19 L. ed. 257, and citing Owen v. Howard | Georgia Masonic Ins. Co. v. Davis, 63 Ga. Ins. Co. 87 Ky. 571, 10 S. W. 119. 471. And there may be others. Smith v. Herd, 110 Ky. 56, 60 S. W. 841, 1121, is overruled. Lee v. Union Cent. L. Ins. Co. 22 Ky. L. Rep. 1712, 56 S. W. 724, will not longer be considered authority on this point. We conclude that the provision in the policy that no suit should be maintained upon it, unless begun within one year from the death of the insured, was in contravention of the public policy of this state, and is void. It follows that the judgment of the circuit court, having been in conformity to this conclusion, is affirmed, with damages. Paynter, J., dissents.

The gist of the reasoning advanced in the Riddlesbarger Case, and in the text-books which have adopted it, is that it is essential to the insurer to have the claim promptly presented and adjusted, as by a great lapse of time the circumstances of the transaction are apt to fade from the memory of disinterested witnesses, or the evidence will be lost, and the insured or beneficiary, being on the ground, would have an undue advantage, which might be turned into the fabrication of evidence and the like to support unmeritorious claims. The argument, when presented to the legislature, might justify that body's enacting a general law of limitation for this class of contracts different from that applied to ordinary written obligations. But it is not a good reason why the statute now in force and applicable to such contracts the statute of fifteen years (Ky. Stat. 1903, § 2514)-should not be applied by the courts. Beside, the condition of the law in this state does not warrant the application of the reasoning. For here we enforce the provision of the contract requiring that the insured or beneficiary furnish promptly notice and proof of loss as a condition precedent to his right to sue. This puts before the insurer the fact that it is claimed to be liable on the policy, and the circumstances and names of witnesses by which it is proposed to establish it. Etna L. Ins. Co. v. Milward, 26 Ky. L. Rep. 589, 68 L. R. A. 285, 82 S. W. 364. It is then open to the insurer to protect itself, if it deems the claim unfounded in merit, in two ways: (1) To proceed under the Code to perpetuate its evidence, so that, whenever the action may be brought against it, it has lost nothing by deaths and removals of witnesses; (2) or it may sue at once to be relieved of the liability claimed, on the ground that it has been discharged, or that the contract has terminated, or for whatever reason, and it may thus at once force a trial of the matter, getting such advantages as accrue from that fact.

While recognizing the great ability of the justices of the supreme court, and the learning and wisdom of the courts of final resort of the states that have adopted a different policy, yet we feel constrained to declare that the public policy of Kentucky is a matter peculiarly for her own construction and application. The reasoning applied to uphold the distinction made in favor of insurance contracts to us is unsatisfying, while the objections to the principle on which it rests are insuperable. The supreme courts of two other states have come to the same conclusion at which we have arrived. Barnes v.McMurtry, 29 Neb. 184, 45 N. W. 285, and

A petition for rehearing having been filed, O'Rear, J., on February 15, 1905, handed down the following additional opinion:

The policy provides that any indebtedness of the assured to the company will be deducted from the face of the policy if the latter becomes a claim against the company. The note for $396.80 and interest from December 15, 1897, spoken of in the opinion, ought to have been credited on the sum payable to appellee under the terms of the policy. For the error in failure to do so, the judgment must be reversed, and cause remanded, to enter judgment on the verdict subject to the credit herein indicated. The opinion in other respects is adhered to.

On March 9, 1905, a further opinion was handed down by Hobson, Ch. J., to the effect that, upon withdrawal of the transcript from the clerk's office, he could not tax costs as for two copies, although it was used by both parties, which throws no light on the main proposition in the case, and is therefore omitted.

A. H. HARGIS et al.

V.

Watts PARKER, Judge, ete

1. The supreme court may exercise its

perior over inferior tribunals, see also, in this series, State ex rel. Fourth Nat. Bank v. Johnson, 51 L. R. A. 33, and note, and Re Barber Asphalt Paving Co. 67 L. R. A. 761.

NOTE. As to superintending control of su

As to jurisdiction of crime begun in one state or county and consummated in another, see also, in this series, Watt v. People, 1 L. R. A.

403; Ex parte McNeely, 15 L. R. A. 226; and Graham v. People, 47 L. R. A. 731.

As to crime committed by shooting across state boundary, see State v. Hall, 28 L. R. A. 59. note.

As to effect of prosecution in one county to bar prosecution in another county, where offense was partly consummated in both, see Colo man v. State, 64 L. R. A. 807.

constitutional power to prevent an inferior court from exceeding its jurisdiction, before the question of juris diction has been presented to such court, where the situation disclosed is such that to

take the ordinary course would be of itself to subject the complaining party to irremediable loss.

magistrate to grant the bail; and even implored the Breathitt grand jury to indict them, still it would and could have been no legal fraud on the commonwealth, or on the jurisdiction of Fayette county.

The justice, having jurisdiction of the charge, had the undoubted right to admit to

2. The supreme court has jurisdiction | bail. to intervene by a writ of prohibition

to stay an inferior court from proceeding out of its jurisdiction, under a constitutional provision empowering it to issue such writs as may be necessary to give it a genera! control of inferior jurisdictions. 3. A constitutional right to trial by jury of the vicinage does not prevent the trial taking place in either county, in case a crime is begun in one and consummated in another.

4. The arrest at their own instigation, for the purpose of preventing a trial elsewhere, of persons accused of crime, by a magistrate of the county where the commission of the crime is commenced. and binding them over to await the action of

the grand jury, will not prevent proceedings against them in the county where the crime is consummated, under a statute providing that, if the jurisdiction of any offense be in two counties, the accused shall be tried in the county in which he is first arrested. 5. An accessory before the fact to a murder in which the wound is inflicted in one county and the injured person dies in another may be tried in either county, although his acts are committed only in the former, under statutes

providing that accessories shall be liable to the same punishment as principals, and may

be prosecuted jointly with them, and, in case of a crime committed jointly in two counties the prosecution may be in either.

(March 10, 1905.)

Com. v. Kimberlain, 6 T. B. Mon. 43: Com. v. Nimmo, 7 Ky. L. Rep. 286; Vias v. Com. 7 Ky. L. Rep. 742; 3 Enc. Pl. & Pr. p. 200.

While the court would not sustain the plea of action pending where the penalty was wholly inadequate, yet in a case where the penalty is fixed by law, and "the offender cannot lessen it by misrepresentation," it will be upheld.

Hamilton v. Williams, 1 Tyler (Vt.) 15. If the jurisdiction is concurrent in two or more counties, an election must be made by somebody; and it is clear, if the commonwealth has not made such an election the accused may do so.

State v. Casey, 44 N. C. (Busbee, L.) 209; State v. George, 53 Ind. 434.

The justice of the peace residing nearest the courthouse had jurisdiction to issue the warrants of arrest and take bail bonds.

Act 1886, § 3, Carroll's Crim. Code, § 71; Act 1886, 8, Carroll's Crim. Code, § 71; Com. v. Kimberlain, 6 T. B. Mon. 43; Creekmore v. Com. 5 Bush, 312; Com. v. Nimmo, 7 Ky. L. Rep. 286; Vias v. Com. 7 Ky. L. Rep. 742; 3 Enc. Pl. & Pr. p. 200; State v. George, 53 Ind. 434.

The section of the Kentucky statutes (1147) under which jurisdiction is claimed for Fayette is unconstitutional.

Parker v. Com. 12 Bush, 194; 1 Bishop,

APPLICATION for a writ of prohibition Crim. Law, § 113; United States v. Guiteau,

to restrain defendant from taking jurisdiction of an indictment charging petitioners with murder. Denied.

The facts are stated in the opinion.

Messrs. J. B. Hanna, John M. Stevenson, and J. J. C. Bach, with Messrs. J. Smith Hays, Lewis McQuown, and Hazelrigg & Hazelrigg, for petitioners:

The jurisdiction of this court attached under the averments of the petition in this

case.

Com. v. Jones, 26 Ky. L. Rep. 867, 82 S. W. 643; Const. § 110; Weaver v. Toney, 107 Ky. 419, 50 L. R. A. 105, 54 S. W. 732; Louisville & N. R. Co. v. Miller, 112 Ky. 464, 66 S. W. 5.

If every friend that the plaintiffs have in this case had gone to the magistrate at the instance of the plaintiffs, and implored him, in advance of any actual proceeding in Fayette county, to make the affidavit, to issue the warrant in this case; and implored the sheriff to execute it; and implored the

1 Mackey, 498, 47 Am. Rep. 247; Bill of Rights, § 11; 1 Ky. Stat. 1796, Littell, p. 472; 1 Bishop, Crim. Proc. § 57, subsec. 2; State v. Carter, 27 N. J. L. 499; Riley v. State, 9 Humph. 646.

Messrs. J. R. Allen, N. B. Hays, C. H. Morris, J. R. Morton, A. F. Byrd, and B. R. Jouett for respondent.

O'Rear, J., delivered the opinion of the court:

The respondent the Honorable Watts Parker is the judge of the twenty-second judicial district of Kentucky, comprising Fayette county. The plaintiffs were indicted by the grand jury of Fayette county, charged with the murder of James Cockrill. A bench warrant issued upon the indictment, and was about to be served upon the plaintiffs in this proceeding, when they appeared in this court, and asked that a writ of prohibition issue against the respondent Parker to prevent his taking or exercising

of this state Fayette and Breathitt counties have concurrent jurisdiction of the offense charged in the indictment, and that the county where proceedings were first begun takes the exclusive jurisdiction. (3) That proceedings were first begun in Fayette county. (4) That the alleged proceedings in Breathitt county previous to the indictment returned in January are a myth; or, if in fact had, were the result of collusion between the accused and the officers, including the examining magistrate, were originated for the fraudulent purpose of preventing any prosecution, and were never intended to have been made public except as a defense to the jurisdiction of Fayette county.

jurisdiction over the persons of the plain- | question of its jurisdiction passed on by tiffs. The facts upon which the application that court. (2) That under the statutes is based are that James Cockrill was shot and wounded in Breathitt county, this state, in July, 1902. He was immediately conveyed to Fayette county for treatment of his wound, but shortly thereafter died in Fayette county. He was shot and killed, it is alleged, by Curtis Jett, who has since been tried and convicted of the crime, and sentenced to death. Jett was indicted by the grand jury of Breathitt county, though he was tried in Harrison county upon a change of venue. The claim of the plaintiffs is that, as alleged by the state, they were accessories before the fact to the murder, and that their acts, if done as claimed, were committed wholly in Breathitt county; that on December 3, 1904, warrants were issued against the plaintiff's by one James W. Edwards, a justice of the peace for Breathitt county, charging them with this murder. They were arrested upon the warrants, carried before the magistrate, and were by him held over to answer such indictment as the grand jury might find against them, and were in the meantime released upon bail. On January 24, 1905, the Fayette county grand jury returned the indictment charging the plaintiffs with the same murder in that county, and it is under this last named indictment that the Fayette court is proposing to take jurisdiction of the plain. tiffs and to try the case. Since January 24, | 1905, and in fact since the original petition was filed in this court, the grand jury of Breathitt county has been convened in regular session, has examined into the alleged murder of James Cockrill, and has returned in that court several indictments charging the plaintiffs with the murder of Cockrill. Upon these facts the plaintiff's assert that the authorities of Breathitt county first took jurisdiction of the offense and of the persons of the accused, and thereby affixed the exclusive jurisdiction to try them in the courts of that county. It is also contended by plaintiffs that the provision of the statutes and Code of this state allowing a trial to be had in either county where any part of an offense may have been committed is violative of the Constitution.

The 110th section of the Constitution of Kentucky reads: "The court of appeals shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions and regulations, not repugnant to this Constitution, as may from time to time be prescribed by law. Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions." The last sentence was not in any previous Constitution of this state. From that fact, and inasmuch as it had been held under the former Constitutions that this court might issue the common-law writ of prohibition against any inferior court proceeding out of its jurisdiction (Arnold v. Shields, 5 Dana, 18, 30 Am. Dec. 669; Sasseen v. Hammond, 18 B. Mon. 673), provided this court had appellate jurisdiction of the subject-matter, it was said that the last sentence of § 110 of the Constitution "seems to have been intended ... to give to the court of appeals plenary power to issue writs in every case when necessary to give it general control of inferior jurisdictions." Hindman 1. Toney, 97 Ky. 413, 30 S. W. 1006. Ordinarily, this court might well refuse to issue the writ before the question of jurisdiction had been made in the lower court, for it might be presumed that until that court had proceeded out of its jurisdiction, or had evinced by an order of court that it proposed Judge Parker disclaims any intent or pur- doing so, it would not, or, at any rate, that pose in the proceeding other than to dis- the complainant was not injured, nor charge his official duty as he sees it. The threatened with injury till then. But this commonwealth of Kentucky, at the request is not necessarily so in all cases. If the of the attorney general and of the common-situation disclosed be such as that to take wealth's attorney of the twenty-second judicial district, was allowed to be made a party defendant, and has defended this suit. The contentions of the commonwealth are as follows: (1) That the writ should not be issued until the petitioners have first applied to the circuit court and had the

the ordinary course would be of itself to subject the complainant to irreparable loss, the writ should issue without the objections having been made below. The matter of judicial courtesy should yield to substantial personal rights of litigants, such as a sacrifice of their liberty. If it be true that the

53.

Fayette court is proceeding without juris- | Constitution, before the provision found in diction, it is not substantial justice that it § 11 of the present Constitution was adoptshould be allowed to take the bodies of the ed. complainants, confine them in jail without bail, as it might do at its discretion, subject the parties to enormous expense in defending the case, even if it went no further than a trial of the question of jurisdiction, and say to them, "Your remedy is solely by appeal if you have been wronged." We think the section of the Constitution, though it be deemed only declaratory of the common law on the subject, confers the power and jurisdiction on this court to intervene by the writ of prohibition to stay the inferior courts of the state from proceeding out of their jurisdiction. It may issue whether or not there is an appeal. Whether it ought to issue in advance of the decision of the lower court, or whether the party will be left to his remedy by appeal, will depend on whether that remedy is given, and whether it is adequate or not. This court will be slow to use the writ where there is an appeal, but its valuable office to the citizen who is being oppressed by unlawful assumption of judicial | authority will not be limited by set rules. It is believed the general principles regulating the use of this writ are so well established and understood that it is unnecessary to further define them.

It is not an open question in this state whether an offense committed partly in two counties may be tried in either. Whatever may have been the common-law rule, though it seems to have been substantially as now declared by our statute, legislation in this state has settled it, unless it be said that the Constitution is violated thereby. Section 1147, Ky. Stat. 1903, provides: "If a mortal wound, or other violence or injury, be inflicted, or poison be administered, in one county or corporation, and death ensues in another, the offense may be prosecuted in either." And § 21 of the Criminal Code of Practice provides: "If an offense be committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the jurisdiction is in either county." If such was the common law-as we think it was "a jury of the vicinage," at common law, was a jury selected from the neighborhood of the crime, which might be either county where it was in part committed. Com. v. Jones, 26 Ky. L. Rep. 867, 82 S. W. 643. It has always been understood that the right to trial by a "jury of the vicinage" was subject to certain necessary exceptions, such as changes of venue, and the like. Parker v. Com. 12 Bush, 191; Adkins v. Com. 98 Ky. 539, 32 L. R. A. 108, 33 S. W. 948; Smith v. Com. 108 Ky. 53, 55 S. W. 718. This was held to be the law under the old

Com. v. Davidson, 91 Ky. 162, 15 S. W. As it is admitted that the shot that killed Cockrill was fired in Breathitt county, and that his death from the wound occurred within one year and a day thereafter in Fayette county, they each had concurrent jurisdiction of the crime. Manifestly, the courts of two counties could not try the same defendants for the same offense. There must be a time when the jurisdiction of one county becomes exclusive and that of the other county is lost. Section 24, Crim. Code Prac., is: "If the jurisdiction of an offense be in two or more counties, the defendant shall be tried in the county in which he is first arrested, unless an indictment for the offense be pending in another county." A literal application of the last section might lead to absurdities certainly never contemplated in the purpose of its enactment. It was so held in Massie v. Com. 90 Ky. 485, 14 S. W. 419. Horse stealing is punishable by statute in the county where the horse may be stolen, or in any county into which it may be carried. Massie took a horse in Montgomery county, and carried it into Bourbon. At the instance of the Montgomery county authorities, and before an indictment in that county or elsewhere, they caused him to be arrested in Bourbon, and brought back to Montgomery, for trial, where he was convicted. He relied on § 24, Crim. Code Prac., in bar of the jurisdiction of the Montgomery court. It would seem that literally his objection was well taken. But this court said: "This provision was not inserted in the Code for the benefit of the criminal, but to prevent a conflict of jurisdiction in cases where it belonged to more than one county." It is conceded, as it must be under the statute quoted, and the decisions of this court, if adhered to, that, where two or more counties have concurrent jurisdiction of an offense committed partly in each of them, no substantial legal right of the accused can be invaded whether one or the other takes cognizance of the matter. So long as the accused is not put in jeopardy by the proceedings in both counties, it cannot be the subject of complaint from him which of them takes the jurisdiction and proceeds with his trial, so long as only one does so.

The fact may be accepted as established by the proof in this case that Magistrate Edwards issued warrants against plaintiffs on December 3, 1904, charging them with the murder of James Cockrill. It may also be accepted as established, for the purposes of this hearing, that the accused were arrested or voluntarily surrendered themselves to the custody of the magistrate, who signed an

courts which administer the law may protect their own jurisdictions from machinations, from palpable subterfuges intended merely to defeat their jurisdiction. The sovereignty of the law depends upon the power of the courts to maintain the integrity of their jurisdiction against mere devices that would defeat them. Judgments obtained by extrin. sic fraud ought not to bind anybody not a party to the fraud. They ought to be and are subject to impeachment either by direct or collateral attack. This is so although the court rendering them had jurisdiction of the subject-matter. Grignon v. Astor, 2 How. 319, 11 L. ed. 283; United States v. Throckmorton, 98 U. S. 68, 25 L. ed. 96; Cole v. Cunningham, 133 U. S. 112, 33 L. ed. 541, 10 Sup. Ct. Rep. 269; Brunk v. Means, 11 B. Mon. 214; Talbott v. Todd, 5 Dana, 190. In Carrington v. Com. 78 Ky. 83, the accused was indicted for a violation of the liquor laws. His offense was a misdemeanor. A statute provided that, "whenever any person shall be lodged in jail, in default of bail, being charged with a misdemeanor," whether under an indictment or not, the judge of the quarterly court, the circuit court not being in session, had jurisdiction to try the case. The defendant surrendered to the jail

order committing them to the circuit court | public concern than any individual. The of Breathitt county for examination of the charge by the grand jury of that county, and that they executed bonds for their appear ance before that court. It is contended for the commonwealth, though,--and this is the main question presented for decision,-that these proceedings are void. For the plaintiffs the argument is that, whatever may have been the motives of the officers of Breathitt county, or however their action might have been induced, the fact is that, having jurisdiction to do what was done, the accused are actually bound by the proceedings, and, the law's machinery being set in motion, under § 24, Crim. Code Prac., the jurisdiction of Breathitt county becomes exclusive. The court has come to the conclusion, upon the evidence before it, that the arrests of the plaintiffs in Breathitt county were procured upon their own instigation, or that of some of them acting for all, with the design not to have a trial of the charge there or else where, but as a cloak to prevent the trial elsewhere. If such be not the fact, the plaintiffs are peculiarly unfortunate in the matter of certain coincidences shown in the proof, as well as certain discrepancies between the record of the squire's proceedings and the admitted truth. Being of this opinion as to the facts, the question recurs, Doer, failed to give bond, and was brought bethe proceedings in Breathitt before the examining magistrate confer exclusive jurisdiction of the plaintiff's on the courts of that county? A judgment of a court may be a punishment or it may be a protection. It may or may not be a bar, according to whether he who relies on it is in a position to do so. If it be obtained by fraud, the one procuring it ought not to be permitted to use it as a protection. That would be to allow one to profit by his own fraud, which is a doctrine repugnant to the law. and wholly untenable by any kind of right thinking. It is said that the commonwealth has acted in the matter in Breathitt through her legally constituted officers, whose authority is as complete to bind the commonwealth as is that of the officers of Fayette or any other county. If the commonwealth is bound, it is upon principles analogous to agency that he who sets another to do his business is bound by such agent's acts within the scope of his authority; which is as it should be. But there is a necessary exception to that rule, which is, if the agent, in fraud of his principal, colludes with his opponent, so that, instead of acting for his principal, he becomes the tool or accomplice of the opponent, then the principal ought not to be bound by his agent's acts; nor is he. As between two persons, this is undeniably the law. The state will not be given less consideration in matters of

fore the quarterly court, tried, convicted, and fined. Notwithstanding, the circuit court proceeded afterwards to try him under the same indictment, rejecting his plea of former conviction in bar. This court said: “The circuit court properly refused to permit its jurisdiction to be ousted, and to allow the prisoner, by a device so transparent, to choose the tribunal in which he would be tried. A judgment of acquittal thus procured was not a bar, and was properly disregarded." Plaintiff's seek to distinguish Carrington's Case from this one upon the suggestion that the quarterly court had not jurisdiction of the case, because Carrington was not in fact in jail, but was simply in the custody of the jailer. The court, however, did not rest its decision upon that feature of the case. It was referred to only as indicating a lack of good faith in the matter. The court said: "The evidence in this case shows that the prisoner never was committed to jail, nor was he in good faith committed to the custody of the jailer." From this it appears that, had the defendant been in good faith committed to the custody of the jailer, it would not have been necessary to have gone through the idle form of locking and unlocking the jail door. Emphasis was laid upon the lack of good faith in the defendant's surrendering himself to the jailer's custody in this language: "Whatever was done toward bringing the case within the