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Guthrie, and that his train was run at a forbidden rate of speed between Guthrie and Moore's, where the accident occurred. Testimony was offered on the issue thus raised by both plaintiff and defendant. Contributory negligence is a defense, and it was relied upon in this case by the defendant. averred the acts which it claimed amounted to contributory negligence, and it offered an instruction embodying the form in which it desired the question to be submitted to the jury, as is shown by the instruction, which reads as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff's own negligence, if any, contributed to his injury complained of, to such an extent that said injury would not have occurred but for his own negligence, if any, they must find for the defendant on the claims sued on by the plaintiff." It will be observed that in instruction No. 1 given on motion of the defendant the question of contributory negligence was submitted to the jury. In instruction No. 5 the jury was again told that the plaintiff was not entitled to recover if he was guilty of contributory negligence. So the court gave instructions, both of the plaintiff and defendant, submitting the question of contributory negligence in the exact form asked and desired by it, and in more than one instruction. From the testimony in this case, and from the instructions given to the court, a jury of the most ordinary intelligence could not have failed to understand the acts which were relied upon as amounting to contributory negligence. An instruction was not asked by the appellant, telling the jury that if appellee's train left Guthrie within less than five minutes after the passenger train had left, and that the accident would not have happened except for that fact, then the appellee was not entitled to recover. As such an instruction was not asked by the appellant, it is not entitled to complain on this appeal that it was not given, even if such an instruction had been a proper one. So far as we are aware, an unsuccessful litigant has never procured a reversal of a case because the court gave an instruction to the jury upon a given subject in the exact terms asked by him. As early as 1823, in Clift v. Stockdon, 4 Litt. 215, this court held that one cannot assign for error an erroneous instruction obtained on his own application. Under the rule of this court, if the defendant had not asked for an instruction upon the subject of contributory negligence, and the court had failed to give one on that subject, it would not be entitled to a reversal. White v. Cole (Ky.) 47 S. W. 759; Railway Co. v. Moats (Ky.) 50 S. W. 31. How much less is the defendant entitled to a reversal in this case, where he got the instruction which he moved the court to give upon the subject of contributory negligence! As an instruction was not asked for or given on the question of the alleged violation of the rule forbidding the departure of

appellee's train until after the lapse of five minutes after the passenger train had left, the question is not before us as to whether it should have been given in addition to the instructions on contributory negligence. The evidence that the rule of the company limiting the speed of trains was habitually disregarded, with its knowledge, was properly admitted. Railroad Co. v. Bowcock (Ky.) 51 S. W. 580. The judgment is affirmed on original and cross appeal.

HOBSON, J. I concur in the opinion of the court so far as it is in accord with the opinion of the court heretofore delivered. But, for the reasons stated in that opinion, I am of opinion that the ends of justice require a new trial. The fundamental error in the instructions of the court, given over appellant's objections, is that they eliminate obedience to the rules entirely from the case, and authorized the jury to find for appellee, though by his own disobedience of the rules he caused the collision, if the jury thought it was not negligence on his part not to obey them. I therefore dissent from the judgment of the court.

1. Where a council consists of six members, with the mayor as presiding officer, the mayor and three of the councilmen do not constitute a quorum, and their acts are void.

2. Where less than a quorum of a city council attempted to fill a supposed vacancy in the council when none in fact existed, their appointee was not a de facto officer, though he qualified and acted as councilman, as the person whose place he was appointed to fill, though he failed to attend the meetings of the council, continued to be councilman, both de facto and de jure.

3. Under Ky. St. § 3486, providing that threefourths of the members of the council of a city of the fourth class voting affirmatively may, for any good cause, expel any member, the act of less than that number of members declaring vacant the seat of a member for his willful failure to attend the meetings of the council does not create a vacancy.

4. A tax levied by less than a quorum of a city council is void.

5. Under Const. § 180, an order of a city council levying a tax is void unless it distinctly specifies the purpose for which the tax is levied.

6. Where a tax levy made by a city council is void for failure to specify the purpose for which the tax was levied, the council may subsequently make a proper levy.

7. A set-off cannot be pleaded against the claim of a city for taxes.

8. Under Ky. St. § 3546, a city of the fourth class may sue for taxes.

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

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

Action by the city of Somerset against the Somerset Banking Company to recover taxes. Judgment for defendant, and plaintiff appeals, defendant prosecuting a cross appeal. Affirmed on original appeal and reversed on cross appeal.

O. H. & R. B. Waddle and Elbert Weslen, for appellant. Curd & Smith and Jas. Denton, for appellee.

HOBSON, J. Appellant, the city of Somerset, filed this suit to recover of appellee, the Somerset Banking Company, municipal taxes alleged to be due from it for the years 1895, 1896, 1897, 1898, and 1899. The action was dismissed without prejudice as to the years 1895 and 1896. On final hearing the court below gave judgment in favor of the city for the taxes for the year 1897 and the year 1899, but dismissed the action as to the taxes for the year 1898. From this judgment the city has appealed, and the banking company has prosecuted a cross appeal.

The ruling of the court that no recovery could be had for the taxes for the year 1898 appears to be based on the ground that the levy for that year was not made by a legal quorum of the city council. The facts in this matter are these: At the November election, 1897, a mayor and six councilmen were elected. All of them qualified and entered upon the discharge of their duties as required by law, but after January 14, 1898, three members of the council absented themselves from all of its meetings. This continued until June 13, 1898, when the mayor and the other three members of the council, who had continued to meet, in regular session adopted a resolution declaring the seat of T. J. Curtis, one of the three absentees referred to, vacant on account of his willful failure and refusal to attend the meetings of the board for four months previous thereto. They thereupon elected M. T. Crawford to fill the vacancy, and at the next meeting Mr. Crawford presented his certificate, and was regularly qualified as a member of the board. At the next meeting-on July 11th-the seats of the other two absentees were declared vacant and filled in like manner. By the council, as thus com. posed, on August 22d, the levy in question was made. It was held by this court in City of Somerset v. Smith (Ky.) 49 S. W. 456, that the mayor and three councilmen do not constitute a quorum, and that a contract entered into by the council thus constituted is invalid; and, as only the mayor and three councilmen were present when Curtis' seat was declared vacant, it is insisted for appellee that the action of the council was void for want of a quorum, and that Crawford and the other two similarly appointed subse quently were merely intruders, and that the levy, not having been made by a legal quorum of the council, is not enforceable. On

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the other hand, it is insisted that Crawford was at least a de facto officer, and that the action of the council in filling the other two vacancies, in which he co-operated, was not void for want of a quorum. It is clear that, if Crawford was not a de facto officer, his presence at the election of the other two would not help matters, and their presence and his when the tax was levied would be equally unavailing. The material question in the case is, therefore, was Crawford a de facto officer, he having regularly qualified, and having been recognized by the other members of the council as councilman? It will be observed that, the action of the council in removing. the absentee, Curtis, being void, Curtis, who had qualified, and entered upon the discharge of his duties, continued to be both a de facto and a de jure officer, and that there was no vacancy for the council to fill. The substance of the case is that less than a quorum of the council undertook to put another in Curtis' seat. The recognition of Crawford by the three councilmen and the mayor who had appointed him, and their acquiescence in his acting as councilman, conferred on him no right, for they could not, by their conduct, do indirectly what they could not do directly. em, Pub. Off. § 322, it is said: "It is evident that two different persons cannot at the same time be in the actual occupation and exercise of an office for which one incumbent only is provided by law. There cannot, therefore, be an officer de jure and another officer de facto in possession of the same office at the same time. Hence, if the officer de jure is in, there is no room for an officer de facto; and, if the officer de facto is in, the officer de jure cannot be in also." In State v. Blossom, 19 Nev. 312, 10 Pac. 430, while there were regular school trustees, others acted, and sought to sustain their action on the ground that they were de facto officers. The court said: "Two physical bodies cannot occupy the same space at the same time, and two persons cannot be officers de facto for the same office at the same time." This question was fully considered in Re Gunn, 50 Kan. 155, 32 Pac. 470, 548, 19 L. R. A. 519, where the supreme court of Kansas, by Horton, C. J., collecting many authorities, announced the same rule. It seems to us a sound one, and under it Crawford was a mere intruder into the office, and had no more right to discharge the duties of councilman than any bystander who might be present and take Curtis' seat at a meeting of the council when he was not present. If Curtis had come to the meeting of the council on July 11th, or at the subsequent meeting when the levy in question was made, it is clear that he would have been entitled to his seat, and that Crawford would not have been justified in withholding it from him. We know of no principle of law upon which one may become a de facto member of the city council in the absence of the regular

councilman. Our conclusion is, therefore, that the court below did not err in holding the levy for 1898 void. Section 3486 of the Kentucky Statutes, which contains the only power of the board in this matter that we have found, provides as follows: "In case of

a vacancy in the board by death, resignation, or any other cause, such vacancy shall be filled as hereinafter provided. The board shall meet at such times and places as shall be provided by ordinance. It shall judge of the eligibility and election returns of its members, adopt rules for its proceedings and government and enforce the same by appropriate fines, not exceeding ten dollars for each offense; and three-fourths of the members voting affirmatively may for any good cause expel any member." As we have said, there was no vacancy to be filled. Threefourths of the members were not present, and did not vote to expel Curtis. The officers elected by the people when they have qualified and entered upon a discharge of their duties can only be removed pursuant to legal authority. It follows, therefore, that the court below did not err in dismissing the action as to the taxes for the year 1898, and the judgment appealed from on the original appeal is affirmed.

The cross appeal raises the question whether the tax levies made by the council for the years 1897 and 1899 are sufficient in form to be enforced. Section 3490, Ky. St., confers upon the council, among other things, power as follows: "To levy and collect for municipal purposes an annual ad valorem tax not exceeding seventy-five cents on every hundred dollars of all property made taxable by law for state purposes; in addition not exceeding fifty cents on the hundred dollars worth of property taxable for state purposes, for the maintenance of public schools, or the erections of buildings for public school purposes; and not exceeding fifty cents to meet the principal and interest of any bonded debt hereinafter authorized." "To levy and collect annually upon every male resident of the city twenty-one years of age or over a head or personal tax of not exceeding one dollar and fifty cents per capita." Section 180 of the constitution is in these words: "The general assembly may authorize the counties, cities or towns to levy a poll tax not exceeding one dollar and fifty cents per head. Every act enacted by the general assembly and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body levying a tax, shall specify distinctly the purpose for which said tax is levied and no tax levied and collected for one purpose shall ever be devoted to another purpose." The order of the council levying the tax for 1897 is this: "E. M. Rousseau made a motion to fix the tax levy at seventy-five cents on each one hundred dollars, and one dollar poll. The motion was seconded by R. Kolker, and carried on a call of yea and nay." The order levying the tax for the year 1899

is as follows: "Mr. E, M. Porch made a motion to fix the tax levy for the year 1899 seventy-five cents on each one hundred dollars, and one dollar poll. Motion was seconded by J. B. Thornton, and carried on a call of yea and nay." It is clear that neither of these orders specifies distinctly the purpose for which the tax was levied, as required by the constitution. While this court has followed the rule of holding municipalities to no great minutiæ in specifying the purposes of the levy (Cahill v. Perrine, 49 S. W. 344; Pulaski Co. v. Watson, 50 S. W, 861), we are unable to know for which of the purposes named in the statute those levies were made, or whether they were designed to cover them all; and we think they are clearly in violation of the constitutional requirement above quoted, which is mandatory, and must be obeyed. We are, therefore, of opinion that the levies in question are void; but it does not follow that the city is without remedy. If the council has, by inadvertence or neglect, failed to perform a duty imposed upon it by law at the proper time, it may yet perform it. The city government has been established for the reason that it was deemed necessary for the peace and good order of the community, and a mere mistake of the council will not be allowed to destroy the government, or cripple its efficiency. Where the council has failed to make a proper levy it may subsequently do so. This was determined in Levi v. City of Louisville, 97 Ky. 394, 30 S. W. 973, 28 L. R. A. 480, and the conclusion announced in that case is supported by the great weight of authority.

The only other question necessary to consider relates to a set-off pleaded by the appellee, consisting of a judgment in its favor against the city. Section 96 of the Code of Practice thus defines a set-off: "A set-off is a cause of action arising upon a contract, judgment or award in favor of a defendant against a plaintiff or against him and another; and it cannot be pleaded except in an action upon a contract, judgment or award." If under section 3546, Ky. St., this may be regarded an action upon a contract, we are still of opinion that the set-off relied upon cannot be maintained. It has been held that a set-off cannot be maintained against the state. Mason v. Com. (Ky.) 36 S. W. 570; Kentucky Chair Co. v. Com. (Ky.) 49 S. W. 197. The same rule should apply to set-offs against taxes due to municipalities. The law requires the municipal government to be carried on, and, if the municipality may be deprived of its revenue in this way, the efficiency of the government may be destroyed. The constitution, as we have seen, forbids taxes levied for one purpose from being appropriated to another, and, if such set-offs were allowed, hopeless confusion might ensue. The proper remedy for the collection of such judgments is by mandamus against the city authorities. By section 3546, Ky. St., the city is authorized to proceed by action for the collection of un

MEALER et al. v. GILBERT et al. (Court of Appeals of Kentucky. Dec. 20, 1900.)

ATTORNEY AND CLIENT-ADVERSE INTERESTRELATIONS.

Where a mortgagor, against whom foreclosure was pending, employed the attorney for the mortgagee to resist another claim against her, knowing such attorney's relations to the mortgagee, she cannot resist enforcement of a mortgage given by her in payment for such attorney's successful resistance of the claim on the ground that the attorney's previous employment was inconsistent with his relations with her.

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

Action by John T. Hays against E. J. Mealer and others to enforce a mortgage lien. Judgment for plaintiff, and certain of the defendants appeal. Affirmed.

Crawford & Moore, for appellants. John T. Hays and W. S. Pryor, for appellees.

She

PAYNTER, J. The appellant E. J. Mealer executed her note to the appellee John T. Hays for $400, and to secure same gave a mortgage on certain real estate. pleaded that the note (1) had been obtained by fraud and misrepresentation; (2) that he was to collect certain moneys and apply them to the payment of a certain debt against her property, and failed to do so; (3) that his employment as her attorney was inconsistent with his previous employment by the appellee Gilbert. A certain sale bond for over $8,000 had been executed in the Bell circuit court by the husband of the appellant and others, and an execution which issued thereon had been levied on property in Barbourville as that of her husband, which was claimed by her. As compensation for his services as attorney, Hays claims she agreed in writing to pay him $350 and expenses if he succeeded in relieving her property from the execution which had been levied upon it. Pursuant to that agreement he enjoined the collection of the execution, and finally obtained the cancellation of the bond upon which the execution had been issued, thus relieving her property from the levy under the execution, and her deceased husband's estate from liability on the sale bond. this had been accomplished he proposed to her to settle the matter by the execution of the note and mortgage for his fees, and the expense which he had incurred in conducting the proceedings. She was aware of what he had done at the time she executed the note and mortgage, and did so voluntarily. Whether it was advisable for her to contract the liability which she did to have

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essary for us to decide. She regarded it as important to have the services performed, and he, as attorney, rendered them for an agreed compensation. We do not think the record in this case shows that Hays unfairly or wrongfully obtained the note and mortgage. In the suit which Gilbert brought to enforce his claim against the property of the appellant, she did not employ Hays, but had employed Wilson and Rawlings, who did represent her in that case. There was nothing inconsistent with the services which Hays had undertaken to perform for the appellant and that which he was performing for Gilbert. He never undertook to resist Gilbert's effort to enforce his mortgage against her property. On the contrary, Gilbert had employed him to enforce his mortgage lien at the time she employed him to resist the claim growing out of the execution of the sale bond in the Bell circuit court, and she was aware of that employment. Hays seems to have favored her in the matter by getting his client, Gilbert, to suspend for a time the prosecution of his action for the enforcement of his lien. She really made no defense to the enforcement of Gilbert's claim. She did file an answer to it, but subsequently withdrew it. The judgment is affirmed.

LUDWIG v. COMMONWEALTH.1 (Court of Appeals of Kentucky. Dec. 20, 1900.)

HOMICIDE-MALICE-EVIDENCE

1. Malice, in its legal sense, is the intentional doing of a wrongful act towards another without legal justification or cause; and where the evidence showed malice, in this sense, it was proper to instruct the jury as to murder.

2. It was not error to permit a witness to testify that a short time before the shooting defendant asked him if he had any machine oil, and gave as a reason for the inquiry that his pistol had gotten rusty, and he wished to oil it.

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

John H. Ludwig was convicted of the offense of murder, and he appeals. Affirmed. R. C. Rives and E. H. Gaither, for appellant. R. J. Breckinridge, for the Commonwealth.

BURNAM, J. Having been convicted and sentenced to the penitentiary for life for the murder of Mart. Stevens, John H. Ludwig has appealed to this court to obtain a reversal of that judgment. The grounds relied on in the brief of appellant's counsel are, first, that the testimony fails to show that the death of Stevens was the result of, or was caused by, any act of appellant. On this point the witness Tillett testifies: That the deceased was engaged in hauling cinders in

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

a wheelbarrow from the roundhouse, and dumping them before the building. That he saw appellant walk up to him, with his left hand in his inside pocket, and grab him in the collar. That a scuffle then ensued between them, and that he saw appellant draw out a knife, but that he did not open it. Thereupon Stevens shoved him back from him, and picked up a rammer used in tamping the cinders. That appellant then stepped back two or three steps and said, "What is the matter with you?" That Stevens thereupon started towards him with the rammer drawn, but stopped before reaching him, and laid the rammer down on the crossing. That, after he did this, appellant drew his pistol with his left hand, changed it to his right, and fired. That Stevens was standing still and making no demonstration at the time. That he immediately sank down, and died in 30 minutes. The witness Baker testifies that the body of the deceased was brought to his undertaking establishment to be prepared for burial, and that when he had removed the clothing he found that the pistol ball had entered just above the left nipple. It seems to us that this testimony furnishes the most conclusive response to this contention that could possibly be given, and the court did not err in refusing to instruct the jury to find appellant not guilty on this ground.

It is next contended that the testimony in this case furnishes no evidence of malice on the part of appellant, and that the court erred in giving the instruction authorizing the jury to find the defendant guilty of murder. In response to this suggestion it may be said that "malice," in its legal sense, has a very different meaning than the word when used in the popular sense. In the latter sense it means hatred, ill will, or hostility to another. But in its legal sense it means the intentional doing of a wrongful act towards another without legal justification or See 3 Greenl. Ev. § 14; 1 Ky. Cr. Law & Proc. p. 17, and cases there cited. We think the testimony furnishes abundant evidence of legal malice, and the court was justified in giving the instruction complained of.

cause.

The third ground of complaint is that the court permitted the witness Gibson to testify "that, a short time before the shooting, appellant asked him if he had any machine oil, and told him, as a reason for asking the question, that his pistol had gotten rusty, and that he wanted to oil it." We think this testimony was competent, especially when taken in connection with the statement of defendant that his pistol was out of fix, and that it went off accidentally; and in view of the further testimony of Gibson that, a short time before appellant asked for the machine oil, he was telling him of certain offensive words spoken to him by the deceased a few days previously. We have given the record and brief of counsel for appellant a careful consideration, and, so far as

we are able to discover, appellant has had a fair and impartial trial, and according to law, and the judgment must be affirmed.

FIFTH WARD BLDG. ASS'N v. DINE'S TRUSTEE et al.1

(Court of Appeals of Kentucky. Dec. 20, 1900.)

MORTGAGE-CONTROL OF PROPERTY BY JUN-
IOR MORTGAGEE AS AGENT-PRIOR
LIEN FOR ADVANCES.

A junior mortgagee, who has controlled the mortgaged property as agent of the mortgagor for the purpose of applying the rents to the mortgage debts, is not entitled to a lien for advances made for repairs and taxes, where the rents were sufficient to pay such charges, and the property is insufficient to pay the balance of the senior mortgagee's debt; nor is he entitled to be reimbursed out of the property for payments made to the senior mortgagee on his debt, no authority having been given to him to advance his individual money.

BURNAM, J. In January, 1891, Hattie F. Sewell subscribed for 11⁄2 shares of appellant's stock, and simultaneously borrowed $750, for which she executed her note, and at the same time executed a mortgage to secure the payment thereof on a lot at the southeast corner of York and Eglantine streets in Newport, Ky. The mortgage also covered the interest, premiums, and dues upon her stock. Some years thereafter she borrowed from Philip Dine $4,000, for which Ishe gave him her two promissory notes, and simultaneously executed a mortgage upon divers tracts of land owned by her in Newport; among others on the lot which had been previously mortgaged to appellant. And subsequent to this conveyance, on the 17th day of December, 1895, Hattie F. Sewell executed to appellee Harry N. Dine a certain deed of trust, or, more properly speaking, power of attorney, in which she authorized him to lease and rent the lot at the corner of York and Eglantine streets, collect the rents, keep the property in repair, pay all taxes assessed and charged against same, then to pay the sum of $85.85, due in arrears to appellant association, and dues which might become due thereon for a period of eight months from the date of the execution of the deed of trust by reason of the mortgage on the property executed by Hattie F. Sewell to the association. Thirdly, it was provided that,

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