Volume 132 — Kentucky Reports

<p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiffs. Defendants appeal.—</p> <p>2. The court erred in giving instruction “Z” offered by tbe .plaintiff.</p> <p>3. Tbe court erred in refusing to give instructions “X” and “W” offered by defendants'.</p> <p>4. Decause the damages as fixed by tbe jury are excessive so as to indicate and appear .to hiave been given under the influence of passion and prejudice.</p> <p>5. Because tbe verdict and decision of tbe jury is not 'sustained by tbe evidence and is grossly and flagrantly contrary to the evidence.</p> <p>6. Because over tbe objections1 of counsel for tbe appellants tbe court permitted counsel for appellees to ar/gue to tbe jury tb'at Mrs. M. E. Bollinger could not be compelled to repair her portion of the west wall of building claimed to have been damaged.</p> <p>7. Because tbe court erred in refusing to allow tbe jury to see ■an estimate in writing admitted to have been made by tbe plaintiff, J. W. Ridgway, in bis own band-writing, a few days lafter tbe fire, which estimate set out tbe amount of damage tbe plaintiffs claimed tbe said fire caused to the plaintiffs’ building. This ruling made over tbe objection of tbe defendants..</p> <p>8. Because when said1 estimate was offered to tbe jiiry by counsel for defendants, the counsel for plaintiffs in presence and bearing of the jury in a .violent manner said “counsel for defendants is attempting to slip something to tbe jury,” whereupon, in tbe presence and bearing of the jury, the. court made tbe remark: “Tbe action of counsel for defendants i.s highly improper.” By this conduct and these prejudicial remarks tbe jury were forced to conclude that some wrongful act was attempted by counsel for defendants. These remarks greatly prejudiced the rights of the defendants, and tbe court erred in refusing to admonish tbe jury that the counsel for defendants was only in exercise of right as counsel.</p> <p>AUTHORITIES CITED.</p> <p>Sedgwick on Damages;, section 932 (8th Ed.); Maysville v. Stanton, 12 Ky. Law Rep. 586; Fonda v. Parr, 10 Ky. Law Rep. 445.</p> <p>party wall are sustained by S. B. & C. C. Spaulding vs. Grundy, 31 Ky. Law Rep. 951; S'aunders vs. Martin (Tenn.), 31 Am. Rep. 598; Wilford vs>. Gerard, 22 Ky. Law Rep. 203; Campbell vs. Mesier, 8 Am. Dec. 570.</p> <p>2. Under these authorities .appellees were the owners of 'one-half of the west wall to the second story, and all of the wall above the second story, and the .right of use of the other one-half of said wall to the second story, and the measure of damages, as tc their wall, was. the difference in value of said wall as- thus defined, just before the said fire and immediately after said fire, as a result of the fire.</p>

<p>Appeal from Caldwell Circuit Court.</p> <p>J. F. Cordon, Circuit Judge.</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1, The invasion of Princeton, Ky., on the night of November-30, 1906, o-r nearly morning of December 1, 1906, was a riot. The term “riot” and “mob” are synonymous: (Prather v. City of Lexington, 13 B. M. 559; Ward v. City o-f Louisville, 16 B. M. 184; Criminal Code, section 575; Ky. Stats., -section 9; City of Madison-ville v. Bishop, 23 Ky. Law Rep. 2364; Marshall v. City of Buffalo,.. 50 N. Y. App. 149, 6 N. Y. S-upp. 411; Lycoming Fire Ins. Co. v.„ Schwenk, 95 Pa. St. 89 (40 Am. Rep. 629); German Fire Ins. Co.. v. Deckard, 28 N. E. 868; Dupin v. Mutual In.s. Co., 5 La. Am. 482; Century Dictionary; Webster’s Dictionary; Hawkins Pleas of Crown, c. 65, .section 9; Follis v. State (Tex.), 40 S. W. 277; -Aaron v. City of Wausau, 74 N. Y. 854; Words and Phrases, vol. 7, p. 624; State v. Brazil (S. C.), Rice 257; State v. Sims, 16 S. C. 486; Bouvier’s L. D. 248 and 599; Am. & Eng. Ency. of Law, vol. 15, p. 698; State v. Snow, 18 Me. 346; State v. Boies, 34 Me. .235; Darst v. People, 51 111. 286; Bell v. Mallory, 61-111. 167; U. S. v. Stockwell, 4 Cranch 671; U. S. v. Fenwick, 4 Cranch 675; •County of Allegheny v. Gibson, 90 Pa. St. 397; People v. Judson, 11 Daly 1.) .</p> <p>2. The difference between incendiarism amd the act of the mob is that in one case the constituted authorities are not prevented by the destroying agent from interferring, while in the other case the destroying agent at one anid. the same time commits the act ■and overpowers1 the authorities, thereby preventing interference. (Century Dictionary; Bouvier’s Dictionary; Straus v. Imperial Fire Ins. Co., 94 Mo. 182, 4 Am. St. Rep. 369.)</p> <p>3. Policies of insurance should be construed rationally, according to the subject, object amd plain intent, and that construction should be followed which will uphold, the contract as a whole. (Montgomery v. Fireman’s Ins. Co., 16 B. M. 427; Michigan Fire Co. v. Stein, 5 Bush 659; Aetna Ins. Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395.)</p> <p>4. The phrase “except as hereinafter provided” following the main prorr'se insuring against direct loss or damage by fire, is a limitation upon the causes of fire insured against. (Yoch v. Insurance Co., Ill Cal. 503 (510).</p> <p>5. The "riot” clause of the Standard Fire Insurance policy exempts the companies from the payment of the losses sued on. (Montgomery v. Fireman’s Ins. Co., 16 B. M. 427; Michigan Fire & Marine Ins. Co. v. Whitelaw, 1 Ohio Cir. (new series) 412; S. C. affirmed, 73 Ohio St. Ct. 365; Conner v. Manchester Assurance Co., -130 Fed. 743; Imperial Fire Ins. Co. v. Fargo, 95 U. S. 227,</p> <p>L. Ed. 430; St. John v. American Fire Ins. Co., 1 Herman (N. Y.) 516; Wiillard v. Williamsburg City Fire Ins. Co., C. C. A. Ninth Circuit, decided November, 1908, 164 Fed. 404; Baker v. City Fire Insurance Co., 157 Fed. 281; Lycoming Insurance Co. v. Schwenck, 95 Pa. St. 90, 40 Am. Rep. 629.)</p> <p>6. The Standard Fire Insurance policy must be construed with reference to previous decisions. It is a New York contract and regard must be had, therefore, for the decisions of the New York courts prior to its adoption. (Waldradt v. Phoenix Ins. Co. (N. Y.), 32 N. E. 1065; John Davis v. Ins. Co. (Mich.), 73 N. W. 392; Matthews v. Ins. Co. (N. Y.), 48 N. E. 753; Clement on Insurance, vol. 1, 451.)</p> <p>7. The riot was the proximate cause of the loss. (Insurance Co. v. Tweed, 7 Wallace (U. S.) 44; Aetna Insurance Co .v. Boon, 95 U. S. Li. Bdn. 398-9; Barton v. Home Insurance Co., 42 Am. Deo. 329, 55 Ohio St. 581; Germania Fire Ins. Co, v. Roost, 36 L. R. A. 238.)</p> <p>8. The insurer is liable for all damage inevitably flowing from the fire, such as theft, water, smoke. (Sklencher v. Insurance Co., 60 Atl. 232; Webb v. Protection Ins. Co., 14 Mo. 3; Babcock v. Montgomery, 6 Barb. 640; Case v. Hartford Ins. Co., 13 111. 676.)</p> <p>9. Subrogation arises only in cases where the insurer is liable. (24 Am. & Eng. Ency. 187; Allen v. Perrine, 103 Ky. 521; Joyce o.i Insurance, vol. 4, 3537; Ostrander on Insurance, ' par. 131; Chicago, etc., R. R. v. Pullman, 139 U. S. 79, 35 L. Ed. 96.)</p> <p>10. Cases examined and distinguished. Barton v. Home Ins. Co., 97 Am. Dec. 329; Straus v. Imperial Ins1. Co., 4 Am. St. Rep. 369; Germania Ins. Co. v. Deckard, 28 N. E. 868; Commercial Ins. Co. v. Robinson, 64 111. 255, 16 Am. Rep. 557; Heffron v. Kittaining Ins. Co., 20 Atl. 698; Boatman’s F. & M. Ins. Co. v. Parker, 23 Ohio 85, 10 Am. Rep. 228.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is no defense to a suit on a policy of fire insurance in which the payment of the premium is acknowledged, to allege that the premium has not in. fact been paid, and a demurrer to that defense was properly sustained. (Ostrander on Insurance, section 87; Joyce on Insurance, section 79; Cooley’s Briefs on Insurance, vol. 1, pp. 507 and 509; Mississippi, etc., Co. v. New-land, 9 Bush 435; Commonwealth, etc., v. Grogan, 21 Ky. Daw Rep. 517, 5 S. W. 959; Pelican, etc., Co. v. Sehiednecht, 108 S. W. 312.)</p> <p>2. These suits are upon policies' of insurance against loss to tobacco by fire. The policies- contain this clause: “This company 'Shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire -in neighboring premises'; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.”</p> <p>The defenses are, in substance, that the property was set on fire and burned in the night-time by a number of persons who were armed and masked — commonly called “Night Riders.”</p> <p>3. The answers of the insurance companies do not ®et forth a state of case constituting a “riot” within the meaning of the excepting clause quoted above, and the demurrer to that defense was1 properly sustained. (Drinkwater v. Corporation, etc., 2 Wilson 663; Langdale v. Mason, 2 Marshall on Insurance 791 (both cases in Park on Insurance, 502-511); Madisonville v. Bishop, U.3 Ky. 106.)</p> <p>4. There are two standard forms of policies in use by fire insurance companies, in one of which the words “by fire” are inserted in the clause corresponding to the excepting clause in these cases, so that that clause reads; “This company shall not be liable for fire caused by invasion, riot, etc. In the other form the words “by fire” are omitted, so that the clause reads, as in these cases, “This company shall not beliable for loss caused * * * by invasion, riot, etc.” (Cooley’s Briefs on Insurance, vol. 4, p. 3020.)</p> <p>5. Fire insurance policies are strictly construed against the insurer, and especially are all ambiguities in clauses containing exceptions from the liability they have assumed, resolved against the insurer. (May on Insurance, 2 Ed., section. 17; Joyce on Insurance, section 221; Chandler v. St. Paul, etc., Ins. Co., 21 Minn. 85, 18 Am. Rep. 385; Mouler v. American, etc., Ins. Co., Ill U. S. 341; Aetna v. Jackson, 16 B. M. 242 (p. 259); American, etc., Co. v. Rergart, 94 Ky. 548; Mutual, etc., Co. v. Dunn, 106 Ky. 591.)</p> <p>6. The policies sued on are against “all direct loss or damage by fire,” and the clause in question does not exempt the insurers trom loss by fire caused by invaders, rioters, etc. — as does one from of policy, but only exempts the insurers from loss caused by invaders, rioters, etc. (Lycoming, etc., Co. v. Swenk, 95 Pa. St. 89, 40 Am. Rep. 629; Straus v. Imperial, etc., Co., 94 Mo. 182, 4' Am. St. Rep. 369; Barton v. Home, etc., Co., 42 Mo. 156, 97 Am. Dec. 329; Germania, etc., Co. v. Deckard, 28 N. E. 868; Commercial Ins. Co. v. Robinson, 64 111. 266, 16 Am. Rep. 557; Germania, etc., Co. v. Roost, 55 Ohio-St. 581, 60 Am. St. Rep. 711; Hefron V. Kittaning, etc., Co., 132 Pa. St. 580, 20 Atl. 698; Western, etc., Co. v. Cropper, 32 Pa. St. 351, 75 Am. Dec. 561; City, etc., Co. v. Corlies, 21 Wendell 367, 34 Am. Dec. 259; N. Y., etc., Co. v. Traders, etc., Co., 132 Mass. 377, 42 Am. Rep. 440; Kenniston v. Ins. Co., 14 N. H. 341, 40 Am. Dec. 193; Lieber v. Ins. Co., 6 Bush 641; Insurance Co. v. Pence, 93 Ky. 96; Campbell v. Merchants, etc., Co., 37 N. J. 35, 72 Am. Dec. 324.)</p> <p>7. If there is a difference of opinion in the construction placed by different courts upon the clause in question, the weight of authority and reason is on the .side of the construction which holds the insurer liable. Joyce discusses the particular clause in. . question. (Joyce on Insurance, section 2592.)</p>

<p>CASE 3. — ACTION BY JAMES B. EDWARD’S ADMR. AGAINST J. W. LAM FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE</p> <p>1.. Master and Servant — Injury to Servant — Ventilation of Mines— Instructions. — Under Ky. Stats., 1909, section, 2731, inquiring the operator of every coal mine to maintain for every mine ventilation of not less than 100 cubic feet of air per minute per employe, circulated throughout the mine so as to render harmless the noxious gases therein, etc., an instruction which makes the operator liable for injuries to an employe through failure to provide a contrivance with power to maintain “abundant supply of air” in, the mine is erroneous for failittg to comply with the statutory requirement, and for leaving the jury to determine what was an abundant supply of air.</p> <p>2. Injury to Servant — Evidence—Instructions.—Where, in an action- for injuries to -a coal mine employe by an explosion in the mine, the evidence showed that blasts should be fired no closer than five- minutes apart, and in, regular order beginning next to the point where the air current left the mine; that the employer had employed a man whose duty it was to fire the blasts after the miners left; that such man had been absent for a day or two and still was absent on the day of the accident; that in his absence the miners fired their blasts, but there was nothing to show that the mine bossi directed the firing thereof — the court must instruct as to the duty of the operator in regulating the firing of the blasts.</p> <p>3. Injury to Servant — Mines—Blasting.—Where an operator of a coal mine or the mine boss working under him failed to use ordinary care in regulating the time and manner in which the miners should fire their blasts, and negligently allowed them to fire them so as to cause an explosion injuring an employe, the operator was liable for the injuries sustained. .</p> <p>4. Injury to Servant — Hines—Blasting—Ventilation.—Where an ■explosion in a coal mine injuring an employe was caused solely by the negligent manner in which the miners fired their blasts, the employer was- not liable, but where the employer negligently failed to exercise ordinary care in regulating the time and manner in which the miners should fire their blasts, and to comply with Ky. Stats., 1909, section, 2731, requiring the operator of every mine to maintain for each miner a specified amount of ventilation, the employer was responsible if the explosion would not have occurred but for his negligence.</p> <p>5. Injury to Servant — Mines—Evidence—Admissibility.—In an action for injuries to a coal mine employe occasioned by an explosion in the mine resulting from a want of ventilation, proof that the mine boss or the superintendent the day after the accident went through, the mine, and' found that the ventilation therein was good, was inadmissible.</p> <p>6. Obligation of Master — Contracts with Servants' — Effect.—The duty of a coal mine-owner, independent of statutory regulation and of ■ the primary duty to furnish a reasonably safe place in which to work, and appliances with which to work, may vary according to the contract between himself and his employes, and the latter may contract to ,rely on themselves in the manner of doing the work.</p> <p>7. Fellow Servants' — Who Are. — A master who divides his men into grades, putting one over another or one not connected with another in the same service, takes away from the men something of the personal supervision of one over another in a common employment which constitutes them fellow servants, and one put over another is not a fellow servant of the latter.</p> <p>8. Same1. — A contract between a coal mine owner and his employes which stipulates that the employes shall be members ■of a local organization, and that they shall employ a man to “shoot tir© mines,” and that no one shall be allowed to “shoot out of turn,” is valid, and all the employes who are parlies to the agreement or who enter employment under it are fellow servants, though they are in different rooms or passages, ■and not directly associated in their work.</p> <p>9. Same. — A contract between a coal mine owner and his employes, members of a local organisation, stipulating that the ■employes are to employ one to “shoot the mines,” and that no one shall be allowed.to “.shoot out of turn,” does not affect the owner’s duty to provide the ventilation and’ other safeguards prescribed by the statutes.</p> <p>10. Injury to Servant — Evidence—Instructions.—Where, in an action for injuries to a coal mine employe by an explosion, the evidence showed that the explosion was caused by the negligence’ of the shot firer, and that the contract of employment stipulated that the employes should employ a man to . “shoot the mines,” the instructions must predicate a finding for the operator on the jury finding that the employes were working under the contract and rules promulgated in accordance with it.</p> <p>11. Ventilation of Mines — Statutes.—The statute regulating ventilation of coal mines does not contemplate a system of ventilation that will keep the mines free from negligent explosions of powder by the men working in an unskillful manner, hut, under normal conditions in the mine, the draft must be such as will afford the minimum of pure air stated in the statute, and, where the miners violate the rules of proper mining, so that the means provided under the .statute for sufficient ventilation in proper mining are ineffectual, the mine owner is not civilly liable.</p> <p>12. Evidence — Similar Facts — Similarity of Conditions. — Where, in an action for injuries to a coal mine employe by an explosion in the mine, resulting from want of ventilation, the operator showed that the conditions existing before the explosion occurred existed on the day following, when an inspector inspected the mine, it was competent for the inspector to testify what the reading of his instrument was as indicating velocity and volume of the current of air passing through the mine, and whether the same provided the men with the quantity of pure air required by the .statute, when the mine was operated prudently.</p>

<p>CASE 4. — PROSECUTION AGAINST DANIEL BO'ONE WATSON. JR., FOR MURDER.</p> <p>1. Criminal Law — Appeal and Error — Review—Questions of Fact ■ — Conclusiveness of Verdict. — A conviction, based on the testimony of a single witness, will not be disturbed on the ground that the verdict is against the weight of the evidence.</p> <p>2. Criminal Law — Evidence—Other Offenses. — On a trial for murder in a local option county, it was error to admit evidence as to a sale of liquor by the 'accused to the deceased and his commpanion shortly before the homicide and as to a conviction of the accused some time before the homicide for selling liquor without license, where such offenses were not connected with the homicide and neither supplied a motive for it or threw any light upon the question whether it was necessary.</p> <p>3. Homicide — Trial—Instructions.—The omission to charge upon defendant’s right to kill to protect himself and the members of his family from injury and insult was error, where there was evidence that deceased grossly insulted defendant’s wife and other members of his family after entering defendant’s home and refused to leave when ordered to go.</p>

<p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals</p> <p>The material questions to be determined in this case are as follows:</p> <p>1. Did the court err in overruling appellant’s general demurrer to appellee’s petition, because same did not allege that appellee was eligible to the office of city treasurer, or such constitutive facts as show that he was eligible.</p> <p>2. Is the appellant ineligible to succeed himself as city treasurer under the terms of section 160 of the Constitution, and sections 3131 and 3132, Kentucky Statutes.</p> <p>3. Is the city clerk of'Paducah, or second class cities, the proper officer to take and approve the official bond of city treasurer.</p> <p>AUTHORITIES CITED.</p> <p>Constitution, sections 160, 167 and 156; Ky. Stats (Treasurer), sections 3131 and 3132; Ky. Stats. (Clerk), sections 3133 to 3136; Ky. Stats. (Mayor),'sections 3106 to 3117; Elliott v. Burke, 113 Ky. 479, 483; Toney v. Harris, 85 Ky. 464; Justices v. Clark, 1 Mon. 82; Tillman v. Otter, 93 Ky. 604; Patterson v. Miller, 2 Mete. 497; Overshiner v. State, 59 N. B. 470; People- etc., v. Ballam, 54 N. E. 1032; People, etc., v. Schew, 60 N. E. 650; Risley v. Howell, 64 Fed. 453.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. In an action to recover an office usurped by another, if plaintiff’s petition charges that he was duly elected and has been awarded a certificate for the office to which he aspires and has qualified therefor, it is complete. (Morgan v. Vance, 4 Bush 323; Jones v. Commonwealth, 10 Bush 725.)</p> <p>2. Title to office and eligibility therefor are separate and distinct; the former flows from popular favor, the latter from sovereignty which prescribes in Constitution or Statute the conditions under which the title may ripen' by user.</p> <p>3. In cities of the second class it is the duty of the city clerk, to register and preserve in his office all contracts, bonds, oaths or affirmations taken or given by city officers or employes and ter administer all oaths to city officers. (Ky. Stats., section 3136.)</p> <p>4. In section 160 of the Constitution the expression “elected under this Constitution” means “selected under this Constitution,” and a fiscal officer elected or selected under the Constitution is ineligible to succeed himself.</p> <p>5. The term of such office is four years and until his successor is qualified; and in addition to the definition of fiscal officer set out in section 160 of the Constitution, all officers created by the Lexislature, whose principal duty is the handling of public funds, are fiscal officers within the meaning of said section.</p>

<p>CASE 6. — APPLICATION BY. GRACE R. BRADSHAW POR A RULE AGAINST H. C. BAKER, CIRCUIT JUDGE, TWENTY-NINTH DISTRICT, TO ENTER A CERTAIN JUDGMENT.</p> <p>Appeal ,and Error — Mandate and Proceedings in Lower Court.— in an action by a widow for the construction of her deceased husband’s will, the circuit court held that plaintiff might dis- .. pose of the estate, if necessary for her support. On approval it was held that she could only sell to pay charges against the estate. Thereupon a judgment setting aside so much ■of the original judgment as held plaintiff entitled to use the principal for her support was entered by the circuit court, which further adjudged that plaintiff took only a life estate, with the duty to preserve the principal intact. Held, That the judgment substantially complied with the opinion of the-appellate court.</p>

<p>Appeal from Perry Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Prom the judgment Bush, intervener, appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Error to sustain attachment without proof, when grounds for attachment are controverted. (Crow v. Straus, 14 Ky. Law Rep. 206; Reynolds v. Wright, 18 Ky. Law Rep. 1017.)</p> <p>2. Burden of proof on attaching creditor. (Morrow v. Smith, etc., 4 B. Mon. 99; Bowling’s Admr. v. Davis, etc., 19 Ky. Law Rep. 1859; Crow, etc., v. Straus, 14 Ky. Law Rep. 206.)</p> <p>3. The court should have given peremptory instructions to find for defendant. (Buford v. L. & N. R. R. Co., 5 Ky. Law Rep. 503.</p> <p>The court not only refused to instruct the jury for the defendant, Bush, but, in its instruction placed the burden of proof upon him. It is universally held by the courts that it is the duty of the court to direct a verdict when it is proper to set ret aside a different one, if rendered. (North Pa. R. R. Co. v. Commercial National Bank, 123 N. S. 727, 52 Fed. 777.)</p> <p>AUTHORITIES CITED.</p> <p>4 Cyc. 743; 43 Kv 99; Am. & Eng. Eney. of Law, 23 vol. 558; Hollon v. Lilly, 100 Ky. 559; North Pa. R. R. Co. v. Commercial National Bank. 123 N. S 727, 52 Fed. 777; Reynolds v. Wright, 38 S. W. 861.</p> <p>POINTS AND AUTHORITIES.</p> <p>•1. On waiving errors in sustaining attachments. (5 Bush 178;| 5 B.'M. 178; 12 Ky. Law Rep. 291; 13 Ky. Law Rep. 542; 15 Ky. Law Rep. 269; Sneed, 296; 9 Dana 233; 8 B. M. 212; 1 Duv. 93.)</p> <p>2. Burden of proof. (Civil Code, section 29; Taylor v. Taylor, 3 Bush 118.)</p> <p>3. On . refusing peremptory instructions. (United Society of Shakers v. Underwood, etc., 11 Bush 265; Taylor v. Taylor, 3 Bush 118.)</p>

<p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal</p> <p>Appellants assign the following reasons why this case should be reversed:</p> <p>1. The court erred in overruling the demurrer of infant appellants, then defendants, to appellees, then plaintiffs, petition.</p> <p>2. The court erred in allowing the deposition of Marion Stepp to he used against infant appellants, then defendants.</p> <p>3. The court erred in cancelling deed from Lawyer T. Lowe, etc., to Orison P. Lowe, etc., and in decreeing specific performance of the title bond, defeating infant appellants’ remainder interest in said land.</p> <p>AUTHORITIES CITED.</p> <p>Cyc. vol. 13 (d), 692; Arnett, etc., v. McGuire, 23 Ky. Law Rep. 2319; Devlin on Deeds, section 969; 7 Ky. Law Rep. 664; Ky. Stats., section 2345; Cyc. vol. 13 (e), 694; Civil Code, section 606, subsection 2; 2 Black 154; Devlin on Deeds, section 970; Cyc. vol. 13 (e), 689; Bispman’s Eq. (7th Ed.), section 378.</p> <p>In the ease at bar, the consideration was the support, or partial support, and the care and maintenance of the grantors; and the proof in the case instituted by Lawyer T. Lowe for the purpose of cancelling the deeds, as well as the proof in this case, will show conclusively that Orrison P. Lowe had failed to keep or perform, and that under the circumstances it was impossible for him to keep and perform, the conditions set .out in the contract.</p>

<p>Appeal from Warren Circuit Court.</p> <p>John M. Calloway, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Thomas R. Gordon, Judge.</p> <p>Judgment awarding writ of mandamus. Defendants appeal.</p>

<p>CASH 11. — PETITION BY A. GATLIFF AGAINST THE COMMONWEALTH TO LIST LANDS FOR TAXATION UNDER ACTS 1906.</p> <p>1. Taxation — Assessment—Petition to List — Sufficiency.—Act June, 1906 (Acts 1906, p. 115, c. 22), art. .3, section 1, requires owners of land to pay all taxes assessed or assessable for tbe years 1901-1905. Under section 2 a petition by tbe owner to list tbe land must describe the land so that it may be identified. "A petition stated that petitioner owned by equitable title 90 grants from tbe Commonwealth, of 200 acres each, granted in 1870 to specified persons; described the lands as “400 acres on tbe point on tbe west side of” a specified creek, etc.; and further stated that tbe patents include land patented before 1870, and that the land actually held by him was about 4,000 or 5,000 acres, worth about $12,500. On the petition being held insufficient by the county court, petitioner tendered an amendment fully describing each tract; but the last-mentioned provision of the original petition was left unchanged. On appeal to the circuit court he was allowed to file the amendment, and later filed another retaining such provision and giving a different description of the tracts; eliminating the boundaries conflicting with what petitioner conceived to be better titles. Held, That the petition and amendments insufficiently described the lands under the statute.</p> <p>2. Taxation — Assessment—Petition to List — Time for Piling. — The act makes the county court the assessing tribunal and re quires lands, to be listed before January 1, 1907. Held, That the county court having ruled properly on the petition and its amendment, and petitioner having failed to tender to that court within the prescribed time a sufficient petition, his right to file it could not be revived nor extended by an appeal to the circuit court.</p>

<p>CASE 12. — ACTION FOR MANDAMUS BY J. S. MILLER, COUNTY JUDGE, AGAINST THE MONROE COUNTY COURT.</p> <p>1. Judges — Fixing Compensation. — Since Ky. Stats., section 1072, makes it the duty of the fiscal court to fix the salary of the county judge, and section 978 provides that any person aggrieved' may appeal, the circuit court can not acquire jurisdiction to revise by direct action the action of the fiscal court fixing such salary.</p> <p>2. Mandamus — Parties.—In a mandamus to require the fiscal court to fix a reasonable amount as salary of the county judge, the members of such court are necessary parties.</p> <p>3. Counties — Claims—Compensation of County Judge — Regulation. — As the' county judge’s salary is regulated by statute (Ky. Stats., section 1072), the rule allowing suits on other claims against a county does not apply to such salary.</p> <p>4. Judges — Compensation—Jurisdiction to Fix. — The jurisdiction of the fiscal court, under Ky. Stats., section 1072, to fix the salary of the county judge, is exclusive, subject only to the right of appeal.</p> <p>5. Judges — Compensation—Power of County Attorney. — The county attorney has no power to agree that an order of the fiscal court, fixing the salary of the county judge, he set aside.</p> <p>6. Mandamus — Subjects of Relief — Order Fixing Compensation.— Though the order of the fiscal court fixing the salary of the county judge he void, it can not he annulled by mandamus.</p> <p>7. Judges — Fixing Compensation — Appeal from Void Order.— Though a consent order of the circuit court fixing the salary ■ of the county judge he void, no appeal lies therefrom, unless a motion to set it aside he first made and overruled.</p>

<p>Appeal from Craves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals</p> <p>So far as we have been able to find, no authority has gone so far as to hold that the mere solicitation by an agent of additional insurance, or the mere knowledge on his part that the insured at some time contemplates taking out additional insurance, will amount to a waiver of the expressed stipulations in a contract.</p> <p>AUTHORITIES CITED.</p> <p>Stevenson v. Phoenix Ins. Co., 83 Ky. 11; Ostrander on Fire Insurance, section 252; 111. Mut. Life Ins. Co. v. Malloy, 50 111. 419; Gilbert v. In-s. Co., 36 Barb. New York, 372; Joyce on Insurance, volume 5, section 2487.</p> <p>POINTS AND AUTHORITIES.</p> <p>If the insurance company or its agents knew of appellees inten-' tion to take additional insurance, this was a waiver of the provision of the policy prohibiting the issual of additional insurance without the consent of the company. (Brumfield v. Union Insurance Co., 10 Ky. Law Rep. 14; Commercial Union Assurance Co. v. Urbansky, 24 Ky. Law Rep. 462.)</p>

<p>CASE 14. — ACTION BETWEEN HENRY JVI. HENSLEY AND ■ THE BURT & BRABB LUMBER COMPANY INVOLVING THE TITLE AND BOUNDARY TO CERTAIN LAND.</p> <p>Í. Boundaries — Conflicting Elements — Control of Monuments. — It is the entry and survey of land which appropriates it, the patent merely confirming the survey, and where the patent' calls for incorrect courses and distances to an existing monument, or does not correspond with the actual survey, the location of the monument or the survey operates to correct the patent.</p> <p>2. Public Lands — Patents—Construction—Reference to Other Instruments. — Where the calls of a patent are incorrect, any document referred to therein may be looked to to correct the patent, and, where a patent referred to the certificate of survey, such certificate could be examined to correct the calls of the patent, if the intention of the parties can be gathered with reasonable certainty from the patent and the instrument referred to therein.</p> <p>•3. Public Lands — Patents—Construction-—-Intention.-—In construing a patent the intention of the grantor must be sought and ' effectual ed, if possible.</p> <p>4. Deeds — Construction—Construing Instruments. Together — Patent and Survey Certificate.- — -Where a patent, the calls of which were incorrect, referred to the surveyor’s certificate and plat showing the correct courses and distances, which included a larger quantity of land, and the patentee conveyed the land by the calls in the patent, and' the patent was referred to in the deed, the certificate of survey and plat became a part of the description in the deed and could be referred to to correct the erroneous calls therein.</p> <p>5. Boundaries — Courses and Distances — Reversing Courses.— Where one of the calls of a deed containing six calls was erroneous, but the first two calls were to existing monuments which were correctly located, the error could be corrected and the boundary established by running the first two calls, and then reversing the calls from the ■ first known corner and running the other lines until the third from the beginning on reversal was- reached,, and then running a line, disregarding the course called for by the deed, to the -established third corner. \</p> <p>6. Deeds — Validity—Mistake as to Quantity — Effect.—Where the intention of the parties was to convey all of the land covered by a patent to the vendor, any mistake in the patent as to the land conveyed would not affect a conveyance of the patentee’s title, especially after the land had passed to innocent purchasers, though the grantor might have a claim for the price of the additional land.</p>

<p>Appeal from Campbell Circuit Court.</p> <p>A. S. Campbell and C. W. Yungblut, Successive Judges.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. In this action hy plaintiff to recover damages for having his foot mashed by the drawhead of a car, it is argued on behalf of defendant that plaintiff has not sustained by testimony the material averments of his petition; that the trial court erred in submitting the case to the jury, and in refusing to instruct the jury peremptorily to find for defendant. (I. C. R. Co. v. Broughton, 25 Ky. Law Rep. 1752; L. & N. R. R. Co. v. Hunt, by &c., 11 Ky. Law Rep. 825; Johnson v. L. & N. R. R. Co., 29 Ky. Law Rep. 36; Southern Ry. Co. in Ky. v. Thomas, 29 .Ky. Law Rep. 79; Beiser v. C. & O. Ry. Co., 29 Ky. Law Rep. 249; L. & N. R. R. Co. v. Hocker, 111 Ky. 707; Hocker v, L. & N. R. R. Co., 29 Ky. Law Rep. 69.)</p> <p>2. There was no sufficient averment in plaintiff’s pleading as to loss of wages because of his injury, nor any testimony, to justify the court in instructing the jury that they might find, and warranting the jury in finding, $590 for loss of wages. (L. & N. R. R. Co. v. Mason, ?4 Ky. Law Rep. 1625; Jesse v.' Shuck, 11 Ky. Law Rep. 463; L. & N. R. R. Co. v. Reynolds, 24 Ky. Law Rep, 1402; Macon, by, &c., v. Paducah Street Ry. Co., 110 Ky. 680.)</p> <p>3. It conclusively appears from plaintiff’s own testimony that he had no duty to perform in being on the car when he was injured. He was improperly and negligently there. Defendant’s servants had no reason to anticipate plaintiff would be where he was. The only negligence connected with the accident was plaintiff’s own negligence. (Mitchell Tranter Co. v. Ehmett, 23 Ky. Law Rep. 1788, 55 L. R. A. 710; Lacket v. Lutz, 94 Ky. 287.)</p> <p>4. Plaintiff having been injured while prematurely and negligently upon a car, testimony as to pedestrians -having previously walked on the track in the mill yard where the accident occurred was incompetent and prejudicial. (L. & N. R. R. Co. v. Redmon’s Admr., 122 Ky. 385; Brackett’s Admr. v. L. & N.- R. R. Co., 33 Ky. Law Rep. 921; Clark, by &c., v. L. & N. R. R. Co., 33 Ky. Law Rep. 797; L. & N. R. R. Co. v. Pendleton, 31 Ky. Law Rep. 1025.</p> <p>5. The instructions given by the court on plaintiff’s motion, and on the court’s own motion, over defendant’s objection and exception, were erroneous and prejudicial in sundry material respects. (L. & N. R. R. Co. v. McCombs, 21 Ky. Law Rep. 1238.)</p> <p>6. Even if there was some negligence on the part of defendant’s servants, plaintiff would not have been injured except for his contributory negligence, - and he is not entitled to recover. (Hummer’s Extx. v. L. & N. R. R. Co., 32 Ky. Law Rep. 1315; L. & N. R. Co. v. Mounce’s Admr., 28 Ky. Law Rep. 933; Mize v. L. & N. R. R. Co., 32 Ky. Law Rep. 415; Southern Ry. Co. in Ky. v. Clark, 32 Ky. Law Rep. 69.)</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The allegation in appellee’s petition as to loss of time was sufficient. Said allegation was not denied by appellant in its answer. Testimony upon behalf of appellee showing appellee’s loss of time and the value thereof was introduced before the jury without objection or exception by appellant. (111. Cent. R. R. Co. v. Beauchamp, 25 Ky. Law Rep. 1431, which distinguished the cases of L. & N. R. R. Co. v. Mason, and L. & N. R. R. Co. v. Reynolds, cited by appellant, and found respectively on pages 1625 and 2405 of 24 Ky. Law Rep.)</p> <p>. 2. Appellant’s objection to instruction No. 6 was not made one of the grounds for a new trial. (John’s Admr. v. L. & N. R. R. Co., 10 Ky. Law Rep. 759; Bland, &c., v. Gaither, &e., Id. 1035.)</p> <p>3. The issue is not whether the car upon which appellee was Injured had, at the time and place of his injury, been finally placed and delivered by appellant to the mill company. Even, if a proper issue, appellant never requested any instruction on that matter, and therefore waived any possible error on that point. The sole issues are as to the care and negligence of the parties. It was the duty of appellee to unload such cars. Said duty of appellee is admitted by pleadings. There is not a scintilla of proof tending to show that appellee was standing on the bumper or drawhead of the car, at the time and place of his injury, but was on the coping, etc.</p> <p>4., Appellant was required to use reasonable care and diligence to ascertain appellee’s presence upon said car at the time and place of injury. Pathway or passway was free and' unobstructed.</p> <p>5. Instructions to be construed as a whole. (Campbell National Bank v. O’Neal, 11 Ky. Law Rep. 763; Lancaster v. Turpin, 8 Ky. Law Rep. 430, 5 Ky. Digest Col. 7820, section 116; instruction No. 7 taken from case of Cincinnati New Orleans & Texas Pacific R. R. Co. v. Vaught, 25 Ky. Law Rep. 1870; see L. & N. R. R. Co. v. Turner, 12 Ky. Law Rep. 606; L. & N. R. R. Co. v. Farris, 30 Ky. Law Rep. 1193; 23 Enc. of Law, 734, 738, 739, 746, 754, 755 and 756, 2d Edi; Shelby v. Cincinnati, &c., R. R. Co., 85 Ky. 224; C. & O. R. R. Co. v. Wiley, 28 Ky. Law Rep. 770; L. & N. R. R. Co. v. Popp, 96 Ky. 109; L. & N. R. R. Co. v. Lodsdon’s Admr., 26 Ky. Law Rep. 457; L. & N. R. R. Co. v. Lowe, 25 Ky. Law Rep. 2317; I. C. R. R. Co. v. Murphy’s Admr., 30 Ky. Law Rep. 93; Brackett’s Admr. v. L. & N. R. R. Co., 33 Ky. Law Rep. 921; L. & N. R. R. Co. v. Berry, 33 Ky. Law Rep. 852.)</p> <p>6. All the authorities cited by appellant in support of the contention that the evidence as to use of its track by the mill employees, with its knowledge and aequiscence, was erroneous, are cases in which the fact show, and the court held, the plaintiffs to have been absolute trespassers, and, therefore, such evidence could not relieve the injured parties of the character of absolute trespassers.</p>

<p>CASE 16. — ACTION BY ESTELLE CLAY’S ADMINISTRATOR AGAINST L. E. CUNNINGHAM.</p> <p>1. Costs — Appeal—Affirmance—Damages.—Under Civil Codte of Practice, section 764, providing that, upon affirmance of a superseded money judgment, 10 per cent damages shall he awarded against appellant, on affirmance of a superseded judgment for the recovery of personalty, or its specified value, appellee was entitled to such damages.</p> <p>2. Appeal and Error — Affirmance—Damages—Procedure Below.— Judgment for damages on affirmance of a superseded judgment for the recovery of personalty, or for its value, if return can not he had, must he rendered hy the circuit court, on the filing and entry in that court of the mandate of the court of appeals, if appellee elects to enforce payment of the value fixed hy the original judgment, instead of having execution issue to recover the specific property.</p>

<p>•CASE 17. — SUIT OF J. L. BRUCE. ADMINISTRATOR OF SAMUEL HARDING, TO SETTLE THE ESTATE, TO WHICH LUCY W. HARDING ANSWERED, SETTING UP CLAIMS.</p> <p>T. Wills — “Legacy”—Definition.—A “legacy” is a gift by will of personal property.</p> <p>.2. Wills — Form—Creation of Legacy. — As- a gift presupposes ownership on the part of the. giver, a-legacy is usually created by. use of some word or phrase expressing testator’s intention to invest the legatee with the title to certain specific personal property, upon the testator’s death.</p> <p>3. Wills — Construction—Recognition of Indebtedness. — One item of a will recited that testator had. $13,000 in notes and contracts which, belonged to his wife, some in his name and some in. hers, and recited that: “I recognize this indebtedness to her-with interest from this date and it is my will that my estate-guarantee and pay the whole sum as though it was a debt, due from me to her as indeed it is-.” By the next item the wife was given one-third of the remainder of the estate after testator’s debts, “including the above to her,” are paid, etc.. Held, That the first item Was not a bequest or the creation of a legacy, but was intended to be the evidence of an indebtedness of testator to his wife.</p> <p>4. Executors and Administrators — Claims—Credits.—A will recited tha-t testator had in his possession $13,000 in notes and contracts belonging to his wife, and provided that his estate should be responsible for payment of the sum to her, with interest from the date of the will. Testator had managed his wife’s property as her agent, and continued to do so after th§ date of the will. Held, That dividends on bank stock of the-wife in the husband’s possession, accruing after the date of' the will, and which he had1 reinvested for her, not being part of the original -debt, should not be allowed as a credit thereon,. ' but should be an additional charge against the estate.</p> <p>5. Executors and Administrators- — -Claims — Evidence. — -Checks. drawn on the wife’s account by her husband as agent, after-the date of the will, the proceeds of which were used for her-benefit to procure contracts or notes, or to pay her taxes, etc.,, were not. evidences of indebtedness of the husband to the wife whether the proceeds were included in the original debt, or not, and she was not entitled to credit therefor in computing the estate’s indebtedness to her.</p> <p>6. Executors and Administrators — Claims—Evidence.—The husband having acted as the wife’s agent, and it appearing that, several of the notes included1 in the debt, and referred to in the will as being -in the wife’s possession, were collected by-the husband, and that none of them is in existence, it will be. presumed, after a lapse of nine years, that he collected all. of them, and the estate should be charged with the amount, thereof, With interest from the date of the will, especially in view of the fact that testator had indorsed them, guaranteeing their payment.</p> <p>7. Executors and Administrators — Claims—Rent of Wife’s Lands. —The wife having made no claim for rent of her land occupied by the husband since the date of. the will, in her answer in. the administrator’s suit, and having presented no claim to the master commissioner to whom the case was referred, and there being nothing to indicate that the husband expected to. pay rent, nor that the wife expected it, it should not be charged to the estate as part of the indebtedness.</p> <p>8. Executors and Administrators — Claims—Evidence.—The wife’s stock in a turnpike road having been sold, and payment made by checks payable to her, which were-indorsed by her, she presumably received the proceeds, and they should not be charged as part of the estate’s indebtedness to her.</p> <p>9. Executor-s and Administrators- — Claims—Trust Funds. — The estate having been charged, with the original indebtedness acknowledged by the will, the wife was not entitled to credit for proceeds of a note, where the money for which it was given was part of the original debt.</p> <p>10. Executors and Administrators — Claims—Credits.—Taxes personally paid by testator on his wife’s property, he having the management of her business and control of her money, should not be s-et off against the indebtedness to the wife, since if he had intended that the amount should1 be a charge against her, he would have paid it out of her money..</p> <p>.11. Court Commissioners — Compensation of Master Commissioners. —Ky. Stats., 1909, section 1740, provides that a master commissioner shall receive $3 per day, and certain percentages for the collection and disbursement- of money. Section 396 ■ provides that no allowance shall be made to a commissioner until he has filed in court a written statement under oath of the number-of days he has acted. Held, That the provision of section 1740 as to the per diem, and section 396, are mandatory, and the court can not exceed the amount provided, nor pay it in the absence of the statement; and where .it appeared that a .commissioner was entitled to a per diem of only $600, and the most of the estate that he could possibly handle was $76,600, an allowance of $3,000 was in excess of the statutory fee; the percentage being payable only on money actually received and paid out, and was improperly allowed, especially where the record contains no statement required by section 396.</p> <p>:12. Executors and Administrators — Settlement—Compensation.— Ky. Stats., 1909, section 3883, provides that an administrator’s allowance shall not exceed 5 per cent on all accounts received and disbursed, but that upon proof and notice the court may make an additional reasonable allowance, not to exceed a fair compensation for time occupied, and 5 per cent on all amounts received and distributed. Decedent left his business-in an unsettled condition, and the administrator had to operate his'planing mill for several months; finish buildings under way at decedent’s death; settle with- from 6Q0 to 800 persons owing decedent; had to be present at a hearing' before a master commissioner for over 200 days; and he conducted sales of property amounting to $50,000; collected over $70,000; ■and paid claims of over $30,000. The estate amounted to over $100,000. The cou-rt .allowed the administrator as a fee about 5 ■per cent upon the money which he had handled, and there was a large part of the estate yet to be disposed of, notes to be collected, and the business of the estate to be closed. Held,. That he was entitled to a further allowance of $1,000 for compensation for services which he would be required to perform in winding up the estate subsequent to the former allowance.</p> <p>13. Executors and Administrators- — Settlement—Attorney’s Fees.— An attorney employed by an administrator is entitled to a reasonable fee; and, while he should have a more liberal allowance for advising in the settlement of a large estate than where less money is involved, his fee should, in the main, be regulated by the character of the services rendered.</p> <p>14. Executors and1 Administrators- — Settlement—Attorney’s Fees.— An estate consisted of over $100,000 worth of personal and real property. An attorney advised the conversion of the whole of it into cash, advised the administrator from his qualification, for about six years, filed an administration suit and conducted the litigation, which was spirited and at times acrimonious; three branches thereof reaching the court of appeals. The first appeal involved the administrator’s right to sell the <real estate, and the other appeals involved claims against the estate, amounting to over $46,000. The court upheld the administrator’s right to sell the land, and in the other cases claims of about $35,000 were defeated-. The attorney attended sittings of a master commissioner for over 200 days, giving careful attention to the litigation, and as an incident to his employment involved himself in a bitter family quarrel; he being the brother of decedent, whose wife was the-principal claimant in the litigation. Held, That he was entitled. to a fee of $5,000.</p>

<p>Appeal from Martin Circuit Court.</p> <p>E. C. Burns, Special Judge.</p> <p>Judgment for plaintiffs. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Virginia patent to Thomas Franklin superior title, and Kentucky patents within its boundary void. (Taulhee v. Buckner‘3 Admr., 91 S. W. 734.)</p> <p>2. Its true location'shown hy evidence, also prima facie shown by the report of the surveyor. (Bates v. Baker, 101 S; W. 340.)</p> <p>3. Incumbent upon appellees to show title by .adverse possession in Pack, or immediate vendor, and. they can recover only on the strength of their own title. (Taulbee v. Buckner’s Admr., DI S. W. 734.)</p> <p>4. Northup entered under purchase, connecting himself with the Franklin patent, was not a trespasser or intruder, and shows outstanding title defeating the right of action asserted.</p> <p>5. Conceding appellees have title to land within the one hundred acre patent to C. M. Pack hy adverse possession, such is not extended to other pa-tents, actual possession not having been taken of such other patents; actual possession of the first not giving constructive possession of all. (1 Cy-c. 1128; Cases under Note 54; Faison v. Primm, 34 S. W. 834; Whitley Co. Land Co. v. Lawson, 94 Ky. 603.)</p> <p>6. Constructive possession was with the Franklin title, and as against it the presumption is that possession within the one hundred acre patent is confined to boundary of the instrument under which that possession was originally taken. (Barr v. Potter, 22 Ky. Law Rep. 416; Wyckliff v. Ensor, 9 B. M. 259; Wilson v. Stivers, 4 Dana 635.)</p> <p>7. Constructive possession not conferred or extended to patents subsequently obtained, and appellees must stand or fall under claim of well defined marked boundary, including the land in contest. (Farmer v. Lyons, 87 Ky. 423, Pollock v. M. & B. S., 103 Ky. 84; Young v. Cox, 12 Ky. Law Rep. 347.)</p> <p>8. Possession to a marked and well defined boundary not made out. (Kountze v. Hatfield, 99 S. W. 262.)</p> <p>9. Plea of champerty can not be invoked by appellees in aid of their title.</p> <p>(1) The plea is not available in the case of plaintiff, because bound to rely on the strength of his own title (Moran v. Higgins, 19 Ky. Law Rep. 457.)</p> <p>(2) If the rule were otherwise, proof of possession and hostile claim as to part of the land upon which .alleged trespass occurred, is not sufficient to avoid a deed as champertous. (Krauth v. Hahn, 23 Ky. Law Rep. 1261; Mays v. Kenton, lb.. 1052; Rice v. West, 19 Ky. Law Rep. 932.)</p> <p>10. The judgment is not sustained by the evidence or supported by presumption in its favor, according to the rule of decision of this court.</p> <p>a. Although an ordinary action, the cause was transferred to and heard in equity.</p> <p>b. Motion for new trial, or request for separation of law and facts thereupon, rendered unnecessary. (Com. v. Railroad Companies, 95 Ky. 60; Keaton, &c., v. Sublett, 109 Ky. 106.)</p> <p>e. This court will, therefore, give judgment according to the truth as it shall .appear from the whole record and judge of the sufficiency of the testimony for itself. (McCampbell v. McCampbell, 103 Ky. 249; Campbell v. Trosper, 108 Ky. 602; Boli, Sr., v. Irwin &■ Son, 21 Ky. Law Rep. 366.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The findings of a chancellor, or common law judge, to whom the law and facts of an ordinary action have been submitted, will be treated as the verdict of -a properly instructed jury, and will not be reversed unless palpably against the weight of the evidence, or manifestly not supported by it. (P., C. & St. L. R. R. Co. v. Wooley, 12 Bush 451; Fraley v. Peters, 12 Bush 469; Judge v. Braswell, 76 Kentucky 67; Ward v. Estes, 79 Ky. 282.)</p> <p>2. Evidence to show actual possession by plaintiffs of land on which trespass was committed.</p> <p>-,3. Such adverse possession for fifteen years as constitutes evldence of title, a question of fact for the jury. (Bowles v. Sharp, 4 Bibb 550; Dubois v. Marshall, 3 Dana- 339; Cardwell v. Sprigg, 7 Dana 41.)</p> <p>4. Presumptively when a person takes title to unoccupied lands adjoining lands on which he lives, and to which he claims title in fee, his possession by operation of law will be extended to the exterior boundaries of the newly acquired lands. (Cates v. Loflus’ Heirs, 4 T. B. Monroe 439; Young v. Withers, 8 Dana 167: Griffith _v. Dickens, 2 B. Monroe 24; Smith’s Heirs v. Frost’s Devisees, 2 Dana 146.)</p> <p>5. Actual entry upon newly acquired lands gives notice to the world of the character of the owner’s claim. (Scott v. Mineral Development Co., 130 Fed. 497.)</p> <p>6. “All the land unsold by John Burchet and J. R. Ward in the '8,000 acres surveyed and patented to Thomas • Franklin and land described in deed of sheriff of Lawrence county to James Fulkerson, filed with the papers of the suit in chancery of John Burchet v. J. R. Ward, all situate in Lawrence county, on the waters of Big Sandy, between the Louisa and Tub forks,” does not indicate in what portion of the patent to Thomas Franklin the lands unsold by John Burchet and J. R. Wia.rd are to be found or located.</p> <p>7. Where there are exceptions in the general granting clause of a deed, the party relying on such generad clause must, in pleading, state the general clause with the exceptions, .and must show by pleading and evidence that he is not within. the exceptions.' (Maxwell Land Grant Co. v. Dawson, 155 U. S. 586; Reusens v. Lawson, 91 Va. 254; Runyan v. Darnell, 10 Bush 68; Gooch v. Benge, 12 Ky. Law Rep. 368.)</p> <p>8. Vinson, through whom appellants claim title, unable to locate the lands in contest.</p> <p>9. The will of Richard Apperson, Sr., did not authorize his executor to sell land in contest to Vinson.</p> <p>1. Appellant could not recover against appellees on his counterclaim, because his title, if any he had, is champertous and void.</p> <p>2. Because he is barred by section 251 of the Constitution of Kentucky.</p> <p>AUTHORITIES CITED.</p> <p>Cates v. Loftus’ Heirs, 4 T. B. Mon. 439-442; Young v. Withers, 8 Dana 167; Griffith v. Dickens, 2 B. Monroe, 20-24; MeBrayer et al. v. Wash, 6 J. J. Marshall, 468; Smith Heirs v. Frost’s Devisee, &c., 2 Dana 144-148; Smith Heirs v. Lockbridge, 3 Lit. Rep. 20: Wair v. Bryant, 14 Ky. Law Rep. 852; Whitley County Land Co. v. Lawson, 94 Ky. 604-5; Fox v. Hinton, 4 Bibb 559; V/air v. Bryant, 14 Ky. Law Rep. 773, 152; Lander v. Barbee, 8 Ky. Law Rep. 773; Ky. Stats., section 210; Crowley v. Vaughan, 12 Bush 517; Constitution of Ky., section 251; Shaw v. Robinson, &c., 23 Ky. Law Rep. 998.</p>

<p>Appeal from Harlan Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Appellees have no record title or possessory title to any part of the John Fee 200-acre patent in controversy. (Armitage v. Wickliffe, 12 B. M. 494; Campbell v. Disney, 93 Ky. 41;' Layne, &c., v. Ferguson, &e., 24 Ky. Law Rep. 444; Bates, &e., v. Collins, &c., 29 Ky. Law Rep. 346; Trimble v. Smith, 4 Bibb 257; Jones v. McCauley’s Heirs, 2 Duv. 14; Walter v. Gower, 11 Ky. Law Rep. 750; Smith v. Mitdhell, 1 A. K. M. 207; Wilson v. Stevens, 4 Dana 634; Stith v. Jones, 7 Dana 434; Greer, &c., v. Bowling, 21 Ky. Law Rep. 1628; McCoy, &c., v. DeLong, &c., 22 Ky. Law Rep. 719; Hall v. Blanton, &c., 25 Ky. Law Rep. 1400.)</p> <p>2. The appellants never had any connection with the supposed title of appellees. They are in nó way estopped to claim title to the land in controversy. (Perkins, &c., v. Coleman, &c., 90 Ky. 611; Sweetzer vs. Lowell, 33 Me. 446; Altemus, &c., v. Asher, &c., 24 Ky. Law Rep. 2416.)</p>

<p>Appeal from Campbell Circuit Court.</p> <p>Charles W. Yungblut, Circuit Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED.</p> <p>1. JECy. Stats., section 3043; Shugars, Police Judge, v. Hamilton, 92 S. W. 564; Cyc., volume 28, p. 329;Abbott on Municipal Corporations, p. 1284; Mills v. City of San Antonio, 65 S. W. 1121; Burns v. Thompson, 64 Ark. 489; Township Board Beaver Creek v. Hastings, Township Clerk, 52 Mich. 529; London & N. Y. Land Co. v. City of Jellico, 103 Tenn. 320; Knoxville v. Knoxville Water Co., 107 Tenn. 657; Lord v. City of Annoka, 36 Minn. 176; Durant v. Jersey City, 25 N. J. L. 311; Flood v. Atlantic City, 63 N. J. L. 531.</p> <p>2. What constitutes a resignation or vacation of office. Rex v. Hughes, 5 Barnwell & Cresswell 886; Rex v. Bdnd, 6 D. & R. 333 (both cited by Dillon, p. 309, 4th Ed.); Meecliem on Public Offices, sections 425-426; Dillon on Municipal Corporations, sections 224-225-226; Abbott on Municipal Corporations) section 633; Stubbs v. Lee, 64 Me Rep. 195; Pariseau v. Board of Education of the City of Escauba, 96 Mich. 302; VanArsdell v. Hazard1, 3 Hill (N. Y.) 243; Barbour v. U. S., 17 C. T. C. L. 149; McGhee v. Dickey, Et. 4 Tex. 104; State of Texas v. Beinkérhoff, 68 Tex. 45; State v. Pitts, 49 Ala. 402; State v. Hauss, 43 Ind. 105; McGhee v. State, 103 Ind. 444; State ex rel. Kirtley v. Augustine, 33 Mo. 21; Writer v. State, ex rel., 51 Ohio State, 74; People ex rel. v. Hanifan, 6 111. App. 158.)</p> <p>3. Can the authority to create the office of additional aldermen be delegated to a subordinate legislative body? (Reading v. Savage, 121 Pa. 198.)</p> <p>4. Can there be a vacancy in a newly created elective office before the same is filled by election by the people? ( Abbott on Municipal Corporations, p. 1480; Brady v. Howe, 50 Miss. 67; State v. Cool, 51 N. J. L. 191; in re. Board of Health, 64 Hun. 634; State v. McGhee, 65 N.'C. 257; Lyree v. Adler, 51 Miss. 28; Commonwealth v. King, 85 Pa. 183; Davis v. Davis, 57 N. J. L. 80.)</p> <p>5. Was there any power in the mayor to call either board of the general council in session separately? (Ky. Stats., .section 3046; Ky. Stats., section 3110.)</p> <p>OTHER AUTHORITIES.</p> <p>Ky. Stats., sections 3043, 3049, 3051, 3208', 1521; 5 Bush 231; 14 Ky. Law Rep. 25, 586; 94 Ky. 540; 30 Ky. Law Rep. 1082; 103 U. S. 227.</p> <p>1. In order to be an estoppel by conduct, the following elements must be present;</p> <p>(First) There must have been a representation or a concealment of material facts.</p> <p>(Second) The representation must have been made with knowledge of the fact.</p> <p>(Third) The party to whom it was made must have been ignorant of the truth of the matter.</p> <p>(Fourth) It must have been made with the intent that the other party should act upon it.</p> <p>(Fifth) The other party must have been induced to act upon it.</p> <p>If there" is an estoppel, it can not be by judgment or record, of adjudication, nor by matter of deed, but must be matter in pais, of which estoppel by conduct is the key. If an office may be transferred from one to another in the mode attempted, no elucidation is necessary to expose the evils which flow from repeated changes which the sanction of the claim of the respondent, to the extent required, would render possible.</p> <p>2. This court can not consider the wisdom, expediency or policy of the ordinance in issue as that is a matter directed to the discretion of the general council. The sole question in issue in this case is; Under the charter of the city of the second class, of which Newport is one, did or did not the board of aldermen of the city of Newport have a right to pass this ordinance. If, under the charter, they had power to pass it, and did pass it pursuant to the charter, then there can be no question as to its validity or invalidity. Counsel for the city of Newport maintains that the. ordinance was passed pursdant to the charter and in due form of law. Therefore, the increase of the board of aldermen is legal. It is unnecessary to say to the court that this court can not inquire into the motive of the general council in passing this ordinance. If they had a right to pass it under the charter, then it was a matter that rested solely within the discretion and wisdom of the general council whether or not said ordinance should be passed, and this court has no power to inquire into their motive.</p>

<p>CASE 21 — PERSONAL INJURY ACTION BY LILY RAYMER AGAINST THE SOUTH COVINGTON & CINCINNATI RY. CO.</p> <p>1. Damages — Assessment.— Instructions — Limiting Recovery to Amount Alleged. — Where plaintiff alleged the amount of her medical expenses and the amount of wages lost by injuries, her recovery was confined to the amount alleged, and it was error to instruct that she was entitled to reasonable compensation for medical expenses and time lost.</p> <p>2. Carriers — Injuries to Passengers — Instruction—Applicability to Case. — In an action for injuries to plaintiff’s thumb by it being wrenched when the conductor attempted to pull her on to the street car after she had caught hold of a rod to assist herself upon the steps, there being evidence that the car was in motion when plaintiff reached it, and that the conductor assisted her to prevent her from falling off in going around a curve, an instruction is proper that if plaintiff attempted to board the car while in motion, and the conductor had reasonable ground to believe that she was in danger of falling off, he was bound to talae such steps for her protection -as the circumstances required, and if, in jerking her to prevent her from falling off, he used no more force than appeared to be reasonably necessary for her protection, and she was accidentally injured, the company was not liable.</p> <p>3. Witnesses — Examination—Cross-Examination—Question Showing Bias. — In an action against a street railway, plaintiff may show on cross-examination of the company’s witness that he is.an employe of the company and what his relations are, but can not ask questions to show how his duty to the company is discharged, unless they tend to show bias by the witness.</p>

<p>CASE 22. — SUIT BY S. P. CLARK AND OTHERS AGAINST JOSEPH S. PEPPER’S ADMINISTRATOR FOR CONTRIBUTION.</p> <p>Wills — Legatees — Contest — Expenses — Contribution. — In a will contest by legatees to reduce the share of the executor, one of the legatees, a brother of the executor, did not contest the will, but accepted the fruits of the contest. When the suit was begun, he arranged with the executor’s attorneys that they would represent him in the litigation, hut were to charge only one fee, which was to be paid by the executor. No pleadings were filed for the brother, and no attorney appeared of record for him. The contesting legatees brought suit against the brother for contribution to the expenses' of the suit. Ky. Stats., 1909, section 4S9, provides that in an action for the settlement of estates, if one or mere legatees have prosecuted for the benefit of others interested with themselves, the court shall allow such persons reasonable compensation for their trouble and expense; the allowance to be paid out of the funds recovered. Held, That the brother was liable for his proportionate share of the expenses; the facts showing that he was not represented in the suit, and there being nothing in the statute to prohibit equity from adjusting the rights of the parties after the distribution of the estate.</p>

A temporary injunction! having been obtained by the plaintiffs, Meffert and others, in an action by them in the Jefferson Circuit Court, Chancery Branch, Second Division^ against the defendants', as commissioners of the sinking- fund of the City of Louisvill-ei, restraining them from removing the plaintiffs from office as license inspectors and' clerks of said board, application was made by said board of commissioners to the Chief Justice of the Court of Appeals to dissolve…

William; H. Holt, Special Judge. Defendant convicted and appeals. The record in this case shows that Granville Steely and his mother, the appellant herein, were jointly indicted for the murder of Martin B. Snyder. A separate trial being demanded, Granville was first tried and acquitted. On this trial Granville was a witness for his mother, and swore that he cut Snyder with a knife and killed him because he thought at the time that Snyder was about to kill his mother.

<p>CASE 25. — PETITION BY W. T. BARKER. AND OTHERS TO ESTABLISH A DRAINING DITCH.</p> <p>1. Statutes — Amendment.—The title of Act March 27, 1908 (Acts-1908, p. 212, c. 73), expresses a purpose to amend and reenact Carroll’s Ky. Stats., 1903, section 2380, subsection ”11,” etc. The body of the act refers to subsection 2. The amend- ' ment is pertinent to subsection 11, but not to subsection 2. Held, That the Legislature intended to-amend and re-enact subsection 11, and that "subsection 2 remains in full force.</p> <p>2. Statutes — Expression in Title of Subject — Conformity of Subject-Matter. — Under Constitution section 51, requiring the sub- ■ ject-matter of an act to conform to the title an .act amending one subsection and referring to another in the title would be invalid.</p> <p>EXTENDED OPINION—</p> <p>Natural Water Courses — Kentucky Statutes, 1909, c. 76, Art. 8, (Russell’s Stats., 1909, sections 4455-4485), authorizes the inclusion of natural water courses, as well as artificial ditches or drains, in establishing a drainage ditch; and they may be cleaned and straightened to secure better drainage of the land through which they run, the same as artificial ditches an;l drains.</p>

W. P. Sandidge, Circuit Judge. Judgment for plaintiff. Defendant appeals. POINTS AND AUTHORITIES. 1. (a) A peremptory instruction was proper. (1) Because appellee’s injuries were caused by his violation of his contract with the company. 2. Because the negligence of the appellant, if there were any, was not the proximate or any cause of the accident. 3. The nunc pro tunc order of extension of time to file bill of exceptions should have been entered. (Washington' Life Ins.

Thos. R. Gordon, Judge. Prom a judgment sustaining a demurrer to the petition plaintiff appeals POINTS AND AUTHORITIES. 1. A judgment procured by the fraud and collusion of the defendant is not a bar to an action for malicious prosecution against him. (Spring & Stepp v. Besore, 12 B. Mon. 554; Kaye v. Kean, 18 B. Mon. 840; Bell v. Thompson, 31 Ky. Law Rep. 473, 102 S. W. 830; Womack v. Circle, 32 Grattan, 324, 338, 339; Blucher v. Zonker, 19 Ind.

<p>CASE 28. — ACTION BY THE COMMONWEALTH AGAINST CHRISTIAN STOLL’S ADMINISTRATOR AND OTHERS TO RECOVER AN INHERITANCE TAX</p> <p>1. Wills — Construction—Estates—Devise.—Testator gave to his wife all Ms property, with power to dispose of it by will or otherwise, and provided that any part of the estate remaining undisposed of at her death should pass to his legal heirs. Held that, under Ky. St. 1903, section 2342, providing that, unless a different purpose appears, every estate in land created by will shall be deemed a fee-simple estate, etc., the wife took an estate for life with power to dispose of it, and on her death the estate undisposed of passed to testator's heirs.</p> <p>2. Taxation — Inheritance Taxes — Statutory Provisions — Retroactive Effect.- — -Where testator, dying before the inheritance tax act of 1908, disposed of his estate to his collateral heirs by giving them the portion of his estate remaining undisposed of on the death of his wife, to whom he gave a life estate, with power to dispose thereof by will or otherwise, the portion of the estate which passed to the collateral heirs was not subject to the inheritance tax imposed by the act.</p> <p>ON REHEARING.</p> <p>Taxation — Inheritance Tax — Construction of Will — Estates Devised. — Testator bequeathed to his wife all his property with power to dispose of it by will or otherwise, and declared that any part of the estate remaining undisposed of at her death should pass to his legal heirs. Held, that the wife on surviving her husband took an absolute estate in the property devised to her freed from testator’s attempted disposition of the remainder, and hence the heirs of testator and his wife on her death took title from her and not under the will, and were therefore subject to an inheritance tax law passed after testator’s death, hut before the death of the widow.</p>

(C. P. Branch, Second Division). Titos. R. Cordon, Judge. Judgment for plaintiff. Defendant appeals POINTS RELIED ON. 1. Th-e- execution and delivery to him of a written contract, .together with a surety bond guaranteeing the performance of same, was made a condition precedent by Lynch to the letting of the contract for the iron work to the appellee. , 2.

A. J. Kirk, Circuit Judge. Judgment for plaintiff, defendant appeals POINTS AND AUTHORITIES. 1. While actually engaged in taking out coal and moving the natural props of the roof, it was their duty, and not that of the company, to look out for the safety of the roof, and to prop same. Only for its failure to furnish timber, can the company 'be held to have breached a duty to either. (A. C. & I. Ry. Co. -v. Wallace, 101 Ky. 626; Ky. Stats. 2732.) 2.

J. B. Hannah, Circuit Judge. Defendant convicted and appeals POINTS. 1. The bloodhounds used were not laid on any trail and the evidence did not come within the rule laid down by this court, and should not have been permitted to go to the jury. 2. It was improper to admit statements, as evidence, made by appellant’s sister in his presence to which he made no reply, he at the time being accused, surrounded and confronted by about thirty men and two bloodhounds.

<p>CASE 32.--ACTION BY FRANCES MCCLELLAND AND OTHERS AGAINST BYRON McCLELLAND’S EXECUTOR, AND OTHERS FOR A CONSTRUCTION OF BYRON Mc-CLELLAND’S WILL.</p> <p>1. Wills — Construction—Intention of Testator. — In the construction of a will, the intention of the testator should be given effect if it can be done without violating any provision of the law, and in ascertaining such intention it is proper to consider the environments and the natural objects of bounty of the testator at the time of the making of the will, and such intention should not be defeated by the application of technical .rules of construction.</p> <p>2. Wills — Construction—Separate Clauses or Parts. — In construing a will every clause in it must be taken with, reference to tho others.</p> <p>3. Wills — Construction—Estates Granted — Fee Simple. — A testator, ■after making some specific bequest to relatives, bequeathed “all the residue of my estate, both real and personal or of any other description, -to my wife, S., forever, but charge this residue which I give my wife with the following bequests: First, to pay my brother J. $30 per month as long as he may live; second, to pay my niece, F., $10,000 on the day of her marriage for her sole and separate use; third, that at my wife’s death, her executors or administrators shall turn over to my brother W. and my sister L. or their children, if either or both are dead (excepting F., my niece), one-fourth of whatever remains of the residue of the estate that I have bequeathed to my wife, S., forever; fourth, that at my wile’s death, her executors or administrators shall turn over one-half of whatever remains of the residue of my wife, S., forever to my niece, F., for her sole and separate use; fifth, the remaining one-fourth of residue I left my wife, she may dispose of by will or if she makes no will, to follow the law of descent.” Ky. St. 1909, sec. 2312, provides that, “unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will without word of inheritance shall be deemed a fee simple or such other estate as the grantor or testator has power to dispose of.” Held, that testator’s wife was given a life estate in three-fourths of the residue of testator’s property and the fee in one-fourth thefeof, with power to sell and dispose of so much of the entire residue as should become necessary for her support.</p> <p>4. Wills — Construction—Estates Granted — Conditions. — Testator’c niece F., did not take a vested interest in the $10,0(30 devised to her, but became entitled to it only in the event of her marriage.</p>

A. J. Kirk, Circuit Judge. Prom the judgment both parties appeal. 1. Revival. — It may be stated as a general principle that a lien once waived or abandoned can not be revived. This doctrine is eleairly upheld by this court in the case of Ducker & Jones v. Gray, 3 J. J. Mar. 163, and same doctrine is re-affirmed by this court in the following cases: (73 Ky. 93; 108 Ky. 740; 22 Ky. Law Rep. 143; 24 Ky. Law Rep. 337). 2.

<p>CASE 34. — ACTION BY THE COMMONWEALTH AGAINST THE LOUISVILLE WATER COMPANY TO RECOVER CERTAIN TAXES AND PENALTIES.</p> <p>1. Taxation — Collection—Delinquent Taxes — Collection by Revenue Agents — “Back Taxes.” — Act March 15, 1906, art. 8, section 1 (Laws 1906, p. 152, c. 22), makes the sheriff by virtue of his office collector of state, county, anil district taxes. Section 20 (page 160) provides that the taxes shall be due March 1st, and, if not paid on November 1st, shall become delinquent, and a penalty of 6 per cent, be added. Under section 21 the sheriff is required within 15 days after delinquency to certify to the county clerk a list of all delinquent taxes: Under sections 22-27 (pp. 160-163) the county clerk within 10 days thereafter must issue against each delinquent a tax warrant directed to the sheriff who is required to proceed thereunder as under an execution. Ky. St. 1900, section 4267, makes it the duty of the Auditor of Public Accounts to collect back taxes, etc., and gives him power to direct revenue agents to prosecute the collection of delinquent taxes. Held, that two distinct modes for the collection of taxes are provided, the duties of the revenue agents not being intended 'to conflict with the sheriff, on whom the duty of collecting the taxes is primarily placed, and the term "back taxes” ,in section 4267 refers to taxes on which the ordinary process of collection had been- exhausted, and hence the revenue agent-could not bring suit to collect a delinquent tax and penalties where the sheriff had levied his tax warrants, and a preliminary injunction restraining the collection had been issued 'and dissolved, the sheriff then having a right to collect the taxes, and the ordinary process in his hands not being exhausted.</p> <p>2. Taxation- — Collection — Delinquent Taxes- — -Power of Revenue Agents. — For like reasons a revenue agent has no power to bring action on November 29th to collect taxes delinquent on the 1st of that month where the tax warrants, the ordinary process of collection by the sheriff, had not yet been issued.</p>

R. L. Stout, Circuit Jud'ge. Judgment for plaintiff. Defendant appeals POINTS AND AUTHORITIES. ' 1. The Water Company acted in entire good faith in failing to pay the franchise tax. Where there is grave legal doubt as to the liability of property for taxation heavy penalties for failure to pay the tax should not he exacted. (Taylor vs. Commonwealth, 54 Ky. (15 B. Mon.) 9; Commonwealth, &c. vs. L. & N. R. R. Co., 89 Ky. 134; Katehem, &c. vs. Pennsylvania R. ft.

<p>Appeal from Perry Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>Í. Construction of deed from appellee to A. B. Asher. .(Devlin on Deeds, vol. 2, sec. ed., sec. 838a; Warvelle on Vendors, sec. 109; Warvelle on Vendors, sec. 444; White vs. Foster, 102 Mass. 375; McLeod vs. Tarrant, 20 L. R. A. 846.)</p> <p>2. Waiver of Forfeiture. (Hare' & Wallaces Am. Leading cases, vol. 2, page 516; Bduley vs. Garvin, 48 L. R. A. 839; Am. & Eng. Enc. of Law, vol. 13, page 79; Morgan vs. Perkins, 94 Ga. 353, 2; S. E. 574; Kellam vs. McKinstry, 69 N. Y. 264; Green vs. Bennett, 23 Mich. 464; Haskell vs. Ayres, 35 Mich. 89; Williams vs. Flood, 63 Mich. 467; Grange vs. Palmer, 10 N. Y. Supp. 201; Wilkie vs. Day, 141 Mass. 68, 6 N. E. 542; Marsh vs.'Bellew, 45 Wis. 36.)</p> <p>QUESTIONS PRESENTED.</p> <p>The only questions presented for the consideration of the court on this appeal are, as we believe, the following:</p> <p>First. Is a sale' and conveyance by deed, of standing timber, to be removed within a specified time, a sale of only so much thereof as is actually cut and removed within that time?</p> <p>Second. Was defendant, Cress, estopped to set up claim and ownership to the timber because «he did not object to its being cut at the time, but who filed hisi action before it was removed from the land?</p> <p>AUTHORITIES CITED.</p> <p>Jackson vs. Hardin, 87 S. W. 1119 (27 Ky. Law Rep. 1110); Chestnut vs. Green, 86 S. W. 1222 (120 Ky. 385); Taylor Brown Timber Co. vs. Wolf Creek Coal Co., 107 S. W. 733; Terry vs: Hill, 5 Ky. Law Rep. 688; 16 Cyc. 733; 2 Ky. 102, 320; Ringo, &e. vs. .Warder, &c., 45 Ky. 514; McAdam's Admr. vs. Homes, 72 Ky. 15.)</p>

<p>Appeal from Lewis Circuit Court.</p> <p>Judgment for defendant. Plaintiff appeals</p>

'John M. Galloway, Circuit Judge. Judgment for defendant. Plaintiff appeals. SUMMARY AND AUTHORITIES. 1. Negligence is presumed in case of collision. (L. & N. R. R. Co. v. Davis, S. W. 71-658; F. & Y. T. Co. vs. Hulette, S. W. 106-1193.) 2. In case of death, of employe the burden of proof is on the master to disprove negligence. (L. C. C. M. Co. vs. Stephen's Admr., S. W. 47-321.) 3. The foreign law, if relied upon governs, otherwise the law of the forum. (C. & N. Ry.

<p>Appeal from Harlan Circuit Court.</p> <p>Ml J. Muss, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

J. W. Henson, Circuit Judge. Judgment for defendants. Plaintiffs appeal. POINTS AND AUTHORITIES. 1. Has the circuit court, in a suit’ to settle the estate of decedent, jurisdiction to sell infant’s real estate to pay debts, or for any other purpose, when the prayer of the petition does not ask for a sale of the land? (Redfield v. Mutual Ins.

<p>CASE 41 — SUIT BY THE KENTUCKY REFINING COMPANY AGAINST F. P. JAMES, AUDITOR OF PUBLIC ACCOUNTS, TO RESTRAIN THE COLLECTION OF A FRANCHISE TAX AGAINST CMPLAINANT FOR THE USE OF TANK CARS FOR THE TRANSPORTATION OF ITS PRODUCT.</p> <p>1. Taxation — Corporate Franchise — Statutes—Construction.—Ky. St. 1903, section 4077, imposes a franchise tax on every railroad company, press dispatch, telephone, turnpike, palace-car, sleeping-car, and “every other like company” having or exercising any exclusive privilege not allowed to natural persons •or for performing any public service. Held, to impose a franchise tax on a corporation manufacturing cotton seed oil and ■owning tank cars by which such products were transported by railroads on a mileage basis.</p> <p>2. Taxation — Franchise Tax — Character of Business. — Where a •corporation is engaged in the business of freight carrying, it is subject to a franchise tax imposed by Ky. St. 1903, section 4077, though such business is incidental only to its main activities,</p> <p>3. Taxation — Franchise Tax — “Franchise.”—The term “franchise,” as.used in Ky. St. 1903, section 4077, imposing a franchise tax on corporations engaged in freight traffic, etc., is not the right to do the thing, but the doing of it in fact, so it was no ■answer to a corporation’s liability for such tax that its engaging in such business was ultra vires.</p> <p>4. Taxation — Franchise—Trasportation Business — Nature of Tax. —The franchise tax imposed by Ky. St. 1903, section 4077, on persons engaged in the transportation business, is not an occupation tax, nor a tax on a mere privilege of engaging in business, but a tax on the business, since the business is not taxed unless property otherwise taxable is employed in the designated occupation; nor is the business taxed independently of, or without reference to, the tangible property to which it is by statute annexed.</p> <p>5. Taxation — Different Assessments — Corporations.—Where part o£ a corporation’s capital was engaged in the carrying business, it was liable to taxation on the capital not so employed, ) as provided by the revenue act of 1906 (Laws 1906, p. 88, I c. 22), and also for the franchise tax imposed on persons engaged in such business, by Ky. SU. 1903, section 4077; the proper method being to assess separately the tangible property engaged in the carrying business, and then to impose a franchise tax.</p>

<p>Appeal from Simpson Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge</p> <p>Judgment for plaintiff. Defendant appeals</p>

John M. G-alloway, Circuit Judge. Judgment for plaintiff. Defendant appeals POINTS AND AUTHORITIES. 1. The gift was freely and voluntarily made. It is established by satisfactory, convincing and uncontradicted evidence. The court below was no more authorized to set it aside than it would be authorized to annul any other legitimate transaction supported by the testimony sufficient to sustain it. (McCoy’s Admr. v. McCoy, 31 Ky. Law Rep. 1189.) 2.

<p>CASH 44 — ‘ACTION BY FANNY L. BEVIS AGAINST THE VANCEBURG TELEPHONE COMPANY FOR INJURY IN DRIVING AGAINST A TELEPHONE POLE IN A HIGHWAY.</p> <p>1. Negligence — Contributory Negligence — Burden of Proof. — Contributory negligence is matter of defense, as to which defendant has the burden of proof, though plaintiff unnecessarily pleaded that she was injured while in the exercise of due care, and this is traversed. ,</p> <p>2. Negligence — Instructions.—An instruction which requires, for a recovery by plaintiff; that the jury find, not only actionable negligence by defendant, but also that plaintiff was in the exercise of ordinary care for her safety, is ■erroneous, as her failure to exercise ordinary care, unless the proximate cause of the injury, would not defeat recovery.</p> <p>3. Appeal and Error — Review—Prejudicial Error — Instructions.— Where there was no evidence of contributory negligence, but there was some evidence that the person with whom plaintiff was riding was driving fast, and the jury may have ■inferred from this that plaintiff was not exercising ordinary care for her safety, by not controlling or attempting to control the actions of her companion, error in requiring the jury to find, as a condition to recovery, that plaintiff was in the exercise of ordinary care for safety, wás prejudicial.</p> <p>.4. Damages — Punitive Damages. — There is no ground for punitive damages, where one is injured by driving into a telephone pole in the side of a road.</p>

Watts Parker, Circuit Judge. Prom the judgment defendants appeal 1.

<p>CASE 46 — PERSONAL INJURY ACTION BY L. J. KEIFFER AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>1. Master and Servant — Injury to Servant — Liability—What Law Governs. — The rule that the reciprocal rights and duties of the parties and the defenses that may be invoked to escape liability for breach of duty are governed by the laws of the place where the tort occurred applies to the relation of master a,nd servant, and the question what is, and the effect of, contributory negligence or assumption of risk, 's determined by the law of the place where the tort occurred.</p> <p>2. Master and Servant — Injury to Servant — Liability—Whatt Law Governs. — The common-law rule exempting a master from liability for injuries to his servant occasioned by a fellow servant’s negligence, prevailing at the place where the injury occurred and the cause of action arcse, governs, though the rule has been changed by statute at the forum.</p> <p>3. Master and Servant — Injury to Servant — Liability—What Law Governs. — An action brought in Kentucky by a citizen thereof for an injury received in a sister state while'engaged in the performance of his duties as a servant for defendant, a citizen of Kentucky, is governed by the laws of the sister state.</p> <p>4. Master and Servant — Injury to 'r Servant — Negligence.—The breaking of a knuckle on a double-header train is not actionable simply because the train is run as a double-header, and the reason why it is so run is immaterial, in an action by an employe for injuries.</p> <p>5. Negligence — “Proximate Cause.” — Tne “proximate cause” of an accident is the immediate cause, or that without which it would not have happened. It is not the remote cause or the occasion of the accident, and, where the original wrong only becomes injurious because of the intervention of some distinct wrongful act of another, the injury is imputed to the last wrong as the proximate cause.</p> <p>6. Master and Servant — Injury to Servant — Negligence—Proximate Cause. — A railroad engineer was injured by running into a train from the rear. The train in front was run as a double-header because of the leaky condition of one of the engines, and as it pulled out of a station a knuckle broke. While an emergency knuckle was being put on, the engineer ran into the train. Had proper signals been given him, he would have stopped his train before the collision, provided he did not run at an excessive speed. Held, as a matter of law, that the leaky engine was not the proximate cause of the injury.</p> <p>7. Negligence — Proximate Cause — Question for Jury- — Question for Court. — Where there is room for a diHerence of opinion ’ between reasonable men as to what is the proximate cause of an injury, the question is for the jury; but, where there is no room for a difference of opinion, the question, where the facts are undisputed, is for the court.</p> <p>S. Master and Servant — Injury to Servant-Incompetency of Fellow Servants — Evidence.—A railroad engineer ran into a standing train from the rear. The flagman of the leading train was negligent in not starting back in time to flag the engineer, and the conductor was also negligent in not sending the flagman back in time. Witnesses testified that the flagman was, in their opinion, not competent; but they did not show in what respects he was incompetent, or that knowledge of the incompetency had been brought home to the company. The flagman had stood his examination and had be<.-n in the service 'of the company for 15 months. Held, as a matter of law, not to show the incompetency of the flagman.</p>

W. McD. Síhaw, Judge. Erom the judgment Susanna Becker and Herman Becker and' others appeal CLASSIFICATION UNDER RULE XVII. 1. The court erred in its construction of the will of Charles Roth. Susanna Roth (Becker) under the will of Charles Roth, took a fee simple estate unaffected by the provisions of item two of the will . The attempted limitation in item two of the will of Charles Roth, is inconsistent and repugnant to the fee granted, and is therefore, void.

<p>Appeal from. Meade Circuit Court.</p> <p>W. S. Chele, Circuit Judge.</p> <p>Judgment for plaintiff. Defendants appeal</p>

R. L. Stout, Circuit Judge. Prom- a judgment for plaintiff defendant appeals, and from an order setting aside a former verdict and granting a new trial, plaintiff took a cross appeal.

C. O. Marshall, Circuit Judge. Judgment for defendant, plaintiff appeals. 1.

Franklin! Circuit Court. R. L. Stout, Circuit Judge. From the judgment defendant appeal CONCLUSION. We represent to the Court that any question that affects the common school fund of Kentucky is to be seriously taken and considered. The question in this case is an important one, and if appellee’s contentions- are to be taken, the policy of well guarding the State School Fund, of Kentucky will be severely shattered.

<p>Appeal from. Jefferson Circuit Court; Chancery Branch (First Division).</p> <p>' Shackelford Miller, Judge.</p> <p>From a judgment of dismissal, plaintiff’s children appeal, she having died</p>

<p>Appeal from Pulton Circuit Court.</p> <p>B». J. Bugg, Circuit Judg’e.</p> <p>Judigmeut for plaintiff, defendant Stephen Stahr appeals</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, Sections 566 and 3915 to 3918; Van Meter vs. Spurrier, 94 Ky., page 23; Smith vs. Robertson, 106 Ky., page 478; Cincinnati Cooperage Company vs. Bate, 96 Ky., page 356; Asberry vs. Macklin, 3 T. B. Monroe, page 10; Hume vs. Mullin, 18 Ky. Law Rep., 108; or 35 S. W. 551; L. & N. R. R. Co. vs. Harrod, 115 Ky., 877; or 25 Ky. Law Rep. 260; or 75 S. W. 233; Trade-water Coal Company vs. Lee, 24 Ky. Law Rep. 215; or 68 S. W. 400; Dryden vs. Lewis, 5 Dana, 139; Johnson vs. Mason Lodge, 106 Ky., 838.</p> <p>AUTHORITIES CITED.</p> <p>Thompson on Corporations, Section 5838; Catskill Bank vs. Gray, 14 Barb, 471; Bates vs. Coronado Beach Co.', 41 Pacific Rep., 855; Valley, etc. R. R. Co. vs. N. Y. etc. R. R. Co., 32 Hun, 496; Newport, etc. Bridge Co. vs. Weoley, 78 Ky., 523; 21 Ky. Law Rep., pages 271, 493 and 875.</p>

Joseph Pryor, Judge. Prom the judgment the city appeals. Opinion op the Court by Judge Carroll — Affirming. PROPOSITIONS. 1. If the proof shows that the applicant has failed in any one of the qualifications required, it is the duty of the license board to deny the application. Sections 3031 and 3033, Charter of the City of Louisville. 2.

<p>CASE 55 — PROSECUTION AGAINST S. A. BRADLEY FOR EMBEZZLEMENT</p> <p>1 Embezzlement — Officers—False Entries. — Indictment—.Under St. 1909, Section 2747, declaring that an officer who shall make or permit false entries, to he made in his books with intent to cheat or defraud a city shall be punished, etc., an- indictment, alleging that defendant, as live stock inspector of Louisville, with, .intent to cheat and defraud the city and others whose names were to the grand jury unknown, did feloniously make and permit others to make false entries in the books and records he was required to return to the city’s health officer, and that he knowingly failed to make proper entries therein, . and allow and disallow an item or items, was fatally defective for failure to • allege with respect to what duty devolving on defendant, or what property, he made or permitted to he made the false entries, etc., and for failure to allege what were the items concerning which he failed to make proper entries of, ■and what items he improperly allowed or disallowed.</p> <p>2. Embezzlement — Indictment—Certainty.—An indictment of a city live stock inspector for permitting persons, to make false ^entries in his books, failing to allege the names of the person or persons who were permitted to make such entries, or that their names were unknown to the grand jury, and failing to allege that defendant ever returned the books or records to the health officer as- required, was fatally defective for indefiniteness.</p> <p>3. Embezzlement — Indictment—City Ofiicer. — Where an indictment of a city live stock inspector charged him with misconduct in delivering condemned live stock, to be slaughtered ■and sold for food, etc., but did not allege whose property or how much of it defendant misapplied, o-r the precise manner of its misappropriation, it was fatally defective for failure to allege the particular circumstances of the offense as required by Cr. Code Prac. Section 124.</p> <p>4. Indictment and Information — Joinder of Offenses. — Cr. Code Prac. Section 126, provides that, except as mentioned in the succeeding section, an indictment must charge but one offense. Section 127 provides that larceny and embezzlement may be joined. Held, that an indictment could not join a charge of ■embezzlement with other charges of alleged fraudulent appropriation of property and other offenses constituting misdemeanors or malfeasance in office.</p> <p>5. Indictment and Information — Misjoinder of Offensesi — Demurrer • — A demurrer is the proper mode of objecting to an indictment for misj'oinder of offenses.</p> <p>6. Indictment and Information — Misjoinder of Offenses — Election —The commonwealth could not elect between misjoined offenses as authorized by Cr. Code Prac. Section 168, where the indictment was not good as to 'any offense attempted to be charged.</p> <p>7. Embezzlement — Nature of Offense — Indictment—Description of Property — Embezzlement* being purely a statutory offense partaking of the nature of larceny, an indictment therefor must describe the property with the same particularity as is required in an indictment for larceny.</p> <p>8. Embezzlement — Indictment—Ownership of Property — Ownership of the property must be stated with the same degree of care as is required in an indictment for larceny.</p>

H. G. Botts, Special Judge. Judgment for defendant, plaintiffs appeal POINTS AND AUTHORITIES. 1. Money ,and trade-marks that indicate where an article is made, of .a non-resident, when in use in this state, have a situs here and are assessable for taxation. Constitution of Kentucky, Section 172; Kentucky Statutes, Section 4020; Acts.of Kentucky Legislature, 1906, page 88; 28 Ky.

<p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeal.</p>

R. L. Stout, Judge. Judgment for plaintiff, defendant appeals. POINTS. 1. The Agent Johnson had no power to bind the Provident Savings to any contract of insurance as it was. not within his real or apparent scope of authority. 2. The paper “Exhibit A” is not binding on the company, and was superseded by the policies issued which constitute the only contract between the parties. 3.

<p>Appeal from Fleming Oireuit Court.</p> <p>James P. Uatcbeson, Circuit Judge.</p> <p>From a directed judgment for defendant plaintiff appeals</p>

<p>Appeal from Laurel Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Jefferson Circuit Court. (Common Pleas Branch, Third Division).</p> <p>Matt 0 ’Doherty, Judge.</p> <p>Judgment for plaintiff. Defendant appeals</p>

<p>CASE 62 — ACTION BY ROBERTA S. BRYANT AND OTHERS AGAINST S. G. STEELE AND OTHERS TO RBCOYER. LAND.</p> <p>1. Appeal and Error — Exceptions—Time of Taking — Striking Out Pleadings. — An order striking out a portion of a petition, which, was not excepted to at the time, will not be reviewed.</p> <p>2. *Public Lands — Disposition of State Lands — Curative Acts — The State Legislature, having power to dispose of state lands and to validate any irregularity in prior dispositions of said lands, (Act March 9, 1868 |Laws 1868, p. 70, c. 1162|), “to legalize ikeissual of grants for quantities of land- greater than 200 acres,” cured and validated the prior grant of 10,000 acres.</p> <p>3. Ejectment — ’Sufficiency of Evidence. — Evidence in ejectment held to sustain a finding that the land recovered was' within, plaintiff’s grant, and outside of the exceptions therefrom ,as prior grants.</p> <p>4. Ejectment- — -Evidence—Burden of Proof- — Where the evidence, of plaintiff in ejectment shows with reasonable certainty that the land is within his patent, and not within any prior grant excepted therefrom, the burden of proof shifts to defendant.</p> <p>5. Ejectment — Defenses,—Title in Third Person — Where the description in the grant of plaintiff in ejectment covers a-pYtorgrant which is excluded, defendant may show that the prior grant includes the land ’ in suit, though he does not connect, himself wit-h it.</p> <p>6. Appeal -and Error — Record—Rulings as to Evidence. — The-admission in evidence of deeds alleged not to have been 'properly executed, will not be reviewed, where the deeds are not preserved in the record.</p> <p>7 Appeal' and Error — Review—Presumptions.—It is presumed that the court did not err in the admission of evidence, and the burden is on appellant to show error, if any.</p> <p>3. Appeal and Error — Review'—Harmless Error — Admission of Evidence — The error, if any, in admitting in evidence a deed alleged to be invalid, was harmless, where the jury was afterward instructed that no recovery on such deed could be had.</p> <p>3. Judgment — Jurisdiction of Property — Situation of Land — Where the court of another state had jurisdiction of the parties to a trust estate, which included land in Kentucky, a deed- of the land, made by the trustee pursuant to the foreign judgment settling the rights of the parties, passed the title.</p> <p>10. Deeds — Description—'Reference to Other Deeds. — Where a deed refers to the deed under which the grantor obtanied title to the property, that deed is admissible in evidence to identify the land conveyed.</p> <p>11. Ejectment — Evidence—Where defendant claims land as within prior grants excepted from plaintiff’s grant, a patent to plaintiff, issued on a recent survey, is admissible as evidence that the land thereby conveyed is not within defendant’s grant.</p>

<p>Appeal from Christian Circuit Court.</p> <p>Thos. P. Cook, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In a suit for damages growing out of delay in a shipment the owner of the goods cannot recover special damages from the carrier unless it is clearly shown that at the time the contract of shipment was made the carrier’s .agent to whom the shipment was delivered for transportation was notified of the purpose for which the goods were intended and the specific loss which would occur in case of delay. L. & N. vs. Mink, 31 Ky. Law Rep., 833; Marbury Lumber Co. vs. Stearns Manufacturing Co., 32 Ky. Law Rep. 739; Brand vs. Illinois Central R. R. Co., 32 Ky. Law Rep. 3 335; Patterson vs. Illinois Central R. R. Co., 30 Ky. Law Rep. 78; Illinois Central R. R. Co. vs. Nelson, 30 Ky. Law Rep. 114.</p> <p>2. Even though one of the parties to a contract has been negligent, the other must exercise ordinary diligence to reduce his loss to the lowest possible figure. Illinois Central R. R. Co. vs. Gheen, 112 Ky. 705; Ludlow vs. Steffen, 19 Ky. Law Rep. 1671; Am. & Eng. Ency. of Law (2nd Edition), Vol. 8, page 605.</p> <p>3. The measure of damages ordinarily applied in eases of delay to shipments in transit, is the difference between the value of the shipment at the place of delivery at the time it should have reached there in due course of transportation, and the time it did arrive. Albrecht vs. L. & N. R. R., 10 Ky. Law Rep. 449; N. N. & M. V. vs. Reed, 10 Ky. Law Rep. 1020.</p> <p>4. Any connecting carrier receiving a shipment for transportation over its line undertakes to carry same with reasonable dispatch, and is liable to the owner of the goods for failure- so to do. Illinois Central R. R. Co. vs. Curry, 32 Ky. Law Rep. 514.</p> <p>AUTHORITIES.</p> <p>A. departure from the route fixed in the contract of shipment will render the carrier responsible for all losses, even those arising from the acts of God. Sec. 6597 Vol. 5 Thompson’s Negligence.</p> <p>Where .a carrier diverts the shipment from the routing fixed by the contract it continued liable as though the goods remained in its possession to destination. C., N. O. & I. P. Ry. Co. vs. Pendleton & Hudson, 96 S. W. 434.</p> <p>By diverting the shipment from the route agreed on, carrier cannot avail itself of any stipulation in its contract limiting its liability, and becomes an insurer for the delivery of the goods-. C. N. O. & I. P. Ry. Co. vs. Pendleton & Hudson, 96 S. W. 434; S. W. Ry. Co. vs. L. T. Lumber Co., 109 S. W. 1143</p> <p>Where the contract provides for notice, or where it is- the custom to give such notice, it is the duty of the carrier to give the consignee notice of the arrival of goods at its station. Briant vs. L. & N. R. R. Co., 9 Ky. Law Rep. 47.</p> <p>Where a connecting carrier receives live stock or freight from the .initial carrier, or an immediate carrier, without limiting its liability, it must be assumed to have accepted the shipment under the terms of the original contract. L. & N. R. R. Co. vs. Carrico, 95 Ky. 489; P. C. C. & St. L. Ry. Co. vs. Viers, 113 Ky. 526, 68 S. W. 469; Chicago & C. I. R. R. .Co. vs. Chestnut Bros., 89 S. W. 298.</p> <p>Each connecting carrier to the point of destination will be considered ias having appointed the initial carrier its agent for the .purpose of entering- into the contract, and will he liable on the contract made with the initial carrier the same as if made directly with it. I. C. R. R. Co. vs. Curry, 106 S. W. 294.</p> <p>It is the settled la,w in this State that where freight is shipped from a point in this State to 'any point within or without the State, the contract of shipment made with the initial carrier is binding upon all connecting carriers whether intermediate or re-mete who receive laid freight. I. C. R. R. Co. vs. Curry, 106 S. W. 294.</p> <p>Where an article is sold for a particular purpose, tne purchaser may recover such special damages as may be considered within reasonable contemplation of the parties as the natural and probable result of the breach of contract. Wallace v. Knoxville Woolen .Mills, 78 S. W. 192; Janney Mfg. Co. v. Banta, 83 S. W. 130.</p>

<p>Appeal from Jefferson Circuit Court, Common Pleas Branch (2 div.)</p> <p>Samuel B. Kikby, Judge.</p> <p>From the judgment plaintiff appeals.</p> <p>1. Thousands of statements under Section 4241 of the Kentucky Statutes have been filed in the County Courts; many have been appealed to the Circuit Court and thence to this court. No court has yet required their verification. Such action or judicial interpretation constitutes a construction of the Statute contrary to the contention of appellee. Harrison v. Commonwealth, 83 Ky. 162; Commonwealth v. Gregory, 121 Ky. 256; New Haven Railroad Company v. Int. Commerce Com., 200 U. S. 401; United States- v. Manos, 209 U. S. 339.</p> <p>2. Section 4241 of the Kentucky Statutes is a drastic, summary and informal inquisitorial proceeding where a speedy hearing and just determination are the objects aimed at. ' Commonwealth by etc., v. Ryan’s Exors., 31 Ky. Law Rep. 1070.</p> <p>3. It is a proceeding where the county judge sits as a supplemental assessor to assess property which some other assessing officer or board has failed to assess. Commonwealth etc. v. Ryan’s Exors., 31 Ky. Law Rep. 1070-1071; Baldwin v. Shine, 84 Ky. 513 to 515; Baldwin v. Hewitt, 88 Ky. 673; .Commonwealth v. Adams Express Co., 30 Ky. Law Rep. 310; Cassidy v. Young, 92 Ky. 227.</p> <p>4. It is a complete compendium in itself, providing for every step necessary to a final order of assessment without reference to the Code or any other section of the Statute. There is no provision as to verification. “The listing for taxation of omitted property is by special proceeding regulated wholly by statutory provision.” Commonwealth etc. v. Ryan’s Exors., 31 Ky. Law Rep. 1070-1071; Commonwealth v. Adams Express Co., 30 Ky. Law Rep. 310.</p> <p>5. It is one “to search the conscience of the taxpayer and not the revenue agent.” Belknap v. Commonwealth, 27 Ky. Law Rep. 476 to 478.</p> <p>6. It is not an action within the meaning of Section 2 of the Code which provides “a civil action is a demand by pleadnigs in a court of justice for the enforcement -of 'an alleged right of a plaintiff against a defendant.” Commonwealth etc. v. Ryan’s Exors., 31 Ky. Law Rep. 1070.</p> <p>7. The “statement” is not a pleading within th© meaning of Section 116 of the Code which provides: “Every pleading which this code requires to be written must be verified. The word “statement” is significant as used in Section 4241 as distinguished from the word “pleading” as used in the cod©. Commonwealth v. Adams Express Co., 30 Ky. Law Rep. 310; Commonwealth v. Ryan’s Exors., 31 Ky. Law Rep. 1070-107Í.</p> <p>8. This being a revenue statute, must receive sudh construction as will preserve it for the purpose for which it was enacted. The clause as to the judgment and description must be construed so as to put the statute in operation — not to repeal it. Commonwealth etc., v. Central Consumers Co., 28 Ky. Law Rep. 1365.</p> <p>POINTS AND AUTHORITIES.</p> <p>There are two main questions:</p> <p>A. Can a revenue agent be required to" verify his statement?</p> <p>B. Were the motions to make more definite and certain the allegations in the statement and amended statement properly sustained?</p> <p>1. Every proceeding by a revenue agent to have omitted property assessed is both judicial and ministerial. The court must first decide judicially whether the property in question is legally taxable, and, if so, must then act ministerially and assess it. Cassidy, Auditor’s Agent, v. Young, County Judge, 92 Ky. 228; Louisville Water Company v. Clark, Sheriff, 94 Ky. 47, 52; Commonwealth of Kentucky v. Julia Churchill (decided January 8, 1909.)</p> <p>2. Such proceedings are “civil cases,” by the definition-of the statute providing for them, and the terminology of the statute shows they are of a judicial nature. Act, Rev. & Tax, 1906, Art. XVI, Section 4 (Acts 1906, pag-e 227).</p> <p>3. “Civil cases” are either “actions” or “special proceedings-,” under the Code, Sections 1, 2 and 3; and by Section 732, 732 (34), the Code is made applicable to both “actions” and “special proceedings.”</p> <p>4. A proceeding by a revenue a-gent to have omitted property assessed being either an action or a special proceeding, .the provisions of the Civil Code apply and the procedure, in conducting such cases, is in accordance therewith. This is shown both by the wording of the different acts and the procedure in cases already approved by this court. The terminology of the different acts and especially the present. Commonwealth v. Singer Sewing Machine Company, 14 Ky. La,w Rep. 732; C. St. L. etc. Ry. Co. v. Commonwealth, 24 Ky. Law Rep. 2124 (115 Ky. 278); Sebree v. Commonwealth, 25 Ky. Law Rep. 121 (115 Ky. 736); Commonwealth v. Citizens National Bank,'25 Ky. Law Rep. 2100; Commonwealth v. C. St. L. & N. O. Ry. Co., 32 Ky. Law Rep. 10; (118 Ky. 51); Commonwealth v. Southern Pacific Company, 32 Ky. Law Rep. 259; Citizens National Bnak etc. v. Commonwealth etc., 32 Ky. Law Rep. 1116.</p> <p>5. This being an action or a special proceeding as defined by the Code, the provisions of which are applicable thereto, the revenue aigent is required by its provisions, to verify his petition. Code, Sections 116, 117. :</p> <p>1. The motions herein to require the plaintiff to make more definite and certain its statement, were properly sustained.</p> <p>2. Because the present act requires such a description of the particular property claimed as omitted that the county court will be enabled to identify that particular piece'of property from any other property, whether of the same or of a different kind.</p> <p>3. The particular allegations in the present case are discussd separately, and are insufficient both as pleadings and for failure to give such a description as is required by the “identification clause” of Art. XVII, Section 4, Act of 1906 (Acts 1906, page 228.)</p>

<p>Appeal from Boyle Circuit Court.</p> <p>W. CB Bell, Circuit Judge.</p>

<p>Appeal from Henry Circuit Court.</p> <p>Chas. O. Marshall, Circuit Judge.</p> <p>Prom the judgment plaintiff appeals</p> <p>STATEMENT OF QUESTION IN CONTROVERSY.</p> <p>In this case the contention of appellant is that the money which, he seeks to recover was- paid by him without consideration and. under a mistake of law, that he is entitled to have it restored to him, and that equity and good conscience will not permit appellees, to-retain it. The contention of appellees is that appellant having voluntarily paid money with a knowledge of all the facts did so at his peril, and has now no remedy. So the question to be decided it, can money paid with knowledge of the facts, but under a clear mistake of law be recovered, where the consideration fails?</p> <p>AUTHORITIES CITED.</p> <p>Board of Trustees of New Castle vs. Scott 30 R. 894; Comm. vs. Carter, 31 R. 1511; Civil Code Seo. 747; Small vs. Reeves, 25 R. 72; Brands vs. Louisville, 111 Ky. 60; City of Louisville vs. Anderson, 79 Ky. 340; Bruner & Bloom vs. Clay, 100 Ky. 567; Ky. Stat. Sec. 3704, sub sec. 4; Bruner vs. Stanton, 102 Ky. 459; L. & N. vs. Comm. 89 Ky. 531; Comm. vs. Central Hotel Co., 28 R. 829; Tyler vs. Smith, 18 B. M. 799; Providence vs. Shackleford, 106 Ky. 378; Maysville vs. Melton, 102 Ky. 72.</p> <p>Where parties to a contract treat with each other knowing full well all the existing facts, -and knowing that the proper construction of the law based upon said state of facts is doubtful, then each party takes the risk of the law being unfavorable to him, and when it is .ascertained what the law is, that party who believed the law to be otherwise cannot come into a court of- equity, and claim relief, because he was mistaken as to what the law really was..</p> <p>No one compelled, no circumstances existed compelling the appellant to pay his money for the license. On the contrary he compelled the board to grant him the license and accept his money against their wish. The burdenion the plaintiff is self imposed.</p> <p>The appellant received untold benefits under his license, and same medium through which he commpelled the board to issue him the license, was the same medium which compelled him to cease to operate under the license, and the proceedings were his the same in the Court of Appeals as in the Henry Circuit Court. We respectfully submit' that the judgment of the lower court be affirmed.</p> <p>LIST OF AUTHORITIES.</p> <p>Trustees of New Castle vs. .Scott, 30 R. 894; Cyc. Yol 23, 152; Town of Providence vs. Shackelford, 20 R. 1921; L. & N. vs. Comth. 89 Ky. 531; L. & N. vs. Hopkins county, 87 Ky. 605; Tyler et al vs. Smith, 18 B. M. 793; City of Louisville vs. Anderson, 79 Ky. 336; Monroe county vs. Kreuger, 88 Ind. 231; Town Council vs. Burnett, 34 Ala..; City of Owensboro vs. Fields, 31 R. 627; Comth. vs. Central Hotel Co., 28 R. 829; City of Maysville vs. Melton, 102 Ky. 72; Ky. Statutes Sec. 3704; Comth. vs. Douglass, 15 R. 581; Titus vs, Rochester Ins. Co., 97 Ky. 571.</p>

<p>CASE 67 — ACTION BY KATE G. RYAN AGAINST THE LOGAN COUNTY BANK</p> <p>3.Subrogation — Rights of Surety — A wife, whose property was used to pay a debt of .her husband for which she was surety, is entitled to subrogation to the rights of the creditor in a judgment against a third person held by the creditor as collateral security.</p> <p>2. Subrogation — Actions to Enforce — Pleading—Prayer for Relief —A surety’s rights of subrogation to the creditor’s collateral security may be awarded under a prayer for the entire fund in security under an assignment from the debtor.</p> <p>3. Appeal and Error — Objections Not Raised at Trial — Objections to parol evidence cannot be first raised on review.</p> <p>4. Trusts — Assignment as Security — Parol Evidence — Purpose of Writing — Where an assignment of a judgment does not state the purpose for which it is given, parol evidence is admissible to show such purpose and to establish a trust in the assignee in favor of a person not a party to the assignment.</p> <p>5. Trusts — Conveyance Pursuant to Oral Agreement — A conveyance of property on the faith of an oral agreement to hold it for another person creates an enforceable trust in favor of such person.</p> <p>•6. Trial — Parol Evidence — Purpose of Assignment — Defendant cannot object to parol evidence to show the purpose of an assignment of a judgment absolute on its face, where he admits in his answer that it was not intended to be absolute, but only as security for a debt.</p>

<p>CASE 68 — WILLIAM H. WARD WAS CONVICTED OF CHALLENGING ANOTHER TO FIGHT A DUEL AND HE APPEALS.</p> <p>1. Dueling — Elements—“Duel”—“Challenge to Duel.” — St. 1909, Section 1269 (Russell’s St. Section 3190), imposes a punish,ment upon one challenging another to fight in single comhat or otherwise, with a deadly weapon, and Const. Section 239, prohibits one from holding office who .shall directly or indirectly gave a challenge to another to fight in single combat with a deadly weapon. Accused', while partially intoxicated, went up to another, and, drawing or partly drawing a gun, said: “God damn you, you started to draw a gun this morning, now, God damn you, shoot.” Held that, since a duel was a combat with a deadly weapon fought under prescribed rules according to a precedent formal agreement without sudden heat or passion, accused’s conduct did not amount to a challenge to a duel within the statute.</p> <p>2. Dueling — Prosecution—Trial—Jury Question — In a prosecution for challenging another to fight a duel, if there is any doubt as to whether accused intended to challenge another tc fight a duel with deadly weapons, the question is ordinarily for the jury.</p>

<p>Appeal from Mason Circuit Court.</p> <p>James P. Hakbeson, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The contract set up in appellee’s petition and upon which •this suit is based, is illegal and 'opposed to public policy both at common law and by virtue of the provisions of section 214 of Kentucky Constitution, and 817 of Kentucky Statutes. (Sec. 214, Constitution; Sec. 817, Kentucky Statutes; Beales and Wyman ion Railroad Rate Regulation, sec. 724, Chapter XXI; Messenger v. Pennsylvania R. Co. (N. J.), 13 Am. Rep. 547; Schofield v. L. S. & M. S. Ry. Co., 43 Ohio St. 571; 3 N. E. 907, 54 Am. Rep. 846; Fitzgerald v. Grand Trunk Ry. Co.,' (Vt.) 22 Atl. 76; 13 L. R. A. 70; Handy v. Cleveland, &c. Ry. Co., 31 Fed. 689; Burlington, &c. Ry. Co. v. Feed Co., 31 Fed. 652; Samuels v. L. & N. R. Co., 31 Fed. 57; Hays v. Pennsylvania Co., 12 Fed. 311; Western Union Tel. Co. v. Publishing Co., 181 U. S. 92; Murphy v. Simpson, 14 B. Mon. 419; Van Meter v. Spurrier, 94 Ky. 22, 21 S. W. 337; Savannah, &c. Ry. Co. v. Bundick, (Ga.) 21 S. E. 995; Texas Pacific Ry. Co. v. Mugg, 202 U. S. 242; Gulf, &c. Ry. Co. v. Hefley, 158 U. S. 98; Indianapolis, &c. Ry. Co. v. Erwin (111.), 8 N. E. 862; Church v. Ry. Co. (S. Dak.), 85 N. W. 1001.)</p> <p>2. Appellee was certainly not entitled to rely upon the four cent rate, after that mistake was discovered and it was informed thereof.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Under the common law the shipper could -enforce his rate contract, although the rate was less than that charged others. (Cleveland C. C. & I. R. Co. v. Closser, 9 L. R. A. 754; Arvinger v. South Carolina R. Co., 29 S. C. 265; Missouri Pac. R. Co. v. Texas and P. R. Co., 30 Fe.d. Rep. 2; Dow v. Beidelman, 125 U. S. 680, 31 L-ed, 841; Chicago M. & St. Paul R. R. Co. v. Minnesota, 134 U. S. 418, 33 L-ed, 970; Ragan v. Aiken, 9 Lea 609; Ex parte Benson, 18 S. C. 39; Johnson v. Pensacola & P. R. Co., 16 Fla. 623; Christie v. Missouri Pac. R. Co, 13 West Rep. 688, 94 Mo. 453; Bayless v. Kansas Pac. R. Co., 5 L. R. A. 480; Fitchburg R. Co. v. Gage, 12 Gray 393; Chicago B. & O. R. Co. v. Parks, 18 111. 460; Hay v. Penn Co., 12 Fed. Rep. 310; Interstate Com. Com. v. B & O. R. Co., 8 R. R. & Corp. L. J. 343, 3 Int. Com. Rep. 192; Hersxh v. Northern Cent. R. Co., 74 Pa. 181; Com. v. Power, 7 Met. 596, 41 Am. Dec. 486; Louisville E. & St. L. Consolidated R. Co. v. Wilson, 18 L. R. A. 105; State v. Cin. W. & B. Ry. Co., 47 Ohio St. 130; Lake Shore 'and M. S. Ry. Co. v. Scofield, 2 Ohio Cin. Ct. R. 305.)</p> <p>(a) The case of Messenger v. Pennsylvania Railroad Company, 13 Am. Rep. 547 explained. (Cleveland C. C. & I. R. Co. v. Closser, .supra; Stowart v. Lehigh 'Valley R. Co., 38 N. J. L. 505.)</p> <p>(b) The case of Burlington C. R. & N. R. Co. v. Northwestern Fuel Co., 31 Fed. 652, condemned and declared unsound. (Cleveland C. C. & I. R. Co. v. Closser, supra.)</p> <p>2. Exhibits filed by appellant should control, rather than fiha pleading. (Kentucky Mutual Co. v. Logan, 90 Ky. 364; Boyd v. Bethel, 10 Ky. Law Rep. 470; L. C. & L. R. Co. v. Mahan, 3 Bush 184.) • -</p> <p>3. The contract in question not a discrimination. (L. & N. Ry. Co. vs. Vancleave, 23 Ky. Law Rep. 479; I. C. R. R. Co. v Com., 23 Ky. Law Rep. 544; L. & N. R. R. Co. v. Walker, 23 Ky. Law Rep. 453; L. & N. v. Com., 104 Ky. 258; Atchison T. & S. F. R. Co. v. Goetz & Boulden Mfg. Co., 51 111. App. 151; Chicago N. W. Ry. Co. v. Osborne, 52 Fed. 912; Lozier v. U. S., 52 Fed. 917; TJ. S. v. Mullen, 53 Fed. 912; Parsons v. Chicago & N. W. Ry. Co., 63 Fed. 903; Int. Com. Com. v. Cin., N. O. & T. P. Ry. Co., 56 Fed. 925.)</p> <p>4. Even though the contract in question is a discrimination, appellee, being the innocent party can recover (Memphis & Co. Packet Co. v. Abell, 17 Ky. Law Rep. 191; C. &. O. Ry. Co. v. Dobbins, 23 Ky. Law Rep. 1588; Ohio & M.- Ry. Co. v. Savage, 38 111. App. 148; Mount Pleasant Mfg. Co. v. Cape Fear & Y. V. R. Co., 106 N. C. 207; Vol. 9, sec. 901, Century Digest; Colburn v. Phillips, 73 Mass. (13 Gray) 64; Com. v. L. & N., 21 Ky. Law Rep. 469; Mobile and Ohio Ry. Co. v. Dismukes, 17 L. R. A. 113.)</p>

<p>Appeal from Montgomery Circuit Court.</p> <p>A. W. Young, Circuit Judge.</p> <p>Judgment for defendant. Plaintiff appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The petition does not stale a cause of action. (28 Cyc. page 1380; Elliott’s Roads and Streets', sec. 616; Smith’s Municipal Corporations, sec. 1543; Board of Councilmen of Town of Nicholas-ville v. Fain, 99 S. W., 275; Town of Royal Center v. Bingaman, 77 N. E. (Ind. 1906) 811.)</p> <p>2. The obstructions complained of were not, as a matter of law, such obstructions as were reasonably calculated to frighten a horse of ordinary gentleness. (Bloor v. Delafield, 65 N. W. 676; 69 Wis. 273; Cleveland, &c. v. Wynant, 114 Ind. 525, 5 Am. St. Rep. 644; Wyatt Pearce v. Town of Lancaster, 1 Ky. Law Rep. 412.) .</p> <p>3. There was no proof under wihich the jury could have found that the horse in question was one of ordinary gentleness, hence a submission of the case to the jury would have been improper.</p> <p>AUTHORITIES CITED.</p> <p>Fugate v. City of Somerset, 97 Ky. 48; City of Frankfort v. Allen, 26 Ky. Law Rep. 581; Carlisle v. Somerset, 25 Ky. Law Rep. 336; C. N. O. & T. P. Ry. Co. v. Zachary’s Admr., 32 Ky. Law Rep. 678; Tates v. City of Covington, 119 Ky. 228; Board of Council, &c. NicholaS’Ville v. Fain, 30 Ky Law Rep. 564; City of Newport v. Miller, 93 Ky. 22.</p>

<p>Appeal from Jefferson Circuit Court. (Criminal Division).</p> <p>Joseph Pryor, Judge.</p> <p>Defendant convicted and appeals</p> <p>We desire to submit to the court why the judgment should be reversed by the following points:</p> <p>L The court should have given a peremptory instruction at the close of the commonwealth’s testimony.</p> <p>2. The court erred to' the prejudice of the appellant in the admission of incompetent testimony.</p> <p>3. The court erred in giving instruction No. 3 on accomplice or accomplices in not defining what an accomplice is.</p> <p>AUTHORITIES.</p> <p>Sec. 242, Criminal Code; sec. 241, Criminal Code; Miller v. Commonwealth, 78 Ky. 15; Miller & Smith v. Commonwealth, 78 Ky. 22; Craft v. Commonwealth, 80 Ky. 349; Abbott v. Commonwealth, 20 Ky. Law Rep. 727; Wilkerson v. Commonwealth, 25 Ky. Law Rep. 708; Eney. of Evidence, vol. 1, p. 112.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court did not commit an error in refusing to give peremptory instructions to the appellant. (Crim. Code, sec. 241; Miller v. Commonwealth, 78 Ky. 15; [¶] Ky. 356, 386, 114 Ky. 572, 237; Bowling v. Commonwealth, 79 Ky. 604.)</p> <p>2. The court did not commit an error in giving instruction No.</p> <p>3.(Crim. Code, sec. 241; Craft v. Commonwealth, 80 Ky. 349; Patterson v. Commonwealth, 86 Ky. S13; Taylor v. Commonwealth, 10 Ky. Law Rep. 169; Howard v. Commonwealth, 22 Ky. Law Rep. 1849.)</p> <p>3. No error was committed in the argument of the commonwealth’s attorney to the jury. (Crim. Code, sec. 241; Commonwealth v. Murphy, 33 Ky. Law Rep. 141.)</p> <p>4. No error was committed • in the appellant not having been •arraigned. (Crim. Code, sec. 154; Utterback v. Commonwealth, 20 Ky. Law Rep. 1515; Wade v. Commonwealth, 20 Ky. Law Rep. 1885.)</p> <p>5. The rights of appellant were not prejudiced by one of the jury leaving the box during the trial, or by a remark alleged to have been made in the presence of the jury. See affidavits in the record; Crim. Code, sec. 244; Howard v. Commonwealth, 24 Ky. Law Rep. 612; Blue v. Commonwealth, 91 Ky. 200; Holly v. Commonwealth, 18 Ky. Law Rep. 441.)</p>

<p>CASH 72 — ACTION BY. THE CITY OF PARIS AGAINST E. T. HINTON, JUDGE, AND OTHERS.</p> <p>Pardon — Authority of Governor to Pardon. — 'Const, sec. 77, provides that the Governor shall have power to grant pardons, but “he shall have no power to remit the fees of the clerk, sheriff, or commonwealth’s attorney in penal or criminal cases.” Section 79 provides that the Governor shall from time to time give to the General Assembly information of the state of the commonwealth, and recommend such measures as he may deem expedient. Section 81 provides that the Governor shall take care that the laws he faithfully executed. Ky. St. 1909, sec. 3499 (Russell’s St. sec. 1556), provides that the mayor or chief executive of a city of the fourth class shall see that the laws and ordinances of the city are duly enforced. Section 350 (section 1557) provides that the mayor or chief executive, with two councilmen selected by the city council, may remit or suspend the imprisonment portion of -any sentence and the fine imposed, when such punishment ishall have been imposed for violation of any ordinance. Held, that the Governor has no authority to pardon one convicted of a violation of .a city ordinance of a municipality of the fourth class.</p>

<p>Appeal from motion made and’ overruled in Court of Appeals.</p>

<p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>From a judgment of condemnation and damages defendants appeal</p>

<p>CASE 75 — ACTION BY BIDDIE WATKINS AND OTHERS AGAINST THE NORTHERN COAL AND COKE COMPANY TO RECOVER A HALF INTEREST IN CERTAIN LAND.</p> <p>1. Judgment — Evidence of Title — Right to Disregard. — A judgment relied on simply as evidence of title in a case wherein it was not sought to set it aside cannot be disregarded unless it is void.</p> <p>2. Judgment — Collateral Attack — Presumptions.—When a judgment is collaterally attacked long after it was rendered, it will be presumed the court acted regularly, though the record may not evidence the fact.</p> <p>3. Motions — Orders—Presumptions—Making of Orders — Necessity of Entry — It cannot be' presumed that the court made orders- not on its own order book; f-or there can be no order of the court not entered on such book, and signed by the judge. ' r| 1</p> <p>4. Guardian and Ward — Sale of Real Estate — Validity—Taking Bond of Guardian — -Necessity of Order of Court — “Taken.”— Civ. Code Prac. Section 493, provides as to the proceedings under section 489, subd. 3, by a guardian.to sell and to maintain and educate -his' ward, that he must give a bond which by subdivisions 2 and 3 must be approved by the court and recorded with an order of sale and certified by the clerk of the court, who shall deliver it to the county clerk to be recorded and indexed, and, if it be not given, any order of sale or conveyance made thereunder shall he void.' Held, that a bond was not taken within the meaning of the statute unless it was taken by -an order of the court, which could only speak by its orders, and, if there be no order, it was not taken and approved by the 'court, and the .sale was void, as the statute expressly declares.</p>

J. M. Benton, Circuit Judge. Judgment for defendants, Plaintiff appeals POINTS AND AUTHORITIES. 1. If money be paid to one party as consideration for a contract or transaction which is contrary to public policy, and by him delivered to a third person to he held by that person for him, such third person cannot refuse to pay over the' money to the party who gave it to him upon the plea that the money was derived from an illegal transaction; Am. & Eng.

<p>CAS® 77 — ACTION BY E. C. TUTT TO SETTLE THE ESTATE OF C. A. DUFF, DECEASED.</p> <p>1. Abatement and Revival — Death of One of Several Parties— Suits to Settle Estate — Under Civ. Code Prac. Section 432, making creditors- who file claims against an estate parties to a suit to settle the estate, such suit does not abate as to other claimants by the death of the creditor bringing the suit, though it is not revived by his personal representative.</p> <p>2. Abatement and Revival — Death of Plaintiff — Rights of Personal Representative — The interest of a creditor suing to-settle an estate devolves- upon his personal representative at his death.</p> <p>3. Abatement and Revival — -Bar as to One Party — Effect—There may be sufficient parties, though revivor as to one party is barred.</p> <p>4. Judgment — Process to Sustain — Suit to Settle Estate. — A decree and proceedings thereunder in a creditor’s suit to settle an estate is void where defendants were not summoned, and. did not appear.</p> <p>5. Judgment- — Conformity to Prayer — Under Civ. Code Prac. Section 90, limiting recovery to that demanded when no defense is made, a decree of sale beyond the prayer of the petition in a. creditor’s suit to settle a decedent’s estate was improper.</p> <p>6 Appeal and Error — Presentation of Questions in Lower Court— Void Judgments — -Essential Steps. — Before appeal lies from a. void judgment or a clerical misprision, motion to correct tbe judgment must be first presented to tbe lower court.</p> <p>7. Attorney and Client — Authority to Receive Notice — Presumption. — In the absence of a disclaimer of the relation of attorney and client, it will be presumed that the attorney had 'authority to receive notice of a motion.</p> <p>8. Appeal and Error — Presumptions—Support of Judgment — Service of summons is presumed as against collateral attach on a judgment, but not on appeal which is a direct attack.</p>

<p>Appeal from Jefferson Circuit Court; (Chancery Branch, Second Division).</p> <p>Emmett Field, Judge.</p> <p>Judgment of dismissal, plaintiff appeals</p>

<p>CASE 79 — DEATH ACTION BY LEONARD BARNES’ ADMINISTRATOR AGAINST THE CHESAPEAKE & OHIO RAILROAD COMPANY.</p> <p>1. —Master and Servant — Railroads—Duty to Establish Rules — It is the duty of railroad companies to establish and publish rules for the operation of trains and the government and control of employes when in the discharge of their duties, and the failure to establish and enforce rules which will afford employes reasonable protection against the dangers of the employment will render a railroad company liable for. injuries resulting therefrom.</p> <p>2. Master and Servant — Injury to Servant — Right of Recovery— Where an employe, himself free from negligence which would defeat a recovery, is injured or killed by a violation of the rules by a superior agent or officer of the master, the master is liable.</p> <p>3. Master and Servant — Rules for Employes — Injury to Servant— • Where decedent, a member of a wrecking crew, when the train took a siding to allow another train to pass, left his, train and stood on the track immediately in front of the tender of his own volition, and not in pursuance of any duty, he could not depend on the observance by the engineer of a rule requiring the bell to be rung before the engine was started, and there ' could be no recovery from the railroad company for his death caused by the engineer’s starting the .engine without ringing the hell.</p> <p>4. Master and Servant — Injury to Servant — Assumption of Risk— Scope of Employment. — The servant assumed the risk in taking such position, and the only duty the railroad company owed decedent was the duty to avoid injuring him after his position of peril was discovered.</p>

J. W. Oammack, Judge. Prom the judgment defendants appeal The question in this case is: Whether or not a livers vehicle used in carrying passengers or freight for pay, is a common carrier and subject to a license fee under the orders of the Fiscal Court of the county in which it is used as such carrier. We submit: 1. That it is a common carrier and hauls practically all the produce and merchandise between the towns of Owenton and Sparta. 2.

Harbeson, Circuit Judge. From a decree sustaining a contest by Lydia. E. Dimmett and others, the executor and others appeal— POINTS AND AUTHORITIES. 1. Where a will is-, contested solely on the ground of undue influence and there is no evidence that such influence was exerted, and was -effective, this court will order the will to he probated. (Broaddus v. Broaddus, 10 Bush 299; Bush v. Lisle, 89 Ky. 393; Sanders v. Blakely, 21 Ky. Law Rep. 1321.) 2.

<p>CASE 82— SUIT BY R. O. DEPPEN AGAINST HENRIETTA DEPPEN’S TRUSTEE AND OTHERS, FOR A CONSTRUCTION OF THE WILL OF HENRIETTA DEPPEN, DECEASED.</p> <p>1.'Wills — Construction—Inconsistent Devises. — Where there are - two inconsistent devises in the same will, the latter prevails.</p> <p>2. Wills — Construction—Inconsistent Wills. — Where there art two inconsistent wills, or a will and a codicil, of different dates, the last will or codicil prevails, though the provisions- of each as far as practicable must be given effect. *</p> <p>2. Wills — Construction—Inconsistent Wills. — Where there are two tor is presumed to intend to dispose of his entire estate, and, though he may make a mistake in his estimate of the value of his estate, that is not of itself a ground for setting aside his will or disregarding ,his intention; and, where there is a general description showing that testator intended to dispose of his entire estate, words of quantity or value will not control.</p> <p>4. Wills — Construction — Equality of Devisees. — Where the language of a will is susceptible of two constructions, the court will adopt that construction which will make the devisees equal.</p> <p>5. Wills — Construction—Intention of Testator. — Where two instruments bearing different dates- were admitted to probate, tbe court, in ascertaining the intention of the testator, must consider both, whether they are treated as wills or the last instrument is treated as a codicil.</p> <p>6. Wills — 'Construction—Estates- Devised. — Testatrix by her will made equal distribution of her estafe between a daughter and a son, placing in the hands of a trustee the share of the son, and providing that he .should, be paid only the income, and directing what disposition should be made of the trust estate ■after his death. A codicil recited that the -estate of testatrix was $10,000, and that it was her desire that her daughter and son should equally receive .a half thereof, and named $5,000, • to which each was entitled. Her property consisted of bonds, ■stocks, and other securities fluctuating in value, and their value exceeded the value specified in the codocil. Hejd, that testatrix intended to dispose of her entire estate, and the daughter and son each took one-half -thereof absolutely.</p> <p>7. Wills — Revocation.—A will or codocil may operate as a revocaation, or of an inconsistent disposition of the previously devised property.</p> <p>8. Wills — Construction—Actions—Estoppel.—Where a beneficiary ■in a will, on being advised of his rights, speedily took steps to ■assert them, and his acquiescence in the construction of the will adopted by the executor was but temporary, he was not estopped from insisting on a judicial construction of cue will.</p>

<p>Appeal from- Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Prora the judgment L. Y. Harkness appeals against James L. Lisle and others; James L. Lisle and others appeal against Rufus Lisle, Jr., and others and Rufus Lisle, Jr., and others, appeal against James Lisle and others</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Preliminary'-statement. The -estate acquired by appellee, James L. Lisle, was either a-n exclusive fee, a joint fee with his children and co-appell-ees, Rufus and. Lillian Lisle nv » mere life estate wi-th remainder in fee -to -said children. Appellant’s contention is that appellee, James L. Lisle, took an -exclusive fee to the property in question in himself alone. If. however, -this-be not so, then it is submitted that said Jam-es L. Lisle acquired a joint fee in said property with his children above named. Such was the decision of the lower court. (Sims, etc. v. Skinner’s Ex’r, 118 Ky. 573; McFarland, etc. v. Hatchett, etc., 118 Ky. 423.1</p> <p>2. If the appellee, James L. Lisle, acquired merely a life estate in the property her-e involved, then- the restraint on the alienation of said estate for his lifetime is valid, and should be upheld. (Morton’s Guardian v. Morton, etc., 27 Ky. Law Rep. 661; Holt’s Ex’r v. Deshon, etc., 31 Ky. Law Rep. 744; Trustees of Common School District No. 31, v. Isaac’s Guardian, 115 S. W. 724; Lawson v. Ligh-tfoot, e-tc., 27 Ky. Law Rep. 217.) If, on the other hand, saidi appellee, James L. Lisle, took a fee either alone cr jointly with -his children, then it is submitted that the judgment of the lower court holding invalid the absolute restraint on alienation sought to be annexed to said estate by the testator, Rufus Lisle, Sr., in the fifteenth clause of his will, was correct, and should be upheld, for the reason that a limitation restraining absolutely the alienation of a fee-simple -estate during -the life time of a devisee thereof, who at the time of acquiring such estate is a young man in- good health, is, under the decisions of this court, an unreasonable and illegal r-estraint upon alienation. (jChenault, etc. v. Burgess, 29 Ky. Law Rep. 569; Civil Code, sec. 492, s-ubsec. 1; sec. 489, s-ubsecs. 3, 4, and 5; sec. 491, and sec. 490; Robinson v. Gray, 29 Ky. Law Rep, 1296; Wallace v. Smith, 113 Ky. 263; Smith, v. Smith, 115 K y.329; Call v. Shewmaker, etc., 24 Ky. Law Rep. 986; Kentucky Statutes, sec. 2360.)</p> <p>1. The question to be decided on these several appeals may be divided into two parts:</p> <p>First, the main question, as to what estate is conveyed under the fifth clause of the will in .the record, by the words “to my son James L. Lisle and his children,” and:</p> <p>Second, the question whether clause fifteen of said will is void as being an illegal restraint upon alienation.</p> <p>2. The contention of the infants and guardian is that the devise above, mentioned created a life estate in James L. Lisle and a remainder in fee to the .infants Rufus and Lillian.</p> <p>AUTHORITIES CITED.</p> <p>Tyler v. Tyler, 5 Ky. Law Rep. 936; Carr v. Estill, 55 Ky. 308.</p>

<p>CASH 84 — ACTION BY THE FIDELITY TRUST COMPANY AS COMMITTEE OF BELLE B. ROGERS, A LUNATIC, AGAINST BELLE B. ROGERS, AND ANOTHER, FOR THE SALE OF REAL ESTATE</p> <p>1. Judgment — Collateral Attach — Courts of Limited Jurisdiction— Presumptions as to Jurisdiction. — Judgments of courts of limited jurisdiction exercising special powers are void on collateral attach, unless the facts necessary to confer jurisdiction appears of record.</p> <p>2. Insane Persons — Appointment of Guardian — Presumptions—Collateral Attach — Courts of Limited Jurisdiction. — Since the county court is one of limited jurisdiction possessing only statutory powers, the record of the proceedings for the appointment of a committee for a lunatic must show the. facts essential to jurisdiction, and a substantial compliance with the statute or the judgment is open to collateral attach.</p> <p>S. Judgment — Collateral Attach — Courts of General Jurisdiction.— On a collateral attach from a judgment rendered by a court of record of general jurisdiction in the exercise of its ordinary jurisdiction over the subject-matter in litigation, it will be presumed that the court acted correctly and with due authority, and its judgment is as valid as though every fact necessary to jurisdiction affirmatively appeared of record, and, in the absence of any showing on the subject, it will be presumed, iu support of the judgment that a statutory affidavit was filed.</p> <p>4. Insane Persons — Appointment of Guardian — Presumptions—Collateral Attack — Courts of General Jurisdiction. — Where the record of the circuit court appointing a committee for a lunatic showed that prior to the inquest process was served on the lunatic and on.a physician in whose charge she then was, and that the presence of the lunatic was dispensed with on the sworn statement of two physicians that it would be injurious to bring her into court, it would be presumed, in support of the judgment as against collateral attack, that the physicians testified as required/ hy St. 1909, section 2157 (Rsusell’s St. section 4248), that they had previously examined her and believed her to be of unsound mind, rendering the judgment valid. •</p>

<p>Appeal from Laurel Circuit Court.</p> <p>Jambs D. Morris, Special Judge</p> <p>Judgment for defendant Prewitt. Plaintiffs appeal</p>