damages thereto from defendant's negligence, that persons having liens on the boat were made coplaintiffs is not ground for reversal.

3. In an action for damages from a collision between boats on a navigable river, defendant having run into plaintiff's boat, which was anchored near shore, the exclusion of evidence offered by defendant of the rules by which boats are controlled when running upon navigable streams is not ground for reversal.

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

Action by William McCracken and others against the United States Mail Line Company. There was a judgment for plaintiff McCracken, and defendant appeals. Affirmed.

Gaunt & Downs and J. A. Donaldson, for appellant. Winslow & Winslow, for appellee.

PRYOR, C.J. The law and facts in this case were submitted to the court, and a judgment rendered for the plaintiff for $120. The action is against the United States Mail Line Company for negligently running its boat into the barge of the appellee, anchored in the Kentucky river, near the shore, and materially injuring it. The court, after hearing the evidence, rendered the judgment complained of. The facts upon which the negligence was established and the judgment based are set forth in the finding by the trial judge, and, in our opinion, authorized the judgment; and his judgment constituted such a separate finding of both law and fact as contemplated by the Code, and the objection on that ground is unavailing. Nor was the court below without jurisdiction. This is a plain common-law action for negligence, the appellee seeking a personal remedy only. Digby v. Iron Co., 8 Bush. 166; Stewart v. Harry, 3 Bush. 438.

Some objection was made on account of a misjoinder of parties to the action, those having liens upon the injured boat being made plaintiffs. If this was error, it did not affect the right of recovery on the part of the real owner, and certainly placed the defendant in a position where no other claim could be asserted.

The rules by which boats are controlled when running upon navigable streams were offered to be proven by the officers of the boat committing the injury, and the testimony excluded; but, if admitted, it could not have affected the question at issue. The sole question before the court was, did the injury result from the negligence of the defendant's agents? And, the testimony authorizing the Judgment, it will not be disturbed. Affirmed.

NORTHUP et al. v. BLANTON et al. (DILLON et al., Interveners).

(Court of Appeals of Kentucky. Nov. 27, 1895.)

DEED-QUANTITY OF LAND CONVEYED-BOUND

ARIES.

A patent for 300 acres of land, the boundary of which included a 50-acre tract already patented to the same person, expressly

excluded the 50-acre tract. The patentee conveyed the 300 acres patented, excluding the 50acre tract, and his grantee conveyed to plaintiff without excluding it. Held that, though the deed of the patentee assumed to convey 300 acres, yet, as the 50 acres were expressly excluded, no title passed to them.

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

Action by Jay H. Northup and another against G. W. Blanton and others for possession of land. Isaac Dillon and others, claiming the land as heirs of plaintiff's grantor, intervened. From a judgment for the interveners, plaintiffs appeal. Affirmed.

Wallace & Lackey, for appellants. Thomas H. Hines, for appellees.

GUFFY, J. In 1852 Cabel May obtained a patent from the commonwealth of Kentucky for 50 acres of land in Johnson county, and in 1855 he obtained another patent for 300 acres in same county, the boundary of which included the 50 acres, but expressly excluding or exempting the 50-acre tract. In 1864 said May conveyed the 300 acres to Potter, excluding therefrom the 50 acres aforesaid. Afterwards Potter executed to one Williams a power of attorney authorizing him to sell and convey the said 300 acres, and Williams conveyed the 300 acres, including the 50 acres, to the appellants, Jay H. Northup and Fredrick Prentice. Some time afterwards appellees G. W. and J. M. Blanton were about to procure a patent to issue to them for the said 50 acres, and were asserting a claim thereto, and in 1890 appellants instituted suit against the Blantons, to enjoin and restrain them from obtaining patent to the land, as well as to enjoin them from entering said land and converting the timber to their use. Blanton made defense, and denied appellants' title to the land. During the pendency of the suit, Isaac Dillon and other heirs of Cabel May were, by appropriate proceedings, made parties to the suit, and claimed the land as heirs of said May. The court, upon final hearing, adjudged the land to said Dillon and others, as heirs of Cabel May, and from that judgment this appeal is prosecuted. Appellants' contention is that the whole land was conveyed by May to Potter, or should have been so conveyed. There is also some discrepancy claimed as to the location of the two tracts of land, but it is evident from the proof and papers in the cause that the 50 acres is inside the boundary of the 300 acres. It is also true that, excluding the 50 acres, Potter did not get 300 acres, and it also appears that May never listed for taxation any land in Johnson county after his sale to Potter. Yet, as he expressly excluded the 50 acres from the conveyance to Potter, and no proof was introduced that he in fact sold the entire boundary to Potter, it follows that Potter had no title to the 50 acres, and, not having title thereto, he could not convey any title to these appellants. Whether he has any claim against the

estate of May on account of a deficiency in the quantity of land embraced in the conveyance is a question which can only be decided when presented. It may be true that May only had a warrant for 250 acres of land, yet he obtained a patent for 300 acres. It is also contended that he had a warrant for 50 acres, and had same surveyed, and patent issued to him for the 50 acres before the 300 acres was patented to him. The 50 acres having been already patented to May, appellees Blanton had no right to have the same patented to them. It seems to us that the judgment of the court below is in accordance with the law and facts, and it is therefore affirmed.

CITY OF COVINGTON v. WOODS et al. (Court of Appeals of Kentucky. Nov. 30, 1895.)

CONSTITUTIONAL LAW-TAX ON OCCUPATIONSVALIDITY.

1. Const. § 181, provides that the general assembly may confer on municipal corporations the right to collect taxes, and may delegate to them the power to impose license fees on occupations. St. § 3058, subd. 2, which is headed, "License Tax on Occupations," provides that cities of the second class may license, tax, and regulate all vehicles used or let for hire. Held, that the tax, being in fact a tax on the occupation of the person owning the vehicle, and not on the vehicle itself, is valid, though an ad valorem tax is also imposed on vehicles in general.

2. Under St. § 3058, subd. 2, providing that cities of the second class may license, tax, and regulate cabs, wagons, drays, etc., "and all other vehicles used or let for hire," an ordinance taxing vehicles plying the streets, regardless of whether they are used or let for hire, is invalid as to those not so used.

Appeal from circuit court, Kenton county. "To be officially reported."

Petition by Thomas G. Woods and others against the city of Covington for an injunction. From a decree for complainants, defendant appeals. Reversed in part, and affirmed in part.

W. McD. Shaw, for appellant. D. A. Glenn, for appellees.

PAYNTER, J. Covington is a city of the second class. Section 3058, St. Ky., is part of an act for the government of cities of the second class in this commonwealth, and which, among other things, provides that the general council of cities of that class shall have power by ordinance "to license, tax and regulate *** livery, board, feed and sale stables, hansoms, cabs, hackney coaches, carriages, barouches, buggies, wagons, omnibuses, carts, drays, job wagons, and all other vehicles used or let for hire. ***" This under subdivision 2 of the section, with the heading, "License Tax on Occupation," etc. The general council of the city of Covington, by ordinance, seeks to compel owners of vehicles plying the streets of the city to pay license fees therefor. The provisions of the

ordinance embraced all vehicles owned by persons within or without the corporate limits of the city, making use of the streets for whatsoever purpose, except farmers marketing produce of their farms; and also there is excepted from its provisions vehicles which may be kept only as a reserve to take the place of a similar vehicle temporarily out of repair, and not in use. The provisions of the ordinance embrace all vehicles except as above stated, regardless as to whether they are used or let for hire. Section 181 of the constitution is as follows: "The general assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. The general assembly may by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations and professions, or a special or excise tax; and may, by general laws, delegate the power to counties, towns, cities, and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions." It is by virtue of the foregoing section of the constitution that the general assembly can delegate to general councils of cities the power to pass ordinances imposing tax, license fees, etc. The general assembly authorized the general council of such cities to levy and collect an ad valorem tax on the property subject to taxation within the territorial limits of the city, and by the terms of an ordinance an ad valorem tax is levied and collected on such property in the city of Covington, including the vehicles described in the ordinances. The constitution requires that taxes shall be uniform upon all property subject to taxation within the territorial limits of the authority collecting them. While this is true, express authority is conferred upon the general assembly to delegate to cities, etc., the power to impose and collect "license fees on * * * trades, occupations and professions.” Although an ad valorem tax is collected on the vehicles described in the ordinance, still the criticism cannot properly be made that there is a want of uniformity, or that there is double taxation, when the proper authorities impose and collect a license fee on such of it as may be used or let for hire. The ad valorem tax is on the property, and the license fee is on the occupation of the owner. When the ordinance provides that a given sum shall be paid as a license fee on a vehicle, it simply employs a method of fixing the amount of license fee one shall pay, by the number and character of his vehicles used or let for hire. It is in fact a tax on the occupation of the party owning or plying the vehicles in the city, though technically it may appear to be a tax on the vehicles. In the light of the constitutional provision, we must hold that the general assembly so intended it

thority collecting them.

to be, and that it is a tax on the occupation of the owner. It follows from this conclusion that the general assembly had the authority to and did delegate to the general councils of the cities of the second class the power to impose and collect the license fees. The general council must have concluded that the authority had been delegated by the general assembly to it to impose and collect of the owners of vehicles, regardless of the use to which their vehicles were put, license fees. The act delegated the power to license, tax, and regulate "livery, board, feed and sale stables, hansoms, cabs, hackney coaches, carriages, barouches, buggies, wagons, omnibuses, carts, drays, job wagons, and all other vehicles, used or let for hire." The plain words of the statute are decisive of the question as to the kind of vehicles for which license fees were to be imposed and collected. The statute itself furnishes the means of its own exposition, and the intent of the act clearly appears from reading it. If the general assembly had intended to have delegated the power to the general councils of cities of the second class to collect license fees on all persons plying vehicles on the streets, the qualifying words, "used or let for hire," would not have been used. It would have been easy for the general assembly to have said all vehicles plying the streets, without any particular designation, had it not been the purpose to limit the imposition of license fees to vehicles in certain use. The enumerated vehicles are the kind which are usually "used or let for hire" in cities. To make manifest and certain the kind of vehicles embraced, the act particularly named some, and used the general words, "other vehicles," to designate the balance of like character, but all of which must be "used or let for hire" to authorize the general council to impose the license fees. We conclude that the ordinance, in so far as it imposes license fees on vehicles used or let for hire, is valid. In so far as it attempts to impose license fees on vehicles not used or let for hire, it is invalid. The general assembly did not delegate the power to the general councils of the cities of the second class to impose license fees on vehicles not used or let for hire; and, if the general assembly has the constitutional right to grant such power (and we do not decide the question, as it is not involved in this case), then the cities of the second class could only exercise it after receiving such grant. It appears from the petition that some of the plaintiffs ply their vehicles for hire, and that others of them do not so use them; but the petition does not show the facts with reference to their several conditions in this respect; therefore the case is reversed, with directions that, if the parties desire to proceed further in the case, the petition be amended so as to show the facts. Upon doing so the court will dissolve or perpetuate the injunction as each party's rights may be made to appear as fixed by this opinion.

BURCHETT v. HERALD et al. (Court of Appeals of Kentucky. Nov. 30, 1895.)

JUDGMENT BY DEFAULT-PROOF OF DAMAGES. Civ. Code, § 126, provides, in substance, that allegations concerning value arising under a contract, or the amount of damages claimed or charged to have been sustained, in an action sounding in damages, need not be proven, if accompanied by an express promise to pay, or by a statement of facts showing an implied promise to pay, such value or damage, and that in all other cases proof must be heard, to authorize a verdict. Held that, in an action to recover land, where the petition alleged that defendant was in the unlawful possession, and that he unlawfully and without right detained possession from plaintiffs, "to their great damage, in the sum of $100," it was error to render judgment by default for the amount of damages claimed, without proof.

Appeal from circuit court, Floyd county. "To be officially reported."

Action by J. N. Herald and others against James W. Burchett to recover land and damages. From a judgment by default for the amount of damages claimed, and awarding a writ of possession, defendant appeals. Reversed.

James Goble, for appellant. Walter S. Harkins, for appellees.

GRACE, J. This suit was filed in the court below by the appellees, who are the children and heirs at law of J. W. Herald, deceased, against appellant, seeking to recover a certain tract of land described in the petition, which they say belonged to their ancestor, and which came to them by inheritance, and of which they charge "that appellant is in the unlawful possession, and that he unlawfully and without right detains the possession from appellees, to their great damage, in the sum of one hundred dollars." On the petition, summons was duly issued and served, and, appellant failing to appear and answer, a judgment was rendered by default ("the allegations of the petition being taken as true") for the recovery of the land, as described, and also, without any inquest by jury, or any evidence being heard by the court, for $100 in damages, and a writ of possession was awarded. The sole question presented by this appeal is whether, on the face of this petition, and on the allegation made as to the damage, the court was authorized to render judgment, without evidence either to the court or to a jury, for the amount claimed in damages. This question has often been decided by this court in the negative. This rule has been declared by the court under section 126, Civ. Code. While this section is awkwardly expressed, at best, and sometimes, we notice, it is not correctly quoted, yet when read correctly, and understood, its meaning is that allegations concerning value arising under contract, or the amount of damages claimed or charged to have been sustained, in an action sounding in damages, need not be proven, if

accompanied by an express promise to pay, or by a statement of facts showing an implied promise to pay, such value or damages. In all other cases proof must be heard, to authorize a verdict. An illustration of the statement of facts in reference to value, as raising an implied promise to pay, may be found in the usual action for goods sold and delivered, charged to be at the special interest and request of defendant, and that they were reasonably worth the price charged. Here the law implies the promise to pay, and no evidence to court or jury is necessary, to authorize a judgment for the amount claimed. But in actions in trespass or tort, -actions sounding in damages, it is difficult to connect the same with any promise to pay, or with such a statement as that the law will imply the promise to pay. The charge, throughout, is one not resting on contract, express or implied, but in tort, that the defendant is a wrongdoer from the beginning. In this suit nothing is stated to bring the case within the exception, where allegations of damage may be taken as true, and, by default, judgment be rendered without evidence before either court either court or jury. This view will be found supported by the cases of Daniel v. Judy, 14 B. Mon. 393; Mead v. Nevill, 2 Duv. 280; Slone v. Slone, 2 Metc. (Ky.) 339; Gould v. Bonds No. 2, 1 Bush, 189; and by Mize v. Jackson's Adm'x (Ky.) 32 S. W. 467 (recently decided). Further elaboration is unnecessary. Wherefore, it is adjudged that, in so far as the judgment appealed from is rendered for the $100 in damages, the same is reversed, and this cause is remanded for further proceedings consistent with this opinion.

TICHENOR et al. v. BREWER'S EX'R. (Court of Appeals of Kentucky. Nov. 30,

1895.)

WILLS-CONSTRUCTION-DESCRIPTION OF DEVISEES

-CHARITABLE BEQUESTS-DESIGNATION

OF BENEFICIARY.

1. Where a will devises to one a life estate, with remainder "to his descendants, if any, in fee, according to the laws of descent and distribution," otherwise to a charitable institution, a mother and a brother and sister of the half blood of the devisee cannot claim the remainder in fee as "descendants and heirs at law" of the devisee.

2. A devise to a Catholic bishop, "to be by him used for the Roman Catholic charitable institutions in his diocese," sufficiently designates the object and purpose of the devise.

3. A devise to the "Roman Catholic bishop of the city of Louisville" for a charitable use will sustain a devise to a Catholic bishop designated by act of incorporation as "Rt. Rev. Wm. Geo. McCloskey, Roman Catholic Bishop of Louisville.'

Appeal from circuit court, Nelson county. "To be officially reported."

Action by Bettie Tichenor and her two infant children against Lucy Brewer's executor for property devised by defendant's testator in trust for plaintiffs' son and half-brother,

GRACE, J. The questions presented by this appeal arise upon this clause of the will of Mrs. Lucy Brewer, who in 1888 died testate, domiciled in Nelson county, Ky., where her will was duly probated in 1889, after her death: "All the remainder of my estate of every kind whatsoever I give to William Johnson, in trust, and the income or profits of the same, or so much thereof as he may think proper, to be applied to the support and maintenance of Frederick Brewer, and any family he may have, during his natural life, and at his death then to his descendants, if any, in fee, according to the laws of descent and distribution; but if he should die without descendants living at the time of his death, then the property mentioned in this clause is to go to the Roman Catholic bishop of the city of Louisville, to be by him used for the benefit of the Roman Catholic charitable institutions in his diocese. Said trustee may permit said Frederick to have possession of all said property, but subject to the control of said trustee for the purpose aforesaid.” is alleged in the petition that plaintiff Bettie Tichenor was a niece of Lucy Brewer, and that she is the mother of Frederick Brewer, the devisee mentioned; that the two infant plaintiffs are the half-brother and half-sister of Frederick Brewer, being born of the same mother by her second marriage; that said Frederick Brewer is dead, having never been married, and, of course, leaving no descendants (no issue of his body) that could lawfully take under the will, after his death. But plaintiffs allege that she (being the mother of Frederick Brewer) and her two infant children born to her by a subsequent marriage, being the brother and sister of the half blood, are entitled to inherit this property under the law of descent and distribution, and that this property passed to them as the descendants and heirs at law of said Frederick Brewer, deceased. The property claimed is a small personalty, and a tract of land of 184 acres in Nelson county. Plaintiffs confuse their claim as descendants and heirs at law.

It

While it may be that the same persons are often both the descendants and heirs at law of an ancestor, yet it by no means follows that the terms "descendants" and "heirs at law" mean always one and the same person. In this case, where the whole estate of Lucy Brewer passed by her last will and testament, of course nothing, strictly speaking, could have descended in any event to any heir at law of her. And as to Frederick Brewer, he had only a life estate in any event, so that no part of this property devised to him for life by Mrs. Lucy Brewer could pass from him under the laws of descent to his heirs at