Collins & Fenley and D. S. Clay, for ap- | faithful and honest discharge of their duties pellant. De Jarnette & Dickerson, for ap- than the judges of the various circuit court pellee.

districts; and, whether elevated to these positions by appointment or the popular vote. PRYOR, J. The principal and only ques- it cannot be truthfully said that they are intion necessary to be considered in this case fluenced in their judicial action by local inarises from the refusal of the regular judge fluences or party prejudice. Those who below to vacate the bench on the filing by make these affidavits (and they are becoming the agent of the appellant with the clerk of almost as numerous in contested cases as the court. as provided by section 1, art. 7, c. motions for a continuance) assign no cause 28, Gen. St. Ky., to the effect that "the judge for their belief that justice will be denied would not afford the appellant a fair and im- them, yet the trial judge, with no charge partial trial." When the case was called made against him, is often unseated by a the appellant, the German Insurance Com- litigant he has never known, or by those pany, of Freeport, Ill., defendant in the ac- with whom he has never had a business transtion, moved through its counsel for a con- action, with no means of ascertaining the tinuance of the case, supported by the affida- facts upon which the belief of the litigant is vit of its agent. The motion was overruled, based, and, however corrupt the oath may and thereupon an amended affidavit was filed, be, there is no means of punishing the guilty and the motion was renewed, and the motion party, because his belief is made the law. In again overruled. At this stage of the pro- fact, that branch of the judiciary upon whose ceeding the counsel filed the affidavit of the intelligence and integrity we depend more agent, asking that the case be tried by a for the protection of person and property special judge, and the court, disregarding than any other, and whose intercourse and the affidavit, proceeded to try the case, re- influence with the people in the administrasulting in a verdict and judgment against the tion of the law mould public sentiment in appellant. The constitutionality of this stat- sustaining every moral as well as legal prinute, requiring the judge to vacate the bench, ciple essential to social existence, is met at was maintained and ably argued on the hear- every term of the court with an affidavit that ing, and if constitutional it is urged the he is a corrupt or partial judge, and this judgment in this case should be reversed, affidavit spread upon the records. It not only in order that the appellant may have a re- lessens the respect we should have for the trial before some other judge than the reg-judge and the law he administers, but tends ularly elected judge of the district. The directly to destroy that pure public senticonstant abuse of this statutory privilege ment that demands its vigorous enforcein almost every circuit court district in the ment. The statute cannot well be held unstate has directed the attention of the courts constitutional, for the reason that all doubts and the profession to this important ques- as to the constitutionality of the act must tion, and while the purpose of the law is favor its validity, and, as has been also argued, to place the trial judge beyond the tempta- the absence of the legislative power is no artion to oppress those who are compelled to gument against its exercise; still it may be resort to the courts for the protection of a convincing argument against such a conperson and property, and to enable the liti-struction as must be apparent is in plain viogant to prevent a corrupt or partial judge from passing judgment on his case, it must be conceded by every one at all familiar with the administration of the law by the circuit judges of the state that this statute, with the construction now given it, operates in its practical effect to enable the shrewd and reckless litigant to avoid the trial of his case by the regular judge without cause, and to deprive the honest litigant of what is his constitutional right. He takes advantage of this statute, and acquits bis conscience, in making the affidavit, on the ground that the judge, in refusing a continuance, sustaining a demurrer to his complaint or defense, or in excluding testimony offered, or on account of other rulings in his case, or in other cases, whether erroneous or proper, has induced the belief in his mind that he cannot have a fair and impartial trial. The personal and judicial integrity of the judge is questioned only in this way when every man acquainted with the judicial history of the state will testify, in looking to the present or the past, that no public officials are more entitled to the approbation of their fellow-men for the

lation of the legislative meaning.

Section 28, art. 4, of the constitution, provides: "The general assembly shall provide by law for holding circuit courts when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside.' The legislature under this constitutional provision has from its adoption exercised the power of authorizing the election of special judges, and the causes for which the regular judge may be required to vacate the bench for the time being, and it would be a useless waste of time in the determination of this question to go behind the present constitution, or to consult the common-law rule under which judges were disqualified from trying a cause. Personal interest in the result of the litigation, or being related to those who had an interest, were the only disqualifications at common law. This court, however, held in the case of Turner v. Com., reported in 2 Metc. (Ky.) 625, that our laws had enlarged the causes for which a judge might be compelled to vacate the bench, and that the constitutional provision already referred to was intended to effectuate that ob

ject, and therefore the inquiry in that case | construction is given the statute, can know, was, as must be the inquiry now, did the ap- unless the ground is disclosed by the litigant pellant in the court below manifest its right himself; and therefore, for any of the alleged to have the cause tried by a special judge? causes mentioned, the litigant obtains the Whatever may be said of the policy of this benefit of the statute, although he is not enlegislation, in view of that decision, and the titled to a special judge. It is all left to the constitutional provision under which this leg-litigant, and to no one else, with no means islative power has been so long exercised, of questioning his belief, or punishing him the right of the litigant should not be denied for stating what he does not believe. This him of compelling the judge to leave the cannot be a correct or proper interpretation bench when he cannot properly preside. If of the statute, and is not in accord with the we interpret this statute by its letter, then only decision of this court on the subject. the litigant for any cause may have a special The statute could not have been framed with judge to try his case, if in his own belief a view of protecting a corrupt or partial that cause will justify him in making the af-judge by keeping from the records of the fidavit. The judge may have instructed the court such grave charges against him. If jury, in a case similar to the one the affiant corrupt, it should be known, and the bench is about to try, unfavorably to his side of the vacated for all time, instead of temporarily; controversy. He may have sustained a de- and, if the charges are false, they should be murrer to a pleading in the case, or in some made in such a manner as would subject the other similar case, that if adhered to must party making them to criminal punishment. prove fatal to the case of the affiant. He The fact or facts upon which the belief that may be known to one of the parties, and un- the judge will not give the litigant a fair known to the other. He may have peculiar trial should and must be stated in the affidaviews on certain branches of the law. He vit, and they must be of such a character as may refuse to continue a case when the liti- should prevent the judge from properly pregant or his counsel believes the grounds were siding in the case. We do not mean to say sufficient, etc. In all such cases the litigant the statement of the ground for belief must for such reasons may conceive that injustice establish, if true, that the judge is a corrupt will be done him, and therefore he is ready official, but we do mean to adjudge that such to make the affidavit, when it is apparent causes, and those of like character as have that not one of the grounds mentioned or been noticed, are not sufficient; and there those of a like character are sufficient to re- must be some fact stated, such as personal quire the judge to vacate the bench. Again, hostility, of such a character, if that ground because of the hostile feeling that exists be- is relied on, as would prevent an officer of tween parties litigant, even in ordinary cases, personal integrity from presiding in the case; where the judge rules the one way or the other, and of the sufficiency of the affidavit the trial those perfectly honest, in the excitement of judge must determine, and the question, if the moment, and feeling the sting that per- improperly decided, can be raised in this haps results from an erroneous ruling, will court as in other cases, if an appeal is taken. seize on this action of the court as a justifi- If an honest litigant is sincere in his belief cation (to use the language so often heard that the judge will not give him a fair trial, and used in the records before us) for swear- he will as readily disclose the grounds for ing the judge off the bench. It cannot be his belief as to make the oath that the judge urged that the rule of the common law has will not fairly administer the law in his case, been so far enlarged as to permit the exer- and this he will do before he submits his cise of the privilege conferred by the statute case or any branch of it to the judge for for any of the reasons given. The cause to hearing. The objection to the trial judge disqualify a judge, as said by this court in becomes in fact a question of jurisdiction, Turner v. Com., should not be trivial, "but and the objection, to be available, must be should be a legal and substantial one, and so made before an appearance to the merits of the section should be construed in cases in- the action, or the submission of the prelimvolving the propriety of a judge presiding, inary motions by either party preparatory to and the necessity for a special judge on that a trial. Judges are constituted like other ground." In that case the belief of Turner men. They desire the approbation of their was stated on oath, accompanied by the fellow-men, and will avoid the censure of an grounds upon which his belief was founded.enlightened bar, that is certain to make itThe judge had been personally hostile to Turner for years, and because of this hostility, and for other reasons, he did not believe he could obtain a fair trial. It is contended that the statute has provided the grounds in saying that if the affiant states that the judge will not afford him a fair and impartial trial he shall vacate the bench. This affidavit, or the statements contained in it, the affiant believes are true. What is the foundation of the belief or the ground on which the statements in the affidavit rest? No one, if this v.lls.w.no.6-24

self heard where the judge is favoring the one litigant to the prejudice of the other; and, besides, his high sense of honor will prompt him to leave the bench when facts and circumstances exist rendering it improper for him to preside. There may be exceptions to this rule of conduct, but we can well say that no such exception exists in this state, and, if the time should arrive when official duty is made subordinate to corruption and prejudice, the statute, under the constitution, affords the litigant all the protection he is

entitled to. The affidavit containing no grounds requiring the judge to vacate the bench, the judgment below is affirmed.

SMITH et al. v. BRADLEY et al. (Court of Appeals of Kentucky. March 30, 1889.)

DEED-DESCRIPTION-EJECTMENT.

dence that such tract was ever laid off.

2. Where land is conveyed to one for life, and then to the heirs of her body, and the life-tenant conveys the land in fee, the remainder-men, in an action to recover the land, are not obliged to establish a connected and certain title from the commonwealth.

Appeal from circuit court, Hopkins county; JOHN R. GRACE, Judge.

conveyance by Emily and her husband to the ancestor of the appellants of this 300 acres by metes and bounds, in the year 1863. Now, Emily certainly owned 300 acres of this larger tract of land undivided when the deed took effect. She took possession of 317 acres, as the proof clearly shows, under the deed, and sold it by metes and bounds to Joseph Smith. In fact, there is nothing in the an1. Where one conveys 300 acres of land, directing swer of the appellants denying that this land that it be laid off in convenient form from a larger is the same conveyed by Alexander Lewis. tract owned by him, and the grantee enters into If there had been, the testimony shows that possession of 300 acres under the deed, and after- it is the same land, and the best evidence of wards conveys the tract of land occupied by her by metes and bounds to S., the latter cannot, on that fact is the deed under which the appelthe heirs of the original grantee seeking to re-lants claim the conveyance by Emily and her cover the land, object that the deed to such grantee trustee. That this was the land that Emily was void because it did not sufficiently identify the tract conveyed, although there was no other evi- and her husband held under Lewis, and sold to the appellants, or those under whom they claim, is settled beyond dispute. If the grantor had an uncertain boundary, or one not well defined, the conveyance to Joseph Smith made it certain; and besides, when Emily took possession, or her trustee, it was under the original conveyance; and, after the grantee in the original deed has entered and held for so long a time, it is too late for the purchaser from him to question his title, or to place him in the position of a joint tenant holding an undivided interest. While we find no grounds for a new trial in the record, we have noticed the evidence from which the court below finds that the land PRYOR, J. This action was instituted by conveyed by Bradley and wife to the appelthe appellees to recover a tract of land in the lants is the land held under the trust-deed; county of Hopkins, in the possession of and that by the terms of the trust-deed the mother claimed by the appellants under a conveyance of plaintiffs held a life-estate; and the cause by Alexander Lewis to Alfred Lewis, in trust of action did not accrue to the plaintiffs until for Emily Lewis during her life, and then to the death of their mother, in 1873; and those the heirs of her body. This deed of trust findings are conclusive of this case. It is was executed on the 14th of October, in the apparent from the record that the ancestor year 1846. After the execution of this deed of the appellants entered under the title of Emily married a man by the name of Brad- | Bradley and wife, and that they entered unley, and died in the year 1873, leaving chil-der the title of Alexander Lewis; and now it dren, and those children are the plaintiffs in this action. On the 7th day of March, in the year 1863, Bradley and wife, the parents of these plaintiffs, made an absolute deed to this land to Joseph Smith, the ancestor of the appellants, and the trustees, or a part of them, mentioned in the original deed of trust executed in the year 1846 by Alexander Lewis, united in the conveyance to Smith. The law and facts of this case were submitted to the court without the intervention of a jury, and a judgment rendered for the plaintiffs.

Ejectment by Lewellyn Bradley and others against James Smith and others. Defend ants appeal from a judgment for plaintiffs. Gordon & Gordon, J. B. Earle, and Messrs. Feland, for appellants. E. W. Hines and Waddell & Pratt, for appellees.

The first question raised by the appellants is that the conveyance by Alexander Lewis is void because of uncertainty, or for the reason the land conveyed is not identified. Alexander Lewis, the original grantor, owned a much larger tract of land than that in controversy, as the evidence shows, and directed in the deed of trust that the 300 acres intended for the benefit of Emily should be laid off in convenient form, and there is no evidence that this 300 acres was ever laid off, except the possession by Emily and the trustees, or by Emily under the deed, and the

is insisted that the purchaser from the lifetenant can compel those in remainder to establish a connected and certain title from the commonwealth in order to recover. We think not. Both derive title from the same source, and the question presented is as to the extent of the interest of Bradley and wife in the land. The judgment below is affirmed.

GORDON v. EANS.

(Supreme Court of Missouri. March, 1889.) Concurring opinion. For opinion of the court, see ante, 64.

SHERWOOD, J., (concurring.) If the jurisdiction of the probate court remained as it was prior to the taking effect of the act of March 16, 1881, then clearly said court had no jurisdiction to hear and determine any question except whether Mrs. Eans had embezzled the property in controversy. on the other hand, that court acquired, by reason of said act, an additional jurisdiction over the subject-matter of the action, by reason of the wrongful withholding of said prop

If,

erty by Mrs. Eans, and the voluntary sub- | it did not convey the lots he had purchased, mission of the parties hereto to said addi- or any part of either of them. When Little tional jurisdiction, then it is equally clear & Gaines demanded the $100 he refused to that the action of that court, if there was pay it until they conveyed or caused to be evidence of such embezzlement or wrong- conveyed to him the lots he had purchased. ful withholding, was final. It is therefore They failed to do so, but sued him before a of no importance which theory of the case justice of the peace, and recovered judgment, be adopted, as either is fatal to any further and he appealed to the circuit court. In the prosecution of any other suit in any other circuit court he filed an amended answer, forum. If jurisdiction existed, that is the saying that the lots had not been conveyed end of the matter. Hence, if this court af- according to agreement, and that he had alfirms the jurisdiction of the probate court, it ways been ready and willing to pay the $100 is simply futile to say that our action herein when they were conveyed to him by a deed shall not prejudice any future and further containing covenants of warranty, and deassertion of rights by plaintiffs in some other posited in court the $100 and demanded a forum. I do not believe that the plea of deed to the lots. They again recovered judg res judicata, if it has a secure evidential | ment, and he appealed. Appeliees undertook foundation upon which to rest, can be fore- to procure the conveyance of the lots to apclosed, precluded, or cut off by this court pellant before the payment of the $100 was merely saying that the present ruling shall to be made. The conveyance was a condibe without prejudice. I therefore concur tion precedent to the payment of the money. specially, and for the reasons stated, in the There was no evidence that appellant acceptforegoing opinion, but I deny that the pro-ed the property described in the deed in lieu bate court acquired jurisdiction in the premises. Our former decisions were plainly wrong, and the only way I know of to correct that wrong is to come out and plainly confess the error.

of the lots. The consequence is, appellees are not entitled to recover the $100 until they cause the lots to be conveyed according to their agreement. 1 Whart. Cont. § 581; 2 Pars. Cont. (5th Ed.) 528, 675-677; Atkinson v. Hudson, 44 Ark. 196; Rudd v. Savelli, Id. 150; Price v. Sanders, 39 Ark. 306. If they will do so during the pendency of this cause, they will be entitled to the $100 deposited in court. Reversed, and remanded

DAVIDSON v. STATE.

MCCONNELL v. LITTLE et al. (Supreme Court of Arkansas. April 13, 1889.) VENDOR AND VENDEE-CONTRACT-CONSTRUCTION. for a new trial. In an action for the residue of purchase money of land under a contract by which plaintiffs agreed for a specified sum to procure a conveyance of certain lots from the owner to defendant, there can be no recovery when it appears that plaintiffs gave defendant, before the last installment of the price was due, a deed conveying different lots, though defendant, in ignorance of the fact that the deed did not convey the property purchased, accepted it without objection, as the conveyance of the proper lots was a condition precedent to the right to the purchase money.

Appeal from circuit court, Sebastian county; J. F. READ, Special Judge.

Action by Little & Gaines against McConnell, to recover money due on contract. Judg. ment for plaintiffs, and defendant appeals. Mr. McConnell, appellant, pro se. Clayton & Forrester, for appellees.

BATTLE, J.

(Court of Appeals of Texas. Feb. 23, 1889.) INTOXICATING LIQUORS-LICENSE-SALE BY SERV

ANT.

1. An employé who follows the occupation of selling liquors when the occupation tax has not been paid, violates Pen. Code Tex. art. 110, subjecting "any person who shall pursue or follow any occupation taxed by law," without ob

*

*

taining a license, to a fine.

2. As the minimum fine is an amount not less than the tax so due, (article 110,) and the tax of such occupation cannot be for less than a year, the minimum punishment is the amount of one year's tax on the occupation.

3. Defendant, in a prosecution for misdemeanor, must request instructions to supply omissions in the charge of the court, and exceptions to the omission are not sufficient.

Appeal from district court, Harris county; G. COOK, Judge.

person who shall pursue or follow any occupation, calling, or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes so due," etc.

One McMillan was the owner of certain lots in Greenwood, in Sebastian county, and was indebted to Little & Gaines. William Davidson appeals from a convicThey agreed to sell the lots for him, and ap-tion for selling liquor without a license. propriate the purchase money to the payment Pen. Code Tex. art. 110, is as follows: "Any of his indebtedness to them, and sold to McConnell. McConnell paid all the purchase money, except $100, and Little & Gaines agreed to procure from McMillan a deed to McConnell for the lots. McConnell took possession, and Little & Gaines procured a deed from McMillan to McConnell, and delivered it to him, and he received it without objection. The $100 were to be paid several months after the deed was delivered. WILLSON, J. An employé who follows examination of the deed, made some time the occupation of selling inhibited liquors after its delivery, McConnell discovered that when the occupation tax has not been paid,

On an

W. H. Crank, for appellant. Asst. Atty. Gen. Davidson, for the State.