is created an estate which, in'former times, would have heen deemed an estate tail, and which, by the law of Kentucky, is converted into an estate in fee-simple. (M. & B. Stat. Daw of Ky., vol. 1, p. 442; Stanton’s Rev. Stat. of Ky., vol. 2, p. 227; Gist’s Heirs v. Robinet, 3 Bibb, 3; Breckinridge, &c., v. Denny, &c., 8 Bush, 523.)</p> <p>Best v. Conn, &c.,10 Bush, 37, explained.</p>

Case 10á — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. It was negligence to leave a car on a connecting track so close as not to admit of safo passage of a switchman stationed on ladder on side of • car. And it was not contributory negligence for Smart to be upon the ladder. (L. & N. E. Co. v. Earl’s Adm’rx, 94 Ky., 368; K. C., Memphis, &c., E. Co. v. Burton, 53 Am. & Eng.

Case 105 — INDICTMENT APPEAL PROM BREATHITT CIRCUIT COURT. 1. The making of an order filing the indictment and the indorsement of filing by the clerk were essential to its validity. (Criminal Code, sec. 121.) .2. The failure of' the clerk to make the order and-indorsement was a clerical misprision which could only be corrected by the court on motion upon reasonable notice. (Civil Code, sec. 519.) •3.

Case 106 — INDICTMENT APPEAL PROM ESTILL CIRCUIT COURT. The indictment does not charge a felony, and the court erred in instructing the jury upon the -view that appellant, could he found guilty of a felony. The indictment does not state the fact that the stabbing was done “ with intent to kill ” the wounded person. The mere stating of the offense to he wounding with intent to kill is not an allegation that it was so done.

<p>1. Evidence. — Upon the trial of appellant for murder, the court erred in permitting a witness to testify that some time after the occurrence the accused came to her house, excited and seemingly afraid of being killed, and said he was a shooting man and had killed two men, the fact that the appellant did the shooting not being questioned.</p> <p>2. Instructions as to Self-Defense. — The court erred in instructing the jury that in order to acquit'upon the ground of self-defense, they must believe the killing was necessary, or seemed to defendant in the exercise of a reasonable judgment to be necessary, in order to avert or “escape” the danger, real or apparent. The word ‘‘escape” is not proper in such an instruction under any circumstances, and is particularly improper and misleading when used in reference to a person accused of homicide, who is assaulted in his own yard and near to his own dwelling-house, as was the case here. He then may stand his ground, and is not required to flee or “ aseape.”</p>

Cask 108 — PETITION EQUITY APPEAL FROM BOURBON CIRCUIT COURT. 1. Appellee does not claim that there was any undertaking or agreement on the part of appellant or its predecessors in title to maintain the footway. Such an obligation does not' arise by implication of law. (Trustees of Dover v. Fox, 9 B. M., 201.) 2.

Case 109 — INDICTMENT APPEAL PROM OHIO CIRCUIT COURT. The daughter of defendant was an accomplice, and a conviction can not he had upon her testimony alone. (Criminal Code, secs. 241 and 242; Gen. Stats., chap. 29, art. 4, sec. 13; Miller v. Commonwealth, 78 Ky„ 15.)

Case 110 — PETITION ORDIN ARY TRANSFERRED TO EQUITY— .APPEAL.' FROM LOUISVILLE LAW AND EQUITY COURT. 1. The Bridge Company will not he heard to claim that it had tlie right to annul the contract on account of the contractor’s delay, in view of the fact that it had itself made default in making monthly estimates of, and promptly paying for, the work as done.

<p>1. Trade-mark. — "Where a corporation, doing business under the corporate name ofB. H. Taylor, Jr., Co., operated two distilleries, known .as the “ O, E. O. ” and “ Carlisle” distilleries, and upon the product of the former distillery a brand was used consisting of the letters and words “ O. E. C., Hand-made Sour MashWhisky, E. II. Taylor, Jr., Distiller,” and upon the product of the latter a brand consisting of the words “Carlisle Standard Sour Mash Whisky, E. H. Taylor, Jr., Co., Distiller,” the essential feature of the trade-mark in the one case was the letters “O. E. C.,” and in the other the word “ Carlisle,” as the words “ Hand-made ” and “ Standard Sour Mash Whisky ” were not intended as a part of the trade-mark, even if they could have been so used, and for the name of the distiller in the brand there was to be substituted, as we must suppose, the name of the person of whom it could be truthfully said he Was the distiller. And the subsequent use as an adjunct to these brands of the fac simile of the signature of E. H. Taylor, Jr., sometimes with and sometimes without the addition of the word “company,” can not be regarded as making that signature apart of the trade-mark, E. H. Taylor, Jr., receiving no compensation therefor; and upon the withdrawal of K H. Taylor, Jr., from the corporation, the corporation had no right to use his autograph signature or to advertise him as the distiller of whisky thereafter manufactured, there being no sale by Taylor to the company of the right to use his signature, and it being doubtful whether such a use could have been made of this autograph if it had been in express terms transferred, such a use of another’s autograph being a fraud upon the public.</p> <p>2. Same. — The statement in the registration of a trade-mark that certain words of the brand may be omitted shows that they are not regarded as a part of the trade-mark.</p> <p>8. Same — Right to Account of Profits. — While the defendants were properly enjoined from using the name of Taylor as a part of their trade-mark and from advertising their whiskies as “Taylor ” or “ Old Taylor,” the plaintiffs are not entitled to an account of profits, as the defendants acted under color at least of title and conveyance from Taylor and without any fraudulent intent, the use of the name of E. H. Taylor, Jr., and his autograph being in the nature of a license or permit, which has not been abused or extended unreasonably.</p> <p>4. Purchase by One Stockholder of All thk, Stock of a Corporation. — The withdrawal of E. H. Taylor, Jr., from the E. H. Taylor, Jr., Company, and the purchase of all the stock of that corporation by a single stockholder, suspended the existence of the corporation so far as the public was concerned, and therefore B. H. Taylor, Jr., did not violate any of the legal rights of the sole stockholder of that corporation, who continued to operate the “O. E. 0.” and “Carlisle”1 distilleries, by assuming in connection with his sons in the operation of another distillery the partnership name of B. H. Taylor, Jr., & Sons, although similar in appearance to the corporate name of “E. H. Taylor, Jr., Co.”</p> <p>5. Pinal Order. — An order of reference to a commissioner, with directions to take an account of profits, was merely interlocutory.</p>