Dower had not been assigned her. There had been no partition of the property. Each of the infants owned an interest in the property as a whole, and this interest was subject to the particular estate of their mother in the property as a whole. As it is quaintly expressed in the common law books, each of the tenants in common was seized per my et per tout. The property being indivisible and the interest of all the parties requiring a sale for the reinvestment of the proceeds in other property, the court had jurisdiction under section 491 to order the sale for this purpose.

Subsection 5 of section 493 provides:

"In the case mentioned in section 491, the court ordering the sale shall, by its commissioner, retain the custody and control of the fund realized by the sale until the same is reinvested in real estate, or in such other property as the funds of persons under disability may be invested by authority of law, and the court shall order the money to be paid, by its commissioner, directly to the person from whom the purchase for reinvestment is made, and to no other person, and in which case no bond shall be required."

The court followed the statute and retained the custody and control of the fund realized by the sale until it was reinvested in other real estate.

The purpose of section 493 of the Code requiring that the guardian of the infant must execute a bond as therein provided in certain cases is for the protection of the infant, to secure to him the purchase money of the land when it comes into the hands of the guardian. The reason that certain classes of case are excepted out of the operation of the section is that in those cases the money does not come to the hands of the guardian. The law does not contemplate that a vain thing shall be done, and it does not require that the guardian shall give the bond in those cases where no money is to come to his hands; for the bond in this class of cases would be an idle form. In the case at bar, the suit having been brought for the reinvestment of the fund in other lands, no money was to come to the hands of the guardian. In sales made under subsection 2 of section 490, the interest of the infant is required to remain a lien on the land until the infant becomes of age or the guardian executes a bond. This provision applies in those cases where the interest of the infant is separated from the other interest. It has no application where the sale is made under section 491

for the reinvestment of the proceeds in other property. The debt of the ancestor had to be paid, and in so far as a sale was ordered for this purpose, no bond was required. The sale was made solely for the two purposes indicated, and, therefore, under the provisions of the Code, the sale was not invalid because no bond was executed by the guardian.

Subsection 4 of section 492 provides that in the action mentioned in section 491 facts must be stated in the petition, and must be proved showing that the sale will benefit the parties interested in the property. All the facts alleged and all the facts proved were relevant to show the necessity for the sale of the property as a whole, and the reinvestment of the proceeds in other property. The sale being authorized under the sections of the Code we have indicated, it is a valid sale although the parties may have also attempted to sustain it under other sections, or upon other grounds.

2. Was the circuit court without jurisdiction because Mrs. Caulder, the plaintiff, was not the guardian of her children when she filed her amended petition on February 17, 1909?

This objection is based upon the theory that this action was brought under subsection 5 of section 489 for a sale of the infants' estate, and the reinvestment of the proceeds in other property. That statute requires such an action to be brought against an infant by his guardian; and, it is insisted that as Mrs. Caulder was not the guardian at the time the amended petition was filed, the statute was not satisfied and that the judgment is invalid. We have above pointed out, however, that this action was brought under section 491 by Mrs. Caulder in her own right, and that being true the objection is without merit. Furthermore, by her second amended petition of March 12, 1909, Mrs. Caulder truthfully set up her appointment and qualification as guardian of her children; and the action having proceeded regularly from that time, the mistake theretofore made was corrected.

And, although the appointment of Walker as guardian ad litem on February 19, 1909, before the infants had been properly summoned, was irregular, the irregularity was fully corrected by the order of July 6, 1909, in which the former appointment of Walker as guardian ad litem was formally approved and ratified by an order of court, and Walker thereafter filed his answer as required by law. The most the court was required to do

was to appoint a new guardian ad litem, and its order formally approving and ratifying the former invalid appointment of Walker was equivalent to a re-appointment; and his subsequent representation of the infants by filing their answer satisfied the requirements of the Code of Practice.

Judgment affirmed.

Commonwealth v. Kentucky Distilleries & Warehouse Company, et al.

(Decided September 24, 1913).

Appeal from Bourbon Circuit Court.

1. Repeal of Common Law by Statute.-The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject; the common law is not repealed, however, if there is no repugnancy between it and the statute, and it does not appear that the legislature intended to cover the whole subject.

2.

3.

Criminal Law-Indictment.—It not infrequently occurs that the same act may constitute, in whole or in part, two or more offenses; and in that event it is the accusative part of the indictment that determines the offense charged.

Nuisance May Be Prosecuted Under Common Law or Under Statute. Any use of property which was at common law a nuisance, does not cease to be so because the same act is made an offense by statute and a different punishment provided, and the party creating the nuisance may be prosecuted under either the common law or the statutory remedy. 4. Common Law-Indictment-Multifariousness.-An indictment ac cusing the defendant of making and maintaining a common public nuisance by permitting refuse from a distillery to flow into a stream thereby polluting it, is not multifarious, and is valid under the common law, notwithstanding section 1253 of the Kentucky Statutes prescribes a statutory penalty for a similar offense.

JAMES GARNETT, Attorney General, and D. O. MYATT, Assistant Attorney General, for appellant.

KEITH L. BULLITT, WILLIAM MARSHALL BULLITT and JAMES M. O'BRIEN for appellees.

OPINION OF THE COURT BY JUDGE MILLER-Reversing. This appeal by the Commonwealth presents for review the ruling of the circuit judge in sustaining a general demurrer to the following indictment:

"The grand jury of the county of Bourbon, in the name and by the authority of the Commonwealth of Kentucky, accuse the Kentucky Distilleries & Warehouse Co. and Julius Kessler & Co. of the offense of unlawfully making and maintaining a common public nuisance, committed as follows:

"The said Kentucky Distilleries & Warehouse Company, which was then and there a corporation organized and incorporated under the laws of the State of New Jersey, and Julius Kessler & Co., which was then and there a corporation incorporated and organized under the laws of the State of West Virginia, in the said county of Bourbon, on the 10th day of December, A. D., 1910, and on divers days thereafter, habitually and continuously during the period from and after said date, within twelve months before the finding of this indictment, at and on that certain distillery and distillery premises, formerly and commonly known as the Walsh Distillery, then and there owned by and in their occupation and under their control, and then and there being operated by said defendant corporations, situated near to that public highway of the county of Bourbon known as the Paris and North Middletown Turnpike, and near the city of Paris and Stoner avenue, one of the public streets of said city, and near to Stoner Creek, one of the running waters of the State of Kentucky and from which the water supply for domestic uses and purposes of the citizens of Paris was then and there drawn, did unlawfully make, cause, suffer and permit still slops, filth and refuse from said distillery and waste slops, manure, offal and filth from several hundred cattle then and there on said distillery premises and on premises adjacent thereto being fed on slop from said distillery, to accumulate at and near said distillery, did pump and permit to be pumped and cause and suffer to flow into sinks on a piece of the woodland formerly owned by G. G. White and John White and known as the 'Gilt Edge Stock Farm,' now owned by John T. Hinton, and which sinks were then and there by said Julius Kessler & Co. leased of and from said John T. Hinton and used by said defendant companies as receptacles for same, and in said sinks to be and remain, rotting, festering, running over, drained out of, escaping, finding its way and sent into a small branch or creek tributary to the herein before mentioned Stoner Creek, through which it flowed into said Stoner Creek, giving forth and emitting foul, of

fensive and disagreeable odors, impregnating the atmosphere and rendering same foul, offensive, noisome and disagreeable, and so charging and polluting the waters of said Stoner Creek with said refuse from said distillery, waste slops, manure, offal and filth from the cattle hereinbefore mentioned that the waters of said Stoner Creek were so corrupted and charged with filth, stenches and smells as to be unfit for domestic uses and purposes and producing such discomfort and annoyance to persons of ordinary sensibilities, and especially to those residing in that particular neighborhood, as to impair their comfortable enjoyment of life, to the common nuisance and annoyance of persons living on Stoner avenue in the city of Paris, and traveling and having the right to travel said Stoner avenue, and to all persons traveling and having the right to travel along, over and across the Paris and North Middletown pike, and jeopardizing and endangering the health of all persons using and having the right to use for domestic purposes the waters of Stoner Creek, to the common nuisance, annoyance and jeopardy of all good citizens of this Commonwealth and against the peace and dignity of the Commonwealth of Kentucky."

The record fails to disclose the ground upon which the circuit judge sustained the demurrer, and opposing counsel, in their briefs, assign different reasons for the court's action. Counsel for appellant say the demurrer was sustained because the court was of the opinion that the indictment charged two offenses: (1) the common law offense of maintaining a common public nuisance; and (2) the statutory offense of polluting a stream; thus violating section 126 of the Criminal Code of Practice, which provides that an indictment, except in the cases mentioned in section 127, which does not embrace cases of this character, must charge but one offense.

Counsel for appellee contend, however, that the indictment is defective because it charges the offense of maintaining a common public nuisance under the common law, which, it is claimed, has been abrogated and superseded by the statute, which reads as follows:

"1253. If any person put, or cause to be put, in any stream, dam, pool or pond any liquid, berries, powders, medicine or other thing, or explode, or cause to be exploded, dynamite or any other substance, whereby fish, great or small, are or may be sickened, intoxicated or killed, or the water rendered unfit for use, or stench be