FITZPATRICK v. VINCENT. (Court of Appeals of Kentucky. Oct. 6, 1905.) 1. VENDOR AND PURCHASER-ACTION FOR PUBCHASE MONEY-PLEADING-CONSTRUCTION OF ANSWER-LIMITED DENIAL.

In an action on a note given for the price of land, in which the petition alleged that plaintiff had made and the defendant accepted a deed with general warranty, an answer denying that plaintiff had made defendant a good title, or that the defendant had ever accepted such deed or title, amounted merely to a denial that plaintiff had made defendant a good title, and not to a denial that he had accepted a warranty deed. 2. APPEAL-PRESUMPTIONS-PLEADING-FAILURE TO REPLY.

Where, in an action on a note given for the price of land, there was no reply to an answer alleging that the sale was champertous, but both parties took proof on that issue and the case was submitted on the merits, it should be presumed on appeal that the answer was taken as controverted, and a judgment for plaintiff should not be reversed.

Appeal from Circuit Court, Rowan County. "Not to be officially reported."

Action by L. S. Vincent against W. W. Fitzpatrick. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. E. Clark, for appellant. Jno. W. Ray, for appellee.

HOBSON, C. J. L. S. Vincent sold to W. W. Fitzpatrick a tract of land. For part of the purchase money he took a note for $150. The note contained these words: "This note is for the fifteen acres in dispute and is not to be paid until the said dispute is settled." The note was dated November 21, 1891. On November 23, 1892, Fitzpatrick paid $100 on the note, and, having failed to pay the remainder, Vincent filed this suit against him on February 7, 1894, to enforce the lien retained in the deed. The plaintiff alleged in his petition that the dispute named in the writing had been fully settled, and that he had made the defendant a deed for the land with general warranty, including the 15 acres, and that the defendant had accepted the deed. The de

fendant filed an answer in which he denied that the dispute as to the 15 acres of land had been settled. The answer then contains these words: "He denies that the plaintiff has made him a good title to said 15 acres of land, or that he has ever accepted such deed or title."

A pleading must be taken most strongly against the pleader. The words "such deed or title" must refer to the good title mentioned in the preceding clause. There is no denial of the allegation of the petition that the plaintiff made the defendant a warranty deed for the land, and, construing the answer against the pleader, it simply amounts to a denial that the plaintiff made the defendant a good title to the land. The defendant in an amended answer pleaded that the 88 S.W.-68

land at the time he bought it was in the adverse possession of one Jeff Withrow, and Withrow was made a defendant to the suit. Withrow also alleged that he was in the actual possession of the land at the time the plaintiff sold it to the defendant. During the progress of the case, however, it appeared that the defendant had bought a tract of land from Withrow, and that Withrow had made him a deed for a boundary of land which included the 15 acres, so that he undoubtedly, at the trial, had title to the land, either by the deed that Wihrow had made him or by the deed from the plaintiff.

The proof failed to show that there was any such actual possession of the land by Withrow at the time of the defendant's purchase from the plaintiff as to bring that sale within the champerty statute. It is insisted, however, for the defendant, that there was no reply to his answer pleading that the sale was champertous. This is true; but both parties took proof on the issue without objection, and appear to have submitted the case on the merits. There was no objection that no reply had been filed, and no motion for a judgment on the pleadings. After judgment on the merits, where the parties treated the issues as made up, it must be presumed that the amended answer was taken as controverted of record, and that the order by some oversight was not entered. At any rate, the judgment will not be reversed for a defect of the pleadings, where the objection was not raised in the circuit court. The defendant did not show what he was out for the 15 acres. The dispute as to the 15 acres was undoubtedly settled, and on all the evidence we see no reason for disturbing the finding of the chancellor on the facts.

Judgment affirmed.

COMMONWEALTH v. REDMAN.

(Court of Appeals of Kentucky. Oct. 6, 1905.) 1. INTOXICATING LIQUORS LICENSES - NoTICE OF APPLICATION.

Ky. St. 1903, § 4203, providing that the county court shall not grant a license to sell liquors until 10 days' notice shall be given, by posting a notice at the door of the courthouse and at least at four public places in the neighborhood where the liquor is to be sold, authorizes the county court to grant licenses only if the proper notice has been given; and a license may be revoked where such notice was not given.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 65.]

2. SAME-POSTING OF NOTICES OF APPLICATION-SUFFICIENCY.

On the issue of the giving of the notice required by Ky. St. 1903, § 4203, of an application for a license to sell liquors by posting a notice at the courthouse door and at four public places in the neighborhood where the liquor is to be sold, citizens of the neighborhood testified

that they saw no notice, though they were looking out for one. The applicant testified that he posted four notices, 10 days before the application, by hanging one on a tack on the front of his house, and one on a tree on the opposite side of the road, and two on telegraph poles about 300 yards away. No one saw the notice hung on the front of the house or the one put up on the tree. It was shown that the applicant went out after dark and put up the notices. Held, that the notices were not posted in compliance with the statute, and the court was authorized to revoke the license.

Appeal from Circuit Court, Jefferson County, Criminal Branch.

"To be officially reported."

Proceedings by the commonwealth against Lemon Redman for the revocation of a liquor license. From a judgment of the circuit court, reversing a judgment of the county court revoking the license, the commonwealth appeals. Reversed.

Chandler & Norman, R. W. Bingham, and J. M. Huffaker, for the Commonwealth. Forcht & Field, for appellee.

HOBSON, C. J. Appellee, Redman, on March 31, 1905, was granted a license by the Jefferson county court to keep a tavern at Taylor Boulevard and New Pleasure Ridge Roads, in Jefferson county, with the privilege of selling spirituous, vinous, and malt liquors. On April 25th the county attorney served notice on Redman that at the next term of the court, commencing not less than five days after the service of the notice, he would move the court to revoke the license, on the ground that Redman was not properly equipped to keep a tavern as required by law and that he had illegally obtained the license. The motion was entered, the parties appeared, and considerable testimony was heard on both sides. The county court upon the evidence revoked the license, and the defendant appealed to the circuit court. In that court the judgment of the county court was reversed, and the commonwealth has appealed to this court.

The proceedings were under the following provisions of the statutes:

"All licenses mentioned in this article except licenses to sell by retail spirituous, vinous or malt liquors, shall be granted by the county clerk; and license to sell by retail spirituous, vinous or malt liquors shall be granted by the county court; but the county court shall not grant a license to sell spirituous, vinous or malt liquors until ten days' notice shall be given by posting a written or printed notice at the door of the courthouse, and at least at four public places in the neighborhood where the liquor is to be sold; and if the majority of the legal voters in the neighborhood shall protest against the application it shall be refused. The county court in each instance shall determine what constitutes the neighborhood. Nor shall

such license be granted to any person of bad character, or who does not keep an orderly, law-abiding house." Ky. St. 1903, § 4203.

"License to keep a tavern outside of an incorporated city or town shall be granted only to persons who are prepared with houses, bedding, stabling and provender sufficient to accommodate the public, and shall not be granted to any one unless the keeping of a tavern at the place proposed is necessary for the accommodation of the public, nor until the applicant shall take an oath, in open court, that he in faith intends to keep tavern for the accommodation of the public." Ky. St. 1903, § 4206.

"Any tavern-keeper who shall violate the provisions of his bond, or any tavern-keeper, merchant, distiller or druggist who shall violate any provision of this article, shall forfeit his license; and when the county attorney shall have reasonable grounds to believe either upon his own knowledge or from the oath of two credible witnesses of such violation, he shall notify the alleged offender to appear before the next term of the county court, commencing not later than five days after the services of the notice to show cause why his license should not be cancelled. On the trial of the case, the court shall enter an order cancelling the license or acquit the defendant, as the proof may authorize." Ky. St. 1903, § 4208.

We deem it necessary to consider only one of the questions discussed by counsel, and that is the question of notice. It will be observed that the statute requires that license shall not be granted until 10 days' notice shall be given by posting a written or printed notice at the door of the courthouse and at least four public places in the neighborhood where the liquor is to be sold, and if the majority of the legal voters in the neighborhood shall protest against the application it shall be refused. The purpose of the statutory provision is that the license shall not be granted in any neighborhood contrary to the wishes of the majority of the legal voters, and to give them an opportunity to protest against the granting of the license the 10 days' notice is required to be given. The notice lies at the base of the proceeding. If the notice was not given, the county court was without authority to grant the license, and, if it did grant the license, it had authority to revoke it when it was shown that the proper notice had not been given. Otherwise the applicant could defeat the purpose of the statute, and, when he had once gotten the license without notice, could continue to sell contrary to the wishes of the majority of the legal voters of the neighborhood, although by failing to give the proper notice he had prevented them from protesting.

On the question of notice, the proof for the commonwealth by a number of citizens of the neighborhood was that they were op

posed to the granting of a license to sell liquor at that point, and had defeated other applications; that they had understood that Redman was going to apply for license, and were looking out for the notices that they might oppose the application, but saw none, and had no notice of the application until the license was granted. On the other hand, Redman testified that he posted four notices 10 days before the application at public places in the neighborhood. He said that he hung one on a tack on the front of his house, and also put up one with one tack on a tree on the opposite side of the road; that he put up two others about 300 or 400 yards away on telegraph poles, one north and the other south of the house. These last two notices seem to have been put up in the same way, and they were shown to have remained up for some time; but no witness in the case ever saw afterwards the notice that was hung on a tack on the front of the house, or the notice which was put up with one tack on the tree on the side of the road. The proof by Redman also shows that he went out after dark and put up the notices. His conduct shows that he understood that his application would be resisted, and that he was trying to put up notices that would not give notice. In order to comply with the statute the notice must be substantially posted; that is, it must be posted as other notices of like character are usually posted. It must be tacked up securely. It must be posted in good faith, and at four public places in the neighborhood. In the case at bar the posting of the notices was a sham, intended to defeat the purposes of the statute, and the county court properly revoked the license.

Judgment reversed, and cause remanded for a judgment as herein indicated.

MOODY V. CITY OF WILLIAMSBURG. et al.

(Court of Appeals of Kentucky. Sept. 27, 1905.)

1. MUNICIPAL CORPORATIONS-ORDINANCESAUTHORITY TO ENACT-STATUTORY PROVISIONS.

Ky. St. 1903, c. 47, prescribing a schedule of fees and costs in judicial proceedings; section 3637, subsec. 5, conferring on councils the right to impose fines for violation of ordinances; and section 3623, providing that the city attorney shall receive a compensation to be fixed by ordinance by the council-do not authorize a municipality to adopt an ordinance providing that, when a judgment for a fine is less than $10, a fee of $2.50 for the city attorney shall be taxed as costs.

2. SAME-INVALIDITY IN PART-EFFECT ON VALID PART.

The provision in a municipal ordinance that, when a judgment for a fine shall be less than $10, a fee of $2.50 for the city attorney shall be taxed as costs, is severable from the provisions that he shall receive a percentage

on judgments for fines rendered for the benefit of the commonwealth, and the invalidity of the former provision does not affect the validity of the latter.

Nunn and Paynter, JJ., dissenting.

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Prohibition by William Moody against the city of Williamsburg and another to test the validity of a municipal ordinance. From a judgment for defendants, plaintiff appeals. Reversed.

C. W. Lester, for appellant. Sharp & Siler, for appellees.

BARKER, J. Williamsburg, Ky., is a city of the fifth class. Among the ordinances ordained by its board of council is No. 56, fixing and regulating the compensation of the city attorney, prescribing that he shall receive 50 per cent. of all judgments for fines and forfeitures rendered in the police court, either for the benefit of the commonwealth or the city, "except that, when a judgment is for less than $10, a fee of $2.50 shall be taxed as costs, and belong to him."

The appellant, William Moody, was tried in the police court of Williamsburg for the offense of drunkenness, and adjudged to pay a fine of $1 and the cost of the prosecution; the whole amounting to the sum of $6.35, which included the sum of $2.50 city attorney's fee as provided in the ordinance. This judgment he replevied, and was released from custody. The replevin bond being about to fall due, he instituted this action to test the validity of the ordinance in question, in so far as it authorized the imposition of the sum of $2.50 for the benefit of the city attorney. This proceeding seems to be authorized by section 3639, Ky. St. 1903, which provides that "the validity or constitutionality of any city ordinance, by-law or rules of the fifthclass cities, shall be tried by a writ of prohibition from the judge of the circuit court in which said city is located, with right of appeal by either party to the court of appeals." With out setting forth in detail the allegations of the petition, it is sufficient to say that the pleading states a cause of action, if the question of law sought to be maintained by appellant is sound.

Police courts of cities of the fifth class are established by section 3651, which confers jurisdiction upon them concurrent with justices' courts for all actions and proceedings, civil and criminal, except that in criminal cases the jurisdiction is confined to cases occurring within the city; and they are given exclusive jurisdiction of all actions for the recovery of fines, penalities, or forfeitures prescribed for breach of the city ordinances. "The rules of practice and mode of proceedings in such police court shall be same as are or may be prescribed by law for justices' courts, and appeals may be taken from

judgments of said police courts in the time and manner, and where the amount in controversy authorizes appeals from justices' courts." Section 3652 confers upon the judges of the police court the right to charge and receive the same fees as are or may be allowed to county judges for services rendered in the quarterly court. Section 3623 provides that "the clerk, treasurer, assessor, marshal and city attorney shall severally receive at stated times a compensation, to be fixed by ordinance by the city council, which compensation shall not be changed after their appointment or during their several terms of office." Subsection 5 of section 3637 confers upon the general council the right to impose fines, penalties, and forfeitures "for any and all violations of ordinances, and for any breach or violation of any ordinance; to fix the penalty by fine or imprisonment, or both; but no such penalty or fine shall exceed one hundred dollars nor the terms of imprisonment exceed fifty days."

It will be observed that there is no express authority for the imposition of an attorney's fee in favor of the city attorney, to be charged as a part of the costs. The city council have the right and power to pass general ordinances imposing fines for the violation of city ordinances, and they undoubtedly have the right, when these fines and forfeitures are covered into the treasury, to pay the city officers from the fund so created, as seems to have been done in the main by the ordinance under consideration; but there is certainly no express warrant of law for the attorney's fee. Chapter 47 of the Kentucky Statutes contains a general law and schedule of the fees and costs authorized in judicial proceedings, criminal and civil, in this state, but nowhere is such a fee authorized as that under consideration. In the case of Broaddus v. Broaddus, 10 Bush, 299, it is said: "The General Statutes must be regarded as containing a complete system of laws, and, in so far as they treat of any general law, whether under the title of 'Wills,' 'Executors and Administrators,' 'Husband and Wife,' 'Guardian and Ward,' etc., it must be considered and treated as all the statute law on the subject indicated by the title; and, if the system is defective in any of its parts, the remedy is to be found in legislative amendments." Tested by this rule, chapter 47, entitled "Fees," contains all the law on that subject, except wherein it has been expressly changed by subsequent amendment; and this seems not to have been done as to the matter in hand. It is certainly within the general spirit, both of the Constitution and the statutes enacted in pursuance thereof, that there should exist a uniform system of judicial procedure throughout the state, in so far as that is practicable, and we deem it the duty of the courts to carry into effect this general spirit, wherever it can be done without violence to the letter of the law.

We therefore conclude that so much of the ordinance as prescribes the imposition of a docket fee of $2.50 in favor of the city attorney, where the fine imposed is less than $10, is invalid. But, as this provision is contained in an exception readily severable from the body of the ordinance, this conclusion leaves all but the exception intact. For the foregoing reasons, the judgment must be reversed, and the case remanded, with directions to overrule the demurrer to the petition, and for further proceedings consistent herewith.

NUNN and PAYNTER, JJ., dissent.

BALDRIDGE v. COMMONWEALTH. (Court of Appeals of Kentucky. Sept. 22, 1905.)

1. CRIMINAL LAW-CONTINUANCE-TIME TO PREPARE DEFENSE.

Where defendant forfeited his bail bond, it was error to force him to trial on the second day after he was arrested on a bench warrant, and to refuse a continuance of one day to enable him to procure counsel and witnesses and prepare his defense.

2. SAME-APPEAL-QUESTIONS REVIEWABLE. An objection to the sufficiency of the indictment cannot be raised for the first time on appeal.

Appeal from Circuit Court, Rowan County. "Not to be officially reported." Sherman Baldridge was convicted of crime, and appeals. Reversed.

John E. Cooper, for appellant. N. B. Hays, C. H. Morris, and Alex. Connor, for the Commonwealth.

SETTLE, J. The appellant was indicted, tried, and convicted in the Rowan circuit court for the crime of unlawfully detaining a woman, one Mary Alice Hicks, against her will, with the intent to have carnal knowledge of her; his punishment being fixed at two years' confinement in the peni. tentiary. He has appealed, and urges a reversal of the judgment of conviction upon several grounds.

The facts established by the evidence of the commonwealth were: That on the night the crime is charged to have been committed Mary Alice Hicks, a girl 14 years of age, was staying at the house of Green Baldridge, a brother of appellant, and sleeping with her younger sister in the second story of the house. That during the night appellant, a married man of middle age, and uncle by marriage of the prosecutrix, entered the room in which she was sleeping through the window and approached her bed. That she, hearing him, got up from the bed, when he seized the garment she was wearing, tore the skirt of it off, and said to her, "Hold on!" About this time the noise made by her and appellant aroused the wife of Green Baldridge,

sleeping in the room below, who went to the room above and with several blows with a broomstick, inflicted upon the person of appellant, drove him from the house. Thereupon Mrs. Baldridge took the girl to her room, where she remained through the night. Appellant testified in his own behalf that he entered the room of the prosecutrix pursuant to an agreement previously made with her, and for the purpose of having carnal knowledge of her, and that he had theretofore repeatedly had sexual intercourse with her. He also proved by other witnesses that the reputation of the prosecutrix for virtue was bad.

It is insisted for appellant that he was forced into trial on the second day after his arrest and without an opportunity to procure the attendance of certain witnesses, whose testimony he claims would have shown his innocence of the crime charged. It appears that he was indicted at the October term, 1902, of the court; that upon his motion and affidavit the case was then continued, following which he furnished bail for his appearance to answer the indictment at the succeeding term, but failed to do so, which caused a forfeiture of his bond and the issual of a bench warrant for his arrest, which was not executed until the first day of the court and two days before his trial, which occurred at the June term, 1905. Upon the calling of the case for trial, through Attorney W. A. Young, whom he endeavored to employ as his counsel, appellant asked the court that the case be passed until the next day to enable him to procure the attendance of his witnesses. The court refused his request, but did consent to lay the case over until 1 o'clock p. m. of the same day. Thereupon Young informed the court that he would not represent appellant in the trial, and declined to accept employment at his hands unless the court would pass the case until next day. The appellant then in person asked the court to lay the case over one day to enable him to employ an attorney and get his witnesses. The request was again refused by the court, with the statement, however, that he would appoint counsel to defend appellant, and did then appoint two lawyers to conduct his defense. The trial by order of the court was then proceeded with.

As well said by this court in Helton v. Commonwealth, 87 S. W. 1073, 27 Ky. Law Rep. 1163: "While promptness in the apprehension and trial of persons accused of crime is commendable, the interests of the commonwealth are primarily in having the accused tried under circumstances where the verdict will be just, and will represent the deliberate and calm judgment of a properly selected and instructed jury in a court having jurisdiction of the offense. Innocence is as much to be protected, to say the least of it, as it is due to crime to be punished, and, whether one or the other,

courts will not be hurried by popular clamor, or delayed by technical quibble, to the detriment of the orderly administration of justice." While the patience of the trial judge had doubtless been tried by the failure of appellant to comply with the undertaking of his bail bond, whereby an earlier trial of his case was prevented, still he was entitled to reasonable time and opportunity to employ counsel for his defense of his own choosing, also to consult with such counsel and place in his possession the facts of his case, names of his witnesses, etc., that he might make the preparation needful to procure, if possible, the attendance of the witnesses and take such further steps as would secure to appellant a fair and impartial trial. But appellant was not allowed time to employ counsel, secure his fee, or lay before him the nature of his defense. The attorney he attempted to employ would not consent to undertake his defense without preparation or go into trial upon such short notice. Appellant was not even given time to prepare an affidavit by which he might have presented with particularity the grounds for his motion to lay the trial of his case over one day. It was certainly not unreasonable for him, under the circumstances, to ask to be allowed one day to get his witnesses. Doubtless the attendance of some of them could have been procured in that time. Counsel of the court's appointment were compelled to go into the trial of appellant without preparation. We do not question their capacity or skill, but are well aware that lawyers of the greatest skill and experience need to be informed in advance of a trial of the law and facts of the case they are expected to conduct to a successful issue. We conclude, therefore, that appellant was not allowed reasonable opportunity to prepare for trial, and that the court erred in refusing to postpone the trial as requested by him.

It is contended that the indictment under which appellant was convicted is fatally defective, in that it charges him with having unlawfully and feloniously detained Mary A. Hicks, a female, for the purpose of having carnal sexual intercourse with her against her will, instead of charging, as in the language of the statute, that he unlawfully "detained her against her will" for such purpose. We find that no objec

tion was made to the indictment in the lower court, either by demurrer or motion in arrest of judgment. Consequently the question of its sufficiency cannot be considered by us, because raised for the first time in this court. However, as the commonwealth's attorney, after the filing of the mandate in the lower court and the entering therein of the order granting appellant a new trial, may, if the indictment be deemed defective, elect to dismiss it and remand the case to the grand jury