Volume 130 — Kentucky Reports

CASE 1 —ACTION BY THE HAZELHURST LUMBER COMPANY AGAINST THE CARLISLE' MANUFACTURING COMPANY AND OTHERS. — Appeal from Carlisle Circuit Court. R. J. Bugg, Circuit Judge. Judgment of dismissal. Plaintiff appeals. — We submit that it can not be the law that the owners of an insolvent corporation may take its assets and pay their individual debts, and yet not be liable to the creditors of the corporation.

<p>CASE 2. — ACTION BY LOUIS STRAUB’S TRUSTEE AGAINST EUGENE ANTONINI TO ENFORCE A WRITTEN CONTRACT FOR SALE OF LAND —</p> <p>Appeal from Jefferson Circuit. Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A married woman can hot be empowered by a deed to her to convey the estate thereby vested in her in a manner not authorized by the statute on conveyances. (Sewell v. Sewell, 92 Ky. 500: Brady v. Gray. 17 Ky. Law Rep. 512; Goodill v. Brigman, 1 Bosanquet & Poller, 192.) '</p> <p>2. The so-called power in the deed to Mrs. Straub is not such a power of appointment as could, according to the ancient doctrine of powers, be executed by a married woean without the concurrence of her husband under the operation of the statute of uses. (Dumesnil v. Dumesnil, 92 Ky. 526; Johnson v. Yates, 9 Dana 500; Dudley v. Weinhart, 93 Ky. 401; Goodill v. Brigman, supra; Good-title v. Otway, 2 Wils. 6; Sugden on Powers, 181; Sugden on Powers, 180; Lewin on Trusts, 34.)</p> <p>3. A power to “sell and convey” “by deed of general warranty” can not in this State be executed by a married woman without the concurrence of her husband. Such power can only be executed by a deed sufficient in law, and under our statutes a married woman can not execute such deed without the. concurrence of her husband. (Sugden on Powers, 328; General Statutes, c. 113, section 4; Tyree v. Williams, 3 Bibb 365; Revised Statutes, c. 24, section 20; Ky. Statutes, sections 505, 506; Sugden on Powers, 265; 1 Viet., c. 26; Lippincott v. Wikoff, 33 Atl. (N. J.) 307; Perry on Trusts, 38, 39.)</p> <p>4. The power in this case does not expressly authorize Mrs. Straub to convey without the concurrence of her husband, and such power should not be implied even if it were competent to give it. (Sugden on Powers, 247; Sewell v. Sewell, supra; Brady v. Gray, supra.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Deed of trust expressly provides that the trustee, Mrs. Straub, may convey by her deed, and hence her husband’s concurrence is not necessary.</p> <p>2. A married woman at common law could execute a deed without the concurrence of her husband in the execution of a power. (4 Kent’s Commentaries (4th Ed.) bottom page 335, side page 325; Sugden on Powers, vol. 1, top page 236, side page 181, sections 3, 4, 5; Washburn on Real Property (Nth Ed.), vol. 2, section 1685.)</p> <p>3. Tnat a married woman under the Kentucky decision has the same power now to execute a deed without the concurrence of her husband in the execution of a power that she had at common law and that this right has not been changed by statute. (Tyree v. Williams, 3 Bibb 367.)</p> <p>4. That the provisions of the Kentucky Statutes, sections 2128, .505, 506, and 507, apply to deeds of married women’s own property, but do not disable her from executing a power without her husband’s concurrence, which she might do according to the principles of the common law. (Tyree v. Williams, 3 Bibb 367, and authorities cited above under No. 2.)</p> <p>5. All the recent authorities recognize and approve the law as laid down by the court of appeals of Kentucky in the case of Tyree v. Williams. (Pullam v. The State, 78 Alabama 33; Andrew Huís v. James Buntin, 47 111. Rep. 399; Armstrong v. Kerns, 61 Maryland, 366; Lippincott v. Wickoff, 33 Atl. Rep. 307.)</p> <p>6. The Supreme Court of the United States approves of the doctrine that a married woman may convey by her deed as trustee without the concurrence of her husband in the execution of a power. (Gridley v. Wynant, 23 Howard 502.)</p>

<p>CASH 3. — PROCEEDINGS BY PAUL E. GERARD AND OTHERS TO OPEN A NEW ROAD TO WHICH THE LOUISVILLE & NASHVILLE R. R. CO. WAS' MADE A PARTY DEFENDANT- AND FILED EXCEPTIONS.—</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>From the judgment in the Circuit Court, defendant appealed. —</p> <p>1. No proof was made that the notices required by statute were posted. (See Mitchell v. Bond, 11 Bush 614.)</p> <p>2. Notice is .a jurisdictional fact. (See Portland & Greenwood Company v. Bobb, 88 Ky. Law Rep. 230; Ky. Stats, section 4289.)</p> <p>3. The commissioners were not sworn. (See Pollard v. Ferguson, 1 Monroe 57.) .</p> <p>1. A bill of exceptions can not be supplied by the averments of counsel for appellant, in a brief.</p> <p>2. The recitals of an order are taken as true until disproved. (Hopkins County v. Bernard Coal Co., 24. Ky. Law Rep. 942; Ford v. Cullins, 108 Ky. 553.)</p> <p>3. The burden was on the .appellant to sustain its exceptions, and in the absence of a bill of exceptions, this court must presume that all things were proved necessary to sustain the judgment.</p> <p>4. The two exceptions to jurisdiction, that five land owners did not sign the petition and the notice was not posted as required by law are disproved by the recital of the record.</p> <p>5. The statute sets forth what the report must contain and this report contains all that is required by the statute. (Ky. Stats., section 4293.)</p> <p>6. It is no longer necessary to recite with particularity as required by the former statute. (Ford v. Cullins, 108 Ky. 553; Chamberlin v. Hignite, 39 Ky. Law Rep. 85.)</p> <p>7. The exceptions below are ambiguous and are not as contended for in this case at present. ■</p>

<p>CASE 4. — ACTION BY SAMUEL PRANCE’S ADMX. AGAINST THE ILLINOIS CENTRAL R. R. CO. AND ANOTHER POR CAUSING THE DEATH OP PLAINTIFF’S INTESTATE. —</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>I. Intestate, with the knowledge of danger, went upon defendant's switchyard and tracks, not at a crossing, or in populous town, or city, and was a trespasser. (L. & N. R. R. v. Logsden, 81 S. W. 657; McDermott v. Ky. Central R. R. Co., 93 Ky. 408, 20 S. W. 880; L. & N. R. R. Co. v. Webb, 99 Ky. 348, 35 S. W. 1120; Becker v. L. & N. R. R. Co., 110 Ky. 478; Goodman’s Admr. v. L.& N. R. R. Co., 77 S. W. 174, 25 Ky. Law Rep. 1089, 63 L. R. A. 627;Gressom's Admr. v. L. & N. R. R. Co., 15 Ky. Law Rep. 599; L. & N. v. Smetzer, 94 Ky. 424; I. C. R. R. Co. v. Dick, 91 Ky. 434; L. & N. R. R. C.o. v. Hocker, 111 Ky. 707; L. & N. R. R. Co. v. Vittito, 19 Ky. Law Rep. 612; Ky. Cent. R. R. Co. v. Gastineau, 83 Ky. 122; Ward v. I. C. R. R. Co., 22 Ky. Law Rep. 191; I. C. R. R. Co. v. Gregory, 25 Ky. Law Rep. 1988; Rosenberry v. N. N. & M. Y. R. R. Co., 19 Ky. Law Rep. 194; Chinn’s Admr. v. C. & O. R. R. Co., 24 Ky. Law Rep. 2350, 74 S. W. 215; McCabe v. M. & B. R. R. Co., 26 Ky. Law Rep. 532; Jackson’s Admr. v. L. & N. R. R. Co., 20 Ky. Law Rep. 309; L. & N. R. R. Oo. v. Popp, 96 Ky. 99; Wiiimuth’s Admr. v. I. C. R. R. Co., 25 Ky. Law Rep. 671, 76 S. W. 192; Brown’s Admr. v. L. & N. R. R. Co., 97 Ky. 228.)</p> <p>2. Intestat9 was not on a public crossing, and the railroad company owed intestate no duty at the time of the injury complained of. - (Redmon’s Admr. v. L. & N. R. R. Co., 28 Ky. Law Rep. 1293; Brown’s Admr. v. L. & N. R. R. Co., 97 Ky. 228.)</p> <p>3. Without experience and observation as to the speed and time required to stop a train, witnesses’ testimony was incompetent. (Vanarsdale’s Admr. v. L. & N. R. R. Co., 23'Ky. Law Rep. 1666;</p> <p>1. C. R. R. Co. v. Johnson, 97 S. W. 745; I. C. R. Co. v. Smith, 110 Ky. 201.)</p> <p>4. Evidence of the use of the switchyard and track by sporadic trespasser was incompetent. (I. C. R. R. Co.' v. Johnson, 97 S. W. 745.)</p> <p>5. Warning due persons at crossings does not apply when oh! of, or near crossings. (Redmon’s Admr. v. L. & N. R. R. Co., 28 Ky. Law Rep. 1293.)</p> <p>6. Schedule rate of speed was competent.</p> <p>7. Court’s instructions 1 and 2 denied the right to recover on account of contributory negligence. (Goodman’s Admr. v. L. & N. R. R. Co., 77 S. W. 174, 25 Ky. Law Rep. 1086, 10 Ky. Law Rep. 777; L. & N. R. R. Co. v. McCoy, 81 Ky. 403.)</p> <p>8. Instruction No. 3 is erroneous because it limits the right to recover for contributory negligence. (Goodman’s Admr. v. L. & N. R. R. Co., 77 S. W. 174, 25 Ky. Law Rep. 1086, 10 Ky. Law Rep, 777; L. & N. R. R. Co. v. .McCoy, 81 Ky. 403.)</p> <p>■ 9. There is no evidence of negligence, the verdict is overwhelmed by the evidence, palpably against the evidence, and new trial should be awarded. (L. & E. Mail Co. v. Gilland, 24 Ky. Law Rep. 2082; Triple-State Natural Gas Co. v. Wellman, 24 Ky. Law Rep. 851.)</p> <p>10. Although there is a scintilla of evidence properly taking ■**><» ease to a jury, it does not follow by “any means” that the trial court should not award a new trial. (Hurt v. L. & N. R. R. Co., 116 Ky. 553; L. & N. R. -R. Co. v. Hall, 24 Ky. Law Rep. 2487.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. France’s own negligence was the proximate cause of his injury. (I. C. R. R. Co. v. Willis’ Admr., 29 Ky. Law Rep. 1184, .97 S. W.* 21; Hummer’s Extx. v. L. Se N., 32 Ky. Law Rep. -, 108 S. W. 885; L. & N. R. R. Co. v. v. Gilmore’s Admr., decided April 16, 1908; L. & N. R. R. Co. v. Lawler, 32 Ky. Law Rep. 994.)</p> <p>2. Review of Murphy, Rader and Taylor cases, and Murphy case distinguished by this court in I. C. R. R. Co. v. Johnson, 30 Ky. Law Rep. 142, 97 S. W. 745, and in C. Se O. Ry. Co. v. Nipp, Sec., 30 Ky. Law Rep. 1132, 100 S. W. 246.</p> <p>' 3. The scintilla rule does not justify the court in upholding a verdict against the overwhelming weight of the evidence. (L. & N. Ri R. Co. v. Hall, 115 Ky. 567; Hurt v. L. & N. R. R. Co., 116 Ky. 545; C., N. I. & T. ,P. Ry. Co. v. Zachary, Sec., 32 Ky. Law Rep. 680, 106 S. W. 842.)</p> <p>4. The instructions in this case are incorrect. (Hummer, &c., v. L. & N. R. R. Co., 32 Ky. Law Rep. 108 S. W. 885.)</p> <p>We contend that the proof shows the engineer was not only guilty of ordinary negligence, but gross negligence in every particular. His failure to keep a lookout, to blow the whistle and ring the bell while approaching the crossing, together with the excessive rate of speed at which he was drawing his engine, all go to show that he was reckless of human life. As Judge O’Rear said in the Murphy case: “Nobody has a right to be in such a hurry as to run over and kill people who happen to get in their way and who have a right to be or known to be at the point of collision. No requirement of commerce c.an justify such a rule, nor has such inhuman doctrine any place in our law.”</p> <p>AUTHORITIES.</p> <p>Illinois Cent. R. R. Co. v. Murphy’s Admr., 97 S. W. 729; Rader’s Admx. v. L. & N. R. R. Co., 104 S. W. 774; L. & N. R. R. Co. v. Taylor’s Admr., 104 S. W. 776.</p>

<p>1. Executors and Administrators — Sale of Real Estate — Persons Who May Appeal. — A purchaser at a sale made in a suit to settle a decedent’s estate has the right to appeal from a judgment confirming the report of sale.</p> <p>2. Executors and Administrators — Sale of Real Estate — Validity —“Material Allegations.” — Under Civil Code of Practice, section 126, providing that material allegations against infants must be proved, though not denied, and section 127, defining ia material allegation to be one necessary to support the action, and section 429, requiring a petition in a suit to settle a decedent’s estate to state the amount of debts, the nature and value of the property of decedent, and providing that, if the personal property is insufficient to pay debts, so much of the real property as may be necessary may be sold, a sale of an entire tract before the value of the personal property had been ascertained, and before it had been ascertained, at least approximately, what the claims against decedent’s estate amounted to, and without any showing that the land was indivisible, was, .as to infant heirs, void.</p> <p>3. Executors and Administrators — Sale of Real Estate — Validity. —The report of a commissioner that, in his judgment, certain claims against a decedent’s estate had been proved according to law, is not sufficient to support a judgment directing’ a sale of decedent’s real estate to satisfy the same, but, before any such sale is ordered, the validity of the claims should be passed upon by the court.</p> <p>4. Executors and Administrators — Sale of Real Estate — Provision for Infants. — A judgment directing a sale of the real estate to pay debts must make necessary provision to protect the interest of infant heirs in the proceeds of the sale, over the sum required to pay the debts, otherwise a sale in excess of the amount necessary to pay debts, though the real estate be indivisible, will be void.</p>

<p>1. Contracts — Completion—Reduction to Writing. — Where all the terms of a contract, by which plaintiff agreed to furnish defendant a specified quantity of broken stone at a certain price per cubic yard, were agreed to, and the contract was dictated to defendant’s stenographer with instruction to write out duplicates, and send them by mail to plaintiff, who was to sign both and return one to defendant, the contract was complete and enforceable, though not reduced to writing and delivered before defendant’s breach.</p> <p>2. Contracts — Conditions—Failure to Comply. — Where defendant, sued for breach of contract, did not deny that, if there was a contract, it did not allow time for the execution by plaintiff of a bond to secure performance before defendant broke the contract, plaintiff's- failure to furnish a bond was no defense.</p> <p>8. Damages — Contract—Breach—Duty to Reduce Damages.— Plaintiff, a quarryman, contracted to furnish defendant a certain quantity of broken stone at a specified price per cubic yard. Held, That, on defendant’s breach of such contract, plaintiff was entitled to recover profits he would have made by furnishing the stone, and was not required to sell the stone in the market and recover the difference between the contract price and market price.</p> <p>4. Contracts — Breach—Justification.—Where plaintiff and defendant’s manager had agreed on terms of a contract by which plaintiff was to furnish broken stone to defendant, and, after dictating the contract to defendant’s stenographer, defendant’s manager visited plaintiff’s quarries and promised that the written contract should be forwarded at once, he was not justified in refusing to comply therewith by the stenographer’s subsequent statement to him that plaintiff had previously said he would not sign the contract unless a certain modification was inserted in it.</p> <p>5. Trial — Instructions—Assumed Facts. — An instruction that if the jury believed that plaintiff and defendant made a contract as pleaded in the petition, and defendant broke it, while plaintiff was ready and willing to execute it, then plaintiff was entitled to damages, was not objectionable as assuming the existence of the contract.</p> <p>6. Damages — Duty to Minimize — Those complaining of violations of contract are generally required to minimize their damages as much as the exercise of reasonable diligence will accomplish without sacrificing a substantial right.</p> <p>7. Contracts — Breach—Offer of Performance. — Where defendant informed plaintiff of its election not to take stone contracted fcr, plaintiff, under the rule that the law does not require the doing of a useless act, was not required to make an express tender of performance.</p>

<p>CASE 7. — ACTION BY COMMONWEALTH ON RELATION OF T. G. ALBRITTON, REVENUE AGENT, AGAINST COMMISSIONERS LEBANON WATER WORKS FOR TAXES ON STOCKS. —</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment in County Court for plaintiff, and in Circuit Court for defendant, and plaintiff appeals. —</p> <p>AUTHORITIES.</p> <p>1. It is well settled that a municipality may hold property in a private or proprietary capacity, as well as in a governmental or public capacity; and it was not intended in the Frankfort tax case to abolish the distinction between these two classes of ownership. (Dillon’s Municipal Corporations, sec. 66, p. 107, 4th Ed.; Com. v. Louisville, 47 S. W., 865; Covington v. Com. 39 S. W., 836; Newport v. Com., 50 S. W., 845; Roberts v. Louisville, 92 Ky., 104; Carrolton Furniture Co. v. Carrolton, 47 S. W., 835; Negley v. Henderson, 59 S. W., 19; Owensboro v. Com. 49 S. W., 320; Amer. & Eng. Encyc. of Law, vol. 20, p. 1193; Louisville v. McAteer, 81 S. W., 679, 1st L. R. A. (N. S.), 766; Com. v. Covington, 107 S. W., 231; Board of Councilmen of the City of Frankfort v. Commonwealth, 94 S. W., 648; South Carolina v. United States, 199 U. S., 438, 50 Law Ed., 261; Section 170 of the State Constitution.)</p> <p>2. The property of the Lebanon Sinking Fund is not exempt from State and county taxation. (Commonwealth v. Wathen, 104 S. W., 364; Sec. 171 of the State Const.; Commonwealth v. MacKibben, 14 S. W., 372; Dayton v. Bellevue Co., 68 S. W., 142; Commonwealth v. Louisville, 47 S. W., 864; Covington v. Commonwealth, 39 S. W., 836; Newport v. Commonwealth, 50 S. W., 845; Negley v. Henderson, 59 S. W., 19; Board of Councilmen of the City of Frankfort v. Commonwealth, supra; Maydwell v. Louisville, 76 S. W., 1091; Owensboro v. Commonwealth, 105 Ky. 344, 44 L. R. A., 202; Clark, Sheriff, v. Louisville Water Company, 90 Ky., 515, 14 S. W., 502; Haltzhaven v. Newport, 94 Ky. 396, 22 S. W., 752; Cooley on Taxation, 2nd Ed., p. 108; Judson on Taxation, 354; Burrough’s on Taxation, p. 22; Desty on Taxation, vol. 1, p. 26, sec. 9; Hilliard on Taxation, p. 12, sec. 17; Barbour, Sheriff v. Board of Trade, 82 Ky., 653; Louisville Warehouse Company v. Commonwealth, 106 Ky., 172; Louisville v. McAteer, 81 S. W., 668, 1st L. R. A. (N. S.), 709; Commonwealth v. Thomas, 83 S. W„ 572; 6 L. R. A. (N. S.), 324; Section 170 of the State Constitution; Barbour, Sheriff, v. Board of Trade, 81 Ky., 651; Kilgus v. Trustee, 21 S. W. 751; German Bank v. Louisville, 56 S. W., 504; Insurance Company v. Tennesee, 161 U. S., 174, 40 Law Ed., 660; Cooley on Taxation, Second Edition, 205.)</p> <p>We submit that the property municipalities are authorized to acquire, such as waterworks, must of necessity have been acquired with money derived from the levy and collection of taxes, and necessarily, must be regarded as held for public purposes. The trend of legislative and judicial decisions for the last half century has been to enlarge the exemption of public property from taxation. Public sentiment demands, that public improvements and public conveniences should be promoted and fostered, and not hampered by lawmakers in courts.</p> <p>AUTHORITIES CITED.</p> <p>Constitution, 170, 171; City Louisville v. Commonwealth, 1 Duvall, 295; City of Frankfort v. Commonwealth, 79 S. W., 658; City of Covington v. Highlands decided in May, 1908.</p>

<p>1. Insurance — Mutual Benefit Society — Initiation—Regularity— Estoppel. — Decedent's certificate of membership having been received by the local camp of defendant society, decedent was directed to appear for required initiation, when a mistake in the number of the local camp in the certificate was discovered. It was then decided to proceed with the initiation, which was done, the certificate being returned by the clerk for correction. Decedent paid all the required fees and dues, was accepted and recognized as a member of the order until his death,before the corrected certificate had been returned and delivered to him, and was bttried by the order as a regular member in full fellowship and good standing. Held, that the order was estopped to question the regularity of the initiation.</p> <p>2. Insurance — Constitution — Construction — “In Person.”— The words “in person,” used in the constitution of a mutual benefit society directing that there shall be no liability until the insured shall have had delivered to him “in person” his beneficiary certificate while in good health, was not synonymous with “manual possession,” so as to require that the certificate be actually placed in insured’s hands to constitute a legal delivery, but was merely intended to require a delivery' to insured himself, and not to'another for him.</p> <p>3. Insurance — Mutual Benefit Certificate — Delivery—Evidence.— A certificate issued to insured on his application was received by the clerk of insured’s local camp, when a mistake</p> <p>in the number of the camp was discovered. Insured was directed to appear for initiation, and was regularly initiated, and paid all the dues and assessments, but the clerk returned the certificate to the sovereign camp for correction, and, before a corrected certificate was returned and delivered to insured, he was killed Held that, when insured was initiated and had paid the dues, the clerk held the original certificate, which was a valid instrument notwithstanding the error, for him and that such acts constituted a delivery of the original certificate to assured personally as required by the society’s constitution in order to initiate defendant’s liability.</p>

<p>CASE 9. — ACTION BY ROBERT BOYD’S EXECUTOR AGAINST K. D. PERKINS ON LAND NOTES EXECUTED TO PLAINTIFF’S TESTATOR. —</p> <p>Appeal from Whitley Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment of dismissal; plaintiff appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Webster’s Dictionary, “Nephew;" Bouvier’s Law Dictionary, “Nephew,” “kin,” “kindred;” Schouler on Wills -(2d Ed.), sections 536, 537; Second Jarm. on Wills, 661; A. & E. E. of Law (1st Ed.), vol. 12, p. 521; A. & E. E. of Law (1st Ed.), vol. 20, p. 738: A. & E. B. of Law (1st Ed.), vol. 29, p. 417; Tiffany v. Emmitt, 24 R. I. 411; Huling v. Fenner, 9 R. I. 411; Leigh v. Leigh, 15 Ves. 107; Supreme Council v. Bennett, 47 N. J. Eq. 39; Handley' v. Woughson, 60 Md. 198; Varrell v. Wendell, 20 N. H. 431; Drew v. Wakfield, 54 Me. 291; 52 Penn. 25.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>I. In the construction of wills, the cardinal rule is that the intention of the testator, as gathered from the entire instrument, must prevail. (Bedford v. Bedford’s Admr., 99 Ky. 273; Crozier v. Cundall, 99 Ky. 202; Schouler on Wills, section 471.)</p> <p>2. In order to arrive at the intention of testator, the chancellor should, as far as possible, put himself in his place by considering the circumstances surrounding the testator at the time of the execution of the will. (Price v. Hutchins, 98 Ky. 656.)</p> <p>3. In order to reach the intention of the testator, it should be ■presumed that words occurring more than once in his will were used in the same sense, unless the context shows a contrary intention. (Schouler on Wills, section 471.)</p> <p>4. In the construction of wills words are to be taken 4n their plain and usual sense, unless a clear intention to use them in another sense can be collected. (Schouler on Wills, section 472.)</p> <p>5. Kin, in its general sense, is a term'used to include both relation by blood and marriage. (24 Cyc. 803; Hibbard v. Odell, 16 Wis. 633.)</p> <p>6. The word “kin” means relationship, consanguinity or affinity, and the word “relative” means any person connected by blood or affinity. (Century Dictionary.)</p>

<p>CASE 10. — ACTION BY W. C. EVERSOLE AND OTHERS AGAINST D. Y. COMBS, POLLY ANN COMBS AND OTHERS TO REFORM A DEED —</p> <p>Appeal from Perry Circuit Court.</p> <p>L. P. Fryer, Circuit Judge,</p> <p>Judgment of dismissal; plaintiffs appeal. —</p>

<p>1. Deed — Construction — Property Conveyed — Evidence. — Evidence held to show that a conveyance from plaintiff to defendant excluded a tract in controversy.</p> <p>2. Trespass — Complaint—Sufficiency.—A complaint in an action against a trespasser alleged plaintiff’s ownership and the trespass, and asked an injunction. Held, That the action was not one to quiet title, so as to render the complaint bad for lack of an allegation of possesion, but was properly brought under Ky. Stats., 1903, section 2361, providing that the owner of land may maintain the appropriate action to restrain any trespass thereon or injury thereto, though he may not have the actual possession of the land.</p>

<p>1. Taxation — Inheritance Tax- — Power to Impose. — The power to tax is incident to the legislative power so that it is necessary, not that the Constiution have a provision authorizing the imposition of an inheritance tax, but that it does not prohibit it.</p> <p>2. Taxation — Inheritance Tax — Power to Impose. — The right to take property by inheritance or bequest is but a creature of the law, and not an absolute right of property, and hence it may be regulated by the State and subjected to a tax as an incident of such regulation.</p> <p>3. Taxation — Uniformity—Inheritance Tax — “Tax on Property.— An inheritance tax is not a “tax on property,” within Constitution section 171, requiring uniformity and equality of taxes on all property subject to taxation.</p> <p>4. Taaxtion — Inheritance Tax — Uniformity.—Even if the inheritance tax be a “special or excise” tax, authorized by Constitution section 181, and the rule as to uniformity of taxation applies to a special or excise tax, Revenue Act, 1906 (Acts • 1906, p. 240, c. 22) art. 19, section 1, imposing a collateral inheritance tax of $5 on every $100 of every legacy of the class taxed in excess of $500 to the extent of the excess, satisfied the rule as to uniformity.</p> <p>6. Taxation — Inheritance Tax — Exemption—“Estate.”—The “estate” meant by the provision of Revenue Act, 1906 (Acts 1906, p. 240, c. 22), art. 19, section 1, that the first $500 of every estate shall not be subject to the tax thereby imposed on legacies to strangers and collateral heirs and inheritances by collateral heirs, is not the estate of deceased, but that passing to a stranger of collateral heir, so that each legacy is entitled to the exemption; and this, though the executor or administrator is required to pay it in the first instance, he being also required to deduct it from the estate passing to the legatee or collateral heir.</p> <p>6. Constitutional Law — “Legislative Power” — Nature and Scope. —The words “legislative power,” used in Constitution, section 29, providing that the legislative power shall be vested in a House of Representatives, etc. is a comprehensive phrase, meaning all powers that appertain to or are usually exercised by a legislative body.</p> <p>7. Words and Phrases — -“Excise.”—The word “excise” is a term of very general significance, and means tribute, custom tax. foliage, or assessment.</p> <p>ON REHEARING—</p> <p>Equity — Exclusive and Concurrent Jurisdiction — Collateral Inher- ' itance Tax — Assessment by Court of Equity. — While Acts, 1906, pp. 246, 247, c. 22, sections 13, 14, 15, part of the act imposing a collateral inheritance tax, give the county court jurisdiction to determine questions arising relative to the tax ■this jurisdiction is not exclusive, and. a court of equity may, at the instance of the Commonwealth’s representative, require the payment of such tax out of the shares of those chargeable therewith before distributing an estate.</p>

<p>CASE 13. — PROCEEDINGS BETWEEN MATILDA N BARRETT AND OTHERS, AND THE CONTINENTAL REALTY COMPANY AND OTHERS TO COLLECT AN INHERITANCE TAX. —</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment Barrett and others appeal.—</p>

<p>CASE 14. — PROCEEDINGS BETWEEN JOHN ALLEN’S EXECUTORS and john Mcelroy, sheriff, to COLLECT AN INHERITANCE TAX. —</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>From the judgment the executors appeal. —</p>

<p>CASE 15. — PROCEEDING BY A. F. ROGERS AND OTHERS ASKING ADVICE OF THE COURT AS TO THE DISPOSITION OF CERTAIN TRUST PROPERTY, IN WHICH ROSS TAYLOR AND OTHERS INTERVENED WITH AN ANSWER AND CROSS-PETITION AGAINST THE PLAINTIFFS. —</p> <p>Appeal from Todd Circuit Court,</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>From an order sustaining a demurrer to the petition of interveners, they appeal. —</p> <p>POINTS AND AUTHORITIES.</p> <p>The following propositions are discussed and -the following authorities cited.</p> <p>1. The contract and deed must be construed and read together. (110 Ky., 33; 101 Ky., 441; 5 Lawson’s Rights Rem. & Prac., 2315; 33 Ky. Law Rep., 346.)</p> <p>2. Where property is donated to a charity, or a certain charitable object and the object fails or is abandoned, the property reverts to the donor or his heirs. (4 Bush, 234; 5 Bush, 330; 20 Ky. Law Rep., 391; 70 Cal., 326; 16 Barb (N. Y.), 107; 18 Ohio, 221; 23 Pa., 495; 110 Pa., 496.)</p> <p>2. This is unlike the Fuqua case cited in 22 Ky. Law Reporter, 744, for the reasons stated in the brief.</p> <p>4. Section 323 of the Kentucky Statutes has no application for the reasons stated in the brief. (Ky. Const., 187; 4 Bush, 234; 5 Bush, 330; 20 Ky. Law Rep., 391.)</p> <p>5. Section 1606. Kentucky Statutes has no application for the reasons stated in the brief.</p> <p>AUTHORITIES CITED.</p> <p>Goss v. Houchins, 6 Ky. Law Rep., 442; Morrison v. Coghill, 2 Ky., (Ky. Dec.) 322; Carroll County Academy v. The Gallatin Academy, 20 Ky. Law Rep., 824; Trustees Presbyterian Church v. Alexander, 20 Ky. Law Rep., 391; Fuqua’s Heirs, v. Trustees Hopkins Academy, 22 Ky. Law Rep., 744; Spalding v. St. Joseph School, 21 Ky. Law Rep., 1107; Kentucky Statutes, 4439a, 4484.</p>

<p>CASE 16. — ACTION TO SETTLE SUSAN MALLONE’S ESTATE, IN WHICH THE GUARDIAN AD LITEM OF A FEEBLE-MINDED HEIR, SEEKS TO CHARGE THE OTHER HEIRS WITH ADVANCEMENTS. —</p> <p>Appeal from Hart Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>From the judgment Annie Lee Crain and another appeal —</p> <p>POINTS. AND AUTHORITIES.</p> <p>1. The Virginia Hospitality Act does not apply in case of necessities furnished to an idiot. (3 Bush, 614; Frailey’s Admr. v. Thompson, 20 Ky. Law Rep., 1179; Dance’s Admr. v. Magruder, 26 Ky. Law Rep., 220.)</p> <p>2. The act never applies to any person whether sui juris or not for extraordinary attention such as nursing, washing, furnish-tag clothing and etc. (Frailey v. Thompson, 20 Ky. Law Rep., 1179; Dance’s Admr. v. Magruder, 26 Ky. Law Rep., 220; Thomas v. McArthur, 7 Bush, 245; Schuster v. White, 106 Ky., 317; Turner v. Moberly’s Admr., 14 Ky. Law Rep., 623; Mark’s Admr. v. Board-man, 28 Ky. Law Rep., 455; Reynolds v. Reynolds, 13 Ky. Law Rep. 793; Wayman v. Wayman, 15 Ky. Law Rep., 374; Price v. Price, 19 Ky. Law Rep., 211; Lowe’s Admr. v. Webster, 19 Ky. Law Rep., 1208.)</p> <p>3. Susan E. Mallone was under no legal obligation to support or care for her adult child. (Central Ky. Asylum v. Knighton, 28 Ky. Law Rep., 2381.)</p> <p>We submit, that to constitute an advancement must there not be the giving up of something of value on the part of the parent to the child, must not that giving deprive the remaining children of something of value in the division of the deceased parent’s estate? Can the free and voluntary services of the parent given to a helpless child be counted as an asset of the deceased parent’s estate? Can the services of a mother’s love be' counted in dollars and cents whereby one child may claim that its brother or sister received more than it did? I say a thousand times no, for a mother’s services are something that are peculiarly hers which cannot be counted in a division of her property. (Bowles v. Winchester, 13 Bush; Clarke v. Clarke, 17 B. Mon., 708, 709.)</p>

<p>Mines and Minerals — Leases—Construction—“Provided Wells’ are Completed During Said Term.” — A lease of land was for the term of three years and as much longer as oil and gas were found on the land, provided wells were completed during the term of the lease, which also stipulated that, if gas was found in sufficient quantities to market the same, the consideration should be $100 a year for each well as long as gas from such well was marketed, and that the lessee should sink a test well on the land within one year. Held, that the expression “provided wells are completed during said term” meant that other wells were to be completed during the term beside the test well, and that the mere sinking of a test well during the term, 'without marketing the gas found in it, did not entitle the lessee to an extension of the term beyond the three years, and an agreement by the lessee to furnish the lessor with gas from the test well in consideration of a release from the payment of any royalty while he was using the gas did not excuse it from its obligation to put down other wells.</p>

CASE 18 — ACTION BY MRS. JOYCE MORRISON AGAINST HENRY PRICE AND OLIVER BLAIR FOR FORCIBLY EJECTING HER FROM HER PREMISES.— Appeal from Pulaski Circuit Court. M. L. Jarvis, Circuit Judge. Judgment for defendants, plaintiff appeals — CONCLUSION. Before the appellant was entitled to recover in this action it was necessary for her to prove, at east by some evidence, that Henry Price procured, advised or aided and abetted Owen Biair in the commission of an unlawful act.

CASE 19. — ACTION BY R. F. WRIGHT AGAINST H. C. NEALE TO CANCEL A DEED FOR FRAUD. — Appeal from Graves Circuit Court. R. J. Bugg, Circuit Judge. Judgment for plaintiff. Defendant appeals. — POINTS AND AUTHORITIES. In this action appellee is only asking that he be placed in statu quo. Shall appellant have something for nothing? There has been a complete failure of consideration.

<p>1. .Trusts — Torts of Trustee — Public Nuisance. — Trustees are answerable as sucb for any damage due to the maintenance of a public nuisance by them.</p> <p>2. Estoppel — Equitable Estoppel — Silence. — That parties knew that another was negotiating for property, and knew that a dam, above which they were operating a mill, was a material inducement to the purchase, and made no objection to the maintenance of the dam before he had purchased the property, did not estop them, on thereafter operating another mill below the dam, to complain that it was .an unlawful obstruction of the stream and interfered with the floating of logs.</p> <p>3. Nuisance — Public Nuisance —■ Special Damage.— Where logs are caught and held by a dam until they rot, or the owners, at special expense and labor, get them over the dam, such owners sustain a special damage, not common to the public, for which they may sue, notwithstanding the dam may be a common nuisance.</p> <p>4. Nuisance — Private Nuisance — Prescriptive Right to Maintain Dam. — The right to maintain a dam may be acquired, as against another private owner, by prescription, notwithstanding the dam may be a public nuisance.</p> <p>5. Judgment — Conformity to Issues Raised by Pleadings. — Judgment cannot be entered on an issue not made by the pleadings.</p> <p>6. Navigable Waters — Prescriptive Right to Maintain Dam — ■ Height. — The right to maintain a dam by prescription extends only to the height at which it has been maintained for the prescriptive period, and no right to raise i.t above that height ■is acquired.</p> <p>7. Navigable Waters — Prescriptive Right to Maintain Dam. — No right to maintain a dam which materially interferes with the floating of timber can be acquired by the mantenance of a dam which does not constitute such an interference.</p> <p>8. Navigable Waters — Floating Timber. — A stream may be navigable for the purpose of floating timber, though not navigable for boats.</p>

<p>1. Insurance — Assignment—Contract—Parties—Mental Capacity. —Evidence held to show that insured was mentally capable of contracting with her sons to pay the premiums on her life policy and take the proceeds at her death.</p> <p>2. Insurance — Life Insurance — Insurable Interest — Parent and Child. — The relationship between parent and child is itself sufficient to give either an insurable interest in the life of the other.</p> <p>3. Insurance — Life Insurance — Contract with Stranger to Pay Premiums. — Where a mother contracted with her sons to pay premiums on her life policy and take the proceeds at her death, ’an agreement between the sons and a nephew of insured, who had no insurable interest, that he should furnish one-third of the premiums and have one-third of the proceeds of the policy did not affect the validity of the policy or affect the sons’ interest therein.</p>

CASE 22. — PERSONAL INJURY ACTION BY GILLIS MCFARLAND’S ADMR. AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. — Appeal from Whitley Circuit Court. M. J. Moss, Circuit Judge. Judgment of dismissal; plaintiff appeals. — 1. It is alleged and by the demurrer admitted lhat the appellee had noth e that there was a surviving wife and that the woman Isabella was was not such surviving wife before the settlement with said Isabella. 2.

CASE 23. — PERSONAL INJURY ACTION BY M. B. WILSON AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY — Appeal from Greenup Circuit Court. S. G. Kinner, Circuit Judge. Judgment for defendant. Plaintiff appeals. — 1. The master’s duty to provide for the servant a safe place to work, extends only to such part of the premises as it is necessary for the servant to use in the performance of his labors. 2.

<p>CASE 24. — MANDAMUS BY MOSES N. WEBSTER TO COMPEL THE STATE BOARD OF HEALTH TO ISSUE TO HIM A CERTIFICATE TO PRACTICE MEDICINE.—</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment of dismissal, plaintiff appeals —</p> <p>We submit that appellant had a right to have his application acted on by the State board of health and upon its failure to act he had a right to the mandamus asked for, and on an adverse decision by the board of health, a right to an appeal to the Governor for a final hearing; and for a denial of these rights he is praying for a reversal of the lower court.</p> <p>CITATIONS.</p> <p>Ky. Stats., sec. 2613, subsec. -; Civil Code, 477; Ky. Stats., 2615; Nelson v. State Board of Health, 22 Ky. Law Rep., 438.</p> <p>We submit that, properly interpreted, the statute does not entitle one to examination by the board of health, merely because he did practice at some time previous to 1884, where, as far as his petition shows, he has never practiced at any time since. The consideration of the latter question, however, is academic. He has never applied for or passed an examination, and that determines against him the only question presented by this appeal; viz.: whether or not he is at this time entitled to a certificate from the State board of health. (Acts of 1904, chap. 34; Duet v. State of West Virginia, 129 IT. S., 114; Ky. Board of Pharmacy v. Cassidy, 115 Ky., 690; Brestow v. Comlth., 93 Ky., 393; Hargin v. Purdy, 93 Ky., 424; State v. McCleary, 109 5. W., 638; State of Missouri v. Davis, 104 k([o., 485; Nelson v. State Board of Health, 108 Ky., 769.)</p>

<p>CASE 25. — FORCIBLE DETAINER PROCEEDINGS BY HENRY ROETTGER AND WIPE AGAINST M. RIEFKIN AND WIFE. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. Berry and C. W. Yungblut, Judges.</p> <p>Judgment for defendants. Plaintiffs appeal. —</p> <p>PROPOSITIONS AND CITATIONS.</p> <p>1. Three days given to traverse finding on inquest in forcible detainer case, means three juridical days, which excludes intervening Sunday. (Long v. Hughes, 1 Duv., 381; White v. Crutcher, 1 Bush, 472; Frazier v. Clark, 88 Ky., 260; Reiley v. Grace, 17 Ky. Law Rep., 1007; Section 461, Civil Code.)</p> <p>2. Judgment rendered Friday, writ of restitution issuing following Monday was premature. (Same authorities.)</p> <p>3. Writ could issue only at landlord’s request, and after third juridical day (Monday). (Section 461, Civil Code.)</p> <p>4. Landlord liable for damages where he requested and obtained and directed constable to dispossess tenant, in- the latter’s absence, on third juridical day (Monday). (No case cited.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The action of trespass on the case is the proper remedy for acts done by officers, in suing parties to the process. (Owens t. Starr, 2 Litt., 230; Lovier v. Gilpen, 6 Dana, 321.)</p> <p>2. The officer is not the agent of the "plaintiff in an execution.</p> <p>3. No case was made out against the appellee and the appellee Tentó Riefkin was not connected with the case at all.</p>

<p>Telegraphs and Telephones — Failure to Deliver Messages — Damages — Relationship Between Parties. — Damages for mental anguish for failure of a telegraph company to send or deliver a telegram announcing the sickness or death of a relative cannot be recovered, unless the relationship between the parties is that of parent and child, husband and wife, sister and brother, or grandparent and grandchild.</p>

<p>1. Parties — Defendants — Necessary Parties — Objections — Mode of Objections. — In a suit by administrators for the settlement of an estate, if a necessary party was not before the court, ei.ther by summons or warning order, the party objecting on that ground should have stated the name of such party.</p> <p>2. Executors and Administrators — Payment of Claims — Sale—Authority to Make. — In a suit by administrators to settle an estate, consolidated with a suit by creditors to have certain alleged preferences declared an assignment for the benefit of decedent’s creditors, certain lienholders being made parties and their liens set up, a sale, of the land could be ordered, though such lienholders, had not filed their answers and set up their liens when judgment was entered, under Civ. Code Prac. section. 69'2, requiring the plaintiff in an action to enforce a lien to make other lienholders defendants, and permitting a judgment of sale to satisfy all the liens, though such defendants failed to assert their claims, hut providing that they shall not he allowed to withdraw or receive any of the proceeds until they have shown their right thereto hy answering and cross-petition.</p> <p>3. Executors and Administrators — Sale for Debts — Property Subject to Disposal. — Where decedent had the right under his father’s will to purchase the interests of other remaindermen in .land in which decedent had a remainder within a certain time after the life tenant’s death, and decedent elected by his will to purchase the interest of a deceased remainderman, the representatives of such remainderman being made defendants, decedent’s administrators, in proceedings to sell the estate to satisfy debts, could consummate his election to purchase by paying the stipulated price out of the estate, and then sell the land for debts together with the rest of the estate; it being unnecessary to institute a separate proceeding tp vest title in themselves.</p> <p>4.. Executors and Administrators — Sale—Report—Determination as to Necessity of Sale. — Under Civ Code Prac. section 429, authorizing the court to order a sale of real property for the payment of debts, if it appears to the satisfaction of the court that the personal estate is insufficient, the real property may be sold where the pleadings alleged without contradiction that decedent's debts were greater than the value of his estate, though there was no reference to a commissioner, or report of the necessity of sale; since, where the rights of infants are not involved, a reference and report are not essential to the validity of the sale.</p> <p>5. Executors and Administrators — Sale — Contest of Claims. — A suit by administrators to sell land to satisfy debts consolidated with a suit hy creditors to have certain mortgages, alleged to he preferences, declared an assignment for the benefit of creditors. Several of the lawyers in the case resided in another county, and the alleged preferences were numerous so that it would have taken a long time to adjudicate them, and in the meantime the assets of the estate would have been diminished. The sale was attacked on the ground that, until the determination of. the alleged preferences, the lineholders would not know how much to bid on the land in case of sale. Held, while the rights of the various lineholders should be first determined,- where it could be done without prejudicing the estate, the trial court had a large discretion in the matter, and, under the circumstances, the sale was properly made before determining the rights of creditors and lineholders.</p> <p>6. Mortgages — Right to Foreclose — Miaturity of Debt — Default in Interest. — Where a mortgage contained an absolute provision that, if any interest remained due -and unpaid for 30 days, the whole debt should become due, the entire debt and interest became due without any action by the mortgagee on the failure to pay the interest for that period.</p>

<p>1. Waters and Water Courses — Pollution—Damages.—In an action for damages for the pollution of a spring by permitting oil to escape into it, the spring not being permanently destroyed, an instruction to find for plaintiff such amount as would fairly compensate her, for the damage to the spring was erroneous, as fixing no measure of damages; a proper instruction being that they should award such damages as would fairly compensate plaintiff for the diminution in value of the use of the property resulting from the pollution up to the bringing of the action.</p> <p>2. Damages — Reduction of Loss — Duty to Reduce Damage. — Tf the owner of a spring which was polluted by oil flowing into it from defendant’s tank by ordinary care and at reasonable cost could have cleaned it out, she could only recover for the pollution up to the time she could have cleaned it.</p>

CASE 28. — ACTION BY HENRY CONWAY, &C., AGAINST WILLIAM CONWAY, &C. FOR SERVICES RENDERED IN NURSING THEIR SICK MOTHER. — Appeal from Nicholas Circuit Court. L. P. Fryer, Circuit Judge. From a directed verdict for defendants the plaintiffs appeal. — 1.

<p>1. Sales — Warranty—Right to Recover Price. — Under a contract of sale of an engine, with -guaranty that the material and workmanship entering into it shall he first class, and that any defective part will°be replaced without charge, the existence of defects not preventing the operation of the machinery, hut which could he cured by supplying other pieces of ■ machinery in place of the defective ones, will not prevent recovery of the purchase price, the purchaser, though having a report of its- expert as to defects, failing, on demand, to give the seller information as to the defects claimed, and refusing to give opportunity to make needed repairs, seeking a rescission; and the seller, as it informed the buyer, having been ready and willing to supply any deficiencies, which was all that the contract obliged it to do, and all that the buyer could demand.</p> <p>2. Mandamus — City Debt — Compulsory Tax Levy — Constitutional . Limit. — A city having contracted a debt, which, under Constitution section 158, it had no power to contract, because its indebtedness already exceeded th.&' limit fixed therein, its oflicers can not he required to levy a tax to pay the debt.</p> <p>3. Sales — Seller’s Lien — Enforcement—Defense by Municipal Corporation. — Where a city has bought an engine which it had the power to purchase, except that its debt already exceeded the limit fixed hy Constitution section 158, and as between it and the seller the latter, under contract, has a lien on the engine for the deferred payment, the city, which will not, and can not be compelled to, pay, may not, though using the engine as part of its electric light plant, retain it, and give the seller the option merely to rescind the contract, and return the partial payment made; but the seller may enforce his lien by sale.</p>

<p>Executors and Administrators — Allowance to Surviving Wife, Husband, or Children — “Widow”—“Mother”—Persons Entitled— Statutes. — The exemption allowed by Ky. Stats., 1903, section 1403, subsection 5, to be set apart to “the widow or infant child” from the estate of an intestate, to the infant child, if no “mother” survives, and to the “widow” if there be no infant children, or if none reside in the family with the "widpw,” does not apply to the husband and children of the intestate wife.</p>

<p>CASE 31. — ACTION BY UNITED STATES TRUST COMPANY, TRUSTEE, AGAINST ELIZABETH ’ POUTCH AND OTHERS FOR ADVICE OF THE COURT AS TO ITS POWER TO SELL REAL ESTATE AND REINVEST THE PROCEEDS. —</p> <p>Appeal from Jefferson Circuit Court (Chancery-Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment plaintiff appeals. —</p> <p>A large amount of unimproved real estate in this case renders it essential to the proper management of the trust that the power of sale be conferred upon the trustee, appellant herein, because:</p> <p>1. The trusts created in the deed are not personal to Marcus Doerhoefer, but are annexed to the office of trustee.</p> <p>2. The creator of the trust clearly manifests a purpose to provide for the sale of such part of this property as the trustee might deem beneficial to the estate.</p> <p>3. The court will find on page 117 of this record a judgment in a suit in the chancery court wherein all parties interested were petitioners, designating and appointing the appellant as trustee in all of these deeds and expressly giving to him power to sell and convey the said property as fully as the original trustee could, have done.</p> <p>It seems to us that this was clearly within the power of the chancellor, and we ask this honorable court to so adjudge.</p> <p>AUTHORITIES CITED.</p> <p>Harris v. Ruckert, 13 B. M. 563; Am. & Eng. Ency. of Law, (2nd Ed.), vol. 28, 960; Coleman Bush Investment Co. v. Figg, Trustee, 15 Ky. Law Rep. 817; Meddis v. Bull’s Admr., 13 Ky. Law Rep. 767; Price v. Swager’s Trustee, 9 Ky. Law Rep. 89; Perry on Trusts (5th Ed.), section 503; Am. & Eng. Ency. of Law (2nd Ed.), vol. 28, p. 997; Druid Park Heights Co. v. Oettinger, 53 Md. 46;Safety Deposit & Trust Co. v. Sutro, 75 Md. 367.</p> <p>CLASSIFICATION.</p> <p>1. Question discussed; Where the original deed of trust designated the parties who should exercise the power of sale of real estate, can the court, upon failure of such parties, confer such power upon a trustee of its own appointment.</p> <p>2. Authorities relied upon; 2 Perry on Trusts, section 473; 28 Am. & Eng. Ency. of Law, 981; 28 Am. & Eng. Ency. of Law, 864, also 996; 1 Perry on Trusts (5th Ed.), section 20; 1 Lewin on Trusts, 19; Freeman v. Prendergast, 94 Ga. 369; Osborne v. Gordon, 86 Wis. 92; Bailey v. Burgess, 10 R. I. 422; Mercer v. Safe Deposit & Trust Co., 45 Atl. 965; French v. Northern Trust Co., 197 111. 30, 64 N. E. 105.</p> <p>3. Of appellant, discussed; Coleman-Bush Investment Co. v. Figg, 15 Ky. Law Rep. 817; Meddis v. Bull’s Admr., 13 Ky. Law Rep. 767; Price v. Swagar’s Trustee, 9 Ky. Law Rep. 89; Harris v. Rucker, 3 B. M. 564; Druid Park Heights Co. v. Oettinger, 53 Mr. 46; Safe Deposit & Trust Co. v. Sutro, 75 Md. 367.</p>

CASE 32. — ACTION BY L. D. HARNEY AGAINST THE FAYETTE COUNTY FISCAL COURT AND OTHERS.— Appeal from Fayette Circuit Court. Watts Parker, Circuit Judge. Judgment for defendants, plaintiff appeals — The appellants contend that the' fiscal court of Fayette county has illegally an-di wrongfully appropriated out of the revenues of Fayette county divers large sums of money, amounting to the sum of fifteen thousand dollars ($15,000) per annum. 1.

<p>1. Pleading — Construction.—A pleading must be read against the pleader.</p> <p>2. Municipal Corporations — Streets—Improvements1—Liability of Municipality. — A city must determine when and in what manner its streets shall be improved, and is not liable merely for failing to improve a street, or for suffering it to remain in the condition in which it found it.</p> <p>3. Municipal Corporations — Streets—Improvements—Liability- of Municipality. — A petition in an action against a city for flooding plaintiffs premises which does not show that the city made the drain complained of or that it did any act as to it, and which permits the conclusion that the drain may have been a natural drain which took off the water until it became filled up with debris washed into it, states no cause of action.</p>

<p>CASE 34. — ACTION BY THE EXECUTOR OF WILLIAM M. COMBS, DECEASED, AGAINST THE JACKSON BAPTIST CHURCH FOR MONEY ALLEGED TO HAVE BEEN LOANED BY DECEDENT FOR THE BUILDING .OF THE CHURCH. —</p> <p>Appeal from Breathitt Circuit Court.</p> <p>J. P. Adams, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 35 — ACTION BY THE AMERICAN STANDARD ASPHALT CO. AGAINST J. E. COMLEY AND OTHERS TO ENFORCE PAYMENT FOR STREET IMPROVEMENT. —</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>From a judgment sustaining a demurrer to their answer Comley and Wife appeal —</p> <p>POINTS AND AUTHORITIES.</p> <p>1, Where in a city of the first class a street is improved, the territory on one side being divided into ordinary squares and on the other side not so divided, the original apportionment having been held erroneous by the Court of- Appeals, upon a return of the case to the lower court it had no power to make a reapportionment. so as to require the property owners within the ascertained proper territory assessed to bear the cost theretofore apportioned to lots outside of such territory, (Loeser v. Redd, 14 Bush 18; Preston v. Roberts, 12 Bush 570.) Proceedings for such reapportionment had before the property owners affected were made parties to the suit are of no validity. (Nevin v. Roach, 86 Ky. 492.)</p> <p>2. A bona fide purchaser of property who relied upon a release of the original apportionment warrant for such improvement, without notice of any claim of the contractor for an additional amount should be protected. (Nunes v. Wellisch, 12 Bush 363; Pomeroy Equity Jurisprudence, section 649; Ky. Stats., sections 2384, 2839; Curnen v. Mayo, 79 N. Y. 511; Sherley v. City of Elizabeth, 4 N. J. Law 58; Mason v. City of Chicago, 48 111. 420; City of Philadelphia v. Matchett, 116 Penn. 103; Cooley on Taxation (3rd Ed.), 530; Ky. Stats., sections 4021, 2921.)</p> <p>CASES DISTINGUISHED.</p> <p>Seattle v. Kelleher, 195 U. S. 360; Tallman v. Janesville, 17 Wis. 71.</p> <p>3. Innocent purchasers are not affected in any manner by the proceedings had by the court in making a reapportionment in a suit to which they are not parties and have no knowledge, no notice having been filed as required by Ky. Stats., section 2358a.</p> <p>4. A contractor who receives from a property owner the amount apportioned to his lot for street improvements and releases of record is estopped to thereafter recover the amount of an additional apportionment after the lot has passed into the hands of an innocent purchaser. (Herman on Estoppel, section 953; Rat-cliff v. Bellfonte Iron Works Co., 87 Ky. 559; Alexander v. Ellison, 79 Ky. 148.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It does not necessarily follow that because the original apportionment for the cost of the improvement of Rosewood avenue was erroneous that the contractor must lose any part of the contract price of his work against the property owners. See former appeal of this case. (City of Louisville v. American Standard Asphalt Co., 31 Ky. Law Rep. 133; Seattle v. Kelleher, 195 U. S. 351.)</p> <p>2. The reapportionment in this case was made in conformity to and as directed by the opinion of this court on a former appeal, and was made strictly in accordance to the law as heretofore laid down by this court, and the appellants were made parties by amended petition after said reapportionment, (City of Louisville v. American Standard Asphalt Co., 31 Ky. Law Rep. 133; Nevin v. Walston, 128 U. S. 578.)</p> <p>3. The lien for the improvement of Rosewood avenue existed from the date of the original apportionment. The release of the original apportionment warrant did not relieve the property owners that had paid, and appellants can not rely upon being innocent purchasers for value or without notice. (Commonwealth v. Walker, 25 Ky, Law Rep. 2122; Stengel v. Preston, 89 Ky. 616; Gosnell v. City of Louisville, 104 Ky. 201; Kerwin v. Nevin, 111 Ky. 682; Seattle v. Kelleher, 195 U. S. 351; Tallman v. Janesville, 17 Wis. 76; Cooley on Taxation (3rd Ed.), 527, 528; Limitation of Taxing Power, Gray, sections 1828, 1829, 1830; Spencer v. Merchant, 125 IT. S. 345; Cooley on Taxation, vol 1, p. 526; Cross v. Milwaukee, 19 Wis. 51.)</p> <p>4. The reapportionment proceedings were not invalid as to the appellants by reason of the failure to file a lis pendens notice in the county clerk's office, as the lien on their land did not depend upon the proceedings in this case, but existed from the date of the original apportionment and existed for five years from that date, the proceedings here being only necessary to fix the correct amount. (Stengel v. Preston, 89 Ky. 616; Gosnell v. City of Louisville, 104 Ky. 201; Kerwin v. Nevin, 111 Ky. 682; Seattle •v. Kelleher, 195 U. S. 351.)</p> <p>5 There is no estoppel on the part of the contractor by reason of its having received payment (of the original apportionment warrant and having released the same, because there was no additional consideration for the payment of the original amount whereby the contractor by accepting it would be estopped from collecting the additional amount imposed under the reapportionment. (Stengel v. Preston, 89 Ky. 616.)</p>

<p>1. Mortgages — Deed as Mortgage — “Mortgage” — “Conditional Sale.” — A deed was a mortgage, and not a conditional sale, where it was given to secure payment for a horse, recited a consideration of "$110 cash or its equivalent,” a horse, describing it, contained the ordinary recitals of a warranty deed, and recited that the grantee should hold the land for 1% years and reconvey on payment of $118.50, “being purchase price hereof and necessary recording fee.”</p> <p>2. Mortgages — Deed as Mortgage. — While parties competent to contract can agree upon terms that will amount to a conditional sale, where a deed is intended to secure a debt, and the relation of debtor and creditor exists between the parties, the legal inference is that a mortgage and not a conditional sale was intended; courts being inclined in doubtful cases to treat a transaction as a mortgage rather than a conditional sale.</p> <p>3. Mortgages — Deed as Mortgage — Estoppel.—Though a deed was given in 1893 and provided for a reconveyance within 1% years, the grantor was not estopped by laches in 19Ó7 to sue to have the deed adjudged to be a mortgage, his failure to tender the debt and demand a reconveyance being more important than the grantee’s laches in failing to sue to enforce his lien.</p> <p>4. Mortgages — Deed as Mortgage — Tender of Debt — Necessity For. — In suing to have a deed adjudged to be a mortgage, grantor need not tender the amount of the debt, since the gantee has a lien as security for his debt, and may look to that if grantor is insolvent.</p> <p>5. Quieting Title — Possession of Land — Necessity For. — That plaintiff is not in. possession of the land does not prevent him from suing to have a deed adjudged to be a mortgage, to cancel a deed by the grantee to a third party, and to quiet plaintiff’s title.</p>

CASE 37. — ACTION BY BENJAMIN BARTLEY AGAINST CHARLES SPIESS’ ADMINISTRATRIX. — Appeal from Nelson Cirenit Conrt. Samuel E. Jones, Circuit Judge. From a default judgment for plaintiff, defendant appealed. — The plaintiff can not set up a new cause of action and take a judgment on it, either with or without proof, without first having a summon issued and served on his adversary. Nothing could be clearer. (Cecil v. Sowárd, 10 Bush 96, and Howard v. Singleton, 94 Ky.

<p>CASE 38. — ACTION BY NANCY P. TILTON AGAINST THE EXECUTOR OP HER DECEASED HUSBAND TO SET ASIDE AN -ANTE-NUPTIAL CONTRACT AND TO RECOVER A WIDOW’S SHARE IN HIS ESTATE.—</p> <p>Appeal from Robertson Circuit Court.</p> <p>L. P. Fryer, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Simpson v. Simpson, 94 Ky, 590-591; Words and Phrases, vol. 8, 7155; Hune v. U. S., 132 U. S. 406-415, 33 L. Ed. 396-397; McNutt v. McNutt, 2. L. R. A. 372; Brooks v. Boooks’ Exors., 22 Ky. Law Rep. 555; Maze v. Maze, 99 S. W. .336.</p> <p>AUTHORITIES CITED.</p> <p>Forwood, &e., v. Forwood, &e., 86 Ky. 114; McNutt v. McNutt, 2 L. R. A. 372; Sanders, &e., v. Miller, &e., 79 Ky. 517; Brown v. Brown's Admr., &c,, 80 S. W. 470; Simpson v. Simpson’s Exors., 94 Ky. 586; Maze’s Exors. v. Maze, 99 S. W. Rep. 336; Brooks v. Brooks’ Exors., &c., 22 Ky. Law Rep. 555; Flood v. Pragoff, 79 Ky. 615; Cave’s Devisees v. Cave’s Heirs, 13 Bush. 452; Porshet v. Porshet, 82 Ky. 93; Marksbury, &c., v. Taylor, &c., 73 Ky. 523; James v. O’Driscoll, 2 Ray (S. C.) 101.</p>

<p>CASE 39. — ACTION BY GEO. T. ROBERTSON AND OTHERS AGAINST MARY ANN ROBERTSON’S TRUSTEE AND OTHERS PERTAINING TO INVESTMENT OF TRUST FUNDS IN BANK STOCK. —</p> <p>Appeal from Shelby Circuit Court.</p> <p>W. H. Holt, Special Judge.</p> <p>Judgment for defendants. Plaintiffs appeals —</p> <p>1. Fiduciaries are restricted by section 4708 from investing trust funds in corporate securities, unless corporation has been in operation more than ten years.</p> <p>2. The words of the section should be given their natural and ordinary import, thereby carrying out the intention of the lawmakers.</p> <p>3. Before the passage of the act, investments -in corporate securities were forbidden by the law of this State, except under peculiar circumstances, as pointed out in the case of Durrett v. Commonwealth.</p> <p>4. Investments in the securities of a railroad, bank, or other private corporation were likewise forbidden.</p> <p>5. The act of April 26th, 1890, and the present act embracing it, were intended to enlarge the class of investments, with a restriction that the corporation whose securities are invested in, must have been in operation more than ten years, and if it has a bonded debt, it must not within that time have made default in the payment of the principal or interest thereon.</p> <p>6. The word “railroad” in the provision, was used merely as an example or illustration of the restrictions pointed out and its use adds nothing to, nor would its omission, take anything from the provision.</p> <p>7. The word “railroad” exhausted an entire genus. The specific difference or chief characteristic of a railroad is the power to condemn land for rights-of-way, for its use in the transportation of persons and freight for hire. Certainly the Legislature did not intend, only to restrict investments in the securities of “other corporations” like or similar to railroads. Any reason for such a restriction or classification is entirely wanting.</p> <p>8. The act was intended as a guide or rule for fiduciaries covering the whole field of possible investments; on personal security; private corporate enterprises; public securities; on real estate; mortgage notes and bonds on realty; covering the power of sale of securities; and regulating the removal of securities from the State, and investments beyond the State.</p> <p>9. The act on its face, when its words are given their natural and ordinary import furnishes an easy guide for fiduciaries, and protects and safeguards the cestui que trust; when given a strained construction, the estate is always left in jeopardy.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., section 4706; Pomeroy’s Equity Jurisprudence (2nd Ed.), vol. 2, section 1074, and notes; King v. Tolbert, 40 N. Y. 76; Clark and Wife-v. Anderson, 13 Bush 119; Smith, &e„ v. Smith, &c., 7 J. J. Mar. 238; Durrett’s Gdn, v. Com-r —"''•lth, 90 Ky. 319; General Statutes, p. 508 (Ed. 1873), p. 707-8 (Ed. 1888;; Acts 1889-90, vol. 1, p. 115; Am. & Eng. Ency. of aw (2nd Ed.), title “Statutes.”</p> <p>POINTS AND AUTHORITIES.</p> <p>At no time in the history of Kentucky have we had any legislative undertaking to prohibit the investment of fiduciary funds in the stock of a bank where there were present the always necessary and vital elements on the part of the fiduciary — good judgment and good faith — and no decision of this court can be found prohibiting the investment of such funds in stock of a bank where these two elements were present. This rule of ejusdem generis was applied by this court in the case of Bowling’s Admrs. v. Shepherd, 91 Ky. 273, where it was held in construing the statute exempting property in behalf of the widow of a decedent the words “other property or money” were used, they did not apply to the realty but only to the personalty. The crucial test is good faith and good judgment, and the statutory test of good judgment is that the investment shall be in “such other interest-bearing or dividend paying securities as are regarded by prudent business men as safe investments.”</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., section 4706; Durrett’s Gdn. v. Commonwealth, 90 Ky. Law Rep. 314; Rapalge & Lawrence, Law Dictionary, vol 1, p. 435; Endlich on Interpretation of Statutes, section 405, p. 567; Ky. Stats., section 4077; Aetna Life Insurance Co. v. Coulter, Auditor, &c., 91 Ky. 273; Adams v. Shepherd, 91 Ky. 273.</p>

<p>CASE 40. — PROSECUTION AGAINST I. BAILEY, SR., FOR EMBEZZLEMENT. —</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. P. Gordon, Circuit Judge.</p> <p>Defendant convicted and appeals. —</p> <p>POINTS SUGGESTED.</p> <p>1. The indictment is bad. It is too general and indefinite. It does not give notice to a man of common understanding of the particular charge he is required to meet. It is not direct and certain as “to the particular circumstances of the oflense charged.” (Crim. Code section 124.) As this court has time and again said, 'The indictment should be sufficiently explicit to put the accused upon his defense as to the particular act he is called upon to defend.”</p> <p>2. The authorities agree that “an indictment for embezzlement should describe the property with such certainty as to identify it and give defendant full and fair information as to the charge and be a bar against another prosecution.” (15 Cyc. 514.)</p> <p>3. Again the indictment is invalid in charging generally that he embezzled the money as general managing officer and as a mere employed agent. The line of proof, of responsibility, and of defense is entirely diffeent in the two capacities, and the particulars should have been given. (Commonwealth v. Loving, 29 Ky. Law Rep.)</p> <p>4. The court should have peremptorily instructed an acquittal under the evidence.</p> <p>5. The instructions are erroneous and prejudicial. 6. There is much incompetent evidence in .the record prejudicial to appellant.</p> <p>As we understand the criminal law in Kentucky, neither this court nor any other court has the power or the authority under the law to determine the question of the guilt or innocence of the accused upon a felony charge. That question is within the exclusive jurisdiction of the trial jury. A jury that comes from the vicinage, the neighborhood and friends of the accused, the bone and sinew of the country, men who are not only acquainted with the .accused, but also acquainted with the witnesses.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Indictment good. (Ky. Stats., section 1202; Clark v. Commonweath, 97 Ky. 76; Commonwealth v. Kelley, 30 Ky. Law Rep. 1293; Commonwealth v. Smith, 26 Ky. Law Reu. 517.)</p> <p>2. Proof sufficient. (Allison v. Commonwealth, 25 Ky. Law Rep. 32; Trumbo’s Admx. v. Guiles & Co., 33 Ky. Law Rep. 415; Williamson v. Commonwealth, 31 Ky. Law Rep. 61; Patterson v. Commonwealth, 86 Ky. 313; Vowells v. Commonwealth, 83 Ky. 193.)</p> <p>3. Testimony competent. (Oscher v. Commonwealth, 33 Ky. Law Rep. 119; Branson v. Commonwealth, 92 Ky. 330; Miller v. Commonwealth, 13 Bush, 735; Criminal Code, .section 340; Rutherford v. Commonwealth, 78 Ky. 639.)</p> <p>4. Instructions correct. (Slitzbaum v. Commonwealth, 26 Ky. Law Rep. 52.)</p>

<p>1. Corporations — Stock—Subscription—Discharge of Liability. — ■ Defendant subscribed for shares in a Wisconsin corporation, to be organized with a capital stock of $250,000, with the understanding that the corporate plant would be located in a certain city, and attended the first meeting of those interested, but left the meeting when he learned that the plant was not to be located in that place, and those remaining adopted a resolution making the capital stock $250,000, to be divided into 2,500 shares, 1,500 common and 1,000 preferred 'dock, and at the next meeting, which defendant din not attend, it was agreed to dissolve the Wisconsin corporation and organize a Kentucky corporation in its place, the latter corporation having an authorized capital stock of $200,-000, divided into 2,000 shares, 600 of which might be 7 per cent preferred stock, with priority of dividends, and the same number 6 per cent preferred. Held, That defendant’s liability as a subscriber to the Wisconsin corporation terminated with its dissolution, so that the Kentucky corporation could not enforce his subscription, and he was not estopped from denying his liability thereon. *</p> <p>2 orporations — Stock—Subscriptions—Right of Subscribers —A mere subscriber for capital stock, before its issue or payment therefor, has no right to vote, and can not participate in the management of the corporation.</p> <p>3. Corporations — Stock—Subscriptions—Release.—A material alteration in a contract of subscription for stock without the consent of the subscriber will release his obligation, so that one subscribing under an understanding as to the amount and nature of the capital stock, the corporate business, or the location of its organization, is not liable upon his subscription if the corporation, wh^n organized, is different in those respects from that contemplated by the contract of subscription, in the absence of facts estopping him from denying his liability.</p>

CASE 42 — ACTION BY JOHN M. WEBSTER. AGAINST THE CITY OF VANCEBURG FOR AN INJURY RECEIVED BY REASON OF A DEFECTIVE SIDEWALK. — Appeal from. Lewis Circuit Court. S. G. Kinder, Circuit Judge. 1. We submit that the city of Vanceburg and not the C. & O. Ry.

<p>1. Judgment — Bar—Dismissal Without Prejudice. — The record of the proceedings, in an action which was dismissed without prejudice, on motion of plaintiff, is not admissible in a subsequent action between the same parties.</p> <p>2. Judgment — Pleading as Estoppel — Identity of Cause of Action. —To make a former judgment a bar to a subsequent action, it must appear that the two causes of action were identical, and that the proceedings in the former suit were such as to preclude plaintiff from bringing another action for the same cause; and allegations- that the controversy had been litigated in a prior suit between the parties, the record of such suits being only referred to as a part of the answer, are defective in failing to set out the record in the former suit, so as to show that the present cause of action was in issue and was adjudicated therein.</p> <p>3. Pleading — Allegations—Reference to Exhibits. — An exhibit referred to therein will not aid a defective pleading.</p> <p>4. Judgment — Pleading as Estoppel. — A plea of former adjudication should show the nature and scope of the former decision, and its application to the present controversy, and particularly should show that it was rendered before the institution of the present suit, the relief granted therein, and that it was a final adjudication, but it need not allege that the former judgment is valid, or remains in force, or has not been reversed, vacated, or appealed from; these being presumed.</p>

<p>1. Appeal and Error — Cross-Appeal—Failure to Prosecute. — Appellee’s failure to prosecute a cross-appeal is a waiver of rulings against him.</p> <p>2. Landlord and Tenant — Cropping Contract — Construction.—A cropping contract provided that the landlord was to have a 12-acre tobacco barn built, she to. pay -the cost of the same, the tenant agreeing to attend to the building of the barn, and that all labor should be at a reasonable price. Held, That the landlord was bound to furnish on the ground material to build the bam, the tenant being only required to attend to the work of putting up the building, and to -procure the workmen to be paid by the landlord, so that the landlord was liable for injury to the tenant's tobacco crop because of her failure to furnish materials for the barn in time to allow its erection before' the Crop was injured. • <</p> <p>3. Indemnity-! — Conclusiveness—Evidence.—"Where a tenant, with his landlord’s consent, sublet half of the tobacco land he had agreed to plant under a cropping contract, in which the landlord agreed to build a tobacco barn to house the tobacco, which she failed to do, resulting in the loss of a large part of . the sublessee’s tobacco, as well as that of the tenant, and the sublessee recovered judgment against the tenant for the damages sustained, such judgment, while not conclusive against the landlord; w.as admissible against her to establish the tenant’s damages; it further appearing that the tenant employed counsel and made a reasonably efficient and skillful defense in the suit in which the judgment was recovered against him.</p> <p>4. Damages — Contract—Breach.—Where defendant was notified, when a contract was made, that it was made with reference to a subcontract, on defendant’s breach plaintiff could recover from defendant damages, caused by his being compelled to break the subcontract, because of defendant’s breach of tin* original contract.</p> <p>5. Landlord and Tenant — Cropping Contract — Breach—Damages. —Where, when plaintiff made a cropping contract with defendant, and assumed óne-half of the expense of supporting both families, who lived together, defendant’s family was composed •of herself, her husband, and daughter, and the family was increased by defendant’s son afterwards becoming a member without plaintiff’s consent, plaintiff was entitled- to recover for the additional expense imposed on him by becoming compelled to furnish part 'of the son’s support.</p>

<p>CASE 45. — PERSONAL INJURY ACTION BY GEORGIA A. CHAPMAN AGAINST THE CENTRAL KENTUCKY TRACTION COMPANY. —</p> <p>Appeal from Woodford Circuit Court.</p> <p>Robert L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. When a passenger boards a common carrier for a specified destination, and the carrier receives seasonable notice of what that destination is, it becomes the duty of the carrier to transport the passenger to such destination, and there allow him a reasonable time in which to debark, and if, under such circumstances, the passenger is, without fault on his part, carried beyond his destination, he has a cause of action against the carrier. (C., N. O. & T. P. Ry. Co. v. Richardson, 14 Ky. Law Rep. 367; C. & O. Ry. Co. v. Reeves, 2K °-w Rep. 2236.1</p> <p>2. When a passenger in attempting to alight at a regular passenger stop, from a vehicle belonging to a carrier, exercises proper care for his safety, and is free from carelessness and negligence, and the carrier, without regard to the passenger’s safety, but with negligence and carelessness, starts the vehicle in motion, and the passenger is injured thereby, the passenger has a cause of action r gainst the carrier.</p> <p>3. Evidence conducing to show the defendant liable to the plaintiff in another form of action than that sued on, but not supporting the issue then on trial, is incompetent and irrelevant and ought to be rejected by the court. (Rice’s Heirs v. Lowen, 5 Ky. (2 Bibb) 149;. Winlock v. Hardy, 14 Ky. (2 Litt.) 272; Bullitt, &c., v. Ralston, &c., 8 Ky (1 A. K. Mar.) 244; Lofland v. Ewing, 15 Ky. (5 Litt.) 42; Smithpeters v. Griffin’s Admr., 49 Ky. (10 B. Mon.), 259.)</p> <p>4. Loss of time is a damage, which, wihle it flows naturally from a tort, does not necessarily result therefrom, and is a special damage, and must be specially pleaded, in order to be recovered. (L. & N. R. R. Co. v. Dickey, 31 Ky, Law Rep. 894, 104 S. W. 329; Baríes v. Louisville Electric Light Co., 25 Ky. Law Rep. 2303, 80 S. W. 814; Stroh v. S'o. Cov. & Cin. St.. Ry. Co., 25 Ky. Law Rep. 1868, 78 S. W. 1120; L. & N. R. R. Co. v. Mason, 24 Ky. Law Rep, 1623, 72 S. W. 27; Jesse v. Shuck, 11 Ky. Law Rep. 463, 12 S. W. 304; Pepper v. Twyman, 5 Ky. Law Rep. 426.)</p> <p>5. Where the injury sued for is an ordinary strain of the knee and is not permanent, a verdict for twenty-five hundred dollars is exorbitant and excessive.</p> <p>If the court will bear with us, we desire to submit some suggestions in addition to the admirable argument of our associates, Wallace & Harris.</p> <p>The points we wish to submit are as follows:</p> <p>1. The court failed to instruct the jury to find peremptorily for the appellant.</p> <p>2. The court erred in not giving instructions asked for by appellant, which presented its theory of the case.</p> <p>3. The court erred in instructing the jury both as to the law and as to the means of damages.</p> <p>POINTS AND AUTHORITIES.</p> <p>I. The testimony complained of by appellant was competent, but even if irrelevant, did not prejudice appellant’s substantial rights. (L. & N. R. R. Co. v. Stokes, 12 Ky. Law Rep. 192; Civil Code, section 134.)</p> <p>2. The instruction complained of, even if erroneous, under the proof could not have injured appellant’s substantial rights, and is consequently not cause of reversal. (L. & N. R. R. Co. v, Dickey, 31 Ky. Law Rep. 894; L. & N. R. R. Co. v. Reynolds, 24 Ky. Law Rep. 1402; So. Cov. & Cin. St. Ry. Co. v. Core, 29 Ky. Law Rep. 837; Civil Code, section 134.)</p> <p>3. The verdict was not excessive, and could well have been for a larger amount, without being so.</p>

<p>1. Evidence — Hearsay.—Evidence in dvorce for excessive sexual intercourse amounting to eruelty'that the housekeeper of the parties had stated to witnesses that the husband would insist upon the wife submitting herself to him, and said that, if they did not take her from him, he would kill her, was competent only for the purpose of contradicting a denial by the housekeeper that she had made such a statement, and was not competent to show such alleged fact.</p> <p>2. Divorce- — -Actions for — -Evidence — Sufficiency. — Evidence in divorce for excessive sexual intercourse amounting to cruelty held not to warrant a divorce on that ground.</p> <p>3. Divorce — Defenses.—A wife who abandoned her husband without just cause is not entitled to a divorce either a'bsolute or from bed and board.</p> <p>4. Divorce — Disposition of Property — Accounting for Rents. — A wife who abandoned her husband without just cause is not entitled to an accounting for rents of their home.</p>

<p>1. Guardian and Ward — Care of Ward’s Estate — Supervision by Court — Statutory Provisions. — Ky. St. 1903, section 2034, provides in what cases disbursements shall be allowed a guardian for the maintenance and education of the ward beyond the income of his estate. Section 2039 gives the courts of chancery power to control the ward’s custody, tuition, and management of his estate. Sections 2032 and 2033 give to the guardian possession and management of the ward’s estate, with power to provide therefrom for his education and maintenance. Held that, while the guardian is charged with the wards’ maintenance so far as the estate is sufficient, the final supervision is vested in the court of chancery, and arrangements by the guardian or parent must meet the approval either of the probate court or the court of chancery, and a mother cannot recover from the principal of the wards’ estate in an action at law against the guardian for their support where the'guardian lets judgment go by default, but it must be Shown what estate the wards have, its kind and productiveness, and the age and sex of the wards, so that the court may decide whether application of the principal of the estate is well founded.</p> <p>Parent and Child — Support of Infant Child — Liability of Parent. — While the parent is presumably bound to support his infant children without charge upon their estate, yet, if the parent is poor and their estate more able to justly bear the expense, the parent may recover therefrom for lne-ir support.</p>

<p>CASE 48. — PERSONAL INJURY ACTION BY ROSA A. BAKER AGAINST THE PADUCAH TRACTION COMPANY.—</p> <p>Appeal from. McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Error on the part of the trial court in submitting to the jury a phase of the case involving the negligence of the appellant upon which phase of the case there was not a scintilla of evidence. (Ky. Central Railroad Co. v. Riddle, 17. Ky. Law Rep., 1363; Mayer v. Parrish, 11 B. Mon., 38; Adams et al. v. Tierman et al., 5 Dana, 394; Mill Creek Distilling Co. v. Pleasure Ridge Park Distilling Co., 22 Ky. Law Rep., 998; Krish v. Pord, 19 Ky. Law Rep., 1167.)</p> <p>2. That the verdict of the jury was and is palpably against the weight of the evidence and could not have been rendered by the jury except under the influence of passion or prejudice; and a verdict should not be allowed to stand simply because there is a scintilla of evidence in favor of the appellee when such scintilla is overwhelmingly overcome by other evidence. (C. N. O. & T. P. Ry. Co. v. Zachary’s Adr 32 Ky. Law Rep., 678.)</p> <p>Since writing our brief in this ease our attention has been directed to the case of the City of Covington v. Webster, reported in 33 Ky. Law Reporter, page 649. We think this case completely upsets the theory of the appellant in its position that this case should be reversed because of the “Error on the part of the trial court in submitting to the jury, the phase of the case involving the negligence of the appellant upon which phase of the case there was not a scintilla of evidence”; and that it sustain the contention made in our brief that the court was exactly right in submitting the whole case to the jury. .</p> <p>AUTHORIT1</p> <p>Louisville Railway Co. v. Williams, 99 S. W., 145; Louisville Railway Co. v. Bohan, 99 S. W., 915; Louisville Railway Co. v. Worley, 101 S. W., 926; Louisville Railway Co. v. Pulliam, 101 S. W., 295; Louisville Railway Co. v. Oppenheimer, 104 S. W., 720; Lexington Railway Co. v. Herring, 96 S. W., 558; South Covington & Cin. St. Ry. Co. v. Pelzer, 19 Ky. Law Rep., 88; Hammill v. L. & N. R. R. Co., 93 Ky., 344; C. N. O. & T. P. Ry. Co. v. Crabtree, 30 Ky. Law Rep., 1000.</p>

<p>1. Deeds — Restrictions — Validity. — While conditions imposing a restraint on the free use or alienation of realty are looked on with disfavor, they are upheld when not repugnant to a plain provision of the law and not unreasonable.</p> <p>2. Deeds — Restrictions—Validity.—Deeds conveying adjacent lots purchased by the same grantee at different times and by independent transactions are not evidence of one transaction, and neither deed, can be enlarged or restricted by' what may have been said between the parties anteceding its execution.</p> <p>3. Deeds — Construction — Extraneous Circumstances. — It is improper to inquire into the surroundings or extraneous cir cumstances to aid in the construction of an unambiguous deed.</p> <p>4. Deeds — Restrictions — Construction.- — Restrictions in conveyances of land by an owner platting a tract into lots and streets, stipulating that .the property shall -only be used for residence purposes, and no residences costing less than $3,000 -shall be erected, do not permit the erection- of a stable alone on a lot, though a -stable in connection with a residence on a lot may fall within the term residence purposes.</p> <p>5. Deeds- — Restrictions—Enforcement.—Where an owner platted land into lots- and streets, and sold the lots subject to building restrictions enumerated in the deeds, the covenants ran with the land, and were mutual, inuring to the benefit of all the purchasers.</p> <p>6. Deeds — Restrictions—Validity.—Restrictions in conveyances of lots by an owner platting a tract *.n’co lots and streets, stipulating that the propety shall only be used for residence purposes, and no residence costing less than a specified sum shall be erected, are not unreasonable, and the courts cannot reject them.</p> <p>7. Deeds — Restrictions—Construction.—An owner platting a tract into lots and streets conveyed a lot by deed containing building .restrictions. Subsequently he conveyed to the same purchaser an adjacent lot b.y deed, stipulating that the lot should be used for residence purposes, and that no residence costing less than $3.000 should be erected- thereon. Held, that, the purchaser could- not erect a s.table on the adjacent lot, though used in connection with the first lot, on which his ' residence was located.</p>

<p>CASE 50. — PERSONAL INJURY ACTION BY OSCAR ROBARDS, BY HIS NEXT FRIEND W. P. ROBARDS, AGAINST P. BANNON SEWER PIPE CO., &C. —</p> <p>Appeal from Jefferson Circuit Court (Common, Pleas Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>From a judgment sustaining demurrer to original and amended petitions, plaintiff appeals. —</p>

<p>CASE 51. — ATTACHMENT OF LAND BY THE FARMERS & DROVERS BANK AND OTHERS, THE ADMINISTRATOR OF S. S. MEDDIS, BURTON-WHAYNE CO., PURCHASED THE LAND AT COMMISSIONER’S SALE AND FILED EXCEPTIONS WHICH WERE OVERRULED AND IT APPEALS. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Emmet Field, Judge. .</p> <p>Appeal by Burton-Whayne Co. —</p> <p>POINTS AND .AUTHORITIES.</p> <p>1. Under the Revised Statutes of Kentucky in force in the years 1856 and 1857, a-notary public in Kentucky was not authorized to take acknowledgments to deeds to be recorded in this State; and the deed of a married woman to be effectual had to be recorded within eight months after the time same was acknowledged. The interests of Robert C. Ray, Amanda L. Ray and Sarah E. Heyser appear from the record to be still outstanding, and the purchaser at the commissioner’s sale of the land in question did not acquire their interests. (Stanton’s Revised Statutes of Kentucky, chap. 24, secs. 15, 16, 22 and 23.)</p> <p>2. The notice of attachment recorded in the Jefferson County Court Clerk’s office, under which the property in question was sold in this action, did not comply with the provisions of section 2358a, subd. 2 of the Kentucky Statutes, and a subsequent attachment creditor (not a party to this action) having filed proper notice acquired a prior lien. (Kentucky Statutes, sec. 2358a, subd. 2; Ponder v. Boaz, 23 Ky. Law Rep., 2429 Park v. McReynolds, 23 Ky. Law Rep. 894.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The only object of the recording acts is to put subsequent purchasers and incumbrances upon notice. As between ihe parties a deed may be binding though defectively acknowledged or defectively recorded. (2 Minor, 963; Tiffany on Real Estate, vol. 2, sec. 476 and fob; Bennett v. Titheri-ngton, 6 Bush, 192, 196; Simpson’s Bscor. v. Loving, Jackson et al-., 3 Bush, 458.)</p> <p>2. When A conveys an undivided interest in a large piece of property and said property is .subsequently divided and comes into the bands of re-mote grantees, if A or any one claiming through him wishes to attack the validity of said conveyance, he should look to the property allotted to his grantees in the division, rather than to the undivided interest held b.y A before thie partition. (Hal-1 v. Morris Southwick & Co., 13. Bush, 322.)</p> <p>3. Where it appears that a division was fair and equitable, and that various sales have been made under it, and that none of the owners of the land are complaining, the division should nojt be disturbed. (Hall v. Morris, Southwick & Co., 13 Bush, 322.)</p> <p>4. The evidence and judgment in action number 280914 Jefferson- Circuit Court proves that the property in question has been hdid in adverse possession by Foster Ray and his grantees since I860.</p>

<p>CASE 52. — ACTION BY MARY QUINN AGAINST THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY ON A POLICY ON THE LIFE OF HER DECEASED HUSBAND. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court erred in overruling the appellant’s demurrer to the petition and to the reply; in overruling the appellant’s motion to abate the action until such time as the appellee should tender back what she had received from appellant in settlement of the claim sued on; in overruling appellant’s motions for a peremptory instruction; and in overruling appellant’s motion for judgment notwithstanding the verdict, all of which demurrers and motions were based upon the fact that the record showed that the appellee had neither refunded nor offered to refund the money she had been paid in settlement of her claim. (L. & N. R. R. Co. v. McElroy, 100 Ky., 153; Home Benefit Society v. Muehl, 169 Ky., 479.)</p> <p>2. The motion for judgment notwithstanding the verdict was in time. (Ewell v. Jackson, 110 S. W., 8601)</p> <p>3. The sole question was as to the bona fides of the compromise settlement. (Mitchell’s Heirs v. Long, 5 Littell, 72; Creutz v. Hiel, 11 Ky. Law Rep., 652; Morgan v. Hodges, 15 L. R. A., 438, Note.)</p> <p>4. The question and answer relating to rejection or postponement by another company was material. (American Mutual Aid Society v. Bronger, 12 Ky. Law Rep., 284.)</p> <p>1. We submit that when a debt is liquidated, ascertained and due, and there is no valid controversy between the parties as to the liability, then a receipt in full of a larger sum, by the payment of less than is due will not be sustained, and must be regarded as a partial payment on the whole debt, there being no consideration for the release of the unpaid part of the debt. As the debtor has not been injured by paying less than he owed he is not entitled to be reimbursed.</p> <p>2. The doctrine laid down by the court in Jones v. Bullitt, 2 Littell, 51; Fenwick v. Phillips, 3 Met., 781; Vance v. Lukenbill, 9 B. Mon., 249, and Mannakee v. McCosky, 23 Ky. Law Rep., 515, has never been reversed, modified or doubted, and is the law cf the case.</p>

<p>1. Trusts — Sales by Trustee — Rights of Purchaser. — A purchaser of trust property who is not connected in any way with the trust, and who deals with the trustee at arms’ length, in the absence of fraudulent collusion with the trustee, has a right to purchase as cheap as he can, unless the difference between the actual value and the price paid is so great as to raise the presumption of fraud.</p> <p>2. Champerty and.Maintenance — Sale of Land Held Adversely.— Where a person living on and actually cultivating a farm held by a trustee under a will was in possession under the will which created the trust and invested with power to sell, his possession was not adverse to the trustee, but he was her tenant, and a sale of the land by the trustee under a power in the will was not champertous.</p> <p>3. Trusts — Construction—-Right of Beneficiaries to Terminate— Active Trusts. — Where a testator gave land to a trustee with the sole'right'to sell at any time she chose, the proceeds to he invested for or used for the benefit of testator’s children, the trust was an active executory one, demanding the constant attention of the trustee and not a simple or dry trust, and there being no time fixed for the ending of the trust during the trustee’s life, it could not be limited or ended at the desire of the beneficiaries after coming of age.</p>

<p>CASE 54. — ACTION BY THE CITIZEN’S DEPOSIT BANK AGAINST J. T. MOREHEAD ON A NOTE. —</p> <p>Appeal from McLean Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>CASES CITED.</p> <p>Hey v. Harding, 21 Ky. Law Rep., 771; Day v. Billingsly, 3 Bush, 157; Norton on Billa & Notes, Chap. 5, p. 176; Chester v. Dorr, 41 N. Y., 279; Hascall v. Whitmore, 19 Me., 102; Brower v. Hastings, 36 Pa. St., 287; Barnett v. Offerman, 7 Watts, 130; Hofferman v. Foster, 43 Pa. St., 137; Battle v. Weems, 44 Ala., 105; Miller v. Larnard, 103 111., 570; Thompson, v. Paston, 1 Duvall, 389; Kentucky Nat. Bank v. Martin, 15 Ky. Law Rep., 646; Lee v. Smead, 1 Mete., 628; Aleander v. Springfield Bank, 2 Mete., 534; Frazer v. Edwards, 5 Dana, 538; Atkinson v. Tennill, 14 Ky. Law Rep., 922; Norton v. Roberts, 4 T. B. Mon., 491; Farmers & Merchants Bk. v. Cosby, 4 J. J. Mar., .366; Craig v. Cox, 2 Bibb, 309; Jones v. Bullock, 3 Bibb, 467; Edwards v. Coleman, 7 Mon., 567; Blakely v. Johnson, 3 Bush, 197; 26 American Reports, 254; Warran v. Fant’s Trustees, 79 Ky., 1; Clark v. Patton, 4 J. J. Mar., 33; Reid v. Watts, 4 J. J. Mar., 440; Helm’s Admr. v. Young, 9 B. Mon., 394; Aaron v. Mendal, 78 Ky., 427; Brooking v. Farmers Bank, 83 Ky., 431; Sparks v. Hall, 4 J. J. Mar., 35; Sneed v. White, 3 J. J. Mar., 525; Fletcher v. Dysart, 9 B. Mon., 413; Bank v. Goodman, (Neb.) 75 N. E., 846; Buck v. Bank of State of Georgia, 30 S. E. Rep., 872; 45 At. Reports, 582, (Penn.); The Bank of Albion v. Robert Burns, &c„ 46 N. Y., 170; Carpenter v. Bank, 106 Pa., 170; McCartney v. Kipp, 171 Pa., 66'4; 48 Atl. Pep. (Penn.), 686; R^iley v. American Deposit & Loan Co. oa y. state R»m. 330; Corn Exchange Bank of the City of New York v. American Dock & Trust Co., 57 N. E. Rep.. 477; Story’s Eq. Jurisprudence, vol. 1, secs. 211, 212, 213, 214, 215, 218, 323, 324, 325; Ruffner v. Ridley, 81 Ky., 618; Burks v. Wanteriin, &c., 6 Bush, 22; Brandet on Suretyship, secs. 201, 348, 350, 352, 361, 365; First Nat. Bk. of Stafford v. Mattingly, 92 Ky., 656; Hand v. Frelch, 3 Ky. Law Rep., 427; Woolley v. Louisville Banking Co., 81 Ky., 527; Halderman v. German Security Bank, 19 ky. Law Rep., 1691; 10 Bush, p. 59.; Hubble v. First Nat. Bank of Stafford, 9 Ky. Law Rep., 766; Whit, on Liens; Brandit on Suretyship, 2nd Ed., sec. 34; Price v. Dime Savings Bank, 124 111., 317; 7 American St. Rep., 367; Wirgman v. Miller, 98 Ky., 620; N. Y. Life Ins. Co. v. Miller, 27 Ky. Law Rep., 230; Daviess Co. Bank & Trust Co. v». Wright, &c., 33 Ky. Law Rep., 457; Alley v. Hopkins, &c., 98 Ky., 668; Robinson v. Miller, &c., 2 Bush, 179; Cye. vol. 7, pp. 725, 882, 891, 887, 894, 897, 899; American & Eng. Encyc. of Law, vol. 1, pp. 379, 380; Jungbeeker, &e. v. Huber, (Texas.) S. W. Rep., 105, p. 487.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The proof in this case fails to show that there was any-limited time for which said collateral note should be used.</p> <p>2. The renewal of the original indebtedness did not- release the collateral security note. (Bank of America v. McNeil, 10 Bush, 64; Koehler v. Hussey, 22 Ky. Law Rep., 321; Colebrook on Collateral Securities, sec. 14.)</p> <p>3. The consideration is ample and sufficient to uphold the execution of s.aid collateral note by J. T. Morehead. (Powell on Contracts, 344; Woolridge, &c. v. Cates, 2 J. J. M., 222; Bank of Martin v. Cassidy, &e., 20 Ky. Law Rep., 66; Am. & Eng. Enc. of Law, vol. 4, 299; Gano v. Finn el, 13 B. Mon., 390; Amer. & Eng. Ency. of Law, vol. 1, secs. 379, 380, 381; Congleton & Bro. v. W. T. & E. G. Garrard, 22 Ky. Law Rep., 819; Barboraux v. Barker, 4 Met., 47; Colebrook on Collateral'Securities, 27, 31, 41, 1899; Swift v. Tyson, 16 Peters, 1; Alexander v. Springfield Bank, 2 Met., 537; Daniel on Negotiable Instruments, vol. 1, pp. 823, 827; Wilkins v. Usher, 29 Ky. Law Rep., 1232.)</p> <p>4. The appellant admits his liability on said collateral note at and after the date of bankruptcy proceedings by J. W. Morehead.</p> <p>5. The collateral note is not released by failure of appellee to prove and file its claim in the bankruptcy proceedings of J. W. Morehead. (United States Bankrupt Law of 1898, sec. 57, subsection 1.)</p> <p>6. This collateral note is not released by the discharge of said J. W. Morehead in said- bankruptcy proceedings. (United States Bankrupt Law of 1898, sec. i, subd. 12.)</p> <p>7. Appellee has the right to enforce the collection of said collateral note. (Colebrook on Collateral Securities, 1, 31, 71, 90, 91, 112, 113, 447; Matson v. Alley, 141, 111. 284; Hodges v. Nash, 141 111., 391; Berenbroick v. Stephens, 8 Weekly Dig., (N. Y.) 163; Daniel on Negotiable Instruments, vol. 1, 831b, 833; 8 Cyc. 83, and notes thereto; Roberts v. Farmers Bank, 25 Ky. Law Rep., 2296; Day v. Kenton, 22 Ky. Law Rep., 1917; Bonta v. Curry, 3 Bush, 678; Noland v. Clark, 10 B. Mon., 239; Schindler v. Hayden’s Admr 8 Ky. Law Rep., 859; Stevens v. Morrow, 4 Ind., 425.)</p>

<p>CASE 55 — ACTION BY J. T. SLATON AGAINST J. L. ROGERS TO RECOVER MONEY IMPROPERLY PAID HIM AS COUNTY ATTORNEY. —</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>W. P. Sandidg Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>PROPOSITIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The services ordered were not embraced in the official duties of the county attorney. (Southern Ry. Co., &c. v. Coulter, &c., 24 Ky. Law Rep., 203; Kentucky Stats., secs. 126, 127, 4241; Acts 1906, Chap. 22, art. 17, p. 230; Ky. St-ats., 4068, 4440; Campbell County v. N. & C. Bridge Co., 23 Ky. Law Rep., 2058, 66 S'. W., 526.)</p> <p>2. Even if the services are to be considered as coming within the Official duties of the county attorney, he i-s entitled to receive reasonable compensation for their performance. (Ky. Stats., 126, 127; Harrison v. Com., 83 Ky., 162; Greenleaf, Judge v. Woods, Mayor, 96 S. W., 458, 29 Ky. Law Rep., 722; Fiscal Court of Jefferson County v. Pfianz, 104 S. W., 1002; Harrington v. Santa Clara County, 44 Cal., 506; Jones v. Morgan (Cal.), 7 Pac., 733: Leavenworth v. Brewer, 9 Kansas, 210; Huffman v. Greenwood County, 23 Kan., 197; Kentucky Stats., sec. 1749, subsec. 2; Collingsworth Gounty v. Meyers, (Texas), 35 S. W., 414.)</p> <p>3. The order of October 10th, 1900, fixing compensation for the coWection of the taxes is to be read in. connection with such other order as was-afterwards made by the fiscal court fixing the annual- allowance to' thd attorney for his second term of office during which term taxes were actually collected and the compensation received by hi-m and there was- therefore no increase of compensation during that term.</p> <p>4. The compromise of the claim of the attorney and his associate counsel against the county for services rendered. (State v. Ferris (Term.), 56 S. W., 1039.)</p> <p>5. The money having been paid to the attorney under an order of the fiscal court, it can not be recovered from him at the suit of the county, in the absence of fraud or mistake of fact. (Supervisors of Onondega County v. Briggs, 2 Denio (N. Y.), 26; Cox v. Mayor (N. Y.), 9 N. E., (1886); American Bridge. Co. v. Wheeler (Wash.), 76 Ac., 534; St. Francis Co. v. Roleson (Ark.), 49 S. W., 451; State, ex rel, Brantley v. Farris, Judge (Tenn.), 56 S. W., 1039; Callahan, Judge, v. Sallaway (Tpx.) 23 S. W., 837; Sioux County v. Jameson (Néb.), 71 N. W., 596; Heald v. Polk, (Neb.) 64 N. W., 376; Commissioners Ottawa County v. Auditor, 7 Ohio, N. P., 400; State v. Shipman, 28 S. W., 842; State v. Ewing, 22 S. W., 476; Smelson v. State, 16 Ind., 31; Scott v. Leftwiteh, 46 S. W., 965; Prebles v. Chism; 5 T. B. Mon., 158; County of Boone v. Dills, 5 Ky. Law Rep., 135, lb., 5 Ky. Law Rep., 686; Taxarkana v. Weeks (Ark.), 6 S. W., 504 (1887); Tacoma v. Lillis (Wash.), L. R. A., 372; Hopkins County v. Givens, 96 S. W., 819, 29 Ky. Law Rep., 933; Morgantown Deposit Bank v. Johnson, 108 Ky., 507.)</p> <p>6. The services having been performed by the attorney under the direction of the fiscal court, with the understanding on the part of all parties that he was to receive compensation therefor, he should be allowed to retain the reasonable value of the services perforihed. (Commonwealth v. Barker (Ky.), 103 S. W. 303, at page 304; U. S. v. Flanders, 112 U. S., 88.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The services performed by appellant were outside of his official duty, and therefore the fiscal court had the right to pay for said services. (Slaton v. Rogers, 107 S. W., 696.)</p> <p>2. The fiscal court acted within its jurisdiction in employing him and paying him, and the matter can not be opened in a collateral proceeding. (Boone Co. v. Dills, 5 Ky. Law Rep.,; and Manuscript Opinion.)</p> <p>1. The denial of appellant’s right to the commission claimed by him is not based on the constitutional prohibition against increase (or change) of compensation during his term, hence his contention that his contract for commission was made before his second term began is no defense to this action.</p> <p>2. The ground of rejection of his claim, is that whatever service he performed he in fact performed it as part -of his official duties. Moreover there was no proceeding ever instituted to collect taxes of any kind due Muhlemburg County. The State board had been sued by the railroads to prevent apportionment of franchise tax to the counties, and that board through the attorney general was defending and was perfectly competent to defend that action, and it was clearly beyond the scope of the fiscal court's limited authority, as defined in section 1840, Kentucky Statutes, to employ lawyers to assist the attorney general in the performance of his duty.</p>

<p>1. Indictment and Information — Conclusions of Law — Public Nuisances. — An indictment for maintaining a public nuisance which charges defendant with the offense of permitting a public nuisance charges a mere conclusion of law, and must be supported by allegations of fact showing how the offense charged was committed.</p> <p>2. Nuisance — Public Nuisances — Criminal Prosecutions — Indictment. — In a prosecution of a railroad company for maintaining a public nuisance, the indictment charged that the. company had failed to keep in repair a public bridge extending over its track, but there was no allegation of fact showing that it was the duty of the railroad company to repair the bridge, except a recitation that the defendant did “suffer and permit Its said bridge to become and remain out of repair and dangerous.” Held that the indictment did not sufficiently charge a duty to keep the bridge in repair.</p>

<p>CASE 57. — ACTION BY FRANK BYERS’ ADMINISTRATRIX AGAINST THE LOUISVILLE RAILWAY COMPANY FOR CAUSING THE DEATH OF HER INTESTATE.— -</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>Although appellant in the lower court relied upon a number of grounds upon which it should have been granted a new trial, upon this appeal it will confine itself to but two grounds on which it relies and will expect that the judgment be reversed. These grounds are as follows:</p> <p>1. That the court erred in instruction No. 1 given by it to the jury, telling the jury that it was the duty of appellant’s motorman in charge of the car in question to keep a lookout and that if ho failed in this regard the law was for the defendant, as thene was no proof in the testimony or nothing which tended or conduced to prove that there had been- any failure upon the part of the motorman to keep a lookout.</p> <p>2. That the court erred in refusing to give instruction A offered by appellant, which instruction, as we believe, concretely stated appellant’s defense and its theory of how the accident occurred-, and was fully justified by the evidence.</p> <p>AUTHORITIES CITED.</p> <p>L. & N. R. R.- Co. v. McCombs, 21 Ky. Law Rep., 1238 Breeding’s Heirs v. T *or’s Heirs, 13 B. Mon., 487; McClain v. Esbam, 17 B. Mon., 156; Mayes v. Farish, 11 B.’Mon., 41; Lexington Ry. Co. v. VanLaden’s Admr., vol. 32, 9 Ky. Law Rep., 1047; Louisville Ry. Co. v. Mieglemry, 25 Ky. Law Rep., Part II, 1589; Hummer’s Exor. .v. L. & N. R. R. Co., vol. 32 Ky. Law Rep., 1317.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In case of collision with traveller at crossing of a street car at Intersection of populous streets in city, instruct'on requiring mptorman to be keeping a lookout is proper. (Louisville Railway Co. v. French, 24 Ky. Law Rep., 1279, Part 2; Owensboro City Railway Co. v. Hill, 21 Ky. Law Rep., 1638; Louisville Railway Co. v. Bossmeyer, 31 Ky. Law Rep., 998; South Covington & Cincinnati St. Ry. v. Eiehler, 32 Ky. Law Rep., 1309; Louisville Ry. Co. v. Hutchcraft, 32 Ky. Law Rep., 429; Louisville Ry. Co. v. Boutellier, 33 Ky. Law Rep., 484.)</p> <p>2. Second and third instructions given by the trial court are proper. (Louisville Ry. Co. v. Poe, 24 Ky. Law Rep., 1700, Part 2; Flynn v. Louisville Ry. Co., 23 Ky Law Rep., 57; .Louisville Ry. Co. v. Hoskins, 28 Ky. Law Rep., 124; Owensboro City Ry. Co. v. Hill, .21 Ky. Law Rep., 1638; Central Passenger Ry. Co. v. Chatterson, 17 Ky. Law Rep., 5; Illinois Central Railroad Co. v. Proctor, 28 Ky. Law Rep., 602.)</p> <p>3. Instruction tendered by appellant was improper. (Louisville Ry. Co. v. Hartman’s Admx., 26 Ky. Law Rep., 1174; Louisville Ry. Co. v. Bossmeyer, 31 Ky. Law Rep., 998; Louisville Ry. Co. v. Boutellier, 33 Ky. Law Rep., 484, No. 4; Louisville Ry. Co. v. Phillips, 22 Ky. Law Rep., 842.)</p>

<p>1. Wills — Probate — Persons Who May Contest — Purchasers of Heir of Testator — “Persons Interested." — Purchasers from an heir of a testator may resist the probating of bis will; they being “persons interested,” within Ky. St. 1903, sections 4856-4861, making such persons proper or necessary parties to probate proceedings.</p> <p>2. Limitation of Actions — Wills—Probate—Statutory Provisions— “Action.” — Ky. St. 1903, section 2523, provides that an action for relief not otherwise provided r can only be commenced within 10 years from its accrual. Section 469 defines “action” as used in the statutes to include all proceedings in any court of the. Commonwealth. Held that since there is no provision in the statutes expressly limiting the time within which wills either of residents or nonresidents may be probated, and since the probating of a will, if not an action, is at least a proceeding to obtain relief, a proceeding to probate a nonresident’s will is within section 2522, and must be commenced within 10 years after testator’s death, regardless of whether the will was previously probated in the state of testator’s domicile or not.</p> <p>3. Wills — Probate in Another State — Effect on Land in Kentucky. —The probate of a nonresident’s will in the state of his domicile has no legal effect on the title to his land in Kentucky, but in order to pass title thereto the will must be probated in Kentucky according to its laws.</p> <p>4. Limitation of Actions — Time for Suing — Policy of State. — It is a well-established policy of Kentucky to üx in every case a -limit for bringing actions or proceedings for relief.</p>

<p>CASE 59. — ACTION BY MINNIE RAINE AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS, PACIFIC RAILWAY COMPANY AND OTHERS FOR DAMAGES IN BEING DEPRIVED OF A BERTH IN A SLEEPER.—</p> <p>Appeal from Boyle Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for plaintiff. Defendants appeal. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Instrument No. 1 gives undue prominence to particular facts and splits the measure of recovery, is argumentative and misleading, and sets out items of alleged damage for which ther.e can be no recovery. (Travelers Ins. Co. v. Clark, 350; So. Covington, etc. v. Nelson, 28 Ky. Law Rep., 2*89.)</p> <p>2. The' Pullman Company is not a common carrier, nor an innkeeper, and does not furnish transportation. It furnishes extra sleeping and toilet facilities to railroad .passengers, and is not responsible for delays or'movements of cars. (Beale on Innkeepers, secs. 341, 342, where the cases are collected; 4 Elliott on Carriers, sec. 1616; 2 Hutchinson on Carriers, 1130; Campbell v. Pullman Co., 42 Fed. 484; Williams v. Pullman Co., 3 Southern. 631; Lawrence v. Pullman Co., 10 N. E., 723; Thorpe v. Railroad, 76 N. Y., 409; Ulrich v. N. Y. Central, 15 N. E. 60; Wicher v. B. & A., 57 N. E. 601; Pullman Company v. Gaylord, 9 Ky. Law Rep., 58; Lemon v. Pullman Co., 52 Fed., 262.)</p> <p>3. It owes no duty to reserve berths. (S.earles v. Mann Boudoir Car Co., 45 Fed., 330; Beale on Innkeepers, sec. 347.)</p> <p>4. It owes no duty of protection where there is no contractual .relation. (Pullman Co. v. Campbell, 42 Fed., 484, affirmed 154 U. S., 620; Duvall v. Pullman Co., 62 Fed., 265, certiorai refused, 163 U. S., 684; Williams v. Pullman Co., 3 Southern, 631; Casseday v. Pullman Co., 17 Southern, 373; Lawrence v. Pullman Co., 10 N. E., 723; Calhoun v. Pullman Co., 149 Fed., 546; Hasty v. Sears, 34 Am. St. Rep., 267; Samnelian v. American, 46 N. E., 98; Coughlin v.'City, 44 N. E., 218; Byrne v. "Kansas, 61 Fed., 605; Central Coal & Tron Co. v. Grider, 115 Ky., 745; Jahn v. MeKnight, 117 Ky., 655.)</p> <p>5. Acts done by its employes in connection with the duty of the railroad company to furnish transportation are not done for, and impose no liability on, the Pullman Company. (Sims v. Pullman, Southern Fed. Cas., 12869-a; Pfaelzer v. Pullman, 4 W. N. C. (Pa.) 240; Bliss v. Pllman, 16 Chicago Legal News, 338; Hutchinson on Carriers, 1137; Duval v. Pullman Co., 62 Fed., 275; Mo. Pac. v. Groesbeck, 24 S. W., 702; Pullman Co. v. Lee, 49 III. App., 75; Lawrence v. Pullman Co., 10' N. E., 723; Calhoun v. Pullman Co., 149 Fed., 546; L. & N. v. Fisher, 155 Fed., 68.)</p> <p>6. Coupon tickets evidence the several contracts of the several roads and not a contract for through carriage. (4 Elliott on Railroads, sec. 1596; Atchison, etc. v. Cameron, 66 -Fed., 709; Gulf, etc. v. Looney, 85 Tex., 158; McCullom v. Southern Pacific, 88 Pac., 663; Nichols v. Southern Pacific, 23 Oregon, 123; Spencer v. Love joy, 96 Ga., 152; Pennsylvania v. Loftis, 74 N. E., 179; Duling v. Philadelphia, etc. 66 Md 120; 2 Hutchinson on Carriers, 1049-50.)</p> <p>7. There can be no actionable negligence without the breach of some duty to the in.jure’d^party. (2 Cooley on Torts, secs. 1410-11; Cumberland v. Martin, 25 Ky. Law Rep., 787; Smith v. Trimble, 111 Ky., 861; L. & N. r. Beeler, SI Ky. Law Rep.; L. & N. v. Logsdon, 26 Ky. Law Rep., 457; Buch v. A-rnory Mfg. Co., 69 N. H., 257; Pittsfield-, etc. v. Pittszeld Shoe Co., 71 N. H., 522.)</p> <p>8. If there is no duty ultra the contract, its breach imposes no liability in tort. (Courtenay v. Earle, 10 C. B., 73; Legge v. Tucker, 1 H. & N., 500; Totton v. Ry.. 2 E. & E., 844; Tuttle v. Co., 145 Mass., 169; Rich v. Ry., 87 N. Y., 382; Dustin v. Curtis, 67 Atl., 220; 1 Cooley jon Torts- 160; L. & N. v. Spinks, 20 S. E„ 969.)</p> <p>9. As between the passenger and the conductor, the ticket is the evidence of passenger rights, and for injuries resulting from observance of the -terms of the, ticket, no action in- tort lies. (L. & N. v. Miles, 100 Ky., 84; Flood’ v. C. & O., 25 Ky. Law Rep., 2135; Lexington & Eastern v. Lyons; 104 Ky., 23; Southern v. Hawkins, 28 Ky. L^w- Rep., 364.)</p> <p>10. After the lapse of a reasonable time to alight at destination, the relation of carrier and passenger ceases. (Kaase v. Gulf, etc., 92 S. W., 444; Chicago, etc. v. Frazier, 40 Pac., 923; Glenn v. Lake Erie, 75 N. E,, 282; I. C. v. Lala-ge, 113’ Ky., 896; 2 Hutchinson on Carriers, 1119; Fanning v. Sit. L., etc, 86 S. W., 354; Flood v. C. & O., 25 Ky. Law Rep., 2135.)</p> <p>11. The appellee was knowingly on the wrong sleeper; it was her duty to leave it at Danville and offer herself on the right one. (Hancock v. L. & N., 27 Ky. Law Rep., 434; Flood. v. C. & O., 25 Ky. Law. Rep., 2135; L. & N. v. Miles, 100 Ky., 84; I. C. v. Cotter, 31 Ky. Law. Rep., 679.)</p> <p>12. Evidence; of a-telephone conversation-'with’ one not shown to be ail authorized agent of the appellants was incompetent. (Planters Oil Co. v. Western Union, 55 S. E., 49'5; Kimbark v. Illinois Car Co., 103 111. App., 632; Thompson v. Appleby, 48 Pacific, 923; Murphy v. Jacke, 36 N. E„ S82; _Swing v. Walker, 27 Penn. SupeA, 366; State v. Nelson, 34 Atlantic, 990; Vaughn v. State, 30 Southern, 669; O'berman v. Adams, 36 111. App.; Young v. Seattle, 74 Pacific, 375.)</p> <p>13. So of alleged instructions' of the Pullman conductor as to the movement of trains. (I. C. v. Harper, 64 L. R. A., 283; Hancock v. L. & N., 27 Ky. Law Rep., 434; I. C. v. Head, 119 Ky.. 809; Alabama, etc. Carmichael, 9 L. R. A., 388; Sevier v. Vicksburg, 61 Miss.; Nunn v. Georgia Railroad. 71 Ga., 710; C., H. & I. v. Carper, 13 N. E., 122; Southern v. Ho’bbs, 118 Ga., 227; Daniels v. R. R., 22 S. E., 956; Webster v. Earwood, 29 E. E., 913; 2 Hutchinson on Carriers, 1121; Gerardy v. L. & N., 102 N. Y. S„ 548; Dresser v. Canadian Pacific, 116 Fed., 281; Texas v. Smith, 84 S. W., 853; Calhoun v. Pullman, 149 Fed., 546; Keating v. Mich. Cent., 97 Mich., 154; Lackat V. Lutz, 94 Ky., 288.)</p> <p>14. There was no duty to assist plaintiff to alight. (I. C. v. Cruse, 29 Ky. Law Rep., 914.)</p> <p>15. Mental suffering improperly submitted to jury. (Robinson v. W. U. T. C'o., 24 Ky. Law Rep., 452; Am. Nat’l v. Morey, 24 Ky. Law Rep., 658; Morse v. C. & O., 117 Ky., 11; I. C. v. Head, 119 Ky., 809; Ricketts v. W. TJ. T. Co., 30 S. W., 1105; Gulf v. McCormick, 100 S. W., 202; Russell v. Ry., 35 S. W., 724; Ry. v. Scott, 79 S. W., 642; Brenner v. Jonesboro, etc., 100 S. W., 893; B. & O. v. Sheridan, 31 Ky. Law Rep., 109.)</p> <p>16. Measure of damage was erroneous. (Lexington v. Herring, 29 Ky. Law Rep., 794; So. Cov. v. Nelson, 28 Ky. Law Rep., 287; L..& N. v. Hall, 24 Ky. Law Rep., 2.487; L. & N. v. Logsdon, 114 Ky., 746; Paducah Traction Co. v. Burradel, 31 Ky. Law Rep., 1052.)</p> <p>17. Bt was error to submit medical expense to the jury. There was no evidence that expenditure was reasonable or necessary. (Storm v. City of Butte, 89 Pacific, 726; Fort Worth v. Morris, 101 S. W., 1039; Etzig v. Balds, 112 N. W., 540; 6 Thompson on Negligence, 7329; L. & N. v. Logsdon, 114 Ky., 746.)</p> <p>18. The true measure was compensation for delay and expenses (for which there was no claim). (Hurt v. L. & N., 25 Ky. Law Rep., 755; L. & A. v. Kim’brough, 24 Ky. Law Rep., 2409; Early v. L., H. & St. L., 24 Ky. Law Rep., 1807; Louisville Gas Co. v. Kaufman, Straus & Co., 105 Ky., 157; Wituska v. R. R., 14 Ky. Law Rep., 579; Grant v. R, R., 31 N. E., 220; L. & N. v. Wathen, 22 Ky. Law Rep., 82.)</p> <p>19. The alleged acts of appellants were not the proximate cause of the aheged injury. (B. & O. v. Sheridan, 31 Ky. Law Rep., Ill; Cole v. German Savings Bank, 124 Fed., 113; Clark v. Wilmington, 109 N. C., 430; Good-lander v. Standard Oil Co., 63 Fed., 400; Milwaukee v. Kellogg, 94 U. S., 469; Central of Ga. v. Price, 32 S. E., 77; Pullman v. Stern, 41 So., 383; Chicago, etc. v. Gragg, 81 S. W., 93; Haley v. St. L., .etc., 77 S. W., 731; Francis v. St. L., etc., 5 Mo. Ap.p., 7; International, etc. v. Addison, 97 S. W., 1037.)</p> <p>20. Appellee could have avoided all injury by going into the Chattanooga car when told to do so, or by leaving the train at Danville and boarding the Atlanta, car when she saw it arrive. It was her duty to do so, and she can not recover for injuries she could thus have avoided. (I. B. & W. v. Bimey, 71 111., 391; R. R. v. Hine, 25 So., 857; Gulf v. Head, 15 S. W., 504; Ga. v. McAlister, 54 S. E., 957; I. C. v. Harper, 64 L. R. A., 283; St. Ii., etc. v. Townsend, 101 S. W., 455; Missouri Pac. v. Groesbeek, 24 S W., 702; Pullman v. Reed, 75 111., 125; Raleigh v. Clark, 114 Ky., 732; Sandifer v. L. & N., 28 Ky. Law Rep., 454; Cain v. L. & N., 27 Ky. Law Rep., 201; Ingraham v. Pullman, 76 N. E., 237.)</p> <p>21. Though the evidence showed contributory negligence, an instruction on this issue was refused. (I. C. v. Harper, 64 L. R¡ A., 283; 1. C. v. Head, 119 Ky., 809.)</p> <p>22. Non-expert testimony as to appellee’s condition should have been limited to a narration of symptoms. (Illinois Life v. DeLang, 31 Ky. Law Rep., 753.)</p> <p>23. Her physician could not repeat her statement to him as to the circumstances of her mishap. (Cleaver v. L. & N., 30 Ky. Law Rep., 1059; Shade v. Covington, etc., Co., 119 Ky., 592.)</p> <p>It is a well-settled rule of law, that no negligence or tortious violation of a contract can furnish the foundation of an action for damages unless it was the proximate cause of the injury suffered by the plaintiff. It is likewise as well settled, that the burden of showing that the negligence or other wrong was the proximate cause of the injury is upon the plaintiff. The plaintiff must not only prove negligence, but must also prove that the negligence was the proximate cause of the injury for which he claims damages. It is likewise as well settled that the burden is on the plaintiff to show by sufficient evidence; mere surmise and conjecture that the negligence complained of was the proximate cause of the injury are not sufficient.</p> <p>AUTHORITIES CITED.</p> <p>Setter’s Admr. v. City of Mayfield, 114 Ky., 60; Scheffer v. Railroad Co., 105 U. S., 249; Bishop on Non-Contract Law, sec. 41; Powlks v. Southern Railroad Co., 96 Va., 742; Francis v. St Louis Transfer Co., 5 Mo. App., 7; Henry v. St. Louis, Kansas City, &c., R. R. Co., 76 Mo., 228; Southside Passenger R. R. Co. v. Trich and Wife, 34 Am. & E. R. R. Cases, 549; Railroad Co. v. Hope, 80 Penn. St., 373; Block v. Milwaukee St. Ry. Co., 27 L. R. A., 386; The Central of Georgia v, Dorsey, 116 Georgia, 719; Shields, v. Louisville & Nashville Railroad, 97 Ky., 103.</p> <p>AUTHORITIES CITED.</p> <p>Dwenelle v. N. Y. Central & H. R. R. Co., 8 L. R. A., 2242, 120 N. Y.. 117; Pennsylvania Co. v. Roy, 102 U. S,, 141; Thorpe, v. N. Y. Central & H. R. R. Co., 76 N. Y., 406 Silver v. Great Western R. R. Co., L. R. A., 3, 150; Hulburt v. N. Y. Central R. R. Co., N. Y., 154; Morgan v. C. & O. R. R. Co., 32 Ky. Law Rep., 330; Tenn. Cent. R, R. Co. v. Bratbe’s Admr., 29 Ky. Law Rep., 1279; I. C. R. R. Co. v. Jackson, 25 Ky. Law Rep., 2089; L. & E. Ry. v. Lyon, 20 Ky. Law Rep., 516; L. & N. R. R. v. Fowler, 96th S. 20 S., 69; B, & O. S. W\ Ry. Co. v. Sheridan, 31 Ky. Law Rep., 109; Ky. Cent. Ry. Co. v. Biddle. 17 Ky. Law Rep., 1363; M. & Cin. Packet Co. v.'Nagel, 15 Ky. Law Rep., 743; Robertson v. L. & N. R. R. Co., vol. 41 Am. and Eng. R. R. Cases, new series 63.</p>

<p>CASE°60. — PERSONAL INJURY ACTION BY CHARLES E. STRINGFIELD AGAINST THE LOUISVILLE RY. CO.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for defendant. Plaintiff appeals. —</p> <p>AUTHORITIES.</p> <p>1. The burden of proof was on plaintiff and he should have been given the closing argument. (Stringfield v. Lou. Ry. Co., 32 Ky. Law Rep. -, 105 S. W. 1190, 3 Cyc. 1087; Finnel v. Bohannon, 19 Ky. Law Rep. 1507, 44 S. W. 94; Hess v. Hymson, 29 Ky. Law Rep. 327, 93 S. W. 9; Frankfort & Versailles Traction Co. v. Marshall, 30 Ky. Law Rep. 431, 98 S. \V. 1035; Lou. & Eastern R. Co. v, McNally, 31 Ky. Law Rep. 1357, 105 S. W. 124; Doerhoefer v. Shewmaker, 29 Ky. Law Rep. 1193, 97 S. W. 7; Berkner v. Dannenberg, 116 Ga. 954, 60 L. R. A. 559, 43 S. E. 463; Seymour v. Bailey, 76 Ga. 338; Shipp v. Patton, 29 Ky. Law Rep. 480, 93 S. W. 1033; Boles v. Pim.erton, 7 Dana, 453; Brubaker v. Paul, 7 Dana 428, 32 Am. Dec. Ill; Hathaway, v. Rice, 19 Vt. 102; Loder v. Phelps, 33 Wend. 46; Cilley v. Preferred Ac. Ins. Co.,' 187 N. Y. 517, 79 N. E. 1102; Mitchem v. Allen & Darrow, 128 Ga. 407, 57 S. E.' 721; J. B. Stivers v. Baker, 87 Ky. 508, 10 Ky. Law Rep. 523.)</p> <p>2. The question of burden of proof was not settled on the first appeal as the law of the case. (U. S. Fidelity & Guaranty Co. v. Blackley, Hurst & Co., 27 Ky. Law Rep. 392, 85 S. W. 196.)</p> <p>(a) Because it was not made a ground for new trial after the first verdict. (Detherage v. Montgomery, 4 Bush 46; Farmer v. Gregory, 78 Ky. 475; Blythe’s Exr. v. Owens, 3 Ky. Law Rep. 328; Gaffney v. Penn. R. Co., 8 Ky. Law Rep. 416; Alexander v. Humber, 86 Ky. 565, 9 Ky. Law Rep. 734; Cent. Pass. R. Co. v. Spieth, 10 Ky. Law Rep. 157.)</p> <p>(b) Because it was not a part of the bill of exceptions after the first verdict. (Sou. Ry. in Ky. v. Thurman, 25 Ky. Law Rep. 804, 76 S. W. 499; Ky. Stats., 1903, section 4639; Mann v. Moore, 112 Ky. 25, 23 Ky. Law Rep. 2l21, 66 S. W.' 723.)</p> <p>We rely upon an affirmance in this action on the following grounds:</p> <p>1. The question of the burden of proof was res adjuclicata when it was not presented by appellant upon his first appeal, and it is now too late for this question to be raised.</p> <p>2. That the lower court did not err in ruling as it did on the question of the burden of proving its case and was entitled to the concluding argument.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, sections 317, 526; Finnell v. Bohannon, 19 Ky. Law Rep. 1587; Hess v. Hymson, 29 Ky. Law Rqp. 327; Frankfort & Versailles Traction Co. v. Marshall, 30 Ky. Law Rep. 431; Louisville & Eastern R. R. Co. v. McNally, 31 Ky. Law Rep. 1357; Doerhojefer v. Shewmaker, 29 Ky. Law Rep. 1193; Torian v. Terrell, 29 Ky. Law Rep. 306; Ashland & Catlettsburg Ry. Co. v. Hoffman, 26 Ky. Law Rep. 778; Boone v. Gleason, 19 Ky. Law Rep. 1001; Mason, etc., v. Mason, 5 Bush 190; Davis, etc., v. MpCoi’kle, 14 Bush 746 . •</p>

<p>CASE 61. — MECHANIC’S LIEN PROCEEDINGS BY JOHN LUIGART AGAINST THE LEXINGTON TURF CLUB, &C. —</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment dismissing petition. Plaintiff appeals.—</p> <p>We submit that the allegations of the petition and amended petition of appellant state facts constituting a good cause of action, and that the demurrer thereto was improperly sustained by the court.</p> <p>AUTHORITIES.</p> <p>Act- of the Legislature of Kentucky, approved January 6, 1871, vol. 1, p. 4, Private Acts; Burkitt v. Harper et al., 79 N. Y. Rep. 273; Otis v. Dodd et al., 90 N. Y. Rep. 336; Nellis v. Bellinger, 6th Hun. 560; Husted v. Mathes, 77 N. Y. Rep. 388; Hackett v Yadeau, 63 N. Y. Rep. 476; Moore v. Jackson, 49 Cal. 109; Phillips on Mechanics’ Liens, pp. 26, 28, 125, 127, 134, 135, 167, 168, 170,. 179, 180, 183, 187, 340; Boyers v. Hendricks, 4 Ky. Law Rep. 725; Hall & Son v. Bullock’s Trustee, 29 Ky. Law Rep. 1254.</p> <p>We submit that tEe action of the lower court in dismissing appellant’s petition was right .and should be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>1. Gen. Stats., ch. 70, art. 1 sections 1, 2, 4; Gen. Stats., ch. 52, Art. 11, section 2; McMahon v. Lewis, 4 Bush 138; Gatewood v. Bryan, 7 Bush 509; Webster v. Tattershall, 18 Ky. Law Rep. 439; Roberts v. Riggs, &c„ 84 Ky. 251; 'Pell v.Cole, 2 Met. 252; McCIintock v. Criswell, 67 Pa. St. 183; Boteler v. Espen, 99 Pa. St. 313; Schaeffer-Meyer Brewing Co., &e„ v. Meyer, &c., 19 Ky. Law Rep. 411.</p> <p>2. Stembridge v. Stembridge’s Admr., 87 Ky. 91; Bason v. Ky. Cent. Ry. Co., 95 Ky. 373; Ky. Bldg. & Loan Assn. v. Kister, 101 Ky. 321.</p> <p>AUTHORITIES DISTINGUISHED.</p> <p>3. Act of January 6, 1871, affecting Fayette county, Session Acts, 1871, ch. 1073, p. 4 of “Local and Private Acts;” Burkitt v. Harper, &c., 79 N. Y. 273; Otis v. Dodd, &c., 90 N. Y. 336; Nellis-v. Bellinger, 6 Hun. 560; Husted v. Matbes, 77 N. Y. 388; Hackett v. Vadeau, 63 N. Y. 476; Moore v. Jackson, 49 Cal. 109; Phillips on Mechanics Liens, passim; Boyer v. Hendricks, .4 Ky. Law Rep 735; Hall & Son v. Bullock’s Trustee, 29 Ky. Law Rep. 1254.</p>

<p>1. Sheriffs and Constables — Duties—Duty as to Levy of Execution. — Under Ky. Stats., 1903, section 1713, providing that it shall be no defense in an action against a collecting officer that plaintiff directed him to stay proceedings unless plaintid! consented to or required, the stay in writing, only a written consent will excuse the officer’s failure to execute a writ, and he must proceed unless directed in writing to stay the execution.</p> <p>2. Execution — Wrongful Execution — Persons Entitled to Damages — Execution Defendant land Mortgage. — Under Ky. Stats., 1903, section' 1700, providing that, when mortgaged property is sold under execution, defendant’s interest must be levied on subject to the incumbrance, and by subsection 4, the purchaser must give a bond payable to the incumbrancer and the owner to preserve the property to answer the incumbrance, ■and deliver the bond to the officer before possession is delivered , to him, where a sheriff did not make his levy on corn subject to a mortgage thereon, nor take a bond from the purchaser as required, he is liable to the execution defendant, ■and to the mortgagee for any damage sustained by his failure to comply with the statute.</p> <p>3. Execution — Wrongful Execution — Actions—Parties Defendant —Purchaser.—In actions by the execution defendant and the mortgagee of the property for wrongful execution by levying on mortgaged property after satisfaction of the judgment and without taking a bond to protect the incumbrancer, the purchaser at execution sale should be made a party defendant so as to settle the enure controversy In one suit.</p> <p>4. Execution — Wrongful Execution — Damages.—Where a purchaser on execution sale of mortgaged property took possession oí the entire property without giving bond to protect the mortgagee’s interest, he would be liable for its fair value at the time of the conversion, less the amount of his bid.</p> <p>5. Judgment — Satisfaction—Persons to Whom Payment May Be Made — Plaintiff's Attorney. — Where the judgment creditor referred the debtor to her attorney to settle with him, and the attorney agreed to stop execution and the debtor deposited the amount of the judgment in his name, the deposit in bank of the amount of the judgment and the acceptance thereof by the attorney was a satisfaction thereof.</p> <p>6. Execution — Satisfaction — Satisfaction of Judgment.— Since writs of execution exist only to enforce judgments, where a judgment is satisfied, the execution issued thereon will also be treated as satisfied.</p> <p>7. Judgment — Satisfaction—Persons to Whom Payments May Be Made. — Payment to satisfy a judgment may be made to plaintiff, or one of several plaintiffs, or to the levying officer, or to plaintiff’s attorney, except where defendant knows the attorney has no authority to receive it or to a next friend or (o his attorney.</p> <p>8. Sheriffs and Constables — Liability—Execution as Protection from Liability. — Where a judgment is not satisfied when execution issues, the writ, being fair on its face, protects the officer in case the judgment is afterwards satisfied.</p> <p>9. Execution — Wrongful Execution — Person Liable — Judgment Creditor. — When a judgment is satisfied, plaintiff must stay execution as required by law, and will be liable to the execution defendant if he allows the sheriff to proceed, so that, where plaintiff permitted the sheriff to levy execution after the amount of the judgment had been paid to her attorneys, she was liable to the execution defendant for the proceeds of the execution sale which were paid to her attorneys, with interest thereon from the time it was paid.</p> <p>10. Judgment — Satisfaction—Payment—Overpayment.—Where the amount paid in satisfaction of a judgment was in excess of the amount of the judgment, the excess should be returned to the judgment debtor, with interest.</p> <p>11. Sheriffs and Constables — Compensation—Levy of Execution.— Where a judgment was satisfied by payment of the money to plaintiff’s attorney after execution had issued and had been levied, by the sheriff, he was entitled to the same commissions as he would be if the money had been paid to him.</p> <p>12. Execution — Sale—Validity.—Where a judgment had not been satisfied when execution issued and the execution was not stayed when the judgment was satisfied as required by statute, and the officer did not take a bond from the purchaser to protect the mortgagee of the property sold, the sale was voidable and not void.</p> <p>13. Execution — Sale—Rights of Purchaser on Avoidance. — Where a judgment was not satisfied when execution issued and was not stayed upon being satisfied, and the sheriff did not take a bond from the purchaser to protect a mortgagee so'that the sale was merely voidable, the purchaser should he allowed the money paid by him in discharge of the sale bond.</p> <p>14. Execution — Wrongful Execution — Persons Liable. — Where com was sold under execution after plaintiff’s judgment was satisfied and the sheriff did not take a bond from the purchaser to protect a mortgagee thereof as between the execution defendant or his mortgagee on one side and the purchaser, the sheriff, and the . execution plaintiff on the other, the latter are all liable to the former for the value of the corn, but, a3 between themselves, the execution plaintiff is primarily liable for the money paid by the purchaser to the sheriff, aud by him to her attorney, with interest thereon, and for the balance of .the value of the corn the purchaser is primarily liable, then the sheriff, and. lastly, the execution plaintiff.</p> <p>15. Execution — Wrongful Execution — Actions — Damages. — The measure of damages would be the value of the corn at the time it v'as taken, less what it brought at the sale.</p> <p>16. —Execution—Wrongful Execution — Persons Liable. — If the purchaser of property which was wrongfully sold under execution caused any damages to the execution defendant in removing the property, he alone would be liable therefor, and not the sheriff or execution plaintiff.</p>

<p>Easements — Right of Way — Grant—Construction.—A purchaser of land excluded from any public highway acquired a right of way over adjacent land to a turnpike on condition that the right should cease on the way ceasing to be the only outlet to a public highway. Subsequently the purchaser acquired other land between his land and a public road, but the deed reserved to the grantor a strip which was the only outlet to, the public road. Held, That the purchaser’s right in the right of way over the adjacent land was not terminated by his failure to purchase the entire tract so as to acquire an outlet to a public highway, not being a fraud on the rights of the adjacent landowner.</p>

<p>CASE 64. — MANDAMUS BY W. H. MCDONALD, AS TREASURER OP A GRADED COMMON SCHOOL DISTRICT, AGAINST B. E. PARKER, COUNTY SUPERINTENDENT, TO PAY CERTAIN MONEY ALLEGED TO BE DUE THE DISTRICT. —</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p>

<p>1. Homicide — Murder—Evidence—Conspiracy.—In a murder case evidence held to show that there was a conspiracy among accused and his brothers to kill decedent, and that in pursuance of it, and while it existed, decedent was killed by one or more of them; all of them acting at the time in concert.</p> <p>2. Criminal Law — Evidence—Declarations and Acts of Conspirators. — After a conspiracy is formed and exists, each conspirator is responsible for what the others do in the prosecution of their common design, and, in a prosecution of one conspirator for a murder which was the object of the conspiracy, it was competent to show the cause of ill feeling between the conspirators and decedent, threats by them and their hostile declarations, purchase of cartridges by certain of them, and every circumstance that tended to throw light upon their acts in furtherance of the common design.</p> <p>3. Homicide — Self-defense—Nature of Defense. — The necessity at the particular moment to take his adversary’s life will not justify accused, if he himself was the wrongdoer or the aggravating cause of the difficulty.</p> <p>4. Homicide — Result of Conspiracy — Self-Defense.—Where two or more combine to kill another, and, in pursuance of the conspiracy, seek him out and kill him, or provoke an assault and then take his life, neither of the conspirators can rely upon the plea of self-defense; but if though a person was killed pursuant to a conspiracy, and while it existed, no one of the conspirators sought him out for th'e purpose of killing him, or provoked the difficulty resulting in his death, or first attacked him, then any one of them could avail himself of the plea of self-defense.</p>

<p>CASE 66. — ACTION BY J. W. KELLY AGAINST THE PETER & BURGHARD STONE CO. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>Judgment for defendant. Plaintiff appeals. —</p> <p>The error of the trial court consists solely in overlooking the fact that there was a consideration on the part of the plaintiff which made the promise to give him employment a valid, binding contract. The petition states that defendant “contracted and agreed with the plaintiff that as soon as he was able to resume work, the defendant would allow plaintiff to continue in its employ, and furnish him steady work during the times he was able to work," which was then and there accepted by plaintiff as part of said settlement, release, adjustment and compromise."</p> <p>We submit that from these allegations, it is evident that defendant promised plaintiff work as part of the consideration for plaintiffs compromising and releasing his claim for personal injuries against defendant.</p> <p>AUTHORITIES.</p> <p>L. & N. R. R. Co. v. Harvey, 99 Ky. 157; Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455, 20 Ky. Law Rep. 2006, 50 S. W. 685; Bacon v. Ky. Cent. Ry. Co., 95 Ky. 373; Beach on Modern Law of Contracts, section 457; Smith v. St. Paul Co. (Minn.), 62 N. W. 392; Dickey v. Dickinson, 20 Ky. Law Rep. 1559.</p> <p>LEGAL PROPOSITIONS.</p> <p>1. A party claiming damages for a breach of contract for employment must allege a mutual contract by wihich both- parties were bound for a definite time; or else, if a purchase of an option to work is. claimed, a consideration for such purchase must be alleged in order to state a cause of action on the contract. (L. & N. R. R. Co. v. Offutt, 99 Ky. 427; L. & N. R. R. Co. v. Harvey, 99 Ky. 157; East Line, etc., R. R. Co. v. S'cott, 13 Am. St. Rep 762, and authorities cited therein; Grigsby v. Grigsby, 1 Ky. Law Rep. 62; Buford’s Heirs v. McKee, 1 Dana 107.)</p> <p>2. A demurrer to an answer brings the whole of the pleadings before the court, and the demurrer should be sustained to tho petiiion if it is defective. Wile v. Sweeney, 1 Duv. 161; Young v. Duhme, 4 Met. 215.)</p> <p>3. A contract for no definite time of service can not, at best, be construed as a contract for more than one day’s service, and of such a breach of contract this court has no jurisdiction. (Davis v. Barr, 12 N. Y. State 111.)</p> <p>4. No judgment should be reversed except for an error materially prejudicial to the party against who it is rendered.</p>

<p>1. Evidence — Judicial Notice — Population of Towns. — Under Constitution section 156, providing that towns with a population of less than AO.OO shall be assigned to the sixth class, the court will take judicial notice that the population of a town of that class does not exceed 1,000.</p> <p>2. Intoxicating Liquors — Licenses — Eiscretion — Statutes. — Ky. Stats., 1903, section 3704, provides that, in any town of the sixth class having voted for the sale of liquor, the board of trustees shall have no right to refuse licenses until another election is held and a vote returned against such sale. Heid. That the board of trustees of a town of the sixth class, which had voted to permit the sale of liquor, still had discretion as to the number of licenses to be granted, and, having already granted four licenses, properly refused to grant a fifth application, thcugh there was no objection against the applicant or his proposed place of business.</p> <p>3. Intoxicating Liquor» — Nature of License. — A liquor license is not a right or privilege that any citizen may demand, but is in the nature of a favor that may or may not be granted according to the discretion of those in authority.</p>

<p>CASE 68. — ACTION BY THE BARBER ASPHALT PAVING CO. AGAINST GEORGE HALLER TO ENFORCE AN APPORTIONMENT LIEN. —</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p> <p>POINTS DISCUSSED.</p> <p>1. Spoliation. — “Where .taxation is so excessive as to render it doubtful whether the property to be benefited will suffice to pay the. assessment against it, they can no longer be deemed taxation. To enforce their collection would be the exercise of absolute and arbitrary power .over the property of the citizen, a power whch, under our form of government, does not exist, even in the largest majority.” (Broadway Baptist Ghurch v. McAtee, 8 Bush 517.)</p> <p>2. The test of the value of the lot liable to be assessed for the cost of the street should be limited to the part of the lot located within the tax district, and without regard to any improvement located on the lot, and without reference to the value of any other portion of the same lot owned by the same owner. (Pfaffinger v. Kremer, 115 Ky. 503.)</p> <p>This court has in numerous cases laid down the rule with reference to the plea of spoliation, to the effect that it must be affirmatively established that the property, after the improvement, is not worth the amount apportioned against it.</p> <p>The testimony clearly establishes the fact that this property is worth several times the amount of the apportionment, and has been materially enhanced in value by the construction of the street in controversy. (Otter v. Barber Ashphalt Paving Co., 29 Ky. Law Rep. 1157; Bullitt v. Salvage, 20 Ky. Law Rep. 599.)</p>

<p>CASE 69. — ACTION BY WILLIAM MATTHEWS’ ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. FOR DAMAGES FOR CAUSING HIS DEATH.—</p> <p>Appeal from Webster Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p> <p>SYNOPSIS.</p> <p>1. The court erred in rejecting the testimony of Moses Howard.</p> <p>2. Numerous other errors prejudicial to the substantial rights of appellant were committed by the trial- court in the admission and rejection of testimony.</p> <p>3. The court abused its discretion in allowing witness Bramwell to testify after the witnesses had been put under the rule, said Bramwell having remained in the court room and heard the testimony of all witnesses on both sides before being offered as a witness in chief.</p> <p>The court erred in not allowing appellant to introduce testimony to contradict appellee’s witness Bramwell.</p> <p>5. The instructions of the court given to the jury are without a precedent, are grossly erroneous and so framed as to unduly influence the verdict of the jury, and the adverse verdict is traceable to this error. (Brents, by., &c., v. L. & N. R. R. Co., 31 Ky. Law Rep. 1216.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The petition states no cause of action; and for that reason there should have been a peremptory instruction to find for defendant (appellee). (Burton v. Magan-Faulk Lumber Co., 25 Ky. Law Rep. 40; L. & P. Canal Co. v. Murphy, 9 Bush 527; Stivers v. Baker, 87 Ky. 508; L. & N. R. R. Co. v. Paynter’s Admr., 26 Ky. Law Rep. 761.)</p> <p>2. There was no sudden or unusual movement of the train; and had there been, it would not, under the circumstances of this case, furnish any ground of action. (L. & N. R. R. Co. v. Fox, 20 Ky. Law Rep. 81; C. & O. T. R. Co. v. Jackson, 22 Ky. Law Rep. 630; Yates v. Miller’s, &c., Co., 28 Ky. Law Rep. 331; Williams v. L. & N. R. R. Co., 103 Ky. 229 ;o Groves v. L. & N. R R. Co., 29 Ky. Law Rep. 725; L. & N. R. R. Co. v. Morris, 23 Ky. Law Rep. 449.)</p> <p>3. There was no evidence whatever that the fall of Matthews from the car was caused by any negligence of those in charge of the train, and it would have been error to submit any such question. (L. & N. R. R. Co. v. McCombs, 21 Ky. Law- Rep. 1238.)</p> <p>4. Matthews was extricated from his perilous position under the car in the best and safest way, and without inflicting additional injury.</p> <p>5. The court did not abuse its discretion in allowing appellee’s witness Bramwell to remain in the court room after a separate examination of witnesses had been ordered, and then to testify. (Civil Code, section 601; Johnson v. Clem, 82 Ky. 84; Warden v. M., H. & E. R. Co., 31 Ky. Law Rep. 34.)</p> <p>6. There being no scintilla of evidence of neglect causing Matthews’ fall from the train, the court would not have been authorized to submit that matter to the jury.</p> <p>7. The instruction to the effect that Matthews assumed the ordinary risks incident to the employment was such as this court has approved. (L. & N. R. R. Co. v. Babcock, 107 Ky. 223; L. & N. R. R. Co. v. Milligan’s Admr., 21 Ky. Law Rep. 489; C., N. O. & T. P. Ry. Co. v. Evans’ Admr., 33 Ky. Law Rep. 596.)</p> <p>8. Appellant’s sixth, seventh and eleventh grounds for new trial are too vague and general to call the court’s attention to any alleged error complained of. (Dibble v. McClain, 13 Bush 297; Jones v. Wosher, 90 Ky. 230.)</p> <p>9. Instructions A and B asked by appellant were properly refused, and instructions C and D were fully covered by those given by the court.</p> <p>10. There being no error prejudicial to -appellant’s rights, the judgment should be affirmed. (Civil Code, sections 134, 338, 756.)</p>

<p>Elections — Contest—Abatement—Death Pending Appeal. — Appeal in an election contest abates on death of eontestee pending his appeal; Ky. Stats., 1903, section 1596A, subsection 12, providing for a contest anid an appeal by either party, making no provision in case of death of either party, an election contest not being within the jurisdiction of the.courts of common law, and therefore not surviving at common' law, section 10 making certain enumerated actions survive, not embracing it, and though the estate of decedent, he being the unsuccessful party is liable for the costs, an appeal not lying from a mere judgment for costs.</p>

<p>'Judgment — Bar of Cause» of Action — Judgment on Discontinuance. —The dismissal of an action either on motion of plaintiff or on motion of defendant for want of prosecution, after it» removal from a State circuit court to a Federal circuit court, is not a bar to a subsequent action for the same cause begun in the State circuit court.</p>

<p>CASE 72. — ACTION BY CHARLES J. BOZEMAN’S ADMINISTRATOR AGAINST THE PRUDENTIAL INSURANCE COMPANY OP AMERICA, ON A POLICY OP INSURANCE ON THE LIFE OP THE DECEASED.—</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff: appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A brother has an insurable interest in a brother.</p> <p>2. The Insurance Company had no right to forfeit the policy for the nonpayment of the loan or interest on the loan. (N.' Y. Life Ins. Co. v. Curry, 115 Ky., 100; same case 24 Ky. Lav/ Rep., 1932, and 61 L. R. A., 268.)</p> <p>3. The term of extended insurance was not reduced by the indebtedness placed against the policy.</p> <p>4. But if it was so reduced it was not so reduced in the ratio that the loan bears to the legal reserve.</p> <p>5. Four full premiums having been paid, the policy was carried by them to and beyond the death of the insured, notwithstanding the loan of the insured.</p> <p>The material question which is presented for determination in this case is as follows:</p> <p>Where the insured, under the terms of a life insurance policy, has borrowed from the company and executed to it a loan certificate whereby he assigns the policy and benefits to it as collateral, and afterwards defaults in the payment of the annual premium and fails to pay the loan or the legal interest upon same, ha® the company a right under the terms of the policy in this case to deduct the amount of the loan and simple interest upon same at 5 per cent, per annum from the reserve value of the policy at the time of the nonpayment of the premium and give to 'the insured extended insurance for such period of time as the balance of the reserve would carry it at the same rati» that the loan and the balance of the net reserve bears to the period of time that the full reserve if there was no loan would carry it, or has the insured, under the terms of the policy in this case, a right to retain the loan and claim extended insurance in the same way and for the same period of time as if no loan had been made against the policy. In other Words has the insured, under the terms of this policy, a right to receive and retain both the loan value of a policy and extended insurance for the full period of tine as if no loan had been made, or no encumbrance eisting against the policy?</p> <p>CITATIONS AND AUTHORITIES.</p> <p>Mutual Benefit Life Insurance Co. v. First National Bank of Louisville, 25 Ky. Law Rep., 172; Emig’s Adm’r v. Mutual Benefit Insurance Co., 32 Ky. Law Rep., 484; Jagoe v. Aetna Life Insurance Co., 29 Ky. Law Rep., 984.</p>

<p>CASE 73. — SUIT BY LAWRENCE COUNTY AGAINST THE LAWRENCE FISCAL COURT, TO HAVE AN ORDER OF THE COURT DIRECTING THE PAYMENT OF CLAIMS OUT OF CERTAIN FUNDS, SET ASIDE.—</p> <p>Appeal from Lawrence Circuit Court.</p> <p>S. G. Kinner, Circuit Judge.</p> <p>From a judgment for defendant on demurrer to the petition, plaintiff appeals. —</p>

<p>CASE 74. — ACTION BY PENNEBAKER BROTHERS AND OTHERS AGAINST THE BELL CITY MANUFACTURING COMPANY TO CANCEL'NOTES FOR THE PURCHASE OF A THRESHING MACHINE. —</p> <p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff Appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Civil Code section 61, subsection 3; Civil Code, section 72; Newport News, &c., Ry, Co. v. Thomas, 16 L. R. A. 706; New South Brewing Co. v. Price, 21 Ky. Law Rep. 11; Hagerman v. Empire State Co., 97 Penn. 534; Moeh v. Virginia F. & M. Ins. Co., 10 Fed. Rep. 696; Doe v. Springfield Boiler Co., 44 C. C. A. 128 (104 Fed. 864); Palmer v. Chicago Evening Post Co., 33 N. Y. Supp. 992; Beale on Foreign Corporations, Par. 273; Murphy on Foreign Corporations, Par. 215; Michael v. Nashville Mutual Ins. Co., 10 La. Ann. 737; Gross v. Nochols, 72 Iowa, 239.</p> <p>AUTHORITIES CITED.</p> <p>Newport News, &c., v. Thomas, 96 Ky. 614, 29 S. W. 437; Cincinnati Times-Star Co. v.- France, 22 Ky. Law Rep. 1666; Youngstown Bridge Co. v. White’s Admr., 105 Ky. 273; 20 Ky. Law Rep. 1175; Civil Code, sec. 51, sub-sec. 3; Civil Coae, sec. 732, sub-sec. 33; Beattyville Coal Co. v. Bamberger Bloos, Assignee, 21 Ky. Law Rep. 830; Newport News & M. V. Co. v. McDonald’s Assignee, 109 Ky. 408, 97 S. W. —; Barboursville Real Estate Co. v. Matthews, 14 Ky. Law Rep. 767; Daviess Co. v. Field, 111 U. S. 83; Chesapeake & Ohio R. Co. v. Heath’s Admr., 87 Ky. 651; 83 Ky. 529; 15 Ky. Law Rep. 876; 9 Ky.' Law Rep. 406; Daniels Negotiable Instruments, vol. 1, secs. 741, &c.; Acts Kentucky, 1904, page 224; Richardson v. Payne, 17 Ky. Law Rep. 222, 30 S. W. 879; Powers v. Walker, 18 Ky. Law Rep. 889, 37 S. W. 493; Menninger'v. Rampe’s Admrs., 18 R. 593, 37 S. W. 493; Coyle v. Foley, 18 Ky. Law Rep. 1046, 39 S. W. 36; Marks- v. Deposit Bank, 21 Ky. Law Rep. 117, 50 S. W. 1103; J. I. Case Co. v. Sanford, 30 R. 188, 97 S. W. 805.</p>

CASE 75. — ACTION BY THE FARMERS HOME INSURANCE CO. AGAINST LEANTIE G. CAREY AND OTHERS.— Appeal from Mercer Circuit Court. W. C. Bell, Circuit Judge. Judgment for defendants, plaintiff appeals — If appellee claims that he is a purchaser for value without notice, he must plead that fact affirmatively. Petition is good. AUTHORITIES CITED. Acton v. Parmer’s Home Insurance Co., 30 Ky. Law Rep. 919; Kentucky Statutes, secs. 702 to 722 inclusive; also secs. 2500 2463, &c.

CASE 76. — ACTION BY BURT & BRABB LUMBER CO. AGAINST MARY J. BATES AND OTHERS UPON BREACH OF WARRANTY IN THE SALE OF LAND. — Appeal from Letcher Circuit Court. M. J. Moss, Circuit Judge. From the judgment both parties appeal — POINTS RAISED. 1. Uporu issues joined the facts were ascertained and determined upon trial of the former appeal pro'secuted 27 Ky. Law Rep. 767, &e. 2.

<p>CASE 77. — MANDAMUS BY THE LOUISVILLE HOME TELEPHONE COMPANY -AND ANOTHER AGAINST THE CITY OP LOUISVILLE AND OTHERS. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for defendants. Plaintiffs appeal. —</p> <p>No briefs. Record out of office.</p>

<p>1. Exceptions, Bill of — By Whom Prepared. — A bill of exceptions cannot be prepared by the successful party, and the unsuccessful party may take the time given by express statute for that purpose.</p> <p>2. .Appeal of Record — Filing Incomplete Transcript — Supplementation. — Civ. Code Prac. section 741, providing that the appellee may file an authenticated copy of the record in the clerk’s office of the Court of Appeals with the same effect as if filed by the appellant, carries with it the necessary implication than the record has been completed in the court below, and does not confer on an appellee the right to file ■an incomplete transcript and then supplement it by subsequently filing the bill of exceptions.</p> <p>3. Mandamus — Bill of Exceptions.,— Necessity. — Where, in an action for a mandamus, witnesses were heard, the evidence was taken' by the court stenographer, the conclusion of law and fact were separted, motion and grounds for new trial duly passed on and filed, and the stenographer’s transcript of evidence was filed on plaintiff’s motion, a .bill of exceptions was necessary in order to have rulings on.evidence reviewed, and the responsibility of preparing such bill was on defendants.</p>

<p>1. Deeds — Construction—Grantees—“Children.”—While the word “children” as a rule is used in deeds and wills as a word of purchase, it is frequently used as a synonym for “heirs,’! and this may always be shown by or deduced from a consideration of the whole instrument.</p> <p>2. Estates Conveyed — Language of Instrument — “Children.”—The caption of a deed stated the grantee as “trustee for C. and her children.” The granting and habendum clauses stated him as “trustee for C.. her heirs and assigns.” The warranty was to “C., her heirs and assigns.” Held that, in view of the exclusive use of the words “heirs” and “assigns” in all the parts of the deed which conveyed or warranted the estate, the word “children” in the caption, which was merely descriptio personae of the grantee, was used by the grantors in the sense of “heirs,” and the deed conveyed an equitable fee-simple estate to C.</p>

CASE 80. — ACTION BY NELLIE E. LINDSAY AGAINST G. N. T. LATHAM TO RECOVER LAND. — Appeal from Todd Circuit Court. W. P. Sandidge, Circuit Judge. Judgment for plaintiff. Defendant appeals. — POINTS AND AUTHORITIES CITED. 1. Statement of facts' and review of testimony, showing that the verdict is not sustained by the evidence. 2. The judgment is void or erroneous, because it adjudicates noinmg and is too uncertain and vague. (Foreman v. Redman, 9 Ky.

<p>CASE 81. — PERSONAL INJURY ACTION BY CAROLINE BRIT-TON AGAINST THE LEXINGTON RAILWAY COMPANY. —</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The construction given by the lower court as to measure of general damages is- erroneous. , (Lexington Railway C'o. v. Woodward 106, section 853; Lexington Railway Co. v. Herring, 29 Ky. Law Rep., 794; Lexington Railway Co. v. Herring, 30 Ky. Law Rep., 269; Parker v. Jenkins, 3 Bush, 587; L. C. & L. Ry. Co. v. Cases- Adm.; 72 Ky., 736; L. & N. Ry. Co. v. Logsdon, 114 Ky., 746; Lexington Railway Co. v. Fain, 28 Ky. Law Rep., 745.)</p> <p>2. Special damages must be specially pleaded and the amount claimed as such, must be set out. Under an allegation that plaintiff expended $............ for medical services, no proof as to the value of such service can be introduced, nor can- any recovery be had therefor. (Newman on Pleading & Practice, sec. 345; Newman on Pleading & Practice, sec. 232; Newman on Pleading & Practice, p. 507; 1 Chitty, 398; Heard on Civil Pleading, p. 311; Jesse- v. Shuck, 11 Ky. Law Rep., 463; Lloyd v. Knadler; 22 Ky. Law Rep., 776; L. & N. v.' Dickey, 31 Ky. Law Rep., 894; Baríes v. Lou. Elec. Light Co., 25 Ky. Law Rep., 2303; Stroh v. South Covington & Ry. Co., 25 Ky. Law Rep., 1402; L. & N. v. Mason, 24 Ky. Law Rep., 1623.)</p> <p>We submit that there was evidence of negligente in the starting of the car with -a jerk, and this question was properly submitted to the jury by the instructions, and in such case the verdict of the jury should stand.</p>

CASE 82. — ACTION BY H. T. HESSIG AGAINST CATHERINE HESSIG’S ADMINISTRATOR AND OTHERS. — Appeal from McCracken Circuit Court. W. M. Seed, Circuit Judge. On motion to ex-tend an order granting a cross-appeal so as to apply to a person .not- a party to the appeal. —

<p>CASE 83. — MANDAMUS PROCEEDING BY J. P. SIDEBOTTOM AGAINST S. W. HAGER, AUDITOR OP STATE, TO COMPEL THE ISSUANCE OP A WARRANT POR THE PAYMENT OP A CLAIM. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>Charles C. Marshall, Special Judge.</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>1. In this case the governor simply signed a proclamation of reward on blank and when the parties appeared asking that a proclamation issue the private secretary to the governor filled in the blanks and issued the proclamation.</p> <p>2. We contend that this is a delegation of authority which is beyond the power of the chief executive, or if an assumption on the part of the private secretary, is no less void than if the power was attempted to be delegated. It is not the official act of the governor.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., 1932; Ringo v. N. P. Bank’s Trustee, 101 Ky., 95; Public Officers Troop, secs. 536, 571, 572; Mecbem on Public Officers, secs. 567, 609; Constitution, sec. 69; A. & E. Eney. of Law, 2 Ed., vol. 23, p. 366; Mann v. Richardson, 66 111., 484; Sheehan v. Gleeson, 46 Mo., 100; State v. City of Patterson, 34 N. J. L., 163; Hyde v. Joyes, 4 Bush, 464; State v. Hastings, 10 Wis., 531; Inre Tod 76 Am. St. Rep., 616; 12 South Dak., 386.</p> <p>POINTS AND CITATIONS.</p> <p>1. The defendant had lost the right to answer by failing to . answer in time under the Practice Act.</p> <p>2. The answer offered not a defense to the petition, — res- judicata,— -estoppel, — verity of official act and record.</p> <p>CITATIONS.</p> <p>Practice Act of March 29, 1902, now Code sec. 367A; Acts 1873 Ch. 736 as amended by the Act approved March 16, 1906,— Acts of 1906, p. 260; Cyc. vol. 16, pp. 808, 809, secs. 2 and 3, p. 634; Ky. St., secs. 1625, 3760; Auditor v. Ballard, 9 Bush, 574, citing Wentworth v. Day, 3 Met. Mass., 352. and Story on Contracts, sec. 380; Dawkins v. Sappington, 26 Ind., 199; Coffee v. Comlth., 18 Ky. Law Rep., 696; Cox v. Gill, 83 Ky., 669; Keith v. Feder, 10 Ky. Law Rep., 588 ;■ Dowell v. Mitchell, 82 Ky., 47; Davis v. Jenkins, 93 Ky., 253-8; Tichenor v. Yancey, 89 Ky., 508; Thomas v. Ireland, 88 Ky., 581; State ex Rel Miller v. Barber, 4 Wyo., 409, 27 L. R. A., 45; Sherman v. Langham, 92 Tex., 13; 30 L. R. A., 258; State ex rel No. & C. Banking Co. v. Heard, 47 L. R. A., 512; Morford v. Territory, 10 Okla., 741, 54 L. R. A., 513; Megenau, &c. v. City of Fremont, 80 Neb. 843, 9 L. R. A., 208; State N. C. v. Lewis, 107 N. C. 967, 11 L. R. A., 105.</p>

<p>CASE 84. — MOTION FOR MANDAMUS IN APPELLATE COURT BY JAMES MONTGOMERY AGAINST CYRUS VIERS, JUDGE OF THE HARDIN QUARTERLY COURT. —</p> <p>Motion made in Kentucky Court of Appeals—</p>

<p>CASE 85. — ACTION BY JOHN C. WENTZ AND OTHERS AGAINST M. S. WARD, SHERIFF OF HARLAN COUNTY TO ENJOIN THE COLLECTION OF TAXES —AND ACTION BY THE COMMONWEALTH FOR USE, &C. AGAINST WENTZ AND OTHERS TO HAVE LANDS ASSESSED AS OMITTED PROPERTY.—</p> <p>Appeal from Harlan Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>From judgments in favor of Wentz and otters the other parties appeal —</p> <p>AUTHORITIES.</p> <p>I. Petition defective, description. (Chambers v. Adair, 62 S. W., 1128; Acts of 1506, p. 101, sec. 16.)</p> <p>2. Does not show equity. (Bell’s Trustee v. City of Lexington, 85 S. W., 1081; City of Louisville v.Board of Trade, 90 Ky., 409.)</p> <p>3. Allegations as to notice. (Acts 1906, p. 150.)</p> <p>POINTS AND AUTHORITIES.-</p> <p>1. The action of the board of supervisors in raising the valuation of appellee’s property was without notice or entry of appearance on the part of appellees and was void. (Mt. Sterling Oil & Gas Co. v. Ratliff, 104 S. W., 993; Bell’s Trustee v. Lexington, 85 S. W., 1081; Negley v. Henderson Bridge Co., 21 Ky. Law Rep., 1154; Wood v. Wood, 1 Ky. Law Rep., 358.)</p> <p>2. The petition is good and sufficient to uphold the judgment and can not now be objected to. (Ford, Eaton & Co. v. Harris, 19 Ky. Law Rep., 1236; Chamber v' Adair, 23 Ky. Law Rep., 373; Louisville v. Louisville Board of Trade, 12 Ky. Law Rep., 349, &c.) Davis, Moody & Co. v. Wiley, 3 Ky. Law Rep., 316.)</p>

<p>CASH 86. — ACTION BY MARY GAMBRELL AS ADMINISTRA-TRIX OF FRANK GAMBRELL, DECEASED, AGAINST FRANK GAMBRELL TO RECOVER PERSONAL PROPERTY. —</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals —</p>

<p>1. Landlord and Tenant — Forcible Detainer — Appeal and Trial De Novo — Liability on Traverse Bond.— Under Civil Code Prac., section 464, providing that if a traverse bond shall be filed in forcible detainer under section 463, and the traverser shall fail to prosecute his traverse with effect, he and. his sureties shall be liable for withholding possession and the reasonable expenses of the traversee, a recovery of rents on a traverse bond filed by a tenant cannot be had up to the time the next tenant .takes possession, but is confined to the time that the traversee is kept out of possession by the traverser.</p> <p>2. Same — Civil Code Prac., section 464, providing that if a traverse bond shall be filed in. forcible detainer under section 463, and the traverser shall fail to prosecute his traverse with effect, he and his sureties shall be liable for withholding possession and the reasonable expenses of the traversee, does not authorize a recovery on a traverse bond filed by a tenant of the sum paid by the landlord to compromise a claim for damages for failure to place another in. possession of the property due to the tenant’s failure to surrender possession.</p> <p>3. Same. — Civil Code Prac., section 464, providing that a traverse bond shall be filed under section 463, does not authorize a (recovery on such bond filed by a tenant of the sum paid by the landlord to a real estate agent to obtain another tenant.</p>

<p>CASE 88. — PROSECUTION AGAINST JOHN B. ETLY FOR MURDER. —</p> <p>Appeal from Jefferson Circuit Court; Criminal Division.</p> <p>Joseph Pryor, Judge.</p> <p>Defendant convicted and appeals —</p> <p>(No briefs — record out of office.)</p>

<p>1. Railroads — Regulations—Separate Compartments for White and Colored Passengers — Street Railroads — Interurban Railroads. — While a street railroad operating within the territory to which its charter confines it, is n-ot required by statute to furnish separate compartments for white and colored passengers, an interurban railroad must do so, and it cannot evade the performance of this duty by leasing its road to a street railroad or other railroad.</p> <p>2. Same — A street rail-road company operating interu-rban cars, violating Ky. Stats., 1903, section 795, requiring separate compartments for white and colored passengers- with proper notices indicating the race by which they are to be used, cannot rely on a want of authority to operate the road as a defense.</p> <p>3. Corporations — Criminal 'Prosecutions — Defenses—Ultra Vires. —A corporation indicted for a statutory offense is estopped from pleading that the aot constituting the offense was ultra vires.</p> <p>4. Criminal Law — Elements-—Intent—Statutory Offenses. — Where a railroad company ran -its interurban cars without having on each compartment for the white and colored races a sign indicating by. which, race the compartment was to be used, as required by statute, it will be presumed that it knowingly and willfully violated the statute.</p> <p>5. Railroads — Operation—Companies Liable for Injuries — Lessors and Lessees. — Even if a lease by a railroad company of its road to another company was without authority, it will be civilly liable for any breach of duty by the lessee in the operation of the road resulting in public or private injury.</p> <p>6. Criminal Law, — Elements—Intent—Statutory Crimes. — Where the Legislature has declared an act unlawful, one doing’ the act will be charged with a criminal intent only where it was voluntarily done.</p> <p>7. Railroads — Regulations—Offenses—Persons Liable — Lessor Company. — A railroad company which leased its road to another company was not criminally liable for the act of the lessee in running its, cars over the road, in violation of Ky. Stats., 1903, section 795, requiring interurban roads, etc , to indicate by appropriate notices which compartments are provided for white and colored passengers, in the absence of knowledge by it when executing the lease that the lessee would violate the statute; ,and it was immaterial whether or not such lease was valid.</p>

<p>CASE 90 — ACTION BY THE COMMONWEALTH AGAINST B. P. FRENCH IN WHICH IT IS SOUGHT TO COLLECT DAMAGES ON A FINE* AGAINST FRENCH WHICH HAD BEEN REMITTED BY THE GOVERNOR. —</p> <p>Appeal from Clark Circuit Court.</p> <p>James M. Benton, Circuit Judge.</p> <p>The Commonwealth, appeals from'a judgment dismissing its claim interposed on defendants motion to Vacate a judgment against him. —</p>

<p>1. Partnership — Commencement and Duration — Partnership at Will. — A contract of partnership to last during the mutual will of the parties is valid; the mere fact that the period of its continuance is indefinite not rendering it void.</p> <p>2. Partnership at Will — Dissolution.—Either partner may at any time, at his option dissolve a partnership at will, without a concurring liability for damages to his copartner, however serious the loss occasioned thereby.</p> <p>3. Interests in Profits — Evidence—Presumptions.—The presumption is that partnership profits are to be equally divided, notwithstanding the contributions to the firm capital are not equal, and whether or not the partners are on a pa-r regarding skill, connection, or character, or whether or not they have labored equally for the benefit of the partnership.</p> <p>4. Capital of Firm — Dissolution.—A partner -who furnishes no capital, but contributes merely his time, skill, and services to the business, is not entitled on dissolution to any part of the firm capital, but must look for his compensation to his share, of the profits.</p> <p>5. Advances- to Firm by Partner. — Excess of capital advanced should be restored from the firm assets to the partner -advancing; unequal contribution being sufficient to contradict the idea- of equal division of the capital.</p> <p>6. Capital of Firm — Dissolution—Interest in Capital — Sufficiency of Evidence. — In an .action between parties for the settlement of the partnership affairs, defendant held not entitled, under the evidence, to a half interest in the firm capital.</p> <p>7. Judges — Special Judges — Disqualification to Act — Waiver of Disqualification or Objections. — The objection that special judge selected by the parties failed to take the oath of •office was waived, when not raised during the trial.</p>

<p>1. Damages — Personal Injury — Amount.—Where plaintiff was knocked senseless, his body bruised and cut, his ankle badly injured, and as a result he was confined to his bed for several weeks, the general condition of his health was greatly impaired, and his capacity to labor largely reduced, a verdict of $3,000 as compensation was not excessive.</p> <p>2. Railroads — Duty to Protect Crossing. — Not only the company owning a railroad, but a company running over it, is responsible to a third person for failure to have a crossing in a busy part of a city protected, notwithstanding a contract between the two placing the duty on the owner.</p> <p>3. Crossing Accident — Gross Negligence. — There is gross negligence authorizing punitive damages', where, through reckless inattention to duty of one stationed at a railroad crossing to operate the gates, they are left up when a train is .approaching, and a team is allowed to drive in front of it; a view of it from the team being obstructed by cars on a siding.</p> <p>4. Punitive Damages. — Punitive damages, allowable in case of gross negligence, may be allowed for omission, as well as commission</p> <p>5. Corporations — Torts—Agent’s Acts — Punitive Damages. — Punitive damages may be allowed against corporations for acts of their agents.</p> <p>6. Punitive Damages — Amount.—The amount of punitive damages is in the sound discretion of the jury, with the limitation that they must not be so excessive as to indicate influence by passion or prejudice, and must have some reasonable relation' to the injury and the cause o£ it; so that, the actual damages found being $3,000, and the gross negligence being in leaving up the gates at a railroad crossing, allowing a team to get in front of a train, an allowance of $2,000 punitive damages is not excessive.</p> <p>7. Trial — Joint Tort-Feasors — Separate Verdicts. — Where joint tort-feasors are sued in the same action, separate verdicts for differént amounts may be awarded against them, and punitive damages allowed against one, and not against the other.</p> <p>8. Railroads — Crossing Accident — Contributory Negligence — ■ “Ordinary Care.” — One driving onto a railroad -at a crossing, where the gates have negligently been left up though a train is approaching, has no right to rely exclusively on the operatives of the gates or of the train in looking out for his safety and giving him notice, but he must use “ordinary care,” such care as an ordinarily prudent person would use under the same or similar circumstances, to discover the approach of the train and for his own safety; and, if he does so rely on the others, without using such care, he is guilty of contributory negligence.</p> <p>9. - Negligence — Definition.—Negligence is the failure to exercise ordinary care.</p> <p>10. “Gross Negligence.” — “Gross Negligence” is the failure to -exercise slight .care.</p>

<p>1 Dower — Election Between Homestead and Dower — Effect.—A widow may elect to take either homestead or dower in the land of her deceased husband, and where she takes the homestead she has no interest, except the right to occupy it so long as she lives.</p> <p>2. Homestead — Right of Widow — Abandonment by Sale. — Where a widow elects to take homestead in the lands of her deceased husband, she abandons the same by an attempted sale thereof.</p> <p>3. Dower — Election by Widow — Change of Election. — Where a widow elects to take homestead, and abandons her right by an attempted sale, she cannot afterwards change her election and take dower.</p> <p>4. Sale by Widow. — Under Ky. Stats., 1903, section 2138, providing that a widow shall have an estate for life in one-third of the land left Dy her husband, where the widow elects to take dower, she need not occupy the property, but may sell her dower interest, and her vendee takes her estate.</p> <p>5. Election Between Homestead and Dower — Effect of Possession. —That a widow remains in the house -of her husband for a few years after his death is' not conclusive that she ’has elected to take a homestead, instead of dower.</p> <p>6. Sale by Widow. — Where a widow, having made no election between homestead and dower, conveyed here “entire ‘interest” in the property of her deceased husband, "being the life estate in the property hereby conveyed,” her grantee took a dower interest.</p> <p>7. Executors and Administrators — Widow’s Quarantine — Conveyance. — Ky. Stats., 1903, section 2138, giving a widow one-third of the rents and profits of her husband's dowable real estate from his death until dower is assigned, and the right to the mansion house and yard, without charge therefor, until dower is assigned, is for the personal benefit of the widow, and her rights cannot be conveyed.</p> <p>8. Homestead — Rights of Infant Heirs — Election by Widow to Take Dower — Effect.—The widow’s election to take dower, or to abandon the homestead, cannot defeat the infant's homestead right in the property.</p> <p>9. Dower — Election by Widow — Rights- of Infant. — Where a widow elects to take dower, and it is of greater value than $1,000, she must make provision for the infant; but, if her dower is worth less than $1,000, the infant is given a homestead of $1,000, which must include the dower assigned to the widow, after which the remainder of the property is to be apportioned among the children, including the infant,</p> <p>10. Dower — Rights and Liabilities of Tenant — Rents of Premises. —In an action for rent! by an heir, it appeared that defendant occupied the premises under a conveyance to him of a dower interest, the owner of the premises having died, leaving, one infant and four adult children and a widow; the premises being a homestead of less than $1,000 in value.' Hel.d, that defendant should be charged for the rental value of the property, less tne value of the improvements .and taxes paid by him, after which the remainder should be divided as follows: One-third to himself, one-half to the infant, and the remaining one-sixth to the five children.</p>

<p>1. Injunction — Bond—Liability.—Under Civ. Code Prae. section 278, providing that an officer granting an injunction shall fix the amount and the terms of the bond to be given, or otherwise the bond shall obligate the party to pay the damages sustained, a bond executed by a party obtaining a temporary restraining order from the clerk, who did not fix the amount of the bond, conditioned on the obligors paying to the. adverse party the damages, “not exceeding-dollars,” sustained by reason of the injunction, if wrongfully granted, imposes a liability to indemnify the adverse party to the extent of the damage sustained by the wrongful issuance of the order; the quoted words being surplusage.</p> <p>2. ■ Pleading — Amendments — Refusal to Permit.— It is error to refuse to allow an amended petition containing matter germane to the cause of action set out in the original petition, offered by plaintiff before the filing of the answer.</p>

<p>CASE 95. — ACTION BY THE BOWLING GREEN OPERA HOUSE COMPANY AGAINST T. H. AULL. —</p> <p>Appeal from Warren Circuit Court.</p> <p>John M!. Galloway, Circuit Judge.</p> <p>From the judgment both parties appeal —</p> <p>We contend that a landlord or his assignee in attempting to dispossess the tenant acts at his peril, If it turns out that the tenant is not entitled to possession, the landlord is protected, if otherwise then the landlord has violated his covenant with the tenant and should be required to pay to the tenant all damages that the landlord has caused him, by reason of the breach of his covenant.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The name of one of five owners to a paper “submitting for your consideration” does not satisfy the statute of frauds. Differentiating the case from Winn v, Henry, 84 Ky. 48, wherein the reciting declared the purchase.</p> <p>2. Delivery was necessary. (McConnell v. Brown, 16 Ky,, 459; Newburger vi Adams, 92 Ky., 27; Myers v. Brown, 110 S- W., 402.)</p> <p>3. The judgment that this property was forcibly detained by Aull against the Opera House Co. during the existence of the alleged contract, is conclusive against the contract. (Beattie v. Curtis, 4 Ky. Law Rep., 352; Ligón v. Triplett, 32 B. Mon., 283; Bush’s heirs v. Hampton, 4 Dana, 84; Holtheide v. Smith’s guardian, 84 S. W„ 321.))</p> <p>4. If there was a verbal agreement to rent for 3 years it was 'invalid. (Poole v. Johnson, 101 S. W., 955; Wessels v. Rodifer, 97 S. W., 341; Moore v. Terrell, 111 Ky„ 297.)</p> <p>5. The reversion having been conveyed to the Opera House Co,, as an incident thereto, Aull became its tenant holding over. (Ky. Statutes, 2359; Epperson v. Blakemore, 2 Bush, 242,)</p> <p>6. Rent is an incident of the reversion. (Bourne v. Bourne, 92 Ky., 211; Breeding v. Taylor, 52 Ky„ 477; Cuyler v. Estes, 23 L. R., 1063.)</p> <p>7. It was the duty of Aull to vacate upon notice. (Ky. Stat., 2295.)</p> <p>8. Upon his failure to do' so he was liable for double rent. (Section 2293; Beynroth v. Mandeville, 5 Bush, 584.)</p> <p>9. Rent he would otherwise have had to pay, means reasonable rent. (Thompson v. Marsh, 2 Bush, 424.)</p> <p>10. The tenant’s moving upon the mandate of a court does not render the landlord liable for damages incident to such moving.</p> <p>11. The prosecution of an action for possession is not such a breach of the covenant for peaceable possession as to render the landlord liable in damages. Hegan Mantel Co. v. Cook’s Adm’r, 57 S. W., 929.)</p>

<p>1. Husband and Wife — Antenuptial Contract — 'Validity.—On an issue whether a wife was misled and deceived by her husband as to an antenuptial contract, evidence held insufficient to show such to have been the case.</p> <p>2. Same. — The intended marriage was a sufficient consideration to support an antenuptial contract, whereby the wife relinquished all right to dower and to share in the husbandfe personal estate and the husband relinquished ¡any interest in the wife’s estate.</p>

<p>1. Gaming — Loans for Gambling Purposes — Betting on Horse Races. — Ky. St. 1903, section 1955. as to the clause avoiding every contract, conveyance, transfer, or assurance, in consideration of money won, lost, or bet in any game, sport, pastime, or wager, has no application to a loan of money to be bet. by the lender on horses designated by the borrower.</p> <p>2. Same. — Betting upon- a horse race is not “gaming,’' within Ky St. 1903, section 1955, avoiding every contract in consideration of money lent or advanced for the purpose of gaming, but that word applies only to betting upon a game played, with cards, dice machine, wheel, or other contrivance.</p> <p>3. Same. — A loan of money to be bet by the lender on horses designated by the borrower is within the clause of Ky. St. 1903, section 1955, which avoids every contract in consideration of money lent or advanced at the time of any betting or wagering to a person then actually engaged in betting or wagering.</p>

<p>CASE 98. — ACTION FOR TAXES BY THE DISTRICT OF HIGHLANDS AGAINST THE CAMPBELL TURNPIKE ROAD COMPANY. —</p> <p>Appeal from Campbell Circuit Court.</p> <p>A. S. . Beery and C. W. Yungblut, Successive Judges</p> <p>Judgment for plaintiff. Defendant appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Acts of 1891-92-93, page 299, 990; Act of June 9, 1893; Acts of 1894, p. 324; Act of Nov. 11, 1892, p. 299; Ky. Stats., 4077; 31 Ky. Law Rep., 631; Act of March 22, 1894, p. 324; Act of March 15, 1906, p. 138; Act of March 19, 1898, p. 96; Ky. Statutes, 4095; 31 Ky. Law Rep., 1034.</p> <p>AUTHORITIES CITED.</p> <p>Sections 2 and 3 of the chapter of the District of Highlands; Ky. Stats., 4077; Frankfort, Lexington & Versailles Turnpike Co. v. Commonwealth, 82 Ky., 388; South Cov. & Cin. Ry. Co. v. Bellevue, 20 Ky. Law Rep., 1188; Ky. Stats., 4095; Board of Council, &c. v. Rairick, 19 Ky. Law Rep., 1415; Langdon-Creasy Co. v. Trustees Owenton, &e., 25 Ky. Law Rep., 823.</p>

<p>1. Husband and Wife — Separate Property of Wife — Liability for Debts of Husband. — Since land of the wife cannot be subjected to the payment of the husband’s debts, unless it has been set apart for that purpose in the manner provided by statute, neither can rent received by her from the land be subjected to such debts.</p> <p>2. Property of Wife — Liability for Debts of Husband. — The increase in value of land owned by a wife, and of stock and other personal property thereon which was represented by the labor and skillful management of the husband, was subject to his debts.</p> <p>3. Principal and Surety. — Remedies of Surety Against Principal— Execution. — Ky. St. 1903, section 4666, provides that, if the surety pays a judgment, he shall have a right to an assignment thereof from the plaintiff, and that, when the plaintiff' has been fully satisfied, such assignment shall entitle the surety to control the judgment for his own benefit against the other defendants. Held, that a surety paying a judgment and taking an assignment thereof may have execution thereon for the amount paid by him, with interest thereon from the date of payment, though in this particular the execution may not follow the judgment.</p> <p>4. Judgment — Action on Judgment — Limitations. — As a surety obtaining an assignment of a judgment against himself and his principal is substituted to all the rights of the judgment creditor, his right of recovery is ruled by the 15-year statute of limitations applying to judgments, and not the- 5-year statute.</p>

<p>1. Deeds — Showing Consideration — Burden o£ Proof. — Though, under Ky. St. 1903, section 472. providing that the consideration ot any writing may be impeached or denied by a verified pleading, the consideration of a deed may be contradicted, the recital in the instrument as to the consideration is prima facie the true consideration, and one asserting that such recital is- incorrect on account of mistake or fraud must prove his assertion by clear and% convincing evidence,</p> <p>2. Evidence — Hearsay.—Testimony of a witness that he ‘understood” from “some of the crowd” and construed what he heard to be to the “effect,” that a smaller a-mount than- that recited in a deed was the true consideration, was hearsay and inadmissible to vary the terms of the instrument,</p> <p>3. Consideration — Evidence — Sufficiency. — In an action by a vendor against his vendee to recover the price of the land sold, evidence held insufficient to show that the true consideration, was less than that expressed in the deed.</p> <p>4. Descent and Distribution — Conveyances by Heirs — Property Conveyed. — A deed by an heir to his coheir, in which the .property conveyed is described as- “all and singular his entire undivided one-fifth interest in all the real estate owned” by decedent, “embracing lands and town, lots in P. county, Ky , adjoining the.lands of J. A particular description of said property cannot now be given but embraces and includes all of said interest of party of the first part in said estate.” Held that, since the deed could be made certain by reference to extraneous evidence, the maxim of equity, “that is certain which can be made certain,” applies, and the deed conveyed all 1he lands owned by decedent at his death, and not merely such as might be left after payment of decedent’s- debts, and the grantor was liable on his warranty for lands- subjected by creditors of the estate to the payment of their claims.</p> <p>5. Covenants — Warranty — Breach — Dower. — A widow’s dower, being a mere life -estate, is not an incumbrance on lands of a decedent, and the existence of such dower right is not a breach of covenant of warranty in a deed by an heir to a coheir conveying the grantor’s interest in the lands owned by decedent at bis death.</p> <p>6. Title — Conveyance by Heir of Interest in Estate — Outstanding Title. — An outstanding superior title in -a third person to lands of a decedent’s estate, which title existed at the time of decedent’s death, does not constitute a breach of a covenant of warranty in a deed executed by an heir of decedent to a coheir conveying all the interest of the grantors in the lands owned by decedent at the time of his death.</p> <p>7. Garnishment — Operation and Effect — Effect as Between Defendant and Garnishee. — Where an heir conveyed his interest in decedent’s- estate to a coheir for an express consideration of $5,000, -and a creditor of the grantor, having a claim for less than $2,600 garnished the grantee, and such grantee alleged in his answer as garnishee that he owed the grantor $2,600, being the balance of the consideration, $3,000, on which $400 had been paid, and judgment was rendered against him on his answer, such judgment did not estop the grantor from insisting that the true consideration was the amount recited in the deed, since the grantor and grantee were not adversaries in th-e garnishment action, and their rights under the deed was not an issue for determination therein, nor cou'd the grantor have controverted the disclosure conceding it to be false in stating the -consideration too low.</p>

<p>1. Carriers — Carriage of Live Stock — Action for Injuries — Pleading — Variance.—Civ. Code Prac. section 129, provides that no variance is material which does not mislead a party .to his prejudice. Section 130 provides that, where a variance is not material, the court may order an amendment. Section 134 provides that the court must in every stage of an action disregard any error or defect which does not affect the substantial rights of the adverse party. In an action against an initial carrier for injuries to live stock during transportation, plaintiff alleged an oral contract, but failed to establish such contract, and judgment in his favor was based on a written contract set up in defendant’s answer. The evidence clearly-showed that the injury occurred on defendant’s line. Held, that the variance was immaterial.</p> <p>2. Appeal and Error — Review—Harmless Error — Rulings Favorable to Party Complaining. — In such case defendant, having set up the written contract, could not complain that the ruling of the trial court on its motion for a peremptory instruction was erroneous on account of such variance, since its defense on that ground was upheld.</p> <p>3. Presentation of Questions in Trial Court — Variance—Amendment and Continuance. — A contention of defendant that, on account of a material variance between plaintiff's pleading and proof, it was error to overrule defendant’s motion at the close of. the evidente for a peremptory instruction, cannot be considered on appeal, where defendant failed to call the attention of the court to the variance during the trial, so as to enable the court to order an amendment and to grant a continuance if necessary.</p> <p>4. Pleading — Amendment — Conforming to Proof. — In an action . against a carrier for injury to live stock during transportation, it was not error for the court, after a motion by defendant, at the close of the evidence, for a peremptory instruction, to permit plaintiffs to amend their petition by inserting an allegation as to the consideration for the contract of shipment.</p> <p>5. Defects and Objections — Cure by Pleadings of Adverse Party. —While an exhibit may not avail to support the pleading of the party who flies it, it can be used by the adverse party to supply omissions in his pleading.</p> <p>6. Carriers — Carriage of Live Stock — Actions—Evidence.—In an action for injuries to, an interstate shipment of live stock during transportation, evidence held sufficient to show that the injuries were caused by the failure of the carrier properly to feed and otherwise care for the animals, in violation of Rev. St. U. S. section 4386 (U. S. Comp. St. 1901, p. 2995), requiring a carrier of an interstate shipment of live stock to unload, feed, water, and rest the animals at least once in every 28 hours.</p> <p>7. Connecting Carriers — Joint and Several Liability. — Connecting carriers of live stock are jointly and severally liable for injuries to the stock resulting from failure to properly feed the same during transportation, where such neglect begins ' on the initial line >and continues to the point of destination.</p>