Volume 97 — Kentucky Reports

Case 1 — PETITION EQUITY APPEAL PROM HENDERSON CIRCUIT COURT. Joseph McCallister took a defeasible fee and not a life estate merely. Where an estate is given to a person generally or indefinitely withapowerof disposition, it-carries a fee, and the onlyexception to the rule is where the testator gives to the first taker an estate for life only by certain and express words and annexes to it a power of disposal.

<p>1. Carriers — Punitive Damages. — Where a common carrier accompanies his violation of contract with a passenger with willful and wanton oppression or violence, or unlawful personal restraint, or conduct insulting in word, tone or manner, he becomes liable to all the remedies of the law against tort-feasors, including the liability to pay punitive damages.</p> <p>In this action against a packet company, a common carrier, to recover damages on account of defendant’s failure to stop its boat and put plaintiff off at the place for which she had purchased and presented a ticket, and finally putting her off at a strange place, the court properly gave an instruction telling the jury in substance that they might find for plaintiff punitive damages if they believed from the evidence that the act of defendant was willful, or the result of gross neglect, or that the conduct of defendant’s employes was insulting either in manner, words or tone, there being testimony tending to show such was the fact.</p> <p>2. Same. — A corporation as well as a natural person may he held liable in punitive damages for injuries inflicted by the tortious acts of its employes committed within the scope of their authority.</p> <p>3. Measure of Damages. — It was proper for the court to authorize the jury to consider in estimating damages such bodily and mental suffering as was proximately caused by the acts of defendant.</p> <p>4. The confusion in the order of argument of counsel to the jury is not of sufficient importance to authorize the court to set aside the verdict.</p>

Case 3 — PETITION ORDINARY appeal from graves court of common pleas. 1. The custom proved by plaintiff does not apply to the facts in this case. 2.

Case 4 — PETITION EQUITY APPEAL FROM GARRARD CIRCUIT COURT. 1. The court erred in holding that the claim of appellant, Mattie E. Finnell, was not a preferred claim. (Gen. Stats., chap. 44, art. 2, sec. 7.) 2. Appellant, Ann M. Broaddus, was entitled to her personal exemptions. 1. Debts due as trustee have no priority, unless “the trust be created by deed or loill, duly recorded in the proper cleric’s office.” (Gen. Stats, chap. 44, art. 2, sec. 7.) 2.

Case 5 — INDICTMENT. APPEAL FROM POWELL CIRCUIT COURT. 1. The court should have allowed the witnesses, Wm. Bryan and Wm. Thorp, to prove the reputation of Eubank for truth, they having fully qualified themselves. 2. The court erred to the prejudice of defendant in limiting the argument to three hours. 3. The convicts should not have been allowed to testify. (Civil Code, sec. 606, subsec. 8; Ky.

<p>1. Bribery. — One who bribes another to vote in a particular way at an election held to take the sense of the voters of a precinct as to the sale of liquor therein is guilty of bribery under sec. 15S7 of the Kentucky Statutes.</p> <p>2. Same. — To constitute the offense of bribery the person receiving the reward,benefit or advantage must be influenced or be intended to be influenced thereby not merely to vote at an election, but to vote for a particular candidate or ticket, or upon a particular side of a question submitted, and the indictment must be direct and certain as to that matter. It is, therefore, not sufficient tc allege that the defendant bribed a named person to vote at an election by paying him a certain amount and that the person named voted as requested in consideration of the amount paid, as it is only an inference that the person named was bribed to' vote on a particular side of the question submitted, or to do any-, thing more than to exercise his right of suffrage.</p>

Case 7 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. The city has a right to close and discontinue highways subject only to the demand of any abutting property holder to be compensated for the damage which his property may sustain by reason thereof. (Gargan v. Louisville, &c., R. Co., 89 Ky., 212; Elliott’s Digest of City Laws and Ordinances, p. 150; Opinion of Judge Pryor on motion to re-instate injunction in Mengel & Bro. Co. v. City of Louisville.)

Case 8 — PETITION ORDINARY TRANSFERRED TO EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1.

Case 9 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. 1. The charge that the land was indivisible could not be taken as true against non-residents in the absence of evidence. (McFarland v. Garnett, 10 Ky. Law Rep., 91; Sears v. Henry, 13 Bush, 416; Civil Code, sec. 409; Idem, sec. 606, subsec. 3; Idem, sec. 574.) Friddle v. Kohn, 14 Ky. L. R., 312, distinguished. 2.

<p>1. It is the duty of a city to keep its STREETS reasonably safe for public travel; and it is liable for injuries resulting from obstructions in the street of which, it has had notice, or of which it may reasonably be presumed to have had notice from the length of time the obstruction has existed. And while a city may temporarily place obstructions on a street for the purpose of making repairs, yet this is permitted only as a matter of necessity and for only a reasonable time.</p> <p>In this action against a city to recover for injuries to plaintiff resulting from his horse, which had become unmanageable, running against a pile of lumber which had been left in the street, and turning his buggy over and throwing him out over an embankment,the court erred in giving'a peremptory instruction for defendant, the testimony tending to show that the lumber had been placed in the street by direction óf a member of the city council, and that another of the councilmen knew of the obstruction, and that the repairs for the purpose of which the lumber was placed in the street had been completed some time before the injury. Whether the street was so obstructed, as to render-it dangerous, whether plaintiff was injured by reason of the obstruction, and whether plaintiff was himself guilty of contributory negligence, were all questions for the jury.</p> <p>2.Same. — Whether the city was under obligation to erect a fence or other barrier along the embankment depends upon whether or not the street was reasonably safe for travel without this fence, and this is a question for the jury.</p>

Case 11 — PETITION EQUITY APPEAL PROM WARREN CIRCUIT COURT. I. The deed and defeasance executed in October, 1889, are to be regarded as one paper; and when so considered they constitute a mortgage. (Jones on Mortgages, vol. 1, sec. 250; 4 Wait’s Actions and Defenses, p. 517, 519; 3 J. J. Mar., 85; 6 Ky. Law Rep., 366;-Maxwell on Code Pleading, 536; 88 Ky., 199; 8 Bush, 687; 9 Ky. Law Rep., 714, 856.) 2. In all doubtful cases the chancellor will lean to the mortgagor..

Case 12 — PETITION EQUITY APPEAL PROM JEPPERSON CIRCUIT COURT, CHANCERY DIVISION. 1. At common law the note by the husband to the wife was void. (Ellsworth v. Hopkins, 58 Vt., 705.) 2. The feme sole statute does not change the common law to the extent of allowing husband and wife to give notes to each other and sue each other upon them.

Case 13 — PETITION ORDINARY APPEAL FROM BOYLE CIRCUIT COURT. 1. In the absence of proof supporting the allegations of want of knowledge upon the part of Sampson, and knowledge upon the part of the railroad, the defendant was entitled, upon the close of plaintiff’s case, to a peremptory instruction. (Bogenschutz v. Smith, 84 Ky., 330; 2 Thompson on Negligence, p. 1008.) 2.

<p>Case 14. — INDICTMENT</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>1. The corporate existence of the Singer Manufacturing Company is not established by the evidence. The act of the New Jersey Legislature relied upon leaves certain matters to be performed before the corporation becomes an entity, and the performance of these things is not shown.</p> <p>2. The indictment is defective in that it does not give the names of the persons from whom the money was collected.</p> <p>3. Under the contract there were two condition precedents to Clark’s Agency: First, a written authority to collect, and, second, an assignment of territory; and yet upon neither of these vital points was there any testimony offered.</p> <p>4. By the terms of the contract Clark’s commission on the funds collected gave him such an interest in the fund as to make him a joint owner with the Singer Manufacturing Company, and to preclude all the possibilities of embezzlement. (6 Am. & Eng. Enc. of Law, 474-5; State v. Kent, 22 Minn., 41; Carter v. State, 53-Ga., 326; Commonwealth v. Libbey, 45 Am. Dec., 185; Commonwealth v. Sterns, 2 Met., 34; Webb v. State, 8 Texas App., 310; 4 Lawson’s Crim. Dec., 894; Rapalje on Embezzlement, 721; Holem’s Case, 2 Lew., 256; 2 Archb. Criminal Pleading & Practice, 569, note; 2 Bishop, 355-6; Commonwealth v. Poster, 107 Mass., 221.)</p> <p>1. The Singer Manufacturing Company was incorporated and exists-by and under a special act of the New Jersey Legislature. The only condition precedent to its beginning business under that act. is shown to have been performed.</p> <p>2. It was not necessary to allege in the indictment the names of all the persons from whom the money was received. (Brown v. State of Ohio, 18 Ohio St., 513.)</p> <p>3. The authority of Clark to collect is shown by the evidence.</p> <p>4. Appellant had no claim against the Singer Manufacturing Company for commissions, except in cases where he collected money and turned same over to the corporation. As appellant -never turned over the funds he collected he was not entitled to any; commission.</p>

Case IS — PETITION EQUITY appeal erom mercer circuit court. 1. The court erred in not adjudging Mrs. Tabler to be entitled to one thousand dollars in the proceeds of sale in lieu of her homestead. The husband can not divest himself or his wife of the homestead by a deed of assignment, in which the wife does not join. (11 Ky. Law Rep., 62.) A waiver of the homestead exemption must be in the manner pointed out by the statute.

Case 16 — PETITION EQUITY APPEAL -FROM MASON CIRCUIT COURT. 1. Held: and the exception upon that ground should have been sustained. (Civil Code, sec. 492, subd. 1; Moore v. Thompson, 80 Ky., 424.) McGraw v. Minor, 12 Ky. Law Rep., 687, distinguished. 1. The amendment of May 9, 1892 to sec. 493 of the Code, dispenses with a bond in cases under sec. 491. 2.

Case 17 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. Appellant was an adult in the apparent possession of his faculties, and the engineer seeing him upon the track had the right to assume that he would get out of the way of the train, and to act upon that assumption until there was reason to fear he might not do so. (Lingenfelter v. L. & N. R. Co., 9 Ky., Law Rep., 116; L. & N. R. Co. v. Coleman, 10 Ky.

Case 18 — PETITION EQUITY APPEAL FROM NICHOLAS CIRCUIT COURT. 1. The return of “no property” upon an execution issued to a county other than that of appellant’s residence gave appellee no right to maintain an action under sec. 439 of the Civil Code. (Clements v. Waters & Hayden, 11 Ky. Law Rep., 880; Weatherford v. Myers, 2 Duv., 91; Maddox v. Pox, 8 Bush,402.) 2.

Case 19 — PETITIONS ORDINARY APPEALS FROM SPENCER CIRCUIT COURT. 1. The obstruction of the highway was a public nuisance for which the railroad company is subject to indictment. (L. & N. R. Co. v. Commonwealth, 13 Bush, 388; Tennessee R. Co. v. Adams, 3 Head (Tenn.), 596; Pennsylvania R. Co. v. Angel, 38 N. Y., 58.) 2. Mixed nuisances are such as are both public and private in their effect.

Case 20 — PETITION ORDINARY APPEAL FROM GREENUP CIRCUIT COURT. 1. As no attack was made upon appellee’s character, it was not competent for him to introduce evidence as to his good standing in the community in which he lived. 2. Steward was not the agent of appellant and it was not responsible for his acts. 3.

Case 21 — PETITION EQUITY APPEAL FROM HENDERSON CIRCUIT COURT. There is no fact in the case tending to show an intention by Hatchett to transfer to his account as guardian the debt evidenced by the note in which appellee was surety.

Case 22 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. My clients are anxious to take the bonds when it shall have been judicially determined that they are legal. The question as to their validity is submitted to the court. (Const, óf Ky., sec. 158; Ky. Stats., sec. 3010; Aydelott v. South Louisville, IB Ky. Law Rep., 166.) I. The act of 1894 (Session Acts, 1894, p. 18) does not repeal act of 1890. Repeals by implication are not favored.

Case 23 — PETITION ORDINARY APPEAL FROM BOYLE CIRCUIT COURT. 1. When the plaintiff said that the accident in question was caused wholly by the negligence of the defendant, it did not say that it was free from that degree of fault that might make it liable to its passengers, but only that it was not negligent to the extent that would prevent its recovering against defendant. (L. & N. R. Co. v. E., T„ Y. & G. R. Co., 60 Fed. Rep., 995.) 2.

<p>1. Construction of Devise — Per Stirpes Distribution. — Where a testator devised to his two sons in trust for their children “equal interests” in a house and lot, the children of the sons took per stirpes and not per capita, as the gift of the “equal interests” was to the two sons, each holding his share in trust for his children.</p> <p>2. Same. — Upon the death of a child of one of the sons, one-half his share passed under the statute to his father and mother, and, the father having since died, the mother is entitled in fee to one-half of the interest which thus passed to her and’ the father, and is entitled to dower in the other half.</p>

Case 25 — PETITIONS APPEAL FROM DAVEISS CIRCUIT COURT. 1. A deed whenever it contains a clause of re-entry or forfeiture in the event the grantee fails to do certain things, always creates a condition subsequent, and when the condition is broken the grantors may “lawfully re-enter and repossess themselves of the estate granted, and thus terminate the estate of the grantee.” (Post v. Weil, 115 N. Y., 361; s. c., 12 Am.

<p>1. Title of Act. — An act of the legislature providing that the council of the city of-Augusta may issue bonds of the city to a certain amount in aid of any railway company that will construct a railroad through the city, provided a majority of the voters of the city shall vote in favor thereof at an election held for that purpose, relates to the powers and duties of the governing body of the city, and the subject is sufficiently expressed by the title:' “An act to amend the charter of the city of Augusta.”</p> <p>2. Issual of Bonds by City in Aid of Railroad Company. — Where pursuant to such an act a favorable vote has been had under an ordinance providing that the bonds are not to issue until the road is built, that condition having been complied with the company is entitled to the bonds without any further contract or subscription upon the part of the city, and the city has no discretion in the matter. The words “may issue bonds,” as used in the act, are to be regarded as compulsory and not as permissive merely.</p> <p>3. Same. — When a public power for the public benefit is conferred in enabling terms a duty is impliedly imposed to exercise it whenever the occasion arises.</p> <p>4. Same. — In determining whether the company has complied with a condition of the ordinance that the road should be completed within two years, excepting such delays as might be caused by “floods,” the company is entitled to have deducted the time during which it was prevented by “high water” from making any progress, whether or not the water reached the height it had reached in noted floods.</p> <p>5. Notice of Election.' — Where the law fixes the time for holding an election the notice otherwise required to be given may be dispensed with.</p>

Case 27 — PETITION EQUITY APPEAL PROM HARRISON CHANCERY COURT. This action is purely a transitory one, and the Harrison Chancery Court had Jurisdiction. The matters involved in this action were never litigated in the Kenton Chancery Court. (Carroll’s Code, sec. 78; Gen. Stats., chap. 52, art. 3, sec. 7; Pretzinger v. Pretzinger, 4 Am. St. Rep., 542; Shrader, &c., v. Shrader, &c., 11 Ky.

Case 28 — PETITION ORDINARY APPEAL FROM BELL CIRCUIT COURT. The bank had a lien upon the deposit of the principal to pay the debt, and by surrendering that security it released the surety. (Morse on Banks and Banking, sections 562, 563; Faulkner v. Cumber- ’ land Valley Bank, 14 Ky. Law Rep.,923.) The case of Second National Bank of Lafayette v. Hill, 76 Ind., 223, distinguished.

Case 29 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. The Commonwealth had acquired no right to the taxes on the Hickman & Obion railroad for 1887 to 1891 before the passage of the act of April 24, 1882, and the last mentioned act became a part of the charter of the Nashville, Chattanooga & St. Louis Railroad Company as effectively as if it had been enacted prior to the consolidation of the two roads, and the consolidation had been effected thereunder.

Case 30 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. If an election was not demanded in November, 1894, by any law then in existence, ■ the election of appellee was wholly void. There can be no estoppel in a matter of public right. (Payne on Elections, sec. 214, p. 185 and authorities there cited.) 2. Under the old Constitution the Legislature had absolute control over municipal offices.

Case 31 — AGREED CASE APPEAL PROM FRANKLIN CIRCUIT COURT. No part of the common school fund can he used to pay any debt, obligation or demand of any kind whatsoever, except the salary of a qualified teacher of a common school, actually kept as required by law. (Present Constitution of Ky., sec. 184; Constitution of 1850, art. 11, sec. 1; Collins v. Henderson,-11 Bush, 74; Common School Laws, sec. 2; Idem, see. 11.) 1.

<p>Case 32 — INDICTMENT</p> <p>APPEAL PROM HARLAN CIRCUIT COURT.</p> <p>1. The court erred in refusing a continuance. (Adair v. Cooper, 25 Texas, 548; Boone v. Hilton. (S. C.) Const., 198; Allcorn v. Rafferty, 4 J. J. Mar., 220; Holmes v. Dobbins, 19 Ga., 630; Montgomery v. Ins. Co., 18 La. Ann., 227.)</p> <p>2. As the dying declarations of the deceased were reduced to writing, the writing was the best evidence, and its absence not being accounted for, it was error to admit parol testimony as to its contents. (Greenleaf on Evidence, vol. 1, sec. 161; Roscoe’s Criminal Evidence, 35, 97; State v. Sullivan, 51 Iowa, 142; State v. ■ Tweedy, 11 Iowa, 350; Commonwealth v. Haney, 127 Mass., 435; People v. Glenn, 10 Cal., 32; Collier v. State, 20 Ark., 36; State v. Patterson, 45 Vt., 308; 1 Wharton’s Am. Crim.'Law, 5th and rev. ed., p. 340, sec. 679; 47 Ohio St., 358; Greenleaf on Evidence, p. 231, sec. 161; Hines v. Commonwealth, 90 Ky., p. 64.)</p> <p>3. Defendant was on trial for the killing of Shackleford alone, and it was error to admit testimony as to the killing of other persons, such testimony not being competent as a part of the res gestae. - (1 Bouvier’s Law Dictionary, p. 614; 1 Greenleaf. on Evidence, sec. 108; Roscoe’s Criminal Evidence, p. 79, note 1.)</p> <p>4. The court erred in not giving the instructions asked by defendant.</p> <p>Under the facts proved in this case, I am of the opinion that the instruction offered by defendant and refused by the court should have been given.</p>

Case 33 — INDICTMENT APPEAL from MARTIN CIROT'IT COURT. 1. Two of the jurors were legally disqualified, they being indicted v^for crime at the time they were accepted as jurors. (HendersdiKY. Bradshaw, 4 Bibb, 45; Dana, 203; 1 B. Mon., 214.) 2. The court; ghould swear the sheriff .to keep the jury together, &c., before they should be permitted to retire, which the court did not do in this 'Gase. (Criminal Code, sec. 245.) 3.

Case 34 — PETITION EQUITY APPEAL FROM CLARK CIRCUIT COURT- The share of Roger Jones, Jr., in the real estate of the testator should be first applied to the payment of the debt he owes the estate. (Brown’s Admr. v. Mattingly, 12 Ky. Law Rep., 86!); S. C. 91 Ky., 275; Waterman on Set-off., 234.)

Case 35 — PETITIONS ORDINARY APPEALS -PROM HOPKINS and m’lean circuit courts. 1. It was the intention of the Legislature to require railroad companies, when so- directed by the Railroad Commission, to maintain either a water-closet or a privy at stations on its line. The compilers of the Kentucky Statutes have omitted from sec. 772 the words “or privies” used in the amendatory act of July 1, 1893. (Acts 1891-2-3, p. 1262.) 2.

Case 36 — PETITION ORDINARY APPEAL FROM DAVEISS CIRCUIT COURT. 1. The answer presents a good defense. A diversion of accommodation paper from the special purpose for which it was executed will release the accommodation drawer, and one who takes the paper with knowledge of the diversion is not a bona- fide holder. (1 Daniel on Negotiable Instruments (3d ed.), secs. 177, 789, 776a, 770, 790, 791, 792; Thompson v. Poston, 1 Duv., 392; 2 Am. & Eng.

Case 37 — PETITION ORDINARY APPEAL PROM GREENUP CIRCUIT COURT. 1. The court erred in striking from appellant’s answer the matters pleaded as a counter-claim. (Civil Code, sec. 96; Idem, sec. 113, sub-sec. 2; 7 Wait’s Actions and Defenses, pp. 530-534; Murphy, v. Hubble, 2 Duv., 247-253; Tinsley v. Tinsley, 15 B. M., 454-461; Rooney v. Tierney, 82 Ky., .255.) 2. It was also error to strike from the record the amended answer and set-off.

<p>Case 38 — FORCIBLE DETAINER</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION</p> <p>Appellant was entitled to a new trial upon the ground of surprise. (McFarland v. Clark, 9 Dana, 136; McCall v. Hitchcock, 9 Bush, 71; McKinney v. Commonwealth, 1 J. J. Mar., 319; Mahan v. Jane, 2 Bibb, 33.)</p> <p>1. If a forfeiture is incurred from underletting, and the landlord accepts rent falling due after such sub-letting, with a knowledge of such fact, it is a waiver of the forfeiture. (Taylor’s Landlord and Tenant, sec. 479; Whitehcot v. Fox, Cro. Jac.,'398; 12 Am. & Eng. Enc. of Law, 758; Ireland v. Nichols, 2 Sweeney (N. Y.), 289; Roe v. Harrison, 2 T. R., 425.)</p> <p>2. There was not such “surprise”- as entitled appellant to a new trial,</p>

Case 39 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. .1. The court erred in giving a peremptory instruction for defendant. Even if there be no dispute about the facts, yet if honest and sensible men might reasonably draw different inferences about the conclusion, the court will never take the case from the jury.

Case 40 — PETITION ORDINARY APPEAL FROM WHITLEY CIRCUIT COURT. The single question presented by this appeal is as to the constitutionality of the Kentucky statutes forbidding the removal of causes from State to Federal courts. The cases bearing upon the subject are: Doyle v. Insurance Co., 94 U. S., 525; Barron v. Burnside, 121 U. S., 186; Railroad v. Denton, 146 U. S., 207; Martin v. Baltimore R. Co., 151 U. S., 68,4.

<p>Constitutional Law — Rights of Foreign Corporations — Petition to Recover Penalty. — Section 572 of the Kentucky Statutes is in conflict with the Constitution and laws of the United States, and, therefore, void. But even if it were valid it does not authorize an action by the Commonwealth to recover a penalty of a foreign corporation doing business in violation of its provisions. The remedy intended to be provided was by indictment and fine, and not by an action by the Commonwealth.</p>

<p>Case 42 — PETITION ORDINARY</p> <p>APPEALS PROM CHRISTIAN CIRCUIT COURT.</p> <p>1. The only lawful method of choosing mayors of cities of the fourth class (the city of Hopkinsville being one of that class) is prescribed by the first clause of sec. 160 of the Constitution, which is that of election “by the qualified voters” of such cities, and the board of council of the city of Hopkinsville had no lawful or constitutional power or authority to cha.nge or fix the method “by ordinance,” and require the mayor of Hopkinsville to be appointed by the board, and thus take from the people of the city the constitutional right they had to elect their own mayor. While the General Assembly has the power to provide, by the enactment of a law, a method of selecting or choosing mayors and police judges in the cities of the fourth class, other than by the qualified voters of such cities, yet in the absence of such a law fixing a uniform method of choosing these officers in all cities of this class, the method prescribed in the Constitution — election by the qualified voters of the cities — must prevail.</p> <p>The power conferred upon the General Assembly to enact laws can not be delegated by that body to any other body or authority. (Cooley’s Const. Limit., 117; Cooley on Taxation, 61-64; Dillon on Mun. Corp., secs. 60, 567, 618; State v. Young, 29 Minn., 474; People v. Nevada, 6 Cal., 143; Bw parte Wall., 48 Cal., 279, 313; Tilley v. Savannah, &c., R. Co., 5 Fed. Rep., 641; Cincinnati, &c., R. Co. v. Clinton Co., 1 Ohio St., 77; Hydes & Goose, Ass’ees, &c., v. Joyes, 4 Bush, 464; The Auditor v. Holland, &c., 14 Bush, 147; Commonwealth v. Weller, Idem, 218; Clarke, &c., v. Rogers, &c., 81 Ky., 48; Burnside v. Lincoln County Court, 86 Ky., 425; Slack, &c., v. Maysville, &c., R. Co., 13 B. M.,’22.)</p> <p>2. The only lawful method of choosing members of boards of council of cities of the fourth class is that of election “by the qualified voters” of such cities, as provided in sec. 160 of the Constitution, which means, ex vi termini, “the qualified voters” of such cities at large; and the provision of sec. 4 of the act for government of cities of the fourth class (chap. 241 of Session Acts of 1891-2-3, p. 1211), allowing, or requiring, members of boards of council of such cities, in any event, to be elected “by wards,” is unconstitutional and void.</p> <p>3. Whatever power the General Assembly may have under the Constitution to require or allow members of boards of council of cities of the fourth class to be elected by wards, in contradistinction to electing them by the “qualified voters” at large, the provisions of the old charter of the city of Hopkinsville, in force at the adoption of the present Constitution,by which the eitywas divided into wards, was repealed, or abrogated, under the operation of see. 166 of the Constitution, when the act for the government of cities of the fourth class went into effect, that is, on the 28th day of June, 1893; and no wards have since that time been established in the city of Hopkinsville, and none were in existence at the November election, 1893.</p> <p>4. All elective officers of all cities and towns in the Commonwealth were required, by sec. 167 of the Constitution to be elected at the “general election” in November, 1893, which was the “one election” for that year allowed by sec. 148 of the Constitution, and which means the election provided for by the act entitled, “An act to regulate elections in this Commonwealth,” appro'ved June 30, 1892 (chap. 65 of the Session Acts of 1891-2-3), and conducted by the election officers appointed by the county judges under the said act, which act contained sufficient and exclusive provisions for the election of members of the boards of council of all cities of the fourth class at. the November election, 1833. in the manner required by the Constitution.</p> <p>1. The legislature did not intend by the adoption of the charter of cities of the fourth class to repeal any act or ordinance by which any city of the fourth class had previously been divided into wards. (Ky. Stats., sec. 3490, subsec. 33.)</p> <p>2. The charter of fourth class cities is in perfect harmony with sec. 156 of the Constitution.</p> <p>3. Sec. 160 of the Constitution does not require the mayors and boards of council of all cities and towns in Kentucky to be elected by the qualified voters at large of such citiés or towns.</p> <p>4. Appellants, like plaintiffs in ejectment, must recover upon the , strength of their own title, and not upon the weakness of their adversary’s.</p> <p>4. The law leaving to the legislative board of each town of the fourth class the right and power to determine by ordinance whether the mayor and police judge of such town should be elected by the people or by the members of the board of council is not unconstitutional. While the general rule is that the legislature can not delegate its general powers of legislation to any other body or authority, this rule has many exceptions. (Slack v. Maysville & Lexington R. Co., 13 B. M., 23; Sutherland on Statutory Construction, secs. 70-75.)</p>

Case 43 — INDICTMENT APPEAL PROM BALLARD CIRCUIT COURT. 1. Defendant’s objection to C. H. Thomas acting as special judge should have been sustained. A special judge is required to have the qualifications of a circuit judge, and one of those qualifications is a residence in the district for two years next preceding his election. (Ky. Stats., sec. 968; Const, of Ky., secs. 129, 130.) 2.

Case 44 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. A devise to “my three daughters .. for their benefit- and the benefit' of the heirs of their natural bodies” gives the daughters a fee simple estate. (Johnson v. Johnson, 2 Met., 331; McMeekin v. Smith, 14 Ky.

Case 45 — AGREED CASE APPEAL PROM LINCOLN CIRCUIT COURT. 1. Even if appellee was entitled to the license as a matter of right, the clerk properly refused to grant it, because he had no legal right to do so, that being the duty of the County Court. (Ky. Stats., secs. 3704, 4203, 1057; Tabor v. Lander, 15 Ky. Law Rep., 8; s. c. 94 Ky„ 237.) 2.

<p>Case 46 — PETITION ORDINARY</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>Appellee could not have discharged his duty to the public as contractor without having known the number of pumps and, therefore, the city was not estopped by the misrepresentation made by its agent. (Bigelow on Estoppel, chap. 18, sec. 4, pp. 626-7; Herman on Estoppel, vol. 2, sec. 791, p. 919.)</p> <p>I. The city is bound by its own acts, and as it represented to appellee it had 1,040 pumps to repair and paid him for that number, it can not now claim a mistake. (Pickard v. Sears, 6 Ad. & El., 469; 2 Exch., 654; 2 Herman on Estoppel, 883, 889; Swan v. Australian Co., 7 H. & N., 603; 81 N. Y., 57; 37 Am. Rep., 475 ; 49 Iowa, 270; 94 111., 191.)</p> <p>Estoppels apply to corporations as well as individuals. (2 Herman on Estoppel, 1367, 1368, 1369, 1386; 12 Wheat., 70; 21 Wis., 217; 139 111., 306.)</p> <p>2. The court instructed the jury that Harlan could recover only what the work was reasonably worth. Surely of this the city can not complain.</p>

Case 47 — PETITION EQUITY APPEAL FROM ELOYD CIRCUIT COURT. Tiie petition states a cause of action, and it was error to dismiss it over the protest of the next friend. (Hopkins v. Virgin, 11 Bush, 677; Civil Code, sec. 35; Gen. Stats., chap. 48, art. 1, sec. 10.) 1. This appeal can not be sustained, because only as to Wm. Akers • as an individual was an appeal granted, and the judgment did not dispose of the case as to him. 2.

Case 48 — PETITION EQUITY APPEAL PROM HICKMAN COURT OF COMMON PLEAS. 1. No act of the debtor not specifically attacked by the petition can be declared to operate as an assignment under the statute. (Wintersmith & Young v. Pointer & Conway, 2 Met., 460; Fuqua v. Ferrell, 80 Ky., 69.) 2. To render an act of the debtor a violation of the act of 1856, it must appear that it was done not only in contemplation of insolvency, but also with the design to prefer creditors.

Case 49 — PETITION EQUITY APPEAL FR01I JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. As appellees claim under appellant as tenants they are estopped to deny his title. 2.

<p>1. Indictment — Variance.-—Where an indictment for uttering a forged warehouse receipt charged that the forged writing certified that the whisky for which it was issued was in a certain bonded warehouse, in the “fifth” district of Kentucky, the fact that it appeared upon the trial that the warehouse described in the receipt was in fact in the eighth district of Kentucky did not amount to a variance between the indictment and proof.</p> <p>2. Where an examining court has held the defendant to answer the chabge before the grand jury, the failure of the first grand jury to indict should he treated as a direct refusal to indict, and a subsequent grand jury can not indict unless the charge is submitted to them by direction of the court. But if an indictment is subsequently found without the charge having been again submitted to the grand jury by direction of the court, the defendant waives the right to have it dismissed upon that ground, if he pleads to it without making a motion to dismiss.</p> <p>In this case, the indictment having, been found without direction of the court after two terms had intervened since the examining trial, the indictment was properly dismissed as to one-of the defendants, who made his motion to dismiss before pleading to the indictment, but a motion made by the other defendant for the first time after there had been one trial, and a failure of the jury to agree, came too late, and was properly overruled.</p> <p>3. A DISMISSAL AS TO ONE OP THE DEFENDANTS did UOt Í¡>SO fttOtO operate as a dismissal as to the other.</p> <p>4. Failure to Indorse Names op Witnesses on Indictment. — A motion to set aside the indictment upon the ground the names of the witnesses were not indorsed as required by sec. 120 of the Criminal Code, should have prevailed if it had been made in proper time, but, as it was not made until after defendant had pleaded and gone into one trial, it came too late.</p>

<p>Case 51 — PETITION</p> <p>APPEAL PROM UNION CIRCUIT COURT.</p> <p>Does sec. 234 of the Constitution apply to a tax collector?</p>

Case 52 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The object of the testatrix was clearly to give to Mrs. Webster sucn support and maintenance as the estate would bear, trusting Mrs. Watben’s discretion in the distribution thereof. And Mrs. Wathen could not refuse to exercise such discretion according to the true intent and meaning oí the don or. (Tabor v. Mclntire, 79 Ky., 505; Bohon v. Barret, 79 Ky., 378.) 2.

Case 53 — PETITION ORDINARY APPEAL EROM ERAN KLIN CIRCUIT COURT. The attorney-general is the officer that the Legislature intended should institute these suits, and the Franklin Circuit Court the court to which it intended to give jurisdiction. (Const, of Ky., title, “Judiciary;” Ky.

<p>Case 54 — PETITION ORDINARY</p> <p>APPEAL FROM SHELBY CIRCUIT COURT.</p> <p>1. The statement of the conductor made more than an hour after Ellis was put off the train was not a part of the res gestae, and was, therefore, incompetent. (McLeod, Receiver, &c., • v. Ginther’s Adm’r. 80 Ky., 399.) '</p> <p>2. Ellis hy refusing to pay his fare or produce a ticket forfeited his right to ride upon the company’s train, and he had no right to demand that he he put off at a station. Therefore, there was no liability upon the part of the railroad company, unless there was negligence upon the part of the servants in charge of the train by which Ellis was killed. (L. & N. R. Co. v. Logan, 88 Ky., 232.)</p> <p>Sullivan v. Louisville, &e., R. Co., 81 Ky., 624, distinguished.</p> <p>3. Even if the company was negligent in putting Ellis off the train, that negligence was not the proximate cause of the injury and, therefore, there is no liability. (Lewis v. Flint & Pere Marquette Ry. Co., 18 Am. & Eng. R. Cases, 265; 19 Am. & Eng. R. Oases, 301; 16 Am. & Eng. Enc. of Law, 436; L. & N. R. Co. v. Johnson,, 47 Am. & Eng. R. Cases, 611; L. & N. R. Co. y. Lewis, 14 Ky. Law Rep., 770; Ham v. President, &c., Delaware, &c., Canax Ce.. 21 Atl. Rep., 1112; Elliott v. Chicago, &c., R. Co., 150 U. S., 247, .-.'chaeffer v. Railroad Co., 105 XT. S., 249; McClelland v. Louisville, &o., R. Co., 94 Ind., 277; s. c., 18 Am. & Eng. R. Cases, 261.)</p> <p>1. The statement of the conductor complained of was not calculated to prove anything, except the impression the man’s condition had made on his mind, and for that it was unquestionably competent. But even if not competent it was not prejudicial.</p> <p>2. The court did not err in refusing the instructions asked by defendant.</p> <p>If a fellow passenger offers to pay the fare it is the duty of the conductor to receive it and carry the one in fault. (Wood’s Railway Law, 1409; Ham v. President, &c., Delaware, &c., Canal Co., 21 Atl. Rep.)</p> <p>As the servants in charge of the train knew that Ellis was helplessly drunk when they exposed him to the perils that resulted in his death, the company will not he heard to say that the death would not have resulted had he not been drunk. (Isbel v. New York, &e., R. Co., 27 Conn., 393; Louisville, &c., R. Co. v. Sullivan, 81 Ky., 624.)</p> <p>3. The instructions given correctly present the law of the case. A railroad company must exercise the right of expulsion in a lawful and proper manner, having due regard to the safety of the person ejected, and to the circumstances of time and place and the physical condition of the person ejected. (Louisville, &c., R. Co. v. Sullivan, 81 Ky., 624; Atchison, &c., R. Co. v. Weber, 52 Am. Rep., 545; Conolly v. Crescent City R. Co., 17 Am. St. Rep., 389; Wood’s Railway Law, 1435; Haley v. C. & N. W. R. Co., 21 Iowa, 15; 19 Am. & Eng. Enc. of Law, 907, 908.)</p> <p>4. The correct measure of damages was given. (Ky. Cent. R. Co. v. Gastineau, 83 Ky., 127; Louisville, &e., R. Co. v. Case, 9 Bush, 737; 5 Am. & Eng. Enc. of Law, p. 45; Wood’s Railway Law, p. 1539; Tilley v. Hudson River Co., 29 N. Y.)</p> <p>5. The verdict is not excessive. (Tennessee, &c., R. Co. v. Roddy, 85 Tenn., 400; L. & N. R. Co. v. Shivell’s Adm’r, 13 Ky. Law Rep., 905; L. & N. R. Co. v. Brook’s Adm’rx, 83 Ky., 137; L. & N. R. Co. v. Mitchell,, 87 Ky., 337.)</p>

Case 55 — PETITION EQUITY appeal prom bell circuit court. 1. As appellees have failed to show by legal evidence that they or either of them had any interest in or title to the land in controversy at the time of appellant’s purchase at the auditor’s sale, appellant’s alleged statements made at the sale can be considered nothing more than a statement of his intention to create a trust in favor of appellees.

*Case 56 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. As the property sought to be subjected is not within the fourth of the square binding on, adjacent or contiguous to the improvement, the court erred in subjecting the property. The cost of improving alleys in the interior of a square must be apportioned in the same way as the cost of making streets. (Schmelz &c., v. Giles, &e., 12 Bush, 495.) 1.

Case 57 — PETITION EQUITY APPEAL EROM JEEEERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The quarter square is the taxing district; and each quarter square should pay for so much of the improvement as binds upon it and no more. (Cooper v. Nevin, 90 Ky., 85; Boone v. Nevin, 15 Ky. Law Rep., 547; Schmelz v. Giles, 12 Bush, 494; Washle v. Nehan, MS. Op. (97 Ky., 351); Meyer v. Zell, 14 Ky. Law Rep., 816; Zable v. Connelly, 6 Ky. Law Rep., 309; Shadburn v. Connelly, 6 Ky.

<p>Case 58 — PETITIONS EQUITY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>1. The constitution by its own inherent force upon the passage of the act of July 1, 1893, for the government of cities of the first class, repealed an act of May 12, 1884. which provided for the levying and collecting taxes in the city of Louisville and remedies for enforcing same. The act of July, 1893, having failed to preserve and continue in force the provisions of the act thus repealed, actions for the collection- of taxes instituted before and pending at the time of the organization of cities oi the first class as such under the act of July, 1893, can not be prosecuted. (Sec. 3, Art. 1, Act May, 1884, Vol. 1, Sess. Acts, 1883-4, p. 1261; Idem, sec. 1, Art. 4, p. 1274; Idem, sec. 7, Art. 4 p. 1274; Idem, sec. 9, art. 4, p. 1280; Sess. Acts, 1885-6, vol. 2, p. 916; sub-secs, 15, 17, see. 59, secs. 245, 156, 166, 171, 51, 52 of the Constitution; secs. 1, 2, Schedule of the Constitution.</p> <p>2. It belongs to the legislature alone to prescribe the method and the agencies to be used in the collection of a tax, the conditions upon which they are to be invoked and the limit of their duration, and for the courts to supply any omission in these particulars is an invasion by the judiciary of powers belonging exclusively to the legislative department; therefore, the courts can not in this case supply the remedies which the act of July, 1893, failed to preserve and continue. (McLean v. Deposit Bank, 81 Ky., 258; Jones v. Gibson, 82 Ky., 563; Baldwin'v. Hewitt, 88 Ky., 682; Louisville v. Commonwealth, 89 Ky., 254; Thompson, v. Allen County, 4 Ky., Law Rep., 101; Dumesnil v. Louisville, 2 Ky. Law Rep., 431; Garrett v. Merriweather, 102 U. S., 501; Thompson v. Allen Co., 115 U. S., 558; Louisville Trust Co. v. Muhlenberg, 15 Ky. Law Rep., 397; Williams v. County, 35 Maine, 349; Butler v. Palmer, 1 Hill, 324; Commissioners ex parte, 30 Maine, 221; Commonwealth v. Cain, 14 Bush, 536; Rice v. Wright, 46 Miss., 682; In re North Street Canal 10 Watts, 351; Stover v. Munnell, 1 Watts, 248; Assessors v. Osbourne, 9 Wallace, 567; Ex parte McCardle, 7 Wallace, 514; South Carolina v. Giliard, 101 U. S., 433; Railroad Company v. Grant, 96 U. S., 401; Sutherland on Statutory Construction, sec. 165; Endllch on Interpretation of Statutes, sec 479; Sedgwick on Construction of Statutes and Constitutional Law, 112; Sess. Acts, 1891-2-3, secs. 194, 210, 219; Topeka v. Gilett, 32 Kans., 435; State v. Smith, 48 Ohio St., 217; State v. Pugh, 43 Ohio St., 112; State v. Mitchell, 31 Ohio. St., 607; State v. Constantine, 42 Ohio St., 444; Devine v. Cook, 84 111., 592; State v. Herman, 75 Mo., 352; Commonwealth v. Patton, 88 Pa. St., 260; State v. Hammer, 42 N. J. L., 439; Contieri v. New Brunswick, 44 N. J. L., 59; Sutherland on Statutory Construction, 129; Board v.. Wilson, 52 Ark., 295; Watkins v. Eureka, 49 Ark., 135; Titusville, v. Keystone. 122 Pa. St., 634; Board v. Trenton, 53 N. J. L., 580; Smails v. White, 4 Neb., 353; Todd v. State, 85 Ala., 341; Portland v. Stock, 2 Oregon, 69; Haring v. State, 51 N. J. L., 390; State v. McNeal, 48 N. J. L., 406; Blakemore v. Dolan, 50 Ind., 194; Varney v. Justice, 86 Ky., 600.)</p> <p>3. The constitution of 1891, saved to the city of Louisville all the matters concluded and completed, but it preserved no power, right, jurisdiction or remedy beyond the period fixed by the constitution as the limit of the duration of its charter; hence with the passage and approval of the act of July, 1893, the charter and every act not fully ripened by its completion perished together. (Thweatt v. Bank of Hopkinsville, 81 Ky., 1; Speckert v. City of Louisville, 78 Ky., 287; Commonwealth v. Sherman, 85 Ky., 692; Sess. Acts, 1891-2-3, sec. 20, Art. 1, p. 282; City of Louisville v. Johnson, 15 Ky., Law Rep., 617; Commonwealth v. McFerran, 152 Pa. St., 250; State v. O’Niell, 25 Atlantic, 273; City v. Grable, 38 Pa. St., 340; Bangor v. Goding, 35 Maine, 73; Gray v. Carlton, 35 Maine, 482; Kirkpatrick v. New Brunswick, 40 N. J. L„ 52; K. C. R. Co. v. Commonwealth, 13 Ky., Law Rep., 484; Dillon on Municipal Corporations, sec. 659; City of Louisville v. Louisville Gas Co., 15 Ky., Law. Rep., 178; Ormsby v. City of Louisville, 79 Ky., 202; L. & N. R. Co., v. Hopkins, 87 Ky., 615; K. C. R. Co. v. Pendleton, 8 Ky., Law Rep., 517; L. & N. R. Oo, v. Commonwealth, 89 Ky., 538; Camden v. Allen, 2 Dutcher, s99; Belvidere v. Warren, 34 N. J. L., 193; Bryan v. Harvey, 11 Texas, 313; Commonwealth v. Standard, 101 Pa. St., 150; Mount v. State, 6 Blackford, 25; McQuillen v. Doe, 8 Blackford, 583; Dwarris on Statutes, 676; State v. Hill, 70 Miss., 106.)</p> <p>4. Effect can be given to legislative intent ¿inly when it is constitutionally expressed, and when the legislature itself is not inhibited by the constitution.</p> <p>1. The repeal of the old charter of the city of Louisville did not have the effect to repeal the right to sue for taxes assessed and levied under the same, which remained unpaid after the repeal, nor to repeal the jurisdiction of courts in actions brought prior to and pending at the time of the repeal. (Constitution secs. 166, 171, 52, 125, 126.)</p> <p>2. When the law is altered pending an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. (Endlich on Interpretation of Statutes, secs. 228, 271, 520.)</p> <p>3. Constitutions and statutes should be given a prospective construction unless the language thereof clearly indicates that - it shall be retrospective. (Endlich on Interpretation of Statutes, sees. 228, 271, 520; Dash v. VanKleek, 7 John., 503; Pacific & Atlantic Telegraph Co. v. Commonwealth, 66 Pa. St., 70; Cooley on Taxation, 294-7; Cooley’s Constitutional Limitations, 77; Slack v. Maysville & Lexington R. Co,, 13 B. M., 11.)</p> <p>4. As provided in sec. 2979 of the Kentucky Statutes, all taxes of cities of the first class “already levied or imposed under existing laws and not yet paid remain payable” unless the contrary intention is expressed in the terms of the statute. (Kentucky Statutes, secs. 459, 465, 2979 Schedule of the New Constitution; Meyer on Vested Rights, sec. 1447; Amer. & Eng. Cor. Cases, Vol. 33, 688; City of Louisville v. Johnson, 15 Ky., Law Rep., 615; 15 Ky., Law Rep., 33; Sess. Acts, 1885-6, Vol. 1, p. 916.)</p>

Case 59 — PETITION ORDINARY APPEAL FROM HARRISON CIRCUIT COURT. 1.The appellant possessing the qualifications required by sec. 3511 Kentucky Statutes, passed pursuant to sec. 160 of the constitution, that -he should be twenty-four years old and have resided in the city limits six months next preceding the election, he was eligible to the office of police judge. The case of Atchison, County Judge v. Lucas, 83 Ky., 451, has no application to this case.

'Case 60 — APPEAL TO CIRCUIT COURT APPEAL FROM LINCOLN CIRCUIT COURT. 1. The whole proceeding in the county court was in every respect regular and in strict conformity to the statute, and except as to the selection of the committee not subject to the revision of the circuit court. (Ky. Stats., secs. 2152, 2156, 2157, 2162.) 2. The circuit court had no jurisdiction, and appellant’s motion and demurrer should have been sustained. (Ky. Stats., secs. 2149, 2152, 2156.) 3.

Case 61 — PETITIONS EQUITY APPEALS FROM JEFFERSON CIRCUIT COURT. 1. The imposition of a tax upon a trade, occupation or profession can not be made to operate as a tax upon the personal property used in, or as the instrumentality of, such trade, occupation or profession, or have the effect to release such property from ad valorem taxation; and it was not competent for the municipal legislature to so provide in the ordinance imposing taxes.

<p>1. Election of Special Judge. — There are only two conditions in which the statute authorizes election of a special judge in either of the three branches of the Jefferson Circuit Court having jurisdiction of civil cases. The first is where a case has been once transferred, and the presiding judge of the branch to which the transfer is made can not sit. The other is where from any cause the presiding judge fails to attend; but not even in that case can there be a special judge if the judge of any other branch attends and holds the court for the occasion. Though, of course, it was contemplated continuous absence of a regular judge would render election of a special judge necessary.</p> <p>2. Transfee. of Suits from one Branch of Jefferson Circuit Court to Another. — One who had been duly elected special judge of the chancery branch of the Jefferson Circuit Court, having the powers of a circuit judge, might have requested the judge presiding over another branch of the Jefferson Circuit Court to hear and determine a case in which he could not sit, or any question arising in it; or he might have caused to be made an entry of record of his disability to preside, which would have amounted to authority to the clerk to determine by lot to which of the other two branches having jurisdiction of civil actions it should be transferred. But an order made by him transferring the action directly to the common pleas branch was not void, and the action having been put upon the docket of that branch the judge thereof might have proceeded to hear and determine it, and any questions connected therewith, and such proceeding would have been valid. But whether the order-of transfer made by the special judge of the chancery branch was valid or not the question was entirely within province of the judge of the common pleas branch, and it was for him alone to decide how the case should be disposed of. Therefore a peremptory order made by the judge of the law and equity branch directing the clerk to immediately determine by lot to which of the two branches the case should be transferred was void, and the assignment of the case to that branch under that order conferred upon it no jurisdiction.</p> <p>3. Same. — Even if the order of the law and equity branch was not void the mode’ adopted by the- clerk of determining to which of tlie two branches the case should be transferred was improper, even according to rule 19 of the court, which authorized determination by lot of the single question to which court that particular action was to be transferred, without regard to assignment of other cases.</p> <p>4. Power of Coukt of Appears to Issue Writs of Prohibition and Mandamus. — Sec. 110 of the present constitution gives to the Court of Appeals plenary power to issue writs in every case where necessary to give it-control of inferior jurisdictions. And while this court having discretion ought not gen•erally to issue writs of prohibition when adequate relief can be afforded by exercise of its revisory power, yet as this is a case where one branch of the Jefferson Circuit Court is attempting by mandamus to compel the clerk to determine.by lot what disposition shall be made of an action on the docket, and subject to orders, of another branch, the writ is granted.</p> <p>5. The motion for mandamus against the judge of the common pleas branch is denied because he may at his election hear and and try the action, or by order require the clerk to determine by lot to which branch it is to be transferred, one or the other of which steps it is his duty to take.</p>

Case- 63 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The trial court erred in refusing to submit to the jury the issue as to whether the appellee was bitten by the appellant’s dog. (Keightlinger v. Egan, 65 111., 236.) 2. The court erred in admitting evidence tending to prove that the dog was vicious, and in submitting to the jury the question of punitive damages on the idea that the dog was vicious and known to be such by the appellant.

Case 64 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The court erred in setting aside the first verdict. The instructions under which that verdict was returned presented the law correctly. Besides, defendant was entitled to a peremptory instruction. ■ ■ ■ '2. The court erred upon the second trial in admitting the testimony of Mrs. Camp as to what was said to her by Frank Jackson. These declarations formed no part of the res yestae. (Ky.

Case 65 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION The judgment of the court below is flagrantly against the weight of the evidence and should be reversed. The facts practically amount to a confession of fraud. 1. On issues of fact the judgment of the chancellor will not be disturbed unless flagrantly against the weight of the evidence.

<p>Case 66 — PETITION EQUITY</p> <p>APPEALS PROM CLARK CIRCUIT COURT.</p> <p>1. The appellants under the rule applicable to adverse claimants are entitled to recover against the appellees the reasonable rents and profits on the lands for the time they were held by the appellees. (Mayne on Damages, 391; 1 Chitty on Pleading, 215; Meyers v. Sanders’ Heirs, 8 Dana, 65; Marshall v. Dupuy, 4 J. .T. M., 388; Boyd v. Barclay, 4 Dana, 227; Harris v Jones, 6 B. M., 389; R. & L. Turnpike v. Rogers, 7 Bush, 535; Trabue v. Kellar, 3 Mar., 518; Thomas v. Thomas’ Exors., 16 B. M., 421.)</p> <p>2. The rule usually applied between vendor and vendee where the contract is rescinded because the title .can not be perfected, which considers the interest on the purchase money paid as equivalent to the rents on the lands, does not apply to this case. (Williams’ Heirs v. Wilson, 4 Dana, 509; Cogwell’s Heirs v. Lyon, 3 J. J. M., 41; Morton’s Heirs v. Ridgway, 3 J. J. M., 258; Taylor v. Porter, 2 Dana, 275; Bell v. Barnett, 2 J. J. M., 530; Ewing v. Handley, 4 Littell, 372.) .</p> <p>3. The appellees are entitled to recover as an allowance for improvements only the enhanced value of the land by reason of the improvements erected.</p> <p>4. The land was conveyed to the appellees by the trustee without the grantor joining in the deed, and no title, therefore, passed by the conveyance; nor can the appellees proceed either against the heirs of the grantor or the land for the recovery of the purchase money, since there was no warranty of title. (Gen. Stats., chap. 63, art. 1, sec. 22.)</p> <p>5. Even viewing the sums of money paid to the trustee as debts against the estate of the grantor, it was essential to a recovery that the personal representative be made a party, and that the verification required by law should precede the judgment for the sale of the land. (Lawrence v. Hayden, 4 Bibb, 229; Lands-dale v, Cox, 7 Mon., 402; Gen. Stats., c. 44, sec. 6; Haggin v. Patterson, 10 Bush, 441; Civil Code, sec. 437.)</p> <p>6. The only legal or equitable right which the appellees can claim is the right of subrogation to the right of the trustee to recover from the persons to whom he paid the purchase money.</p> <p>1. In no event have the appellants any equitable interest in the land, since, if there was left any estate of value in the land, it should go to the payment of the balance on the debt for the satisfaction of which the conveyance in trust was made.</p> <p>2. The grantor, if living, would be estopped to set up any claim to the property, since for three years after the conveyance he acquiesced in the sale of the same by the trustee as directed by himself, and failed to raise any objection to the making of improvements by the appellees. The appellants are entitled to no more rights than he had. (Prather v. McDonald, 8 Bush, 46; Butler v. Miller, 15 B. M., 625.)</p> <p>3. The wife of the grantor can not assert right of dower since she joined in the conveyance to the trustee.</p> <p>4. The grantor having given to the trustee the power and- directed him to sell the property conveyed in trust for the payment of certain of his debts, the act of 1820 does not apply. (Ogden v. Grant, 6 Dana, 173; Reed v. Welch, 11 Bush, 450.)</p> <p>5. The purchase price paid by the appellees to the trustee was applied to the payment of a debt which was secured b£ a mortgage; and the appellees are entitled, upon defect in their title, to be substituted to the rights of the mortgagee, and to be allowed a lien upon the land for the recovery of the purchase money. (McCampbell v. MeCampbell, 5 Littell, 92; Story’s Equity Jurisprudence, sec. 1237; 1 Marshall, 246; 4 Littell,-371; 1 Marshall, 389; 1 Monroe, 161; 4 Bibb, 511; 2 Monroe, 126; 3 B. M„ 66; 14 B. M., 293; 16 B. M., 424; 5 Bush, 433; 7 Bush, 45; 9 Bush, 718; 80 Ky„ 189; 10 Ky. Law Rep., 879; 7 S. W. Rep., 538; Gen. Stat., ch. 80, sec. 1.)</p> <p>6. The amount allowed by the court for improvements was not palpably or flagrantly against the evidence, and the appellants are, therefore, not entitled to a reversal. (Proctor v. Smith, 8 Bush, 85; Hall v. Brumond, 7 Bush, 44; Haskins v. Spiller, 3 Dana, 575 ;Whitledge v. West, Sneed, 336.)</p> <p>1. The rule which pertains to the adjustment of rents and interest between the vendor and vendee upon a rescission of the contract for failure to make perfect title, under which the rents and interest are considered as equivalent, is applicable to this case. (Williams’ heirs v. Wilson, 4 Dana, 509; Taylor v. Porter, 1 Dana, 423; Williams v. Rogers, 2 Dana, 375.)</p> <p>2. The appellees having, upon the faith of a colorable title by reason of the conveyance to them by the trustee, paid the purchase price of the land, and taken the possession of same, and erected improvements upon same, they can not now be deprived of the possession thereof by the heirs without first receiving just compensation. Bell’s Heirs v. Barnett, 2 J. J. Marshall, distinguished.</p>

Case 67 — PETITION ORDINARY APPEAL FROM GRANT CIRCUIT COURT. 1. The only defense made to the note was non est factum, and all testimony was inadmissible except such as tended to elucidate the one question whose handwriting the signature was. 2. It was error to allow the appellee to testify against the decedent as to transactions had with said decedent, and acts done or omitted to be done by him. (Civil Code, sec. 606, sub-sec. 2; Jeffers v. Simpson, &e., 11 Ky.

Case 68 — PETITION EQUITY APPEAL FROM HARDIN CIRCUIT COURT. 1. The title to the fertilizer passed to the assignor of the appellant by virtue of the sale and delivery of same on the 20th of August, and his subsequently becoming insolvent could not affect his title to same; nor could his title be in any way affected, nor the restoration of the property justified, by a rescission of the contract, which was merely an agreement to fill orders upon certain terms.

<p>Case 69 — PETITION EQUITY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>1. The State has given ample authority to sue the Central Ky. Lunatic Asylum. (Constitution sec. 231; Kentucky Statutes, sec. 217; Frantz v. Jacob, 88 Ky., 525; Roberts v. City of Louisville, 92 Ky., 95; Pearson v. Zable, 78 Ky., 170; Kemper v. Louisville, 14 Bush, 87; Garrett v. Merriwether, 102 U. S., 511; Sinking Fund Comsrs. v. Northern Bank of Ky., 1 Met., 175; Bain v. State, 86 N. C., 49; County Board of Education v. State Board of Education, 106 N. C., 83; Briscoe, et al v. The Bank of Commonwealth, 11 Pet., 257; Mobile Co. v. Kimball & Slaughter, 54, Ala., 57.)</p> <p>Cases distinguished: Downing v. Mason County, 87 Ky., 209; Murdock &c., v. Commonwealth, 24 N. E. Rep.; Clark v. State and Bank of Tenn., 7 Cold, 307.)</p> <p>2. The consent of the State is not necessary to authorize the court to enjoin the commission of or to abate a nuisance. (Kerr on Injunction, 181, 183, 505; Crawford v. Carson,.35 Ark., 565; Spelling on Extraordinary Remedies, p. 485, vol. 1; United States v. Lee, 106 U. S.; Poindexter v. Greenhow, 114 U. S., 287; Cunningham v. Mason &e. R. Co., 109 U. S., 455; Pennoyer v. McConnaughty, 140 U. S., 1; Michigan State Bank v. Hastings, 41 Am., Dec., 549.)</p> <p>3. Every action which indirectly affects the State is not within the prohibition of suits against the State. To sue an offending or derelict agent is not suing the State. (Adams v. Auditor, 13 B. M.„ 150; Gerrard v. Nutall, 2 Met., 106; Hailey v. Auditor, 4 Bush, 490; Trustees High School v. Auditor, 80 Ky., 333; Perkins v. Auditor, 79 Ky., 306; Lindsey v. Auditor, 3 Bush, 232; Auditor v. Cochran, 9 Bush, 7; Allen v. B. & O. R. Co., 114 U. S., 311; Poindexter v. Greenhow, 114, U. S., 287.)</p> <p>4. The right to enjoin the pollution of a stream is established beyond controversy. (Hahn v. Thornberry, 7 Bush, 403.)</p> <p>1. The appellee is an agent and arm of the State of Kentucky, and can not be sued without the express consent of the State. (Constitution of Kentucky, sec, 231; Kentucky Stats., sec. 223; Dartmouth College Case, 4 Wheaton, 668; Teneyck v._ Canal Co., 3 Harrison, N. J., 200; Wheatly v. Mercer, 9 Bush, 707; Christian County v. Rankin, 2 Duv., 502; County of Lawrence v. Chattaroi R. Co., 81 Ky.,,225; Greenup County v. Maysville, &c., R. Co., 88 Ky., 659; Downing v. Mason County, 87 Ky., 208; Hite v. Whitley County Court, 91 Ky., 168.)</p> <p>2. The creation by the State of the corporation with power to sue and be sued can not be construed to be a grant of consent to sue that corporation, for a tort. (Mason v. Rogers, 4 Litt, 377; Phillips v. Pope, 10 B. M., 173; Irish B. & L. Asso. v. Clemens, 78 Ky., 82; Rhodes v. Governor, 24 Texas, 496; Green v. State, 73 Cal., 29; Pollock’s Admr. v. Louisville, 13 Bush, 221; Greenwood v. Same, 13 Bush, 226; Clark v. State of Tennessee, 7 Cold., 306; State v. Hill, 64 Ala., 67; Murdock v. Commonwealth, 24 N. E. Rep., 885, s. c., 152 Mass.; Williamson v. Louisville Ind. School of Reform, 15 Ky. Law Rep., 629; Benton v. Boston City Hospital, 140, Mass., 31; McDonald v. Massachusetts General Hospital, 120 Mass., 432; Haight v. The Mayor, 24 Fed. Rep., 93; Bryant v. City of St. Paul, 33 Minn., 289; Bigelow v. The Inhabitants of Randolph, 14 Gray, 541; Grainger v. The County of Pulaski, 26 Ark., 37; Sturner v. Board of Comsrs., 38 Pac. Rep., 841; Hedges v. Madison County, 1 Gillman, (111.), 567; Elmore v. The Drainage Comsrs., 135, 111., 269; Hughes v. Monroe County, 79 Hun., 120.)</p> <p>3. If appellee would not have been liable, to an action in damages for the tort complained of it can not be commanded by a court of justice to abate a nuisance which constitutes the tort. (High on Injunctions, secs. 739, 1185; Story’s Eq. Jur., sec. 925; Phoenix v. The Comsrs. of Emigration, 12 How., Pr., .1; Fort Worth v. Crawford, 64'Texas, 202.)</p> <p>4. The petition is not good because it affirmatively shows the action to be barred by limitation, or at least betrays such laches on the part of appellant as will preclude the relief sought. (Still-well v. Leavy, 84 Ky., 384; Commonwealth v. Cook, 8 Bush, 224; St. Louis, &c„ R. Co. v. Biggs, 52 Ark., 240; 20 Am. St. Rep., 174; Kinnison v. Carpenter, 9 Bush, 599; Logansport v. Uhl, 99 Ind., 531; High on Injunctions, secs. 884, 885; Trapagen v Jersey City, 29 N. J., Eq., 206.)</p>

<p>1. Banks — Negligence in railing to make Collection. — In this action against a bank to recover damages on account of defendant’s negligent failure to collect a certificate of deposit issued to plaintiff by another bank, and which plaintiff had placed in defendant’s hands for collection, the plaintiff alleging that defendant had surrendered the certificate to the payor, the petition was defective in failing to allege any fact showing that the alleged negligence had caused plaintiff to lose his debt, there being no allegation that the defendant could have collected the amount of the certificate at any time after it received it for collection, or that the surrender of the certificate to the payor prevented such collection, or that the payor refused to surrender the certificate.</p> <p>2. Same. — When a customer deposits with a bank a note, bill of exchange, certificate of deposit or check, for collection at a point distant from the location of the bank, he does so with the implied understanding that the bank will follow the customary method in making such collection, which necessitates the selection of agents or correspondents at other points to carry out the undertaking, and the bank can only be held responsible for the exercise of due care and diligence in making such selection.</p> <p>3. Same. — Although the defendant may have been negligent in sending the certificate by mail directly to the bank which issued it, yet, as it received in payment the check of that bank, plaintiff has not been damaged, provided defendant would have had the right to receive the check through an officer or an agent whom it might have selected tor the purpose.</p> <p>4. Same — Acceptance oe Check in Payment. — The defendant had the right to receive in payment of the certificate the check of the payor, the Pineville Banking Company, upon the Louisville Banking Company, that mode of accepting payment being in accordance with defendant’s usage.</p> <p>5. Same. — Except by agreement or usage a bank has no right to take anything but money in payment of paper it holds for collection.</p> <p>6. The usage of a bank to accept checks in payment of claims it holds for collection is binding upon a customer, whether he has knowledge of the usage or not, in the absence of any direction by him as to the mode of payment.</p> <p>7. Rights of Holder of Check — Effect of Assignment for Creditors. — A check drawn upon a bank is an absolute appropriation by the drawer of so much money in the hands of the banker to the holder of the cheek, to remain there until called for, and can not after notice be withdrawn by the drawer. Therefore, where the drawer, after drawing the check and before it is paid makes an assignment for the benefit of his creditors, the assignment passes to the assignee no interest in that part of the deposit thus appropriated, and the holder of the check may maintain an action upon it against the bank upon which it is drawn.</p> <p>In this case the defendant having accepted in payment of plaintiff’s claim, a check upon the Louisville Banking Company, which is solvent, and that company having refused payment for no other reason than that the Pineville Banking Company had, since the check was drawn, made an assignment for the benefit of his creditors, plaintiff has not been damaged, as he has a right of action against the Louisville Banking Company upon the check.</p>

Case 71 — PETITION ORDINARY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. The assignment of an insurance policy creates and constitutes a new contract of insurance between the company and the assignee whereby the assignee becomes the beneficiary in the policy. (Insurance Company v. Allen, 14 Ky. Law Rep., 161.) 2.

Case ,72 — APPEAL TO CIRCUIT COURT APPEAL FROM WEBSTER CIRCUIT COURT. 1. The evidence fails to show that appellant knowingly permitted a. minor to play on his pool table, and for that reason the judgment should be reversed. 2. The fact that the warrant was issued for Sebree City shows that. the prosecution was for violation of a city ordinance, and therefore a judgment in favor of the Commonwealth under the State law was unauthorized.

Case 73 — PETITION ORDINARY APPEAL FROM GRANT CIRCUIT COURT. The circuit court disregarded the mandate and opinion of the Superior Court. By that opinion the Superior Court expressly held .that it was not necessary for defendant to show that the bank had notice of the alteration at the time it purchased the note, and therefore, upon the second trial that question was res judicata and should not have been submitted to the jury.

<p>1. Former Jeopardy. — A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; and a jury is said io be thus charged when it has been impaneled and sworn.</p> <p>2. Same — Dismissal of Indictment for Variance. — The provision of sec. 178 of the Criminal Code that the dismissal of an indictment “for variance between the indictment and proof” shall not bar another prosecution fpr the same offense, does not apply where there was no dismissal of the indictment until after a trial and verdict, there being then no pending indictment to be dismissed. Therefore, appellant's plea of former acquittal in this case should have been sustained, although the former acquittal may have been due to a variance between the indictment and proof, there having been a verdict of not guilty in obedience to a peremptory instruction.</p> <p>3. Aiders and Abettors. — Although appellant was proved on the first trial not to have himself done the killing, but aided and abetted another, he might have been legally convicted of the crime of murder for which he was indicted, and there was, therefore, in the meaning of the Code, no variance between the indictment and proof.</p> <p>4. Accused put on Trial is Entitled to Decision. — Having been put upon his trial under the former indictment on charge of murder by a jury sworn to decide the issue between himself and the Commonwealth, defendant was entitled to' a decision of that issue, which he could not have been arbitrarily deprived of by the court.</p>

Case 75 — INDICTMENT APPEAL PROM CAMPBELL CIRCUIT COURT. The averment in an indictment for the offense of keeping a disorderly house, that the acts alleged to have been committed were done “on the-days, of-„ 1894, and before the finding of the indictment,” is sufficient to constitute a good indictment. (Bishop on Criminal Law, sec. 1119; Smith v. Commonwealth, 6 B. M., 21-23; Wilson v. Commonwealth, 12 B. M„ 2; Mallicoat v. Commonwealth, 16 Ky. Law Rep., 359.) 1.

CASE 76 — PETITION EQUITY APPEAL! PROM BELL CIRCUIT COURT. 1. The appellant can not be required to pay for any land except such as the appellee passes to it under good^ and clear title in Bell county, Kentucky, and not elsewhere. (5 L. R. A., ,654: McGuire v. Kirk, 16 Ky. Law Rep., 87; Cates v. Loftus, 3 A. K. Mar., 202; Hart v. Bodley, Hardin, 106; Williams v. State, 64 Ind., 553; . 95 Ind., 496; Davis v. Dycus, 7 Bush, 4; Bodley v. McChord, 4 J. J. Mar., 475.) 2.

Case 77 — INDICTMENT APPEAL FROM BARREN CIRCTJTT COURT. 1. The indictment charging the appellant with the offense of passing counterfeit money, knowing it to be counterfeit and with the purpose of circulating same, was defective in failing to charge that the coin alleged to have been passed was one “passing as current in this State.” (General Statutes, chapter 29, article 9, sec. 1.) 2.

<p>Case 78 — PETITIONS EQUITY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT. CHANCERY DIVISION.</p> <p>1. Lewis Sherley at his dea'th had never completed a gift to Bowen of any interest in the firm of Sherley, Woolfolk & Co. It is essential to the validity of a gift inter piros that there should be a delivery to the donee, and that the property or thing given should immediately pass and be irrevocable by the donor. (Duncan v. Duncan, 5 Litt., 12; Walden'v. Dixon, 5 Mon. 170; Knott v. Hogan, 4 Met., 102; Payne v. Powell, 5 Bush, 252.)</p> <p>2. It is the duty of a court of equity to compel Z. M. Sherley’s estate to account to Lewis Sherley’s estate for his entire interest in the assets of the firm of Sherley, Woolfolk & Co. The law treats the surviving partner as a trustee for the benefit of the deceased partner’s estate as well as creditors, and if he is guilty of either negligence or delay a court of equity will interfere; and in such case it is the duty of the personal representative of the deceased partner to apply to the court to compel the survivor to properly administer the trust and close up'the estate; and if he fails to do this he is equally culpable with the survivor. (Parsons on Partnership, pp. 442, 445.)</p> <p>3. A parol trust in land may be enforced. (Williams v. Williams, 8 Bush, 241; Griffin and wife v. Coffey, 9 B., Mon., 452; Martin v. Martin, 16 B. Mon., 8; Miller’s heirs v. Antle, 2 Bush, 408; Green v. Ball, 4 Bush, 586; Crutcher v. Muir’s exor., 90, Ky., 142; Graham v. King, 96 Ky., 339; 1 Perry on Trusts, sec. 75.)</p> <p>4. When a final settlement 'is made by an administrator or guardian without any claim for commission the court will not permit the matter to be opened up again for that purpose. (Matter of estate of Edward O’Neil, 46 Hun., 500; May v. Corliss, 68, Ala., 135; Swanson v. Phillips, 21 N. J. L., 70; Ten Broeck v. Fidelity Trust & Safety Vault Co., 88 Ky., 242; James v. O’Driscoll, 2 Ray, S. C., 101.)</p> <p>5. The claim to commissions is barred by limitation, over' fifteen years having run since the settlements were made and only'five being necessary to bar.</p> <p>1. None of the claims sued for were barred by the statute of limitation or by laches. (Ky. Statutes, see. 2521.)</p> <p>2. As the seventh section of the Statute of Frauds has never been enacted in Kentucky, a parol agreement to hold land in trust is enforceable. (Miller v. Thatcher, 9 Texas, 482; 16 Texas, 262; 19 Texas, 102; 6 Wall., 116; 5 Jones’ Equity, 292; 6 Humph., 99; 8 Humph., 460; 4 Sneed, 705; 7 Leigh, 576; 2 P. & H., 549; Crutcher v. Muir’s exor., 90 Ky., 144; Graham v. King, 96 Ky. 339; Curd v. Williams, 13 Ky. Law Rep., 855; Monarch v. Jones, 8 Ky. Law Rep., 612; Bedford v. Graves, 8 Ky. Law Rep., 262; Williams v. Williams, 8 Bush, 241; Griffin v. Coffey, 9 B. Mon., 452; Martin v. Martin, 16 B. Mon., 8; Green v. Ball, 4 Bush, 590; 13 Ky. Law Rep., 865; 6 Ky. Law Rep., 309; 7 Ky. Law Rep., 294; 4 Ky. Law Rep., 364; 2 Bush, 408; 16 B. Mon., 14; 9 B. Mon., 452; 13 Ky. Law Rep., 824; 10 Ky. Law Rep., 92.)</p> <p>3. Even if a writing was necessary, the memorandum made “by the agent of Capt. Sherley at his request, and afterwards ratified by him, is sufficient to take the case out of the statute. (Elliott v. Elliott, 15 Ky. Law Rep., 274.)</p> <p>4. The checks which read “Pay to L. A. Sherley, repairs,” are sufficient to satisfy the requirements of the Statute of Frauds. (Miller v. Antle, 2 Bush, 407; Wood on Statute of Frauds, p. 649.)</p> <p>5. There was not a valid gift to Bowen of Lewis SiTerley’s interest in the firm of Sherley, Woolfolk & Co. (Payne -v. Powell, 5 Bush, 252; Duncan’s admr. v. Duncan, 5 Litt., 12, 13; 8 Am. and Eng. Enc. of Law, 1313, 1315.)</p> <p>6. Z. M. Sherley having made his final settlement without' charging commissions can not now do so. (Reynolds v. Reynolds, 13 Ky. Law Rep.; Ten Broeck v. Fidelity Trust & Safety Vault Co., 88 Ky., 242.)</p> <p>1. The Statute of Frauds is not in force here by reason of its enactment in England. (Searcy v. Major, 4 Bibbs, 96.) Therefore, as sec. 7 of the statute has never been re-enacted here, it is not in force here.</p> <p>2. A trust for value may be treated as a sale. (Chiles v. Woodson, 2 Bibb, 71; Parker v. Bodley, 4 Bibb, 102.)</p> <p>3. A, trust may be created of lands in this State without a writing. (Green* v. Ball, 4 Bush, 591; Myles v. Mjdes, 6 Bush, 245; Faris v. Dunn, 7 Bush, 276; Caldwell v. Caldwell, 7 Bush, 515; Hobbs v. Wilcox, MS.. Op., 1881.)</p> <p>4. While as a rule an equity resting on a merely meritorious consideration will not be enforced against an heir, who is unprovided for, yet in the case at bar appellees are well provided for and therefore the relief should be granted. (Garner v. Garner, 1 ' Bush, Eq„ 1; McTntire v. Hughes, 4 Bibb, 187; Buford v. McKee, 1 Dana, 108; Mahon v. Mahon, 7 B. M., 579.)</p> <p>Cases explained: Rucker v. Abell, 8 B. M., 566; Spears v. Sewell, 4 Bush, 239; Usher v. Flood, 83 Ky., 552.</p> <p>1. The proof shows that Captain Z. M. Sherley paid for the country place, and does not show that he gave it to his son Lewis. A verbal promise by the father to give the farm to his son, without valuable consideration, even if proved, would have been within the statute of frauds, and not enforceable. The doctrine of "part performance” taking a case out of the statute of frauds, does not prevail in Kentucky. (General Statutes, chag. 22, sec. 1; chap. 24, sec. 2; Perry on Trusts, sec. 134, 137; Am. & Eng. Ency. Law, vol. 10, p. 12; Grant v. Craigmiller, 1 Bibb, 205; Rucker v. Able, 8 Ben. Mon., 566; Spears v. Sewell, 4 Bush, 239; Usher v. Flood, 83 Ky., 560; Commonwealth v. C. & O. R. Co., 14 Ky. Law Rep., 682.)</p> <p>2. The proof shows that Lewis Sherley gave to Bowen one-fourth of his interest in the firm of Sherley, Woolfolk & Co.; and a correct calculation of the various items shows that whatever sums Captain Sherley had, as administrator of Lewis, received from.the firm, were fully accounted for, in his settlements. The parol gift by Lewis to Bowen, or an interest in the firm, is sufficiently shown by the evidence. (Williamson v. Yeager, 91 Ky., 284.)</p> <p>3. Captain Sherley, as administrator of Lewis, had no right or power to collect the debts or other assets of the firm; this being the exclusive right and duty of the surviving partner, Woolfolk; and the administrator is not liable for any negligence of the surviving partner in failing to collect them. (Lindley on Partnership, side page 440; Wilson v. Soper, 13 B. M., 411; Shields v. Fuller, 65 Am. Dec., 293, 298.)</p> <p>•4. If there had been any duty on the administrator to collect the assets of the firm, there was no duty to bring suit against debtors where there was no likelihood of making the debt; and the administrator would only be liable where his failure to bring suit was from bad faith or from wilful default or fraud. (Thompson v. Brown, 4 Johnson’s Ch., 619; -Thomas v. White, 3 Litt., 184; Read v. Perry, 1 Monroe, 256.)</p> <p>5. The other items sued for are unsupported or disproved by the evidence; and, if they were allowed, they would not equal the amount of commissions which Captain Sherley was entitled to, as administrator. As he expressly reserved in his settlements the right to charge commissions if he saw fit, such commissiofis can now be used as a set-off against these demands. (Albro v. Robinson, 93 Ky. 200; Fidelity Co. v. Ten Broeck, 88 Ky., 242.)</p>

Case 79 — PETITION ORDINARY APPEAL PROM MADISON CIRCUIT COURT. 1.

Case 80 — PETITION EQUITY APPEAL PROM HARLAN CIRCUIT COURT. 1. The cause of action set out in the cross-petition neither “affects” nor is “affected by” the original cause of action within the meaning of sub-sec. 3 of sec. 96 of the Civil Code. (Wells v. Boyd, 1 Duvall, 366; Crabtree v. Banks, 1 Met., 485; Nolle v. Thompson, 1 Met., 121; Newman on Pleading, 616 and 617.) 2.

Case 81 — INDICTMENT APPEAL PROM ESTILL CIRCUIT COURT. 1. The court erred to the prejudice of the appellant in refusing to admit the testimony of Jesse Lunsford and Earl Kidwell who were jointly indicted with appellant and charged with conspiring together for the purpose of detaining and having carnal knowledge of one Pattie Tuggle.

<p>Case 82 — APPEAL TO CIRCUIT COURT</p> <p>APPEAL! FROM FULTON CIRCUIT COURT.</p> <p>1. The circuit court erred in refusing to transfer to equity this case, which was an appeal from the judgment of the city court of Fulton in an equitable action lo settle the partnership between appellant and appellee. It also erred in allowing oral proof instead of written as provided in section 552 of the Civil Code. (Civil Code, sec. 708.)</p> <p>The provisions of section 726 of the Civil Code that “appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered,” were not meant to change the method of trial in the admission of evidence and application of principles in equitable actions.</p> <p>5. It being in evidence that the money by which the cotton was purchased was paid out by the appellee at his store, and that none of same was advanced to appellant as part of his capital in the partnership, and further that the proceeds of cotton sales were placed in bank to the private account of the appellee and he used same as his private money, appellant’s contention that there was no agreement to share losses is corroborated, and it is conclusively demonstrated that appellee advanced money for himself alone as against appellant’s labor and that the latter was not considered by the appellee as a.joint owner of the goods. Hence this case comes within the rule of Heran v. Hall, 1 B. M.,159, that where one partner’s capital is money and the other’s labor, he whose capital is labor is not liable for contribution for any loss of capital in the venture. (Schull v. Brooks, 13 Ky. Law Rep., 335.)</p> <p>3. Though the appellant and appellee are balanced against each other as to the question of sharing losses, the burden is on the appellee, and the fact that appellant was not to share either in the capital or its control, or share in the proceeds except in such profits as it might gain, is convincing proof that he was not to share in the losses.</p> <p>4. It was error in the court to refuse to allow appellant to show appellee’s interest in the cotton gin and to refuse to permit appellant to show how much cotton appellee paid for in goods out of his store.</p> <p>1. This action brought by appellee in equity to recover of appellant $446.01 alleged to be one-half the losses sustained by appellant and appellee while engaged in a partnership enterprise of buying cotton, being one to recover an amount fixed and certain, is really one in ordinary, and the ruling of the circuit court upon appeal in refusing to transfer it to equity should be sustained for that reason; and also because that ruling is sustained by sec. 726 of the Civil Code Which provides that appeals in inferior courts “shall be docketed and tried as ordinary actions, &c.” (Civil Code, secs. 726, 708.)</p> <p>2. There being nothing in the record to show that any of the reasons mentioned in sec. 554 of the Civil Code existed, and the appellant being present in court at the trial, the ruling of the court in refusing to allow the appellant’s deposition read was proper.</p> <p>3. The figures shown in the record ascertaining one-half the loss sustained in the partnership, being in the handwriting of appellant, speak loudly in favor of the appellee’s contention that appellant was, under the terms of the partnership, to share the losses, for if he was not to share them why should he ascertain what the one-half amounted to ?</p> <p>4. The letters of appellant filed with the deposition of the witness Tucker show that he was managing the cotton as a part owner of same and that it was billed in the names of both appellant and appellee.</p> <p>5. This case comes within the rule laid down in Heran v. Hall, 1 B. M., 159, and also in the case of Curd, &c. v. Ridgeway, 9 Ky. Law Rep., 237, that, where the partnership extends to an equal proprietary interest in the corpus of the partnership property, which is the capital, the losses should be shared.</p> <p>6. The judgment of the lower court should be affirmed unless the finding of facts is flagrantly against the weight of evidence. (Thompson v. Thompson, 14 Ky. Law Rep., 514; Deatley’s admr. v. Power, 13 Ky. Law Rep., 139; L. & N. R. Co. v. Gorman, 13 Ky. Law Rep., 494.)</p> <p>7. Appellee having alleged a partnership and appellant not denying same, the presumption is that a partnership did exist and that both profits and losses were to be equally shared, and the burden is on the appellant to show that he was not to bear any of the losses. (Amer. & Eng. Enc. of Law, vol. 17, page 841, sub-sec. B and notes; same, vol. 17, page 964, sub-sec. 1 and note 4; Lee v. Lashbrooke, 8 Dana, 214; Connell v. Sandige, 5 Dana) 210; Pirtle v. Penn, 3 Dana, 247; Honoré v. Colmesnil, 1, J. J. Mar., 506.)</p>

Case 83 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The burden of proof was upon the plaintiffs, and it was error to deny to them the right to conclude the argument to the jury. (Ky. Statutes, secs. 2760, 2761, 2762, 2763, 2764; O’Connor & McCulloch v. Henderson Bridge Co., 27 S. W. Rep., 251; 1 Greenleaf on Evidence, note Tto sec. 74.) 2.

Case 84 — PETITION ORDINARY APPEAL PROM JEPPERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Held: like a general deed of assignment, to he an assignment “subject to the bank’s right of set-off.” (Bank of Maysville v. Windisch Brew. Co., 50 Ohio St., 151; Hawes v. Blackwell, 22 Am. St., Rep., 873; 107 N. C., 196; Laclede Bank v. Schuler, 120 U. S., 511.) 3.

Case 85 — ELECTION CONTEST .APPEAL! FROM LARUE CIRCUIT COURT. 1.

<p>Insurance — Surrender of Part of Claim in Ignorance of Legal Rights. — Where the holder of an insurance policy in ignorance of his legal rights and not as a compromise of a doubtful claim has been induced by the fraudulent misrepresentations of the company’s agents to accept in satisfaction of his loss under the policy a smaller amount than was due him, a court of equity will, at his instance, rescind the contract by which, he surrendered a part of his claim.</p>

Case 87 — PETITION ORDINARY APPEAL FROM GREENUP CIRCUIT COURT. 1. A creditor, who is a resident of this State, can not follow the property of his debtor, which is exempt from execution-under the laws of this State, into another State where it has been taken temporarily, and there subject it to the payment of his debt. 2.

Case 88 — PETITION ORDINARY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The saving in favor of infants contained in the General Statutes should not be imported by construction into the special or local statute. The same rule ought not to apply to the city that operates on individuals and private corporations.

Case 89 — PETITIONS AND INFORMATIONS — APPEALS FROM FRANKLIN AND OTHER CIRCUIT COURTS. 1.

Case 90 — PETITION ORDINARY APPEAL FROM PAYETTE COURT OP COMMON PLEAS. 1. The temporary vacancy of two of the houses did not render the policy void. 2. The mechanics’ or lumbermens’ lien did not constitute such a change of title or such an encumbrance as invalidates the policy. (Phoenix Ins. Co. v. Lawrence, 4 Met., 15.) 1.

Case 91 — PETITION EQUITY APPEAL PROM CLARK CIRCUIT COURT. 1. The appellee does not take as devisee the share which his mother, ' if living, would take. The term “brother and sisters” ■ does not include the children of brother and sisters. 2. The will created in Mrs. Goff a contingent remainder which never took effect because of her death before the happening of the contingency; and therefore appellee does not take by descent from her.

Case 92 — PETITION ORDINARY APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. 1. The intention and purpose with which the annexation is made will determine whether it becomes a part of the freehold or not. In this case the annexation was made with a temporary purpose, with no intention of benefiting the freehold, but upon the contrary under a contract of removal.

Case 93 — PETITION EQUITY APPEAL PROM BOYD CIRCUIT COURT. The appellant never agreed to risk the warranty of the appellees except upon the faith of their representations that the property was free from incumbrances and the title to it good, and as appellees fraudulently suppressed the fact as to the existence of the restriction as to sale of liquor upon the premises, the appellant is entitled to protection.

<p>1. Injunction to Prevent Railroad Company from Purchasing Parallel Line. — A court of equity has jurisdiction in an action by the State to enjoin a corporation from exceeding its chartered powers, or doing acts otherwise illegal and injurious to the public. Therefore the State may by injunction prevent a railroad company from consummating the purchase of a “parallel or competing line” in violation of sec. 201 of the State constitution.</p> <p>2. The word “parallel” as used in that section of the constitution was not used according to its strictly accurate meaning of two railroads constructed equi-distant apart through their whole extent, which would be impracticable, but in the sense of two conforming in their general direction.</p> <p>3. In construing statutes words may be modified, altered or supplied so as to obviate any inconsistency with the intention of the legislature as collected from' the subject matter and object of the statute, and all words, if they be general, and not expressed and precise, should be restricted to the fitness of the matter.</p> <p>A clause in the charter of the Louisville & Nashville Railroad Company providing that the company may “from time to time extend any branch road and may purchase and hold any road constructed by another company or may agree on terms to receive the cars of other roads on their said road, but shall charge for same the usual freight,” must be construed with reference to the subject matter, which was branch roads, and can not be regarded as conferring upon the corporation the power to purchase parallel and competing lines.</p> <p>4. Powers of Corporations. — Even if the Louisville & Nashville Railroad Company had statutory power to purchase parallel and competing lines it would not have the power to' purchase and hold the road of the Chesapeake, Ohio & Southwestern Company for the reason that the charter of the latter company prohibits consolidation of its capital stock with that of any other company whose lines are parallel and competing, as those of the Louisville & Nashville Company are.</p> <p>6. Same. — Franchises and privileges not in express terms granted to a corporation are to be regarded as withheld.</p> <p>6. Inter-State Commerce — Sec. 201 of the State constitution, which provides that no railroad company shall acquire by purchase “any parallel or competing line or structure, or operate the same,” is not a regulation of inter-state commerce, nor does its, enforcement infringe upon the power of congress to regulate commerce between the States.</p>

<p>1. Bond for Costs. — Sec. 616 of the Civil Code of Practice, which requires a plaintiff who is a corporation to give bond for costs, applies to private corporations alone and not to public corporations, and, therefore, does not apply to the trustees of a common school district. .-</p> <p>2, Construction of Statutes. — Statutes are sometimes extended to cases not within the letter of them and cases are sometimes excluded from the operation of statutes though within the letter,, it being an acknowledged rule in the construction of statutes that the intention of the makers ought to be regarded.</p>

Case 96 — PETITION EQUITY APPEAL FROM PAYETTE CIRCUIT COURT So much of thfe charter of the city of Lexington as was not inconsistent with sec. 167 of the new constitution was continued in force by that instrument, and, therefore, city officers elected in November, 1893, were elected for two years, as provided by the existing charter. Sec. 160 of the constitution was intended to apply only after the municipalities shold be divided into classes.

Case 97 — PETITION ORDINARY APPEAL PROM MONTGOMERY CIRCUIT COURT, To entitle the plaintiff to recover in this action he must prove that defendant caused to be published the statements as to the condition of the bank and that they were false in a material degree, and either known by him to be false or published by him without an honest belief that they were substantially true. And the court erred in not giving an instruction asked by defendant embracing .this view.

<p>Case 98 — PETITION ORDINARY</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.</p> <p>1. When the appellant was appointed, if the meeting held for the purpose was legal, the function of the enabling act was executed and the power was exhausted. (Griffith v. Frazier, 8 Cranch, 1; Thomas v. Burnes, 23 Miss., 550; Hoke v. Fields, 10 Bush, 144; Mechem on Public Officers, secs. 113-120.)</p> <p>2. A special judge of the circuit court has all the powers of the regular judge. (Ky. Stats., secs. 968, 1029.)</p> <p>The words “judge” and “court” are used throughout the statutes as synonyms. (Boon v. Bowers, 30 Miss., 257; Ky. Stats., secs. 2241, 1597, 392, 409, 1037, 2947, 926, 962, 4637, 4539, 5559, 2203; Civil Code, secs., 218, 298, 732, sub-sec. 12.)</p> <p>3. John L. Dodd was on the 3d day of January the judge de jure of the chancery division of the Jefferson Circuit Court. (Work on Courts, p. 382.)</p> <p>But if not, still his acts as a do facto judge merely can not now be questioned in so far as they affect third parties or the public. (Turney v. Dibrell, 3 Baxter, 235; State v. Allings, 12 Ohio, 20; Dugan v. Farrier, 18 Brown, 383; Norfleet v. Sfaton, 73 N. C., 548.)</p> <p>4. The indexer is an officer of the Jefferson Circuit Court, and the act providing for his appointment by the court is constitutional. (Ky. Stats., sec. 909; Seebold e® parte, 100 U. S., 397; Mechero, on Public Officers, sec. 106.)</p> <p>If, however, the court below was right in holding that the indexer is not an officer of the Jefferson Circuit Court, and that the act in appointing him was non-judicial, there can be nothing clearer than that the act is unconstitutional. (Hayburn’sCase, 2 Dallas, 409; United States v. Ferreir, 13 How., 49; McLean County v. Deposit Bank, 81 Ky., 262; Commonwealth v. Addams, Clerk, 95 Ky., 588; Smith v. Strother, 68 Cal., 194.)</p> <p>1. The constitution makes a clear distinction between the “judges of the Circuit Court” who are limited in number, elected by the people, commissioned by the governor, have a fixed salary, and hold for five years; and “special judges,” who are unlimited in number, not elected by the people, not commissioned, and are changed day by day. (Constitution, secs. 136, 125, 137, 135.)</p> <p>2. The powers of a “judge of the circuit court” are many and varied; while the power of a “special judge” is strictly limited to “holding court for the occasion.” (Constitution, sec. 136;'Kentucky Statutes, sec. 1029.)</p> <p>3. In providing that, on the failure of the circuit court judge to attend the court room on any day, a special judge shall be chosen by the bar “to hold court for the occasion,” the additional words in the statute (sec. 1029): “Said special judge shall have the powers of a circuit judge,” do not deprive the regular circuit court judge of his office, or ministerial powers, but only mean that the special judge shall have such judicial powers as may be necessary to enable him to “hold court for the occasion.” These words do not confer ministerial powers, which are not necessary for doing the only thing the special judge is empowered to do — to “hold court for the occasion ;” and such general words will be limited to the special purpose in view. (Barbour v. City of Louisville, 83 Ky., 100.)</p> <p>4. The statute could not confer such power on the “special judge;” for the constitution only authorizes a special judge to be given power to hold court.” (Constitution, see. 136.)</p> <p>T>. The selection of a special judge to try a particular case or to try all cases during the day or term of the circuit court judge’s failure to attend the court room, does not remove the circuit judge from his office, or suspend for a moment his circuit judge powers, as a peace officer or his judicial power of trying or deciding equity and other cases, or his right to • exercise the ministerial duties imposed upon him. He may, very properly, he exercising his ministerial powers, and performing his ministerial duties, at the very time the special judge is “holding court for the occasion” in some case in which the circuit court judge can not sit. (Wallace v. Helena R’y, 10 Mont. 24, (24 Pac., 626; 25 Pac., 278).</p> <p>6. The statute conferred the power to appoint and remove the public indexer, not upon the numerous and ephemeral "special judges,” changing from day to day; but upon the four regular “judges of the circuit court” and the county court judge. (Kentucky Statutes, sec. 908.)</p> <p>7. The power to appoint a public indexer was not a judicial power, nor a part of the powers of any of the numerous special judges who might be, on different days, “holding court for the occasion;” but was a ministerial power, to be properly exercised not in court, nor while holding court, but outside of court. (Hoke v. Meld, 10 Bush, 145; Taylor v. Commonwealth, 3 J. J. Mar., 401; Am. & Eng. Ency. of Law, vol. 19, p: 418.)</p> <p>8. Nor is the appointing of a public indexer, strictly speaking, an exercise of the “powers of a circuit judge;” for the circuit judges of the State generally do not have such power; nor did it become among the recognized powers of a circuit judge (f. e., of all circuit judges) merely because the four circuit judges in Louisville were required to perform this outside ministerial duty. (Wallace v. Helena R., 10 Mont. 24 (24 Pac., 626; 25 Pac., 278); Lewis v. Curry, 78 Mo., 53; People v. Bush, 40 Cal., 334; State v. Brown, 35 Kansas, 169; Heiler v. Sullivan, 64 Cal., 378; State v. Noble, 10 A.m. St. Reports, 143 (118 Ind., 350).</p> <p>9. It was not unconstitutional for the legislature to vest the power and duty of appointing an indexer in the judges of the circuit court and county court; for other than judicial duties are often imposed on judges, and most of the courts are required to appoint officers, such as clerks, marshals, tipstaffs, commissioners, examiners, etc. (Constitution, sec. 107; State v. Higgins, 28 Southwestern, 638 (124 Mo.,) Hoke v. Field, 10 Bush, 144; Taylor v. Commonwealth, 3 J. J. Mar., 401; State v. Brown, 35 Kansas, 169; People v Bush, 40 Cal., 344; State v. Laughton, 19 Nev., 205; Lath-rock v. Britton, 30 Cal., 680; People v. Edwards, 9 Cal., 286; Pennington v. Woolfolk, 79 Ky., 13; Speed & Worthington v. Crawford, 3 Met., 207; People v. Provines, 34 Cal., 520; Story’s Com. on Constitution, sec. 517; Ency. of Law, vol. 12, p. 15.)</p> <p>10. This power to appoint is a personal trust, and a judge of the circuit court could not delegate it to a special judge. (State v. Noble, 10 Am. St. Rep., 154; Van Slyck v. Trempeleau, 20 Am. Rep., 50, (39 Wis., 390.)</p> <p>11. The power granted to the four circuit judges and the county judge, required, for its valid exercise, the concurrence of three of them. (Ky. Stat., sec. 448; Ky. Code, sec. 679; Hewitt v. Craig, 86 Ky., 27; State v. Porter, 113 Ind., 80; Dillon on Municipal Corporations, 4 Ed., sec. 283, 279; Coles v. Trustees, 10 Wend., 661.)</p> <p>12.' Not only was the vote of Special Judge Dodd for Roberts void, but that of County Judge Hoke was also void, and Roberts only received one legal vote. The office of indexer was not to come into existence until February, and County Judge Hoke’s official life was to end, and that of his successor, Judge Richie, was to begin, on January 7th. The pretended election of Roberts was on January 3d. The outgoing county judge had no power to fill an office which would not come into existence, and therefore could not have a vacancy in it, until after his own official life had ceased. (State v. Meehan, 45 N. J. Law, 191; Eney. of Law, vol. 19, p. 427.)</p>

Case 99 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. The countyof Fayette having been made a separate judicial district upon the legislative faith that it hada population of 40,000 or more and having obtained valuable rights, privileges and concessions on this asserted fact, she can not now be heard to deny the said population. 1.

Case 100 — APPEAL TO CIRCUIT COURT APPEAL FROM PENDI,ETON CIRCUIT COURT. 1. The special act of the legislature prohibiting the sale of all spirituous, vinous or malt liquors in the Collensville Precinct in the county of Pendleton is repealed by the general revenue law allowing distillers in good faith of spirituous liquors to retail in quantities not less than a quart, the product of their own manufacture upon the payment of $75 license tax.

Case 101 — PETITION EQUITY APPEAL PROM HARRIS ON CIRCUIT COURT. 1. The judgment in the suit for settlement of the guardian’s accounts is not a bar to the recovery sought here because that judgment expressly authorized appellants to make claim for these notes in case they were not collected. 2.

Case 102 — PETITION ORDINARY APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. The court should have told the jury to find for defendant on the ground that Tyler being a director of the bank was held to notice of its condition. (Boone on Law of Banking, see. 85; United Society of Shakers v. Underwood &c., 9 Bush, 609.) 2. Where the means of knowledge are at hand and a party fails to avail himself of them, he can not maintain an action for deceit.

*Case 103 — PETITION EQUITY appeal from barren circuit court. (L. The court erred in refusing to set aside the submission, and in arbitrarily assessing damages against appellant without the introduction of any proof or any opportunity being given to introduce proof on the question. (Mallory v. Daubeis’ exors., 83 Ky., 239.) 2.The deputy clerk had authority to issue the injunction. (Civil Code, secs. 273, 678.) • 1.

Case 104 — PETITION ORDINARY APPEAL EROM MONTGOMERY CIRCUIT COURT. There is no law which requires in all cases a suit against the maker in order to hold the assignor. What the law requires is due diligence to collect the money, and such diligence must usually be manifested by suit, but not always. One of the well-established exceptions to the rule is when the maker of the note is a non-resident.

Case 105 APPEAL PROM FAYETTE CIRCUIT COURT. 1. Secs. 157 and 171 of the constitution are self-executing and do not require legislation to render them operative or to put them in force. 2. Sec. 171, which provides that-“All taxes shall be levied and collected by general laws,” being self-executing, destroys the validity of the local act of May 3, 1890. 3.

Case 106 — INDICTMENT APPEAL FROM PENDLETON CIRCUIT COURT. The former conviction is a bar. The State can carve but one offense out of the same act or transaction and when it elects to prosecute for the lower grade of offense the law will not permit another prosecution for the higher grade.

Case 107 — PETITION EQUITY APPEAL PROM LOUISVILLE LAW AND EQUITY COURT. 1. This court has jurisdiction notwithstanding the property or interest involved may be situated without the State. (Mitchell v. Bunch, 2 Paige, 606; Hanley & King v. James et al, 7 Paige Chy., 213; Carroll v. Lee, 3 Gill & J., 404; Great Falls Mig.

*Case 108 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. The former adjudication is not a bar to this action. (Thomas v. Bland, 12 Ky. Law Rep., 640; Pepper v. Donnelly, 10 Ky. Law Rep., 140; Birch &c. v. Funk, 2 Met., 544.) ( The judgment in the former action to recover for the same injuries is a bar to this action. (Davis v. McCorkle, 14 Bush, 754; Chrisman v. Hunter, 3 Dana, 83; Talbott v. Todd, 5 Dana, 190; Gillon v. Wilson, 3 Mon., 217.)