Volume 136 — Kentucky Reports

<p>CASE 1. — ACTION BY S. J. TAYLOR AGAINST THE WESTERN UNION TELEGRAPH CO. —</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>1. False Pretenses — Indictment — Representations — Existing Facts. — An indictment charged that defendant feloniously, etc., by falsely pretending to prosecutrix that he was doing business for the United States, drawing $50 a month from the government, and as such government representative needed a house for headquarters, and a housekeeper for the same, and that he would pay her as housekeeper $2 a week, for the government; that he had $625 which he would pay her; and that relying on such statements as true, he obtained her signature to- a conveyance of the house and lot, with intention to commit a fraud, he knowing that he was not a government employe, and negatived the truth of each of such representations. Held,' that the pretenses that defendant was doing business for the government, that he was drawing $50 a month, and as a representative needed her house for headquarters, ahd a housekeeper, and that he had $625, were all statements of existing facts, hence the indictment was not defective as based -on a promise for the future payment of money to prosecutrix.</p> <p>2. False Pretenses — Elements of Offense — Existing Facts.— Though a mere false promise to do something resting on a future event, is not Within Ky. St. Sec. 1208 (Russell’s St. Sec, 3474), denouncing false pretenses and frauds, yet a promise of future performance, when coupled with a false statement as to a past or existing fact or facts which induces another to r-ely on the false promise, will', in connecfion with the false statement as to the existing fact or facts, constitute a false pretense within the statute.</p> <p>3. False Pretenses — Pretenses Calculated to Deceive. — While, in order 'to sustain a conviction for false pretenses, it must appear that the pretenses were such as were calculated to mislead and deceive, whether they were so calculated must he determined in accordance with the capacity of the person attempted to he defrauded.</p> <p>4. False Pretenses — False Representations — Nature—Operation to Deceive. — Prosecutrix, an aged colored woman, horn in slavery, illiterate, and living on a pension from the United States, was approached hy defendant, a negro preacher, who informed her that he was a government employe, drawing $50 a month, that he needed her house for headquarters, that he had $625 which he agreed to pay her for the house, and would employ her as housekeeper, for the government, at $2 a week. All these representations were false, and by them he obtained a deed for the property represnting that he would pay the $625 to a certain firm from which she could draw it. After obtaining the déed, he mortgaged the property, and then conveyed it to another at an advance, without paying any part of the price. Held, that such representations were calculated ta deceive an ordinary person of prosecutrix’s condition and information and were therefore sufficient to sustain a conviction.</p>

<p>1. Descent and Distribution — Persons Entitled — Infaift Dying Without Issue — -Real Estate Derived from Parent.- — Under Ky. St. 1909, Sec. 1401 (Russell’s St. Sec. 3819), providing that if an infant dies without issue having title to real estate derived by gift, devise, or descent from one of his parents, the whole shall -descend to that parent and his or her kindred as hereinbefore provided, if there is any, and, if none, then in like manner to the other parent and his or her kindred, where such an infant dies owning real estate so derived from one .of his parents, the whole thereof shall descend- to that parent, or his or her kindred; the words “to that parent and his or her kindred, as hereinbefore directed,” referring merely to the order in which such kindred, if any, shall take, distinctly set out in section 1393 (Russell’s St. Sec. 3810).</p> <p>2. Life Estates — Adverse Possession as Against Remainderman. —The possession of one holding an estate by the curtesy is not hostile or adverse to the interests of the remainderman, but is in fact the possession of. the remainderman.</p> <p>3. Descent and Distribution — Persons Entitled — Brothers and Sisters of Whole and Half Blood. — In distributing an estate, a distinction is made between brothers and sisters of the whole blood and those of the half blood; the latter receiving half as much as the others only when the estate is to be appropriated among both classes, and, where there are no next of kin of the whole blood, those of the half blood receive the whole estate.</p> <p>4 Life Estate — Improvements by Life Tenant — Liability of Remainderman. — A life tenant cannot make improvements on the land and charge them on the estate in remainder, or make them a personal charge against 'the remainderman, especially where he knew that his interest was limited to a life estate, and made improvements for the comfort and convenience of himself and family.</p>

<p>1.. Ejectment — Proof of Title — Prior Patents. — The patent of P. through which plaintiff derived title, excluded 700 acres previously patented. Plaintiff introduced no evidence showing that the land in dispute was situated outside of the previously patented boundaries; but there was evidence that the L. and D. patents, which were prior in date to the P. patent, included the land in dispute. Held, that defendant was entitled to a peremptory instruction, under such evidence, for plaintiff’s failure to show title in herself.</p> <p>2. Adverse Possession' — Sufficiency'—Question for Jury. — Where the testimony of the parties in ejectment as to their possession under a claim of title by adverse possession was conflicting, such clams should have been submitted to a jury.</p> <p>" 3. Ejectment — Adverse Possession — Instructions.—An instruction that the jury should find for defendant as to 28 acres of the land in controversy, when the evidence contained no showing that defendant had other than a possessory title thereto, and there was a sharp conflict with reference to adverse possession was erroneous.</p> <p>4 Adverse Possession — Instructions.—Where, in ejectment, there was evidence, without contradiction, that plaintiff and her vendors had a small part of the L. patent under fence claiming it as their own for more than 20 years before defendant and his vendors claimed to have acquired possession, and the court charged the jury to find peremptorily for 28 acres of the L. survey, a further instruction, authorizing the jury to find for plaintiff as to the balance of the land, unless defendant and his predecessor in interest, prior to the “filing of the action” had been in actual, notorious, continuous possion of the land by inclosures, was erroneous.</p> <p>5. Ejectment — Instructions—Verdict—Form.'—In Ejectment the jury shotíld be instructed that, if they find for plaintiff the whole of the land in contest, they should so say in the verdict, but, if they find for only a part, they should say for what part.</p> <p>6. Trial — Verdict—Concurrence of Jurors. — Though nine jurors may find a verdict, if less than twelve agree thereon, all agreeing must sigh the verdict; -but, if they all agree, only the’ foreman need sign it</p>

<p>1. Appeal and Error — Review—Facts Admitted by Demurrer.— In determining whether an answer states a good deiense, the statements therein admitted by demurrer must be accepted as true on appeal.</p> <p>? Landlord and Tenant — Failure of Tenant to Deliver Possession — Penalty—Double Rent — Construction of Statute. — Ky. St. Sec. 2293 (Russell’s St. Sec. 4551), providing that a tenant whose term expires at a certain time, who shall refuse to deliver possession, shall pay to the landlord double rent, was enacted to prevent a tenant from wrongfully withholding the property without having cause to believe that lie could rightfully do so; and if, actuated by such a belief, a tenant resists the landlord’s attempt to deprive him of the property, he is not liable for double rent.</p> <p>3. Landlord and Tenant — Tenant Holding Over — Penally—Good Faith of Tenant — Question of Fact. — Whether a tenant holding over acts in grod faith is a question of fact; and, to prove good faith, he may show that he laid his case' before a competent attorney, and was advised that he had a contract right to remain in possession of the premises.</p>

<p>1. Criminal Law — Venue—Change—Local Prejudice. — Accused, a negro, killed his employer, a prominent white man. A mob attempting to lynch accused on the night he was placed in jail, being balked in that design, and no. effort having been made to punish any of them, when accused was removed beyond their reach, took four innocent negroes, friends of accused, and hanged them. This deed led the people to apprehend a counter attack by the negroes, which resulted in a midnight alarm, when all the men of the place were called to arms, only a week before accused’s application for a change of venue was heard. Up to the time of the trial, the .condition of public sentiment in the county was such that it was impossible to induce a member of the local bar to take part in the defense. Held, that accused was entitled to a change of venue under Ky. St. 1909, Section 1109, (Russell’s St. Sec. 3219), providing therefor, when it appears that accused cannot have a fair trial in the county where the prosecution is pending.</p> <p>2. Criminal Law — 'Change of Venue — Determination.—In deciding the question of a change of venue, the court will not be concluded by the opinion of witnesses, but will look to the facts for itself, since it may happen that the same feeling which prevents his having a fair trial may prevent him from obtaining witnesses to so testify on motion for a change of venue.</p> <p>Si, Criminal Law — -Venue—Change—Application—Necessity for Renewal upon Second Trial. — Where accused at his first trial applied for a change of venue, which was denied, he was not required to renew his application at a second trial, after a disagreement, to save his rights, since the law only allows one application.</p> <p>4. Criminal Law — Evidence—-Physical Examination of Accused. —In a murder case, where accused claimed that he shot in self-defense, and it was admitted that decedent shot once at accused, who claimed that decedent had shot twice, the court should on accused’s motion, order him to be taken from jail to a doctors’ office for X-ray examination to show whether h-e was shot in the breast, the bullet having lodged in his back; such fact, If proved, tending to strengthen his testimony as to what occurred at the time of the homicide.</p> <p>5. Criminal Law — Evidence—Limiting Effect- of Impeaching Testimony. — In a murder case, decedent’s wife testified to being present and seeing what took place at the time decedent was shot, and being asked if, at the inquest, she did not testify that she was in the house and did not knqw what took place, stated that she did not so- testify, whereupon accused introduced testimony that she did so testify before the coroner’s jury, and the commonwealth introduced witnesses to the contrary. Held, that the court should have charged that all testimony as to what the wife said before the coroner’s jury should only be considered on the question of her credibility, and not as substantive evidence of what in fact took place at the time decedent was killed.</p>

<p>1. Execution — Sale—Vacating—Irregularities Affecting Sale.— • An execution sale not advertised as required by Ky. St.. Sec. ' 14a (Russell’s St. Sec. 24), will be set aside on timely motion.</p> <p>2,. Execution — Sale—Vacating—Proceedings—Time.—A motion ' to set aside an execution sale, filed before proceedings to enforce the lien acquired by the 'purchaser, is in time.</p> <p>3. Execution — Sale—Bids.—In selling incumbered land on execution under Ky. St. Sec. 1709 (Russell’s St. Sec. 136), giving the purchaser simply a lien and permitting the debtor to redeem by paying the original incumbrance with legal interest,, and by paying the purchaser his purchase money with 10 per cent, interest, the sheriff cannot receive a bid in excess oí the debt, interest, and costs, as provided by section 1675 (Russell’s St. Sec. 128), which applies only to sales where the property is not susceptible ol division and the title passes to the purchaser.</p> <p>4. Execution — Sale—Bids.—Where incumbered property susceptible of division is sold on execution under Ky. St. See. 1709 (Russell’s St. Sec. 136), the highest price is a bid to pay the debt, interest, and costs, and take the least number of acres, and the bidding on this basis should begin by asking for the lowest bid.</p>

<p>CASE 8 — ACTION BY J. I. CASE THRESHING MACHINE CO. AGAINST M. H. CRUMP AND OTHERS. —</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Prom the judgment the defendant, M. H. Crump, appeals. —</p>

<p>1. Appeal and Error — Time to Appeal — 'Statutes—The time within which to appeal under Civ. Code Prac. Sec, 745, declaring that an appeal shall not be granted, except within two years after the right to appeal first accrued, etc , begins to run against the defeated party when the judgment was rendered, and it continues' to run until the two years expire, and where the appeal is not taken within two years it is barred by limitation, notwithstanding the death of the defeated party during the two years.</p> <p>2. Appeal and Error — Death of Party — Effect^-” Privy.” — Under Civ. Code Prac. Sec. 734, providing that an appeal shall be granted as a matter of right on the application oi either party or his “privy,” on filing with the clerk a copy of the judgment. and section 745, declaring that an appeal snail not be gran tea except within two years next after the right to appe?.l first accrued, the attorneys representing the estate of the deceased defeated party may within two years after judgment file a copy of the judgment and take out the appeal, acting for the estate, and thereafter the administrator may revive the appeal in his name as administrator; tne wor'l “privy” including those claiming under the party such as heirs and devisees.</p>

<p>1. Divorce — Right of Action. — The right to a divorce is purely statutory.</p> <p>2 Divorce — Actions—Appeal—Relief Granted on Appeal. — While, by the direct provisions of Ky. St. Sec. 950 (Russell’s St. Sec. 2784), a judgment granting a divorce may not be reversed the Supreme Court may, on appeal in an action therefor, examine the record to determine whether the party granted a divorce was entitled thereto, and, if -not, may grant such other relief as to property or alimony as may 'be proper, though the decree of divorce cannot he disturbed.</p> <p>3. Divorce — Grounds—Lewdness.—Under- Ky. St. Sec. 2117 (Russell’s St. Sec. 67), stating the grounds on which a wife may have a divorce, mere lewdness of the husband, short of living in adultery with another woman, is not made a ground for divorce.</p> <p>4. Husband and Wife-Separate Maintenance ' of Wife. — A wife may sue for alimony though not entitled to an absolute divorce, as where the husband’s conduct compelled her fot her peace and security to leave his home, or his lewd conduct made cohabitation there impossible without shame o.r embarrassment.</p> <p>5 Divorce' — Actions—Burden of Proof — Credibility or Witness.— Where there was no certificate of the credibility or good character of the witness relied on to prove lewdness as a ground for alimony in a divorce action and her credibility was not known to the trial judge, one of which means of determining her credibility is required by statute in order to grant relief on her testimony, the usual presumption of credibility did not. apply, and Ihe burden wag upon the party relying on such witness to show her credibility,</p> <p>6. Divorce — Actions—¡Sufficiency of Evidence. — In a divorce action against the wife in which she alleged lewdness by plaintiff as a ground for divorce and alimony, .evidence, even if competent, held not to show lewdness.</p> <p>V. Divorce — Legislative Policy — In order to justify the granting of a divorce, the evidence must satisfactorily establish one of the statutory grounds of divorce, and a mere suspicion, though based upon some evidence, is not sufficient to justify either separation or absolute divorce.</p> <p>8. Divorce — Harmless Error. — Time of Submitting Case. — That defendant’s interrogatories, in a divorce action to secure evidence on the question of alimony had not been answered for the length of time to entitle plaintiff to have the case submitted for judgment, when it was sumbitted, did not prejudice defendant, where she failed to establish her right to alimony, though allowed ample time.</p>

<p>3. Banks and Banking — Officers—Offenses—Insolvency—Receiving Deposits — Indictment—"Deposit.”—An indictment of the president of a hank for receiving a, deposit knowing the hank to be insolvent, which alleged the receipt of a deposit of the value of $130, was sufficient to show that the deposit was in money, checks, or drafts, aggregating the amount specified; the word “deposit” being used in its popular sense to imply that the depositor had placed in the hank money, or evidences or representatives of money such as banks of deposit are authorized to, and do, receive; so that the indictment was not defective for failure to accurately describe the items.</p> <p>2. -Indictment and Information — Bill of Particulars. — Where an indictment against a bank president for receiving a deposit with knowledge of the hank’s insolvency alleged that'the deposit was of the value of $130, a bill of particulars specifying the items was not required.</p> <p>3. Banks and Banking — Offilcers—Offenses—Receiving Deposits Illegally. — In an indictment of a bank president for receiving a deposit knowing that the bank was insolvent, it was nor necessary to allege the name or style of the office in the bank held by the person who received the deposit.</p> <p>4. Banks and Banking — Receiving Deposits Illegally. — In a prosecution of a bank president for receiving a deposit with knowledge of the bank’s insolvency, the person who actually „ received the deposit, the position he held in the bank, or the name of the individual who made the deposit in person was not material.</p> <p>5. Indictment and Information — Allegation of Insolvency. — An allegation that the bank of which accused wab-president was insolvent when he received the deposit in question was an allegation of fact and was not objectionable as a conclusion.</p> <p>(t Banks and Banking — Officers—Offenses—Receiving Deposits Illegally. — In a prosecution of a bank president for receiving a deposit knowing that the bank was insolvent, in violation of Ky. St. Sec. 597 (Russell’s St. Sec. 2186), the state must prove that the deposit described in the indictment was actually 'received; that at the time it was received the bank ’was insolvent; that accused -had knowledge of its insolvency, and, with such knowledge, assented to receiving the deposits. *</p> <p>7. Banks and Banking — Offenses—Receiving Deposits Illegally— Evidence — Notice.—In a prosecution of a bank president for receiving deposits with knowledge of the bank’s insolvency, an affidavit, made by the cashier of the bank on the day following the receipt of the deposit, stating that the bank was insolvent; letters written to accused by persons interested in the bank suggesting that it was not being prudently managed, the fact that depositors who attempted to withdraw their deposits were not allowed to do so; evidence of excessive loans made to accused- to other members of his family, and to further activities in which he was interested; the fact that the bank paid a high rate of interest on deposits; the value and character of insolvent and worthless paper carried by the bank, and the amount ultimately realized from the disposal of all the bank’s assets administered in a prudent and businesslike way; fraudulent methods resorted to by accused in making reports to the Secretary of State; failure to keep on hand the reserve required by the statute; loans to individuals in excess of the amount permitted by law — were admissible to prove that accused had notice that the bank was insolvent when he received the deposit.</p> <p>8 Criminal Law — Evidence—Other Offenses — Relevancy.—In a-prosecution of a bank president lor receiving deposits with knowledge of the bank’s insolvency, false reports made to the Secretary of State, relevant on the issue of defendant’s knowledge of the insolvency of the' bank, were not objectionable because they also showed the commission of a distinct offense.</p> <p>9. Criminal Law — Offense—Official Records. — A report of the assets and liabilities of a bank made to the Secretary of State, and signed by defendant as one of the directors, were official records made under authority of law; and hence it was not necessary that the state, in a prosecution of the bank’s president for receiving deposits with knowledge of the bank’s insolvency, should prove that the reports were signed by accused, before they would be admitted in evidence.</p> <p>10. Banks and Banking — Bank Officers — Offenses—Illegally Re-> ceiving Deposits. — Where a bank remained open for the transaction of business and the reception of deposits, the law would presume that the president assented to the reception of such deposits as were shown by the bank’s books.</p> <p>11. Criminal Law — Appearance of Witnesses — Prejudice.'—In a prosecution of a bank president for receiving deposits with knowledge of the bank’s insolvency, he was not prejudiced by the fact that some of the Witnesses produced by the commonwealth were old and feeble, and had the savings of a lifetime in the bank, while others were poor, laboring women, who intrusted their meager earnings to the bank’s keeping.</p> <p>12. Banks and Banking — Appeal—Evidence.-—Representations by accused as to the solvency of the bank of which he was president to persons he was soliciting as ’ depositors and to others were not prejudicial to him in a prosecution for illegally receiving deposits, but corroborated his own evidence that he believed that the bank was solvent.</p> <p>13. Banks and Banking — Officers—Offenses—Illegally Receiving Deposits — “Insolvency.”—The term “insolvency” as used in Ky. St. Sec. 597 (Russell’s St. Sec. 2186), providing that, if any president of a bank shall receive or assent to the receiving of deposits with knowledge that the bank is insolvent, he shall be guilty of a felony, means that all of the bank’s property and assets are not sufficient to sa+isfy its debts, and not that it may not have sufficient funds in its vaults to satisfy all of its depositors, or any considerable number of them, on the same day, or in case of a run.</p> <p>11. Banks and Banking — Officers—Offenses—Illegally Receiving Deposits — Instructions.—Where, in a prosecution of a bank president for illegally receiving deposits with knowledge of the bank’s insolvency, there was no effort made by the commonwealth to prove thai. the bank was insolvent merely because it did not have sufficient cash on hand to pay its depositors. and evidence was offered demonstrating that when the bank received the deposit all its assets, prudently administered, were only sufficient to pay a very small dividend to its depositor's, an instruction that a bank is “insolvent.” within the meaning of the law creating such offense, when its property and assets are such that it cannot meet its demands in the ordinary course of business should be construed as'requiring that the evidence should show that all the bank’s assets were insufficient to pay its debts, and was not, therefore, erroneous as authorizing a finding of insolvency in case the bank had insufficient monetary funds to pay depositors on demand.</p> <p>15. Banks and Banking — Officers—Offenses—Illegally Receiving Deposits — “Knowledge.”—The word “knowledge” as used in Ky. St. Sec. 597 (Russell’s St. Sec. 2186). making it a felony for a bank president to receive deposits with knowledge of the bank’s insolvency, has ne technical meaning, but meant that the officer had knowledge of the existing condition by means of his relation to the bank, his association with it, and his control over it; his direction thereof being such as to give him actual, personal information concerning it.</p> <p>J6. Criminal Law — Appeal—Review.—Under Cr. Code Prac. Sec. 340, providing that a conviction shall only be reversed for errors of law, apparent on the record, which the court will believe prejudicial to the substantial rights of accused on consideration of ihe whole case, accused, on appeal, in order to obtain a reversal, must affirmatively show errors of law thar have prejudiced his substantial rights, and are of sufficient importance to reauire a new trial.</p> <p>17. Criminal Law — Trial'—Presumption of Innocence. — The presumption of innocense that protects accused ends with a judgment of conviction; it being presumed on appeal that his trial was regular, and that his guilt was duly established.</p>

<p>1. Boundaries — Control of Monuments — Courses and Distances, —Both courses and distances of a boundary line must yield to'well-known and fully identified objects called for in a line.</p> <p>2. Boundaries — Location—Evidence.—Evidence held to show that trees still standing were located as’a corner by commissioners when dividing land upon its partition, and not certain trees which have disappeared.</p> <p>3. EJstoppel — Estoppel by Record — Claim of Dower tp Claim.— Though a widow had never conveyed her dower by a deed in the statutory manner, she was estopped to make any claim thereto after having disclaimed any right there to by proper pleading m a case.</p>

<p>1. Executors a.nd Administrators — Contracts oí Administrator— Validity. — A majority of the heirs of testator, entitled under the will to 51-56 of the estate, employed an attorney to prosecute a claim in favor oí the estate, agreeing to pay the attorney a part of the amount collected. The administrator subsequently appointed, employed such attorney, his brothel’, to prosecute the claim on the same terms. The acts of the administrator in managing the estate were fair and along business lines. Held, that the administrator, in employing the attorney, was not guilty of improper conduct.</p> <p>2. Executors and Administrators — Acts of Administrators — Statutory Authority. — Under the statute requiring the adminis-' trator to collect any claims due the estate, the administrator of an estate having no money may contract with an attorney on a contingent basis to enforce a claim against the federal government, rejected by the Court of Claims and by the federal Supreme Court, and thereby perform the duty imposed by the will directing the disposition of the proceeds óf the claim, especially where legatees entitled to 51-56 of the estate had previously employed the attorney to enforce colleo tion of the claim on the same terms.</p> <p>S. Contracts — Validity—Lobbying Contract. — A contract employing an attorney to prosecute a claim against the federal government for property seized by federal authorities during the Civil War is not invalid as a lobbying contract on it appearing that the claim was dependent on establishing before the proper committees of the federal.Senate and House of Representatives the fact that the owner of the property had been a loyal citizen.</p> <p>4. Estoppel — Acts Constituting Estoppel. — Part owners of cotton seized by federal authorities during the Civil War, who permitted one of the owners to represent to the government that he owned all the cotton, and who intrusted the conduct of the prosecution of the claim to him, could not. complain of the act of his administrator employing an attorney on a contingent basis to enforce the claim.</p> <p>5 Executors and Administrators — Employment, of Attorneys — - Payment of Services. — Where an administrator properly employed an attorney to prosecute a claim due the estate, and the attorney rendered services which were acceptable to the administrator, the administrator should aid the attorney in the collection of his fees, and should at least not interpose any obstacles in the way of efforts of the attorney to collect his fees.</p> <p>C Executors and Administrators — Expenses of Administrator— Allowances. — A claim by an administrator for expenses incurred in collecting a claim due the estate must be rejected in the absence of a showing that the services were extraordinary.</p> <p>7. Executors and Administrators — Expenses for Administrator’s Bond — Allowances—Statutes.—Under the statute allowing the administrator compensation not exceeding a specified per cent, of the gross amount which he receives and disburses, without authorizing the court to pay for the bond which he must give, the court cannot allow an administrator the sum paid a bonding company for signing his bond.</p> <p>8. Executors and Administrators — Compensation of Administrator.- — Un<i6r the statute allowing the administrator compensation not exceeding a specified per cent, of the gross amount which he receives and disburses, the court should allow the administrator a commission on interest received by him on the funds of the estate pending a litigation involving the disposition of the funds.</p> <p>9 Executors and Administrators — Compensation of Administrator — Allowance.—An administrator collected a claim from the federal government, based on the act of the federal authorities seizing during the Civil War property belonging to the decedent. The Court of Claims and the federal Supreme Court had rejected the claim. The intestate had endeavored during many years to enforce the claim, but without success. The administrator in collecting the claim was required to travel to and from Washington, and was required to give a large bond at considerable expense. Held, that he was entitled to an allowance of 5 per cent, on the gross sum received from the federal gpv-ernment.</p> <p>10. Executors and Administrators — Employment of Attorneys— Allowance. — Where it is necessary for a personal representa tive to have the assistance of an attorney in the settlement of the estate, the court must make a reasonable allowance as compensation for the services of the attorney.</p> <p>11. Executors and' Administrators — Employment by Administrator of Attorney — Compensation—Allowance.—An administrator employed an attorney to collect a claim against the federal government. The attorney was successful. Third persons and persons interested in the estate brought suits involving the disposition of the sum collected, and the administrator employed an attorney. Held, that the administrator was entitled to an allowance for attorney’s fees.</p> <p>ON PETITION FOR MODIFICATION OF OPINION. .</p> <p>1. Executors and Administrators — Commissions.—-Where on the settlement of an administrator’s account he -had received $70,289.87, with interest earned since the date of the accounting, he was entitled to 5 per cent, on such sum m payment for all services rendered by him.</p> <p>2. Executors and Administrators — Counsel Fees. — An administrator, being required to administer the estate according to law, was entitled to a counsel of his own choosing, whose fees should be paid out of the estate.</p> <p>3. Executors and Administrators — Loaning Money — Interest.— Where an administrator of an estate in litigation could not know when the litigation would end, nor how soon he would be required to make a distribution, and was therefore not warranted in loaning the money of the estate, except on call, as he did, he was only chargeable with such interest as he received in the exercise of due dilligence, and ntt for interest at the legal rate.</p>

<p>1. Statutes — Construction—Giving Effect to Entire Statute— Conflicting Provisions. — All sections of an act if they be germane one to the other, and relate to the same common ■ subject, must be construed together, and apparently conflicting or contradictory provisions or sections reconciled so as to make, if practicable, one harmonious intelligent whole, expressing the legislative intent.</p> <p>2. Licenses — Act Regulating Barbering — Persons 'Subject Thereto. — Section 1, c. 51, p. 101, Laws 1902 (Ky. St. Sec. 165a (Russell’s St. Sec. 2279), makes it unlawful for any person to follow the occupation of barbering in cities of the first, second, and third class without a certificate of registration, but that the act shall not apply to persons now engaged in barbering, or who'have been so engaged during three years prior- to the taking effect of the act. Held, that the proviso does no more than exempt the persons named therein from the taking of an examination, and does not relieve them from the other requirements of the act, including the payment of a fee for a renewal card.</p> <p>3. Licenses — Act to Regulate Barbering — Unlawful Discrimination. — That under Laws 1902, p. 101, c. 51 (Ky. St. Sec. 165a [Russell’s St. Secs. 2279-2291]), to regulate barbering, persons engaged in the business for more than three years are exempt from examination which others must submit to, is not an unlawful discrimination in their favor.</p> <p>4. Health — Trade or Occupation Affecting Public Health — Right to Regulate and Control. — The right to regulate and control persons engaged in any trade or occupation that affects the health of the people is no longer an open question.</p> <p>5. Constitutional Law — Class Legislation — Act to Regulate Barbering. — Laws 1902, p. 101, c. 51 (Ky. St. 165a, [Russell’s St. Secs. 2279-2291]), to regulate barbering, is not unconstitutional as class legislation because it is confined to barbers in first, second, and third class cities.</p>

<p>CASE 15. — ACTION BY DAISY OFFUTT AGAINST STATAR MONTGOMERY AND OTHERS —</p> <p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>1. Venue — Actions Relating to Real Property — Statutes.—Civ. Code Prac. Sec. 62, Subsec. 4, providing that actions for injury to real property must he brought in the county in which the subject of the action is situated, applies only to actions that arise or may b.e brought in the state, but the rule must not be arbitrarily enforced where the injury results from a cause arising in a county or state other than the one in which the property is situated.</p> <p>2. Pleading (Sec. 214) — Demurrer—Effect.—The court, for the purpose of 'determining .the question' of jurisdiction, must accept as true the averments of the petition demurred to.</p> <p>3. Courts — Jurisdiction—Injury to Real Property. — An action for the destruction of real property situated in one state, caused by the negligent explosion of dynamite in anothe" state, may be brought at. the option of the owner in the county an'd state where the land lies, or in the county and state in which iiie negligence was committed, because the injury and wrongful act mus' te deemed as having occurred together or in immediate connection and in the same jurisdiction or in either of the two jurisdictions.</p>

<p>1. Constitutional Law — Police Power — Means Adopted in Exercising — Discretion of Legislature. — The means adopted by the Legislature in the exercising of the police power, so long as they have an ascertainable relevancy to the object, are within the scope of that power, and whether the end justifies the means is exclusively for the legislative discretion, and whether the means bear a pertinent and reasonable relation to the end may. be looked into by the courts, so far only as to determine the fact of pertinency and reasonableness, and the courts will not declare an act unconstitutional except when the means adopted are manifestly unreasonable or bear no logical relation to the object of the legislation.</p> <p>2. Constitutional Law' — Nature of Government. — The object of government is to conserve the public welfare which is done by promoting legitimate occupations and industries, as well as by checking evils that have an immoral tendency.</p> <p>8. Animals — Breeding—Statutory Regulations. — Act MArch 28, 1908 (Laws 1906, p. 466, c. 137), to regulate the racing of running horses and to establish a state racing commission, and prescribing its powers and duties, was intended to foster the industry of breeding thoroughbred horses.</p> <p>4. Animals — Breeding—Regulation—Police Power — Postering Industry of State. — The fostering of the industry of breeding thoroughbred horses in the state is within the police power.</p> <p>5. Theaters and Shows — Regulation—Police Power — Horse Racing. — Horse racing in public may be regulated by a state under police power, or may be prohibited, altogether.</p> <p>6. Constitutional Law — Legislature—Delegation of Power. — Act March. 23, 1906 (Laws 1906, p. 166, c. 137), entitled an act to regulate the racing of running horses, to establish a slate racing commission, and prescribing its powers and duties, provides (section 1), that corporations formed for the purpose of racing and breeding or improving the breed of horses and conducting races may, subject to the provisions of the act, hold one or more running race meetings each year. Section 2 provides for a state racing commission of five persons with stated qualifications. Sec. 3 gives the commission power to prescribe regulations under which running races shall be conducted, and forbids the holding of races except by a corporation or association licensed by the commission. The act. also provides that the decision of the commission in issuing, refusing, or revoking licenses shall be subject to a court review. Held, that the act is a police regulation, not a total prohibition, outlawing all racing, except as licensed by the commission, who shall in advance, prescribe the general conditions upon which the license may be obtained, and shall ascertain the fact whether a given applicant for license is so situated as to conduct orderly, lawful public races; the Legislature declaring the law, and the commission ascertain- . ing the facts, so that the statute does not give the commission arbitrary power or devolve upon it the power of legislation so as to render it unconstitutional.</p> <p>7. Constitutional Law — Legislation—Delegation of Power. — The provision giving courts jurisdiction to review the action of the racing commission would not relieve 'the. act from the objection, if there -were any, that it conferred arbitrary power on the commission, as the courts cannot exercise any but judicial functions, and cannot review on appeal purely ministerial discretion and such power cannot be conferred upon them by legislation, nor can the commission as ministerial officers exercise judicial powers.</p> <p>8. —Constitutional Law — Uniformity—Class Legislation. — Class legislation is repugnant only when it is special, and not general and partakes of the character of a private act, and Act March 23, 1906 (Laws 1906, p. 466, c. 137), to regulate the racing of running horses, which requires the procuring of a license to conduct such races, and exempts trotting races from the operation of such act, is not unconstitutional' because class legislation, since running and trotting races are distinct classes.</p>

<p>Mortgages — Absolute Deed as Mortgage — Parol Evidence. — Parol Evidence is admissible to show that a deed, absolute in its terms, is a mortgage to secure a debt.</p>

<p>CASE 19. — ACTION BY J. P. LAVIN AGAINST THE CHESAPEAKE & OHIO RAILROAD COMPANY FOR LOSS OF A BOX OF MERCHANDISE —</p> <p>Appeal from Floyd Circuit Court.</p> <p>D. W. Gardner, 'Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 20. - ACTION BY OFFUTT & BLAOKBIJRN AGAINST WILLIAM J. CARLEY. -</p> <p>Appeal from Scott Circuit Court.</p> <p>J~. L. STOUT, Circuit Judge.</p> <p>Judgment for plaintiffs,, defendant appeals.</p>

<p>CASE 21. — ACTION BY G. M. MONEY, SUPT. OP SCHOOLS, AGAINST BEARD & MARSHALL. —</p> <p>Appeal from Shelby Circuit Court.</p> <p>C. C. Marshall, Circuit Judge.</p> <p>Judgment for defendants, plaintiff- appeals. —</p>

<p>Counties — Fiscal Court — Ordering Levy of Tax — Repealing Order. —The fiscal court of a county in ordering the levy of a tax to pay a judgment of a bank against the county acts in a legislative capacity, rather than a judicial capacity, and so may, at a subsequent term, repeal such order, where no rights have become vested by virtue of such order; as is the case where the bank having also recovered judgment for the amount of the debt of the county to it, against a tax collector for his failure, to collect a tax previously levied to pay the bank, such collector paid the judgment but not till after such repeal of such order, and therefore not in reliance on its validity.</p>

<p>CASE 23. — ACTION OF THE COMMONWEALTH! BY HOLLAND L. ANDERSON. REVENUE AGENT, FOR THE COMMONWEALTH AGAINST THE CITY OF PADUCAH.</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>■ Judgment for plaintiff, defendant appeals. —</p>

<p>False Personation — Indictment — Sufficiency — False Impersonation of Officer. — Ky. St. c. 36, Subd. 2, Sec. 1212 (Russell’s St. Sec. 3479), makes any person pretending to act under any civil authority who shall without warrant of law collect any sum under the pretense of a tax or shall under any such pretense demand any property, etc., guilty of felony. The indictment charged that accused unlawfully, and pretending to do so as a deputy sheriff and without warrant of law, collected from another a sum, pretending that it was a tax for a certain year when such person was not assessed. Held, that the indictment was bad for not alleging that accused was not a deputy sheriff when he collected the money, a mere false representation that the money collected was a tax not constituting an offense under the statute.</p>

<p>CASE 25. — ACTION BY DAVID MARCUM AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY. —</p> <p>Appeal from Lawrence Circuit Court.</p> <p>J. B. Hannah, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 26. — ACTION BY HENRY MUNROE AND OTHERS DOING BUSINESS AS JOHN MUNROE & CO. AGAINST ROSA ADAMO. —</p> <p>Appeal from Lawrence Circuit Court.</p> <p>W. C. Halbert, Circuit Judge.</p> <p>Judgment for defendant, plaintiffs appeal. —</p>

<p>Bills and Notes — Construction of Note — .Fulfillment of Conditions. - — The husband of plaintiff’s testatrix executed a note for $1,-000 payable at his death or the death of his wife, if she survived him, if there was enough of his estate then left to pay it. By his will he left all his property, subject to the payment of his debts, to his wife who survived him. When the wife died, she left an estate of some $22,1100, much of it the identical property left by her husband, all of which she disposed of by will. Held, that the note was a valid claim against the estate of the wife.</p>

<p>1. Executors and Administrators — Right to Appointment. — Ky. St. Sec. 3896 (Russell’s St. Sec. 3919), provides that administration shall be granted to the relations of deceased, preferring the surviving husband or wife, and then such others as are next entitled to distribution. Section 3897 provides that, if no such person applies for administration, administration may be granted to any person in the court’s discretion. Held, that where, on motion of a married daughter of a deceased widow, one designated by her was appointed administrator of the estate, and a son of decedent applied at the second county court from the death of decedent for appointment as administrator, it was error to refuse his application.</p> <p>2. -Executors and Administrators — Appointment—Proceedings.—Where a son of a decedent applied for appointment as administrator, affidavits filed by his sister and by the administrator previously appointed, claiming that the appointment of the son would be improper because of litigation which might arise in which the interest of the applicant would probably compel him to antagonize the interests of his sister, were insufficient to preclude the applicant’s appointment, the statements in the affidavit being clearly conjectural, and it not being presumed that his purpose was to obtain advantage over his sister.</p>

<p>1. Adverse Possession — Sufficiency of Evidence. — Defendant ■does not prove adverse possession for 15 years of land under an oral trade therefor ,by B. with G., the then owner thereof, though two or three witnesses testified the exchange of lands between G. and B. was made, and a line dividing the lands exchanged was marked, 25 years or more ago; they being evidently mistaken, the petition alleging, and the answer not denying, that G. did not become owner of the land till a certain date, less than 15 years before the commencement of the action, and the deed conveying the land to G. bearing such date, and this being conclusive of such fact.</p> <p>2. Frauds, Statute of — Exchange of Lands. — While an oral agree ment fixing a dividing line between the adjoining lands of antagonistic parties is not within the statute of frauds, an oral -exchange of lands is within it, like an oral sale of lands.</p> <p>3. -Compromise 'an-d -Settlement — -Evidence—Insufficiency.—¡Evidence held not sufficient to show that an agreement settling a controversy as to land was signed by defendant without knowledge of its contents, and was procured by the fraud of plaintiff.</p>

<p>CASE 30. — ACTION BY DELILAH DUFF AGAINST THE VIRGINIA IRON, COAL & COKE COMPANY AND OTHER'S —</p> <p>Appeal from Perry Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals. —</p>

<p>1. Licenses — Amount of Fee — Reasonableness.—Tlie rule that the amount of a license fee imposed as a tax is ordinarily a question for the taxing power and the courts will not inte! fere with its discretion is subject to the limitation that the tax must not amount to a prohibition of any useful or legitimate occupation.</p> <p>2. Licenses — Loans—Excessive Fee. — The occupation of lending-money on salaries or chattels being a legitimate one, an ordinance imposing a license fee amounting to 80 per cent, of the averge net earnings of companies engaged in such business is void as unreasonable and prohibitive.</p>

<p>CASE 32. — ACTION BY JOHN LUMPKIN AGAINST THE LOUISVILLE & NASHVILLE RAILROAD CO. —</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Rewards — Return of Escaped Convict — Statutes.—Ky. St. Sec. 3798 (Russell’s St. Sec. 5219), providing that the warden shall pay into the state treasury the funds in his hands not required for the current use, and shall deposit all moneys remaining in his hands in some bank to his credit as warden, and shall be allowed no credit in the settlement -of his accounts, unless he shall produce the receipt of the person to whom money was paid by him, showing for what it was paid. Section 4688 (Russell’s St.Sec. 4978; Act March 27, 1893, page 607, c. 169, Sec. 9) provides that no money shall be paid out of the treasury except upon the warrant of the Auditor, drawn upon the Treasurer and then only by the check of the Treasurer upon a designated state depository. Held, that these sections furnish no warrant to- the warden for refusing to pay to one who has returned an escaped convict to the penitentiary the reward prescribed to be paid by section 1936 (Russell’s St. Sec. 3455).</p> <p>2. Rewards — Return of Escaped Convict — Statutes.—Under Ky. St. Sec. 1936 (Russell’s St. Sec. 3455), providing a reward for the capture and return of an escaped convict, a party doing so was entitled to the reward, although thé convict, because of injuries had abandoned the idea of escape, and asked him to return her to the prison.</p>

<p>1. Contracts — Consideration—Presumption—Burden of Proof.— Plaintiff in an action on a written contract need not show a consideration, but lack thereof is for defendant to plead and prove, the law presuming a consideration for a written contract.</p> <p>2. Gaming — Recovery of Deposit as Security. — "Where one gambles with a bucket shop on the rise and fall of the market price, putting up a margin to secure the shop, and loses, an agreement of the shop to pay him back the money is not void under Ky. St. Sec. 1953 (Russell's St. See. 1807), declaring void every contract, the consideration of which is money won or lost at gaming; this merely making void contracts for the payment of gaming debts; section 1956 authorizes the recovery from the winner of money lost at gaming, and section 1959 makes the stakeholder liable, if on demand he does not return the money to the one depositing it.</p> <p>3. Contracts — Validity—Agreement to Pay from Illegal Business. —One's contract to pay another a certain amount is not rendered invalid by the further agreement to pay the net income of a bucket shop till such sum is paid this being but a provision for one means of payment, and not binding him to continue the illegal business, and such business not being'of the essence of the contract.</p>

<p>1. Banks and Banking — Payment of Check Improperly Signed— Liability of Bank. — A bank which had agreed with an insurance company having a deposit with it, that the company’s checks should be honored only when signed by its president, and countersigned by another officer, as required by its bylaws, to the knowledge of the bank, having attempted to pay to itself money from the deposit on a check signed only by the company’s president, was liable to the company’s receiver therefor; and was not entitled to retain it, notwithstanding the check was improperly drawn on the theory that it was used to pay a debt for which the company was liable; it being used to pay a note given to the bank, not by the company, but by individual promoters -thereof, for a loan which they turned over to the company, to enable it to comply with the law requiring it to have a certain amount of cash on hand, over and above any liability, before it can do business.</p> <p>2. Costs — Allowance.—Where the receiver ef a oom-t pany, the officers of which had abandoned it entirely to him, refused to sue a bank on a claim the company had against it, and a creditor of the company brought the action in behalf of all its creditors, and afterwards the receiver was made plaintiff, and the name of the creditor was stricken from the petition as a party plaintiff, it was error in doing so to award costs against him, judgment having finally been rendered against the bank; and the creditor having under the circumstances had a right to sue.</p>

<p>CASE 36. — ACTION BY MARTIN GENTRY AGAINST THE CITY OF RICHMOND FOR DAMAGES FROM FLOODING PLAINTIFF’S LAND. —</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Licenses — Constitutionality of Ordinance — Uniformity of Taxation. — Const. Sec. 171, provides that all taxes shall be uniform u-pon all property subject to taxation. -Section 181 provides that the General Assembly may delegate the power to cities to impose license fees on occupations. Ky. St. Sec. 2980, being part of a charter of cities of the first class, provides that each city may impose license fees on occupations. A city of the first class by ordinance provided that every person or corporation who intends to commence the business of selling any goods, etc., except by sample, shall first obtain a license. Held, that the ordinance is not in violation of Const. Sec. 171, as, under that section and section 183, it is competent for cities to select the occupations on which to lay a license tax, and it is not essential that all callings be taxed under the license system, and the city may classify those of the same occupations imposing a different license tax upon each class if the classification is a reasonable one, and the tax imposed is the same on all the class; neither is it essential that the licénse tax shall be uniform with the ■propert;/ tax, the license tax being in addition to the property tax, and it is lawful to impose a license tax -on merchandising as an occupation.</p> <p>2. Licenses — Municipal Ordinances — Validity—Amount.—Whether a license tax is so high as to be prohibitive is tested by considering whether the tax bears so heavily on the class taxed as to prohibit the occupation, and an ordinance imposing a license tax on merchandising which fixes the amount to be paid for one year at $250 if the year begins on the first of September, and the sum of $100 for the time between the 1st of January and the 1st day of the following September, and the sum of $50 for the time beginning at any time between the 30th day of April and the 1st day of August and ending on September 1st, held not -so high as to be prohibitive.</p>

CASE 38. — CONSOLIDATED ACTIONS BY THE 'GLOBE BANK & TRUST COMPANY AND THE FIRST NATIONAL BANK OF PADUCAH AGAINST GEORGE W. BAINS AND OTHERS. — Appeal from McCracken Circuit Court. W. M. Beed, Circuit Judge: Prom the judgment, some of the defendants appeal and plaintiffs file cross-appeal.

<p>CASE 30. — ACTION BY MARY E. DAVIS AGAINST THE COMMONWEALTH LIFE INSURANCE COMPANY. —</p> <p>Appeal from Boyd Circuit Court.</p> <p>W. C. Halbert, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Tender — Mode and Sufficiency — Check—Objections.—Tender of payment by check is sufficient where the drawer has sufficient funds in the bank to meet the payment, unless the refusal is upon the ground that the tender is not in lawful money.</p> <p>2. Specific Performance — Necessity of Tender — Waiver.—When a party covenanted to convey the mineral in lands on payment of a certain sum, his refusal to convey on demand was a waiver of tender of the purchase price by the purchaser giving him an immediate action for specific performance.</p> <p>3. Mines and Minerals — Conveyances and Contracts — Grants of Mineral and Mining Rights — Servitudes.—A covenant to convey the mineral in a part of certain lands, together with all necessary mining rights, included a conveyance of such easements in the balance of the land as were necessary to accomplish the mining and removal of the mineral.</p> <p>4. Mines and Minerals- — Conveyances and- Contracts — Grants of Mineral and Mining Rights — Servitudes.—Where a party covenanted to 'convey the mineral together with the necessary mining rights in certain land which was a parcel wholly within a larger boundary of his land, a right of way over the land not conveyed, as of necessity, was included in the covenant.</p>

<p>CASE 41 — SETTLEMENT OF THE ACCOUNTS OF FRANK PRITCHARD, ADMINISTRATOR OF J. F. CAPLINGER, IN WHICH LINNIE G. CAPLINGER AND OTHERS FILED EXCEPTIONS. —</p> <p>Appeal from Trimble Circuit Court.</p> <p>Charles Marshall, Circuit Judge.</p> <p>From the .judgment Caplinger appeals. —</p>

<p>CASE 42. — PROSECUTION AGAINST WALTER MIDDLETON FOR MURDER. —</p> <p>Appeal from Bell Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Defendant convicted and appeals. —</p>

<p>CASE 43. — ACTION BY THE FIRST NATIONAL BANK .OF HAZARD AGAINST H. C. EVERSOLE AND WIFE.—</p> <p>Appeal from Perry Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>1. Husband and Wife — Separate Maintenance — Right.—A separate maintenance may be awarded a wife upon facts which, would not authorize a divorce under the statute; as, where the wife was justified in leaving her husband’s home because of his conduct.</p> <p>2. Husband and Wife — Separate Maintenance — Action—Sufficiency of Evidence. — Evidence held to sustain a finding that plaintiff was entitled to separate maintenance by defendant, her husband.</p>

<p>Officers — Qualifications—Salary.—Under Ky. St. Secs, 3131, 3132 (Russell’s St. Seos. 1240, 1241), requiring the treasurer of cities of the second, class to give a bond, etc., and section 3758 (section 4855), providing that no officer required to give bond shall enter on the duties of his office until the same is given, one eligible as treasurer, who was duly elected and took the oath of office, and who tendered a sufficient bond and thereafter attempted to perform the duties, was entitled to the office as de jure officer and to salary, though the city authorities arbitrarily refused to approve the bond, and Const. Sec. 160, authorizes an officer to hold the office until his successor is qualified.</p>

<p>1. Carriers — Carriage of Freight — Liability.—A carrier of freight is an insurer against any loss or damage to the goods, except that caused by the act of God, or the public enemy, so that It is liable for a larceny by its agent in charge of the freight.</p> <p>?. Carriers — Principal and Agent — Carriage of Freight — Liability. — The acts of an agent in procuring carriage of freight of his principal are binding on the principal, hut the ignorance of the agent as to the contents of the package delivered for shipment, and innocence of any intention to deceive the carrier, or to conceal the value of the goods, do not affect the liability of the carrier where the principal intended to deceive the carrier or to conceal the value of the goods.</p> <p>3. Carriers — Carriage of Freight — Fraud of Shipper — Effect.-. Where a shipper, to obtain a lower rate or for any other rea. son, gives false information to the carrier as to the contents or value of a package delivered -for transportation, or attempts by concealment to deceive the carrier as to the value •or description of the articles it contains, he cannot recover the value of the goods, where the appearance of the package is not sufficient to put the carrier on notice as to its contents.</p> <p>4. Carriers — Carriage of Freight — Fraud of Shipper — Effect.—A shipper of a trunk by freight must notify the agent of the carrier that it contains money, as a carrier neea not accept money to be shipped as freight, unless it is first notified, so that it may charge a rate sufficient to justify it in taking the degree of care observed in the transportation of money, notwithstanding the Constitution declaring that the common-law liability of a carrier shall not be limited.</p> <p>5. Carriers- — Carriage of Freight — Money.—In the absence of evidence, ¡he carriage of money is strictly speaking not in the line of the duty of a carrier holding himself out only as a carrier of goods, wares, and merchandise.</p> <p>S. Carriers — Carriage of Passengers — Personal Baggage — Liability. — A carrier of passengers permitting them to carry -personal baggage is not liable for the loss of an unusual amount of money carried as baggage, or for-more than might be needed to defray the usual personal and traveling t'.xj enses of the passengers.</p> <p>7. Carriers — Carriage of Freight — Larceny by -\genr — Liability. —A ramer reconing .a trunk for carriage by freight without notice that it contains money is liable for n.e.lai-u;ny of the money -by an agent of the carrier in whose immediate care the trunk is -placed, though the carrier would not have been liable if the money had been stolen by a stranger, or nad been lost by its negligence, or other cause, ana though the shipper was guilty of the first wrong in failing to- notify tne carrier of the fact that the trunk contained money.</p>

<p>CASE 47. — ACTION BY TENNIE EVANS AGAINST THE NEW YORK LIFE INSURANCE COMPANY. —</p> <p>Appeal from ITiclanan Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Gifts — Inter Vivos — Gift of Donor’s “Check.” — A gift of one’s check is incomplete until the check has been paid or accepted by the bank, for a “check” is a mere order to the payee to draw the amount called for, and, when given without consideration, it may be revoked by the maker so long as it remains unacted on in the hands of the payee.</p> <p>2. Gifts — Inter Vivos — Gift of Donor’s Check. — A gift of the donor’s check, payable immediately, and delivered subject to the terms of a written memorandum stipulating that the check shall not be payable until after the donor’s death, is not a valid gift inter vivos.</p> <p>3. Husband and Wife — Contracts—Validity.—Notwithstanding the statutory power of husband and wife to. contract with each other, husband and wife may not contract with each other for the payment by the husband to the wife for her services in nursing him during his illness; it being the duty of husband and wife to attend, nurse, and care for each other, where either is unable to care for himself.</p> <p>4. Bills and Notes — Checks—Consideration.—A check given in payment of services rendered and thereafter to be rendered the maker by the .payee is supported by consideration' and is enforceable, though delivered subject to a written memorandum stipulating that the cheek shall not be payable until after the maker’s death.</p> <p>5. Evidence-Parol Evidence — Consideration of Check. — Evidence of the actual consideration of a check, delivered pursuant to a written memorandum reciting that the check was given for a specified sum due from the maker to the payee, is admissible.</p> <p>6. Gifts — “Inter Vivos” — What Constitutes.- — To constitute a valid “gift inter vivos,” there must be an absolute transfer of the property from the donor to the donee taking effect immediately -and fully executed by a delivery by the donor and acceptance by the donee, and a gift to take effect after the donor’s death, the donor in the meantime retaining the control of the property, is not a valid' gift.</p> <p>7. Husband and Wife- — Gifts of Negotiable Instruments — Written Assignments. — An indorsement on a note, reciting that the payee assigns the principal to his wife, he retaining the interest for life, and that should he outlive his wife the note shall remain a part of his estate, and a delivery of the note is not a valid gift inter vivos to the wife.</p>

<p>CASE 49 — ACTION BY GRANT McDANIEL AGAINST JOHN HUTCHERSON. —</p> <p>Appeal from Mercer Circuit Court.</p> <p>M. C. Satjfley, Circuit.Judge.</p> <p>Judgment of dismissal, and plaintiff appeals. —</p>

<p>CASE 50. — ACTION BY OWEN COUNTY AGAINST P. A. ALEXANDER. —</p> <p>Appeal from Owen Circuit Court.</p> <p>J. W. Cammack, Circuit Judge.</p> <p>From the judgments defendant appeals and plaintiff cross appeals. —</p>

<p>CASE ,61. — ACTION BY HIRAM BLOW & CO. AGAINST THE LOUISVILLE & ATLANTIC RAILROAD COMPANY.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 52 — PROSECUTION AGAINST G. W. SETTLE FOR RAPE.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge. .</p> <p>Defendant convicted and appeals. —</p>

<p>Judgment — Satisfaction—Release of Joint Tort-Feasor. — Where plaintiff recovered judgment against two joint tort-feasors, and’ elected to collect his judgment against one of them, his cause of action was satisfied, and the other tort-feasor was released though the judgment against the other was larger than the one paid.</p>

<p>CASE 54. — ACTION BY F. F. LOVELACE AGAINST C. B. LOVELACE AND OTHERS —</p> <p>Appeal from Wayne Circuit Court.</p> <p>M. L. Jarvis, Circuit Judge.</p> <p>Judgment for part of defendants, plaintiff appeals.</p>

<p>CAS~E 55. - ACTION BY 0~PHL& B. OSBORNE AGAINST SAMUEL BROiWN'S ADMtNIS~TRATOR. -</p> <p>Appeal from Nelson Circuit Court.</p> <p>SAMUEL E~ JONES, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 56. — ACTION BY THE COMMONWEALTH AGAINST HIRAM SIM'BDDEY AN® OTHERS —</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>1. Homicide — Instructions—Applicability to Evidence. — Where there was evidence that deceased was helplessly drunk, and that accused, after disarming him of a pistol, could have kept out of his way or disarmed him of a small pocket knife, and' thereby avoided the killing, the giving of instructions as to murder was not error.</p> <p>2. Homicide — Evidence'—Sufficiency—Malice.—iMalice may be proved by inferring it from the circumstances attending the killing.</p> <p>3. Homicide — Malice—“Malice Aforethought.” — On a trial for murder, it is pro-per to advise the jury that “malice aforethought” means a predetermination to do the act of killing without a legal excuse, and it is immaterial as to what time before the killing such a determination was formed.</p> <p>4. Homicide — Murder—‘‘Implied Malice.” — “Implied malice” is such as arises or may be inferred from the intentional doing of an unlawful or wrongful act with a wrongful purpose,</p> <p>5. Homicide — Trial—'Instructions—'Self-defense.—¡"Where there was no evidence that deceased made or intended an attack on another, a charge confining defendant’s right to kill in 'his own defense, was proper.</p>

<p>CASE 5S. — ACTION BY CLARENCE GRAVIT AGAINST W. H. ■STEPHENS FOR MALICIOUS PROSECUTION. —</p> <p>Appeal from Graves Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Telegraphs and Telephones — Operation—Actions for Damages —Evidence.—'Evidence of unsuccessful efforts by a telephone company to find the addressee of a telegram before it was sent is inadmissible to prove diligence of the telegraph company in trying to find him.</p> <p>2. Telegraphs and Telephones — Operation—Actions for Damages — Evidence.—A message by a receiving operator who had • not completed his search, which merely informed the sending operator that the addressee of a telegram could not be found, was inadmissible to show diligence in trying to find him.</p> <p>3. Telegraphs and Telephones — 'Operation—Actions for Damages. — Evidence held to justify a verdict finding that a telegraph company was negligent in failing to deliver a tele-' gram.</p> <p>4. Trial — Operation—Actions for Damages — Instructions—Where there was some evidence that plaintiff could have reached his mother’s bedside before her death if defendant had used due diligence in delivering a telegram announcing her illness, it was not error not to limit a recovery for mental anguish to that caused by his failure to reach her before the funeral.</p> <p>5. Telegraphs and Telephones — Operation—Action for Damages —Question for Jury — Reasonableness of Regulations. — fWihether a telegraph company’s rule governing the handling of messages is reasonable is a question, for the court.</p> <p>6. Appeal and Error — 'Harmless Error — Instructions.—Where there was evidence that negligence in failing to deliver a telegram occurred both before and after the hours specified in a rule, under which messengers-were not required to deliver telegrams between 7 p. m. and 7 a. m., 'an instruction ■that defendant had the right to make and enforce reasonable regulations governing the handling of messages, though defective in omitting to advise the jury that the rule was reasonable, was not prejudicial to defendant.</p> <p>7. Trial — Instructions—Definition of Terms. — The «curt having charged that defendant was only required io use reasonable! diligence in delivering a telegram the failure to define “ordinary care” as used in the instructions was not error.</p> <p>8. Trial — Instructions—Requests.—It is not error to refuse instructions offered, though correct, where the jury have been fully instructed.</p>

<p>Appeal and Error — Decisions Reviewable — Amount in Cor.iroversy. — Under Ky. St. sec. 950, providing that no appeal can be taken to the Court of Appeals from a judgment for the recovery of money in amount less than $200, no appeal li as from a dismissal on plaintiffs' failure to plead further af:e: ■demurrer sustained to his petition in an action to recover clerk’s fees amounting to $55.30.</p>

<p>CASE 61. — .WILL CONTEST BY JOSIE CARTWRIGHT AND OTHERS AGAINST JOHN M. CHILDERS’ EXECUTRIX, AND OTHERS. —</p> <p>Appeal from Hickman Circuit Court.</p> <p>E. J. Bdgg, Circuit Judge.</p> <p>Prom the judgment, defendants appeal. —</p>

<p>CASE 62. — PROSECUTION AGAINST GEORGE GORDON FOR 'JVTANtSLAUGiHiTER. —</p> <p>Appeal from Boyle Circuit Court.</p> <p>M. C. Sattfley, Circuit Judge.</p> <p>Defendant convicted and appeals. —</p>

<p>1. Wills — -Testamentary Paper — Nature.—A pa-per, in form a deed, but testamentary in character, and not to take effect until the maker’s death, must be probated as a will, to be valid.</p> <p>2. Deeds — Validity—Time of Taking Effect. — A deed, to be valid, must pass some interest vesting in tile grantee on the delivery -of the deed.</p> <p>3. Wills — Deeds Distinguished from Wills. — A deed conveying all the real and personal estate the grantor shall have -at his death, to be equally divided between the grantees, his children, living at his death, is testamentary in character and of no validity unless probated as a will.</p> <p>4. Ejectment — Title of Plaintiff — Sufficiency.—O-ne suing for the recovery of land must recover on the strength of his own title,, and not on the weakness of the title of defendant. .</p> <p>5. Ejectment — Pleading—Variance.—One suing to recover land must prevail, if at all, on the cause of action alleged.</p> <p>6. Descent and Distribution — Right of Heirs. — The right to land -by the heirs of the deceased owner is- subject to the payment of his debts.</p> <p>7. Executors and Administrators — Sales of Real Estate — Action for Sale. — Where, in a suit by the curator for the settlement -of the estate of decedent, the petition alleged -that he did not know the debts or the boundaries -of the land of decedent, and the report of the commissioner to report the debts and the boundary of the land, which gave the debts and the boundary of the land was confirmed, a judgment directing a .sale of the land described therein, by metes anc" bounds as in the survey filed by the commissioner was not void because the land was not described in the petitm-</p> <p>8. Executors -and Administrators — -Sales of Real Estate — Action for -Sale. — Where, in a suit by the curator for the settlement of the estate of a decedent, all the infants interested (were properly served with process, failure to name one of tbe infants in the order appointing a guardian ad litem, wbo answered for all the infants, did not render a judgment directing a sale void as to the infant omitted.</p>

<p>1. Husband and Wife — Right to Separate Maintenance. — Where a husband, • addicted to the excessive use of liquor, would, during his sprees, assault his wife and abuse her openly and .publicly, and would, in the presence of others, act as though she was not conducting herself properly, and he was spying on her to detect her improper relations with some one, and sought by hints in the presence of others to insinuate that she was too intimate with a friend of his, she was entitled to a decree of separate maintenance.</p> <p>2. Husband and Wife — Contracts for Separate Maintenance — ■ iConsideration. — Where a husband and wife were living apart and the wife was just recovering from a beating which the husband bad given her, furnishing good cause for divorce, which would- carry with it alimony, when she agreed .with him to resume the marriage state, he promising to make suitable provisions for her support if she were again compelled to leave him, her waiver of her right to a divorce and her consent to return were sufficient consideration to support the contract.</p> <p>3. Husband and Wife — -Contract for Separate Maintenance— Fraud in Execution — Evidence.—-Evidence held not to show •that a husband was deceived in the execution of a contract with bis wife for her separate maintenance, in case she should be compelled to leave him 'in the future.</p>

<p>CASE 65. — ACTION BY THE FIDELITY TRUST COMPANY AS EXECUTOR OF THE WILL OF A. M. KASEY, DE- . CEASED, AGAINST THE CITIZENS’ TRUST COMPANY AS ADMINISTRATOR, &c., FOR THE CONSTRUCTION OF THE WILL —</p> <p>Appeal from ITardin Circuit Court.</p> <p>Weed S. Chele, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Sales-Construction oi Sale-Property Passing.-Defendant bank contracted to sell to plaffitiff bank its entire capital stock, and all notes, bills ol discount, cash, etc., which might be on hand on January 1, 1907, together with its banking house, fixtures, books, papers, and property o~ every kind belonging to defendant, bi~t the contract provided that defendant, in addition to the purchase price, should have all its earnings up to and including December 31, 1906, and should continue the business to January 1st, and no. longer. Held, that defendant's property of every description passed unde~ the contract, and two judgments which were obtained theretofore, and had been considered practically worthless, but which .were sold in December, 1906, and the proceeds distributed to defendant’s stockholders before January 1st,' passed under the contract, so that plaintiff was entitled to the proceeds, they not being “earnings” within the meaning of the contract, which word, construed to effectuate, the intention of the parties, meant earnings of the bank in the ordinary course of its business between November 1st and January 1st, and plaintiff was also entitled to that part of the interest on notes, discounted by defendant after November 1st, which matured after January 1st, which represented the time between January 1st and their maturity irrespective of when such interest was collected by defendant.</p> <p>2. Bills and Notes — Sale—Right of Buyer. — A bank purchasing all the assets and property of another bank which might be on hand on a designated future date under a contract providing that the selling bank in addition to the price should have all its earnings up to the day before the designated future date and should continue the business to the designated future date was not entitled to any interest received by the selling bank before the date of the contract on notes or bills discounted by it before that date, no matter when such notes or bills matured.</p>

<p>1. Action — Equitable Relief — Causes of Action — Misjoinder.-—A stockholder’s suit to settle the affairs of certain corporations and for the appointment of a receiver as incidertfO relief could not be properly joined with a suit to set aside certain transfers of the stock of the corporations-as against one of .the defendants individually.</p> <p>2. Action — Misjoinder—Severance—Election.—Civ. Code Prac. Sec. 85, provides that the court at any time before defense shall, on motion of a party, require the adverse party to elect which of two or more causes of action, improperly joined, he will prosecute, and on his refusal so to elect shall strike out of the -petition, answer, or reply, any cause of action improperly joined with another. Held, that, where two causes of action were improperly joined, it was defendants’ duty to move to require plaintiffs to elect, and, on plaintiffs’ failure to do so, it was the court’s duty to- elect for them and dismiss one of. the causes of action.</p> <p>3. Action — Misjoinder—-Severance—Election—Objection.—Waiver. —Under Civ. Codé Prac. Sec. 85, requiring motion to elect between misjoined causes of action before answer, an objection to such misjoinder is waived, if not made before answer is filed.</p> <p>4. Estoppel — Equitable Estoppel — Knowledge.—Where complainants had no knowledge of powers of attorney by which their father attempted to transfer corporate stock to complainants and to defendant, their brother, until after the father’s death, complainants, by accepting the stock transferred to them, were not estopped to object that the powers had been obtained by defendant’s undue influence over the father, and that he was overreached and had insufficient capacity to execute it at the time, under the rule that knowledge of the truth of the material facts represented or concealed is indispensable to the application of equitable estoppel, and that the person invoking the doctrine must show that he has been influenced by and relied on the representations and conduct of the person sought to be estopped.</p> <p>5. Estoppel — Equitable Estoppel — Mistake.—No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded on an innocent mistake.</p> <p>6. Witnesses — Attorney-and Client — Privilege—Waiver.—Where . certain powers of attorney executed by deceased providing for the transfer of certain corporate stock to his children and others were in fact testamentary instruments, signed and attested by two witnesses, and were attacked after decedent’s death, when they were first attempted to be enforced on the ground that deceased had not sufficient capacity to validly execute them, any of the heirs had power to. waive the privilege of deceased’s attorney j by whom the powers were drawn, so as to qualify him to testify concerning deceased’s capacity.</p> <p>7. Witnesses — Testimony of Parties Interested Against Successors in Title of Person Deceased — Subject-Matter.—In a suit after the grantor’s death to set aside transfers of corporate stock under certain powers of attorney, on the ground of mental incapacity and undue influence, any of the heirs should have been permitted to testify to conversations had with the grantor and statements made by him to show either lack of capacity or undue influence.</p> <p>8. Evidence — Similar Facts Showing Mental Condition' — Corporate Stock — Transfer—Undue Influence — Evidence.—In a suit to set aside the transfer of corporate stock under powers of attorney on the ground of alleged want of capacity and undue influence, evidence of conversations and transactions with deceased grantor must be confined to those bearing directly on such issues, and hence evidence that, many years prior to the transactions complained of, one of the beneficiaries under the power in transacting the grantor’s business had been guilty of improper conduct, should have been excluded, though such evidence may not be confined to the immediate dates on which the transactions out of which the litigation arose took place.</p> <p>S. Corporations — Corporate Stock — Transfer—Capacity of Grantor-Question' for Jury. — Whether deceased, at che time he executed certain powers of attorney authorizing the transfer ■of corporate stock, had sufficient mental capacity to do so, was for the jury.</p> <p>10. Trial — Question for Court and Jury — Evidence.—Where, in a suit to set aside transfers of corporate stock, there was not a scintilla of evidence of fraud inducing the execution of the powers, the court should not have submitted such question to the jilry.</p> <p>11.' Corporations — Transfer of Stock — Powers of Attorney — Capacity of Grantor — “Unsound Mind.” — A request to charge that if B, on September 2, 1902, did hot have mental capacity sufficient to understand his property rights and the character, object and nature of the transfer of the corporate stock in question and to transfer the same according to a definite purpose and desire of his own, then he was of “unsound mind,” but if he had mental capacity sufficient to understand his property rights and character, object and nature of the transfer of the stock by means of the powers executed and to transfer the same according to a definite purpose and desire of his own, he was not of unsound mind, sufficiently presented the question of lack of capacity to the jury.</p> <p>12. Corporations — Transfer of Stock — Power of Attorney — “Undue Influence.” — In a suit to set aside certain transfers of corporate stock under powers of attorney alleged to have been obtained by undue influence over the grantor, the court, in submitting the question of undue influence, should have charged that any influence obtained over the grantor to such an extent as to destroy his free agency and to constrain him to do, against his will, what he would otherwise refuse to do, is “undue influence,” and the law condemns as undue such an influence when exercised over a testamentary act, whether obtained directly or indirectly or at one time or another, but any reasonable influence obtained by acts of kindness, or by argument addressed to the understanding, is not in law “undue influence.”</p> <p>13. Equity — Special Issues — Submission to Jury — Verdict.—Under Civil Code Prac. sec. 12, authorizing the submission of special issues of fact in an equity suit to a jury, where several issues are so submitted, they should be answered separately, and it was therefore improper to direct the jury to return a general verdict.</p>

<p>CASE 68 — ACTION BY JOHN WILLIAMS AGAINST THE RELIANCE TEXTILE & DYE WORKS. —</p> <p>Appeal from Kenton Circuit Court (Common Law and Equity Division).</p> <p>M. L. Harbeson, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Judgment — Judgment Notwithstanding V-erdict — Action Eor Wrongful Discharge. — If a servant was wrongfully discharged, he could recover nominal damages at least, though his petition failed to allege that he had attempted to secure other -employment after his discharge, and a motion for Judgment, notwithstanding verdict, was properly denied, especially where the defect in the petition was cured by proof that he had made such effort, and by the verdict.</p> <p>2. Master and Servant — -Action for Wrongful Discharge — Evidence. — In an action by a servant for wrongful discharge, -evidence held, to support a finding that plaintiff was employed by defendant, through its foreman, to work for it for one year at $15 a week at least, but that, though competent, he was discharged befor-e the expiration of the term without his consent, and made some effort to find other -employment, which he was unable to secure.</p> <p>8. Pleading — Action for Wrongful Discharge — Pleading—Defects Cured by Proof and Verdict. — -In an action by a servant for a wrongful discharge, an averment of the petition, “hut he has not been able to obtain-employment after defendant’s violation of its contract with him,” while not technically sufficient as an averment that plaintiff made any effort to obtain other employment after his discharge, was hut an imperfect allegation which the pleader upon motion to make more specific could have corrected, and where such motion was not made, ■and objection to testimony of plaintiff as to his efforts to secure employment, was not placed on the ground of the defective allegation, the admissibility of the evidence of such efforts was not error; the defect in the petition being cured by verdict.</p> <p>4. Pleading — Defects—Cure by Verdict. — A petition or answer will be good after verdict if it contain allegations from which every necessary fact may be clearly inferred.</p>

<p>CASE 70. — PROCEEDING FOR THE SETTLEMENT OF THE ESTATE OF S. P. LANCASTER IN WHICH CHARLES P. O’BRIEN FILED A CLAIM. —</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>From a judgment allowing tlie claim of O’Brien, Lancasters’ Exor. appeals. —</p>

<p>CASE 71. — ACTION BY HESTER & SONS AGAINST EVELYN BAKER DODD —</p> <p>Appeal from Kenton Circuit Court.</p> <p>F. M. Tracy, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals. —</p>

<p>1. Pleading — Amendment—Complaint.—Under Civil Code Prac. sec. 134, authorizing the amendment of a pleading at any time in furtherance of justice, by correcting a mistake or inserting other allegations material to the case, even after the case has been partially tried, if it does .not substantially change the claim or defense, and requiring the court at every stage of the action to disregard any defect in the proceedings which does not affect substantial rights of the adverse party, there was no abuse of discretion in an action for injuries to plaintiff, while working on a flat car on defendant’s side track, in allowing, after issue joined, an amendment to the complaint, which had been drawn on the theory that plaintiff was employed by the railroad company, and alleging Jiat he was ordered onto the car by the defendant’s conductor, so as to allege that he was a licensee in the employ of a shipper, where it was not contended that defendant was surprised by the amendment so that it could not present its real defense, and it did not ask for any continuance or postponement to obtain witnesses or evidence, or to investigate the new case made by the pleadings.</p> <p>2. Railroads — Injuries to Licensees — Actions—Instructions.—In an action for injuries to plaintiff while working on a flat car on defendant’s side track, alleged to have been caused by defendant’s employes allowing three loaded cars to run down the track and collide with the car he was working on, allowing the cars to run down the track being negligence, and the evidence being in conflict as to whether or not there was any one on them at the time, it was not error to fail to limit the jury in determining defendant’s negligence to the consideration of the acts of the persons on the loaded cars alone.</p> <p>3. Trial — Instructions—Assumptions as to Facts. — In an action for injuries to plaintiff while loading a flat car on defendant’s side track, an instruction that if the jury believe from the evidence that defendant placed one of its cars on its side track to be loaded by W. and workmen under him, and that, when plaintiff was on the car as one of the workmen, it was, through the negligence of the defendant, struck by other cars of defendant so that the plaintiff was injured, was not erroneous as assuming that plaintiff was on the car as an employe of W., since the words “that if the jury believe from the evidence” had reference to each of the propositions indicated.</p> <p>4. Trial — Instructions—Requests—Further and More Specific Instructions. — In an action for personal injuries, where the court charged that, if certain facts were established by the evidence, the verdict should be for plaintiff, it was not error, in the absence of request therefor, to fail to give the converse of this instruction that, if any essential one of these facts was not shown, the verdict should be for defendant.</p> <p>5. Negligence — Actions—Instructions—Contributory Negligence. —In an action for personal injuries, it was not necessary that the instruction relating to contributory negligence be a separate instruction.</p> <p>6. Negligence — Actions—Instructions—Contributory Negligence. —In an action for personal injuries, a charge that, if the jury found so and so, the verdict should be for the plaintiff, unless they further found that the plaintiff was so negligent for his own safety that, but for this negligence, he would not have been injured, is not erroneous, as allowing plaintiff to recover, unless his own negligence wholly caused his injury.</p> <p>7. Negligence — Contributory Negligence. — Where the negligence of a person injured so far contributes to the happening of the event that, if he had not been negligent, the other’s negligence would have been harmless to him, he cannot recover.</p> <p>8. Railroads — Injuries to Licensees — Actions—Damages.—Acts of defendant’s employes in turning loose three loaded cars with no one on them, on a siding, which was downgrade, without any notice or warning to persons working on other cars standing on the siding, when the employes knew of their presence, showed a reckless disregard of life, and justified the recovery of exemplary damages by one at work on one of the standing cars and injured in the resulting collision.</p> <p>9. Damages — Punitive Damages — Instructions—An instruction as -to punitive damages should tell the jury that the giving of punitive damages is a matter of discretion.</p> <p>10. Appeal and Error — Review—Harmless Error — Instructions.— Reversal will not be granted for error in -an instruction as to punitive damages, where the court is reasonably convinced that the jury awarded no punitive damages.</p> <p>11. Appeal and Error — Review—Harmless Error — Instructions.— Under Civil Code Prac. secs. 134, 338, 756, providing that reversal shall not be granted for any errors not appearing from the record to have prejudiced some substantial right of the party complaining, where upon a survey of the whole record the appellate court cannot perceive that anything technically an error has influenced the result, it is their duty to affirm.</p> <p>12. Trial — Taking Case from Jury — Sufficiency of Evidence. — A peremptory instruction for defendant cannot be granted unless there is total failure of proof to sustain plaintiff’s case.</p>

<p>CASE 73. — ACTION BY MARY BAKER AGAINST JAMESON BAKER FOR A DIVORCE. —</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>From tlie judgment plaintiff appeals. —</p>

<p>CASE 74. — ACTION BY L. L. PARKS and ANOTHER AGAINST THE O. K. JELLICO COAL COMPANY and ANOTHER</p> <p>Appeal from Laurel Circuit Court.</p> <p>William Lewis, Circuit Judge.</p> <p>Prom a judgment dismissing the petition plaintiffs appeal.' —</p>

<p>CASE 75. — ACTION BY R. T. CAPE AND OTHERS AGAINST CLAUDIUS C. CAPE AND OTHERS. —</p> <p>Appeal from Russell Circuit Court.</p> <p>J. C. Carter, Circuit Judge.</p> <p>From an order dismissing the action plaintiffs appeal. —</p>

<p>CASE 76. — PROCEEDINGS BY NELLIE CORNETT AGAINST ELLEN TERRY AND OTHERS TO RESTRAIN SAID TERRY FROM TEACHING A CERTAIN SCHOOL.—</p> <p>Appeal from Breathitt Circuit Court.</p> <p>David B. Rbdwine, Circuit Judge.</p> <p>Injunction granted and defendants appeal. —</p>

<p>CASE 77. — ACTION BY THE BANK OF TAYLORSVILLE AGAINST H. C. MATHIS —</p> <p>Appeal from Spencer Circuit Court.</p> <p>Charles Marshall, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.- —</p>

<p>1. Trial — Dockets—Transfer to Law Docket — Time of Motion.-— In an action on a note against two sureties, in which one against whom judgment was recovered, after satisfying it, filed an answer and cross-petition against the other surety for contribution, it was not error to overrule a motion, made by the latter before filing his answer to the creditor’s petition and before the filing of the cross-petition, to transfer the case to the law docket; Civil Code Prac. sec. 10, requiring such motion to be made when defendant answers.</p> <p>2 Appeal and Error — -Questions Considered — Questions Arising in Particular Action — Appeal in Cross-action. — On an appeal by a surety from the judgment against him upon the cross-petition of his co-surety for contribution after judgment was rendered against the latter in favor of the creditor and satisfied, any ruling made upon questions arising in the original action by the creditor cannot be considered.</p> <p>3. Principal and Surety — Suits for Contribution — Equitable Jurisdiction. — Since the statute permits a suit at law between sureties for contribution without excluding the jurisdiction of equity, and Civil Code Prac. sec. 661, permits a surety to maintain an -equitable action against a co-surety for contribution, a co-surety may sue for contribution in -equity as well as at law.</p> <p>4. Judgment — Res Judicata — Persons Concluded — Co-surety— Action by Creditor. — -In an action against two sureties -on a note, in which one surety against whom judgment went for the whole amount, after satisfying it, filed a cross-petition against his co-surety for contribution, the judgment overruling the demurrer of the cross-defendant to the creditor’s petition on the ground of want of presentment and demand, and of protest for nonpayment and notice, and because of an alleged agreement by the creditor extending the time of payment after maturity, precluded the cross-defendant from setting up those defenses in the suit for contribution.</p> <p>5. Principal and .Surety — Discharge of Surety — Necessity of Presentment and Demand. — A surety on a note executed since the enactment of the negotiable instruments law is primarily liable thereon, and hence presentment, demand, protest for nonpayment, and notice thereof are not necessary as to him.</p> <p>6. Pleading — Cross-petition—Against Third Person. — In an action on a note against two sureties, in which one surety, against whom judgment went, after satisfying it, filed a cross-petition against his co-surety for contribution, the cross-defendant’s answer to the cross-petition could not be made a cross-petition against another so as to set up an agreement by the latter to assume cross-defendant’s liability upon the note; such agreement not affecting the original cause of action, Civil Code Prac. see. 96, sub-sec. 3, not allowing a cross-petition to a defendant except upon a cause of action which affects or is affected by the original action, and sec. Ill providing that no pleading except an answer to the original petition, or plaintiff’s reply to such answer, shall be made a cross-petition.</p> <p>7. Appeal and Error — Harmless Error — Action for Contribution —Pleading—Cross-petition.—-Since under Civil Code Prac. sec. 444, judgment may be had on motion by a surety against his co-surety for money paid, and by section 449 the motion may be determined upon or without written pleadings, a -proceeding by cross-petition against a co-surety for contribution after judgment went against cross-petitioner'for the creditor, if improper, was at most a mere irregularity.</p> <p>S. Pleading — Objections—-Waiver.-—Where a cross-defendant, on a cross-petition by his co-surety for contribution, consented that the answer and cross-petition against him be filed for record after a motion to strike the pleading was -entered, he thereby waived any irregularity in proceeding by cross-petition for contribution.</p>

<p>CASE 79.- SUIT BY JOHN SCHAUB AGAINST THE PITTS-BURG, CINCINNATI, CHICAGO & ST. LOUIS RAIL-. WAY COfitPAff~Y AND ANOTH~R FOR PE~hSONAL INJURY, -</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>WALTER P. LINCOLN, Judge.</p> <p>Judgmenit for plaintiff, defendants appeal.</p>

<p>Indemnity-Joint Wrongdoers.-There can be no indemnity as between joint tort-feasors, unless the one `seeking indemnity did not join in the unlawful act, though exposed to liability therefor, and he has been made to suffer tlierefor in damages.</p> <p>2. Indemnity-Joint Wrongdoers.-TJntil a judgment against a city for injuries to a traveler on a defective street has been paid by it, it may not proceed against a third person actually liable for the defect for indemnity.</p> <p>3. Witnesses-Examination-Leadir~g Questions.-Wher~ leading questions are objected to, the court should require counsel to so frame his questions as not to suggest the answers desired.</p> <p>4. Evidence-Opinion Evidence-Admissibility.-The testimony of a physician in a personal injury action that he thought the injury would produce a certain result, and that in his judgment it did produce such result, was equivalent to a statement that the injury would and did `produce the result and was competent.</p> <p>5. Municipal Corporations-Obstructions in Streets-Precautions Against Injuries.-A city must keep its streets in a reasonably safe condition, and where, in making improve' ments, it becomes necessary to place obstructions therein, it must use reasonable care to protect persons using the street at nigbt from injury by giving notice, by the use oi lights or other means, reasonably sufficient to warn the traveling public of the presence of the obstructions.</p> <p>6. Municipal Corporations — Obligation of Travelers on Streets. — - A traveler on a street at night must use ordinary care in driving thereon.</p> <p>7. Damages — Personal Injuries — Double Damages. — A person permanently injured is entitled to recover for his diminished-earning power because of such injury, -but he is not also entitled to a recovery for the permanent impairment of his health, for such a recovery will permit double damages for the personal injury.</p> <p>8. Damages — Personal Injuries. — A person sustaining a physical injury is entitled to such damages as will fairly compensate him for any suffering which he has endured and which it is reasonably certain he will endure in the future as the direct and. proximate result of the injury, and for any loss of time occasioned by the injury, and for any reduction of his power to earn money.</p>

<p>CASE 81. — ACTION BY PETER McCABE’S ADMINISTRATRIX AGAINST THE MAYSVILLE & BIG SANDY RAILROAD COMPANY AND OTHERS —</p> <p>Appeal from Mason Circuit Court.</p> <p>O. W. Newell, Circuit Judge.</p> <p>Prom an order sustaining a demurrer to the reply, plaintiff appeals. —</p>

<p>CASE 82 — ACTION BY Y. L. MOSELEY AND OTHERS AGAINST M. L. HAMILTON AND ANOTHER. —</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for defendants, plaintiffs appeal. —</p>

<p>1. Mandamus — Subjects of Relief — Settlement of Decedent’s Estate — “Writ of Mandamus.” — Ky. Stat. 3855 requires a personal representative of a decedent’s estate to return an inventory within a certain time after qualifying. Sec. 3857 provides that any personal representative failing to return an inventory within six months after qualifying shall be fined by the county court, and be required to make such inventory upon a day fixed by it, and, upon failure to do so, shall be fined for each subsequent delinquency, and section 3858 requires every personal representative to have his accounts settled, and all settlements and vouchers returned to the county court within a certain time, and as often thereafter as the court requires. Civil Code of Practice, section 477, defines the “writ of mandamus” as an order of a court commanding an executive or ministerial officer to. perform or omit an act, the performance or omission of which is enjoined by law, which shall be granted on the motion of the i . party aggrieved or of the commonwealth when the public interest is affected. Held, that the duty of a county judge to require executors and administrators to file inventories and make settlements was mandatory, and not a matter of judicial discretion which could not be enforced by mandamus.</p> <p>2. Mandamus — Persons Entitled to Relief — Settlement of De cedents’ Estates. — The commonwealth could maintain mandamus to compel such inventory and settlement, though its sole object in obtaining the relief was to secure evidence for the enforcement of the inheritance taxes.</p> <p>3. Courts — Appellate Jurisdiction — Issuance of Prerogative Writs — Mandamus.—Even if the Court of Appeals has authority to issue mandamus to control the action of inferior tribunals, such as the county courts, it will not do so; peth tioner having an adequate remedy by applying to the circuit court for the writ. - •</p>

<p>1. Deeds — Estate Conveyed — Habendum—Limitation.—Plaintiff’s father and mother executed a deed to her to the land in controversy; the granting clause conveying to her, for her own use, free from all marital rights of her present or any future husband, and the habendum clause to “her and her heirs and assigns,” forever, with covenant of general warranty, and, if she died without bodily heirs, said land to revert to the heirs of the grantors. Held, that such limitation was in conflict with the granting clause, and was therefore nugatory, under the rule that the granting clause must prevail over the habendum, unless a contrary intention is shown by the deed, and that plaintiff took the fee.</p> <p>2. Deeds — Construction—Power of Sale. — Where the granting clause of a deed conveyed the land to the grantee in fee, and the habendum was to the grantee “and her heirs and assigns, forever,” with covenant of warranty, and contained a further provision that, if the grantee died without bodily heirs, the land was to revert to the heirs of the grantors, the grantee had full power to convey the fee, without reference to the validity or invalidity of the limitation; such clause being effective, if at all, only to transfer the interest of the grantor's heirs to the proceeds of the sale in case the grantor died without leaving children.</p>

<p>Contempt • — • Appeal — Decisions Reviewable. — The Court of Appeals in contempt proceedings can only determine whether the punishment inflicted was illegally imposed or excessive, and where the parties Were adjudged not guilty, and the commonwealth appealed, no review of the case can be had.</p>

<p>CASE 86. — ACTION BY JOHN SPRADLIN AGAINST F. A. BROWN AS ADMINISTRATOR OP THE ESTATE OP W. W. BROWN, DECEASED —</p> <p>Appeal from Johnson Circnit Court.</p> <p>Andrew J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal and plaintiff files cross-appeal against Trimble. —</p>

<p>1. Municipal Corporations — Streets—Automobile Accident — Negligence — Failing to Stop Machine. — 'Plaintiff testified that, while driving an ordinarily gentle horse on a city street, the horse became frightened at defendant’s automobile when it was 139 feet from her, and as the automobile approached the horse became more frightened, and, turning quickly, threw plaintiff to the street close to the sidewalk; that the automobile was then 80 feet away, coming toward her, and ran over her, without any attempt being made to stop it. Defendant testified' that he was driving at the rate of five or six miles an hour, and first discovered the horse’s fright when he was twenty feet away; that the horse turned quickly to the side of the street on which defendant was driving, when defendant turned the machine in on the pavement to avoid a collision; that he was obliged to leave the pavement on account of a house built close thereto, and when lie returned to the street there was room between the sidewalk and plaintiff’s buggy for him to pass, but as he was doing so, plaintiff jumped out and fell immediately in front of the machine, so close that he could not stop, and to avoid running the wheels over her he turned the machine and the body of the car passed over her. Held, that under either version "of the affair the jury were authorized to find defendant negligent in failing to stop when he discovered, or should have discovered by ordinary care, the fright of plaintiff’s horse.</p> <p>2. Municipal Corporations — Streets—Automobile — Accident — • Care Required. — Where the driver of a team and an automobile are approaching each other on a city street, the legal measure of duty is the same on both; each being required to act with reasonable care to avoid an accident or collision.</p> <p>3. Municipal Corporations — Streets—Law of the Road — Operation of Motor Vehicles — Statutes.—Ky Stat., section 3739g, regulating the running of motor vehicles on public highways, does not apply to the operation of automobiles in incorporated cities and towns.</p> <p>4. Continuance — Absence of Witnesses. — Where, in an action for injuries, several physicians, who waited on plaintiff, testified as to the nature and extent of her injuries, and from their evidence it clearly appeared that the injuries received were painful and serious,, and, as some of the physicians testified, permanent, the court did not err in refusing defendant a continuance because of the absence of two nurses, who. attended plaintiff during part of the time she was confined to her bed and room on account of the injuries; the court having permitted the evidence of the nurses contained in affidavit for continuance to be read to the jury.</p> <p>5. Municipal Corporations — Streets—Automobile Accident — Negligence. — Instructions that if defendant negligently ran his automobile over and on plaintiff after defendant had discovered the restive condition of plaintiff’s horse, if any, or plaintiff’s perilous situation, if any, or might have discovered such condition by the exercise of ordinary care, and by reason of such negligence plaintiff was injured, the jury should find in her favor, but that unless they so believed they should find for defendant, and that they should also find for defendant if plaintiff failed to exercise ordinary care in the management of her horse, for her own safety, and but for such lack of ordinary care the accident would not have occurred, were proper.</p> <p>6. Trial — Request to Charge — Instructions Given. — A request to charge, covered by instructions given, may be properly refused.</p> <p>7. Appeal and Error — Refusal of Instructions — Prejudice.— Where, in an action for injuries in an automobile accident, no question was raised as to defendant’s right to operate his machine on the street, he was not prejudiced by the court’s refusal to give part of a request to charge that the owners of automobiles had the same right on the public highway as the owners of other vehicles.</p>

<p>1. Appeal and Error — Law of the Case. — The opinion of the court on appeal is the law of the case on a subsequent trial, and matters which might have been brought to the attention of the court, but were not, are concluded by the opinion, and w^ere errors are made on the trial against appellee, he must, on appeal, call the attention of the court to the errors he wishes corrected.</p> <p>2. Appeal and Error — Harmless Error — Exclusion of Evidence.— Where, in an action for the death of a brakeman in a wreck, due to the unsafe condition of the track, there was evidence of the condition of the track and the jury found negligence in maintaining it, any error in excluding the testimony of a witness for plaintiff that at the place where the track gave way the old roadbed was lower than the new that was put in was harmless, especially where that fact was proved by plaintiff on cross-examination of the witnesses of defendant.</p> <p>3. Appeal and Error — Harmless Error — Exclusion of Evidence.— The error, if any, in excluding evidence of a party to prove a fact shown without dispute on the cross-examination of the witnesses of the adverse party is harmless.</p> <p>4. Master and .Servant — Injury to Servant — Evidence—Admissibility. — Where, in an action for the death of a brakeman in a wreck, due to the unsafe condition of the track, defendant claimed that the wreck occurred at a switch, defendant could show that the ties and rails at the switch were good, and thus show that -the accident was due to a different cause from that relied on by plaintiff, claiming that the wreck occurred at another place.</p> <p>5. Master and Servant — Injury to Servant — Evidence—Admissibility. — In an action for the death of a brakeman in a wreck, due to the unsafe condition of the track, it was proper for the railroad to show the condition of the track at the place where it claimed the wreck occurred two weeks before the accident, and the changes made thereafter and before the wreck, to enable the jury to pass on the issue whether the track was reasonably safe at the time of the accident.</p> <p>6. Evidence — Opinion Evidence — Competency.—The question of what is a sufficient railroad track is a matter on which experts may testify.</p> <p>7. Evidence — Expert Testimony — Actions—Evidence—Cause and Effect. — In an action for the death of a brakeman in a wreck, testimony of experts who had examined the ground after the wreck that they did not know the cause thereof was admissible.</p> <p>8. Trial — Argument of Counsel. — The argument of counsel for defendant in an action for the negligent death of a servant that things had come to such a pass that where a man got his finger cut he would run to a lawyer to bring a damage suit, that the jurors, who were farmers, and who had employes, could be sued if injuries occurred, or an accident happened to any employe, and that the jury had better be on their guard as to damage suits, was not improper.</p> <p>9. Jury — Disqualification of Jurors. — The fact that a juror in an action against a railroad for negligent death of an employe was a relative by marriage to one of the attorneys of the railroad, that another juror had a brother in the service of the railroad, and that another juror had two nephews in its service, did not warrant the setting aside of the verdict.</p> <p>10. Death — Negligent Death — Inadequate Verdict. — A verdict for $3,500 for the negligent death of a brakeman 25 years old, in good health, earning $960 a year, with a life expectancy as shown by mortality tables of thirty-two years, is not flagrantly inadequate.</p>

<p>1. Highways — Proceedings to Establish — Estoppel to Appeal.— If a county court had no power to set aside a judgment dismissing the petition in proceedings to open a highway and grant a new trial, its action in doing so was void, and petitioners were not estopped by their motion for new trial from ignoring the judgment on retrial and appealing from the judgment of dismissal; but, if it had power to grant the new trial, petitioners could not appeal from the judgment of dismissal.</p> <p>2. Highways — Proceedings for Establishment — Dismissal—Granting New Trial — Time of Application. — Ky. Stat., section 4303, provides for appeal from the county court to the circuit court in proceedings to open a highway, but does not provide for granting new trials in the county court. Civ. Code Prac., section 700, provides that the provisions of the Code shall regulate the proceedings in civil actions in county courts, quarterly courts, justices’ courts, etc., except as otherwise provided, and section 714 provides for granting new trials in quarterly courts and justices’ courts, but does not expressly authorize new trials in county courts. Held, that the granting of a new trial by the county court in proceedings to open a highway after denial of the petition and dismissal of the proceedings was controlled by-Civil Code Prac., section 340, subdivision 4, relating to new trials generally, and requiring application therefor to be made within three days after the decision is rendered, and, where the motion for new trial was not made within that time, the court had no power to grant it; the only remedy of the aggrieved party being by appeal under section 4303.</p> <p>3. Eminent Domain — Compensation—Amount—Deduction of Benefits — Opening Highway. — Constitution, section 13, prohibits any person’s property from being taken or applied to a public use without the consent of his representatives, and without just compensation previously made, and section 242 requires corporations and persons empowered to iake private property for public use to make just compensation for property taken or injured, which shall be paid, or secured before the taking. Held, that an owner was entitled to be compensated in money for the actual damage sustained by the taking or injuring of property for public use, and the consequential benefits accruing to land not taken cannot be set off against such damages, so that Ky. Stat., section 4292, requiring the commissioners to assess as damages for opening a highway a just compensation for the land taken, necessary additional fencing by the owner, and damage to the remainder of the land “beyond the consequential benefits” thereto from the road, is unconstitutiqnal insofar as it requires consequential benefits to be set off against damages.</p> <p>4. Eminent Domain — Compensation—Measure.—The measure of compensation for land taken for public use should be the same without reference to the purpose for which the property is taken.</p> <p>5. Eminent Domain — Compensation—Measure—Taking Land for Highway. — The owner of land taken for highway purposes is entitled to such sum as will be just compensation for the part of the land taken, considered in its relation to the entire tract, including any additional fencing necessary, and for such direct damages as result to the remainder of the tract because of its condition or situation by reason of the taking of a part thereof, not to exceed in all the difference ' between the actual value of the entire tract immediately before and the actual value of the remainder immediately after-, the taking, excluding any benefits to the land not taken resulting from the opening or use of the highway.</p> <p>6. Eminent Domain — Speculative Damages — Instructions.— Where consequential or prospective damages or benefits to. the land not taken for a highway would be too speculative to be estimated with reasonable certainty, so that the submission of the question would only mislead the jury, an instruction thereon should not be given, even if such damages could otherwise be considered.</p> <p>7. Highways — Opening—Costs.—Under Ky. .Stat., section 4299, permitting the county court to open a road on condition that all or a part of the sum required to be paid to the owner and the cost of procedure be paid by the applicants, and providing that, if the court thinks such sum and the cost of proceedings shall be paid by the county, it shall order the same to be paid to the person entitled, the owner cannot be charged with costs in the county court, though he files exceptions therein and demands a jury trial, but if he appeals to the circuit court, whether from a judgment upon a verdict, or a commissioner’s report, he must pay the costs therein unless he recovers larger damages than were awarded him in the county court, in which case costs in both courts must be paid as provided by the -statute.</p>

<p>CASE 90 — ACTION BY GEORGE P. CRUME AGAINST MARTHA l. mcclure and'others for a sale of REAL ESTATE FOR RE-INVESTMENT —</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Decree for plaintiff, defendants appeal. —</p>

<p>CASE 91. — SUIT BY W. R.. GRANT AGAINST THE PHOENIX JELLICO COAL COMPANY. —</p> <p>Appeal from Laurel Circuit Court.</p> <p>William Lewis, Circuit Judge.</p> <p>From a decree for plaintiff, both, parties appeal.—</p>

<p>1. Wills — Construction—Presumption Against Intestacy. — The presumption that testator intended to dispose of his entire estate is a rule of construction only, and does not warrant a disposition by the court of property not in fact disposed of.-</p> <p>2. Wills — Construction—Intestacy.-—Testator minutely described his real and personal estate, and indicated the persons to take. In one clause he gave to his widow a life estate in all his realty subject to be defeated in case she should remarry or should abandon the property, in which event testator devised the remainder one-half to the widow and the other half to his daughter, B., but no disposition was made of the remainder of the other half in case the widow should not abandon the property, and did not remarry. Held, that since remaindermen take immediately on the falling in of the life estate, whether by the death of the life tenant or the defeasance of the life estate during the tenant’s life, though neither of such contingencies are expressly provided for in the will, the widow not having abandoned the property or remarried, on her death, the one-half of the remainder undisposed of passed to testator’s heirs as intestate property.</p> <p>3. Wills — Construction—Residue—Also any Property or Money Not Mentioned 'Herein. — Testator after having specified in detail the property which his widow should have, and having failed specifically to devise the remainder of one-half of his realty bequeathed to his wiie for life in the event that she should not remarry or abandon the property, declared that the, proceeds of all the property sold by the executor and also “any property or money not mentioned herein,” should be equally divided between his wife and daughter, B. Held, that the' language quoted referred only to inconsiderable items of property which testator had failed to mention and which were of doubtful existence, and was not effective as a residuary clause to pass such undisposed of remainder.</p> <p>4. Wills — Intestate Property — Equalization of Distribution.' — Ky. Stat. section 1407 provides that any real or personal property or money given or devised by a parent or grandparent to a descendant shall be charged to the descendant or those claiming through him in the division or distribution of the undevised estate, and such parties shall receive nothing further therefrom until the other descendants are made proportionately equal with him, according to his descendable and distributable share of the whole estate. Held, that where ¿estator left surviving two daughters, and died intestate as to a remainder of one-half of his real estate devised to his widow for life, the other half of which was devised to his daughter, B., the half undisposed of was not distributable equally to the surviving daughter and the heirs of the deceased daughter, but should be bo distributed as to equalize their shares.</p>

<p>CASE 93. — ACTION BY COLUMBUS BYRD AGAINST THE CENTRAL KENTUCKY TRACTION COMPANY. —</p> <p>Appeal from. Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.- —</p>

CASE 94 — ACTION BY THE SCHNUTE HOLTMAN COMPANY AGAINST FOREST, LEE SWEENEY AND OTHERS. Appeal from Daviess Circuit Court. T. F. Birkhead, Circuit Judge. Judgment for defendants for partial relief and plaintiff appeals and defendants file a cross-appeal.

<p>Appeal and Error-Record-Construction.-In construing the record on appeal, it must be read as a whole.</p> <p>2. Evidence_Presumption_Performance of Official Duty-Granting Administration.-It is presumed that the county judge did his duty and acted within his jurisdiction, so that it cannot' be presumed that he intended two orders made in granting administration to nullify each other.</p> <p>3. Executors and Administrators-Effect of Irregularities in Appointment.-Ky. Stat., section 3894, permitted administration to be granted on the estate of one dying intestate, and by section 3891, if there be no testamentary executor or if he thUs to qualify, the court may grant administration with the will annexed. Decedent's will was admitted to probate, and on the same day the county court made an order appointing plaintiff adminisirator of decedent's estate. Held, that the administrator appointed on the same day the will was probated was manifestly intended as administrator "with the will annexed;" the omission of those words in the order being a clerical error, which would not affect such administrator's right to sue for decedent's negligent death by wrongful act; Civil Code Prac., section 134, requiring the coui~t to disregard defects in the proceedings not affecting the substantial rights of the adverse party.</p> <p>4. Courts_RecOrd-COnstructiOn.A construction which givea some effect to a judicial record is preferred to one which makes it inoperative, and words will be read into it to supply an omission through clerical error, where there is enough on its face to show the mistake; the omission of things silently expressed being immaterial.</p>

<p>CASE 96.-PROSECUTION AGAINST W. D. OLDHAM FOR CUTTING ANOTHER IN SUDDEN HEAT AND PASSION.-</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. BENTON, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>1. Bankruptcy — Exemptions of Bankrupt — Homestead Setting Apart — Conclusiveness.—The decision of a federal court approving the action of appraisers in bankruptcy proceedings to set apart the bankrupt’s homestead was conclusive as to the value of the homestead set aside, in - absence of fraud or mistake, and cannot be questioned by a creditor of the bankrupt in proceedings to subject a -part thereof to the payment of debts.</p> <p>2. Homestead: — Establishment—Value—Appreciation.—"Where a homestead has been established, its subsequent appreciation in value resulting from the ordinary increase in realty values does not entitle a creditor to subject the excess over $1,000 to the payment of his debts.</p> <p>3. Fraudulent Conveyances- — Exempt Property. — A creditor cannot corn-plain that the debtor conveys property not subject to his debts.</p> <p>4. Fraudulent Conveyances — Form of Transfer — Chattel Mortgage — Mortgage for Future Advancements. — A mortgage given in good faith for a specific sum as security for future advancements is valid to the extent of the amount specified as against the mortgagor’s general creditors.</p> <p>5. Evidence — Parol Evidence — Mortgages — Consideration- — Future Advancements. — Parol evidence is admissible to show that a mortgage for a specific -sum was given to secure future advancements and their amounts.</p> <p>6. Lis Pendens — -Grounds.-—A lis pendens can only be asserted in a suit in rem, prosecuted with reasonable diligence, for relief against specific property which is identified by the proceedings to which proceedings the other claimant is an actual party.</p> <p>7. Lis Pendens — Commencement and Pendency of Action — Description of Property. — A suit could not operate as a lis -pen-dens where the petition did not attempt to describe any property sought to be subjected thereby.</p> <p>Lis Pendens — Operation—Amendment of Pleadings. — A lis pendens created by an amended petition does not relate back to the commencement of the action so as to affect intervening rights.</p> <p>9. Lis Pendens- — Knowledge -of Judgment. — Knowledge by a chattel mortgagee, when the mortgage wa-s executed, that a creditor of the mortgagor had obtained a judgment against him, did not create lis pendens as against the mortgagee; the action not being in rem to subject any particular property.-</p>

<p>CASE 98. — ACTION BY AMERICA MARTIN AND OTHERS AGAINST BURWELL SMITH AND OTHERS. —</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.- —</p>

<p>CASE 99. — PETITION BY J. LYMAN BRYAN FOR A WRIT OF PROHIBITION AGAINST CHARLES W. YUNGBLUT, JUDGE. —</p> <p>Petition filed in the Court of Appeals. —</p>

<p>CASE 100. — ACTION BY L. BIBB AGAINST THE WESTERN UNION TELEGRAPH COMPANY —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Interpleader — Proceedings—Judgment.—A motion for judgment o-n the pleadings against an insurer seeking the aid of the chancellor as to which of conflicting claimants should he paid the amount of certificates of insurance necessarily submits the whole case, so that a judgment dismissing the movant’s. answer, counterclaim and cross-petition is not premature, though the money- has not been paid into court.</p> <p>2. Insurance — Insurable Interest — Life Insurance. — Blood relationship in and of itself constitutes an insurable interest.</p> <p>3. Insurance — Insurable Interest — Life Insurance. — The relationship between brothers is sufficient to give -either an insurable interest in the life of the other.</p> <p>4. Insurance — Mutual Benefit Insurance — -Beneficiaries—Change —Marital Rights of Wife — “Property.”—A certificate of insu- . ranee in a fraternal order is not “property” in the sense that a change in the beneficiary by the husband from the wife to some one else will of itself constitute a fraud on her marital rights.</p> <p>5. Appeal and Error — Review—Presumptions.-—In the absence of a bill of exceptions, the presumption is that the proof heard supports the chancellor’s finding.</p>

<p>1. Wills-Construction-Creation of Trust.-A testator provided in his will that his wife hold his property in trust for the benefit of their children, and to use it so long as she remained unmarried, but that it was not his intention to authorize the chancellor to transfer this power to another trustee, but on her failing to act as trustee, or removal by the chancellor, tho trust estate should then end, and a legal distribution of the estate be made under instructions in the will and the law of descent. The wife died a few weeks after the husband, without having qualified as trustee under the will. Held, that, on her death, the trust estate ended, and the legal distribution of the property took place according to the laws of descent to the testator's children, who took the property in fee `simple, so that any limitation over provided in the will became an impossibility.</p>

<p>1. Banks and Banking-Stockholders' Liability-Where the stockholders of a solvent banking corporation in good faith sold their stock, indorsing the shares in blank, and delivering them to the bank's cashier, with the understanding that he would do what was necessary to effectuate a transfer on the bank's books, and the cashier failed so to do, such stock holders were not after two years and on the bank's becoming insolvent, liable to its creditors under Ky. Stat. section 547, imposing a double liability.</p>

<p>CASE 104. — ACTION BY THE LOUISVILLE COTTON OIL COMPANY AGAINST THE POSTAL TELEGRAPH- _ CABLE COMPANY —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division),</p> <p>Emmet Field, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>