Volume 137 — Kentucky Reports

<p>CASE 1 — ACTION BY THE COMMONWEALTH OP KENTUCKY AGAINST A. H. HARGIS AND OTHERS ON A BAIL BOND. —</p> <p>Appeal from Clark Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals. —</p>

<p>1. Insurance — Life Policy — Premiums—Loans.—A premium note provided for forfeiture except as to the right to the surrender value, or paid-up policy which might be provided for in the policy or by statute. Held that, the policy having provided for extended insurance as one of the surrender values, the non-payment of the note did not bar insured’s right to extended insurance.</p> <p>2. Insurance — Life Policy — Forfeiture — “Indebtedness.” — A policy provided that if any subsequent premium was not paid, and the policy was not surrendered, the insurance, after repayment of any “indebtedness,” would be extended without request or demand for a term specified in an accompanying table. A premium note provided that in settlement of any claim or benefit under the policy before the note should become fully paid the amount thereof should be deducted from the amount 'Otherwise payable by the company. Held, that the term “indebtedness,” as used in such nonforfeiture provision, did not include premium notes.</p> <p>3. Insurance — Life Policy — Nonforfeiture—Extended Insurance. —A nonforfeiture provision in a policy provided that if any subsequent premium was not paid, and the policy was not ■surrendered, the insurance should be extended without request or demand therefor, for the amount of its face during the term specified in the attached table, payable only if the insured died within the term, and that at the end of which time if the insured was living the policy should terminate. Held that, on insured’s failure to pay a subsequent premium, he had a vested right to extended insurance, without demand or act on his part, in accordance with the table for a term specified therein.</p> <p>4. Accord and Satisfaction — Elements.—Under the rule that accord and satisfaction applies only in cases where the amount due is in dispute or unliquidated, the acceptance by insured of less than one-third of the cash value of his policy during his life, both the cash value and extended insurance value being fixed by the policy, did not constitute an accord and satisfaction. %</p> <p>6. Compromise and Settlement — Capacity of Parties — Fraud.— Insured, while mentally incapable of attending to business, was falsely notified by the insurance company that he had failed to avail himself of the provisions of his policy for nonforfeiture, and that it was no longer in force, when, in fact, he was entitled to extended insurance, which would have carried the policy beyond the date of his death. The letter containing such information inclosed a check for $10.70, stating that it was the full cash surrender value of the policy, when, in fact, the surrender value was more than twice that sum. Held, that insured’s acceptance of the check did not constitute an available compromise and .settlement.</p>

<p>CASE 3. — ACTION BY JUDGE E. BENNETT AGAINST H. B. BENNETT AND OTHERS —</p> <p>Appeal from Crittenden Circuit Court.</p> <p>J. E. Cordon, Circuit Jndge.</p> <p>From the judgment H. B. Bennett appeals. —</p>

<p>1. Wills — Probate—Evidence—Admissibility.—In a proceeding to probate a will, contested on the ground of testamentary incapacity and undue influence, it is error to allow evidence of proceedings six months after the execution of a will, resulting in a judgment finding testator at that time mentally incompetent to manage his estate by reason of infirmity and age, since it takes less capacity to make a will than to transact business generally.</p> <p>2. Wills — Probate—Presumptions—Burden of Proof. — Where the propounder of a will proves the due execution thereof, and it is not irrational in its provisions or inconsistent in its structure with the sanity of testator, the presumption of law makes for him a prima facie case, and the burden of proving testamentary incapacity is shifted to contestant.</p> <p>3. Wills — Probate—Evidence—Instruction,®.—Where, in a proceeding to probate a will, the testimony of the subscribing witnesses, testifying unequivocally and consistently to the execution of the will, was not contradicted or impeached, and their evidence showed that testator acknowledged the signature as his and had the witnesses witness it, it was error to submit to the jury the question whether testator executed the will and the genuineness of the -signature to the will.</p> <p>4. Wills — “Testamentary Capacity.” — One having such mental capacity as enables him to know the natural objects of his ' bounty, his obligations to them, the character and value of his estate, and to dispose of it according to a fixed purpose of his own, has testamentary capacity.</p> <p>5. Wills — “Undue Influence.” — Undue influence defeating a will is any influence over the mind of testator to an extent that destroys his free agency and to constrain him to do. against his will what he would otherwise refuse to do, whether exerted at one time or another, directly or indirectly, if it so operated on his mind at the time he executed the paper, but any reasonable influence obtained by acts of kindness or by appeals to the feelings or understanding, and not destroying free agency, is not undue influence.</p> <p>6. Trial — 'Permitting Jury to Take Papers. — It is the better practice not to allow the jury to take papers to the jury room for examination after the case is submitted, unless by consent of counsel, and, where the jury wish to examine any paper given in evidence, they should ordinarily be brought back into the courtroom, and the examination had in presence of the court and counsel.</p>

<p>1. Master and Servant — Injuries to Servant — Assumption of Risk. — A mule driver in a mine who with knowledge of the ■defective condition of a car proceeds to ride on it without any direction so to do assumes the risk-incident to its defective condition.</p> <p>2. Master and Servant — Injuries to Servant — Anticipation of Consequences. — To prove the negligence of a mine operator ■because of liis piling cinders in a mule track in a mine to the height of six inches, and thereby creating an object frightening a mule using the track, it must appear that cinders that high would be reasonably calculated to frighten a mule of ordinary gentleness, and the fact Lhac a mule may take fright at them is not sufficient.</p> <p>S. Master and .Servant — Injuries to 'Servant — Assumption of Risk — One undertaking to- drive a' mule in a mine assumes the dangers ordinarily incident to the occupation, and, unless the master knowingly furnishes him a vicious mule, he assumes the risk of the mule being frightened by ordinary objects lying in or near the passway.</p> <p>4. Master and .Servant — Injuries to Servant — Improbable Consequences — Where a mule driver in a mine knew of the existence and the condition of cinders in the track, and drove the mule over the cinders, and the mule did not become frightened at them, the master was not liable merely because the mule, shortly thereafter, became frightened when again passing over the cinders, and ran away, and injured the driver.</p>

<p>CASE 6. — ACTION BY W. H. HALL AND OTHERS AGAINST JOHN W. WRIGHT AND OTHERS —</p> <p>Appeal from Letcher Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>Judgment for defendants and plaintiffs appeal.—</p>

<p>CASE 7. — ACTION BY ALFRED HENRY AGAINST THE MASON, HANGER & COLEMAN COMPANY. —</p> <p>Appeal from Pulaski Circuit Court.</p> <p>B. J. Bethurum, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Appeal and Error — Review—Harmless Error — Requiring Amendment to Petition. — Where, in. an action for setting fire to a building, the petition charged in effect that defendants had set fire to it, and also charged that defendants incited others to do so, whether the court was right in requiring plaintiff to allege that he did not know which state of facts was true- is immaterial; he having amended his petition to. conform to the court’s rulings, the whole matter being placed in issue, and trial being had on the merits of the whole case.</p> <p>2. Witnesses — Competency—Persons Interested in a Decedent’s Estate. — Civ. Code Prac. Sec. 606, subsec. 2, which forbids a person to testify for himself as to a .statement of a person since deceased or as to an act done or permitted to be done by -him, except for the purpose and to the extent of affecting one who is living and who, when over 14 years of age and of sound mind, heard such statements or was present when such transaction took place or when such act was done or committed, unless among other things, a representative of or some one interested in the estate .shall have testified against such person with reference thereto, clearly recognizes the right of persons interested in aá estate to testify for its protection when it is sued by a third person, and hence a devisee may testify in favor of the executor sued for a wrongful act of the testator.</p> <p>3. Fires — Civil Liability-^-Evidence — Relevancy of indictment.— In an action against an executor charging his testator with tbe burning of plaintiff’s house, the court properly refused to allow to be read an indictment of defendant’s testator for the burning of such house.</p> <p>4. Fires — Action for Setting Fire — Admissibility of Evidence.— In an action against an executor charging his testator with the burning of plaintiff’s house, plaintiff was properly not allowed to show <by an insurance agent that his main witness living near the house had renewed a policy of insurance on her property shortly before the fire; there being nothing in his evidence connecting the testator therewith.</p> <p>5. Evidence — Attack on General Character — Rebuttal Evidence. —Where, in an action against an executor charging his testator with the burning of plaintiff’s house, plaintiff offered proof attacking the testator’s general character, the court properly allowed defendant to show in what respect his moral character was bad.</p> <p>6. Trial — Instructions—Conformity to Evidence. — Instructions should be based on the evidence, and a view of the case should not be set out in an instruction when there is no evidence to support it.</p> <p>7. Fires — Actions for Setting Fire — Evidence.—In an action against an executor charging his testator with the burning of plaintiff’s house. Held, that there was nothing in the evidence tending to show that his testator procured or induced any one else to set fire to the building.</p>

<p>1. Forcible Entry and Detainer — Civil Liability — Nature and Form of Remedy.-^-It is not competent to try title in forcible entry, but in whom the legal title was vested at the time of entry is material and necessary to be ascertained, where on that alone depends the question whether plaintiff was in actual possession when defendant entered.</p> <p>2. Forcible Entry and Detainer — Actual Possession 'to Maintain Action. — The same kind of actual possession that will in time ripen into a good title will maintain an actiojn of forcible entry.</p> <p>S. Forcible Entry and Detainer — Pleading and Proof. — It is always a relevant inquiry, on the plea of not guilty in forcible entry proceedings, whether plaintiff was in the actual possession of the premises, as well as whether defendant forcibly entered thereon.</p> <p>4. Adverse Possession — Actual Possession — How Acquired.— Actual possession of land in this state may be acquired, either ,by physical inclosure of the whole boundary or by an inclosure of a part under a claim of title to the whole, if no. one else is asserting title to any part of the 'boundary on which claimant has .so entered.</p> <p>5. Adverse Possession — Evidence of Extent of Claim and Possession. — If one enters land under a paper title, it may be looked to as showing the extent of his claim and possession;, or, if he enters without a paper, claiming to a marked boundary, that fact may be shown as indicating the extent of his possession.</p> <p>6. Adverse Possession — Extent of Actual Possession. — If an entrant goes on a boundary under a junior patent, entirely or partly within a senior grant or survey, he will be deemed m actual possession of only so much as he actually incloses, if the owner of the senior grant is then in actual possession of his boundary; or, if the owner of the senior grant be not in actual possession, (but enters 'before the junior patentee ripens title by adverse possession, the latter will ipso facto •be restricted to his actual close.</p> <p>7. Public Lands — Patent as Conferring Legal Title on Grantee. —If there be no other or older grant from the state to lands covered by a patent under which a party claims, the patent confers on him the legal title, unless another has by actual adverse possession acquired title thereto dehors a pa tent.</p> <p>8. Property — 'Constructive Possession. — The owner of a legal title is in constructive possession of all land within his .boundary not in actual possession of somebody else.</p> <p>9. Landlord and Tenant' — Actual Possession of Lessee. — A written _ lease of patented land, title to which was created by the patent, and which had devolved ón lessor either by conveyance or by operation of the statute of limitations prior to' another’s entry thereon, invests lessee with the actual possession at the time of such entry.</p> <p>10. Adverse Possession — Limitation Against Commonwealth.— Since January, 1893, limitation may run against the commonwealth, as expressly provided by Ky. St. 'Sec. 2523; Gen. St. c. 71, art. 3, Sec. 10.</p> <p>11. Adverse Possession — Evidence—Sufficiency.—Evidence held insufficient to show adverse possession against the commonwealth for the statutory period prior to the date of patent for land in controversy.</p> <p>12. Adverse Possession — Necessity of ‘Claim and Possession Being Continuous. — A claim .and possession, on which title by adverse possession is based, must be shown to have 'been continuous.</p> <p>13. Forcible Entry and Detainer — Evidence—Admissibility.—In forcible entry, it was error to exclude evidence for plaintiffs of a survey of land covering that in dispute, made for a certain party prior to the patent to defendant’s lessor, under whom defendant claimed the right to enter.</p> <p>14. Forcible Entry a.nd Detainer — Evidence—Admissibility.—In forcible entry, it was relevant to show, in support of plaintiff’s actual possession when defendant entered, that a tract covering the area in dispute was patented, and had been in the actual adverse possession of plaintiff’s lessor and its vendors for 15 years prior to the patent to defendant’s lessor.</p> <p>15. Forcible Entry and Detainer — Scope of Inquiry — Title and Possession. — While title cannot be tried in a forcible entry proceeding, possession can be.</p> <p>16. Forcible Entry and Detainer — Admissibility of Evidence— Title Papers. — In forcible entry, title papers may be received to show ihp extent of possession, or to show that it was limited, if they do show it.</p> <p>17. Public Lands — Conflicting Patents — Effect of Priority. — If land in dispute in forcible entry was patented prior to a patent to defendant’s lessor, the latter patent would be void, and could not be received as evidence tending to limit the possession of plaintiff’s lessor.</p>

<p>CASE 10. — PROCEEDING BY THE COMMONWEALTH AGAINST P. A. HOWERTON AND ANOTHER. TO ENFORCE THE FORFEITURE OF A BAIL. BOND.—</p> <p>Appeal from Crittenden Circuit Court.</p> <p>J. F. Gordon, Circuit Judge.</p> <p>Judgment for the commonwealth, defendants appeal. —</p>

<p>CASE 11. — ACTION BY BETTIE W. RECTOR AGAINST W. S. RECTOR AND OTHERS. —</p> <p>Appeal from Case}7- Circuit Court.</p> <p>IT. C. Baker, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>1. Insurance — Insurable Interest. — One not a creditor nor related to insured has no insurable interest in his life.</p> <p>2. Insurance' — Life Insurance — Assignment of Policy. — An instrument assigning a policy of insurance to hold the same unto the assignee and to be paid to him at maturity, the assignee agreeing on any settlement of the policy that there should be first deducted all the then existing indebtedness to the company, without expressing what the assignee is to do, or that he is to do anything, is void and unenforceable.</p> <p>8. Insurance — Assignment .-of Life Policy — '“Wagering Contract.” — Where a policy of life insurance was assigned with an agreement that the assignee should pay the premiums, and, when the policy was paid, retain the amount so paid and a certain part of the surplus, is void as a “wagering contract.”</p>

<p>CASE 13. — ACTION BY CHARLES C. MILLER AGAÍNST HENRY DERSCH AND OTHERS, 'CONSOLIDATED WITH AN ACTION BY HENRY DERSCH AGAINST THE COTTAGE BUILDING ASSOCIATION NO. 2, OF COVINGTON AND OTHERS —</p> <p>Appeal from Kenton Circuit Court, (Common Law and Equity Division).</p> <p>M. L. Harbeson, Judge.</p> <p>Judgment for plaintiff, Chas. C. Miller, and defendant Henry Dersch and another appeal—</p>

<p>CASE 14. — SUIT BY W. R. BOGGS AGAINST R. F. BUSH, ■ TO RECOVER FOR A DEFICIT IN LAND SOLD.—</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals —</p>

<p>CASE 15. — ACTION BY JOHN B. NASH AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY AND OTHERS. —</p> <p>Appeal from Campbell Circuit Court,</p> <p>A. S. Berry, Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 16. — SUIT BY JACOB BORNSTEIN AGAIN.ST THE LOUISVILLE SCHOOL BOARD, &c —</p> <p>Appeal from Jefferson Circuit Court, Chancery Branch (First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From a judgment dismissing the petition, plaintiff appeals. —</p>

<p>CASE 17. — SUIT BY JOHN YOCUM’S ADMINISTRATOR AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY. —</p> <p>Appeal from Boyle Circuit Court.</p> <p>M. C. Saufley, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>CASE 18 — ACTION BY ELIZABETH BELSER AGAINST THE CITY OF COVINGTON. —</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>CASE 19. — ACTION BY MUTUAL MANUFACTURING COMPANY AGAINST CHARLES MOORE & CO. —</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for defendant, and plaintiff appeals.—</p>

<p>1. . Insurance — Indemnity Insurance — Right to Inspect Insured’s Books. — An indemnity insurance policy for a premium based o-n the gross amount of wages paid by insured, stipulating that insurer shall have the right at all reasonable times to examine the books of insured so far as they relate to the wages paid, must limit its demand to examine the books to reasonable hours and on reasonable days, and it may not rightfully demand to examine the books on Sundays or after business hours at night or when insured uses the books.</p> <p>2. Pleading — Construction.—The allegations of a pleading are taken most strongly against the pleader.</p> <p>3. Insurance — Indemnity Insurance — Examination of Insured’s Books — Actions.—A petition by insurer issuing an indemnity policy for a premium based on the gross amount of wages paid by insured for an examination of insured’s books, which merely alleges that it has repeatedly requested insured for permission to examine its books, and which does not allege that insured is indebted to insurer in any sum, and which does not aver that the settlement had at the end of the term of the policy was procured by fraud or mistake a-s to the amount of wages paid, does not show a right to examine the books given by the policy stipulating that insurer shall have the right at all reasonable times to examine insured’s books.</p> <p>4. Insurance — Indemnity Insurance — Premium — Settlement— Effect. — Where insurer in an indemnity policy for a premium based on tbe gross amount of wages paid by insured and insured made a settlement at the end of the policy based on the amount of wages paid by insured, the settlement was final, unless impeached by fraud or mistake, which insurer must plead and prove.</p>

<p>1. Master and Servant — injuries to Servant — Sufficiency of Evidence — Assumption of Risk. — In a servant’s action for injuries, while operating a jack in pulling a pile, by the breaking of a link by which the power was applied after plaintiff had told his foreman that the link was breaking and was directed to continue the work, evidence held to show that the danger from the link was not so obvious that one of ordinary intelligence would not have continued the work when directed to do SO'.</p> <p>2. Master and Servant — Injuries to Servant — Unsafe Appliances —Assumption of Risk. — A servant does not assume the risk of injury from appliances which are not ¿reasonably safe unless the danger in continuing to work with the appliances is or ought to be apparent to him.</p> <p>3. Master and Servant — Injuries to Servant — Assumption of Risk — Work Under Master’s Direction. — Where the master is present -and orders the servant to proceed with the work after the latter has complained that an appliance is defective, the doctrine of assumed risk does not apply, though the danger in continuing the work is as well known to the , ' servant as to the master, unless it was obviously and clearly dangerous to- do so, which the servant knew.</p> <p>4. Master and Servant — Injuries to Servant — Jury Question-Assumption of Risk. — In a servant’s action for injuries, while pulling a pile with a jack, by the breaking of a stirrup thereon, by which the power was applied, after plaintiff had told his foreman that the stirrup was breaking and was directed to continue the work, whether plaintiff assumed the risk in continuing the work held a jury question.</p> <p>5. Master and Servant — Injuries to Servant — Instructions— Assumption of Risk. — In a servant’s action for injuries while operating a jack used in pulling a pile by the breaking of a sunup on the jack, the court instructed that :i the stirrup was breaking and plaintiff was assured b/ his superiors that it would hold itntil a new one was furnished and was ordered to continue the work and he did so, relying upon their superior knowledge, and was injured by the stirrup breaking, the fact that he continued to work would not prevent recovery unless the dangerous condition of the stirrup was manifest to one of ordinary prudence, in which case plaintiff was not justified in continuing the work and could nor recover. Held, that the instruction' was proper upon the issues submitted.</p> <p>6. Damages — Personal Injuries- — Excessive Damages. — A servant .when injured, was about 21 years old, robust, in good health, and with a prospect of many years of good health, and then weighed about 170 pounds, 'but some 14 months thereafter weighed only 140 pounds. His right kidney was severely injured, and several of his ribs were dislocated, and the weight o-f the medical evidence was that his strength had been permanently impaired by the injuries. Held, that a verdict of ?5,000 was not excessive.</p>

<p>1. Highways — Regulation of Vehicles — Statutes.—Ky. St., sec. 2739g, limiting the speed of automobiles approaching the intersection of highways and requiring warnings on approaching travelers, is declaratory of the common law of negligence, and adds to it certain standards of care on the part of operators of automobiles, and a violation thereof is negligence per se, and forms a sufficient basis for an action for injuries caused thereby to another- using the highway.</p> <p>2. Highways — -Regulation of Vehicles — -Statutes.—An operator of an automobile who saw, or by ordinary care could have seen a horse and vehicle on a highway ahead of him, was required by Ky. Stat. sec. 2739g, to give warning of his approach and to. use every reasonable precaution to insure the safety of occupants of the vehicle; and evidence that he did not give any warning, that he drove the machine at a high rate of -speed, and that he did nothing toward respecting the safety of the persons in the vehicle, except to swerve the machine to the right to- pass the vehicle prima facie proved negligence, authorizing a recovery for injuries received by the persons in the vehicle in consequence thereof.</p> <p>3. Highways — Regulation of Vehicles — Statutes.-—Ky. St. sec. 2739g, limiting the speed of automobiles approaching an intersecting road is enacted, not only for the protection of those about to come out of the intersecting road and onto the one traversed by the automobile, but also for the protection 'of all persons at or near the intersection on whatever road they may be, and evidence that an automobile was operated at a speed above the maximum speed as it approached and passed the intersecting road and that the automobile frightened a horse driven on the same road, causing it to run away and injure the drivers, showed negligence authorizing a- recovery.</p> <p>4. Highways — Injuries to Travelers — Negligence—Evidence.—In an action for injuries to travelers by their horse at or near an intersecting road becoming frightened by an automobile and running away, the testimony of a witness that the automobile passing him about a quarter of a mile from the place, of the accident was going very fast, that he speeded his horse up to 12 miles or more an lour following the automobile, which ran so fast that it had gained 200 yards when it reached the place of the accident, and that the automobile did not slacken as it approached the intersecting road, was admissible to enable the jury to determine not only the speed of the automobile, but whether the operator thereof took any pains to be aware of the peril of the travelers.</p> <p>5. Damages — Punitive Damages — When Recoverable. — Punitive damages are recoverable in an action for neg’igence only where the negligence manifests a wanton disregard of the lives or safety of others, or is willful or malicious.</p> <p>6. Highways — Use by Automobiles — Frightening Team — Punitive Damages. — Where, in an action for injuries to travelers on a highway by their horse becoming frightened by an automobile and running away, the evidence showed that the operator failed to comply with the statutory regulations as to the maximum speed and warning of his approach, and there was nothing to show that the horse showed symptoms of fright until the automobile was so near that it was probably impracticable to stop it, that the operator knew, that the horse was frightened, or that he purposely refrained from looking, punitive damages were not recoverable.</p> <p>7. Appeal and Error — Damages—.Erroneous Submission of Punitive Damages — Effect.—Where . the verdict in an action for personal injury negligently inflicted did not clearly show that it contained nothing but compensatory damages, the error in authorizing the jury to 'award punitive damages was reversible.</p>

<p>1. Work and Labor — Services—Relationship—Parent and Child. —The law will not imply a contract to compensate a child for .services rendered his parent, especially where the child remains at home,- and the services are such as the affection commonly entertained by a child would have prompted the child to render.</p> <p>2. Executors and Administrators — Claims Against Estate. — Expressions of decedent’s gratitude for what claimants had done for him, and of a purpose to compensate them, by leaving them his farm at his death, did not amount to an express promise to pay them for their services, nor were they sufficient as an unqualified acknowledgment of an indebtedness on his part therefor.</p> <p>3. Limitation of Actions — Removal of Bar — Acknowledgment of Indebtedness. — In order to take a case out of the statute of limitations, an express acknowledgment of the debt, as a debt due at that time (coupled with the original consideration), or an express promise to pay the debt made to the creditor, or some one acting for him, and not to a stranger, must be proved to have been made within the time prescribed 'by the statute.</p> <p>4. Descent and Distribution — Claims—Estoppel.—After decedent’s death it was agreed between claimants and their sisters that, in consideration of the claims for services and advances to decedent, claimants should receive the larger and more valuable portion of decedent’s land, which was thereupon distributed to them in accordance with the agreement; claimants to pay $800 for the share of an imbecile sister, and to be relieved from any obligation for 'the sister’s future support. Held, that by such contract claimants released and were -estopped to as-sert th-eir claims against the estate for services.</p> <p>5. Insane Persons — Contracts—Deeds—'Validity.—The deed of an insane person i-s voidable only, and not void.</p> <p>6. Insane Persons — Deeds—Conveyance of Interest in Estate— Validity. — Where an insane heir conveyed her interest in the estate to claimants in consideration of their agreement to pay $800, to- be deposited in trust for her support, and such deed was executed before the grantor was adjudged of unsound mind, and was not only executed in good faith, -but was favorable to her, it could not ,be repudiated by the claimants on account of her alleged insanity.</p> <p>7. Appeal and Error — Cross-Appeal—Decree.—Where, in a suit for the settlement of a -decedent’s estate, certain claims were disallowed, and a conveyance of an insane heir’s share in certain real -estate to the claim-ants in consideration of $800, which had not been -paid, was sustained, but no judgment was rendered against the claimants for such sum, judgment therefor could not be directed on an appeal, in the absence of a cross-appeal by such insane heir and her committee.</p>

<p>1. Sales — Contracts—Rescission.—A buyer who desires a rescission of the contract for defects in the goods -or a failure to come up. to the terms of sale must within a reasonable time after discovery of the defects or failure offer to restore the goods.</p> <p>2. Sales — Contracts—Rescission.—-Where a .buyer of a threshing' machine under a contract of warranty providing that, if it did not work: properly, notice -should be sent and a reasonable time given to remedy the difficulties, and that salesmen, mechanics, and experts were without authority to bind the seller, used the machine for two seasons with knowledge of defects therein, but without giving the seller any notice thereof, -but making complaints to the agent who sent experts to remedy the defects, and without offering to return the machine after the end of the second -season, but, instead, putting it in the woods covered by a tarpaulin, he could not rescind the contract for the defects.</p> <p>3. Guaranty — 'Contract—'Consideration.—Where an agent of a seller of machinery on being notified by the seller that the intended .buyer was insolvent agreed, in order to make the sale, to guarantee the purchase-money notes of the buyer on condition that the buyer should not know of the guaranty, and the condition was performed, the guaranty of the agent, though signed after delivery to the buyer and the delivery of his notes to the .seller, was supported by a valid consideration.</p>

<p>3. Judges — Special Judges — Appointment—Validity.—Where the presiding judge of the county court declined to sit in proceedings to establish a drainage district because of his interest, and by the agreement of the petitioners and objectors appointed a member of the bar as a special judge, who assumed to act in good faith, his appointment, though irregular under Ky. St. Sec. 1059, requiring a justice of the peace to hold court in place of the county judge, made him a defacto judge of the county; court, exercising its functions under color of title, and his judgment, under which a third person acquired rights, could not be collaterally attacked.</p> <p>2. Officers — “De Facto Officers” — “Color of Title.” — The essential to the creation of an “officer de facto” is that his incumbency should not be legal, but that it should be exercised by some election or appointment, attempted as of legal right, but invalid for want of power in the appointing body, or because of a defect in the election, and an officer soi elected or appointed actually in possession of the office exercising its functions and acting under “color of title,” which means an apparent right to the office, is an “officer de facto.”</p> <p>3. Officers — “De Facto Office.”' — A de facto office cannot -exist except in case of revolution, a complete -overturning of constitutional authority, and usurpation of all power of government by occu-pants exercising a force superior to the constitutional authorities, and there cannot be under the Constitution a de facto office.</p> <p>4. Drains — Establishment—Proceedings.—A iproceeding to establish a drainage ditch is quasi judicial, and many of its features are ministerial only, and some of them are in a sense legislative.</p> <p>5. Judges — Disqualification—Effect.-—Where there i-s anything tó be decided by a judge and he can profit by his own decision, he is disqualified to act, and, where he acts, his judgment is void.</p> <p>6. Judges — Disqualification.—Where the circuit court on appeal in proceedings to establish a drainage ditch entered a judgment after trial, finding the necessity for the ditch, and that it was practicable, and adjudged the issues as to advantages and benefits, and remanded the case to the county court to carry into effect the judgment, by advertising the letting of the contract to construct the ditch, to have the costs apportioned among those affected, as indicated by the judgment, the presiding judge of the county court, though liable to an assessment for the cost of the ditch, was qualified to act, far that which remained was merely formal and ministerial.</p>

<p>1. Waters and Water Courses — Municipal Water Company — In- . sufficient Fire Protection — Suit for Loss — Evidence—Peremptory Instruction. — A city in contracting with a water company for fire protection represents its" inhabitants, and contracts for their benefit, and one who suffered a loss by the company’s default was the real party in interest in a suit by him therefor, and was not bound by the testimony of the fire department that the water pressure was all right; and hence a motion for a peremptory instruction for defendant, based on such testimony, was properly overruled.</p> <p>2. Waters and Water Courses — Municipal Water Company — Insufficient Fire Protection — Suit for Loss — 'Evidence.-—In a suit for loss by fire, wherein the question was simply whether defendant water company maintained the contract ■pressure in its mains and had them in proper order, plaintiff might show how high such pressure would throw wate? from a nozzle like that used by the fire department, and with what force it would strike an -object when there is such pressure, and the force at.the fire in question, or how-far water was thrown; but, after the firemen testified the pressure was all right, he should not have been allowed to cross-examine them as to different fires in the city and their result, as it opened too wide a field of investigation.</p> <p>3. Waters and Water Courses — Municipal Water Company — ■ Sufficiency of Fire Protection — Liability for Loss. — (A. water company, to avoid liability for loss by fire, was not required to maintain, at tbe time thereof, greater pressure in its mains than its contract called for, though it may have had a higher pressure some other time.</p> <p>i. Witnesses — Cross-Examination—Scope.—Where, in a suit for loss by fire, based on defendant water company’s failure to maintain the contract pressure in its mains, evidence was not satisfactory as to what force at the nozzle the required pressure would reasonably give, defendant’s witnesses stating in general terms that it was good, but not stating the facts as to the force of the water, they may be cross-examined as toi all that occurred at the fire, and be asked if mud came out of the hose, or if the water simply trickled out of the nozzle, or how far the force of the contract pressure would carry it, or how far the water was thrown at the fire, or what force it had then, but the examination should be confined to what occurred at the fire in question.</p> <p>5. Witnesses — Examination—Admitting Testimony Not Called For. — Testimony of a witness as to a matter -as to which he was not asked should not be admitted-.</p> <p>6. Trial — Reception of Impeaching Evidence — Cautioning Jury. —If the evidence- is only competent to impeach a witness, the court should so caution the jury.</p> <p>1. Damages — Mitigation or Reduction- — Effect of Payment of Insurance. — A property owner who has two- contracts protecting him against fire, one with -a water company for fire protection made by the city, and another with an insurance company, is entitled to- be made whole in case of a loss; and when he has collected a part of his loss from the insurance company, he can -only collect the remainder on the contract with the water company.</p> <p>8. Waters and Water .Courses — Municipal Water Company — Suit for Loss By Fire — Instructions.—-In a suit for a loss by fire based on -defendant water company’s failure to furnish the contract pressure in its mains, the proof -showed that it had timely notice, and the real question was whether it furnished the pressure, and an instruction told the jury that if “at the time of the fire’’ in which plaintiff’s stable was .burned defendant failed to furnish its contract pressure in the mains, and by reason thereof the fire department was unable to put the fire out before it reached and consumed plaintiff’s stable, they ought to find for plaintiff, etc. Held, that there could be no objection to the instruction, in that it used the words quoted.</p> <p>9. Waters and Water Courses — Municipal Water Company— Loss by Fire — Grounds of Liability. — A water company, under contract to maintain a certain pressure in its mains for fire protection, need not do so till it has notice of a fire, but is then bound to put it on, and it is not liable unless it fails to comply with its contract, and its failure is the proximate cause of loss.</p> <p>10. Damages — Instructions—Loss by Fire. — In a suit for a loss by fire, based on defendant water company’s failure to perform its contract as to fire protection, the court, in instructing the jury to find for plaintiff under Certain conditions) should not direct the jury to find his damages at an amount not to exceed that at which he estimated his property worth, less insurance received by him, where witnesses estimated it to be worth much less, but should tell them to find for him its fair value, or so much of it as was burned by reason of defendant’s failure to perform its contract, less the amount of insurance collected.</p> <p>11. Waters and Water Courses — Municipal Water . Company— Insufficient Fire Protection — Suit for Loss — Instructions.—In . a suit against a water company, the court instructed that if the jury believed from evidence certain facts as to der fendant’s negligence, and that, .by reason of the carelessness or negligence in suffering or permitting certain pipes to ■become clogged or stopped, “if the defendant did do so,” the plaintiff’s property was destroyed by fire, to find for plaintiff. Held, that the words “if the defendant did do so” should .be omitted therefrom.</p> <p>12. Waters and Water Courses — Municipal Water Company — Insufficient Fire Protection — .Suit for Loss — Burden -of .Proof— Instructions. — In a suit against a water company for a loss by fire, based on its failure to furnish suffijeient pressure in its mains, the burden of proof is on plaintiff to show, not only that proper pressure was not furnished, or was not available by reason of the mud in the main, but also that by reason of this his stable was burned; and hence instructions placing the 'burden on defendant to show its failure, or failures, did not cause the loss were erroneous.</p> <p>12. Waters and Water Courses — Municipal Water Company— Insufficient Fire Protection — .Suit for Loss — Instructions.-—In a suit for loss by fire, based on defendant water company’s failure to maintain the contract -pressure in its mains, the court should instruct that it is not responsible for failure of the city fire department to fight the fire with shill and diligence, or for any defect in the hose used by it, and unless the jury believe defendant failed to furnish the contract pressure in its main, or negligently suffered its main to he clogged, and that hut therefor plaintiff’s stable would not have burned, they should find for defendant.</p>

<p>1. Executors and Administrators — Sale of Lands — Settlement of Estate. — No more of the lands owned by decedent at his death than is necessary to pay the balance of his debts, after exhaustion of the personalty, can be sold in a suit only to settle his estate.</p> <p>2. Action — Joinder..—'There may be joined with a suit to- settle a decedent’s estate the cause of action under Civ. Code Prac. Sec. 490, subsec. 2, for sale of the residue of the land after paying the debts, on the ground that such residue was indivisible among the parties entitled to it without materially impairing its value.</p> <p>3. Deposits in Court — Default of Commissioners — Liability on Bond. — Civ. Code Prác. Sec. 490, subsec. 2, provides that real estate owned by more than one may be sold by order of court in an action brought by either owner, though one of them be an infant, if the property cannot be divided without materially impairing its value. .Section 493 provides that, subject to the provision of section 497, the guardian of an infant must before the sale is ordered execute a bond to the infant to account for its share; and that, if the bond be not given, any order of sale, and any sale under such an order, shall be void; and section 497 provides that in an action under section, 490, subsec. 2, the share of an infant shall not be paid by the purchaser, but shall remain a lien on the land till the infant becomes. of age, or its guardian executes bond as reauired by section 493. Held, that sale having been made, as it could be, without a bond being given by an infant’s guardian, in which case the infant’s shave is to remain a lien on the land, and not be collected till such a bon'd is given or the infant comes of age, and the share of the infant having been paid by the purchaser to, the commissioner and receiver of the court on the void order of the court, so that such share of the purchase money still belonged to the purchaser, and was held to his use 'by the commissioner, and it having then been loaned out on an order of the court the commissioner in thereafter collecting it on an order of the court to collect and hold it till further order was acting solely in virtue of his office, and not merely under color of office, so that, he having failed, the surety on his official bond was liable to the purchaser.</p>

<p>CASE 28. — SUIT BY JOHN IIURLEY, JR., AGAINST THE BIG SANDY & CUMBERLAND RAILWAY COMPANY.—</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>CASE 29. — PROSECUTION AGAINST BURK’S SPRINGS DISTILLING COMPANY FOR VIOLATING THE LOCAL OPTION LAW. —</p> <p>Appeal from Marion Circnit Court.</p> <p>I. H. Thurman, Judge.</p> <p>Demurrer to indictment sustained and tlie commonwealth appeals.- —</p>

<p>CASE 30. — PROSECUTION BY 'COMMONWEALTH OF THOMAS HODGES AND OTHERS FOR PURCHASING TOBACCO IN VIOLATION OF THE POOLING LAW.—</p> <p>Appeal from Christian Circuit Court.</p> <p>Thos. P. Cooic, Judge.</p> <p>Demurrer to indictment sustained and Commonwealth appeals. —</p>

<p>CASE 31. — ACTION BY B. F. HAMILTON AND OTHERS AGAINST JOHN J. JONES AND OTHERS. —</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner., Judge.</p> <p>Judgment for plaintiffs, defendants appeal. —</p>

<p>CASO 32 — ACTION BY HECHT & CO. AGAINST THE AMERICAN CREDIT INDEMNITY COMPANY OF NEW YORK —</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Homicide — Killing: Without Malice — “Voluntary Manslaughter.” — An unlawful, willful, and felonious killing without malice, or in sudden affray, heat, and passion, and not in self-defense, constitutes -“voluntary .manslaughter.”</p> <p>2. Homicide — Self-Defense—Defense of Another. — 'Where when defendant killed deceased, he was engaged in willfully striking defendant’s brother, not in decedent's necessary self-defense, with a weapon- reasonably -calculated to inflict death -or -great -bodily harm, and from such striking defendant -believed, and had reasonable ground to believe, that his brother was in imminent danger of suffering death or great bodily harm at deceased’s hands, and defendant -shot and killed deceased to avert such danger, he would not be guilty, provided he used no more force than he reasonably believed at the time was necessary for that purpose.</p> <p>3. Homicide — Difficulty—Abandonment—Flight—Where accused, though having begun a difficulty with deceased, abandoned ■the fight and fled from deceased, who pursued him and struck him, or struck at him, with a weapon which was reasonably calculated to produce death or great bodily harm, and defendant had from this cause reasonable ground to believe, and did believe, that he was in immediate danger of ’ suffering death or great bodily harm at deceased’s hands, and to avert such danger he fired the shot which killed or contributed to the death of deceased, he would not be guilty.</p>

<p>1 Removal of Causes — Citizenship—“Citizen.”—'The personal representative of a nonresident deceased, having qualified as such in this state, was a “citizen” of the state for purposes of the action, and as hearing on the question of removal of the cause.</p> <p>2. Removal of Causes — Jurisdiction of the United States Courts — 'Pleading.-—-Where an action is brought in this state for the death of plaintiff’s intestate in Tennessee, and the Tennessee statute was not pleaded, and it was averred that the intestate was engaged in interstate service, the petition -showed that it was not brought under the Tennessee law, hut under the act of 'Congress- (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p.,1171]), so that the state court did not have -exclusive jurisdiction.</p> <p>3. Death — Evidence—'Pleading.-—-Where an action is ‘brought here for a death occurring in another state, -the pleading should set out the statute of the sister state if it is relied on, but it is not necessary to set' out the federal employer’s liability statute (Act April 22, 1908, c. 149, 35 Stat. 6.5 [U. S. Oomp. St. Supp. 1909, p. 1171]), if that is relied on, if the facts are stated that bring the cause of action within its scope, as the state courts will take judicial notice of such statutes. • ■ •</p> <p>4. Courts — Removal of Causes — Action for Death — Interstate Commerce Act — Concurrent Jurisdiction. — The state courts have concurrent jurisdiction with the federal courts of actions in which it'is sought to recover' damages for injury or death caused by a violation. of ■ the federal employer’s liability act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]), and if the action is brought in the state court and no motion for removal made, the court may consider the case, but if motion is made in due time, in the state court, by defendant, to remove the action to the federal court, the motion must prevail, the right to remove depending on the original jurisdiction of the United States court.</p>

<p>CASE 35. — ACTION BY. M. M. HANBERRY AND OTHERS AGAINST V. K. BLAKLEY AND OTHERS —</p> <p>Appeal from Trigg Circuit Court.</p> <p>Thomas P. Cook, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal. —</p>

<p>Municipal Corporations — City Ordinañces — Public Health— Vaults — 'Construction.—Louisville Building Ordinance, section 81, requires that any existing vault on property abutting on a public sewer shall 'be filled after 60 days’ notice to the owner by the inspector of buildings, chief of the health department, or chief of police. Held, that such ordinance made it the duty of the officers named to give all. persons having vaults so situated notice to fill the same, and was therefore not objectionable as delegating to such officers a duty which should have been exercised by the council, nor as authorizing them to discriminate as to whom notice should be given.</p>

<p>1. Executors and Administrators — Order Appointing Administrator — Validity.—An order appointing an administrator before the second term of the county court after the death of'the intestate, though erroneous because prematurely entered, is not void.</p> <p>2. Executors and Administrators — Irregular Appointment— Effect on Powers — Settlement of Claims. — Under Ky. St. section 3882 authorizing a personal representative to compromise a claim for damages for decedent’s death, an administrator, acting under an order of appointment prematurely entered in the county court, may, in good faith, compromise the claim for decedent’s death.</p> <p>3. Executors and Administrators — Powers of Administrator-Settlement of Claims. — Where the administrator, in fraud of the rights of the beneficiaries of a decedent’s estate, and in collusion with the adverse party, settled a claim for the negligent death of decedent, so as to defeat the action of the beneficiaries, the settlement could, at the instance of the latter, be opened, and the original case tried on its merits.</p> <p>4. Appeal and Error — Direction of Verdict — Review.—The court, in reviewing the ruling of the trial court directing a verdict for defendants at the close cf the evidence in a suit attacking an administrator’s settlement of a claim for the negligent death cf decedent, must consider the evidence in its strongest aspect for plaintiff; and, where the evidence showed a probable claim for substantial damages for decedent’s death, and that thé administrator and the party liable for the death did not act in good faith in the settlement, the case must go to the jury.</p> <p>5. 'Street Railroads — 'Operation of Cars — Duty of Motorman.— A motorman must keep a lookout ahead for pedestrians using the street, so as to give them timely warning of the car’s approach, ¡and must have the car under such control that he can stop it, if it becomes apparent that pedestrians are unaware of its approach, or cannot leave the track in time to escape injury.</p> <p>C. Street Railroads — Use of Streets — Right of Oars and Pedestrians. — Though street cars are rightfully in the streets and have a right of way, pedestrians may also rightfully use the streets, and until they are aware of the approach of a car, they may walk across the tracks.</p> <p>7. Street Railroads — Operation of Cars — Negligence.—In an action against a street railway for the death of a pedestrian struck by a car, evidence that the car was running at 15 miles an hour, that the motorman was not ringing the ■gong, that he left the brake and went to the side of the car and looked back at some boys attempting to jump on the car, and that he did not turn so that he could see decedent until within a few feet of her, when he rang the gong and tried to stop the car, but could not, established a prima facie case of negligence.</p> <p>8. Street Railroads — Injuries to Pedestrians — Contributory Negligence. — Whether a pedestrian killed by a street car was guilty of contributory negligence in going on the track without looking to see whether a car was approaching held, under the evidence, for the jury.</p> <p>9. Executors and Administrators — Settlement of Claims— Fraud — Evidence.—In a suit by the children of a decedent against the administrator and a street railway, to set aside a settlement of a claim for the negligent death of decedent struck by a car, evidence that the administrator, without the consent of the children, and on consultation with only one of them, who assented to a settlement if the other children agreed to it, and without consulting his counsel, went to the street railway, and, with its lawyer or officer, went to the county court and furnished bond, settled the claim for a pittance, together with the fact that he was represented in the case 'by the street railway’s counsel, showed a fraudulent purpose to defeat the claim, authorizing the submission to the jury of the issue of fraud.</p> <p>10. Executors and Administrators — ’Settlement of Claims— Fraud — Evidence.—A settlement by an administrator for $250 for the negligent death of his intestate, who was, at the time of her death, between 4;5 and 50 years old, in good health, able to perform manual labor, and was doing so as a wage-earner, is grossly inadequate, and is properly considered on the issue whether the settlement was in fraud of the beneficiaries of the intestate.</p>

<p>CASE 38. — ACTION ' BY JOHN Y. WIGHT AGAINST THE CUMBERLAND TELEPHONE & TELEGRAPH COMPANY —</p> <p>Appeal from Jefferson Circuit' Court (Common Pleas Brandi, First Division).</p> <p>Emmet Field, Judge.</p> <p>From a judgment dismissing lais petition, plaintiff appeals. —</p>

<p>CASE 39. — ACTION BY CHARLES HALEY AGAINST THE PRICE & LUCAS CIDER & VINEGAR COMPANY.—</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 40. — ACTION BY .GEORGE BRADFIELD AGAINST LLOYD SAPP AND OTHERS. —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal. —</p>

<p>1. Homicide — Manslaughter—Evidence.—In a prosecution of an officer for killing decedent while resisting arrest, evidence held to sustain a conviction of manslaughter.</p> <p>2. Sunday — Arrest—Execution c(f Process. — -Wihere a capias pro fine was duly issued 'by a justice of the peace in a proceeding charging accused with breach of the peace, it could be executed on Sunday under Ky. St. section 4567, authorizing the execution of process issued on a charge of a breach of the peace on Sunday.</p> <p>3. Homicide — Self-Defense—Instruction.—Defendant, an officer having a capias pro fine, attempted to arrest deceased on Sunday, hut deceased resisted arrest and placed his hand in his hip pocket as if to draw a pistol, when defendant, believing his own life was in danger fired and shot deceased. Held sufficient to entitle accused to an instruction on self- • defense.</p> <p>4. Homicide — Resistance of Arrest — Shooting by Officer — Instructions. — In the prosecution of an officer for killing deceased while resisting arrest, an instruction that if defendant in good faith believed that he had a right to execute a capias pro fine under which he was seeking to arrest deceased on Sunday, then they should find defendant guilty of manslaughter, was erroneous.</p> <p>5. Criminal Law — Argument of Counsel — Order.—Under Cr. Oode Prac. section 228, providing that if more than one counsel on each side argue the case they shall do so alternately, the court .erred in permitting two counsel for the commonwealth to argue the case after the argument for accused was closed, over his objection.</p>

<p>CASE 42. — ACTION BY CHARLIE SMITH BY HIS GUARDIAN AGAINST THE PALMER TRANSFER COMPANY.</p> <p>Appeal from McCracken Circuit Court. ’</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1 Appeal and ■ Error — Review—Questions of Fact — In Equity. —While in the Supreme Court in equity cases judgment will be given according to the weight of the evidence and the truth as it shall appear from the whole record, yet where the proof is conflicting, and on the whole case there is doubt, the chancellor’s judgment will not be disturbed.</p> <p>2. Pleading — Amendment of Petition — Trial Amendment. — In an action one object of which was, as allowed by Civ. Code ■Prac. section 661, to compel defendant to pay certain past-due notes on which plaintiffs were sureties, .and to enforce for that purpose a mortgage given -by them, the court did not err in allowing plaintiffs, just before submission of the cause, to file an amended petition to cure defects in the original, and to perfect the cause of action allowed by such section, and to make their pleadings conform to the proof.</p> <p>3. Trial — Submission of 'Cause After Amending Pleadings. — In a case wherein an amended petition was properly allowed to be filed just before submission of the cause, .it appeared from the record that defendant objected to the filing and excepted to the ruling, but it did not appear that' he asked or was refused a continuance, or that he objected to the submission. Held, in view of the record, that the submission was not premature, and that the court did not err as to that.</p> <p>4. Mortgages — Foreclosure—Judgment—Directions as to Sale. —In ordering a sale on foreclosure, it is error not to direct, as required -by Civ. Code Prac. section 696, on what time or credit the land will be sold.</p> <p>5. Mortgages — Foreclosure—Judgment—Directions as to Sale. —A judgment on foreclosure should only direct a sale of so much of the land as may be necessary to pay the debt with interest and costs, and it is error to direct a sale of the whole.</p> <p>6. Mortgages — Foreclosure—Judgment—Directions as to. Sale. ' — A judgment on foreclosure should direct the taking of a sale bond, payable to the commissioner, for the amount ..of the debt and costs, and a second bond, payable to the ■mortgagor, for the surplus, if any; and a direction to take a bond payable to the commissioner for the entire proceeds, if it should be necessary to sell all the land, Is error.</p> <p>7. Mortgages — Foreclosure—Judgment—Directions as to Sale. The validity of a judgment on foreclosure is not affected by failure to direct the commissioner io have the land appraised before its sale, or because it empowers him to obtain, in advance of the sale, the boundary of the land by metes and bounds, and sell it by metes and bounds, as the appraisement, as well as the manner of making it, is directed by statute, though as to appraisement the safer practice is to direct it by judgment.</p> <p>S. Mortgages — Foreclosure—Description in Judgment and Petition.' — Both the judgment and the petition on foreclosure described the land as follows: “A tract of land and appurtenances thereon, lying and being in B. county, and being that portion of land inherited by the said J. E. Q. from the estate of A. J. Q., and the same which was deeded by the heirs of A. J. Q., and bounded on the north by the lands of H. L. IT., and on the west by the lands of D. I. W., on the south by N. Creek, and on the east by T. lands, containing 50 acres., mere or less.” Held, suf&ceint for identification, as required by Civ. Code Prac. section 125.</p> <p>9. Appeal and Error — Decision Appealable — Final Order or Judgment. — The reservation of a counterclaim for future adjudication Is not a final order or judgment from which an appeal will lio.</p>

<p>CASE 44. — ACTION BY B. F. ECKMAN AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.—</p> <p>Appeal from Kenton Circuit Court, Common Law and Equity Division.</p> <p>M. L. ELarbeson, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Landlord and Tenant — Lease—Validity.—A stipulation in a lease providing for its forfeiture for nonpayment of rent is valid.</p> <p>2. Mines and Minerals — Lease—Forfeiture—Equitable Relief.— Where the lessee in a coal mining lease, stipulating for its forfeiture for nonpayment of rent failed to pay rent, and was insolvent, and it was doubtful whether the mine developed by the lessee at a large expense could he so operated as to pay rent, and liens were asserted against the property, equity properly terminated the lease -at the suit of the lessor, though equity may relieve against a forfeiture where circumstances justify it.</p> <p>3. Chattel Mortgages — 'Sale or Mortgage — Validity as Against Purchasers or Creditors. — A contract of sale stipulating that the title shall remain in the seller until the price is paid is a mortgage, and is not valid against purchasers for value or creditors unless recorded.</p> <p>4. Mortgages — Validity—After-Acquired Property. — A mortgage •of property to he acquired in the future is void against the ■mortgagee’s creditors or purchasers for value.</p> <p>5. Landlord and Tenant — Lien of Landlord — 'Extent—After-Acquired Property. — The lien created by a recorded lease stipulating that the lessor shall have a lien on the fixtures, personal property, and improvements for the rent does not attach to property subsequently acquired by the lessee and placed on the premises as against the creditors of the lessee.</p> <p>6. Chattel Mortgages — Priority—Lien of Landlord — Extent—“All Valid Liens.” — The' words' “all valid liens” in Ky. 'St. Sec. 2316, p2’oviding that all -valid liens on the personalty of a lessee created before the' property was canned on the premises shall prevail against a distress wanant for rent, means -such liens as are valid under section 496, providing that no mortgage shall b-qi valid against a purchaser for. value without notice or against creditors until the same is acknowledged and lodged for record, and a mortgage on the personalty of a lessee which is not'recorded is not valid against the landlord who is a creditor.</p> <p>7. Statutes — Construction—Re-enactment of Former Statutes.— Where the Legislature substantially re-enacts a statute after it has received a judicial construction, the law presumes that the Legislature re-enacted it in view of such construction.</p> <p>8. Landlord and Tenant — Liens—Discharge—Failure to Enforce. —Under Ky. St. Secs. 2316, 2317, providing that, '."here a lien is created on the personalty of the lessee while on the premises, a distress warrant for one year’s rent shall have precedence if sued out in 120 days fi'om the maturity of the rent, 1 and giving the landlord a superior lien for not more than one year’s rent, nor for any rent which has been due for more than 120 days, where rent is payable quartei’ly, the landlord has no superior lien for rent which has been due for more than 120 days.</p> <p>9. Landlord and Tenant — Lien—Enforcement.—A landlord suing to. enforce his lien for unpaid rent and to terminate the lease for nonpayment of rent, and obtaining an injunction restraining the disposition of the property on the premises, need not take out -a distress warrant or attachment to preserve his lien.</p> <p>10. Landlord and Tenant — Rent—Discharge From Liability — Injunction. — Where the landlord in a lease 'Stipulating for the payment of rent quarterly and for the forfeiture of the lease for nonpayment of rent elected to terminate the lease for nonpayment of rent, and enjoined the lessee from disposing of the property on the premises, and thereby put it out of the power of the lessee to operate the premises, rent must stop -on the filing of the petition, but the landlord was entitled to rent from the date of the last quarterly -payment to the date of the filing of the peftion.</p> <p>11. Landlord and Tenant — Chattel Mortgages — Mortgage of Leasehold — Termination of Lease — Priority as to Chattels.— Where the tenant’s estate in the land terminated by the forfeiture of the lease for nonpayment of rent, a mortgagee of the tenant mortgaging his leasehold interest and the personal property on the premises had no right as to the land or things on it which passed with it, but had a lien on the personalty in the absence of any facts defeating such lien.</p> <p>12. Chattel Mortgages — Assignments by Lessee — Estoppel.— Where a mortgage of a leasehold interest and the property on the premises was acknowledged by one of the two lessees, and the lessees obtained money from the mortgagee for a company on the representation contained in the mortgage that the lease had been assigned to the company, the lessees were estopped to deny the assignment, and the mortgage was binding, as to the personalty on the premises.</p> <p>13t Estoppel — Persons Esitoppted — Purchasers.—Where ,a mortgage of a leasehold interest and the personal property on the premises, acknowledged by one of the two lessees, recited that the land was leased to the lessees, and was conveyed by them to a company by an unrecorded conveyance, the company was estopped from denying an assignment.</p> <p>14. Landlord and Tenant — Liens—Rights of Creditors of Tenant. —A lessor having a superior lien for rent unpaid must first exhaust the property on which other creditors of the lessee have no lien.</p> <p>15. Chattel Mortgages — Liens—Priority.—A mortgage executed by a lessee subsequent to the recording of the lease, stipulating that rent shall be a lien on the property of the lessee on the premises, gives a lien superior to the lien retained in the lease as to all personal property, which was on the premises when the mortgage was given, and was not thereon at the. date of the lease.</p>

<p>1. Master and Servant — Safe Places and Appliances — Care Required. — All that the master is required to do is to furnish reasonably safe places and appliances and this degree of care does not demand that he shbuld furnish the very latest and best improvements, and it will be sufficient if these furnished are in general use and generally regarded as reasonably safe.</p> <p>2. Master and Servant — Safe Appliances — Electrical Machinery. The rule that a master need not furnish the latest and most improved appliances, if those used are reasonably safe, applies to electrical machinery, and the fact that electricity is a dangerous agency does not alter the rule.</p> <p>3. Master and Servant' — Contributory Negligence — Electrical Machinery.- — Where an experienced electrician, in sole charge of an electric light plant, knows that the only safe •way to turn off arc lights is to draw out two plugs in the switchboard, one at a time, and that if be drew out two plugs at once it would be safe if lie kept bis band off the uninsulated part, bis act in taking both plugs out at once, and permitting his fingers to come in contact with the uninsulated part, whereby be was killed, is negligence barring recovery.</p>

<p>1. Statutes — Negotiable Instrument Law — Construction.—Where there is doubt about the meaning of any of the provisions of the negotiable instrument law (Ky. St. Sec. 3720b), which can be solved by a reference to the law merchant, as it was theretofore administered, it should be looked to, and the act, if practicable, given such a construction as will harmonize it with the general principles of commercial law in force before its enactment.</p> <p>2. Bills and Notes — Words of Negotiability — Necessity.—In order to make a note or a bill negotiable, the words “to order” or “to bearer,” or equivalent words, must be used in the body of the note, though the absence of these words does not affect -the validity of a note or render it nontransferable or nonassignable.</p> <p>3. Bills and Notes — ’Negotiable and Nonnegotiable Instruments’ — • Rights and Liabilities of Parties. — Negotiable instrument Law, Sec. 1 (Ky. St. Sec. 3720b), provides that an instrument to be negotiable must be payable to the order of a specified person or to bearer, etc. Section 184 provides that a negotiable promissory note is an unconditional promise in writing to pay a sum certain ‘in money to order or to bearer. Held that, if a note is not a negotiable instrument within the meaning of the act, the rights and liabilities of the parties on it are to be determined by the law as administered with reference to nonnegotiable instruments, but if it is negotiable the provisions of the act govern, and a note payable to a person, and not containing the words “to order” or “bearer,” is not negotiable.</p> <p>4. Bills and Notes — Blank Indorsement — Effect.’—The provisions in Negotiable Instrument Law, Sec. 9 (Ky. St. Sec. 3720b), that an instrument is payable to bearer where the only or last indorsement is in blank, does not mean that an indorsement in blank converts a note nonnegotiable. on its face and by its terms into a negotiable note.</p> <p>5. Statutes — Action Under Foreign Statute — Necessity of Pleading. — Where, in an action brought in this state, it is attempted to hold a person liable upon a contract made in another state, under a statute of that state, the particular statute under which it is sought to make him liable must be pleaded as any other fact.</p> <p>6. Bills and Notes — Liability of Assignor — Nonnegotiable Note. —Under Ky. St. Sec. 481, which provides that a person who signs his name on the back of a promissory note shall be treated as an assignor as to the party holding it, or unless, in writing, a different purpose is expressed, etc., where defendant indorsed a nonnegotiable note payable to him by ■ writing his name on the back, he was merely an assignor of the note and would not be liable unless and until the maker had been first prosecuted with due diligence to insolvency.</p> <p>7. Judgment — Failure to Plead Foreign Statute — Bar.—Where a petition did not state a cause of action, because it failed to plead a statute of a foreign state, a judgment for defendant on that ground is no bar to a new action under the statute properly pleaded.</p>

<p>1. Railroads — Injury by Fire — Venue of Action. — 'Civ. Code Prac. sec. 62, providing that an action for an injury io real property must be brought in the county in which the subject of the action or some part thereof is situated, regulates the venue of actions relating to' injury to land, and section 73, fixing the venue of actions against carriers, only covers other actions than those made local by section 62, so that an action against a railroad for the destruction of fences and timber by fire must be brought in the county where the land is situated.</p> <p>2. Venue — Statutes.—The purpose of Civ. Code Prac. Secs. 62-77, defining the venue of actions concerning real property and for the recovery of fines, forfeitures, etc., i-s not to regulate the jurisdiction of courts, but they simply regulate the procedure in civil actions by determining the venue of ac- . tions.</p> <p>3. Venue — Objections—Waiver—"Special Demurrer.” — Where defendant answered to the merits, though the action was brought in a county other than that in which the land injured was situated, notwithstanding Civ. Code Prac. Sec. 62, providing that an action for injury to real property must •be brought in the county where the same is situated, the objection of want of jurisdiction of the court, possessing under Ky. St. Sec. 966, general jurisdiction, was waived under Civ. Code Prac. Secs. 92, 118, defining a “special demurrer” as an objection to a pleading showing that the .court has no jurisdiction, etc., and that a failure to raise the objection is a waiver thereof.</p> <p>4. Venue — Objections—Waiver.—Where an action for the recovery of money within the jurisdiction of the court is not brought in the proper county as fixed by Civ. Code Prac. Secs. 62-77, the action may be dismissed, where the objection is properly taken; but, where defendant does not object to the venue, the matter is waived.</p>

<p>1. Appeal and Error — Record—Records in Other Cases. — The Court of Appeals .cannot consider the records in other cases which do not appear to have been filed in the case under consideration or to have been considered by the trial court.</p> <p>2. Appeal and Error — Record—Exhibits—Evidence.—The Court of Appeals will not review a question where it appears from the judgment that portions of the exhibits in evidence bearing on the question had been omitted from the record.</p>

<p>CASE 50. — ACTION BY WILLARD COX’S ADMINISTRATOR AGAINST THE LOUISVILLE & ATLANTIC RAILROAD COMPANY POR THE WRONGFUL DEATH OF PLAINTIFF’S DECEDENT —</p> <p>Appeal from Estill Circuit Court.</p> <p>Robert Riddle, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 51 — ACTION BY FRANK GOSS, PROSECUTED AFTER HIS DEATH BY ED'WARD J. REISS, HIS EXECUTOR, AGAINST THE KENTUCKY REFINING COMPANY, FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Jefferson Circuit Court. (Common Pleas Branch, Second Division).</p> <p>Th.os. R. Gordon,. Judge.</p> <p>Demurrer to petition sustained and plaintiff appeals.- —</p>

<p>CASE 52. — ACTION BY MARGIE WAGNER AND ANOTHER AGAINST JAMES HATCHER. —</p> <p>Appeal from Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Prom the judgment plaintiffs appeal. —</p>

<p>1. Master and Servant — Injury to Servant — Unsafe Place to Work. — That there were slight ruts in the floor of a warehouse made by wheels of trucks in hauling hogsheads of tobacco over it, and that the roof leaked, so that, when it rained, the floor was always wet at a certain place, did not make it an unsafe place to work to such an extent as to allow recovery for injury to an employe from slipping on the wet floor when pulling a truck which had stalled at that place.</p> <p>2. Master and Servant — Injury to Servant — Assumption of Risk —Promise to Repair Defect. — Where slight ruts existed in the floor of a warehouse made by wheels of trucks in hauling hogsheads of tobacco over it, and the roof leaked so that, when it rained, the floor was always wet at a certain place, assurance of the master that the floor and roof would be repaired gave an employe injured thereafter ■by slipping on the floor during a rain while •pulling a truck stalled at the ruts no right of recovery; the place not having been intrinsically dangerous to work, danger to employes from such conditions not being anticipated when the request for and promise of repairs were made, the employe not having continued at his work because of such assurance, and the assurance that the defects would be repaired when there was nothing else to do having been given two weeks before the accident, and the employes having had idle days after the assurance and before the accident.</p>

<p>CASE 54. — ACTION BY THE MECHANICS’ & FARMERS’ SAYINGS BANK AGAINST F. W. KATTERJOHN. —</p> <p>Appeal from McCracken Circuit Court.</p> <p>W.. M. Reed, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>CASE 55. — CONSOLIDATED ACTIONS BY THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES AGAINST J. G. JOHNSON, AND AGAINST JOHN G. WINN AS EXECUTOR OF C. W. HOWE, DECEASED. —</p> <p>Appeals from Montgomery Circuit Court.</p> <p>Allie W. Young, Circuit Judge.</p> <p>Judgment for plaintiff in both actions, defendants - appeal. —</p>

<p>1. Elections — Violation of Election Laws — Offenses by Officers —Statutes—“Election Officer.” — Under Ky. St. Sec. 1442, defining .an “officer of election” to mean a judge, clerk, sheriff, or person acting as sheriff and a member of the board for canvassing returns, and section 1481, providing for inspectors at elections, and that the county executive committee of each party designate a suitable person to be present at, witness, and inspect the counting of the vote in each precinct, who shall be admitted to the voting place, to which no other person, except the election officers, shall be admitted, when read in connection with section 1476, making it a felony for an •election officer to mutilate or place distinguishing marks on any ballot, an inspector is not an “election officer” within the meaning of that term used in section 1476.</p> <p>2. Elections — 'Violation of Election Laws — Offense by Officer. — • Ky. St. Sec. 1476, making it a felony for any “person intrusted with the custody of any ballot” to mutilate or place any distinguishing mark on it, when considered in connection with section 1591, providing that this chapter be liberally eonstruéd so as to prevent the evasion of its prohibitions and penalties by shift or device, and section 459, that there shall be no distinction in the construction of statutes between criminal or civil and penal enactments, but all statutes should •be construed with a view to carrying out the intention of the Legislature, includes within the terms “person intrusted with the custody and control of any ballot” the inspector appointed to witness the count of the ballots and see that it is properly made, to do- which he must be present in -the room with the election officers and inspect the ballots,</p> <p>3. Elections — Violation of Election Laws — Persons Liable — “Person Having Custody or Control.” — -A -third person permitted by the officers of election to inspect a ballot, or who by force took a ballot within his -control, is a “person having custody or control” of a ballot, within the meaning of Ky. St. Sec. 1476, .making it a felony for any person intrusted with the custody or control of a ballot to mutilate or place distinguishing marks thereon.</p> <p>4. Elections — Ballots—'Mutilation—Statutes.—Stamping ballots voted for the straight Democratic ticket so that they would •be counted for the Republican candidate for circuit judge constituted a violation of Ky. St. Sec. 1476, making it a crime for any person intrusted with the custody of ballots to mutilate o-r deface or place distinguishing marks on a ballot either for the -purpose of identifying or vitiating it.</p> <p>5. Elections — Violation of Election Laws — Criminal Prosecution —Indictment and Information. — Where an indictment against an election inspector for violation of Ky. St. 'Sec. 1476, making it a felony for any person intrusted with the -custody of a ballot to mutilate o.r place distinguishing 'marks -on it, complied with Cr. Code Prac. Sec. 122, requiring that it contain a statement of the acts constituting the offense in ordinary and concise language so- as to enable a person of common understanding to know what is intended and with such degree of certainty as .to -enable -the court to pronounce judgment on conviction, the statement therein that defendant was -an election officer, being a mere conclusion of law and not necessary, held not to render the indictment faulty.</p>

<p>1. Appeal and Error — Reversal—Subsequent Proceedings — Suit in Equity and at Law. —Where a judgment at law is reversed on appeal, the trial court may award a new trial and permit the introduction of additional evidence, but, on the reversal of a decree in equity completely determining the rights of the parties, the court is not authorized to grant a new trial, but should render judgment in accordance with the decision of the Court of Appeals.</p> <p>2. Appeal and Error — Reversal—Judgment—Validity.—Where, after reversal of a decree in equity, the court erroneously granted a new trial and permitted the introduction of new evidence, and entered a judgment not in conformity with the opinion of the Court of Appeals, such judgment was erroneous and not void, and was therefore subject to vacation only on appeal.</p> <p>3. Mandamus — Rendition of Judgment. — While mandamus lies to compel a trial court to act in a matter before it and decide the case according to its judgment, the writ does not lie to compel the court to- act in any particular manner.</p> <p>4. Judgment — Rendition— Defects — “Misprision”—Civ. Code Prac. Sec. 517, defines “misprision” of a clerk to consist in the rendition of judgment before the action stands for trial, or to render judgment against an infant, excepting married women or persons of unsound mind, until a defense or report is filed .pursuant to section 36, subsec. 3. Held not to incJude the rendition of a judgment not in compliance with a prior order of the Court of Appeals in an equity suit after a retrial erroneously granted by the court; such error being judicial, and not ministerial.</p>

<p>1. Highways — Taxes—Levy—Sufficiency.—A tax levy for the county turnpike tax, and a tax levy for road and bridge purposes, sufficiently specify the purposes for which the taxes are levied.</p> <p>2. Highways — Taxes—'Statutes.—Ky. St. Sec. 430V, authorizing an ad valorem tax for road and bridge purposes and a per capita tax therefor, is not repealed by section 4307a, enacted in 1906, authorizing counties to vote on road taxes, etc., not to be in force until adopted by vote of the people, and never put in force by- such vote.</p> <p>3. Taxation — Constitutional Limitation. — Under Const. Sec. 157, providing that the tax rate of counties shall not exceed 50 cents on $100, unless necessary to enable the county to. pay the interest ón, and provide a sinking fund for the extinction of a prior indebtedness, three levies of ad valorem taxes, each at 25 cents on the $100 of property subject to taxation in the county exceeds the constitutional limitation though one of the levies is made under a special statute enacted prior to the adoption of the Constitution, there being nothing to show that it was levied to pay any debt created prior to the adoption of the Constitution.</p> <p>4. Taxation — Constitutional Limitation. — -Where a tax levy imposed a capitation tax of $1.50 on each adult -male person for county purposes, the limitation fixed by Const. Sec. 180, empowering the Legislature to- authorize counties to levy a poll tax not exceeding $1.50 per head was reached, and an additional poll tax for road and bridge purposes was void.</p> <p>5. Taxation — Constitutional Limitation. — Const. Sec. 180, authorizing a .poll tax not exceeding $1.50 per head, when construed in connection with section 157, limiting the .tax rate except for school purposes, and section 183, empowering the Legislature to provide for an efficient system of common schools, r-efers to poll taxes imposed for purposes other than-the maintenance of common schools and a maximum poll tax for general county purposes does not prevent a similar tax for school purposes, and, under the Constitution, the Legislature may levy whatever taxes ad valorem or capitation necessary to. provide an efficient system of common schools'.</p> <p>C. Taxation — Constitutional Limitation. — The school law (Ky. St. Sec. 4426-a, subsec. 9), requiring the county board of education to -estimate and lay before the fiscal court of the county the educational needs of the county, and that the county court shall levy .a tax for school purposes not to exceed a specified sum on the assessed valuation, and a capitation tax not exceeding $1, does not change the principle that •poll taxes may be levied for school purposes in addition to those levied for general county purposes, but .the fiscal court simply levies taxes which are required by the board of education.</p>

<p>CASE 09. — SUIT BY LENOX LAND COMPANY AND BY THE NEW LOUISVILLE JOCKEY CLUB AGAINST THE CITY OF OAKDALE. —</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for defendant, plaintiffs appeal.—</p>

<p>CASE 60. — DIVORCE PROCEEDINGS BY LUCRETIA SHARP AGAINST J. N. SHARP —</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Judge.</p> <p>From a judgment on rule to show cause, complainant appeals. —</p>

<p>1. Inchetnenl ana Information — Allegations.—Under Cr. Cole Prac. Sec. 125, providing that an error in defendant’s name shall not vitiate the indictment, that the indictment, after accusing defendant Combast of the offense of illegally selling spirituous liquors, continued that “said Burge” did unlawfully sell, etc., was not ground for demurrer or dismissal, since the error in accused’s name may be corrected any time before execution under such section.</p> <p>2. Intoxicating Liquors — Local Option Law — Indictment—'Negativing Exceptions — Necessity.—An indictment for violating the local option law need not allege that the offense charged did not come within the exceptions of the statute, those being matters of defense, so that, in a prosecution for selling intoxicants hy wholesale to one not having a retail license, defective allegations of an indictment for a sale to one not having license to retail liquor were surplusage, so that their insufficiency did not malre the indictment bad on demurrer.</p> <p>3. Intoxicating Liquors — pffenses—¡Selling Without License— ■ Selling Under Federal Licensp. — A federal license, being . merely a form of taxation, does not authorize the holder to sell liquor without a license required by state laws; the statute authorizing the issuance of federal licenses so providing.</p> <p>4. Intoxicating Liquors — Local Option Law — Offences—'Prosecutions — Burden of Proof. — In a prosecution for selling liquor by wholesale to one not having a retail license, in violation of the local option law, the burden was on accused to show that the sale was made to a licensed retail dealer.</p>

<p>CASE 62. — PENAL ACTION BY THE COMMONWEALTH AGAINST JOHN STRATMAN FOR VIOLATING SUNDAY LAW. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Thos. R. Cordon, Judge.</p> <p>Defendant convicted and appeals. —</p>

<p>CASE 63. — SUIT BY PRANK WOODALL AGAINST THE SOUTH COVINGTON & CINCINNATI STREET RAILWAY COMPANY FOR A MANDATORY INJUNCTION REQUIRING IT TO REMOVE ITS TRACKS, POLES, &c FROM A CERTAIN STREET —</p> <p>Appeal from Kenton Oircnit Conrt (Criminal Common Law and Equity Division).</p> <p>M. L. ITarbeson, Judge.</p> <p>Prom a judgment sustaining a demurrer to the petition, plaintiff appeals. —</p>

<p>1. Navigable^Waters — Obstruction in Stream. — Where defendant constructed a pipe line across a navigable creek, it owed a duty to all having a right to use the stream for floatage not to locate the pipe so as to obstruct the creek.</p> <p>2. Navigable Waters — Obstruction of Stream — Floatage—Delay —Loss—Act of God. — Plaintiffs were engaged in floating fiross-ti-es down a navigable creek, at the mouth of which they expected to- raft them and float them down a river to market. Defendant had constructed a pipe line over the creek so as to obstruct the ties, resulting in such delay that the rafts were caught by a sudden flood in the river before they could reach market, and were lost. Held, that the delay caused by the obstruction in the creek" was the proximate cause of the loss, for which defendant was liable.</p> <p>9 Trial — Instructions—Question of Law. — An instruction that, unless the jury believed from the evidence that it was defendant’s duty to keep its pipe line in such a condition that it was not an obstruction to the creek in question to float railroad ties out of it, they should find for defendant, was properly refused, as presenting a question of law.</p>

<p>CASE 65— SUIT BY NEW ERA LAND COMPANY AGAINST G. W. DANIEL. —</p> <p>R. L. .Stout, Judge.</p> <p>Appeal from Franklin Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 66. — ACTION BY SUSIE T. 'COOPER AN-D OTHERS AGAINST THE FIDELITY & CASUALTY COMPANY OF NEW YORK, —</p> <p>Appeal from Knox Circuit Court.</p> <p>H. C. Faulkner, Judge.</p> <p>Judgment for plaintiffs, defendant appeals.—</p>

<p>1. Bills and Notes — Bona Fide Purchaser for Value — “Holdev in Due Course” — “Value” — “Holder for Value.” — Negotiable Instrument Act, section 52, Ky. St. 3720b, defines a “holder in due course” as one who has taken the instrument complete and regular upon its face, before it is overdue, and without notice of previous dishonor, in good faith- and for value, and without notice of any infirmity or defect in the title of the person negotiating it. Sections 25, 26, and 27 define “value” as any consideration sufficient to support a simple contract, including an antecedent or preexisting debt, and declares that, where value has been given for the instrument, the holder is deemed a “holder for value” in respect to all parties who became such before that time, or where he has a lien on the instrument, arising either from contract or implication of law, he is a holder for value to the extent of his lien. Held that, where a bank took a note as collateral security for a note it then held, it was a holder for value, as also it was if it took the note in exchange for the note of the indorser.</p> <p>2. Appeal and Error — Rulings on Evidence — Burden of Proof— Prejudice. — Defendant in an action on a note was not prejudiced by an alleged erroneous ruling as to the burden of proof on the issue of holder for value, where plaintiff was entitled to a peremptory instruction under any view of the evidence on such issue.</p> <p>3. Bills and Notes — Burden of F'roof. — Where plaintiff seeks a recovery on a note on the ground that he is a bona fide purchaser for value without notice, he must allege and prove (if denied) the facts establishing such right, nor is such rule changed by the Negotiable Instrument Act, section 59, Ky. St. section 3720b, providing that every holder is deemed prima facie a holder in due course, but, when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.</p> <p>4. Bills and Notes — Negotiable Instrument Act. — The negotiable instrument act is, in the main, a mere codification of the common-law rules, constituting the law merchant, so that, where its language is consistent with 'the rule previously recognized, it should be construed as simply declaratory of the prior law.</p>

<p>1. Parent and Child — Injuries to Child — Employment—Damages. — Where a railroad conductor in charge of a train permitted plaintiff’s son, with knowledge that he was under age, to work as a brakeman in a service particularly hazardous, the conductor’s knowledge that the son was rendering such service was the knowledge of the railroad company, and hence, while the son assumed the risk of the work in which he voluntarily engaged, his father, not having consented thereto, was entitled to recover from the railroad for care, attention, and loss of service because of the son’s injury.</p> <p>2. Parent and Child — Injuries to Child — Employment by Railroad Conductor. — Where a railroad conductor permitted plaintiff’s son to work on a train as a brakeman, without plaintiff’s consent and the conductor knew that the son was under age, it was not material to the railroad company’s liability to plaintiff for care and loss of service in case of the son’s injury, that defendant had furnished the conductor with a full-crew, nor was plaintiff required to show that he objected to his son rendering the service; it being sufficient that it was done without plaintiff’s consent and with knowledge on the part of the conductor that he was a minor.</p>

<p>CASE 69. — ACTION BY THE SADIEVILLE MILLING COMPANY AGAINST THE 'CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY. —</p> <p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Highways — Repair—Contracts—Liability. — Where plaintiff performed work and furnished material in the repair of a county road merely at the request of a county judge and a justice of the peace, who had nothing to do with the work and had no authority from the. fiscal court whose duty it is to manage such affairs, he cannot recover from the county therefor, although the county did not object to the work and reaped the benefit.</p> <p>2. Highways — Contracts—Construction and Operation. — Where a party without authority performed work and furnished material in repair of a county road, the county could not refuse to pay him therefor, and also refuse to 'allow him to remove the material used, provided this could be done without leaving the road in a worse cordition than it was before, and, where it did so, it should pay him the reasonable market value of the material at the place it was situated when they refused to allow him to remove it.</p>

<p>1. Appeal and Error — -Finding Based on Doubtful Evidence— Review. — Where the evidence is such as to leave the mind in doubt, a finding of the chancellor based thereon will not be disturbed on appeal.</p> <p>2. Appeal and Error — Record—Presumptions.—Where the records contained nothing showing that a town had acquired title to certain land between tbe town and a river, and ail of the plats filed showed that there was vacant land between the town and the river, it cannot be presumed- on appeal ■that the town extended to the river.</p> <p>3. Adverse Possession — Vacant Land — Effect of Constructive Possessions of Owner. — -Where a grantor conveyed vacant land, and the land was not in the possession of any one else, the deed had the -effect -of giving possession to the grantee, and hence to exclude the -possibility of the acquirement of title by adverse possession by one who never possessed actual and adversary possession to the exclusion of the grantee.</p> <p>4. Wharves — Public Easement — Acquired by Long-Continued Use. — Where a town used a -strip of. land for wharf purposes, 'which was long continued and uninterrupted, it acquired an easement in the land for that purpose.</p> <p>5. Vendor and Purchaser — Land Subject to Public Easement— Knowledge of Vendee — Presumptions.—Where at the time a purchaser acquired land, she had notice of a public easement in the land, she was charged with knowledge of the inconvenience resulting from it.</p> <p>6. Covenants — Public Easement — Effect—Warranty.—Tbe existence of a public easement does not constitute a breach of the covenant of general warranty.</p> <p>7. .Interest — Power to iContract — Interest on Interest. — It is competent for parties to agree that interest payable at the end of a term shall also bear interest, and if the interest is made payable at a certain time, and is not then paid, it becomes a debt bearing interest.</p>

<p>1. Alteration of Instruments — Negotiable Instruments Law— Effect. — -Negotiable Instruments L-aw (Laws 1904,. c. 102) sections 124, 125, declaring the effect of material alterations, and defining what shall constitute such alterations, is merely declaratory of the law merchant.</p> <p>2. Alteration of Instruments — Filling Blanks — Place of Payment of Note. — Where the 'maker of a note signed .it, leaving a blank after the promise to pay between the words “at” and “value received,” the payee or any subsequent holder was authorized to fill the blank by writing in the name of a bank or other place of payment, either within or without the state and his act in so doing did not constitute an alteration of the note.</p> <p>S. Alterations of Instruments — Note—-Laches.—The maker of a note may by his own laches make it possible for another to ■so alter it as to wholly change its terms and meaning, and yet compel him to pay it to an innocent holder.</p> <p>4. Bills and Notes — Transfer—Payment to Original Payee.— Where plaintiff at the time defendant’s note ’.vas transferred to it had notice of defendant’s arrangement to pay the note to the payee by installments, and it was' agreed that payments should be-collected by the payee and remitted to plaintiff, payment of the note by defendant to the payee discharged his obligation to plaintiff.</p>

<p>1. Sales — Action for Breach of Warranty — Evidence—Admissibility. — 'Where, in an action for breach of warranty of a horse sold, by defendant, defendant denied the warranty, and the evidence' on the issue was conflicting, evidence that plaintiff, since buying the horse, had bought an automobile, ■and relating to his use of horses since the purchase of 'che ■automobile, was admissible as affecting his interest and good faith.</p> <p>2. iSales — Action for Breach of Warranty — Evidence—Admissibility. — Where, in an action by a buyer of a horse for ■breach of warranty, the buyer claimed that the horse was worthless, evidence ‘that he could have sold the horse at a substantial price was admissible to show that it was not worthless and as a circumstance bearing on its value.</p> <p>3. Depositions — 'Notice—Sufficiency.—A notice to take a deposition, which gives the name of the court, the title of the pending action, the name of the witness, and which specifies that he is -a witness for plaintiff in th-e cause, and which is addressed to defendant, is sufficient, under Civ. Code Prac. section 566, defining the requisites of notices to take depositions.</p> <p>4. Appeal and Error — Harmless Error — Erroneous Exclusion of Depositions. — -Where the successful party had the greater number of witnesses, the exclusion of a deposition taken by the adverse party containing testimony which, ’ considered with the other testimony of the adverse party, might have caused the jury to return -a verdict for the adverse party, was prejudicial.</p> <p>5. Appeal and Error — -Exclusion of Depositions — -Review.—Whore the court deemed the notice to take a deposition insufficient when passing on -exceptions to the notice before trial, it was not necessary to offer the -deposition in .-evidence and require the court a second time to pass on the question to have the error reviewable on appeal.</p> <p>6. -Sales — Action for Breach of W-arranty — Evidence—Instructions. — -Where, in an- action for breach of warranty in the sale of a horse, the -sole issue was whether the warranty was made, and there was no claim that the seller did not know the condition of the horse or that he made representations in regard to its condition which he did not know to be untrue, an instruction that it was not necessary for the buyer to show that when the seller made the warranty that he knew it to be untrue, for though he believed the warranty to be true, still if it was false the verdict should be for the buyer, was erroneous because of the absence of evidence on which to base it.</p> <p>7. Sales — Action for Breach of Warranty — Issues, F'roof, and Variance. — A petition in an action for breach of warranty •in the sale -of a horse, which alleges that the seller warranted the horse and that its right eye was sound, is supported by evidence that the seller guaranteed that the eye of the horse would get well and sound.</p>

<p>CASE 74. — ACTION BY VIRGINIA AUSTIN AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY.—</p> <p>Appeal from Shelby Circuit Court.</p> <p>Charles Marshall, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 75. — ACTION BY JOHN WATSON AGAINST THE KENTUCKY &. INDIANA BRIDGE & RAILROAD COMPANY AND OTHERS. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Emmet Field, Judge.</p> <p>From the judgment plaintiff appeals. —</p>

<p>CASE 76. — ACTION BY GEORGE REULING, JR., AND ANOTHER AGAINST MAGGIE REULING EXECUTRIX OF GEORGE REULING, SR., AND OTHERS. —</p> <p>AppeiJ from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment defendants appeal. —</p>

<p>CASE 77. — ACTION BY JOHN G. WINN AGAINST THE EQUITABLE LIFE ASSURANCE ¡SOCIETY OF THE UNITED STATES. —</p> <p>Appeal from Montgomery Circuit Court.</p> <p>Allie AY. Young, Judge.</p> <p>Judgment for plaintiff, defendant appeals. — Affirmed.</p>

<p>CASE 78. — ACTION BY NAT MATTHIS AGAINST VIRGIL F. O’BRIEN. —</p> <p>Appeal from Hardin Circuit Court.</p> <p>"W. S. Chele, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>1. . Appeal and Error — Discretion of Trial Court — Continuance— Denial. — In an action against a railroad company for damages for failure to rebuild a right of way fence as agreed, the affidavits for a continuance to procure as a witness defendant’s agent, with whom the agreement was claimed to have been made, stated in detail the facts to which it was claimed the agent would testify, which facts contradicted plaintiff’s testimony as sharply as the agent’s oral testimony could have done. Plaintiff’s claim as to the contract with such agent was known to defendant before trial, and. there was no claim that defendant was surprised by plaintiff’s testimony on that question. Held, that there was no abuse of discretion in denying a continuance to procure such witness.</p> <p>2. Appeal and Error — ’Discretion of Trial'Court — Continuance.— Whether a continuance should be granted is largely in the trial court’s discretion which will not be disturbed unless abused.</p> <p>3. Continuance — Grounds—Absence of Witness. — It is not sufficient to require the granting of a continuance to procure an absent witness for counsel merely to state that the personal attendance of such'witness is necessary; and, if the facts shown make it reasonably certain that a trial without the absent witness would less likely result in injustice than the granting of a continuance, the continuance should be refused.</p> <p>4. Damages — Breach of Contract — Admission of Evidence— Damage Sustained. — In an action against a railroad company for breach o.f its contract to rebuild a right of way fence within a week, which its employes destroyed with plaintiff’s consent, plaintiff could prove that a crop of grass for that year was injured by cattle because of defendant’s failure to rebuild, as well as any other injury to the meadow or soil.</p> <p>5. Damages — Contracts—Admission of Evidence — Damages.— In an action against a railroad company for damages for the breach of its contract to rebuild a right of way fence within a week after it destroyed it, whereby plaintiff’s meadow was destroyed by cattle, if the only way to restore the meadow was to resow it, evidence as to the reasonable cost of plow ing and resowing it was admissible.</p> <p>6. Damages — Mitigation—Duty.—If defendant railroad company promised to rebuild its right of way fence along p.aintiff’s land within a week after it was destroyed, and, when plaintiff complained of its failure to do so at the end iOf that time, assured him that it would be done soon, and renewed such assurances, and the fence was finally rebuilt at the end of five weeks, plaintiff was not bound at the end of the week to rebuild the fence himself in order to minimize the damage from trespassing cattle.</p> <p>7. Estoppel — Estoppel by Conduct. — 'Where defendant railroad company, after purchasing its right of way from its predeoes sor, twice rebuilt a right of way fence adjacent to plaintiff’s land at its own cost 'and maintained it, it is estopped from claiming that it was not bound to restore ■the fence after it was destroyed by its employes, and therefore not liable for failure to do so, irrespective of any duty under the statute or under its predecessor’s contract with plaintiff to maintain the fence.</p> <p>8. Estoppel — Estoppel by Contract. — A railroad company, by asking an adjacent owner’s permission to burn a right of way fence, and agreeing to restore it within a week, recognized the owner’s right to have it restored and maintained by it without cost, and hence was estopped from claiming that it was not bound under its predecessor’s contract with the owner, to maintain the fence..</p> <p>9. Railroads — Contracts—Actions—Sufficiency of Evidence. — In an action against a railroad company for damages for breach of contract to rebuild a right of way fence destroyed by it with plaintiff's consent, causing plaintiff’s meadow to be injured by cattle, evidence held to support a verdict for plaintiff.</p>

<p>■ CASE' 80. — PROSECUTION AGAINST THE INTERNATIONAL HARVESTER COMPANY OF AMERICA FOR VIOLATING THE ANTI-TRUST LAW. —</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, judge.</p> <p>Defendant convicted and appeals. —</p>

<p>1. Lost Instruments- — 'Suit on Lost Note- — Petition—-Allegations .and Proof. — Under Civ. Co’de Prac. section 7, which provides that an action may be brought upon a negotiable instrument, -or upon an indorsement thereof, which has been lost or destroyed without fraud on the part of plaintiff or of those under whom he claims, bu-t not upan an instrument transferable by delivery without 'a previous tender by plaintiff to defendant of an indemnifying bond, and that judgment shall not be given until -the bond is given and approved by the court, it is not sufficient for the complaint to .allege that the note is lost or destroyed but the party suing must both allege and prove lack of fraud -on his part, or of those under whom he claims.</p> <p>2. Lost Instruments — Suit on Lost Note — Indemnity—Judgment —“Action on Instrument Transferable by Delivery.” — An action -by the indorsee of a lost note against the payee is an “action on an instrument transferable by delivery” only, within Civ. Code Prac. section 7, providing that in an action on a lost instrument, transferable by delivery only, no judgment shall be given defendant until an indemnity bond has been given him.</p> <p>S. Lost Instruments — 'Suit on Lost Note — 'Conclusions on Appeal — Indorser.—Under Negotiable Instruments Act, section 63, which provides that a person signing -otherwise than as maker, drawer, -or acceptor, is deemed an indorser unless he clearly indicates his intention to be bound in some other capacity, where a petition in .a suit on a lost note did not show that defendant indicated, in writing, his intention to be bound in any other capacity, the court on appeal will conclude that he was bound on the note as an indorser.</p> <p>4. Lost Instruments — Suit on Lost Note — ‘Presentment—Notice ■ of- Dishonor — Presumptions on Appeal. — Where in a suit against the indorser of a lost note, no facts were alleged in the petition showing that defendant fell within any of the exceptions to the rule requiring presentment and notice of dishonor, the court on appeal will conclude that he was entitled to presentment and notice of dishonor.</p> <p>5. Bills and Notes — Demand—Notice of Dishonor — Necessity of Showing. — Though as to the obligor or promisor in ordinary contracts, or the maker of a promissory note or acceptor of a bill of exchange, time seldom becomes a material question in considering their liability, such is not the rule in regard to the drawer of a bill or the indorser of a note. As to them it becomes material to show, not only the demand and notice, but the precise day when made and given, and the allegation and the evidence must show the demand and notice to have been given upon such a day as will charge the defendant.</p> <p>6 Bills and Notes — Demand on Notice — Petition—Sufficiency.— 'In a suit against the indorser of a note, an allegation in the petition that presentment was duly made, or thát notice of dishonor was duly given, was insufficient to show that the note was presented for payment at maturity and that notice of dishonor was given to defendant.</p>

<p>1. Judgment — Sufficiency of Summons to Support — Variance in Name. — A summons against “Miss Sue Dixon” is sufficient to support a judgment .against “Sue R. Dixon”; it having been served, and there being no showing that the one was not the same person as the other, or that any prejudice resulted from the variance.</p> <p>2. Judgment — Collateral Attack — Disqualification of Judge.— One desiring to attack in a suit for injunction an order assessing her property on the ground that it was made' and entered by a judge interested, and so disqualified, should have shown by averment and proof the fact of his interest.</p> <p>3. Appeal and Error — Presumption.—In the absence of the records of the county court.in assessment proceedings, it will be assumed on appeal, in a suit to enjoin collection, that its reduction of an assessment made by it was regularly and properly made.</p> <p>4. Appeal -and Error — Presumption..—It will be assumed, on appeal in a suit to enjoin an assessment made by the county court, that had all its record been brought up it would uphold the assessment against “.Susie” Dixon as one against “Miss Sue” Dixon, in which name the summons issued.</p>

<p>CASE 83. — ACTION BY R. E. LYNCH AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.—</p> <p>Appeal from Warren Circuit Court.</p> <p>McKenzie Moss, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>C-ASE 84. — ACTION BY T. J. ASHER AGAINST CALVIN PACE.</p> <p>Appeal from Harlan Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Exceptions, Bill of — ’Failure to File in Time. — Where a bill of exceptions was filed without objection, and no motion made to strike it out, the error, if any, in failing to file it in time was waived.</p> <p>2. Carriers — Actions for Injuries to Passengers — Assault—Instructions — -“Might.”—In an action for assault on a passenger by fellow passengers, in an instruction stating the duty of the conductor to protect the party assaulted if he “anticipated that such assault might be made,” it was not ■error to use the word “might” instead of “would,” since the law requires that a carrier use the highest degree of diligence to protect passengers from assault which may be reasonably anticipated, and the word “might” is used in place of “may” when referring to past time or a past event.</p> <p>3. Damages — ’Personal Injuries — 'Excessive Damages. — Where plaintiff, injured by being assaulted by fellow passengers while on defendant’s car, was still able to be up and around, although not able to do her work as well as before, and suffered from hemorrhages of her sexual organs, when it was not her regular time to do so, and there was evidence ■that these organs were out of place, and there was no cure for her condition, a verdict for $7,125 was excessive.</p> <p>PETITION ON REHEARING — June 3, 1910.</p> <p>1. Exceptions, Bill of — Settlement—Time—Objections—Waiver. —After the expiration of the 60 .days within which appellant was entitled to file a .bill of exceptions, the appellee is not required to be in court nor to object to the subsequent filing of a bill; and^ hence his failure to object to such filing is not a waiver of his right to object thereto.</p> <p>2. Exceptions, Bill of — Filing—Time—Permitting Filing After Time. — Where a bill of .exceptions is not filed within the time allowed and no extension of the time is granted, the right to file is lost, and an order permitting the bill to be filed ■after the expiration of 60 days is void.</p> <p>3. Time — 'Computation.—Ky. .St. section 1016, provides that, . within 60 days after judgment becomes final the excepting party, unless further -time be given him, shall prepare his bill of exceptions. 'Civ. Code Prac. section 342, declares that an application for a new trial, except for cases mentioned in ■section 340, etc., shall be made within three days after the verdict or decision is rendered, unless unavoidably prevented. Held, that since the computation is to be made from the date ’of the act done, viz., the rendition of final judgment, that day must be included in counting the time within which a bill of exceptions may be filed.</p>

<p>1. Carriers — Carriage of Passengers — Performance of Duties. — A carrier maintaining water-closets on its trains and at a station performs its duty in 'that respect at that station, and it need not anticipate that a passenger will jump from a train at dark and wander about the premises at the station to a place not ordinarily used by passengers for the purpose- of responding to a call of nature.</p> <p>2. Carriers — Regulations of Trains — Reasonableness.—A rule prohibiting -the opening -of water-closets on trains at stations is reasonable.</p> <p>3 Carriers — Passengers—Depot Premises. — -Where there is a customary use by passengers of depot premises in going to and from 'trains, the carrier must protect passengers from pitfalls near to the pathways by lights or barriers.</p> <p>4. Carriers- — Passengers—Depot Premises. — A passenger while waiting for the departure of the train at night found it necessary to respond to a call of nature and found the closet on the train closed. The conductor refused to- open it, and informed the passenger that the train left in six minutes, and on the statement of the passenger that he did not have time to hunt up a closet, 'and that he did not want to m-iss the train, the conductor told him to jump from the train anywhere in 'the dark. The passenger alighted and went about 25 feet from the train and fell into an unguarded culvert. The carrier maintained u closet at the station. It was not necessary or customary for passengers to use the depot grounds where the culvert was located. Held, that the carrier was not liable for the injuries, since the direction of the conductor was not an implied assurance that the passenger would find the premises safe.</p>

<p>CASE 87 — PROCEEDING BY T. A. PEDLEY, RECEIVER OF THE OWENSBORO .SAVINGS BANK & TRUST COMPANY FOR A RULE AGAINST J. M. VAUGHN TO SHOW CAUSE WHY HE SHOULD NOT COMPLY WITH HIS PURCHASE OF PROPERTY, SOLD BY THE RECEIVER. —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Rule awarded and defendant appeals. —</p>

<p>CASE 88. — ACTION BY OSCAR .SHAKE' BY NEXT FRIEND AGAINST THE KENTUCKY WAGON MANUFACTURING COMPANY FOR DAMAGES FOR PERSONAL INJURIES. —</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Wm. PI. Field, Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>CASE 89. — ACTION BY WILLIAM FUSON AGAINST BOND STEWART AND ANOTHER TO RECOVER A PENALTY FOR HIS REFUSAL TO OBEY A WRIT OF HABEAS CORPUS —</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Prom a judgment of dismissal plaintiff appeals.-—</p>

<p>CASE 90. — ACTION BY T. D. CHENAULT, JR., AGAINST' THE HARTFORD FIR® INSURANCE COMPANY TO RECOVER ON A FIRE INSURANCE POLICY. —</p> <p>Appeal from. Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals. —</p>

<p>1. Telegraphs 'and Telephones' — Delivery of Messages by Telephone — Obligations.-—A telegraph company having a telephone in its office that will connect with the addressee of an important message, received at night, must exercise reasonable diligence to deliver the message over the telephone, or notify the addressee that it has a telegram at its office, and the fact that it has established reasonable hours of service by messengers does not relieve it from the duty of using the telephone when its messengers are absent.</p> <p>2. Telegraphs and Telephones — Delivery of Messages by Telephone — Obligations.—A telegraph company owes the duty to the public of exercising reasonable diligence in transmitting and delivering in due time messages received, and tho-ugh the ordinary method of delivering messages is by messengers, and though the addressee is entitled to a delivery of the telegram received, the company must use the telephone, where its business and the settled rules of law do not require it to be prepared to promptly deliver the written message by hand.</p> <p>3. Telegraphs -and Telephones — Delay in Delivery of .Messages —Negligence—Question for Jury. — Whether a telegraph company having a telephone in its office connecting with the addressee of an important message, received at night after the departure of its messengers, exercised reasonable care in 'attempting to deliver the message through t-he telephone, or in delivering it -early the next morning, held, under the evidence, for the jury.</p> <p>4 Telegraphs and Telephones — Delay in Delivery of Messages— Negligence. — Where the night operator at a telegraph office received an important message which he did not deliver, notwithstanding reasonable efforts so to do, he must notify the day operator on his arrival of the message, and the day operator must then exercise reasonable diligence to promptly deliver it.</p> <p>5 Telegraphs and Telephones — Delay in Delivery of Message— Evidence — Instructions.—Where, in an action for delay in the delivery of a message received at night, the evidence showed that it was the custom of the company to deliver messages received at night by using the telephone where the addressee had a telephone in his residence and the message could have been delivered to him, the refusal to charge that the company was not required to have a messenger at night was not erroneous because the question was not material to the issue.</p> <p>6. Telegraphs and Telephones — Delay in Delivery of Message— Damages. — A verdict for $955.50 awarded to a wife for mental anguish suffered by the delay in the delivery of a message announcing the fatal illness of her husband, and thereby depriving her of the opportunity of reaching him until after he had lapsed into unconsciousness, was not excessive.</p>

<p>CASE 92. — ELECTION CONTEST BY J. A. THOMPSON AGAINST WILLIAM YOWELL. —</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment for defendant, and contestant appeals. — -</p>

<p>Sales — Contract—Breach—Measure^ of Damages. — Where title to certain ties sold had not passed to the buyer, because of required inspection, when it refused to perform, the seller could not recover the price, but could only recover the difference between the contract price and what the ties could be sold for in the market, by the exercise of reasonable care, within a reasonable time after notice of the buyer’s refusal.</p>

<p>CASE 94. — SUIT BT MARY P. BOWMAN AND OTHERS AGAINST MARY J. CALLAHAN AND OTHERS TO SET ASIDE A DEED. —</p> <p>Appeal from. Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From a judgment of dismissal plaintiffs appeal. — •</p>

<p>1. Principal and Surety — Existence of Relation — Evidence.—Evidence held to justify a finding that one was a principal in a lease and rent notes, and not a surety, within Ky. St. section 2548, providing that a surety shall be discharged from liability under any judgment after the lapse of seven years without any execution issued thereon.</p> <p>2 Appeals and Error — Review—Findings—Conclusiveness.— Where, in an equity case, the proof is conflicting, " the chan-' cellor’s findings will not be disturbed, though the Court of Appeals will, in equity cases, give judgment according to the weight of the evidence.</p>

<p>CASE 96. — ACTION BY A. J. WEIKEL AND OTHERS AGAINST THE CITY OP LOUISVILLE. —</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second "Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Decree for complainant and defendant appeals.—</p>

<p>1. Libel and Slander — Words Actionable — Imputation of Crime. —The words, “You damned son o-f a bitch! I’ll learn you how to steal a buggy whip,” are not actionable per se, as they do not necessarily charge or impute. the crime of larceny, .and an averment that by their use the crime of larceny was charged, or was meant to be charged, could not give them a meaning which the words themselves did not import.</p> <p>2. Libel and Slander — Innuendo—Office of — Colloquium.—While it is the office of the innuendo to explain the words spoken and to annex to them their proper meaning, it may not introduce new matter or enlarge the meaning of the words, nor can it supply the place of a colloquium.</p> <p>3. Libel and Slander — Petition—Facts—Colloquium.—If the words complained of in. slander derive their slanderous import from extrinsic facts, the petition must aver these facts and connect them by a colloquium with the words charged.</p> <p>4. Libel and Slander — Imputation of Crime — Colloquium.— Where words charged to have been spoken are unequivocal and convey a direct charge or imputation of crime, no colloquium is necessary.</p> <p>5 Libel and 'Slander — Meaning of Words — Admission—Effect..— Where no extraneous facts were alleged with respect to words complained of which gave them a slanderous meaning, the admission that they were spoken gives them no meaning other than the words themselves convey.</p> <p>6. .Libel and Slander — Words Actionable. — The words, “The damned scoundrel was trying to steal from me, and I am the man that whipped him,” are not actionable per se, since it is not clear whether the words import a charge that the person was preparing or attempting to steal.</p> <p>7. Larceny — What Constitutes — Preparation—Attempt.—Neither the preparation nor attempt to steal constitutes larceny.</p> <p>8. Libel and Slander — What Constitutes — Attempt to Steal.— To say that a person was trying or attempting to steal does not constitute slander.</p> <p>9. Libel and Slander — Words Actionable — Imputation of Crime. —The words “The damned scoundrel was trying to steal from me, and did steal from me,” are actionable per se, since they import the crime of larceny.</p> <p>10. Libel and Slander — Answer—Burden of Proof. — Where the answer in an action fur slander denied that defendant used the words, “and did steal from me,” the burden of proof was upon plaintiff. '</p>

<p>J. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — Ky. St. section 772, requiring railroad companies to provide convenient water-closets or privies, and maintain them in decent order at their stations, is to be reasonably construed, and, before a company could be held liable for failure to do so, it must.be shown that it suffered a privy to remain in an indecent or unclean condition; and it is not enough to show that on one or two occasions it was found out of order or uncleam</p> <p>2. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations — ■“Convenient.”—If a railroad company builds and maintains a closet suitable for the wants of the traveling public, as convenient to a depot as the circumstances permit, and keeps it in decent order and repair, it has substantially complied with the requirements of such section; the word “convenient” being defined as “handy” and as “easy of access.”</p> <p>8. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — In complying with such section, if the location of public buildings and dwellings near a depot is 'such that a privy cannot be maintained nearer than where it is located, without being objectionable and offensive, not injurious to the health of citizens living there, the company would not be required to maintain it nearer to the depot.</p> <p>4. Criminal Law — Statutory Offenses. — No one should be required to violate one provision of the law to conform to the requirements of another.</p> <p>5. Railroads — Operation — Accommodations for Passengers — Water-Closets at Stations. — In determining whether a railroad company has complied with Ky. St. section 772, in providing a convenient water-.closet at a station,, not only its distance from the depot, but the means of approach thereto, must be considered.</p> <p>6. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — It was not contemplated by such section that companies should be put to the expense of establishing and maintaining a waterworks system at a depot to maintain a privy immediately adjacent thereto to accommodate the traveling public.</p> <p>7. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — Such section was not made or intended to apply to the wants of persons who use a passenger depot as a lodging-house, for section 784, Ky. St., only requires passenger depots to be kept open for the reception of passengers a limited time prior to the arrival and departure of regularly scheduled trains.</p> <p>8 Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — Nor does such section require a company to meet a condition when travel on particular days is abnormal or congested, but only that its accommodations shall be such as will meet the requirements of its ordinary and usual travel.</p> <p>9. Railroads — Operation—Accommodations for Passengers— Water-Closets at Stations. — Evidence held insufficient to go to the jury on the question whether a railroad company failed to provide a closet and maintain it at a station as required by such section.</p>

<p>1 Railroads — Injuries to Person on or Near Track — Customary Use of Track. — 'Where the ground on the sides of a railroad track in a village were constantly used hy the public as a pass way, 'an individual in common with others had the right to so use it, and, where he did so use it, he was not a trespasser, and the trainmen who knowingly suffered a truck to remain on the passway and so close to the track as to bring it in contact with moving trains were negligent, making the railroad liable for injuries to a person on the pass-way struck hy the truck moved by a passing train.</p> <p>2. Railroads — Injuries to Person on or Near Track — Trespassers. —A trespasser on a railroad right of way may not recover unless the trainmen discovered his peril in time to prevent his injury by the exercise of ordinary care, and they failed to do so.</p> <p>3. Appeal and Error — Review—Verdict—Conclusiveness.—A verdict on conflicting evidence is conclusive on appeal.</p> <p>4. Railroads — Injuries to Person on or Near Track — Action— Evidence — Admissibility.—Where, in an action against a railroad company for injuries to a person struck by a truck left so near the track that a moving train drove it against him, the issue was whether he did not, at the time of the accident, know of the presence of the truck, evidence that he and other hoys had beén about the truck before the accident and that a section foreman had repeatedly requested them to leave it, which they had not done, was admissible, not only to locate the presence of plaintiff, but to contradict his statement as a witness that he did not know' at the time of the accident of the presence of the truck.</p> <p>5. Ti-ial — Verdict—Impeachment by Jury. — The affidavit of a juror in a personal injury action that some of the jurymen during the trial saw plaintiff walk without limping, and that that fact was discussed by the jury while deliberating, was inadmissible.</p>

<p>1. Insurance — Life Insurance — Beneficiaries.—Under Ky. St. section 655, the beneficiary in a life policy, or in the case of his death his legal representative, is entitled to the proceeds of a life policy .as against the representative of insured.</p> <p>2. Insurance — Life Insurance — Insurable Interest.- — A mother has an insurable interest in the life of her son.</p> <p>3. Insurance — Life Insurance — Rights of Beneficiaries. — Where a life policy stipulated that on insured reaching a specified age the proceeds should go to him, but if. he died before that age the proceeds should go- to his mother as beneficiary, or her legal representative, and he died -before such age, after the death of his mother, the representative of the mother was entitled to the policy, under Ky. St. section 655..</p>

<p>1. Adverse Possession — Extension—Color of Title. — Where, at the time defendant’s decedent entered certain lands, there was no adverse possession by plaintiff, decedent having entered under his deed, his possession extended to- the entire boundary included in the deed.</p> <p>2. Witnesses — Transaction with Person Since Deceased.— Where defendant’s decedent purchased certain land in controversy pursuant to a deed, and was in possession thereof up to the time of his death, plaintiff could not testify for himself as to any intrusion on decedent’s possession, except as authorized by Civ. Code Prac.' section 606.</p> <p>3. Action — Splitting Cause of Action — Recovery of Land. — The rule a-gainst splitting a cause of action applies to actions to recover land, so that a claimant of land cannot bring a succession of actions for different parts of a boundary of land in controversy.</p> <p>4. Judgment — Res Judicata — Actions Barred — Splitting Cause of ’ Action. — Where defendant’s decedent, in possession of land covered by his deed holding and using it as his own, sued for and recovered land included in the deed in a prior action against plaintiff, such judgment was a conclusive adjudication against plaintiff’s right to recover other land within the same body and covered by the same deed to decedent, though not actually in controversy in the former suit.</p>

<p>CASE 102. — ACTION BY H. F. TROUTMAN AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY. —</p> <p>Appeal from Bullitt Circuit Court.</p> <p>Samuel E. Jones, Judge.</p> <p>Judgment for plaintiff and defendant appeals.—</p>

<p>Divorce — Grounds—Living Apart. — Under Ky. St. section 2117, authorizing divorce for “living apart without any cohabitation for five consecutive years,” it will be granted therefor; the evidence showing that when they parted both parties contemplated a final separation as things then stood.</p>

<p>1. Appeal aDd Error — Law of the Case — The determination on a former appeal, on a question there passed on, is the law of the case, and conclusive.</p> <p>2. Appeal and Error — Harmless Error. — The trial court, on return of the case after appeal by defendant, having jurisdiction of his person, and therefore the right to determine the case, any error in then refusing to quash the process was harmless.</p>

<p>Taxation — Intangible Corporate Property — Place of Taxation.— Where a corporation in its articles of incorporation fixes a place in the state as its principal place of business, and the articles remain unchanged, and the corporation pays taxes on its intangible property at the place so fixed, no other city in which it has an office or does business can claim that it is the principal place of business, so as to authorize such a tax.</p>

<p>CASE 106. — ACTION BY L. C. ROBERSON AGAINST N. G. MORRIS —</p> <p>Appeal from Fulton Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff and defendant appeals.—</p>

<p>CASE 107. — ACTION BY JOSIE' McKINLEY AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY. —</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. P. Birkheab, Circuit Judge.</p> <p>Prom a judgment of dismissal, plaintiff appeals.—</p>