Volume 131 — Kentucky Reports

CASE 1 — ACTION BY R. P. P. TRIMBLE AND OTHERS AGAINST DAN KING FOR OBSTRUCTING A PASS-WAY. Appeal from Logan Circuit Court. W. P. Sandidge, Circuit Judge. Judgment for defendant, plaintiff’s appeal SUMMARY.

<p>1. Trial — Taking Case From Jury — Credibility of Witnesses. — In an action against three persons as partners, plaintiff testified as to .statements made by all three of the defendants, and was not contradicted as to the statements made by two of t-bem, but was contradicted as to the statements made by the third- defendant. Held, that the evidence was sufficient to raise the issue of the credibility of the witnesses, and therefore it was proper to refuse to- give a peremptory instruction in plaintiffs’ favoir against the two defendants making the uncontradicted statements:</p> <p>2. Gaming — Remedies of Parties — Pleading.—In an action to recover money lost at gambling, the petition stated that defendants were proprietors of the place where the game was carried on, and that they persuaded plaintiff to. visit their place, land that he lost a stated amount by playing poker in such place. Held, that it was immaterial whether the game was fairly played, and therefore evidence of its unfairness was properly excluded.</p> <p>3. Courts — Records—Amendment—Nunc Pro Tunc. — In an action •against a number of person®, it was agreed before trial that the allegations of the petition as to two of the defendants who had not answered should he traversed of record, but by oversight this was not done at the time. Held, that the court after the trial could enter an order nunc pro tunc making the record conform to the agreement previously made.</p> <p>4. Gaming — Remedies of Parties1 — Instructions—“Inviting, Persuading, or Inducing.” — In am action to recover money lost in playing poker, the court instructed that if defendants invited or otherwise induced plaintiff to visit their place, and that a poker game was being carried on by defendants, ,amd that while playing said game plaintiff lost at any time and within 24 hours $5 or more, a verdict should be returned for the amount of plaintiff’s losses not exceeding the sum sued for, and that by “inviting” or “inducing” is not meant merely personal application to the person invited, but any conduct that induces such person to visit such place. Plaintiff requested an instruction that by “ ‘inviting, persuading, or inducing,’ is not meant that personal application be made to such person visiting such place, but the mere setting up and furnishing such a place to carry on a game of chance is sufficient invitation.” Held, that it was error to refuse this instruction.</p>

<p>1. Deeds — Construction—Estates Conveyed — Pee Simple — Statutory Provisions. — A deed conveyed laud and other property to the grantor’s sister as trustee for the benefit of the grantor’s children “and to nurture, support and educate them,” and empowered her to sell and convey the property to “whomsoever she may think proper, and to manage and control said property hereby conveyed, or its proceeds as she may deem best in her discretion for the use of my children aforesaid.” Held,wthat the deed conveyed a fee-simple estate in the land to the trustee, especially in view of Ky. Stats. 1903, section 2342, providing that, unless a different purpose appear, every esiate in land created by deed without words of inheritance shall be deemed a fee simple or such other estate as the grantor had power to dispose of.</p> <p>2. Trusts — Disposal of Trust Property — Conveyance to Cestui Que Trust. — The trustee having power to convey the land to whomsoever she might think proper for the benefit of the cestui que trust, her absolute deed thereof to the infant cestuis que trust was valid, and conveyed the fee-simple estate.</p> <p>3. Decent .and Distribution — Persons Entitled1 — Taking Subject to Mortga-ge^Statutory Provisions. — After the trustee had conveyed the land to the cestuis que trust, one of them died a minor and the other died after reaching his majority, and having g-iven a mortgage on the land. Held, that thfeir mother, the grantor, who as their heir at law took the land under Ky. Stats. 1903, sections 1393-1401, relating to descent of land of persons dying intestate, took subject to the mort- . gage on the cestui que trust’s half interest.</p>

<p>1. Healtib' — Building Regulations. — The right of an owner of land •in a populous community to erect buildings on the land intended for the resort of great numbers pf people is subject' to the police power of the state.</p> <p>2. Municipal Corporations — Police Power — Building Regulations —Reasonableness.—An ordinance of a municipal corporation requiring that theaters thereafter erected shall have at least five separate exits from the main auditorium floor, one In front at least 12 feet in the clear, and two on either side at least 5 feet in width, the front corridor leading to the street to- be fireproof and not more- than feet in length, and, if balcony exits empty into such auditorium or corridor, sucib, corridor snail be widened 10 feet, is not oppresssive and unreasonable.</p> <p>3. Building Regulations — Violation—Defenses—Effect of Permit. —An ordinance of the city of Louisville provides that theater buildings thereafter erected “shall have at least five separate >and distinct exits from the main auditorium floor, one ini front at least 12 feet in the clear, and two on either side at least 5 feet in width; front exit, if not immediately on the public street, shall lead to the public street through a corridor or passageway, which corridor or passageway shall be fireproof, no less in width than the exit, and not over 30 feet in length; and if balcony exits empty into said passageway, or into auditorium and thence into passageway, it shall be widened 10 feet.” Another ordinance of said city provides-that the building inspector shall have power to pass on any questions arising under the building ordinances, provided that and in case -of objection to his d-ecis-ions the matter sha be referred to th-e board of public safety, and the decision of such board shall be final and conclusive. Kentucky Statutes, 1903, section 2861, authorizing the creation of the board of public safety, confers on that board exclusive control, under the ordinances of the general council, of all matters relative to the department of buildings. The building inspector having rejected the plans for a proposed-theater building, the applicant for the permit appealed to the board of public safety, and suoh board granted the permit. Held, that the- provisions of the ordinance as to the exits were mandatory, and it was not within the power of the board of public safety to set aside its requirements, an-d, the permit issued by such board being no more than a mere license, the applicant therefor was liable to prosecution for violation ■of the ordinance, though the permit was not withdrawn and the applicant had partially constructed his building.</p> <p>4. Issuance of Permit — Conclusiven-ess of Decision of Officers.— If the ordinance conferring power on the board of public safety could be construed as authorizing them to1 waive the mandatory provisions of the building regulations enacted by the council, such ordinance would be violative of the city charter and the state Constitution</p>

<p>CASH 5. — ACTION BY THE JOHN KING COMPANY AGAINST THE LOUISVILLE & NASHVILLE RAILROAD CO., ON A CONTRACT FOR DIGGING PITS.</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. P. Birkhead, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>SYNOPSIS OP POINTS RELIED ON FOR REVERSAL.</p> <p>1. The original contract sued on was in writing, but was modified by a subsequent oral agreement between the parties.</p> <p>2. The defense relied on: The answer to the petition and the amended petition pretends to be a traverse; if to be considered a traverse, the denials are most disingenuously made. The suit was properly brought at law, but the court over appellants objection transferred it to equity and therein committed a reversible error. (Section‘6, Civil Code; Newman’s Pleading and Practice; Jones v. Letcher, 13 B. Monroe, 363.)</p> <p>3. Appellants were entitled to a jury trial. (Creader v. Walker, 7 Bush 1; 15 Ky. Law Rep. 497; O’Connor v. Henderson Bridge Co., 95 Ky. 633; 16 Ky. Law Rep. 244; 78 Ky. 435.)</p> <p>4. The court erred to the prejudice of appellants in refusing to instruct the jury as in instructions A, B and C offered by plaintiffs and in submitting questions to be answered by the jury on its own motion.</p> <p>5. The lower court erred to the prejudice of appellants in refusing to allow them to dismiss the action without prejudice after the jury had returned its answer to one of the questions submitted by the court. (Vertree v. M. N. & M. R. R. Co., 95 Ky. 314; Ringo v. Farmers Bank, 101 Ky. 91; Reese’s Admr. v. Utsey, 113 Ky. 839; Platter v. Board, &e., 103 Ind. 360; Pence v. Garrison, &c., 93 Ind. 345; Bosey v. Gallagher, 20 Wallace U. S. Supreme Court, 670.)</p> <p>6. Cases exactly in point' as to the error of the lower court in transferring the case to equity. (Tucker v. Russell, 26 Ky. Law Rep. 1086; Meek v. McCall, 80 Ky. 371.</p> <p>7. There was no. trial of this cas© in the lower court either by the court or jury.</p> <p>8. The petition states a good cause • of action, (Munroe v. Perkins, 20 American Decisions 475; 1 American Decisions 92; 8 American Decisions 696; Hayward v. Leonard, 19 American Decisions 272; Beach on Modern Law of Contracts.)</p> <p>9. A written contract may be modified by subsequent oral agreement if the parties entered into the written contract under a mistake or misapprehension of the facts, and where it would be inequitable and unjust to require a specific performance, and such an agreement is binding on the parties. (Munroe v. Perkins, 20 American Decisions 475; Lynch v. Henry 7o Wis. 631; Ruege v. Gates, 71 Wis. 634; Beach on Law of Modern Contracts, 198 and Note 1; King v. Duluth Railroad Co., 63 N. W. Rep. 1105; Michaud v. McGregor, 63 N. W. Rep. 479.)</p> <p>10. The best considered case showing that plaintiffs petition states a good cause of action is Munroe v. Perkins, 20 American Decisions 475, to which case the court's attention is especially invited.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The alleged verbal contract sued on is void for want of consideration and appellee’s demurrer to the petition as thrice amended should have been sustained. (McNutt v. Loney, 153 Pa. St. 281; Merchants’ Bank v. Davis, 3 Ga. 112; Bryan v. Brazil, 52 Iowa 350; Munroe v. Perkins, 20 Am. Dec. 475 (Mass); Knight v. Watts, 21 Va. 175; McCarty v. Hampton Bldg. Association, 61 la. 287; Smith v. Whildin, 10 Pa. St. 39.)</p> <p>2. The case was properly transferred to equity the trial court expressly reserving on the common docket for trial by the jury the strictly legal issues involved; and after verdict appellants' motion to dismiss without prejudice came too late and the circuit court did not err in overruling it. (Secs. 10, 11, 12 and 371 of the Civil Code; Hill v. Phillips, 87 Ky. 169; Carder v. Weisenburgh, 95 Ky. 135; O’Conner v. Henderson Bridge Co., 95 Ky. 633; Small Reeves, 104 Ky. 289; Meek v. McCall, 80 Ky. 371; Reese v. Youtsey, 113 Ky. 839; Biakey v. Johnson, 13 Busk 197; Kennedy v. Ten Broeck, 11 Busk 241.)</p> <p>3. Tke verdict of tke jury, deciding tke strict’y legal issues submitted to tkem by tke court, was not advisory, but was conclusive and binding on tke court, and could not be set aside except on tke ground tkat it was palpably against tke evidence; so that appellants’ motion to set aside the verdict and grant them a new trial was properly overruled, they nowhere complaining tkat tke finding of tke jury was contrary to or not sustained by tke evidence.</p> <p>; 4. There was a total failure of proof in support of appellants’ claim tkat tke written contract of May 18, 1905, was rescinded, and a new verbal contract substituted therefor.</p>

<p>1. Parties — Plaintiffs—Misjoindier.—Where a petition charges that the contract sued on is a joint .enterprise in behalf of the plaintiffs, and. suit is brought only on one cause of action, there is no misjoinder of parties.</p> <p>2. Action — Misjoinder.—Where a petition charges, in behalf of the plaintiffs, that the contract sued on is a joint enterprise, and suit is brought only on one cause of action, there is no misjoinder of causes of action.</p> <p>3. Harmless Error — Pleading.—Where a motion to make a petition more specific as to the amount of profits and commissions lost by plaintiff by defendant’s failure to perform its contract might be sustained, a refusal to sustain such a motion is harmless where it is not claimed that defendant was surprised Dy the evidence introduced, or its rights prejudiced, and the instructions only authorized a recovery of profits.</p> <p>4. Trial — Reception of Evidence — Order of Proof. — In an action on a contract by an agent, proof of declarations of the agent las to his agency and authority may be introduced before proof that the person making the declarations was in fact an agent for the purpose of making the contract, subject to exclusion if the fact of agency is not established by other . evidence.</p> <p>5. Harmless Error — Exclusion 'of Evidence. — The exclusion of proper evidence is not prejudicial error, where the facts excluded were fully established by other witnesses.</p> <p>6. Sales' — Breach of Contract — Action by Buyer — Evidence— Damages. — In an action for breach of contract of sale of tobacco, evidence held to sustain the amount of the verdict.</p> <p>7. Verdicts — Sufficiency of Evidence. — Where there is proof justifying a verdict, tne court on appeal will not set the verdict a.ide as excessive.</p>

<p>CASE 7. — ACTION BY EDNA MAY PITTS AGAINST THE NELSON-BETHEL CLOTHING COMPANY FOR DAMAGES FOR PERSONAL INJURIES</p> <p>Appeal from Jefferson Circuit Court (Common Pleas BrancJi, Second Division).</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The rule as to assurance of safety is subject to the rule as to proximate cause. The particular danger or defect as to which the assurance is given must be the pproximate cause of the injury. (Shemwell v. O. <& N. R. R. Co., 117 Ky. 556; Burlington R. R. Co. v. Liebe, 17 Cal. 280; International, &c., Ry., v. Turner, 3 Tex. 487; Showalter v. Fairbanks, 88 Wis. 376; Hilje v. Hettich, 95 Tex. 321; Illinois Steel Co. v. Mann, 197 111. 186, vol. 1 Labatt on Master and Servant 1184; Lowcock v. Franklin Paper Co., 169 Mass. 313.)</p> <p>2. Tihe rule of assumption of risk, should have been applied in this case, and a peremptory instruction should have been granted by the- court in favor of appellant. (Vol. 1 Labatt on Master and Servant, p. 589; Wilson v. Chess & Wymond Co., 117 Ky. 567; Kelly v. Barber Asphalt Co., 93 Ky. 363; McCormick Harvesting Machine Co. v. Liter, 23 Ky. Law Rep. 2154; Mellott v. L. & N., R. R. Co., 101 Ky. 212; McGhee v. Bell, 19 Ky. Law Rep. 267; Duncan v. Garnert Lumber! Co., 25 Ky. Law Rep. 1039; Anderson v. Akeley Lumber Co., 47 Minn. 556; Hayden v. Smithfield Mfg. Co., 29 Conn. 548; jones v. M. & I. Co., 92 Mo. 565; Rooney v. S. & D. Cordage Co., 161 Mass. 153; Goodes v. B. & A. R. R. Co., 162 Mass. 288; Daniels v. New England Cotton Yam Co., 74 N. E. Rep. 332; Reis v. Struck & Bro., 23 Ky. Law Rep. 1113; Lindsay v. Hollenbach & May Contract Co., 29 Ky. Law Rep. 70.)</p> <p>The following facts were well established by the testimony:</p> <p>1. The belt had been patched seven or eight times by Miss Pitts on the morning she was injured.</p> <p>2. Her hair was caught by one of the hooks in the belt and drawn around the cylinder.</p> <p>3. Her hair was properly coiled and done up on the back of her neck.</p> <p>4. She was without experience in mending belts and placing them on the wheel, and upon complaint by her was assured by the defendant’s agent in charge that it was safe for .her to. do that work.</p> <p>AUTHORITIES CITED.</p> <p>Mer. Ice & Cold Stor. Co. v. Barghold, 33 Ky. Law Rep. 492; R. R. Co. v. Wallace, 101 Ky. 637; Henderson Trust Co. v. Stewart, 108 Ky. 171; Lasch, &c., v. Stratton, &c. 101 Ky. 672; L. & N. R. R. Co. v. Foley, 15 Ky. Law Rep 17; L. & N. R. R. Co. v. Schivells, 14 Ky. Law Rep. 903; Quaid v. Cornwall, 13 Bush 601; I. C. R. R. Co. v. Liangan, 25 Ky. Law Rep.. 500; Cumb. Tel. & Tel. Co. v. Harp, 28 Ky. Law Rep. 909; Same v. Metzer, 29 Ky. Law Rep. 1024; Thompson on Negligence, vol. 4, sec. 4664.</p>

<p>CASH 8. — PROCEEDING BY THE COMMONWEALTH OP KENTUCKY AGAINST W. H. NICKELS AND OTHERS TO VACATE A PATENT FOR 34,800 ACRES OP LAND OBTAINED PROM THE LETCHER COUNTY COURT ON FEBRUARY 28, 1874.</p> <p>Appeal from Letcher Circuit Court.</p> <p>Judgment for the plaintiff. Defendant appeals.</p> <p>1. The patent under which appellants Altemus, McGeorge and Pepper claim cannot be impeached by evidence de hors the patent; they being bona fide purchasers for valuable consideration from the patentee. (Dembitz on Land Title, vol. 1, 503.)</p> <p>2. The prtent sought to be vacated is well defined, accurately surveyed, certain as to- location, lines and cor- ers and makes no exclusions; and only two questions can arise in this case on the record and agreed state of facts:1 (1) Was the survey and patent authorized by law? (2) If so-, is there anything on the face of the patent that renders it void?</p> <p>3. To right a wrong, redress a grievance or do justice, the courts are at iall times open. The only thing demanded by appellees in this case, in the name of the Commonwealth, is to- absolutely take from appellants a thing they have in good faith acquired and paid tor, and give it to the appellees — not as a matter of right or justice,, but as a matter of conquest.</p> <p>4. The appellees, “we the good citizens of Letcher county,” demand the carcass shall be divided among us.</p> <p>While it is true when this survey was made, a person could obtain more toan one of 200 acres, but there had to be a survey of each, the object being to fócate the land — make it more definite — but the law did not permit a blanket survey. If one could Lave a paper survey (as this one is) of 34,800 acres, hecould have one for a whole county or ecen a state. If in a certain event or upon a certain state of case a patent shall be void, you may show it de hors the patent. If the statute- denounces it as void in a certain state of case, inquiry as to it may be made by parol. Each 200 acres required by law a survey, and any patent not in -conformity thereto was- void. Altemus, etc., were bound to take notice of it; moreover Nickels is an appeilant. Again, the Commonw-ealtlh. may show fraud, or what is tantamount to it. All knew that in 1873 there was no such body of vacant land as 34,800 acres. The patent w-as against public policy, calculated to stir up strife and litigation. What was public policy here as to lands in 1800, was not in 1873. It changes with time and development. Large grants in an early day to one person, were not contrary to our interests; speculative -spirit was not then abroad; the land was soon sold off in smaller portions and came to the actual settler as if the state had granted it to him; but for several years prior to and about 1873 the legislation shows public policy was against land grabs, and blanket patents, and the quantity of a grant and number to a person were restricted, and a patent sweeping in its lines- — the claimants under it never in possession, including a hundred other grants and homes, certain to stir up untold -strife and litigation, -should be held void.</p>

<p>CASE 9. — ACTION BY R. C. WHAYNE’S ADMINISTRATOR AGAINST THE PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY OF NEW YORK FOR THE COMMUTED VALUE OF SIX POLICIES OF INSURANCE OF $20,000 EACH.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for plaintiff. Defendant appeals-</p>

<p>CASE 10. — PROSECUTION AGAINST AUGUST SCHNELL FOR VIOLATING A CITY ORDINANCE.</p> <p>Appeal from Jefferson Circuit Court; Criminal Division.</p> <p>Joseph Pryor, Judge.</p> <p>From an order dismissing the warrants the city appeals</p>

<p>CASE 11. — TWO PROCEEDINGS BY THE CITY OP LOUISVILLE AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. TO CONDEMN A RIGHT TO EXTEND ' CERTAIN STREETS ACROSS THE RAILROADS RIGH. OP WAY.</p> <p>Appeal from Jefferson Circuit Court; Common . Pleas Branch (First Division).</p> <p>Emmet Field, Judge.</p> <p>From a decree assessing damages in each case the railroad company appeals</p>

<p>CASE 12. — ACTION BY W. A. WARD AGAINST THE CITIZENS LIFE INSURANCE CO. TO RECOVER SALARY FOR SERVICES AS AGENT.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Prom a judgment dismissing the petition, plaintiff appeals.-</p> <p>POINTS AND AUTHORITIES.</p> <p>1. An action by an agent of an insurance company to recover commissions must he brought in the county of the chief office of such insurance company,</p> <p>2. The 71st section of the Civil Code, authorizing actions in counties where the contract is made in controversies arising thereon, if they grow out of a transaction with an agent of the company, was not intended to cover an action by such agent against an insurance company to recover commissions.</p>

<p>1. Railroad's — Injuries to Pedestrian at Crossing — Negligence.— A railroad company, charged with the duty of keeping a lookout for pedestrians using a pathway across the track, is not negligent because the fireman withdrew his lookout to coal the engine, though the view of the engineer was cut off.</p> <p>2. Same. — A railroad company, charged with the duty of keeping a lookout for pedestrians using a pathway across the track, was not negligent in failing to have a third person assist the fireman to keep a lookout while he was otherwise engaged, though the view of the engineer was cut off, since the lookout required is a reasonable one, and as good as the circumstances of the case will permit.</p> <p>3. Same. — A trainman, seeing a pedestrian crossing a street and approaching a railroad track, has the right to presume that he will not step in front of the approaching train, and may act on such presumption until it becomes reasonably apparent from his manner that he intends to step on the track.</p> <p>4. Same. — A pedestrian was struck by a heavy freight train running at about 15 miles an hour. The bell of the engine was being rung as the train approached the crossing where the accident occurred. The fireman observed, when the engine was 65 feet from the crossing, that the pedestrian was urn .conscious of the approach of the train, and would step in front of it. It was then a physical impossibility to stop the train to avoid the accident. Held,’that the company was not liable.</p> <p>ON REHEARING.</p> <p>Railroads — Injuries to Pedestrian at Crossing — Lookout—Negligence. — A railroad company charged with the duty of keeping a lookout for pedestrians using a highway across a track ■cannot discharge that duty otherwise than by keeping a lookout, and the fact that it became necessary to fire the engine at a time when the engineer could not see on account of a curve in the track would not excuse the failure so to do.</p>

<p>1. Master and Servant — Injuries to Servant — Servant’s Personal Liability. — Plaintiff, a railroad brakeman, was injured by the separation of a brake staff weld. The petition charged that it was the duty of defendants, car inspectors, to inspect cars like that from which plaintiff was thrown, and that, if they had properly inspected the car and brake staff, they would have discovered the defect, but that they made their inspection with gross and wanton carelessness, and approved the car as safe for operation, and that plaintiff was injured while attempting to set the brake in the ordinary manner by the separation of the two pieces of the staff. Held, that such allegation charged more than mere nonfeasance on the part of the inspectors, and stated a cause of action against them individually.</p> <p>2. Parties — Defendants—Joinder.—Where two car inspectors in inspecting the car in question and in approving it acted for the railroad company, their act was the act of the latter, so that both the inspectors and the railroad company were properly joined in an action for injuries to a brakeman resulting from negligent inspection.</p> <p>3. ' Removal of Causes — Jurisdiction of State Court — Termination. —The provision of the removal acts that it shall be the duty of the state court to accept the petition and bond for removal and proceed no further in the suit has no application to a suit that could not have been originally brought in the United States Circuit Court because plaintiff and two of the defendants were citizens of the state.</p> <p>4. Same — Parties—Fraudulent Joinder. — Where an action could not have been originally brought in the federal Circuit Court, the removal acts do not require the determination of a question of alleged fraudulent joinder of parties by the federal court after the filing of a removal petition and bond.</p> <p>5. Same — Fraudulent Joinder. — A joinder of parties cannot be fraudulent for the purpose of defeating federal jurisdiction where it is authorized by the laws of the state where the suit is brought.</p> <p>6. Same — Removal Petition — Parties—Fraudulent Joinder. — In a suit for injuries to a brakeman by the separation of a defective brake staff, plaintiff joined the railroad company and the manufacturer of the car, who were nonresidents, and two of the railroad’s car inspectors who were residents of the state. The petition alleged >a cause of action against the inspectors, but a removal petition, without denying that the inspectors were such, or that they approved the car, alleged that no cause of action existed against them, that they had nothing to do with the matters alleged in the petition nor with the defective brake staff, and that they were not in any manner responsible therefor. Held, that such allegations were insufficient to show that plaintiff had no cause of act’on against the inspectors-, and that they were therefore fraudulently joined to prevent a removal of the cause.</p> <p>7. tóame — Denial of Removal — Effect.—Where a petition for removal of a cause is denied, and it thereafter becomes apparent to the court at any time that the resident defendant has been joined without reasonable grounds therefor, it is the court’s duty in its discretion to set aside the former order and direct a removal of the cause.</p>

<p>1. States — Funds—Appropriations.—The State University and the State Normal Schools are among the educational institutions, for which, under the proviso of Const, section 184, the Legislature may make appropriations without submitting the ques-</p> <p>2. Schools and School Districts — Funds — Appropriations.— Neither the change of the name of the “Agricultural & Mechanical College of Kentucky” to “State University, Lexington, Kentucky,” by Act March 15, 1908 (Acts 1908, p. 22), nor transfer by such, act of its normal work proper to the State Normal Schools, the collegiate department of pedagogy being retained, destroyed its identity as a public corporation and state institution as respects the matter of appropriation therefor.</p> <p>3. States — Appropriations—Indebtedness.—Whether an appropriation is a debt within Const, sections 49, 50, prohibiting the Legislature contracting an indebtedness in excess of $500,000 to meet casual deficits or failures in the revenues, or contracting a debt for any other purpose, except with a provision for levy and collection of a tax to meet it, depends on the character of the appropriation and the manner of its payment; and Act March 16, 1908 (Acts 1908, p. 22), appropriating $200,000 for buildings for state educational institutions, to be paid in three equal sums, in December of three successive years, and $70,000 for their current expenses of the year, and for each succeeding year, will not be held to contravene such sections; it not appearing that, when the payments are to be made, there will be such a deficit.</p>

CASH 16. — ACTION BY DOCK SMITH AGAINST -WILLIAM LINDSEY’S DEVISEE TO RECOVER AN INTEREST IN A LOT. Appeal from Owen Circuit Court. J. W. Cammack, Circuit Judge. Judgment for plaintiff, defendant appeals 1. Appellee was not the issue of a customary negro marriage, nor of parents who lived, and cohabited together as husband and wife to each other, but was an illegitimate child and could not and did not inherit from Alfred Smith, his alleged father. 2.

<p>CASE 17. — ACTION BY CHARLES ANTHONY AGAINST PERCY C. HUDSON AND OTHERS FOR VALUE OF DEFICIT IN LAND SOLD TO HIM.</p> <p>Appeal from Jefferson Circuit Court; Chancery Branch (Second Division). -</p> <p>Samuel B. Kirby, Judge.</p> <p>From a judgment' dismissing Ms petition plaintiff appea 1 s</p> <p>CONCLUSION.</p> <p>1. We earnestly submit that the following facts have been established, and the following propositions of law are to be sanctioned.</p> <p>2. Anthony and Hudson both considered that the tract contained 560 acres, and the price of $58,800 was fixed, on that idea, being at the rate of $105 per acre.</p> <p>3. The contract and deed prove it. Anthony testifies to it and his testimony is competent. Cantrill, Hudson’s agent, gives positive evidence of the fact and is not contradicted.</p> <p>4. Cantrill, the agent, received a commission of $1.00 an acre from Hudson, and was paid by check $560.</p> <p>5. The shortage exists for which Anthony has paid Hudson $1,019.55. This in equity and justice he ought to return.</p> <p>6. The law implies a promise from the defendants to refund the excessive amount thus paid, and the' prayer of the petition asking such relief ought to be granted.</p> <p>CLASSIFICATION OF QUESTIONS DISCUSSED WITH AUTHORITIES.</p> <p>1. Parol testimony is not competent to explain or modify a written instrument. (Harrison v. Talbot, 2 Dana 258.)</p> <p>2. If this was a sale by the acre, it was acreage according to United States survey.</p> <p>3. The sale was a sale in gross, and not by the acre. The appellant could not recover for any shortage “beyond the range of ordinary contingency.” The court will grant no relief where the shortage was less than 10 per cent. In the case at bar the shortage was only 1.7 per cent. (Young v. Craig, 2 Bibb 270; Harrison v. Talbot, 2 Dana 258; Miller v. Craig, 83 Ky. 626; Russell v. Phillips, 15 Ky. Law Rep. 76.)</p> <p>4. This being a sale of land located in Illinois, it is construed and controlled by the law of that state. (Page on Contracts, section 1724.)</p> <p>5. Where land is sold' in gross by proper numbers as indicated by government survey or other specific description, the grantee can not recover for a deficiency unless so great as to raise a presumption of fraud. (Wadham» v. Swan, 109 111. 46.)</p> <p>6. Appellant has resold, the land by the same description, and, instead of suffering damages by the alleged shortage, has realized a profit of $8,900.</p>

<p>CASE 18. — ACTION BY H. L. SMITH’S ADMINISTRATOR •AGAINST THE NORTH JELLICO COAL COMPANY FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE.</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Verdict for defendant. Plaintiff appeals.</p>

<p>1. Contracts — Legality of Object — Trafficking in Public Offices.— An agreement that defendant would obtain the resignation of the sheriff for a money consideration, and cause plaintiff to be appointed to the vacancy, and that plaintiff would then appoint defendant as his deputy, is contrary to public policy, and void. v,</p> <p>2. Same — Defenses—Illegality.—In an action by a sheriff against his deputy for au accounting, it was no defense that the plaintiff held his. position as the result of a corrupt agreement by which defendant was to obtain the resignation of the then sheriff foir a money consideration and cause plaintiff to be appointed to the vacancy, and that plaintiff would then appoint defendant as his deputy.</p> <p>3. Appeal and ,Error — Findings—Conclusiveness on Conflicting Evidence. — Where the evidence was conflicting as to certain items and- credits claimed by the parties, so as to- make it doubtful whether they should be- allowed, the judgment of the trial court will not be disturbed.</p>

<p>Attorney and Client — Contract for Contingent Fee — Construction.. ■ — An attorney’s contract provided that his client should pay a fee equal to 50 per cent, of any sum collected or recovered by suit or compromise. After suit a settlement was effected between defendant and the client by which the client was paid $1,500; defendant agreeing to pay the attorney the fee agreed on between him and his client. Held, that the attorney did not occupy the same relation to defendant as the client did, and that he was therefore only entitled to receive' one-half of the amount paid his client, and not a sum equal to the amount so paid.</p>

<p>Exemptions. — Life Insurance — Property Purchased With Exempt Money — Though the money received from a co-operative lifeinsura-jgre company is exempt from levy of execution against the beneficiary under the charter and by-laws of such company, and also Ky. Stats. 1903, section 671, such exemption does not extend to real estate purchased with such money.</p>

<p>Carriers — Regulation—Use of Carrier’s Premises. — A contract by which, a railroad gave a transfer company the exclusive use of a part of its station grounds along which there was a gravel walk, and which was most convenient to the trains on which the greater number of passengers arrived and departed, so that such passengers were compelled to walk 150 feet past the transfer company’s cabs before reaching a place where other cabs could stand, gave the transfer company a practical monopoly of the transfer business, and was void.</p>

<p>1. Master and. Servant — Obligation of Servant — Safe Place to Work. — As a general rule, a master must furnish a servant a. reasonably safe place in which to do the work for which he is engaged and reasonably safe implements to work with, and a servant injured while performing his work by defective appliance, or place and from which his attention was for a moment distracted, may recover, though he had knowledge of the defect and continued to work.</p> <p>2. Same — Obligation of Master — Safe Place to Work. — The duty of a master to furnish reasonably safe appliances ami reasonably safe places is confined to the appliances with which the servant is required to work, or the places- where bis duties require him to be.</p> <p>3 Same — Injury to Servant — Negligence.—A master is not liable for injuries to a servant when the servant through heedlessness receives • injury from appliances that his duties do not require him to labor with, though they are defective.</p> <p>4. Same — Assumption of Risk. — Every employe in every business must assume some of the risks and dangers that are incident to it or that* may happen with the utmost care on the pare of the employer to prevent or guard against, and the master is not responsible for accidents caused by the- servant’s inattention to his duties or his careless performance of them.</p> <p>5. Same — Injury to Servant — Negligence.—In an action for injuries to an employe, held, that the employer was- not negligent in failing to guard a machine which the employe was not required to use or touch.</p>

<p>CASE 24. — ACTION BETWEEN J. S. GATLIFF AND OTHERS AGAINST WILLIAM INMAN AND OTHERS TO SELL A SCHOOL HOUSE AND REBUILD A NEW ONE.—</p> <p>Appeal from Whitley Circuit Court.</p> <p>John W. Tuttle, Special Judge.</p> <p>From the judgment Gatliff and others appeal.</p>

<p>1. Homicide — Review—Conflicting Evidence. — The verdict of the jury on conflicting evidence as to the cause and circumstances of a homicide is conclusive on review.</p> <p>2. Criminal Law — Appeal—Objections Below — Sufficiency—Separation of Jury. — Under Criminal Code Practice, section 281, providing that decisions on motion for a new trial shall not be subject to exception, a complaint that the jurors- in the trial of a criminal case were allowed to separate must be made to the court during the trial, and is too late to be available on appeal if first made on the motion for a new trial.</p> <p>2. Deadly Weapon — Question for Jury. — On a trial for murder, it is proper to submit to the jury the question whether the iron pipe with which defendant killed deceased was a deadly weapon.</p> <p>4. Criminal Law — Applause During Trial — Failure ' to Caution Jury. — The failure of the court to instruct the jury to disregard the applause from persons in the audience during the trial will not be considered as error, where no complaint of such applause was made, and the court was not asked to give such an instruction.</p> <p>6. Homicide — Remarks of Counsel — Harmless Error. — In a trial for murder, a witness being unable to identify the weapon exhibited to him as the one used by defendant, counsel for the prosecution remarked that: “If witness will not swear this is the iron pipe, we will.” Held, that the remark and the failure of the court to rebuke counsel for making it were not reversible error; there being other evidence fully identifying the instrument.</p> <p>€. Trial — Correcting Instructions. — It is not error to interline a. word in the instructions after the conclusion of the argument to the jury, where the word was necessary to properly correct the instruction, and the correction was' called to the attention of the jury, and also to the attention of counsel who neither objected thereto nor requested an opportunity to further argue the case.</p> <p>7. Same — Evidence—Competency—Allowing the Widpw of Deceased to testify for the prosecution, where her testimony had no reference to any communications received from deceased or the marital relation, though she was an unnecessary witness and her testimony immaterial.</p>

<p>1. Parties — Intervention—Issues Involved. — The issue involved in an .action of forcible detainer being the right of possession, and not of title to the property, a third person, claiming to be the owner of the property, is not entitled to intervene for the purpose of trying such title.</p> <p>2. Forcible Entry and Detainer — Appeal and Retrial. — On a traverse of the findings in an action of forcible detainer, the circuit court is confined to the issues tried in the inferior court.</p> <p>3. Landlord and Tenant — Estoppel to Dispute Landlord’s Title.— The tenant of a building must restore the same to his lessor at the expiration' of the lease, without regard to phe lessor’s title to the land on which the building stands.</p>

<p>1'. Taxation — Proceedings To Assess Omitted Property — Appeal —Amendment.—The circuit court on appeal from the county court dismissing a proceeding to assess property omitted may, after the submission of the case, allow an amendment of the answer so as to plead a former judgment in bar.</p> <p>2. Judgment — Res Judicata. — In proceedings against a trust company to assess omitted property in its hands as trustee <a judgment which does not specify the estate held by the trust company, but merely fixes the amount due from the company for designated .years, is a bar to a subsequent proceeding of the beneficiaries to assess omitted property during such years.</p> <p>S.Same — Judgment—Res Judicata. — The scope of a judgment does not depend on the proof heard on the trial, and, if plaintiff fails to prove a part of his' case, he cannot in a second ■action sue for that which he might have recovered in the first action.</p> <p>4. Same — Merger and Bar of Causes of Action — Judgment by Agreement. — In determining whether a matter is res judicata, precluding a subsequent action it is immaterial that the former judgment was entered on an agreement between the •parties.</p> <p>5. Same — Scope of Prior Adjudication. — Parol evidence is not admissible in a 'subsequent litigation to prove what was, in fact, determined by a former judgment.</p> <p>6. Taxation — Proceedings To Assess Omitted Property — Trust Property. — A proceeding by a state revenue agent against a trust company as trustee for a designated beneficiary to assess property omitted from assessment is against the trustee, and not against the trust estate, and no judgment can be rendered against the trust estate, but the judgment is against the trust company, which is personally liable under Ky. St. 1903, sections 4023, 4050, for the taxes.</p> <p>7. Same — Assessment — Determination of Property Taxable— Judgment. — While the county court acts ministerially in assessing property, it acts judicially in determining whether property is subject to assessment, and its determination that property is not subject to assessment is conclusive on the Commonwealth, unless reversed on appeal.</p>

<p>CASE 28. — ACTION BY FOX & LOGAN AGAINST THE SOUTHERN EXPRESS COMPANY FOR DAMAGES TO A HORSE IN SHIPPING.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>CASE 29. — PROSECUTION AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY FOR FAILURE TO PROVIDE CONVENIENT WATER CLOSETS AT STATIONS.</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. Henson, Circuit Jud!ge.</p> <p>Deféndant convicted and appeals.</p>

<p>1. Vendor and Purchaser — Enforcement of Vendors’ Liens — Sale of Land — Proceedings Against Delinquent Purchaser. — In the absence of authority from the court, the master commissioner is not authorized to enforce the liability for refusal of a purchaser of land, sold to enforce vendors’ liens, to execute a bond for the amount of his hid, and in such a case the plaintiffs in the original action as the parties in interest, are entitled to proceed, either by amended petition or by rule.</p> <p>2. Same — Enforcement of Vendor’s Liens — Resale of Land — Reporting Bid of Insolvent Purchaser. — A master commissioner selling land to enforce vendors’ liens has a right, in the exercise of a sound discretion, to resell it without reporting to the court the bid of an insolvent purchaser at a prior sale, who failed to execute a bond to secure his bid.</p> <p>3. Same — Enforcement of Vendor’s Liens — Sale of Land — Liability of Delinquent Purchaser. — Recourse against the successful bidder at a sale to enforce vendor’s liens for the loss caused by his failure to give bond for the amount of the bid is not lost by the master commissioner’s failure to report a subsequent sale to an insolvent bidder, and the court’s failure to compel the latter to- give a bond to secure his bid.</p> <p>4. Same — Enforcement of Vendor’s Liens — Sale of Land — Liability of Delinquent Purchaser. — A successful bidder at a sale to enforce vendors’ liens, who failed to give bond to secure his bid, is not relieved from liability for the resulting loss by the fact that following a resale to an insolvent bidder who proved delinquent, he again bought the property at a reduced price, at the third and last sale.</p>

<p>1. Evidence — Res Gestate — Declarations — Admissibility.—Declarations admissible as a part of the res gestae must, as a general rule, be made by one of the actors in the affair, contemporaneous in point of time with the principal transaction, at or near to the place of its occurrence, and must explain the principal fact; but a declaration so far .removed in point of time from the main fact as to make it a mere narrative of a past transaction, or a declaration, which does not explain the principal fact, or which was made at some distance from the place of its occurrence or by a bystander, is not admissible as substantive evidence as a part of the res gestae.</p> <p>2. Same — Rest Gestae —Declarations — Admissibility. — Declarations of the motorman in charge of the car wnichK struck a pedestrian, made at the time .and place of the accident in response to the statement of bystanders that a man had been killed, that he saw the man and his fate, and tried to make the stop, but could not, was admissible as a part of the res gestae.</p> <p>3. Same — Evidence—Res Gestae — Declarations—Admissibility.— Declarations of the conductor in charge of the car which struck a pedestrian, made to the motorman immediately after the accident, admonishing the motorman not to make any statement until called on to make one, are inadmissible as a part of the res gestae because they do not explain the accident.</p> <p>4. Appeal and Error — Harmless Error — Erroneous Admission of Evidence. — In an action against a street railway company for the death of a pedestrian struck by a car, the error in admitting the declaration of the conductor made to the motorman, whereby he admonished the motorman not ro make any statement .as to the cause of the accident, was not prejudicial.</p> <p>5. Evidence - — • Declarations — By-standers.— Declarations of bystanders as- to the cause of an accident to a pedestrian struck by a street car, though contemporaneous with the accident, are not admissible as a part of the res gestae.</p> <p>6. Same — Evidence — Declarations — Bystanders.—In an action against a street railway company for the death of a pedestrian struck by a car, the declaration of a bystander that it was no wonder that decedent was hurt, in view of the conduct of his companions, was inadmissible, since the statement was merely an expression of opinion.</p> <p>7. Same — Evidence — Declarations — Bystanders. — In actions against a carrier for injuries to a passenger jumping off a car in anticipation of a collision or other imminent peril, •expressions of bystanders are properly admitted to show the danger that confronted the passenger, and that he acted with reasonable prudence in escaping.</p> <p>8. Street Railroads — Operation of Cars — Duty of Motorman. — A motorman, from the time and immediately before the starting of hjs car, until it comes to a stop, must constantly keep a lookout for persons and vehicles on the track or so near thereto as to b#e in danger of being injured by the car.</p>

<p>CASE 32. — ACTION BY FRED KETTERER’S ADMINISTRATOR AGAINST THE STATE BOARD OF CONTROL AND ANOTHER, FOR DAMAGES FOR THE NEGLIGENT DEATH OF APPELLANT’S INTESTATE.</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>From a judgment of dismissal, plaintiff appeals.</p> <p>1. If the charges in the pleadings are true, it seems to be a great hardship that one may be taken to a charitable institution and the persons in charge and control of the inmates can employ whomsoever they desire, however vicious they may be, and retain them, although such servants committed murder, and still the representatives of the deceased has no remedy under the law.</p> <p>This question, nor one of similar Import, has ever been submitted to this court for determination, and although the general doctrine that the State cannot be sued without it giver permission, yet the very act that brings this Board into life gives permission to all persons to bring suit against it; and certainly if the appellee J. S. Redwine is connected with his co-appellees in such a way as alleged that they knew the wrongs that were being perpetrated upon the deceased, they must respond to the representatives of those who are injured.</p> <p>AUTHORITIES CITED.</p> <p>Leavarell v. Western Lunatic Asylum, 28 Ky. Law Rep. 1129; Session Act March 9, 1906; Herr v. Central Ky. Asylum, 97 Ky. 458<; Central Asylum v. Hanns, 23 Ky. Law Rep. 1016; Hanns v. Central Ky. Asyium, 103 Ky. 562; Galvin v. R. T. Hospital, 34 Am. Rep. 675.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A charitable institution established by the State and maintained through its aid for the benefit of its citizens, is not liable for damages for the negligent or malicious injury to iam inmate of such institution by its servants or agents.</p> <p>, 2. The defendant J. S. Redwine, is a public officer and was not responsible for the acts of his official subordinates. (Minor’s Institutes 253; Story on Agency, sec. 319; Thropp on Public Officers, section 592; Hall v. Smith, 2 Beng 156, (9 E. C. L. 357); Robinson v. Sechel, 127 U. S. 507; Briscoe v. Lawrence, 2 Blatehf (U. S.) 121; Scott County v. Fluke, 34 Iowa, 317; Foster v. Mitts, 55 Miss. (77 30 Am. St. Rep. 504); White v. Mills, 64 Miss. 158; Hutchinson v. Brockett, 22 N. H. 252 (53 Am. Dec. 248); Murphy v. Comms. of Immigration, 28 N. Y. 134; Martin v. Mayor of Brooklyn, 1 Hill (N. Y.) 545; Bailey v. Mayor of N. Y., 3 Hill 531; (38 Am. Dec. 669); Wiggins v. Hathaway, 6 Barb (N. Y.) 632; Conwell v. Voorheis, 13 Ohio 523; (42 Am. Dec. 206); Bolan v. Williamson, 1 Brev. (S. C.) 181; Tracy v. Cloyd, 10 W. Va. 19; Dunlap v. Munroe, 7 Crauch (U. S.) 242; Bishop v. Williamson, 11 Me. 495; People v. Campbell, 82 N. Y. 247; Cunningham v. Moore, 55 Tex. 812; Railroad & Banking Co. v. Lamphy, 76 Ala. 357; Franklin v. Law, 1 Johns (N. Y.) 396; Seymour v. Van Slyek, 8 Wend. (N. Y.) 403; Senger v. Lynch, 8 Watts (Penn.) 453; McMillen v. Eastman, 4 Mass. 378; U. S. v. Kirkpatrick, 9 Wheat (U. S.) 720.)</p> <p>3. A servant does not act within the scope of his duty in committing • a wilfull and malicious or unlawful act. (Douglass v. Stevens, 18 Mo. 362; Brasher v. Kennedy, 10 B. M. 28;- Hache v. WabaSh Ry. Co., 119 Mo. 325; McCoy v. McKowen, 26 Mass. 487 (59 Am. Dec. 264); Wright v. Wilcox, 32 Am. Dec. 507; L. & N. R. R. Co. v. Rontt, 25 Ky. Law Rep. 887, 76 S. W. 513; Whittaker v. Eight Ave. Ry. Co., 51 N. Y. 295; Curtis v. Dineen, (Dak.) 30 N. W. 148; Richmond v. Long, 94 Am. Dec. 461; Hartrough v. St. Louis, 44 Mo. 479; Ogg v. Lansing, 35 Iowa 495; Brown v. Vinalhaner, 65 Me 402; Summers v. Davis County Court (Ind.) 53 Am. Rep. 512; Patrol v. Boyd, 120 Pa. 624; Williamson v. Louisville Industrial School of Reform, 95 Ky. 251.)</p>

<p>1. Appeal and Error — Decisions Reviewable — Title to Real Property — Amount in Controversy. — The Court of Appeals has jurisdiction of an appeal, where the title to land is involved, irrespective of the amount in controversy.</p> <p>2. Boundaries — Estoppel.—To constitute a statement by a landowner that he would set back his boundary fence to the line recited by his deed and exclude a strip in dispute an estoppel in favor of a purchaser of adjoining land, to whom ■it was made, it must clearly appear that the statement was a controlling factor relied on by the purchaser at the time of the purchase.</p> <p>3. Same — Boundaries—Estoppel — Evidence. — Evidence held not to so clearly show that a statement of a landowner that he would set back his boundary fence to the line recited by his deed and exclude a disputed strip, made to the purchaser relied on by him at the time of his purchase as to make it ■ operate as an estoppel against the one making 'it.</p> <p>4. Trespass — Title of Plaintiff — Burden of Proof. — In an action for the value of timber cut from a strip of land alleged to belong to plaintiff, where the answer substantially put in issue plaintiff’s title to the strip, alleging it to be in defendant, the burden of proof was on plaintiff to prove his title.</p> <p>5. Boundaries — Evidence to Establish — Common Source of Title. —Where there was an issue as to title to a strip of land depending upon the location of the division line between the parties’ land, and they both claimed under the same common vendor, plaintiff, to establish hlr title, having introduced the deeds under which defendant claimed, apparently to show that they did not include the land, it was not necessary for him to introduce deeds showing the title in himself.</p> <p>€. New Trial — Motion—Clerical Errors — Surplusage.—Where instructions 1, 2, and A were complained of in the grounds for a new trial, and it was recited that defendant objected and excepted to them at the time, but instruction A was given for defendant, so that he, of course, did not object to it, and it appeared that he did object to instruction K and excepted to its being given at the time, the letter “A” will be considered a clerical error for “K,” and disregarded; the rule being that, where a thing is otherwise sufficiently identified, a false description by a clerical error will be rejected' as susplusage.</p> <p>7. Frauds, Statute of — Real Property — Agreement as to Boundaries. — Where there is a dispute between adjoining owners as to their dividing line, and they locate the line by agreement, based upon consideration and executed by marking the line or taking possession, under it, the agreement is not within the statute of frauds.</p> <p>8. Boundaries — Establishment — Agreement Between Owners— Effect. — There being a dispute in good faith between adjoining landowners as to the true boundary between their lands, they agreed upon a settlement, fixing a line which they marked by corner trees at its ends and line trees along its course, and each took possession up to that line. A fence begun by one of them within the disputed strip was moved back to the agreed line, and a fence along that line has since been maintained for about 100 rods; the remaining 50 rods not being inclosed, though marked. Held, that the agreement fixing the boundary was binding on. the parties to it.</p> <p>9. Same — Boundaries — Establishment — Agreement Between Landowners — Notice.—An agreement between adjoining owners, fixing their boundary, executed either by a marked line or by actual adverse possession, carries notice to all the world of the fact.</p> <p>10. Notice — Nature.—Notice may be the existence of that which, if looked at or listened to, and then followed up by such inquiry as ordinary prudence would suggest, would result in obtaining the knowledge sought to be charged.</p> <p>11. Boundaries — Agreement Between Landowners — Effect of Privies in Estate. — As a person holding a deed to land, some of which he has parted with, cannot convey more than he has, the executed agreement of the landowners, altering the. boundary line between them, which was notice to their privies in estate, was. binding on them, and the privy .of the one yielding up part of the land described in his deed was bound thereby, though he had no actual knowledge of the .agreement.</p> <p>12. Adverse. Possession — Actual Possession of Land. — If the privy of the party receiving .an additional piece of land under the agreement had been in actual possession thereof, or of any part thereof, for 15 years, the privy of the other party to the agreement was barred from recovering it, whether or not the agreement fixing the boundary was valid.</p> <p>13. Deeds — Recorded Deeds — Effect. — While by law deeds of record convey notice of their existence and contents, and are constructively known to those whose duty it is to inquire as to their existence, they do not supersede adverse posses^ sion, or any other extrinsic matter on the ground, which imports notice of the existence, of a fact contrary to one imported by the deed.</p>

<p>1. Assault and Battery — Civil Actions — Self-Defense—Evidence— Instructions. — Where, in an action for assault, defendant showed that plaintiff endeavored to get his knife before defendant assaulted him, and there was evidence that defendant first assaulted plaintiff by striking him, an instruction on self-defense must be qualified by the provision that, if defendant brought on the difficulty by first attacking plaintiff, the jury could not find for defendant on the ground of self-defense.</p> <p>2. Assault and Battery — Punitive Damages — Mitigation—Provocation. — Laws 1906, p. 262, e. 32, providing that in actions for assault defendant may plead as a defense to the claim for punitive damages, and introduce in evidence in mitigation of damages, any matter of provocation whichSfereceded the assault, abolishes the rule prohibiting defendiwt from giving in evidence the acts of plaintiff at a different time, and permits defendant to prove any matter of provocation in mitigation of punitive damages, but not in mitigation of actual damages.</p> <p>3. Assault and Battery' — Civil Actions — Evidence—Admissibility. —Where, in an action for assault, defendant proved the uttering by plaintiff in reference to defendant of insulting epithets prior to the assault, evidence that another person made the remarks attributed to plaintiff was admissible to support plaintiff’s claim that he did not make ihe remarks.</p> <p>4. Assault and Battery — Civil Actions — Damages.—In an action for assault and battery, the jury may award plaintiff, by way of compensatory damages, such sum as they believe from the evidence will fairly compensate plaintiff for any physical or mental suffering which he endured as the necessary result of his injuries.</p>

<p>Schools and School Districts — Change of Text-Books — Statutory Provisions — Construction.—Ky. St. 1903, section 2957, providing that text-books in public schools once 'adopted shall not be changed except after certain procedure by the school board, is solely for the benefit of the public, and confers no right upon publishers of discarded books who have no contract to furnish the books to the patrons of the school or school board to interfere to compel the board’s compliance with the statute.</p>

<p>1. Municipal Corporations — Misapplication of Funds — Liabilities of Officers — Petition—Sufficiency.—Under Ky. St. 1903, section 3175, making it the duty of the city solicitor to prosecute actions to recover of the city officers taxes collected and expended under an ordinance not specifying the purpose of the tax, and providing that if he shall fail to do so for six months after knowledge thereof any person may institute the action, a petition, alleging that the solicitor had knowuedge for more than six months, and that, having failed to act, plaintiff, as a citizen and taxpayer, instituted the action, is sufficient, without further allegation showing that he ie In fact a taxpayer.</p> <p>2. Statutory Provisions. — Ky. St. 1903, section 3175, requiring an ordinance levying a tax to specify the purpose of the tax, making it void if it fails to do so, and providing that, if city officers collect taxes under such an ordinance and expend the same, those who participated in its passage and those who could have prevented the expenditure shall be liable to the city, is intended solely to prevent city officers from collecting taxes under a void ordinance, and imposes no liability upon such officers for applying taxes collected under a valid ordinance to a governmental purpose other than that for which levied.</p> <p>S. Statutes — Enrollment—Conclusiveness.—-An enrolled bill cannot be impeached by the journals of the House or Senate.</p> <p>4. Statutes — Construction — Journals of Legislature. — Where an act is plain and unambiguous in its terms, no necessity arises, in construing the same, for calling in aid the journals of the House and Senate.</p>

<p>CASE 37. — ACTION BY BETTIE ELLIOTT AGAINST THE, WESTERN UNION TELEGRAPH CO., FOR DAMAGES FOR DELAY IN DELIVERING A DEATH TELEGRAM.</p> <p>Appeal from Kenton- Circuit Court.</p> <p>W. MciD. Shaw, Circuit Judge.</p> <p>Judgment ,for plaintiff. Defendant appeals.</p>

<p>1 Master and Servant — Action for Death of Servant — Sufficiency of Evidence. — In an action against a railway company for the death of a conductor, evidence held sufficient to go to the jury.</p> <p>2. Trial — Instructions—Singling Out Evidence. — In an action for the death of a conductor of a work train from the throwing of a switch while his train was passing over it, where defendant’s theory was that those in charge of the work train had signaled for the switch, that the operator ra’-ed -the danger signal signifying that the switch was to he thrown, but that decedent, though the train was several hundred feet away, negligently ran it into the switch in the face of the signal, requested charge that if, before decedent approached the / point where he was injured, the signal had been given which required him to stop his train before reaching that point,, and he saw the signal, or by ordinary care could have seen it, and failed to obey it, verdict should be for defendant, was not objectionable as singling out certain evidente, but it merely grouped the facts constituting defendant’s defense of contributory negligence.</p> <p>3. Trial — Instructions.—The requested charge was not covered by charges that defendant had the right to establish and enforce reasonable rules and regulations for the government of its employes, and that if the injury was occasioned by decedent's negligence, and would not otherwise have occurred, or if it was occasioned by his failure to obey the rules for government of his train, verdict should be for defendant, they being merely abstract propositions, while the refused charge brought out the exact facts which, if true, would constitute contributory negligence of plaintiff.</p> <p>4. Trial — Instructions—Form.—The modern tendency is to depart from the former practice of giving general or abstract instructions, and to charge in as specific and concrete a form as possible.</p> <p>5. Trial — Instructions—Purpose.—The purpose of instructions is to present to the jury the issues in the most intelligible form.</p> <p>6. Trial — Instructions—Rights of Parties. — Both parties have the right to have their sides of the case properly presented to the jury.</p> <p>7. Trial — Erroneous Requests — Duty of Court to Correct and Charge. — Where a refused charge as to decedent’s contributory negligence was not technically correct, yet it was the court’s duty when the charge was offered to give a proper charge on that point.</p> <p>8. Death — Punitive Damages — Grounds.—If decedent in charge of a train had no intention of taking a switch which was thrown but intended to take one further on, and had given no signal for the first switch, and defendant railway company s operator, without giving a danger signal or giving it so late that tne train could not have stopped, threw the first switch, and derailed some of the cars, negligently killing decedent, punitive damages were recoverable.</p>

CASE 39 — ACTION BY WILLIAM CRICK. AGAINST M. S. HARDIMAN’S ADMINISTRATOR FOR SERVICES RENDERED THE DECEASED. Appeal from Hopkins Circuit Court. £ J. F. Gordon, Circuit Judge. Judgment for plaintiffs, defendant appeals SYNOPSIS. 1. The petition does not state a cause of action, and the demurrer should'have been sustained. (9 Cye. of Law and Procedure, 730; Douglas v. Central Land Co., 12 W. Va. 502; Braxton v. Lipscomb, 2 Munf. (Va.) 282; Hill v. Harvey, 2 Munf.

<p>CASE 40. — TWO ACTIONS, ONE BY B. F. GKIGSBY AND ONE BY GRIGSBY BROS., AGAINST THE CHESAPEAKE & OHIO RAILWAY CO. FOR KILLING STOCK.—</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for Grigsby Bros, affirmed and that in favor of B. F. Grigsby</p> <p>POINTS AND AUTHORITIES.</p> <p>X. The verdict of the jury was flagrantly contrary to the evidence.</p> <p>2. The court erred in the B. T. Grigsby case in assuming that five cattle belonging to that plaintiff had been killed by the train, when it had been denied by the defendant that more than four had been killed by the train, and the' evidence showed that such was the fact.</p> <p>3. The measure of damages prescribed in instruction No. 5 in the Grigsby Bros, case was incorrect.</p> <p>4. The court erred in instruction No. 3 given in both cases in refusing to qualify the duty of lookout by a statement of the paramount obligation of the engineer to his train and the persons and property upon it. (L. & F. R. R. Co. v. Milton, X4 B. M. 75; L. & P. R. R. Co. v. Ballard. 2 Met. 179 and X8X.)</p> <p>5. The court erred in instruction No. 3 in imposing upon the defendant any duty to look out for trespassing cattle, or to discover their presence. (Cr'ticism of dictum in L. & N. R. R. Co. v. Logsdon, XX8 Ky. 606 and 607; L. & F. R. R. Co v. Milton. X4 B. M. 75; L. & P. R. R Co. v. Ballard, 2 Met. 181 and 183; O’Ban-non v. L O. & L. R. R. Co., 8 Bush 351; K. C. R. R. Co. v. Lebus, 14 Bush 522 .and 523; K. C. R. R. Co. v. Talbott, 78 Ky. 621; Woodward v. C. M. & St. P. Ry. Co., 145 Fed. 579.)</p> <p>6. Counsel for plaintiff was guilty of such misconduct in putting incompetent questions- and making improper avowals as to require a reversal. (Shipp v. Commonwealth, 99 S. W. 945, 951, 30 Ky. Law-Rep. 904, 912, Marcum v. Hargis, 104 S. W. 694, 31 Ky. Law-Rep. 1117; L. & N. R. R. Co. v. Reaume, 107 S. W. 290; Murphy’s Executor v. Hoagland, 107 S. W. 305; Spencer v. Commonwealth, 107 S. W. 344.)</p> <p>SYNOPSIS OF ARGUMENT.</p> <p>1. The verdict sustained by weight of the evidence.</p> <p>2. The instruction No. 1 in the B. T. Grigsby case, taken in connection with the- other instructions, correctly state the law applicable to the case, and if any error in the instructions, in no sense prejudicial to appellant. (Branham v. Berry, 4 Ky. Law Rep. 357; North’s Admr. v. Central R. R. Co., 9 Ky. Law Rep. 480; Arnold v. Browning, jl2 Ky. Law Rep. 368; Wiedman v. Lyon, 13 Ky. Law Rep. 590.)</p> <p>3. Instruction No. 5 of the Grigsby Brothers case correctly states- the law as to the- measure of damages. (Louisville & Frankfort R. R. Co. v. Ballard, 2 Met. 180; Troutwine v. L. & N. R. R. Co., 32 Ky. Law Rep. 5.)</p> <p>4. The instruction as to the duty of lookout by the railroad company to stray cattle, correctly states the law of the state. (L. & F. R. R. Co. v. Ballard, 2 Met. 180; L. & N. R. R. Co. v. Logsdon, 118 Ky. 606; Troutwine v. L. & N. R. R. Co., 32 Ky. Law Rep. 606; Ky. C. R. R. Co. v. Lebus, 14 B. 518; L. & N. R. R. Co. v. Kiee, 22 Ky. Law Rep. 1462; I. C. R. R. Co. v. Gholson, 23 Ky. Law Rep. 2211.)</p> <p>5. The alleged misconduct of counsel for appellees complained of, if improper, did not affect the substantial rights of the appellant; and, on that -account, is not ground for reversal. (Branham v. Berry, 4 Ky. Law Rep. 357; North’s Admr. v. Central R. R. Co., 9 Ky. Law Rep. 480; Arnold v. Browning, 12 Ky. Law Rep. 142; Dowling v. McNelly, 13 Ky. Law Rep. 368; Wiedman v. Lyon, 13 Ky. Law Rep. 590.)</p>

<p>CASE 41. — AGREED CASE BETWEEN JOHN W. FRIZZELL AND OTHERS AND W. S. HOLMES AND OTHEjRS INVOLVING THE DUTIES AND COMPENSATION OF JAILERS.</p> <p>Appeal from Butler Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Judgment for defendants. Plaintiffs appeal.</p>

CASE 42 — PROSECUTION AGAINST P. H. BUSH' FOR USURPATION OF OFFICE. Appeal from Livingston Circuit Court. Demurrer to indictment sustained, and Commonwealth. appeals. CONCLUSION. We agree with the able counsel for appellee, that the amount of tax collected by the appellee as ex-sheriff of Livingston county was very small.

<p>1. Husband and Wife — Separation and Separate Maintenance— Actions — Sufficiency of Evidence. — In an action by a wife, for alimony, evidence held to show that plaintiff was at fault, and not entitled to a decree.</p> <p>2. Constitutional Law — Statutes—Validity—Due Process of Law. —Ky. Stats. 1903, section 900, providing that, in actions for ■ alimony and divorce, the husband shall pay the costs of each party, unless it appears that the wife is at fault and has ample estate to pay the same, does not deprive the husband of his property without due process of law.</p> <p>3. Husband and Wife — Divorce—Constitutional Law. — Ky. Stats. 1903, section 900, providing that, in actions for alimony and divorce, the husband shall pay the cost of each party unless it appears that the wife is at fault and has ample means to pay the same, does not contravene either the state or federal Constitution.</p> <p>4. Divorce — Desertion—Sufficiency of Evidence. — Evidence held sufficient to entitled a husband to divorce on the ground of desertion.</p>

CASE 44. — PROSECUTION AGAINST L. SCHANG FOR LARCENY AND FOR OBTAINING MONEY UNDER FALSE* PRETENSES. Appeal from Jefferson Circuit Court; Criminal Division. Joseph Pryor, Judge.

<p>1. Master and Servant — Injuries to Third Person — Independent Contractor — Existence of Relation — Control of Work. — If hhe owner had no control or direction over the work of tearing down a building, except to see that it was' done according to the contract, and the contractor exercised his own judgment as to the details of the work, and the manner of doing it, he was an independent contractor, and not a servant, and whether he was paid by the day, or week, or in a lump sum, ; was immaterial in determining the relation.</p> <p>2. Master and Servant — Actions—Jury Question — Independent Contractor. — In an action for decedent’s death while engaged in tearing down a building, whetiher the person who employed decedent, and under whose direction he was working, was defendant’s servant, or an independent contractor, held for the jury.</p> <p>3. Employer’s Liability. — If the person for whom, and under • whose direction, decedent was working when injured was an independent contractor, and not a servant of defendant, defendant would- not be liable for bis death from injuries resulting from the contractor’s negligence.</p> <p>4. Risks Assumed — Dangers Incident to Nature of Employment. —An experienced employe, who undertakes the work of wrecking a building, which is necessarily dangerous, assumes the ordinary risks incident to the employment.</p> <p>5. Injuries — Place of Work — Building Contracts. — The master’s duty to furnish a safe place to work does not apply to the wrecking of a building, which is necessarily hazardous.</p> <p>■6. Injury to Servant — Place of W$rk — Master’s Knowledge of Danger. — If the master knows that the place of work is dangerous, whether it is inherently hazardous or not, and the servant by exercising ordinary care could not discover that fact, the master, if he does not inform the servant of the danger, will be liable.</p> <p>7. Assumption of Risk — Compliance with Commands. — Where the master expressly directs his servant to work in a place known to the servant to be dangerous, the master is liable for an injury caused to the servant thereby, unless the work was so dangerous that no one of ordinary prudence would have undertaken it.</p> <p>8. Place of Work — Master’s. Duty — Necessity of Exercising Care —Hazardous Work. — Where the work is necessarily dangerous, as the wrecking of a building, the master is not bound to exercise ordinary care to discover the danger, so that he would not be liable for injuries resulting from unknown defects, even though they were discoverable by exercising ordinary care.</p> <p>S. Fellow Servant — -Vice Principals — Persons Engaged in Superintendence. — A contractor, employed by defendant’s architect to tear down a building, who employed and paid the laborers and directed their work, if he was a servant, and not an independent contractor, as well as the architect himself, who had general charge and superintendence of the work, and another employe of defendant who sometimes directed the performance of the work in the contractor’s absence were all superior servants to a workman employed on the building, for whose acts in the course of the work defendant would be liable as if it had personally directed the work.</p>

<p>CASE 46. — ACTION BETWEEN L. Y. LEAVELL’S ADMINISTRATOR AND C. A. ARNOLD, SHERIFF OP GARRARD COUNTY.</p> <p>Appeal from Garrard Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>From the judgment, the administrator appeals.—</p>

<p>Deeds — Construction—Estate Created — “Heirs”—A deed, in its premises, named á wife alone as grantee, and the granting clause conveyed to her alone, and habendum clause was that she should hold forever in' fee simple, provided that, if she should die without heirs, then title to vest in her husband, if living, and should he be dead, a certain share to vest in the next legal heirs of the wife, remainder to the next legal heirs of the husband. Held, that the attempted limitation to the next legal heirs of the wife, remainaer to the next legal heirs of the husband, was ineffective to create any estate in them, the word “heirs” being used as a word of inheritance and not of purchase, and hence a deed from the wife and husband would pass an absolute fee.</p>

CASE 48. — ACTION BY R. BOYD AGAINST NATHAN BUCHANAN AND ANOTBÉER. Appeal from Whitley Circuit court. From a judgment for plaintiff, defendants appeal, making plaintiff’s executor a party, and the executor moves to dismiss the appeal.

<p>1. Judges — Police Judge — Power to Appoint. — Const, section 160, authorizes the General Assembly to provide how vacancies in offices in towns may be filled. Act May 6, 1893 (Laws 1893, p. 887, c. 196), section 20, empowers the board of trustees of a town of the sixth class to fill a vacancy in any elective office by appointment. Act Peb. 10, 1894 (Laws 1894, p. 11, •c. 8; Ky. Stats. 1903, section 3758), provides that a police judge, among other -officers, shall have a commission issued to him by the Governor, and that a vacancy in such office shall be filled by appointment of the Governor. Act March 16 1894 (Laws 1894, p. 187, c. 181), and Act March' 19,. 1894 (Laws 1894, p. 213, c. 96; Ky. Stats. 1903, section 3692),, add to Act May 16, 1893, section 20, the clause that if, from failure to elect at the time fixed or other cause, there shall be a vacancy in the entire board of trustees, then the county court shall have power to appoint five trustees, who shall', hold office until the next election. Held, that Act Peb. 10,. 1894 (Laws 1894, p. 11, c. 8; Ky. Stats. 1903, section 3758),, repealed Act May 6, 1893, section 20, so far as it was inconsistent therewith, and that Act Peb. 10, 1894, was not in turn repealed by Act March 16, 1894 (Laws 1894 p. 187, c. 81), and Act March 19,1894 (Laws 1894, p. 213, e. 96; Ky. Stats. 1903, section 3692), as they related, as to such additional .clause, to an entirel-" different subject, and the fact that the section, as amended, was reprinted in full in the amendatory acts was due to the constitutional requirement, and that the power to fill a vacancy in the office of police judge of a town of the sixth class, it being an elective office, was in the Governor, and not in the board of trustees.</p> <p>2. Statutes — Construction of Acts of Same Assembly. — Acts of the same assembly will not be construed as inconsistent, if they can be fairly read otherwise.</p>

<p>1. Religious Societies — Property—Conflicting Claims — Determination byCivil Courts. — Where a donor has dedicated property to advance or disseminate a particular religious doctrine or faith, and conflicting claims arise as to its ownership oí possession, the civil courts will determine which of the rival claimants is holding to the faith the donor desired to favor, and award the property to him.</p> <p>2. Same — Congregational Government — Property — Dispute. — Where no specific religious trust is impressed on property belonging to a church having a' congregational form of government, and a schism arises, together with a dispute as to the property, the courts will generally award it to that faction which constitutes the majority of the original congregation.</p> <p>3. Same — Property—-Right to Hold. — When a Presbyterian congregation, controlled by an ecclesiastical form of government of the Presbyterian type, acquired property for religious worship, not charged with any specific religious trust, it was . entitled to hold and enjoy the property only so long as the congregation could be identified as an integral part of the general ecclesiastical government.</p> <p>4. Same — Constitution and Laws — Judicatories—Judicial Power. —Since religious organizations are mere voluntary associations, whose constitutions and laws, so far as civil tribunals are concerned, are in the nature of -contracts between the members, where a schism occurs in a Presbyterian congregation under an ecclesiastical form of government of the Presbyterian type, the civil tribunals will award the property in. accordance with the decision of the ecclesiastical court determining the question as to which faction is identified as an..integral part of the- general ecclesiastical government.</p> <p>■5. Same — Constitution—Limitation of Power. — Cumberland Presbyterian Constitution, section 25, after defining the jurisdiction of various courts, declared that such jurisdiction was limited by the express provisions of the constitution. Section 43 provided that the General Assembly should have power to receive and decide all appeals, to hear testimony against error in doctrine and immorality in- practice injuriously affecting the church, to decide all controversies respecting doctrine and discipline, to authorize synods and presbyteries, and exercise similar power in receiving bodies suited to- become constituents of the courts, and to superintend the affairs of the whole church. Confession of Faith, sections 110, 111, also provided for the existence of church courts and their jurisdiction. Held, that the constitution should be treated as a limitation, and not a grant of power and hence the various church judicatories had all the ecclesiastical powers of the church, except as limited by the express provisions of the constitution.</p> <p>6. Same — Constitution — Construction —- Union with Other Churches. — Cumberland Presbyterian Constitution, section 43, providing that the General Assembly should have power to receive under its jurisdiction, other ecclesiastical associations whose organization conformed to the doctrine and order of the church, and to authorize synods and presbyteries to exercise similar power in receiving bodies suitable to become constituents of those courts, authorized the General Assembly of the church to unite the entire church with the Presbyterian Church of the United States, from which the Cumberland had separated.</p> <p>7. Same — Union—Similarity of Faith — Determination.—Under Cumberland Presbyterian Constitution, section 43, authorizing the General Assembly to receive under its jurisdiction other ecclesiastical bodies conforming to the doctrine and order of the church, whether the- confession of faith of another association to be received does conform to the Cumberland Presbyterian confession, was a question of doctrine, faith, and church government, tibe decision of which by the General Assembly was conclusive on the courts.</p> <p>8. Same — Confession- of Faith — Change.—Cumberland Presbyterian Constitution, section 60, providing that on the recommendation of the General Assembly, at a stated meeting, by a two-thirds vote, the confession of faith or constitution of the church may be amended or changed when a majority of the presbyteries approve, confers on the General Assembly plenary power to change the name, of the church, to adopt an entirely new confession of faith, and to change or modify the constitution by a two-thirds vote of its members, approved by a majority of the presbyteries.</p> <p>9. Same. — Constitution—Amendment.—Cumberland Presbyterian Constitution, section 60, authorizes the General Assembly, at a stated meeting, by a two-thirds vote, to change the confession of faith or constitution of the clhurch, when approved by a majority of the presbyteries. Held that, since the church was not congregational in its form of government, the adoption of a plan of union with the Presbyterian Church of the United States, by the General Assembly, approved by a majority of the presbyteries, constituted in effect an amendment of the constitution and confession of faith, and was valid, without the consent and against the protest of the Cumberland congregation.</p> <p>10. Same — Church Property — Rights of Members. — Where the members of a church do not choose to follow the decrees of their church judicatories within their jurisdiction, they abandon all interest in its property.</p>

<p>CASE 51. — ACTION BY MARY STRATTON AND OTHERS AGAINST .1. C. STRATTON AND OTHERS FOR PARTITION AND SALE OF LANDS.</p> <p>Appeal from Shelby Circuit Court.</p> <p>C. C. Marshall, Circuit Judge.</p> <p>From a judgment confirming the sale J. C. Bayne, the purchaser, appeals</p> <p>For the following reasons then we submit that the sale had herein was void.</p> <p>1. Because the court had no authority or jurisdiction to sel! the lands allotted to the defendants in the proceeds of which the plaintiffs had no interest.</p> <p>.2. Because Jackson Stratton was not befpre the court, he not having been summoned in the manner provided by section 53 of the Civil Code.</p> <p>3. Because there was no proof at all in the record that the lands that were allotted to the defendants could not be divided among the defendants without materially impairing the value of the land.</p> <p>The certificate to the depositions was not signed by -any official.</p> <p>The depositions attempted to be taken were taken before the Commissioners acted, and before their report was filed' or confirmed, and the witnesses’ testified before it was ascertained what lands would be allotted to the defendants, and therefore could have known nothing about whether the lands that were afterwards allotted to the defendants could be sold without materially impairing their value.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code of Practice, sec. 53; Civil Code of Practice, sec. 490; Hill, &c., v. Cornwall & Bros. Assignees, 95 Ky. 538; Phillips v. Spaulding’s Gdn., 31 Ky. Law Rep. 582; Keene v. Tilford, 81 Ky. 600; Malone v. Kahn, 15 Ky. Law Rep. 2199; Gill v. Lane, 26 Ky. Law Rep. 269; Harting’s Exor. v. Milward, 28 Ky. Law Rep. 779; Porter v. The Eastern Ky. Asylum, 28 Ky. Law Rep. 796; Hulseweed v. Churchman’s Exor., 23 Ky. Law Re®. 487; Elliott v. Fowler, Gdn., 23 Ky. Law Rep. 1677-1678-1686.</p> <p>I contend that the statutes have been substantially complied with in this case* and that the order overruling the exceptions and confirming the sale should be affirmed;</p> <p>" 1. Because the court had jurisdiction of the subject matter and of all the parties to the suit, when the action was filed, and a citation to the defendants to appear was had, and a defense was made, on behal-f of the infants and the lunatic, and that all of the parties to the suit were joint owners in the land that was sold, and that on© of the defendants came in by answer and joined m’the prayer of the petition, and asked for a sale, and the court having jurisdiction, the judgment was not void.</p> <p>2. Because the proof taken before the judgment was rendered, was deemed sufficient by the court and the proof and report of Commissioners was in fact sufficient to judicially satisfy the mind of the court; that the prayer of the petition should be granted, and the results all show that this was true in the beginning.</p> <p>3. That the judgment not being void, even if erroneous, a sale was made under it which is shown to be highly beneficial to nil of the parties, should not be set aside, because the judgment is erroneous. For these reasons, I respectfully ask that this case be affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, sec. 494, subsec. 7; Hill v. Cornwall Bros., Assignees, 95 Ky. 583; Hastings’ Exor. v. Milward’s Exor., 28 Ky. Law Rep. 779; Talbott v. Campbell, 23 Ky. Law Rep. 2199; Yoeum v. Fore, man, 14 Bush 500; Hess v. Deppen, 31 Klj. Law Rep. 15; Parker’s Heirs v. Anderson’s Heirs, 5 T. B. Monroe 445; Clark v. Bell, 4 Dana 95; Shackelford v. Hunt, 4 B. Monroe 282; Gossom v. Donaldson, 18 B. Monroe 230; Freeman on Executions, see. 346; Rorer on Judicial Sales, secs. 590, 599; 24 Ky. Law Rep. 2240; Aiiison v. Taylor & Washbourne, 6 Dana 88; Downing v. Thompson’s Exor, 28 Ky. Law Rep. 1183; Weakley v. Middelton, 30 Ky. Law Rep. 571.</p>

<p>CASE 52. — PROSECUTION AGAINST JACK HUGHES FOR FALSE SWEARING.</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Defendant convicted and appeals.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., sec. 1503; Ky. Stats., see. 1589; Constitution of Kentucky, sec. 13; Ky. Stats., sec. 1489; Michael cm Law of Merger, 20 Am. & Eng. Ency. 607; Triplett v. Comth., 84 Ky. 193; Reddy v. Comth., 17 Ky. Law Rep. 536; Carman v. Comth., 25 Ky. Law Rep. 1049; C. & O. R. R. Co. v. Comth., 88 Ky. 368; Hurst v. State, 71 Ala. 307; Roberts v. State, 58 Am., sec. 539; Quitzow v. State, 20 Wis. 58; Woodford v. People, 62 N. Y. 117; Regina v. Trueman, 8 Car. & P. 727; Ben v. State, 22 Ala. 9; Rex v. Ben-field, 2 Burr 980; Wharton’s Criminal Pleading, sec. 254; Clem v. State, 42 Ind. 420; State v. Damon, 2 Tyler (Vermont) 387; State v. Cooper, 13 N. J. L. 361; State v. Lewis, 2 Hawks 98.</p> <p>AUTHORITIES CITED.</p> <p>Comth. v. Murphy, 33 Ky. Law Rep. 141; Ky. Stats., sec. 1503; Ky. Stats., secs. 1589 and 1174; Comth. v. Olds, 15 Ky. 137; Bishop’s Criminal Law, 7 ed., see. 1051'; Ballowe v. Comth., 19 Ky. Law Rep. 1867; Bishop’s New Criminal Law, sec. 1052; Clark’s Criminal Procedure, 396; Clark’s Criminal Procedure, 400; Clark on Constitutional Law, 588; Durham v. People, 39 Am. Dec. 407; Guedel v. People, 43 111. 230; Turner v. Comth., 19 Ky. Law Rep. 1161; Ky. Stats., secs. 1503, 1589 and 1174.</p>

<p>1. Release — Duress—Evidence.—Where a mother signed a second receipt to her son as administrator of a deceased son with full knowledge of its effect, the fact that the county judge had told the administrator prior to the signing of the receipt that if he did not make a settlement he would be proceeded against for contempt, he having failed for three months to obey the court’s orders, and having lost a receipt which he had previously obtained from his mother in order to make a settlement, was insufficient to show that the mother was induced to execute the second receipt by duress.</p> <p>2. Executors and Administrators — Release—Effect.—Where a mother entitled to a distributive share in the estate of a deceased son executed to another son, who was administrator, a receipt for such distributive share without receiving the same, in order that he might settle his accounts as administrator, the mother thereby changed her claim to a personal debt against the son.</p> <p>3. Wills — Construction—Charge on Real Estate. — A provision of a will, directing that any balance which testatrix might owe on certain designated property should be paid out of the proceeds thereof, constituted an express charge thereon of the balance of the price of .such property.</p> <p>4. Wills — Construction—Limitation.—A provision in a will that certain property should be preserved intact, undisposed of until one of testatrix’s grandchildren arrived at age, and might then be disposed of or divided as the owners desired, was a limitation on the owner’s right to malfe a voluntary disposition of the property, and was not in conflict with a direction -that the residue of the proceeds of the personal property, after paying debts and funeral expenses, might be divided between testatrix’s son and her grandchildren, except that any balance which she owed on the property in question should be paid from the proceeds thereof.</p> <p>6. Executors and Administrators — Claims—Assessments on Realty. — Assessments for street improvements on land belonging to testatrix’s estate, not being debts for which she was personally liable, could not be properly demanded of the administrator with the will annexed, but was enforceable only out of the property.</p> <p>6. Same — Liens Against Real Estate — Payment—Application of Rents. — Where lots belonging to testatrix’s estate were subject to a lien for street improvements, the lots should not be ordered sold, but the administrator with the will annexed should be directed to apply the rents to the payment of such liens if the claims could thereby be liquidated within a reasonable time.</p> <p>7. Same — Sale of Real Estate — Payment of Debts. — The personal estate of a deceased person should be exhausted in accordance with the terms of her will before any sale of real estate should be made to pay debts.</p> <p>8. Same — Personal Property — Sale—Authority.—An administrator may sell personal property to pay debts without authority from a court of equity.</p> <p>9. Wills — Debts'—Contribution by Devisees. — Where the personal property of an estate was not sufficient to pay debts, each of the devisees of real estate should contribute to the deficiency in the proportion that the realty devised to him bears to the value of the entire real estate.</p> <p>10. Executors and Admisistrators — Settlement—Allowance to Commissioner. — Where a commissioner is appointed to report on claims against decedent’s estate, he should only be given the statutory allowance, and- should be required to file a statement showing the number of days he was engaged.</p> <p>11. Same — Accounting—Attorney's Pees. — On a judicial settlement of an administrator’s account, he should be allowed but one atttorney’s fee, which should be confined to the services rendered by the attorney.</p> <p>12. Same — Accounting—Guardian Ad Litem — Fees.—Where, in a judicial settlement of an administrator’s account, a guardian ad litem instituted an unsuccessful cross-action against a devisee', he should only he allowed out of the estate a sum sufficient. to cover his services in the administrator’s proceedings.</p>

<p>CASE 54. — ACTION BY EMMA C. SALYER .AGAINST THE UNITED STATES FIDELITY & GUARANTY CO., AND OTHERS AS SURETY FOR JOHN S. CARTER, SHERIFF, TO COLLECT CLAIMS OWING BY CARTER TO HER.</p> <p>Appeal from Morgan Circuit Court.</p> <p>J. B. Hannah, Circuit Judge.</p> <p>Prom the judgment, the Guaranty Company appeals.</p> <p>CASES‘CITED.</p> <p>Fidelity & Deposit Co. v. Comth., 104 Ky. 579; Berry v. Comth., 95 Ky. 443; Howard v. Comth., 20 Ky. Law Rep. 1411; Schuff v. Pflanz, 99 Ky. 97; Pulaski County v. Watson, 106 Ky. 500; Catron v. Comth., 21 Ky. Law Rep. '650; Ketler v. Thompson, 13 Ky. Law Rep. 287; Ridgway v. Moody’s Admr., 91 Ky. 581; Constitution, see. 99; Ky. Stats., sec. 4134.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Stats., secs. 1884, 4133, 4134 and 4556; 5 Cyc. of Law & Procedure, p. 758, sec. 5; Comth. v. Hovsard, 49 S. W. 466; Fidelity Deposit Co. v. Comth., 104 Ky. 579; Comth. v. Tate, &c., 8"9 Ky. 603; Wade v. M.t. Sterling, 33 S. W. 1134; Tate v. Comth., 13 5. W. 113; Terry, &c. v. Hazelwood, 1 Duv. 109; Jones, &e., v. Gallatin County, 78 Ky. 493;' Comth v. Teal, 14 B. M. 24; Hall v. Smith, 14 Bush 610; Wheeler v. Traders D&atosit Bank, 55 S. W. 552.</p>

<p>CASE 55. — ACTION BY ARMINTA JOHNSON AGAINST DELBERT SANDERS INVOLVING THE RIGHTS OF THE PARTIES TO TEACH A PUBLIC SCHOOL.—</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Prom a judgment of dismissal plaintiff appeals—</p> <p>POINTS.</p> <p>In the case, at bar it is the contention of appellant:</p> <p>1. M. D. L. Greer was a die facto trustee at the time he signed appellant’s, contract.</p> <p>2. That he being a de facto trustee his authority as such can not be collaterally attacked, and in an action to which hte is noit a party as is the case at bar.</p> <p>3. Even it were admitted that his authority as a de facto trustee could be attacked and questioned, or tasted, collaterally, and in the' -case lat bar, his acts, so. far as appellant’s rights and contract are concerned, -are as- valid and precisely the same as if he had been, a de jure trustee.</p> <p>AUTHORITIES CITED.</p> <p>Rodman v. Hareourt & Oarico, 4 B. Mon. 224; Stokes v. Kirkpatrick, 1 Met. 138; Justices-Jefferson County v. Clark, 1 Mon. 86; Wilson v. King, 3 Litt. 457; Rice v. Comth. 3 Bush 14; Chambers v. Adair, 23 Ky. Law Rep. 373; Troop on Public Officers, secs.‘802, 825, 839 and 850; Note 19 Am. Dec. 64, and rumerous authority there cited; Parker v. Keitt, 12 Mod. 467 (Ehg.); King v. Bedford Level, 6 East 356; Petersalia v. Stone, 119 Mass. 476; Wilcox v. Smith, 5 Wend. 231; People v. Kane, 23 Id. 414; State v. Carroll, 38 Conn. 449; Peterson v. Miller, ■2 Mete. 493.</p> <p>AUTHORITIES CITED.</p> <p>Rodman v. Hareourt & Carico, 4 B. Mon. 224; Constitution of Kentucky sec. 237; Appellant’s brief, pp. 9 and 12.</p>

<p>1. Licenses! — Double Taxation — Vetoiiole Tax Against Licensed Peddler. — It is double taxation to require one, who has paid a license1 to use* bis wtagon in peddling on the streets, to pay for and talce out an additional licenste for the same privilege, under an ordinance taxing vehicles-.</p> <p>2. Constitutional Law — Presumption -as to Double Taxation*— Construction of Statutes. — The courts will never presume that double -taxation is intended, nor so construe a statute as to enforqe double taxation, unless ibsi language is such así to leave no doubt.</p> <p>3. Licenses — Ordinance Taxing Vehicles — Application to Licensed Peddler’is Wagon. — Where an ordinance taxing vehicles is made to apply solely to vehicles in general use in the streets of a -city, and does not in «express words, or by necessary implication, embrace a vehicle for the use of which a license tax i® paid by a peddler under another ordinance, it should not be so construed as to apply thereto.</p>

<p>CA.SE 57</p> <p>Ex parte petition by the City of Newport to construe an ordinance. From the judgment the petitioner appeals.</p>

<p>CASE 58. — PROSECUTION BY COMMONWEALTH AGAINST THE INTERNATIONAL HARVESTER CO. OF AMERICA FOR VIOLATING THE ANTI-TRUST STATUTE OF JULY 2, 1890.</p> <p>Appeal from Hardin Circuit Court. •</p> <p>Wee» S. Chele, Circuit Judge.</p> <p>From a judgment sustaining a demurrer to ' the indictment the Commonwealth appeals</p> <p>INDICTMENT.</p> <p>1. The indictment in this case is in the language of The act of 1890. If the indictment for a statutory offense is couched in the language of the statute, it is. sufficient on demurrer. (Comth. v. Grinstead, 21 Ky. Law Rep. 1444; Comth. v. Barv&rian Brewing Co., 23 Ky. Law Rep. 2334; International Harvester Co. of America v. Comth., 30 Ky. Law Rep.; Davis v. Comth., 13 Bush 318; Ward v. Comth., 13 Bush 233; Buchannon v. Comth., 95 Ky. 334; Criminal Code, section 136.)</p> <p>2. A person not prejudiced, or on© who does not belong to the mass that might be injured by a statute, cannot raise the question of its invalidity or its validity; nor can he have the court to pass upon the constitutionality or unconstitutionality of the statute; nor can he ha^je the»court to pass upo;n the effect which such statute may have upon- another statute independent and .a separate act of the legislature. (Red River Valley National Bank v. Craik, 181 U. S. 550 (45:1000); Comth. v. Wright, 79 Ky. 22; Sullivan v. Berry’s Admr., 83 Ky. 198; Burnside v. Lincoln County Court, 86 Ky. 423.)</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITE'D.</p> <p>1. The Act of May 20, 1890, when taken in connection with the Act of March 21, 1906, denies to appellee, amdi all other producers of, and dealers in, commodities otheir than farm products, the equal protection of the laws, and is in violation of the Fourteenth Amendment tot he Constitution of the United States. (Fourteenth Amendment to the Constitution of the United States; Connolly v. Union Sewey Pipe Co. 184 U. S. 540; Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 57 L. R. A. 559; State v. Compress Co., 95 Tex. 611; Re Grice, 79 Fed. Rep. 627; Matthews v. People, 202 111. 403; Niagara Fire Inis. Co. v. Cornell, 110 Fed. Rep. 827; Union Counity National Bank v. Ozark Lumber Co., 127 Fed< Rep. 206.)</p> <p>2. The Act of 1890, and not the Act of 1906, contravenes thie Fourteenth Amendment, because;</p> <p>(a) Thiait amendment does not restrict the right of the favored class, but guarantees equal rights to those who have.been dliscriminated against. (Strauder v. West Virginia, 100 U. S. 303.)</p> <p>(b) The plain legislative intent is that the growers of farm products shall mot be subject to a penalty for entering into any combination to procure higher prices for their products. (Connolly v. Union Sewer Pipe Co., supra.)</p> <p>3. The indictment does not show whether the acts charged were committed before or after March 21, 1906. It must, therefore, be assumed that they were committed after that date. (Comth. v. T. J. Megibbem Co., 101 Ky. 195; Comth v. Aultmire, 22 Ky. Law Rep. 511; Criminal Code section 129.)</p>

<p>Railroads — Injury to Person Crossing Track — Contributory Negligence.- — -One who knowing and seeing that a train is coming, attempts to cross the track just in front of it at a station, is guilty of contributory negligence, barring recovery, though ' it was .a fast special running on the time of a regular, and he may have thought it was the regular, which wais to have stopped there.</p>

<p>1. Will® — Probate—Appeal From Order Probating or Refusing to Probate — ‘Scope. of Review. — Upon appeal from an order probating or refusing to probate a writing purporting to be a will, tbe only question that can be adjudicated, is whether or not the writing is decedent’s will, and the question whether a trust provided for therein is valid or invalid cannot be considered.</p> <p>2. Will® — Rights of Devisees — Estoppel by Acceptance o.f Devise.. —Where «a devisee executed a writing recognizing the validity of the will, took possession of the property devised to her, and received monthly am. amount directed to be paid to her by the will, she could not, without offering to return what she hiadl received, assail the validity of the will.</p>

<p>CASE 61. — ACTION BY THE FIDELITY TRUST CO., EXECUTOR OF W. S.. KASEY, AND OTHERS FOR CONSTRUCTION OF THE WILL OF W.* S. KASEY, DECEASED.</p> <p>Appeal from Hardin Circuit Court.</p> <p>John Allen Dean, Special Judge.</p> <p>Pending the appeal defendant died, and the action was revived in the name of her executor.</p> <p>POINTS OF LAW DISCUSSED IN THE BRIEF.</p> <p>1. If a testator dispose of hi-s property under a will in contingent Ufe uses and other successions extending over a long period of time with reversion to his legal heirs s-o that the ulterior gifts may he considered invalid for remoteness, the validity of such ulterior gifts, and all possibilities that may or may not a-rise under the will, are so adjudged and determined from the date,o-f the death of the te-stator and the circumstances and conditions them prevailing and no other time or circumstances can be considered or looked to; and no events' that may nave happened after the death of the testator can be considered to determine what were the possibilities under the will at the date of .the death of the testator and the conditions then pmvailing. (Ky. Stats, sec. 4839; Howell v. Ackerman, 89 Ky. 22; Alexander v. Waller, 6 Bush 330; Flurmoy v. Flurnoy, 1 Bush 515; Graves v. Spur, 97 Ky. 651; Miller v. Melone, 22 Ky. Law Rep. 635; Scheffer v. Vaught’s Trustee, 23 Ky. Law Rep. 2291; Jarman on Wills, vol. 1, star, pp. 242, 243, 5th ed.; Jee v. Audley, same volume, author and page»; Gray on Perpetuities, sec. 231 and cases cited; Brown v. Columbia Finance & Trust Co., 30 Ky. Law Rep. 110.)</p> <p>2. An indefinite failure of issue signifies a general failure of issue, whenever it may happen, without fixing any time, or certain or definite period, within which it must happen; and any contingent gift made to take effect- on an indefinite failure of issue, void “If my niece shall die leaving no child or children or lawful issue surviving her, or if -such child or children shall die leaving no lawful issue surviving them,” expresses indefinite failure of issue, and all ulterior contingent gifts based upon it are void for remoteness, because it would let in children and grandchildren and their issue, all bom after the death of the testator. (Bouvier’s Law Dictionary; 1. Har. & G, 111 Md.; James v. Rowland, 52 Md.; Powell v. Bradon, 24 Miss. 343; Chism v. Williams, 29 Mo. 288; Bell v. Scammon, 1 N. H. 381; Paterson v. Ellis, il Wend. 259; Middleswrath v. Black, 74 Pa. 414; Henry v. Elder, 2 McCord, S. C. 323; Chester v. Green, 24 Tenm. 26; Albee v. Carpenter, 66 Mass. 382; Van Vechten v. Pearson, 5 Pai, N. Y., 512; McComb v. Miller, 9 Pai, 266 N. Y.; Barden v. Burns, 6 Ala. 362; Morehouse y. Cotteal, 22 N. J. 430; Davis v. Stieele, 38 N. J. 168; Hockney v. Tracy, 137 Pa. 53; Hamner v. Hammer, 40 Tenm. 398; Conklin v. Conklin, 3 Sandf., 65 N. Y.; Cook v. Bucklin, 18 N. J. 666, amdi Brown v. Columbia Finance & Trust Co, 30 Ky. Law Rep. 110.)</p> <p>3. If a testator dispose of his property under such a plan and scheme as that -only a portion of it can be given effect without carrying out his general intentions and effectuating his chief aims and objects and so that certain portions of his will cam not be executed unless other and more important portions of it can nlso be executed, then no portion of the will is to be held valid, and the whore structure is to be disregarded and fall together. (Manice v. Manice, 43 N. Y. 303; Knox v. Jones, 47 N. Y. 389; Van Schuyver v. Mulford, 59 N. Y. 426; Benedict v. Webo, 98 N. Y. 460; Kennedy v. Hoy, 105 N. Y. 135; Lawrence v. Smith, 163 111. 149; Green v. Tilden, 130 N. Y., and Fidelity v. Lloyd, 25 Ky. Law Rep. 1827.)</p> <p>■4. For the purposes of construction the whole will is to be regarded and treated as a unit. (Daniel v. Thompson, 14 B. M.; Augustus v. Seabolt 1 Met. 159;Moran v. Dilbey, 8 Bush 473; Connie v. L. O. H. S., 3 Bush 379; Bayless v. Bayless, 79 Ky. 252; Guthrie v. Turner, 14 Ky. Law Rep. 336; Bedford v. Bedford, 99 Ky. 273.)</p> <p>5. The general scheme and plan of the testator is to be given effect and enforced. (Green v. Tilden, 130 N. Y. 29, and cases therein cited.)</p> <p>6. The void portions of the will are to be regarded as valid for all purposes of construction, and the will is to he regarded and treated as a unit. (Burrill v. Boardiman, 42 N. Y. 254; Van Nostrand v. Moore, 52 N. Y. 12; Kiah v. Grenier, 56 N. Y. 220; Green v. Tilden, 130 N. Y. 29, and Re Tompkins, 154 N. Y.)</p> <p>7. “The absolute power of alienation shall not be suspended by any limitation- or condition whatever, for a longer period ‘than during the continuance of a life or lives in. being at the creation of the estate and twenty-one years, and ten months therafter,” and all future and oontingent interests, including charities, if they be preceded o-r followed by -a gift to an individual, are within the inhibition of tlhe statute, section 2360, as well as the trust in which such property is reposed. (Gray on Perpetuities, sec& 296-7; and as to charities, being under the rule, p. 362, Am. & Eng. Ency. of Law, vol. 18, and Gray on Perpetuities-, 592, and authorities cited under both authors. That the trust has -the same limitation on its existence as the property has that is in th-e trust, siee: Perry in- Trusts, sec. 377, and Chaplin Restraining on Alienation, sec. 64 and see. 66.)</p> <p>8. The term absolute power of alienation is equivalent to the power of conveying an absolute fee, and the test is, in any case, if there are persons in being competent to. -convey on behalf of each estate, interest, right and possibility, present and future, vested and. contingent, then the power is not suspended, and the converse of the proposition- is equally true. (Sec. 64, Chaplin- on Restraints Against Alienation; Fidelity v. Lloyd, 25 Ky. Law Rep. 1827.)</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. A person cannot take under a 'will and also contest the probate of that instrument. (Gore v. Stephens, 1 Dana 2j)l; Wlhite v. Mayhall, 15 Ky. Daw Rep. 830; Utermehle v. Norment, 197 U. S. 57.)</p> <p>2. Election — Miss Kasey can not ask that her election be revoked on the ground that it was made by mistake or induced by a fraud, because; first, there is not sufficient allegation of such mistake or fraud. (.¡Stephens on Pleadings, 333; Newman on Pleading and Practice, sec. 558; 14 Enc. of Pleading and Practice, 42, 43; Fletcher on Equity Pleading and Practice, 130, 131, 132; 9 Enc. of Pleading and Practice, 686, 687.)</p> <p>Second, she did not return or offer to .return the benefits received under the will even in the case of a contract obtained by gross fraud, any benefits under it must be tendered back before a suit miay be maintained. (Bain v. Wilson, 1 J. J. Mar. 203; Willett v. Forman, 3 J. J. Mar. 293; Hoggins c. Beraft, 1 Dana 30; L. & N. R. R. Co. v. McElroy, 100 Ky. 153; Home Benefit Society v. Muehl, 22 Ky. Daw Rep. 1378; 5 Lawson on Rights, Remedies and Practice, sees. 2360, 2363.)</p> <p>3. The same principle applies in will contests. (Stone v. Cook, 64 L. R. A. 288; 11 Rm. & Eng. Enc. of Law (2nd Ed.) 98; Page on Wills, sec. 727; Adams v. Adams, 39 Ala. 278; Steele v. Steele, 64 Ala. 461; In re Soule, 1 Contooly, 54, 3 N. Y. Supp. 259; In re Peaslee, 73 Hun 14; Wlatson v. Watson, 128 Mass. 152; Hamblett v. Hamblett, 6 N. H. 337; Holt v. Rice, 54 N. H. 398; Millers’ Appeal, 159 Pa. St. 574; Bell v. Armstrong, 1 Addarns 138; Braham v. Burchiel, 2 Addarns 514.)</p> <p>4. There are some cases allowing a widow to retain a benefit under a will and yet renounce same, but this is based on the statutory right of a widow as to time or election and dower rights'. . (Tomlin v. Jayne, 14 B. Mon. 130; Hicksi v. Smith, ±2 Ky. Law Rep. 976; White v. Mayhall, 15 Ky. Law Rep. 830; L. & N. R. R. Cb. v. Stephens, 96 Ky. 403.)</p> <p>5. The executor has so acted upon the faith of Emma Kasey’s election that it cannot be put in statuo quo and will suffer if the will is rejected anid therefore her election can not be revoked. (Stone v. Cooke, 64 L. R. A. 289; 11 Am. & Eng. Enc. of Law (2nd Ed.) 98; Page on Wills, sec. 727; Watson v. Watson, 128 Mass. 152; Uttermehle v. Norment, 197 U. S. 50.)</p> <p>6. Emma F. Kasey continued in possession of the real estate devised her for life, and accepted a monthly payment of $100.00 under the will, after she had filed her appeal in the circuit court and with full knowledge of her rights. This constitute an irrevocable election. (White v. Mayhall, 15 Ky. Daw Rep. 830; Gore v. Stephens, 1 Dana 201; Tomlin v. Jayne, 14 B. Mon 130; Pomeroy’s Equity Jurisprudence, sec. 512; Page on Wills, see. 727; 11 Am. & Eng Enc. of Law, 98; Adams v. Adams, 391 Ala. 278; Stone v. Cook, 64 L. R. A. 291; Underhill on Wills, 1023; Madison v. Larmon, 48 N. E. 561; Bigelow on Estoppel (4th Ed.) 642.;</p> <p>7. Question discussed and authorities cited in the construction of the will in the settlement'suit: 1</p> <p>(a) ■ The bequest to the Fidelity Trust Company as trustee of the American Bible Society is a charity and a trust for charitable purposes will not ordinarily be treated as a perpetuity. (Gass' v. Wilhite, 2 Dana 170; Moore v. Moore, 4 Dana 354; Crawford’s-Heirs v. Thomas, 21 Ky. Law Rep. 1101; Pullin- v. Board, &c., Ch., 78 S. W. 457; Philadelphia v. Girard’s Heirs, 84 Am. Dec. 470; Ky. Stats., sec. 317; Gray on Perpetuities, secs. 232, 603, 605; 6 Cyc., 905.)</p> <p>(b) The de-vise over the American Bible Society is upon condition that Emma F., Kasey should have no children or issue or any child living at her death. Such a limitation i® not too-remote. (Ky. Stats., 2344; Harvey v. Bell, 118 Ky. 512; Attorney General v Wallace, 7 B. Hon. 611; Simpson v. Adiams, 106 S. W. 820; Armstrong v. Armstrong, 14 B. Mon. 269; Grey on Perpetuities, see. 633.)</p> <p>(c) A limitation over on alternative contingencies, one of which is within .the period prescribed by the rule against perpetuities, and the other too remote, will be allowed to vest on the happening of the former event. Emma F. Kas-ey having died leaving no children and the contingency hav-ing happened, the limitation' over is good and takes effect. (Armstrong v. Armstrong, 14 B. Mon. 269; Attorney General v. Wallace, 7 B. Mon. 611; 2'2 Am. & Eng. Enc. of Law, 707 and 723; 6 Lawson on Rights, Remedies and Practice, sec. 2i48; Gray v. Whittemore, 192 Muss. 367; Gray Rule against Perpetuities', s-ec. 341, et seq.; Stone v. Bradlee, 183 Mass. 165, 66 N. E. 708; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Jackson v. Phillips, 14 Allen 539, 572; 1 Jarman on Wills (6th Ed.) side page 255 et seq.)</p> <p>8. The attempt to provide to whom the property shall go if the American Bible Society should fail, become bankrupt or ce-a-s-e to work does not effect the gift to that society for two reasons:</p> <p>(a) This provision does not create a contingent remainder, but a ¡reversion, the right to which vests in the -testator’s heirs at its death. (Grey on Perpetuities, sec. 205; Hopkins v. Grims-haw, lu- U. S. 355; In re Randall L. R. 38 Ch. Div. 213; First Universalist Society of North Adams v. Boland (Mass.) 15 L. R. A. 223; astbrook v. Tillinghast, 5 Gray 17; Stone v. Framingham, 119 Mass. 303; Keith v. Scales, 32 S. W. 809.</p> <p>(b) If the clause or reverter to his heirs were invalid as attempting to limit an estate to vest at too remote a period, i« would not effect tSie prior gift to the American Bible Society. (Grey on. Perpetuities, sec. 247; 22-nd Am. & Eng. Enc. of Law, (2nd Ed.) 723; Graham v. Whitridge (Md.) 66 L. R. A. 415; First Congregational Society v. Boland, 15 L. R. A. 233; Gray v. Wbittemore, 192 Mass. 367, 10 L. R. A. (N. S.) 1148; Brattle Creek Ch. v. Grant, 63 Am. Dec. 723; Johnson- v. Johnson, 79 a. W. 293; Burmley v. Brumley, 89 S. W. 182; Fidelity Trust Oompany v. Lloyd, 78 S. W. 896; Stevens v. Stevens, 21 Ky. Law Rep. 1315; Green v. Tilden, 130 N. Y. 29, 14 L. R. A. 33; Van Sehuyver v. Mull'ord, 59 N. Y. 426.)</p> <p>9. The Will put no unlawful restraint upon the alienation of the property. (Pullins v. Board, 78 S. W. 457; Ky. Stats see. 317; Coleman v, Leary, 70 S. W. 1068; Spalding v. Industrial School, 21 Ky. Law Rep. 1107; Thompson v. Brown, 75 S. W. 210; Craw1ford’s Heirs y. ThomaJ, 21 Ky. Law Rep. 1101; Gass v. Wilhite, 2 Dana 170; Stallcup v. Cronley, 117 Ky. 547.1</p> <p>10. The period of accumulation was only during the life time of Gmaa F. Kasey and i« wltfilU the bounds set by the law. (22nd Am. & Eng. -Enc. of Law (2nd Ed.) 730; Ray v. Sweeney, 14 Bush 1;. Stevens v. Steven^, 2-1 Ky. Law Rep. 1315.)</p>

<p>CASE 62. — ACTION BY MARY J. HICKLIN AND OTHERS AGAINST THE ILLINOIS CENTRAL R. R. CO. FOR VALUE OF HOUSE BURNED BY SPARKS FROM ENGINE.</p> <p>Appeal from Crittenden Circuit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The wrongdoer has, no right to the benefits of the insurance, and can not rely either in full or protanto as a defense on the insurance money received by the owner of the property from his insurance.</p> <p>2. Payment to the owner by an insurance company or the amount of his loss does not bar the right against another originally liable for the loss.</p> <p>3. It is no defense to an action by the owner of ihe property against the wrongdoer that the owner has received satisfaction from the insurance company, the insurer does not stand in the relation of a joint tor.t feasor with the trespasser. (Anderson, &c„ v. Miller and wife, 31 L. R. A. (Tenn.) 604; Perrott v. Shearer, 17 Mich 48; Hart v. Western R. Corp., 13 Mete. (Mass.) 99; Mathews v. St. Louis, &c., 121 Mo. 298; Am. & Eng. Enc. of Law, 304 (Old Ed.); Mutual Eire Ins. Co. v. Bosher, 63 Amer. Dec. 618.)</p>

<p>Brokers — Fraudulent Representations. — A real estate broker cannot be held liable for representing to an intending purchaser that the owner would' not accept less than the sum named by the broker for the premises though the owner had. in fact agreed with him to sell at a lower figure, in the absence of ■ any confidential relation between the broker and intending purchaser or fraud, to prevent inquiry or investigation by such purchaser.</p>

<p>CASE 64. — ACTION BY W. E. BARRON AGAINST MOSES KAUFMAN TO RECOVER CERTAIN MONEY PAID BY HIMSELF AND OTHER TAXPAYERS TO HIM AS CITY AUDITOR.</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>In the consideration of this question- three propositions arise and have to be examined and answered:</p> <p>1. Are the members of the Board of Aldermen and Councilmen of cities of the second class entitled to receive a per diem allowance for the meetings and called meetings of the General Council which they do not attend and at which they a,re not present?</p> <p>2. Is tne auditor of cities of the second class liable for approving, certifying and auditing claims against the city without due authority of law?</p> <p>3. Has a taxpayer the right, when suing for all the other taxpayers1 of tibe city and when the legally constituted authorities have failed, to sue and recover moneys due the city?</p> <p>AUTHORITIES CITED.</p> <p>Smith v. New York, 37 N. Y. 518; Queen v. Atlanta, 59 Ga. 318; Webster v. Kansas City, 64 Mo. 493; Wayne County v. Benoit,20 Mich 176; State v. Davis, 44 Mo. 131; Stubenville v. Culp, 43 Am. Dec. 417; Morera v. Blue, 47 Ala. 709; Ky. Stats., secs. 3127, 3129; Land Log & Lumber Co. v. Mclntire, 100 Wis. 225; Jones v. Comrs'. -Lucast County, 57 Ohio St. 189; Webster v. Douglas County, 102 Wis. 181; Sparks v. Robinson, 115 Ky. 453; McCann, v. City, 23 Ky. Law Rep. 558; Whaley v. Comth., 110 Ky. 154; Comth. v. Scott, 112 Ky. 252.</p> <p>PROPOSITIONS AND AUTHORITIES- CITED.</p> <p>1. As to compensation allowed members of the Council. (Ky. Stats., sec. 3042.)</p> <p>2. As to duties of the Auditor. (Ky. Stats., s:ec. 3127.)</p> <p>3. The appellant did, not show himself a fair representative of a class, and is not -entitled to bring this suit. (Sparks v. Robinson, 115 Ky. 453.)</p> <p>4. A judicial officer i-s not liable for his action, even if he- is in error as to his judgment. (Meeheim- on; Officers, sec. 638; Wall v. Trumbull, 1 Mich. 2341.)</p> <p>AUTHORITIES CITED.</p> <p>Alexander v. Worthington, 5 Md. 480; Lewis Sutherland on Statutory Construction, vol. 2, pp. 699, 698, 695, 696, 697, 698 and 700; U. S. v. Goldenburg, 168 U. S. 95; Green v. Comth., 15 Ky. Law Rep. 297; Robertson v. Robertson, 100 Ky. 700; Bosley v. Mattingly, 14 B. Mon. 72.)</p>

<p>1. Infants' — Actions—Process.—Under Civil Code Practice, section 52, requiring the clerk, when those named in the section who might be served with summons for infant defendants under 14 years of age are all plaintiffs, to appoint a guardian ad litem for the infants and providing that the summons shall be served om such guardian, service on the guardian so appointed suffices, • and service on the infant is not necessary.</p> <p>2. Guardian and Ward — Vested Estates of Wiard — Sales-.—It is only under Civil Code Practice, section 489, subsec. 5, that 'a vested estate of an infant may be sold for reinvestment by order of court in an action against the infant by his guardian.</p> <p>3. Guardian and Ward — Sales of Ward’s Land — Bond of Guardian. —Under the -exprese provisions of Civil Code Practice, section 493, subsiec. 3, any order of sale and any sale thereunder of an infant’s land is absolutely void where the bond required by the- section to be given by the guardian of the infant is not executed.</p>

<p>CASE 66. — ACTION BY FRONIE PHILLIPS AND OTHERS AGANIST FRANK HUNT FOR PARTITION OF LAND.</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendant appeals.</p> <p>AUTHORITIES CITED.</p> <p>Cyc. vol. 3, p. 399; Smith w. Bogenschultz, Í4 Ky. Law Rep. 305; Ky. Opinions, vol. 2, p. 240.)</p> <p>AUTHORITIES’ CITE®</p> <p>Cairs v. Union Cent. Life Ins. Co., 93 S. W. 622; Mead, &c., v. Mead, 112 S. W. 862; Davis v. MoOarkle, 14 Bush 746; Hard-wick v. Young, 110 Ky. 504.</p>

<p>CASE 67. — PROCEEDINGS BY THE COMMONWEALTH BY PROCTOR K. WILLIS, AUDITOR’S AGENT, AGAINST THE CHESAPEAKE & OHIO RAILWAY CO., TO LIST OMITTED PROPERTY.</p> <p>Appeal from Greenup Circuit Court.</p> <p>S. G. Kinner, Circuit Judge.</p> <p>From a judgment dismissing the petition, the Commonwealth appeals.</p>

<p>1. Master andl Servant — Injuries to Servant — Questions for Jury. —In an action for tlie death, of a, brakeman from injuries sustained in a derailment, alleged to have been due to the unsafe condition of the track and the excessive speed of the train, evidence held sufficient to warrant a submission of plaintiff’s case to the jury.</p> <p>2. Pleading — Amendment of Answer — Condition of Cause. — It was not an abuse of the court’s discretion, in an action for the death of a, brakeman from injuries sustained in a derailment, to refuse to allow an amended answer to be filed after plaintiff had concluded her evidence, pleading that it was the brakeman’s duty, in case the train broke down or the speed became excessive, to apply a Sullivan safety valve, witn which the train was equipped, and stop it, and that his failure to do so was contributory negligence, where the railroad company did not show facts sufficient to bring to the brakeman's notice, either that the track was unsafe, or that the train had become derailed, and the speed of the train being under the control of the conductor or engineer.</p> <p>3. Evidence — Opinion Evidence- — Qualification of Witnesses— Speed of Trains. — A witness living near a railroad, and who has frequently watched trains pass, and sometimes' timed them, is qualified to testify to the speeid' of a train.</p> <p>4. Master and Servant — ‘Injuries to Servant — Evidence—Condition of Track at Other Places. — In. an action for the death of a brakeman from injuries sustained in a derailment, evidence as to the track’s condition. 150 to 200 yards from the point of accident was 'admissible; there being no evidence definitely fixing the place of derailment.</p> <p>5. Same — Subsequent Repairs. — In an action for the death of a brakeman from injuries sustained in a derailment, evidence that the new rails which had been laid were larger than the old rails which they joined, and were raised higher by new crossrties and ballast, was admissible to show the condition of the track.</p> <p>6 Same — Admissibility—Speed of Train at Other Places. — In an action for the death of a brakeman from injuries sustained in a derailment, it was error to admit evidence of the train’s speed. 1%, 3, or 5 miles distant from the place of the wreck to show its speed at that point.</p> <p>7. Trial — -Reception of Evidence — Restriction to Special Purpose. —Where, in an action for the death of a brakeman from injuries sustained in a derailment, the section foreman testified ■that the track was in good condition, and that it was safe for train® to run over it at 80 or 90 mile® an hour, and the conductor ^ testified that he examined the track, and was unable to assign' the cause for the derailment, evidence of a statement by the section foreman to the conductor that the wreck was due to his fast running, and of a statement by the conductor to the section foreman that the wreck was caused by the bad track, was competent; witnesses having been first asked if they had made such statements, and the court having admonished the jury that such evidence was admissible only for the purpose of affecting their credibility.</p> <p>8. Master and Servant- — Injuries to Servant — Evidence—Precautions Against Recurrence of Accident. — In an action for the death of a brakeman from injuries sustained in a derailment, it was error to receive evidence that after the accident the old rails and crossties had been taken out and replaced with new ones.</p> <p>9. Same — Actions—Issues and Proof. — In an action for the death of a brakeman from injuries- sustained in- a derailment, wherein the negligence alleged was the unsafe condition of the track and the excessive speed of the train, it was not error for the court, in 'its instructions, to permit a recovery, either on account of the track’s defective condition, or the speed of the train, or the two combined.</p> <p>1 . Death — Actions—Instructions as to Damages*. — An- instruction, in an action for the death of a brakeman, that if the jury found for plaintiff, to award such a sum in compensatory damages as they believed from the evidence would rear son-atoly compensate decedent’s estate for the destruction of his power to earn money, in any sum, in their discretion-, not to, exceed the amount sued for, is not, because of the use of the clause “any sum in your discretion,” susceptible of the construction that it gave the jury to understand that they were not limited to* compensate decedent’s1 estate for the destruction of his earning power, hut that they might award such further sum as in their discretion they saw proper.</p> <p>11. Death — Degree of Negligence. — In an action for the death of a brakeman, proof of ordinary, not gross, negligence is alone required.</p>

<p>1. Criminal Law — Continuance—Grounds—Sickness of Accused.— Where the commonwealth permits accused at the first calling of his case to show without contradiction that he is too- sick to be present -or to manage his defense, he is entitled to. a continuance so as to give him an opportunity to exercise -his constitutional right -of being present a-t the trial.</p> <p>2. Criminal Law — Former Jeopardy. — One who has' been punished for the offense of maintaining a poolroom at a designated place cannot be again prosecuted therefor.</p> <p>3. Gaming — Trial—Instructions.—The instructions on a trial for maintaining a nuisance in a designated house by operating u. poolroom therein should limit the conviction of accused to keeping a nuisance at the place designated in the indictment.</p> <p>4. Criminal Law — Appeal—Questions Reviewable- — Irregularities in the Impaneling o-f the Grand Jury. — Under Criminal Code Practice section 281, providing that the decisions of the court on motions to set aside an indictment shall not be subject to exception, the court on appeal has no' jurisdiction to reverse the ruling of the trial court on a motion to quash an indictment for irregularities in the impaneling of the grand jury.</p>

<p>Intoxicating Liquors — Bonds of Dealers- — -Actions On — 'Sufficiency of Evidence. — -Where, in an action by a city on a bond co-mditioned that the principal would conduct bis liquor business in a legal manner, tbe evidence shows that the principal’s clerk illicitly sold liquor on a single Sunday in his absence, but does not show that his saloon was kept open at any time before this, but, on the contrary, that it was kept closed, a motion for a peremptory instruction should have been sus1tained. '</p>

CASE 71. — PERSONAL INJJJRY ACTION BY LEWIS DANIEL AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. Appeal from Hopkins Circuit Court. J. F. Gordon, Circuit Judge. Held: that the case ought to go to the jury, and (2) that the instructions given the jury were correct, and as the only question left in the case is one of fact the court will -presume that the jury obeyed the instructions of the court. (I. C. R. R. Co. v. Stewart, 23 Ky. ikw Rep. 639.) '5.

<p>CASE 72. — ACTION BY S. A. D. WARD AND WIPE AGAINST THE TRIPPLE STATE NATURAL GAS & OIL CO. AND OTHERS TO RECOVER RENT.</p> <p>Appeal from Martin Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>From tile judgment plaintiffs appeal.</p>

<p>CASE 73. — ACTION BY LANHAM LUMBER COMPANY AGAINST THE LEBANON, LOUISVILLE & LEXINGTON TELEPHONE CO. AND ANOTHER</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment fc-r plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>The demurrer to the petition -should have been sustained;</p> <p>1. The alleged failure of appellants to effect telephone connection between the nightwatchman of appellee and- the fire department was not the proximate cause of the loss. (1 Cooley on Torts, pp. 127 128, -and notes; Bacon v. Pullman Co-., 159 Fed. 4; Wharton — Law of Negligence, secs. 73-77; Christianson v. Chicago, &c., Ry. Co., 67 Minn. 94; 69 N. W. 640; Black’s Law and Practice^ sec. 103; Looney v. Metropolitan R. Co., 200 U. S. 480; United States v. Ross 92 U. S. 281; Smith v. Western Union Tel. Co., 83 Ky. 104; Louisville Gas. Co. v. Kaufman, Straus & Co., 105 Ky. 131; Franke v. Head, &c., 19 Ky. Law Rep. 1128; Foster v. Chicago & Lookout Water Co., 3 Lea (Tenn.) 42; Bosch v. Burlington & Missouri Ry. Co., 44 Iowa 202, 24 Am. Rep. 754; Hazel v. Oity of Owensboro, 30 Ky. Law Rep. 627; Bosworth v. Brand, 1 Dana 377; Patch v. City of Covington, 17 B. Monroe 722; S-mitha v. Gentry, &c., 20 Ky. Law Rep 171; 1 Cooley — To-rts (3d Ed.) p. 99; 1 Works -of Jiames Wilson (Andrews Ed.), p. 509, The Philosophy of Evidence; Cases distinguished — Metallic Compression Casting Co. v. Pittsburg, &e„ Ry. Co., 109 M-ass. 277, 12 Am Rep. 689; Little Rock Traction Co. v. McCaskill (Ark.) 86 S. W. 997; Kiem-an v. Metropolitan Construction Co. (Mass.) 49 N. E. 648; Mott v. Hudson River -Ry. Co., 1 Robertson (N. Y.) 585.)</p> <p>2. Assuming the nightwatchman did endeavor to call th-e fire department, nevertheless- his admitted actions constitute such negligence as to estop appellee -claiming a recovery. (Oomth. v. Pie-rcei, 138 Mjass. 165, 52 Am. Rep. 264; Blyth v. Birmingham Water Works Co., 11 Exchequer 781; Dolfinger & Co. v. Fis-hback, 12 Bush (75 Ky.) 479; Western Union Telegraph Co. v. Matthews, 113 Ky. 188; Hogle v. New York Central, &c., R. R. Co., 28 Hun* (N. Y.) 363; Loiter v. Damon, 17 Pick. (Mass.) 284; Wiley v. West Jersey R. R. Co., 44 N. J. L. 247.)</p> <p>3.If in any wise The case can be considered as ex contractu, then we submit that the trial court erred in sustaining a demurrer to the amended answer of appellants. (Cumberland Telephone & Telegraph Co. v. Hendon, 114 Ky. 501; Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N. E. 503, 12 L. R. A. (N. S.) 924 and notes; Phenix Insurance Co. v. Chadbourne, 31 Fed. 300; Deming & Company v. Merchants’ Cotton-Press, &c., Oo„ 90 Tenn. 306, 13 L. R. A. 518; Lancaster Mills Co. v. Merchants’ Cotton-Press, &c., Co., 5 Pickle (Tenn.) 1; L. & N. R. R. Co. v. Carothers, 23 Ky. Law Rep. 1673.)</p> <p>THE EVIDENCE CONSIDERED.</p> <p>1. There was no contract on the part of appellants' to furnish appellee, or any one, with a fire alarm system.</p> <p>2. Assuming the nightwatchman did endeavor to call the fire department, nevertheless, his- admitted actions constitute such, negligence as to bar a recovery.</p> <p>3. The managing officers of appellee were guilty of negligence on their part In failing to provide fire protection for their own benefit. (McNally v. Colwell, 91 Mich. 527, 2 N. W. 70, 30 Am. St. Rep. 494.)</p> <p>4. The alleged failure of appellants to effect connection, between the nightwatchman and the fire department was not the primate canse of the loss.</p> <p>(a) In respect to the fire, the subject was not one which- necessitated expert opinion to arrive at the truth. (McNally v. Colwell, 91 Mich. 527, 2 N. W. 70, 30 Am. St. Rep. 494; White v. Ballou, 8 Allen (Mass.) 408; Atchison, T. & S. E. R. R. Co. v. Lawler, 40 Neb. 356, 58 N. W. ; s; Gibson v. Hatchett, 24 Ala. 201; State v. Watson, 65 Me. 74; Kooeis v. State, 50 N. J. L. 44, 27 Atl. 800.)</p> <p>(b) Even if th;e opinions of experts were admissible, the hypothetical questions were not properly founded, because they were not based on an identity of conditions. (Smith v. Western Union Tel. Co., 83 Ky. 104; Looney v. Metropolitan Ry. Co., 200 U. S. 480; United State? v. Ross, 92 U. S. 281.1</p> <p>5. The amount of property burned being based upon a mere estimate' and. the criterion of damages being false, there was, thereforerno recoverable damages proved.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. The modem telephone is a development of the electric telegraph. Both are common carriers of intelligence, of language, the medium of communication between men. One fails in its duty of transmission by withholding the written message offered; the other by failing to give the connection demanded; in each case the breach of duty is of the same character, and the liability the same for any special injury resulting. (At-ty. Gen’l v. Edison Tel. Co., L. R. 6 Q. B. D. 2.44; Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 36; Ches. & Pot. Tel. Co. v. B. & O. Tel. Co., 66 Md. 399, 59 Am. Rep. 167, and mots, 172; State v. Neb. Tel. Co., 17 Neb. 126, 52 Am. Rep. 404; Cumberland Tel. & Tel. Co. v. Hendon, 114 Ky. 501, 71 S. W. 435, 102 Am. St. 290; Cumberland Tel. & Tel. Co. v. Atherton, 91 S. W. 257; Robinson v. Western U. Tel. Co., 68 S. W. 656.)</p> <p>2. Ear a willful failure to transmit a message, a telephone and telegrap1 company are liable to the same penalty; and they have the same protection against injury to their property. (Constitution of Kentucky, sec. 199; Ky. Stats, secs. 1231, 1346.)</p> <p>3. It is- not -necessary that either a telegraph or telephone company have knowledge of the meaning or importance of the message to be transmitted in order to hold it liable for injury .resulting from a negligent failure to transmit it. (Daugherty v. Am. U. Tel. Co., 75 Ala. 168, 51 Am. Rep. 435; W. U. Tel. Co. v. Way, 83 Ala. 542; W. U. Tel. Co. v. Hyej-, 22 Pla. 637, 1 Am. St. Rep. 222; W. U. Tel. Co. v. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; W. U. Tel. Co. v. - atman, 73 Ga. 285, 54 Am. Rep. 877; W. U. Tel. Co. v. Reynolds, 77 Va,. 173, 46 Am. Rep. 715; Cumberland Tel. & Tel. Co. v. Hendon, 114 Ky. 501, 71 S. W. 435, 102 Am. St. Rep. 290.)</p> <p>4. For a negligent breach of duty in the tran'smission of a message, a telephone or telegraph company is liable to the party injured for all the direct damages which both parties would have contemplated as likely to follow the breach, if they had bestowed proper attention, upon the subject, and had been fully informed of the facts. (See cases cited under point No.' 3.)</p> <p>5. Proximate cause means closeness of casual relation, not nearness in time or distance. Nor is the casual relation broken by the intervention, or co-operation of a series of causes and effects, if all the intervening, or cooperating causes are such as might reasonably have b’een contemplated as probable and natural, even though some of them may be human 'agencies innocent of any breach of duty, or of an. illegal act. The proximate cause is the efficient cause, the one that sets others in motion (Insuranee Co. v. Boon, 95 U. S. 117; East Tenm., &c\, R. R. Co. v. Hesters, 79 Ala. 315; Smethurst v. Cong. Church, 148 Mass. 261, 12 Am. St. Rep. 550; Vvest v. Ward, 77,Iowa 323, 14 Am. St. Rep. 284; Louisville, &c, Ry. Co. v. Wood, 113 Ind. 544; Haverly v. State Line, &c., R. R. Co., 135 Pa. St. 50, 20 Am. St. Rep. 848; Pullm/an Pal. Car Co. v. Laaok, 143 111. 242; Del., &c., R. R. Co. v Salmon, 39 N. J. L. 299, 23 Am. Rep. 214; Insurance Co. v. Tweed, 7 Wall-52; Cinn., &c., R. R. Co. v. Barker (Ky.) Peb. 16, 1893; Metallic Compression Casting Co. v. Fitchburg, R. R. Co., 109 Mass. 277, 12 Am. Rep. 689; Shinkle v. City of Covington, 1 Bush 618; Sheibyville Wat-er & Light Co. v. klcDade (Ky.) 92 S. W. 568.)</p> <p>6. One guilty of -a wrongful or negligent act must he presumed to h-ave known, not only the fixed laws of inorganic matter, hut the impulses, instincts, feelings and -emotionis of animals, including human beings, the are likely to induce a certain kind of conduct if worked upon in a certain manner; and he will he held responsible for the action of such animate or inanimate intervening agencies, set in motion by him, when they do what was probable they would do-. (Hayes v. Hyde Park, 153 Mass-. 514; Quigley v. Del. Canal, 142 Pa. St. 388, 24 Am, St. Rep. 504; Weick v. Lander, 75 111. 93; Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508; Storer v. Bluehill, 439; «State 'v. Rankin, 3 S. C. 438, 16 Am. St. 737; Hughes v. McDonough, 43 N. J. L. 459, 39 Am. Rep. 603; McDonald v. Smelling, 14 Allen 29&, 92 Am. Dec. 768; Powell v. Deveny, 3 Cush. 300, 50 Am. Dec. 738; Mahogany v. Ward, 16 R. I, 479, 27 Am. St. Rep. 753; Congreve v. Morgan, 18 N. Y. 84, 72 Am. Dec. 495; Clark v. Chambers, L. R. 3 Q. B. D. 327; Wharton -on Negligenoe, 138-141; Thompson, on Negligence, 1089.) .</p> <p>7. Common carriers of intelligence have, uniformly, been/ held liable for damages resulting from negligent failure to transmit or deliver messages; including loss of profits on sales, expense of unnecessary journeys, loss of weight on live stock, loss of wages from failure to secure- employment, and loss of fees' that would have been earned by professional men. (W. U. T-el. Co. v. Cooper, 10 Am. 'St. Rep. 782-788 (Note by Judge Freeman'); Barker v. W. U. Tel. Co. (Wis.) 114 N. W. 539, 14 L. R. A. (N. S.) 533.)</p> <p>8. A defendant whose negligent act prevents fire hose being brought to the scene of a fire or renders (it useless after it is brought; or on whose negligent act prevents an adequate supply of water, or the use of the appliances' by which alone it can he utilized, is guilty of a breach of duty toward the- owner of the property, and is responsible for the property burned, that would probably have been saved but for his breach of duty. (Metallic Compression Casting Co. v. Fitchburg R. R. Co., 109 Mass. 277, 12 Am. Rep. 689; Atkinson v. New Castle & Gateshead Water Works Co., L. R. 6 Exch. 404; Shelbyville Water & Light Go. v. McDade, 92 S. W. 568.)</p> <p>9. The burden of proof, on the defense of contributory negligence, is upon the defendant, and plaintiff need not aver, in his pleadings, its absence. (Board of Councihnen of Frankfort v. Uhinn, 89 S. W. 188.)</p> <p>10. Contributory negligence, in order to defeat a recovery, must have contributed to the injury to such an extent, that, but for it, the injury would not have resulted. South Cov. & Cinn. St. Ry. Co. . Nelson, 89 S. W. 200; and where there is any evidence of negligence, the question is for the jury. (111. Gent. Ry. Co. v. Proctor, 89 S. W. 714.)</p>

<p>CASE 74. — PETITION BY ROBERT CHANNELS FOR WRIT OF CERTIORARI, FILEB IN APPELLATE COURT.—</p> <p>John W. Ray, Attorney for Petitioner.</p>

<p>CASE 76. — ACTION BY THE EQUITABLE MUTUAL FIRE IN. SURANCE CORPORATION OF NEW YORK’S RE. CEIVER, AGAINST LOGAN C. MURRAY ON A CAPI., TAL STOCK NOTE TO ENFORCE LIABILITY FOR CALLS MADE.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Mat O’Doherty, Judge.</p> <p>From the judgment plaintiff appeals, and defendant files cross-appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In an action brought in Kentucky upon an obligation arising under the* laws of a foreign state the Statute of Limitations of Kentucky must govern the remedy. (Wood on Limitations, sec. 8; Kentucky Pigest Limitation of Actions, sec. 1; Bennett v. Devling, 17 B. Mon. 353; Farmers' Bank v. Lorell, 8 Ky. Law Rep. 261.)</p> <p>2. The obligation for the payment of an 'assessment upon a “capital stock note” in a mutual fire insurance company made in accordance with the mutual insurance laws of New York is an obligation upon which th:e right of action does not accrue until after the demand or assessment has been made.</p> <p>3. I be action brought to recover the amount of assessment or demand-is an action, not upon the assessment or demand, but an action upon the note itself, to. the extent of the assessment or demand. (Raegener v. Hubbard, 56 N. Y. Supp.' 173; Raegener v. Hubbard, 167 N. Y. 301; Raegener v. Medicus, 66 N. Y. Supp. 460; Raegener v. Miedicus, 171 N. Y. 699; Raegener v. Warner, 56 N. Y. Supp. 310; Raegener v. Phillips, 56 N. Y. 174; Raegener v. Hubbard, 57 N. Y. Supp. 1018; Raegener v. McDougall, 53 N. Y. Supp. 484; Cye. vol. 7, p. 854, note 30; Howland, Receiver of New York Protection Insurance Co. v. Edmonds, 33 Barbour, 433; Hope Mutual Life Insurance Co. v. Weed, 28 Conn. 51.)</p> <p>4. Such a capital stock note is 'an “obligation in writing for the payment of money,” and any right of action upon it cannot be barred for fifteen years under section 2514 of the Kentucky Statutes. (White’s Admr. v. Curd, 86 Ky. 191 — 1887.)</p> <p>5. An action upon a capital stock note for an assessment made in April 1896, was not barred by limitation in August, 1905.</p> <p>The action in this case is upon the assessment and the five-year statute applies to it. The case was begun in 1905, the assessment was made and notice given May 1, 1896. More than five years had elapsed and the action was barred before it was begun.</p> <p>AUTHORITIES CITED.</p> <p>Otterview’s Land Company’s Receiver v. Bolling’s Extx., 24 Ky. Law Rep. 1157, 70 S. W. 834; New York Statute, sac. 113.</p> <p>It has been uniformly held by the New York court of appeals that the assessment create® the cause of action in cases like the one at bar, and, consequently our five-year Statute of Limitations governs the' case.</p>

<p>CASE 77. — ACTION BY JOHN BRACKETT’S ADMINISTRATOR AND OTHERS AGAINST VINCENT • BOREING’S ADMINISTRATOR AND OTHERS.</p> <p>Appeal from Bell Circuit Court.</p> <p>From the judgment plaintiffs appeal.</p>

<p>Statutes; — Construction—Validity.—The courts must as far as possible uphold, and give effect to all statutes enacted by the Legislature.</p>

CASE 79. — ACTION BY R. H. CASEY AGAINST THE TRUST CO. OF AMERICA, &e. Appeal from Henry. Circuit Court. C. C. Marshall, Circuit Judge. Prom a judgment for plaintiff defendant appeals, and from a judgment allowing tbe claims of Young and others the Trust Company appeals.

<p>1. Pleading — Admissions, by Failure to Deny — Assessment of Damages. — 'Though by Civil Code Practice, section 126, the confession, of a. defendant, by failure to answer after being summoned, does not go to the extent of admitting the amount of damages claimed in the petition, plaintiff was entitled, in an action for alienation of affections, in which defendant, though duly summoned, filed no answer, to have his damages assessed by a jury upon tbe allegations of the petition without introducing any evidence as to such damages, since the truth of the allegation® was admitted by defendant’s failure to answer.</p> <p>2. Husband and Wife — Alienation of Affections — Damages—Mental Anguish. — In an action for alienation of affections, the jury, in»determining the damages to which plaintiff is entitled, may take into consideration, not only the damage sustained by plaintiff on account of the loss of his wife’s affections and society, but also the mental anguish and humiliation of feeling caused him by defendant’s misconduct.</p> <p>3. Evidence — Opinion Evidence — Damages.—In an action for alienation of affections, testimony of witnesses as to the amount of damages plaintiff should recover are mere expressiens of opinion and incompetent.</p> <p>4. Dismissal and Nonsuit — Voluntary Dismissal — Dismissal as to One Defendant — Effect.—Where plaintiff in an action other than one on contract against two defendants, both duly summoned on the same -day, dismissed as to one of them, both defendants being properly before the court at the time of the dismissal, a recovery against the other at the same term that he dismissed as to the one was not erroneous, notwithstanding the provision of Civil Code Practice, section 363, that the plaintiff, in an action other than one on contract against more than one defendant, can demand a trial • at any time as to a part of defendant» only by dismissing on the first day of such term as to the others, since such rule does not apply where the defendants have all been summoned.</p>

<p>CASE 81. — ACTION BY FARMERS BANK OF WICKLIFFE AGAINST CHARLES WICKLIFFE ON NOTES —</p> <p>Appeal from. Ballard Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, sec. 113, subsec. 4; Berry v. Evans, 89 S. W. 12; Morse on Banks & Banking sec. 152, vol. 1, (3d ed.), sec. 169, p. 358.</p> <p>AUTHORITIES CITED.</p> <p>Cyclopedia of Law and Procedure., vol. 5, pp. 470-474; Caldwell v. National Mohawk Valley Bank, 64 Barb, New York 333; Farmers, &c., Bank v. Troy City Bank, First Dougl. (Mich.) 457; Reynold® v. Col-linisk 78 Ala., 94; Mitchell v. Porter, 15 Ky. Law Rep. 335.</p>

<p>-Logs and Logging — Sale of Standing Timber — Effect of Failure to Remove. — Plaintiff conveyed to defendant the right to cut trees from the land of others from whom plaintiff had purchased a right to cut the trees without limitation as to the time of removal, and the deed to defendant provided that it should remove the trees hy March 1st unless prevented by legal process, and that plaintiff transferred to defendant all ■the benefits of his deeds from the landowners, and guaranteed to him the necessary rights of way for getting out the logs until March 1st. Held, that plaintiff, not being the owner of the land, could not object to defendant’s failure to remove , the trees by March 1st, If he was not injured thereby, and could not recover for trees removed after that date.</p>

<p>CASE 83. — ACTION BY R. PITTMON AGAINST VICTORY FLOWERS AND ANOTHER TO CANCEL A DEED.—</p> <p>Appeal from Clinton Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Judgment for defendants, plaintiffs appeal</p> <p>AUTHORITIES CITED.</p> <p>As to delivery of need. (Colyer v. Hyden, &e., 15 Ky. Law Rep. 101; Martin v. Bates' Guardian, &c., 20 Ky. Law Rep, 1798; Koger, &c., v. Koger, &c.,- 29 Ky. Law Rep. 236.</p> <p>AUTHORITIES CITED.</p> <p>Colyer v. Hyden, et al., 21 S. W. (Ky.) 868; Tiedeman on Real Property (2d ed.) 798'; Tiedeman on Real Property (2d ed.) 814; Akers- v. Shoemaker, et al., 102 S. W. iKy.) 842; Civil Code ol Practice, subsec. 2, sec. 606; Mullins, et al., v. Mullins, 87 S. W. (Ky.) 764; Owens- v. Tucker, 90 Ky. 297; Locknane, &c., v. Hoskins, 69 S. W. (Ky.) 719; Bunnell, &c., v. Bunnell, &c., 64 S. W. (Ky.) 420.</p>

<p>CASE 84 — PROCEEDINGS BY THE COMMONWEALTH ON RELATION OP THE ATTORNEY GENERAL, AGAINST J. B. RESPASS AND OTHERS TO RESTRAIN THEM PROM COMMITTING A PUBLIC NUISANCE BY OPERATING A POOL ROOM.—</p> <p>Appeal from Kenton Circuit Court.</p> <p>W. McD. Shaw, Circuit Juoge.</p> <p>Judgment for plaintiff, defendants appeal</p> <p>The points discus-sed and the authorities cited are as follows-:</p> <p>1. The authority of the Attorney General to institute this action is not statutory, but is derived from the. common-law, and is universally recognized. (Attorney General v. Shre-wsberry Bridge Co., L. A. 21, Ch. Div. 752; Attorney General v. Beo-rning, 3 McN. & Gor. 453; Comth. v. McGovern, 25 Ky. Law Rep. 411; Jenkins, &c., v. Berry, Judge, 26 Ky. Law Rep. 1146; Chambers v. Baptist Educational Society, 1 B. M. 215-219; Comth. v. Lexington & Harrodsburg T. P. Co., 6 B. M. 397-398; People v. Cramer, 68 N. Y. Sup. 383-386; Parker v. May, 59 Mass. (5 Cush.) 336; Bispham’s Equity, sec. 439; Pomeroy’s Equity, sec. 1349; Wood on Nuisance (3d ed.) sec. 819; Eden on Injunctions, sec. 259; Lofton v. Collins, 61 L. R. A. 150; Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.) 91; People v. Oakland Water Co., 118 Cal. 234-239; People v: Vanderbilt, 26 N. Y. 293; Attorney General v. Wood, 108 Mass. 436.;</p> <p>2. The pool rooms are per se common public nuisances. (Bo’linger v. Comth., 98 Ky. 576; Cheek v. Comth., 79 Ky. 359; Comth. v. Enright, 98 Ky. 635; Comth. v. Respass, 21 Ky. Law Rep. 140; Cawein v. Comth., 22 Ky. Law Rep. 1724.)</p> <p>3. Courts of equity have undoubted jurisdiction to enjoin public nuisances. (Story on Equity Jurisprudence, vol. 2, sec. 921; Pomeroy’s Equity, vol. 3, sec. 1349; Bispham’s Equity, sec. 439; 'Dumesnil v. Dupont, 18 B. M. 800-804; Mercer County v. City of Harrodsburg, 23 Ky. Law Rep. 1774; Comth. v. McGovern, 25 Ky. Law Rep. 411; Alexander v. Tebeau, 24 Ky. Law Rep. 315; Hahn v. Thornberry, 7 Bush 406; Green v. Asher, 10 Ky. Law Rep. 1006; Pfingst v. S'enn, 94 Ky. 556.)</p> <p>4. Equity having power to enjoin public nuisances, the fact that in this instance the nuisance is gambling, pool selling, etc., and therefore criminal, does not in the least degree interfere with the power of the court to enjoin. All public nuisances are, in this State, criminal. If therefore, it be conceded that equity may enjoin public nuisances, it must be conceded that equity may enjoin criminal acts and the fact that criminal courts may convict and issue orders of abatement is of no consequence because such procedure is authorized in all cases of public nuisance. (21 Am. & Eng. Ency of Law, 703; Columbia Athletic Club v. State, 143 Imd. 98; State v. O’Lear, 52 L. R. A. 279; State v. Crawford, 28 Kan. 726; State v. Saunders, 66 N. H. 39; Re Debs, 159 U. S. 564; Littleton v. Fritz, 65 Iowa 488; Weekly v. Page, 46 L. R. A. 553; Charlton v. Rugg, 149 Mass. 550; Attorney General v. Hunter, 16 N. C. 12; People v. St. Louis, 10 111. 351-367; Ingersoll v. Rosseau, 76 Pac. Rep. 513-515; Moore v. State, 99 N. W. 249.)</p> <p>5. The term ‘'adequate remedy at law,” as sometimes used by courts of equity, means “legal” not “criminal” remedy. (Underhill v. Murphy, 25 Ky. Law Rep. 1732; Miley v. OhearneS', 13 Ky. Law Rep. 836; Hahn v. Thornberry, 7 Bush 406.)</p> <p>6. Neaf v. Palmer, 103 Ky. 496, is contrary to reason and authority both in and out of this State and should be overruled. (Crawford v. Terrill, 128 N. Y. 341; Hamilton v. Whiting, 11 Md. 128; Blagen v. Smith, 44 L. R. A. 522; Weekly v. Page, 46 L. R. A. 553; Ingersoll v. Ro-sseau, 76 Pac. Rep. 513; Horan v. French, 61 Texas 173; Green v. Asher, 10 Ky. Law Rep. 1006; Comth. v. McGovern, 25 Ky. 'Law Rep. 411; Mercer County v. City of Harrodsburg, 23 Ky. Law Rep. 1744.)</p> <p>7. The existence or non-existence of a violated property right is wholly immaterial. Tne duty of the Commonwealth to safeguard the social, physical and, moral well-being of it’s people, is a sufficient interest to justify it in applying to its court for relief. (Re Debs, 158 II. S. 583-584; Comth. v. McGovern, 25 "Ky. Law Rep. 411; Mercer County v. City of Harrodsburg, 23 Ky. Law Rep. 1744; Alexander v. Tebeau, 24 Ky. Law Rep. 315; City of Redwine v. Gulpil, 41 L. R. A. 321; Attorney General v. Hunter, 16 N. C. (1 Dev. Eq.) 12; Columbia Athletic Club v. State, 143 Imd. 93; Pine City v. Munch, 43 Minn. 342; Butterfoos v. State, 40 N. J. Eq. 325; Mate v. Crawford, 28 aKnsas 726; Mugler v. Kansas, 123 U. S. 625; State, v. Saunders, 66 N. H. 39.)</p> <p>8. If it is discretionary with the court to grant or refuse the relief prayed for, the court should exercise that discretion in favor of the Commonwealth in this action. Every consideration of public morality and decency urgently demands that the relief be granted.</p>

<p>CASE 85. — PROCEEDINGS BY THE COMMONWEALTH AGAINST D. J. ENRIGHT AND OTHERS AND AGAINST GEORGE HUBER AND OTHERS.</p> <p>Appeal from Campbell Circuit Court.</p> <p>C. W. Yungblut, Circuit Judge.</p> <p>Prom a judgment dismissing the petitions the Commonwealth appeals</p>

<p>1. Bills and Notes: — Signature in Blank — Liability.—Under the common-law rule in Kentucky, one signing his name to a blank note and delivering it to another to be used to raise money is responsible for whatever sum the latter inserts, in the body of the note.</p> <p>2. Siame — Consideration—Statutes—“Valuable Consideration.” — ■ Where payees óf a note, on receiving it, paid a specified sum to banks, which the maker owed, there-was a valuable consideration for the note, within Negotiable Instruments Law (Acts 1904, p. 220, c. 102), section 25, providing that an antecedent debt constitutes value.</p> <p>•3. Same — '“Holders, for Value” — Statutes.—A payee of a note, who on receiving it paid a specified sum to banks, which the maker owed, is a holder for value within Negotiable Instruments Law (Acts 1904, p. 220, c. 102), section 26, providing that, where value has been given for the instrument, the holder is a holder for value.</p> <p>4. Same, — Signature in Blank — Liability.—G., P., and B. bought property and gave their joint notes for the price; each to be liable for one-third thereof. B. was unable to pay, and G. and P. agreed to pay his share on B. securing them by a note with a third person as surety. B. procured the third person’s signature to a blank note on the understanding that he would use it to borrow momey. B. filled in the blanks, signed it as maker, and delivered it to G. and P., who' paid B.’s share. Held, that the note was used for the purpose for which the third person signed it, and he was liable as surety.</p>

<p>CASE 87. — PROCEEDINGS FOR THE SETTLEMENT OF THE ESTÁTE OF JAAKIN WARE DECEASED.</p> <p>Appeal from Fleming: Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>From the judgment W. W. Ross appeals1</p> <p>SUMMARY.</p> <p>1. The farm devised by Jaakin Ware was by the doctrine of equitable conversion converted into personalty from the time of his death. (Hocker v. Gentry, 3 Met. 473.)</p> <p>2. Mary Ware, daughter of testator, Jaakin Ware, had a vested estate in the farm left by him from the date of his death. It was a defeasible fee. (Aultman, v. Gibson, 67 S. W. 57, and eases cited therein; Roper on Legacies, vol. 1, pp. 392 and 387; Jarman on Wills, vol. 1, pp 806 and 841; Byrnes v. Stilwell, 57 Am. Rep. 760; Reeds Appeal, 4 Am. St. Rep. 588; Roberts v Roberts, 3 Am. St. Rep. 344; Cathey v. Cathey, 49 Am. Dec. 714.)</p> <p>3. Mary Ware Ross’ interest having become vested was not divested by her death because she left no children. Two things were necessary to divest it: First, that she die before distribution; second, that she leave a child. (Jarman, vol. 1, pp. 827 ef seq; and 829; Byrnes v. Stilwell, 57 Am. Rep. 760.)</p> <p>4 W. W. Ross, a surviving husband is entitled to one half of the interest his wife took under the will.</p> <p>AUTHORITIES CITED.</p> <p>Aultman & Co. v. Gibson, 67 S. W. 57-58; Ferguson v. Thomas, &c.. 87 Ky. 523; Willson. &c., v. Bryan, &c., 90 Ky. 483, 484 and 485; Birneiy v. Richardson & Ford, 5 Dana 424, 430 and 431; Thackston v. Watson, 84 Ky. 210-211.</p>

<p>CABE 88. — ACTION ON A FIRE POLICY BY W. S. HARGROVE AGAINST THE CONTINENTAL INSURANCE CO. OF NEW YORK.</p> <p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>1. It is- not alleged in the amended petition that the plaintiff waived any specific provision of the policy involved in this suit.</p> <p>2. It is not alléged, that the provisions, of the old policy or policies were the same or even similar to the provisions of the policy involved in this suit.</p> <p>3. It is not alleged that. the policy in question covered the same property insured by any former policy.</p> <p>4. The allegations contained in the amended petition when taken as true, do not constitute a waiver of the provision in this policy requiring the prompt payment of the installments when due.</p> <p>5. The allegations contained in the amended petition are inconsistent with those of the original petition. In the former, the appellee pleads prompt payment in accordance with his alleged contract, while in the latter he seeks to excuse prompt payment.</p> <p>AUTHORITIES CITED.</p> <p>Springfield, Fire and Marine Ins. Co. v. Jenkins, 9 Ky. Law Rep. 932; Potter v. Continental Insurance Co., 107 Ky. 326; Home Insurance Co. v. Ward, 72 S. W. 15; Johnson v. Continental Ins. Co., 107 S. W. 688; Franklin Life Ins. Co. v. McAfee, 28 Ky. Law Rep. 676.</p> <p>1. The policy in this case wa® only suspended while any installment of the note was due and unpaid, and -the payment of the .installment- at any time bdfore the loss revived the policy. (Potter v. Continental Insurance Company, 107 Ky. 32/5.)</p> <p>2. Accepting previous payments after due by check, is a waiver of the provisions in the policy, as also a demand ■ for payment after it is due. (Morhlan’d v. Union Central Life Insurance Co., 20 Ky. Law Rep. 432; Moore v. Continental Insurance Company, 21 Ky. Law Rep. 977; Home Insurance Company of N-ew York v. B-alle-w, &e., 29 Ky. Law Rep. 1059; Walls v. Home Insurance Company, 24 Ky. Law Rep. 1292; Continental Insurance. Company of New York v. Browning, 114 Ky. 183.)</p>

<p>1. Party Walls — Creation—Agreement or Prescription. — Under the common law, the right to use and the manner of use of a party wall depends, either on the agreement between the adjoining owners, or by prescription.</p> <p>2. Estoppel — Acquiescence.—One may adopt a situation so as to make himself a party to it as efficaciously as if he had entered at the beginning.</p> <p>3. Party Walls — Creation—Implied Agreement. — Where a party wall exists on the boundary line of adjoining owners for time immemorial, it is presumed that the wall was constructed by agreement; and, in the absence of any express agreement, the rights of the parties will depend on an implied agreement.</p> <p>4. Same — Extent of Use- — Alteration.—And such implied agreement is that the wall shall remain as a support to each building; and, if one of the owners desires to remodel or reconstruct his building he must mot injure the others’ building.</p> <p>5. Evidence — Presumptions—Custom of Men. — The law will not presume a thing contrary to the custom of men.</p> <p>6. Party Walls — Nature -of Easement. — An owner on whose boundary line is a party wall has an easement in so much of the adjoining lot as is occupied by the wall, but such easement involves no more than the right to have the wal.l maintained as a party wall.</p> <p>7. Same — Extension—Compensation.—Where one owner of a party wall alters- his house resting on the party w>all by building on his side of the wall to the top thereof, and then, building another story, using the whole thickness of the party wall, the other owner, if he desires to so extend his house and use the party wall as extended, must compensate the other for ,one-half of its then value.</p> <p>-S. Contracts — Construction—General Rules. — -While the law does not make contracts for parties, it attempts to construe them according to the presumed intent.</p> <p>9. Party Walls — Prescription—Exten-t of Use. — Where one builds a wall on his own lot, but adjoining -or near another lot and the owner of the latter, without express agreement, joins his building to the wall, and maintains it for a period sufficient to constitute a bar under the statute of limitations, the latter has a right, established by prescription, to maintain the exact house he has built, and, in the manner and to the extent of his use-, he cannot be interfered with by the former.</p> <p>10. Same — Implied. Agreement — Extent of Use. — One party wall owner, desiring to alter his house, which rested on the wall, built an additionial wall on his lan-d, and tied it to the party wall until it reached the top thereof, and then built a new wall the full thickness of the party wall for the remaining story, all of which was done without any injury to the party will, or to the other owners house, which also used the party wall. The rights of the parties depended on an implied agreement, th© wall having been used for time immemorial, and there was- no question of prescription. Held, that such alteration must have been intended by the parties, and-- such construction was proper, and could not be enjoined.</p>

<p>CASE 90. — ACTIONS BY HENRY RUSSELL’S ADMR. AGAINST THE FRANKFORT & SUBURBAN RAILWAY CO. AND BY THOMAS P. BRAWNER’S ADMR. AGAINST THE FRANKFORT & VERSAILLES TRACTION CO. TO ENFORCE JUDGMENTS.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for defendant in each case, plaintiffs appeal</p> <p>POINTS SUGGESTED AND AUTHORITIES.</p> <p>1. Appellant is a creditor. (Lillard v. McGee, 4 Bibb 165; Slater v. Sherman 5 Bush 206; Abglin v. Conley 24 Ky. Law Rep. 1551.)</p> <p>2. Appellant is by virtue of section 203 of the Constitution and section 560 of the Kentucky Statutes a preferred creditor of the Frankfort & Suburban Railway Co. (Kentucky Constitution sec. 203; Kentucky Statutes, sec. 560; Guardian Trust Co. v. Fisher, 200 U. S. 57, 50 L. Ed. 367.)</p> <p>3. By the alleged sale of all tne property of the Frankfort & Suburban Railway Co. to the Frankfort & Versailles Traction Co. the latter company absorbed the former and the two companies were merged in the latter so that in law it became liable for all the debts of the former. (Camden Interstate Ry. Co. v. Lee, 84 S. W. 332, 27 Ky. Law Rep. 75; L. & N. R. R. Co. v. Biddle, 112 Ky. 494; Louisville. New Albany & Chicago R. R. Co. v. Mathias Boney, 3 L. R. A. 435, and notes; Thompson on Corporations, sec. 372; 6 Am. & Eng. Ency. of Law, 818; 10 Cyc. 306, 314J</p> <p>4. ’me alleged sale and conveyance by the Frankfort & Suburban Railway Co. of its property was a fraud upon appellant and the other creditors of said company and void. (Cole v. Mercantile Trust Co., 30 N. E. Rep. 847; L. & N. R. R. Co. v. Biddle, 112 Ky. 494; Bartlett v. Drew, 57 N. Y. 587; Brum v. Insurance Co., 16 Fed. Rep. 143; Mor. Corp. sec. 791.)</p> <p>5. Suggestions in regard to the doctrine of subrogation attempted to be invoked by counsel for appellee in the court below</p> <p>6. The appellee, Frankfort & Versailles Traction Co. cannot be heard to say that the property received by it from the Frankfort & Suburban Railway.Co. together with the $300 Lougee franchise was worth less than $350,000. (Kentucky Constitution, sec. .193; Kentucky Statutes, sec. 568; Altenberg v. Grant, 29 C- C. A. 185, 85 Fed. 345.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There wasi a merger of the two corporations so' as to make the property of the old company in the hands of the new, liable for the appellants debt. (Camden Int. Ry. Co. v. Lee, 27 Ky. Law Rep. 75; C. & O. Ry. v. Griest, 85 Ky. 619; L. & N. Ry. v. Biddell, 112 Ky. 497; Tompkins v. Ry. Co., 102 Ga. 436; A. & B. Ry. v. Johnson, 127 Ga. 392.)</p> <p>2. Effect of «ection 560, Kentucky Statutes, as applied to the Sights and remedies of appellant, creditor.</p> <p>3. Effect of section 203, Constitution, on appellants rights. (Guardian Trust Go. v. Fisher, 200 U. S. 57.)</p> <p>4. New company not a bona fide purchaser for value. (Williams v. Commercial Bank (Oregon) 90 Pac. Re¡p. 1012.)</p> <p>5. Appellant, a creditor, has a prior right to Appellee Buckley, who was a stockholder of the old Suburban Ry. Co. (Curran v. • State of Ark., 15 Howard 304; Railroad Co. v. Howard, 7 Wall. 392.)</p> <p>6. The so-called bonded debt, or mortgage debt, is vovd under section 193 of the Constitution, as well as under the statute.</p> <p>AUTHORITIES.</p> <p>1. Subrogation of bondholder®. (Thompson on Corporations, section 6547; McMurtry v. Montgomery Masonic Temple Co., Í) Ky. Haw Rep. 542, 543; Osborne’s Admrx. v. Monks, etc., 14 Ky. Law Rep. 606; Sheldon on Subrogation,, section 19; Altenberg v. Grant, 85 Fed., Rep. 346.)</p> <p>2. Guaranty of bondholders’ rights. (Constitution, Bill of Right, subsection 5; Constitution, section 203; Thompson on Corporations, section 372.)</p> <p>3. Under ample authority there was -no substantial irregularity in 'the organization of the companies or in the disposition of their bonds at their fair value.</p>