Volume 98 — Kentucky Reports

Case 1 — PETITION EQUITY — APPEAL FROM MARION CIRCUIT COURT. An agister’s lien can not prevail against a prior mortgage lien. (Gen. Stats., pp. 879, 880; Lyons v. Deppen &c., 12 Ky. Law Rep., 205; Wright v. Rothschild’s Sons & Co., 13 Ky. Law Rep., 336.) An agister’s lien for his reasonable charges for feeding and caring for stock is paramount to the lien of a mortgage where the mortgagor places the stock in the agister’s possession.

Case 2 — WITNESS CLAIM — APPEAL FROM WHITLEY CIRCUIT COURT. 1. By reason of the removal from Perry county, the witnesses who live in Perry county are entitled to mileage, and this mileage is, therefore, a part of the cost of removal and Perry county is responsible for it. (Ky. Stats., secs. 1111, 1112 and 1119.) 2. The authority for this appeal is found in the case of Herrick ex parte, 78 Ky., 23.

Case 3 — INDICTMENT APPEAL PROM RUSSELL CIRCUIT COURT. The provision of section 1594 of the Kentucky Statutes, requiring strong corroborating circumstances in order to convict upon the testimony of a single witness, applies only where the charge is bribery in elections.

Case 4 — FORFEITED BAIL BOND — APPEAL PROM ESTILL CIRCUIT COURT. 1. It is immaterial that the name of the appellant, T. W. Turpin, does not appear in the body of the bond. A signature at the end of a bond is sufficient. 2. The failure of the defendant, Portwood, to execute and deliver the replevin bond in court, after conviction, renders the surety in the bail-bond liable.

Case 5 — INDICTMENT— APPEAL FROM HENDERSON CIRCUIT COURT. The indictment contains all the averments necessary to constitute a good indictment for obtaining goods by false pretenses. (Wharton’s Crim. Law, 9th ed., vol. 2, secs. 1150, 1174, 1176; 2 Bishop’s Crim. Law, 6th ed., secs. 420, 424, 427, 437, 438, 464; Commonwealth v. Murphy, 16 Ky. Law Rep., 224; Commonwealth v. Grady, 13 Bush, 285; Hennessy v. Commonwealth, 88 Ky., 301; Commonwealth v. Whitney, 8 Ky.

Case 6 — HABEAS CORPUS — APPEAL PROM HARRISON CIRCUIT COURT. No appeal lies from the judgment for a fine of ten dollars or from the order disposing of the writ of habeas corpus.

Case 7 — INDICTMENT— APPEAL FROM MERCER CIRCUIT COURT. 1. A simple assault is not as high an offense against the law as when accompanied by a battery. (Cornelison v. Commonwealth, 84 Ky.,' 598.) 2. To allow the jury, in their discretion, to fine and imprison without limit is to give them absolute power over the life and liberty of the citizen. 3. “Hard labor” is not a part of the common law punishment for an assault and battery, or an assault alone.

Case 8 — INDICTMENT— APPEAR FROM LINCOLN CIRCUIT COURT. The indictment sets forth with particularity the facts showing that the local option law had been adopted by the town of Stanford, and is, therefore, sufficient. 1. The indictment is not good, because it failed to allege facts showing that the town of Stanford had adopted the local option law at an election properly ordered, held and certified. (Fitch v. Commonwealth, 4 Ky.

<p>Case 9 — PETITION EQUITY —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>Brief not in record.</p> <p>1. The court was mistaken in assuming that Roe & Lyon were the assignees of the contract made by W. C. Lyon- with Nelson county. They were assignees of money due and to become due to W. C. Lyon from said county, which assignment was given as collateral security, at the time they became sureties for W. C. Lyon, and more than a year after the contract between W. C. Lyon and Nelson county had been made. This mistake of fact completely alters all questions considered and determined by the court, in its opinion.</p> <p>2. None of the creditors is entitled to a preference over appellants, appellants being prior both in right and time. (Philips on Mechanics’ Liens, sections 208 and 256; 15 Am. & Eng. Encyclopedia of Law, p. 95.)</p> <p>3. None of the creditors, asserting mechanics’ liens, with the exception of Scanlan & Co., gave the notice requisite to obtain a preference, as between themselves and creditors, asserting adverse claims.</p> <p>In the case of Montgomery & Taylor, the statutory affidavit proving their claim against the assigned estate was not made.</p> <p>4. Appellants Roe & Lyon, by the doctrine of subrogation or substition, are, in any event, entitled to preference over defendant, Hoertz. Their rights are fixed by the terms of the assignment, executed contemporaneously with their obligation of suretyship, and not by the e* parte recital endorsed on the back of the contract of assignment, to which they were not parties, and which, if they had executed for the purpose claimed by Hoertz, would have been wholly without consideration. (24 Am. & Eng. Enc. of Law, pp. 199 and 203; Taylor v. Taylor, 8 B. M., 419; Black v. Bush, ’! B. M., 232; Dunlap v. O’Bannon, 5 B. M., 394; Muldoon v. Crawford, 14 Bush, 125.)</p> <p>The effect of the assignment was to turn ovér money then due and to become due upon the erection cf the courthouse to appellant Hoertz, and as he in good faith furnished money to buy the brick merely as an accommodation, the judgment should have been that he be first paid $498.20 in full before anything else should be paid.</p> <p>1. While a mechanic or material-man can not acquire a lien upon a public building, such as a courthouse, for reasons of public policy, yet no such reasons exist against the lien claimed by appellees on the money due from the county to the contractor. And even if they did, the county is the only one to complain. (Loonie v. Burke, 80 Texas, 582.)</p> <p>2. While the statute does not in so many words give the sub-contractor a lien on the money, it does impose a duty upon the owner to withhold a sufficient amount to satisfy his claim, and the duty being enjoined a court of equity will give a corresponding right to the party for whose benefit the duty is enjoined. This constitutes a lien, pure and simple. (Gen. Stats., chap. 70, sec. 5; Frank v. Chosen Freeholders, 39 N. J. .L., 347; Bates v. Santa Barbara County, 90 Cal., 543.)</p> <p>3. Under the assignment of the contract, appellants took it subject to all equities. (Mulliken v. Leiber, 7 Ky. L. R., 602.)</p> <p>The notice provided for in section 5 of the stature was intended solely for the purpose of protecting the owner of the property, and it can make no difference to the general creditors of W. C. Lyon whether this notice was in form given, or not; provided the county, the owner of the property, treated what was done as a notice sufficient to it, and acted upon it as if notice in due form had been given. (Ky. Stats., section 2467.)</p> <p>1. Roe & Lyon by the assignment by Fred. Hoertz of his interest in the building contract obtains no greater right than said Hoertz had, and as Hoertz was surety on the building contract, the building must be finished and paid for before he or his assignees can obtain any benefits under it.</p> <p>2. The owners of the building, having promised the sub-contractors to retain the money for them, and having actually given an order to appellees Taylor & Montgomery for their debt, accepted the statement filed in the clerk’s office as the mitten notice required by the statute, waived any further notice, and retained the money for the purpose of paying the appellees their claim. By thus agreeing to retain it, they became trustees of the fund for the said contractors, and having paid the fund over to the Louisville Trust Company, assignee of the contractor, by the order given to these appellees, said appellees’ lien upon the fund followed it into the hands of the Louisville Trust Company, assignee.</p>

Case 10 — INDICTMENT— APPEAL FROM LINCOLN CIRCUIT COURT. A license to two as partners ichilc the partnership continues will authorize the sale of liquor under the. license by either one of the partners. But it will not authorize a sale by one partner in the name of the partnership after the partnership has been dissolved.

Case 11 — PETITION ORDINARY — APPEAL FROM MONTGOMERY CIRCUIT COURT. Permitting objects likely to frighten horses to remain upon or in close proximity to a passway is negligence. (Cooley on Torts, p. 630; Wharton on Negligence, sec. 107; Dillon on Mun. Corp., sec. 1007; Sanders on Negligence, pp. 61, 63; Derby v. Hill, 4 Com. B. N. S., 556, 27 L. J. C. P., 318; Jacob’s Fisher’s Digest, vol. 6, p. 9372; Billman v. Indianapolis, &c., R. Co., 76 Ind., 166; s. c., 40 Am.

Case 12 — PETITION EQUITY — APPEAL EROM BELL CIRCUIT COURT. Where a compahy acts as a corporation without having been legally incorporated the members are liable as partners for all the debts of the company. (Cincinnati Cooperage Co. v. Bate, 14 Ky. L. R., 141, 469; s. c„ 96 Ky., 356.) 1.

Case 13 — PETITION EQUITY — APPEAL FROM FAYETTE CIRCUIT COURT. 1. The contract is not usurious, even if the court should take the view that it is a simple loan of money by the association to Harris. 2.

Case 14 — PETITION EQUITY — APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. The members of the Board of Aldermen of the city of Louisville elected in November, 1893, hold their offices for the term of four years. (Constitution of Ky., sees. 148, 160, 167; Cooley’s Const. Limit., 5 ed., pp. 49, 68, 69, 70, 73, 78; Pothier on Obligations; Endlich on Interpretation of Statutes, secs. 506-539; Dillon on Mun.

Case 15 — PETITION ORDINARY — APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. Counsel fees can not be recovered as part of the compensatory damages where one person’s property has been wrongfully attached for the debt of another. (1 Sedgwick on Damages, sec. 233; Pacific Ins.

Case 16 — PETITION ORDINARY — appeal from m’cracken circuit court. 1. There is no statute or any rule of law requiring a majority of all the members of the city council to elect a city attorney. A plurality is sufficient. (Ky. Stats., sections ■ 3311, 3294, 3272, 3271; Morton v. Youngerman, 89 Ky., 506.) 2. Whether a plurality or a majority was required appellant was elected. 3.

<p>1. Eminent Domain. — The power of eminent domain, being in derogation' of the right of the individual citizen to his property, should always be strictly construed.</p> <p>2. Same. — In the exercise of this power the property of the citizen can he taken only for a public use upon just compensation made, and the taking must be by judgment of a court of competent jurisdiction. There can be no such thing as a condemnation by estoppel.</p> <p>3. Same. — This power gives the right to take only so much of the property of the citizen as may be necessary to answer the public use for which it is taken.</p> <p>4. Same. — When an easement is granted for a particular purpose, when that purpose no longer exists there is an end of the easement.</p> <p>5. Same. — -Where a city instituted proceedings to condemn a strip of land for railroad purposes, a defendant as to whom the proceeding was dismissed before verdict and judgment is not bound by the judgment rendered. And even though his property was condemned as the property of another, to whom compensation was made, and he with knowledge of the fact that this was to be done failed to make objection, it seems that such conduct on his part is not sufficient to estop him from resisting the claim of the city to his property or to an easement therein. But these facts, although pleaded as an estopppel, are not established by the evidence.</p> <p>6. Same. — As the city did not acquire any. title t» the land claimed by the defendant as to whom the proceeding was dismissed, his assignees may now make all legal and equitable defenses to that proceeding that he could have made at the time judgment was rendered had he been a party of record. And any defect appearing in the title of the city at that time or that has since arisen can be made available in this action by way of defense.</p> <p>7. Same. — As the city had power under its charter to order the condemnation of property only when “needed for municipal purposes,” it had no authority to order the condemnation of property for railroad purposes, having no authority to build or operate railroads.</p> <p>8. Same. — Even if the city had power to condemn a right of way for a railroad in order to carry out a contract with the railroad company, it had the power to condemn only so much land as was necessary for that purpose; and the city having conveyed to the railroad company in discharge of its obligation only a part of the strip of land condemned, it has no further right or easement in what remains, especially as that part of the strip has never been in its possession, and it now, after the lapse of eighteen years, sets up its claim for the first time.</p>

Case 15 — PETITION ORDINARY — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, 1. Each paragraph of a petition must within itself and without ref- . erence to any other paragraph or to extraneous sources state a cause of action. (Green v. Page, 80 Ky., 368.) 2.

Case 19 — PETITION EQUITY — APPEAL FROM KNOX CIRCUIT COURT. 1. The judgment is erroneous because part of the heirs of Jno. Peace are made defendants without any reason given in the pleading why they are not made plaintiffs, and these defendants are adjudged to recover as well as plaintiffs without any prayer therefor in the petition. (Civil Code, see. 24.) 2. The motion to take the answer, set-off and counter-claim as true ought to have prevailed.

Case 20 — PETITION EQUITY — APPEAL PROM BOONE CIRCUIT COURT- 1. To entitle a debtor to the homestead exemption he must not only be a housekeeper, but must be one with a family. The appel-lee is neither. (Anderson’s Law Dictionary, p. 440; Carter, &e., v. Adams, 9 Ky. Law Rep., 91; Bosquett, &c., v. Hall, 12 Ky. Law Rep., 433; Brooks, &c., v. Collins, &c., 11 Bush, 627.) 2. A suit in the name of appellant is equivalent to a suit in the name of the Commonwealth. (Ky.

<p>A GIFT BY AN ADOPTED DAUGHTER TO HER FOSTER MOTHER Of her entire estate, consisting of three thousand dollars ($3,000) in money, was not "because of the relation of the parties either conclusively or prima facie fraudulent. And as the evidence shows that the gift was purely voluntary, was fully understood by the daughter, and was not unreasonable under all the circumstances surrounding the parties, and that no undue influence was exercised by the mother, it was not actually fraudulent, and will not be set aside by the chancellor. prevent persons who had already agreed to donate the right of way from declining to do so. And especially should the chancellor not cancel the conveyance upon such grounds, in view of the fact that the parties can not now be placed in their former positions, the plaintiff having conveyed to defendant certain depot grounds upon condition that defendant will erect and maintain all necessary depot buildings, and use the same in the running and operation of its road, which defendant has done, thus putting it out of its power to run its road over any other route.</p>

Case 22 — PETITION EQUITY — APPEAL FROM WASHINGTON CIRCUIT COURT. 1. If the right of way was obtained by fraud, as appellant complains, it is the duty of the court to set aside the deed, and allow him to recover damages for that right of way as if no deed had ever been made. 2. The narrowest and most limited definition of fraud given by any of the text-writers easily embraces the acts complained of in this case. (Cooley on Torts, 474; Story’s Eq.

Case 23 — INDICTMENT— APPEAL FROM CARLISLE CIRCUIT COURT. 1. The staute under which the indictment was found is in violation of section 51 of the constitution, because the subject is not expressed in the title. (O’Donaghue v. Aiken, 2 Duv., 479; Milf-lange v. McCullom, 83 Ky., 365.) 2. The statute also violates section 59 of the constitution, which forbids special acts “to regulate the punishment of crimes and misdemeanors.” 3.

Case 24 -APPEALS TO CIRCUIT COURT — APPEALS EROJI TAYLOR CIRCUIT COURT.' 1. The statute does not require the applicant for license to show a negative. It is presumed he is not of had character and keeps an orderly house. 2. If the applicant makes out a prima facie case, then if no reason be shown against it by legal evidence, it is an abuse of discretion to refuse him relief. (Ky. Stats., sec. 4305.) 3.

<p>Case 25 — PETITION ORDINARY —</p> <p>APPEAL FROM BOURBON CIRCUIT COURT.</p> <p>1. If this is an action for failure to collect the check, the petition is defective because it does not state that the bank failed to make an effort to collect the check, or could have collected, and no such allegation was possible, as the admitted facts show that the bank made every effort to collect the check. (Farmers’ Bank & Trust Co. of Stanford v. Newland, 97 Ky.)</p> <p>2. The measure of recovery is not the face of the check, and the jury should have been instructed that if the bank had converted the check they should find for the plaintiff such damages as he had sustained considering the admitted fact that there was no money in the bank and that the drawer was insolvent. (Sedgwick on Damages, sec. 256; 4 Am. & Eng. Enc. of Law, 124.)</p> <p>3. In its answer the bank denies the conversion of the cheek, claiming that it surrendered the old check as the only thing it could do under the circumstances, with the consent of the plaintiff actually given or implied from his conduct under all the -circumstances; and the court should have instructed the jury as to this defense, there being evidence tending to support it.</p> <p>4. The bank was not an intermeddler, but by reason of the circumstances was the agent authorized by law under the circumstances to take any proper step that seemed likely to result in securing the debt. (1 Morse on Banks and Banking, secs. 214, 216, 218.)</p> <p>1. Putting aside the fact of indulgence to the drawer of the check, appellant’s authority as agent to collect the check on the Cynthi-ana National Bank was to surrender that check only upon payment in money. (16 Am. Dec., 129 and note.)</p> <p>The custom of banks giving credit for checks received for collection and reasonably charging off such credit, if payment of the check so received for collection be refused, does not apply.</p> <p>2. The circuit,court determined as matter of law that appellant was liable upon the facts of this record to appellee for the face of Griffith’s check to appellee and left to the jury to find in their discretion interest from the date of the check. "</p>

Casis 26 — INDICTMENT— APPEAL FROM BOONE CIRCUIT COURT. In support of his demurrer to the indictment appellant cites Commonwealth v. Tupman, decided by this court, April 25, 1895, 30 S. W. Rep., 661. The court properly instructed the jury, and their finding upon the facts can not be disturbed.

Case 27 — PETITION ORDINARY — APPEAL FROM MONTGOMERY CIRCUIT COURT. The money deposited by the wife was in contemplation of law the property of the husband, and was the subject of a just and legal set-off to the note of $300. (1 Blackst. Com., 435; Co. Litt., 351,-Bell v. Bell’s Adm’r, 37 Ala., 536; s. c., 79 Am. Dec., 73; Wiggins, v. Johnson, &c., 8 Ky. L. R., 348; Woehle, Ex’or, v. Urupfenback,. 15 Ky. L. It., 346; McDermott’s Appeal, 106 Fa. St., 358; s. c„ 51 Am.

Case *28 — PETITION ORDINARY — APPEAL FROJt SCOTT CIRCUIT COURT. 1. The motion for judgment notwithstanding the verdict should have been sustained. The answer in effect admits the negligence and merely denies the damage. (.Civil Code, sec. 126; Newman’s Pleading and Practice, p. 511.) 2.

<p>a. Carriers — Car Service Associations. — There may be a reasonable charge by a common carrier lor the detention of its cars by the consignee or consignors beyond a reasonable time in which to load and unload them; and such charges may be imposed and enforced through what are known as car service associations, two or more carriers having the right to combine in that way and promulgate and enforce reasonable rules and regulations for the accomplishment of the desired object, all having the right to do jointly what each might do separately,</p> <p>2. Same — Reasonableness of Rules. — Whether a charge of one dollar per day or fraction thereof made for detention of cars and use of track, on cars not unloaded within forty-eight hours after arrival, not including Sundays and legal holidays, and on empty cars not loaded Within forty-eight hours after being placed, is a reasonable charge, and the time fixed for loading and unloading is a reasonable time, are questions of fact, and on these issues in this case the preponderance of the proof is with the carriers. And it is no objection to such a rule that no exception is made in behalf of the shipper by reason of an unfavorable condition of the weather, as the rule must in the first instance allow time enough to meet all cases likely to arise, which is shown to be the case here.</p> <p>3. Same.- — If the rules of such an association are reasonable, the fact that the shipper was not consulted in framing them does not vitiate them. Nor can the shipper complain that no counter penalties are provided, the carrier being accountable under well established legal principles for any dereliction of duty.</p> <p>4. Same. — The rule fixing a uniform charge for the detention of cars does not violate the law preventing agreements among rival carriers not to compete with each other.</p> <p>.5. Same. — The fact that under the car service rules the delivering road is authorized to collect storage charges on ears received from connecting lines affords no ground of complaint to the shipper, the company having the right under the universal practice among •carriers to use and control such cars as its own property.</p> <p>6. SAME — InjuNctioK.—While common carriers, members of a car service association, have no right to refuse to receive freight from, or switch cars for, a shipper because he owes to them or to other members of the association car service fees which he refuses to pay, or because he and other shippers have combined to resist the enforcement of the reasonable rules of the association, yet a shipper thus in default can not ask the aid of a chancellor to compel the carrier to do that which it admits it is its duty to do, and which it is willing to do upon a compliance on the shipper-’s part with the reasonable rules of the association. The shipper having done the first wrong and thus caused the wrong-doing of the carrier, the chancellor maj' refuse to hear him. And, espe^ cially so, when, as in this ease, the delivery of the specific cars withheld by the carrier was accomplished by the issual of a mandatory injunction when the petition was filed.</p> <p>V. Sajie. — If upon any particular shipment storage charges, have accumulated before it is unloaded by the consignee, and it is still in the car of the carrier, it may be retained until the regulation is complied with and the charges paid.</p>

*Case 30 — PETITION EQUITY — APPEAL FROM BOYD CIRCUIT COURT. 1. The sale of mere expectancies has been universally condemned at common law. The thing sold must have an actual or potential existence. In every case where the assignment of the expectancy has been sustained, it has been invariably coupled with a right or interest, which is not true of a mere hope of inheritance. (Lee’s Ex’or v. Lee, 2 Duv., 134; Grayson v. Tyler’s Adm’r, 80 Ky., 358.) 2.

<p>1. Settlement by Chancellor Upon Married Woman. — In a direct suit by the wife against the husband a court of equity will, by appropriate orders, secure to the wife, free from control of the husband, the beneficial interest of a fund due her, when she presents a meritorious case.</p> <p>In this action by the wife, suing by her next friend, against the husband, as the petition alleges that the wife is an infant of weak mind, and that the husband is insolvent, improvident and of vicious habits, and married the plaintiff toy the purpose of obtaining a sum of money due her from her guardian, which is. all the property she owns, and that it he succeeds in doing so he will waste it, and the prayer of the petition is that this sum be settled upon the wife and secured to her beyond the reach of her husband, the court erred in sustaining a demurrer to the petition.</p> <p>2. Suit by Next Friend. — Section 35 of the Civil Code authorizes the bringing of such a suit as this by next friend when the guardian is to be made a defendant. And the order of court authorizing the wife to bring this suit having been obtained by the next friend it must, in the absence of proof to the contrary, be presumed to have been properly made and granted.</p>

Case 32 — APPEAL TO CIRCUIT COURT — APPEAL PROM GRAYSON CIRCUIT COURT. A distiller is a retail liquor dealer within the meaning of section 4203 of the Kentucky Statutes, and must give notice of his application for license as prescribed by that section. The reasons for exempting druggists from the operation of that section do not apply to distillers. (Evans v. Commonwealth» 95 Ky., 231; Ky.

<p>Case 33. — PETITION ORDINARY —</p> <p>APPEAL EROM WOODEOBD CIRCUIT COURT.</p> <p>1. The evidence heard by the jury demonstrated the fact that the killing was unavoidable and not the result of any negligence. After the defendant’s servants in charge of the train have purged their consciences by testifying that the proper care was taken and they are unimpeached the force of the statute is exhausted, and it becomes indispensable to the plaintiff’s right to recover to show the existence of negligence in fact. (Ky. Cent. R. Co. v. Talbot, 78 Ky., 621; St. L. & N. R. Co. v. Lampkin, 5 Ky. L. R., 777; Grundy v. L. & N. R. Co., 8 Ky. L. R., 689; L., C. & L. R. Co. v. Bates, 8 Ky. L. R„ 701; C., N. O. & T. P. R. Co. v. Graves, 9 Ky. L. R., 536; C., N. O.' & T. P. R. Co. v. Través, 9 Ky. L. R., 577.)</p> <p>2. The instructions given by the court are paramount duty of a railroad company, through its agents, invested with the conduct of a train, to look after the safety of the-persons and property thereon, subordinate to which is the duty to avoid unnecessary injury to animals straying upon the road. (L. & P. R. Co. v. Ballard, 2 M,et., 177; Ky. Cent. R. Co. v. Prewitt, 9 Ky. L. R., 723; L. & N. R Co. v. Brummett, 14 Ky. L. R., 239.)</p> <p>1. The jury could not have been misled to the injury of defendants by the failure to say in the instructions in so many words that it was the paramount duty of the train crew to so act as to insure the safety of the train and the passengers on it. The language of the court “having due regard to the safety of said train and the persons thereon,” fully expressed that idea.</p> <p>2. It devolved on defendants to overcome affirmatively by positive proof the legal presumption of negligence, which they failed to-do.</p> <p>3. The court erred in sustaining demurrer to the second paragraph of the petition. (Wood’s Railroad Law, vol. 3, sec. 419; 1 Redfield. on Railways, sec. 20, p. 519; 2 Beach on Railways, sec. 969; Pierce on Railroads, p.' 428; Ky. Cent. R. Co., v. Kenny, 6 Ky. L. R., 17;. Brown, v. Providence, &c., R. Co., 12 Gray, 55; s. c., 71 Am. Dec., 736.)</p>

Case 34 — PETITION ORDINARY — APPEAL EBOM DAVEISS CIRCUIT COURT. I. The plaintiff having staked her ease on the special agreement which defeated the plea of limitation, she could not recover except on proof of the agreement alleged. (Note to sec. 90 Bullitt’s Code; Litt., Sel. Cases, 201; 8 B. Mon., 8 B. Mon., 424; Prank-fort Bridge Co. v. City of Frankfort, 18 B. Mon., 41.) 2.

Case 35 — PETITION ORDINARY — APPEAL FROM JEFFERSON CIRCUIT COURT, IAW AND EQUITY DIVISION. 1. The question of negligence or contributory negligence is a question of fact for the jury to determine. (Buswell on Law of Personal Injuries, sec. 138; Shearman & Redfield on Negligence, sec. 114; Beach on Contributory Negligence, sec. 163.) 2. The fact that the child was on the track unattended was not per se negligence on the part of the parents.

Case 36 — PETITION ORDINARY — APPEAL PROM WEBSTER CIRCUIT COURT. The suit was brought properly and by the proper person. (Constitution of Ky., sec. 241; Ky. Stats., sec. 6.) 1. The petition does not state a cause of action, because at the time of the alleged negligence there was no statute authorizing a re-, covery by a personal representative. (Jordan’s Adm’r v. Cincinnati, &c„ R. Co.,11 Ky. L. R„ 204.) 2. The damages are too remote.

<p>Case 37 — PETITION ORDINARY —</p> <p>APPEAL PROM WOODFORD CIRCUIT COURT.</p> <p>1. The evidence heard by the jury demonstrated the fact that the killing was unavoidable and not the result of any negligence. After the defendant’s servants in charge of the train have purged their ■ consciences by testifying that the proper care was taken and they are unimpeached the -force of the statute is exhausted, and it becomes indispensable to the plaintiff’s right to recover to show the existence of negligence in fact. (Ky. Cent. R. Co. v. Talbot, 78 Ky., 621; St. L. & N. O. R. Co. v. Larrikins, 5 Ky. L. R., 777; Grundy v. L. & N. R. Co., 8 Ky. L. R„ 689; L„ C. & L. R. Co. v. Bates, 8 Ky. L. R„ 701; C„ N. 0. & T. P. R. Co. v. Graves, 9 Ky. L. R.. 535; C., N. O. & T. P. R. Co. v. Través, 9 Ky. L. R., 577.)</p> <p>the court are misleading. It is the paramount duty of a railroad company, through its agents, invested with the conduct of a train to look after the safety of the persons and property thereon, subordinate to which is the duty to avoid unnecessary injury to animals straying upon the road. (L. & F. R. Co. v. Ballard, 2 Met., 177; Ky. Cent. R. Co. v. Prewitt, 9 Ky. L. R„ 723; L. & N. R. Co. v. Brummett, 14 Ky. L. R„ 239.)</p> <p>1. The jury could not have been misled to the injury of defendant by the failure to say in the instructions in so many words that it was the paramount duty of the train crew to so act as to insure the safety of the train and the passengers on it. The language of the court “having due regard to the safety of said train and the persons thereon” fully expressed that idea.</p> <p>2. It devolved on defendant to overcome affirmatively by positive proof the legal presumption of negligence, which they failed to do.</p> <p>S. The court erred in sustaining demurrer to the second paragraph. of the petition. (Woods’ Railway Law, vol. 3, sec. 419; 1 Redfield on Railways, sec. 20, p. 519; 2 Beach on Railways, sec. 969: Pierce on Railroads, p. 428; Ky. Cent. R. Co. v. Kenny, 6 Ky. L. R., 1.7; Brown v. Providence, &c., R. Co., 12 Gray, 55; s. c., 71 Am. Dec., 736.)</p>

Case 38 — PETITION FOB MANDAMUS. — APPEAL EROM ERANKLIN CIRCUIT COURT. 1. While engaged in the camp of instruction appellant was in active service and was entitled to the sum of two dollars and fifty cents for each and every day he was so engaged in such service, that being the amount fixed by the statute.

Case 39 — PETITION EQUITY — APPEALS PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1.

*Case 40 — PETITION ORDINARY — APPEAL FROM HARDIN CIRCUIT COURT. 1. The law requires the utmost care on the part of the carrier, and he must show that he used diligence, and, notwithstanding this, could not prevent the occurrence. It is not a question of knowledge but of diligence. (Britton v. A. & C. R. Co., 43 Am. Rep., 752 (88 N. C., 536); Schoulcr on Carriers, sec. 643, p. 643; Freeman’s notes to Ingalls v. Bills, 43 Am.

<p>Case 41 — PETITION EQUITY —</p> <p>APPEAL PROM FRANKLIN CIRCUIT COURT.</p> <p>The rights of the creditor attach alone to the amount of money that may be paid on the price of the land or upon the improvements after the creation of his debt. Therefore, more than $1,000 having been paid by the debtor on the purchase of the land after the creation of appellant’s debts, the homestead fund should, to that extent, be applied to the payment, of their debts. (Moseley v. Bevins, 12 Ky., L. R.. 826.)</p> <p>More than one thousand dollars having been expended by the debtor in the erection of improvements before the creation of the debts sued on, he was entitled to the homestead, exemption. (Hemphill v. Haas, &c., 88 Ky., 494; Moseley v. Bevins, 12 Ky. L. R., 826.)</p>

Case 42 — PETITION ORDINARY TRANSFERRED TO EQUITY— APPEAL FROM OWEN CIRCUIT COURT. 1. The executrix of the will of B. H. Perry, deceased, should have been a party-plaintiff. The court therefore erred in overruling the, special demurrer to plaintiff’s petition. (Civil Code, secs. 18, 21.) 2. The court erred in sustaining the exceptions of appellee to the deposition of E. R. Perry, th& appellee having herself testified as a witness in her own behalf. 3.

Case 43 — PETITION ORDINARY — APPEAL FROH HART CIRCUIT COURT. 1. A railway company, which knowingly and habitually suffers mail bags thrown upon its passenger platform from rapidly moving trains, is, directly and individually, liable to a person who may be injured thereby while on such platform and sustaining at the time a contractual relation to such company.

Case 44 — CONTESTED WILL— APPEAL EBOM BELL COURT OE COMMON PLEAS. 1. In impeaching a witness the inquiry should be confined to the yeneral reputation of the witness for morality, it was improper, therefore, to admit testimony as to the reputation of a witness for chastity. Besides, the impeaching testimony related to the character of the witness sixteen years before the evidence was given, and for that reason also was incompetent. 2.

<p>Case 45 — PETITION ORDINARY —</p> <p>APPEAL FROM FRANKLIN CIRCUIT COURT.</p> <p>1. The court erred in refusing to permit counsel for appellant to examine the jurors separately after- a panel had been ordered, before being required to strike from the list composing the panel. (Gen. Stats., chap. 62, art. 5, sec. 5; London & Lancashire Fire Ins. Co. v. Rufer’s Adm’r, 89 Ky., 525.)</p> <p>2. It was not sufficient to instruct the jury that it was the duty of defendant to provide plaintiff with a place free from extraordinary risks in which to perform his work, but they should have been instructed that he was responsible in damages, if injury resulted from his failure to provide such a place. (Shearman & Redfield on Negligence, sec. 194; Buzzell v. Laconia Mfg. Co,, 48 Maine; Hough v. Railway Co., 100 U. S., 213; Bailey on Master and Servant, p. 34.)</p> <p>3. Although plaintiff had knowledge of the dangerous substances being in the house at the time he entered, he was not, as a matter of law, thereby prevented from recovering. It was a question for the jury whether he acted -with ordinary care under all the circumstances. . (Shearman & Redfield on Negligence, secs. 209-211.)</p> <p>4. Considering the quantity of powder and dynamite and the space in which it was kept, it constituted a nuisance, and the defendant was liable for the damages resulting without regard to whose negligence caused the injury. (Wood on Nuisance, sec. 140, p. 152; Myers v. Malcolm, 6 Hill, 292; Heeg v. Light, 80 N. Y., 579; Hough v. Railway Co., 100 TJ. S., 213.)</p> <p>If the servant voluntarily and knowingly exposes himself to danger and is injured he can not recover. (Sullivan’s Adm’r v. Louis- ■ ville Bridge Co., 9 Biish, 81.)</p>

Case 46 — PETITION EQUITY — APPEAL PROM BARREN CIRCUIT COURT. 1. If it was intended that this action should be brought under the provisions of sub-section 2 of section 490 of the Civil Code, the answer of the guardian should have been as full and complete as a petition should be. (Carpenter & Grigsby v. Strother’s heirs, 16 B. M„ 296.) 2.

Case 47 — PETITION ORDINARY — APPEAL PROM DAVEISS CIRCUIT COURT. 1. The powers delegated to a city government are always to be strictly construed. (Wheatley v. Covington, 11 Bush, 174; Johnson v. Louisville, 11 Bush, 532; 7 Bush, 603.) 2. A city ordinance fixing a less penalty for any offense than that fixed by statute for the same offense is void. (Constitution of Ky., sec. 168.) 3.

Case 48 — PETITION EQUITY — APPEAL PROM JACKSON COURT OP COMMON PLEAS. 1. The return upon the attachment does not describe the attached property with sufficient certainty to identify it, and, therefore, the levy is not good. (Civil Code, secs. 203, 212, 217.) In an action upon a return of “no property” the description of the property in the petition gives a lien, but in this case the attachment must give the lien, if a lien is had.

<p>Construction of Devise — Defeasible Fee. — Under a devise by a testator to his nephew of “the farm on which I now live, to him and his children forever,” with a devise over in the event of his dying without children, the nephew took a fee simple' estate subject to he defeated only in the event of his dying without children, and he having died leaving children they can not claim as against his grantee, the word “children” being used in the will as a word of limitation or inheritance, and not of purchase.</p>

Case 50 — PETITION EQUITY — APPEAL EROM ERANKLIN CIRCUIT COURT. 1.„Sections 4228 and 4229 of the Kentucky Statutes violate section 174 of the Constitution, which was supposed to guarantee absolute equality of taxation. («) The two per cent, exacted of appellant on its gross receipts is in its essentials a taw on its business. A license is a permission to do business in the future, while a tax is an exaction on present values or past business.

Case 51 — PETITION ORDINARY — APPEAL FROM DAVEISS CIRCUIT COURT. 1. The court should have required appellees to elect which cause of action they would prosecute — the one to recover damages for breach of the alleged policy of insurance or the one to have the policy of insurance reformed, for which an action can only bé maintained in equity. And the court should also have sustained the motion to transfer to equity. 2.

Case 52 — PETITION ORDINARY — APPEAL PROM NELSON CIRCUIT COURT. 1. Excessive damages resulting from passion or prejudice must be shown affirmatively to exist in order to authorize a new trial upon that ground. 2. The unsupported statement of the defendant as to the newly discovered evidence was not sufficient to authorize a new trial. 3.

<p>1. Repeal oe Statute. — The act of March 15, 1869, to increase the resources of the Sinking Fund of the city of Louisville, and providing for that purpose a tax of forty cents to pay the bonded, debt of the city, was repealed by sections 2981 and 3011 of the Kentucky Statutes (part of the charter for cities of the first class;, which provide a wholly different method for supplying the necessary revenues to the Sinking Fund. And this is true, although section 3010 of the Kentucky Statutes provides that “the Sinking Fund to pay the bonded debt of the city is hereby continued as now established by law,” as this merely continues the existence - of the appellant corporation and does not continue in force all the existing statutes regulating the raising of revenue for the benefit of the Sinking Fund.</p> <p>2. Right oe Sinking Fund Commissioners to Compel City Council to Levy Tax. — Under section 2981 of the Kentucky Statutes the general council of the city may in its discretion omit to levy in any year an ad valorem, tax for the benefit of the Sinking Fund, and, therefore, the commissioners of the Sinking Fund can not maintain an action to compel it to make such a levy.</p> <p>3. Same. — As the appellant corporation has no duty to perform in the matter of providing funds or raising revenues for the payment of the bonded debt of the city it can not compel the genera] council to levy a tax for that purpose, even though it be the duty of that body to make such a levy. And while a holder of the city’s bonds as to which default had been made would have the right to sue and compel payment from the city, the appellant corporation is not in such a sense the representative of the bondholders as to entitle it to demand relief.</p>

Case 54 — PETITION ORDINARY — APPEAL FROM PULASKI CIRCUIT COURT. 1. Defendants, having held themselves out as partners, are now es-topped to deny the existence of the partnership. (17 Am. & Eng. Enc. of Law., 879; Markham’s Ex’or v. Jones, 7 B. Mon., 456; Wal-rath v. Viley, 2 Bush, 478.) 2. Exemptions are not allowed either to the partnership as a body or to the individual members out of the partnership assets. (17 Am. & Eng. Enc. of Law, 1335.) 1.

Case 55 — PETITION FOR MANDAMUS — APPEAL PROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. A contract can not be made between the city of Louisville and a corporation having one of its salaried officers at the time in the city council. It is prohibited by law and is void. (Kentucky Statutes, sec. 2768; Dillon on Mun.

Case 56 — 'PETITION EQUITY — APPEAL EROM MARION CIRCUIT COURT. 1. The injunction was improperly sued out. There was no statement in the petition nor any affidavit to authorize it. (Civil Code, sec. 273.) 2. The petition does not aver a state of case that authorizes the ap-pellee to sue. In such a case one must aver a particular or special injury to himself not common to others or to the public. 3.

<p>1. Construction of City Charter — License Tax. — A provision of the charter of cities of the second class authorizing' the general council of such cities to license, tax and regulate various vehicles specifically named, “and all other vehicles used or let for hire,” the vehicles specifically named being such as are usually let for hire, does not authorize an ordinance imposing license fees upon vehicles not let for hire, whether specifically named in the charter or no</p> <p>2. Same — Double Taxation. — An ordinance imposing license fees upon vehicles let for hire imposes a tax upon the occupation of the owner merely, and is not liable to the objection that it imposes double taxation, although an ad valorem tax is also imposed upon the vehicle.</p>

Cask 58 — PETITION EQUITY — APPEAL EROM NELSON CIRCUIT COURT. No brief filed. 1. The word “descendants” does not embrace collateral relations. (Rapalje & Lawrence’s Law Dictionary; 30 N. Y., 393; Stor-mouth’s English Dictionary; Bouvier’s Law Dictionary.) 2. The fact that the Roman Catholic Bishop is not. designated by his corporate name does not invalidate the devise to him. (Cro-mie’s Heirs v. Louisville Orphans’ Home Society, 3 Bush, 365.) 3.

Case 59 — INDICTMENT— APPEAL FROM LIVINGSTON CIRCUIT COURT. 1. The indictment is not good because it does not allege that there was anything of value in the house broken. 2. The house alleged to have been broken is not sufficiently described m the indictment. 3. The court erred in its instructions to the jury in singling out a part of the evidence and giving undue prominence to it. Argued orally. No brief filed.

Case 60 — PETITION EQUITY — APPEAL PROM CHRISTIAN CIRCUIT COURT. Each pupil in a common school district is entitled to receive instruction, free of expense, in every branch that is taught or allowed to be taught in the school during the term for which the common school is to he taught, it being the policy of the common school laws to place all the pupils of each district on an exact equality. (Ky.

<p>1. Malicious Prosecution — Probable Cause a Question of Law.— In an action for malicious prosecution it not being disputed that the defendant received the information upon which he claimed to base the prosecution, the question as to whether the information was sufficient to constitute “probable cause” is one of law for the court; and the trial court having correctly found as matter of law in this case that the information received by defendant did constitute “probable cause,” a peremptory instruction to find for defendant was proper,</p> <p>2. Same. — Where sealed cars of a freight train had been repeatedly broken open and thefts committed, and a brakeman on the train, theretofore of good standing, confessed to the officers of the company that he and anóther had on one occasion broken open a car, that appellant, the conductor of the train, saw them taking tobacco therefrom, and that they then took the tobacco to the caboose where appellant was and divided it among the three, burning the box in which it had been, this information gave the rai'l-road company probable cause to believe the appellant to be guilty ol tne okense of feloniously breaking and elitering into a railroad car with intent to steal therefrom.</p>

Case 62 — PETITION EQUITY — APPEAL PROS! JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, The chancellor erred in taking any part of the proceeds of the sale of this property in lien to appellants for the payment of the attorney’s fees of appellee, as assignee, or of any costs or expenses in this case except so far as the court costs are directly incident to the enforcement of the rights of appellants.

Case 63 — PETITION ORDINARY — APPEAL FROM BOYLE CIRCUIT COURT 1. A peremptory instruction should have been given. (a) It is manifest from the evidence that Palmer was not ord-> ered to make the coupling. If, as he claims, it was not his duty to make the coupling, and he did it without orders from his superiors, he was acting as a volunteer aid can not recover. (Brice v. L. & N. R. Co., 10 Ky. Law Rep., 526; Hogan v. Northern Pac. R. Co., 53 Fed.

Case 64 — PETITION FOR MANDAMUS — APPEAL EROM CAMPBELL CIECUIT COURT. 1. The clerk properly refused to put the name of-appellee on the bal~ lot as a candidate for mayor of the city of Newport at the November election., 1893, as no election for that office could be legally held at that time.

<p>Case 65 — INDICTMENT—</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT.</p> <p>The secrecy of the ballot is intended to protect the voter, and where the voter waives that protection there can be no objection to permitting him to testify how he voted for the purpose of Convicting the false and corrupt officer. (Commonwealth v. McGurty, 14-5 Mass., 257; In re Massey 45'Fed. Rep., 629.)</p> <p>To permit a voter to testify how he voted would be to destroy the secrecy of the ballot, and such testimony is therefore inadmissible. (Constitution of Kentucky, sec. 147; Kentucky Stats., see. 1446; People v. Sackett, 14 Mich., 237; Ex parte Brown, 31, Pac. Rep., 840: Ex parte Henry Clay Arnold, 30 S. W. Rep., 768.)</p>

Case 66 — PETITION EQUITY — APPEAL FROM CARTER CIRCUIT COURT. 1. The execution of the replevin bond was a payment of the judgment and no further proceedings could be had on the original judgment. (Hoskins v. Parsons, 1 Met., 253; Gray v. Merrill,-11 Bush, 633.) 2. An execution upon a replevin bond is not such an execution as is contemplated by section 723 of the Civil Code. 1. Any defect there may have been in the petition was cured by the answer. 2.

<p>1. Appeals from Municipal Boards. — There is no constitutional objection to legislation allowing appeals from the judgment of municipal boards vested with the power of hearing and de termining questions affecting the rights of the citizen.</p> <p>2. Same.- — An appeal lies to this court from the judgments of circuit courts in all cases other than those excepted by the statute. Therefore, this court has jurisdiction of an appeal from a judg- ' ment of the circuit court reversing the judgment of a municipal board, refusing to grant license to sell liquor.</p> <p>3. — Same.—Even if the circuit court has power to reverse such a judgment of a municipal board, where that board is invested with a discretionary power of granting or refusing the application (a questioli not necessary to be determined), it ought not to reverse unless it appears that the judgment of the board was the exercise of an arbitrary discretion, and in order to determine that question it must have before it the evidence heard by the municipal board. Therefore, in the absence of the evidence heard by the board the circuit court should dismiss the appeal.</p> <p>4. Same. — Even if it was proper for the circuit court to hear original testimony, yet as it appeared from the testimony heard that a decision might well have been rendered for either party, there was nothing to show that any arbitrary action was exercised by the board, and therefore the decision of the board should have been affirmed.</p>

Case 68 — PETITION EQUITY — APPEAL PROM JEFFERSON CIRCUIT. COURT, CHANCERY DIVISION. 1. Public policy does not interfere with the rights of a stockholder in a strictly private corporation to delegate to another the right to vote his stock, or to surrender the right to act as a director. While the right to vote the stock or to act as director is secured by statute, it is a personal right in the exercise of which the public has no concern per ae.

Case 69 — PETITION EQUITY — APPEAL FROM SHELBY CIRCUIT COURT. 1. The deed of trust in controversy conveyed the fee simple title to the trustee, and vested it with full power to sell and convey the property conveyed to it. The deed has none of the elements of a mortgage. It imposed upon the trustee several active trusts, one of which could not possibly be executed without a sale.

Case 70 — PETITION EQUITY — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The purchaser can not be required to accept a different piece of property from that which he agreed to buy. (Logan v. Bull, 78 Ky., 607; Leavison v. Baird, 12 Ky. Law Rep., 786.) 2. The failure tp appraise the property rendered the sale void. (Cantrill v. Perry, Admr., 7 Ky. L. R., 446; Rose v. Taylor, 8 Ky. L. R., 185; Graves & Wells v. Long, Ass’ee, 87 Ky., 448.) 1.

Case 71 — INDICTMENT— APPEAL PROM JEPPERSON CIRCUIT COURT, CRIMINAL DIVISION. I. There can be no libel in the absence of malice, and the court erred in failing to so instruct the jury. (Stewart v. Hall, 93 Ky., 380.) 2. The court erred in failing to instruct the jury that if they had a reasonable doubt as to the truthfulness of the facts published they must find defendant not guilty. (39 Central Law Journal, 363; State v. Bush, 122 Ind., 42.) 3.

Case 72 — PETITION EQUITY — appeal prom pike circuit court. In the absence of judgment and return of “no property found” or an attachment, the court had no jurisdiction to declare fraudulent the deed from Price to Mrs. Puller. (Vance v. Campbell, 3 Ky. Law Rep., 448; Martz v. Pfeifer, 4 Ky. Law Rep., 592; Kyle v. O’Neil, 10 Ky. Law Rep., 709; Napper v. Yeager, 2 Ky. Law Rep., 260.) 1.

<p>Case 73 — INDICTMENT—</p> <p>APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.</p> <p>1. Wilfully obstructing the lawful bolding of an election is not only an offense under section 1588 of the Kentucky Statutes hut also under the common law independent of the statute. (Commonwealth v. Silsbee, 9 Mass., 417; Commonwealth v. McHale, 97 Pa. St., 408.)</p> <p>2. The officers of election have no right to exclude the inspector from the room or to order others to exclude him. It is not the case of an officer acting under an illegal precept calling upon a posse to arrest a citizen, but tbe case of an officer seeking to drive from the sphere of bis duty another officer of equal rank and dignity.</p> <p>3.' An officer acting under an illegal precept has no right to summon a posse to assist him. (Elder v. Morrison, 10 Wend., 139; Diet-richs y. Shaw, 43 Ind., 175; Mitchell v. State, 7 English (Ark.) 50; Oystend v. Shed, 12 Mass., 511; Brown v. Howard, 14 Johnson, 118; Hooker v. Smith, 19 Vt., 151.)</p> <p>The case oí Reed v. Rice, 2 J. J. Mar. 46, holding otherwise, is opposed to the great weight of authority.</p> <p>1. -The indictment is not good. The allegation that Dorn had been duly appointed by the regularly elected and governing authority and the allegation that defendant was an officer are not sufficient.</p> <p>2. If the refusal to permit an inspector to enter is an offense at all it is punished by section 1577 of the Kentucky Statutes and does not come within the reasoning or spirit of the provisions of section 1588.</p> <p>3. An inspector has n'o right to enter the voting place before the closing of the polls, and therefore as Dorn had no right to enter at the time he sought to do so it was no offense to refuse to permit him to enter. (Ky. Stats., sec. 1481.)</p> <p>4. The law places the power to appoint inspectors with the executive committee, and that committee can not delegate that power. Therefore the appointment of Dorn by one to whom theeommittee delegated the power to appoint was void. (Noland v. Noland, 12 Bush, 426; Lynn v. Burgoyne, 13 B. Mon., 402.)</p> <p>6. The appellees were compelled to obey the orders of the officers of election and could not he required to judge at their peril of the legality of the officer’s command.</p> <p>1. Dorn had no right to go into the poll under any circumstances at the time he tried to enter, as the polls had not then closed. (Ky. Stats., secs. 1467, 1470.)</p> <p>2. It is the duty of a policeman to' obey the instructions of the officers of election without stopping to inquire whether they have made a mistake, and he will he protected in so doing. (Miller v. Rucker, 1 Bush, 136; Reed v. Rice, 2 J. J. Mar., 44; Rodman v. Harcourt, 4 B. Mon., 230; Hunt v. Ballew, 9 B. Mon. 391.)</p> <p>3. The statute does not contemplate that there shall he admitted into the voting place both a “challenger” and an “inspector” of each party, and there being a challenger at the polls Dorn had no right to admittance. (Ky. Stats., secs. 1467, 1470, 1481, 1482.)</p> <p>4. Dorn’s credentials were not properly made out. The executive committee can not delegate its power of appointment to its chairman. (Ky. Stats., sec, 1481; Lynn v. Burgoyn'e, 13 B. M., 402; Noland v. Noland, 12 Bush, 426.)</p>

Case 74 — PETITION ORDINARY — APPEAL PROM TRIMBLE CIRCUIT COURT. When the surety does not write his name, the statute .requires that his authority to the agent who does write his name shall be in writing and provides how that writing shall be executed. The fact that the surety is present when his name is signed to the note does not dispense with the written authority. And the mere attestation by the principal does not add anything to the force of the signature.

Case 75 — PETITION ORDINARY — APPEAL PROM GRAVES CIRCUIT COURT. 1. There is no rule of law which forbids the parties to a contract from extending the period of limitation for a fixed time. The ease of Shapely v. Abbott, 4.2 N. Y., 443, distinguished. 2. Whether appellee was or was not legally liable to the purchaser beyond the time fixed by the statute is immaterial.

Case 76 — PETITION ORDINARY — APPEAL FROM DAVErSS CIRCUIT COURT. 1. Such an action as this must be upon the new promise and not upon the old contract from which the defendant has been discharged by proceedings in bankruptcy. (Ogden v. Redd, 13 Bush, 581; Carson v. Osborne, 10 B. M., 155; Egbert v. McMiehael, 9 B. M., 44; Mason v. Hughart, Idem., 482; Graham v. Hunt, 8 B. M., 8.) 2.

<p>Case 77 — INDICTMENT—</p> <p>APPEAR FROM CALDWELL CIRCUIT COURT.</p> <p>The repeal of a criminal statute leaves the court without authority to inflict punishment for its violation while in force, unless such law, by its own terms, provides for the infliction of such punishment after its abrogation. And this rule of construction applies as well to the local option law as to any other criminal statute. (Commonwealth v. Cain, 14 Bush, 525; Speckert c. City of Louisville, 78 Ky., 287; Waddell v. Commonwealth, 84 Ky., 276; Commonwealth v. Duff, 87 Ky., 586.)</p> <p>A repealing act speaks from the date of its passage, unless another date is fixed by the act itself. And this rule is not altered by the fact that the repeal depended upon a vote of the people to be affected by the law.</p>

Case 78 — PETITION ORDINARY — APPEAL EROM OWEN CIRCUIT COURT. 1. The contract declared on is within the statute of frauds and to be valid should have been in writing. (Greenwood v. Strother, 91 Ky„ 482.) 2. The contract declared on if enforceable at all could only be enforced within five years, and it appearing from the petition that it was made, if at all, in 1885, and there being no obstruction to-the statute shown, the demurrer for that reason should have been sustained.

<p>Case 79 — PETITION ORDINARY —</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>Brief withdrawn.</p> <p>1. Section 196 of the Kentucky Constitution, has no reference to interstate transportation. (Case of the State Freight Tax, 15 Wall,. 232; Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196; II. S. v. E. C. Knight Co., 156 U. S., 1; Gibbons v. Ogden, 9 Wheat., 1; Welton v. State of Missouri, 91 U. S., 275; County of Mobile v. Kimball, 102 U. S., 691; Wabash, &c., Ry. Co. v. Illinois, 118 U. S., 557; Debates Constitutional Convention, 1890, vol. 3, p. 3762; Moore ct. ah v. Am. Transp’n Co., 24 How., 1; The Lottawanna, 21 Wall., 581; Lord v. Steamship Co., 102 U. S., 541; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S., 578; Kentucky Constitution, sec. 196; Cooley v. Board of Wardens, 12 How., 299; Hall v. Decuir, 95 U. S., 485; W. U. Telegraph Co. v. Pendleton, 122 U. S., 347; McCann, ct. ah, v. Eddy, et. ah, 27 S. W. Rep., 541 (Missouri); Hart v. C. & N. W. R. Co., 69 Iowa, 485: Gat-ton v. Railway Co., 63 N. W. Rep., 589 (Iowa.)</p> <p>2. Even as to transportation wholly within Kentucky, it does not prohibit a fair agreement as to value of the property transported whereon the rate of freight' is based. (Hart v. Pennsylvania Railroad Co., 112 TJ. S., 331; Graves v. L. S., &c., R. Co., 137 Mass., 33; S. & N. Ala. R. Co. v. Henlein, 52 Ala., 606; L. & N. R. Co. v. Oden, 80 Ala.., 38; L. & N. R. Co. v. Sherrod, 84 Ala., 178; Western Railway Co. v. Harwell, 91 Ala., 340; Railway Co. v. Lessor, 46 Ark., 236; St. L. &e., Ry. Co. v. Weakly, 50 Ark., 397; Coupland v. H. R. Co., 61 Conn., 531; Rosenfield v. Peoria R. Co., 103 Ind., 121; Pac. Exp. Co. v. Foley, 26 Pac. Rep., 665 (Kansas); Hill v. Boston, &c., R. Co., 144 Mass., 248; Moulton v. St. Paul, &c., Ry. Co., 31 Minn., 85; Alair v. Nor. Pac. Ry. Co., 54 N. W. Rep., 1072 (Minnesota); Harvey v. T. H. & I. R. Co., 74 Mo., 538; McFadden v. Mo. Pac. Ry. Co., 92 Mo., 343; Duntley v. Boston & M. R. Co., 20 Atl. Rep., 327 (New Hampshire); Durgin y. American Exp. Co., 20 Ati. Rep., 328 (New Hampshire); Ballou v. Earle, et. al., 22 Atl. Rep., 1113 (Rhode Island); Johnstone v. R. & D. R. Co., 17 S. E. Rep., 512 (South Carolina); L. & N. R. Co, y. Wynn, 88 Tenn., 320; Same v. Sowell, 90 Tenn., 17; R. & D. R. Co. v. Payne, 86 Va., 481; Zouch v. C. & O. Ry. Co., 36 W. Va., 524; Boorman v. Am. Exp. Co., 21 Wis., 152; Black v. Goodrich Transp. Co., 55 Wis., 319; Abrams v. M. L. S. & W. Ry. Co., 58 N. W. Rep., 780 (Wisconsin); Oppenheimer v U. S. Exp. Co., 69 Ill., 62; Railway Co. v. Chapman, 133 Ill., 96; Brehme v. Adams Exp. Co., 25 Md., 328; Zimmer v. Railroad Co., 33 N. E. Rep., 642 (New York); Railway Co. y. Maddox, 75 Texas, 300; Southern Exp. v. Moon, 39 Miss., 822; Railroad Co. v. Abels, 60 Miss., 1017; Southern Exp. Go. y. Seide, 7 Sou. Rep., 547 (Mississippi); Overland Mail & Exp. Co. v. Carroll, 7 Colo., 43; Railroad Co. v. Witiy, 32 Neb., 275; U. S. Exp. Co. v. Backman, 28 Ohio St., 144; Railway Co. v. Shoat, 20 S. E. Rep., 219 (Georgia); Grogan v. Adams Exp. Co., 114 Pa. St., 533; Railroad Co. v. Weiller, 19 Atl. Rep., 702 (Pennsylvania,); Orndoff & Co. v. Adams Exp. Co., 3 Bush, 194; L. & N. R. Co. v. Owen, etc., 93 Ky., 201; Baughman, etc., v. Louisville, etc. R. Co., 94 Ky., 150; Baughman v. Louisville, etc. R. Co., (Superior Court) 14 Ky. Law Rep., 268; Eells v. Railway Co., (Kelly, intervenor) 52 Fed. Rep., 903.)</p>

Case 80 — PETITION ORDINARY — APPEAL FROM MONTGOMERY CIRCUIT COURT. The answer is a sham pleading and ought to receive judicial condemnation. Its inconsistencies are so glaring as to strike the mind at first glance that it is a trifling with the administration of justice. 1.

<p>Case 81 — PETITION EQUITY —</p> <p>APPEAL FROM HARDIN CIRCUIT COURT.</p> <p>1. The court erred in discharging the attachment of appellants on the face of the papers. The allegation that D. B. Patterson has attempted to sell &c., was sufficient to authorize the attachment. (Civil Code, section 194, sub-section 7; Lane, &c., v. Robinson, 18 B. Mon., 632.J</p> <p>2. The notice in the case of J. M. Robinson, Norton & Co. was not good for the reason that it did not contain the officer’s name. (Civil Code, section 203,)</p> <p>3. The attachment in the case of Dunlap Bros. '& Co. has never been served, and for that reason it was error to give them priority.</p> <p>1. The order discharging the attachment is not a final order, and no appeal lies therefrom. (4 Met., 55; 4 Met., 109; 14 B. Mon., 195; 17 B. Mon., 144; Civil Code, sec. 259.)</p> <p>2. The attachment having been discharged could not be restored so as to affect a bona fide lien previously thereto acquired by a third party. (Civil Code, sec. 268, sub-sec. 2; Bamberger, Bloom & Co. v. Moayan, 33 Ky. L. R., 103.)</p> <p>3. No notice of filing schedule was given to S. J. Patterson on whose motion the attachment was discharged. (Traders’ Deposit Bank of Mt. Sterling v. Meguiar, Helm & Co., 13 Ky. L. R„ 95.)</p> <p>4. As to Dunlap Bros. & Co., the amount is not sufficient to give this court jurisdiction. (Oswald, &c., v. Morris, &c., 13 Ky. L. R., 355.)</p> <p>Additional cases cited in petition for rehearing in support of point 4:</p> <p>Hopkins v. Negley, 12 Ky. Law Rep., 844; Gibson v. Shufeldt, 122 U. S., 27; Oliver v. Alexander, 6 Pet., 143; Rich, &c. v. Lambert, &c., 12 How., 347; Logan v. Davis & Kellar, 6 Ky. Law Rep., 137-139, Lee v. Gates, &c., 6 Ky. Law Rep., 585; Beauchamp v. Miles, 6 Ky. Law Rep., 652; Stoll v. Stoll’s ex’or, 7 Ky. Law Rep., 286; Anderson v. Simmons’ adm’r, 7 Ky. Law Rep., 438; Wolfe v. Glenn &c., 8 Ky. Law Rep., 428; Frederick v. Ackler, 9 Ky. 'Law Rep., 197; Clay’s Adm’r v. Blair &c., 4 Ky. Law Rep., 29.)</p>

Case 82 — INDICTMENT— APPEAL PROM GRAVES CIRCUIT COURT. The defendant having voluntarily assumed the role of witness, it is not a material inquiry under an indictment for false swearing whether he testified willingly or unwillingly as to the particular matter as to which he is alleged to have sworn falsely, as he takes the same position as any other witness when he elects to testify.

<p>Case 83 — PETITION ORDINARY —</p> <p>APPEAL EROM FLOYD CIBCUIT COURT.</p> <p>It was error to render judgment by default without proof of the damage alleged. (Civil Code, secs. 126, 379; Daniels v. Judy, 14 B. M., 393; Mead v. Nevil, 2 Duv., 280; Shreve v. Sbreve, 2 Met., 339; Clark v. Seaton, 18 B. M., 226; Gould &c. v. Bonds, 1 Bush, 190; Beam v. Hayden, 5 Bush, 427.</p> <p>No proof as to the value of the use of the land was required. The damages alleged are not of the character contemplated by subsection 4 of section 126 of the Civil Code. (Ragsdale v. Lander, 80 Ky., 61; Harris v. The Merz Architectural Iron Works, 82 Ky., 200.)</p>

Case 84 — PETITION ORDINARY — APPEAL FROM CrBAYSON CIRCUIT COURT. The court erred in refusing to allow the amended answer to be filed. If appellee shipped the box at all he shipped it as household goods, according to his own statement. He is therefore entitled to pay for household goods only and not for jewelry, &c. (Hutchinson on Carriers, secs. 211-215.) 1.

<p>Case 85 — PETITION EQUITY —</p> <p>APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.</p> <p>1. Prior to the act of March 15, 1894, a married woman could not execute a valid mortgage of her separate estate for the benefit of her husband. (Hirschman v. Brashears, 79 Ky., 258; McGill v. Mercantile Trust Co., 81 Ky., 129; Hounshell v. C. F. Ins. Co., 81 Ky., 304.)</p> <p>2. Until the passage of the act of May 16, 1893, there was no statutory restriction upon the power of a married woman to mortgage her general estate, and such estate might be mortgaged or conveyed by her for the benefit of any person she chose, but the effect ■ of section 34 of article 3 of this act was to prohibit a mortgage of a married woman’s general estate for the purpose of securing the debt of any person, other than herself, because otherwise the proceeds could not be her separate estate.</p> <p>3. The act of March 15, 1894, did not operate as a repeal of the . provisions of the General Statutes and of the act of 1893, in so far as those provisions forbid such mortgages.</p> <p>1. Under the General Statutes the separate estate of a married woman could not be mortgaged to secure the debt of her husband. (M. & M. Building Ass’n v. Jarvis, 92 Ky., 566; Hirschman v. Bra-shears, 79 Ky., 259; McGill v. Mercantile Trust Co., 81 Ky., 129.)</p> <p>2. The legislative policy, as expressed in the act of March 15, 1894, (secs. 2127 and 2128, Ky. Statutes) is to enlarge the rights of married women in respect to their property, and to increase their power to charge and to sell the same. (Hart v. Grigsby, 14 Bush, 553.)</p> <p>3. The act of March 15, 1894, gave to married women all the powers that a married woman who had been empowered to trade as a feme sole had under the General Statutes. (Secs. 2127 and 2128, Ky. Statutes; chap. 52, art. 2, sec. 6, General Statutes.)</p> <p>4. Under the General Statutes a married woman, empowered to trade as a feme sole, could bind herself and her estate as surety for other persons, including her husband. (Hart v. Grigsby, 14 Bush, 552; Sypert v. Harrison, 88 Ky., 461.)</p> <p>5. Under the act of March 15, 1894, where the wife and husband have executed a mortgage on the wife's real estate to secure the debt of her husband, the mortgagee is entitled to have the land sold to pay his debt. (Sec. 2127, Kentucky Statutes.)</p>

Case 86 — INDICTMENT— APPEAL EROM KNOX CIRCUIT COURT. . 1. The Knox County Court was without jurisdiction, the order of the Perry Circuit Court transferring the case being void. (Ky. Stats., sec. 1110; Higgins v. Commonwealth, 94 Ky., 57.) 2. The refusal to continue a criminal case when the defendant is entitled to a continuance is sufficient cause for reversal.

Case 87 — PETITION ORDINARY — APPEAL FROM BRECKINRIDGE CIRCUIT COURT. 1. Even giving to the language of the covenant a strained, technical meaning, the fraud of Ramsey was such as amounted to embezzlement. (Johnson v. Commonwealth, 5 Bush, 430; Warmoth v. Commonwealth, 81 Ky., 133; Commonwealth v. Clifford, 16 Ky. L. R., 184.) 2.

<p>1. A judgment against an infant can not be vacated or modified upon his application, either during his minority or after he arrives at age, for errors appearing in the record. To correct such errors the remedy is by appeal.</p> <p>2. Sales of Infants’ Real Estate — Validity of Judgment. — Where a wife who owned jointly with her husband a tract of land sold by him failed to unite with him in the deed to his vendee, and after the death of both the grantor and his wife the grantee brought suit against their infant heirs asking either that tlie contract be rescinded or that a commissioner be required to execute a deed to him on behalf of the infants for the interest descending to them from their mother, it appearing that the infants had received assets from their father equal in amount to the value of the land, for which they would be required to account in the event of a rescission,, and the statutory guardian having asked for that reason that a commissioner be directed to execute a conveyance on behalf of the infants, a judgment to that effect was not void.</p> <p>3.' The jurisdiction qp the chancellor to sell the real estate of infants is derived solely from the statute, and a sale made in any other way than that provided by statute is void and passes no title.</p>

Case 89 — PETITION ORDINARY — APPEAL PROM IIARDIN CIRCUIT COURT. The consent of plaintiff bars her right to recover for the alleged assault and the court should have so instructed the jury. (Duncan v. Commonwealth, 6 Dana, 295; Pillow v. Bushnell, 5 Barb., 156; Latter v. Bradwell 12 Cent. L. J., 282; Hagerty v. Shite. 8 Cent.

Case 90 — INDICTMENTS— APPEALS PROM KENTON CIRCUIT COURT. 1. Even if it should be conceded that the court has power to enter a judgment of abatement in such cases as this' the court can not enter the order except as a part of the original judgment, and it must be made at the time the judgment inflicting the fine is entered. (Wood on Nuisances, sec. 864; Chippen v. People, 8 Mich., 125.) 2.

Case 91 — PETITION ORDINARY — APPEAL! FROM LARUE CIRCUIT COURT. In taking surety upon a guardian’s bond the county judge must act upon proof that would satisfy a man of ordinary judgment of the solvency of the surety, or he must know that the surety is solvent, before he can be relieved. (Gen. Stats., chap. 48, sec. 4; Burdine, &e., v. Pettus, 79 Ky., 240; Mclntire v. Gritton, 5 Ky. Law Rep., 686) 1. The evidence of G. W. Thurman was not competent.

<p>Case 92 — PETITION ORDINARY —</p> <p>APPEAL FROM SCOTT CIRCUIT COURT.</p> <p>1. The question as to whether or not the contract was a conditional one was one that should have been submitted to the jury, as was also the question as to whether or not the defendant had agreed to ratify the contract, made by Fleming.</p> <p>2. The measure of damages is not changed by reason of the fact that the goods could not be purchased elsewhere in the market, and the court erred in so instructing the jury.</p> <p>3. For a failure to deliver goods under a contract of sale the measure of damages is the difference between the contract price and the price at which the goods could have been bought in the market at the time of the breach. (Miles v. Miller, 12 Bush, 135; Barker 'v. Mann, 5 Bush, 175; Yoder v. Allen, 2 Bibb, 338; Cole v. Ross, 9 B. M., 394; 14 Ky. Law Rep., 807; Mullen & Crigler v. Hume & Co., 15 Ky. Law Rep.; Rouse v. Reed, 12 Ky. Law Rep., 843; Has' & Sweeney v. Williams, 8 Ky. Law Rep., 434; Denny v. Marks-bury, 15 Ky. Law Rep.)</p> <p>4. The court erred in refusing to allow 'defendant to prove that Fleming was not authorized to make any sale of its twine, except subject to its approval. And also erred in rejecting testimony tending to show that the contract was delivered upon condition that it was to be approved by the home office before it was binding upon defendant. (McFarland v. Sikes, 1 Am. St. Rep., Ill; Cake v. Pottsville Bank, 2 Am. St. Rep., 600.)</p> <p>1. The instruction to the effect that the silence of defendant was an estoppel, and in law an affirmation of the contract, was proper.</p> <p>2. The instruction as to the measure of damages correctly states the law. (Miles v. Miller, 12 Bush, 135; Barker & Co. v. Mann. 5 Bush, 674; Moore v. Payne, 7 Dana; Wood’s Mayne on Damages, Am. Ed., p. 85; 5 Lawson’s Rights, Remedies and Practice, sec. 2621; Tiedeman on Sales, sec. 336; Wakeman v. Wheeler & Wilson Mfg. Co., 54 Am. Rep., 667; Masterson v. Mayer, 7 Hill, 61; s. c., 42 Am. Dec., 38; 1 Sutherland on Damages, 113; Jones v. George, 48 Am. Rep., 287; Calvit v. McFadden, 13 Texas, 326; Sedgwick on Damages (last ed.) 104-122.)</p>

Case 93 — FORFEITED BAIL BOND — APPEAL FROM NICHOLAS CIRCUIT COURT. The bond is valid, the record showing that defendant was in custody and entered his appearance and voluntarily executed the bond. (Criminal Code, secs. 72, 73, 74; Huckson v. Commonwealth, 14 Ky. Law Rep., 203.) The case of Morgan v. Commonwealth, 12 Bush, 84, distinguished.

Case 94 — PETITION FOR MANDAMUS — APPEAL FROM BOYD CIRCUIT COURT. 1. The duties o'f the canvassing board are judicial in their nature and therefore mandamus does not lie to control the action of the b£>ard. (Secs. 37, 38, of article 3 of Election Law; Commonwealth v. Boone County Court, 82 Ky., 632; Lowe v. Phelps, 14 Bush, 642.) 2.

Case 95 — PETITION ORDINARY — APPEAL PROM BOYD CIRCUIT COURT. 1. The petition was defective in failing to allege that plaintiff was elected or received a majority of the votes. 2. The court erred in refusing a jury trial. This action is equivalent to the old one of quo warranto which was triable by a jury. (Civil Code, sec. 480, 312, 483.) 3. It was error to strike out of the answer the defense based upon the mandamus suit and the judgment in it. 4.

Case 96 — INDICTMENT—- APPEAL PROM KNOTT CIRCUIT COURT. T. Section 4039 of the Kentucky Statutes under which the indictment was found is constitutional. (Blackwell on Tax Titles, chapter “Constitutionality of Tax Laws.”) .2. The indictment follows the language of the statute and is therefore sufficient.

Case 97 — PETITION EQUITY — APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Where a policy of life insurance is made payable to. a married woman, with a stipulation that should she not survive her husband then the payment to be made to the executors, administrators or assigns of the insured, the wife has only a contingent interest in the policy, subject to be defeated by the terms of the policy. (Hopkins v. Hopkins, 92 Ky., 324.) 2.

Case 98 — PETITION EQUITY — APPEAL FROM MONTGOMERY CIRCUIT COURT. 1. The personal property claimed by and allowed to the widow was the property of the estate of James Chorn, and the widow should be compelled to account for it. (Craddock v. Riddlesberger, 2 Dana, 205; Penn v. Young, 10 Bush, 628; Moreland, &c., v. Myall, &e., 14 Bush, 475.) 2. The claim for rent of land should have been disallowed. If the wife had any separate estate, it was only 27 acres. 3.

Case 99 — INDICTMENT— APPEAL FROM KENTON CIRCUIT COURT. The indictment is good. The strictness of the common law is not now required in ináictments for misdemeanors, and the omission of terms merely technical is not material.

Case 100 — INDICTMENT— APPEAL FROM OWSLEY CIRCUIT COURT. There is no variance. Whether the charge was murder or manslaughter is immaterial, both being felonies. If one had been a felony and the other a misdemeanor the case would be different. (Ky. Stats., sec. 1239; Tully v. Commonwealth, 11 Bush, 154.)

Case 101 — PETITION FOE MANDAMUS — APPEAL PROM FRANKLIN CIRCUIT COURT. The auditor can not pay two special judges for holding court during ■ the same term. (Ky. Stats., secs. 969, 970.) There is no pleading alleging that any other special judge has been, paid for the time for which appellee claims pay, and therefore his claim was properly allowed. (Ky. Stats., secs. 968, 969, S70.)

Case 102 — PETITION EQUITY — APPEAL FROM CLAY CIRCUIT COURT. 1. While it is true that sub.-sec. 7 of sec. 732 of the Civil Code requiring a signature by mark tq. have an attesting witness applies only to such writings as are. required to be executed according to its provisions. (Maupin, &c. v. Berkley, 3 Ky. Law Rep., 617; Vanover v. Murphy’s adm’r, 12 Ky. Law Rep., 733; Meazles &c. v. Martin, ass’nee, &c., 13 Ky.

Case 103 — INDICTMENT— APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION. 1. The statute in question is wholly a revenue statute and -as such is in contravention of section 181 of the constitution. (Fowler v. Commonwealth, 96 Ky., 166.) 2. The opinion of the Court of Appeals upon the former appeal must remain the law of this case, at least so far as the appellee is concerned.

Case 104 — INDICTMENT— APPEAL FROM BELL CIRCUIT COURT. The act of 1884 in so far as it applied to the cities of Middlesborough and Pineville was repealed by the charter of cities of the fourth class. (Ky. Stats., sec. 3490, sub.-sec. 27.) Section 61 of -the constitution was not intended to limit the legislature to the enactment of a local option law, and to deprive it of the power to enact any other laws touching the liquor traffic. 1.

Case 105 — PETITION EQUITY — APPEAL FROM NELSON CIRCUIT COURT. The bequest to the widow of the interest on the bonds was equivalent to a bequest of the bonds for life, and therefore the daughter became entitled to the bonds upon the death of the widow. (Williamson v. Williamson, 18 B. Mon., 383.) The widow took no estate in the bonds, and therefore they did not pass to the daughter upon her death. (Schouler on Wills, sec. 503.)

Case 106 — PETITION ORDINARY — APPEAL FROM LEWIS CIRCUIT COURT. Acquiescence and tacit consent by the owner of land to the construction of a railroad through it does not prevent the owner from recovering for damages to the land. (St. Julian v. Railroad Co., 35 La. Ann., 924; Milwaukee & Northern R. Co., v. Strange, 63 Wis., 178; Allen v. Wabash &c. R. Co., 84 Mo., 646; Thornton v. Sheffield &c. R. Co., 84 Ala., 109; s. c., 5 Am.

Case 107 — INDICTMENT—February APPEALS FROM CAMPBELL CIRCUIT COURT. The indictment is good although it does not state facts showing that the principal, J. F. Shickner, had been guilty of setting up, carrying on and operating the machine. The rule announced in Tully ’ v. Commonwealth, 11 Bush, 158, applies only to an accessory and not to an aider and abettor.

<p>Release of Sureties — Novation.—An agreement by the payee of a note with the principal to extend the time of payment for a definite period in consideration of the payment of the interest by the principal for that period is based on a valuable .consideration, and is such a novation as will release a surety in the note. But mere passive indulgence to the principal will not release the surety, although interest is paid at the end of each year, as the acceptance by the payee of interest for the preceding year does not imply an agreement upon his part not to sue for another year, and does not take from the surety the right to compel the creditor to sue at any time.</p>

Case 109 — PETITION ORDINARY — APPEAL FROM CRITTENDEN CIRCUIT COURT. 1. The ordinance under which appellant was prosecuted is unconstitutional. (Daniel v. Trustees of Richmond, 78 Ky., 542; Fech-eimer Bros. & Co. v. City of Louisville, 84 Ky., 306.) ■2. The city is liable for the prosecution of appellant under the void ordinance just as an individual would he had he set the criminal law wrongfully in motion against an individual. (15 Am. and Eng.

Case 110 — PETITION ORDINARY — APPEAL FROM OHIO CIRCUIT COURT. 1. The peremptory instruction should have been given. The injury resulted from ordinary risks attendant upon employment of plaintiff. (Master and Servant, Am. and Eng. Enc. of Law; 9 Bush, 90; Turntable Cases, 17 Wall; Am. Dig., 1894, 4484.) 2. The injury was caused by the neglect of plaintiff contributing thereto, and therefore there can he no recovery.

Case 111 — PETITION ORDINARY — APPEAL FROM LOGAN CIRCUIT COURT. 1. The court erred in refusing to instruct the jury that the measure of damages “is a fair and reasonable compensation for the value of the power to earn money which was destroyed by the death of Graham.” 2.

<p>A FOREIGN BUILDING AND LOAN ASSOCIATION ENGAGED IN DOING BUSINESS' in Kentucky will be permitted to charge no higher rate of interest than is chargeable under the laws of this State; and while by the law of comity the charter of such a corporation will be recognized here as the law of its existence.it is the charter alone which is recognized, and not the general legislation of the country of its domicile with reference thereto, or the construction of its charter provisions by the foreign courts. Moreover, where such a corporation employs the usual agencies to solicit and transact business in this State and contracts for the payment of premiums and interest in excess of the rate authorized here, the transaction •will be denounced as an attempted evasion of our laws, whatever may be the nominal rate specified or artifice adapted; and this though it be specifically provided that the contract is made with reference to the laws of the foreign State, and though the loan be made payable in the foreign State.</p>

Case 113 — PETITION ORDINARY — APPEAL FROM TODD CIRCUIT COURT. The judgment in the action by the husband to recover for the mental and physical suffering of the wife is a bar to this action by him to recover for the loss of her society.

Case 114 — INDICTMENT— APPEAL PROM LIVINGSTON CIRCUIT COURT. 1. To constitute the offense for which section 1214 of the Kentucky Statutes prescribes a punishment both the man and the woman must be unmarried and the indictment must so- allege. (Commonwealth v. Wright, 16 Ky. Law Rep., 251.) 2. The court erred in its' instructions to the jury. It was proper to tell the jury that if the intercourse was- accomplished by force then they must acquit. (State of Iowa v. Lewis, 30 Am.

Case 115 — PETITION EQUITY — APPEAR FROM MASON CIRCUIT COURT. 1. Mrs. Clarissa Degman took only a life estate and took no interest in the fee except a power of appointment over it amongst the testator’s children. (Collins v. Carlisle, 7 B. Mon., 14; Me-Gaughey v. Henry, 15 B. Mon., 383; Holsen v. Rockhouse, 83 Ky., 233.) 2.

<p>Case 116 — PETITION EQUITY —</p> <p>APPEAL FROM KENTON CIRCUIT COURT.</p> <p>While at common law contracts between husband and wife are void, yet for many purposes equity considers them as distinct persons, and their contracts will be enforced or equitable relief will be granted. (Campbell v. Galbraith, 12 Bush, 459; Scarbrough v. Watkins and wife, 9 B. Mon., 540; Todd v. Wickliffe, 18 B. Mon., 906; Maraman v. Maraman, 4 Met., 87; Newby v. Cox, 81 Ky„ 59.)</p> <p>The answer shows a gift by the husband to the wife of the money paid for the property conveyed to the wife, and as the love and affection existing for the wife was sufficient to uphold the gift the husband can not recover the property under any circumstances. (Orr v. Orr, 8 Bush, 157.)</p>

Case 117 — PETITIONS EQUITY — APPEALS PROM LYON CIRCUIT COURT. 1. The minuteness with which the land is described shows that exactness was intended and that the purchaser did not intend to risk the quantity. (Harrison v. Talbot, 2 Dana, 258; Meriwether v. Lewis, 9 B. M., 175; Fannin v. Bellamy, 5 Bush, 664.) 2.

Cash 118 — PETITION ORDINARY — APPEAL PROM CLARK CIRCUIT COURT. The provisions of appellant’s charter as to tolls constitute a contract between the company and the State depriving the legislature, of the power of regulation over the rates of toll on appellant’s road.

Case 119 — PETITION EQUITY — APPEAL FROM HENDERSON CIRCUIT COURT. Chattels annexed to the freehold by the vendee or mortgagee subsequent to the execution of the deed or mortgage and not mentioned therein will not he subject to the lien of the vendor or mortgagee unless they are so attached that they can not he- removed without detriment to the original contract lien of the vendor or mortgagee.