er died of tuberculosis, and not from the were witnesses to the deed. They testified cause stated in her application, and that the that it was signed in their presence. The false statement was fraudulently made be witness Serena states that the grantor recause it would be quite unusual and out of quested him to write his name and witness the ordinary if a grown daughter could live his mark to the deed as it appears there, the in the same home with her mother and not grantor touching the pen for his mark, and know that for years she was suffering and that after it was executed by the grantor he finally died from pulmonary tuberculosis, (Serena) took it to the county clerk's office a disease most any person can usually detect and certified it before the clerk. almost at sight of one afflicted with it, and also be ignorant of the fact her mother's menstrual periods had ceased.

This conclusion renders unnecessary a consideration of the materiality of the false statement.

Wherefore the judgment is reversed, and the cause remanded for another trial consistent herewith.

BANNER et al. v. ASHER et al.

[1] It is urged in appellants' brief that there was no delivery of the deed by grantor. The proof does not sustain this contention. Besides, as stated in 13 Cyc. 734:

"That a deed has been duly executed, acknowledged, and recorded is prima facie evidence of its delivery and acceptance."

Any one asserting the contrary has the burden of proving it. 8 R. C. L. § 66.

[2] Appellants insist the consideration is inadequate, and that the proof shows no part of the consideration was paid. The covenant in the deed is of special warranty. The conveyance is of the grantor's "right, title, and

(Court of Appeals of Kentucky. Jan. 24, 1919.) interest to any and all lands to which he

QUIN, J. Appellants brought this suit to set aside a deed executed by William A. Robbins to T. J. Asher, which deed was duly acknowledged before two witnesses and re corded in the Bell county court, the signature being by mark. The appellants claim that the instrument so recorded was not the act or deed of their ancestor, and they ask that the same be set aside, canceled, and held for naught.

Appellants contend that the grantor could read and write, and there is evidence to this effect in the record. The deed was typewritten and delivery made in the office of appellee Asher. Appellee's secretary and son

may claim through and by his father, James A. Robbins, deceased." This is most indefinite, because the evidence is anything but satisfactory as to the extent of the holdings of James A. Robbins. The status of his title

does not appear. William A. Robbins was one of nine children. Both the quantity and quality of the estate are veiled in so much uncertainty we cannot say the consideration is inadequate. The fact that some of the witnesses testify they know nothing of the payment of the recited consideration by no means proves it was not paid. The deed states it was paid.

[3] We do not think the proof in this case sufficient to overcome the presumption of validity and regularity incident to the acknowledgment and recordation of the instrument. As said in Rockcastle Mining, Lumber & Oil Co. v. Isaacs, 141 Ky. 80, 132 S. W. 165:

"To overcome a deed which purports to be signed and acknowledged by the grantors and is thereafter put to record, the evidence must be clear and convincing."

The evidence in this case does not conform to this rule.

The appellant, Vici Banner, was the wife of William A. Robbins. She did not join in the deed. Since the submission of this case she has filed an affidavit stating that this appeal was obtained without her knowledge or consent, and her motion to strike her name as appellant and dismiss the appeal, so far as she is concerned, has been sustained.

Under the pleadings and evidence in the record before us we do not feel authorized to set aside the ruling of the lower court; therefore the judgment is affirmed.

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STEPHENS v. SCHADLER et al. (Court of Appeals of Kentucky. Jan. 21, 1919.)

1. ACTION 50(6) — JOINDER OF CAUSES OF ACTION-JOINT TORT-FEASORS.

Plaintiff cannot in the same action prose

cute two defendants, for distinct torts, committed by each, independently, although the consequences of the tort of one defendant united with those of the tort of the other.

2. TRESPASS 31-JOINT TRESPASS."

A "joint trespass" is where two or more persons unite in committing it, or where some actually commit the tort, the others command,

encourage, or direct it.

[Ed. Note.-For other definitions, see Words and Phrases, Joint Trespass.]

3. PLEADING 369(3)-JOINT TORT-FEASORS -ELECTION AS TO DEFENDANTS.

If it appears from the face of the petition that the tort is the joint act of the defendants, a motion to elect as to defendants should not prevail as against the petition, but may be renewed when misjoinder appears in the trial.

4. PLEADING 369(6) — ELECTION-DISMISSAL ON FAILURE TO ELECT.

Failure of plaintiff to elect which cause of action he will prosecute does not authorize dismissal of the action, but the court must strike out one of the causes of action, and, if plaintiff still refuses to proceed, the court may then dismiss without prejudice.

-

5. ACTION 50(6) — JOINDER OF CAUSES OF ACTION-TORT-FEASORS.

In view of Ky. St. § 68, providing "every person owning or harboring a dog shall be liable to the party injured, for all damages done by such dog," the owner and harborer, being each liable for the full damages, may be made joint defendants, regardless of whether the dog be vicious or of the owner's or harborer's knowledge thereof.

6. PLEADING 52(2)—ACTIONS IN TRESPASS SEPARATE PARAGRAPHING AND NUMBER

--

ING.

It is sufficient that a petition against the owner and the harborer of dogs for injury to sheep, crops, and loss of time in driving off dogs during several years should allege the same as one continuous trespass, limited by beginning and ending dates, and every act of trespass need not be made a distinct paragraph, and separately numbered, under Civ. Code, Prac. § 113, subsecs. 2, 3.

7. DAMAGES 55-MENTAL DISTRESS.

In an action for damages for injuries to sheep, crops, and loss of time for trespass committed by defendant's dogs, damages for the mental distress of plaintiff are not recoverable.

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Ira W. Stephens against Joseph Schadler and another. From a judgment dismissing the petition, the plaintiff appeals. Reversed and remanded.

Tomlin & Vest, of Walton, for appellant. John B. O'Neal, of Covington, for appellees.

HURT, J. This action was instituted by the appellant, Stephens whom we will call the plaintiff, against the appellees, Joseph Schadler and Ed Casson, whom we will call the defendants, to recover damages suffered by the plaintiff on account of trespasses committed by the dogs of the defendants, against the plaintiff's sheep, growing tobacco, grass, and alfalfa, and in his petition and amended petition is also included account for damages suffered by him for loss of time which he was compelled to lose in driving the dogs from his premises in attempts to protect his property. Motions were made by the defendants, to require the plaintiff to set out his causes of action more certainly and definitely. These motions were sustained, and in an endeavor to comply with the rulings of the court the plaintiff filed two amended petitions. The defendants then moved the court to require the plaintiff to elect against which of the defendants he would prosecute

the action, and over his objection the motion

was sustained. The defendants then moved the court to require the plaintiff, as is stated in the record, "to separate, paragraph, and number his petition and state separate cause of action." This motion was also sustained. The plaintiff declined to further amend his petition, whereupon, on the motion of the defendants, the court adjudged that his petition be dismissed. From the judgment the plaintiff has appealed, and the soundness of the rulings of the court, with reference to the two motions, will be considered, respectively, in the order in which they were made.

[1-4] 1. It is presumed that the motion to require the plaintiff to elect as against which defendant he would prosecute his action was sustained by the court, upon the ground that the petition and its amendments showed upon their face that the different trespasses complained of were not the joint trespasses of the defendants, but showed the commission of the trespasses, as independent acts, by one or the other of the defendants, without any concert of action or unity of design with the other defendant, or in other words, that the tort of each defendant was a several and distinct one, from the torts of the other defendant. It goes without question that a plaintiff cannot, in the same action, prosecute two or more defendants for distinct torts which were committed by the different defendants independently of and not, in connection with each other, although the consequences of the tort, which was committed by one defendant, united with the consequences of the torts, which were committed by the other, because in such state of case the one defendant cannot be

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was a separate trespass, and, if injury resulted, the damages could be recovered for it, but it is apparent that the damages for one trespass toward effecting the results alleged would be infinitesimal and impossible of ascertainment, but this should not deprive the plaintiff of relief if the injuries which resulted from the frequently recur

results complained of. With this view, the divers trespasses would necessarily have to be considered as one continuing trespass, and constituting but one cause of action. The chief reason for requiring that each distinct cause of action be set out in a separate paragraph is to apprise the defendant of what he is called upon to answer and the nature and extent of the evidence which may be adduced against him. Gillon v. Wilson, 3 T. B. Mon. 217. The allegations of the paragraph amply meet this requirement. Further, in 2 Greenleaf, § 229, it is said:

case, or allow a new pleading. In the instant case, the court dismissed the petition, but failed to do so without prejudice to a future action. To determine whether the court should have, in the instant case, ordered a dismissal of plaintiff's action upon his refusal to further amend his petition, and to set out his causes of action in additional paragraphs, it is necessary to consid-ring trespasses as a final result produced the er the statements of his causes of action. The grounds of his action, as appears from the petition as amended, consisted of three classes of injuries suffered by him on account of the trespasses by the dogs of defendants: (1) Injuries to his sheep; (2) injuries to his crops; and (3) loss of time suffered in driving away the dogs and protecting his cattle from them. The causes of action, on account of injuries to the sheep, caused by the dogs coming upon the plaintiff's premises and frightening and chasing the sheep, and thereby causing ewes to abort and lose the unborn lambs; crippling the ewes and lambs; frightening the ewes away from newly born lambs, and thereby causing the deaths of the lambs; chasing and causing to become overheated newly docked lambs, and thereby causing them to lose blood and retarding their growth-are each fully and specifically set out in seven separate, numbered paragraphs, stating the times and circumstances of the injuries and the damages suffered in each instance. There could be no basis for an order requiring any further separation of the causes of action growing out of the above enumerated injuries.

In another paragraph, it is alleged that the dogs of the defendants had entered upon the lands of the plaintiff from one to three times each week, during the preceding five years, and had, by their conduct and actions, frightened the plaintiff's sheep upon each of these occasions, causing them to run, and by their fear of the dogs were driven from the shade in the summer and from the shelter of the barns in the winter, and were thus exposed to the heat of the sum which, together with their exertions in running, caused them to become overheated in summer, and to expose themselves to the cold and rains in winter, and were thereby also driven from feeding in the pastures because of the presence and actions of the dogs, and that these continued aggressions of the dogs from day to day kept the sheep in a frightened and excited condition, and caused the ewes to fail to conceive and bear lambs, in which the chief value of maintaining sheep consists, and from these repeated trespasses the sheep were injured in their growth, flesh and condition, and the damages resulting, were laid at a gross sum. The plaintiff alleges that he is unable to state the facts with any greater detail, and this seems apparent. Strictly each occasion upon which the dogs entered and frightened the sheep

"Originally every declaration in trespass, seems to have been confined to a single act of trespass; and if it was continuous in its nature, it might be so laid, in which case it was considered as one act of trespass. Subsequently, to save the inconvenience of distinct counts for each tortious act, the plaintiff was permitted to consolidate, into one count, the charge of trespasses done on divers days between two days specifically mentioned, in which case it is considered as if it were a distinct count for every different trespass. In the proof of such a declaration the plaintiff may give evidence of any number of trespasses, within the time specified."

Substantially the same rule is found in 38 Cyc. 1083. The general rule obtaining at the common law was the same as provided by section 113, subsec. 3, Civil Code. Under the common law, as a general rule, the plaintiff was not allowed to give evidence of more trespasses than were stated in the petition, and each day's trespass upon real estate was a separate cause of action. Since the enactment of section 113, supra, the rule prevailing in regard to trespasses upon real estate is thus stated in 1 Newman on Pleading and Practice, 425:

"In an action for an injury done to real estate, where the trespasses are continued, it will be sufficient to allege in the same paragraph that the trespasses were continued, from day to day, or committed on divers days between two stated periods, notwithstanding the Code requires each cause of action to be stated in a distinct paragraph."

Where however, the trespass, whether upon real or personal estate, or upon the person, is one of a nature which cannot be continued, it must be stated in a separate paragraph. It is impossible to discern why the rule applicable to trespasses upon real estate should not apply in the instant case, where the trespasses are, if not substantially continued, of the same kind, by the same

persons, against the same person, and upon the same property. The statements of the second and third paragraphs of the second amended petition fall under the same rule. [7] The character of damages sought in the fifth paragraph for the mental distress of plaintiff are not recoverable, and the sixth paragraph of the second amended petition is but a recapitulation of the averments of the preceding part of the pleadings, and might be properly struck out as redundant, and as to whether certain of the causes of action are capable of proof of such tangible character as to justify a submission to the jury are questions to be determined upon the trial.

The judgment is therefore reversed, and cause remanded for proceedings consistent with this opinion.

a bail bond executed by one H. Greenfield for the appearance in that court of William Phillips to answer a warrant charging him with the crime of grand larceny, a felony defined by section 1194, Kentucky Statutes. Phillips was arrested under the warrant by a police officer March 9, 1918, and on the following day taken before the police court for an examining trial. March 10th the case, upon Phillips' motion, was continued to March 12th; the order of continuance admitting him to bail until that time in the sum of $300. On the following day Greenfield became his bail by executing in due form a bond in the amount required by the order of the court, and Phillips was thereupon released from custody. When the case was called in the police court March 12th for trial, it was on Phillips' motion continued to March 16th, and the latter, during the interim, allowed to stand on the bail bond. When reached for trial on the latter date, Phillips, though called, failed to appear in obedience to the bond, or to respond to the charge of felony contained in the warrant. Thereupon the court entered an order forfeiting the bond, and, after indorsing such forfeiture on the bond, at once returned it to the clerk of the Fayette circuit court, in whose office it was duly filed. Following such filing of the bond and indorsement of forfeiture in the office of the clerk of the circuit court, that officer by a proper order of the circuit court immediately issued a summons thereon against the bail, Greenfield, requiring him in 20 days to show cause, if any he had, why judgment in favor of the commonwealth of Kentucky should not go against him on the bail bond for the amount thereof and costs of the proceeding. FORFEITURE Though duly served with the summons, Greenfield made no defense, and judgment was rendered by the circuit court against him in favor of the commonwealth for the amount due on the bond and costs.

REAGAN, Chief of Police, v. GREENFIELD. (Court of Appeals of Kentucky. Jan. 21, 1919.) 1. BAIL

96-BONDS-FORFEITURE-DISPO

SITION OF PROCEEDS.

Ky. St. §§ 3155 and 3162, relating to fines, penalties, and costs collected in police court for a city of the second class, held not to entitle a city of that class to the proceeds of a bail bond given to secure the appearance in police court of one to answer a warrant charging him with the crime of grand larceny; for, in view of section 3147 and Crim. Code Prac. §§ 58 and 94, a police court has no final jurisdiction in felony | cases, but can sit only as an examining court, and the bond could be forfeited only in circuit

court.

2. BAIL 96 BAIL BONDS -DISPOSITION OF PROCEEDS.

Under Ky. St. § 1139, relating to fines and forfeitures, the proceeds of a forfeited bail bond given in city police court to secure the appearance of one to answer a warrant charging him with grand larceny belong to the state, and not the city.

At this juncture the appellant, Jere Reagan, as chief of police of the city of Lexing ton, and on relation of the city of Lexington, Appeal from Circuit Court, Fayette County. to the proceeds of the bail bond for the city filed an intervening petition setting up claim Jere Reagan, Chief of Police, on the re- and praying that it be adjudged entitled lation of the City of Lexington, filed an in- thereto. A general demurrer was filed to tervening petition in a proceeding against H. the petition of Reagan and the city by the Greenfield for the forfeiture of a bail bond, commonwealth, which the circuit court sussetting up a claim to the proceeds of the tained, and dismissed the petition. From the bail bond, and a demurrer to the petition judgment entered in conformity to these rulhaving been sustained, and the same dismiss-ings the defeated parties have appealed. ed, intervener appeals. Affirmed.

[1] It will readily be seen that the sole James A. Wilmore, of Lexington, for appel- question presented for decision by the appeal lant. is whether the commonwealth of Kentucky Chas. H. Morris, Atty. Gen., for the Com- or the city of Lexington is entitled to the monwealth. proceeds of the bail bond forfeited in this John R. Allen, of Lexington, for appellee. case. In support of their contention that the

SETTLE, J. This appeal grew out of the forfeiture in the Lexington police court of

city of Lexington is entitled to the amount received on the bond, appellants rely upon sections 3155-3162, Kentucky Statutes, both

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