the manner provided in title ten, chapter five, except that the applicant shall file a petition, wherein he shall state the cause and ground of his application before giving notice of his motion; to which the party against whom the mandamus or prohibition is sought shall file a demurrer or an answer, at or before the time fixed for making the motion. $475 524 Court to hear and decide-final order. The court shall hear and decide all questions of law or fact arising on the motion, and the granting or refusing of the writ shall be the final order on the motion. (The amendment of May 15, 1886, was repealed by act of January 13, 1888.) by mandamus to probate a will; where the court has heard evidence and determined that it had no jurisdiction, the remedy is by appeal. Preston v. Fidelity Trust Co., 94 Kỵ. 295. (8) Justice of the peace will not be compelled by mandamus to approve a traverse bond which he regards as insufficient. McDonald v. Jenkins, 93 Ky. 249. (9) Injunction can not stay. A court of equity can not enjoin an officer from doing an act which a court of law has by writ of mandamus required him to do. 10 Bush 564. (10) Interpleader. When a party has applied for a mandamus against a ministerial officer (the auditor) to compel him to issue his warrant, a third party will not be allowed to come in and litigate his claim with the plaintiff upon the ground that he has a lien upon the debt due him. Hewitt v. Craig, 86 Ky. 23. (11) Legal duty to perform act must ap. pear. It must appear upon every application for a mandamus that it is the legal duty of the respondent to do that which it is sought to compel him to do, and that upon proper application he refused to perform that duty. Lowe v. Phelps, 14 Bush 642; Norman v. Board of Mgrs., 93 Ky. 537. (12) Mandamus-when granted. Mandamus is the proper remedy to prevent the clerk and judge of the county court from recording the vote under a "local option" law, if the law is unconstitutional. Gayle v. Owen Co., 83 Ky. 61. (13) And to compel the clerk of the county court to record a deed or other instrument which it is made his duty to record. Wulftange v. McCollom, 83 Ky. 361. (14) And to require the county court to show cause why it did not permit a deputy sheriff to qualify. Applegate v. Applegate, 4 Met. 236; see Prater v. Strother, 11 R. 831. (15) And to compel the county judg to accept the bond of a sheriff and permit him to qualify. Cate v. Ross, 2 Duv. 243; and to compel the State Board of Pharmacy to enter a "graduate in pharmacy." State Board v. White, 84 Ky. 626. (16) And to compel county court to levy a tax to pay a medical account for services rendered to a poor person by request of the county judge and justices. Rodman v. Larue Co., 3 Bush 144. (17) And to compel county court to levy a tax to pay for a bridge built, under a contract with the county. Anderson Co. v. Stone, 18 B. M. 848. (18) And to compel examining board to compare poll-books to perform their duty. Clark v. McKenzie, 7 Bush 523: Batman v. Megowan, 1 Met. 533; Howes v. Walker, 92 Ky. 258; but mandamus will not lie to compel the canvassing board to recanvass the ballots on account of error in the first canvass, as the party aggrieved by the former canvass has a remedy by contesting the election. Houston v. Steele, 16 R. (19) And to require trustees of a town to repair the streets. Hammar v. City, 3 Met. 494; Trustees v. Kinner, 12 Bush 334. § 476 (525) Temporary preventive orders may be made. During the pendency of the motion, the court or judge, in vacation, may make temporary orders for preventing damage or injury to the applicant until the motion is decided. § 477 [526) Mandamus defined. The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law; and is granted on the motion of the party aggrieved, or of the Commonwealth when the public interest is affected. (20) And against auditor, to compel him to pay claims. Auditor v. Adams, 13 B. M. 151; Haly v. Auditor, 4 Bush 490: 14 Bush 284; 3 Bush 231; 80 Ky. 336; 78 Ky. 577; 8 Bush 98. (21) Corporation may be compelled by mandamus to elect officers. Orr v. Bracken Co., 81 Ky. 593. (22) Where county is divided and a new county established, the old county may by mandamus compel the new to levy a tax to pay indebtedness created before division. Montgomery Co. V. Menefee Co., 93 Ky. 33. (23) When a city council is authorized and required to levy and collect a tax to pay the interest on bonds, a writ of mandamus may be maintained by any of the bondholders to compel it to discharge that duty. Maddox v. Graham, 2 Met. 56. (24) A county bondholder may compel by mandamus the county court to levy and collect a tax to pay bonds issued by the county. Elliott Co. v. Kitchen, 14 Bush 289. And a corporation may have the writ to compel the county to issue bonds in compliance with a subscription. C. & O. R. R. Co. v. Washington Co., 10 Bush 564. benefit society to restore an expelled member. Schmidt v. Lodge, 84 Ky. 490. (27) Nor will mandamus lie where party has any other adequate remedy, such as right of appeal. Shine v. Ky. Central R. R., 85 Kỵ. 177. (28) An ex parte allowance made by the circuit court to guards summoned by its order to guard the jail is only prima facie evidence of its correctness, and, when controverted by the county court, mandamus will not lie to compel the county court to levy a tax to pay the allowance. Justice's v. Moore, 2 Bush 108. (29) Nor is it the proper remedy when the amount of the demand is not ascertained. Garrard Co. v. McKee, 11 Bush 234. (30) Motion for. Failure to make the motion for a mandamus on the day specified is a waiver of the right to enter or make it under that notice. 14 Bush 289. (31) Parties to action. Mandamus against county court to compel it to levy a tax must be against persons composing the court. Montgomery Co. v. Menefee Co., 93 Ky. 33. (32) Power of Court of Appeals to issue writ is mentioned in Preston v. Fidelity Trust Co., 94 Ky. 295, but not decided; and see Rohmeiser v. Bannon, 15 R. 114. In Kelley v. Toney, 95 Ky. 338, and Louisville School of Reform v. City, 88 Ky. 584, it is held that mandamus from Court of Appeals is proper remedy to compel lower court to grant an appeal which has been refused without right; and see Vance v. Field, 89 Kỵ. 178. § 478 [527] Commonwealth may appeal without security. If an interest, right or claim of the Commonwealth be affected by the final order on an application for a writ of mandamus, the Attorney-General may prosecute an appeal without security. § 479 [528] Prohibition defined. The writ of prohibition is an order of the circuit court to an inferior court of limited jurisdiction, prohibiting it from proceeding in a matter out of its jurisdiction. (See further, Criminal Code, sec. 25.) CHAPTER XIII. REPEALING OR VACATING CHARTERS, AND PREVENTING THE USURPATION OF AN OFFICE OR FRANCHISE. 480. Ordinary action to be brought. § 481. 482. $483. § 484. Action to repeal charter-prosecution of. (33) Successor of officer. A change in the membership of the board of councilmen does not abate the proceedings. Maddox v. Graham, 2 Met. 56; City v. Kean, 18 B. M. 9. As to auditor, see 3 Bush 231; as to board of examiners to compare poll-books, see 7 Bush 523. (34) Supersedeas The execution of a writ of mandamus may be superseded. 83 Ky. 451. $479. (1) Prohibition. Court of Appeals will not grant a writ of prohibition. Sasseen v. Hammond, 18 B. M. 672; but see now Constitution, sec. 110, and Preston v. Fidelity Trust Co., 94 Ky. 295. (2) When a matter is within the jurisdiction of the court, a writ of prohibition will not be awarded to prevent it from deciding erroneously, or from enforcing an erroneous judgment or order. Bank Lick Co. v. Phelps, 81 Ky. 613. (3) When by the provisions of a city charter the validity of an ordinance could be determined by a writ of prohibition; in a controversy growing out of the enforcement of an ordinance, the ordinance being valid, the writ was not the proper remedy. Shinkle v. City, 83 Ky. 420. (4) Where the county court is acting under a statute that is unconstitutional, and its only authority is under the statute, the writ of prohibition is the proper remedy to stay proceedings under it. Pennington v. Woolfolk, 79 Ky. 13. (5) A writ of prohibition can only be directed to a judicial tribunal, and not to a legislative body, such as a city council. Patton v. Stephens, 14 Bush 324. (6) After dismissing an appeal for want of jurisdiction, the circuit court properly refused a writ of prohibition against the enforcement of the judgment by the justice who rendered it. Olmstead v. Mason, 3 Bush 693. (7) A temporary order prohibiting a court of inferior jurisdiction from proceeding in a certain case pending the hearing of a writ of prohibition does not continue in force after writ is refused, although the judgment refusing writ is superseded. Gibbs v. Board of Alder men, 95 Ky. 471. (8) A writ of prohibition will not be granted where the inferior court sought to be restrained has jurisdiction. Goldsmith v. Owen, 95 Ky. 420. § 486. Person holding office, when a usurper. $487. Usurper-judgment to be rendered against. § 488. Fees received by usurper-how recovered. $480 (529) Ordinary action to be brought. In lieu of the writs of scire facias and quo warranto, or of an information in the nature of a quo warranto, ordinary actions may be brought to vacate or repeal charters, and to prevent the, usurpation of an office or franchise. (Verification of pleadings not required, sec. 116.) § 481 [530] Action to repeal charter-prosecution of. The action to repeal or vacate a charter shall be in the name of the Commonwealth, and be brought and prosecuted by the Attorney-General, or under his sanction and direction by an attorney for the Commonwealth. § 482 [531] Legislative direction necessary to repeal charters. Actions to repeal or vacate the charters of municipal corporations; banks, railroad, turnpike road and internal improvement companies, shall only be instituted by order of the Legislature, unless otherwise expressly provided. (See now Ky. Stat., sec. 569.) § 483 532 Usurper of office or franchise-action against. If a person usurp an office or franchise, the person entitled thereto, or the Commonwealth, may prevent the usurpation by an ordinary action. § 484 533 Commonwealth attorney-when to institute action. It shall be the duty of the several Commonwealth attorneys to institute the actions mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, or if the person entitled fail to institute the same during three months after the usurpation. $480. (1) Lottery-action to suppress. An action to prevent the exercising of lottery privileges may be instituted by the Attorney-General, in the name of the Commonwealth. Com. v. Frankfort, 13 Bush 185. (2) Usurpation of office. An action may be instituted by one who has been duly elected to the office of city judge to prevent the usurpation of that office by another, and to compel the usurper to surrender the office and records to him. Boyd v. Chambers, 78 Ky. 140. See further, Collopy v. Cloherty, 95 Ky. 330. (3) A fine for usurpation of an office can not be recovered in a proceeding under this chapter. Com. v. Adams, 3 Met. 7. (4) The provisions of the Code pointing out the mode by which a person who usurps an office to which he is not entitled may be deprived of it, do not preclude an inquiry into the legality of his title to the office when it is directly put in issue in an action against the officer. Patterson v. Miller, 2 Met. 493; and see Com. v. Jones, 10 Bush 725. (5) In action by Commonwealth for usurpation of office, burden is on defendant to show by what authority he holds office, but where citizen sues to recover office burden is on him to show right to it. He can not recover on ground that defendant has no right to office. Tillman v. Otter, 93 Ky. 600, and see Toney v. Harris, 85 Ky. 453. § 483. Usurpation of franchise. See Com. v. City of Frankfort, 13 Bush 185. § 485 534 Attorney-General-when to institute. For usurpation of other than county offices or franchises, the action by the Commonwealth shall be instituted and prosecuted by the Attorney-General. § 486 [535] Person holding office, when a usurper. A person who continues to exercise an office after having committed an act, or omitted to do an act, the commission or omission of which, by law, creates a forfeiture of his office, may be proceeded against for usurpation thereof. $487 536 Usurper-judgment to be rendered against. A person adjudged to have usurped an office or franchise shall be deprived thereof by the judgment of the court, and the person adjudged entitled thereto shall be placed in possession thereof; but no one shall be adjudged entitled thereto, unless the action be instituted by him. And the court shall have power to enforce its judgment by causing the books and papers, and all other things pertaining to the office or franchise, to be surrendered by the usurper; and by preventing him from further exercising or using the same; and may enforce its orders by fine and imprisonment until obeyed. If the usurper have $488 537) Fees received by usurper-how recovered. received fees and emoluments arising from the office or franchise, he shall be liable therefor to the person entitled thereto, who may claim the same in the action brought to deprive him of the office or franchise, or in a separate action. If no one be entitled to them, they may be recovered by the Commonwealth, and shall be paid into the public treasury. CHAPTER XIV. SALES OF REAL PROPERTY OF PERSONS UNDER DISABILITY, ETC. $489. Sale of real estate of infants and persons of unsound mind. Real estate of joint owners-sale of. Reversion or remainder may be sold. § 490. $491. § 492. § 493. Bond to be executed-provision as to married women. 494. Sales under sections 489, 491. Concerning sales, proceeds of sale, parties. 495. Dower-sale of and compensation for. 496. Bond-when not required. 497. Purchase money-when to remain lien on land. 498. Joinder of parties. $489. Sale of real estate of infants and persons of unsound mind. A vested estate of an infant or of a person of unsound mind, in real property, may be sold by order of a court of equity— § 489. (1) Contingent interest-sale for investment. Where land was devised to children with provision that if either should die without issue his share should |