Action by the administrator of Wyatt Whitlow to settle his intestate's estate. Judgment sustaining exceptions to commissioner's report of settlement, and T. P. Whitlow's administrator appeals. Affirmed.

Proctor & Herdman, John W. Ray, and Wright & McElroy, for appellant. John M. Galloway, for appellee.

O'REAR, J. One T. P. Whitlow sustained personal injury on the Louisville & Nashville Railroad, in Tennessee, prior to November, 1889, he being then a minor, and in the employ of the railroad company. From this injury he died. His father, Wyatt Whitlow, who claimed to inherit as sole heir at law of the deceased son, and who qualified as his administrator in Kentucky, contracted with B. F. Proctor, an attorney at law, to take charge of and prosecute the claim against the railroad company for damages resulting from the injury and death of the son. This .contract, which was dated November 20, 1889, provided that Proctor was to have a sum equal to one-third of the recovery if the claim was compromised, or if suit was instituted and successfully prosecuted in the circuit court of Warren county, Ky.; but if suit on the claim were required to be and was instituted in Tennessee, or if in Kentucky and appealed, then the attorney was to receive a sum equal to one-half of the recovery; and all compensation was contingent upon success. The contract further provided: "In event of recovery, the necessary expenses of said Proctor incurred in this behalf are to be first paid, and his fee is to be estimated on the balance, being equal to onethird or one-half of such balance as aforesaid." Under this contract Proctor instituted an action on behalf of Wyatt Whitlow, as administrator of T. P. Whitlow, against the Louisville & Nashville Railroad Company in the Warren circuit court of Kentucky. He employed Judge R. Rodes to assist him in the prosecution of the case, who did participate in the trials below. The trials there finally resulted in a verdict and judgment for $2,000 in favor of Whitlow, administrator, against the railroad company. From this judgment the railroad company prosecuted an appeal to the superior court, and superseded the judgment. This appeal being dismissed, with damages, the railroad company then prosecuted an appeal to this court, which was affirmed. Proctor retained as assistants in the superior court and this court in that case Mr. E. W. Hines, of the Frankfort bar, and subsequently, in the matter of appeal in this court, Judge W. S. Pryor. To these three attorneys Proctor agreed to pay, and did pay, a sum aggregating $400 for their services named. The railroad company paid to Proctor, as attorney for the administrator, the full amount of this judgment, damages and costs, aggregating some $3,206.76. In the meantime Wyatt Whitlow had

died, and L. R. Porter was appointed and qualified as administrator de bonis non of T. P. Whitlow, deceased, and C. G. Jones and George Franklin appear to have qualified as administrators of Wyatt Whitlow. This action seems to have been instituted in the Warren circuit court for the purpose of settling the estate of Wyatt Whitlow, and was referred to the commissioner for the purpose of settling with L. R. Porter as administrator de bonis non of T. P. Whitlow, Proctor appearing to have paid over to Porter the sums received by him on this claim from the railroad company. The commissioner charged Porter with total amount paid above stated, and credited him by various items of costs and expenses incurred in the prosecution of the suit against the railroad company, including the fees of $400 to attorneys above named. To this report of settlement Jones and Franklin, as administrators of Wyatt Whitlow, filed exceptions as to payment of the $400 fees, and their allowance as credits to the administrator. The result of this was to require the payment of one half of these fees by Wyatt Whitlow's estate. The trial resulted in a judgment sustaining the exceptions, and directing L. R. Porter, as administrator of T. P. Whitlow, to pay to the court's commissioner the balance in his hands as shown by the settlement, and in addition the sum of $200, the one-half of the fees paid to Rodes, Hines, and Pryor. The court furthermore adjudged upon the issue as to whether the fund coming from Porter, administrator, belonged to Wyatt Whitlow's estate, or to Nancy, his wife, that it all belonged to Wyatt Whitlow's estate. The correctness of this last feature of the judgment is not now here for consideration, the sole questions presented on this appeal being whether the estate of Wyatt Whitlow is entitled to the money it was required to pay to Attorneys Pryor, Rodes, and Hines, or whether the administrator should be credited by such payment as having been properly made under the authority of the contract with Proctor. Incidental to the determination of this question, the court is required to pass upon the competency of the testimony of Mr. B. F. Proctor concerning the alleged understanding between him and the decedent, Wyatt Whitlow, as to their sharing in the payment of the fees to the attorneys named. It is asserted by Proctor that he and Wyatt Whitlow agreed, subsequent to the written contract in evidence, that it was necessary to retain additional counsel in the prosecution of the claim, and that fees to be paid them were to be borne equally by Proctor and Whitlow. On the trial of the exceptions, Proctor attempted to testify to this oral transaction with decedent, Wyatt Whitlow, which was objected to by appellees, and the objection was sustained, to which appellant excepted.

Under section 606, subsec. 2, Civ. Code Prac., it is provided that "no person shall

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testify for himself concerning any verbal statement of, or any transaction with, or any act done, or omitted to be done by, one who 'is * * dead when the testimony is offered to be given," etc. It is contended that, inasmuch as Proctor was not a party to this litigation, the provision of the Code above did not apply. We are of the opinion that the court below ruled properly in rejecting this testimony. This court, in an opinion delivered by Chief Justice Pryor in Hopkins' Adm'r v. Faeber, 86 Ky. 223, 5 S. W. 749, wherein this question was involved, said: "The fact that the personal representative or the trustee may have an interest in the recovery does not affect the question involved, or make those interested with him competent witnesses. In testifying in this case the witness was testifying for herself against the estate of the decedent, and her testimony controlled the extent of the recovery." The same rule of construction is announced in the case of Apperson's Ex'x v. Bank (Ky.) 10 S. W. 801. The court, in considering the section, said: "While we do not think it was intended to limit the application of that section to the testimony of a person a party to, and directly interested in, the result of a suit with a representative of one who is dead, yet, to render such testimony incompetent, it must appear that it will have the effect of directly or indirectly benefiting the person giving it pecuniarily." In this case Proctor collected the money from the railroad company, and paid part, or $400, of it to the attorneys named, and, after paying other expenses incident to the suit, deducted his fee of one-half of the remainder. Therefore, unless his testimony should prevail, he would be compelled to reimburse the administrator by the amount thus paid the other attorneys named. conclude that he was incompetent as a witness concerning this particular transaction with decedent.

We

This leaves, then, but one question to be determined on this appeal, and that is whether the part of the contract quoted above authorized the expenditure as "expenses" to the assisting attorneys. Unless the words,

"the necessary expenses of said Proctor incurred in this behalf," include such items, then they are not provided for in the contract. It will be noticed that the decedent was contracting for such legal services as were probably necessary to recover on his claim against the railroad company, and it must be admitted that he made a liberal provision in this respect. The contract does not intimate that additional counsel would be required, but anticipates other expenses, for traveling and such items, as the contract contemplates that the action might have to be brought in Tennessee, or, if instituted in Kentucky, might have to be followed or taken to the court of appeals. The fact that Wyatt Whitlow was present at the trial when Rodes participated, and made no objection to

his so acting, is not a sufficient circumstance from which to draw a conclusion that he knew he was to pay for Rodes' services. It is just as reasonable to presume that he expected Proctor to furnish all legal services needed under his contract, and that he had made some arrangement with his co-counsel; and this assumption is borne out by the testimony of Rodes, who says that his contract was with Proctor alone, and that Proctor settled with him the fee. It follows from the foregoing that the judgment must be affirmed, which is done, with damages.

BROOKS v. SPAIN.1

(Court of Appeals of Kentucky. Jan. 10, 1901.)

WITNESSES-AGENTS-TRANSACTION WITH PERSON SINCE DECEASED.

An agent may testify for his principal as to a transaction had by him as such agent with one who is dead at the time he offers to testify. Appeal from circuit court, Nicholas county. "Not to be officially reported."

Action by W. F. Brooks against John Spain to recover land. Judgment for defendant as to improvements on the land, and plaintiff appeals. Affirmed.

Norvell & Robinson, for appellant. Kennedy & Williamson, for appellee.

BURNAM, J. This was an action to recover a quarter of an acre of land, on which there had been erected a dwelling house which had been used as a toll house by the Headquarters & Steeles Run Turnpike Company. Appellee made no defense to the recovery of the land, but claimed to have purchased the improvements on the lot from the turnpike company, and that they had erected on the lot, pursuant to a verbal agreement with the father of appellant that they might remove the improvements whenever they saw fit to do so. This verbal contract was proven by a former president of the turnpike company, and the admission of his evidence to establish the parol agreement with the deceased father of appellant is the only The connection beground of complaint. tween the witness and the turnpike company had been severed for more than 20 years, and he had removed to a distant state. The fact that he was at one time president of the corporation did not disqualify him from proving the agreement with the ancestor of plaintiff, under which the company erected the improvements and took possession of the land. He was simply the agent of the corporation to acquire the property, and as such is competent to testify concerning the transaction between the company and one who was dead at the time the testimony was offered to be given. See Cobb's Adm'r v. Wolf, 96 Ky. 418, 29 S. W. 303; Fidelity Casualty Co. v. Goff's Ex'x (Ky.) 30 S. W.

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

626; Apperson's Ex'x v. Bank (Ky.) 10 S. W. 801. For reasons indicated, the judgment is affirmed.

WELSH v. COMMONWEALTH.1 (Court of Appeals of Kentucky. Jan. 9, 1901.) CRIMINAL LAW-REVERSIBLE ERROR-SELFDEFENSE-INSTRUCTIONS TO JURY-IMPEACHMENT OF WITNESS.

1. There can be no reversal in a criminal case for an error in refusing to grant a new trial.

2. The omission of any reference to the law of self-defense in an instruction as to murder was not prejudicial error, where the law on that subject was fully stated in a separate instruction.

3. It was error to permit the commonwealth to impeach a witness for defendant by proving by an officer that he had a warrant for the arrest of the witness, and then allowing the prosecuting attorney to read the warrant to the jury.

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

John Welsh was convicted of the offense of murder, and he appeals. Reversed.

W. B. Moody and Cureton & Mitchell, for appellant. Robt. J. Breckinridge, for the Commonwealth.

GUFFY, J. The grand jury of Henry county, at the September term, 1898, found and returned an indictment against the appellant accusing him of the crime of murder committed by unlawfully, feloniously, and with malice killing Charles Mahoney. At the January term, 1899, it appears that a trial resulted in a failure of the jury to agree upon a verdict, and the appellant was permitted to give bail in the sum of $1,000. At the May term, 1900, a trial resulted in a verdict finding appellant guilty of murder, and fixing his punishment at imprisonment for life in the penitentiary, and judgment was accordingly rendered sending him to the penitentiary for life. Numerous grounds for new trial were filed and relied on, but the court overruled the motion; hence this appeal.

We deem it unnecessary to discuss at length all the grounds relied on for a new trial. So far as the disqualification of jurors is concerned, it is sufficient to say that the trial court heard or read the evidence in regard thereto, and we are not inclined to hold that his ruling in respect thereto was errone

ous.

We have no jurisdiction to reverse on account of the refusal of the trial court to award a new trial.

Appellant complains of the instructions. It is true that instructions 2 and 3 instruct the jury as to the punishment to be inflicted upon appellant in the event he killed Mahoney,-in one state of case, the punishment to be death or imprisonment for life; in another state of case, to be imprisoned from 2 to 21 years. The fourth instruction is

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

to the effect that if appellant was guilty beyond a reasonable doubt, but if the jury had a reasonable doubt as to the degree of his offense, they should find him guilty of voluntary manslaughter. Appellant insists that the law of self-defense should have been embodied in No. 2, if not in No. 3, and argues that the jury might not fully comprehend the whole instruction. But instruction No. 5 stated fully the law of self-defense, and we must assume that the jury read and considered all the instructions together, and understood the same. The court might have properly instructed as to the law of defense before giving all three of the instructions mentioned, but we do not think there is any reversible error in the giving of the instructions as given.

It is earnestly contended for appellant that the court erred to his prejudice in the admission of testimony. It appears that by agreement of counsel the evidence of Crosby Louden, given for the defendant on the former trial, was read to the jury, Louden not being present. His testimony tended to contradict some of Miss Edna Taylor's evidence, who was a very important witness for the commonwealth. After Louden's testimony was read, the commonwealth was allowed, over the objection of appellant, to prove by the deputy sheriff that he had a warrant for the arrest of the witness Louden, and then allowed the commonwealth's attorney to read the warrant to the jury. The warrant was dated 21st of March, 1900, and charged him with detaining a female under 21 years of age with intent to have carnal knowledge of her. The evident object was to invalidate the testimony of said Louden, or to affect his credibility, and no doubt materially lessened the weight of his evidence, if it did not wholly destroy the same. Such a mode of impeaching the testimony of a witness is prohibited by section 597 of the Code. See, also, Leslie v. Com. (Ky.) 42 S. W. 1095; Lewis v. Com., Id. 1127. The evidence in this case is quite conflicting. If the jury had believed the testimony offered by appellant to the exclusion of the other evidence, an acquittal might have resulted. Hence it was quite important to have all incompetent evidence excluded. For the reason indicated, the judgment is reversed, and cause remanded for a new trial upon principles consistent herewith.

TARVIN et al. v. WALKER'S CREEK COAL & COKE CO.1 (Court of Appeals of Kentucky. Jan. 11, 1901.) RECEIVERS FACTS AUTHORIZING APPOINTMENT-PREVENTION OF REPEATED TRESPASSES-OTHER REMEDY.

Civ. Code Prac. § 298, providing for the appointment of a receiver "on the motion of any party to an action who shows that he has,

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

or probably has, a right to, a lien upon, or an interest in, any property or fund, the right to which is involved in the action, and that the property or fund is in danger of being lost, removed or materially injured," applies only to personal property, or to property on which the plaintiff appears to have a lien for the enforcement of some legal demand. But, even if this were not true, the court would not be authorized to place land in the hands of a receiver to prevent defendants from trespassing thereon, and from confusing plaintiff's boundary, injunction being the proper remedy.

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

Action by the Walker's Creek Coal & Coke Company against R. K. Tarvin and others for the appointment of a receiver. Judgment

for plaintiff, and defendants appeal. Reversed.

H. L. Wheeler, for appellants. Geo. W. Gourley and Strother & Gordon, for appellee.

GUFFY, J. The appellee, on the 19th day of January, 1899, instituted this action in the Lee circuit court against the appellants, in which, at great length and particularity, it was alleged that the plaintiff was the owner of a certain boundary of land in said county, and in possession thereof, and that the defendants were fraudulently and illegally attempting to run and confuse the lines of plaintiff's property, and also taking and carrying away a large amount of valuable timber from said land, and were in possession of said land. It is also alleged that the defendants were insolvent, and that, if they were enjoined from committing the trespasses complained of, others would engage therein. It is also charged that appellants were fraudulently combining to run and mark lines tending to confuse plaintiff's boundary. It is also claimed that this suit should properly be brought in equity. The answer of defendants is a complete denial of all the averments of the petition, including the right of plaintiff to prosecute this suit in equity, and claiming that they are the real owners of the land in dispute. It further appears that on January 27, 1899, the plaintiff obtained from Judge D. B. Redwine, judge of the Lee circuit court, in vacation, an order placing the property in contest in the hands of a receiver, and from that judgment this appeal is prosecuted.

It is the contention of appellee that section 298 of the Code of Practice, which is as follows: "On the motion of any party to an action who shows that he has, or probably has, a right to, a lien upon, or an interest in, any property or fund, the right to which is involved in the action, and that the property or fund is in danger of being lost, removed or materially injured, the court, or the judge thereof during vacation, may appoint a receiver to take charge of the property or fund during the pendency of the action, and may order and coerce the delivery of it to him. The order of a court, or of the judge thereof, appointing or refusing to appoint a receiver,

shall be deemed a final order for the purpose of an appeal to the court of appeals: provided, that such order shall not be superseded,"-authorizes the court to place the property in question in the hands of a receiver, while it is the contention of appellant that the Code did not authorize any such proceedings. We are not inclined to the opinion that the section supra authorizes the court to give a receiver charge of a parcel of land the title to which is in litigation. It seems to us that the provision of the Code refers only to personal property, or to property upon which the plaintiff prima facie appears to have a lien for the enforcement of some legal demand. But, even if this be not true, the court would not be authorized to place a tract of land in the hands of a receiver, unless the plaintiff had no other adequate means of protecting his rights or preventing irreparable injury. In this case, however, it is perfectly manifest that, if the plaintiff has any right or interest in the matter in controversy that was likely to suffer irreparable injury, it could have effectually prevented the injury by obtaining an injunction restraining defendants from any further trespass or injury to the property in question. And it is a sound rule of equity and law that no receiver should be appointed to take from a defendant real property in his possession, and to which he had and claimed a prima facie right, unless such order was indispensably necessary to protect or preserve the apparent rights of the plaintiff. In this case, from the pleading and affidavits filed, it does not seem to us that the plaintiff has even presented by a preponderance of evidence a prima facie right to have a receiver appointed, even if the court had jurisdiction to appoint a receiver in such a case. If, in a case like this, a receiver should be appointed to take charge of real estate, the defendant might for years be kept out of possession of his property, to his great damage, for which he would have no remedy. Such a result ought not to be allowed. For the reasons indicated, the judgment appealed from is reversed, and cause remanded for proceedings consistent herewith.

notary public, as the office is created by statute, and not by the constitution.

3. Ky. St. § 3721, requiring every certificate of a notary public to state the date of expiration of his commission, is directory merely; and the failure of the officer to comply with this provision does not invalidate his certifi

cate.

4. An order of attachment may be issued simultaneously with the summons in the action.

5. Under Civ. Code Prac. § 201, providing that "orders of attachment may be issued to the sheriff of any county and several of them may at the option of the plaintiff be issued at the same time or in succession," where an order of attachment has been issued and has proved fruitless, another may be issued without a new atidavit and bond, though the first order may have been issued prematurely.

6. An attachment issued upon the affidavit of an attorney when one of the plaintiffs was in the county was void, though the attorney believed that. all the plaintiffs were absent from the county, and so stated in his affidavit.

7. Where an attachment was void because it was issued upon an affidavit made by an attorney when one of the plaintiffs was in the county, the court should have permitted an amended affidavit to be filed, but not so as to affect the priority of a lien created by the levy of another attachment prior to the filing of the amendment.

8. To authorize an attachment, it is not necessary that the petition in the action should contain a prayer therefor.

9. The affidavit for an attachment need not show that no part of the debt is paid, that fact being alleged in the petition.

10. Where a'debtor told certain creditors that he had sold a raft of logs to L., on whom he gave them an order to be paid out of the proceeds, promising to notify them of his arrival with the raft, so that they might collect their money, but afterwards secretly sold the raft to another, manifestly with the intention of collecting the price and using the money in his business, the facts authorized an attachment upon the ground that the debtor was disposing of his property with intent to cheat, hinder, and delay his creditors.

Appeal from circuit court, Livingston county.

"Not to be officially reported."

Actions by the Harbour-Pitt Shoe Company, by Weaks Bros. & Co., and by C. H. Rieke & Sons against H. C. Dixon. From a judgment discharging attachments, plaintiffs appeal. Reversed.

Wheeler & Worten, for appellant HarbourPitt Shoe Co. J. C. Hodge, for appellants Weaks Bros. & Co. J. W. Bush and C. C. Grassham, for appellants C. H. Rieke & Sons. W. I. Clarke and James & James, for appellee.

HOBSON, J. On March 24, 1898, appellant the Harbour-Pitt Shoe Company instituted an ordinary action in the Livingston circuit court against appellee, H. C. Dixon, to recover of him $402.65, the balance on account for merchandise sold him, with interest from October 18, 1897, and at the same time filed the affidavit of its president, E. B. Harbour, and took out an attachment. The ground of attachment was that the defendant had sold and otherwise disposed of his property, and was about to sell and dispose of it, with the fraudulent intent to cheat, hinder, and defraud his creditors; that he had not

property enough in the state subject to execution to satisfy the demand, and its collection would be endangered by the delay in obtaining judgment or the return of "No property found"; that he had been absent from the county of his residence for more than four months; and that he had left the county of his residence and was remaining therefrom to avoid the service of a summons. An attachment was issued on March 24th, which was returned "No property found" on April 18th. On April 21st the court entered an order continuing the action until the next term, with alias process to Livingston and McCracken counties; the summons having also been returned "Not found." On May 23d the clerk issued an alias summons and an alias attachment, no new affidavit or bond being filed. This attachment went into the hands of the sheriff on the day it was issued, and was levied by him on June 14th on a raft of logs in Cumberland river. On June 15, 1898, appellants Weaks Bros. & Co. filed an ordinary action in the same court to recover $882.08, a balance due them on account from appellee, Dixon, and filed with their petition the affidavit of their attorney, J. C. Hodge, stating that the plaintiffs were absent from the county, and took out a general attachment. The grounds stated for this attachment were the same as in the preceding case, and in addition it was charged that appellee so concealed himself that a summons could not be served upon him, and was about to remove his property, or a material part of it, out of the state, not leaving enough therein to satisfy the plaintiffs' claims or the claims of his creditors. This attachment came to the hands of the sheriff at 12:30 p. m. on June 15th, and was by the sheriff levied on the raft of logs referred to, subject to the previous levy, and also subject to the levy of an execution in his hands from the quarterly court amounting to about $30. It was also levied on a stock of goods owned by the appellee in a storehouse in Livingston county and a warehouse and lot near by. On the same day appellants C. H. Rieke & Sons filed a similar suit against appellee to recover a balance of $557.92 for merchandise sold him, and filed affidavit stating substantially the same grounds of attachment, and took out an attachment which reached the hands of the sheriff at 12:35 p. m., or five minutes after the attachment of Weaks Bros. & Co. This attachment they caused to be levied on the logs and other property above referred to, subject to the preceding levies, and also summoned the McKinnie Veneer Package Company to answer as garnishee, on the ground that appellee had sold the logs in question to this company before any of the attachments were levied. Appellee, Dixon, appeared in the actions, which were consolidated, and entered a motion to discharge all the attachments on the face of the papers, and also filed affidavit denying the grounds of attachment. The logs levied upon were sold by the sheriff