Volume 99 — Kentucky Reports

Case 1 — PETITION ORDINARY APPEAL FROM BOYLE CIRCUIT COURT. 1. The ticket of a passenger is the only evidence that the conductor is bound to or prudently can accept as to the rights of transportation of the passenger. (37 Mich., 342; 26 Amer.

Case 2 — PETITION EQUITY APPEAL FROM KENTON CIRCUIT COURT. X. Where a property owner has voted for a town charter making his farming lands a part of the town, this act alone will not make his said property subject to municipal taxation.

Case 3 — PETITION EQUITY APPEAL PEOSI PULTON CIRCUIT COURT. 1. Section 4464 of Kentucky Statutes only requires that the county judge shall at the next term after he receives the petition make the order directing the sheriff to hold the election, etc.; and does not require that the petition shall he filed during a term of court, or that it shall lie over from one term to another. (Kentucky Statutes, sec. 4464.) 2.

Case 4 — PETITION ORDINARY TRANSFERRED TO EQUITY— APPEAL PROM LARUE CIRCUIT COURT. 1. A life-tenant who improves the property, knowing he has only a life estate therein, takes the risks; but where the life-tenant acted under a mistake as to his title, and on the advice of counsel, the rule should be different. 2.

Case 5 — PETITION ORDINARY APPEAL FROM HARDIN CIRCUIT COURT. 1. The duty required of the fiscal court being mandatory, mandamus lies against it to compel compliance with the statute. In any ■ view of the statute, the appellants were at least' entitled to a hearing before the fiscal court. (Hoke v. Commonwealth, 79 Ky., 567; Commonwealth v. Boone County Court, 82 Ky., 632; Baldwin v. Shine, 84 Ky., 502; Cassidy v. Young, 92 Ky., 228; Kelley v. Toney, 15 Ky. Law Rep., 718.) 2.

Case 6 —INDICTMENT APPEAL FROM PULASKI CIRCUIT COURT. 1. It seems clear that the legislature intended by section 3513 of the Kentucky Statutes to give to police courts in cities of the fourth class exclusive jurisdiction over only such offenses as are created by and arise out of ordinances of the city, or as would not be punishable, but for such ordinances. 2.

Case 7 — PETITION ORDINARY APPEAL FROM BRACKEN CIRCUIT COURT. 1. When a note is given in one State, payable in another, the parties may contract with a view to the interest laws in either; and where under the laws of one of the States the contract is valid, and void under the laws of the other, the courts will assume they were contracting with, reference to the laws of the State where the contract is valid. (2 Kent, p. 260; 28 Fed.

Case 8_.PETITIONS EQUITY APPEAL FROM NELSON CIRCUIT COURT 1. Under the facts and circumstances in this case, the allowance for alimony was out of all reason. 2. Section 2123 of Kentucky Statutes has been plainly violated in this case, as it is distinctly provided therein that the court shall not divest either party of the fee-simple title to' real estate. 3. An allowance or allotment of alimony is not a judgment upon which an execution may issue. 1.

<p>1.Housebreaking. — An indictment under section 1162 of the Kentucky Statutes, which charges the defendant simply with breaking and entering a dwelling-house with intent to steal, without alleging that there was anything stolen and taken therefrom, does not charge a felony within the meaning of that section. It is an essential part of the crime designated in that section, that something of value should be taken away from the house.</p>

Case 10 — PETITION ORDINARY APPEAL FROM HANCOCK CIRCUIT COURT. 1. When a power is given by statute to public officers, and the public interests and individual rights call for its exercise, though merely permissive in form, it is in effect mandatory. (Bowen v. City of Minneapolis, 47 Minn., 115; Supervisors v. United States, 4 Wall., 419.) 2.

Case 11 — PETITION ORDINARY APPEAL FROM GRAVES CIRCUIT COURT. 1. The allegation of the petition that “by the terms of the deed he warranted the title to said land against all persons whatsoever” is only a conclusion of law, and is not a sufficient allegation of a covenant or agreement of warranty. The pleader must aver the terms of the agreement so that the court may determine from the petition, without resorting to the exhibit whether or not the title was warranted.

Case 12 —WARRANT APPEAL FROM DAVEISS CIRCUIT COURT. 1. The framers of the Constitution and of the statutes certainly did not intend to take from the cities that part of their police power which is embraced in common law offenses. And the fact that the words “imposed by statute” are used in both the Constitution and statutes seems conclusive that common-law offenses, for which a penalty is not fixed by statute, were not intended to he included therein. 2.

<p>Case 13 — PETITION EQUITY</p> <p>APPEAL FROM ROCKCASTLE CIRCUIT COURT.</p> <p>1. The office of the habendum is to limit and defin'e the estate granted, and while, as a general rule, it must give way to the granting words of the deed when clearly contradictory of them, yet it should certainly be resorted to equally with the balance of the instrument, to arrive at the intention of the maker, which must govern when ascertainable. Where the intention does not appear, then the words of grant should govern, if repugnant to the habendum, but if the intention is apparent, then it should govern. (Henderson v. Mack, 82 Ky., 380.)</p> <p>1. Contracts which attempt to destroy the power of alienation, especially those which seek to prevent the owner of real estate from disposing thereof as he wishes, are void. (Turner v. Johnson, 7 Dana, 440.) Miller’s remedy in this case is against Ashby for a breach of the covenants contained in the writing. ■</p> <p>2. Miller can not recover in this case because</p> <p>fa). His pleadings do not state a cause of action against the Spillmans or Pish.</p> <p>. fa). The clause of the contract forbidding a sale of the land, was an attempted restriction on alienation, and, therefore, void.</p> <p>(c). Denny, Spillman, nor Pish assumed the undertakings imposed upon Ashby by the writing; those undertakings were personal to Ashby, and not assignable.</p> <p>(<Z). The only damages alleged are speculative, and the effort to prove them is in speculative language.</p>

Case 14 — PETITION ORDINARY APPEAL FROM FRANKLIN CIRCUIT COURT. 1. The evidence as to the character of Estes’ claim against appellant, that it originated from a gaming transaction while they were both in jail for fines, was incompetent, and only tended to prejudice the jury against appellant and divert their attention from the real issue. 2.

Case 15 —WARRANT APPEAL FROM LOGAN CIRCUIT COURT. 1. An attempt in a local act to confer special jurisdiction on justices of the peace of a county is an entirely different subject from “an act-to prohibit the sale cf spirituous, vinous, or malt liquors in that county,” and is, therefore, at variance with section 37 of the Constitution of 1850, which provides that “no law enacted by the General Assembly shall relate to more than one subject, and that shall he expressed in the…

Case 16 — PETITION ORDINARY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The legislature lias the power to discontinue or vacate any street or public way in a town or city, or to authorize the municipal authorities to do so, with the limitation that the owners of property abutting must receive compensation for the damages resulting to them in the destruction of their individual easements.

<p>Constitutional Law — Enrolled Bill can not be Impeached by Journals. — An enrolled bill, when attested by the presiding officers of the two Houses of the General Assembly, as required by law, can not be impeached by the journals of those Houses, and must be accepted by the courts as the hill adopted by the legislature and as conclusive of the regularity of the steps taken in its passage.</p> <p>To do otherwise, would be for the courts to scrutinize the manner in which the legislative department may have performed the details of its work, or to arrogate to themselves a supervisory power wholly inconsistent with the fundamental truth that the departments of government are equal and independent in their respective spheres.</p> <p>2. Local Option — Right op Town op Sixth Class to Take Vote.— It is plain both from the general local option law and the act for the government of towns of the sixth class, that a separate vote on the question whether liquor shall he sold in the town may be had in the town, although it may have formed a part of a magisterial precinct in, which a special prohibitory law was in force at the time the present local option law went into effect. It is not necessary that the vote be taken in the whole magisterial precinct. (Distinguished from King v. Com., 86 Ky., 436.)</p> <p>3. Officers — Right of Town Trustees to Hold Over. — Where there was no election in November, 1893, in a town of the sixth class for town trustees, the old trustees held over under the express provisions of section 167 of the Constitution until their successors are elected and qualified.</p>

Case 18 — AGREED CASE APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. A public office can be vacated without a direct judicial proceeding against the officer. (Stokes v. Kirkpatrick, 1- Met., 139.) 2. There is no contract or property right in a public office. (Williams v. Newport, 12 Bush, 438; Cooley’s Constitutional Limitations, 336.) 3. Sureties on the sheriffs’ general bond are not liable for default in collection of the revenue.

Case 19 — PETITION EQUITY. APPEAL FROM HENDERSON CIRCUIT COURT. 1. In the deed from Joseph G. Adams to John C. Adams it is recited that the consideration is to be paid to Joseph Adams; that is a writt&n contract upon which Joseph Adams might bring suit at any time within fifteen years. (Elliott v. Saufley, 10 Ky. Law Rep., 958.) 2. The conveyances do not indicate any fraud on their faces, and recite valuable considerations.

Case 20 — PETITION EQUITY APPEAL EROM MONTGOMERY CIRCUIT COURT. 1. A debtor husband is entitled to a homestead in land owned by ■him, which is contiguous to and used as a farm in connection with ■an adjoining tract of land owned by his wife, although the house ■which they -occupied was on the wife’s land. (Lowell v. Shan- , non, 60 la., 713.) 1.

<p>1. Constitutional Law — Journals of General Assembly not Competent to Impeach Enrolled Bill. — The journals of the House and Senate are not admissible as evidence touching the manner in which an act was passed.</p> <p>2. Computation of Time. — Under the general local option law which requires the election therein provided for to be held not earlier than sixty days “after' the application” for such election is filed with the county judge, the day on which the application is filed should be counted as one of the sixty days.</p> <p>3. Local Option — Indictment Must Allege Facts Showing the Law to be in Force. — Where a local option law by its terms is to go into effect in a particular territory only by a vote of the people thereof at an election therein, to be held only after certain conditions have been complied with, an indictment for a violation of such law to be good on demurrer, must allege facts which show that the act has been put in force as required by its terms. (Overruling Young v. Commonwealth, 14 Bush, 161.)</p> <p>4. Same. — An indictment under the local option law which charges that the county judge ordered an election upon the written petition “by a number of legal voters equal to 25 per cent of the votes east in each of the precincts in said Stanford magisterial district at the last preceding general election” is defective, because the county judge was only authorized to order the election on the application “by written petition signed by a number of legal voters in each precinct of the territory to be affected” equal to 25 per cent., etc.</p>

Case 22 — PETITION EQUITY APPEAL FROM HARRISON CIRCUIT COURT. 1. The courts by conferring upon the wife of an insolvent debtor the right to trade as a feme sole, do not give to him the right, by acting as agent for her, to place his own earnings beyond the reach of his creditors. (Moran v. Moran, 12 Bush, 303.) 2.

Case 23 —INDICTMENT APPEAL PROM MARION CIRCUIT COURT. 1. Section 816 of the Kentucky Statutes is void for uncertainty, because it prescribes no standard as to wbait is just and .reasonable for -the guidance of tbe railroad corporation, and is in effect an c* post facto law, contrary to section 19 of the State Constitution, ■and section 10, article 1 of the Federal Constitution.

(Case 24 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The order of the lower court refusing to permit appellants’ ■amended petition seeking 'to make the L. & N. R. Co. a party defendant to the action, was a final order from which an appeal may he prosecuted. (Berry v. Hamilton, 1 Bush, 361, 91 Ky., 258.) 2. A lien created by mortgage on earnings may be enforced an the hands of the mortgagor’s vendee. (Rutten v. U. P. R. Co., 17 Fed.

<p>Case 25 — PETITION ORDINARY</p> <p>APPEAL PROM WARREN CIRCUIT COURT.</p> <p>1. Where there is an Indefinite hiring, and the service is not to continue for a certain fixed and definite time, it 'is determinable at the will of either party; and there is no distinction -between domestic and other servants. (Wood on Master and Servant, seos. 127 and 136.)</p> <p>2. One addicted to the use of intoxicating liquor-s should not be employed in railroading; and where a railroad company employs such an one, it is justified up-on discovery of his habits, to refuse to further employ him. (Wood on Master -and Servant, 2 ed., sec. 134.)</p> <p>3. In such -a case actual loss and damage is the criterion of recovery, and appellant’s instruction based 'thereon (should have been given. (Lewis v. Scott, 16. Law Rep., 49.)</p> <p>1. The count properly struck out oi defendant’s answer that part of it alleging that plaintiff 'wds addicted to the use -of intoxicating liquors. If he- was, defendant’s remedy was to discharge him, and (that it had never done.</p> <p>2. A mere failure to pay, however long continued, is -not equivalent to a discharge; and until there was some -act of defendant amounting to a repudiation of the contract, it was plaintiff’s duty to hold himself in readiness to perform the duties thereunder.</p>

Case 26 —INDICTMENT APPEAL PROM GRAYSON CIRCUIT COURT. I. The law against seining applies 'to all persons and all counties alike, •and is, therefore, not special legislation. (17 Ky. Law Rep., 277; Am. & Eng. Ene. of Law, vol. 8, p. 34; Hooker v. Cummings, 20 Johns (N. Y.), 90.) 1.

Case 27 —INDICTMENT APPEAL FROlt NICHOLAS CIRCUIT COURT. 1. Where one is a regular practicing physician and is the 'owner of a drug store, he has th-e legal right to prescribe whisky as a medicine without license to retail liquor. (Commonwealth v. Matthews, 3 Ky. Law Rep., 473.) 2. A druggist may compound his o 1.

Case 28 — FORFEITED BOND APPEAL PROM DAVIESS CIRCUIT COURT. 1. After the adjournment -of th-e term of oou-rt at which the bail was fixed by the court, t)he clerk of the court had the right during .a 'subsequent called term -of the court to accept the bond. 2. There is no pretense that any amendment was offered or suggested or any time asked in which to present one, and the court properly ■rendered judgment.'

<p>1. Pleading — Release.—In an action against the- principal in a note, the surety therein not being a party, the averments by the principal in his answer that the) plaintiff owed numerous debts to the surety and the surety several to the plaintiff, without alleging there had been a settlement between them and a balance ascertained, and setting up an agreement between all the parties by which plaintiff was to apply as a credit on the note the ■amount due by him to the surety, formed no material issue.</p> <p>2. Same. — The plea of release was insufficient because there was no statement of facts showing any consideration for the agreement to release, or showing actual release from the obligation to pay.</p> <p>3. Pleading Accord and Satisfaction. — In order to malee a plea of accord and satisfaction good, it is necessary to allege not only that the parties had agreed upon the terms of settlement, but that the agreement was executed and the satisfaction made and performed in compliance with the agreement.</p> <p>4. Pleading — Party to Action. — It was error for the court to permit the pleadings to be encumbered with matters of account between the plaintiff and one who* was not a party to the action, ■because they were not relevant to the issues involved and could not properly be litigated in the action.</p> <p>5.-Arrest of Defendant — Practice.—Where a defendant is arrested upon the affidavit provided for in section 153 of the Civil Code the better practice In controverting the grounds of arrest is to do *o by counter-affidavit, separate and distinct from the pleadings in the case.</p>

Case 30 —INDICTMENT APPEAL FROM BOYD CIRCUIT COURT. 1. The indictment does not charge that the appellant operated any train over any crossing, and the agreed statement of facts does ■not show it. 2. Tihe appellant had a right to operate and cross its own tracks in its own yard, and the statute dioes not apply to such a case. 1. It is immaterial under the express terms of the statute that both, railroads are operated by the same company.

Case 31 — PETITION EQUITY and PETITION ORDINARY APPEAL FROM DAVIESS CIRCUIT COURT. 1. A receiver, trustee or 'Other like fiduciary, should allege both in the caption and in the body of tbe petition tbe character in which he sues. (Newman on Pleadings, p. 291.) '2. A covenant in a lease not to assign the lease will not preclude the right of subletting or under-leasing; nor will a covenant in a lease not'to underlease or sublet, preclude the right to assign lease.

Case 32 —INDICTMENT APPEAL FROM WHITLEY CIRCUIT COURT. 1. Any act of a defendant growing out of or being a part of the same transaction upon which the indictm-ent was ba-sed, is included in. the charge, and the defendant should come into court prepared to defend himself against every phase of the transaction. (Commonwealth v. Duncan, 91 Ky., 592.) 2.

Case 33 — PETITION EQUITY APPEAL FROM HARDIN CIRCUIT COURT. 1. The “Local Option Law” was never passed, as required by the Constitution, and is, therefore, not a law. (World’s Fair Case, 14 Ky. -Law Rep., 529; Constitution, sec. 46.) 2. There was no authority of law for submitting the question as to whether the local option law of Hardin county should be inoperative as io Elixabeilitown, and tbe election was therefore void. (Commonwealth v. King, 86 Ky., 436.) ■ 3.

Case 34 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The act of June 10, 1893, repeals the provisions of the act of February 25, 1854, regulating the practice of the Jefferson County Court. 2. Until changed by law or by an order of court, as provided by law, •the Jefferson County Court must 'hold one term in each month, and that term must begin on the first Monday of the month. 1.

Case 35 — MOTION FOR ALLOWANCE APPEAL PROM FLEMING CIRCUIT COURT. 1. Appellant as county attorney «is the owner of the commissions allowed him by law in the judgments against the several defendants, and to that extant is the owner of the judgments against them. 2.

Case 36 — PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. 1. There is no repugnance in the two clauses of the will, and -iif th-ere was, the last sectro-n must control. (Powell on Devises, vol. 1, p. 3; Parson on Wills, p. 33; Bouvier’s Law Die., ¡title, Will-s; Jar-man on Wills, vol. 1, star p. 472; Hunt v. Johnson, 10 B. M., 352; Howard v. Howard, 4 Bush, 497.) 2.

Case 37 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. I. The city had the authority to contract for the work, and, although it may have had no authority to make it a charge upon the abutting property, it is liable to the contractors for the price of the work. (City of Louisville v. Nevin, 10 Bush, 550; Crayeroft v. Selvage, 10 Bush, 698.) 1.

Case 38 — PETITION ORDINARY APPEAL EBOM LAUREL CIRCUIT COURT. 1.

Case 39 — CONTESTED ELECTION APPEAL FROM WARREN CIRCUIT COURT. 1. The contestants had no right under the statute to file new grounds of contest, or amend the grounds in the original notice. (Ky. Stats., sec. 1535; Cowan v. Prowse, 93 Ky., 163.) 2. The contest board had no power, nor had the lower court on appeal from the decision of the board, to try and determine the constitutionality or validity of the act under which the election was •held.

Case 40 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The method of apportionment adopted in this case does not apply where 'the property is divided off into squares, as -it was in this case. (Burnett’s Code, chap. 36, sec. 2.) 2. All ordinances before they are enforced shall be published in at least one or more of the daily newspapers published ‘in Louisville. (Charter of Louisville; Ormstoy v. City of Louisville, 79 Ky., 197.) 3.

Case 41 — PETITION ORDINARY APPEAL FROM TRIGG CIRCUIT COURT. 1. The evidence of the witnesses that the negro oin ‘his place had told them Oooper had no tobacco plants to spare, was not competent. It would not have been proper to prove that even by Cooper himself. 2. The instruction Which was condemned by 'the Superior Court on a former appeal, was given again by the lower court, in total disregard of the opinion and mandate of 'that court. 1.

Case 42 — PETITION EQUITY APPEAL EBOM MONTGOMERY CIRCUIT COURT. 1. The allegations of .'the original and amended petition taken together, were 'Sufficient to maintain the action under the statute prohibiting fraudulent preferences. 2.

Case 43 — PETITION ORDINARY APPEAL EROM EAYETTE CIRCUIT COURT. 1. The verdict was against the evidence and the overwhelming preL ponderanoe thereof. 2.

CAS® Ü — PETITION ORDINARY TRANSFERRED TO EQUITY— APPEAL FROM BARKEN CIRCUIT COURT. 1. The evidence taken as a whole, and in 'connection with all the facta ■and circumstances, is decidedly against the contention of appellee that material facts were fraudulently concealed from him. 2. 'The appellee was 'hound to take -notice of every provision and power set out and provided for in the articles of incorporation.

Case 45 — PETITION ORDINARY APPEiifi, FROM MONTGOMERY CIRCUIT COURT. 1. The technical defect in the petition, if any, was cured by the verdict; ibhe plaintiff could not in the very nature of things, Lave recovered unless he had shown that the fund was subject to- ¡his check. (Rogers v. Felton, Ree’r, 17 Ky. L. R., 725; Fraze v. Commonwealth, 16 Ky.

Case 46 — PETITION ORDINARY APPEAL. FROM LINCOLN CIRCUIT COURT. 1. The 'paper styled an 'answer was not an answer, because under the express terms of section 473, Kentucky Statutes, it must be sworn to before it 'becomes such; 'and appellant’s right ¡to move the court for a judgment, notwithstanding the verdict, could not have been waived. That motion should surely have been sustained. (Ky. Stats., sec. 473; Civil Oode, sec. 386.) 2.

Case 47 — PETITION EQUITY APPEAL PROM BRACKEN CIRCUIT COURT. I. A receiver 'appointed in another State, will be permitted as a matter of comity to sue in the courts of this State. (Law-son’s Rights, Remedie-s and Practice, vol. 7, p. 6102; Am. & Eng. Enc. -of Law, v-ol. 20, p. 242 -and -cases there ci-ted.) 2. The motion by the appellees to quash the summons came- too late, as it was made long after they had entered appearance to the action. 3.

Case 48 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Section 490 of the Civil Code requires that the estate owned by the infant in such notions as this must not only be a vested one, but “in possession,” and without that the court had no jurisdiction to order the sale.

Case 49 — PETITION EQUITY APPEAL FROM LEWIS CIRCUIT COURT. 1. The two-hundred acre tract of land in Nicholas county should have been adjudged to belong to Susan M. Bedford, because under 'the will of Geo. M. Bedinger a life estate therein, passed to Ms daughter, Elizabeth M. Bedford, -and the remainder in fee ’therein to Robert Bedford, who devised his entire estate to Susan M. Bed-ford. 2.

Case 50 — PETITION ORDINARY APPEAL EEOM HANCOCK CIRCUIT COURT. 1.

Cask 51--PETITION ORDINARY. TRANSFERRED TO EQUITY. APPEAL PROM FRANKLIN CIKCUIT COURT. 1. The county court alone had the power to grant the license under the provisions of the statute, and the- license not having been granted by the county court, there was no tax due the State. (Commonwealth v. Wilson, 7 Rep., 666.) 2. The seven year statute of limitation in favor of sureties applies to this case. (Commonwealth v. Gardner, 17 Rep., 75.) 3.

Case 52 — PETITION ORDINARY AI’PEALS FROM CAMPBELL CIRCUIT COURT. 1. It was a condition precedent to the validity of the policy of insurance that the payment of the first premium should be made, and that there should be an actual delivery of the policy to the insured during his life-time and while he was in good health. 2.

Case 53 — CONTESTED ELECTION APPEAL FROM CHRISTIAN CIRCUIT' COURT. 1. It is provided by .section 1475 Kentucky Statutes “that in case any person applying to vote shall declare upon oath that he is unaDle to mark his ballot it shall be mandatory on the clerk to mark his ballot in the presence of the other officers of election, and ballots ' otherwise marked shall be declared illegal and not counted.” 2.

<p>1. Arbitrators — When they have Power to Select1 an Umpire. — • Arbitrators have no inherent power, upon their disagreement, to select an umpire, unless they are authorized to do so by the terms of the submission; and an award made by an umpire so selected is void. Arbitrators derive their power from the articles or agreement of submission, and the umpire must derive his in the same way.</p> <p>2. Arbitration — Award as to Matters not Submitted. — When arbitrators make an award a.s to matters submitted to them, and attempt in the award to determine matters not submitted to them, the award will be enforced as to the matters submitted, and -treated as void as to the others. But in this case the whole award being void, this rule has no application.</p> <p>3. Construction of Deed. — There being several distilleries in the same vicinity owned by the same man, and using the same pumping station for their water supply, a provision in the deeds ■of conveyance to separate persons of the several distilleries that “when the property should be operated for use, the cost of operation and the ordinary expenses of repairing incident thereto should be paid by the distilleries using the water from said pump-house in proportion to the quantity of water used, determined by the number of bushels of grain crushed” means tha-t each distillery is required to pay its share of the expenses of the pumping station only while using the water from the station, and, not when it procures its water supply elsewhere.</p>

Case 55 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. The renunciation of the will by the widow had the effect 'to precipitate the maturity of the legacies. (Peynado' v. Peynado, 82 Ky., 5; Wood v. Wood, 1 Met., 512; Curling v. Curling, 8 Dana, 38; Revised Statutes, chapter on Wills, p. 696; Gen. Stats., chap. 50, Art. 2, Sec. 2; Timberlake v. Parrish, 5 Dana, 345; Story’s Eq. Jurisprudence secs. 1082, 3-4; Pomeroy’s Eq.

<p>1. Rescission of Land Sale — Right of Vendee to Lien. — When a contract for the sale of land is rescinded the vendee has a. lien upon any part of the land owned by the vendor, for any sum which he may have paid upon the purchase price, whether the vendee wias in possession thereof or not.</p> <p>2. Actions eor Rescission, and to Enforce Lien on Land — Jurisdiction.' — An action purely for a rescission of a contract for the sale of land is transitory, being an action in personam; but when in such an action it is further sought to enforce a lien on land which results from the rescission, then the action becomes local and the jurisdiction is in the county where the land lies, whether the defendants are served with process there or not.</p> <p>3. Limited Warranty — Extent of Judgment upon Rescission.— Where two vendors in a contract of sale warranted generally— one as to forty per cent, of the land and the other as to sixty per cent. — upon rescission and judgment against them for what had been paid on the land, the judgment should not have been against them jointly for the full amount, but only against each of them in the proportion named.</p> <p>4. Special Judge — Presumption that iie had the Orders Entered. Where a special judge is selected by agreement, or elected to preside in a ease, the presumption is that such orders as are entered ■in the case were made by him, unless the contrary is shown by the record.</p>

<p>1. Peremptory Instruction — Liability op a Railroad Company por Injury to Child. — Upon the trial of an action for damages against a railroad company for injury to a child, it appearing from the plaintiff’s evidence that on the day the injury was received the eleven-year-old boy boarded the freight train without the knowledge or consent of the conductor for the purpose of riding a 'short distance to a water-tank, and reached there in safety and got off the train; but after the train had started again, without the knowledge of the conductor and not within his sight, he caught hold -of a ladder handle for a 'short time, and afterwards •in jumping from the. train landed on a pile of coal alongside of the track, part of which slipped under his feet and threw him under the train whereby he lost one of his feet, a peremptory instruction to find for the defendant should have been given.</p> <p>2. Proximate Cause. — The immediate or proximate cause of the accident, under these circumstances was the dislocation of the lumps of coal when his feet struck the pile, whereby his foot was thrown under the cars.</p> <p>3. Evidence.- — Testimony as to what the conductor said to the boys •on days previous to the day the accident occurred, and the testimony that the conductor and brakemen had on previous days encouraged the boys to catch hold of the ladders and swing therefrom, was inadmissible.</p> <p>4. Res Gestae. — A statement of the conductor .after the train had run- some distance and stopped, and he had returnee1, to the place of the accident, was not competent as part of the res gestae.</p> <p>5. Contributory Negligence — What Constitutes in a Child. — A child is required to exercise only such a degree of discretion and care as may be reasonably expected of one of his age and intelligence under like circumstances; but age alone is not the test of the degree of care required of children in such cases.</p> <p>6. Right or Railroad Company to Place Coal Along its Tracks eor its Use. — The placing of coal by a railroad company along its tracks, for its own necessary use, is not negligence, and not likely to be the cause of any such accident as happened in this ease.</p>

Case 58 — PETITION ORDINARY APPEAL PROM DAVIESS CIRCUIT COURT. 1. A municipal corporation may by ordinance impose a greater penalty for an offense within its jurisdiction than is imposed by statute for the same offense. (See. 168 Cons.; March v. Commonwealth, 12 B. Mon., page 25.) 2. A municipal corporation may pass an ordinance regulating an offense where there is a statutory penalty already prescribed when conferred by the legislature in specified and defined terms.

Case 59 — PETITION EQUITY appeal prom mason circuit court. 1. The repeal of the 8th section of the act of 1886 withdrew the authority conferred upon the county court of Mason county to submit the proposition whether or not the people should be taxed to. acquire control and to render free the turnpike roads of that ■county, or any portion of them, and destroyed the vitality of the whole act. (Weller v. Com., 14 Bush, 218.) 2.

Case 60 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. 1. The petition of the appellee was not good because it showed that the territory sought to be incorporated is greater in extent than is permitted by the statute. The wording of the statute referring to the limits of the boundary of a town to> be incorporated is complete and without ambiguity, therefore no more can be necessary than to expound said wording in tbe natural and ordinary sense.

<p>1. Homicide — Evidence—Conduct of Prosecuting'Attorney. — On the trial of an indictment for homicide, evidence introduced by the Commonwealth that the deceased left a wife and four children and that the wife had been sick ever since her husband’s death was not material and did not operate to the prejudice of defendant’s substantial rights; nor did the customary speech of the prosecutor in such cases with regard to the reputation of the State for crimes of violence and the disgrace a failure to convict would, as he claimed, bring upon the county, have the effect to inflame the minds of the jury, it appearing that the penalty imposed was the lowest permitted for voluntary manslaughter.</p> <p>2. Evidence — When Defendant is Introduced as Witness. — When a defendant puts himself on the stand as a witness, he thereby submits himself to such cross-examination as any other witness may be subjected to. (Burdette v. Commonwealth, 93 Ky., 77.)</p> <p>p3. Discrediting Witness on Cross-examination. — While counsel should not be given unrestricted liberty in cross-examination of a witness with reference to his past life, history and habits, yet he may he asked such questions as tend to shake his credit by injuring his character, and he may he cross-examined as to 'specific facts, tending to disgrace or degrade him, although such facts are irrelevant and collateral to the main issue; but the extent to which such cross-examination may be carried is within the discretion of the court.</p> <p>4. Evidence — General Moral Character. — Evidence introduced by the defense that a prosecuting witness was a “tough negro,” would undoubtedly be understood by jurors generally - as putting in. issue his- general moral character, and would give the prosecution the right to introduce evidence to sustain the same.</p> <p>■5. Homicide — -Involuntary Manslaughter — Instructions.-—An instruction as to involuntary manslaughter was properly refused in this case where the deceased was accidentally killed while the de- • fendant was either defending himself against another or attempting to -kill such other. The distinction between such a case, and one in which there is an .unintentional discharge of a pistol lies in the intent.</p>

Case 62 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. 1. Where a ^petition states that the plaintiff executed and delivered a note to himself, the pleading is faulty and a demurrer to same should he sustained. When a note is blank as to when it shall hear interest, then interest can not he counted until maturity of the note. 2. The lower court erred in, placing the motion on the Motion Docket, and the action on the Trial Docket, both to be tried'on the same day.

Case 63 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. Publication of notice as required by ’Section 67 of the “Act for the government of cities of the first class.” is a condition precedent to the contract, and no valid contract can be made without the publication of these facts. 2. No lien exists because the apportionment whrrants, which are the basis of the action, were irregularly issued. 3.

Case 64 — PETITION EQUITY APPEAL PROM KENTON CIRCUIT COURT. 1.

<p>Case 65 — PETITION ORDINARY TRANSFERRED TO EQUITY—</p> <p>APPEAL EBOM WABBEN CIRCUIT COUBT.</p> <p>1. Money is due on goods shipped by a mortgagee (to a purchaser), the day following his tailing possession of the mortgaged property. If the title to the goods did not pass to appellants, then they held a mortgage lien upon them and in a contest, with an attaching creditor, the mortgage lien is prior and appellants are still entitled to the money. The fact that a mortgagor retains possession of the mortgaged property does not render it void. (Coffey on Mortgages, secs. 508, 250; Nat’l Bank of Commerce v, Morris, 21 S. W. Rep., 511.)</p> <p>1. The conveyance called a mortgage is void against the creditors of the mortgagor and was made to defraud all other creditors besides the mortgagee.</p> <p>2. The conveyance is constructively fraudulent as against creditors be- ■ cause it was made to secure a. pre-existing debt.</p> <p>3. The appellee is a citizen of Kentucky, the knoney was attached in the hands of another citizen of Kentucky, the mortgage was made and Recorded only in another State, and even though such conveyance would be held valid where made, still it can not prevail, nor be enforced against the claim and lien of the attaching citizen of this State.</p> <p>4. The most essential element of any lien upon personal property is for its immediate possession to accompany the transfer, and if possession is abandoned the lien is lost. (15* parte, Foster, 2 Story (U. S.), 131.) The lien claimed in this action must be construed by common law principles, because made in another State and, according to that, possession is a necessary element to enforce it against a creditor. (2 Kent’s Corns., p. 638.)</p> <p>5. This conveyance, even if valid where made, can not be enforced against a fund attached by a citizen in this State, within its jurisdiction. (Johnson v. Parker, 4 Bush, 149.) .</p> <p>6. The principle of comity does not require our courts to recognize and enforce to the prejudice of our own citizens conveyances made by insolvent debtors under the laws of another State. (Coflin v. Kelling, etc., 83 Ky., 649; Burrilon Assignments, secs. 302, 306, 307, 310, 4th ed.; Hoyt v. Thomson, 6 N. Y., 320; Osborne v. Adams, 18 Pick., 248; Booth v. Clark, 17 How., 322.) A conveyance made in another State preferring a creditor In that State will not be disturbed, unless by this preference, some citizen of this State will be injured (Mathers, &e., v. Lloyd, trustee, &c., 89 Ky., 625.)</p>

Case 66 — PETITION ORDINARY APPEAL FROM HARRISON CIRCUIT COITRT. 1. Where there is an unde-nied allegation of notice of danger and that the deceased knew of it and put himself in the way of said danger no damages can be recovered. (Derby 'Adm’r v. K. C. R. R. 9 L. R., 154.) 2.

Case 67 — PETITION ORDINARY APPEAL FROM CAEROLL! CIRCUIT COURT. 1. The court erred in not requiring plaintiff to elect whether he would proceed for tort or for breach of contract and in not requiring plaintiff to paragraph his petition. 2. If the action was for breach of contract alone the court did not have .jurisdiction, because the contract was not'made or was not to be performed in Carroll county. 3.

<p>Case 68 — PETITION ORDINARY</p> <p>APPEAL FROM MARION CIRCUIT COURT.</p> <p>1. The appellant had the right to serve summons on both the agent and the president of the publishing company, and if the first summons was not sufficient the last one was, to all intents and purposes, and the court erred in ruling otherwise. (Adams Express Co. v. Crenshaw, 78 Ky., 136; L. & N. R. R. Co. v. Coleman, 7 Ky. L. R., 229; Bridge Co. v. Douglas, 12 Bush, 711.)</p> <p>2. The mere fact that a publisher of libelous words heard them is no defense in law. (Mallory v. Pioneer Press Co., 34 Minn., 521; Riley v. Lee, 88 Ky., 614.)</p> <p>3. No court is justified in making specific acts a criterion to investigate one’s general character and questions asked along this line are incompetent. (Campbell v. Bannister, 79 Ky., 208; Thurman v. Virgin & wife, 18 B. Mon., 630; Evans v. Smith, 5 Monroe, 363; Henderson v. Hayne, 2 Met., 348; Hume v. Scott, 3 Marshall, 261.)</p> <p>4. The court erred in instructing the jury that they should find only actual damages. The plaintiff, in cases of libel, is not required to establish item by item, the amount of damage which he has sustained. (Alliges v. Mail Printing Asso., 66 Hun (N. Y.), 626; Blocker v. SchofE, 83 Iowa, 265.)</p> <p>5. To authorize the jury to award punitive damages in an action of libel it is not necessary that an intention to injure should be shown. (Courier-Journal Co. v. Pope, 15 Ky. L. R., 877.)</p> <p>6. The damages in an action for libel are not only compensatory, but where malice or gross negligence is shown, punitive damages may be given. (Cooper v. Sun Co., 57 Fed. Rep., 566.)</p> <p>1. The court erred in allowing to be admitted as evidence a picture printed in another publication, printed in another State and issued after the publication complained of had gone before the public.</p> <p>2. Appellee could not have been injured by the publication complained of because all the 'article that was libelous was shown to.be true.</p> <p>3. Stronger language than any complained of in the publication, has been held by the courts not to be libelous. (79 Ala., 514; 66 Iowa, 694; Walker v. Tribune Co., 29 Fed. Rep., 827.) According to classifications of libels in Newell 67, this publication was not libelous. Without malice, either express or implied, an action for libel will not lie. ,</p>

Case 69 — PETITION EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. 1.The city charter was not only substantially but literally complied with; the appellee knew that improvements were being made all the time and raised no objection until he was called upon to pay, and he should reimburse the city. (Fox v. Middlesborough Town Co., 16 Ky. Law Rep., 455; Embry v. San Francisco Gas Co., 2S Cal., 372; Elliott on Roads and Streets, pages 415, 416, 420.) 1.

Case 70 — PETITION ORDINARY APPEAL FROM WARREN CIRCUIT COURT. 1. The law is well settled that in all cases of indefinite employment as, for example, “so long as- the servant may render faithful and honest service,” as in this case, the contract is determinable at the will or option of either party, and the pleadings in this case not only admit the indefiniteness of the time, but also that appellant exercised its right to determine and did end the contract.

Case 71 — PETITION ORDINARY APPEAL FROM HARDIN CIRCUIT COURT. I. Upon delivery of goods to the 'carrier, the title either vests in the consignee or it does not; and if it does so vest, no subsequent notice by the consignor can change that fact. The only office of such notice would be to put the carrier on notice and require it at its peril to satisfy itself whether the title did vest in the consignee upon delivery to it. 2.

Cass 72 — PETITION ORDINARY APPEAL PROM JEEEERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. In the absence in this court of the evidence introduced in the lower court 'by the appellant to sustain its defense, the presumption must prevail that the peremptory instruction to find for plaintiff in the lower court was ¡proper. 2.

Case 73 — PETITIONS EQUITY APPEALS FROM JEFFERSON CIRCUIT COURT, THE FIRST NAMED FROM TILE LAW AND EQUITY DIVISION AND THE OTHER FROM THE COMMON PLEAS DIVISION. 1.

Case 74 — PETITION EQUITY APPEAL PROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION, I. The submission of the question whether the bonds should or should not be issued was not necessarily had at the regular November election,' as it might have been done at any other time by1 proper notice.

Case 75 — PETITION FOR WRIT OF PROHIBITION ' APPEAD PROM TEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The appellant can not be removed from his office under the general charge that he was guilty of offenses, infamous in their na- . ture; the words “upon charges preferred by the taayor,” must ■mean charges of official misconduct. (Com. v. Williams, 79 Ky., 47; Com. v. Barry, Hard., 238; Com. v. Chambers, 1 J. J. M., 160; Tompert v. Lithgow, 1 Bush, 180.) 2.

Case 76 — PETITIONS ORDINARY APPEAL PROM GRAVES COMMON PLEAS COURT. 1. A railroad company has the right of way of its roadbed, and may run its regular trains on time, or irregular or extra trains, as its business may require; and is only required to use ordinary care in providing and using reasonably safe means of warning to persons traveling along the highway over its track, of the approach of trains to a crossing.

Case 77 — PETITION ORDINARY APPEAL FROM HENDERSON CIRCUIT COURT. Y. While at common law the guardian bad authority to compromise or compound a claim or demand of his ward, the provision of section 2030 of the Kentucky Statutes that he may do so “with leave of the Court,” was intended to and did abrogate that common-law right, and negatives his authority to do so, in any other way than as therein provided. (Hayes v. Mass. Mut. Life Ins.

Case 78 — AGREED CASE APPEAL I'ROIC KENTON CIRCUIT COURT. 1. The faith and credit Of the city of Covington is pledged for the payment of the bonds and interest, and although the fund arising from the special assessment is fclso so pledged, it is, nevertheless, “an indebtedness” of the city, and being greater than the current revenue for the year, the question of issuing the bonds, must be submitted to a vote of the people. (Secs. 3073 and 3101, Ky.

Case 79 — PETITIONS EQUITY APPEALS EPOM LOGAN CIRCUIT COURT. 1.

<p>1. Descent and Distribution — Right of the Issue of Void Marriage to Inherit. — Under the provision of the Kentucky Statute that “the issue of an illegal or void marriage shall, nevertheless , be legitimate,” although the marriage was consummated in a State under the laws of which the marriage was void and the issue therefrom illegitimate, the issue of such a marriage may inherit property in Kentucky from their parents and collateral kindred.</p> <p>2. Statutory Construction. — A subsequent section of the statute relative to void marriages which provides that “where the marriage is contracted in good faith, and with the belief of the parties that a former husband or wife then living was dead, the issue of the marriage born or begotten before notice of the mistake, shall be legitimate issue of both parties,” does not qualify the previous provision that the issue of an illegal or void marriage shall be legitimate.</p>

Case 81 — PETITION ORDINARY APPEAL EROM CLARK CIRCUIT COURT. 1. While the Federal Court in which the bond was executed, upon its dissolution might have, under its practice, assessed the damages against the parties, it did not do so, and left the appellant’s only remedy an action on the bond. 2.

Case 82 — PETITION ORDINARY APPEAL FROM CLAY CIRCUIT COURT. 1.

Case 83 — AGREED CASE APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. 1. The election in November, 1896, is not a “regular municipal election;” the only officials to be elected then who have any sort of connection with the city government are school trustees and they are in no sense city officers.

<p>1. Vendor’s Lien — Railroad Construction on tiie Property in Lien. — Where the vendee of land gives his consent for the construction of a railroad over the land, and subsequent to the building of the railroad the vendor brings a suit to foreclose his purchase-money lien on the property to which the company was a defendant, and the court orders the sale of all the tract, -except that which constitutes the roadbed, with a proviso that if that failed to bring the’amount of the debt the balance would be made out of the road bed, it was proper for the court to then permit the company to file its cross-petition so as to enable the court to determine the mode in which the roadway should be disposed of or the company made to account for its value.</p> <p>2. Sale of Roadbed for Purchase-money Lien. — In such a. case, where the land outside of the right of way was insufficient to pay the lien debt, the right of way with the improvements thereon should not be sol’d to satisfy the lien for the balance of the debt; but the right of way should be condemned and the value thereof, together with the damages to the rest of the tract, should be adjudged against the railroad company, with a lien upon the roadbed, to secure it.</p>

Case 85 — PETITION ORDINARY APPEAL FROM MARION CIRCUIT COURT. 1. When the act complained of .'is accompanied by circumstances of aggravation, punitive damages may be recovered. In this case the conductor knew that the agent had -refused to sell the appellant a ticket, and yet wilfully, wrongfully and deliberately charged appellant the extra fare, because he had no ticket. (5 Bush, 213; 2 Met., 147.) 1.

Case 86 — PETITION ORDINARY APPEAR EliOM DAVEISS CIRCUIT COURT. 1. The court erred in permitting the plaintiff, Cate, to tell, upon his re-direct examination, what Captain Harpham had said to witness about the wreck after he had left it. Such evidence was collateral to the issues involved. (Greenleaf on Evidence, sec. 52; Bibb v. Prather, 1 Bibb, 316; Starkie on Evidence, vol. 2, star p. 222.) 2.

Case 87 — AGREED CASE APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. The city charter provides definitely that the members of the two boards shall receive a salary of not less than $2,500, and this is not dependent upon any action whatever of the general council, but is payable by force of the statute itself; -in' the absence of any action to the contrary by the council the salary must be considered as fixed by the charter.

<p>1. Criminal Law — No Power to Reverse for Insufficient Evidence. — The Court of Appeals has no power to reverse a judgment of conviction in a criminal prosecution upon the ground that the evidence is not sufficient to support the verdict, but only “ for any error of law appearing on the record, when, upon consideration of the whole case, the court is satisfied the substantial rights of the defendant have been prejudiced.” (Crim. Code, sec. 344.)</p> <p>.2. Practice — Waiver.—By his failure to either demur to the indictment or move to set it aside, in the court below, because it was not properly indorsed, as required by section 119 of the Criminal Code, and because it was not properly presented in court, as required by section 221 thereof, the defendant has waived his right to make those objections in the Court of Appeals.</p> <p>3. Practice — Compliance with Codf. — Where the record shows that the indictment was indorsed by the foreman of the grand jury “a true bill,” and it sufficiently appears to have been signed by the foreman, the provisions of the two sections of the Code, above referred to, are substantially complied with; and the statement that the foreman of the grand jury “reported” an indictment, means practically the same thing as if it had said he “presented” it, as required by section 221 of the Criminal Code.</p> <p>4. Practice. — Where the record states that “the defendant is this day brought into court, . . . and came parties by counsel, and the said defendant having heretofore pleaded not guilty of the offense charged in the indictment, for his trial puts himself upon his . country, and the attorney for the Commonwealth likewise,” it is a fair if not necessary inference, and authorized by the record, that the indictment was read and the defendant’s plea stated to the jury, as required by section 219 of the Criminal Code.</p> <p>5. Controlieng Statute — Right oe One Co'nvicted of Crime to Testify. — When a section in the Revised Statutes has been omitted in the General Statutes, or any change made, however slight, in a general law, the whole law as found in the Revised Statutes, on that subject, must be considered and treated as repugnant to' the provisions of the General Statutes (Broadus v. Broadus, 10 Bush 299.) And as the witness in this case did not belong to the class excluded by the General Statutes, he was properly permitted to testify. But he was a competent witness independent of that question, as the qualification of an accomplice to testify as a witness in behalf of the Commonwealth is recognized by section 241 of the Criminal Code.</p> <p>8. Extra-judicial Confession — Corroboration.—The courts are not authorized under the law to require other and additional evidence than the proof of confession to corroborate the testimony of an accomplice, or other than the testimony of an accomplice to accompany proof of a confession. It is wholly for the jury to determine whether the additional evidence does or does not conduce to prove the guilt or furnish the corroboration.</p> <p>7. Practice — Verdict.—Where the indictment charged the accused with murder, and the jury found “the accused guilty as charged in the indictment, and fixed the punishment at death,” although he may have been convicted of manslaughter under the indictment, the verdict sufficiently fixes the degree, of the offense, as it is plain what offense the jury intended to find him guilty of and the punishment they intended to inflict.</p> <p>8. Bills of Exception — Bystander’s Bill. — The truth of what the ■ judge of a lower court states or certifies as the bill of evidence, may be controverted by the affidavits of bystanders in the form of a bill of evidence, but the Court of Appeals has no authority to consider questions of law made during the progress of the trial of either a civil or a criminal case, unless they appear by the bill of exceptions, regularly approved and signed by the judge, to have been passed on by the court. (Garrott v. Ratliff, 7 Ky. Law Rep., 463.)</p> <p>9. Instructions — Refusal not Prejudiclal When Same Embraced in. Other Instructions. — A refusal by the court to give an instruction which contained a correct statement of the law, is not prejudicial, when the same matter was substantially, and in such manner as to he clearly understood embodied in other instructions, which were given.</p>

*Case 89 — PETITION ORDINARY APPEAL PROM ERANKLIN CIRCUIT COURT. 1. The method of assessment adopted by the Board of Valuation and Assessment is not in accordance with either the letter or spirit of the third article of the chapter on revenue and taxation providing for the taxation of franchises.

Case 90 — AGREED CASE APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1.

Case 91 — PETITION EQUITY APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION. 1. Under the charter of the city of Louisville in making assessments for costs of public ways, the quarter square is the taxing district; and that being true, each quarter square should be assessed to pay for the improvements binding on it, and no more. (Cooper v. Nevin, 90 Ky., 85; Boone v. Nevin, 14 Ky. Law Rep., 547; Smelz v. Giles, 12 Bush, 494; Meyer v. Zell, 14 Ky.

Case 92 — AGREED CASE APPEAL FROM UNION CIRCUIT COURT. 1. Rents accruing after the death of the testator vest in the devisee. In this ease no part of the rent was due till after his death, and must he deemed to have accrued thereafter. (Ranch v. Hill’s Adm’r, 8 Bush, 67; Ball v. First Nat. Bank, 80 Ky., 401; Cass v. Smith, Blair & Co., 7 Ky. Law Rep., 305.)

Case 93 —INDICTMENT APPEAL PROM TAYJJOR CIRCUIT COURT. 1. It is admitted that the appellant furnished the separate coaches with equal accommodations and conveniences, as required by the statute; and that being true, if the conductor or manager of the train failed to assign persons to their proper cars, as is required of them by the statute, they and not the company have been, guilty of an offense. 1.

Case 94 — PETITION ORDINARY APPEAL' PROM JEEEERSON CIRCUIT COURT, LAW AND EQUITY DIVISION. 1. A purchaser of raw hides, bound in packs and shipped by car, is entitled to a full and fair opportunity of inspecting them before he is called upon to'accept or reject them. Such a “receiving” is not an “acceptance” o.f the hides so as to make the purchaser the owner of them.

Case 95 — PETITION EQUITY and PETITION ORDINARY— APPEALS FROM HARDIN CIRCUIT COURT. 1. There is nothing in the provisions of section 249 of the Civil Code giving a mortgagee of personal property a right to a specific attachment against the mortgaged property under the circumstances and conditions therein named, which is inconsistent with his levying a general attachment on such property, or which takes away the ri'ght to levy a general attachment on the mortgaged property.

Case 96 — PETITION ORDINARY APPEAL FROM HICKMAN CIRCUIT COURT. 1. As between a railroad company and its employes, the company is bound to the use of ordinary care and prudence only in the inspection of its cars and appliances; and the established rule is that where an injury is the result of a latent defect of which the company has no prior knowledge,and which was not discoverable by the exercise of ordinary care, the company is not liable.