domestic equipments. Here her reign is supreme, and her word is the law of the household. If this is all wrong and ought to stop, the considerations which make it so ought to be presented as issues in the answer of the trustee and the proof submitted to the chancellor. But, if the present arrangement ought to continue as the best possible one under all the circumstances, then the ample income of Sarah's estate ought to be made available to pay for the structure which alone makes it possible to continue it, The judgment dismissing the petition is reversed, and cause remanded for proceedings not inconsistent with this opinion.

and fund, and may change any investment now made, and may, if he deems the same necessary to the safety of the estate, or needful to the comfort or convenience of said Sarah Cecil, invest such portion of said funds in real estate, as may, in his judgment, secure such object or objects, causing the title to the same to be conveyed to him as trustee on the same trusts and conditions as apply to the estate and means hereby conveyed to him." "The party of the second part is to exercise his judgment as to what portion of the income, rents, and profits of the estate conveyed, or that it may be invested in, shall be expended by said Sarah Cecil, suiting such expenditure to the changing conditions and necessities of her life; but he is not to allow her to exceed the income of said estate, whatever it may consist of, unless by misfortune or unavoidable accident (other than such as her own improvidence may occasion) the estate becomes greatly diminished in value, and imperious necessity affecting her or her fam

tee. On January 30, 1899, appellant Mrs. Mary C. Cantrill filed this suit, alleging that she is the only sister of Sarah Cecil; that for a while her sister Sarah had been confined in public and private asylums for the insane, but after this, to alleviate her condition, she had been removed to appellant's residence, as she could be made more comfortable and secure when under the control of those who are bound to her by the ties of affection, her condition being such physically and mentally as to require her confinement, but necessitating that careful attention and kindness which a sister alone would be willing to bestow; that appellant was advised it was essential at once to take this step for the welfare and security of the person of her sister, and to do so she erected an addition to her main dwelling, adding nothing to its value, at a cost of not less than $6,000, where all the conveniences of home life are had for her sister, and she is made to believe she is mistress of her own household; that to make the improvement on ground away from appellant's house would prevent her giving to her sister the care she requires; that the condition of her sister was such as to require the building of the addition immediately, and admitted of no delay; and that it was made with the knowledge, approval, and consent of the committee. On these facts she prayed that she be allowed the amount so expended -$6,000 out of either the principal or accumulated profits of the estate in the hands of the trustee; or, if not, that the income hereafter be applied in that way. The court below sustained a demurrer to the petition and dismissed the action.

The deeds of trust under which the estate is held contain, among others, these provisions: "The party of the second part [the trustee] is fully empowered and authorized to manage and control said fund as he may deem to the greatest advantage to the estate

appropriate some portion of the principal; but when the necessity ceases the extraordinary expenditure shall cease, and the waste of the estate shall be repaired out of the future profits, if the same can be done without serious inconvenience to said Sarah Cecil or her family." It will be seen from the above that the trustee was empowered by the deeds to invest in real estate only on the condition that he caused "the title to the same to be conveyed to him as trustee on the same trusts and conditions as apply to the estate and means hereby conveyed." It will be also seen that the trustee was required not to allow the income to be exceeded and the principal encroached upon unless the estate became "greatly diminished in value, and imperious necessity" rendered it proper to encroach upon the principal; and even in this event, "when the necessity ceases, the extraordinary expenditure shall cease, and the waste of the estate shall be repaired out of the future profits, if the same can be done without serious inconvenience to said Sarah Cecil or her family." The grantor could not well have evidenced more clearly an intention to preserve the estate for the remainder-men, and to keep it in the hands of the trustee whom he had chosen. Appellant sought to have $6,000 of this trust fund paid out by the trustee to her to reimburse her for the building of an addition to her dwelling house on her ground. If the trustee ought not to have made such a payment, he should not be ordered by the court to make it in this suit; for the chancellor's only power in the premises is to direct the trustee in the discharge of his duty, and require him to do what he ought to have done. The court has no more power than the trustee to divert the grantor's bounty from the purposes to which he has dedicated it. To do this would be to set aside to this extent the disposition he saw fit to make of his estate. This cannot be done

The question, therefore, arises, is the appropriation in contest such as the trustee ought to have made under the discretion vested in him by the deeds? It cannot, of course, be justified as an investment of the fund in real estate. But appellant does not place her claim on this ground. She bases it on the clause requiring the trustee to provide for Sarah Cecil as the changing conditions and necessities of her life might require, and she asks for the appropriation out of the income already accrued or hereafter accruing if it cannot be made out of the principal. The clause, therefore, forbidding encroachment on the principal except in certain contingencies, is not decisive of the case, for the court below dismissed the petition, and refused to make the appropriation at all. In determining whether or not the trustee, in the exercise of the discretion vested in him, should pay appellant the $6,000 in contest, it is proper, however, to consider these provisions of the deed of trust in arriving at the intention of the testator. The fact that he required the land in which the trust fund may be invested to be deeded to the trustee, and held as the balance of the estate, limiting the life tenant to such of the profits as the trustee deemed necessary, and guarding so closely encroachment on the principal, is evidence that he did not contemplate such an expenditure as is bere asked. The addition to appellant's house is her property. If the appropriation of the $6,000 out of the estate in the hands of the trustee were ordered, and Sarah Cecil should die the day after it was paid, the property would belong to appellant, and no claim could be made against her by the remainder-men who would then succeed to the estate. Or, if appellant should herself so die, the property would descend to her heirs at law, and there would be no charge upon it in favor of Sarah Cecil, or right on her part to occupy it. If, for any other cause, the present arrangement could not be continued, the same result would follow. If $6,000 of the trust fund may be appropriated for this building under such circumstances, the purpose of the trust may, in time, to a large extent, be defeated, and the estate of the remainder-men unduly curtailed. The trustee should not be coerced by the chancellor into making an expenditure which a good business man would not make. The outlay is too large to be made at the expense of the estate on the property of another, with no fixed right in the life tenant or the trustee to enjoy the fruits of it. The grantor plainly trusted greatly in the personal discretion of the trustee he selected, and in a matter of doubt the trustee's discretion should not be controlled by the chancellor. Under the circumstances, the chancellor, it seems to me, did not err in refusing to order the appropriation prayed for. It does not appear that the trustee has failed to pay appellant out of the net annual income a reasonable compensation yearly for taking care of the lunatic. Should

a difference at any time arise between them, the chancellor, in fixing the amount to be paid appellant yearly out of the net annual income in the hands of the trustee, should take into consideration the nature of the care the lunatic requires, and the expenditures so rendered necessary by appellant, in connec-. tion with the other facts of the case. But beyond this he should not go, in my judgment. The claim of appellant does not seem to me such as the chancellor should allow, and, it not appearing that the trustee has failed to do anything he should have done, I am of opinion that the demurrer to the petition was properly sustained. For these reasons I dissent from the judgment of the court.

DU RELLE and BURNAM, JJ., concur in this dissent.

WISCONSIN CHAIR CO. v. COLUMBIA FINANCE & TRUST CO.1 (Court of Appeals of Kentucky. Dec. 18, 1900.)

BILLS OF EXCEPTIONS-FAILURE OF JUDGE TO SIGN.

A paper purporting to be a bill of exceptions which is not signed by the trial judge cannot be considered.

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

Action by the Columbia Finance & Trust Company against the Wisconsin Chair Company to recover damages for trespass. Judgment for plaintiff, and defendant appeals. Affirmed.

J. N. Nichols & Son, for appellant. Henry Burnett, for appellee.

HAZELRIGG, C. J. There is no bill of exceptions in the record. A paper purporting to be such is not signed by the trial judge, and we cannot consider it. Presumably, the motion for a new trial was properly overruled. Aside from this, the question was largely one of fact, and the jury's findings thereon seem to be fairly supported by the proof. Affirmed.

BOARD OF COUNCILMEN OF CITY OF
FRANKFORT v. DEPOSIT BANK
OF FRANKFORT.1

(Court of Appeals of Kentucky. Dec. 17, 1900.)

REVERSIBLE ERRORS - FAILURE OF PLEADINGS TO SUPPORT JUDGMENT-SUIT BY CITY TO RECOVER TAXES-POWER OF ATTORNEY TO BIND CITY BY AGREEMENT.

1. A judgment not warranted by the pleadings must be reversed.

2. An agreement by a city attorney that a suit involving the right of the city to collect a tax shall abide the result of another suit to which the city is not a party, and of which it has no control, does not bind the city, as the power of taxation is a sovereign power, and cannot be lost in this way.

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

"Not to be officially reported." Petition for rehearing. Denied. For former report, see 57 S. W. 787.

HOBSON, J. Section 386 of the Civil Code provides, "Judgment shall be given for the party whom the pleadings entitle thereto, though there may have been a verdict against him." It has been accordingly often held that a judgment not warranted by the pleadings must be reversed. Maddox v. Fox, 8 Bush, 402. The agreement recited in the judgment was not pleaded, and, on the face of the pleadings as they stood, judgment should have been entered for appellant, under the express mandate of the statute. But, if the agreement relied on had been put into a plea in bar of the further prosecution of the action, it would have been, in effect, this: That the attorney of appellant and the attorney of appellee had agreed in pais that the result of this suit should depend upon the result of another suit which was then pending, to which the city was not a party, and in which a judgment was rendered afterwards contrary to the contention of the city in this case. If such a plea had been filed, it would have been bad on demurrer; for, the city not being a party to that suit, and having no right to be heard there by witnesses or counsel, its attorney had no authority, without its consent, thus to tie its hands in the assertion of its legal rights. This precise question was presented to the United States supreme court in the Bank-Tax Cases (Stone v. Bank) 174 U. S. 422, 19 Sup. Ct. 751, 43 L. Ed. 1032, where the court, speaking of an agreement like this, made before the suit was filed, and criticising a decision upholding such an agreement by an attorney after the suit was filed, said: "As we have said, the question to be determined was one of policy as well as law,-eminently one for the consideration of the city authorities, its mayor, and its general council, aided and assisted by the advice of the attorney of the city. It was a decision of a corporate nature, and not one to be decided by any but the corporation." It is well settled in this state that an attorney has no power to compromise his client's suit. Smith's Heirs v. Dixon, 3 Metc. 442; O'Reiley v. Call, 7 Ky. Law Rep. 516; Mining Co. v. Welburn, 11 Ky. Law Rep. 307. The agreement relied on of the attorney out of court in this case is much more objectionable than a compromise outright of the suit. It was substantially a wager by the attorney of the city's right to tax appellee on the result of another suit, to which the city was not a party, and in the management of which it had no control. The power of taxation exercised by the cities of the state is a sovereign power, and cannot be lost in this way.

It is earnestly argued for appellee that the city should not be allowed to escape now from the agreement made by the attorney, for the reason that, if this agreement had not been made and acted on by appellee, it

would, under the previous decision of this court, which had not been overruled, have then obtained a judgment in its favor releasing it from the payment of the taxes in controversy. There is a plausibility in this argument, but no merit, as it seems to us; for, if such a judgment had been rendered, the city might within two years thereafter have prosecuted an appeal from it and obtained a reversal, as was in fact done in other cases. Besides, the constitution requires all property to be taxed equally. Equality of taxation is essential to any just system. So far as any taxpayer escapes, an additional burden is laid upon the shoulders of others. The sum of appellee's contention is, therefore, that it is prevented from taking advantage of an error in the administration of justice, and from thus compelling other taxpayers to bear its part of the common burden. The petition is overruled.

DU RELLE, J. (concurring). In my view, there are other reasons for the decision rendered in this case than those stated in the opinion. I shall state them in as brief a manner, and as little incumbered by citation of authority, as possible. The question presented is whether process from a court of Indiana may be served upon the Ohio. river south of low-water mark. The settlement of this question depends upon the construction given to the peculiar phraseology of section 11 of the compact between Kentucky and Virginia (13 Hen. St. Va. 19). That provision is: "Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this commonwealth, and of the proposed state, on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river." This cannot be a grant to any state upon the northern shore of the river, for no such state existed. There was no being in esse answering the description to take such a gift. But if it be the proper construction that, by this provision, a trust was created for the benefit of a state thereafter to be created upon the northern shore, and

by this language Kentucky was made trustee to hold the title until such creation, it may be that the contention of appellees may be sustained. But in construing this section it should be borne in mind that it was one part only of the legislation and action whereby Virginia disposed of her imperial domain And it must be construed as being in pari materia with the resolution of the Virginia legislature relating to the cession of the Northwest Territory, the deed of cession, the ordinance of 1787 by congress accepting the grant, the amendment of the deed of cession at the request of congress, and the acts of congress admitting Kentucky, Indiana, Illinois, and Ohio into the Union as states. In none of these statutes or deeds is there to be found any language indicating the slightest intention on the part of Virginia to grant, or the faintest idea upon the part of the general government that it obtained, for itself or any other body politic, any jurisdiction, concurrent or otherwise, over the Ohio river south of low-water mark. When Virginia granted to the general government the territory northwest of the river, it retained the territory as far as low-water mark on the northern side, and consequently retained all jurisdiction to that boundary, for jurisdiction follows boundary. By the compact, the soil as far as that boundary was ceded to Kentucky, and jurisdiction as far as that boundary went with the grant of the territory, except in so far as jurisdiction may have been reserved in the grant. The compact was approved December 18, 1789, by both states. By laws enacted in 1791-92, Kentucky was admitted into the Union as a state, according to the provisions of the compact. By the terms of the grant, which were simultaneously accepted by the grantee, it was provided-. First, that the navigation of the river, so far as the territory of the proposed state, or the territory remaining within the limits of the grantor, lies thereon, shall be free and common to the citizens of the United States; and, second, that the respective jurisdictions of Virginia and Kentucky on the river should be concurrent only with the states which may possess the opposite shores of the said river. This does not mean at all the same thing as a provision that the jurisdiction should be only concurrent with such states. That would be a limitation upon the jurisdiction which Kentucky acquired by the compact. The language used is a stipulation that no other body politic, except those states possessing the opposite shores, should be permitted to have concurrent jurisdiction with Kentucky over the river. It was an agreement that the general government, to which the Northwest Territory had just been ceded, should not have, in exercising territorial government over that domain, concurrent jurisdiction with Kentucky over the river. The jurisdiction was to be concurrent only with such states as might thereafter possess the opposite shores. This was not a limitation

upon Kentucky's jurisdiction. It was an inhibition against parting with it. It gave the territory, and with it the jurisdiction, to lowwater mark on the northern shore; and it provided that Kentucky should not cede concurrent jurisdiction over the river to the United States, exercising territorial government over the Northwest Territory, or to any other state than those which might possess the opposite shore.

Where, then, do the states to the north of the Ohio obtain jurisdiction, if this construction of the compact be correct? Jurisdiction by one sovereign over the territory admitted to be the property and within the boundary of another is not to be lightly implied, and surely not from language so vague and uncertain as that used in the compact upon this point. The congress of the United States has invariably, in its action, recognized this construction as correct. In 1802 Ohio was admitted as a state, and its boundary fixed at the Ohio river. No concurrent jurisdiction was granted, and, of course, no territory extending over the river, for the general government had no territory extending over the river. In 1816 Indiana was admitted. The boundary of its territory was fixed on the west at the middle of the Wabash river, and on the south by the Ohio river. And it was further provided "that the said state shall have concurrent jurisdiction on the river Wabash, with the state to be formed west thereof, so far as the said river shall form a common boundary to both." But no grant is found here of concurrent jurisdiction over the Ohio. In 1818 Illinois was admitted, and its territory bounded by the middle of the Wabash river, the middle of the Mississippi river, and the Ohio river. These acts show that the federal government did not assume that the three states to the north had concurrent jurisdiction with the state of Kentucky over the Ohio. In 1820 Virginia declared the Ohio river lying opposite her was to be considered as comprehended within the bodies of several of her counties, subject to the provisions of the compact with Kentucky. Code Va. p. 50. Ten years before Kentucky had enacted a statute to the same effect. If the federal government had concurrent jurisdiction, it did not surrender it by the act which admitted Indiana as a state. That state derived its whole existence from the federal government, and can claim no right from any other source. Kentucky could not, by a compact with Indiana, grant concurrent jurisdiction without the consent of the general government. Ohio has never adopted any legislation claiming concurrent jurisdiction over the river, nor has such jurisdiction ever been expressly asserted by its courts. So with Illinois, which has never claimed jurisdiction until the constitution of 1848, if then. The constitution of 1818 fixed the boundaries according to the act admitting the state into the Union, but in the constitution of 1848 it is provided: "This state shall exercise such

jurisdiction upon the Ohio as she is now entitled to, or such as may be agreed upon by this state and the state of Kentucky." Const. art. 1, § 1. It is obvious that the jurisdiction Illinois was then entitled to was as far as low-water mark on the northern shore. The same provision contained in the Illinois constitution of 1848 is embraced in the constitution of 1870. The preamble of the Indiana constitution of 1816 states that it is formed consistent to the act of congress enabling the people of the Indiana territory to form a state. There is here no claim of concurrent jurisdiction. Nor is there one in the ordinance adopted by the first constitutional convention accepting the boundaries as fixed by congress. That constitution (article 5, § 2) fixes the jurisdiction of the supreme court with the limits of the state. But in the constitution of 1851, 35 years after the beginning of its existence as a state, it asserted its claim to concurrent jurisdiction with Kentucky. I shall not take time to consider the cases in the supreme court of the United States further than to say that the question has never been there decided. Nor is it profitable to consider the cases of concurrent jurisdiction depending upon the grants embodied in the acts of congress. A claim of jurisdiction by one state over the land of another must be supported by some grant, or the claim fails. Kentucky has never granted to Indiana any jurisdiction over the Ohio river, concurrent or otherwise. It is beyond her power, as limited by the constitution, to do so. Const. U. S. art. 1, § 10. If such jurisdiction in Indiana exists, it must be by virtue of the language of the compact, which to that end must be construed as creating a sort of springing use of jurisdiction for the benefit of states unborn. No stretch of construction can avail to extract from the language of the compact an implication which will give to a state not a party to the instrument, and not in being at the time of its execution, jurisdiction over the territory and within the boundary of another sovereignty, so as to authorize the grantee by implication to serve process and make arrests upon the territory of the other, and try offenders for acts committed upon foreign soil, or to impose penalties for acts which are not prohibited by the owner of the territory. "There must be accurate and express treaty stipulation between the contracting parties to confer extraterritorial jurisdiction." Vatt. Law Nat. (6th Am. Ed.) 120. "Sovereignty, united with domain, establishes jurisdiction." Id. p. 165. For the additional reasons given here, I concur with the opinion of the majority.

HOBSON, J. (dissenting). The question involved in this case is whether the process from the courts of Indiana may lawfully be served by he, officers on the Ohio river. In January, 1781, Virginia, by an act of her legislature, ceded to the United States all right she had to the territory "northwest of the

river Ohio." In December, 1789, another act, now known as the "Compact with Virginia," was passed, under which the territory then styled the "District of Kentucky" was permitted, under certain conditions, to be formed into an independent state. Under these acts, the boundary line between Kentucky and the states lying northwest of the Ohio is the low-water mark on the northwest side of the river. Handly v. Anthony, 5 Wheat. 374, 5 L. Ed. 113; Indiana v. Kentucky, 136 U. S. 479, 10 Sup. Ct. 1051, 34 L. Ed. 329. Ordinarily the laws of a state and the authority of its officers to execute its process are confined to its territorial limits; but the seventh condition of the compact with Virginia is this (section 11 of compact): "That the use and navigation of the river Ohio so far as the territory of the proposed state or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States; and the respective jurisdictions of this commonwealth and of the proposed state on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the river." Since this act was passed that part of Virginia which still bordered on the Ohio river has been formed into the state of West Virginia. The words, "the proposed state," refer to Kentucky. The words, "river as aforesaid," refer to that part of the river which was included in the act. The word "only" is used in the last clause because, though the use and navigation is to be free to all states, the concurrent jurisdiction on it was to be confined to the states possessing the opposite shores. The copula "and," connecting the two clauses of the sentence, shows that the last clause is not a limitation on the first, but an additional condition annexed to the grant. The meaning of the sentence is therefore (1) that the use and navigation of the Ohio, so far as the territory of West Virginia or Kentucky lies thereon, shall be free and common to the citizens of the United States; (2) that the respective jurisdictions of West Virginia and Kentucky on the river shall be concurrent with the states alone which possess the opposite shores. The question to be determined, so far as this case goes, is what concurrent jurisdiction is thus vested in Kentucky and Indiana on the Ohio.

The original opinion is based upon the ground that only concurrent legislative jurisdiction is conferred. But by what authority can the general term "jurisdiction" be curtailed in this way, when there is nothing in the act to sustain such a construction? The power to make laws would be of no value without the power to enforce them. The words, "respective jurisdictions of this commonwealth and of the proposed state," cannot naturally be understood as including only the legislative branch of the government. This court might with equal propriety declare