Volume 138 — Kentucky Reports

<p>1. Embezzlement — Nature of Offense — Embezzlement is a Statutory crime.</p> <p>2. Embezzlement — Indictment—Requisites.—An indictment for embezzlement, which alleged*, that accused received and' had in his custody a specified .sum of money which was the property -of the state, that the money was collected by him as county clerk under a duty and trust imposed by law to receive and pay it to the Auditor of • state, that instead of paying it over to the Auditor he converted the money to. his own use, fraudulently and with the felonious intent to deprive the state thereof, charged embezzlement under St. 1909, section 1205, punishing the misappropriation of property of the state, though it did not give the names of any of the persons of whom adcused collected money for tho state, nor aver on what account, nor the amounts received of them.</p> <p>S. Indictment and Information — Bill of Particulars. — ¡Where the facts alleged in an indictment, alleging that accused embezzled money of the state, received by him as clerk of the county court of the county, for delinquent taxes and taxes on mortgages, etc., were such as must be presumed to have been hnown to him., the refusal to require a bill of particulars, giving the names of the persons from whom accused collected the money and the amount collected of each and on what account, was not ground for reversal, though it would have been better to have required a bill to be filed.</p> <p>4. Criminal Law — Appeal—Review—Discretion of Trial Court. —¡The action of the trial court in granting or refusing a bill of particulars is subject to review where the trial court abused its discretion.</p> <p>5. Criminal Law — Continuance—Grounds—Unpreparedness for Trial. — Where accused showed that he had been confined in a lunatic asylum without opportunity to consult his counsel, and without ability to assist in the case, and that during the short interval between his discharge from the asylum and the beginning of the trial his counsel were so constantly engaged in the trial of other cases as to render it impossible to give his case proper attention, the refusal to grant .a continuance on the 'ground of unpreparedness for trial was erroneous.</p> <p>6. Criminal Law — Courts—Jurisdiction—“Criminal Term” — “Civil Term.” — >St. 1909, section 965, providing for criminal terms of the circuit court of a county, and for civil terms thereof, divides the circuit court of .the county into criminal and civil terms, and while the one circuit judge of the judicial district embracing the county presides at both the criminal and civil terms, he is without jurisdiction to try a criminal case at a civil term, -or to try a civil action at a criminal term, the words “criminal term” applying to a term of court at which indictments are found and returned, and at which persons are tried for crimes and other penal offenses, and the words “civil term” applying to a term at which civil business is disposed of, and controversies cognizable at law or in equity are litigated.</p> <p>7. Criminal Law — Courts—Jurisdiction.—Where a criminal case was continued at a criminal term of a circuit court of a county having criminal and civil terms, the case could not be called for trial until the next criminal term, and the court was without jurisdiction to try the case at the intervening civil term.</p> <p>8. Criminal Law — Evidence—Insanity— Admissibility.— Where ■accused relied on insanity at the time of the commission of the crime, and there was evidence that during the time of the commission of the offense he was addicted to the use of drugs impairing, if not destroying, his mind, the inguest of' lunacy, held at the same term of court at which the trial occurred, was admissible.</p> <p>CN PETITION FOR REHEARING.</p> <p>9. Statutes — Special Law — Terms of Court. — Ky. St. section 965, in so far .as it undertakes to divide the terms of the circuit court, in McCracken county into civil terms and criminal terms, is violative of Const, section 59, subsec. 1, providing that the General Assembly shall not pass local or special acts to regulate the jurisdiction or practice of the courts of justice.</p> <p>10. Statutes — Effect of Partial Invalidity — Terms of Court.- — The invalidity of a provision in Ky. St. section 965, dividing the terms of court in McCracken county into civil terms and criminal terms, does not affect the validity of any other part of the act, or alter the number of' terms that may be held in that county, but makes each term a general term at which both civil and criminal cases may be disposed of.</p>

<p>CASE 2. — ACTION BY SALLIE E. WALKER’S EXECUTOR AGAINST W. E. LUXON’.S LSXfivIINISTRATOR AND OTHERS.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>CASE 3. — ACTION BY CLARENCE RUPP AGAINST THE WESTERN LIFE INDEMNITY COMPANY.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Thos. R. Gordon, Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>CASE 4 — ACTION BY C. N. CRAWFORD AGAINST THE CITY OF MURRAY.</p> <p>Appeal from Calloway Circuit Court.</p> <p>J. T. Hanberry, Circuit Judge.</p> <p>Judgment fot plaintiff, defendant appeals.</p>

<p>1. Corporations — Organization—Capital.—.Evidence held insufficient to show that the capital stock of a corporation proposed to be formed to operate coal lands on which a partnership had leases and options was to be only a certain sum.</p> <p>2. Partnership — Rights of Partners. — The mere fact that defendant proposed to form a corporation to take over partnership properties at an agreed price did not make him the agent or trustee of his partners to the extent of rendering him liable to the partnership for the compensation which he received from the corporation for his services as a promoter thereof; his services being independent of the partnership.</p>

<p>CASE C. —ACTION BY B. F. FULLER AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY.</p> <p>Appeal from Hopkins Circuit Court.</p> <p>J. P. Gordon, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Taxation — Foreign Insurance Company — Construction of 'Statute.- — Acts 1906, c. 22, art. 13, subd. 2, amending Ky. St. section 42-26, and providing th-at every foreign’ insurance company shall make a statement under oath of all premiums ■receipted for, and that “no deduction shall be made for dividends, or since the last returns were m-ade on all premium receipts which shall include single premiums,” etc., and shall pay a tax of $2 on each $100 of said premiums, means, when construed in view of the fact that the act was passed during the pendency of an -appeal from a decision under the old law holding that dividends could be deducted from the receipts collected, that the tax shall be paid on the gross amount of premium receipts which include what the statute directs, without any deduction of dividends.</p> <p>2. Constitutional Law — License Taxes — Validity of Statute.— Acts 1906, c. 22, art. 13, subd. 2, requiring a foreign insurance company doing business in the state to pay a tax of $2 on each $100 of premiums collected with no deduction for dividends, being a license tax operating equally on all affected, is constitutional, though no deduction is allowed for dividends; the propriety of the act being a question for the Legislature.</p>

<p>1. Divorce — Decree—Vacation—During Term — Jurisdiction.— Civ. Code Frac, section 344, provides that, if grounds for a new trial be discovered after the term at.which the verdict' or decision is rendered, the application may be made not later than the second term after the discovery, etc., within three years after final judgment, but that the section shall not apply to divorce cases so far as the judgment for divorce is < concerned. Held that, after the term, a court has no power to set aside a divorce decree except under section 426, providing for annulment of a judgment for divorce by the court rendering it on a verified petition of the parties, but that section 344 did not deprive the court of jurisdiction to grant a new trial in an action for divorce during the term, provided the parties have not remarried.</p> <p>2. Divorce — New Trial — «Conservation of Property. — Where the court granted a new trial to the wife in an action for divorce, and she applied for an order restraining her husband from conveying his property pendente lite, the court should hear evidence as to the value of the husbasnd’s estate and restrain him from disposing of one-third of it pending final determination of the action, or require the execution oí a forthcoming bond in a sum equal in value to one-third of the estate.</p>

<p>CASE 9. —ACTION BY LOGAN COUNTY AGAINST J. S. FLOWERS.</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for plaintiff, and defendant appeals. — ■</p>

<p>CASE 10 — ACTION BY M. H. HALL AND OTHERS AGAINST JOHN W. WRIGHT AND OTHERS.</p> <p>Appeal from Letcher Circuit Court.</p> <p>L. L. Lewis, Circuit Judge.</p> <p>Judgment for defendants, plaintiffs appeal.</p>

<p>CASE 11. — ACTION BY J. S. VERTREES AGAINST HEAD & MATTHEWS.</p> <p>Appeal from Ohio Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>1. Schools and School Districts — School Funds — Capitation Tax. —Since the imposition of a poll or capitation tax for school purposes is authorized by the Constitution, it is the absolute ■duty of the fiscal court to levy a capitation tax within the ■statutory limit at the request of the board of education.</p> <p>2. Schools and School Districts — Regulation—Taxes.—Under ■Ky. St. section 4426a, conferring on a county board of educan tion control of the educational interests and' needs of the county, it is the duty of the board before asking the fiscal court for a levy for educational purposes to estimate the amount which in the judgment of the board may be needed for that purpose, which request, if within the prescribed limit, must be complied with by the fiscal court.</p> <p>2. Schools and School Districts — School Funds — Expenditure— Purpose. — Under Ky. St. section 4426a, authorizing the county board of education to purchase, lease, or rent school sites, to build, repair and rent schoolhouses, purchase school furniture or other apparatus necessary to the conduct of the ■schools, the board may expend the school funds in its discretion for all the educational needs of the county, and so long as the discretion is not abused or is reasonably exercised, it will not be interfered with by the courts.</p> <p>4. Schools and School Districts — School Funds — Expenditure— Statutes. — Ky. St. section 4426a, authorizing county boards of education to disburse school funds, is not retroactive, and does not authorize such boards" to use any funds coining into its hands to pay debts created by school districts prior to the enactment of such section, such debts being payable only as provided by the law in force when the indebtedness was created.</p> <p>5. Schools and School Districts — School Funds — Disbursement—• Taxpayer’s Action. — A citizen and taxpayer of a county may maintain proceedings to restrain the county board of education from illegally disbursing or misapplying school funds.</p>

<p>CA.SE 13. — ACTION BY CHARLES T. AUFENCAMF AGAINST J. P. STORCH.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Wm. H. Field, Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Negligence — Injuries to Trespassing Children — Liability.— One maintaining an instrumentality alluring to children trespassing on his premises is not liable for injuries to the children, unless he knows, of in the exercise of reasonable care ought to know, 'that his structure is attractive to children and endangers them.</p> <p>2. Negligence — Injury to Child — Telegraph Pole as Attraction.— A telegraph company, maintaining- a pole with a guy wire attached and prongs exposed, does not maintain an instrumentality attractive or dangerous to children, so as to render it liable for injuries to a child attempting to climb the pole, and slipping and catching his finger in the angle between the projecting prong and the rest of the wire, whereby it was -torn off.</p>

<p>1. Descent and Distribution — Int.estate Dying Without Issue.— Ky. St. section 1401, provides that, if an infant dies without issue, having derived title to real estate from his parent, the whole shall descend to that parent and his or her kindred, - if any, and, if none, then to the other parent and his or her kindred, but the kindred of one 'Shall not be so excluded by the kindred ofthe other parent if the latter is more remote than grandfather, grandmother, uncles, and aunts of the ■intestate and their descendants. Section 1393 (section 3810) provides that, when a person having title to any real estate of inheritance shall die intestate, it shall descend in parcenary to his kindred, male and female; to his children and their descendants; if none, to his father and mother, if both are ' living, one moiety each; and, if none, to his brothers and sisters and their descendants. Held that, where intestate died seised to property derived from his deceased mother, leaving his mother’s' sister surviving, and two brothers of the half blood, intestate’s interest in the land passed to his aunt, if he was an infant at the time of jhis death, and, if he was of age, to his- half-brothers.</p> <p>2.' Descent , and Distribution — Age—Eyidence—Finding.— Evidence held to sustain a finding that intestate was of age at the time of his' death.</p> <p>3. Evidence — Pedigree—Bible Entries. — After tbe death of all persons who would reasonably be likely to have knowledge concerning the making of an entry of the birth of a child in the family Bible, the entry is admissible to .show the child’s age without proof of the handwriting; it being shown that the entry was ancient, and made before any motive existed for making a false entry.</p> <p>4. Evidence — 'Pedigree—Age—School Census. — A school census is admissible to show the age of a person' scheduled therein.</p>

<p>CASE -16. — ACTION BY THE STEWART IRON WORKS COMPANY AGAINST JAMES, AUDITOR.</p> <p>Appeal from Warren Circuit Court.</p> <p>McKenzie Moss, Circuit Judge.</p> <p>Judgment for defendant and plaintiff appeals.—</p>

<p>1. Schools and School Districts — Actions—preach—Sufficiency of Evidence — Damage.—In an action for breach of a school district’s contract to pay plaintiffs the amount of the poll and property tax collected in the district for three years as the price of a schoolhouse evidence held to show that, if the school trustees had used diligence in having the property within the district listed for taxation, plaintiffs would have received an additional amount equal to the verdict for them.</p> <p>2, Schools and School Districts — Contracts—Construction—Performance. — Where trustees of a school district agreed that plaintiffs should receive the amount collected as poll and property tax in the school district for three years in payment of a schoolhouse built, the trustees did not perform the contract if they negligently omitted to collect a part of the taxes due; they being bound to use diligence in listing the property for taxation.</p>

<p>CASE 18. — ACTION BY JOSEPH LEVI AGAINST LOEVENHART &' COMPANY.</p> <p>Appeal from Jefferson Cirenit Court (Chancery Branch, -First Division); ■</p> <p>Shackelford Miller, Judge.</p> <p>Judgment'for défendants, plaintiff appeals.</p> <p>Bankruptcy — Discharge of Bankrupt — Effect.—An employer’s liability, upon accepting an order of an employe directing the employer to pay'to the former’s creditor a certain sum . each week out of his wages until -a idebt. was settled, was discharged by the employe’s discharge in , bankruptcy proceedings, in which the debt to pay which the order was given was discharged.'</p>

<p>Injunction — Preliminary Injunction — Right to Writ. — In a suit by a father against his sons to cancel a conveyance to them of a tract of land and the timber thereon because of alleged fraud and overreaching by the sons, an injunction restraining defendants from cutting the timber from the land pendente lite was properly granted.</p>

<p>CASE 20. — ACTION BY WILLIAM B. McCLURE AND ANOTHER AGAINST THE CITIZENS LIFE INSURANCE COMPANY OF KENTUCKY.</p> <p>Appeal From Fleming Circuit Court.</p> <p>C. D. Newell, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1 Mandamus — Nature of Remedy — Other Relief. — «Where full relief may be had otherwise, from the judgment or order of a subordinate court,, mandamus will not lie.</p> <p>2. Justices of the Peace — Judgment—Entry.—Under Ky, St. section 1088, making justices’ courts of record, it is indispensable to the validity of a justice’s judgment that it be -entered in the book provided for that purpose, and signed after being so entered by the presiding judge or justice of the court.</p> <p>3. Justices of the Peace — Erroneous Judgment — Correction.— Where errors ’ are carried into the judgment of a justice of the peace as entered, they may be corrected on appeal from the judgment, if the right of appeal is given by law, or in a direct proceeding to vacate or modify it, but not otherwise.</p> <p>4. Justices of the Peace — Judgment—'Evidence.—A justice’s judgment does not lie in the breast of the judge, nor does it depend- on any statement he may have made concerning it, or to the memory of others, but can be evidenced alone by the justice's record thereof.</p> <p>5. Forcible Entry and Detainer — Trial by Justice —Pronouncement of Judgment — Effect.—Civ. Code Prac. section 4Ó4, as amended, provides that in forcible entry and detainer, if neither party demands a jury, the trial shall be by the judge or justice presiding, and that the right to traverse the finding shall be the same as if a verdict had been rendered by a jury. Held that, where an action of forcible entry and detainer is tried by a justice of the peace without a jury, the justice’s pronouncement at the end of the trial that he would find for defendant did not have the effect of a jury’s verdict, and did not constitute a conclusive finding for defendant, and the justice had power prior to the entry of h'is judgment on the docket to change his opinion and enter a judgment for plaintiff, within the time defendant was entitled to traverse the same.</p>

<p>1. Municipal Corporations — Care of Highways. — It is the duty of a municipality to exercise reasonable care to keep its public highways in a reasonably safe condition for travel, and, if it fails to do so, it is liable for the resulting injuries.</p> <p>2. Municipal Corporations — Streets—Injury to Runaway Horse —Liability of City. — Where an unused fire engine had been left standing by the city near the curb in a street 7O' feet in width from curb to curb so that there was left for the use of the traveling public considerable more in width of the highway than was afforded by the average street when entirely unobstructed, and such portion was reasonably safe for ordinary public travel, the city was not liable for injuries to a runaway horse frightened by something for which the city was not responsible, and not by the engine, which horse in the daytime collided with the engine while in plain view.</p>

<p>1 Licenses — Police Power — Scope—Occupation Tax.- — Generally speaking, the police power of the state may be invoked to control and regulate or even prohibit the doing of anything that concerns the health, lives, morals, good order, and general welfare of the community; and under such power the Legislature may regulate the sale of patent and other kinds of medicine that may and do affect the health of the people, and may set apart as special objects of taxation, regulation, and control persons engaged in whole or in part in the sale of medicines.</p> <p>2. Licenses — Police Power — Occupation Tax — Uniformity.—The Legislature, in imposing a tax upon a specified occupation under the police power, must make such tax uniform on all like business and occupations when the circumstances and conditions of each are substantially alike, especially where the tax is a license tax.</p> <p>3. Words and Phrases — “Merchant.”—A “.merchant” is one who buys and sells goods of all or any kind.</p> <p>4. Licenses — Uniformity—Occupation Tax. — Ky. St. section 4224, ■in so far as it exacts a tax from a person, firm, or corporation ■selling patent medicine, and exempts th.erefrom merchants or druggists selling such medicine, from their places of business, is unconstitutional for lack of uniformity, inasmuch as it discriminates between persons engaged exclusively in the ■sale of patent medicines, and persons selling such medicines in connection with other goods, while the circumstances and conditions of the respective sales are substantially alike.</p>

<p>CASE 24 — ACTION BY JOHN COBB AND ANOTHER AGAINST THE FORD LUMBER & MANUFACTURING COMPANY.</p> <p>Appeal from Perry Circuit Court.</p> <p>L. P. Lewis, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p>

<p>Appeal and Error — Stay of Proceedings — Supersedeas Bond.- — The mere execution and filing by appellant of a supersedeas bond does not stay the proceedings, and where no writ of supersedeas is issued appellee may enforce his judgment pending the appeal, and on the dismissal of the appeal he cannot recover damages.</p>

<p>CASE 26 — ACTION BY R. S. GUTHRIE AGAINST B. F. 1-IILL AND WIFE.</p> <p>Appeal from Henry Circuit Court.</p> <p>Charles Marshall, Circuit Judge.</p> <p>Judgment for defendant Edmonia Hill, and plaintiff appeals.</p>

<p>CASE 27 — ACTION BY G. H. NUNNELLY AND OTHERS AGAINST JOHN G. COLE AND OTHERS.</p> <p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.-</p>

<p>CASE 28 — ACTION BY ANNIE MITCHELL AGAINST THE LOUISVILLE RAILWAY COMPANY POR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Walter P. Lincoln, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Elections — Election Precincts — Statutes.—The statute, providing that each election precinct shall contain, as nearly as practicable, 300 votes, based on the number cast at the last presidential election, and that no precinct shall contain more than 350 votes, and that if at any election more than 350 votes shall be cast at any voting place, the sheriff of the election at the precinct shall report the same to the county court, which shall divide the precinct, make the size of a precinct depend on the vo'fes cast at the last presidential election, and a county judge establishing precincts is not authorized to take a poll, but must act according to the votes cast at the last presidential election, and where he in good faith doesiso, the fact that some of the precincts established by him contain more than 350 votes does not render the election void.</p> <p>2. Elections — Regulations—Statutes—Booths.—Ky. St. section 1467, providing that the number of booths shall not be less than one for every 100 voters, and one for every fraction of 100 exceeding 50, who voted at the last preceding election in such precinct, fixes the number of booths according to the number who voted at the last election in the precinct, and where precincts were established since the preceding election, the sheriff in providing for the booths can only be guided by the presumption that the county judge has done his duty, and he is only required to put in three booths in each precinct; and, where the sheriff followed the statute, and no one applied to him for more booths, no one can complain because the sheriff did not put in a requisite number of booths as shown by the number of votes cast at the election.</p> <p>3 Elections — -Free and Equal Elections — -Evidence.—In pro- ' ceedings to contest a city election, evidence held not to show such a denial o-f the right to vote as to justify a finding that the election was not free and equal. /</p> <p>4 Elections — Free and Equal Elections — Election Officers — Representation of Parties. — The fact that the election commissioners appointed, as election officers in each election precinct of a city for a city election, a Democratic judge and a Republican judge, a Democratic clerk, and a Republican sheriff did not show that the election was not free and equal under the statute, which merely requires that the officers of election be equally divided between the political parties without requiring such offices to be alternated between the parties, for both the clerk and the sheriff under the statutes have important functions' to perform- in an election.</p> <p>5. Elections — Election Officers — Duties.—Under Ky. St. section 1484, requiring the sheriff of each precinct to preserve order at the polls and enforce the election law under the direction of the judges, he does not, except under the direction of the judges, run the election.</p> <p>G. Elections — Election Officers — Duties.—Under Ky. St. section 1585A, subsec. 15, prohibiting .the' unlawful interference with the officers of election in the discharge of their duties, etc., a peace officer may not interfere with an election officer in the discharge of his duties, and he .should not take any part in maintaining order within 50 feet of the polls, unless it is necessary to preserve the peace, or he is required to do so by the sheriff, but he may, when so requested, assist in maintaining order.</p> <p>7. Elections — Contests—Illegal Votes — Burden of Proof. — A contestant in an election contest, who alleges that illegal votes were cast, must show for whom the illegal votes were .cast, for without that it cannot be known that contestant was prejudiced thereby.</p> <p>8 Elections — 'Contests—Illegal Votes — Evidence.—In an election contest, based on illegal votes, an illegal voter may be r equired to show how he voted.</p> <p>9. Elections — 'Contests—Bribery—Evidence.—The fact that the Republican campaign committee spent $3,300, and that the Democratic campaign committee spent $3,100, in a city election in the city o-f Lexington, did not show that an improper amount of money was used in the election sufficient to justify the court in setting aside the election on the ground of bribery.</p> <p>10. Elections — “Bribery” of Voters. — Since under the Ky. St. section 1488, a voter cannot vote unless he presents to the election officers his certificate of registration, the buying of certificates to prevent voters from voting is the buying of persons not to vote, and is “bribery” under section 159 6A, sub-sec. 12, prohibiting bribery.</p> <p>11. Elections — Validity—Presumptions—Burden of Proof. ■— The burden of proof is on the contestant in an election contest to show such fraud, intimidation, bribery, or violence in the conduct of the election that neither candidate can be adjudged to have been fairly elected.</p>

<p>CASE 30 — ACTION BY THE HENDERSON ELEVATOR COMPANY AGAINST THE ILLINOIS CENTRAL RAIL- ■ ROAD COMPANY</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. "W. Henson, Circuit Judge.</p> <p>Judgment for plaintiff, and defendant appeals.-—</p>

<p>1. Taxation — Assessment Against Life Tenant — Sale for Nonpayment — Rights of Purchaser and Remainderman. — While . under Ky. St. section 4049, requiring real estate to be listed' for taxation against the owner of the first freehold interest therein, the taxes assessed during a life tenancy are a iien on the land, and not merely on the life interest, the remainderman, having no notice of the nonpayment of the tax or the sale of the land therefor, may not, without being given an opportunity to redeem, be deprived of the land by the purchaser at tax sale, though the statutory period for redemption has expired; but the purchaser at the sale has merely a lien for the amount paid and interest, as provided by section 4036 (section 5928) in case of the sale being set aside for irregularity.</p> <p>2. Judgment — Relief Under General Prayer. — Under Civ. Code Prao. section 90, providing that, if defense he made, plaintiff may, under a prayer for general relief, have other relief than specifically prayed, plaintiff will not, even if defense is made by general demurrer or traverse, and the specific relief is denied, be given judgment for other relief under the general prayer, unless the averments of the petition certainly show he is entitled to other relief; so that he, specifically praying that title to land be quieted in him as purchaser at tax sale, may not have judgment for the amount paid at sale with interest, the petition not showing that defendant before commencement of the action did not offer to make such payment, so that he should not be subjected to costs; but if the answer were more than a traverse, and the pleadings when made up showed all the relief to which the parties would be entitled, it might be granted under the general prayer.</p>

<p>1. Judges — Disqualification—Bias—Affidavits— Sufficiency. — In proceedings before a county judge to revoke liquor licenses, affidavits seeking to bave tke judge vacate the' bench, showing that during his candidacy for office he issued a statement signed by him pledging himself to revoke all licenses in ex-istenee, and that in pursuance thereto he was actively engaged in procuring testimony that the petitioners had violated the law, and that he was personally hostile to the petitioners and so prejudiced that he could not give them a fair and impartial trial, presented sufficient reasons why he should not preside at the trial, since the statements in the affidavits must be taken as true, and the question of their sufficiency is to- be tested by what they contained, without regard to any denial or explanation the judge may see proper to make.</p> <p>2. Judges — Disqualification—Bias.—That a judge is strongly opposed to the sale of liquor in any form is not of itself sufficient reason why he should not preside in the trial of cases involving infractions of the liquor laws.</p> <p>3. Constitutional Law — Guilt of Accused — Unbiased Judge — Constitutional Bight of Accused. — That persons may be guilty of infractions of the liquor laws does not deprive them of the constitutional right to have a fair hearing of their case before an unbiased and fairminded judge.</p> <p>4 Judges — County Judge — “Constitutional Officer.” — The county judge is a “constitutional officer.”</p> <p>5. Prohibition — Grounds—Want of Jurisdiction. — The filing of an affidavit of bias on the part of the county judge does not deprive him of jurisdiction of an application to revoke a liquor license, so as to warrant the issuance of a writ of prohibition.</p> <p>6. Prohibition — Existence of Other Bemedy — County Judges— Jurisdiction. — The county judge has power to pass upon che sufficiency of an affidavit of bias, and, if he rules that it is not sufficient, his decision is the exercise of a judicial discretion, however erroneous it may be, and cannot be controlled by the writ of prohibition if the complaining party has any other adequate remedy.</p> <p>7. Prohibition — Grounds—Lack of Other Bemedy. — The Court of Appeals may issue the writ of prohibition against inferior jurisdictions, although acting within the scope of their jurisdiction, when the petitioner has no other adequate remedy.</p> <p>8 Prohibition — -Power to Issue Writ — Discretion of Court. — Under Const, section 110, defining the jurisdiction of the Court of Appeals, that court has large discretion, and the question whether or not the writ of prohibition will issue must b'e left to this discretion; each case being adjudged on its merits.</p> <p>9. Intoxicating Liquors — Prohibition—Grounds—Bias of Judge— Liquor License — Bevocation.—Under Ky. St. -section 4211, providing that in proceedings to cancel liquor licenses an appeal may be prosecuted to the circuit court, but the order of the county court shall not be suspended until reversed, etc., where defendants in such proceedings prosecute an appeal the judgment of the county court revoking their licenses, they cannot sell liquor under the licenses pending the appeal, and, where it appears by affidavit of bias against the judge that they cannot have an impartial trial in the county court, the Court of Appeals will issue a writ of prohibition e gainst the county judge prohibiting him from hearing the matter.</p>

<p>1 Time — Filing Petition — Exclusion of First Day. — Under Ky. St. section 1596a, subsec. 12, providing that a petition to contest an election .shall be brought within 10 days after final action of the board of canvassers, the day on which the final action of the board is taken must be counted in computing the time.</p> <p>2. Time — Exclusion of Sunday — Petition for Election Contest.— Under Ky. St. section 1596a, subsec. 12, providing that a petition to contest an election shall be brought within 10 days after final action of the board of canvassers, when the last day falls on Sunday, a petition is not valid if filed on the following Monday, since the rule is that in computation of rime exceeding a week Sunday is included.</p> <p>3 Time — Exclusion of Sunday — Effect of Statutes. — Such rule is not changed by Ky. St. section 454, providing that, if any proceeding is directed by law to take place or any act is directed to he done on a particular ■ day of a month if that happens to be Sunday, the proceeding shall take place or the act shall be done o-n the next day, since there were 10 days within which to file the petition.</p>

CASE £4 — ACTION BY JOHN M. WILLIAMS AGAINST THE WESTERN UNION TELEGRAPH COMPANY. Appeal from Rockcastle Circuit Court. B. J. Bbthurum, Circuit Judge. Prom an order overruling a motion to set aside an order granting a new trial for inadequacy of damages, defendant appeals.

<p>1. Waters and Water Courses — Surface Waters — Lower Estate. —A lower estate is only subject to 'the servitude of receiving the natural flow of surface water from the upper estate, and hence has no right to erect embankments, or create other obstructions, whereby the natural flow of the surface water from the upper ground is stopped or caused to back on and overflow the upper ground, nor has the owner of the upper ground any right to make excavations, barrier, or drains on his ground by which the flow of the surface water is diverted from its natural channel, and a new channel made on the lower ground, nor can he collect into one channel waters flowing on his neighbor’s land by several channels, and thereby increase the flow.</p> <p>2. Damages — Duty to Minimize — Injuries to Property. — Where defendant, by negligently diverting surface water from its natural and customary channels, and by obstructing its natural course, caused it to overflow plaintiff’s land in greater and unusual quantities than was its wont, and to injure his crops, defendant could not object that plaintiff did not minimize his damages, plaintiff being under'no duty to relieve defendant of the consequences of its negligence.</p> <p>S Waters and Water Courses — Obstruction of Surface Water —Actions—Instructions.—In an action against a railroad company for obstructing a water course, an instruction that if defendant negligently constructed its roadbed on the north side of plaintiff’s land, filling, obstructing, or diverting the channel of a creek, and thereby negligently diverting the waters running therein from their natural course, causing them to overflow plaintiff’s land, by reason whereof his crops, or a portion thereof, were flooded, destroyed, or injured by ordinary rain-falls, plaintiff could recover, provided the branch at the time of the diversion was a natural water course, etc., was proper.</p> <p>Í Damages — Injury to Crops — Instructions.—¿Where, in an action against a railroad company for obstructing a water course, the only damages claimed or proved were for injury to plaintiff’s crops, an instruction confining plaintiff’s recovery to reasonable compensation for the diminution in value of the crops, giving the limit and amount as to each crop,’ and the limit as a whole, was in substantial conrormity to the rule that plaintiff’s measure of damages was the value of so much of the crops as were wholly destroyed while standing on the ground, and the depreciation in the value of the remainder.</p> <p>5. Trial (Section 2G0 ) — Instructions—Refusal of Request.— Where the charge of the court covers the whole case, it is not error to refuse a requested charge, though correct.</p>

<p>CASE 36 — ACTION BY J. B. BLACKBURN AGAINST R. C. WELCH.</p> <p>Appeal from Powell Circuit Court. -</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>CASE 37 — ACTION BY T. L. PAYNE AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>Judgment for plaintiff and defendant appeals.—</p>

<p>CASE 38 — PETITION BY S. R. BAKER AGAINST J. W. DINS-MORE TO CONTEST AN ELECTION.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton. Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1 Master and Servant — Injuries to Miner — Assumption, of Risk —Method of • Work. — A coal mine driller was employed to enter different rooms in a mine' and drill the face of the coal, so that it could he shot and removed. After he had operated in a room, a set of men called “loaders” would enter, shoot the coal, take it away, and then prop the roof so that it would he safe to again enter for the purpose of drilling, etc. The driller would go into any room without directions that appeared to have been made ready for him, and the operation would continue. On entering a place which had been propped, the driller was injured because of the improper propping, and sued for the injuries. Held, that plaintiff did not assume the risk because he was not directed to go into the room he did, since the facts showed that that was the system of work.</p> <p>2. Master and Servant — Safe Place to Work — Mines—Drillers.— Held, also, that, although to persons making a place in a mine safe the master owed no duty of furnishing a safe place to work because of the changing conditions and nature of the work, 'still the master did owe such a duty to plaintiff, since he was not charged with the duty of inspection and making the place safe.</p> <p>3 Master and Servant — Safe Place to Work — Making Place Unsafe — Mines.—Neither could it he said that plaintiff was engaged in the work of making the place unsafe so that the master would not .he liable for the injuries, since the injuries occurred from the failure to properly prop the roof which had no connection with his work, and was done by an entirely different set of workmen.</p> <p>4. -Master and Servant — Injuries to Miner — -Delegation of Duty —Judgment of Servant. — Held, also, that the master could not escape liability as a matter of law on the theory that, though charged with the duty of furnishing a safe place, he had delegated that authority to the loaders, and their judgment that the place was safe was conclusive.</p> <p>5. Master and Servant — Injuries to Miner — Failure to Comply with Statute. — Neither was plaintiff barred a recovery be-' cause Ky. St. section 2732, provides that any person employed in a mine who willfully neglects to prop the roof of any working place under his control shall be liable to a fine, since such statute was not applicable to him because he was not charged with the duty to prop.</p> <p>6. Master and Servant — Injuries to Miner — -Evidence Admissible Under Pleading. — Under a petition for injuries to a miner, charging that the unsafe place to work was caused by a loose slate,' shale, and rocks being suffered and permitted to remain in the roof, which ought to have been taken down and out of the roof by defendant or secured by props, testimony of the persons whpse duty it was to prop the roof concerning the failure to -furnish sufficient props is admissible, as the pleader is not required to specify each act of negligence.</p> <p>7 Appeal and Error — ’Harmless Error — Argument of Counsel.— Where no complaint could be made to the amount of the verdict in a personal injury action, and the evidence fully warrants the verdict and the instructions fairly submitted the law, argument of counsel, though transgressing the rules of propriety and going beyond the limits -of legitimate argument, will not be deemed prejudicial.</p>

<p>CASE 40 — ACTION BY HESTER T. CAMPBELL AND OTHERS AGAINST JAMES M. SIMMONS.</p> <p>Appeal from Warren Circuit Court.</p> <p>McKenzie Moss, Circuit Judge.</p> <p>Judgment of dismissal and plaintiffs appeal.</p>

<p>CASE 41 — ACTION BY STELLA ELLIOTT AGAINST J. W. ELLIOTT FOR DIVORCE AND ALIMONY</p> <p>Appeal from. Fayette Circuit Court.</p> <p>"Watts Parker, Circuit Judge.</p> <p>Judgment for defendant, and plaintiff appeals.—</p>

<p>CASE 42 — ACTION BY DAVID R. CASTLEMAN AGAINST ED MEGLEMRY.</p> <p>Appeal' from Jefferson Circuit ■ Court (Criminal Branch).</p> <p>James P. Gregory,- Judge.</p> <p>Judgment for defendant, and plaintiff appeals.—</p>

<p>CASE 43 — PROSECUTION AGAINST BELL LAWRENCE FOR VOLUNTARILY GOING UPON THE HIGHWAY WHILE HE HAD THE SMALLPOX.</p> <p>Appeal from Rockcastle Circuit Court.</p> <p>B. J. Bethurum, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>CASE 44 — SUIT BY POLLY FOWLER AGAINST LOUIS FOWLER FOR DIVORCE AND FOR AN ORDER DECLARING HER A FEME SOLE.</p> <p>Appeal from Estill Circuit Court.</p> <p>D. B. Redwine, Circuit Judge.</p> <p>Prom a decree dismissing her bill in each suit, she appeals.</p>

<p>CASE 45 — ACTION BETWEEN OTT'OE R'OEMELE AND FERDINAND SCHMIDT ON MOTION TO DISMISS AN APPEAL GRANTED IN THE LOWER COURT</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Walter P. Lincoln,-Judge.</p>

<p>CASE 46 — ACTION BY SALLIE GRIMES’ ADMINISTRATOR AGAINST THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY ON A POLICY ISSUED TO PLAINTIFF’S INTESTATE.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Trios. R. Gordon, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>Agriculture- — Societies—Election of Delegates. — Act 1906, creating the state board of agriculture, forestry, and immigration (Acts 1906, c. 90), provides in section 1 that it shall be composed of one intelligent citizen from each appellate court district of the state, with the commissioner of agriculture as -ex -officio chairman, and the director of the Kentuchy experiment station ex officio member. Section 5 provides that the chairman of the board with the approval of the members shall cause a farmers’ industrial institute of two days’ duration to be held in each county annually, at which one or more delegates to the state institute shall be elected.. Section 7 provides that between the 1st day -of January and M-arch of each year a state industrial institute shall be held, at which only county delegates shall be entitled to vote, each county having one vote. Held, that the action of the state institute in seating delegates was that of a sovereign body which had the right, as have all other representative governing bodies, of final jurisdiction -of determining who constituted the body, and had jurisdiction to decide a contest as to who were entitled to act as -delegates, with the exercise of which right the courts could not interfere.</p>

<p>CASE 48 — ACTION ON A NOTE BY THE GREEN RIVER DEPOSIT'BANK AGAINST S. A. DEAVENPORT AND ANOTHER AND 'W. M. BROIWN IN WHICH W. M. 'BROWN PILED AN ANSWER AND CROSS PETITION AGAINST HIS CO-OBLIGORS.</p> <p>Appeal from Butler Circuit Court.</p> <p>McKenzie Moss, Circuit Judge.</p> <p>Judgment for plaintiff and for cross petitioner, and Deavenport and another appeal.</p>

<p>1. Insurance — Action on F'olicy — Admissibility of Evidence-Application. — Under Ky. St. section 679, providing that poli cies containing any reference to the application of insured shall contain or have attached to the policy a copy of the application as signed by insured, and that no such application, unless so attached, shall be received in evidence in an action between the parties, an application was not admissible in evidence where not made a part of the policy by being incorporated in or written'on or attached to it, nor is a medical examination of insured, which was a part of the application and intended to accompany it, admissible.</p> <p>2. Evidence — Parol Evidence — Application..—An application for life insurance itself not being admissible because not attached to the policy, parol evidence of its contents is inadmissible.</p> <p>3. Insurance — Action on Policy — Instructions.—The policies containing the only contract between the parties, and containing no. reference to the health of insured, or the fact that she had other insurance, or had been rejected by other companies, requested charges that if insured when she made application had heart or kidney disease, or dropsy, and fraudulently concealed the fact from the insurer or its agents, falsely represented that she had not been rejected by any insurance company, or had made false answer as to the amount of insurance she carried, and but for such concealment and false answers the policies would not have been issued, defendant should recover, were properly refused.</p> <p>4. Insurance — Action -on Policies — Defenses—Substitution for Insured.- — Though the insurer could not resist payment of the policies upon defenses arising out of the application, it could show that a person, other than insured made the application and was examined, and that the insurance was obtained as part of a conspiracy of persons having no insurable interest in insured’s life.</p> <p>5. Appeal and Error — Review—Pleadings.—Where it is apparent from the conduct of the trial, and the character of testimony admitted, that certain paragraphs of the answer to which demurrer had been sustained were treated by the court and counsel as being a part of the pleadings, they will be so regarded on appeal.</p> <p>6. Appeal and Error — Review—Discretion of Court — Amendment of Pleadings. — In furtherance of justice the trial couft has a large discretion in permitting pleadings to be filed, which discretion will not be interfered with on appeal unless it appears from the whole case that a substantial error has been committed, and where the filing of an amended reply to matter contained in certain paragraphs of the answer upon a motion for a peremptory charge did not prejudice defendant’s rights nor take it by surprise nor repreesnt any new issues, nor affect its substantial rights, granting leave to file the reply was not error.</p>

<p>1. Pleading — Objections—Waiver.—Plaintiff cannot recover an item of damages in an action for breach of contract which Wias stricken from .the petition without objection.,</p> <p>2, Assignments — Contracts Assignable — Logging Contract. — A contract is assignable, unless its assignment is forbidden by public policy, oi it involves personal confidence reposed in one of the parties hy the other, and a contract by which de- ! fend,ants sold and agreed' to deliver to another a certain number of logs to be cut from a tract w-as assignable by the purchaser; the assignment not changing the terms of the contract or the bond given by defendant for faithful perfomanee.</p> <p>3- Pleading — Demurrer—Admissions.—A demurrer to the petition admits material facts alleged therein for the purpose of the demurrer.</p> <p>4. Assignments — Validity-Ratification.—Where defendant .and the guarantors on its bond for the faithful performance of the contract consented to the assignment hy the purchaser of its contract to deliver a certain number of logs, and recognized-and ratified it by delivering a part of the logs under the contract to the assignees, defendant and its 'guarantors were estopped from denying the validity of the 'assignment.</p> <p>5. Assignments — Contracts—Waiver of Nonassignability. — The nonassignability of a contract by reason of the personal confidence involved in its performance may be waived by the consent of the parties, so as to make it assignable.'</p> <p>6. Assignments — Jury Question — Waiver of Nonassignability.— In an action for breach of defendant’s contract to deliver logs sold, brought by an assignee of' the other party to the contract, whether defendant waived its right to personal performance by the other party, so as to make the assignment valid, held a jury question.</p> <p>7. Guaranty — Nature of Liability. — Where the undertaking by which defendant’s performance of a contract to deliver logs was guaranteed was a part of the contract, the guarantors were primarily liable for its breach;. their relation being analogous to that of a surety.</p> <p>S. Guaranty — Action—Joint Parties. — -Civ. Code Prac. section 24, requires parties united in interest to be joined in a suit. Section 26 permits persons severally liable upon the same contract to be included in the same action at plaintiff’s option, and by section 27, if two or more be jointly bound by a contract, the action thereon may- be brought against all or any of them at plaintiff’s option. Held, that where defendant sold and agreed to deliver log's by a written contract, and other parties to the same contract guaranteed defendant’s faithful - performance thereof, So as to make them primarily liable for its breach, defendant and such guarantors could be sued jointly for its breach of the contract.</p> <p>9. Guaranty — Actions—Parties—Joint Action. — -Where a con tract and a guaranty are executed at the same time, a joint action for breach of the contract will lie against the principal and guarantor, though they should be separately sued if the contract and guaranty are not simultaneously executed.</p> <p>10. Guaranty — Guarantor’s Liability — Time of Accruing. — If a guaranty is absolute, the guarantor is bound upon the principal’s default without further steps being taken, while if it is conditional, proof of the prinicpal’s insolvency is also essential to bind the guarantor; and the guaranty for the faithful •performance of a contract to deliver logs, made as a part of the original written contract, was an absolute guaranty, so that the guarantor’s, liability attached immediately upon the principal’s breach.</p> <p>11. Logs and Logging — Contract for Logs — Actions for Breach— Pleading — Sufficiency of Petition. — The petition alleged a contract by which defendant agreed to sell and deliver to plaintiff’s assignor all the merchantable white oak logs ovei a certain size to be cut from -timber on a certain tract, defendant to deliver the logs to certain mill sets, sites for which plaintiff agreed to furnish, and that defendant was to be jpaid therefor at $9 per 1,000 feet, and that other defendants guaranteed defendant’s faithful performance of the contract. The petition further alleged the due assignment of the contract by the other party thereto to plaintiff, plaintiff’s per form-ance thereof, so far as it was permitted to perform by defendant performing its part, plaintiff’s willingness and ability to complete performance, and defendant’s failure to perform by failing to furnish part of the logs it agreed to furnish, with allegations of general- and particular damages. Held, that the petition stated a cause of action.</p> <p>12. Pleading- — Demurrer—Grounds.—Damages.-—That the petition in an action for breach of contract set up an improper measure of damages was not ground for demurrer.</p> <p>13. Damages — Special Damages. — Where special circumstances showing that the breach -of the contract will involve special damages are communicated to a party when the contract is made, such special damages may be recovered, though not the result of an ordinary breach.</p> <p>14. Damages — -Breach of Contract — Loss of Profits. — A contract by* which defendant sold and agreed to deliver logs to plaintiff was made with reference to. contemplated contracts thereafter to be made by plaintiff to sell to third parties, at certain agreed prices, the staves which they expected to manufacture from the logs purchased, and such contracts were known to defendant when it contracted to deliver the logs, and by his failure to do so plaintiff was compelled to violate the contracts made with such third parties, resulting in loss of profits which they would have made by performance thereof. Held, in an action for breach of defendant’s contract, that plaintiff could recover the profits he would have made upon his contract with third parties, in contemplation of which his contract with defendant was executed.</p>

<p>1. Pleading — Admissions by Demurrer. — On demurrer to an answer, its allegations are to be taken as true.</p> <p>2. Municipal Corporations — Street Improvements — Action foi Cost — Limitations.—Act April 19, 1890 (Acts 1889-90, c. 902), amending Lexington city charter, provides that the cost of of a street improvement shall be borne two-thirds by the owner of abutting property, and one-third by the city, unless he requests the adoption of the “10-year plan,” in which event he pays the whole cost in installments, for which the city issues bonds and pays interest thereon. Held, that in absence of request therefor, the adoption of such 10-year plan did not extend the limitation period beyond 5 years from completion and acceptance of the work, and the city’s cause of action under such act was barred in 5 years from its accrual, pursuant to Ky. St. 1903, section 2,515, barring in that time liability to pay for street improvements.</p> <p>3. Municipal Corporations — Cost of Street Improvements — Liability of Abutting Owners. — Under Acts 1894, c. 100, section 22, providing that second class cities may by ordinance provide for construction or reconstruction of streets, etc., but, when original construction is to be made with brick or other paving, it shall be only on petition of the owners of at least two-thirds of the front feet of property abutting on the improvement, the council could not order the original construction of a street with brick without a petition, and without a petition abutting owners are not liable thereunder for any part of the cost.</p> <p>4. Municipal Corporations — Second Class Cities— Statutory Provisions as to Government. — The Acts of 1894 for the ■government of second class cities superseded all other acts, and expressed the whole law on the subject, except as old acts were continued in force by its provisions.</p> <p>5. Municipal Corporations — Cost of Street Improvements — Liability of Abutting Owner.- — The Acts of 1894 for the government of second class cities provided that the repeal of any law thereby should not affect any right or liability acquired or accrued thereunder, that the act should not affect any right, lien, or liability accrued, established, or subsisting under and by virtue of previous charters, amendments thereto -or ordinances passed thereunder, and that it should not affect the right or liability acquired or accrued under previous charters, amendments thereto, or ordinances passed thereunder, on the part of the city or any person, etc. Held, that this continued old laws in force as to existing rights and liabilities, which were entirely unaffected, so that liabilities of abutting owners for the cost of a street improvement related back to the passage of an ordinance under Act April 19, 1890 (Acts 1889-90, c. 902), ordering the work done, and the rights of the parties must be determined thereby, and the provisions of the act of 1894 as how the assessment and payment of the cost of an improvement ¿nail be made do not apply to work which that act does not authorize the council to have done.</p>

<p>1. Criminal Law — Continuance—Absence of Witnesses. — Where, in a prosecution for carnally knowing a female under 16 years of age, defendant claimed that she was over 16 years of age at the time, .and that she appeared and looked as much like a woman when the act was committed as she did at the time of the trial, the court erred in refusing a continuance because of the absence of witnesses by whom defendant expected to prove that prosecutrix at the time of the trial was 21, and that she was over 16 when the alleged offense was committed.</p> <p>2. Indictment and Information — Carnal Knowledge — Use of Word “Unlawfully.” — Ky. St. section 1155, provides that whoever shall “unlawfully” carnally know a' female under 16 shall be confined, etc. Held, .that the word “unlawfully” was inserted to exempt carnal knowledge of a woman under 16 where the parties were husband and wife, and that, though an indictment under such section must charge that the intercourse was unlawful, it was not necessary that the word “unlawful” should be used in the accusatory part thereof.</p> <p>3. Rape — Carnal Knowledge — Unlawful Intercourse — Instructions. — Where, in a prosecution for unlawfully carnally knowing a female und'er 16 in violation of Ky. St. section 1155, accused admitted that at the time he had carnal knowledge of prosecutrix he was married to another wgman, the failure of the court to use the word “unlawfully” in its instructions was not errdr, since any intercourse between defendant and prosecutrix was unlawful.</p>

<p>CASE 53. — CONSOLIDATED ACTIONS BY P. J. MILLETT AND E. E. DUFFIELD AGAINST T. J. SWIFT.</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>From the judgment, Millett and E. E. Duffield appeal.</p>

<p>CASE 54. — ACTION BY J. L. CORNELISON’S ADMINISTRATOR AGAINST E. C. MILLION.</p> <p>Appeal from Madison Circnit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendant and plaintiff appeals.—</p>

<p>1. Injunction — Action on Injunction Bond — Res Judicata. — A surety on an injunction bond may not on the dissolution of the injunction relitigate the question involved in the injunction suit, but the judgment in that suit determines the rights of the parties, and is conclusive in an action on the bond.</p> <p>2. Injunction — Bonds—Liability of Surety. — A surety on a bond issued on obtaining an injunction restraining a person from cutting and removing the timber on a tract of land is not liable on the dissolution of the injunction for costs incurred by such person in reconstructing a tramway built to get the timber out, which was washed out by a freshet pending the injunction proceedings.</p> <p>3. Trial- — Instructions—Sufficiency.—An instruction which submits to the jury bo-th the law and the facts without giving them a criterion by which they are to be guided in the determination of the case is sufficient.</p> <p>4. Injunction — Bonds—Liability.—Where a person was delayed by an injunction in getting out timber on his land, and by reason thereof the timber became damaged from sap rot, worm holes, etc., he could on the dissolution of the injunction recover from the surety the difference between the value of the timber in the -damaged condition and what its value would have been in the condition -it would have been if there had been no delay by reason of the injunction.</p> <p>5. Injunction — Bonds—Liability—Attorney’s Pees. — A party su- . ing on an injunction bond may recover a reasonable fee for attorney’s services rendered in the proceedings for the dissolution of the injunction but nothing can be allowed for attorney’s fees for services in defense of the action, and, where the injunction was the relief sought and in fact gave the relief if sustained, an attorney’s fee cannot be recovered in an action on the injunction bond.</p> <p>6. Injunction — Bonds—Liability—Question for Jury. — In an action on an injunction bond, the question whether attorney’s fees may be recovered on the dissolution of the injunction is a question for the court, but the question of what is a reasonable fee is for the jury.</p> <p>7. Injunction — Bonds—Liability—Duty to Reduce Damage.— A party suing on an injunction bond may not recover any damages which he might have avoided by ordinary care, and he must use ordinary care pending the injunction, and no expense will be allowed unless it was reasonable and incurred in consequence of the injunction in the exercise oi ordinary care.</p>

<p>CASE 56. — ACTION BY LUCY BETTY AND HER GUARDIAN, R. M. JACKSON AGAINST LUCIE PETRIE AND ANOTHER.</p> <p>Appeal from Laurel Circuit Court.</p> <p>William Lewis, Circuit Judge.</p> <p>Judgment for defendants, plaintiffs appeal.</p>

<p>1. Injunction. — Trespass—Remedy by Ejectment. — Where defendant’s maintenance .of a fence on the right of way of plaintiff, railroad company did not materially interfere with the operation of the road, plaintiff was not entitled to relief by injunction! ejectment being its remedy if entitled to any relief.</p> <p>2. Quieting Title — Right of Action — Possession—Necessity.— Allegations of the petition that plaintiff was the owner and in possession of a described part of its right of way, except that defendant has obstructed a part thereof with fence which he claims and maintains and refuses w remove, show that defendant was in actual possession and had inclosed the land claimed, so that plaintiff could not maintain an action under Ky. St. section 11, authorizing one having both legal title and possession of land to institute an equitable suit against one having a claim against such land; that section requiring plaintiff to be the owner and in possession when the action is brought.</p> <p>3. Ejectment — Actions—-Petition — Allegations — -Deraignment of Title. — Under the code allegations of a petition in ejectment that plaintiff owns -the -land described and is entitled to immediate possession are sufficient, without showing how •he derives his 'title.</p> <p>4. Ejectment — Actions—Sufficiency of Petition — Description of Land. — Allegations of the petition in an action to recover land that the strip claimed is 800 feet in length and 33 feet wide, measured from a point in the center of plaintiff’s main track beginning at a line between defendant and ahother and ending at the line of a certain owner and running parallel with plaintiff’s main track, sufficiently described the tract claimed so as to identify it as required by Civ. Code Prac. section 125.</p>

<p>1. Licenses — Occupation Tax — Classification. — Municipalities may, by exacting licenses, tax persons in a particular business, where the business is so easily identified that a classification may be made that will separate it from other classes, and hence an ordinance exacting a license from merchandise brokers is valid.</p> <p>2. Licenses — Method of Imposition. — The imposition of license taxes based upon three theories is recognized as valid: First, a uniform tax upon all persons engaged in the same business, without reference to the amount of business done; second, the levy of a uniform tax on the volumé of business . done without increasing it in the proportion that the business increases; and, third, the division of a general class into separate classes, according to the volume of business done, and the imposition of a different tax upon each division into which the class is divided.</p> <p>C. Licenses — Occupation Tax — Validity of Ordinance. — An ordinance dividing those engaged in the business of merchan- . dise brokers into classes of those doing business amounting to not over $200,000, those doing business amounting to from $200,000 to $300,000, and those doing $300,000 worth or over, and grading the amount of the license accordingly at $25, $35, and $50, was not unreasonable, and not objec tionable for want of uniformity.</p>

<p>1. Negligence — “Negligent Acts” — What Constitutes. — If acts are such as an ordinarily prudent person would have committed under the same circumstances, they are not negligent.</p> <p>2. Carriers — -Death of Passenger — Comparative Negligence — • Question for Jury. — Gen. St. -Fla. 1906, section 3149, forbids recovery oí damages from a railroad company where the injury is caused by plaintiff’s negligence, hut provides that, if the complaint and the agents -of the company are both at fault, the former may recover, but the damages are diminished or increased by the jury in proportion to the amount of default attributable to him. Held, that such section established a rule of comparative negligence, and hence, in an action under the Florida statute for death of a passenger, it was proper not to direct a verdict for defendant because plaintiff’s intestate was riding on the platform of a moving car when be was killed, hut that it was proper to submit to the jury whether his act was negligence, and, if so, to compare it with the acts -of defendant’s servants who helped to produce the injury, making allowance in the verdict for so much of intestate’s negligence as may have helped to bring about his death.</p> <p>3. Carriers — Action for Death of Passenger — Evidence —Cause of Injury. — In an action for death of a railroad employe while riding as a passenger, evidence held to show that the prime cause of injury was the negligence of some one in charge of a loose locomotive, or who ought to have had it in proper repair-.</p> <p>4 Appeal and Error — Review—Harmless Error. — Where the prime cauáe of injury in an action for negligent death is clearly shown to be due to defendant’s negligence in a certain respect, error in submitting whether there was other negligence is harmless.</p> <p>5. Evidence — Presumptions—Laws of Other States — Common Law. — The common law is presumed to be in force in another state, unless the contrary is shown.</p> <p>6. Death — Destruction of Power to Earn 'Money — Damages— Instructions. — In an action to recover for the destruction of a ‘decedent’s power to earn money ,an instruction that, if the jury found for plaintiff, they should award him such sum, not exceeding the amount claimed in the petition, as they should believe from the evidence deceased would have accumulated during his natural life, taking into account his age, occupation, habits, health, mental and physical capacity, and probable net earnings, the sum total of all these elements to be reduced to a money value and its present worth to be given by the jury as damages, properly stated the elements ot recovery.</p>

<p>CASE 60. — ACTION BY ARTIE DUPREE BY JOE DUF'REE HER NEXT FRIEND, AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY.</p> <p>Appeal from Pulton Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Taxation — Listing Property' — 'Designation of Owners. — Where certain 'real estate had for years been listed for taxation to-the “Hatcher heirs,” and it was not shown that any other property was so listed, or that there were any other Hatcher ■heirs in the county than those owning -the property in question, the assessment sufficiently described the owners of the land; the rule being that an assessor is only required to so' list property as to enable the sheriff to identify it.</p> <p>2. Taxation — Tax Sale — Redemption—Notice.—Under ,Ky. St.. section 41|56, providing for the redemption of land sold for taxes, and declaring that, if the lands of a married woman, are not redeemed within five years from the reception of' notice to be given by the purchaser, the sale shall become absolute, a purchase of land, in which married women are! Interested, at a tax sale is invalid to confer title as to their interests until such notice has been given; but a failure to give the notice does not affect the purchaser’s title as to the undivided interests of others.</p> <p>3 Taxation — Tax Sales — Partial Invalidity — Improvements Where a sale of land for taxes was valid'as to certain undivided interests, and void as to others, the interests of those as • to whom the sale was void were chargeable ■ only with such expenses made by the tenant in possession as were necessary to preserve and protect the property, 'and charges on the land by operation of law, such as taxes, assessments for municipal improvements, etc.</p>

<p>1. Public Lands — Patents—’O'oaiclusivfeness—Collateral Attack. —If a patent is void because the Land Office had no jurisdiction to issue it, its validity may be collaterally attacked, but if it is void only because of fraud upon the commonwealth or the county court in issuing it, it must be attacked in a direct proceeding to vacate it.</p> <p>2. Public Lands — Grants—Remedies for Fraud — -Cancellation of Patent — Actions—Parties—State Auditor. — An action to annul a patent to public land as obtained by fraud is a transitory action, to which only the respective claimants are proper parties; the State Auditor not being a proper party, because he is custodian of the public records relating to land grants, he not being charged with fraud.</p> <p>G. Venue — Residence of Defendants — Effect of Misjoinder. — An action to cancel a patent for fraud being a transitory action, the F. county circuit court had no jurisdiction of parties who did not reside in and were not served in F. county; the only defendant residing therein not being a proper party.</p>

<p>CASE 63. — ACTION BY GILBERT SETSER’S ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>Appeal from Bell Circuit Court.</p> <p>"W. T. Davis, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Street Railroads — Actions for Injuries — Trial.—In an action against a street railroad company for injuries in a collision with plaintiffs carriage, there was evidence that the motorman served an apprenticeship of 15 days before being given a car, that he had served as motorman for about 4 1-2 months, and there was no evidence tending to show that this length of service did not qualify him to perform the duties of motorman, and the only evidence tending to show incompetency was evidence that he might have been negligent on the occasion of the accident. Held, that this evidence was not sufficient to show incompetency, and that the court did not err in refusing to submit to the jury the question of the moto man’s incompetency.</p> <p>2. Street Railroads — Actions for Injuries — Instructions.—Although plaintiff is guilty of contributory negligence, he may still recover if defendant knew, or by ordinary care could have known, of his peril in time to avoid the injury by ordinary care, and this liability should be plainly stated to the /ary, and an instruction, in an action against a street railroad company for injuries, that it was plaintiff’s duty to exercise ordinary care for his own safety in going upon defendant’s track, and that although the jury believed that the motorman failed in his duties or some one of them, yet if they believed that plaintiff failed to exercise ordinary care for his own safety, and such failure on his part so contributed to bring about his injury that but for such failure he would not have been injured, the law of the case was for defendant, followed by an instruction that if the jury believed that the motorman saw, or by ordinary care could have seen, that plaintiff’s carriage w.as on the track or was going on the track in front of his car and was in danger, and he saw, or by ordinary care could have seen, i^ far enough back of where the carriage was upon the track or was going upon the track by ordinary care to have stopped the car or arrested its motion, and thereby prevented the car from colliding with plaintiff’s carriage and injuring him, the law of the case was for plaintiff, does not properly present the doctrine of last clear chance; but the instructions should submit the two propositions so as to .show that one qualifies the other.</p>

<p>1. Alteration, of Instruments — Married Woman’s Deed — Change of Grantee. — Where, after the execution of a married woman’s deed, the name of the grantee was changed, without her knowledge and consent, and there was no re-signing and re-acknowledgment by her in the manner required by statute, the deed as to her was void.</p> <p>2. Estoppel — Married Woman. — A married woman.may, by her acts and declarations, estop herself to claim property when to permit her to do so would operate as a fraud.</p> <p>8. Estoppel — 'Married Woman — Evidence.—The • grantee in a married woman’s deed having been changed without her knowledge or consent, and the deed not having been re-executed and acknowledged, she was informed shortly thereafter of the fact that the new grantee had taken and paid for the land, and that the consideration had been used by her. husband in paying for a tract containing the land conveyed. She permitted the grantee to put the deed on record, the record failing to show that any alteration had been made, and permitted the new grantee to take possession and exercise acts of ownership over the land, and cn one occasion paid for timber cut therefrom by her agents by mistake. Held, that she was estopped to deny the validity of the deed. * '</p>

<p>case 66. — Action by Walter e. glover against the WESTERN UNION TELEGRAPH COMPANY.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p> <p>Ti-iomas R. Gordon, Judge.</p> <p>Judgment for plaintiff, defendant appeals.-</p>

<p>1. Master and Servant — Death of Servant — Coal Mine — Defective Roof. — Decedent, a driver in a mine, observing defective places in the roo'f, notified the inspector thereof, who directed a roofman to go to the place and remove any slate or rock that was likely to fall. Pursuant to such direction, the latter, with the assistance of decedent, went to the place, made an inspection, and removed the rock, which, from such inspection, appeared to be dangerous. Notwithstanding this inspection and removal, slate fell from the same place early on the succeeding morning as decedent was passing, and struck and killed him. Held, that the jury were authorized to find from the physical facts that the roofman had not made a proper inspection or had not removed all the dangerous material, and hence proof did not show defendant free from negligence as a matter of law.</p> <p>£■ Trial — Instructions.—Where, in an action for the death of a driver in a coal mine by the fall of material from the roof, the only defense was that defendant had exercised ordinary care to keep the mine in a reasonably safe condition, the jury should Re -instructed that if they believed from the evidence that defendant exercised ordinary care in making the inspection, and in maintaining the mine at the time decedent was killed in a reasonably safe condition, they should find for defendant, otherwise they should find for plaintiff.</p>

<p>1. Schools and School Districts — Proceedings to Establish— Order of Court — Fixing Boundaries of District — Sufficiency of •Order. — That the order of the county court for an election to determine whether the voters of the proposed district would vote an annual tax to maintain a graded school district set out the boundaries of the proposed district so as to clearly define them and directed the vote to be taken within such district was sufficient within Ky. St. section 4464, requiring such order to fix the boundaries of the proposed district, though the order did not expressly state that boundaries named therein were those of the district.</p> <p>2. Appeal and Error — Conclusiveness—Equity Cases. — The Su- _ preme Court gives considerable weight to the chancellor’s findings, where the evidence is conflicting.</p> <p>6. Time — Fraction of Day. — Where the term of office of a county school superintendent expired on the first Monday in January, she was the county superintendent on that day until her successor qualified; the law taking no account of fractions of a day.</p> <p>4 Schools and School Districts — Establishment—Approval by Superintendent. — If the petition to establish a commo-n graded school district is approved in good faith by the county 'Superintendent in office when it is approved and is therafter filed, there is a sufficient compliance with Ky. St. section 4464, requiring the proposition to establish such district to be approved in writing on the petition by the county superintendent of schools.</p> <p>5. -Schools and School Districts — Proceedings—Amendments to Petition — ¡Materiality.—Ky. St. section 4464, requiring the order of the county court for an election to determine ■whether the voters of a proposed school district would vote an annual tax to maintain it, to fix the boundaries of the proposed district, as agreed on by the county judge -and petitioners, permits 'a county judge to correct mistakes as to boundaries of the district and persons included therein, so that the correction by amendment of the petition for the district by'Including and excluding certain persons from its boundaries was immaterial, and did not affect the validity of the order; the county judge being authorized to enter the same order, though the petition had not been amended.</p> <p>6 Schools and School Districts — Proceedings to Establish— ■Statutory Provisions — -Compliance—Sufficiency.—Ky. St. section 4464, providing for the establishment of a common graded school district by petition, and requiring the county judge to order an election in the proposed district to determine whether the voters will vote an annual tax to maintain it, need only be substantially complied with.</p>

<p>CASE 69. — ACTION BY ERNEST JORDAN BY NEXT FRIEND &c., AGAINST THE W. M. RITTER LUMBER COMPANY.</p> <p>Appeal from Pike Circuit Court.</p> <p>A J. Kirk, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1 Monopolies — Restraint of Trade — Statutes—Complainant’s predecessor purchased ice plants and the output of ice of manufacturers in L. until it controlled all the ice manufactured for public use except 5 to 10 per cent., such absorption being accomplished by promoters, receiving for their services stock in the corporation, all being purchased under contract requiring their owners not to again engage in the ice bus! ness in the county for 10 years except for the corporation, without its consent. After this consolidation was accomplished, plaintiff ice company was organized, and purchased all the business and property of the consolidated company. ■Held that, though plaintiff did not raise the existing reasonable price of ice or attempt to control the output or price charged by the few remaining independent factories, the contract was part of a scheme to control the ice business in L. and was void as an unreasonable restraint of trade both under Ky. St. section 3915, prohibiting trusts and combines, and independent thereof.</p> <p>2. Monopolies — Restraint of Trade — Succession of Corporations. —Where a corporation created a monopoly of the ice business in L. by the amalgamation of practically all the ice plants in the city, and then all such property was conveyed to a new corporation organized as its successor composed largely of the same interests, the new corporation was not an innocent purchaser, and was therefore not entitled to enforce the monopolistic contracts of its predecessor on the theory that it was not guilty of any impropriety.</p> <p>3. Monopolies — Consolidation—Fixing Price. — Where contracts looking to the consolidation of ice manufacturing plants in L. were intended for the purpose of controlling the market and suppressing competition, it was immaterial to their invalidity that no effort was in fact made to control, raise, or fix the price of ice in that market.</p>

<p>1. Negligence—Sale of Dangerous Article Without Notice.—One who sells or delivers an article which he knows to be imminently dangerous to life or limb without giving notice of its dangerous qualities or condition is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there was any contractual relation between the parties or not.</p> <p>2. Negligence—Action for Injuries—Sufficiency of Evidence.— In an action against a car manufacturing company for injuries to a railroad brakeman from a defective brake staff, évidence of defendant’s negligence held sufficient to go to the jury.</p>

<p>1 Homicide — Evidence— Dying Declarations— Admissibility.— The declarations of decedent, voluntarily made while sane, when in articulo mortis and under the solemn conviction of approaching dissolution, concerning the circumstances constituting the res gestae, are admissible in evidence, provided decedent would be a competent witness if living.</p> <p>2 Homicide — Evidence— Dying Declarations— Admissibility.— After the assault on decedent, he was taken to an adjoining house, where after stating that he did not think he would get well, but expected to die, he detailed the circumstances of the tragedy, and claimed accused was the man who cut him. He kept his clothes on and subsequently wandered about the house, and also went to an adjoining house, where he stated in the presence of witnesses that the assault amounted only to a black eye, which would last for a few days, after which he was up and down during the day with his clothes on, and next morning went unassisted to the station to take the train to his home, where he himself called a doctor. Held, that his actions did not show that he did not expect to live, and his statement was not admissible as a dying declaration.</p> <p>3. Homicide — Dying Declarations — Danger and Imminence of Death. — Evidence was admissible to show that the wound inflicted was not calculated to endanger or destroy decedent’s life, and that he died solely from improper treatment.</p> <p>4. Criminal Law — Appeal—Review—Instructions.—Where there was evidence tending to show that accused was a somnambulist, and while in such state was without self-control, and committed acts of which he had no recollection, which facts would not constitute any defense other than that embraced in a plea of insanity, accused could not complain that he was given the benefit óf a charge submitting the question of his insanity.</p>

<p>1. Constitutional Law—“Due Process of Law.”—Due process of law in a criminal case is a trial according to the rules enacted by the Legislature or adopted by the courts for the prosecution of crimes, and, if there are special rules governing a trial of the particular crime with which accused is charged, then, in addition to 'the rules prescribed for the conduct of criminal prosecutions in general, he must be given the benefit of such additional rules.</p> <p>2. Constitutional Law—Due Process of Law—Pleas to Indictment.—Cr. Code Prac. section 154, provides that, before accused is put on his trial, he must plead. Field, that the purpose of the plea is to inform the jury of the issues which it is to try, and, while the indictment should be read to accused by the clerk before the jury is sworn and his plea entered, accused was not deprived of a trial by due process or law because he did not plead before the jury was sworn, and counsel for the state, after the jury was sworn, read the indictment to the jury in the presence and hearing of accused, and stated that accused’s plea was “not guilty” without objection of accused or his counsel; the jury in such case being apprised of the issue to be tried.</p> <p>3 Criminal. Law—Appeal—Prejudicial Errors.—Under Cr. -Code Prac. section 340, providing that a conviction shall be reversed for any error of law appearing on the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of accused have been prejudiced thereby, the converse also being true, if it appears from an examination of the record that the substantial rights of accused had not been prejudiced during the trial, the conviction should not be reversed, and the failure to call upon accused to plead or his failure to plead would not he ground •for reversal, where it appears from the record that an issue was in fact formed and tried out before the jury.</p>

<p>CASE 74. — ACTION BY ADELAIDE STEVENSON AGAINST CHARLES A. TANNER.</p> <p>Appeal from Clark Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant—Injuries to Servant—Competency of Eellow Servant—Knowledge of Master.—Plaintiff, an employe of defendant, was directed by defendant’s foreman to assist another servant in rolling a barrel of oil up a skid. While rolling the barrel, the other servant let his end of the barrel slip back, and plaintiff was injured by the throwing of the weight of the barrel upon him. Defendant knew that one of the hands of the other servant had been injured, and was still bandaged at the time of the injury to plaintiff. 'Held, that the question whether defendant knew, or could by ordinary care have known, of the incapacity of the other servant, was for the jury, and that the presumption as to his capacity arising from the fact that he was originally competent was rebutted by the knowledge of his subsequent injury.</p> <p>2 Master and Servant—Action for Injuries—Sufficiency of Evidence.—Evidence in an action for injuries to a servant held to sustain a finding of the jury that another servant who was assisting plaintiff, when he was injured, was incompetent, .and that the injury was caused by his incompetency.</p> <p>3 Master and Servant—Actions for Injuries—Instructions.—In an action by a servant for an injury received while rolling a barrel of oil up a skid, assisted by another servant, an instruction requested by defendant that the plaintiff assumed the risk incident to rolling the barrel up the incline with one other helper, and, if the jury should find that plaintiff was injured owing to the insufficient number of helpers, they should find for defendant, was properly refused, as the court had refused to authorize a recovery on the ground of insufficient help, and, having refused to present plaintiff’s side of the issue, defendant was not prejudiced by a failure to produce 'its side of the same issue.</p> <p>4. Trial — Actions for Injuries — Instructions.—Plaintiff was injured while assisting another servant to roll a barrel of oil up a skid by his assistant letting his end of the barrel slip back, throwing the entire weight of the barrel upon plaintiff. Some time previously the assistant had been injured, and at the time of the accident he still carried one of his hands in a bandage. The court instructed that, when defendant’s foreman directed plaintiff to roll the barrel up the skid, it was his duty to furnish an assistant who was able to help roll the barrel with reasonable safety to ■ plaintiff, and, if the jury believed frc-m the evidence that the assistant was not competent to perform the duties required because he had an injured hand, if such was the fact, and that defendant or'its officers or employes superior in their service to plaintiff knew or could have known by ordinary care that, because of his injured hand, the assistant was incapable of the service required, and plaintiff did not know that the assistant’s hand was in that condition, then the law is for plaintiff, and the jury should so find unless they further believe from the evidence that at the time plaintiff was himself negligent, and that such negligence helped to cause the injury, and that but for such negligence he would not have been injured. Held that while the first part of the instruction was objectionable for placing upon defendant the absolute duty to furnish plaintiff a competent assistant, the error was cured by the subsequent language used.</p> <p>5. Master and Servant — Actions for Injuries — Sufficiency of Instructions. — In an action for injuries to a servant caused by the alleged incompetency of an assistant, instructions held ■to fairly present the law of the cáse.</p> <p>6. Trial — Misconduct of Counsel — Questions to Witness. — In an ■action for injuries to a servant while helping to roll a barrel of oil up a skid, counsel for plaintiff in presenting the case to the jury stated that he would prove that the skid had been repaired shortly after the alleged injury, and, on objection to the statement by defendant’s counsel, the court held the statement incompetent. Thereafter, in trial of the case, plaintiff’s counsel asked a witness what change he made •in the skid after the accident. Held that, while the evidence was incompetent, counsel for plaintiff acted within his rights in asking the question, as a decision of the trial court is not final or conclusive as to the admission or rejection of testimony, and, in order to raise the question on appeal whether the court’s action was proper, it was proper to ask the question in order, if held incompetent, to take proper exceptions.</p> <p>7- 'Trial — Introduction of Evidence — Repeating Objectionable Questions. — Where a question has been asked of a witness and the evidence sought to be introduced is held to be inadmissible, counsel should not persist in asking, in the presence of the jury, the same question of every witness who is introduced, but should state to the court in the presence of the opposing counsel the fact that he wishes to ask the same question, ■ and should then make the same avowal, and have the transcript of the evidence show this fact.</p> <p>S Appeal and Error — Harmless Error — 'Examination of Witness, r — In an action for an injury to a servant while rolling a barrel of oil up a skid, the court sustained an objection to a statement by plaintiff’s counsel that he intended to show that the .skid had been repaired after the injury. In examining his witnesses, plaintiff’s counsel asked a witness what change he made in the skid after the accident and objection to it was sustained. Held, that defendant was not prejudiced by the repetition of the question to an’other witness where • the court did not authorize a recovery on the ground of the dangerous condition of the .skid.</p>

<p>CASE YG. — ELECTION CONTEST BETWEEN JOHN J. PACE AND ROBERT REED.</p> <p>Appeal from Magoffin Circuit Court.</p> <p>D. W. Gardner, Circuit Judge.</p> <p>Judgment for Reed, Pace- appeals.</p>

<p>CASE 77. — ACTION BY ELIZA B. CLINGER, ADMINISTRA-TRIX OF GEORGE M. CLINGER AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY.—</p> <p>Appeal from Mason Circuit Court.</p> <p>C. "W. Newell, Circuit Judge.</p> <p>Judgment of dismissal, plaintiff appeals.</p>

<p>1. Judgment — Default—Pleading.—A petition which alleges that defendants are indebted to plaintiff in- a specified sum, subject to a credit, for work performed for defendants at their special request, between designated dates, that plaintiff worked a specified number of days at -an agreed price per day, amounting to the specified sum, and that the same is due and unpaid, except the credit, states a cause of action against a defendant who does not appear, and a default judgment may be entered.</p> <p>2. Execution — Enforcement—Injunction.—Enforcement of execution on default judgment will not be enjoined on the ground that defendant did not attend court at the time the default was entered for fear that his enemies- would lie in wait for him and kill him, and that he did not know that plaintiff was claiming more than a specified sum, which was much less than the amount of the judgment, and that he be- . lieved that plaintiff was suing only for the less sum which was due, because of failure to exercise diligence to defend t'.:e case, and to know what was -in the petition filed against him.</p>

<p>CASE 79. — ACTION BETWEEN THE NICHOLSON COAL MINING COMPANY, AND GEORGE MOULDEN.</p> <p>Heard by Court of Appeals on motion to withdraw bill of exceptions.</p>

<p>CASE 80. — ACTION BY WILLIAM DAVIS’ADMINISTRATOR AGAINST THE CAPITAL GAS & ELECTRIC LIGHT COMPANY.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 81. — ACTION BY OSCAR MORGAN AGAINST THE LEXINGTON HERALD COMPANY.</p> <p>Appeal from Mason Circuit Court.</p> <p>C. D. Newell, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>CASE 82. — PETITION BY GROVER C. FISH IN COURT OP APPEALS AGAINST J. M. BENTON CIRCUIT JUDGE</p> <p>Petition beard in Court of Appeals</p>

<p>CASE 83. — ACTION BY CHARLES PATTERSON’S ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>Appeal from Bell Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>Wills — Revocation—Destruction—Incapacity of Testatrix. — In a suit to establish a will, destroyed by testatrix during her last illness, evidence held to sustain a finding that testatrix was of unsound mind when she destroyed the will, and that the destruction was also obtained by undue influence, and that the will, notwithstanding the destruction, remained her will, and was entitled to probate.</p>

<p>CASE 85. — MANDAMUS BY EDWARD BARRY AGAINST F. F. JAMES AUDITOR OF STATE.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant — Private Railroads — Liability of Employer. — The liability of a mining company for injury to an employe caused in the operation of a railroad in connection with the mine is governed by the rules applying to ordinary railroads.</p> <p>2. Master and Servant — Railroads—Employes Near Track — Employer’s Duty. — Employes in charge of a locomotive and cars were bound to keep a lookout for an employe working near the track, and to give reasonable warning of the approach by blowing the whistle and ringing the bell.</p> <p>3.‘ Master ana Servant — Railroads—Employes Near Track— Negligence — Duty.—An employe working near a railway track was bound to use ordinary care to discover an approaching locomotive, and get out of its way.</p> <p>4. Master and Servant — Railroads—Employe Near Track — Negligence — Jury Question. — In an action for injury to an employe struck by a train while at work near a track, whether the company was negligent held, under the evidence a jury question.</p> <p>5. Master and Servant — Railroads—Employe Near Track — 'Contributory Negligence — Jury Question. — In an action for injury to an employe struck by a train while at work near a track, whether plaintiff was guilty of contributory .negligence held, under the evidence, a question for the jury.</p> <p>6. Trial — Question for Jury — Instructions.— In an 'action against an employer for injury to an employe struck by moving cars, instructions that it was the engineer’s duty to use ordinary care to prevent injuring ■employes; that if the employes in charge of the engine and cars did not use such care, and plaintiff was injured while using ordinary care, he could recover a specified amount of damages; and that plaintiff was bound to use ordinary care for his own safety; and that, though the engineer was negligent, if but for plaintiff’s own negligence the injury would not have occurred, he couíd not recover — were improper, as being so general and abstract as to make the jury the judges of both the law and facts.</p> <p>7. Master and Servant — Railroads—Negligence.—An employer wds not negligent in failing to equip a coal car which struck an employe with a fender or pilot.</p> <p>8. Trial — Instructions—Duty of Court. — A trial court need give, such instructions only as are offered by the parties, but, if an instruction' offered is defective in form or substance, the court should prepare or direct the preparation of a proper instruction on the point attempted to be proved, and, when no instructions are requested, instructions given on the court’s own motion .must state the law correctly so far as they. go.</p> <p>9. Master and Servant — Railroads—Injury to Employe — Contributory Negligence. — An employe cannot recover for injury caused by being struck by a train, though the employes in charge 'of it failed to give reasonable warning of its approach, and failed to keep a reasonable lookout, if the injury ■would not have occurred but for the injured employe’s failure to use ordinary care to discover the train’s approach, and' to keep out of its way.</p> <p>10. Master and Servant — Railroads—Injured Employe — Liability. — If a reasonable lookout on a train was kept and reasonable warning of its approach was given, and an employe went upon the track so close to the approaching train that injury to him could not be avoided by the use of ordinary care by those in charge of the train after they perceived his peril, or could have perceived it in using ordinary care, the ■employer is not liable.</p> <p>11. Negligence — -“Reasonable or Ordinary Care.” — Reasonable or ordinary care is such care as an ordinarily prudent person will usually use under circumstances the same or similar to those* proven in a particular case.</p> <p>12. Damages — Personal Injury — Judgment—Elements.— An employe negligently injured is entitled to damages fairly compensating him for his mental or physical suffering, loss of time and permanent impairment of money-earning power proximately resulting from the injury, not exceeding the amount claimed in his petition.</p>

<p>CASE 87. — ACTION BY LOGAN 'COUNTY AND OTHERS AGAINST J. W. CLARK AND OTHERS.</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for plaintiffs and defendants appeal and plaintiffs prosecute a cross appeal.</p>

<p>CASE 88. — ACTION BY J. C. DILTZ EXECUTOR AND OTHERS AGAINST G. H. McKIBBEN.</p> <p>Appeal from Bracken Circuit Court.</p> <p>C. D. Newell, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p>

<p>1. Master and Servant — Duty to Warn Servant — Risks of Employment. — Plaintiff, a youth of 16 or 17, was employed as helper in 'the repair of tanks connected to locomotives, in which work large pieces of steel or iron which were riveted together were removed from the tanks by a man inside cutting them off after which the pieces were knocked off and 'allowed to fall to the ground, and, as plaintiff was coming around the end of one of the tanks which was being repaired, one of the metal plates so removed fell on his foot. Held, that the risks were incident to the dangerous work in which they were engaged, and that plaintiff was not entitled to recover on the ground that defendant should have stationed some one there to warn him of the danger of the falling metal, or that it was about to be knocked off.</p> <p>2. Master and Servant — Assumption of Risk. — The danger was incident to the method of 'the work, and the risk was assumed.</p>

<p>1. Action — Joinder—Death and Suffering of Deceased. — Action for one’s suffering cannot he joined with one for her death.</p> <p>2. Carriers — Delay in Delivering — Liability.—A carrier being informed, when a package was delivered to it for transportation, that it contained medicine for a sick girl, and that it was important .that it should be delivered without delay, it is unnecessary to recovery for suffering by her from delay in its delivery, that the order for the medicine made by her father and doctor, when in fact she was unconscious, should have been with her knowledge and -approval.</p>

<p>CASE 91. — PROCEEDING BY CECILIA .BARBER’S EX’RS TO PROBATE HER WILL IN WHICH AMELIA L. BALDWIN AND OTHERS APPEARED AS CONTESTANTS.</p> <p>Appeals from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for defendants and plaintiffs 'appeal.—</p>

<p>CASE 92— ACTION BY GEORGE W. WALTERS, TREASURER . CITY OF PADUCAH AGAINST JOHN J. DORIAN AND OTHERS</p> <p>Appeal from McCracken Circuit Court.</p> <p>T7. M. Seed, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>1. Criminal Law — Appeal—Harmless Error. — While a charge in an indictment of a railroad company for a nuisance that it suffered “its railroad bridge” to be and remain out of repair was a conclusion of law, and the indictment was technically defective in not charging- that the bridge was on its right of of way, it apprised defendant fully of the charge to be tried, which was the real purpose of the indictment, so that defendant was not prejudiced, especially where the jury were required to And that the bridge ,was on its right of way before it could convict.</p> <p>2 Railroads — Prosecution for Nuisance — Evidence.—In the prosecution of a railroad company for a nuisance in suffering a bridge on a street crossing to become and remain out of repair, uncontradicted evidence held to conclusively show that the bridge was a part of its right of way.</p> <p>3 Railroads — Indictment for Nuisance — 'Sufficiency.—In an indictment of a railroad company for allowing a bridge to remain out of repair “an unreasonable length of time,” the words quoted need 'not be used if the language used conveys the idea; and a charge 'that it was suffered to remain in such condition for a period of nearly six months is sufficient.</p> <p>4. Railroads — Bridge on Street Crossing — Liability to Maintain. —A town need not maintain a bridge on a street creasing a railroad, and it is immaterial that it built it or formerly maintained it, but this duty is imposed on the railroad company by Ky. St. section 7G8, and it is not excused because others voluntarily, or in ignorance of their rights, built and maintained it.</p>

<p>Appeal and Error — Manner of Taking Appeal — Statutes.—To' bring a judgment to the Court of Appeals for review under Civ. 'Code Prac. section 734, it is necessary that an appeal be prayed for either in the court below or in the Court of Appeals.</p>

<p>CASE 95: — ACTION BY S. A. CULBERTSON AGAINST THE CITY OF LOUISVILLE AND OTHERS.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>CASE 96. — INDICTMENT AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY FOR MAINTAINING A PUBLIC NUISANCE.</p> <p>Appeal from Ballard Circuit Court.</p> <p>R. J. Bugg, Circuit Judge.</p> <p>Prom a judgment overruling a demurrer to. its answer the Commonwealth appeals.</p>

<p>CASE 97. — ACTION BY THE COMMONWEALTH AND OTHERS AGAINST THE HILL TOP LAUNDRY COMPANY.—</p> <p>Appeal from Kenton Circuit Court (Criminal and Common Law Division).</p> <p>F. M. Tracy, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 98. — ACTION BY L. M. NEYAUS AGAINST DICKINSON BROS.</p> <p>Appeal from Barren Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>CASE 99. — ACTION BY CHARLES A. ROSS AGAINST THE CITY OP LOUISVILLE.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>William; H. Field, Judge.</p> <p>Judgment for plaintiff, defendant appeals.—</p>

<p>1. Officers — Fiscal Courts — Pay of Magistrates — Increase During Term. — 'Prior to 1902, Ky. St. section 1845, limited the pay of the magistrates who were members of the fiscal court to $3 a day for each day they were in attendance upon the court, and, as amended in 1902, (Laws 1902, c. 94), they were (excepting county judges) allowed pay for each day they were engaged in actual attendance at committee meetings. Ky. St. 1909, section 1749, subd. 1, provides that no ’'• officer shall receive any greater fee than is allowed by law, etc. Const, section 161, provides that the compensation of any state or county officer shall not be changed after his election or appointment. Held, that the amendment to section 1845 did not increase the pay for members of the fiscal courts (except county judges) who were elected prior to 1902, since the magistrates in acting upon the committees do not act as magistrates.</p> <p>2. Counties — Contracts—Individual Interest of Officers.' — Since the enactment of the amendment in 1902, it is competent for the fiscal court to elect one or more of its members as a committee to supervise 'the construction of public improvements, and to pay 'the members of such committee a per diem compensation, the purpose of such amendment being to create an exception to Ky. St. section 1844, providing that no member of the fiscal court shall be pecuniarily interested in any contract with the county, and to enable them to contract with themselves in this one particular.</p> <p>3. Officers — Contracts with Officers — Special Authority. — Inherently a public official cannot contract with himself on behalf of the public, unless he be specially authorized to do so.</p> <p>4. Counties — Fiscal Courts — Order Allowing Payment ot ■Claims — Validity.—Where a member of the fiscal court had received pay for attending to committee work, and no order of the fiscal court was made allowing him pay, until after suit was brought by a taxpayer to have the money- returned claiming the allowances were unauthorized by law, it was not illegal for the court to enter the order, since what it could have done before it had the power to do later.</p> <p>5. Costs — Fiscal Courts — Officers—-Action Against — Allowance of ■Costs. — Where, at the time an action was brought against a member of the fiscal court to recover money paid him for attending to committee work, no order of allowance of the fiscal court had been made, and, after demurrers to the answer were sustained, the fiscal court formally allowed the claim, the plaintiff’s cause of action when it was brought was technically good, and he was entitled to costs up to the time of the filing of 'the amended answer setting up the valid allowance of the claim.</p>

<p>CASE 101. — ACTION BY JOHN S. LARUE AGAINST THE PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY OP NEW YORK.</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. "W. Henson, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Wills — Probate—Contests—Evidence.—A verdict on conflicting evidence and supported by evidence that a will was procured by undue influence will not be disturbed on appeal.</p> <p>2 Evidence — -Admissions—By Person Interested in Will.— Declarations by a devisee in a will contested on the ground of undue influence, which show that the will was largely written through his influence, are admissible because against interest.</p> <p>3. Evidence — Admissions—By Person Interested in Will. — Letters written by a son receiving a substantial gift under his -mother’s will contested on the ground of undue influence to a son receiving only a nominal bequest are admissible to show the relation of the parties, -and to prove admissions made therein against interest.</p> <p>4. Wills — -Contests—Undue Influence — Evidence—Admissibility. ■ — In proceedings to contest a will on the ground of undue influence, the evidence is allowed to take a wide range, and every fact throwing light on the issue is admissible.</p> <p>5. Wills — Contests— Testamentary -Capacity— Evidence — Admissibility. — In proceedings to probate a will contested on the ground of mental incapacity, the evidence is allowed to take a wide range, and every fact throwing light on the issue is admissible.</p> <p>6. Wills — Contests— Evidence —Admissibility.—In proceedings to contest the probate of a will on the ground of undue infiuence and testamentary incapacity, a deposition given by testatrix in favor of the son charged with undue influence in an action at law between him and a son disinherited by the will is admissible tr ?Low the mental condition of testatrix and the fact of her friendliness 'toward the former son.</p>

<p>CASE 103. — ACTION BY HARRIET P. WEIR AND ANOTHER AGAINST ALICE C. WEIR.</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Prom a judgment of dismissal, plaintiffs appeal.—</p>

<p>CASE 104. — ACTION BY LOUISVILLE DRY GOODS COMPANY AGAINST J. W. LANHAM AND OTHERS.</p> <p>Appeal from Mercer Circuit Court.</p> <p>M. C. Saufley, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.</p>

<p>CASE 105. — PROCEEDINGS BY THE CITY OP PARIS AGAINST THE METROPOLITAN LIFE INSURANCE COMPANY FOR DOING BUSINESS IN SAID CITY WITHOUT PAYING A CITY LICENSE.</p> <p>Appeal from Bonrbon Circuit Court.</p> <p>E. L. Stout, Circuit Judge.</p> <p>Defendant fined in the city court and appealed to the circuit court which rendered the same fine and in the appellate court the judgment is affirmed.</p>

<p>1. Constitutional Law — Personal Liberty — Enjoyment of Propel ty. — Any law which seeks arbitrarily to deprive a domestic cm poration organized under Ky. St. sections 879-883, to establis and maintain an industrial school for colored people, of th right to use its property in any way it sees fit within ii chartered powers not inimical to the public welfare, is viol itive of Const. Bill of Rights, sections 1, 2, 26, guaranteeii ■the inalienable rights of men to enjoy their liberties, and acquire and protect property, etc.</p> <p>2. Schools and School Districts — Establishment of Schools — E lice Power. — A statute which prohibits or which authorizes the voters of a precinct to prohibit the establishment of an industrial school where farming or any other trade is taught cannot be sustained as an exercise of the police power, since education is promotive of the public welfare.</p> <p>3. Schools and School Districts — Regulation of Schools — Police Power. — The legislature under the police power may regulate education in many respects, and it may prohibit the mingling of white and colored children in the same schools, or in schools of immediate proximity.</p> <p>4 . Corporations — Charters—Amendments.—A statute making it unlawful for a corporation to operate an industrial school without first obtaining the consent of the majority of the voters in the precinct where the school is proposed to he operated cannot be sustained, as an amendment to the charter of a corporation organized under Ky. 'St. sections 879-883, to establish and maintain an industrial school for ■the colored people of the state.</p> <p>5. Statutes — Local Laws — Classification.—A statute making it unlawful to maintain an industrial school without first obtaining the consent of the majority of the voters in the precinct where the school is to he maintained, but exempting from its provisions cities of the first, second, third, and fourth classes, is violative of Const. - section 60, prohibiting local laws.</p> <p>6. Constitutional Law — Delegation of Legislative Power. — The statute making it unlawful to maintain an industrial school without the consent of the majority of the voters in the precinct where the school is to he maintained makes the establishment of an industrial school by a corporation organized under Ky. St. sections 879-883, to maintain schools for colored people, to depend on the votes of the citizens of the precinct, where the school is proposed to be established, and is violative of Const, section 60, prohibiting the enactment of the laws to take -effect -on the approval of any other authority than the legislature.</p>

<p>CASE 107. — ACTION BY NANCY E. BEAMS AGAINST DREW BEAMS</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 108 — ACTION BY MARY McNALLY BY HER NEXT FRIEND AGAINST THE GRAY-MEEK PAPER BOX COMPANY.</p> <p>Appeal from Jefferson Circnit Court (Common Pleas Branch, Second Division).</p> <p>Thomas R. Gordon, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>Taxation— Situs of Property — Statutes —Constitutionality. ■— Const, section 172, provides 'that all property not exempt from taxation by the Constitution shall be assessed at its fair cash value -and Ky. St. section 4020, declares that all personal estate of domestic corporations, whether in or out of the state, including intangible property, shall be subject to taxation unless -exempt. Held, that section 4020 was unconstitutional in so far as it attempted to tax in Kentucky property of a Kentucky corporation whether tangible or intangible the situs of which was wholly in Cuba and Porto Rico, where all the corporation business was transacted.</p>

<p>CASE 110. — ACTION BY THE AULTMAN & TAYLOR MACHINERY COMPANY AGAINST J. W. WALKER AND ANOTHER</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>From a judgment for partial relief, plaintiff appeals.</p>

<p>CASE 111. — ACTION BY ELSIE BRIGGS GETTYS AGAINST JOHN A. CARTER’S TRUSTEE.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>From the judgment defendant appeals.</p>

<p>Homicide — Instructions—Insanity—“Satisfied.”—In a prosecution for homicide, a.n instruction on insanity recited that although the jury might believe from the evidence, to the exclusion of a reasonable doubt that defendant shot and killed deceased, •yet, if they were “satisfied” from the evidence that at the time of the «hooting defendant was suffering from mental disease, and because thereof he did not know right from wrong, etc., then -they should acquit. The only other instructions given related to murder, manslaughter, and reasonable doubt. Held, that the instruction was erroneous, in the use of the word “satisfied,” as requiring of accused too high a degree of proof, and placing the burden of establishing insanity by a preponderance of the evidence on him.</p>