Volume 134 — Kentucky Reports

<p>CASE 1— ACTION BY THE TISCHENDORF-CHRESTE LUMBER COMPANY AGAINST E. C. HEGAN AND OTHERS. —</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Judgment for defendants, plaintiff appeals. —</p> <p>AUTHORITIES.</p> <p>Kentucky Statutes, Section 2468; Mivelaz v. Johnson, 30th Ky. Law Rep. 389; Mivelaz v. Oehovely, 28th Ky. Law Rep. 203; Nelson Manufacturing Co. v. Mann Bros., 24th Ky. Law Rep. 1547; Hodges v. Arvidson, 23rd Ky. Law Rep. 2078; 'Browinski v. Pickett, 24th Ky. Law Rep. 305; Dobson v. Thurman, 30th Ky. Law Rep. 1331.</p>

<p>1. Pleading — Amendment — Trial Amendment. — In an action against a street railway company for killing plaintiff’s child, the court held that plaintiff’s allegation of defendant’s gross negligence in running, operating and managing the car, and in failing to give warning of the approach of the car to the crossing hy gong, hell, or otherwise, was not sufficient to entitle plaintiff to prove absence of a headlight, whereupon plaintiff tendered a trial amendment charging negligence in not having a headlight on the car. Held, that the court’s refusal to allow the amendment was erroneous; defendant having made no application for a continuance hy reason thereof.</p> <p>2. Street Railroads — Death of Children — Instructions.—Plaintiff’s intestate, a child of 12, was run into and killed by defendant’s street car at or near a crossing. The proof of both parties showed that the child went on the tracks so close to the approaching car that she could not he saved. Defendant’s evidence was that she fell on the track and was struck for this reason, while plaintiff’s proof showed the car was running too rapidly; that it was'very dark, and that there was no warning of ihe car’s approach. Held, that an instruction that, if plaintiff’s intestate attempted to cross the track so close to the car that the motorman by ordinary care could not stop before injuring intestate, then plaintiff could not recover, was erroneous as requiring a verdict for defendant, though the jury should believe plaintiff’s evidence to be true.</p> <p>3. Street Railroads — Cars—Operation—Crossings.—A street railroad company is required to moderate the speed of its cars at public crossings, to give notice of their approach by proper signals, to maintain a headlight when dark, and to keep a lookout for persons on the crossing, that they may be warned of approaching danger.</p> <p>4. Street Railroads — Crossing Accidents — Discovered Peril.— Where a street railroad company operates a car over a crossing without proper warning and at excessive speed, and a person is injured, the company can not be exonerated from liability on the sole ground that, after his peril was discovered, his injury could not be averted.</p>

<p>1. Gas — Explosions — Injuries — Proximate Cause.— Defendant maintained a defective gate valve in his pipe line underneath a street... The-box around the valve had fallen into disrepair and the valve leaked gas. Plaintiff, with other boys, were playing in the street, when one of the 'boys, four years old, threw a match into the oox, which caused' ah explosion by which plaintiff was injured. Held, that defendant’s negligence in failing to properly construct and keep its valve box in repáir, and not the negligence of the child, was the proximate cause of the accident.</p> <p>2. Gas — Pipé' Lines — ^Gate ' Valves — Protection.—Where a gas , company maintained a pipe line in a highway, it was bound to so protect it as to prevent injuries from explosions to persons and children lawfully in the highway.</p> <p>3. Gas — Injuries from Explosion — Contributory Negligence-Children — Questions for Jury. — Where a child' éight years old wap injured while, playing, in the .highwa,y .by 'an explosion of gas from defendant’s gas pipe line, and he had been previously warned to keep away from the gate valve box where the explosion occurred, the presumption was that he was not negligent on account of his age under the rule that a child between seven and. fourteen is presumed non sui juris, and the question of his negligence was for the jury.</p>

<p>CASE 4. — ACTION BY JAMES E. BENNETTE AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY FOR DAMAGES FOR PERSONAL INJURIES —</p> <p>Appeal from Grant Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Civil Code, Sub-secs. 4, 5 and 6, of Sec. 340; C., N. O. & T. P. Ry. Co. v. Holcomb, 25 Rep., 1444; L. & N. R. R. Co. v. Daniel, 28, Rep. 1148, 31 R. 944; Jaggard on Torts (Hornback Series), Vol. 1, page 390;61 Mo. 359, 87 Mich. 509, and 92 Mich. 197; Campbell v. Cook (Texas), 24 S. W. 977; uarson v. Clark, 36 Pac. 178; Babcock v. Ry. Co., 30 N. W. 449; Chitty on Pleading, Vol. 1, 396.</p> <p>AUTHORITIES CITED.</p> <p>C. O. & S. W. R. R. Co. v. Bell, 6 Ky. Law Rep. 219; Southern Ry. in Ky. v. Scanlon’s Adm’r., 32 Ky. Law Rep. 38.</p>

<p>CASE 5. — ACTION BY ALEXANDER LETCHER’S TRUSTEE AGAINST THE GERMAN NATIONAL BANK AND OTHERS. —</p> <p>Appeal from Kenton Circuit Court.</p> <p>Judgment for defendants, plaintiff appeals. —</p> <p>R. H. TOMLINSON and BRECKINRIDGE & BRECKINRIDGE of Counsel.</p> <p>AUTHORITIES CITED.</p> <p>Cook on Corporations, Vol. 1. Secs. 327, 325; Elliott on Private Corporations, Sec. 186; 'Cyc. Vol. 10, pp. 621-23-24; also p. 622; Bank of America v. MoNeil, 10 Bush', p. 54; Comp. Stat. U. S., Sec. 5139; Hill on Trustees, star pages 290, 291, 302, 293, 294, and 159, 536; Rich. Adm’r. v. Spencer, 18 B. Mon. 465; Story’s Equity, Vol. 1, Secs. 360-61.'</p> <p>SUMMARY.</p> <p>In conclusion, therefore, we claim:</p> <p>First. That the pleadings in this case would not authorize a judgment in behalf of plaintiff, and that the exhibit filed with the petition, even if it contained averments omitted from the petition, could not be looked to to help out the petition. Miller v. McConnell, 26 R. 181.</p> <p>Second. It is not shown by the depositions eve'n, such as they are, that there was a proceeding in the Boyle Circuit Court which so far concluded the rights of 'Susan McKnight as to afford this defendant full protection in issuing a duplicate stock certificate, in place of the one outstanding and adversely held.</p> <p>Third. The stock certificate is not lost, nor has it been shown that it is impossible to surrender the same. Plaintiff is simply endeavoring to take a short cut and to relieve himself from trouble, which he proposes to throw upon the defendant.</p> <p>Fourth. The defendant can not be required, under the Statutes of the United States, to transfer the stock in question without the surrender of the original certificate, in a case where it is not shown that the certificate is lost or destroyed. U. S. Compiled Statutes, Sections 5136, 5139; Scott v. Pequonnock 'National Bank of Bridgeport, 15 Fed. 494; Hazard v. National Exchange Bank of Newport, 26 Fed. 94.</p>

<p>CASE 6. — ACTION BY SALLIE E. WALKER., AND BY THE STATE BANK & TRUST COMPANY OF RICHMOND, KY., AGAINST HIRAM SHEARER’S ADMINISTRATRIX. —</p> <p>Appeal from Estill 'Circuit Court.</p> <p>Judgment for -defendant, plaintiffs appeal. —</p>

<p>■Wills — Construction—Estate Devised — Defeasible Fee. — A will gave testator’s wife the use of all his property while she remained unmarried, and, if she should remarry, gave her the use of one-third thereof for the rémiainder of her life, the balance to he equally divided among his children and their descendants. The will further provided that at his wife’s death her one-third life interest should he divided among his children and their descendants, but if the wife did not remarry, the estate should be divided equally among his children and their descendants, and, further, that if, at the time of any division provided for therein, any child should have died leaving children, they should take the share of the child so dying, and that such grandchildren were meant when the word “descendants” was used in the will. Held, that testator’s children took only a defeasible fee, subject to he defeated by their dying, leaving children, before their mother’s death or remarriage, and hence they could not now convey an indefeasible title to the property.</p>

<p>CASE 8. — ACTION BY NANCY WOOTON AND OTHERS AGAINST GRANT MURRELL AND OTHERS. —</p> <p>Appeal from Leslie Circuit Court.</p> <p>Judgment for defendants, plaintiffs appeal. —</p>

<p>1. Master and Servant — Injuries to Third Persons — Independent Contractor — Relation.—The employer of plaintiff’s intestate contracted with defendant railroad to do sundry masonry work for it for two years at stipulated prices, and was engaged under the contract in excavating for a new culvert when intestate was killed. The company had put in false work to support the track while the culvert was being built, and kept a man there to see that the track was safe for passing trains, -but had no control over the contractor as to the manner of doing the work, except to see that it was according to the specifications furnished him, and he employed and controlled his workmen, either personally or through his foreman. Held, that intestate’s employer was an independent contractor, and not an employe of the railroad company.</p> <p>2. Master and Servant — Independent Contractors — Work Wrongfully Prosecuted. — An employer is not relieved of liability by employing an independent contractor to do work where the statute requires the employer to do the work in a certain manner, or where it is contrary to law or creates a nuisance.</p> <p>3. Master and Servant — Independent Contractor — Contract Duty of Employer. — An employer can not relieve himself from liability for injuries resulting from the prosecution of work by employing an independent contractor to do it, where the undertaking is a matter of contract, imposing upon the employer a fixed duty.</p> <p>4. Master and Servant — Independent Contractor — Natural Consequences of. Work. — If work is of such a hazardous nature, or the place where it is prosecuted is so near other property, that injury may reasonably be expected to result from doing it, even though done in a reasonably careful manner, the employer can not relieve himself from liability for injuries resulting therefrom by employing an independent contractor to • do the work.</p> <p>5. Master and Servant — Independent Contractor — Liability.—If an independent contractor, employed by a railroad company to excavate for a culvert, failed to properly slope the sides of the excavation, so that one of his workmen was injured by the dirt caving in, the contractor alone would be liable therefor.</p> <p>6. Master and Servant — Independent Contractor — Actions—Sufficiency of Evidence — Hazardous Nature of Work. — In an action against a railroad company for intestate’s death while employed by an independent contractor, who was engaged in putting in a culvert for the company when intestate was killed by dirt falling in upon him, evidence held not to show that the construction of the culvert was necessarily of such a hazardous nature that injury might have been expected to result therefrom, so as to render the company liable therefor.</p> <p>7. Master and Servant — Independent Contractor — Wiork Done in Exercise of Special Franchise. — A railroad company can not relieve itself from liability to its servants operating trains for injuries resulting from work done upon its track by employing an independent contractor to do the work.</p> <p>8. Master and Servant — Independent Contractor — Employer’s Liability — Construction of Contract. — Where a railroad company employed an independent contractor to construct a culvert under its tracks, it would not be liable for injuries to a workman of the contractor sustained in doing the work; it not being of such a hazardous nature that injury might reasonably be expected to result therefrom.</p>

CASE 10. — ACTION BY CARTER WILLIAMSON AND OTHERS AGAINST SANFORD MANN TO RECOVER LAND. Appeal from Taylor Circuit Court. Judgment for defendant, plaintiffs appeal. — QUESTIONS DISCUSSED AND AUTHORITIES. 'The proceedings had in suit number 1275, attempting to divest the infants of their title to the land in controversy therein, was void, because it did not conform 'to the provisions of the Code of Practice authorizing a sale of infants real estate. 1.

CASE 11. — ACTION BY JOHN R. MEADOWS AND OTHERS AGAINST H. F. FINLEY. Appeal from Whitley Circuit Court. Judgment for plaintiff, defendant appeals.- — POINT'S AND CITATIONS. 1. The whole case was tried out on an issue which did not determine the controversy. The verdict, therefore, did not enable the court to render judgment. A special finding from which the judgment does not follow as a logical sequence is equivalent to a mistrial. 2.

<p>1. Intoxicating Liquors — Bonds of Dealers — Requisites and Sufficiency. — A bond given by a liquor deale'% which does not name any sum to be -forfeited on failure to comply with the law, can not be enforced, although the sureties in justifying istate that they have property of the value of $5.00, as such sum was not carried by inference into the bond, and it did not appear that the city issuing the license had fixed by ordinance any penal ,sum to -be inserted in suoh bonds.</p> <p>2. Courts — Appellate Jurisdiction — Kentucky—Amount of Judgment. — The Court oí Appeals has jurisdiction of an appeal from a judgment for $137 against the defendant, who has attempted in 'good faith to file an amended answer setting out a counterclaim of $500, and had reasonable grounds to believe that it had a cause of action on the counterclaim.</p> <p>3. Intoxicating Liquors — Revocation of License — Recovery of Unearned Portion of Pee. — Under Ky. St. Sec. 3029, providing that upon the surrender of a license the board shall make a reasonable allowance for the unexpired term, one to whom a license has been issued can not recover the unearned portion of the fee after the license has been revoked for violation of the law.</p>

<p>1. Mortgages — Nature—Mortgage or Conditional Sale. — The owner of land executed a ¡deed thereto in consideration of $2,000 in -cash, an'd ¡defendant’s promissory note for $3,000, and ¡at the same time executed -a writing ¡reciting the execution of the deed, and providing that the owner should have the use and control of, and the right to receive the rents from, the land, and that defendant agreed to reconvey if ¡the grantor paid hack the $2,000 by a ¡certain date ¡and surrendered, defendant’s -note. The agreement was twice extended by a memorandum, stating that the time to redeem- the land described in the agreement ¡and deed was thereby extended. Held, that the transaction was a mortgage and not a conditional s-ale.</p> <p>2. Mortgages — Right to Redeem — Waiver.—The mortgagor may waive his right to redeem, under a deed in the nature of -a mortgage, by an independent agreement with the mortgagee, if the agreement i-s fair and based upon -a sufficient consideration.</p> <p>3. Contracts — ¡Consideration—Suffiicienley—-Red-ease ¡of Right to Redeem. — The owner of the land, in effect, conveyed it to defendant by way lof mortgage, receiving $2,000 in cash and a note for $3,000, the parties agreeing at the time that defendant should reconvey if the $2,000 was repaid and hi-s note surrendered, and thereafter the parties executed ¡a writing -providing that the agreement should he canceled and the transaction, -closed! ¡and that the ¡deed should stand as -made to defendant, the mortgagor ¡having then received four ¡or five hundred dollars in addition to the $2,000. Defendant and the mortgagor were intimate friends, a strong affection ■existing between them by reason of defendant having lived ■with the latter since childhood and occupied practically the position of a son. Held, that, ¡as the mortgagor, under the ¡agreement releasing his right to redeem, was entitled to retain the money received and collect the balance due on the note, the agreement was supported by a -sufficient consideration.</p> <p>4» Contracts' — Consideration—Adequacy.-—'That the entire amount received by the ‘mortgagor was not equal to the full value of the land did not show such- ¡an inadequate -consideration as to justify the conclusion that defendant took an undue advantage of the mortgagor, in view of the relations existing between them.</p> <p>ON REHEARING</p> <p>5. -Mortgages — Absolute Deed as Mortgage — Extinguishment of Mortgage — Agreement Between Parties. — The parties, after executing an absolute deed, accompanied by a collateral contract to reconvey if the -grantor paid back a certain sum to the grantee, could, by subsequent agreement -supported by a valid consideration, provide that -the transaction should be -considered as -closed- an-d the deed -stand as- made.</p>

CASE 14. — ACTION BY H. D. ROGERS AND ANOTHER AGAINST. DAVID SAMPLES AND ANOTHER. — Appeal from Lee Circuit Court. From the judgment denying the claim of Sarah Samples, for taking care of live stock attached, she appeals. —

<p>CASE 15. — ACTION BY ELBERT BINGHAM AND ANOTHER AGAINST MOLLIE CARNES AND OTHERS. —</p> <p>Appeal from Knox Circuit Court.</p> <p>From the judgment plaintiffs and defendant, Mollie Carnes, appeal. —</p>

CASE 16. — ACTION BY J. C. CALDWELL AGAINST T. J. HILL, SHERIFF — Appeal from Lincoln Circuit Court. Judgment for plaintiff, defendant appeals. — ■The appellant contends that the cattle were liable to assessment and taxation in Lincoln county, it matters not for how short a time they were in the county, other than being driven or transported. through the county. Acts 1906, page 90; Ky. Statutes, Sec. 4025 (1909 Ed.) POINTS AND AUTHORITIES. 1.

<p>1. Eminent Domain — .Street Improvements — Injury to Property —Liablity.—Under Const. See. 242, requiring municipal corporations to make just compensation for property taken, injured, or destroyed by them, cities are liable to abutting property owners for injury sustained by the excavation of a street or the changing of its grade, or for any improvements that injure or destroy the property.</p> <p>2. Eminent Domain — Street Improvements — Sidewalks—Injury to Property — ’Liability.—Const. Sec. 242, requires municipal corporations to make just compensation for property taken, injured, or destroyed by them. Ky. Stat. Sec. 3567, relating to cities of the fourth class, provides that, where the cost of a sidewalk improvement does not exceed $250, the board of council may order such improvements to be made by the abutting owners in accordance with plans and specifications furnished by the city engineer, and that, on failure of the owners to comply the hoard shall cause the improvements to he made. Held, that where the grade of a sidewalk was changed by the city engineer, and an abutting owner was ordered by the board to construct a pavement conforming to such grade, and did so, the city was liable for injuries to the property resulting from such change; that the owner did the work, instead of permitting the city to do it, being immaterial.</p> <p>3. Eminent Domain — Street Improvements — Sidewalks—Injury to Property — Liability.—A city destroying trees growing in a public highway by changing the grade of the street is no|t liable to an abutting property owner damaged thereby.</p>

<p>CASE 18. — PROSECUTION BY THE COMMONWEALTH AGAINST AMELIA ALLEN FOR MURDER. —</p> <p>Appeal from Breathitt Circuit Court.</p> <p>Defendant convicted of murder and appeals. —</p> <p>AUTHORITIES CITED.</p> <p>1. Continuance and Affidavit. — Petit v. Commonwealth, 15 S. W. 1059; Rotoenson v. Commonwealth, 68 S. iWl. 1099; Crim. Code, Sec. 189; Hensley v. Commonwealth, 74 S. W. 677.</p> <p>2. Dying Declarations. — Haines v. Commonwealth, 13 S. W. 445 Saylor v. Commonwealth, 30 S. W. 390; Blyew v. Commonwealth', 15 S. W. 356.</p> <p>3. Confession — Young v. Commonwealth, 76 Ky. 366, 80 Ky. 323, 59 Ky. 387, 92 Ky. 283, 42 S'. Wl 1125.</p> <p>4. Reputation. — Montgomery v. Commonwealth. — 30 S. W. 602; 23 Ky. L. Rep. 732.</p> <p>AUTHORITIES.</p> <p>Brock v. Commonwealth, 110 S. W. 878; Hardesty v. Commonwealth, 88 Ky. 537; Sec. 189, Criminal Code; White v. Commonwealth, 80 Ky. 480; Williams v. Commonwealth, 18 S. W. 364; Simmons v. Commonwealth, 18 S. W. 534; Rloherts v. Commonwealth, 94 Ky. 499; Hopkins v. Commonwealth, 117 Ky. 941; Aiken v. Commonwealth, 16 S. W. 849; Jonas Smith v. Commonwealth, -; Brandenburg v. Commonwealth, 28 R. 1051; Asher v. Commonwealth, 28 R. 1342; Salisbury v. Commonwealth, 32 R. 1085; Wagner v. Commonwealth, 107 S. W. 318.</p>

<p>CASE 19. — ACTION BY THE COMMONWEALTH OF KENTUCKY BY A REVENUE AGENT AGAINST ROBERT PEBBLES AS EXECUTOR OF J. G. PEEBLES, DECEASED, TO REQUIRE HIM TO ASSESS AND PAY TAXES ON STOCK IN FOREIGN CORPORATIONS.</p> <p>Appeal from Boyd Circuit Court.</p> <p>Judgment for defendants, plaintiff appeals. —</p> <p>CLASSIFICATION 0'F POINTS AND AUTHORITIES.</p> <p>1. The Constitution and Statutes of Kentucky affecting taxation. Constitution, Sec. 172; Kentucky Statutes, Secs. 4020, 4022, 4023, 4024, 4058; Acts, 1908, page 125.</p> <p>2. Certificates of stock in a corporation are not property in themselves, but mere evidence of ownership of intangible personal property. 2 Thompson on Corporations, Sec. 348; Commonwealth v. "Williams, E'x’or, 102 'Va., 778."</p> <p>3. The executor of an estate is the legal owner of the property thereof against all the world. Executors and Administrators, 18 Cvc. 206; Baldwin v. Shine, 84 Ky. 502, 8 R. 496; Sommers v. Boyd, 48 Ohio State, 648; Brown v. Noble, 42 Ohio State, 405; Carrol v. tr. S., 13 Wall. 161; Kane v. Paul, 14 Peters, 33.</p> <p>4. Tbe situs of intangible personal property for purposes of taxation is the residence or domicile of the owner. State Tax on Foreign held Bonds, 15 W|all., 300; Thomas v. Mason County Court, 4 Bush, 135; Board of Council v. Fidelity Trust & S. V. Co., 23 R. 908; 111 Ky., 677; 21 L. Ed. 179; Commonwealth v. Hayes, 8 B. Mon. 1; Grant v. Jones, 38 Oh. St. 28; Detroit v. Lewis, 109 Mich. 155; 32 L. R. A. 439; Cooley on Taxation, 2 Ed. p. 375¡Minor on Conflict of Laws, Sec. 123; Desty on Taxation, Vol. 1, p. 33; Dallinger v. Rapello, 14 Fed. 33; Davis v. Mackey, 124 Mass. 193; Latrobe v. Baltimore, 19 Md. 13; People v. Assessors, 40 N. Y. 154; Guthrie v. Pittsburg, &c., 158 Pa. St. 433; Dorr v. Boston, 6 Gray (Mass.) 131; Anthony v. Caswell, 1,5 R. I. 159; State v. Holmdel, 39 N. J. 79; State v. Corson, 50 N. J. 381; Cameron v. Ballington, 56 la. 320; Nashville v. Davis, 10 Lea. (Tenn.), 474; Gallatin v. Alexander, 10 Lea. (Tenn.), 474; Bonaparte v. Tex. Ct., 104 IT. S. 592; Union Refrig. Transit Co. v. Ky., 199 U. S. 208; Commonwealth v. Williams’ Ex., 102 Ya. 778; Sommers v. Boyd, 48 Oh. St. 648; Worthington v. Sebastian, 25 Oh. St. 10; Brown v. Noble, 42 Oh. St. 405; Horne v. Green, 52 Miss. 452; Estate of Fair, 128 Cal. 607; People v. Tax, 17 Hun. ^N. Y.), 293; Price v. Blunter, 34 Fed. 355; Baldwin v. Shine, 84 Ky. 502; 8 R. 496; Louisville v. Shirley, 80 Ky. 71; Lexington v. Fishbaek, 109 Ky. 773; Com. v. R. G. Dun Co., 102 S. W. 859; Board of Council v. Fidelity T. &’S. V. Go., Ill Ky. 667; Callahan v. Singer Mfg. Co., 29 R. 123; Commonwealth v. Haggin, 99 S. W. 906; Commonwealth v. N. W. M. L. Co., 107 S. W. 233.</p> <p>5. The domicile of residence of an executor or administrator is a question of fact, to be determined by his actual residence or domicile as an individual. Illinois Central v. Stith’s Adm’r, 85 S. W. 1173; 27 R. 596; Gallup v. Schmidt, 46 L. Ed. 207; Rice v. Hous" ton, 80 U. S. 68; 13 Wall. 66; Augusta v. Kimball, 41 L. R. A. 467; Turner’s Adm’r v. L. & N. R. R. Co., 110 Ky. 879; Sommers v. Boyd, 48 Oh. St. 648; Ailman’s Petition, 17 R. I. 362; Turner’s Adm’r v. L. •& N. R. Co., 110 Ky. 879; Sommers v. Boyd, 48 Ohio State '648; In re Ailman, 17 R. I. 362; 22 Atlantic 279.</p> <p>6. An executor may be sued in his representative capacity in this State, although appoined and qualified in another State. Augusta v. Kimball, 41 L. R. A. 467; Hussey v. Sargent, 116 Ky. 53; In re Ailman, 17 R. I. 362; 22 Atlantic 279.</p> <p>POINTS AMD AUTHORITIES.</p> <p>1. Property sought to be taxed not withis the territorial jurisdiction of Kentucky, or therein owned by a person residing in Kentucky in the capacity in which it is sought to tax him. State Tax Foreign Held Bonds, lBWjall. 300; P. W.W. & C. Ry. Co. v. Com., 66 Pa. St. 3; Union iRefrig. Co. v. Ky., 199 U. S. 150; L. & O. Ferry Co. v. Ky., 188 U. S. 513; 'Story Conf. Laws, Sec. 550; Ky. Statutes, Secs. 4020, 4058; Ohio Statutes, Secs. 2731,_ 2734, 2735; Rhode Island Statutes, Sec. 12; Indiana Act of 1895; Anthony v. Caswell, Trustee, 1 Atl. R. 290; Schmidt, Tr. v. Fealey, Rec’r., 142 Ind. 150, 3i7 L. R. A. 412.</p> <p>2. Situs of intangible property. Adams Express Co. cases, 165 U. S. 194; Higgins v. Com., &c., 103 S. W. 306, 31 R. 653; Baldwin v. Shine, 84 Ky. 502, 8 R. 496; Spalding v. Com., 85 Ky. 141, 10 R. 714; Norton’s Ex’or v. City of Louisville, 118 Ky. 836, 26 R. 846.</p> <p>•3. Holding as executor is not as “owner” of the trust property. People v. Pullman, 119 N. Y. 137, 7 L. R. A. 407; Turner v. Cross, 83 Tex. 218, 15 L. R. A. 262; Sec. 11, Art. 5, Ch. 92, Gen. Statutes. Secs. 4022, 4058, Ky. Stats.</p> <p>4. Personal property is not given taxable situs where held by an officer or one who is under the contro} of a court of foreign jurisdiction. An executor is such an officer and has official residence in the territorial jurisdiction in which appointed. Bonaparte v. State, 63 Md. 465; 'Baldwin v. County Comr’s, 85 Md. 145 (36 Atl. 764); Secs. 109,' 116, Gray Limitation of Taxing Power; Youtsey v. Com., 110 Ky. 555; Schmidt v. Fealey, 148 Ind. 150, 37 L. R. A. 442; Gallup v. Schmidt, 154 Ind. 196, 54 N. E. 384 (56 N. E. 443); Lewis v. Chester Co., 60 Pa. St. 325; People v. Coleman, et al., 119 N. Y. 137, 23 N. E. 488; Anthony v. Caswell (R. I.), 1 Atl. 290; Hawk v. Bonn, Adm’r., 6th 'Ohio C. C. 452; Goodsite v. Lane, 139 Fed. 593; Band v. Pittsfield, 70 ¡NT. H. 530 (49, Atl. 88); Secs. 3878, 3879, 3880, Kentucky Statutes; Sec. 65, et seq. Civil Code; Hopper v. Hopper, 125 N. Y. 400; 12 L. R. A. 237; Fidelity &e., Co. v. Freeman, 109 Fed. 8,57; Hathaway v. Weeks, 34 Mich. 237; Fletcher’s Adm’r v. Sanders, &c., 7 Dana 345; Thumb v. Gresham, 2 Mete. 306; Manion’s Adm’r v. Titsworth, 18 B. M. 595; L. & N. v. Schumaker, 112 Ky. p. 434; 21 R. 803.</p> <p>5. “Domicile,” “Residence,” as affecting official residence. Sec. 732 Civil Code; Dicey Conf. Laws 95; Bergner, &c. v. Brewing Co., 172 Mass. 154; L. & N. v. Kimbrough, 74 S. W. 227, 24 R. 2409.</p>

<p>CASE 20. — ACTION BY W. T. BELL AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. FOR INJURY BY FIRES. —</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>POINTS DISCUSSED- AND AUTHORITIES CITED.</p> <p>1. The -petition sought to- recover damages to plaintiff’s timber occasioned, by fires alleged to have -been set by defendant’s locomotives on the--day of the Spring of the years 1902 to 1906 inclusive. IWPien 1ihe defendant ruled- plaintiff to fill the blanks and show the dates of the several fires complained of, plaintiff answered that he was not able to furnish the dates. Even as late as tli-e -day -before he testified he filed an amended petition in which he repeated his -allegation of -the dates in blank. Nevertheless, on the trial of t-he case -he testified very glibly t-o- the dates of the fires. Thereupon- the defendant moved the court -to- discharge the jury, land continue the case, for the reason that the plaintiff having failed -and re-fused to fix the d-ates -of the fires, defendant had not been able to investigate the facts. The plaintiff thereupon announced that he would not claim that the -defendant was liable on account of any defect in its spark arresters, or on account of any improper handling of its engine, but wouldi only rely upon the condition of its right of way. The court then overruled its moticn f-or a continuance. We think this was clearly prejudicial error. Defendant was as much entitled to have the dates fixed in order that it anight investigate 'as to whether or not its right of way was reasonably free from combustible materials on the dates -the fires were claimed by plaintiff to have been set, as it was entitled to have time to investigate as to the cond-itiion of its spark -arresters, and as to the manner its -engines were operated. Abbott’,s Trial Brief, see. 11, p. 11; See. 21, p. 25; Child's v. Heaton, 11 Iowa 271; K. C. R. Co. v. Carey, 5 R. 512; Langd'on-Creasy Co v. Rouse, 24 R. 2095. 72 S. W. 1113; Gonring v. R. Co., 47 S. W. 18; Chandler’s Ad-m’r v. Busih, 22 R. 993; Keh-oe v. Com., 28 R. 35; L. & N. R. Co. v. H-arned, 23 R. 1651; Owensboro City R. Co. v. Allen, decided March 10, 1908.</p> <p>2. Defendant was entitled to a continuance because of surprise in that -plaintiff testified to the d-ates of the fires although he had re-spond-ed to -defendant’s rule against him to fix the dates, that he was unable to do so. L. & N.„R. Co. v. Bickel, 17 R. 107.</p> <p>3. The instructions given the jury over defendant’s objection, were erroneous (Sec. 790 Ky. Stats.). Jolley v. Hardeman, 36 S. E. 952; Wiilliams v. Southern. Ry., 26 S. E. 32; Beazley v. Linehan Transfer Co., 50 S. W. 87; Trustees v. City of Flemingsburg, 17 R. 445.</p> <p>4. The court should have given instruction B. iasked by defendant.</p> <p>5. The damages are excessive in view of the guessing and unsatisfactory testimony as to the amount of damage sustained by plaintiff, and on account of the fires.</p> <p>REVIEW.</p> <p>1. Appellant was not taken hy surprise and prevented from investigating the fires by reason of appellee’s failure to give the exact 'dates before he went upon the witness stand, because its depot agent, who gave his deposition two weeks before the trial stated that he was on the ground at the time of the fire and tiiiat the section foreman and crew were there at the time of the fire. This gave counsel for appellant ample time and opportunity to investigate the fire had they not known the dates before. But the record in the case of Howk against the L. &. N. R. R. Co., shows that counsel for 'appellant did in fact, know the date long before its said agent gave his deposition. Appellant’s section foreman, O’Bryan testified upon the witness stand that he and ih'is crew were present at the 1906 fire.</p> <p>2. There was no error in the instructions.</p> <p>3. The verdict is amply sustained by the evidence. In conclusion we submit that upon the trial appellants’ rights were carefully guarded by the trial court, and it has no ground on which to complain of the result.</p> <p>Wle ask an affirmance of the judgment.</p>

<p>Trusts — Management of Trust Estate — Sales—Reinvestment— “Real Estate. — Under Civ. Code Prac. Sec. 492, -subsec. 1, providing that no sale shall be ordered if forbidden -by the trust deed, and sec. 493, subsec. 5, and Ky. St. Sec. 4706, requiring the court ordering a sale of trust lands- to retain control of the fund- realized by the isale, until the same is invested in “real estate,” and authorizing the investment of funds in “real estate,” the court m-ay -order the sale of -real estate in Kentucky conveyed to a trustee with power to sell and ■reinvest in .any -property -in Kentucky, and may permit a reinvestment of the proceeds in real estate in -a .sister state; the words “real estate” not being limited to- real- estate in Kentucky.</p>

<p>1. Infants* — Process—Service.—Where an infant’s father was dead, and his mother, who was also his statutory guardian, had custody and control of him, he was properly made a party to ia partition suit fay service of process on the mother as such guardian, as provided by Civ. Code P'rac. Sec. 52.</p> <p>2. Depositions — Manner of Taking — 'Interrogatories—Notice— Statutes. — Civ. Code Prac. Sec. 574, only requires depositions to be taken on interrogatories when all the parties against whom the deposition is to be read have 'been constructively summoned and have not appeared,' or are under disability other than coverture or infancy and coverture combined.</p> <p>8. Partition — Nature of Property — Indivisibility—Evidence.— Where, in a suit for partition, a witness testified that in bis opinion the land could not be divided without materially impairing its value, that it was located in. the Tennessee river and was an island during high water and a peninsula during low water, the court properly found that it could not be divided without materially impairing its value.</p> <p>4. Infants — Actions—Appeal—Clerical Misprision. — Civ. Code Prac. Sec. 517, subsec. 2, provides that it shall be deemed a clerical misprision to render judgment against an infant until a defense or report is filed as required by section 36, subsec. 3, and. section 516 declares that a misprision of the clerk shall not be ground for an appeal until it shall have been acted upon, by the circuit court. Held, that a decree in partition could not be reversed on appeal because no defense was made by the guardian- of an infant party or -any report filed showing that, after careful examination, the guardian was unable to make a defense as provided by section 36, sub-see. 3; it not appearing that such objection was urged in the circuit court.</p> <p>5 Infants — Sale of Land Under Order of Court — Objections— Report of Sale — Exception.—An objection to a decree in partition that na defense was made by the guardian of an infant party, nor anyi report filed, showing that after examination of the case the guardian was unable to make a defense, could properly be raised' in the circuit court, -by an exception to the report -of the sale.</p> <p>6. Partition — Sale—Time.—The chancellor may set a commissioner’s sale of property in partition for the first day of the next regular term of the circuit court.</p> <p>7. Partition — Sale—T-ekms—Disclosure of Lease. — 'Where land sought to be partitioned was subject to a lease, the commissioner properly announced that the sale would be subject to the lease, though the decree made no reference thereto.</p> <p>8. Appeal and Error — Disposition of Cause — Proceedings in Lower Court. — Where a partition decree was entered without 'a defense on the part of the guardian of -an infant party or a report that the guardian wias unable to make' a defense, as required by Civ. Code Prac. Sec. 36, subsec. 3, such objection could he raised in a trial court after the decree and order confirming the sale had been affirmed on appeal.</p>

<p>1. Taxation — Inheritance Tax — Time for Filing Appraisement.— Ky. St. 1909 Sec. 3855, making it the duty of a personal representative of a decedent to return an inventory within three months after qualification as such, should be read in ciomnection with the inheritance tax law (Ky. St. 1909, Secs. 4281a-4281s, inch [Russell’s St. Secs. 6117-6131]), and three months iafter qualification of a personal representative is a reasonable time within which to require a statement of the chameter and value of the property subject to an inheritance tax, and the names of the distributees or devisees to be filed, and, Sf the statement is not filed within such time, the county court may take such proceeding by rule as may be necessary to compel the statement to be filed, and this independent of the power conferred on the court by section 4281k, authorizing it to have an appraisement of the estate made at any time after three months from decedent’s death, or before that time if necessary to secure payment of the tax.</p> <p>2. Taxation — Inheritance Tax — -Persons Entitled to 'Collect— Revenue Agent. — Under Ky. St. 1909, Sec. 4263, making it the . duty of a revenue agent when directed by the state auditor to institute proceedings against any delinquent officer or -other person to recover money due the Commonwealth and section 4267, making it the duty of the auditor to prosecute the -collection of back taxes, etc., or other demands due the Commonwealth, and authorizing him to direct revenue agents to do so, a revenue agent may, when directed by the auditor, institute such proceedings as may be necessary to collect an -inheritance tax and! collect the- penalties allowed for the collection of other -delinquent taxes, notwithstanding it wou-l-d seem to follow from the fact that -sections 4241 and 4260 limit the authority of a revenue agent to causing to be listed for taxation property omitted by the assessors, 'board of -supervisors, board of valuation, or railroad commission, that neither of such officers or boards have 'any duties to perform ¡in connection with the appraisement of property for the purpose of -an inheritance tax, and that the revenue agent -could not institute any proceeding for the collection of an inheritance tax.</p> <p>3. 'Taxation — Inheritance Tax — Time When Payable. — The inheritance tax law Ky. St. 1909, Sec. 4281b, provides for the payment of an inheritance tax upon the estates therein described, or its -postponement by the execution of a bond, Section 4281d provides that all taxes imposed by that act, unless otherwise provided for, shall be due 'at decedent’s death, and, if paid within 18 months- no interest shall he charged, but if not so paid, 10 per cent, interest -shall be charged from decedent’s death, and that, where th-e personal representative shall not pay the tax within such 18 months, he shall be -required to give bond -as prescribed by section i4281b. Section 4281e -provides that the penalty of 10 per cent, shall not be -charged where, because -o-f claims against the estate, necessary litigation or other unavoidable cause, the estate cannot -be settled. -Section 4281f provides that when u personal representative ‘pays or delivers to the 'distributee or devisee any estate subject to the tax, he must retain or collect the amount of such tax. Section 4281h requires the personal representative to pay over to the sheriff or collector within 30 days any sum retained or collected by him as an inheritance tax. Held, that unless a part of the estate has been paid out or delivered, thereby maiking the tax due 30 days thereafter, or unless it becomes due under -section 4281b, the 'act 'does not compel payment -of the tax until 18 months -after decedent’s death, and that its payment' may be postponed ■beyond 18 months if the conditions described in sections 4281b or 4281© exist, and that, even -if those sections are not applicable, its payment may be postponed for more than 18 months by the -execution of a bond, as provided by section 4281d, but that, if such bond is executed, the tax will bear 10 per cent, interest from decedent’s death-.</p> <p>4. Parties — Misjoinder -of Parties Plaintiff — Demurrer—Motion to Strike. — The joinder of a revenue agent with the county attorney in a proceeding to appraise an estate and collect an. inheritance tax -did ¡not render the petition bad on demurrer, though ia motion to strike the name of the revenue agent would -have been proper.</p>

<p>1. Indictment an(| Information — Duplicity.—An indictment under Ky. St. 1909, Sec. 1358a charging that accused had in his possession, money belonging to the- -different convicts in the state penitentiary, received by him- as- prison -clerk, -and that he fraudulently and without the consent of the owners of the f-und converted to his own use a isum of the value of more than $20, cannot he held to attempt -to -state more than one offense, without properly setting forth one, on the theory that the embezzlement of the money of each convict was .a separate offense, but states but one offense; the fund belonging to the convicts in common.</p> <p>2. Embezzlement — Indictment—Sufficiency.—It was. not necessary for an indictment charging the prison .cle-rk with the- -embezzlement of money belonging to the different convicts in -tih-e -state penitentiary to name the convicts w-h-ose money had been deposited with him.</p> <p>3. Embezzlement — -Defenses.—On a charge of embezzlement against the prisQn clerk of money belonging to the different convicts- in the state -penitentiary, it is- immaterial that the convicts- did -not voluntarily place their money in- the h-ands of the clerk, but -were required to 'do so by the prison commissioners.</p> <p>4. Criminal' Law — Appeal—Review—Ruling on Motion for New Trial. — The Court of Appeals cannot consider ian affidavit filed on a motion for new trial to show misconduct of the jury, as a ruling of the lower court on motion for new trial is under the Code not subject to exception.</p>

CASE 25. — SUIT BY JAMES M. SAFFELL, AS GUARDIAN, AND ANOTHER AGAINST JAMES M. SAFFELL, JR., AND OTHERS FOR THE SALE OF THE INFANT DEFENDANTS’ LAND — Appeal from Franklin Circuit Court. Sale of land set aside and.purchaser, Hughes, appeals. — We think we iaire warranted in concluding: 1.

<p>1. Indictment and Information — Essentials—Description of Offense. — The indictment ¡sufficiently charges a statutory offense by following the language of the statute if the statute fully describes the offense charged; but, if not, the indictment must ¡allege the facts which constitute the offense so that accused may know of w.hat he is charged.</p> <p>2. Perjury — Indictment—Allegations—Knowledge of Falsity of Testimony. — Under Ky. St. 1909, Sec. 1174, imposing a penalty for willfully and knowingly swearing or giving any evidence of that which is false, ¡an indictment for perjury charging that, in ¡a prosecution of ¡accused for unlawfully pointing ¡a deadly ¡weapon at ¡another, he falsely, knowingly, and willfully testified that he did not point a 'deadly weapon, at such other, when he in fact did so, was bad on demurrer for not alleging ¡that accused knew when testifying that he did not point a deadly weapon at such other that he was testifying falsely; knowledge of the falsity of the testimony being essential.</p> <p>3. Perjury — Indictment—Sufficiency.—In a prosecution under Ky. St. 1909, Sec. 1174, imposing a penalty upon any one who shall willfully and knowingly swear to that which is false, an indictment for perjury for falsely swearing, in a prosecution of accused for pointing a deadly weapon at another, that he did not point a deadly weapon at another, w.as defective for not .alleging that the deadly weapon pointed was a pistol; there ■being no- offense, under the statute, unless the weapon pointed was a gun ¡or pistol.</p> <p>4. Criminal Law — Former Jeopardy — Identity of Issues.— Where, in a prosecution under an indictment charging accused with swearing falsely in a prosecution in the circuit court for pointing a pistol at another, the indictment was dismissed and the ease re-referred to the grand jury after it was discovered early in the trial that the swearing was done in a trial before the county court, accused was not put in jeopardy by the partial trial under the first indictment so as to bar a conviction under a second indictment charging him with, such false swearing in a prosecution in the county court, since proof of the facts alleged in the second indictment would have constituted a fatal variance fnoim the allegations of the first indictment.</p>

<p>1. Divorce — Disposition of Property — Restoration of Property conveyed in Consideration of Marriage. — That a wife rendered valuable services to her husband, and that she practiced every kind of economy is not of itself sufficient to show a valuable consideration for >a conveyance by him to-her but it must also appear that such services were the moving cause of the conveyance to defeat a proceeding by the- husband under Civ. Code Frac. Sec. 425, after divorce by the wife, to have restored to him the property' as having -been conveyed by him to his wife in consideration, or by reason of the marriage.</p> <p>2. Divorce — Disposition of Property — Restoration.—Where money given to a wife by her mother went into her husband’s-property, and he -received the benefit thereof, and her savings, also went into his property, in a proceeding by the husband under Civ. Code Prac. 425, after divorce by the wife, to have restored to him property conveyed to his -wife in domsideration ,-of the marriage, the chiaaroellor should do so only after a balancing of the equities between them.</p>

<p>1. Accord and Satisfaction — Part Payment of Undisputed Claim • — Effect.-—-Where one owes a fixed sum, a payment or tender of :a less sum-, accompanied by the statement that it is in full, .accepted by the creditor, does mot defeat a -collection of the -balance; there being no -consideration for the surrender of -the balance.</p> <p>2. Accord and. Satisfaction — -Part Payment of Disputed Claim— Effect. — -Where the -parties do not agree on the amount of the indebtedness, and the debtor tenders ;a less sum th-an that claimed 'by the creditor in -satisfaction and the creditor accepts it, the obligation is discharged.</p> <p>3. Accord and Satisfaction — 'Term® of Tender. — The right to name the terms on which a tender by a debtor- in -payment of a disputed claim shall be accepted rests alone ¡with the debtor, and the creditor must either accept the tender with the conditions .attached -or reject it.</p> <p>4. Accord and Satisfaction — Part Payment of Disputed Claim— Effect. — A material-man sold lumber to a contractor subject to inspection- and acceptance by the engineer of the owner. A part of the lumber delivered was rejected by the engineer after the same had been put into the building, and the -contractor threw the same aside, and notified th-e material-man of the rejection. A dispute arose as -to the liability iof the contractor for the rejected -lumber, and he -sent a -check to . the materialman for the amount which he 'claimed was due in settlement. The materialman accepted the check. Held, that the payment and acceptance was an acciord ¡and satisfaction.</p>

CASE 29 — ACTION BY JAMES H. KELLY AGAINST THE ADAMS EXPRESS CO. FOR NEGLEGENTLY CAUSING THE DEATH OF A JACK IN SHIPMENT. — Appeal from Warren Circuit Court. Judgment for defendant, plaintiff appeals. — SUMMARY AND AUTHORITIES. 1.

<p>CASE 30 — ACTION BY GEORGE MOSER AGAINST THE CONNECTICUT MUTUAL LIFE INSURANCE CO. OF HARTFORD, CONN., IN WHICH MORGAN D. AND CATHERINE McINERNEY INTERVENE. —</p> <p>Appeal from Kenton Circuit Court, Common Law and Equity Division.</p> <p>Judgment for interveners, plaintiff appeals. —</p> <p>AUTHORITIES CITED.</p> <p>1. The 'assignment of the insurance policy being the voluntary act of the beneficiary, the case of Townsend’s Assignee v. Townsend, 32 Ky. Law Rep. 263; 16 L. R. A. (N. S.), 316. See note 16 L. R. A. (N. S.) p. 316-326; 105 S. W. 937; does not apply.</p> <p>2. Money to become due may he assigned Lutter & Voss, &c. v. Grosse, &c., 26 Ky. Law Rep., p. 585; Vol. 5 Sup. Ency. of Law, No. 1027, (page 144).</p> <p>3. An interest in a life insurance policy may he assigned. Planter’s State Bank v. Willingham’s Assignee, 111 Ky. 64-72.</p> <p>We ¡submit that it is we’l settled in this state that where a policy ¡has in it an optional provision for a oash surrender value, this is a personal privilege which must he exercised' Iby the person taking out the policy and is not ¡an ¡assignable right. 'Townsend v. Townsend, 32 Ky. L. R. 263; Sugden on Powers, 214-224.</p> <p>CLASSIFICATION OF AUTHORITIES.</p> <p>1. The beneficiary, Catherine Mclnerney, became vested with all interest in the policy and the money to become due under it, immediately upon its issual, and she could not he divested of it without her consent. General statutes, 1888, Appendix pp. 40 and 41, sections 30, 31 and 32; Hopkins v. Hopkins, 92 Kentucky, 324; Robinson v. Duval, 79 Kentucky 83; Townsend’s Assignee v. Townsend, 32 Kentucky Law Reporter, 266.</p> <p>2. No legal assignment of the policy could be made. Joyce on Insurance, Sections 2328; Unity Mutual Insurance Association v. Dugan, &c., 118 Mass. 219; Townsend’s Assignee v. Townsend, supra.</p> <p>3. The power to surrender the policy at the intervals provided for in the policy is one personal to the insured and such power could not be delegated, but if exercised at all must he by him in person and in the way the policy prescribed. Sugden on Powers, pp. 179-180, 214-224. Townsend v. Townsend, supra.</p>

CASE 31 — ACTION BY GEORGE NOLAN AGAINST THE LOUISVILLE ATHLETIC CLUB TO ENJOIN A PRIZE FIGHT. — Appeal from Jefferson Circuit Court (Chancery Branch, First Division). Judgment for plaintiff, defendants appeal. — The sole question in this case is Whether or not under the evidence of the case the exhibition contemplated by appellants is a prize fight within the meaning of the law.

CASE 32. — ACTION BY PETER EGGNER AGAINST BEN HOVEKAMP AND OTHERS. — Appeal from McCracken Circuit Court. Judgment for defendants, plaintiff appeals — AUTHORITIES CITED. 1.

<p>CASE 33. — APPLICATION BY JOHN G. ADAMS, EXECUTOR OF REBECCA POWERS, DECEASED, FOR AN ORDER TO SHOW CAUSE WHY JOSEPH READNOUR, ADMINISTRATOR, WITH THE WILL ANNEXED, SHOULD NOT BE REMOVED AND PETITIONER TO QUALIFY AS EXECUTOR —</p> <p>Appeal from Kenton Circuit Court, Common Law and Equity Division.</p> <p>An order granting the relief asked in the County Court, was reversed on appeal to the Circuit Court from which petitioner appeals. —</p> <p>CITATION AND AUTHORITIES.</p> <p>Kentucky Statutes, Section 3890; Kentucky Statutes, Section 3897; Redfield’s Law of Surrogate Courts, page 140; Toler on Executors, Section 93.</p> <p>CLASSIFICATION OF AUTHORITIES.</p> <p>1. The county court of the county of a decedent’s residence has jurisdiction to grant administration. Kentucky Statutes, Sections 4849 and 3894.</p> <p>2. If the nominated executor fail to apply for administration at the second county court, administration may be granted to any person in the discretion of the court. Kentucky Statutes, Sections 3891, 3896 and 3897; Cyclopedia of Law and. Procedure, Vol. 18, page 81; Womack’s Adm’r v. Watson, 4 Ky. Law Rep., 907.</p> <p>3. If one having preference fail to apply for administration, at the second county court, from the death of the decedent, and administration is granted to another, such person can not be removed for the purpose of permitting the person who had preference to. qualify. After the second county court from the deeedent’s death removal can be made only for cause. Kentucky Statutes, Sections 3846 and 38-97; Young’s Adm’r v. L. & N. R. R. Co., 28 Ky. Law Rep. 451; Spayd’s Adm’r v. Brown, 31 Ky. Law Rep. 438.</p>

<p>1. Mines and Minerals — Grants of Minerals — Conservation.—In an action to quiet title to lands, in which plaintiff’s grantor had previously granted “all minerals” therein, the deeds granting the mineral rights, construed in connection with other evidence, showing the intention of the parties thereto, held to show that they did not intend to grant the right to the natural gas under the land.</p> <p>2. Mines and Minerals — Conveyance—Minerals Conveyed. — Even though deeds purporting to convey “all minerals” underlying the land, if they, in connection with the other evidence, showed that the parties did not contemplate a conveyance of the natural gas thereunder, the right to the gae did not pass.</p>

CASE 35. — ACTION BY THE BREATHITT COAL, IRON & LUMBER CO. AGAINST JOHN R. BOWLING TO RESTRAIN HIM FROM TRESPASSING ON THEIR LAND. — Appeal from Knott Circuit Court. Judgment for plaintiff, defendant appeals. — Grounds relied on by appellant: 1. Appellee, alleging it is the owner of the tract, it claims and in the actual possession of it, must show both title and possession beiore it can recover. 2.

<p>CASE 36. — ACTION BY PETER NACHAND V. CUMBERLAND TELEPHONE & TELEGRAPH CO. FOR TRIMMING TREES ON HIS LAND. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Judgment for defendant, plaintiff appeals. —</p> <p>' POINTS AND AUTHORITIES FOR APPELLANT.</p> <p>1. (a.) A party can deny that he executed a contract referring to land described in the petition, and then affirmatively plead, that the contract executed applies to another tract of land belonging to him. Civil Code, Section 13, Subsection 2; Norton v. Norton, 15 Ky. L. R. 72; S. C. 25 S. W. 750.</p> <p>(b.) While parol evidence can not be introduced to contradict or vary a contract it can be introduced to show the meaning of a contract when it is ambiguous. Payton v. Watson, Litt. Select Cases 37; Thacker v. Howell, 16 Ky. L. R. 134; Hall v. Conlee, 23 L. R. 177; Broom’s Common Law, Ninth Edition, page 576; Lawson oa Contracts, Second Edition, Section 389; Broom’s Legal Maxims, Seventh Eng. Edition, page 451; Rochester German Ins. Co. v. Peaslee-Gaulbert Co., 120 Ky. 752; Page on Contracts, Yol. II, Section 1217, page 1874.</p> <p>2. (a.) A party can deny that a contract applies to land described in the petition, and then can affirmatively plead that even if the contract applies to such land, that the defendant did not comply with the terms of the contract. Smith v. Dougherty, 119 Ky. 616; Bliss on Code Pleading, (2 & 3 Editions) Section 233; First National Bank v. Wisdom, 111 Ky. 139.</p> <p>(b.) Courts should never give peremptory instructions when there is 'any evidence, tending to sustain plaintiffs cause. Sharp V. Wlood, 21 Ky. L. R. 189; L. & N. Co. v. Peltier, 20 K. L. R. 169; Peltier v. L. & N. Co. 16 Ky. L. R. 501; Richards v. L. & N. R. Co. 20 Ky. L. R. 1478; Dick v. L. & N., 23 Ky. L. R. 1058.</p> <p>1. The court rightly struck from the reply of appellant the second and third 'paragraphs, which pleaded his construction of the written instrument.</p> <p>2. The instruction, to find .a verdict for appellees was rightly given.</p> <p>AUTHORITIES CITED.</p> <p>Royal Wheel Co. v. Dunbar, 25 Ky. L. R. 740; Wheeler v. Davis, 29 Ky. L. R. 730; Cravens v. Despaise, 25 Ky. L. R. 2018; Daylight Acetylene Gas Co. v. Hardesty &c., 112 S. W. 847; 'Yoss v. Shebeck, 25 Ky. L. R. 481; Harman v. Thompson, Ky. L. R. 183; Locke v. Lyon Medicine Co., 27 Ky. L. R. 1; Crockett’s Gdr. &c. y. Wallen, &c., 29 Ky. L. R. 1155.</p>

<p>1. Pleading — Reply—Failure to File — Effect.—Where lan amended answer and cross-petition were filed merely to make the pleadings conform to the proof, the fact that no reply was filed controverting their allegations of facts, merely tending to establish defendant’s contentions on the main issue, a reply having been filed to the first amended answer and cross-petition, did not entitle defendants to a judgment.</p> <p>2 Trusts — Creation—Real Estate. — A father conveyed land to the husband of his daughter, who built a house upon it and agreed to pay as a consideration a certain sum. The deed did not show that the land was conveyed in trust for the wife, and she did not olaimi it as her o<wn, and the husband alione assented ownership. At the time it was not unusual for the father to convey land to his son-in-law rather than to his daughter. . The wife’s brothers testified that it seemed to them that it was the intention of their father to provide a home for his daughter. Held, that the husband did not hold the land in trust for his wife.</p> <p>3. Husband an'd Wife — Wife’s Separate Property — Evidence as to Title. — That a grocery store was conducted in the name of the wife, and the bank account so kept, was sufficient to create a .presumption of ownership by her.</p>

<p>CASE 38. — ACTION BY THE COMMONWEALTH AGAINST W. H. SMALL & CO. TO RECOVER A FINE FOR A VIOLATION OF THE PURE FOOD LAW OF THE STATE.</p> <p>Appeal from Ohio Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>The Court’s instruction were erroneous.</p> <p>1. They did not limit the jury to the representations printed on the label or tag on the package.</p> <p>2. They did not require the jury to believe from the evidence, to the exclusion of a reasonable doubt that defendant unlawfully committed the offense.</p> <p>3. They did not require the jury to believe that the food product was adulterated within the meaning of Section 3608.</p> <p>4. The punishment for a violation of See. “1905a” is a fine not to exceed $100.00, or imprisonment for not more than 50 days or both fine and imprisonment. The Court directed the jury to fix defendant’s punishment, if guilty, “in a sum not less than $10.00, nor more than $100.00.” Which was contrary to law.</p> <p>5. The petition was not sufficient to support the verdict or judgment, the proceeding, being unauthorized, was void and defendant’s motion for judgment against the verdict notwithstanding the verdict for these reasons should have prevailed. Civil Code, Sec. 386.</p> <p>AUTHORITIES CITED. .</p> <p>Kentucky Statutes, 1903, Sec. 1905a; Statutes of Kentucky (Russell 1809) Sections 3606, 3607, 1608, and 3144; Criminal Code, Sec. 386; Hill v. Commonwealth, 17 Kentucky Rep. 1135.</p> <p>It cannot be seriously contended that this act of the Legislature is unconstitutional whatever. The Legislature certainly had the authority to enact this law for the protection of any and- all interests that it might affect. Here i-s a foreign corporation selling its products in this State, which products .-are not natural products at all, but an adulteration, a concoction, a mixture, manufactured more for gain 'and profit to the manufacturers than benefit arising to the consumers. It cannot be denied that a straight wheat and corn mixture would be beneficial as a stock food, but when this is adulterated with large quantities of corn cob meal and other cheap elements that -have no value whatever as a food and moreover are injurious to stock, it is time for this law to be enforced.</p>

<p>CASH 39. — ACTION BY THE CITIZENS' BANK OF SHELBY-VILLE AGAINST BEN L. BRUNER, SECRETARY OF STATE TO DETERMINE WHETHER THE BANK HAS THE RIGHT TO ESTABLISH ONE OR MORE BRANCHES. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>We submit that the right to operate a branch bank not being conferred by statute, it is prohibited by implication.</p> <p>AUTHORITIES CITED.</p> <p>Ky. Statutes Sec. 538, 567, 550 579, 582, 593, 619, 604, 587, Bank v. Tate, 122 N. C. 313; People v. Oakland County Bank, 1 Doug. (Mich.) 282; Zane on Banks and Banking, Sec. 24; Sections 5136, 5154, 5155, Compiled Statutes United States; National Bank of Genessee v. Whitney, 24-442; Logan County Nat. Bank v. Townsend, 139 U. S. 67; Billings v. Providence Bank, 4 Peters 514; Richmond R. R. Co. v. Lonesa R. R. Co., 13 How 71; Pennock v. Cos, 23 How 117; Proprietors of Charles River Bridge v. Proprietors Wlarren Bridge, 11 Pet. 420; (11:773 L. Ed.)</p> <p>AUTHORITIES CITED.</p> <p>Sec. 616, Kentucky Statutes; Sections 539-657 Kentucky Statutes; 'Citizens’ Bank v. Tatell, 22nd S. C. 313; William Schallengerger &c., 4 Parte, 96 U. ,S. 369; Morse on Banking, Vol. 1, See. 7; Baltimore & Ohio R. R. Co., v. Koontz, 104 U. S. 518; Thompson on Corporations, Vol. 1, Section 691; Merrick v. Santvoord, 34 N. Y. 208.</p>

<p>Negligence — Condition and Use of Land, Building and Other Structures — Places Attractive to 'Children. — Defendant coal com-any, which operated a coal elevator, maintained a coal chute on a city street; a ladder which was perfectly safe for the purposes for which it was being used extended to the top of the chute. PlaintiH’s infant son, about 10 years of age, climbed the ladder with other children, went upon the building where the chute was erected, walked to the mouth of it, and while looking down the hole therein fell in and was killed. Held, that the infant being a trespasser, 'and there being mo defect in the ladder and chute, defendant was not liable.</p>

<p>CASE 41 — ACTION BY WILLIAM STEVENS AND ANOTHER AGAINST THE CENTRAL KENTUCKY NATURAL GAS CO. —</p> <p>Appeal from. Montgomery Circuit Court.</p> <p>Judgment for plaintiffs, defendant appeals. —</p> <p>>W.e find no case saying in direct terms that title to land may be tried in a comity other than the one in which the land is located, when the question arises incidentially to a question where, primarily, the subject matter is within the jurisdiction of that county. But we find numerous instances where it is? dlone and tihe rule is thereby established, that where the primary subject matter of the action is within the jurisdiction of a certain county, it has jurisdicion over the whole of the secondary subject matter. An instance of this kind is in the case of attachment. Dawkins v. Hough, 112 Ky. 855. Also in the case of an enforcement of contract concerning land. Perkins v. Henderson, 94 Ky. 207; Bullitt v. Ky. Land Co. 99 Ky. 324.</p> <p>POINTS AN'D AUTHORITIES</p> <p>1. A cause of action to quiet title, the jurisdiction of which is local, cannot he maintained as a counterclaim and crosspetition in a county other than that in which the land lies. Ky. Statutes, Sec. 11; Civil Code, Sec. 62; Bennett v. McCrocklin, 3 Met. 322; Hurst v. Hamilton, 19 Ky. L. R. 1753.</p> <p>2. The suggestion is made that the third paragraph of appellant’s (defendant’s) answer is not .strictly an action to quiet title to land; if so, then this appeal must be dismissed, because the judgment is for less than two hundred dollars.</p>

<p>1. Charities — Purposes of Gift — “Public Charity.” — A testamentary trust to establish and maintain an orphan’s asylum for’ the maintenance and education of the orphan children under 17 years of age and members of a secret society is a “public charity,” and valid, -within Ky. St. Sec. 317, relating to gifts to charity.</p> <p>2. Charities — 'Gifts—Certainty.—A testamentary trust to establish and maintain an orphans’ asylum for the maintenance and education of the poor orphan children under 17 years of age of members of a secret society is not void for indefiniteness, and the beneficiaries 'are named with sufficient certainty.</p> <p>3. Trusts — Enforcement—Appointment of Trustees — Jurisdiction of Co-urt. Ky. St. Sec. 318, providing that no trust shall be defeated for want of a trustee, but equity may uphold the same by appointing trustees, etc., is but declaratory of the rule of equity on the subject, and, where a trust is once properly created, the incompetency, disability, or nonappointment of a trustee will not defeat it, but equity will administer and enforce the trust, and, if necessary appoint trustees.</p> <p>4. Perpetuities — What Law Governs. — A charitable trust will be administered .'according to the law of the donur’s domicile, and the fact that it is to he administered abroad does not make the gift void, when it does not appear that it is not a valid charity in the foreign country, and a bequest to a charity or on a trust to be administered in another state, when lawful in the place of the testator’s domicile, may be sustained in the state in which the fund is to be administered, though it contravenes the statute of the state against perpetuities, since it is not the policy iof one State to interdict perpetuities in other states.</p> <p>5. Charities — Administration of Charitable Trusts — Jurisdiction of Courts. — A testator who resided in Kentucky, devised his property, .situated in Kentucky, in trust to establish and maintain in a sister state an orphans’ asylum for the nurture and education of orphans under the age of 17 years of members of a secret society of the sister state. Held, that courts of equity of Kentucky would administer the trust in Kentucky, and require the trustee in Kentucky to protect the trust by paying the income over to a trustee appointed by the sister state, on it being found necessary to have two trustees to carry the trust into effect.</p>

CASE 43. — ACTION BY LOUISA K. THOMAS AGAINST J. W. GAYLE & CO. — Appeal from Franklin Circuit Court. Judgment for defendants, plaintiff appeals. — Our contention is “that the right to remove trade fixtures is waived by taking a new lease after the expiriaition of that under which they were added to the premises. The lease being isilent as to the fixtures and binding on the tenant to deliver the premises in as good condition as when received.

<p>CASE 44. — ACTION BY AMANDA WINBURN AGAINST AMANDA WITT AND OTHERS TO PARTITION LAND.—</p> <p>Appeal from Estill Circuit Court.</p> <p>Judgment for defendants, plaintiff appeals. —</p>

CASE 45. — ACTION BY JOHN ANDERSON AGAINST THE LOUISVILLE & NASHVILLE RAILROAD CO. FOR DAMAGES FOR BEING EJECTED FROM ITS TRAIN. — Appeal from Knox Circuit Court. Judgment for defendant, plaintiff appeals. — POINTS AND AUTHORITIES. I. A passenger ion a railr-oad train who has lost or misplaced his ticket, must be given a reasonable time wi-thin- whi-ch to find it, and what is a -reasonable time is a qu'estion for the jury. Hayes v. N. y. Central R. Co., 18 Am. and Eng.

<p>CASE 46 — ACTION BY THE BALLARD COUNTY BANK AGAINST THE MARYLAND CASUALTY CO. —</p> <p>Appeal from Ballard Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>AUTHORITIES CITED.</p> <p>Kelley v. Bradford', 6 Ky. 317; Treplett v. Gill, 30 Ky. 432; Hunter v. Miller, 45 Ky. 612; Montgomery v. Firemen’s Ins. Co., 55 Ky. 427; Dunias v. Northwestern Nat. Ins. Co., 40 L. R. A. 358; Brill v. Metropolitan Surety C'o., 113 No. 4, N. Y. Supplement, Jan. Number 476; Fidelity & Guaranty Co. of N. Y. v. Sanders, 70 N. E. Rep. 167; Mt. Eden Bank v. Ocean Accident & Guaranty Oo., 29 Rep. 765.</p> <p>SUMMARY.</p> <p>1. We contend thiait a failure to except to the judgment of the court, or to the conclusions of law and fact found ¡by the court, leaves nothing for this court to decide (except as to whether the pleadings support the judgment.</p> <p>2. We contend that Hahs, the assistant cashier, was a tool in the hands of the burglars and by the use of which they entered the safe.</p> <p>3. That the safe was entered by the use of tools directly applied thereupon in this: that the use of the lock and lever was the use of tools, within the meaning of the policy, and the fact that the tools used were those made and designated £cr opening the 'safe can, make no difference.</p> <p>This judgment sh’ould be affirmed, for which w¡e respectfully pray.</p> <p>AUTHORITIES.</p> <p>Civil Code, Sec. 332; American Mutual Ai'd Society v. Bronger, 91 Ky. 406; Beeler vs. Sandiage, 49 S. IWl 533, 20 Ky. Law Rep, 1581; Day v. Adams, 50 S. W. 2, 20 Ky. Law Rep. 1827; Providence Washington Insurance Company vs. Paducah Towing Company, 89 S. W. 722; Roberon Criminal Law, Vol. 1, See. 315; Orient Ins. Co. &c. v. Clark, 59 S. W. 863.</p>

<p>Corporations — Corporate Existence — Extension.—While ■ under Ky. St. 1909, Sees. 570, 574, authorizing a corporation formed under prior statutes to avail itself of the provisions of the act, by filing its acceptance of the provisions of the constitution with the Secretary of State, and ¡authorizing the amendment of its articles in the sam,e manner as by corporations organized under the act and section 559, authorizing any corporation, by the written ¡consent of the owners cf twoi-thirdls of its capital stock, to amend its articles of incorporation', a corporation could amend its articles of incorporation during its corporate life under section 561, providing that, when -any corporation expires by the terms of its articles of incorporation, it may thereafter be continued only ■for the purpose of closing its business, it could not amend its articles after the term of its incorporation had .expired, .so as to extend its corporate life.</p>

CASE 48. — SUIT BY THE BOARD OF EDUCATION FOR CHRISTIAN COUNTY AGAINST CHARLES O. PROWSE AND THE FISCAL COURT OF THE COUNTY, FOR A MANDAMUS TO LEVY A SCHOOL TAX. — Appeal from Christian Circuit Court. Prom au order granting the writ, defendants appeal. — 1.

<p>CASE 49 - -ACTION BETWEEN THE UNITED STATES FIDELITY & GUARANTY CO. AND GEORGE L. DOUGLAS’ TRUSTEE AND BETWEEN WILLIAM D. CARTER, AND OTHERS AND ELLERBE W. CARTER AND OTHERS. —</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Prom the judgment plaintiffs appeal and P. M. Clark substituted trustee, prosecutes a cross appeal.</p> <p>AUTHORITIES.</p> <p>' 1. Whiait is the rule against Perpetuities? 2 Blackstone’s Cioimmentaries, 174; Williams on Real Property, 318; 1 Perry on Trusts, Sec. 381 (5th Ed.); 2 Underhill on Wlills, Sec. 883. Moore’s Truste.es v. Howe’s Heirs, 4 T. B. Mion. 199, 201; Ludwig v. Coombs, 1 Metcalf, 128, 132; Cattlin v. Brown, 11 Hare, 372, 375; Coleman v. Coleman, 23 Ky. Law Rep. 1476 Winslow v. Mills, 32 N, E. 353 (Mass.); Brown v. Columbia, 123 Ky. 775; Fowler v. Ingersiall, 28 N. E. 471 (N. Y.); Sehettler v. Smith, 41 N. Y. 329; Caldwell v. Palmer, 1 Clark & Finnel, 372; Proprietors of Battle Square Church v. Grant, 69 Mass. 125; .Stevens v. Evans, 30 Ind. 39; Moody ,v. Walker, 3 Pike U47; Ackerman v. Ackerman, 14 N. J. Eq. 25; Howe v. Howe, 38 N. E. 1083; De-Wiolf v. Lawson, 61 Wis. 561.</p> <p>2. Common law rule against perpetuities applicable in Kentucky. Moore’s Trustees v. Howe’s Heirs, 4 T. B. Mon. 199, 201; Ludwig v. Coombs, 1 Metcalf, 128, 132.</p> <p>3. The rule against perpetuities applies to “personal” as well as “real” estate. Moore’s Trustees v. Howe’s Heirs, 4 T. B. Mon. 199, 201; Ludwig v. Coombs, 1 Metcalf, 128, 132. Coleman v. Coleman, 23 K. L. R. 1476; Hubley v. Long, 2 Grant Oais. (Pa.) 268; Hall v. Hall, 123 Mass. 120, 124.</p> <p>4. Alleged power of sale in trustee does not relieve the will from the operation of -the rule against perpetuities. Winslow v. Mills, 32 N. E. 353 (Mass.); Fowler v. Ingersoll, 28 N. E. 471 (New York).</p> <p>5. In contemplation of law Mrs. Carter might have had children born after the death of her father, the testator. Brown >. Columbia Trust Co., 123 Ky. 775, 781; Mlay v. Walters, 30 K. L. R. 59, and the authorities quoted supra and infra.</p> <p>6. The provisions of the codicil relating to grand'children of the testator contemplates grandchildren born after as well as befare his death. 'Sims v. Skinner’s Exons., 118 Ky. 573; Adams v. Adams, 20 K. L. R. 655; Turner v. Patterson, 35 Ky. 293; Lynn v. Hall, 101 Ky. 739; Walter v. Crutcher,, 54 Ky. 2; Goodrich v. Schaefer, 24 K. L. R. 219; Webb v. Holmes, 42 Ky. 404; Hall v. Hall, 124 Mass. 120.</p> <p>7. Distinction between a ‘severable” devise and devis.e to a class. Wilkinson v. Duncan, 38 Bea/v. Ill (1861); -Greenwood v. Roberts, 15 Beav. 92 (1851); Cattlin v. Brown, 11 Hare, 372 (1853).</p> <p>POINTS MADE AND DISCUSSED IN FAVOR OF THE JUDGMENT AND AUTHORITIES CITED IN SUPPORT THEREOF.</p> <p>1. Where a principal and surety are jointly sued for a money judgment the surety can not deny all liability and in this same pleading assert a counterclaim and cross-petition for indemnity, nor 'ask for restitution, until it has been damnified. Civil Code, Secs. 661, 662; 9 D. R. A. 283, MiorriSon v. Citizens Nat’l Bank; 122 Ky. 760, Sanders v. Herndon; 31 Ky. Law Rep. 259, Walters v. Akprs; 24 Ky. Law Rep. 1949, Marks v. Ganz; 91 Ky. 517, Bamberger v. Moayon.</p> <p>2. Where one becomes surety on a bond for the faithful performance of the duties of >a person in iam official or fiduciary character, he is estopped from denying t'bp existence of such 'office or trust, and is liable at common law for any defalcation arising under the bond. 110 Ky. 837, National Surety Co. v. Anteburn; 123 Ky. 621, Clay v. Chenault; 124 Ky. 136, Mkratíh v. Webber; 106 Ky. 424, Wood v. Friendship Lodge; 47 Ky. 123 Jonas v. Bank of Tenn.; 23 Ky. Law Rep. 1282, Bjennett v. Bennett; 22 Ky. Law Rep. 716, Green v. Ponder; 15 Ky. Law Rep. 830, White v. Mayh'all; 15 Ky. Law Rep. 710, Mercer v. Glass.</p> <p>3. The trusts created by the will are valid and eniforeable. Section 2360, Ky. Stat; 124 Ky. 816, Howard v. Cote;' 16 L. R. A. 321, Bingel v. Volz; 99 Ky. 284, Bedford v. Bedford; 116 Ky. 65, Hussey v. Sargent; 56 Ky. 86, Davis v. Wood; 32 Ky, Law Rep. 411, Wood v. Waod; 91 Ky. 160, McDaniel v. McDaniel; 110 Ky. 960, Dohn v. Dohn; 120 Ky. 302, Porter v. Porter; 120 Ky. 712, Logan v. Bean; 119 Ky. 899, Smith v. Smith; 121 Ky. 16, Hall v. Wright; 123 Ky. 781, Brown v. Gol. Trust Co.; 147 Mass. 530, Dorr v. Lovering; 190 Mass 435, Minot v. Doggett; 113 U. S. 340, McArthur v. Scott; 25 Ky. Law Rep. 1715, Puffins v. Bloard of Education; 97 N. W. Rep. 259, Danforth v. Oshkosh; 52 N. W. Rep. 27, in re Tower’s Estate; 91 N. W. Rep. 87, Becker v. Chester.</p> <p>4. The five shares of the grandchildren are severable, and the power of alienation given does not vitiate the law. 25 Ky. Law Rep. 2122, Johnson v. Johnson; 46 Ky. 611, Att’y-General v. Wallace; 53 Ky, 269, Armstrong v. Armstrong; 4 Ves., Jr., 227, Thellusison v. Woodford; 61 N. Y. 638, Wloodruff v. Clciok; 36 N. Y. 543, Harrison v. Harrison; 133 N. Y. 134, 473, Kennedy v. Hoy; 147 Mass. 530, Dorr v. Lovering; 190 Mass. 435,Minot v. Doggett; 97 N. W. Rep. 259, Danforth v. Oshkosh; 52 N. W. Rep. 27, In re Tower’s Estate; 91 N. Y. 87, Becker v. Chester; 77 N. E. Rep. 999, Mtunt’s WiU; 8 Rich Eq. (S. C.) 241, Lowery v. Muldro; 30 Beav. Ill, Wilkerson v. Duncan; 19 N. E. Rep. 481, Viainderpoel v. Loew.</p> <p>5. No abatement 'of suit on account of death of Sally R. Carter, July 19, 1908. Sec. 21 Civ. Codje; 31 Ky. Law Rep. 259, Walters v. Alters; 122 Ky. 760, Sanders v. Herndon; Secs. 85, 86, 97, 111, 117, and 500, Civil Code.</p> <p>6. The cross-appeal on the two rejected item® of $1,900 and $32. 79 Ky. 258, Hirscbman v. Braisbears; 81 Ky. 132, Magill v. Mercantile Trust CPi; 92 Ky. 566, Merchants Building Ass© v. Jarvis; 12 Ky. 109, Floyd’s Heirs v. Johnson; 62 Ky. 221, Williams v. Williams.</p> <p>7. Newi parties can not be made for the first time in this court. Sec. 110 óf Ky. Constitution; Sec. 949 of Ky. Statutes; Sec. 734 of Ky. Civil Code.</p>

<p>CASE 50. — ACTION BY JAS. A. DOUGHERTY AGAINST THE DEMOCRATIC EXECUTIVE COMMITTEE OF HARRISON COUNTY. —</p> <p>Appeal from Harrison Circuit Court.</p> <p>Judgment for plaintiff, defendants appeal. —</p> <p>CASES CITED.</p> <p>Ky. Statutes, Section 1563; Cain v. Page, 19 Ky. Liaw Rep. page 978; Beasley v. Adams, 26 Ky. Law Rep. page 573; Hpnry v. Sechrest, 24 Ky. Law Rep. page 1505; Co. of Ky. v. Combs, 27 Ky. Law Rep. page 751; Hill v. Holden, 27 Ky. Law Rep. page 1071; Davis v. Bjambri’ek, 22 Ky. Law Rep. page 815; Moody v. Trimble, 22 Ky. Law Rep. page 694; Mason v. Biexly, 26 Ky. Law Rep. pagle 487; Crain v. Breeder, 15 Am. Dec. 230; Fairchi'ld case, 151 New York; Puliston v. United States, 88 Fed. Rep. 975; New York Case; Quarl v. Abbott, 52 Am. Rep. 666.</p> <p>There is but one question at issue upon this appeal: Has the Democratic Executive Committee of Harrison County, Ky., heard and determined the contest of Jas. A. Dougherty, appellee, which ■he instituted against the appellant, E. F. Mason?</p> <p>AUTHORITIES CITED;</p> <p>Kentucky Statutes, Edition 1903, Sec. 1563; American & English Encyclopedia of Law, Vül. 12 First Edition, Page 224-247; Kentucky Statutes,. Edition 1903, Sec. 2123; American & English Encyclopedia of Law, Vol. 12, page 247. Foot Note 1; American & English Encyclopedia of Law, Vtol.' 12, page 248, Column 1; American & English Encyclopedia of Law, Vol. 12, page 248, Column 2; American & English Encyclopedia of Law, V'ol. 12, page' 249, column 1; American & English Encyclopedia of Law, Vol. 12,. page 249, column 2; Work’s Courts and Their Jurisdiction, Sec. 8, page 22; American Reports, 52nd. V'ol. page 666; S. W. Reporter, Vol. 70, page 852; S. iWI. Reporter, Vol. 70 page 854; S. W. Reporter, Vial. 70, page 855; Words & Phrases. Vol. 4, page 3235; Wlcirds & Phrases, Vol. 4, page 3236; S. W. Reporter, Vol. 87, page 786— 787; S. W. Reporter, Vol. 71 page 892; S. W. Reporter, Vol. 99, page 910.</p>

<p>Taxation — Situs of Property — Ships.—The situs of a ship engaged in the coastwise trade for the purpose of taxation is the domicile of the owner, though it in fact has never been there, and under ordinary circumstances cannot go there, and irrespective of the place of enrollment, except that, where a ship has acquired an actual situs in a state other than the domicile of the owner, it may be there taxed because within the jurisdiction of the taxing authority.</p>

CASE 53. — ACTION IN THE COUNTY COURT BY THE COMMONWEALTH AGAINST THE SOUTHERN PACIFIC COMPANY. — Appeal from Jefferson Circuit Court (Chancery Branch, First Division). Judgment for the company and the Commonwealth appealed to the circuit court, which concurred in the judgment of the county court and the Commonwealth again appeals. —

<p>CASE 54. — ACTION BY J. P. CHINN AGAINST THE FOSTERMILBURN COMPANY FOR LIBEL. —</p> <p>Appeal from Mercer Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Municipal Corporations — Fiscal Management — Creation of Indebtedness — Elections—Secret Ballot. — An election authorized by the general council of a city of the fourth class to submit the question of whether the city should issue bonds to raise money for the erection of common school buildings was not held under any statutes relating to common schools, but was a municipal election held under Ky. St. Sec. 3490, subsec. 34, authorizing cities of the fourth class to issue municipal bonds for municipal, purposes, and providing that the city council, if they deem it necessary to incur a debt, shall give notice of an election to determine whether the debt shall be incurred, and, if two-thirds of the qualified electors vote therefor, shall provide by ordinance for creating the debt, so that the election was properly held by secret ballot as provided by the Constitution even if elections relating to common public schools must he held viva voce.</p> <p>2. Municipal Corporations — 'Fiscal Management — Issuance of Bonds — “Municipal Purposes.” — The erection of a school building was a “municipal purpose” for which the city was authorized to issue bonds.</p> <p>3. Municipal Corporations — Fiscal Management — Bonds—Elections. — That the issuance of school bonds was carried by two-thirds of the votes cast upon that particular question in an election held under Ky. St. Sec. 3490, subsec. 34, authorizing the creation of any indebtedness for municipal purposes if two-thirds of the qualified voters voted in favor of incurring the indebtedness, was sufficient, even though the proposition did not receive two-thirds of the votes cast upon other questions submitted at the same election.</p> <p>4. Municipal Corporations — Fiscal Management — Indebtedness— Limitations on Indebtedness. — It is sufficient under Const. Sec. 158, limiting the indebtedness of fourth cla.ss cities to 5 per cent, of the assessed value of the property, that the indebtedness does not exceed the constitutional limitation at the time of issuance and sale of the bonds, and thé fact that the existing indebtedness, together with that created by the bonds, exceeded the limitation at the time of the election to authorize the issuance of the bonds, would not make them invalid; the indebtedness not being created until the bonds were sold.</p> <p>5. Constitutional Law — Validity of Statutory Provisions — Contravening Constitution. — If the Constitution and statutes conflict as to what shall constitute a majority in a municipal election, the Constitution controls.</p>

<p>1. Executors and Administrators — Action by Administrator— Pleadings — Issues.—The allegation in an answer in an action against a surviving husband by the administrator of his wife to recover on a note executed by the husband to the wife, that at the death of the wife the husband became entitled, as the surviving husband to her personal estate does not amount to a denial of the petition alleging the heirship of the deceased wife.</p> <p>2. Executors and Administrators — Action by Administrator— Pleadings — Issues.—The answer, in an action against a surviving husband by the administrator of his wife to recover on a note executed by the husband to the wife, alleging that neither the deceased wife, nor her estate, was indebted to any person at the 'date of plaintiff’s qualification as administrator, did not specifically deny the averment of the petition that the ■administrator and his wife were creditors of the estate.</p> <p>3. Executors» and Administrators — Recovery of Assets of Estate —Actions.—An action for the recovery of personal property of a decedent, or for the recovery of money due his estate, must be brought by the personal representative, except where the personal representative refuses to sue, the action may be brought by a creditor or heir at law, making the personal representative a party defendant.</p> <p>4. Executors and Administrators — Recovery of Assets of Estate Actions. — Where no personal representative of a decedent has been appointed, application must be made to the county court by a creditor or heir at law, desiring to sue for personal property of the decedent or for money due the estate, for the appointment of an administrator, and after the appointment the action may be maintained.</p> <p>5. Executors and Administrators — Appointment of Administrators — Statutes.—‘Under Ky. St. Secs. 3896, 3897, providing that the court shall grant administration to the relatives of decedent applying therefor, preferring the surviving husband or wife, and then such others as are next entitled to distribution, etc., and where no such person applies for administration at the second county court from the death of decedent, the court may grant administration to a creditor, or any other ¡person, in its discretion; the county court, on the failure of the surviving husband or others next entitled to distribution to apply for appointment of an administrator, may appoint a stranger, who need not be a creditor of the estate, though the fact that he sustains that relation adds to his right to receive the appointment over one not a creditor.</p> <p>6. Husband and Wife — Separate Property of Wife.- — A husband, who executed a note to his wife for money received by her as heir of her mother, thereby made the note the wife’s separate property, and deprived himself of any right to, or int'erest in, either the money or the note, and the fact that the note did not in terms recite that it was for the wife’s separate use was immaterial.</p> <p>7. Descent and Distribution — Right of Surviving Husband— Statutes. — A husband in 1889 gave a note to his wife for money received by her as heir of her mother. He renewed the note in 1899. The wife died childless and intestate in 1906. Held, that under Ky. St. Sec. 2132, enacted in 1894, defining the right of the surviving husband to the property of the deceased wife, the husband could only acquire a half of the surplus personalty of the estate of the deceased wife, for the note was the separate property of the wife, in which he never acquired any vested right prior to her death subsequent to the enactment of the statute.</p> <p>8. Executors and Administrators — Collection of Assets- — -Set-Off. —Where, in an action against a surviving husband by the administrator of the wife to recover on a note executed by the husband to the wife, the court could not ascertain me amount of the surplus personal estate left by tile v/ife, it could not allow the husband a credit in the judgment in favor of the administrator of one-half of the amount of the note, nor allow a set-off for the value of personal property belonging to the estate, and wrongfully converted by the brothers and sisters of the deceased wife.</p>

<p>CASE 57 — SUIT BY MARION H. OLDHAM AND OTHERS AGAINST JOHN McELROY AS SHERIFF OF FAYETTE COUNTY AND ANOTHER —</p> <p>Appeal from Fayette Circuit Court.</p> <p>Judgment for defendants, plaintiffs appeal. —</p>

<p>CASE 58. — ACTION BY EDWARD WILEY AGAINST THE CHESAPEAKE & OHIO RY. CO. AND ANOTHER FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Woodford Circuit Court.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

CASE 59. — MANDAMUS BY THE COMMONWEALTH FOR, THE USE AND BENEFIT OF THE LOUISVILLE SCHOOL BOARD. — Appeal from Jefferson Circuit Court (Chancery Branch, First Division.) . Judgment for relator and respondent appeals. — 1. The Legislature can neither impose taxes in the City of Louisville bj a special act, nor by a special act require the city to impose such taxes. 2. All taxes imposed by the Legislature must be uniform on all property in the State. 3.

CASE 60. — PROSECUTION BY COMMONWEALTH AGAINST NELSE BOGGS FOR VIOLATING LOCAL OPTION LAW. — Appeal from Lawrence Circuit Court.

CASE 61. — ACTION BY M. A. BLATZ AGAINST ANDREW KREBS. — Appeal from Jefferson Circuit Court (Chancery Branch, Second Division). Judgment for plaintiff, defendant appeals. — THE CONCLUSION. The appellant comes to this Court and seeks a reversal on the following showing: 1. The admission is appellee’s pleading which should have resulted in the dismissal of the petition rather than a hostile judgment for nearly $15,000.00. 2.

CASE 62. — PROSECUTION BY THE COMMONWEALTH AGAINST WILLIAM HINTON FOR MURDER. — Appeal from Muhlenberg Circuit Court. Defendant convicted of voluntary manslaughter and appeals. — POINTS AND AUTHORITIES. 1. The court erred to the prejudice of the substantial right of appellant in refusing to allow him to testify, upon his own request, in his own behalf. -Sub-sec. 1 of Sec. 223 of the Criminal Code. 2.

<p>CASE 63. — PROSECUTION AGAINST JAMES LANE FOR ARSON AND CONSPIRACY TO BURN A DWELLING.—</p> <p>Appeal from Estill Circuit Court.</p> <p>Defendant convicted and appeals. —</p>

CASE 64. — ACTION BY EUGENE ROBERTSON AGAINST THE NORTH BRITISH & MERCANTILE INSURANCE CO. Appeal from Logan Circuit Court. Judgment for plaintiff, defendant appeals. — Affirmed. SUMMARY OF POINTS. 1. Appellee brought suit against the appellant in the lower court upon an insurance policy for $2,500.00. On the face of this policy authority was given for $12,500.00 concurrent insurance.

CASE 65. — ACTION BY THE WOODBINE CHILDREN’S CLOTHING COMPANY AGAINST S. GOLDNAMER & SON — Appeal from Hardin Circuit Court. Judgment for defendants on a counterclaim and plaintiffs appeal. — QUESTIONS DISCUSSED AND AUTHORITIES CITED. 1. The delivery of the goods to the carrier at Woodbine, New Jersey was a delivery to the defendant. Commonwealth v. Russell, 11 Rep. 576; James v. Commonwealth, 19 Rep. 1045; Ramsey & Gore Mfg.

<p>CASE 66. — ACTION BY D. B. CREAGER’S ADMINISTRATOR AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY AND ANOTHER FOR PERSONAL INJURIES CAUSING THE DEATH OF PLAINTIFF’S INTESTATE. —</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>Prom a judgment for defendants upon a directed verdict plaintiff appeals. —</p> <p>POINTS CONTENDED FOR.</p> <p>Those operating tbe train could, by the exercise of ordinary care, .have saved decedent after becoming apprised of his peril.</p> <p>AUTHORITIES CITED.</p> <p>Becker v. L. & N. R. R. Co., 110 Ky. 477; L. & N. R. R. Co. v. Bell, 108 S. W. 355.</p> <p>POINTS AND AUTHORITIES.</p> <p>The appellant’s intestate was a trespasser and the appellees owed him no duty until his peril was discovered. Chesapeake & O. Ry. Co. v. Nipp’s Adm’x, 100 S. W. 246; Nashville, C. & St. L. Ry. Co. v. Bean’s Ex’r. 110 S. W. 328; Cumming’s Adm’r v. I. C. R. R. Co., 110,S.W. 809; Adams’ Adm’x v. Louisville & E. R. Co., 104 S. W. 363; I. C. R. R. Co. v. Tyson’s Adm’x, 108 S. W. 863.</p>

<p>CASE 67 — ACTION BY ROBERT E. GATZ AGAINST C. H. HARRIS FOR MALICIOUS PROSECUTION.</p> <p>Appeal from Jefferson' Circuit Court (Common Pleas Branch, Second Division).</p> <p>Prom a directed verdict for defendant plaintiff appeals —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. “Advice of Counsel” constitutes a defense to actions to recover damages for malicious prosecution only when the advice is honestly sought and in good faith acted upon, and where reasonable diligence is exercised by the party seeking the advice to obtain all the facts and ascertain the truth.</p> <p>2. Whether or not the advice is honestly sought and in good faith acted upon, and whether or not reasonable diligence is exercised to obtain all the facts and ascertain the truth, are questions for the jury and not for the court.</p> <p>3. Although appellee’s testimony that he had consulted his attorneys and acted on their advice was uncontradicted, the court -should have allowed the jury to say whether or not the appellee sought the advice of his counsel honestly and in good faith acted upon it, and whether or not he exercised reasonable diligence to obtain all the facts and ascertain the truth and the giving of a peremptory instruction to find for appellee was error.</p> <p>4. The Circuit Court properly overruled the demurrer to the petition, as the clerk of the police court of the city of Louisville has power to issue warrants for arrest under section 322 of the Civil Code and Kentucky Statutes, sections 2934 and 2915, and even though the process by which the prosecution was instituted was void, an action for malicious prosecution would nevertheless lie.</p> <p>Ahrens & Ott Manufacturing Co. v. Hoeher, 21 K. L. R., 299; 51 S. W., 194; Lancaster v. Langston, 36 S W., 521; 18 K. L. R„ 299; Meskin v. McCourt, 44 S. W, 975; Anderson v. Columbia Finance & Trust Co., 50 S. W. 40; Albin Co. v. Munford, 21 S.W., 1613; 55 S. W., 913; “Cyc” volume 26, pages 34, 35, 111, 115; Criminal Code, section 322; Kentucky Statutes, section 2934 and 2915; Arnold v. Chapman, 13 R. I., 587; Hirsh.nser v. Tinsley, 9 Mo. App., 342; Bouvier’s Law Dictionary; Webster’s inteinational Dictionary; Hays v. Younglove, 7 B. Monroe, 545; 13 K L. R., 431; 20 K. L. R., 1709.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Probable cause is a question for the court.</p> <p>2 Advice of counsel constitutes probable cause, and when the proof, without contradiction, chows that advice was fairly sought, a complete defense is made, and a peremptory instruction should be granted.</p> <p>Ahrens & Ott v. Hoehr, 106 Ky., 692, 696; Metropolitan v. Miller, 114 Ky., 755; Ullman v. Abrams, 9 Bush 738; Lancaster v. Langston, 36 S. W„ 521; 18 K. L. R., 299; Mark v. Christian, 22 K. L. R.,1102; 59 S W., 1092; Meyer v. The Railway, 98 Ky., 865; Albín Co. y. Mumford, 55 S. W., 913; Burks v. Ferriel, 26 K. L. R., 36; Provident v. Johnson, 2|4 K L. R., 1903; Thayer’s Preliminary Treatise on Evidence at the Common Law, 222 and following: Lister v. Perryman, S. R., 4, H. L., 521; National Life v. Gihson, 101 S. W., 895; O’Daniel v. Smith, 66 S W., 284, 23 K. L. R. 1822; Lancaster v. McKay, 103 Ky. 616; Tandy v. ¿Rliley, 26 K. L. R., 98; Masker v. McCourt, 19 K. L. R., 1897; Farmers’, &c. v. Gibbons, 65 S. W. 2.</p>

<p>CASE 68 — ACTION BY ELSIE FLOWERS’ GUARDIAN AGAINST D. P. NEWMAN AND OTHERS. —</p> <p>Appeal from Ballard Circuit Court.</p> <p>Prom a judgment for plaintiff on demurrer to the answer, defendants appeal. —</p>

<p>CASE 69. — ACTION BY GEORGE KREUTZER AGAINST JESSE WEIL FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from. McCracken Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

CASE 70. — ACTION BY THE CONRAD SCHOPP TRUST CO. AGAINST J. K. BONDURANT IN WHICH DEPENDANT FILED A COUNTERCLAIM — Appeal from McCracken Circuit Court. Prom a judgment dismissing without prejudice both plaintiff’s petition and defendant’s counterclaim plaintiff appeals. —

<p>1. Indictment and Information — Setting Out Writing Forming Basis of Charge — Necessity.—The writing on which an indictment is founded must be set out therein, unless it has been lost or destroyed, or is in the possession of accused, in which case it is sufficient so to state, and set out the substance thereof as near as may be, or unless the writing contains matter too obscene to be perpetuated as a part of the records of the court, in which case the indictment must so allege, and the accused and his counsel must be given an opportunity before the trial to inspect the writing, and on the trial the same must be introduced.</p> <p>2. Obscenity — Indictment—Requisites.—Under Cr. Code Prac., Sec. 122, providing that an indictment must contain a statement of the acts constituting the offense in ordinary language, so that a person of common understanding may know what was intended, an indictment for exhibiting an obscene writing, which alleged that accused unlawfully showed and gave to prosecutrix an indecent, obscene, immoral, and disgusting written article written by him; that accused at the time was an elderly married man living with his wife; that the written article purported' to be a love letter to prosecutrix, describing alleged diseases of his wife, predicting her demise, and making love to prosecutrix, and that the grand jury was not in possession of the writing, did not charge a violation of Ky. St. Sec. 1352, prohibiting the selling or giving away of obscene literature.</p> <p>3. Indictment and Information — Demurrer—Question for Court. —Whether or-not a writing is obscene in the sense that a prosecution will lie for the publication thereof is a question for the court to dispose of in the first instance where a demurrer to the indictment is fiied; and where, in the opinion of the court, the writing is not obscene, the demurrer should be sustained, though the indictment should charge that the writing was obscene, which is merely a conclusion of the pleader.</p> <p>4. Statutes — Construction—Title of Act. — The court in construing a statute may look to its title, not for the purpose of enlarging, limiting, or modifying the language of the act, but as an aid in ascertaining its intention, and this is especially true where the act and the title are in harmony; the title expressing the purpose of the act and the act carrying out the object as declared in the title.</p> <p>5. Obscenity — Statutes—'Construction.—Ky. St., Sec. 1352, prohibiting the selling, lending, giving away, or showing any obscene literature, when construed in the light of its title "An act to prevent the printing and distribution of obscene literature,” etc., does not apply to a letter sent by one to another, and intended to be private and personal, but prohibits the printing and distribution of obscene literature intended for general or public use and reading.</p> <p>6. Obscenity — Statutes—Violations.—A letter, written by an elderly married man to a young unmarried woman, wherein he expressed his love for her, and stated that his wife was suffering from a disease which would shortly cause her death, etc., is not within Ky. Statutes, Sec. 1352, prohibiting the selling or giving away of obscene literature.</p> <p>7. Obscenity — Evidence—Admissibility.—Where, on a trial for giving away obscene literature, in violation of Ky. St. See. 1352, by writing and sending an obscene letter, accused admitted that he wrote and sent the letter, letters written by him after the indictment had been returned were incompetent.</p>

<p>CASE 72. — ACTION BY JOHN W. BLANTON AND ANOTHER AGAINST JOHN L. VINCENT AND ANOTHER —</p> <p>Appeal from Edmonson Circnit Court.</p> <p>Judgment for plaintiffs, defendants appeal. —</p>

<p>CASE 73. — SUIT BY SUE C. MONTGOMERY’S TRUSTEE AGAINST C. C. BROWN TO STAY A MORTGAGE FORECLOSURE SALE UNTIL PLAINTIFF’S ALLEGED LIEN AND PRIORITY COULD BE ASCERTAINED. —</p> <p>Appeal from Spencer Circuit Court.</p> <p>Petition dismissed on demurrer, and plaintiff appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The will of J. Montgomery, Sr., was a matter of public record, and upon its face showed a charge of $900 in favor of the other devisees against the interest of J. Montgomery, Jr., and for which charge the estate creates a lien in favor of the remaining devisee. (Ky. Stat., Sec. 2066.)</p> <p>2. The agreement entered into between the devisees of J. Montgomery, Sr., which gave J. Montgomery, Jr., more than his sharp of his father’s estate to be accounted for out of the life interest devised to him, was an equitable assignment of the recipient’s share of the realty, or, rather, the income therefrom, to the extent necessary to satisfy the agreement. Thompson’s Executor v. Stiltz 29 Rep., 1075.</p> <p>3. If any one purchased from, or took a mortgage upon, the interest of J. R. Montgomery, Jr., he did so on notice of the state of the title, and, therefore, stands in no better attitude than his vendor mortgagor. Scobee v. Bridges, 87 Ky. 427; Taylor v. Jones, 97 Ky. 201; Alderson v. Alderson, 26 Rep. 1262.</p> <p>Authorities cited that no claim or lien exists, unless some special fund is charged on some specific property, or the will in unmistakable terms provides for an equalization of the devisees, on final settlement. Bcklert v. Galbreath & Sail, 12 Bush 71; Phillips v. Phillip’s Adm’r., 93 Ky. 498.</p> <p>Authorities cited that if interest of devisee is alienate'd, without suit brought as provided by statute, it bars claim of creditors oí testator or others to subject estate devised and alienated by devisee to lien or satisfaction of such claim or creditor or others. Lancaster v. Wolf, 110- Ky. 768; Anderson v. Summers, 69 Ky. 423; Kelley v. Culver, 75 S. W. 272.</p>

<p>1. Witnesses — Examination—Leading Questions. — In an action against a telegraph company for failing to deliver a message whereby plaintiff was prevented from attending her sister’s funeral, that a question asked plaintiff whether she experienced any suffering and sorrow from being prevented from attending the funeral was leading was not ground for its exclusion; it being the last of many questions, and plaintiff’s age and ignorance making it difficult for her to understand what she was being interrogated about.</p> <p>2. Trial — Province of Court and Jury. — Where the facts are undisputed, and but one legitimate inference can be drawn from them, the court, and not the jury, should determine their effect.</p> <p>3. Telegraphs and Telephones — Failure to Deliver Message— Measure of Damage. — Where defendant telegraph company negligently failed to deliver to plaintiff a message announcing her sister’s death, and the hour of the funeral, plaintiff was entitled to such damages as would reasonably and fairly compensate her for mental anguish, if any, resulting from her being deprived of attending the funeral, not exceeding the amount claimed in the petition.</p>

<p>Waters and Water Courses — Water Supply — Contract with Private Company — Installation of Filter. — Where a city furnished the source of water supply, conveying it to a private company, with the distinct understanding that water furnished from it should be used for fire protection and domestic purposes, and the water became impure, not from negligence of the company, but because of'bacteria in the source of supply, the company could not be compelled to install a filter plant where the contract with the city was silent on the subject.</p>

<p>CASE 76 — PROSECUTION BY COMMONWEALTH AGAINST LLOYD CORNETT FOR BIGAMY: —</p> <p>Appeal from Harlan Circuit Court.</p> <p>Defendant convicted and appeals. —</p>

<p>CASE 77. — PROSECUTION BY THE COMMONWEALTH AGAINST PEARL NOE FOR VIOLATING LOCAL OPTION LAW. —</p> <p>Appeal from Harlan Circuit Court.</p> <p>Defendant convicted and appeals.' —</p>

<p>CASE 78. — ACTION BY MARY ADAMS AGAINST THE LOUIS» VILLE & NASHVILLE RAILROAD COMPANY FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Boone Circuit Court.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>CASE 79 — ACTION BY FARMERS BANK OF WICKLIFFE AGAINST CHARLES WICKLIFFE ON NOTES.—</p> <p>Appeal from Ballard Circuit Court.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>1. Pledges — Foreclosure— Notice — Publication—Statutes.—Ky. St. Sec. 14a provides that, in addition to other notices, all judicial sales shall be advertised in some newspaper published in the county unless the appraised value of the property is less than $100. Held, that such section was applicable to the sale of a land note assigned- as collateral security for a loan and ordered sold by a foreclosure decree.</p> <p>2. Pledges — Foreclosure — Insufficient Publication — Judgment— Vacation. — That a judgment foreclosing a pledge of a certain land note authorized a sale thereof after advertisement by written handbills posted within the county, and did not require publication of notice in a newspaper as provided by St. Sec. 14a, did not make the judgment void, but voidable only on exceptions regularly filed thereto, or in a suit to set the same aside for fraud or unavoidable casualty or misfortune, preventing the filing of exceptions as-provided by Civ. Code. Prac. Sec. 518, subsecs. 4, 7.</p> <p>3. Pledges — Vacation—Fraud—Unavoidable Casualty or Misfortune. — A petition for the vacation of a judgment directing the sale of collaterals charging that the judgment was erroneous, in that it failed to direct the advertisement of the sale in a newspaper published in the county and that the collateral was of a value of more than $100, to wit, $600, but that by fraud or mistake it was ordered sold without being advertised or appraised as required by law and without plaintiff’s knowledge did not charge facts sufficient to entitle plaintiff to the vacation of the judgment for fraud, casualty or unavoidable misfortune.</p> <p>4. Appeal and Error — Reversal — Remand — Pleading—Amendment. — Where, on appeal from a decree setting aside a judgment for the sale of collaterals, the court held that the sale was void, and that plaintiff’s petition was insufficient to justify a vacation of the decree for fraud, unavoidable casualty, or mistake, plaintiff, on remand, would he permitted to amend.</p>

<p>Executors and Administrators — Administrators Cum Testamento Annexo. — Under Ky. St. 1909, Sec. 3891, providing that if there be no executor appointed by the will, or if the executor dies or fails to qualify, the court may grant administration with the will annexed, and section 3892 (section 3938), providing that such an administrator shall have the same power and authority “as the executors therein named,” such an administrator appointed where no executor was named has such powers as an executor if named would have had; so that the will providing for sale of real estate for purpose of division, and not naming the donee of the power, such administrator is by necessary implication vested with the power.</p>

<p>CASE 82. — ACTION BY J. M. MAXBERRY AGAINST THE CUMBERLAND TELEPHONE &. TELEGRAPH CO. FOR FAILURE TO DELIVER DEATH MESSAGE.—</p> <p>Appeal from Carlisle Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Railroads — Defective Appliances — Injuries to Third Persons— Knowledge of Defect. — Where the servant of a consignee of a car load of coke was injured by the fall of a defective car door as he attempted to open the car to unload it, the petition was not objectionable for failure to allege that the railroad company knew, or by ordinary care could have known, of the defect, and that plaintiff did not know thereof, and by ordinary care could not have Mown it, since it is only in actions by a servant against his master to recover for the master’s negligence that it is necessary to aver knowledge on the master’s part and want of knowledge by the servant.</p> <p>2. Railroads — Unsafe Appliances — Injuries to Third Persons— Duty of Railroads.- — Plaintiff, the servant of a consignee of a car load of coke, was injured while attempting to open the door of the car after it had been placed on the consignee’s switch for unloading, by the fall of the car door, which was defective upon him. The car was owned and used by the railroad company, and the consignee had nothing to do with it except to unload it. It also appeared that at the time the car was placed the railroad company had knowledge of the defect. Held, that the railroad company was bound to keep its cars in a reasonably safe condition, and was therefore liable to plaintiff for his injuries while exercising ordinary care in unloading it.</p> <p>J5. Railroads — Defective Appliances — Injuries to Third Person— Contributory Negligence. — Where plaintiff, the servant of a consignee of a car load of coke, was injured by the fall of the car door on him as he attempted to open it to unload the car, and it did not appear that he knew or had reasonable grounds to believe that the door would fall when he knocked out the pin which held it, whether plaintiff himself was negligent was for the jury.</p> <p>4. Damages — Excessiveness—Personal Injuries. — While plaintiff sustained serious and painful injuries resulting from the fall of a defective car door on him, and the only physician examined testified that his ability to labor, though not totally destroyed, was permanently impaired, and that his injured limb would never be as good as it was before the injury, a verdict for $2,700 was not excessive.</p>

<p>1. Elections — Primary 'Elections — Contest—Hearing—Mandamus. —Where a primary election contest is instituted, before the county executive committee,' the court’s power is limited to compelling the committee to act when it refuses to hear the contest; the court being without power to review the committee’s action, or force it to try the case in any particular manner, or decide it as the court may think proper.</p> <p>2. Elections — Primary Elections — Contest •— Determination. — A county executive committee having sustained a demurrer to notice of primary election contest after hearing, the contest was at an end.</p> <p>3. Elections — Primary Elections — Contest—Notice—Counting Ballots. — Where a notice of primary election contest did not refer to petitions in certain precincts requesting a recount of the ballots, and there was no contest pending when the petitions were filed with the chairman of the committee requesting such recount, contestant was not entitled to have a recount -under such petitions in the contest proceeding.</p>

<p>1. Criminal Law — Appeal—Review.—Cr. Code Prac. Sec. 281, providing that the decision of the court on a motion for a new trial shall not he subject to exception, precludes the Court of Appeals from reversing a criminal case on the evidence.</p> <p>2. Criminal Law — Continuance—Grounds.—Where accused was placed on trial 21 days after the finding of the indictment charging rape, and the evidence justified the belief that prosecutrix was mistaken in the belief that accused was the guilty person, and accused was confined in jail from the time of the finding of the indictment until the trial, and was unable by reason of poverty and ignorance to prepare his case, it was error to refuse a continuance on the ground of the illness of his counsel.</p> <p>3. Criminal Law — Appeal—Questions Reviewable. — Under the Code, the ruling of the trial court on a motion for a new trial on the ground of misconduct of individuals influencing the jury while deliberating is not reviewable.</p>

<p>CASE 86. — ACTION BY IRENE NETTER’S ADMINISTRATOR AGAINST THE LOUISVILLE RAILWAY CO. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>From a judgment granting insufficient relief, the plaintiff appeals. —</p>

<p>Corporations — Officers—Liability for False Statements. — Officers of a corporation to escape liability under Ky. St. 1909, Sec. 549, making them liable for knowingly causing to be published any false statement of the condition of the corporation, must exercise reasonable diligence, and must be presumed to know all the facts which ordinary diligence Would have made known to them, and may not close their eyes to the existence of facts which they ought to know, and where the statements made by them are false, and where they so give out statements which are false, persons dealing with j the corporation may recover from them the damages suffered ' by relying on them.</p>

<p>CASE 88 — ACTION BY B. H. PAGE AGAINST W. J. NUNN AND ANOTHER. —</p> <p>Appeal from Barren Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1st. The lower court properly decided that W. J. Nunn was a bona fide housekeeper, resident of this Commonwealth, and that he had not abandoned his homestead.</p> <p>2nd. It was error on the part of the lower court to adjudge that, as a matter of law, W. J. Nunn was not entitled to the benefit of the homestead exemption as against a judgment in favor of the officers of the court and the attorneys for the plaintiff, rendered in the suit of his wife against him for divorce and alimony, where the action was dismissed on the wife’s motion, after a reconciliation between them, and where at the time of the issual and levy of the execution, on said judgment, and the sale of the land thereunder, they, Nunn and wife, were living together upon the land and claiming it as a homestead. Kentucky Statutes, Sec. 1702; Kentucky Statutes, Sec. 900; McMakin v. McMakin, 27 Ky. Law Rep. 1211; Williams v. Monroe, 18 B. M. 514; Evans v. Stewart, &c., 38 S. W. 697; 18 Ky. Law Rep. 941.</p> <p>Under Ky. Statutes, Sec. 900, the husband is bound for the costs in all cases unless:</p> <p>(1) The wife is in fault, and (2) has ample estate to pay costs. Turner v. Turner, 23 Ky. L. R. 378; Steele v. Steele 27 Ky. L. R. 120; Civil Code, Sec. 424; Ballard v. Caperton, &c., 2 Mete. 415; Evans v. Stewart, 18 Ky. L. R. 941.</p>

<p>1. Elections — Contests—Actions—Verification of Petition. — A motion to dismiss an election contest because of the failure of plaintiff to verify the petition must be overruled where it appears by the affidavits of plaintiff, his attorney and a notary, that the original petition, which was later lost, was verified, though the amended petition waS not.</p> <p>2. Elections — Contests—Actions—Verification of Petition. — A defendant in an election contest who answered the petition before complaining of plaintiff’s failure to verify it^ waived the right to compel its verification.</p> <p>3. Elections — Contests—Actions—Verification of Petition. — The court should not dismiss an election contest because of the failure of plaintiff to verify the petition without first giving him time and opportunity to verify it.</p> <p>4. Pleading — Amendments — Substituted Petition and Amendments — Allowance.—IWihere the petition- ¡and amended petition were lost without plaintiff’s fault, the court properly permitted the filing of a substituted petition and amended petition constituting substantially correct copies of the originals.</p> <p>5. Elections — Copitests—Pleadings—Amendments.—Ky. St. 1909, Sec. 1596a, subsec. 12, providing that the petition in an election contest shall state the grounds of the contest relied on, and no other ground shall afterward be relied on, does not prevent an amended petition correcting a mistake in the original petition in the statement of the number of votes received by the candidates for the- office.</p> <p>6. Pleading — Judgment on Ple’adings. — Where the petition in an election contest gave the number of votes received by each party, show.ed plaintiff’s election, stated specifically the number of illegal votes oast and counted for defendant, together with the names of the voters and the grounds of the illegality of the votes, and the answer made an issue as to such votes, without indicating what illegal votes, if any, were received by plaintiff, and alleged that the judge of the election failed to deposit in the ballot box the ballot of a voter, ancj that such officer was guilty of misconduct without showing what differences were made in the result, defendant was not entitled to judgment on the pleadings, though plaintiff did not file any reply.</p>

<p>CASE 90. — ACTION BY WILLIAM BAUSTIC AND ANOTHER, AGAINST HAYS PHELPS AND ANOTHER. —</p> <p>Appeal from Pike Circuit Court.</p> <p>Judgment for defendants, plaintiffs appeal. —</p> <p>We maintain that reserved standing timber is personal property, that the five years’ statute of limitations applies, and that we ought to have been permitted to prove adverse possession of same for that period. This we were not permitted to do.</p> <p>AUTHORITIES CITED,</p> <p>Cates v. Vergin, 115 S. W. 794 Morris v. Sanders, 19 Ky. Law Rep. 1433; Bell County Land and Coal Co. v. Moss, 30 Ky. Law Rep. 6; Chestnut v. Green, 120 Ky. 385; Jackson v. Hardin, 27 Ky. Law Rep. 1110; Asher Lumber Co. v. Commonwealth, 22 R. 1771; Byassee v. Reece, 4 Met. 372; Cain v. McGuire, 13 B. Monroe, 274; Brown v. Taylor, 106 S. W. 846.</p> <p>AUTHORITIES CITED.</p> <p>1. As to the necessity of making avowals: Bower v. Layne, 3 Met. 313;Chrystal v. Commonwealth, 9 Bush 669; Manion’s Adm’r v. Lambert’s Adm’r, 10 Bush 298;' Louisville, - Cincinnati & Lexington R. Co. v. Sullivan, 81 Ky. 627.</p> <p>2. As to certifying to Bill of Exceptions: Section 339 Civil Code; Section 3115, Russell’s Statutes of Kentucky; Mann v. Moore, 23 Ky. Law Rep. 2121.</p> <p>3. As to instructions being part of the record: Clem v. Commonwealth, 3 Met. 10; Jane v. Commonwealth, 3- Met. 18; Mickey v. Commonwealth, 9 Bush 594; Garrott v. Ratliff, 83 Ky. 384; Forest v. Crenshaw, 81 Ky. 51; L. & N. R. R. Co. v.-Finley, 86 Ky. 294; Louisville Southern R. Co. v. Lewis, 101 Ky. 302.</p> <p>4. As to standing timber trees being realty: Dils v. Hatcber, 24 Ky. Law Rep. 826; The Asher Lumber Co. v. Cornett, 23 Ky. Law Rep. 602.</p> <p>5. Difference between an exception and a reservation: Tiffany on Real Property, Vol. 2, page 872; Bond v. Cashie R. R. & Lumber Co., 127 N. C. 125.</p> <p>6. As to removing standing timber when no set time is fixed for its removal: Davidson v. Moore, 18 Ky. Law Rep. 563; Hogg v. Frazier, 24 Ky. Law Rep. 930; Knotts v. Hydricks, 12 Rich. L. 314; Waite v. Baldwin, 60 Mich.622; Heflin v. Bingham, 56 Ala. 566; Putnam v. Tuttle, 10 Gray 48; Wheeler v. Carpenter, 107 Pa. 271; Magnetic Ore Company v. Marbury Lumber Company, 27 L. R. A. 434, 104 Alabama 465.</p>

<p>1. Railroads — Crossings—Duty of Company. — The place where plaintiff was struck by defendant’s engine, a track running through defendant’s depot platform, being in constant use by the public, defendant had to anticipate the presence of persons', and to exercise ordinary care for their safety.</p> <p>2. Railroads — Crossing Track — Stop, Look and Listen. — The rule of stop, look and listen where one crosses a railroad track at a place in constant use by the public does.not obtain in Kentucky.</p> <p>3. Railroads — Crossing Track — Duty of Traveler. — One crossing a railroad at a place in constant use by the public, where it’ is the company’s duty to keep a lookout, run at ■ a reasonable speed, and give timely warning, is bound only to exercise ordinary care for his safety, such as may be usually expected ' of an ordinarily prudent person to learn of the approach of an engine, and keep out of its way.</p> <p>4. Railroads — Crossing Track-Contributory Negligence. — Whethey one crossing a railroad track at a place in constant use by the public used ordinary care for his safety, to learn of the approach of an engine, and keep out of its way, depending on a number of circumstances on which persons may differ, is a question for the jury.</p> <p>5. Railroads — Injury to Person Crossing Track — Gross Negligence. — Though an engine was run rapidly down a coal track through a depot platform, a place where the presence of persons should reasonably be anticipated, and no lookout was kept and no warning given, and one stopping on the track just in front of the engine was struck, yet it having been at 6 o’clock in the morning, when the travel was small, the danger to those then out would not be so imminent as to warrant submission of the question of gross negligence and consequent punitive damages.</p> <p>6. Railroads — Persons Crossing Track — Duty of Comjfany — Speed of Trains. — While a railroad company, whose track is through a populous community, along or across a public place, where presence of persons on the track may be reasonably anticipated, should keep a lookout, give timely warning of approach of a train or engine, and operate it at such spee'd and under such control as ordinary care for the safety of such persons requires, it is not bound to so operate it to stop it in case of necessity before injury has occurred, where one comes on the track just in front of the engine.</p> <p>7. Railroads — Injuries on Track — Instructions.—An instruction, submitting the question whether those in charge of an engine could have known of plaintiff’s peril in time to avoid injuring him, is improper; all the proof being that he stepped on the track just in front of the engine.</p>

<p>CASE 92 — PROSECUTION AGAINST JOHN HOFFMAN BY COMMONWEALTH FOR MURDER. —</p> <p>Appeal from Estill Circuit Court.</p> <p>Defendant convicted and appeals. —</p> <p>CONCLUSION.</p> <p>The record as a whole shows that appellant was imposed upon and mistreated for a long time before the killing, and that on that night his child was taken and fastened up by Gross, and when the old man started out in the dark to bring his child home he is stoned by unknown persons, and then Gross goes and gets a gun and confronts him and is in the ac't of shooting him when appellant fired the shot which killed him. It seems to us that this js a clear case of self-defense. Appellant was forced to try in the absence of his witnesses, and even denied the right to read the affidavit that had peen admitted as the evidence of Jessie Isaacs and Prank Rimer. In the light of these rulings §Tnd the unfair advantage taken by the attorney for the Commonwealth in his argument to the jury is it any wonder that the jury rendered a verdict that is grossly excessive and altogether in conflict with the facts in the record. If this case is not a case of justifiable homicide, as we contend it is, certainly it will not be contended that the facts presented could in any view of the case authorize a verdict for more than manslaughter.</p> <p>We most respectfully insist that appellant has not had a fair trial, and that the cause of justice and right requires a reversal of this case.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The court did not err in overruling appellant’s objections to a seperate trial. Sizemore v. Commonwealth, 108 S. W. 254; Currans Case (1850) 7 Gratt. (Va.)., 619; Constitution, Section 233; 12 Cyc. 506; 19 Encyc Pleading & Practice, page 525; Clark on Criminal Procedure, Section 154; Barnes v. Commonwealth, 92 Va. 794; State v. Roberts, 50 W. Va. 422.</p> <p>2. The trial court did not err to appellant’s prejudice in admitting incompetent and irrelevant evidence offered by the Commonwealth over the objections of appellant. Miller v. Commonwealth, 78 Ky. 16; Howard v. Commonwealth, 110 Ky. 356; Powers v. Commonwealth, 110 Ky. 386; Hall v. Commonwealth, 31 R. 64.</p> <p>3. There was' no misconduct of the Commonwealth’s Attorney in his argument to the jury, and no error was committed by the court therein, as the bill oi exceptions shows. Bill of Exceptions, page 28; Housman v. Commonwealth, 128 Ky. 818; Hinton v. Commonwealth, decided Sept. 23, 1909.</p>

<p>1. Execution — Writs—Amendment.—Where a capias issued by the clerk of the circuit court or his deputy has been received hy the sheriff or his deputy, neither the clerk nor his deputy may, without an order of court, correct any mistake as to-the amount thereof, nor direct its return to the clerk’s office.</p> <p>2. Execution — Writs—Amendment.—In the absence of proof, it is presumed that the clerk of the circuit court issued an execution under the direction of the person who had control of it; and when once issued, and delivered to- the officer to whom it is directed, the clerk loses control of it, and any mistake in its issue or terms may he corrected by consent of plaintiff in execution, or by order of the court in which the-judgment was rendered.</p> <p>3. Sheriffs and Constables — Execution of Writs. — A sheriff or other officer, to whom a writ of execution is directed and delivered, must execute it according to its terms; and, where the process is issued on a judgment which is not void, the-officer executing it is protected by it.</p> <p>4. False Imprisonment — Liability.—An action for false imprisonment does not lie for arrest or imprisonment in due course or regular proceedings of a court having jurisdiction of the-offense; and, where the order or process is valid, the person wrongfully detained must seek his remedy in another form, of action.</p> <p>5. Arrest- — Execution of Process — Discretion,—The officer, in ex* ecuting a precept commanding him to arrest an individual, may select such time of day as he thinks most expedient, and may make use of so much force as is necessary to accomplish the object.</p> <p>6. Execution- — Execution Against the Person — Custody of Debtor. —The officer, to whom a writ for the arrest of a judgment debtor is directed, must, after arresting the debtor, retain him in custody until the judgment has been satisfied or the debtor has been discharged by due process of law.</p> <p>7. Sheriffs and Constables — Execution of Process — Liability.— An action for trespass lies where a person has been arrested on a process irregularly issued and void; but a process merely voidable is, until set aside, a justification for an arrest made thereunder.</p> <p>8. Costs — Criminal Prosecution — Collection—Execution Against Person — Process—Sufficiency.—A capias pro fine for costs of a successful criminal prosecution, which erroneously includes therein the costs of accused, instead of only the costs of the commonwealth, justifies the arrest and detention of accused until the -error is corrected by the court rendering the judgment or the capias is satisfied b'yfits payment.</p>

<p>CASE 94 — PROCEEDINGS BY THE CITY OF BOWLING GREEN AGAINST W. H. McMULLEN FOR A VIOLATION OF THE LOCAL OPTION LAW. —</p> <p>Appeal from Warren Circuit Court.</p> <p>Defendant dismissed and the city appeals. —</p> <p>POINTS.</p> <p>I. The act is in conformity with the State Constitution. — Constitution, Sec. 61;' Commonwealth v. Waller, 14 Bush, 219; Anderson v. Commonwealth, 13 Bush, 488; Commonwealth v. Minor, 28 S. w; 786.</p> <p>2. Sufficient to prove that the liquor sold was “malt” liquor, without showing its intoxicating qualities. Locke v.. Commonwealth, 74 S. W. 654; Pedigo v. Commonwealth, 70 S. W. 658; Commonwealth v. Hurst, 63 S. W. 1024.</p> <p>3. Court should enforce the law as passed by the Legislature. Commonwealth v. Fowler, supra; Mugler v. Kansas, 123 W. S.</p> <p>4., “Malt Liquor,” as used in the Constitution and Statutes, embraces all malt liquors, whether intoxicating or not. Encyclopedia of Law and Procedure, Vol. 23, pp. 60 and 173; State v. Frederickson (Me.) 6 L. R. A. (new) 186; State v. O’Connell, 99 Me. 61; Feibleman v. State, 130 Ala. 122; Iowa v. Intoxicating Liquors, L. R. A. 408; State v. Yager, 72 Iowa 421; State ex. el. Guilbert v. Kaufman (Ohio) 76 U. S. 1062; State v. Eaves, 113 Ga. 749; Merlde v. State, 37 Ala. 139; State v. Gill, 69 Minn. 502; State v. Jenkins, 64 N. H. 375.</p> <p>POINTS AND AUTHORITIES.</p> <p>1st. To construe Section 2557 of the Kentucky Statutes, as requested by appellant, would render it an unconstitutional invasion of the rights of the citizen. 'Commonwealth v. Fowler, 96 Kentucky Reports, p. 179; Kentucky Constitution, Section 154; Kentucky Statutes, Section 1575; Roberts v. State of Georgia, 60 Southeastern Reporter, 1083; Intoxicating Liquors Case 37 American Reports, 284 (opinion of Justice Brewer.)</p> <p>2nd. The spirit and meaning of this section makes it apply to intoxicating liquors. The past history of our State, and legislation for the past thirty years, as well as contemporaneous construction, shows this is the true spirit and meaning of the law. General Statutes of 1873, pages 364-365, Sections 9 and 10; Kentucky Statutes, Sections 1303-1307; Sections 4203 and 4207; Acts of the Legislature of 1904, page 160; Acts of the Legislature of 1906, pages 86, 321 and 363; Kentucky Statutes, Section 2557A; Rush v. Commonwealth, 20 Kentucky Law Reporter, page 775; Collins v. Henderson, 11 Bush, pages 86-93; Clark’s Run, etc., Turnpike Company v. Commonwealth, 96 Kentucky Reports, pages 529 and 532; Barbour v. City of Louisville, 83 Kentucky Reports, page 102; Commonwealth v. Reynolds, 89 Kentucky Reports, pages 149 and 150; Roberts v. State of Georgia, 60 Southeastern Reporter, 1083.</p>

CASE 95. — ACTION BY ARTHUR FLANNERY, BY GUARDIAN, AGAINST THE LOUISVILLE RAILWAY COMPANY. Appeal from Jefferson Circuit Court, Common Pleas Branch. (First Division). Judgment for plaintiff, defendant appeals. — CONCLUSION.

<p>CASE 96 — ACTION BY ELLA THOMPSON AGAINST H. S. THOMPSON AND OTHERS TO CONTEST A WILL.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Prom the judgment plaintiff appeals. —</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The Statute of Kentucky does not restrict the right of appeal from the probate of a will, but is a general, statute, which is construed to apply to those having an interest. Ky. Statutes, Section 1404; Pryor v. Mizner, 79 Ky. 232; Phillips v. Phillips’ Adm’r, 81 Ky. 330. '</p> <p>2. The opinion in the case of Mercer v. Smith, 107-Ky. Decisions, page 1196, related to the case which only involved the right of a widow to lands lying in the State of Kentucky, and so far as the remedy by renunciation being ample, is shown by the undenied facts in this case to be erroneous.</p> <p>3. The undisputed facts in this case show that although the alleged will was not the last will and testament of Joseph Thompson, deceased, and although he owned property in many other states, the widow will have no right to question the validity of the will under the opinion in the Mercer case, or to recover her interest in the real estate in other states because of the existence of this illegal will. Surely such a result was never intended by the statute giving the right of appeal, or the other statute the right of renunciation.</p> <p>We submit that “the wife has no right to appeal from the order probating her husband’s will. If she does not approve of its provisions in her favor, Sec. 1404 Ky. Statutes gives her an ample and exclusive remedy by which she can obtain her legal rights as her husband’s widow, by renouncing the provisions in the will in the manner pointed out in the Statute.” Mercer v. Smith, 32 Ky. Law Rep. 1005.</p>

<p>1. Attorney and Client — Payment of Money Collected — Power of Court — Judgment.—Under the express provisions of Civ. Code Practice, Sec. 444, a judgment may he obtained on motion by a client against his attorney for money collected or property received.</p> <p>2. Attorney and Client — School Fund — Collection.—Under Acts 1908, page 133, chapter 56 (Kentucky Statutes, 1909, section 4426a), vesting the title to all school property, excepting that given to those districts not embraced by the act, in the county board of education, any money due under a judgment recovered by the commonwealth in an action to recover into the common school fund of a county money claimed to he due for violation of a bond belonged to the county board of education, which became the real party in interest and the real client of the county attorney, who was by the judgment directed to collect the same; and hence the hoard was the proper party to ask a rule requiring the county attorney to pay over the money.</p> <p>3. Parties — Intervention—Necessary Parties. — Civ. Code Prac. Sec. 23, provides that any person may be made a defendant who claims an interest in the controversy adverse to plaintiff, or who is necessary to a complete determination of the action. Section 28 provides that the court may determine any controversy between parties before it, if it can do so without prejudice to others; but, if not, it must require such other persons to be made parties. The commonwealth recovered a judgment for the benefit of tSe common schools of a county, which judgment directed the county attorney to collect the amount thereof and see that it was converted into the school fund. Thereafter the county attorney filed a petition in the suit asking the court’s advice as to the distribution of the amount remaining in his hands after payment of costs, expenses, etc. Held that, the county attorney having made himself a party to the action and the county board of education being entitled under the law to whatever was due, it should have been allowed on petition to become a party to the action, and to litigate the questions between It and the county attorney as to the amount due.</p>

<p>CASE 98 — ACTION BY THOMAS BRANNON AGAINST STANLEY BRADY. —</p> <p>Appeal from Mason Circuit Court.</p> <p>From the judgment defendant appeals. — Affirmed,</p> <p>AUTHORITIES CITED.</p> <p>1. On the proposition that the Mason Circuit Court had jurisdiction. Section 978, Kentucky Statutes; Section 3520, Kentucky Statutes; Stone v. Wilson, 102 Ky. 423.</p> <p>2. On the proposition that the amount in controversy sufficient to give the circuit court appellate jurisdiction without having first .appealed to the quarterly court. Brown v. Vancleave, J. Ky. Law Rep. 150; Yance v. Cox, 2 Dana, 152; Howard v. Maysville & Big Sandy Railroad Co., 24 Ky. Law Rep. 1051; Riley v. Carlton, 10 Ky. Law Rep. 40; Howard Thompson Co. v. Finley, 78 S. W. 416;.</p> <p>3. The following cases cited to show that this court has jurisdiction. Willis v. Thornton, 25 R. 1521; Shackelford v. Phillips, 112 Ky. 563.</p> <p>AUTHORITIES.</p> <p>1. On jurisdiction of Courts, Kentucky Constitution, Sec. 59, Sec. 1, Sec. 143; Kentucky Statutes, Secs. 978, 1054, 3520; Code Sec. 724; Jackson v. Wernert, 17 R. 72; Piper v. Gunther & Sons, 95 Ky. 115.</p> <p>2. On amount in controversy Logan v. Davis, 5 R. 424, 5 R. 600-, 6 R. 137 L. & N. R. R. Co. v. Wade, 89 Ky. 255; Lee v. Gates, 6 R. 585.</p> <p>3. On local or special legislation, Droege v. Mclnerney, 120 Ky. 796; Safety Building & Loan Co. v. Eckler, 106 Ky. 115; Louisville v. Kuntz, 104 Ky. 584; 26 A. & É. Ency. 683; Schriver v. Central Asylum, 113 Ky. 288.</p>

<p>1. Sheriffs and Constables — Indemnifying Bonds — Action Against ■ Surety — In an action against a surety on an indemnity bond to an attaching sheriff, a defense that the sheriff-, in levying, had acted wantonly, willfully, maliciously and contrary to the attaching creditors’ instructions, was an affirmative defense, the burden to -establish which rested upon’the' surety.</p> <p>2. Sheriffs and Constables — Levy on Property — Willfulness—Evidence. — Evidence held not to show that a sheriff acted willfully and maliciously and against the wishes and directions of attaching creditors in levying an attachment.</p> <p>3. Judgment — Conformity to Verdict. — Where defendant denies all liability, and the amount claimed was not disputed, if any liability attached, a verdict for plaintiff was sufficient to support a judgment for the amount sued for.</p> <p>4. Pleading — Cross Petition — Office.—-Civ. Code Prac. Sec. 96, subsec. 3, defines a cross petition to be the commencement of an action by defendant against a cod-efendant or some person not a party to the action, and which is not allowed to a defendant except upon a cause of action, which affects, or is affected by, the original cause of action. Plaintiff sued on a sheriff’s bond for wrongful levy on her property. She pleaded the execution of the bond by the attaching creditors indemnifying the sheriff, but for which the attachment would not have been levied. Held, that a cause of action by the sheriff’s sureties over against the sureties on the indemnifying bond was so intimately connected with the other causa of action that the sheriff’s sureties could proceed against the sureties on the indemnifying bond to be subrogafed to sheriff’s right thereunder by cross petition in the original action.</p> <p>5. Pleading — Trial Amendments — Discretion of Court. — The Code gives the trial judge a broad discretion in permitting and re-refusing trial amendments to pleadings,, and where litigation over an attachment of goods had been pending for ten years and a former action by the owner against the sheriff and his bondsmen had brought out the place where the goods had been stored and the extent to which they had been damaged, so that if a surety on a bond of the attaching creditors, who were sued by the sheriff’s sureties, had- wished to defend on the ground that damage to the attached prop'erty was due to the negligence of the sheriff in caring for the goods, instead of through the willful acts of the sheriff contrary to instructtions, and in disregard of the creditors’ command, which was the issue upon which the parties went to trial, he could have made the defense at an earlier date, .the court did' not abuse its discretion in refusing an amendment setting up the defense during the progress of the trial and after the evidence had in part been introduced.</p> <p>6. Subrogation — Bonds—Right of Sheriff’s Sureties to be Subrogated to His Right on Indemnifying, Bond. — Where one has been compelled to pay a debt for which another was primarily liable, he' is entitled to be subrogated to the rights of the creditor; and where sureties on the official bond of the sheriff had been obliged to answer for .the default of their principal in malting an erroneous seizure of property, they are entitled to be subrogated to his' rights in an indemnity bond given him by 'the attaching Creditors. -</p>

<p>1. Adverse Possession — Title Acquired. — Though a parole sale o-f land is void under the statute of frauds, where the purchaser is put into possession and continues in actual adverse pos- . session for 15 years, he acquires title by operation of the statute of limitations.</p> <p>2. Adverse Possession — Extent of Possession. — The intent of one entering on land in the exercise of ownership is an element in determining the legal effect of his act, for an entry within a boundary is a reduction of the whole boundary to possesion, provided such is the intention, as actual posession embraces in meaning the occupancy of a part of a well defined boundary, intending thereby to reduce the whole to possession.</p> <p>3. Advere Possession — Acquisition of Title — Extent of Possession. —Where one enters under a deed, not from the true owner, and claims adversely, his deed is evidence of the extent and character of the possession, though not of title.</p> <p>4. Adverse Possession — Acquisition of Title — -Extent of Possession. — One entering without a deed on a boundary plainly marked, with the intention of reducing the whole to his possession, claiming all, and using it as he wills, reduces the whole to his actual possession, unless some part thereof is in the actual possession of another, or unless there is a conflict in the boundary with another which is older, or superior, and the owner of the latter has entered on the boundary.</p> <p>5. Adverse Possession — Acquisition of Title.- — The purchaser under a parol contract, of 25 acres of a larger tract, was put into possession by the Vendor, who was the owner, by parol purchase, of -an additional 50 -acres 'adjoining from a third person, which was also included in the sale of the purchaser. The purchaser was placed in possession of the whole boundary, which was marked, and he took up his residence on the 50-acre tract, claiming to the extent of the boundaries of the whole 75 acres, and continued in such possession for over 15 years. Held, that the purchaser acquired title to the whole 75 acres by adverse possession.</p> <p>6. Adverse Possession — Acquisition of Title. — Where a grantee under an executory contract for the sale of land looks to his grantor for title, he can not, as a general rule, claim that his possession was so adverse to his grantor as to defeat the latter’s lien for the unpaid price; but, where the grantee has paid for the land, his possession is hostile' to any claim of superior title by the grantor, and, though a deed is not executed, the grantee may use his possession, after the statutory period, to defeat the claim of his grantor, or any one else, to the right of possession.</p> <p>7. Adverse Possession — Nature of Claims. — Where possession of real estate is hostile to any claim of right by a former owner, it sets the statute of limitation running, though the one in possession looks to the former owner for a conveyance.</p> <p>8. Estoppel — Equitable Estoppel — Nature.—Estoppel operates only to protect the innocent, who are misled to change their condition in reliance on an appearance.</p> <p>9. Estoppel — Title by Estoppel. — A grantee, who knew that a third person was the owner of the land under a parol purchase, followed by actual adverse possession for 15 years, took nothing under the deed of a former owner, because the former owner had no title, and the third person was not estopped to deny that fact.</p> <p>10. Estoppel — Title by Estoppel. — Where a lessee, taking an oil lease, had actual knowledge of the fact that his lessor did not own the land, but that a third person owned it under a parol purchase, followed by adverse possession for more than 15 years, the third person was not estopped to deny the validity of the lease.</p> <p>11. Mines and Minerals — Oil Lease — Forfeiture.—The right to declare an oil lease forfeited is a personal privilege of the lessor, and when he elects to waive it no one else may take advantage of it.</p>

<p>CASE 101. — SUIT BY J. B. BLANTON AND OTHERS AGAINST FRANK P. JAMES, AUDITOR, AND ANOTHER TO RESTRAIN THEM FROM SELLING CERTAIN PROPERTY FOR TAXES. —</p> <p>Appeal from Franklin Circuit Court.</p> <p>Judgment for plaintiffs, defendants appeal. —</p> <p>POINTS AN© AUTHORITIES.</p> <p>1. The petition for an injunction in this case is fatally defective because no tender of the taxes was made by plaintiff, and the court failed to require the payment of the taxes actually due before granting the restraining order. Defendant’s demurrer should have been sustained. Louisville Water Co. v. Clark, 15 Rep. 94, sustained by Supreme Court of the United States, and undisturbed by opinion of Judge Hazelrigg in suit against same parties, 16 Law Rep. 586; Alexander v. Aud, 28 Rep. 74.</p> <p>2. Sheriff is tax collector by virtue of his office. Ky. Stat. 4129; Duty to collect when tax is due and pay over. Ky. Stat. 4143; If not paid when the duty to distrain and sell. Ky. Stat. 4149. To buy for State where there is no other purchaser. Ky. Stat. 4151-2; Two years for redemption by taxpayer. Ky. Stat. 4151-2. A failure to redeem vests fee simple in State. Ky. Stat. 4154; Auditor after two years to order sale. Ky. Stat. 4154.</p> <p>3. There is no claim that the tax was not assessed properly, and against the proper person, or that it ever was paid. No charge that the sheriff levied on or sold property that did not belong to the party owning same and owing tax on same. No charge of irregularity in making sale or reporting same, or that it was not of record at the time the plaintiff became purchaser at decretal sale.</p> <p>PRINCIPLES DISCUSSED.</p> <p>The following principles of law applicable to the case at bar have been gone into with more or less elaboration;</p> <p>1st. That a sale of land adversely held is absolutely void.</p> <p>2nd. That a pleading in a tax sale in order to be good need not set out every step that was or was not taken by the officer, if it sets out one or more which standing alone would vitiate the sale.</p> <p>3rd. That the five years Statute of Limitations applies to taxes and the State is bound by that statute.</p> <p>4th. An action to recover a penalty is barred in five years.</p> <p>5th. That the State never had more than a lien on the land, and that has been lost by lapse of time.</p> <p>6th. That the failure of the county attorney to institute proceedings to recover possession is not a “mere irregularity,” but is such a failure of duty as will vitiate the sale.</p> <p>7th. That where a claim is barred by limitation, nothing is du« and an injunction is the proper remedy.</p> <p>AUTHORITIES CITED.</p> <p>Section 210, Kentucky Statutes (Carroll’s Edition); Section 2515, Kentucky Statutes (Carroll’s Edition); Section 2523, Kentucky Statutes (Carroll’s Edition); Section 4021, Kentucky Statutes (Carroll’s Edition); Section 4151, Kentucky Statutes (Carroll’s Edition); Section 4152, Kentucky Statutes (Carroll’s Edition) ; Section 4153, Kentucky Statutes (Carroll’s Edition); Com. v. Three Porks Coal Co!, 95 Ky. 273; 15 R. 633; Alexander v. Aud, 121 Ky. 105, 28 Ky. L. R. 69; Husbands v. Polivick, 128 Ky. 652; 29 R. 890; Com. v. Nute, 115 Ky. 239; 24 Ky. L. R. 2138; National Bank of Pittsburg v. Licking Valley Land Co., 15 Ky. L. R. 211; Com. v. Rosenfield Bros., 25 Ky. L. R. 2229; Chicago, St. L. & N. O. Ry. Co. v. Com., 24 Ky. L. R. 2124; Boyd v. Com., 91 Ky. 472; Seibert v. City of Louisville, 30 Ky. L. R. 1317.</p>

<p>CASE 102. — DIVORCE. ACTION BY PEACHIE B. GROW AGAINST FRANCIS BRECKINRIDGE GROW. —</p> <p>Appeal from G-arrard Circuit Court.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

CASE 10$. — ACTION BY JOHN J. MOB-LEY AGAINST THE INDIAN REPINING COMPANY POR DAMAGES POR PERSONAL INJURIES. — Appeal from Scott Circuit Court. Judgment for' plaintiff, defendant appeals. — SUMMARY. 1. The appellee was either a trespasser or a bare licensee. He was aot upon the premises of appellant as an invited person. The appellant, therefore, owed him no duty to use care to keep its premises or machinery in a reasonably safe condition.

<p>CASE 104 — PROCEEDINGS BY THE COMMONWEALTH AGAINST LEWIS & POTTER TO CANCEL A LIQUOR LICENSE. —</p> <p>Appeal from Warren Circuit Court.</p> <p>From the judgment defendants appeal. —</p>

<p>1. Courts — Jurisdiction—Circuit Court. — Under Ky. St. 1909, Sec. 966, providing that the circuit court shall have jurisdiction in all cases where title to land is in question, or in which it is sought to subject land by provisional remedy, though a note sued on was for less than $50, that an attachment was obtained and levied on the land gave the court jurisdiction, though otherwise, under the express provisions of Ky. St. 1909, Sec. 1086 (Russell’s St. Sec. 3100), the justice’s or quarterly court would have had exclusive jurisdiction.</p> <p>2. Venue — Domicile of Party. — Under Civ. Code Prac. Sec. 79, providing that there shall be no judgment against defendant unless he be summoned in a county wherein the action is brought, or unless he resides in such county when the action is brought and be summoned elsewhere in the state, etc'., service of summons on defendant in P. county did not authorize a judgment against him in E. county, where be did not reside in the latter county when the action was brought there.</p> <p>3. Venue — “Lien, or Other Incumbrance or Charge.” — Under diy. Code Prac. See. 62, subd. 3, requiring an action for the sale of real' property under a mortgage lien, or other incumbrance or charge, etc., to be brought in the county in which the subject of the action, or some part thereof, is situated, the words “lien, or other incumbrance or charge,” do not embrace an attachment lien, but refer to liens or cha/rges created by contract or judgment.</p>

CASE 106 — ACTION BY SHERWOOD KENNISON AGAINST THE MASON, HANGER & COLEMAN COMPANY. Appeal from Pulaski Circuit Court. Judgment for plaintiff, defendant appeals. — POINTS AND AUTHORITIES. 1. The petition analyzed, R. ©ages 2 and 3. 2. Plaintiff can not recover in this case for ordinary neglect. 3. At most, the defendant’s foreman, Davis, was only reguired to use ordinary care in inspection; bu't, 4.