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and fixed his punishment at confinement in the penitentiary for one year. The chief ground of reversal relied on here is the incompetency of certain evidence admitted to go before the jury. It is conceded that the statements were in fact made by appellant to Morgan as substantially charged in the indictment, namely, that there was a collecting company located in Philadelphia, nown as the Continental Collecting Company; that said company had a branch agency in Lexington, and an office there; and that appellant was an authorized agent of that company. To convict the appellant, however, of the crime charged, the commonwealth must have established the falsity of one or more of these statements. It must appear that there was no such collecting company located in Philadelphia, or that such company had established and were operating in its office no such branch agency in Lexington, or that the appellant was not an authorized agent of such company. On the first and last propositions the commonwealth introduced no proof whatever. In the nature of things, it was a difficult thing to prove these negatives. Nevertheless, that there was no such agency in Philadelphia, or, if so, that appellant was not its authorized agent, must be made to appear before a conviction could be had on account of the appellant's affirmative statements that such a state of facts existed. The appellant and his brother testify to the establishment of such an agency in Philadelphia in 1893, and state that they were its authorized agents; and, even if we concede the right of the jury to disregard this testimony, the commonwealth is yet without any proof showing that the representations of the appellant to that effect are false. Without regard, however, to the truth or falsity of these statements, the case is made out if it appear that the Continental Collecting Company had no branch agency in Lexington for the purposes described in the indictment, and it was to this phase of the question that the state directed its proof. The only testimony, however, introduced on this point was that of a witness, who proved that he was the chief marshal of the city of Richmond, and some 25 years ago resided in Lexington, Ky.; that prior to the arrest of the appellant and his brother he had gone to Lexington, a city of some twenty-five or thirty thousand inhabitants, and (using his own language) "inquired of the police if there was any concern doing business in the city of Lexington under the name of the Continental Collecting Company. They told me, 'No.'" To the admission of this testimony the appellant "excepted," and at once moved to exclude it from the jury. The motion was overruled, and an exception saved. The witness further stated that he "looked for the office of the Continental Collecting Company, made inquiry of several business men, and also of the police; but was unable to find the office of such a com

pany in the city." This last statement was competent, and the jury might have drawn the conclusion from it that no such concern had been established or was in operation in the city of Lexington. But they might not have reached such a conclusion, and probably would not, from this testimony alone; and hence the importance of the statements of the witness to the effect that the Lexington police had answered in the negative when asked if there was any concern doing business in the city of Lexington under the name of the Continental Collecting Company. The appellant was therefore probably convicted on the statements of the Lexington police, as testified to by the marshal of Richmond. It does not even appear that the emphatic and conclusive answer of the Lexington police was based on an investigation of the matter at hand. But, whether it was or not, the accused was entitled to meet the witnesses face to face, and cross-examine them as to their alleged knowledge. The testimony is incompetent, and highly prejudicial. If it was not true, as testified by the appelant and his brother, that they had an office at No. 125 South Broadway, in Lexington, Ky., and had also engaged Ross as the attorney for the company, and secured an office with him, at the time of the transaction with Morgan, the falsity of the statements could easily have been established. For the reasons indicated, the judgment is reversed, with directions to grant the accused a new trial, and for proceedings consistent with this opinion.

SCHWERMAN v. COMMONWEALTH. (Court of Appeals of Kentucky. Nov. 27, 1895.)

INTOXICATING LIQUORS LICENSE STATUTE OF LIMITATIONS-RUNNING OF STATUTE -RELIEF FOR FRAUD.

1. Authority to grant liquor licenses in towns or cities is conferred on the municipal officers, and not on the county court, whose power to issue licenses applies only to a "neighborhood."

2. St. § 2551, provides that "a surety in any obligation *** shall be discharged from all liability thereon when seven years shall have elapsed without suit after the cause of action accrued." Section 2519 provides that, in actions "for relief for fraud," the cause of action shall not be deemed to have accrued until the discovery of the fraud. Held, that an action against the sureties on the official bond of an officer for misappropriation of money collected for license fees is one "for relief for fraud," where the officer, in his official report, misrepresented the number of licenses issued.

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by the commonwealth of Kentucky against Katherine Schwerman and others. From a judgment for plaintiff, defendant Schwerman appeals. Affirmed.

T. M. Hill, for appellant. W. J. Hendrick and Ira Julian, for the Commonwealth.

LEWIS, J. August 29, 1882, Thomas Jones, clerk of Campbell county court, and his sureties, Frank Schwerman and others, executed a bond to the commonwealth of Kentucky, covenanting he would faithfully discharge all duties of said office, and pay over in due time, to the proper person, any money received by him as clerk. July 29, 1893, the commonwealth instituted this action against Jones and his sureties, Katherine Schwerman, widow and sole devisee of said Frank Schwerman, then deceased, being also made defendant. In the petition it is alleged that during the period from September, 1883, to September, 1885, Jones, as clerk, had collected a stated amount of saloon-license fees which he had failed to pay over or report to the auditor, or in any way account for, as by law it was his duty to do, and judgment therefor is asked. The action, having, by agreement of parties, been transferred to equity, was referred to the master commissioner, who, after taking proof, made report of the amount of such fees received, during the period mentioned, by Jones, as clerk, which he had not accounted for to the commonwealth. Thereupon the court, confirming that report, rendered judgment in favor of plaintiff for the sum of $1,950, against the defendants, including Katherine Schwerman, though it is to be enforced as to her only to the extent of assets received from the estate of her deceased husband. There was a further judgment for $800 against all the defendants except her, it appearing that an order of the county court was made June, 1885, releasing her husband from future liability on the bond.

As none

of the other defendants have appealed, the inquiry is whether the judgment for the firstnamed sum, so far as it affects Katherine Schwerman, is erroneous.

The first of the two grounds relied on in argument for reversal is that a cause of action is not stated in the petition, which, as contended, ought to have contained an averment that the saloon licenses in question were granted by order of the Campbell county court. The statute did during the period referred to, and does now, by section 4203, St. Ky., provide in general terms that all licenses to sell by retail spirituous, vinous, or malt liquors shall be granted by the county court; and, in cases to which that provision applies, the clerk thereof cannot, without an order of court, legally either issue license or collect tax therefor. It was accordingly held in Com. v. Wilson, 7 Ky. Law Rep. 666, cited by counsel, that an indictment against a county court clerk for misappropriating money received by him as tax upon a license to a merchant to retail liquor was defective in omitting the statement that the license was granted by the county court. But exclusive authority to grant licenses to sell by retail liquor in an incorporated city or town is generally vested in the municipal government, and exercise of such license is

not at all dependent upon an order of the county court. On the contrary, express provision is made by statute in such cases for collection by the clerk, independent of the county court, from the person licensed, of the state tax prescribed, in addition to the tax imposed for benefit of the city or town. The particular conditions in which it is provided the county court shall have exclusive jurisdiction to grant licenses to sell by retail liquor plainly apply to the county, or, in language of the statute, to "a neighborhood," and not to incorporated towns or cities, when authority to grant or withhold coffee-house, or what is commonly understood as "saloon," licenses, is conferred upon the municipal officer or officers thereof. It was not therefore necessary for plaintiff in this case to allege, nor could it be truthfully done, that there had been an order of the county court granting the licenses taxes for which, it is stated, were collected and appropriated by the clerk to his own use. The plaintiff does not in this case allege in terms that the licenses in question were granted by authority of the city of Newport, or any other town or city in Campbell county; but it seems to us that, inasmuch as the statute conferred the right and imposed the duty upon the county court clerk to collect for benefit of the state the prescribed amount of tax on each coffee-house or saloon license granted by municipal authority, it may be fairly implied from language of the petition that such licenses were granted in each case mentioned.

The next question is whether the statute of limitations can avail the sureties in the bond, for it is obvious more than seven years had elapsed from collection of the license tax when this action was commenced; and that question involves construction of the statute not heretofore made by this court. Section 2551, St. Ky., being same provision on that subject contained in the General Statutes, is as follows: "A surety in any obligation or contract * * * shall be discharged from all liability thereon when seven years shall have elapsed without suit thereon after cause of action accrued." But section 2519 provides that, "in actions for relief for fraud or mistake or damages, for either the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud." The cause of action in this case is the fraudulent appropriation by Jones, the clerk, to his own use, of saloon-license taxes collected by him in his official capacity, and which the statute required him to pay into the state treasury; and it is distinctly alleged in the petition that plaintiff did not discover the fraud until more than seven years had expired from date of the bond, because misled and deceived by the false report made officially, and under oath, by Jones, of the number of licenses issued and

amount of taxes collected by him during said period. It seems to us, when an officer, in regular performance of a public duty which involves collection and payment of money into the treasury, makes a false report in relation thereto for the purpose and which does have effect to deceive, an action by the commonwealth to recover the amount so misappropriated may be instituted and maintained, under section 2519, at any time within 10 years from perpetration of the fraud. And as the sureties of Jones, like him, covenanted for faithful discharge of his official duties, and payment in due time of money collected by him to the person entitled, and consequently became equally bound by stipulations of the bond, the cause of action against them cannot, in language of the statute, "be deemed to have accrued until the discovery of the fraud"; and not until then did the statute of limitations begin to run in their favor, though, of course, the action could not have, in any event, been maintained against them 10 years after execution of the bond or perpetration of the fraud. Judgment affirmed.

McCLURG v. INGLEHEART et al. (Court of Appeals of Kentucky. Nov. 26, 1895.)

ACTION FOR DEATH BY WRONGFUL ACT-PARTIES -CONTINUANCE-INSTRUCTIONS-RIGHT

OF SELF-DEFENSE.

1. An affidavit for continuance on the ground of absence of witnesses, failing to allege their names, the testimony which they were expected to give, or that any process had been taken out or diligence used to secure their attendance, was properly overruled.

2. An application for continuance on the ground of defendant's illness was addressed to the sound discretion of the court, and its decision in denying the same on the conflicting affidavits of the parties was not an abuse thereof.

3. In an action for causing death, an instruction giving in years the life expectancy of deceased, and directing the jury that in estimating actual damages they should consider the probable net earnings of deceased during that period, taking into consideration his habits and capacity to earn, gave undue prominence to the fact of expectancy, separated from the other facts in evidence,-as that deceased's health and habits were only fairly good, and that he had been unable to work continuously.

4. The right of self-defense, as a defense to an action for causing death, does not depend upon the belief of the jury as to whether defendant was in danger, but as to whether defendant at the time had reasonable grounds to believe, and did in good faith believe, that he was in danger, and then defendant might only take life providing he had no apparent and safe means of protecting his own life and person.

5. But if defendant, with intent to assault or kill deceased, first attacked deceased, and never abandoned said attack until he shot deceased, the jury should not find for defendant on the ground of self-defense.

6. Unless one is justified on the ground of self-defense, he is not excusable for killing another, though he did it under such circumstances as would make it manslaughter.

7. In an action by a surviving wife to recover for causing the death of her husband the children may be joined.

Appeal from circuit court, Daviess county. "Not to be officially reported."

Action by Helen Ingleheart and others against William McClurg to recover damages for causing the death of Columbus Ingleheart. Plaintiffs had judgment, and defendant appeals. Reversed.

Sweent, Ellis & Sweeney, for appellant. Little & Little and Reuben A. Miller, for appellees.

GRACE, J. This is a suit by Helen Ingleheart and her two infant children against William McClurg, seeking to recover damages of him for killing of Columbus Ingleheart, who was her husband, and the father of her infant children, on the 21st of April, 1895, charged to have been done (in the language of the statute) wantonly and maliciously. On the trial a judgment was rendered in favor of plaintiffs for $7,000, and to reverse that judgment this appeal is prosecuted.

The first objection urged by the appellant is that the court erred in overruling his application for a continuance on the affidavit filed by appellant. This affidavit spoke in a general way only of his inability to have his witnesses present at that term of court, but it signally failed to set forth with any kind of clearness what he could prove, or believed he could prove, by any one; nor did it give the name of a single witness whose testimony he deemed material for his defense; nor had he taken out any process or used any diligence to obtain the attendance of any one in his behalf. It was, on this point, so materially defective as to make it unnecessary to notice it further on this ground.

Another ground set up by appellant as a reason why he could not try his cause at that term was that he was in poor health; that he was suffering with Bright's disease, -feeble and nervous; that his condition had been aggravated by his confinement since the killing (April 21, 1895); that he had been unable to give bond, and so he could not hunt up or introduce his witnesses. In support of this affidavit the testimony of a physician was taken, who had at one time since his confinement in jail-some weeks before that time-attended appellant, and his evidence in a general way tended to support the application of appellant. The plaintiffs below then introduced another who had seen and examined the defendant but recently, who, after describing his appearance and symptoms with some detail, expressed the opinion that there was no trouble, and no danger in the appearance of defendant in court and proceeding to try his case. The jailer was then introduced, who testified substantially as this last physician did, and that defendant ate his food with relish, and in sufficient quantity; that he slept soundly: that, while some weeks before, defendant had complained of his kidneys, and that while there had been at one time some indi

cations in his urine of kidney trouble, yet that same had passed away; and that, in so far as he could judge, defendant was quite able to come into court, and to go through with the trial. Other testimony was introduced by plaintiffs tending in some degree to modify the statements of the physician who had spoken in behalf of defendant. It appears from the record that the court then expressed its wish that it had authority to send yet some other physician to examine the condition of appellant, and to report to court; and he made, on an adjournment, a suggestion to counsel for defendant to do that thing, but to which, it is said, they made no response. The judge overruled the motion. Appellant contends that his own affidavit was sufficient, and that it was error to permit same to be controverted by any testimony whatever. On this question we find the authorities to be somewhat in conflict. The rule of practice seems to be that, where the affidavit is in reference to absent witnesses, setting forth fully and with certainty what he expects to prove by them, giving their names, and showing diligence, that then this cannot be controverted by counter affidavits; and this rule is stated because, it is said, the Code has specifically pointed out the particular manner by which one desiring a trial can obtain same against such affidavit, and that is by admitting that the witnesses, if present, would testify as stated by the applicant; and that, the Code having specifically done this, it means that the matter as to the ground of continuance is no longer in the discretion of the court. This right of continuance by reason of the absence of important testimony, however, is the only case that is so specifically pointed out, and all other matters must necessarily be left to the sound judicial discretion of the court. Even as to this ground the rule has been questioned, and this court said in the case of Halsey v. Com., found in 1 Ky. Law Rep. 402: "That when the court is satisfied that the grounds for a continuance are merely for delay, such continuance will be refused, even though such ground be the absence of material witnesses." And in the case of Wells v. Com. (Ky.) 13 S. W. 915, the court said: "That while the continuance should be granted or refused on the affidavit of the person moving same, and that counter affidavits were not admissible where the application rested on the absence of material witnesses, yet that this rule should not be so restricted as to prevent the trial judge, where he has reasonable grounds from all the circumstances to believe that an imposition is being attempted, or a ruse being practiced, from ascertaining whether this belief is well founded." This right of the court to inquire has been affirmed in California in Kneebone v. Kneebone, 83 Cal. 647, 23 Pac. 1031. The court said: "It is settled law in this state that applications for a continuance are addressed to the sound discre

v.33s.w.no.1-6

tion of the trial court, and its action will not be disturbed on appeal unless the record affirmatively shows that it abused its discretion." In the case of Musgrove v. Perkins, 9 Cal. 212, the court said the same in substance. And in People v. Mortimer, 46 Cal. 114, the court said: "It has been held here that there is no abuse of discretion in refusing a motion for a continuance if the circumstances cast suspicion on the application, and induce the belief that it was intended only for delay." The same rule, and based on the same discretion, is in force in Iowa, the courts there taking the same distinction as noticed in California; that is, that where the application is based on the absence of material witnesses, then, to obtain a trial, the opposite party must admit the testimony, but that in all other cases the appeal for continuance is made to the sound judicial discretion of the court. See State v. Wells (Iowa) 17 N. W. 90, and other cases there cited. The same rule obtains in Texas. See Hyde v. State, 16 Tex. 445. A moment's reflection must convince any one that, where the matter is not specifically regulated by statute, it must necessarily be left with the trial court, in a sound judicial discretion. It would be a strange confusion of terms to say that the court designated by the constitution and laws of the state to hear and determine causes yet had not the judicial discretion and authority to first determine whether they properly stood for trial. Where else, possibly, could this authority be lodged than in the trial judge? Our constitution provides "that all courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy, by due course of law, and right and justice administered without sole denial or delay." Section 14. Of what benefit would this declaration be to keep the courts open for remedy of injuries if the defendant and his counsel only should say, "It does not suit our purpose, convenience, or pleasure to try the cause at this term of court;" and if they should, by law, be further permitted to say, "What I file you shall accept as true, and not controvert same; that we are to determine the time and place of trial and not the court"? All this sounds strangely in a land governed by law, and in a court supposed to be established to administer the same. We will not pursue this subject further than to say that appellant's motion for a contin uance was to be determined by the sound judicial discretion of the court, and that there has been no abuse of same in this case, under the facts as presented to the court. Neither would it have been proper for the pro tem. judge, who was called to the bench on the sickness of the regular judge of the court, to review the action of the judge on this matter.

Complaint is made by appellant of the court in giving instructions to the jury. The second one reads as follows: "At the time of

shot and killed Ingleheart, then had reasona-
ble grounds to believe, and that he did in
good faith believe, that his life was then in
danger, or that his person was then in dan-
ger, from violence at the hands of Ingleheart;
that then he had this right of self-defense,
etc. To this instruction it was appropriate
to add the usual limitation that accused
might then only take the life of the deceased
provided he had no other apparent and safe
means of so protecting his own life and per-
son than by so taking the life of the said
Ingleheart. This limitation is intended to em-
body, not so much the idea that on the facts
of this record as we find them it was first the
duty of appellant to retreat, as to impress
upon the jury that it is only where there is
a necessity, real or apparent, to accused, in
his own defense, to go to the extreme length
of taking the life of his adversary, that he
is excusable under the law for so doing. A
further limitation on this right is well ex-
pressed in the closing sentence of instruction
No. 4 as asked by plaintiffs' counsel in the
court below. It is in these words: "But if
the jury believe that defendant, with intent
to assault, beat, or kill deceased, sought and
first attacked deceased, and never abandon-
ed said attack until he shot deceased, the
jury should not find for defendant on the
ground of self-defense." The instruction giv-
en by the court stated these principles incor-
rectly. Instruction No. 3 as asked by coun-
sel for plaintiffs was correct, and should
have been given. It embraces the idea that,
unless defendant is
unless defendant is excusable upon the
ground of self-defense, then he is not excus-
able for the killing, though he did it under
such circumstances as would make it man-
slaughter only, and not murder. We think
the word "wantonly" will embrace every
wrongful and intentional killing. These in-
dications will enable the court readily to em-
brace the law of the case correctly in a new
trial.

his death the life expectancy of Columbus | dence whether the accused, at the time he Ingleheart was 28.6 years, and in estimating the actual damages the plaintiffs have sustained the jury will consider the probable net earnings of the deceased during that period, taking into consideration his capacity to earn and his business habits." This appears to have been given upon the authority and judicial knowledge of the court alone, and without any testimony having been introduced directly on the subject. The evidence upon which the court assumed this knowledge, as we suppose, was that Columbus Ingleheart was 34 years of age at the time of his death. No testimony was introduced as to the expectancy of his life. This estimate by the court of the expectancy of the life of Ingleheart may be presumed to have been taken from the life tables in use before the courts in Kentucky, and to be correctly stated; and, so far as this fact alone goes, it may make but little, if any, difference whether the same was given in evidence by an expert from the tables, or whether the court told the jury so as of its own knowledge, as the result would doubtless be the same,-28.62 years as the expectancy of the life of Ingleheart at the time of his death. The objection, however, to the instruction as it stands, is that it isolates this fact-this expectancy-from all, or nearly all, other facts, and circumstances with which, under the evidence, it properly stands connected,-as that the health of the deceased was only fairly good; that for a year past he had not been able to work continuously; that his habits were only fairly good; and that he was reasonably industrious,-and gives undue prominence to the same; and this has often been condemned by this court. We find that this instruction was not prepared or asked by appellees' by appellees' counsel, but that it was given of the court's own motion. There was an instruction asked on this point by counsel for appellees in the following language, embodied in Paper A, No. 1: "In estimating the actual damages sustained by plaintiffs (if any are found) they will consider the capacity of deceased to earn money, his prospects of life, considering his age, health, and occupation, and the consequent loss sustained by plaintiffs in his death; and if the jury find vindictive damages (as they may) same will be added to the actual damages (if any are found), and may be in such amount as the jury may decree proper in their sound discretion; not in all to exceed the amount claimed, $15,000." We see no objection to this instruction, and it should have been given by the court instead of No. 2, that was given. Again, instruction No. 3 as given by the court is objectionable, as it in effect makes the appellant's right of self-defense depend on the belief of the jury as to whether he was in danger at the time he killed Ingleheart, while the true rule is as expressed in instruction No. 4, asked by appellees, but not given by the court, for the jury to find from the evi

There was no error by the court below in permitting all the plaintiffs to join in this one suit. It was eminently proper that they should do so. Nor was there any error in holding that the burden of proof was on plaintiffs, nor in awarding them the closing argument. For the errors indicated, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

UNITED STATES MAIL LINE CO. v.
MCCRACKEN.
(Court of Appeals of Kentucky. Nov. 27,
1895.)

STATE COURTS - JURISDICTION COLLISIONS ON
NAVIGABLE WATERS-APPEAL
-HARMLESS ERROR.

1. A state court has jurisdiction of an action by the owner of a boat for damages received in a collision with another boat on a navigable river, a personal remedy only being sought. 2. In an action by the owner of a boat for

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