Volume 96 — Kentucky Reports

Case 1 —INDICTMENT— APPEAL EROM MARION CIRCUIT COURT. 1. The conversion to his own use by bailee of goods procured with the intent to so convert them is larceny. (Elliott v. Commonwealth, 12 Bush, 176; Miller & Smith v. Commonwealth, 78 Ky., 15; Snapp v. Commonwealth, 82 I£y., 173; Desty’s Amer. Crim. Law, p. 145; Archbold’s Criminal Practice, vol. 1, pp. 365 and 367; Same, vol. 2, pp. 1174, 1201, 1205, 1207-9, and notes; Wharton’s Amer.

<p>Case 2 —INDICTMENT—</p> <p>APPEAL PROM LINCOLN CIRCUIT COURT.</p> <p>1. Indictment good. '(Bishop’s Criminal Procedure, vol. 2, secs. 314, 321, 331-343.)</p> <p>2. Adams Express Company is a common carrier. (Chapter 29, art. 12, sec. 2, General Statutes; Barclay v. Breckinridge, 4 Metcalfe, 374; Johnson v. Commonwealth, 5 Bush, 430; Warmoth v. Commonwealth, 81 Ky., 136.)</p> <p>1. Indictment sufficient. (1203 Kentucky Statutes.)</p> <p>2. The local agent of an express company is guilty of embezzlement if he converts to his own use money intrusted to the company for transportation. (Johnson v. Commonwealth, 5 Bush, 430.)</p>

Case 3 —INDICTMENT— APPEAL PROM KNOX CIRCUIT COURT. 1. .The order filing the bill of exceptions having been made at the time the judgment was rendered, and the bill of exceptions tendered and filed within the time allowed by the court, the motion to strike bill of exceptions from the record should be overruled. (Criminal Code, sec. 836, subsec. 4.) 2. In view of the evidence upon the motion, it was error in the court to overrule the motion for change of venue.

<p>Deed Set Aside on Ground oe Grantor’s Temporary Insanity andoe Undue Influence. — In this action to set aside a voluntary conveyance, executed by plaintiff to defendant a few days after the sudden and violent death of plaintiff’s wife, plaintiff being at the time eighty-two years old, the court is of opinion that considering the time of the execution of the conveyance, and the plaintiff’s age, and his grievous and lonely condition, and the fact that there had not previously existed between plaintiff and defendant any peculiar intimacy or affeation, the hasty and inconsiderate transfer by plaintiff of his land must have been the result of madness of mind and undue influence, and, therefore, the conveyance should be set aside.</p>

Case 5 —INDICTMENT— APPEAL FROM DAVEISS CIRCUIT COURT. 1. The indictment having charged more than one offense, the demurrer thereto should have been sustained. (Criminal Code, sec. 126.) 2.

Cask 6 —INDICTMENT— APPEAL PROM GRAYSON CIRCUIT COURT. 1. It was error in the court to overrule the demurrer to the indictment. 2. Court erred in instructing the jury to find defendant guilty of murder. 3. The court should have given an instruction on voluntary manslaughter.

Case 7 —INDICTMENT— APPEAL PROM HARRISON CIRCUIT COURT. The appellee having, with intent to defraud, falsely represented to the prosecuting witness that he was empowered to employ a watchman at the depot, and thereby obtained from witness one dollar and twenty-five cents, the representation was sufficient to bring the case within the law of obtaining money under false pretenses and the case should have gone to the jury.

<p>Case 8 — PETITION EQUITY —</p> <p>APPEAL PROM LEE CIRCUIT COURT.</p> <p>1. The appellees having used undue influence in procuring the deed from their father and mother, who were old and mentally and physically infirm, and having exerted this influence to the prejudice of their crippled sister, the conveyance should be set aside on the ground of fraud. (Wilson v. Oldham, 12 B. M.,58; Boyd v. De La Montagreib 73 N. Y.. 502; Sears v. Shaefer, 6 N. Y., 268.)</p> <p>2. Appellant should have been allowed to file his amended petition, which prayed that appellee be made to account for personalty appropriated by him after the mother’s death.</p> <p>3. The deeds containing false recitals of valuable considerations, appellees can not show by parol evidence that the real consideration was love and affection.</p> <p>4. Burden is on appellees to' show that the conveyance was free from fraud.</p> <p>I. As the mother was, according to the proof, competent to convey her lands, and did do so, appellants can not recover. The proof shows . that there was no fraud in the transaction, and that the consideration was sufficient.</p> <p>2. Appellant Smith had already been provided for in the way of advancements, and appellees had not failed to care for the other appellants as was provided in the agreement as a part of the consideration. There is no cause shown for setting aside the deed.</p> <p>3. Appellant James Snowden having voluntarily withdrawn his plea and testified that the conveyance was right and should stand, this court should not disturb it.</p> <p>4. Property conveyed in order that the children may care for and sup- ' port the aged parents should not be taken away at the instance of those who rendered no service in such care.</p> <p>1. The condition of James Snowden at the time of the conveyance, and his conduct afterwards, matter not, as he did not own the land conveyed.</p> <p>2. The consideration expressed is only prima facia evidence of its character, and a different one may be shown by parol. (Gordon’s Heirs v. Gordon, 1 Met., 285; Davenport v. McOampbell, 17 B. M., 39.)</p> <p>3. The status quo ante can not be had, and the conveyance should, therefore, be sustained.</p> <p>4. The conveyance was made in accordance with a previously declared purpose of the grantor, and she afterwards repeatedly recognized the transaction.</p>

<p>Case 9 —INDICTMENT—</p> <p>APPEAL FROM PENDLETON CIRCUIT COURT.</p> <p>Indictment sets out a public offense, therefore judgment cannot be arrested. (Section 276, Criminal Code.)</p>

Case 10 — PETITION ORDINARY — APPEAL FROM MARION CIRCUIT COURT.' 1. The court erred in giving instruction XX, because it was not authorized by the pleadings and submitted for the consideration of the jury questions not made in the pleadings; also because it assumed as a fact that appellant’s passenger platform was not adequately lighted. The instruction in effect excused the plaintiff from the use of ordinary care and caution in alighting from trains.

Case 11 — PETITION ORDIN ART — APPEAL FROM MASON CIRCUIT COURT. 1. Co-sureties, who were present at the signing of the name of another surety by an agent without written authority, are charged with knowledge of the illegal signing, and are bound by their signatures.

<p>Case 12 — PETITION EQUITY —</p> <p>APPEAL FROM DAVBISS CIRCUIT COURT.</p> <p>1. Section 3, chapter 57 of General Statutes, being inconsistent with section 241 of the new Constitution, is repealed by the latter. The debates in the Constitutional Convention clearly show the intention to repeal the statute in question. (4 Debates Con Con., pp. 4715-4720.)</p> <p>The words of section 241 of the Constitution are precise and unambiguous, and show the intention of the Convention to repeal the statute. (Sutherland on Statutory Construction, sec. 247.)</p> <p>2. This court has already settled the question as contended for hy the appellants in this case. (McClure, &c., v. Alexander, 15 Ky. Law Hep., 732.)</p> <p>1. In view of the construction put by the courts upon the several statutes for the recovery of damages for death caused by the negligence of another, section 241 of the Constitution was not intended to repeal the third section of chapter 57 of the General Statutes, but to apply to those cases which were not covered by the statutes in existence. (New Constitution, sec. 241; Rev Stat, chap. 81; Gen. Stat, chap. 57, secs. 1 and 3; Gen. Stat, chap. 1, sec 6 ; Spring’s Adm’r v. Glenn, 12 Bush, 172; McCleod v. Ginter’s Adm’r, 80 Ky., 400; Henderson’s Adm’r v. Railroad Co., 86 Ky., 389; Jordan’s Adm’r v. Railroad Co., 89 Ky., 400; Railroad Co. v. ConifFs Adm’r, 90 Ky., 560.)</p> <p>2. This court will not declare a statute void or repealed if there is a reasonable doubt as to its vabdity or its being still in operation. (Cooley’s Constitutional Limitations, 6th ed.; pp. 76 and 216.)</p> <p>3. Section 3 of chapter 57 of General Statutes is not inconsistent with section 241 of the Constitution, and the latter should not be given a construction which would repeal the former.</p>

Case 13 — PETITION ORDINARY — APPEAL PROM CAMPBELL CIRCUIT COURT. 1. In this contested election case the proceeding in the nature of a quo warranto is the proper remedy. (Paine on Elections, 854; 8 Blackstone's Comm., 264, note; Civil Code, secs. 480-483 and 487; Commonwealth v. Adams, 3 Met., 9; Boyd v. Chambers, 78 Ky., 141; Toney v. Harris, 85 Ky., 461; Patterson v. Miller, 2 Met., 493.) The certificate of election is only prima facia evidence of election. 2.

Cask 14 — PETITION EQUITY — APPEAL PROM BELL COURT OK COMMON PLEAS. 1. Artificial persons may be taxed under an act authorizing the taxation of “white persons” for school purposes. (L. & N. E. Go. v. Commonwealth, 1 Bush, 250.) 2. Corporations are inhabitants within the meaning of the statute. (Angel! and Ames on Corporations, secs 440-446; Marshall v. Donovan, &c., 10 Bush, 686 ) 3.

Case 15 — PETITION EQUITY — APPEAL FROM NELSON CIRCUIT COURT. 1. Where a petition for a new trial is granted by the lower court and that judgment reversed by the Court of Appeals, an appeal .from the original judgment is not barred thereby. (Blackwell v. McBride. 14 Ky. Law Kep, 760.) 2. It was error to force a trial of the issue before filing of warning order attorney’s report.

Case 16 —INDICTMENT— APPEAL PROM SIMPSON CIRCUIT COURT. 1. The peremptory instruction asked for by the defendant should have been given, as the evidence did not tend to establish defendant’s guilt. 2. In the indictment chai'ging defendant with stealing “thirty dollars in good and lawful currency of the United States of Kentucky,” the words “of Kentucky” render the indictment fatally defective, and motion for arrest of judgment should have been sustained. 3.

Case 17 —INDICTMENT— APPEAL FROM HARRISON CIRCUIT COURT. The appellants having gained the possession of the property appropriated with the consent of the owner, and without felonious intent, the subsequent appropriation was not larceny. The court erred in refusing the instructions asked. (State v. Holmes, 57 Am. Decisions, 275; Robinson v. State, 78 Am. Decisions, 187; 12 Am. & Eng. Enc. of Law, p. 770, sec. 5; Same, pp. 771 and 772; Morrison v. State, 50 Am.

Case 18 — PETITION ORDINARY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. The evidence of the plaintiff, and the entire evidence, showed that the recklessness and negligence of plaintiff Tierney, contributed to cause the accident; and, therefore, a peremptory instruction against him should have been given. (Rupard v. Chesapeake & Ohio R., 88 Ky., 280.) 2.

Case 19 — PETITION OBDIN ABY — TBANSFEBBED TO EQUITY APPEAL FROM BREATHITT COURT OE COMMON PLEAS. 1. A junior patentee can not sue in the name of the State to cancel a prior patent. (Beard v. Smith, 6 Mon., 430.; 21 Am. and Eng. Ency. of Law, 879; Taylor v. Fletcher, 7 B. M., 80; Bledsoe’s Devisees v. Wells, 4 Bibb, 329; Marshall, &c, v. McDaniel, 12 Bush, 378; Frazier, &c , v. Frazier, 81 Ky , 137.) 2.

Case 20 — PETITION ORDINARY — APPEAL PROM JEFFERSON COURT OF COMMON PLEAS. 1. The failure of a railroad company to inclose its depot and station grounds is not negligence, and the court should have so instructed the jury. (1 Borer on Bailroads, pp. 486 and 622; Davis v. Burlington, &c., B. Co., 26 Iowa, 549; Elint, &c., B. Co. v. Lull, 28 Mich., 513; I. & C. B. Co. v. Oestel, 20 Ind., 231.) 2.

Case 21 — PETITION OBDINAKY — APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1.

Case 22 — WILL CONTEST — APPEAL FROM HENDERSON CIRCUIT COURT. 1. The opinion of a non-expert as to the sanity or insanity of a testator is incompetent, unless accompanied by a statement of the facts upon which that opinion is based. (McDaniels’ will, 2 J. J. M., 331; Hunt’s Heirs y. Hunt, 3 B. H., 577; Sherley v. Taylor’s Heirs, 5 B. M., 102-3.) 2.

Case 23 — PETITION EQUITY — APPEALS PROM LOUISVILLE CHANCERY COURT. 1. The petition for rehearing having been overruled by the Superior Court on September 11, 1891, the appeal granted on January 6, 1892. was within six months from the time the right of appeal first accrued. (Act of April 22 1882 ; General Statutes 1887, III (a), 350 • Carroll’s Code, p. 377; Cline v. Wrightson, 7 Ky.

Case 24 — PETITION EQUITY — APPEAL FROM LOUISVILLE LAW AND EQUITY COURT. 1. Appellant is not bound by a judgment in an action by appellee against the American Mutual Aid Society, as she was neither a partv to the action nor a privy of any of the parties thereto.

Oase 25 — PETITION ORDINARY — APPEAL FROM SHELBY CIRCUIT COURT. 1. It was error in the court to order appellant to refund and pay into court money collected on a judgment before the mandate from the Superior Court reversing the judgment was filed (Civil Code. sec. 761; Watson v. Avery, 3 Bush, 635; Piel v. Short Route R’y. Co., 11 Ky. Law Rep,, 563.) Any error is reversible unless it is satisfactorily shown not to be prejudicial. (10 Ky.

Case 26 —INDICTMENT— APPEAL FROM MARION CIRCUIT COURT. The provision of the Constitution as to the establishment by the Legislature, as soon as practicable, of a House of Reform being mandatory, and the Legislature having for three years failed to provide same, there can be no constitutional punishment by confinement in the penitentiary of offenders under eighteen years of age.

Case 27 — PETITION ORDINARY — APPEAL FROM DAVEISS CIRCUIT COURT. 1.Verbal notice of tbe dishonor of a bill is sufficient to bind the parties. (Daniel on Negotiable Instruments, vol. 2, sec. 972; Story on Bills •of Exchange, sec. 300.) It is not necessary that the holder should give notice, but the parties may give notice to those behind. (Daniel on Negotiable Instruments, vol. 2, secs. 987-90; Story on Bills of Exchange, sec. 294.) '2.

Case 28 — INDICTMENT— APPEAL FROM CLARK CIRCUIT COURT. 1. The indictment, which charged the defendant with “ the crime of malicious cutting and wounding with intent to kill,” was defective in omitting the word, another,” or the name of the person wounded. (Kentucky Statutes, sec 1166.) 2.

Case 29 — INDICTMENT— APPEAL PROM JEPEERSON CIRCUIT COURT, CRIMINAL DIVISION. 1. Section 181 of the Constitution authorizing the Legislature to provide for the payment of license fees on franchises, trades, professions, &c., was not meant to limit the taxing power of the Legislature, but it is permitted to adopt those forms of taxation in addition to the powers conferred by the other sections of the Constitution. (Present Constitution sees. 169 to 182.) 2.

Case 30 —INDICTMENT— APPEAL PROM HENDERSON CIRCUIT COURT. 1. There can be no carnal knowledge of an infant without penetration, and the courtshould have instructed the jury that, if they believed the defendant only rubbed or pressed his parts against the parts of the infant without penetration, they should find him guilty of assault and battery only. 2. Appellant should have been allowed to prove that the place where the infant lived was a bawdy-house. 3.

<p>Case 31— PETITION ORDINARY —</p> <p>APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.</p> <p>1. The court erred in giving instructions which made it the duty of the jury to find for appellee if they believed that the machine was defective, regardless of whether such defect contributed in any way to the injury, and which also permitted a recovery against appellant unless the injury was caused by appellee’s negligence, notwithstanding his negligence may have contributed to the injury, and but for such negligence the injury might not have happened.</p> <p>2. The other instructions given were inconsistent with those above mentioned. and consequently do not correct errors therein, though they themselves might have been correct. (Clay v. Miller, 3 Mon., 148; Tate v. Parish, 7 Mon., 327; Gaines v. Buford, 1 Dana, 502.)</p> <p>3. The instructions are erroneous in permitting a recovery by appellee on account of the ordinary negligence of a co-employe. A recovery can be had on account of the negligence of a co-employe only when the negligence is gross and the co-employe is superior in authority. (Doyle v. Swift Iron and Steel Works, 5 Ky. Law Rep, 59; Newport News and Miss. Valley Co. v. Eifert, 15 Ky. L. R., 600.)</p> <p>4. A new trial should have been granted for errors of the court in admitting evidence.</p> <p>Brief not in record.</p> <p>1. The instructions given, taken together, stated every material fact and should he sustained, though in some, considered separately, there may have been errors. (Rucker v. Hamilton, 3 Dana, 43; Clark v. Pox, 9 Dana, 195; Am and Eng. Enc. of Law, vol. 2, p. 250, and'authorities cited.)</p> <p>2. The peremptory instruction asked for by appellant was properly refused in view of the fact that appellee was only 14 years of age, and his knowledge of the danger in oiling the machine was not sufficient to excuse appellant for putting him in such dangerous employment. (Delozierv. Ky. Lumber Co., 13 Ky. Law Rep., 818; Sinclair’s Adm’r v. Elizabethtown Milling Co., 13 Ky. Law Rep., 121; Louisville Bagging Co. v. Dolan, MS. Opinion, Superior Ct. Nov., 4, 1891; Neilson v. Marinette, &c., Paper Co., 75 Wis., 579; Hinckley v. Horazdowski, 8 L. R An., 490; Sullivan v. Indiana Cordage Co., 113 Mass., 399; Combs v. New Bedford Cordage Co., 102 Mass., 572.)</p> <p>3. The provision of the Code that the judge may exclude witnesses from the court-room is not mandatory, and it was not error to allow the father and mother of appellee to testify in rebuttal after remaining in the court-room during the examination of other witnesses (Talber v. Jones & Brown, 12 Ky., Law Rep. 189; Civil Code, sec. 601.)</p> <p>4. The instructions gave the law of the case as to the defective machinery, contributory neglect and the youth and indiscretion of appellee, and appellant can not complain of them nor of the refusal of others asked for. (Heflin v. Auxier, 9 Ky. Law Rep., 535; Swope v. Schafer, 9 Ky. Law Rep ,161; L., N. A. & C. R’y Co. v. Davidson, 12 Ky. Law Rep., 142; Pierce v. Brown, 12 Ky. Law Rep, 292; Saunders v. Moore, 9 Ky. Law Rep., 965.)</p> <p>5. The court may, in its discretion, hold the jury together after they have signified their inability to agree. (Civil Code, sec. 322; Abbott’s Trial Brief (Civil Jury Trials), 176, 177; White v. Oalder, 35 N. Y., 183; Erwine v. Hamilton, 50 How. Prac. R., 32; Coit v. Waples, 1 Minn., 134; Pierce v. Rufus, 35 Mich., 54; Regins v. Charlesworth, 1 B. & S. (Eng. Com. Law), 522; Osbourne v. Wilkes, 108 N. C.. 666; Smith v. Irwin, 51 N. J. L., 507; Dowling v. Allen, 74 Mo., 13; Jones v. The Florence Mining Co., 66 Wis., 268; Gulf C. & S. F. B. .Go. v. Jones, 76 Texas, 350; Shearman and Bedfield on Negligence, see. 97; Wood on Master and Servant, see. 216.)</p>

Case 32 — PETITION ORDINARY — APPEAL FROM MARION CIRCUIT COURT. 1. The appellee having lived at a railroad station, the law holds her to know the danger attending the running of railroad trains, and in attempting to travel on a road which encroaches upon appellant’s right of way she is held to assume the ordinary risk of such use of the track. (L. & N. R. Co. v. Schmetzer, 94 Ky., 424.) 2.

Case 33 — PETITION EQUITY — APPEAL PROM BALLARD CIRCUIT COURT. 1. A recovery of damages in the State where decedent was domiciled for death by willful neglect in another State should be distributed according to the law of decedent’s domicile. (Sneed v. Ewing, 5 J. J. M., 477; Taylor’s Adm’r v. Pennsylvania R. Co., 78 Ky., 348; Am. and Eng. Enc. of Law, vol. 3, p. 639; 77 Ill., 68.) 2.

Case 34 —INDICTMENT— APPEAR PROM SCOTT CIRCtTIT COURT. 1. The question as to whether the deceased carried a pistol at the time of the killing being a vital one, it was incompetent to allow the Commonwealth to introduce witnesses to prove that he was not in the habit of carrying a pistol, or that they (witnesses) had never seen him with one. (Wharton’s Criminal Law, sec. 1032, 6th ed.; Civil Code, sec. 48.) 2.

Cash 3S —INDICTMENT— APPEAL PROM LEE CIRCUIT COURT. 1. The indictment failing to charge that the prosecuting witness actually worked in appellant’s coal mines, or that he earned any thing, or that the appellant owed him any thing at any time, it was defective, and the demurrer should have been sustained. (Criminal Code, see. 124) 2.

Case 36 — PETITION ORDINARY — APPEAL PROM KENTON UTRCUIT COURT. 1. Appellee having, with others, engaged in the brewing business, agreed to refuse to sell to appellant the product of their breweries for the alleged reason that the appellant was indebted to one of the number so agreeing, the agreement was sufficient to constitute a conspiracy by which appellant was effectually boycotted and his business ruined, and for which an action should be sustained.

Case 37 — PETITION ORDINARY — APPEAL FROM HANCOCK CIRCUIT COURT. 1. Chapter 66, article 3, of the General Statutes, does not change the common law doctrine of waste, and an ordinary action may be brought for waste whether it he voluntary or permissive.

Case 38 — PETITION EQUITY — APPEAL FROM BELL CIRCUIT COURT. 1. Under the pleadings and the proof there was a manifest contemplation on the part of the appellees, R. Miller & Co., to become insolvent, and a systematic attempt to defraud their creditors.

<p>Case 39 — PETITION EQUITY —</p> <p>APPEAL FROM DAVEISS CIRCUIT COURT.</p> <p>1. The alleged contract between the appellant and the appellee having been disaffirmed by the appellant, the appellee, in seeking to recover the land over which the right of way was given, instead of bringing an action upon the contract, in effect accepted the disaffirmance, whereby the contract is annulled, and the appellee should not have been permitted to file an amended petition relying upon the rescu ded contract. (2 Parsons on Contracts, 812, 7th ed.; Bouvier’s Law Diet., 468, and cases cited; Súber v. Pullin, 1 S. C., 273; Wheeden v. Eiske, 50 N. H., 125; 5 Wait’s Actions and Defenses, 507; 21 Am. & Eng. Enc. of Law, 17; Idem, 44 and 92; Cutter v. Powell, 2 Smith’s Leading Cases, 14 and 48; Kinney v. Kiernan, 49 N. Y., 168; Stevens v. Hyde, 32 Barbour, 171; Morris v. Rexford, 18 N. Y., 552.)</p> <p>2. The appellee having instituted an action against appellant in ejectment, the court erred in permitting appellee to set up the alleged contract and pray for damages for the breach thereof. (Taylor v. Moran, 4 Met., 130; Humphrey v. Hughes, G’d’n, 79 Ky., 489.)</p> <p>3. The only substantial actions before the court were one in ejectment. and the one to recover damages for the breach of a contract, and the order of the court transferring the case to equity was erroneous, both being actions at law.</p> <p>4. The appellant (defendant) at the time of the filing of the amended petition having already instituted condemnation proceedings against the plaintiff, the plea in abatement was good, and a judgment abating the action by the appellee (plaintiff) should have been entered, both actions being between the same parties about the same subject-matter.</p> <p>6. In the absence of proof that either Pierce or Powers was authorized by the railroad company to make the contract with the plaintiff, the finding of the court that the contract, as stated in the amended petition, was made, was wholly against the evidence.</p> <p>6. The provisions of the contract being that defendant should perform several independant acts, an averment for damages for the breach of the whole is not sufficient, but plaintiff should have alleged damages for the breach of each independent act.</p> <p>7. The commissioner’s report upon which the judgment of the court was based gave double damages by allowing damages upon the land, and also upon each broach of the contract alleged.</p> <p>1. The deed conveying the right of way to appellant having been signed and delivered by the appellee, the plea that appellant entered the land under a verbal contract with appellee can not be supported by the evidence in the case.</p> <p>2. Appellant is estopped to deny that Powers was its agent and had the power to make such contracts, since it had held him out to the public as having the authority generally to. procure rights of way for the railroad. (Helm, &c., v. Short, &c., 7 Bush, 625; Pope v. Cain, &c., 8 Ky. L. R, 354; Butler v. Maples, 76 U. S., 766; Bell v. Offutt, 10 Bush, 643; Allen v. Sykes, 5 J. J. Mar., 614; Morrison’s Ex’rs v. Taylor, 6 Mon., 85; Southern Life Ins. Co. v. McCain 96 U. S., 84; Townsend v. Chappell, 79 U. S., 681;. Martin v. Webb, 110 US., 7 ¡ Mahoney Mining Co. v. Bank, 104 TJ. S., 192; Kaufman Bros. & Co. v. Farley M’f’g Co., 78 Iowa, 679; 16 Am. St. Rep., 465.)</p> <p>3. The appellant having kept the contract in its possession for six months after it was signed by appellee and delivered to appellant through its agent, without any notice that it would not be accepted, and appellant having, within two weeks after the signing and delivery of the deed, entered upon the land and constructed its railroad over the same, it is now estopped to deny the contract, or that the same was procured without its authority. (Forsythe v. Bonta, 5 Bush, 549; Bates’ Ex’rs v. Best’s Ex’rs, 13 B. M., 217; Owsley v. Phillips, 78 Ky., 520; Law v. Cross, 66 TJ. S., 533; Field v. Farrington, 77 TJ.J3., 141; Howard Ins. Co. v. Owens, 14 Ky. L. R. 881.)</p> <p>4. The weight of evidence clearly sustains the conclusions of the chancellor “ that the conveyance from the plaintiff to defendant was accepted by the defendant, and that the latter entered under the same into possession of the granted premises,” and the judgment, therefore, should be sustained (Dohazer v. Dehazer, 11 Ky. L. R., 169; Cowan v. Prowse, 14 Ky. L. K., 274; Pyle v. Brown, 18 Ky. L. K., 95; Williams v. Williams. 13 Ky. L. R., 591; Oman v. Oman, 13 Ky. L. R., 735; Fuqua v. Fuqua, 13 Ky. L. R., 130; Duckworth v.' Hisle, 14 Ky. L. R., 222; McDyer v. Large, 13 Ky. L. R., 430; Roe v. Sennit, 13 Ky. L. R., 161.)</p> <p>5. The failure of the grantee (appellant) to 'sign the deed conveying the right of way through the grantor’s laud, does not make the contract invalid or bring it within the statute of frauds. (Gulley v. Grubbs, 1 J. J. Mar, 336; Coles v. Browne, 4 N. Y. Oh. Rep, 1077; Waterman on Specific Performance of Contracts, sec. 239 and note; Addison on Contracts, vol. 1, sec. 204; Lee v. Cherry, 4 Am. St. Rep., 801; Cartrell v. Stafford, 41 Am. Rep., 757; General Stat., chap. 22, pp. 295-6 ; Idem. chap. 24, sec. 15, p. 316.)</p> <p>6. The appellee sustained damages in a much larger sum than the $6,406.55 as found by the chancellor, and the judgment of the lower court is manifestly against the evidence in that respect. (L., St. L. & T. Ry. Co. v. Neafus, &c., 13 Ky. L. R., 953; 19 Am. & Eng. Enc. of Law, 820; Erie, &c., R. Co. v. Douthet, 32 Am. Rep., 451-2, 19 Am. & Eng.Enc. of Law, 850,851, 853; 5 Am. & Eng. Enc. of Law, 622.)</p> <p>7. A receiver having been appointed by the U. S. Circuit Court for the appellant railroad company, specific performance of the contract can not he enforced as at first contended by the appellee, and the remedy of appellee is to recover damages sustained by the breach of the contract on the part of the appellant. (20 Am. & Eng. Enc. of Law. 365; Louisville Southern Railway Co. v. Ragland, 15 Ky. L. R., 814; Supplement to Rev. Stat. IT. S , 1874-1891, vol. 1, p. 614; 20 Am. & Eng. Enc. of Law, 375, and notes on page 376.)</p> <p>8. The case was properly transferred to equity under the amendment to the 10th sec. of the Civil Code. (Acts 1889-90, vol. 1, p. 115.)</p>

<p>1. In order to maintain an action to quiet title the plaintiff must have both title and actual possession. But when by fraud or questionable contrivance or irregularity the title of the owner of land has been wrested from him and converted to the use of another, he may ' bring his suit to cancel the conveyance, whether or not he is in the actual possession of the land.</p> <p>2. In this action to cancel certain deeds, as it may be inferred from the allegations of the petition that by some fraud or device connected with the collection of taxes due on his land the plaintiff was wrongfully divested of title, and that in some way equally irregular and wrongful the State Auditor, for himself or the Commonwealth, became seized of title, or supposed he was, and conveyed’the land to defendant’s grantor, the court is disposed to treat the petition as sufficient, notwithstanding its indefinite disclosure of the grounds upon which the deeds are sought to be canceled, as it may not be in such-cases the plaintiff could know the exact processes by which he was disseized.</p> <p>3. Tax Sales — Limitation.—The provision of the act of May, 1880, known as the Auditor’s Agent act, that no action for the recovery of real property sold for the non-payment of taxes shall lie unless the same be brought within five, years after the sale, applies only to actions brought to recover land sold for taxes under that act.</p> <p>i. Pleading.— Pleadings and exhibits in an action to which plaintiff was not a party can not, by a reference to them in defendant’s answer, be made to take the place of the necessary pleading in this action.</p> <p>5. Forfeiture of Land for Failure to List for Taxation. — A statute providing that for a mere failure for a certain length of time to list lands for taxation, the title shall be forfeited without inquiry or trial, is unconstitutional. 'Whether section 1 of article 16, chapter 92, General Statutes (old edition), was, when considered in connection with other clauses of the statute, unconstitutional on this ground, it is not necessary to determine.</p> <p>6. Fraud — Limitation.—An action to cancel a deed upon the ground of fraud or mistake is barred after the lapse of five years from the time the cause of action accrued, and while the cause of action is not deemed to have accrued until the discovery of the fraud or mistake> ,yet in no event can such an action be brought ten years after the act complained of.</p> <p>The presumption in this ease is that the plaintiff knew of the deeds ■sought to he canceled when they were executed and recorded in the clerk’s office, but whether he did or not the action is barred, more than ten years having elapsed between their execution and the institution of the action.</p>

Cash 41 — PETITION EQUITY — APPEAL FROM FAYETTE CIRCUIT COURT. 1. A city of the second class, having contracted for the reconstruction of its streets under the authority of legislative enactment prior to the adoption of the new Constitution, may provide for the payment for such work, and an ordinance authorizing the issual of bonds for that purpose is not subject to the provisions and limitations of sections 157 and 158 of the Constitution.

Cask 42 — PETITIONS EQUITY — APPEAL PROM BELL CIRCUIT COURT. 1. The language of the charter of the city of Middlesborough that all unpaid warrants growing out of the same contract should be joined in one suit is merely.directory and permissive, and such joining is not necessary. The amended petition alleged that all had been joined and the objection can not be raised. (Vol. 1, Acts 1889-90, pp. 686-7, sec. Ill, subsecs. 6 and 7.) 2.

<p>Case 43 — PETITION EQUITY —</p> <p>appeal prom mercer circuit court.</p> <p>The provision of the seventh paragraph of the will, that in case the son died without issue, the estate should go back to the brothers and sisters of the testator, was intended to create in the son an estate which would be defeasible upon his death without issue at any time. (Yarble v. Phillips, 14 Ky. Law Rep , 363; Mercantile Bank of N. Y. v. Ballard’s Assignee, 83 Ky., 489; Redfield on "Wills, p. 225; Cunningham v. Wathen, 6 Ky. Law Rep., 443;' Thaxton v. Watson, 84 Ky., 210; Wills v. Wills, 85 Ky., 496; Bradley v. Skillman, 3 Ky. Law Rep., 734; Cleaveland v. Cleaveland, 5 Ky. Law Rep., 56; Eckston v. Smith, 6 Ky. Law Rep., 216; Bryant v. Bryant, 6 Ky. Law Rep., 293.)</p> <p>The will, taken as a whole, shows that by the 7th paragraph the testator contemplated that the estate devised should be defeasible only upon the death of his son without issue before his own death, or before the termination of the control of the estate by the trustees. The son’s death not occurring until after the happening of these two events, the appellants are not entitled to the estate, although he died without issue. (Birney v. Richardson, 5 Dana, 424; Trabue v. Terry, 10 Ky. Law Rep., 316; Ferguson v. Thomason, &e., 87 Ky., 520; Thaxton v. Watson, 84 Ky, 208; Duncan v. Kennedy, 9 Bush, 580; Hughes v. Hughes, 12 B. M., 118; 13 Ky, Law Rep., 607; 10 Ky. Law Rep., 469 ; 85 Ky., 486.)</p>

Case 44 — WILL CONTEST — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Every person sui juris has the undoubted right to choose and to change his or her domicile at pleasure. (Amer. Law Review for Oct., 1893> p. 643.) 2. The change to be effectual must be bona fide, not a fictitious or pretended or fraudulent change. (Morris v. Gilmer, 129 U. S.) 3. To constitute the change, two things are necessary, first, fact; second, intention —factum et ammus.

Case 45 — PETITION EQUITY — APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. This lease must be construed altogether so as to reach the intent of the parties.

<p>The opinion in Cook v. Jones, p. 283, referred to and adopted as the opinion in this case.</p>

<p>1. Right oe Foreign Administrator to Sue. — An administrator can not sue in a State other than that in which he was appointed, unless he is authorized to do so by statute of the State in-which suit is brought.</p> <p>2. Same — Word “ Debts ” Construed. — The statute of this State authorizing foreign administrators to sue for “debts’’ due the decedent, does not authorize a foreign administrator to prosecute an action for a tort.</p> <p>3. Same — Special Demurrer. — Where a foreign administrator sues as. such for a tort, objection to bis maintaining the action is not waived by failure to file special demurrer, but may be reached by general demurrer. The objection is not for “ want of legal capacity to sue ” within the meaning of the Code.</p> <p>4. Master and Servant. — A servant may recover of the master for injuries resulting from the gross negligence of a fellow-servant of a higher grade, but he can not recover for ordinary negligence.</p> <p>5. Right to Judgment on Verdict. — In an action in which under the . pleadings the plaintiff was entitled to recover only for gross negligence a verdict by the jury finding “ the defendant guilty of ordinary negligence” and assessing the damages, did not entitle the plaintiff to judgment, although tlie court had instructed the jury that the plaintiff was entitled to recover upon proof of ordinary negligence, and there was no motion for new trial. The court can consider only the pleadings for the purpose of determining the sufficiency of the verdict to support the judgment. And if the instructions could be considered for any purpose, the court would have to take notice of and correct the error committed in telling the jury there could be a recovery for ordinary negligence.</p> <p>■6. Special verdicts were allowed at common law. And whether or not it is now proper lor the jury to return a special finding, the jury did so in this case, and that finding not being sufficient to entitle plaintiff to judgment, it was error to render judgment for him. Whether the finding authorized a judgment for defendant, it is not necessary to determine, as it would constitute no bar to a recovery by an administrator authorized to bring the action.</p>

Case 48 — PROBATE OP WILL — APPEAL EROM BOURBON CIRCUIT COURT. 1. Appellee having failed to institute proceedings to probate the will in question for twenty-two years .after the death of the testator, the claim is barred by his laches and by the statute of limitations.

<p>1. Divorces. — The discretion which the statute gives the chancellor in granting divorces from, bed and board is neither arbitrary nor unlimited, but must arise from a state of fact showing that a separation is demanded for the interest and protection of the life, health or happiness of tho party complaining on account of the conduct and treatment of the one in default.</p> <p>2. Same — Appeal.—This court has heretofore held that no appeal lies from a judgment of divorce, whether absolute or from bed and board; but even if ah appeal lies from a judgment granting a divorce from bed and board, the judgment granting the wife such a divorce in this case must, upon the husband’s appeal.be affirmed, as it appears-from the evidence that the husband's coldness and indifference to the wife bordered upon cruelty, while the attack made by him upon the wife’s character in this case strengthens her claim to relief.</p> <p>3. Same. — The evidence was not such as to authorize the chancellor to . grant the wife an absolute divorce, and’ thus destroy all hope of reconciliation between tho parties.</p> <p>4. Same — Custody op Children. — In oases of separation of husband and wife the chancellor, in determining -the right to the custody of the children of tho marriage, will look to the comfort and happiness of the children, and confide their keeping to that parent whose time and attention can best be devoted to their care and welfare. And where the mother’s ability and fitness for the trust is unquestioned, she, above all others, should be permitted to care for her own offspring. But while the custody of tho children was properly committed to the mother in this case, the father and the children should he permitted to see each other once a week, and as they are advancing in years, he should he consulted as to their education, and in reference to any other matter of moment affecting their interests.</p>

Case.50 — PETITION EQUITY — APPEALS FROM LARUE CIRCUIT COURT. 1. The language of the deed of assignment is broad enough to pass to the assignee two life insurance policies, taken out by the assignor, and kept up by him pursuant to a promise to his creditors, and the assignor could not subsequently assign or devise them to certain creditors to the exclusion of others.

<p>1. A schedule filed by the appellant in the office of the clerk of the inferior court within ninety days after the granting of an appeal by the Clerk of the Court of Appeals, is in.time to entitle him to prosecute his appeal upon a partial transcript.</p> <p>2. An appellant who prosecutes an appeal upon a partial transcript does so at his peril; and if it appear that part of the testimony relating to the matter in controversy has been omitted from the transcript, it will be presumed a complete record would sustain the judgment; and this rule is equally applicable to a cross-appeal, as the appellee has the right to file an additional schedule and cause the-entire record to be copied.</p> <p>3. It was error to charge an administrator with interest on the amount of the real estate in his hands during a suit brought by him to settle the estate, in the absence of evidence that he used or made profit out of it, as he brought the action in due time and held the-proceeds subject to judgment and order of court.</p>

Case 52 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. A husband is never a competent witness for the wife where she has testified. (Greanleaf on Evidence, vol. 1, secs. 340 and 341; Civil Code, secs. 605 and 606 ; Booth v. YanArsdale, 9 Bush, 719 ; Wise v. Eoot, 81 Ky, 13; Howard v. Tenny, 87 Ky., 52; Covington v. Gaylor, 14 Ky. Law Kep., 146; Tabor v. Hardin, 9 Ky. Law Kep., 491; Schouler on Domestic Relations, sec. 53; Commonwealth v. Sapp, 12 Ky.

Case 53 — PETITION EQUITY — APPEAL FROM BOYD CIRCUIT COURT. 1. One railroad can not cross another railway company’s road unless the right to do so has first been acquired by purchase or condemnation. This principle is binding whether the crossing is to be located in a public street, a county road or a turnpike, or upon private property where the railroad company owns an easement in the land in which the railroad is built.

Case 54 — PETITION EQUITY — APPEAL PROM LOUISVILLE LAW AND EQUITY' COURT. 1.

<p>Case 55 — PETITION EQUITY —</p> <p>APPEAL PROM CAMPBELL CIRCUIT COURT.</p> <p>The right of plaintiff to the relief prayed for, taking all the evidence together, is beyond a reasonable doubt.</p> <p>1. The petition does not meet the requirements of sections 428 and 429 of the Civil Code of Practice, and for that reason the judgment dismissing the petition was proper.</p> <p>2. Plaintiff attempts to proceed against the decedent’s “ unknown heirs,” but his affidavit for the warning order is wholly insufficient. He does not state they are “ believed to be absent ” from this State, and be does not give their post-office address, or state that be is ignorant of the same.</p> <p>3. The evidence is too vague to base a judgment upon.</p>

Case 56 — PETITION ORDINARY — APPEAL PROM DAVEISS CIRCUIT COURT. 1. The bill in suit was an inland bill of exchange which is not required to be protested. ' 2.

Case 57 — PETITION ORDINARY — APPEAL FROM BULLITT CIRCUIT . COURT. 1. The court should have quashed the attachment because it was issued for a larger amount than that stated in the affidavit. (Civil Code, sec. 199) Hickman v. Gist, Sneed, 297; Reed v. Bank of Ky., 5 Blackf. 277; Lehman v. Bransford, 12 Southern Rep.; Noe & Lawless v. Conyers, 6 J. J. M., 514; Davie v. Long’s Adm r, 4 Bush, 574; L. & N. R. Co. v. Smith’s Adm’r, 87 Ky., 501,) 2.

Case 58 —INDICTMENT— APPEAL PROM WHITLEY CIRCUIT COURT. 1. While the presumption that every body knows the law exists in numerous instances and is often spoken of, there is no such general presumption. (Lawson on Presumptive Evidence, pp. 5 and 6; Pattison v. Prior, 18 Ind., 440; Martindale v. Eaulkner, 2 C. B., 715.) In this case it is agreed that appellee had no knowledge of the law and that its want of knowledge was not attributable to its negligence or fault.

<p>Case 59 — PETITION EQUITY —</p> <p>APPEAL PROM BREATHITT CIRCUIT COURT.</p> <p>J. P. Gillum was not the special judge at the September Term, 1891, and< had no legal authority to render any judgment in the case. (Gen. Statutes, chap. 28, art. 7, sec. 1.)</p> <p>If appellant’s contention be true that the special judge who gave the judgment appealed from was not authorized to act, he should have-moved for a new trial or have ignored the judgment as void. Besides,, the judgment shows on its face that the cause was submitted to J. P. Gillum as special judge without objection from appellant, and that appellant and appellee had an agreement upon said special judge with, reference to the submission of the cause.</p>

Case 60 — PETITION OKDIN AKV — APPEAL PROM GRAVES COURT OP COMMON PLEAS. The West Fork of Clark’s River was a navigable stream, and the dam across it was a public nuisance that any citizen had a right to abate either negligently or purposely; It was, therefore, error to instruct the jury in effect that if appellants were guilty of negligence in causing the dam to be broken they were liable, although the dam may have been a public nuisance. (Cooley’s Const.

Case 61 — PETITION EQUITY — APPEAL PBOM LAUREL CIRCUIT COURT. 1. The allowance should have been based upon appellant’s present condition, and it is excessive. 2. The appellee was clearly entitled to no relief, and the appellant should have been granted a divorce. A condonation must be with knowledge of the guilt, and must be given without misrepresentation. The knowledge of the guilt must be distinctly proved.

Case 62 — CAPIAS— APPEAL PROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. There are no authorities upon the question presented in this case, and the case is submitted for such opinion as the wisdom of the court may direct. Section 349 of the Criminal Code of Practice authorizes the satis, faction of the judgment of imprisonment by the payment of two dollars per day. It is true that this privilege is given to the surety, but when exercised it extinguishes the judgment.

Case 63 — PETITION EQUITY — APPEAL PROM JEFFERSON CIRCUIT COURT, UW AND EQUITY DIVISION. A judgment granting a life estate in real property in lieu of alimo.ny is not affected by a subsequent judgment, even properly obtained» ordering generally and not specifically a return of all property obtained the one from the other through or by reason of the marriage.

<p>Case 64 —INDICTMENT—</p> <p>APPEAL PROM SIMPSON CIRCUIT COURT.</p> <p>As to sufficiency of indictment, see Commonwealth v. Smock, 8 Ky. Law Rep., 143; Ferguson v. Commonwealth, 8 Ky. Law Rep., 257; Commonwealth v. Maynard, 91 Ky., 131; Biggerstaff v. Commonwealth, 11 Bush, 169.</p>

Cask 65 — PETITION EQUITY— APPEAL, FROM KENTON CIRCUIT COURT. 1. Appellee could not maintain an action for alimony alone; it should have been coupled with a suit for a divorce from bed and board, ov for an absolute divorce. (Dembitz’s Kentucky Jui'isprudence, sec. 144.) 2. The final judgment of divorce merged the judgment for maintenance of Feb. 12, 1892. (Gen. Stats., chap. 52, art. 3, secs. 6, 7.) 1.

Casis 66 — PETITION ORDINARY — APPEAL FROM BRECKINRIDGE CIRCUIT COURT. 1. The court committed an. error in arbitrarily discharging the jury and continuing the case to the next term. 2. The court erred in ruling out by demurrer and instructions the acts of the appellees relied upon, by the railroad company as constituting an estoppel. These acts are sufficient to constitute an estoppel not only against a person sui juris, but against a married woman.

<p>1. One can not be convicted op palse swearing for giving false testimony before a committee of aldermen, raised by the general council of a city of the first class to carry on an investigation looking to the punishment or expulsion of a member of the board of councilmen, the committee having no authority to carry on such an investigation or to swear witnesses. The authority to punish or expel an ■offending member is lodged in that particular board of which he may be a member, and neither the other board nor the general council can carry on an investigation looking to his punishment or expulsion.</p> <p>2. Same. — As the resolution of the general council under which the investigation in question here was conducted did not become effective until February 28, 1894, the action of the committee on February 27, 1894, was a nullity, and witnesses can not be convicted of false swearing for giving false testimony before the committee on that date even if the general council had power to appoint the committee.</p> <p>3. Same — Indictment.—As the charge upon which the investigation was to be had by the committee was that of bribery in the election •of a Sealer of Weights and Measures, the indictments are defective in failing to allege facts showing that an election for this office had been or was to be held at which the bribery occurred. And the indictment is also defective in failing to show that such an election was authorized under the law and before whom, etc.</p> <p>-4. Same. — The resolution under which the committee was acting is to be read as if a part of the indictment for the purpose of showing the charge to be investigated.</p>

Case 68 — PETITION EQUITY — APPEAL EROM MUHLENBERG CIRCUIT COURT. 1. The attorney was not authorized to make the affidavit for the appointment of the guardian ad litem upon whom service of process must b'e-had. This affidavit is required to be made by one or more of the parties. (Civil Code, see. 62, as amended Jan. 16, 1882; Idem, see. 38, sub-see. 1). 2. The affidavit filed ought to have shown that the infant had no guardian, curator or committee.

Case 69 — PETITION ORDINARY — APPEAL FROM OWEN CIRCUIT COURT. 1. The brother of defendant who acted as his agent in the transaction in question was not a competent witness for defendant, the person with whom the transaction was had being dead. (Civil Code, sec. 606.) 2. Even with all the incompetent testimony in, no defense is shown to-the note, and the court should have taken the case from the jury. 1. The policy of the New York Life Ins.

Cash 70 —INDICTMENT— APPEAL FROM DAVEISS CIRCUIT COURT. 1. The venue not having been proved the case should be reversed on that ground alone. 2. The question as to whether the wooden stick used by appellant was a deadly weapon should have been submitted to the jury. (Commonwealth v. Duncan, .91 Ky., 592.) 8.

<p>1. The statute oe limitations applicable to actions to obtain relief from fraud or mistake, does not apply to an action by a creditor to subject land belonging to the wife of the debtor to the extent the-debtor’s money has been expended in erecting improvements thereon. The husband, by putting the improvements upon the land, acquired such an interest therein as might be subjected to the payment of his-debts, and so long as he had not been divested of that interest it was liable to the debt sued on.</p> <p>2. Same. — The defendants having removed from the State soon after the accrual of the cause of action, and been continually absent therefrom up to the time of the filing of the suit, the time of their absence is not to be computed as a part of the period of limitation, although plaintiff might at any time have proceeded by attachment and constructive service against the land now sought to be subjected.</p>

Case 72 — PETITION '& APPEAL VROM ' LOUISVILLE CHANCERY COURT. 1. Where whisky made at a certain distillery is branded with the name of the proprietor as the trade-mark, the right to use the brand may he lawfully sold along with the establishment; and the use of the brand by the purchaser is not a fraud on the public, but will be taken to mean only that the whisky so branded continues to be the product of the same distillery.

Case 78 — PETITION OB.DINAB.T — APPEAL EROM CAMPBELL CIRCUIT COURT. 1. One who is merely chargeable with the continuance of a nuisianoe is entitled to a notice to remove it before he can he sued. (Gleason v. Schneider, &e., 7 Ky.-Law Rep., 834.) 2. The court erred in omitting the element of negligence from the instructions. 1. The petition states a cause of action. (Kinnaird v. Standard Oil Co., 89 Hy., 468.) 2. There was evidence of negligence on the part of Livezey. •3.

Case 7á — PETITION EQUITY — APPEAL PROM HARLAN CIRCUIT COURT. 1. The fact that appellant was in the adverse possession of the land in controversy in 1890, when M E. Howard attempted to convey the land to his wife and children, renders that deed void. (Gen. Stats., chap. 11, sec. 2; Kinsolving v. Pierce, 18 B. M„ 784.) 2. Whatever title appellees hold they hold in trust for appellant.

<p>Constitutional Law — Power of State to Regulate Sale of Patent Right. — The statute of this State which requires a patentee or his vendee or assignee to first procure and pay for a license before he is authorized to vend his patent right, or territory for the sa e of such right, is in violation of the Federal Constitution. While the States have jurisdiction to legislate on the matter of the use or sale •of the article which is brought into existence by virtue of the application of the patented process, Congress alone has power to regulate the sale of the right of the inventor in his discovery and the manner of the disposition of such rights.</p>

Case 76 — PETITION EQUITY — APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The twenty-five thousand dollars was deposited as a guaranty fund, not as liquidated damages. (Pomeroy’s Equity, sec. 433; Hahn v. Horstman, 12 Bush, 254; 1 Sedgwick on Damages, 8th ed , sec. 4f8; Ohaude v. Sheppard, 122 ÍT. Y., 397.) 2.

Case 77 — PETITION OBDINABY — APPEAL FROM HARDIN CIRCUIT COURT. No brief in record. 1. The burden of proof was upon appellees. . 2. A railway station agent authorized to receive freight for Shipment has implied authority to make a contract binding the company to furnish cars on the specified day, the shipper being ignorant of any limitation, of such power. (Hutchinson on Carriers, 2d ed., sec. 319 b\ Harrison v. Mo. Pac. R. Co., 74 Mo, 364; s. c., 41 Am..

Cas® 78 — PETITION ORDINARY — APPEAL FROM JEFFERSON CIRCUIT COURT, LAW ANT) EQUITY DIVISION. 1. In a suit on a judgment of a court of a sister State the judgment is always open to attack, no matter what the jurisdictional avermentsof the record. (Wood v. Wood, 78 Ky., 624; Public Works v. Columbia College, 17 Wall., 84; Thompson v. Whitman, 18 Wall., 457; Knowles v. Gas-light Co., 19 Wall., 58; St. Clair v. Cox, 106 IT.

Case 79 — PETITION OKDIN ARY — APPEAL PROM PENDLETON CIRCUIT COURT. 1. The county court has no power to levy an ad valorem tax for pauper purposes. (Gen. Stats, chap. 28, art. 16, sec. 1; Idem, chap. 28, art, 17, sec. 1; Idem, chap. 27, art. 2, sec. 1; Idem, chap. 86, sec. 4; Idem, chap. 89, sec. 6; Judge of Campbell County Court v. Taylor, 8 Bush, 208; L. & N. R. Co. v. Commonwealth, 89 Ky., 541.) 2.

Case 80 — PETITION OKDINAPY — APPEAL PROM TAYLOR CIRCUIT COURT. 1. The contract was not assignable without the consent of appellant. (5 Lawson’s Bights, Bemedies and Practice, sec. 2572; Gen. Stats, p_ 303, sec. 6; 3 Bibb, 440; 2 Bibb, 233.) 2. The instructions given permitted the jury to estimate as damages the prospective profits on sales by Wiggins in Boston and other markets. This was error.

Case 81 — PETITION EQUITY — APPEAL PROM MASON CIRCUIT COURT. The six living brothers and sisters of the testator take all his estate, the children and grandchildren of the deceased sisters and brother taliing nothing.

Casis 82 — ATTACHMENT FOB CONTEMPT — APPEAL PROM CALDWELL CIRCUIT COURT. The judgment complained of is a final order or its equivalent, and, therefore, the appeal lies. This is not a case of contempt. (1 Am. & Eng. Enc. of Law, pp. 617, 618; Banton v. Campbell, 2 Dana, 422; Apple-gate v. Applegate, 4 Met, 236.) No appeal lies from the action of the court sought to he revised, it being a mere proceeding for contempt.

Cask 83 — PETITION OKDIHABY — AFFEAL FROM KENTON CIRCUIT COURT. 1. The petition is defective. There is no allegation of knowledge or opportunity of knowledge upon the part of defendant’s agents in charge of the engine that plaintiff was under the engine, and without this the moving of the engine was not a want of care, notwithstanding the pleader may characterize such act as a negligent act.

Case 84 — PETITION EQUITY — APPEAL PROM KENTON CIRCUIT COURT. 1. The declaration of a dividend is within the discretion of the board of directors, and until thus declared its payment can not be enforced by a stockholder, even though there should bo surplus funds from which such dividend might he paid, (2 Waterman on Corporations, secs. 210, 214; Railroad Co. v. Nichols, 119 U. S., 296; Moss’ Appeal, 83 Pa.

Cask 85-rBETITIOH EQUITY — APPEAL PROM BREATHITT CIRCUIT COURT. A guardian can not speculate on his ward’s property and create an interest in himself opposed to that of his wards. (Mitchum’s Heirs v. Mitch-um’s Adm’x, 3 Dana, 260; Faucit v. Faucit, 1 Bush, 511.)

Case 86 — PETITION EQUITY — APPEAL FROM BOYLE CIRCUIT COURT. 1. The appellant has the right under its charter to collect tolls at each of the gates near Parksville in the method stated in the pleadings. (Laws 1847-48, chap. 465, p. 389; Acts 1843-44, chap. 287, p. 57.) 2.

<p>Case 87 —INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>1. The word “election” occurring in the article of the laws of Kentucky on elections is not confined to an election by the people.</p> <p>2. If it he conceded that an act for the government of cities of the first class repealed the office of sealer of weights and measures for Jefferson county, it is yet true that the office of inspector or inspectors of weights and measures was provided for the city of Louisville, and the misdescription in the indictment is not such as in case of verdict would vitiate the finding of the jury.</p> <p>The indictment in this case was improperly framed under chapter 41 of the Kentucky Statutes, because said title applies only to elections by the people, and the selection of officers by the common council does not come within the provisions of this statute. (Curran v. Taylor, 92 Ky., 538; Moore v. Commonwealth, 7 Ky. Law Rep., 292.)</p> <p>The bribery of councilmen is punishable by statute in this State, (Ky. Stats., sees. 1365. 2757), and was punishable at common law. (Curran v. Taylor, 92 Ky., 538.)</p>

Case 88 — FORFEITED BAIL-BOND — APPEAL EROM HICKMAN CIRCUIT COURT. 1. Appellant being a marriecl woman could not hind herself by the mere deposit of the money in controversy without the execution of any writing, it being admitted upon demurrer that the money was her separate estate. (Bidwell v. Robinson, 79 Ky., 29; 22 Am. & Eng. Eno. of Law, p. 16; Harris v. Dale, 5 Bush, 61.) 2. The court erred in admitting oral testimony as to the contents of the lost record. 1.

Case 89 — PETITION ORDINARY — APPEAL PROM PRANKXIN CIRCUIT COURT. 1. The partner, Oommotto, had no authority to bind appellant by borrow ' ing money, or overdrawing- the firm’s bank account, which is the most dangerous method of borrowing.

Case 90 — PETITION EQUITY — APPEAL PROM M’CRACKEN COURT OP COMMON PLEAS. Contracts in reasonable restraint of trade are valid. If the restraint is such only as to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the intei'ests of the public, it is not unreasonable. (Angier v. Weber, 92 Am.

<p>1. The holder oe a mortgage executed prior to the levy oe an execution on the mortgaged land has a lien superior to that created by the levy of the .execution, although his mortgage was not recorded until after the execution was levied.</p> <p>2. Parties to Action to Eneorce Lien. — The holder of a lien on land created hy the levy of an execution is entitled to be made a defendant to an action to enforce a prior mortgage lien upon the land, as subsection 3 of section 694 of the Civil Code requiring the plaintiff in an action to enforce a lien on real property to make all other lien-holders defendants applies as well to the holder of an execution lien as to any other lien-holder; and if not made a defendant he may have the sale made in the action set aside in order that there may be a resale. Whether be would have this right as against an innocent purchaser is not now determined, as not only did the plaintiffs in this case have-notice of the execution lien when they instituted their action, but the* purchaser had notice before the sale.</p>

Case 92 — PETITION. EQUITY — APPEAL PROM NELSON CIRCUIT COURT. The appellants are bona fide purchasers without notice, and should he protected by the court. 1. The land in controversy was trust property. (Story’s Eq. Jur., sec. 1210; Bispham’s Eq., sec. 86; Berry on Trusts, see. 127; Gen. Stats., chap. 65, art. 1, sec. 19.) 2.

Case 93 — PETITION EQUITY — APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The election was held and conducted by officers appointed not by the county court, but by the mayor of Morganfield, and was, therefore, . void. (Kentucky Statutes, secs. 1437, 3658.) 2. The act governing cities of the fifth class does not authorize or contemplate the issuing of the bonds in question. (Kentucky Statutes, sec. 3637.) 3.

Case 94 — PETITION EQUITY — APPEALS EROM LEE CIRCUIT COURT. Construing the statute with reference to its spirit and intent, appellants are entitled to a lien. (Act of March 29, 1888, Appendix to General Statutes, p. 88.) 1. Appellants have no interest in this controversy, were not parties to the suit below, and have no right to prosecute this appeal. 2. By the proceedings in the lower court there was no attempt to assert a lien. 8.

<p>Case 95 —INDICTMENT—</p> <p>APPEAL PROM JEPPERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>Defendant should have had the benefit of an instruction on the law of carnal knowledge of a female under twelve years of age. (Kentucky Statutes, see. 1155; Penston v. Commonwealth, 82 Ky., 549; Bethel v. Commonwealth, 80 Ky., 526.)</p> <p>The opinion of Hon. ~W. L. Jackson on motion for a new trial is referred to as a full and clear vindication of the verdict and judgment in this case.</p>

Case 96 — PETITION ORDINARY — APPEAL PROM PAYETTE CIRCUIT COURT. 1. Although services are rendered for the benefit of another without his request or privity, yet if he subsequently assents thereto, or if, after the services are rendered, he has knowledge thereof and acquiesces therein, a previous request and consequent promise may be implied.

Oasé 97 — PETITION* OKDINAKY — APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. There being a conflict of testimony, this court will not disturb the finding of the jury, unless there was some material error of law committed by the court. (Crutcher v. Beatty, 15 Ky. Law Rep.; Whilton v. Richmond, 2.

Case 98 — PETITIONS EQUITY — APPEALS FROM MARION CIRCUIT COURT. The husband’s homestead being derived while residing on the land with his wife in her life-time, it continues for his benefit after her death. (Ellis v. Wren, 90 Ky., 184; Stults v. Sale, 13 Ky. Law Bep., 337; Gay v. Hanks, 81 Ky., 552; Ellis v. Davis, 11 Ky. Law Bep., 893; 79 Ky., 521; 10 Ky.

Case 99 — PETITION ORDINARY — APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. All local or special acts regulating the limitation of actions, being- inconsistent with the present Constitution, are repealed by it. (Constitution of Kentucky, sec. 59; Idem, schedule, subdivision 1; Public School Trustees v. Taylor, 30 N. J. Eq., 618; Sanders v. Commonwealth, 13 Ky.

<p>1. Contributory Negligence — Peremptory Instruction. — "Where one of a gang of bridge-builders in the employment of a railroad company was killed by being thrown from the bridge by the movement of a loose plank upon which he was standing, and to which the foreman of the gang had tied one end of a rope which was being used in raising a piece of timber from the ground, although the deceased might, by closely examining the actual situation, have discovered that to pull the rope when ho did would probably cause the plank to move, yet as he had seen the foreman adjust the rope and pull it in safety while the timber was nearer the ground, it was proper to permit the jury to determine whether his failure to make the examination was negligence; and, therefore, the court did not err in refusing a peremptory instruction to find for defendant.</p> <p>2. Practice — Right op Jury to Take Model to Jury Room. — The trial court may, in the exercise of a sound discretion, permit the jury to take with them on retiring for deliberation things that were used as evidence on the trial, such as a diagram, map or model. And even after the jury have retired they may take such things to tho jury room, provided it is done with permission of the court. But in this case a model used on the trial was taken without such permission.</p> <p>3. Measure op Damages — Use op Expression ‘‘&c.” in Instruction. — Tn an action to recover damages for the loss of life by the willful negligence of another, the single criterion by which to measure compensatory damages is the power of the deceased to earn money, inquiry as to probable duration of his life being merely incidental, and it was error in this case to instruct the jury that, “in fixing the amount of compensation, they might take into consideration the power of deceased to earn money, the probable duration of his life, etc.,” as the use of the expression, “etc.,” gave the jury the right of unlimited inquiry about every possible source or cause of damage to the widow and children.</p> <p>4. Evidence. — It was error to refuse to permit defendant to prove by one witness, that another, called by plaintiff, had been discharged from service of defendant.</p>

Cash 101 — PETITION ORDINARY — APPEAL PROM TRIGG CIRCUIT COURT. The amount sued for in the justice’s court is-the amount in controversy. (Miller v. Yocum, 12 B. M., 421; Burbage v. Squires, 3 Met., 77; Donohue v. Murray, 2 Bush, 194.) The amount of the judgment appealed from is the amount in controversy. (L. & N. R. Co. v. Wade, 89 Ky., 255.)

Case 102 — PETITION ORDINARY — APPEAL FROM HENDERSON CIRCUIT COURT. 1. The court should have sustained motion to quash return on summons. (Barbourvillo Beal Estate Co. v. Matthews, 14 Ky. Law Kep., 767; L. & N. R. Co. v. Howard, 15 Ky. Law Kep.. 25.) 2. Appellee was not entitled to the twenty-five per cent, penalty. The notice did not specify either the time or place of the appraisement. (L. & N. R. Co. v. Brown, 3 Ky. Law Rep., 82.) 3.

Cash 103 — PETITION EQUITY — APPEAL EROM BOYLE CIRCUIT COURT. 1. In equity no trust can fail for want of a trustee, and when one named as trustee and executor qualifies as executor only, he becomes burdened with the trust, and responsible therefor as executor. (Tucker v. Grundy, &o., 83 Ky., 549; Craig v. Wilcox, Ex’r, 14 Ky. Law Rep., 908.) 2. If clauses in a will are repugnant and can not be reconciled, the later provisions must control. (Turner v. Guthrie’s Ex’rs, 14 Ky.

<p>Case 104 — PETITION ORDINARY —</p> <p>APPEAL PROM BOYLE CIRCUIT COURT.</p> <p>1.The election held on the 4th day of April, 1893, was void, because it was four days prior to the day fixed by law for such election. (Acts 1889-90, p. 326, secs. 3 and 4.)</p> <p>The time fixed, either by law or proclamation, is of the substance, and must be observed to make a valid election. (McCrary on Elections, secs. 118, 141, 193; Toney v. Harris, 85 Ky., 479.)</p> <p>% The election by ballot was violative of section 147 of the present Constitution.</p> <p>This provision of the Constitution is mandatory. (Varney v. • Justice, 86 Ky., 597.)</p> <p>3. Injunction was the proper remedy. (High on Injunctions, secs. 30, 1315.)</p> <p>1. Even if it should be conceded that the offices of master commissioner and city attorney are incompatible, the acceptance by Fox of the office of city attorney would merely result in rendering vacant the office of master commissioner, and of this plaintiff has no right to complain. (Kentucky Statutes, sec. 3744 )</p> <p>2. The election of a city attorney on the 4th day of April, 1893, was a compliance with the spirit and intention of the law. (Acts 1889-90, vol. 1, pp. 321-332; Idem, vol. 2, p. 759 ; Williamstown Graded Free Schools v. Webb, 89 Ky., 272.)</p> <p>Even in popular elections, where Ihe.time for the election is doubtful, and the election is held at a certain time by order of the proper authority and by the general consent of the voters, it will be allowed to stand. (6 Am. & Eng. Enc. of Law, p. 319.)</p> <p>The requirements of the law as to the time of holding the election are directory merely, and not mandatory. (Varney v. Justice, 86 Ky., 600; Anderson v. Winfree, 85 Ky., 609; State v. Tolan, 33 N. J., 195; Gole Co. v. Allison, 23 111., 437.)</p> <p>3. The charter of the city of Danville was still in force at the time of the election, and its provisions-govern as to the mode of voting. Therefore, section 147 of the Constitution has no application to this case, even if it should be conceded that the board of council is a representative body within the meaning of the Constitution. (Constitution of Kentucky, secs. 166, 167; Holzhauor v. City of Newport, 94 Kjl, 396.)</p> <p>4. The plaintiff must, in order to recover, show title in himself. (Toney v. Harris, 85 Ky., 464.)</p> <p>5. Injunction was not the proper remedy. (Houston, County Judge v. Steele, MS. Op., Dec. 8 1894; 2 High on Injunctions, secs. 1243, 1250, 1312-1315; McCrary on Elections, secs 351-2.)</p>

Gash 105 — PETITION EQUITY — APPEAR PROM GARRART) CIRCUIT COURT. 1. There was a sufficient consideration to uphold the mother’s promise. 2. The claims of appellants are not within the provision of section 4 of .the statute of frauds. (Creel v. Ball & Co.. 2 J. J. Mar., 316; Day w. Oloe, 4 Bush, 564; Hodgkins v. Jackson, 7 Bush, 343.) Nor are they within the denunciation of section 7 of the statute ■•against contracts not to be performed within a year.

Case 106 — PETITION EQUITY — APPEAL FROM GARRARD CIRCUIT COURT. ■1. Title by adverse possession for the period fixed by the statute is as complete as title acquired by a perfect paper title. (11 Ky. Law Bep., 820; Ballard’s Annual on Law of Beal Property, vol. 2, sec. 32 and authorities cited; Jones v. Jones, 18 Ala., 248; 13 Am. & Eng. Enc. of Law, p. 694; Chiles v. Jones, 4 Dana, 484.) 2.

Case 107 — PETITION EQUITY — APPEAL FROM LOUISVILLE CHANCERY COURT. 1. The charters of benefit societies govern as to who may be beneficiaries. The question of insurable interest has no place in questions of this nature. The benefit certificate is in the nature of a devise. (Duvall v. Goodson, 79 Ky.; Ky. Mut. Ins. Co. v. Miller, 13 Bush, 494; Gaines v. Ky. Grangers’ Mutual Benefit Society, 11 Ky. Law Rep., 580; Masonic Ben.

<p>Case 108 — PETITION EQUITY —</p> <p>APPEAL FROM BATH CIRCUIT COURT.</p> <p>1. The action to enforce the mortgage upon the Nicholas county land could only he maintained in that county. (Civil Code, sec. 62; Webb v. Wright, 1 Bush, 107.)</p> <p>2. The court should have sustained exceptions to report of sale because the sale was not advertised as required by the judgment. The commissioner was required to advertise the sale in the same way that execution sales are required to be advertised, which is by written notice. A printed notice is not a compliance with the statute. (Gen. Stats., chap. 38, art. 12, sec 2, subsec. 2.)</p> <p>Besides, the notices were misleading in that they announced that the salo would take place on Monday, “ October 12th,” whereas, the sale in fact took place on Monday, October 10th.</p> <p>3. W hile mere inadequacy of price, unless so gross as to compel a presumption of wrong, will not authorize a court to set aside a sale, yet gross inadequacy of price, coupled with even slight irregularities, requires that the sale should he set aside. (Bean, &c., v. Hoffendorfer Brothers, 84 Ky., 685.)</p> <p>1. The Bath Common Pleas Court had jurisdiction to sell the Nicholas county land. (Civil Code, sec. 62; Webb v. Wright, 2 Bush, 126.)</p> <p>2. The mistake in the advertisement as to the day of the month on which the sale would take place was immaterial, the advertisement being-explicit in stating that it would take place on Monday, county court day, in October, 1892.</p>

<p>1. Divorce. — The wife was not entitled to a divorce in this case upon the ground of abandonment by the husband for one year before the institution of the action, as there was evidence showing co-habitation within a year.</p> <p>2. Same. — As the husband provided for the wife liberally and was kind to her, and the only reason assigned by her for refusing to live with him “on the farm” was that he would not build a larger house, thei-e was no just ground for a separation from bed and board.</p> <p>■3. Same — Alimony.—While this court has no power to disturb the judgment in so far as it grants a separation, yet it will reverse that part of the judgment allowing alimony, the separation being improperly decreed. If the wife chooses, without cause, to live separate and apart from the husband, he should not be required to contribute to her maintenance.</p>