piled Statutes 1901, p. 715) until the writ is actually filed or lodged with the clerk of the court which rendered the judgment so sought to be reviewed. Kentucky Coal, Timber, Oil & Land Co. v. Howes, 153 Fed. 164.

FILING AWAY.-See, also, DISMISSAL.

Indictments. An order filing away an indictment is, in effect, to continue indefinitely or dispense with the prosecution. The court is without authority to dispense with the prosecution of a crime, where the indictment is good on demurrer; and it was in error in ordering an indictment filed away, at the request of the prosecuting witness and her relatives. Com. v. Cundiff, 149 Ky. 37, 147 S. W. 767.

An order "filing away" an indictment, to be reinstated on the docket on the Commonwealth's motion, is sufficiently final to be appealable. Jones v. Com., 114 Ky. 599, 71 S. W. 643, 24 R. 1434.

The practice of filing away indictments is not to be indulged where the accused has been served with process and objects to the order. Jones v. Com., 114 Ky. 599, 71 S. W. 643, 24 R. 1434.

Though there is no law authorizing the filing away of an indictment with leave to reinstate, yet where this was done under an agreement with defendant, recited in the order, that the prosecution should be carried to trial and judgment if he should at any time violate his promise to refrain from repeating the offense, he can not complain that this was done, notice being given. Com. v. Bottoms, 48 S. W. 974, 20 R. 1159.

Com.

When an indictment is dismissed, unless the matter be then referred to the grand jury, it is a final order in the case. V. Smith, 140 Ky. 580, 131 S. W. 391.

An order filing away an indictment is permissible where defendant has not been apprehended, and is not before the court; is not equivalent to a nolle pros.; and, though not providing therefor, does not prevent reinstatement of the indictment on the subsequent arrest of defendant. Gross v. Com., 118 Ky. 907, 82 S. W. 618, 26 R. 870.

In Civil Cases. "In Aikman v. South, et al, 97 S. W. 4, 29 R. 1201, the words used in the order taking it from the docket were the same used in the instant case, 'filed away.' In the opinion it is said: 'Counsel for appellee contend that there is no such order known to the code as "filing away" a suit, and that consequently such an order was ineffectual to dispose of the case. The language used by different courts in different sections of the State to express the same thing is not always uniform. For example, some use the more correct expression "dismissed," which is undeniably a final order, which after the adjournment of the term at which it is rendered divests the court of further jurisdiction in the action, except after notice, and upon a motion for a new trial or in an action for a new trial brought pursuant to specific sections of the code. Some courts, however, use the expression "discontinued," others, "stricken from the docket," while others yet use the one used in this case, "filed away." They all mean substantially the same thing; that is, that the action has been stricken from the docket for want of prosecution, or upon the motion of the plaintiff, or upon the motion of the court. It is a final order, however worded, when it may be gathered from the language of it that the court intended to dismiss the action and the parties from further consideration of the court. The parties may thereafter assume that they need not look further to the records of the court to see what steps might be taken in the action, as they were thus notified that the court would not take any further steps in it. The fair intent of the order was to dismiss the action and the parties henceforth and without pay.'" Phillips v. Arnett, Admr., 164 Ky. 426, 175 S. W. 660.

The words "filed away," "dismissed," "stricken from the docket," "discontinued," and so on, mean substantially the same thing. An order containing such words is a final order, however worded, and the fair intent of such an order is to dismiss the action. Aikman v. South, 97 S. W. 4, 29 R. 1201.

An order that a case be filed away is a final order of dismissal. Aikman v. South, 97 S. W. 40, 29 R. 1201.

A recital in a divorce decree that a part of the judgment for alimony was paid by defendant, and that the case was "filed away, was in effect keeping control of the case to be redocketed upon notice; the parties not having been dismissed. Sebastian v. Rose, 135 Ky. 197, 122 S. W. 120.

An order directing that a case be filed away is not final and an order of the court overruling a motion to reinstate the case on the docket is not a judgment dismissing the action from which an appeal may be prosecuted. Smith v. Rodes, 2 Ky. Opin. 28. But see preceding paragraphs.

The dismissal of a case by an order "discontinuing" it, "striking" it from the docket or directing that it be "filed away," should be treated as a dismissal of the action without prejudice, which would not prevent the plaintiff or other party in interest from bringing a new action or, upon proper notice and the showing of sufficient ground, reinstating it upon the docket; but until there is a renewal of the action or it is properly reinstated on the docket, the dismissal resulting from the order filing it away will continue to be regarded as final, and the court will so treat it. Phillips v. Arnett, 164 Ky. 426, 175 S. W. 660.

The taking of the action from the docket by an order directing that it be "filed away" is a dismissal of the case as to a defendant who did not appear. A fortiori, such an order is a dismissal of the case as to one not a party to the action and who, after the entering of the order, became an innocent purchaser of the property therein sought to be sold. Phillips V. Arnett, 164 Ky. 426, 175 S. W. 660.

Whether the words used to indicate that the case is to be taken from the docket be "stricken from the docket, ""discontinued" or "filed away," the meaning is the same, and amounts to a dismissal. Phillips v. Arnett, 164 Ky. 426, 175 S. W. 660.

"In Words and Phrases, Vol. 2 (2d Series), page 60, it is said: 'Discontinued,' with reference to an action, is synonymous with stricken from the docket, filed away. In the same volume, at page 75, it is said: 'Stricken from the docket' is used as synonymous with 'discontinued,' 'filed away,' so

that an order striking a cause from the docket amounts to a 'dismissal.'" Phillips v. Arnett, 164 Ky. 426, 175 S. W. 660.

Where an action to enforce a vendor's lien on land was instituted September 15, 1893, allowed to remain on the docket without a submission until February 6, 1904, and was then taken from the docket under an order of the court directing that it be "filed away," such order operated as a dismissal of the case without prejudice; and though it was, on motion of the plaintiff, reinstated on the docket February 19, 1910, as more than fifteen years intervened between the accrual of the plaintiffs' cause of action upon the lien note sued on and the reinstatement of the case on the docket, the action was barred by the statute of limitations as to an innocent purchaser of the land for value, whose title thereto was acquired after the case was stricken from the docket and before its reinstatement thereon. Phillips v. Arnett, 164 Ky. 426, 175 S. W. 660.

A judgment ordering that the cause be filed away for want of prosecution is not final or a bar to a subsequent action. Nickell v. Fallen, 15 R. 389.

FILUM AQUAE.-A thread of water, used generally to denote the middle line of a stream. Cochran's Law Lexicon. Thread of the stream. Ford v. Commonwealth, 156 Ky. 428, 160 S. W. 1080.

"In respect to streams and rivers which are not navigable -that is, in which the tide does not ebb and flow-the rule seems to be universal that describing land as running to the stream or the bank, and by it or along the stream or the bank, extends to the middle or thread of the stream-the filum aqua-unless there is something in the description clearly excluding the intermediate space between the edge or bank of the stream and its thread." "A grant or conveyance of land bounded by a non-navigable stream carries with it the bed of the stream to its center, unless a contrary intention is manifest from the grant or conveyance itself." Stonestreet v. Jacobs, 118 Ky. 749, 82 S. W. 363, 1012, 26 R. 628, 1015.

FINAL ACTION.-The issual and delivery of the triplicate certificates of election provided for in Sec. 1508, Ky. Stats.,

is "the final action of the board of canvassers, within ten days after which notice of contest of the election of a Circuit Court clerk must be given as provided by Sec. 1555, and a notice given after the issual and delivery of such certificates is not premature, though the canvassing board made its finding without canvassing certain ballots returned by the election officers. Anderson v. Likens, 104 Ky. 699, 47 S. W. 867, 20 R. 1001.

FINAL ADJOURNMENT.-A final adjournment of court discharges a jury. Crim. Code, Sec. 254.

FINAL CONVICTION. To entitle one to a reward offered for the "arrest and conviction" of an "unknown" offender there must be a final conviction, and therefore the fact that an appeal is pending from a judgment of conviction is sufficient to defeat a claim for the reward. Stone v. Wickliffe, 50 S. W. 44, 20 R. 1806.

"A

FINAL ORDERS AND JUDGMENTS.-Definitions. final judgment or order is such an order as at once puts an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy sued for. (3 Blackstone Com. 497.)

"It must not merely decide that one of the parties is entitled to relief of a final character, but it must give that relief by its own force, or be enforceable for that purpose, either without further action by the court, or by process of contempt. In other words, a final order is an order that disposes of the merits of the case; that settles the rights of the parties under the issues made by the pleadings; or, which disposes of the cause and places the parties out of court. Trade Discount Co. v. Cox, 143 Ky. 516, 136 S. W. 901; Maxwell v. England, 115 Ky. 783." Harrison v. Stroud, 150 Ky. 797, 150 S. W. 993.

The rule is that no order is final ordinarily which may not be enforced by rule or execution. Bennett v. Knott, 112 S. W. 849.