Volume 133 — Kentucky Reports

<p>CASE 1 — ACTION BY FLORENCE P. CUMMINGS AGAINST ORVILLE CUMMINGS FOR DIVORCE</p> <p>Divorce — Venue — Plaintiff’s Residence — “Resident.” — A wife, who lived in a particular city wiih her husband during their cohabitation, and who, when abandoned, went to another State solely to make a living, acquiring no domicile there, and regarding such city as her home, was a resident of such city within Ky. St. 1909, Sec. 2120 (Russell’s St. Sec. 70), requiring one year’s continuous residence next before' suit for divorce.</p>

<p>Appeal for Knox Circuit Court.</p> <p>H. C. Faulkner, Circuit Judge.</p> <p>Judgment for plaintiff, defendant, appeals</p> <p>AUTHORITIES CITED.</p> <p>Bush v. Bush, 51 American Decision, 675; Bennett v. Hitherington, 6 Bush, 192, Carter v. Richardson, &c., 22 Law Rep., 1204; Price v. McDonald, 54 American Decisions; Interstate Investment Co. v. Bailey, 29 Law Rep., 468; Sec. 600, 2 Vol. Pomeroy Eq. Jur.; Commonw.ealth v. Gibson, 85 Ky., 666; Hornsby v. Davidson, 21 L. R., 1531; Howton v. Gilpin, 24 L. R., 630; Sec. 601, 2 Pom. Eq. Jur.; Lane, &!c., v. Morton, &c., 23 L. R.,- 43S; 4 Kent. Com., pp. 170 and 179; Fisk v. Branamon, 2 B. M., 379; Lillard v. McGee, 2 J. J. M:, 449; Bradford v. Southgate, 4 Law Rep., 890; L. & N. R. R. Co. v. Graves’ Assn., 78 Ky., 74; U- & N. R. R. Co. v. Montgomery, 17 Law Rep., 807.</p> <p>POINTS AND- AUTHORITIES.</p> <p>1. The execution and genuineness of the alleged lost deed from Silas Barton to Elijah Rhodes is not shown hy any evidence in the record. Its execution and genuineness should have been shown by “satisfactory evidence” to render its contents admissable. (17 Cye., 425-536; Helton v. Asher, &c., 103 Ky., 735-6; Greenleaf on Evidence, Vol. 1, Sec. 390; Hornsby v. Davidson, 21 D. R., 1532.)</p> <p>2 No actual possession of the land in controversy was ever had by any person. Appellant and its vendors did not by actual. possession toll the title of Silas Barton to the land.. (Interstate Investment Co. v. Bailey, 93 S. W., 578; 29 R., 468.)</p>

<p>Appeal from Magoffin Circuit Court.</p> <p>D. W. Gardner, Circuit Judge.</p> <p>Defendant convicted and appeals</p> <p>POINTS AND AUTHORITIES CITED</p> <p>1. The defendant has a right to have compulsory process for his absent witnesses who are material to his defense and to have a, reasonable time in which to have same executed. (Section 11 of Bill of Rights; Adkins v. Commonwealth., 98 Ky., 539.)</p> <p>2. Improper and prejudicial arguments 'Of Commonwealth’s attorney is ground for reversal. (Redmond v. Commonwealth, 51 S. W., 565; Johnson v. Commonwealth, 61 S. W., 1005; Carroll v. Commonwealth, 92 S. W., 308.)</p> <p>3. Verdict of jurv should be reported by foreman. (Criminal Code, Section 255.)</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Errors not pointed out in motion and grounds for new trial can not be considered by this court. (Criminal Code, Sec. 271; Hopkins v. Commonwealth, 3 Bush, 480; Lewis v. Commonwealth, 19 R., 1139; Baker v Commonwealth, 20 R., 879; Nicely v. Commonwealth, 22 R„ 900; Ison y. Commonwealth, 23 R.', 1805; Griffin v. Commonwealth, 23 R., 2148; Howard v. Commonwealth, 24 R., 91; Thomas v.. Commonwealth, 25 R., 201; Thompson v. Commonwealth, 28 R., 1137.)</p> <p>2. No error in refusing continuance. (Criminal Code, Sec. 189; Criminal Code, Sec. 340; Adkins v. Commonwealth, 98 Ky„ 539.</p> <p>3. Argument of counsel. (Hourigan v. Commonwealth, 94 Ky., 520; Howarton v. Commonwealth, 33 R., 1008; Horseman y; Commonwealth, 33 R;, ifll; Oschner v. Commonwealth, 33 R., 119.)</p>

Matt O’Doherty, Judge. Judgment for defendant, plaintiff appeals 1. This work was done in the factory of the appellee, where there -were many employed and many machines, and it is customary for the foreman to employ and even discharge employes. 2. This boy, only thirteen years of age, supposed he was working for the company. 3. The work was done in a room that was under the supervision and control of appellee’s superintendent. 4.

<p>CASE 5. — ACTION BY J. B. RUSSELL AGAINST J. A. NEW-COME FOR DAMAGES FOR ASSAULT AND BATTERY</p> <p>1. Assault and Battery- — Defense of Property. — A mere trespass to realty does not justify the owner of the premises in shooting the trespasser unless the trespass be accompanied by acts amounting to an assault on the owner such as would warrant him in exercising the right of self-defense.</p> <p>2. Assault and Battery — Defense of Home. — When one’s home is invaded, after a request to desist, he may resort to such means as are necessary in the exercise of a reasonable judgment to expel the intruder.</p>

<p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Evidence of the good character of a witness is not admissible until his general reputation has been impeached. (Civil Code, Secs. 597-599.)</p> <p>2. Under the provisions of Sec. 597 of Civil Code a witness may be impeached by the party against whom he is introduced by four different methods, towit:</p> <p>(a) By contradictory evidence;</p> <p>(b) By showing that he has made statements different from his testimony;</p> <p>(c) By evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief;</p> <p>(d) By showing by examination of the witness, or by the record of a judgment, that he has been convicted of a felony;</p> <p>And evidence of the witness’ general reputation is not admissible, except where he is impeached by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief. (Civil Code, Secs. 597, 599; Vance et ux v. Vance, 2 Met., 581; Evans v. Evans, 93 Ky., 518.)</p> <p>3. The authorities in the different1 jurisdictions are divided upon the question .of whether or not evidence of the good character of a witness can be introduced in support of the witness, when he is impeached by the party against whom he is introduced by proof of his conviction of a felony, but the better rule is that proof of conviction of crime cannot be explained away by testimony as to good repute. (Wigmore on Evidence, Vol. II, Secs. 110.5, 1106; People v. Rector, 19 Wend., 600; People v. Gray, 7 N. Y., 378; Hannah v. McKellip, 49 Barb., 342.)</p> <p>PROPOSITIONS OP LAW DISCUSSED.</p> <p>1. Proof of good character of plaintiff in suit for slander admissible.</p> <p>2. When a witness has been impeached by proof of conviction of felony, evidence of general good reputation of witness admissible.</p> <p>AUTHORITIES CITED.</p> <p>Civil, Code, Secs. 597, 599; Cyclopedia of Evidence, Vol. 7, p. 13 and 242, Sec. 5; A. & E. Ency, of Law, 2nd Ed., Vol. 30, p. 1152; Wigmore on Evidence, Vol. 2, p. 1320,' Sec1. 1117; Louisville & Nashville Railroad Co. v. McClish, 115 Fed., 268; People v. Amanacus, 50 Cal., 233; Mercer v. State, 40 Fla., 216; State v. Farmer, 84 Me., 436; Curtis v. Cochran, 50 N. H., 242; Wick v. Baldwin, 51 Ohio St., 51; Birmingham R. & El. Co. v. Ellard, 135 Ala., 433; Farmer v. State, 35 Tex. Cr. R., • 270; Kramer v. State, 117 WSs., 350; Braddee v. Brownsfield R. Co., 9 Watts (Pa.), 124; Gertz v. Fitchburg'R. C., T.37 Mass., 77; Carter v. Commonwealth, 13 S. W., 921; Williams v. Greenwade, 3 Dana, 432; Smith v. Lovelace, 1 Dana, 215.</p>

<p>CASE 7. — ACTION BY HENRY C. BRUNER AGAINST THE SEEpBACH HOTEL COMPANY FOR PERSONAL INJURIES</p> <p>1. Evidence — Admission—Conclusiveness—Effect.—An admission by defendant, in an action for personal injuries caused by the throwing of a bottle from the roof gar den. of a hotel, that he was the,man who threw the bottle is not conclusive, where at the time he first ■ made the admission he was .so much intoxicated that he had no distinct recollection of the matter, and must have based his admission upon information given him by others.</p> <p>2. Negligence — -Actions—Sufficiency of Evidence to Support Verdict. — ;In an action for personal injuries occasioned by the throwing of a bottle from a roof garden of a hotel, evidence held to support a verdict for defendant.</p> <p>3. Appeal and Error — Review—Conclusiveness of Verdict.- — A verdict will not be disturbed on appeal unless it is flagrantly against the weight of the evidence.'</p> <p>4. Negligence — Actions—Instructions.—In an action for injuries received in a street by being struck with a bottle that was thrown by W. from the roof garden of a hotel, there was no -evidence' to show that Was boisterous, or that he threatened any one, and no evidence from which it could be inferred that he would throw the bottle in question. An instruction as to the liability of the hotel company that if the jury believed that W. threw the bottle from the roof garden, and plaintiff was injured thereby, and if at the time he was intoxicated and his behavior was such as would indicate to a man of average prudence that he might throw a bottle to the street below, and that these facts were known, or by ordinary care could have been known, to the defendant or its agents, then it became the duty of the defendant and its agehts to remote W. from the roof garden or otherwise control hjm, and that the law in that event is for the plaintiff, is not erroneous, as basing the liability of defendant on knowledge rather than on belief or reasonable grounds for belief.</p>

<p>Appeal from Jessamine Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Defendant acquitted and the Commonwealth appeals</p>

<p>CASE 9 — ACTION BY GEORGE W. HINESLEY AGAINST LAW- . RENCE JONES, THE JEFFERSON REALTY COMPANY, MRS. PAMELA BEATTIE, JOHN HOERTZ AND OTHERS.</p> <p>1. Adjoining Landowners — Action for Damages by Blasting — Issues, Proof, and Variance.- — A .petition for damages caused by an excavation for a building, which charged not only that it was a nuisance, but that it was negligently and carelessly done, warrants the reception of testimony as to blasting below a depth to which the petition charged that the excavation was made and submission of the question to the jury.</p> <p>2. Pleadings — Surprise in Evidence Introduced Thereunder.— Parties cannot claim-to be surprised by evidence as to an issue where, piio-r to the trial, a deposition was taken in which the matter was fully gone into and discussed.</p> <p>3. ' Adjoining Landowners — Danger from Blasting — Question for Jury. — Evidence held to present a question for the jury whether damage was done to adjoining property by blasting in excavating for a'building.</p> <p>4. Judgment — Joinder of Defendants — Judgment Against Part.— In an action for negligence, it was not error to permit all defendants to be Joined in one suit and judgment go against part of them.</p> <p>5. Torts — Persons Liable. — 'While iseveral may be guilty of several and distinct negligent acts, yet, if their concurrent effect is to produce an injury, they are all liable, jointly and severally, and the comparative degree in culpability will not .affect the liability of either.</p> <p>6 Adjoining Landowners — Action for Damages from Blasting— Questions for Jury. — In an action for damages by blasting in excavating for a building, no error as to the defendant principal contractor can be predicated on a failure to hold as a matter of law that the defendant who did the blasting for it, was an independent contractor, or in not submitting this question to the jury, where the question as to the latter’s ordinary care was -submitted and the jury told to find for him, unless they believed that the blasting alone, or, in connection with negligence of others, caused, or helped to bring about, the defective condition of plaintiff’s wall, and that the evidence showed he was competent, and they should find for the principal contractor unless they believed that the blasting was naturally and reasonably dangerous to plaintiff’s building, and that the natural and probable result was to injure his property, and where, besides, the evidence showed that the architect told him to use blasting to remove the concrete foundations, and that the superintendent of the building, selected by the principal contractor, was frequently present and knew that the blasting was going on, and that its effect was frequently brought to the attention of those in charge of the work.</p> <p>7. Adjoining Landowners — Excavation for Building- — When Inability for Blasting Accrues. — In an action for damages to ad- - joining property by blasting in excavating for a building the court properly left to the jury the question whether, under the circumstances, the 'natural and probable result was to injure plaintiff's property.</p> <p>8. Appeal and Error — Harmless Error — Failure to Submit Questions to Jury. — In an action for damages to adjoining property, caused -by a subcontractor in blasting in excavating for a building, there was no prejudicial error in failing to- submit to the jury the question of whether- the ■ principal contractor had notice of the nuisance and took prompt means to suppress it, where it was conclusively shown that notice of the blasting was brought home to its architect and its superintendent, and there was no evidence that it undertook, after such notice, to suppress the nuisance.</p> <p>9. Landlord and Tenant — Measure of Damages by Third Person for Injury to Leasehold.! — In an action for damages to a leasehold, caused by blasting an excavation for an adjoining building, the court properly fixed the measure of damages as the diminution in- the value of its use for plaintiff’s unexpired term.</p> <p>10. Landlord and Tenant — Injury to Leasehold — Admissibility of Evidence. — In an action for damages to a leasehold, caused by blasting in excavating for an adjoining building, evidence of the amount of plaintiffs restaurant business and the profits ■was admissible to determine- the value of the use of the property.</p> <p>11. Landlord and Tenant — Action for Injury to- Leasehold — Nonpayment of Rent as Defense. — In an action against a third person for damages to a leasehold, a plea that plaintiff was behind in his rent, and had no rights under the lease, is not available where the damage was done prior to proceedings for his 'eviction. d</p>

McD. Shaw, Judge. Judgment for plaintiff, defendant appeals CLASSIFICATION AND AUTHORITIES. 1. The bond involved is construed as a policy of insurance. The representations of the ice company were not warranties, and section 639 of the statutes applies.

<p>CASE 11 — ACTION BY THE VARNEY ELECTRICAL SUPPLY COMPANY AGAINST JOHN A. CARTER ON A CONTRACT FOR ELECTRICAL SUPPLIES.</p> <p>I. Evidence — Parol Evidence Affecting Writings — Previous Negotiations.' — The purchaser of equipment for an electric light plant cannot be allowed a counterclaim against the price for breach of an oral representation that the amount of wire sold would be sufficient to install the plant, made before the execution of a written contract, where there is no fraud or mistake.</p>

I. II. Thurman, Circuit Judge. Defendants convicted, and appeal SUMMARY AND AUTHORITIES. 1. The regular judge erréd in refusing to vacate the bench. The facts set out ■ in the affidavit filed, -show ample grounds for the removal of the judge. (Powers v. Commonwealth, 24 Ky. L. R., 1012; Givens v. Crenshaw, 21 K. L. it., 1618; Morris v. Commonwealth, 93 K. R., 588; German' Insurance Co. v. Landrum, 88 K. R., 440; Ky. Journal Pub. -Co. v. Gaines, 110 K. R., 5. W. R., 268.) 2.

<p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendant, Commonwealth, appeals—</p>

<p>CASE 14. — ACTION BY THE BLUE GRASS CANNING COMPANY AND ANOTHER AGAINST L. & J. A. STEWART FOR DAMAGES FOR BB.EACH OF WARRANTY.</p> <p>1. Evidence — Parol Evidence — Varying Terms of Written Agreement. — In an action on a written contract, where defendant pleaded as a'defense that the contract .as written was executed by mistake, testimony was admissible to vary the terms of the written agreement.</p> <p>2. Sales — Breach of Warranty — Right to Recover — If defects in tin cans bought for use in canning fruit were latent so that they could not be discovered until the fruit had been placed in the cans and time allowed for fermentation to take place, the buyer would not be estopped to recover damages for breach of warranty as to the quality of the cans because it retained and made use of them.</p> <p>3. Appeal and Error — Review—Harmless Error — Transfer of Common-Law Action to Equity. — The transfer of a common-law action to equity after a verdict ;of plaintiff, resulting in the rendition of judgment for plaintiff for the same amount as the verdict, w.as not prejudicial to defendants; they having in affect a retrial of the case by the chancellor.</p> <p>4. Process — Constructive Service — Nonresidents—Necessity for Warning Notice. — Where a summons is served on 'a nonresident when he is actually within the State, and the jurisdiction of the court, a warning order is not necessary.</p> <p>5. Attachment — Interest in Joint Property. — In an .action against two nonresidents, where one was legally served with summons, even if an -attachment of their joint property was void as to the interest of the other defendant, because the action had not begun as against him by -service of process, the whole of the joint property then undisposed of could u-pon judgment against both defendants -and the sustaining of the attachment be subjected to the satisfaction of the judgment, under Civ. Code Prac., Sec. 209.</p> <p>6. Attachment — Actions Ex Contractu. — Under statutes confining attachments to causes of action arising ex contractu to entitle plaintiff to the writ, contractual relations must exist between 'him .and defendant or a contract be made for his benefit, and the character of the claim growing out -of the contract is -not affected so as to preclude an .attachment by the fact that tortious elements are involved.</p>

<p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Prom tlie decree granting a divorce to defendant both parties appeal</p>

<p>CASE 16— SUIT BY ANN PHILLIPS AGAINST L. T. STEWART INVOLVING THE LOCATION OF THE DIVISION LINE BETWEEN THEIR ADJOINING LANDS.</p> <p>1. Boundaries — Evidence—Reputation.—In a processioning proceeding which was never perfected, certain old people living in the neighborhood were requested to locate a corner previously marked by a gate post, and from this a surveyor ran the line. Held, that, all of such citizens being dead at the time suit was brought to determine the boundary line, the surveyor was entitled to testify concerning such facts.</p> <p>2. Same — Location—Reputation—Evidence.—It is competent to prove the location of a corner or line of public survey by reputation.</p> <p>3. Same. — In a suit to establish a boundary, evidence held to require a finding that a corner formerly represented by a gate post was at the point fixed by certain aged residents, from which a surveyor established the line.</p> <p>i. Appeal — Theory of cause. — Where a suit in equity was transferred to the common-law docket, but the transfer was ignored both by the court and parties when it came to trial, and was tried as an equitable action, it will be so treated on appeal.</p>

<p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, • Circuit Judge.</p> <p>Judgment for plaintiff, defendant railway company appeals</p>

<p>CASE 18. — PROCEEDINGS BY CENTRAL STOCKYÁRDS COMPANY AGAINST LOUISVILLE & NASHVILLE R. R. CO'.</p> <p>1. Carriers — Discrimination—Persons Entitled to Sue. — Where alleged arbitrary and discriminating acts of a carrier, in refusing to switch and deliver stock'cars to a connecting carrier for transportation to complainant’s stockyards operated to irreparably injure complainant’s business, and such acts were violative of Const Secs. 213, 214, prohibiting discrimination, the right to sue to restrain such acts was not limited to shippers of livestock and commission merchants, but 'extended to ■complainant as well.</p> <p>2. Same — Injunction — Recurring Acts — Affirmative Relief.— Where alleged wrongful and discriminating acts of a carrier were of a daily recurrence, and their continuance would cause further and irreparable injury to complainant’s business, complainant was entitled to an injunction to prevent the wrongs complained of, and to compel the carrier to perform its duty' to complainant, without discrimination, as provided by Const. S'ecs. 213, 214.</p> <p>3. Carriers — Delivery of Freight — Terminal Facilities — Constitutional Provisions. — Const. Sec. 213, provides that all railroads shall receive, transfer, deliver, and switch empty or loaded cars coming to or going from any railroad, etc., with equal promptness and dispatch, and without discrimination as to charges, preference, etc., and shall so receive, deliver, transfer and transport all freight from and to any point where there is a physical connection between the tracks of such company; but that the section shall not be construed as requiring any such carrier to allow the use of its tracks for the trains of another engaged in like business. Held, that such section made it compulsory on every common carrier to use its terminal facilities, in receiving, delivering, interchanging, transferring and transporting freight in carloads or less quantities at points of physical connection with other roads, for all alike, when so requested.</p> <p>4. Same — Defenses—'Inconvenience—Increased Expense. — The refusal of- a common carrier to obey the mandatory provisions of Const. Sec. 213, requiring delivery and transfer of freight from and to any point where there is a physical connection between the tracks of such carrier and another road, without discrimination, cannot be excused on the ground that to. observe such provisions would subject the carrier to inconvenience or increased expense.</p> <p>5. Same- — Terminal Facilities — Stockyards—Connecting Carrier. —Where complainant 'company furnished ample facilities for loading and unloading stock at its yards in L., which were located on another railroad line, so that a connecting carrier might deliver stock 'Consigned to complainant’s yards with equal safety as at its own yards, by delivering the cars so consigned to the carrier whose line ran to complainant’s yards, the connecting carrier could be required to make such delivery, under Const. Sec. 213, requiring carriers to make delivery without discrimination from and to any point where there is a physical connection between the tracks of the company and the line of a connecting carrier.</p> <p>6. Same — Construction.—Const. -Sec. 213, requires all railroads to deliver and switch empty or loaded cars coming to or going from any other railroad with equal promptness and dispatch, and without any discrimination, and to receive, deliver, and transport all freight from and to any point where there is a physical connection between the tracks of such companies. Held, that''such section should not .be construed as only requiring the carrier to transfer and' deliver to other carriers such cars as it might receive from other carriers, but requires such delivery of its own cars as well.</p> <p>7. Same — Place of Delivery — Duty óf Carrier. — Where rival ■stockyards, located in the outskirts of L., were some eight miles apart, the duty of a carrier to deliver stock in car load lots to a connecting carrier, to be transported to complainant’s stockyard, to which such cars were consigned, as required by Const. Sec. 213, should not be determined as though such 'stockyard's adjoined each -other.</p> <p>8. Same — Power to Regulate Carriers — Police Power — Constitutional Law. — The Constitutional Convention of the State not only had power to impose regulations on railroads within the -State, requiring interchange of cars and switching at points of physical connection with other roads in receiving and. delivering freight, and the use of their terminals for such service, as provided by Const. Sec. 213, but the performance of such duties might be properly compelled by legislative enactment alone, under the State’s police power.</p> <p>9. Carriers — Delivery of Freight — Connecting Lines. — It is the duty of a common carrier to accept and carry all freight tendered it and to make delivery to the consignee if the destination is on its lines, but, if destined to a point not on its lines, it must, nevertheless, accept and carry such freight to the end of its lines and there deliver it to the connecting carrier, with the instructions of the consignor.</p> <p>10. Same — 'Carriage for Other Carrier. — A common carrier is as much bound to carry for another common carrier as for other persons,</p> <p>11. Same — Refusal to Deliver — Connecting Carrier — Defenses— Violation of Contract. — Refusal of a common carried to deliver ‘ stock in carloads to a connecting carrier for transportation to complainant’s stockyards at a point oi physical connection between the two roads, as required by Const. Sec. 213, cannot be justified on the ground that to do so would constitute a violation of a contract between the initial carrier and another •stockyards company, entered into prior to the adoption of such constitutional provision. •</p> <p>12. Same — Contracts—Validity—Public Policy. — A contract by which defendant railroad company, agreed not to establish any other stockyards in a certain city, but to deliver all livestock shipped over it® roads and consigned to such city at stockyards controlled by the B. Company, etc., was void, as in violation of Const. 'Sec. 214, 'prohibiting' .preferential contracts for the receipt, delivery, or transportation of freight, and as against public policy.</p> <p>13. Same — Special Privileges. — A common carrier, while entitled to regulate transportation of passenger® and freight on its own road, cannot so operate its road or conduct its business as to give an undue advantage to certain individuals, to the , exclusion of others, or to form a monopoly or 'stifle competition.</p> <p>34. Constitutional Law — Corporations—Franchises—Contract.—A railroad company takes its charter, holds its property and franchises, and operates its railroad subject to the conditions and limitations imposed by the State in its Constitution and General Laws, so that its charter is' not such a contract as will excuse it from the performance of duties and regulations imposed by Const. Sec. 213, regulating the use of terminal facilities and the transportation .and delivery of freight, thereafter adopted.</p> <p>15. Same — Due Process of Law — Deprivation of Property. — Const. Sec. 213, requires all railroads to transfer, deliver, and switch empty or loaded cars coming to or going from any railroad with equal promptness and dispatch and without discrimination, and to deliver, transfer and transport all freight from and to any point where there is a physical connection between the tracks of such carrier and those of a connecting carrier, Held, that the performance of the duties imposed by such section did not deprive the carrier of his property without due process of law, though the performance thereof put the carrier to an increased expense and necessitated its parting with the possession and control of its cars for a reasonable time, while they were in possession of a connecting rival carrier.</p> <p>16. Carriers — Switching Duties — Performance.—Where a carrier had agreed1 to perform switching duties imposed hy Const. Sec. 213, and was willing yet to perform such duties for all other railroads, except with reference to livestock consigned to complainant’s stockyards, it could not claim to be relieved from the duty of switching the stock on the theory that such switching was an, unreasonable use of its cars.</p> <p>17. Same — Connecting Carriers — Delivery of Cars. — Where a carrier delivers its cars to a connecting carrier for transportation of stock to a stockyard, it is entitled to charge a reasonable amount for the use of its cars and, if they are not returned within a reasonable time, it may sue the connecting carrier for damages or obtain a mandatory injunction to compel a return of the cars.</p> <p>18. Commerce — Interstate Commerce — Delivery of Stock— Where, after the arrival of stock in the carrier’s “break-up” yards, at the point of destination, the .shipper demanded that the stock be delivered in the car to a connecting carrier, with whose road the initial carrier had physical connection, for shipment to another point within the State, such reshipment did not constitute interstate commerce, though the original shipment was from a point without the State.</p> <p>19. Same — Statutes.—Const. Sec. 213, requiring interchange and switching of cars between connecting carriers in the transfer and delivery of freight, is not invalid as an interference with interstate commerce; its effect on,such commerce being purely incidental and indirect.</p> <p>20. Courts — Rules of Decision — State Constitution — Construction. —The construction; of a State constitutional provision or statute hy the highest court of such State is conclusive on both the State and Federal tribunals, provided such construction does not conflict with some provision of the Federal Constitution or statutes.</p> <p>21. Carriers — Regulation—Police Power — State Statutes. — Ky. St. 1903, Secs. 818, 819. prohibiting discrimination by common •carriers and providing penalties therefor, was but a further exercise of the State’s police power to regulate carriers and designed .to provide a means of compelling obedience to the mandatory provisions of Const. Sec. 213, relating to the same subject.</p> <p>BARKER, J., Dissenting.</p>

<p>CASE 19. — ACTION BY L. R. TERRELL AGAINST S. W. TOLIN, FOR DAMAGES FOR PERSONAL INJURIES</p> <p>1. Negligence — Proximate Cause. — -To make one liable for negligent injuries, negligence must be such1 that the injuries would not have occurred without it.</p> <p>2. Negligence — Proximate Cause — Jury Questions. — While ordinarily the question of proximate cause is for the jury, where the injury is connected with the alleged - negligence only by «speculation and conjecture, th© question is for the court.</p> <p>3. Evidence — Judicial Notice — Kicking Propensities of the Mule. —It is a matter of common knowledge that a mule is prone to kick.</p> <p>4. Animals — Personal Injuries — Contributory Negligence — Going Behind Mule. — It is contributory negligence to go behind a mule, without warning to the mule, to pick up lines for the purpose of placing them across the mule.</p> <p>5. Ferries — Injury to Person on Ferryboat — Proximate Cause. —Where plaintiff drove his mule on a ferryboat and the mule stood 'some three feet from the treadmill horse which propelled the boat, the treadways being fenced from the driveway by a frame about the height of the horse’s shoulders, it could not have been reasonably anticipated that, because there was no screen between the treadway and the driveway,- the horse would reach over the framework and bite the mule and cause it to kick, so that the absence of such screen was not the proximate cause of injuries to one who was kicked by the mule.</p>

Circuit- Court. R. J. Bugg, Circuit Judge. Judgment for defendant, plaintiffs appeal Appellants, L. H. Crosby, a white man, and A. G. Taylor, a colored man, citizens and taxpayers of the City of Mayfield, contend that the ordinances and the Acts of the Legislature authorizing the same are unconstitutional and void as being a discrimination between the white and colored children of said city, and contend further that it is creating an indebtedness and obligation upon the…

<p>Appeal from Whitley Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal.</p>

M. J. Moss, Circuit Judge. Defendant convicted and appeals AUTHORITIES CITED. 1. On the point, jury summoned from Bell county not authorized. (Criminal Code, Sec. 194; Roberts v. Commonwealth, 94 Ky. p. 499 [point on p. 504]; Brown v. Commonwealth, 20 Ky. Law Rep., 1552 [point on, 1554]; Brafford v. Commonwealth, 16 S. W., 710;; Sutherland Statutory Construction, Yol. 2, Secs. 627, 629, 630.) 2. Bill of exceptions conclusively correct.

<p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for Commonwealth,. Defendant appeals.</p>

<p>CASE 24 — SXJITS BY THE UNITED STATES FIDELITY & GUARANTEE COMPANY AND THE AMERICAN SURETY COMPANY OF NEW YORK AGAINST F. P. JAMES, AUDITOR, AND OTHERS, TO ENJOIN THE ENFORCEMENT OF A FRANCHISE TAX.</p> <p>1. Taxation — Assessment—Levy—Power of Legislature. — The power to fix the rate oí taxation is in the General Assembly, and it must fix a well defined rule as a guide to the ministerial officers throughout the State who have to carry it into effect.</p> <p>2. Taxation — Nature of Power — Delegation of Power. — The power of the Legislature to determine the method to be employed in arriving at the taxable value of property cannot be delegated.</p> <p>3. Statutes — Construction—General Rules of Construction.— Where the words used in a statute are plain, clear and unambiguous and the language expresses the legislative intent, there is no room for construction, and the statute must be accepted and enforced as it is written.</p> <p>4. Statutes — Construction—General Rules of Construction. — A statute which does not clearly express the legislative indent because of its wording or the use of particular words will be construed so as to make it, if possible, express the true legislative inten1.</p> <p>5. Statutes — Construction—General Rules of Construction.— Where words used in a statute do not convey the meaning intended by the Legislature, and from the context, the attendant circumstances, and the object to be accomplished, the intent is made apparent, the words may be modified, altered, or supplied to express the legislative intent.</p> <p>6. Statutes — Construction—General Rules of Construction— “Or.” — The word “and” may be substituted for the word “or” when necessary to make a statute express the true legislative intent as gathered from the context and the circumstances attending its enactment.</p> <p>7. Taxation — Taxing Power — Delegation of Power — “Or.”—Ky-St. 1909, Section 4080 (Russell’s St. Section 6053), which authorized the assessing board to consider the gross earnings of a foreign corporation in the state in fixing the value of its franchise, was amended to meet the objectionable feature that the board could not -consider the net income in the State in fixing the valuation,' the amended act being Ky. St. 1909, Section 4080, which provides that: “If the corporation * * * be organized under the laws of any other State -or governmen’, except as provided in the next section, the board shall fix the capital stock in this state by capitalizing the net income derived in this State, ‘or’ it shall fix the capital stock as hereinbefore provided, and will determine from the amount of the gross receipts of said corporation * * * in this State and elsewhere, the proportion which the gross receipts of this State * *. * bears to the entire gross receipts of the company, the same proportion of the value of the entire capital stock ‘or’ the capitalizing of the net earnings in this State, less the assessed value of the tangible 'property assessed, * * * shall be the correct value of the corporate franchise of such corporation * * * for taxation in this State.” Held, that the evident intent of the Legislature in amending the law was not to provide the board with an alternative means of arriving at the value of a franchise, but to require the board to consider the two items of gross earnings and net income of the corporation in this State in fixing the valuation, and to effectuate this intent the w-ord “or” as used in the amended act, should be read “and,” and, when so construed, the act is not unconstitutional as a delegation of the taxing power. -</p> <p>8. Taxation — Assessment — Corporate Property — Valuation of Franchises. — In fixing the valuation of the franchise of a foreign corporation under Ky. St. 1909, Section 4080 (Russell’s St. Section 6053), the assessing board should consider the two items of gross earnings and net income of the corporation in the State as required by the statute.</p>

<p>CASE 25. — SUIT BY THE AMERICAN SURETY COMPANY OF NEW YORK AGAINST F. P. JAMES, AUDITOR, TO RESTRAIN THE COLLECTION OF A FRANCHISE TAX.</p> <p>1. Taxation — Assessment — 'Corporate Property — Foreign Corporation. — In fixing the valuation of the franchise of a foreign corporation under Ky. St. 1909, See. 4080 (Russell’s St. Sec. 6053), the assessing board should consider the two items of gross earnings and net income of the corporation in the State, as required hy the statute.</p> <p>2. Taxation — Assessment—Corporate Property — Statutory Provisions. — The act iof March 15, 1906 (Laws 1906, p. 88, c. 22), which amends Ky. St. 1909, Sec.. 4080 (Russell’s St. Sec. 6053), so as to authorize the assessing board to consider the two items of gross earnings and net income of a foreign corporation in the State in fixing the valuation of its franchise, is intended to be prospective iri its operations, and not retrospective.</p> <p>3. Taxation — Uniformity — .Assessment — Corporate Property— Valuation of Franchises. — Where a foreign corporation made the statement required by St. 1909, Sec. 4078 (Russell’s St. Sec. 6051), as a basis for the valuation of its franchise for the year 1905, and the board failed to assess the corporation until 1907, an assessment made under Sec. 4080, Ky. St. 1909 (Russell's St. Sec. 6053), as amended by act of March 15, 1906, (Laws 1906, p. 88, c. 22), instead of under the law as it stood before the amendment thereby materially increasing the tax, was illegal, as being in violation of the rule 'requiring' uniformity in the levy of taxes.</p> <p>4. Taxation — i Omitted Property — Assessment—Corporate Property. — Under the provisions in the revenue law (Laws 1906, p. 88, c. 22) for the assessment of Oimitted property, the assessing board has power to assess the franchise of a foreign corporation according to the law' in force when the assessment should have been made.</p>

<p>CASE 26. — ACTION BY J. I. CASE THRESHING MACHINE COMPANY AGAINST H. M. BARNES AND OTHERS.—</p> <p>1. Trial — Instructions—Theories of Case.- — While, generally, it is ■proper to give instructions presenting the theory of the case ■advanced hy the pleadings of each party, yet where, in an action based oni a sale having taken place, the defense was an agreement hy which the contract of sale never went into effect, and1 the jury were instructed to fiud for plaintiff unless said agreement was entered into, it was not necessary to give instructions presenting plaintiff’s contention in respect to the binding force and effect of the contract.</p> <p>2. Evidence — Parol Evidence — Varying Contract. — An agreement on which a written contract of purchase of a machine was made, that the contract was not to become effective unless on a preliminary test the machine should do a certain work, does not vary the contract, and so may be shown by parol.</p> <p>3. Sales — Contract—Construction—Conditions. — A contract of sale of a machine and notes for the purchase price, executed and delivered in escrow on an agreement that they should not go into effect unless on a preliminary test the machine should'do certain work, did not become operative; the machine failing on the test to do the work.</p> <p>4. Escrows' — Delivery to Agent. — There is a valid delivery in escrow of a contract of purchase of a machine and notes for purchase price, where delivered on an agreement that they shall not go into effect unless on a preliminary test the machine shall do certain work, though.the delivery is to the seller’s agent; he for purposes of the escrow being the buyer’s agent.</p>

<p>Appeal from Muhlenberg Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Prom the judgment the Trust C'o., &c., appeal</p> <p>CASES CITED.</p> <p>Knox v. Jones, 47 N. Y., 389; Tilden v. Green, 130 N. Y., 29; 6. -c. 27 Am. St. Rep., 487; Levy v. Levy, 33 N. Y., 107; Pritchard v. Thompson, 95 N. Y., 76; Holland v. Aleock, 108 N. Y., 312; Read v. Williams, 125 N. Y., 560; Thorington v. Thorington, 82 Ala., 489; Norris v. Thompson’s Ex’ors, 19 N. J. Eq., 307; Ruggles v. Tyson, 104 Wii-s., 500; West v. Berney, 1 Russell & Mylne, 471; Bristow r. Sh-i-rrow, 27 Beaven’s Rep., 585; Dickinson v. Teasdale, 1 Do Gex, Jones & Smith, 60; Farwell ¡on Powers, page 8; Sugden on Powers, pages 82,' 893; Bird v. Christopher Style’s Rep. K. B., 389; Smith v. Death, 5 Maddox, 371; Willis v. Sharral, 1 Atkyn’s Rep., 474; Atkinson v. Dowling, 33-S'ou. Car., 414.</p> <p>QUESTIONS OF LAW DISCUSSED.</p> <p>These questions may he enumerated a^ follows:</p> <p>1st. Does the will create ¡a power of appointment in the testator’s widow as the ¡lower court held, or is the outstanding interest a mere contingent ¡remainder interest at common law?</p> <p>If there is no power of appointment in the will, then we may-disregard all the learning with reference to powers appendant and powers in gross and deal with this case -as ¡simply presenting a ca-se of contingent remainder at common law.</p> <p>2nd. If the will creates a power of appointment, is it a power appendant or a power in gross?</p> <p>3rd. If the 'will creates a power of appointment, either appendant or in gross, can such power, whether ¡appendant or in gross, be extinguished by any act o-f the donee of ¡the power?</p> <p>4th. Has the donee of the power, in this case the widow, done any act which under any recognized principle of equity amounts to such an extinction ¡or release of her power of appointment as will cut off the claim or an institution to be hereafter established or aided by her -of the kind and in the manner set forth in the will?</p> <p>5th. What effect in this case ¡should he given to the policy of Kentucky law as expressed in Section 2346, 2347, Ky. Statutes, intended to preserve contingent remainders from destruction as modified by Section 4845, Ky. Statutes, with respect to powers exercised by will only?</p>

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

<p>CASE 29 — ACTION BY W. A. RIST AS ASSIGNEE OF D. A. FAWCETT FOR -THE BENEFIT OF HIS CREDITORS AND OTHERS AGAINST MITCHEDD, FINCH & CO. AND ANOTHER.</p> <p>1. Banks and Banking — ¡State-Banks—Doing Business in'Other States. — In the absence of any statute limiting its authority, a bank organized under the laws 'of this State may ¡transact any business within the scope of its charter in other States.</p> <p>2. Banks and Banking — Banking Business. — Taking notes or other securities, whether for the purpose of discount or to secure a debt is a.part of the legitimate business of a banking corporation.</p> <p>3. Banks and Banking — Taking Securities — What Daw Governs. —Where a Kentucky bank took a transfer in Ohio of notes to secure an Ohio 'debt, the transaction must be governed by the laws of Ohio.</p> <p>4. Assignments for Benefit of Creditors — What Law Governs.— Ky. St. 1909, Sec. 1910 (Russell’s S't. Sec. 2104), providing that every assignment in contemplation of insolvency and. with the design to prefer one creditor to the exclusion of others shall operate as an assignment of all the .property of the debtor for the benefit of hi,s creditors, does not apply to a transfer of notes in Ohio to a Kentucky creditor with intent to prefer such creditor; land, there being no similar provision of law in Ohio,-the transaction was valid, being valid where made.</p> <p>5. Fraudulent Conveyances — Right to Prefer Creditors. — In the absence of any statutory provision in relation thereto, there is nothing illegal in the act of a debtor in preferring one creditor over another.</p>

<p>Appeal from Leslie Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Judgment for Commonwealth, defendants appeal,</p>

<p>Appeal from Powell Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>From an order awarding.a mandamus compelling defendants to hear the contest the defendants appeal.</p>

<p>Appeal from Marion Circuit Court.</p> <p>I. TI. Thurman, Circuit Judge.</p> <p>Judgment for defendant, plaintiffs appeal</p> <p>AUTHORITIES CITED.</p> <p>1. Appellee has no homestead in the lan-d levied upon by the sheriff. (Section 1702, Ky. Statutes; Herring v. Johnson (Ky.) 72 S. Wv, 793; Section 1708, Ky. Statutes; Sections 1707 and 1708, Ky. Statutes; Ellis v. Davis, 90 Ky., 185; Section 1708, Ky. Statutes; Section 1702, Ky. Statutes; Stults v. Sale, 92 Ky„ 5; Suter v. Quarrels (Ky.), 58 S. W-., 990; Gowdy v. Johnson, 104 Ky., 652; Section 1702, Ky. Statutes; Section’2067, Ky. Statutes; Brand’s Executor v. Brand, 109 Ky., 721; Gillispie v. Boisseau (Ky.) 64 S. W., 738; Smoot v. Heyer’s Executor (Ky.), 67 S. WJ., 21; Sections 1707 and 1708, Ky. Statutes; Taylor v. Loller’s Executors (Ky.), 3 S. W., 165; 8th Ky. Law Rep., 773; Hazelett v. Farthing, 94 Ky., 421; Nichols v. Lancaster (Ky.), 32 S. W., 677; Carpenter v. Hazelrigg (Ky.), 4,5 S. W., 657; Harrison v. Taylor’s Administrator (Ky.), 51 S. Wl, 193; Schnabel v. Schnabel’s Executor (Ky.), 56 S. W., 983; Logsdon v. Haney (Ky.), 74 S. W., 1073; Section 1707, Ky. Statutes; Section 2132, Ky. Statutes; Nichols v. Lancaster (Ky.), 32 S. W., 677; Section 1702, Ky. Statutes; Nichols v. Lancaster (Ky-), 32 S. W., 676; Section 1702, Ky. Statutes; Section- 1708, Ky. Statutes.</p> <p>2. The horse and buggy were -subject to execution. (Section 1697, Ky. Statutes; Stults v. Sale, 92 Ky., 5; Suter v. Quarrels( Ky.), 58 S. W., 990; Gowdy v. Johnson, 104 Ky., 652.</p> <p>It is a well -settled proposition of law that a homestead, once acquired, continues until released or forfeited. Appellee has done nothing to release or forfeit his homestead right. (Jewell v. Cl-ark Ex’ors, 78 Ky., 398.) See, also, 116 Ky., 599; Stults v. Sale, 92 .Ky., 398; Gay v. Hanks, 81 Ky., 552; Ellis v. Davis, 90 Ky., 183.)</p>

<p>Appeal from Jefferson Circuit Court, Common Pleas Brandi, Second Division.</p> <p>Thos. E. Gordon, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>Appellee’s alleged damage arising from loss of room rent too remote.</p> <p>AUTHORITIES CITED BY APPELLANT.</p> <p>Case oí Gas Light Company of Baltimore Y Joseph S. Colliday, 25 Maryland, page 1; Sutherland on Damages, Vol. 4, Section 1018; Reynolds v. Braithwaite, 131 Pa., 416; same case Atlan. Rep., page 1110; Miller v. Rambo, 66 N. J., 191; same case 49 Atlan.. Rep., page 453; Spencer v. Kilmer, 151 N. Y., page 390; same case 45 N. E. Rep., 865; Graessle v. Carpenter, 30 N. W. Rep., 392; Patterson v. Waidam, 20 Ky. Law Rep., 514; Trustees, &c. v. Kipp, Ky. Law Rep., page 140; Meehan v. Edwards, 92 Ky. Reps., 574; same case 13 Ky. Law Rep., page 803; Denhard v. Hurst, 111 Ky. Reps., 546; same case 23 Ky. Law Rep., 789; Hauser, &e. v. Tate, &c., 20 Ky. Law Rep., 1716; Bluegrass Cordage Company v. Luthy & Go., 98 Ky. Reps., 583; Asher & Hensley v. Stacey, 23 K. L. R., 1586; Hahn v. Hortsman, 12 Bush, 249; Smith v. Western Union Telegraph Co., 7 Ky. L. R., -22; Jaudes,' &c. v. Fisher, 5 Ky. L. R., 786; Hay v. Williams, 8 K. L. R., 434; Western Union Telegraph Co. v. Cleaver, 13 K. L. R.; Eppenbaueh v. Gooch, 15 K. L. R., 576; Moreline Wlater Power Co. v. Waters, 10 111. App., 159; Koch v. Godshaw, 12 Bush, 318; Freeman v. Chute, 3 Barbee, 424 N. Y:; New York & C. Mining Syndicate Co. v. Frazier, 130 U. S., 611; Goodell v. Bluff City Lumber Co. 57 Ark. 203, S. C. 21, Southwestern 104; Bernstein v. Meech, 130 N. Y., 354, S. C. 29 Northeastern 255; Finck v. Heermans, 5 Lux. Leg. Reg., 125 Pa.; Andrews v. Singer Mlainfuafacuring Co., 20 Ky. Law Rep., 1089.</p> <p>MEMORANDUM OF FACTS AND AUTHORITIES.</p> <p>1. Instruction 1 given hy the court was correct. (New Eng. and Amer. Ency. -of Law, Vol. 28, p. 551, Sec. 1; Ibed,’p. 552h; Ibed, p. 556-3; Ibed, p. 558-2; Johnson v. Park IKy. 1891], 17 S. W„ 273.)</p> <p>2. Instruction- 2 given by the court was- correct. (28 New Eng. and Amer. Ency. of Law, p. 604, Sec. 2; sub-sec. b; Ibed, p. 608-c; Ibed, p. 603, title 11; Damron v. Roach, 4 Hump. Tenn, 134; Hawthorn v: S'legei, 88 Calif., 159; 4 Sutherland on Damages, Sec. 1010, p. 29,57; Ibed, 1015, p. 2966; Ibed, 1029, p. 3011; Ibed, 1012, p. 2962; ibed, 1015, p. 2966; ibed, 1029, p. 3011; Vol. 1, Sutherland on Damages, See. 105, p. 304; Sutherland on Damages, Vol. 4, 1028, p. 3009; l-I-ughes v. Austin, 12 Texas, 33 S. W(. Rep., 607 Central R. & B. Co. v. Murray, 20.S. E. Rep., 129; Gulf, etc., R. R. Co. v. Smith, 23 S. W„ 89; Daniel v. Obert, 20 111. App., 557; Dameron v. Roach, 4 Humphrey, Tenn. 134; Mattie R. Willis v. City of Perry, 20th Vol. L. R. A., p. 124; Goldshmids v. Mayor, 14 App. Div. [N. Y. 135]; Hawthorn v. Siegel, 28th, 159.</p> <p>3. Instructioms 3 and 4 were proper and should have been giveu. (Major v. Pulliam, 3 Dana, 583; Kentucky Midland Ry. Co. v. Stumipp, 12 Ky. L. R., p. 316; Ohio Valley Telephone Co. v. Meyer & Co., 22 Ky. L. R., p. 36.)</p> <p>4. The verdict of the jury was not excessive -and was proper.</p>

<p>CASE 34 — ACTION BY ED EDWARDS AGAINST M. R. KEVIL FOR SLANDER.</p> <p>1. Libel an.fi Slander — Blea of Privileged Communication — Sufficiency. — In slander the words charged to have been spoken ■were: “I reckon E. (plaintiff) is satisfied now, he burned this out. I received word some time ago that he intended to burn them.” And when asked what he meant: “Well, I heard that he, (E) was going to burn them.” The answer averred that the words were spoken under circumstances making them privileged, and that the words used were: “I reckon E. is satisfied now my house is burned. I was notified he intended to burni it. I couldn’t think he was mean enough to do it, but I took additional insurance.” Held, that the words admitted to have been spoken, though not the identical words charged, were in effect the same, and actionable, and the answer good within the rule that a defendant in slander, pleading that the Words spoken were privileged, must admit that he spoke the-words charged, or words of similar import in themselves actionable.</p> <p>2. Libel and Slander — Privileged Communications! — Origin of Fire.- — A statement confidentially and in good faith, by a person whose property has been destroyed by fire, of one whom he suspects to be the incendiary, in an effort to get advice and assistance from a friend whose property also has been injured, is privileged communication.</p> <p>3. Libel and Slander — Actions—Questions for Jury. — Whether a charge of having set fire to a building was made under such circumstances as to constitute it a privileged communication held for the jury.</p> <p>4. Libel and Slander — Actions—Evidence —Admissibility.—In slander for having charged plaintiff with burning a building, the defense of privileged communication was made, and evidence introduced of statements by plaintiff indicating an intention or desire to bum or have burned the building, and that such statements were communicated to defendant previous to the fire. Held, that evidence by plaintiff (that he had not, in fact, made such statements was properly excluded, for if defendant in good faith believed what w.as communicated to him, ana it was such as a reasonably prudent man would believe, it was immaterial for the purposes of his defense whether plaintiff made the statements or not.</p>

<p>CASE 35. — PROSECUTION AGAINST VAN GIPSON FOR MURDER.</p> <p>1. Criminal Law — Appeal—Question of Fact — Credibility of Witnesses. — The credibility of a witness is a question for the jury . in the trial court.</p> <p>2. Criminal Law- — Question for Jury — Evidence.—In a murder case, evidence held sufficient to go to the jury.</p> <p>if. Criminal Law — Trial—Argument of Commonwealth’s Attorney. —In a murder case, it was not improper argument for tho •Commonwealth’s Attorney to say, “I demand for the Commonwealth and all these people (meaning those in the courtroom assembled to hear the argument) a verdict of guilty against this defendant;” he having a right to ask such a verdict for the Commonwealth if he believed the evidence authorized ia conviction, and to refer to the audience, they being, citizens, and as such interested in having the law enforced.</p> <p>4. Criminal Law — Trial—Conduct of Jury — Writing Out Testimony. — The practice .of writing out the testimony of witnesses by the jury after retirement, and using the writing in arriving at a verdict, is not to be commended.</p> <p>5. Criminal Law — Apipeal—Review—Refusal of New Trial — Under Cr. Code Prac. Sec. 281, providing that the decision on motion for a new trial shall not be.subject to exception, the matter of misconduct of the jury, first brought to the attention of the couro on application for a new trial, can not be considered on appeal.</p>

<p>CASE 36 — ACTION BETWEEN M. B. RICE AND OTHERS AND J. A. RICE INVOLVING A CONSTRUCTION OF THE WILL OF R. B. RICE, DECEASED</p> <p>1. Wills — Construction—Estates Created — “Die Without Children.” — A will made certain devises to testator’s two sons, 'and provided that if either should die without legal heirs , then his -portion should go to the other, or his children, if any, and that neither should have power to sell unless the proceeds should be invested in other real estate. Held, that in view of the provision for sale the phrase “if either should die without children” referred to the death of either son at any time before or after testator’ death, and each son took a defeasible fee, which would be defeated by the death of the devisee at any time without issue then living.</p> <p>2. Dower — Interests Subject to Dower — Defeasible Fee in Land. —The interest of the deceased devisee being a defeasible fee which the issue of his- wife would have inherited as his heir, his wife was entitled to dower therein.</p>

<p>CASE 37. — ACTION BY JOHN L. MEADE AGAINST JOHN RATLIFF TO RECOVER LAND.</p> <p>1. Champerty and Maintenance — Grants of Land Held Adversely. — A deed conveying land held adversely is not void as being within the champerty statute, but only voidable at tbe instance of the parties in adverse possession, and one claiming under a subsequent deed 'from the grantor can not recover the land on the ground that no title passed by tbe former deed.</p> <p>2. Champerty and Maintenance — Grants of Land' Held Adversely. — A deed conveying lands held adversely is champertous, though made in good faith and for valuable consideration; but the parties may rescind it, and this right is not affected by St. 1909, Sec. 216, declaring that neither party tO' a contract made in violation- of the statute shall have any right of action thereon, which applies only to contracts or conveyances made in consideration of services to be rendered in the prosecution or defense of any ©uit, whereby the thing sued for is to be taken for such services.</p> <p>3. Champerty and Maintenance* — Grants of Land Held Adversely. — The sufficiency of evidence introduced by the plain tiff in ejectment to show that a champertous deed by his ancestor was rescinded by the parties is a question for the jury.</p> <p>4. Adverse Possession — Effect—'Extent of Possession. — An entry, without color of title, on. a parcel of land embraced within a patent boundary claimed by another, who is in actual «possesion of the whole, does* not oust him from the possession thereof, except to the extent of the actual mclosures made by the person making such entry.</p>

<p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>. Judgment for defendants, plaintiff appeals</p>

<p>CASE 39. — ACTION BY DAVID S. GAY AGAINST D. S. HAGGARD, SUPERVISOR OF ROADS OF CLARK COUNTY.</p> <p>1. Mandamus — Proceedings—Petition—A petition for a writ of mandamus need not expressly ask for the issuance of the writ; prayer for process being unnecessary under the Code.</p> <p>2. Mandamus — Nature.—Under the Code the writ of mandamus is a statutory writ, and is granted as a matter of right in a proper case -to the party aggrieved.</p> <p>3. Mandamus — Proceedings—Motion for Wlrit — Notice.-—Where a petition for a writ of mandamus is filed, the ordinary summons is supplied by the notice of motion for the writ, as provided by Civ. Code Prac. Sec. 474, but the notice is unnecessary when the defendant voluntarily appears and demurs to the petition.</p> <p>4. Appeal and Error — Decisions Reviewable — Order Sustaining Demurrer to Petition for Mandamus. — A ruling sustaining a demurrer to a petition for a writ of mandamus, and dismissing the action before the making of a motion for the writ, i.s a final order from which an appeal lies, though no notice of motion for the writ was given as provided by Civ. Code Prac. Sec. 474; the notice being unnecessary when defendant appears.</p> <p>5. Miandamus — Grounds—Persons Entitled to Relief. — An action for mandamus must be prosecuted by the proper public officer when the right or duty in question affects the State in its sovereign capacity as distinguished from the people at large, but, if the general public, as ’distinguished from the State in its sovereign capacity is affected, any citizen may sue out the writ.</p> <p>6. Mandamus — Grounds—Persons Entitled to Relief. — A citizen ■and taxpayer suing on his own behalf and on behalf of others may sue out -a writ of mandamus to compel a road supervisor ■ to discharge his statutory duty to let work on public roads at competitive bidding, ‘the 'duty being one affecting the general public, and it is not necessary that the plaintiff should show a special interest, or that the public will sustain damage if the act is not done.</p> <p>7. Mandamus — Proceedings—Petition.—A petition for a writ of mandamus to compel a road supervisor to let work on public roads at competitive bidding which, alleges that defendant is the supervisor of the county, appointed, qualified and acting, and has 1'et the work on all the roads hy private contract, instead of advertising for bids, sufficiently charges that the county works its roads, hy taxation, as those acts can occur only when that method is employed.</p> <p>8. Highways — Improvement and Repair — Contracts—Competitive Bidding on Work. — Ky. St. 1894, Sec. 4315, as amended hy Acts 1906, p. 431, c. 118, and Acts 1908, p. 107, c. 42, requiring the letting of work on public roads at competitive bidding ■and providing that the supervisor, with the consent of the county judge, may designarte certain roads or parts of roads for private. contracting, does not authorize the supervisor, with the consent of the county judge, to exempt aill the roads of the county from the competitive system.</p>

<p>Appeal from Pike Circuit Court,</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment .for plaintiff, defendant appeals.</p> <p>CITATIONS.</p> <p>1. Negligence can be alleged in general terms. (Chiles v. Drake, 2 Met. 146; L. C. & R. R. Co. v. Case, 9 Bush, 728; but if petition specifies negligence complained of recovery can not be had for any other negligence. Thomas v. L. & N. R. R. Co., 18 R. 164; Chun v. K. & I. Bridge Co., 23 R. 1092; L. & N. R. R. Co. v. McGary’s Adm’r., 104 Ky. 509.)</p> <p>2. Peremptory instruction proper where proof shows accident or injury made have resulted from either of two causes, for only one of which defendant is liable. (L. & N. R. R. Co. v. McGary’s Adm’r., 104 Ky., 509.)</p> <p>3. Loss of child not a recoyerable damage. (Tunnicliffe v. Bay Cities Consol. Railroad Co., 32 L. R. A. 142, and cases cited on page 144 Idem. Also Hawkins v. Front Street Cable R. Co., 16 L. R. A. 808.)</p> <p>4. No recovery for impairment of health and suffering growing eut of death and premature birth of the child of a pregnant woman by reason of injuries negligently inflicted, which would not have attended its birth at the usual time either dead or alive. (Hawkins v. Front Street Cable R. Co., 16 L. R. A. page 808.)</p> <p>5. No recovery for fright unaccompanied with personal injury (Mitchell v. Rochester Ry. Co., 34 L. R. A. 781; Morse v. C. & O. Ry. Co., 77 S. W. 361.)</p> <p>6. Miscarriage could not he anticipated and too reunióte and not proximate result of appellant's negligence. (34 L. R. A. 783.)</p> <p>CITATIONS.</p> <p>cStokes v. Saltonstall, 13 Peters 181; Baltimore & Ohio S. W. R. R. Co_ v. Ha.usman, 21 Ky. L. R. 1264; Thompson on Negligence, Vol. 3, Section 3385, page 786; Peoria, &c., R, R. Co. v. Lane, 83 Illinois 488; Lesher v. Wabash Nav. Co., 14 111. 85; Hinde v. Wabash Nav. Co., 15 111. 72; Chicago, &c_ R. Co. v. McCarthy, 20 111. 3S5; Ohio, &c., R. Co. v. Dunbar, 2’0 111. 623; Sidders v. Riley, 22 111. 109; Illinois, &c., R. v. Kanouse, 39 111. 272; Toledo, &c., R. Co. v. Rumbold, 111. 143; Va. Century R. R. Co. v. Sawyer, 15 Gr&tt, 237; Hutchinson Common Carrier 524; Sherman and Redfield on Negligence, Section 448; Flahift v. B. & N. R. R. Co., 9 Ky. B. R. 398.)</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division.)</p> <p>Samuel B. Kirby, Judge.</p> <p>From the judgment defendants appeal</p>

<p>CASE 42. — PROSECUTION AGAINST WILLIAM BENNETT AND ANOTHER FOR DEFACING BRANDED RAILROAD TEES.</p> <p>1. Indictment and Information — Defacing Brands — Language of Statute. — An indictment for defacing the brand from railroad lies substantially following the language of St. 1909, Sec. 1409, subsec. 11 (Russell’s St. Sec. ,5867), which specifically 'defines the crime and the manner in which it may be committed, and in addition charging that defendants fraudulently and feloniously committed the acts violative of the statute, i'S sufficient.</p> <p>2. Logs ana Logging — Defacing Brand — Adoption and Recording —'Evidence.—The State, on a prosecution for defacing, in violation of St. 1909, Sec. 1409, subsec. 11, from railroad ties, a ¡brand of a certain company, recorded, as required by the act, in the office of the clerk' of the county, is properly allowed to introduce and identify by a deputy county clerk the record containing the- writing and accompanying certificates whereby the company adopted, the brand.</p> <p>3. Logs and Logging! — Brands—Adoption.—Under St. 1909, Sec. 1409, subsec. 7 (Russell’s St. Sec. 5863), providing that a timber dealer may .adopt a brand by executing and recording a certain ¡writing, the paper may be executed by the manager of a timber dealing company; the statute not saying what officer shall execute ¡it.</p> <p>4. Ci’iminal Law — Evidence—Other Crimes. — Defendants having as part of the same transaction sawed brands from railroad ties, part of which were the brand of the O. Company and part another brand, the entire transaction may be given in evidence on a prosecution for defacing the brand of the O. Company, though it shows another crime.</p> <p>5. .Logs and Logging — Obliterating Brand — -“Cut Out, Cancel, Obliterate or Deface.” — Sawing off the end of a railroad tie containing the owner’s brand is within St. 1909, Sec. 1409, subsec. 11 (Russell’s St. Sec. 5867b making it a crime to “cut out, cancel, obliterate or deface” the brand.</p> <p>6. Criminal Law — Peremptory Instruction. — The court may not give a peremptory instruction to acquit if there is any evidence, however slight, conducing to show defendant guilty of the offense charged.</p>

<p>Appeal from Barren Circuit Court.</p> <p>George W. Stone, Special Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. There is absolutely not a scintilla of evidence that the appellant cut any of the intestines of the patient during the operation, or at any time; hence instruction No\ 4 ought to have been given.</p> <p>2. The surgeon w.as only bound -to possess and use that care and skill which surgeons of ordinary .skill possess who practice in similar localities. (Burk v. Poster, 24 Ky. Law Rep. 794.)</p> <p>3. Negligence is a .relative term, and must be 'determined by the facts of each case. (Karle v.'K. & C. R. R. Co., 55 Mo. 476.)</p> <p>4. The material inquiry is: Was anything done or omitted which a surgeon of ordinary prudence and skill, under like circumstances, would have done or omitted? (108 Iowa, page 177.)</p> <p>5. The lower court erred in permitting appellee to Introduce evidence touching the insurance policy, which was not cured by subsequently directing the jury not to consider such evidence in fixing their verdict.</p> <p>G. The damages were excessive.</p> <p>Mental agony and humiliation and bodily suffering are the chief elements of ’damages in such cases, and this court has uniformly held that it will not and can not reverse because of alleged excessive damages in such case.</p> <p>In the case of L. & N. R. R. Co. v. Worley, 31 Ky. Law Rep. 960, this court enunciated the rule in this language:</p> <p>“It was a question for the jury, and if the jury believed the plaintiff and her witnesses, we' can not say that the verdict should be disturbed on the question of amount.” See, also, Dorris v. Warford, 30 Ky. Law Rep. 963.</p> <p>“The ’duty of one abstaining from injuring another applies to the sick, weak and infirm, as well as to the strong and healthy. Where this duty 'is violated, the measure of damages is the injury which results, though this injury may not have followed but for the peculiar physical condition of the person injured, although it may have been aggravated.” Thompson on Negligence, 150; see also Shearman & Redfield on Negligence, 742; Lapleine v. Morgans Louisiana, &c., Co., 1 L. R. Á. 378; L. & N. R. R. Co. v. Daugherty, 32 Ky. Law Rep. 1396.</p> <p>With this view, and upon these authorities, we respectfully ask that the judgment complained against be affirmed with damages.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division.)</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The verdict is not sustained by sufficient testimony. The testimony is overwhelming and conclusive as to appellee’s contributory negligence. .</p> <p>2. The court erred in permitting the appellee to testify that her hearing on the left -side had been totally destroyed by the injuries she received in the collision with the cars, and in- permitting proof of such injury to go to- the jury as a basis of assessment of damages. (Louisville Ry. Co. v. Ellerh-orst, Ky. L. R., Vol. 33, No. 5, page 605; L. & N. R. -Co. v. Richmond, 23 Ky. L. R. 2395•’ Geoghe-gan v. Railway Co., 64 N. Y. Supp-. 631; Kleiner v. Third Avenue N. Y. Railway Co., 162 N. Y. 193; International Great Northern Ry. Co. v. Thompson, 37 S. W1 24; Wilkins v. Nassau News-paper Delivery Express Co., 90 N. Y. Supp. 678; L. & N R. Co. v. Roney, et al., S. W. R., Vol. 108, No. 2, 343; Newman on Pleadings, page 438.)</p> <p>3. The court erred in permitting proof of rules of the companies regulating and governing their employes in the operation and control of their cars over the objection of the appellants, because said rules were not competent and tended to confuse the minds of the jury. (Maxwell v. Esom, 1 Stew. (Alabama), 514; Alabama Great Southern v. Clark, 136 Ala. 450; Central, etc., Co. v. Skellie, 90 Ga. 694; McKernan v. Detroit, etc., R. Co. (Mich.), 68 L. R. A. 347; Fonda v. St. Paul City R. Co., 71 Minn. 438; Smithson v. Chicago, etc., R. Co., 71 Minn. 216; Isaekson v. Duluth St. R. Co., 75 Minn. 27; O’Keefe v. Eighth Ave. R. Co., ,53 N. Y. Supp. 940; Philadelphia & Reading R. Co. v. Spearen, 47 Pa. St., page 300; 83 Am. Dec. 544.)</p> <p>4. The court erred in the instructions given upon its own motion as to the law of this case, as presented by the issues made by the pleadings and the testimony. (Gaar, etc. v. Louisville Railway Co., 112 Southwestern, 1130.)</p> <p>5. The court erred in refusing to give instruction B offered by the appellants, because said instruction presented the real theory of the defense in this case, and the court gave no instruction presenting said theory. (Louisville Railway- Co. v. Frank Byers’ Adm’r.)</p> <p>1. The verdict is sustained by sufficient evidence and the weight of the testimony does not justify the charge of contributory negligence.</p> <p>2. The court did not err in permitting appellee to testify that the hearing on the left side of her head had been destroyed in the collision with the cars.</p> <p>3. The court did not err in permitting rules of the companies •regulating and governing their employes in the operation and control of their cars to go to the jury.</p> <p>4. The court did not err to the prejudice of appellants in instructions given, upon its motion, as to the law of the case presented by the issues made by the pleadings and the testmony.</p> <p>5. The court did not err in refusing to give instruction “B” offered by the appellant.</p> <p>AUTHORITIES CITED.</p> <p>Ill Cent. Ry. Co. v. Murphy’s Adm’r, 30 Ky. L. R. 93; L. & N. R, R. Co. v. Richmond, 23 Ky. L. R. 2394; Louisville Ry. Co. v. Elienhorst, 33 Ky. L. R. 605; Louisville Ry. Co. v. Hodges, 31 Ky. L. R. 976; Louisville City Ry. Co. v. Hudgins, 30 Ky. L. R. 316; Louisville Ry. Co. v. Byer®, 11J S. W. 463.</p>

<p>CASE 45. — ACTION BY RIVES & MoCHORD AGAINST MARION COUNTY.</p> <p>1. Attorney and Client — Lien of Attorney — Compensation—Subject of Lien. — An attorney successfully prosecuting an action by a taxpayer, suing on behalf of all the taxpayers of a county to recover county money illegally appropriated can not assert a lien on the money recovered, under St. 1909, See. 489, providing that in actions -for money held in joint tenancy, etc., the court shall allow reasonable compensation for one prosecuting an action for the benefit of the others interested with himself, which applies only to money heid in joint tenancy, .eompareenatry, or as tenants' in common, and which contemplates that there shall he distributees among, whom the fund shall be divided.</p> <p>2. Counties — Capacity to be Sued — Contracts — Liability. — A “county” is a local subdivision of tire State, created by tbe State of its own will, and is not a municipal corporation proper, which is called into existence either at the direct solicitation or by the consent of the persons composing it, for the promotion of their private advantage, and a county can not he sued except on an expresss contract.</p> <p>3. Counties — Action by Taxpayer — Compensation of Attorney.— A taxpayer undertaking on behalf of himself and other taxpayers of a county to prevent an illegal expenditure of money, or to recover money illegally expended, can not, without direct statutory authority, require the county to pay his attorney, and the attorney must look alone to the taxpayer for his compensation.</p>

<p>CASE 46. — ACTION BETWEEN JAMES RAMSEY AND SHERMAN MORROW TO DETERMINE THE LOCATION OF A CERTAIN LINE AND CORNER TO THEIR LAND.</p> <p>1. Boundaries — Lost Corners — 'Determination—Rules.—The rule for establishing a lost stake corner to run the course called for from the known comers to the intersection of the lines can not be applied for the determination of the eighteenth corner in a description, where the lines from the seventeenth and nineteenth corners extended would never intersect.</p> <p>2. Boundaries — Lost Comers — Courses and Distances. — The ordinary rule that distances yield to courses, and both to natural objects or marked monuments, does not apply, where it is manifest from the patent as run out that proximate certainty-may be accomplished by changing a course, instead of the distance, which may be done.</p> <p>3. Boundaries — Marked Lines — 'Establishment—Where a line was marked as such at the time of survey according to the surveyor’s duty, such line established itself in a suit to determine a lost corner, though the corner was -not marked.</p> <p>4. Boundaries — Marked Line — Question for Jury. — Where, m an action to determine a lost corner, there was. some evidence that marks alleged to designate an ancient line had been made many years ¡after the survey by another and for a different purpose, whether the line was anciently marked by the surveyor was for the jury.</p> <p>5. Appeal and Error — Instructions—Prejudice.—Where appellant did not show ¡adverse possession for a longer period than six or seven years consecutively, and for much of the time the tenant in possession paid rent to the owners of each of the alleged conflicting patents, appellant was not prejudiced b.y erroneous instructions submitting the question of adverse possession.</p>

<p>CASE 47. — ACTION BY L. B. SIMMOND’S ADMINISTRATOR. AGAINST JOHN P. SIMMONDS.</p> <p>1. Gifts — Personal Property — Evidence — Sufficiency. — Evidence Ixeld to show a gift of personal property by a mother to her son. and a delivery thereof in her lifetime.</p> <p>2. Gifts — Gift of Notes Without Delivery. — A daughter of the donor having possession of notes, can not defeat a gift of such notes to a son by refusing to surrender possession, and thus prevent delivery, where it wias understood by all the parties that such gift was intended.</p>

<p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>From the judgment the remaindermen appealed.—</p> <p>LIST OF AUTHORITIES.</p> <p>76 Va. 517; Keffer v. Grayson; 79 Va. 70, Holsey v. Peters’ Executors; 74 Ala. 395, Roney v. Moss; 77 Mich. 369, Grummett v. Gin-grass; 70 Ala. 276, Lewis v. Montgomery Bldg. & Loan Ass’n; 94 Mo. 637-644; 91 Mio. 161; 82 Va. 371; 71 Ga. 808; 62 Mich. 15; 44 111. 97; 10,5 Il'l 568; 110 111. 142; 114 Il'l. 302-306; 83 Ala. 495, “Iron Age” Pub. Co. v. Western Union Telegraph Co.; 91 Mo. 287; 40 N. J. Equity 429 31 S. C. 605; 85 Ala. 449; 73 Cal. 415; 84 Ky. 672; 136 U. S. 393; 5 Dec. N. & G. 880; 1st Dill. 120; 10 Wtall, 339-358; 1st Wool. W. 26; 11 Awy. 33; ?2 S. C. 201; 119 Md. 301, Lindsay v. Glass; 106 Iud. 483, Ikard- v. Beavers; 46 N. J. Equity 492-296; 113 N. Y. 303; 49 N. Y. 362; 76 Wis. 662; 116 U. S. 33; 83 Ky. 367; 11 Miss. 490, Patterson v. Edwards; 29 Miss, 67, Arlin v. Brown; 44 N. H. 104, Hishoek v. Norton; 42 Mich. 320, Peters v. Tunnell; 43 Minn. 473, Crimm v. Jdoisbury; 42 W. Va. 667, Harris v. Haney; 37 Ark. 348, Parrish, v. Hastings; 102 Ala. 414; 5th Bush 646; 6th Bush 129; 86 Ky. 142; 86 Ky. 146; 93' Ky. 331, lire v. Oontz; 98 Ky. 390, Jones- v. Tye.</p> <p>AUTHORITIES CITED.</p> <p>Wilson’s Adm’r v. Davis, 1 Marshall 220; Kel-tner v. Keltner, 6 B. Mon. 40; Gallion’s Adm’r v. Moberly, &c., 9 Ky. Law Re,p. 149; Bevins, &c. v. Keen, 23 Ky. Law Re.p. 757; Am. & Eng. Dec. in Equity, pages 149 to 310 (Vol. 7); 7 Am. and Eng. Dec., page 208; Keith v. Wolfe, 5 Bush 646; Ky. Statutes, Sec. 2358; Miaupin v. McCormick, 2 Bush, 208.</p>

R. L. Stout, Circuit Judge. Judgment for plaintiff, defendants appeal. POINTS AND- AUTHORITIES RELIED ON. 1. As to what a servant has a right to presume when. entering upon service of the master. (Sher. & Red., Sec. 185b.) 2 As to what servant not presumed to know. (Thompson on Neg., Sec. 464,5; Bailey on Master & Ser., pages 116, 184-5; A. C. & I. v. Wallace, 19 R. 849; O. V. R. Oo-. v. M-cKinley, 17 R. 1028; J.ames v. Aimes, 26 R. 498.) 3. Duty of inspection by master.

Samuel B. Kirby, Judge. Judgment for plaintiff, defendant appeals. POINTS AND AUTHORITIES. 1. A power of sale in a will does not include or imply a power to make partition. (Hirsehman v. Brashears, 79 Ky. 258; Wash-burn, Vol. 2, page 615, 6th Ed.; 22 Ain. & Eng. Ency. of Law 1156, 2d Ed.) 2. The power to qualify and a compliance with the qualification must appear. (Brown v. .Crittenden, 1 S. W. 421.) 3.

<p>Appeal from Union Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Criminal Judge.</p> <p>Defendant convicted and appeals.</p>

I. H. Thurman, Circuit Judge. Judgment for plaintiff:, defendant appeals. POINTS AND AUTHORITIES. . 1. The verdict is not sustained by sufficient evidence, but is flagrantly and palpably against the weight of the evidence upon three material findings, viz: (a) That appellant was guilty of negligence.

<p>CASE 54. — ACTION BY THE FIDELITY & CASUALTY COMPANY AGAINST THE PALMER TRANSFER COM- . PANY.</p> <p>Insurance — Accident Insurance — Premiums — Policy—Construction. — Where an accident policy issued by plaintiff covering the drivers of vehicles of defendant transfer company provided that the premium was based on the entire compensation earned by the drivers, and that, if it should exceed the sum set forth in the schedule furnished, defendant should pay the additional premium earned, plaintiff was entitled to a premium based on the entire compensation paid the drivers, though part of the time they were employed as stablemen.</p>

<p>Appeal from Jeffers'on Circuit Court (Chancery Brianieli, First Division.)</p> <p>Samuel B. Kirby, Judge.</p> <p>From an order appointing John W. Barr as trustee, Louis Hite, a devisee, appeals.</p>

<p>CASE 56. — PROCEEDINGS EOR THE APPOINTMENT OF AN ADMINISTRATOR OP THE ESTATE OP AHAB HAMILTON, DECEASED, AFTER THE SETTING ASIDE ON APPEAL, THE PROBATE OP THE WILL OP DECEASED</p> <p>Executors and Administrators — Appointment of Administrator ■with Will Annexed — Revocation.—Where the probate of a will nominating no executor is set aside on appeal after the appointment of an administrator with will annexed, the letters of administration to him may be revoked, and an administrator may he appointed, under Ky. St. 1909, Sec. 3897, providing for the appointment of an administrator who will settle the estate as prescribed by statute.</p>

J. M. Benton, Circuit Judge. Judgment for defendants, plaintiff appeals. We are u-ruable to concur in tbe conclusion of the trial judge that the opinion for Walden vs. Conn affords any support for the judgment rendered in this action, and is clearly differentiated from the opinion in that case. The appellee did not proceed forcibly and unlawfully, on the contrary he availed himself of the remedies provided by the statute.

T. F. Biekhead, Circuit Judge. Judgment for plaintiffs, defendant appeals. We take the position that neither appellant nor appellees, at the time appellant located upon the land, had any title to it, but that appellant has -acquired title by adverse possession since his discovery of the failure of the title in -himself and appellees.

<p>CASE 59. — ACTION BY A W. CAMPBELL. AGAINST JOSEPH PREECE.</p> <p>1. Frauds, Statute of — -Sale of Land — Written Contract — The statute of frauds is sufficiently complied with if there is a written -memorandum of the contract for the sale of land, signed by the' party to be charged.</p> <p>2. Frauds, Statute of — Contemporaneous Memorandum. — A memorandum of a contract for the sale of land, sufficient to satisfy the statute of frauds, need not be contemporaneous with the contract; it being sufficient -if it -is subsequently executed and ratifies the contract.</p> <p>3. Frauds, 'Statute of — Nature and Effect of Statute. — The statute of frauds pertains only to the evidence of a contract, so that a contract, in the making of which the .statute has not been complied with, is void only because of the. lack of legal evidence to establish its existence.</p> <p>4. Frauds, -Statute of — “Memorandum”--Sufficiency.—A “memorandum,” required by the statute of frauds, is such a written declaration of the parties to- the agreement as will relieve the court from relying on parol evidence to ascertain the subject of the contract.</p> <p>5. Frauds, Statute of — Memorandum—Requisites—Terms of Contract. — A memorandum, sufficient to satisfy the statute -of frauds, need not state the terms of the contract as to the consideration which may he proved by parol, even if to do so involves contradiction of the memorandum.</p> <p>6. Frauds, Statute of — Memorandum—Single Writing. — Two or more writings, signed by the party to he charged, and shown to refer to the same subject-matter, and describing the subject of the contract .so that it may he identified, may together constitute a sufficient memorandum.</p> <p>7. -Frauds, -Statute of — Sale of Land — Memorandum—Sufficiency. —In 1894, plaintiff sold defendant by parol and placed him in possession of land described, for $J,0P0, to 'be paid for in cutting and hauling timber from the land for plaintiff. In 1899, plaintiff executed a receipt to defendant for $265 as part payment “on the land sold him by myself on the Shanty branch,” and in 1900 an instrument was executed* reciting that defendant thereby sold to plaintiff all the merchantable timber now standing on the lands that plaintiff sold to defendant, situated on the Shanty branch, etc., at a .specified price, etc. Held, that, the parol contract of sale being- admitted, such writings, construed together, constituted a sufficient memorandum to satisfy the Statute of frauds.</p>

R. L. Stout, Circuit Judge. Judgment for defendants, plaintiff appeals. POINTS MADE AND AUTHORITIES CITED. II. The act of March 28th, 1906, imposing a tax of 1% cents on each wine gallon of compounded, rectified, adulterated or blended distilled spirits made in the Commonwealth of Kentucky, does not apply to the product obtained by percolating single stamped gin through a bed of Buchu leaves, merely tincturing the gin with the medical properties of the Buchu.

R. L. Stout, Circuit Judge. From an order .abating the action, plaintiff appeals. 'The practice of the courts, as approved by the Court of Appeals in the case of Dudley v. Price’s admr., 10 B. Mon., 88, has been to consider defense to causes of action set up in amended petitions separately from the cause of action set up in the original petition. AUTHORITIES. Ky.

Crittenden Circuit Court. J. P. Gordon, Circuit Judge. Judgment for plaintiff, defendant appeals. POINTS aND AUTHORITIES. 1. Where there is an attempt to make a reservation in a deed, any uncertainty as to its description or meaning, must be solved in favor of the grantee, and against the grantor. Towns et al v. Brown, 114th S. W. Rep. p. 773. 2. Appellant having appropriated the property of appellee, ought in good conscience to make it whole.

<p>CASE 63. — ACTION BY JOHN F. PETERSON, T. A. BEAV1N AND JOHN M. MAHON AGAINST THE CHICAGO BUILDING & MANUFACTURING COMPANY.</p> <p>1. Corporations — 'Subscription to Stock- — Construction.—-A contract was entered into between subscribers to -a voluntary association and a,, manufacturing company, whereby the subscribers each agreed to subscribe to one share- of stock, -and the -company agreed for a certain price, to he paid from the subscriptions, to erect a butter factory, the balance of the '.subscriptions to be -delivered to a corporation which was to he formed by the subscribers, -and provided th'at for any unpaid or deferred balance of subscription all delinquent sub-crdbers should he jointly liable, that as s.oon as the -corporation was formed, stock certificates should fee -issued to each paid-up stockholder, and that pursuant to the laws of his state, etc., each stockholder should he liable fo-r the amount jo«f stack set opposite his name, and no more. Nine sub- ■ iscribers to one share, each of the par value of $100, refused to pay their subscriptions. Held, that they were jointly and severally liable for the total amount due from them, the provisions for limitation of liability to the amount of stock [subscribed by each having reference solely to the rights -and liabilities of stockholders in the corporation which was to ■ be formed.</p> <p>/2. Corporations — -Subscriptions to Stock — Construction.—As each subscriber could extinguish his liability by paying the amount of 'his subscription, there was no liability on the part of a single subscriber for the whole amount to be paid the building company; the liability of the subscribers being several, unless they elected to make it joint by becoming delinquent.</p> <p>3. Appeal -and Error — Decision Reviewable — Court of Appeals— Amount in Controversy. — The liahilily of each of the nine delinquents being for the entire $900 the Court of Appeals had jurisdiction of appeals, in actions brought by them against thie building ■ company to have their subscriptions declared void. <</p> <p>4. Subscriptions — .Construction.—Where ’ a subscription paper, signed by subscribers to stock in an enterprise, consisted of 'one sheet of paper folded so as to make four pages, the first page containing the specifications of the building the other party to the contract proposed to erect; the second page con- ■ itaining the contract between the subscribers and the other party; the third page containing blank columns in which to insert the names of the subscribers, and the numbers of shares of stock subscribed for by each, presenting, at the top of the page over one column, the word® “names of stock subscribers,” over the next words “numbers of shares,'" and over the next “amount of stock subscription”: and the fourth page containing a diagram of the factory to be erected — held, that the paper embraced a single contract, the page containing the subscribers being their acceptance of the terms thereof.</p> <p>5. 'Corporations — Stock Subscriptions — Right of Subscriber to Withdraw. — Where numerous persons agreed with each other and with a building company that they would pay the amount 'of stock subscribed by them to establish a butter factory, and when the plant was completed by the building company they would organize themselves into a corporation, none of them could, in the absence of fraud or 'other good cause, withdraw before the corporation was formed', and avoid payment of his subscription.</p> <p>6. Corporations — ¡Subscriptions to Stock — Validity—Failure to Read Before Signing. — That persons signing -a written contract of subscription to stock failed to rea'd or understand it 'before signing would not relieve them from liability thereon in the absence of fraud.</p>

<p>Appeal from Trimble Circuit Court.</p> <p>Chas. C. Marshall, Circuit Judge.</p> <p>Indictment dismissed on demurrer aud the Commonwealth lappeals.</p> <p>We submit that as the offense of manslaughter was charged and sufficiently described in the indictment, the word “maliciously” did n'ot nor could either mislead or prejudice the accused, and consequently should not be held to vitiate or impair the indictment.</p> <p>In our opinion there was no ground foi either demurrer or motion in arrest of judgment, and as we preceive no other error in the record, the judgment is affirmed.</p> <p>AUTHORITIES CITED.</p> <p>Roberson’s Criminal Law, Sec. 217; Wharton on Homicide, 3 Ed. 835; 21 Cye. 858; Camp v. ¡state, 25 Ga. 689; Coe v. Commonwealth, 94 Ky. 606; Bishop on Criminal Procedure, Vol. 2, Sec. 502 and 514; People v. Chosier, 10 Cal. 3Í0.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The indictment must contain a statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended. Criminal Code subsec. 2, Sec. 122; Criminal Code Sec. 124.</p> <p>2. The indictment does not charge murder because it fails to use the technical term “Malice Aforethought” and the word of art “Murder.” Kaelin v. Commonwealth, 84 Ky. 385; Roberson Criminali Law, page 263; Wharton on Homicide, page 866.</p> <p>3. Voluntary manslaughter is a common law offense which is neither defined or described by the statute, hence in arriving at the sufficiency of the indictment we must resort to common law rules. Voluntary manslaughter is the unlawful killing by another without malice in sudden 'heat and passion or sudden affray. Wlharton on Homicide, page 6; Wharton’s Criminal Law, 10th Ed., Sec. 303; Jane v. Commonwealth, 3rd Mete. 20; Mitchell v. Commonwealth, 88th Ky. 351; White v. Commonwealth, 9th Bush 180; Roberson Criminal Law, Sec. 189; 4th Blackstone 192; Connor Y. Commonwealth, 13th Bush 718.</p> <p>4. The indictment does not charge voluntary manslaughter, it not being sufficiently specific, and fails to use the technical words and phrases necessary to make it a good indictment at common' law. Jane v. Commonwealth, 3rd Mete. 20; Mitchell v. Commonwealth, 88th Ky. 351; White v. Commonwealth, 9th Bush 180.</p> <p>5. Testing tlie indictment by the instruction, which, must be, to-wit: That the jury must believe beyond a reasonable doubt that the killing was none in sudden affray, or sudden heat or passion, without previous malice, the indictment is bad on demurrer. Wheatley v. Commonwealth, 26 L. R. 439.</p> <p>6. Involuntary manslaughter 'is the killing of another person in doing some unlawful act not amounting to a felony and without an intention to kill, or where one kills another while doing a lawful -act in an unlawful manner. Roberson's- Criminal- Law, page 246; Wharton's Criminal Law, Sec.'305; Connor v. Commonwealth, 13th Bush 718; Trimble v. -Commonwealth, 78th Ky. 176.</p>

<p>Appeal from Jefferson Circuit. Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge-.</p> <p>From the judgment denying relief, complainants appeal.</p>

<p>CASE 66 — ACTION BY CY JONES AND ANOTHER AGAINST THE UNITED STATES FIDELITY & GUARANTY COMPANY.</p> <p>1. Appeal and Error — ¡Supersedeas—Nature and Scope. — A supersedeas suspends the judgment, but does not ¡annul it, or undo what is already done.</p> <p>2. Same — Suspension of Injunction. — ¡Where a judgment dissolving an injunction is not suspended, because ¡of failure to. comply with ¡Civ. Code, Sec. 748, requiring a certain bond to be given before a supersedeas shall issue, tihe dissolution of the injunction takes effect, and is not affected by .a subsequent supersedes® of the judgment.</p> <p>3. Injunction — ^Liability on Bon'd. — Damages—Duty to Prevent Damages. — ¡Where a bond was given for an injunction restrain- . ing the removal of timber, which injunction was dissolved, damages may not be recovered thereunder by defendant for the idleness of his mules, which had been used in removing the timber, if by the exercise of ordinary diligence he might have obtained other work for them.</p>

Thos. P. Cook, Circuit Judge. On a separate trial of Ellis the jury failing to agree were discharged by the court and the Commonwealth certifies questions to the Court of Appeals which certifies its answers to the trial court.

<p>Appelal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>From the judgment the hank appeals.</p> <p>AUTHORITIES CITED.</p> <p>Applegate &c. v. Ernst, 3 Bush 648; Owensboro & Nashville Ry. Co. v. Logan County, 11 Ky. Law Rep. 99; Hager, Auditor &c. v. Citizens National Bank 32 Ky. Law Rep. 95.</p> <p>AUTHORITIES CITED.</p> <p>Act Ky. Legislature 1906, relating to Revenue and Taxation, Art. 4, subdivision 2; Hager, Auditor, &c. v. Citizens National Bank, 32 Ky. Law Rep. 95.</p>

W. M. Reed, Circuit Judge. From a directed judgment for defendant, plaintiff appeals. UPON THE FACTS APPELLANT CONTENDS. 1.

<p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p> <p>AUTHORITIES CITED.</p> <p>Statement. — .Secs. 1 and 2, Amendatory Act. to Regulate Commerce, approved June 29, 1906. Mottley et ux. v. Louisville & Nashville R. Co., 150 Fed. 406-13; Louisville & Nashville R. Co. v. Mottley et ux., 211 U. S. 31.</p> <p>1. Free Passes. — Knox v. Lee and Parker v. Davis (Legal Tender Oases), 12 Wall. 550-51; Bullard v. Northern Pac. R. Co., 45 Am. &, Eng. R. Cases, 234, 242-3, 245, 11 L. R. A..246; 8 Cyc., at ■page 997; Newport News & M. Y. 'Co., v. McDonald Brick Co.’s Assignee, 109 Ky. 408, 418-19; Fitzgerald v. Fitzgerald & Mallory Construction Co., 59 N. W. 862-3; Southern Wire Co. v. St, Louis Bridge & Tunnel Ry. Co., 38 Mo. 'App. 191; Fitzgerald v. Grand Trunk R. Co. (Vt.), 22 Alt., 76-77.</p> <p>2. Passenger Fare is Payable in Money. — Decisions of Interstate Commerce Commission Relative to Railroad1 Passes and Free Transportation, Senate Document No. 226, 60th Congress, First Session, Communicated to Senate February 6, 1908, page 18; Administrative Rulings and Opinions of Interstate Commerce Commission, Revised by order of the Commission, February 3, 1908, page 72, Rule No. 67, promulgated September 15, 1906; Armour Packing Co. v. United States, 209 U. S. 56; Chicago Burlington & Quincy Ry. Co. v. United States, lb. 90; Kentucky & Indiana Bridge Co. v. Louisville & Nashville R. Co., 34 Am. & Eng. R. Cases 630, 653; Same v. 'Same, 37 Fed. 567; United States v. Chicago, I. &. L. Ry. Co., 163 Fed. 114.</p> <p>SYNOPSIS.</p> <p>1. The issues a. Sec. 1 of Act of June, 1906, does not cover this case; b. Sec. 6 of Act of June, 1906, does not cover this case.</p> <p>2. Construction of the Statute. — The Act of June, 1906, does not embrace, and was not intended by Congress to embrace cases like this. Even though, the Act of June, 1906, is broad enough, and was, hy Congress, intended to embrace this case, it is violation of the Constitution of the United States, and especially the Fifth Amendment, and is therefore not enforcible as against Appellees. Brief of Solicitor for appellant and Interstate Commerce Commission.</p> <p>AUTHORITIES CITED.</p> <p>'Construction of Statutes. — United States v. Kirby, 74 U. S. 7 Wall 486-7; Carlisle v. United States, 16 Wall 153; Chew Heowing v. United States, 112 U. S. 555; Holy Trinity Church v. United States, 143 U. S. 457; Bate Refrigerator Co. v. Sulzberger, 157 U. S. 37; Market Co., v. Hoffman, 101 U. S. 116; Auffmardt v. Rasin; 102 U. S. 620; Cook v. United States, 138 U. S. 181.</p> <p>Constitutionality of Act of 1906, as applied to this case.— Wilkinson v. Leland, 2 Pet. 657; Osborne v. Nicholson, 13 Wall 654; Dubuque R. R. Co. &c. v. Richmond, 19 Wall 584. This case is not overruled by, but is distinguished from Addyston Pipe & Steel Co. v. United States, 175 U. S. 136.</p>

L. D. Lewis, Circuit Judge. Prom a judgment of dismissal on demurrer. Plaintiff appeals. POINTS DISCUSSED AND AUTHORITIES CITED.

<p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p> <p>SYNOPSIS OF POINTS DISCUSSED AND AUTHORITIES.</p> <p>1. Demurrers to petition good. Schouler on Domestic Relations, Sec. 264; Blackstone 453; American & English Enc. 2 Ed. Vol. 21 p. 1039; Jones v. Tevis, 4th Littell 25.</p> <p>2. Father never supported hoy nor objected to Rounds Bros, paying him his wages.</p> <p>3. State concerned in the decision of this ease.</p> <p>4. Short review of lower court’s opinion, which will show how wrong the court 'got on the law.</p> <p>5. The rule of law applicable to these cases correctly stated. Schouler on Domestic Relations, Secs. 233, 236, 237, 241, 243, 252, 453; 21st American & English Enc. 2 Ed. 1039; Jones v. Tevis, 4th Littell 25; Nightingale v. Wethington, 8 Am. Dec. 101; Wood-ell v. Cogeshall, 31 Am. Dec. 391; Kelly v. Davis, 49 N. H. 187; Whitting v. Earl, 15 Am. Dec. 207; American & English Ene Vol. 21, 2 Ed. pp. 1041-10/42. Kentucky Statutes, sections 325, 329, 331 and 2008.</p> <p>LIST OF AUTHORITIES RELIED UPON.</p> <p>1. Right of a father to recover the wages of his child. Blackstone Vo. 1 page 447; Blackstone Vol. 1 page 447; Blackstone Vol 1 page 453; Blackstone Vol 1 page 453; Kents Commentaries Vol. 11 page 192; Jones & Gulley v. Tevis, 4 Littell R. 27; L. & N. R. R. Co. v. Willis, 83 Ky. page 60; Soper v. Ivo Walker & Co., 28 Ky. 519; Washburn v. Abran, etc., 28 L. R. page 985.</p> <p>2. Emancipation. 21 American & Eng. Encyclopedia of- Law 1160 2nd Add.</p>

<p>Appeal from Bullitt Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

Court. J. W. Cammack, Circuit Judge. Prom a judgment of dismissal on demurrer, plaintiff appeals. False imprisonment consists In the total or substantially total restraint of a man’s freedom without authority of law either by actual froce or by show of authority “Hale 121, Jaggard, 41.” The judge is liable alone when having jurisdiction he acts under circumstances rendering his act improper.

Joseph Pryor, Judge. From a judgment sustaining a demurrer to the indictment; the' Commonwealth appeals. We submit that the indictment under thg authorities cited conforms to Sec. 1214 Ky. Statutes to such a degree that the court ■below committed a reversible error in sustaining . a demurrer thereto. Ky. Statutes Sec. 1214; Davis v. Com., 98 Ky. 708; Cr. Code Sec. 122, 124; Roberson’s Cr. Law Sec. 49,5; Commonwealth v. Wright, 16 Ky.

W. P. Sandidge, Circuit Judge. From a judgment of dismissal on demurrer to an amended petition, plaintiff appeals. POINTS AND AUTHORITIES. 3. The note referred to in this record is a negotiable instrument. 2.

) Samuel B, Kirby, Judge. Judgment for plaintiff's, defendants appeal. For appellant is it contended: 1. That even if the property in controversy should not be liable for assessment, and not be liable for taxes to th® State and county, an injunction will not lie against the county assessor to prevent him valuing it for áfesessment. 2.

J. F. Gordon, Circuit Judge. Defendants convicted and appeal.- There it no statute defining the offense charged in the indictment. An indictment following the approved 'and ordinary common la-w form for the offense will be good. Robinson’s Criminal, Sec. 503; 22 Am. & Eng. Ency-of Law I, Ed. 880. It seems to us that this indictment sufficiently charged the common law -offense of sodomy and that the v-erdict -of jury on the trial below should not have been disturbed.

Henry Circuit Court. Charles C. Marshall, Circuit Judge. Judgment for plaintiff, defendant appeals STATEMENT OF QUESTIONS INVOLVED AND ERRORS COMPLAINED OF. The real question involved is: Whether the defendant agreed to transport the shipment in question from Campbellsburg, Kentucky, to WTaycross, Georgia, and there deliver it to the consignee, or agreed to transport the shipment only to the terminus of its line and there make delivery to its connecting carrier?

Weed S. Chelf, Circuit Judge. Judgment for plaintiff, defendant .appeals. QUESTIONS DISCUSSED AND AUTHORITIES CITED. 1. The court erred in admitting evidence of the statement claimed to have been made by the witness Campbell. Civil Code, Sec. 597; L. &. N. R. R. Co. v. Pilkenton, 15 Law Rep. 807; Loving v. Commonwealth, 80 Ky. 507; Kennedy v. Commonwealth, 14 Bush. 340. 2.

<p>CASE 81. — PROCEEDINGS BY THE COMMONWEALTH OF KENTUCKY AGAINST THE UNITED STATES FIDELITY & GUARANTY COMPANY FOR FAILURE TO OBTAIN AN OCCUPATION LICENSE.</p> <p>1. Licenses — ¡Occupation.—“Inquiring Into and Reporting 'on Credit.” — ¡A corporation whotse business is to guarantee, indorse, secure payment of debts and obligations, insure fidelity of persons and concerns holding positions of trust, and ■through guaranteed attorneys furnish direct to subscribers of a quarterly publication, and not through the company, the ■comtoercial standing of merchants and other persons is engaged in the business of inquiring into and reporting on the credit and standing of persons engaged in business within Ky. St. 1909, iSec. 422i4, requiring persons or concerns so ■engaged to secure a license.</p> <p>2. Licenses1 — ¡Occupation—Failure to Obtain License1 — ¡Prosecution — Defenses.—In the prosecution of a corporation for engaging in a specified business without an occupation license it is no defense that in engaging in such business defendant1, exceeded its corporate ptowers.</p>

<p>CASE 82. — ACTION BY CANNON & BYERS MILLINERY COMPANY AGAINST THE PHILADELPHIA CASUALTY CO. ON A POLICY OP CREDIT INSURANCE.</p> <p>1. Insurance — Credit Insurance — Construction of Policy — “Experience.” — A policy of credit insurance made the “experience” of the insured1 in dealing With; its customers the basis of credit, and then provided that the highest previous indebtedness should he taken as an “experience” which would justify the indemnified in again extending credit to an old customer. Held, that the term “experience” meant a business transaction which was closed, since until the goods for , which the credit was extended were paid for, and the transaction closed, the creditor would not be justified in extending further credit.</p> <p>2. Insurance — Credit Insurance" — Construction of Policy — Additional Credit — Effect of Return of Goods Previously Sold.— '"Where goods shipped C. O. D. were returned because the customer was unable to pay for them, this would be such an experience as would not warrant the extension of further credit to him, within the provision of a policy of credit insurance providing that the highest previous indebtedness should be taken as an experience, which would justify the indemnified in again extending credit to an old customer, but, if the goods were returned because not of the character bought or contracted for, the transaction should be entirely ignored, and credit might be extended to such cust'caner as though the transaction had never taken place.</p> <p>S. Insurance — Credit Insurance — Construction of Policy — 'Previous Experience — Execution of Note — '“Experience.”—The execution of a note in payment for goods sold on credit did not, until payment of the note close the transaction, so as to render it an “experience” which would justify the creditor in again extending -credit to an -old customer.</p> <p>4. Insurance — Credit Insurance — -Construction of Policy. — -A policy of credit insurance provided that, before being entitled to payment under the p-olicy) the insured must first sustain an “initial loss,” which was- fixed at three-quarters of 1 per cent, of the- gross business done by the insured, based upon his experience the previous year, and provided -also that, if -his total gross business should exceed the sum used as a -basis, then the initial loss should be correspondingly increased. By a “rider” the policy was mlade to relate back to- cover all outstanding accounts which had been created during the regular course of business in the six m-onths proceeding the date of the policy. Held, that the effect of the rider was si-m-ply to antedate the policy six months, and h-e-nce accounts made during- such time -must be treated as -a part of t-h-e gross business done by insured during the life -of t-he policy, for the purpose -of determining the initial loss.</p> <p>5. Insurance — Credit Insurance — Construction of Policy — “First Bill.” — A policy of credit insurance insured a 'dealer against loss Which 'he might sustain on account of nonpayment of the fir-st bill for goods sold to new customers, which was not to be -in excess -of $400. Held, that “fir-st bill” meant the particular articles contracted for at -one time, without regard to the time within which the bill therefor should be -paid, and did not include all goods, not exceeding $400, which were -sold -and; delivered between the first sale and the maturity 'of the bill therefor.</p> <p>6. Insurance — Credit Insurance — Salvage—-Application of.— Where a policy of credit insurance makes no provision -as t-o- -the app-liic'ation of salvage, -the insured is entitled to make such application -of the salvage recovered- by him as is beneficial to his interests, and hence may apply it to the discharge of those debts for which he holds no security -and for the loss -of which he is not indemnified.</p> <p>7. Insurance — Action on Policy — Evidence.—Where a policy of credit insurance provided that the insured should he indemnified against loss -on account of sales of go-o-ds of the kind usually dealt in by the insured, and the accounts taken from the books -of t-he insured showed th-e character of goods to be such as th-e insured dealt in, -the items themselves furnished the best evidence as to- the character -of the goods sold, and hence no additional proof as to their character was required.</p> <p>8. Insurance — Credit Insurance — Construction of Policy. — A policy of credit insurance should not be so narrowly construed as to place upon the insured any unreasonable -or unnecessary labor or expense in the presentation of his claim, nor should it he so liberally construed as to place upon the insurance company a liability which, by the fair construction -of the terms -o-f -the policy, it had not contracted to assume.</p> <p>9. Insurance — -Credit Insurance — Action on Policy- — Evidence— Sufficiency. — Where, in an action on a policy of credit insurance, insured showed by evidence of its bookkeeper, speaking from the books of account -before hi-m, that h-e had sold and delivered to its various customers, whose accounts were involved in the action, the 'particular bills of goods set forth in the items of account filed with his deposition, and that these goods were not paid for, and 'accoimpanied his statements with such evidence of debt or insolvency in each particular case as the insured had received after investigation made, it established a prima facie case entitling it to judgment, in the absence of any claim or .showing to the contrary.</p>

J. W. Henson, Circuit Judge. Judgment for defendants, plaintiffs appeal. POINTS DISCUSSED. 1. The deed in question was an escrow. 2. Appellant has, as a matter of law, a reasonable time within wirie'h to -accept it. 3. He was denied that reasonable time by the unauthorized act -of the third party holding the deed. 4. Appellee Chandler was guilty of improper conduct amounting to fraud. 5.

M. L. Harbeson, Judge (Common Law and Equity Division). Judgment for plaintiff, defendant appeals. CLASSIFICATION. 1. Motion for peremptory instruction for defendant. City of Covington v. Manwaring, 24 Reporter 424; City of Midway v. Lloyd, 24 Reporter 2449. 2. Competency of insane witness.

S. G-. Kinneb, Circuit Judge. • Judgment for plaintiff, defendant appeals.

A. Judgment for defendant, plaintiff appeals. The sheriff of Letcher county, Ky., having conveyed to the plaintiffs herein the pro-p-erty described in the plaintiff’s petition, by deed, dated April 23, 1896, pursuant to a levy made December 21, 1895, and by sale made January 6, 1896, which deed was recorded in the clerk’s office of Letcher county on the 27th day of April, 1896, the title to this property was absolutely vested in these plaintiffs.

<p>Appeal from Jefferson Circuit Court. (Criminal Branch).</p> <p>Joseph Pryor, Judge.</p> <p>From a judgment of dismissal the city appeals.—</p>

Samuel E. Jones, Circuit Judge. Judgment for plaintiffs, defendant appeals. POINTS DISCUSSED AND AUTHORITIES CITED. 1.

W. L. Jarvis, Circuit Jndige. Judgment for defendants, plaintiffs appeal. AUTHORITIES CITED.

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>AUTHORITIES CITED.</p> <p>18 Am. and Eng. Encyclopedia of Law 83; Queen Ins. Co. v. The State, 86 Texas, 250; 24 S. W. 397; People v. Fisher, 14 Wend., Note 9; 28 Am. fiec. 508; Collins v. Locke, 4 App. Cas. 674; Association v. Walsh, 2 D,aly, 1; Ladd v. Manufacturing Co., 53 Tex. 172; Continental Ins. Co. v. Board of Fire Underwriters of the Pacific, et al., 67 Fed. 310; Matthews v. Associated Press, 136 N. Y. 333; 32 N. E. 981; National Protective Asso. v. Cuming, 170 N. Y. 315; 63 N. E. 369; Jacobs v. Cohen, 183 N. Y. 207; 76 N. E. 5; Macauley v. Tierney, 19 R. I. 255; 37 L. R. A. 455; Montgomery Ward & Co. v. South Dakota Retail Merchants’ Asso., 150 Fed. 413; Bohn Manufacturing Co. v. Hollis, 54 Minn. 223; 40 Am. St. Rep. 319; Carew v. Rutherford, 106 Mass. 1; Snow v. Wheeler, 113 Mass. 179; Vandiver v. Robertson & Son, 125 Mo. Appeal, 307; More v. Bennet, 140 Ills. 69; 29 N. E. 888; People v. Chicago Live Stock Exchange, 170 111. 556; Huston v. Reutlinger, 91 Ky. 333; Hilton v. Eckersley, 6 El. and Bl. 76; Stanton v. Allen, ,5 Denio, 434; People v. Fisher, 14 Wendell, 19; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Sayre v. Louisville Union Benevolent Asso., 1 Duvall, 146;. Sutton v. Head, 86 Ky. 156; Gibbs v. Consolidated Gas. Co., 130 U. S. 396; Mogul Steamship Co. v. McGregor, 21 Q. B. Div. 544.</p>

<p>CASE 91. — ACTION BY PATSY HIKE’S ADMINISTRATOR AGAINST -W1ILLIAM GRIZZARD AND OTHERS —</p> <p>1. Descent and Distribution — Debt of Decedent — Action Against Heirs' — Necessity for Demand. — Ky. St. 1909, Sec. 3870, requires all demands against an estate to be verified by affidavit by the claimant or his representative. Section 3872 provides that before the affidavit is made no action shall be brought or recovery had on any such demand nor until demand of payment thereof has been made of the personal representative. Section 3874 provides that no demiand against a decedent’s estate which is not verified by affidavit shall be paid by his personal representative nr allowed as a credit by a commissioner or court. Held, that the provisions which are part of the chapter on .personal representatives do not apply where no personal representative has been appointed, and an action is brought against decedent’s heirs for a claim against him, in which case no demand is necessary, nor need the claim be verified before suit, but it is sufficient if it be verified before judgment.</p> <p>2. Descent and Distribution — Debt of Decedent — Action Against Heirs.' — Under the express provisions of Ky. St. 1909, Sec. 2089, heirs may be sued in equity for any liability of their decedent.</p> <p>3. Lost Instruments — Action on Lost Note — Statutory Provision's' — “Instrument Transferable by Delivery Merely.” — Civil Code Prac. Sec. 7, provides that no action shall be brought upon an instrument transferable by delivery merely which is alleged to be lost, without a preyious tender by plaintiff to defendant if his name and place of residency be known to' plaintiff, of an indemnifying bond, etc. Held, that “instruments transferable by delivery merely” means bills of exchange or negotiable paper which the holder takes free of defenses good between the original parties, ana does not embrace a note secured by mortgage, which under the law in force at the time was' taken by a holder subject to all defenses that the maker had” against it before notice of the assignment.</p>

<p>Appeal from Carter Circuit Court.</p> <p>J. B. Hannah, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

J. W. Cammack, Circuit Judge. Judgment for defendants, plaintiffs appeal. POINTS DISCUSSED AND AUTHORITIES RELIED ON. 1. It is error to sustain a demurrer to petition for several defendants when there -has been no order made permitting one defendant to act for all. Civil Code, Sec. 25. 2. Amended petition should be allowed to be filed though it contains an action that could not be joined with original petition. Plood v. Chandler,-13 B. M. 403. 3.

Matt 0 ’Doherty, Judge. Judgment for plaintiff, defendant appeals. POINTS AND AUTHORITIES. 1. The peremptory instruction asked for by the appellant (defendant), should have been given because a servant who is injured while doing work other than that which he has been employed to perform, has no right of recovery against his master.

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>