Rep., 452, a deed similar to the one under which the ground is claimed in this case was construed. The court held that it did not have the effect of dedicating the ground to the public. The judgment is reversed, with directions that further proceedings conform to this opinion.

COMMONWEALTH v. LOUISVILLE & NASHVILLE R. R. CO.

(Filed November 12, 1896-Not to be reported.)

Construction of statute-Remedy prescribed exclusive-Right to recover fine by penal action-Where a statute which oreates an offense prescribes a remedy for the enforcement of its penalties, that remedy must be pursued; therefore, as section 786, Kentucky Statutes, provides that the fine which it prescribes for the offense there created is "to be recovered by indictment." the fine can not be recovered by penal action, although section 11 of the Criminal Code and section 1139, Kentucky Statutes, provides for the recovery of fines by civil procedure.

Chelf & Vanmeter and W. S. Taylor for appellant.

W. H. Marriott and H. W. Bruce for appellee.

Appeal from Hardin Circuit Court.

Opinion of the court by Judge Paynter.

Section 786, Kentucky Statutes, is as follows, to wit: "Every company shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such bell shall be rung or whistle sounded outside of incorporated cities and towns at a distance of at least fifty rods from the place where the road crosses, upon the same level, any highway or crossing, at which a sign board is required to be maintained, and such bell shall be rung or whistle sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require."

Section 793 provides that in case of violation of the provisions of the section quoted, in addition to subjecting itself to any damages that may be caused by such failure or violation, the company is guilty of a misdemeanor, and shall be fined not less than $100 nor more than $500, to be recovered by indictment."

The plaintiff is proceeding not by an indictment, but by an action brought to recover the penalty fixed by section 793. Section 11, Criminal Code, provides that a public offense, of which the only punishment is a fine, may be prosecuted by penal action in the name of the Commonwealth of Kentucky.

Section 1139, Kentucky Statutes, provides that all fines and forfeitures which may be imposed by law may be recovered by civil procedure, or upon indictment of a grand jury.

It is contended that the provisions of the Criminal Code and the statutes are applicable to this case, and that the remedy is either by civil procedure or by indictment.

Of course if the remedy was not prescribed by the statute under consideration, there could be no doubt that the position would be correct. At the time the statute was enacted to recover fines or forfeitures either of the two remedies could be pursued. We must presume that the legislature was acquainted with the exist.

ing law upon the subject. It, therefore, did know that if no remedy was prescribed in the act that the existing law furnished either of two remedies.

If the legislature had no purpose to prescribe the remedy for the violation of the statute, it would have said the fine was recoverable by civil procedure or by indictment, or would have been silent upon the question of remedy.

Were we without rules for the interpretation of statutes the foregoing view would be a satisfactory answer to the contention. It is said by Lawson on Rights, Remedies and Practice, volume 7, section 3777, that "when a statute has created a new right, and has also prescribed a remedy for the enjoyment of the right, he who claims the right must pursue the statute remedy; so when a summary remedy is given by statute, those who wish to avail themselves of it must be confined strictly to its provisions, and can take nothing by intendment. When a statute, to attain a particular object, prescribes the mode of proceeding to enforce it, that mode must be pursued."

In Russell, &c. v. Muldraugh's Hill, Campbellsville & Columbia Turnpike Co., 13 Bush, 310, it is decided that when a statute has created a new right, and also prescribed a remedy for the enjoyment of the riglit, he who claims the right must pursue the remedy.

The same rule is enunciated in Commonwealth v. Jellico Coal Mining Co., 17 Ky. Law Rep., 109.

The statute gave a new right, prescribed an indictment as the remedy for enforcing it, therefore, this action can not be maintained.

The judgment is affirmed.

HOWARD, &c. v. FULLER, &c.

(Filed November 14, 1896.)

Provisions of Civil Code applicable to criminal cases -Return of "no property" on judgment in justice's court-Where a judgment for a fine rendered in a justice's court has been replevied and execution issued upon the replevin bond and returned "no property found," the attorney or other representatives of the Commonwealth may file in the office of the clerk of the circuit court a certified copy of the judgment, execution and return, and thereupon the plaintiff shall be entitled, as provided in section 722 of the Civil Code, to the same remedies for the collection of the judgment as if it had been rendered in the circuit court. While the section authorizing such a procedure is found in the Civil Code, the law is a general one, and embraces executions in favor of the Commonwealth as well as individuals. W. J. Hendrick and G. W. Howard for appellants.

Appeal from Knott Circuit Court.

Opinion of the court by Judge Hazelrigg.

Where a fine is imposed in behalf of the Commonwealth on a justice's court and judgment for money is rendered, the defendant may execute bond with surety in satisfaction thereof "for the same time and substantially of the same form and (which) shall have the same force and effect as a replevin bond." (Section 305, Criminal Code.)

If an execution upon the bond be issued, and in due course be returned in substance "no property found, etc.," the attorney or other representatives of the Commonwealth may file in the office

of the clerk of the circuit court a certified copy of the judgment, execution and return, and thereupon the plaintiff shall be entitled to the same remedies for the collection of the judgment as if it had been rendered in the circuit court. While the section authorizing such a procedure is found in the Civil Code (section 723) the law is a general one and embraces executions in favor of the Commonwealth as well as of individuals.

In this case judgment in favor of the Commonwealth was rendered in a magistrate's court in Knott county against L. D. Fuller for $100 and costs in a prosecution against him for violating the "local option" law. The defendant replevied the judgment, with Archibald Fuller as his surety, and thereafter prosecuted an appeal from the judgment to the Knott Circuit Court, where the appeal appears to have been dismissed. The execution which issued upon the bond having been returned "no property found to satisfy it," the county attorney procured the copies of the record required by section 723 supra, and caused an execution to issue from the circuit court clerk's office as that section authorizes.

When the sheriff was about to sell the land of the defendants in the suit they instituted this action to stop the sale, alleging that the prosecution of the case against Fuller was dismissed in the circuit court and the defendant discharged. A demurrer to the petition was, therefore, overruled, but the answer disclosed that not the prosecution of the case but the defendant's appeal was dismissed.

A demurrer to the answer was sustained and the sale perpetually enjoined. This, we are told, was upon the theory that section 723 of the Civil Code does not authorize the steps taken by the county attorney looking to the collection of the judgment. This, as we have seen, was error, and the demurrer to the answer should have been overruled. Whether the case was dismissed in the circuit court or only the defendant's appeal we are not able to say, as the order of that court is not in the record before us. This issue may be tried out on the return of the case.

The judgment is reversed for proceedings consistent herewith.

LEBANON & PERRYVILLE T. P. R. CO. v. PURDY, &c. (Filed November 14, 1896-Not to be reported.)

1. Turnpikes-Failure to keep in safe condition-Contributory negligence -In this action against a turnpike road company to recover damages for injuries received by plaintiff while driving on defendant's road, plaintiff's horse becoming frightened by a passing train and throwing his buggy over an embankment, the plaintiff was not guilty of such contributory negligence in continuing to drive his horse along the pike after discovering the train as will exonerate the defendant from liability for its negligence, the crossing which the train was passing being 200 yards distant from where the accident occurred, therefore, the court did not err in refusing an instruction as to contributory negligence.

2. Same-The fact that the railroad crossed the pike so near the fill was one the jury could properly consider in connection with the character of the fill in determining whether the pike at the point where the accident occurred was in a reasonably safe condition.

John McChord for appellant.

Wm. E. &. S. A. Russell for appellees.

Appeal from Marion Circuit Court.

Opinion of the court by Judge Paynter.

In constructing the pike a fill was made about forty yards long, fourteen feet wide at the top, with a steep slope of about three feet high on either side.

Purdy and wife were driving in a buggy over the pike to Lebanon and while passing over the fill, as testified by Mr. Purdy, a train on the Louisville & Nashville Railorad passed over its crossing on the pike at a point distant two hundred yards from where the accident occurred. The horse became frightened at the train, whirled suddenly around and the buggy turned over the bank on the side of the pike and badly injured the wife. Her collar-bone was broken and shoulder dislocated, and in consequence of which, at the time of the trial of this case, could not raise her left hand except with her right one.

The verdict of the jury was for $200 damages. The court properly instructed the jury as to the duty of the defendant to keep its road in a reasonably safe condition, and as to its liability for damages to one injured by such failure.

It is urged that the court should have given an instruction on contributory negligence.

The evidence is that the owner regarded the horse as a gentle one. There is an entire absence of evidence conducing to show he was not regarded as or that he was not a gentle horse.

It could not be said that it was negligence on the part of plaintiffs to continue to approach the crossing after the train was discovered. The fact that the railroad crossed the pike so near the fill was one the jury could properly consider in connection with the character of the fill in determining whether the pike at the point where the accident occurred was in a reasonably safe condition.

It is known to every one that a trustworthy horse may, in charge of a careful driver, become frightened, wheel or back or run. It results from the nature of the animal. The defendants are conclusively presumed to know such fact. Although the accident would not have happened except for the horse becoming frightened, and probably would not have become frightened except for the passing of the train over the pike, it can not be said that he was guilty of such contributory negligence in continuing to drive his horse along the pike after discovering the train as will exonerate the defendant from liability for its negligence. Judgment affirmed.

COMMONWEALTH v. STURGEON.

(Filed November 18, 1896-Not to be reported.)

Carrying concealed deadly weapon-Upon the trial of appellee under an indictment for carrying concealed a deadly weapon, evidence showing that appellee opened a satchel lying in a wagon in which he was driving and took a pistol from it did not tend to show his guilt, there being two other persons in the wagon with him and no proof as to who owned the satchel or the wagon. Whether, if the evidence had shown that the satchel belonged to defendant, it would have been sufficient to authorize the submission of the case to the jury is not determined.

W. S. Taylor for appellant.

Blanton & Berry for appellee.

Appeal from Harrison Circuit Court.

Opinion of the court by Judge Paynter.

The indictment charges that the defendant carried concealed upon or about his person a deadly weapon, to wit, a pistol.

It appears from the evidence that the defendant was riding on a wagon, a difficulty arose between him and one King, when he "went down under the seat of the wagon on which he was riding and got a small brown grip satchel and opened it and took out a pistol." There were two others in the wagon with defendant. There was no evidence as to whom the grip belonged, nor as to who placed it in the wagon, nor as to whom the wagon belonged. The facts as proved do not raise the question for determination as to whether one can be said to carry a pistol concealed "upon or about his person" who places it in a hand satchel, and the satchel in a wagon, and thus carries it, or as to whether one can he said to carry it so concealed by placing it in his hand satchel, and then carry with him the satchel, therefore, we do not decide such question.

The judginent is affirmed.

COMMONWEALTH v. BUTLER.

(Filed November 18, 1896-Not to be reported.)

Indictment for forgery-An indictment for forgery, which alleges that the defendant altered an express receipt which was issued to him for a package which he had shipped for another, it being charged that the alteration was made by erasing the figures "60" and inserting in place thereof the figures "90," and that this was done with intent to defraud the person for whom the shipment was made of thirty cents, does not state facts sufficient to constitute the offense charged, as the receipt imports no kind of obligation upon the part of any person to pay the amount named therein. Besides, the indictment contains no allegation that the freight charge on the package was no more than sixty cents, or that defendant had paid only that sum thereon, and, therefore, the facts stated do not constitute a foundation for the allegation of an intent to defraud. If the defendant, by using the altered receipt, induced the person for whom he made the shipment to pay him more money than he had paid out for him, the offense was entirely different from that of forgery.

W. S. Taylor for appellant.

James & James and C. S. Nunn for appellee.

Appeal from Crittenden Circuit Court.

Opinion of the court by Judge Landes.

The appellee was charged with the crime of forgery, and a demurrer to the indictment was sustained and the indictment dismissed, and the Commonwealth appeals.

The facts alleged as constituting the crime are that the appellee altered an express receipt which was issued to him by the Southern Express Co., at Marion, Ky., for a package received by the company from him for one J. P. Stephens for shipment to Mary Thompson, at Dawson, Ky., by erasing the figures "60,"