receive. On August 18, 1893, the council adopted an ordinance fixing the salary at $900 per year. This ordinance was published as required by law. On the 29th of August, 1893, the council, by ordinance, reduced the salary to $600 per year, but this ordinance was not published until February 24, 1894. Therefore, say counsel for appellee, the only valid ordinance fixing the salary was the one of August 18th. The ordinance published in February comes too late, they contend, to affect the appellee, who was elected and appointed when his salary was fixed at $900, and under the constitution no change in his salary could be made during his term of office. To all this we would be prepared to agree except for the fact that at the time the ordinance of August 29th was adopted, and until January 1, 1894, the appellee was the mayor of the city, and it was his duty as such "to see that the laws and ordinances of the city were duly observed and faithfully executed." It is true that it was the special duty of the clerk, immediately after any adjournment of the council, to publish all the ordinances passed at the meeting; but it was the duty of the mayor, who was a member of the council, also to see that he did so. Appellee was the executive officer of the city, and charged with the duty under the old charter and the new of seeing that the laws of the city were duly observed and faithfully executed. It is shown that he was present when the ordinance of August 29th was adopted, and threatened to veto it, but desisted, being a candidate for the judgeship at the time. Having this positive knowledge of the adoption of the ordinance, it was his duty, as well as the clerk's, to see that the publication was made as required by law. He cannot rely on his neglect to avoid the force of an ordinance confessedly regular in all respects except as to its publication. While it is manifest that the appellee intended no wrong in his failure to have the clerk observe this law requiring publication, the rule remains the same,-one cannot take advantage of his own wrong or neglect. The judgment sustaining the appellee's demurrer to the answer and amended answer of the

city, and granting the relief asked in the petition, is reversed, with directions for further proceedings consistent herewith.

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

FALSE SWEARING-INCRIMINATING TESTIMONY.

Under St. § 1174, declaring it an offense for one, on any subject in which he can be legally sworn, or on which he is required to be sworn, when sworn by a person authorized, to willfully and knowingly testify falsely, one required, against objection, to testify to incriminating matter, may be convicted of false swearing in regard thereto.

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

William Turner was acquitted on the charge of false swearing, and the commonwealth appeals to review an instruction. Declared erroneous.

W. J. Hendrick, for appellant.

EASTIN, J. This was a prosecution against the appellee, William Turner, under an indictment found against him by the grand jury of Graves county, charging him with the offense of false swearing, alleged to have been committed in the case of Commonwealth v. Harned. Appellee having been acquitted on the trial in the court below, this appeal is prosecuted by the commonwealth to settle the question as to the correctness of the following instruction, given by the court and excepted to by counsel for the commonwealth, to wit: "The court will further say to the jury that, if they believe from the evidence that, at the time defendant testified in the case of Commonwealth of Kentucky v. George Harned, he objected to testifying whether he cut George Harned, or whether he struck George Harned, or whether he had a knife at the time of the quarrel between him and George Harned, at Ebon Gilbert's, and the court compelled him to testify about these matters against his will, it was incriminating matter, about which he could not be legally required to testify, and they will find him not guilty." The charge against appellee, in the indictment, the form and sufficiency of which are not put in question, was that he had willfully and knowingly sworn falsely when interrogated on each of the three points referred to in this instruction, viz. as to the cutting, the striking, and the having a knife, in the difficulty which had occurred between him and Harned. It will, therefore, be seen that, if the charges had been fully made out by the commonwealth in each of the three particulars specified, yet, under the law as given by the court in this instruction, the jury were bound to acquit appellee, provided, only, that they believed that he had objected to testifying to these matters. Was the court below author

ized to give this instruction? It will be seen that, in doing so, the court has assumed the right to determine the question whether or not the testimony given by appellee against his will in the Harned Case was criminating testimony, and whether or not the court in that case acted legally in requiring him to testify about these matters. Not only has it assumed to pass upon these questions, both of which had been passed upon in the other case, but it has determined them both in direct opposition to the conclusion reached by the court in the Harned Case. If that court had considered the testimony as criminating, it may be assumed that it would have respected the privilege of the witness, and would have exempted him from testifying. That this is a question addressed to the

sound judgment of the court in which the testimony is called for, we think there can be no doubt, and it would certainly be a dangerous practice to allow another court of no higher authority to decide that the first court has compelled the witness to testify as to matters "about which he could not be legally required to testify."

But this instruction further assumes that, if a witness be required to testify against his will to matters which may criminate him, then, no matter how false his testimony may be, he cannot be prosecuted under the statute for false swearing. Can this view of the law be sustained? We know of no direct authority on this question, and have been cited to no case on the subject; but it seems to us that the statute under which this prosecution was instituted requires that a witness who may be compelled against his will to testify, under penalty of placing himself in contempt of court, shall, when he does testify, still depose the truth. That statute is in these words, to wit: "If any person, in any matter which is or may be judicially pending, or which is being investigated by a grand jury, or on any subject in which he can legally be sworn, or on which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose or give in evidence that which is false, he shall be confined in the penitentiary not less than one nor more than five years." St. Ky. § 1174. The language which we have italicized seems to cover the case under consideration. The penalty attaches to false swearing on any subject "on which he is required to be sworn," and there is no denial that the witness was, in this case, required by the court, in the exercise of its judgment, to be sworn. Nor does this mean simply on a subject in which he is required by law, or legally required, to be sworn. The sentence immediately preceding this provides expressly for those cases "in which he can legally be sworn," and the fact that it is immediately followed by this other sentence, in the disjunctive, "or on which he is required to be sworn," shows clearly, as we think, a purpose on part of the law-makers to provide for two different and distinct states of case. One of these relates to subjects only "in which he can legally be sworn," while the other relates to those on which he may be "required to be sworn." To give any effect whatever to this latter clause, it must be construed to cover a class of cases not embraced by the former clause, and this, in our opinion, is the true construction. In this case, appellee was "required to be sworn" by the court in which he was testifying as a witness, and, having recognized the authority of the court to require it, and having sworn on this subject, he was liable to the penalty prescribed by the statute if he swore falsely. While, therefore, any criminative testimony given by a witness under such cir

cumstances might not be used to convict him in a prosecution for the offense of which he had thus criminated himself, yet, where he testifies, whether willingly or unwillingly, he must tell the truth, or make himself amenable to the law against false swearing. In the statute of this state against gaming it is provided that a witness shall not be exempted from testifying on the ground that his testimony may criminate himself, though, by the terms of the same statute, he cannot be prosecuted "for any gaming so necessarily disclosed in his testimony." But it is to be observed that it is further expressly provided, by that statute, that "no such testimony given by the witness shall be used against him in any prosecution except for false swearing or perjury." St. Ky. § 1973. Here, then, we find the manifest policy of our laws to punish, under all circumstances, this heinous offense of false swearing. By the express terms of the statute, the witness in these cases who may criminate himself is not only exempted from prosecution for the particular offense disclosed by his testimony, but this testimony can be used against him for no other offense except that of false swearing or perjury. The policy is a sound one, and, in the interest of good morals, and for the protection of society, should be upheld and fostered by the courts. For the reasons assigned, we think the lower court erred in giving the instruction complained of, which is ordered to be certified to the court below as the law of this case.

ATTACHMENT-ISSUANCE-VALIDITY.

1. Civ. Code, § 39, provides that an action is commenced by filing a petition, and causing a summons to be issued or a warning order to be made. Section 194 provides that plaintiff may at or after the commencement of the action have an attachment. Held, that where a petition was filed against a nonresident, and a warning order obtained, an attachment afterwards issued and levied on defendant's property was valid.

2. The fact that plaintiff, at the time he obtained the attachment, filed an amended petition, and that such petition asked that defendant be again warned, and that no summons or warning order was then issued against defendant, did not affect the attachment, where the amended petition was not necessary, and stated no new cause of action.

3. The fact that an order of sale of attached land is made before an affidavit is filed showing that defendant has no personal property in the state known to affiant, or not enough to satisfy plaintiff's demand, does not render the judgment in the attachment suit void, or affect the lien.

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

Action in attachment by John Fremd against W. M. Ireland, in which there was a judgment for plaintiff. From a subsequent judgment making W. O. Moody a defendant, allowing him to consolidate with such ac

in court. Section 194 of the Code provides that the plaintiff may, at or after the commencement of an action, have an attachment against the property of the defendant, etc., which appellant proceeded to procure September 15, 1892, by filing affidavit and executing bond as required by law. It is true that he also filed an amended petition at the same time, but which need not to have been done to obtain the attachment. No new cause of action was stated; hence no new warning order or summons was required to be issued, although appellant in his petition asked that defendant be again warned, and also caused a summons to be issued against defendant and the Moodys. The latter fact seems to have escaped the notice of appellees. Appellant's attachment was issued and levied before that of the Moodys, and therefore was superior thereto, and the court should have so adjudged. The failure of The failure of plaintiff to file the affidavit before judgment for sale of the real estate did not render the judgment void, nor in any way operate to annul the lien acquired by the levy of the attachment. The court had no power at the January term, 1893, to set aside the judgment and order of the October term, except in the manner provided by law; and the attempt to do so was erroneous, and could not legally affect or destroy appellant's lien. For the errors indicated, the judgment appealed from is reversed, and cause remanded, with directions to set the same aside, and to adjudge appellant's lien superior to Moodys', and for further proceedings consistent with this opinion.

ing a building. An injunction is also asked to prevent the commission of other trespasses upon the same property. The appellants, who are the trustees of the town of Bardwell, claim that the lot upon which the entry was made had been dedicated, or so much as was necessary, by the appellee for one of the streets of that town, and, as such, had been used by the public and controlled by the town authorities. The entire question was submitted to the chancellor, and a judgment perpetuating the injunction entered. This lot was a vacant common, and traveled over by the public for a number of years, but there is a want of evidence showing that it had ever been dedicated for public use, or that such was the purpose of the appellee. The trustees of the town had, on their record books, established certain streets, one of which, if extended, would pass through the lot owned by the appellee; but there is no testimony showing that appellee ever parted with his title, or that he had done any act that would estop him from asserting his ownership. The use of this common was merely permissive, and not an adverse claim, and the fact the board of trustees established the street by an order on the books of the town did not divest appellee of title, and, in fact, this record shows the appellee was constantly asserting this right of property in himself, and the acts relied on as evidence of a dedication are all contradicted by the appellee. The court below having passed on the facts, and his judgment being proper, it is now affirmed.

TRESPASS-SUFFICIENCY OF EVIDENCE.

In trespass against trustees of a town for entering on and removing fences and lumber from plaintiff's lot, it appeared that defendants had, on their record books, established certain streets, one of which, if extended, would pass over such lot, which was a vacant common, and traveled over by the public for many years; but there was no evidence that it had ever been dedicated to public use, that such was plaintiff's purpose, or that he ever parted with his title or did any act that would estop him from asserting his ownership. Held, that a judgment for plaintiff was proper.

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

Action of trespass by A. F. Elsey against W. C. Harelson and others. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Ray, for appellant. Nichols & Woden, for 'appellee.

PRYOR, C. J. This is an action of trespass for entering upon the premises of the appellee and removing his fencing and lumber placed upon his lot for the purpose of erect

HALE V. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 3, 1895.) BURGLARY-INDICTMENT-DESCRIPTION OF PREMISES-INSTRUCTION-REFERENCE TO FACT IN EVIDENCE.

1. An indictment under St. § 1164, providing that, if any person shall break into any storehouse, whether such place be or not a depository for goods, with intent to steal, etc., need not allege that there were, at the time of the breaking, any goods in the storehouse.

2. An indictment charging that defendant broke the storehouse of a person named, in a certain county, sufliciently described the storehouse.

3. On a trial for breaking a storehouse with intent to steal, it was not prejudicial for the court, in explaining the degree of force necessary to constitute a breaking, to state that it could be committed by breaking a pane of glass, though it appeared that a pane of glass was broken in the storehouse (where defendant admitted he was) by another than the owner, by means of which an entrance could be effected. Appeal from circuit court, Livingston coun

ty.

"Not to be officially reported."

Bud Hale was convicted of breaking a storehouse with intent to steal, and appeals. Affirmed.

J. C. Hodge, for appellant. John K. Hendrick and Wm. J. Hendrick, for the Commonwealth.

LEWIS, J. Appellant was indicted and convicted for the offense of feloniously breaking and entering a storehouse, with intent to steal therefrom, committed as follows: "The said Bud Hale, in said county of Livingston, in May, 1894, did feloniously break and enter the storehouse of John B. Ledberry, a depository for goods, wares, and merchandise, with intent to steal therefrom property of value." It is argued by counsel the indictment is defective, because, first, it does not contain a statement there were at the time the storehouse was broken any goods, wares, or merchandise in it, and, second, there is not sufficient description of the storehouse.

Section 1164, St. Ky., under which the indictment was found, provides: "If any person shall feloniously in the night or day break any warehouse, storehouse, office, shop or room in a steam-wharf or other boat, whether such place be or be not a depository for goods, wares and merchandise, and whether the goods, wares and merchandise be or be not exposed for sale in such place, with intent to steal, or shall feloniously take therefrom or destroy any goods, wares, merchandise or other thing of value whether the owner or other person be or be not in such house, office, room or shop, he shall be confined in the penitentiary not less than one nor more than five years." In order to make out, in meaning of that section, the crime of which appellant was convicted, it must be charged in the indictment, and of course proved, that the accused did feloniously break some such place as is there described, with intent to steal therefrom property of value. But it is not necessary to charge he did actually steal or take away anything. Nor need it be charged, or even proved, except as a fact bearing on the question of guilt of the accused, that the place broken contained at the time any goods, wares, merchandise, or other thing of value; for a person may, under mistaken belief that a place ordinarily used as a depository for goods, wares, or merchandise contains property the subject of larceny, feloniously, and with intent to steal, break it, and be consequently as guilty of the offense in question as if the place had actually been full of goods, wares, and merchandise. The indictment is therefore not defective for the first reason suggested by counsel.

Nor was it necessary, under circumstances of this case, to give a more particular description of the house charged to have been broken than to state, as was done, that it was the storehouse of John B. Ledberry, in Livingston county; for thereby was appellant, being a person of common understanding, enabled to know what place was intended, and was the court enabled to pronounce judgment on conviction, according to right of the case. The instructions, think, embody a full and correct exposition of law applicable to this case. It, however, appeared in evidence there was a hole in the

window, caused by breaking a pane of glass, not done, as he testified, by owner of the storehouse, through which the hand of a person might have been thrust far enough. to reach and turn key of the back door, and in that way enter the storehouse; and the lower court, undertaking, in one of the instructions given, to explain and illustrate the character and degree of force necessary to constitute a "breaking," as mentioned in the indictment and also a preceding instruction, indicated, as one of the various modes enumerated by which the act could be committed, "breaking a pane of glass." This court has frequently held it improper and prejudicial for a court, in trying either a civil or criminal case, to single and give prominence to any particular fact proved that bears upon the issue, which it is the exclusive province of the jury to try and determine. But it was the duty of the court, in this instance, to instruct the jury as to legal meaning of the term "breaking"; and reference to the particular mode by which appellant might have broken and entered the storehouse, where he admits he was, was not improper or prejudicial, because it did not amount to expression of the court's opinion, or even suggestion, that he did in fact break the pane of glass.

In our opinion there was no error of law on the trial, wherefore the judgment is affirmed.

CHILDRESS et ux v. CHAPPELL et al. (Court of Appeals of Kentucky. Dec. 4, 1895.) Appeal from circuit court, Trigg county. "Not to be officially reported."

Action by J. J. Chappell against I. N. Childress and wife to foreclose a mortgage. From the judgment confirming the sale, defendants appeal, Cox, the purchaser, being made an appellee. Reversed.

W. C. Bullitt and Robert Crenshaw, for appellants. R. A. Barnett and J. E. Kelley, for appellees.

HAZELRIGG. J. Four tracts of land were sold in a body to satisfy the mortgage of the appellee Chappell, bringing just enough to pay the debt, interest, and costs. It appears, however, that one of the tracts, with the consent of the mortgagee, had been sold to one Cox for $450, and the note for the purchase price was held by Chappell as collateral security for his mortgage debt. This fact was not disclosed by the petition or judgment, but it is probable the bidders for the land knew it, and hence the commissioner, as his report shows, got no bid for the tract sold to Cox. If no one would bid for this tract when the land was offered in tracts separately, it is probable that, when the land was offered as a whole, no value was placed on this tract, though it was, in fact, worth at least $450. On the trial of the exceptions to the sale, a bidder offered to take the three tracts, and pay the debt, interest, and costs, and some $125 in addition. This will leave the purchaser, Cox, unmolested, satisfy the appellet's debt, and work no injury to any one. The purchaser at the decretal sale is made an appellee, but files no brief, presumably not insisting on his purchase. The appellants, however, must pay the costs of this appeal. Judgment reversed, with directions to set the decretal sale aside, and for proceedings consistent with this opinion.