Volume 139 — Kentucky Reports

<p>CASE 1. — ACTIOÑ BY BOYLE G. BOYLE AND WIFE AGAINST THE CITIZENS LIFE INSURANCE COMPANY.</p> <p>Appeal from Jefferson Circuit Court (Chancery 'Brandi, Second Division).</p> <p>Samuel B. ICxrby, Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p>

<p>Taxation — Void Taxes — Payment—Recovery.—Where plaintiff voltarily paid taxes illegally assessed against her, that she might receive a rebate, and before any steps had been taken to enforce collection she could not recover them.</p>

<p>CASE 3. — PROSECUTION BY INDICTMENT AGAINST THE UNITED STATES FIDELITY & GUARANTY COMPANY FOR FAILING TO PAY A LICENSE TAX.</p> <p>Appeal from Mason Circuit Court.</p> <p>C. D. Newell, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>CASE 4. — ACTION BY MARTIN HIBBITT AGAINST "THE LOUISVILLE RAILWAY COMPANY.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division). -</p> <p>Thomas R. Gordon, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant — Injuries to Servant — .Fellow Servants— Street Railway Motorman. — Motormen of colliding cars of a street railway system, though employed by the same company, are not fellow servants so as to preclude a recovery for . injuries to one by the negligence of the other.</p> <p>2 Master and Servant — Injuries to Servant — Fellow-Servant Rule. — In Kentucky there are two exceptions to the rule that all employes of a common master engaged' in a common pursuit are fellow servants, viz., where a servant is injured by the gross negligence of another servant superior in authority to him, and where he is injured by the negligence of another servant in a different department or grade of employment.</p> <p>3. Master and Servant — Death of Servant — Street Railway Collision — Contributory Negligence. — M., a street railway motorman operating a car ahead of that operated by decedent, left the car barn on time at 6:10 a. m., on the morning of the accident. After proceeding-1,300 feet from the barn at about 8 miles an hour, he discovered he had forgotten his fare box and started to return to the barn to procure it, having been out 3 1-2 minutes. Decedent’s car was not due to leave the ■ car barn until 6:17, but decedent on going to the barn discovered that M. had left his box, and so he took the box and started to deliver it -to M. at a point where he expected to meet -him at 6:17. There was a heavy' fog, and M. reached the point of collision not later than 6:14 1-2 a. m.; the cars coming together with great force and so injuring decedent, that lie died. Held that, notwithstanding his negligence, de: cedent was also negligent in leaving the barn ahead oí his scheduled time, and hence there could be no recovery for his death.</p>

<p>CASE 6. — ACTION BY JAMES SMITH AGAINST W. E. FIELDS.</p> <p>Appeal from Fleming Circuit Court.</p> <p>C. D. Newell, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Bridges — Establishment—Duty of Public Officers. — The fiscal court could not delegate to others its discretion to determine, the necessity for bridges nor the location or cost thereof, though bound to appoint a commissioner .to supervise the erection.</p> <p>2. Evidence — Parol Evidence Affecting Writing- — Records of Fiscal Court. — The fiscal court of a county, being a court of record, must speak by its records; parol evidence not being-proper to show action not shown by the records or to show -t-hait action was not taken as shown by the records, and being proper only where parol evidence would be proper to aid a will, deed, or other record.</p> <p>3. Evidence — Documentary Records of Fiscal Court — Entire Record. — The records of a fiscal court are an entirety, anu may be read together.</p> <p>4. Bridges — Acceptance—Evidence—Sufficiency.—Orders of a fiscal court directing special commissioners to pay for bridges erected by them, a warrant issued for their payment, and a settlement with the sheriff approved by such court by which he is credited with the warrant sufficiently show acceptance of the bridges by the county and appropriation to pay for them.</p>

<p>CASE 8. — ACTION BETWEEN CORINTHIA G. PLATT’S EXECUTOR AND OTHERS AND EDWARD G. LOCKE AND OTHERS.</p> <p>Appeal and cross appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>From the judgment for the latter the former appeal and the latter cross appeals.</p>

<p>1. Limitation lof Actions — Written Contracts — Assignment of Lease — Liability of Assignee. — A railroad leased its road and appurtenances, and at the same time executed to the lessee a mortgage on all its property and franchises to secure its bonds, 'and the lessee as a part of the arrangement agreed to apply the net -earnings from the leased road to the payment, of the interest on the bonds and for a sinking fund for their redemption, and executed to the bondholders a mortgage on the earnings. Subsequently the lessee sold its line of road and as a part thereof transferred the lease. The purchaser signed an instrument reciting the sale of the lessee’s road and franchises including the lease obtained by it. Held, that the purchaser by accepting the lease bound itself in writing to perform the conditions thereof, and « assumed •the obligation to apply the earnings of the leased road for the payment of interest on the bonds and for a sinking fund, and the right to enforce it would be barred only by the 1’5-year statute of limitations, and not by the 5-year statute (Ky. St. .section 2515), applicable to actions on contracts, not in writing signed by the party.</p> <p>2. Landlord and Tenant — Assignment of Lease — Obligation of Assignee. — Where the lessee in a written lease of land • assigns the lease to another, who accepts in writing the assignment, the latter executes a contract in writing binding him to perform the Conditions of the lease, though in the writing there is no mention of the obligations assumed.</p>

<p>CASE .10. — ACTIONS BY THE COMMONWEALTH FOR THE USE OF M. C. VANDIVER AND OTHERS, W. ,C. WULFF & CO., AND ANOTHER, JOSEPH ELIAS AND OTHERS, AHRENS & OTT MANUFACTURING COMPANY AND THE CARROLLTON BRICK COMPANY AGAINST THE FEDERAL UNION SURETY COMPANY.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for the use of plaintiff in each case, and defendant appeals.</p>

<p>CASE XI. — ACTION BY THE PREDESTINARIAN BAPTIST CHURCH AGAINST . THE UNITED BAPTIST CHURCH.</p> <p>Appeal from Madison Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>From a judgment for defendant plaintiff appeals.</p>

<p>CASE 12. — ACTION BT ELMER C. UNDERWOOD AGAINST S. M. WILHITE AND OTHERS.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>"Walter P. Lincoln, Ju$ge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>CASE 13. — ACTION BY GEORGE F. BUSCHEMEYER AGAINST GEORGIA KLEIN AND OTHERS.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Prom the judgment both parties appeal.</p>

<p>CASE 14. — ACTION BY THE COMMONWEALTH OF KENTUCKY ON TI-IE RELATION OF THE SHERIFF OF WOODFORD COUNTY AGAINST MORRIS S. GREENBAÜM AND OTHERS.</p> <p>Appeal from Woodford Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>From the judgment the commonwealth appeals.</p>

<p>CASE 15. — ACTION BY PATRICK FLAHERTY AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY.</p> <p>Appeal from Henderson Circuit Court.</p> <p>J. W. Henson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Telegraphs and Telephones — Contracts— Termination —Notice. — Where a telephone company sues another telephone company for breach of contract providing for the physical ■ connection of their lines in a city to continue until 30 days after notice to terminate the agreement, an answer alleg ing that the latter company has only a license to maintain its system in the city, and that the city has revoked it, is a notice to terminate the contract, and no damages are recoverable after 30 days from the filing of the answer.</p> <p>2. Contracts — Validity—Illegality.—A contract between a telephone company having only a license to maintain its system in the streets of a city and another telephone company •for a physical connection of their lines at such city to continue until 30 days after notice to terminate the agreement is not illegal.</p> <p>3. Contracts — Discharge by Imposibility of Performance. — The contract is binding, though the city revokes the license, and" thus renders performance impossible.</p> <p>4. Corporations — Contracts—Liability o£ Stockholder. — A corporation owning all the stock of another corporation is not liable for a breach by the latter corporation of its contracts; a stockholder not being liable for the obligations of the corporation.</p>

<p>CASE 17. — ACTION BY WALTER RANDOLPH’S ADMINISTRATOR AGAINST S. B. SNYDER</p> <p>Appeal from Whitley Circuit Court.</p> <p>W. T. Davis, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>1. Courts — Court of Appeals — Jurisdiction.— Franchise. —Under Ky. St. section 950, providing that no appeal shall be taken to the Court of Appeals from a judgment for recovery of money or personal property if the value in controversy be less than $200, exclusive of interest and costs, no appeal could be taken to the Court of Appeals from a judgment for defendant in am action to recover less than $100 boom fees for catching defendant’s timber, though the action incidentally involved plaintiff’s alleged franchise- to maintain and operate the boom.</p> <p>2. Judgment — Res Judicata. — An unappealable judgment of a trial court in an action to recover boom fees that plaintiff had no franchise to operate the boom, nor authority to charge fees for catching timber floating down the stream, did not deprive plaintiff of its'franchise II it had one in fact, ncr was the judgment binding except on the parties and with reference to the subject-matter of the particular suit.</p>

<p>CASE 19. — PROSECUTION AGAINST JOHN HENSON FOR MURDER</p> <p>Appeal from Knox Circuit Court.</p> <p>William Lewis, Circuit Judge.</p> <p>Defendant convicted and appeals.</p>

<p>CASE 20. — ACTION BY HENRY J. STREET’S ADMINISTRA-TRIX AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>Appeal from Hardin Circuit Court.</p> <p>W. S. Chelb, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Constitutional Law — Departments of Government — Judicial Power. — The arrangement of the sessions of the circuit court in a judicial district so as to give each county its constitutional session of court is a matter for the Legislature, and not for the courts; they only having power to pass upon the validity of the statute enacted for that purpose.</p> <p>2. Statutes — Construction—Certainty.—The act approved March 21,1904 (Acts 1904, c. 51, sec. 4),-provided that in the Twenty-Fourth judicial district court should be held in P. county for 3 terms of 24 juridical days each, commencing on .the first Monday in February, May, and October, in J. county for 3 terms of 24 days each, commencing on the first Monday succeeding the termination of the P. county term, 'and in M. county for 3 terms of 24 days each, commencing the first Monday following the ■,termination of the J. county term. Line 3 of paragraph 2 of the section related to the number of court days in F. county, line 8 -to the number of days in M. county, and line 6 in paragraph 3, gave F. county, which was in the Thirty-First district, a term of 18 days. The act was amended at the last legislative session by section 1 of the amending act, providing that it should be amended by striking the word “twenty-four” in the third line of paragraph 2, and substituting therefor the word “thirty-six” and by striking the word “twenty-four” in line 8 of .paragraph 2 and substituting the word “eighteen,” and by striking the word “eighteen” in line 6 of paragraph 3, and substituting therefor the word “twenty-four,” so that .the paragraphs should read as follows: “Sec. 2, Twenty-Fourth district, P. county, on the third Monday in February, April and September and. continue forty-two juridical days each term; J. county on the first Monday succeeding the termination of .the P. county term and to continue twenty-four juridical days; M. county on the first Monday succeeding’ the J. terms and to continue twelve juridical days each term.” “Sec. 3 of the amending act gave F. county three terms of twenty-four juridical days each.” Held, that, while the court sessions could he arranged so as to give P. county 3 terms of 42 days, J. county 3 terms of 24 days each, 'and M. county 3 terms of 18 days each, the amending act had failed to do so, and had not left sufficient time between P. county terms to hold the terms required by law for other counties, so that it was v'oid for uncertainty as to length of the term for P. and J. counties.</p> <p>3. Courts — Terms—Statutes.—The amending act was also void for depriving M. county of one of its constitutional terms or court contrary to Const, section 131, giving each county three terms of court.</p>

<p>CASE 22. — ACTION BY GEORGE LOGAN AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY AND OTHERS.</p> <p>Appeal from Jessamine Circuit Court.</p> <p>J. M. Benton, Circuit Judge.</p> <p>Judgment for defendants on a directed verdict, plaintiff: appeals.</p>

<p>1. Municipal Corporations — legislative Control — Appointment of Officers. — A statute providing for the appointment By the circuit judges having jurisdiction in cities of the first class of a bond recorder for such cities, who shall possess the qualifications of county clerks and be subject to the laws regulating them, and who shall have the exclusive right to take appearance bonds of persons arrested in the city, for which he is appointed, does not provide fo-r an officer of cities of the first class but creates an office 'Of the state for the discharge of duties having no relation to the city 'government, and the statute is not invalid because it provides for his appointment by the circuit judges.</p> <p>2. Justices of the Peace — Pees—Statutes.—A statute modifying ■the act providing for fees of justices of the peace containing the words “Por presiding at trial for breach of the peace, $2,” by inserting in lieu of the quoted clause the words, “For presiding at final trial in misdemeanor cases, $2,” does not change the law, -and 'a justice -of the peace is entitled to $2 for presiding at the trial of a breach of the peace which is a misdemeanor.</p> <p>3. Statutes — Amendment of Amended Act. — A statute amending the justices’ act and creating the office of bond recorder in cities of the first class, providing that the bond recorder shall have the exclusive right to take appearance bonds of persons arrested in the city for which he is appointed and shall receive the same compensation “as now allowed by law to justices of the peace in trials for breach of the peace,” enacted after the Legislature had modified the act providing for fees of justices of the peace by fixing a fee of $2 for presiding at final trial in misdemeanor cases, instead of a fee of $2 for presiding at trial for breach of the peace is effective to fix the fees of -the bond recorder at $2 for each bond taken by him.</p> <p>4. Statutes — Special Laws — Classification of Cities — Fees—Statutes — Validity.—A statute, creating the office of bond recorder in cities of -the first class, authorizing the bond recorder to take the appearance bond of any person arrested in the city in which he is appointed, and charge $2 therefor, and requiring him to keep a record of bonds taken and to keep his office open at all hours to take bonds, is not in conflict with the Constitution merely because the fee fixed for taking bonds in cities of the first class is different from the fee fixed for similar service in other parts of the state, because the classification is reasonable.</p> <p>5. Constitutional Law — ■ Statutes — ■ Validity — ■ Legislative Questions. — The questions as to how the criminal laws may be best executed and as to how a criminal may be best detected and punished are within the discretion of the Legislature, and the courts will not determine the wisdom of the means provided.</p>

<p>1. Judges — Special Judges — Statutes—Validity.—A statute authorizing regular circuit court judges to sit as special judges when the regular circuit judges fail to attend or' cannot preside is not violative of Const, section 165, forbidding the holding of incompatible offices, since the duties of a special judge are not incompatible with those of a regular judge.</p> <p>2. Officers — Compensation— Constitutional Provisions— Mandatory Nature. — Const, section 235, providing that the salaries of public officers shall not be changed during the terms for which they are elected, is mandatory and cannot be abrogated or minimized, and a statute evading the provision is invalid.</p> <p>3. Judges — Duties—Salary.—Under Const, sections 125, 126, 128-130, providing for a circuit court in each county with • jurisdiction as established, subject to change by the Legislature, for the establishment of judicial circuits, and for the election and qualification of circuit judges, a circuit judge must without additional salary discharge the duties growing out of the jurisdiction of the court though the jurisdiction is increased during his term, but there may be duties imposed on the circuit judge as an individual which do not belong to the jurisdiction of the court, and when that is done additional compensation may be provided for.</p> <p>4. Judges — Special Judges — Salary.—A statute authorizing regular circuit court judges to sit as special judges when the regular circuit judges fail to attend or cannot preside, enacted under Const, section 136, empowering the Legislature to provide for holding circuit courts when the judge fails to attend or cannot preside, imposes on regular judges the duties of a special judge which are not a part of the duties of a regular judge, and the statute may provide compensation to regular judges for discharging such duties notwithstanding section 235, providing that the salaries of public officers shall not be changed during their terms of office.</p> <p>5. Constitutional Law — Judicial Powers — Motive or Wisdom of Law. — The court in deterniining the constitutionality of a statute may not consider the wisdom or unwisdom of the statute, and the Legislature having power to adopt a statute must determine the propriety of so doing.</p>

<p>Animals — Killing Dogs — Liability.—Ky. St. section 68a, subsec. 6, enacted in 1906,-making any dog returned for taxation and on which the tax is paid when due property entitled to the protection of live stock, and authorizing the owner to sue for the killing or Injuring of such dog contrary to law, and repealing conflicting laws, does not repeal section CS, Ky. St. enacted in 1865, making it lawful for any person to'kill any dog roaming o-n. his premises, and a dog listed for taxation and on which the tax has been paid has the protection 'accorded to live stock except as provided in section 68.</p>

<p>CASE 26. — APPEAL BY J. A. EDGE PROM A CONVICTION POR CONTEMPT OP COURT.</p> <p>Appeal from Scott Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Defendant appeals.</p>

<p>CASE 27. — ACTION BY FILLMORE TYSON AGAINST THE BOARD OF TRUSTEES OF THE FIREMEN’S PEN SION FUND OF THE CITY OF LOUISVILLE</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>"Walter P. Lincoln, Judge.</p> <p>From the judgment plaintiff appeals.</p>

<p>CASE 28. — ACTION FOR THE SETTLEMENT OF THE ESTATE OF 'WILLIAM SCHLICKMAN, DECEASED IN WHICH THE CITIZENS NATIONAL BANK OF COVINGTON PRESENTED A CLAIM.</p> <p>Appeal from Kenton Circuit Conrt (Common Law and Equity Division).</p> <p>M. L. Habeeson, Judge.</p> <p>Prom the judgment the administrators of William Schlickman appeal.</p>

<p>1. Assignments for Benefit of Creditors — Acts Constituting. — A real estate mortgage to secure a debt simultaneously created by the loan of money to the mortgagor, was executed in good faith, and not in contemplation of insolvency nor with a design to prefer a creditor. It was lodged for record, but not recorded. The mortgagor requested that it should not be recorded, and the mortgagee stated to the clei^that he must ■take his own course. Within 30 days the debt was paid by tbe mortgagor procuring money elsewhere and the mortgage by order of the mortgagee was surrendered. Held, that the mortgage was not within Ky. St. section 1910, making a mortgage by a ' debtor, in contemplation of insolvency, an assignment for .the benefit of creditors, etc.</p> <p>2. Assignments for Benefit of Creditors — Constructive Assignment — Acts Constituting. — A chattel mortgage given to secure money simultaneously furnished by the mortgagee is not within* Ky. St. section 1910, though not recorded within 30 days.</p> <p>3. Assignments for Benefit of Creditors — Constructive Assignment — Acts Constituting “Payment in Contemplation of Insolvency.” — A payment by an insolvent debtor in the usual course of his business to maintain his credit, preserve his estate, and carry on his business, without any intent to prpfer one creditor to another, is not a payment in contemplation of insolvency, and with a design to prefer a creditor within Ky. St. section 1910.</p> <p>4. Assignments for Benefit of Creditors — Constructive Assignment — Acts Constituting. — A devisee, given the option to purchase the interest of a codevisee for $8,000, exercised the option and paid the codevisee the money, borrowing from a-.bank $2,120 therefor. The codevisee, pursuant to an arrangement between the devisee and the bank, conveyed her interest to the bank to secure that sum and other sums that might be advanced by it to the devisee. Several years later the devisee paid the bank the $2,120 and interest, and $300 advanced by the bank. The devisee during the period of ■these transactions was heavily involved. Held, that the deed to the bank was not within Ky. St. section 1910, making a conveyance by a debtor in ^contemplation of insolvency and with the design to prefer a creditor, an assignment for the benefit of creditors; and the failure to record the deed within 30 days was immaterial, since the transaction between the bank and the devisee was merely a lending of money on security, and since there was no record title in the devisee, whose only right was the right to redeem.</p> <p>5. Assignments for Benefit of Creditors — Constructive Assignment — Acts Constituting. — A debtor borrowed $13,000 and executed a mortgage for $15,000 to secure that sum and $2,-000 due the mortgagee. The mortgage was not recorded because the parties expected the execution of a larger mortgage to secure additional loans. The execution of the larger mortgage was delayed by the death of a creditor. There was nothing to show an intention of the debtor to prefer any creditor, but only an effort of a struggling debtor to maintain bis credit and preserve bis estate. Held, that the transaction was not in contemplation of insolvency with a design to prefer a creditor within Ky. St. section 1910, and the mortgage was valid.</p> <p>6. Assignments for Benefit of Creditors — Constructive Assignment — Acts Constituting — Presumptions.—Where an insolvent debtor makes a transfer to a creditor with knowledge that he is insolvent, the design to prefer such creditor within Ky. St. section 1910, is presumed, unless the attending circumstances show the contrary.</p> <p>7. Assignments for Benefit of Creditors — Constructive Assignments — Acts Constituting. — The purpose of Ky. St. section 1910, making every -transfer by a debtor in contemplation of insolvency and with a design to prefer a creditor an assignment for the benefit of creditors, etc., is to secure equality between creditors and when a preference is in fact given, the debtor is held to have intended it, and the act 'is within the statute.</p> <p>S. Assignments for Benefit of Creditors — Constructive Assignments — Acts Constituting. — A debtor in fact insolvent, but believing himself solvent, executed a mortgage whereby he secured a bank company managed by a third person, who was a friend, and whereby he paid off creditors whom the third person had represented in lending their money. Practically all the property of the debtor was mortgaged and about half of his creditors were unprovided for. The mortgage included $13,000 which the mortgagee had previously furnished and which was secured by a valid prior mortgage. Held, that the mortgage and payments subsequently made thereunder, including the payment of a debt included in the prior mortgage, were within Ky. St. section 1910, making every transfer by a debtor in contemplation of insolvency with the design to prefer creditors, an assignment for the benefit of creditors, except as to the $13,000 secured by the prior mortgage, and as to that, it was valid.</p> <p>9. Assignments for Benefit of Creditors — Constructive Assignments — Acts Constituting. — A payment by an insolvent debtor of a debt by borrowing money from a third person secured by notes which the debtor held, and a payment to a creditor by delivering to him a check which was paid after the debtor’s death, are payments by an insolvent with a design to prefer a creditor within Ky. St. section 1910.</p> <p>10. Assignments for BeneCt of CreSitors — Constructive Assignments — Acts Constituting. — The pledging by an insolvent of collateral notes to a bank to secure a debt created simultaneously is not a transfer by an Insolvent with a design to prefer a creditor within Ky. St. section 1910, and the transaction is • valid.</p>

<p>CASE 30. — DEATH ACTION BY EDWARD J. LONG’S ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE RAILROAD COMPANY.</p> <p>Appeal from Kenton Circuit Court, Law & Equity Division.</p> <p>M. L. Harbeson, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 31. — ACTION BY THE COMMONWEALTH AGAINST THE FISCAL COURT OF FRANKLIN COUNTY TO LEVY A TAX AND ERECT A COURTHOUSE.</p> <p>Appeal from Franklin Circuit Court.'</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for the Commonwealth and defendant appeals.</p>

<p>1. Master and Servant — Liability for Unauthorized Act of Ser- . vant. — The trainer of one maintaining a stable of race horses having no authority to hire or select boys to be used in training the horses, but his authority being restricted to use of such boys as had been employ'ed for such purpose, his act of placing.on a horse a boy not so employed was without the scope of his authority; so that, unless it was ratified, the master was not liable for injury to the boy.</p> <p>2. Master and Servant — Ratification of Servant’s Act — Evidence. —It is not sufficient evidence that C., a horseman, ratified the unauthorized act of his trainer in using in the training of horses a boy not employed for such purpose, that C. once saw the boy at the race track, rode to town on the same street.cár with him, paid his fare into a theater and said that he. was going to see his mother.</p>

<p>CASE 33. — ACTION BY SAMUEL N. JOHNSON AGAINST THE LEXINGTON RAILWAY COMPANY POR DAMAGES. POR PERSONAL INJURIES</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 34. — ACTION BY COMMONWEALTH OF KENTUCKY AGAINST MILBURN WAGON COMPANY.</p> <p>Appeal from Monroe Circuit Court.</p> <p>Judgment for the Commonwealth and the defendant appeals.</p>

<p>1. Taxation — Collection—Sheriffs—Accounts—Surcharging Settlements — Necessity for Demand. — Before suing to surcharge a former sheriff’s settlements for taxes collected, on the ground of fraud and mistake, it is unnecessary to make a demand upon him or his bondsmen for the móney due, or that one be appointed to receive it; such demand and appointment being necessary where there has been a settlement and a balance is shown thereby to be due the county.</p> <p>2. Same — Mistake of Law — Effect.—That on u sheriff’s settlements he was allowed to retain money collected as penalties on taxes under county commissioners’ and hi.s mutual mistake of law that he was entitled to do so is sufficient to authorize an action to surcharge the settlements.’</p> <p>3. Same — Conclusiveness1 of Settlements. — Ky. St. 1903, section 4146, provides that the report of a settlement of a sheriff’s amount of .taxes collected shall be subject to exceptions by the sheriff or county attorney, .that either may appeal from ■the county court’s judgment on settlement, or that action may be brought to correct the .settlement. Held, that a county attorney’s failure to except to a settlement in which •the sheriff improperly retains money collected as penalties •on delinquent taxes, does not bar an action by the commonW'ealith for the use of the county to surcharge the settlement.</p> <p>4. Same. — Ky. St. 1903, section 4146, provides that the report of a settlement of a sheriff’s amount of taxes collected shall be subject to exceptions by -the sheriff or county attorney, that •either may appeal from the county court’s- judgment on the settlement, or that actions may be brought to correct 'the settlement, and that, when approved, it shall he recorded. Held, that the recording of a settlement does not conclude an action to surcharge it for fraud or mistake; it not becoming a settlement or having binding force as such until recorded, and the provision authorizing such actions relating to recorded settlements.</p> <p>5. Same — Attack Not Collateral. — Ky. St. 1903, section 4146, provides that the report of a settlement of a sheriff’s account of taxes collected shall be subject to exceptions by the sheriff or county attorney, that either may appeal from the county-court’s judgment on ,the settlement, or that actions may. be brought lo correct the settlement. Held, that though such settlements may not be attacked collaterally, an action by the commonwealth for the use of a county -to surcharge a former sheriff’s settlement is a direct attack authorized by the statute.</p> <p>G. Same — -Tax Penalties — County Entitled To. — Penalties on Delinquent county taxes 'belong to the county, and the sheriff collecting them must account for them on his official bond.</p> <p>7. Same — Settlement—Suit to Surcharge — Limitation.—Ky. St. 1903, section 4146, provides that the report of a settlement of a sheriff’s accounts of taxes collected shall be subject to exceptions by the sheriff or county attorney and that the ■county court shall determine the exceptions, 'that either party may appeal from the county court’s judgment, or that actions may be brought to correct the settlement. Held, that where no appeal has been taken from the county court’s order, and no judgment has been entered thereon, suit to surcharge the settlement ma.y be brought, if not barred by the five-year statute of limitation.</p>

<p>Fraud — Actions—Waiver.—Where in negotiations for a life policy it was falsely represented by the insurer that at the end of five years insured would get a rebate of $12, and at the end of seven years he would get a dividend accumulation of $125, which would more than pay the premium from the seventh to the eighth year, and that after the seventh year the net premiums would constantly decrease by reason of ■credits thereon of accruing dividends, but notwithstanding that at the end of five and seven years such payments were not made, and the premiums did not decrease as representecl, but increased, insured continued for three years after the first seven to pay the premiums, he waived the-fraud, even though knowledge thereof was not brought to him a.t the end of five years.</p>

<p>1. Gifts — Inter Vivos — Distinguished from Other Transaction.— A writing in the following form: “Received of H. for K. the sum of §1,007.25, and I hereby relinquish all my claim to the balance of §1,500 worth of securities, excepting that in the event of 'the necessity that K. shall pay me §3.00 per week until my death. [SignedJ P.” — is not an irrevocable gift inter vivos, but a sale or release.</p> <p>2. Pleading — Issues and Proof. — While, as a general rule, a writing cannot be varied except for fraud or mistake pleaded, 'if .the writing relied on is not pleaded in any form, but appears for the first time when introduced in evidence, the opposing party should be permitted to attack it on the ground of fraud, mistake, or undue influence without pleading such facts.</p> <p>3. Release — Validity—Undue Influence. — Where a man 77 years old and infirm put $2,500 worth of bonds in a deposit box in the name of his daughter-in-law as trustee, with the understanding that .she was to pay him the interest and deliver the bonds on demand, but she afterwards refused to deliver him $1,000 worth of bonds on his request until he signed a writing relinquishing his claim to the balance, the writing was obtained by both undue influence and duress.</p> <p>4. Same — Lack of Consideration. — Where plaintiff put bonds in a deposit box in the name of defendant as trustee, with the understanding that the defendant was to pay him the interest and deliver the bonds on demand, .but she afterwards refused to deliver him a part of the bonds on request, until he signed a writing relinquishing his claim to the balance, the writing was void for lack of consideration.</p> <p>5. Appeal — Review—Harmless Error — Instructions.—Where an instruction left to the jury the question of ownership of property alleged to be conveyed by a writing, and the jury found for plaintiff, but the writing on which defendant based her claim was void, the error, if any, was harmless.</p>

<p>1. Contracts — Action'On— Sufficiency of Allegations — Acceptance. —A complaint, which sets forth both plaintiff’s verbal proposition and a memorandum in writing, alleged to have been executed and delivered to plaintiff by defendant, which in terms accepts the verbal proposition, sufficiently shows acceptance.</p> <p>2. Sales — -Contract—Confirmation of Incomplete Instrument— Acceptance. — Where a company .by a written memorandum accepts a verbal proposition to furnish material, and .refuses to execute any other contract, ,but receives a large amount 'of material under the terms of the writing, it can-not avoid liability because the contract was incomplete.</p> <p>2. Same — Certainty as- to- Subject-Matter. — A company contracting for ballast cannot assail the contract o-n .the ground of uncertainty because the size of the ballast was not specified, where a large amount had been accepted -at the time of the breach without objection; the presumption being that the remainder'was to be of the same size, which was customary for the pui’pose for which it was needed.</p> <p>4. Same — .Mutuality of Obligation — “Necessary Ballast.” — A contract for “necessary ballast” for a traction company’s tracks in a county is no.t void for want of mutuality of obligation, where the necessary amount can be determined from the testimony of experts; the phrase “necessary ballast” meaning the ballast reasonably necessary to complete the road for the purposes for which it was built.</p>

<p>CASE 39 — ACTION BY THEODORE RECTANUS AGAINST JOHN McGOVERN</p> <p>' Appeal from Jefferson, Circuit Court (Common Pleas Branch, Second Division).</p> <p>Judgment for plaintiff and defendant appeals.</p>

<p>CASE 40. — ACTION BY WILLIAM RANDALL AGAINST THE WESTERN UNION TELEGRAPI-I COMPANY FOR DAMAGES FOR FAILING TO DELIVER A TELEGRAM.</p> <p>Appeal from Pulaski Circuit Court.</p> <p>Judgment for defendant and plhintiff appeals.</p>

<p>1. Negligence — Actions—Allegations.—A general allegation of negligence, showing the extent of the injury and the manner in which it was caused, is sufficient; but, if specific acts are alleged, they must be sufficient to present a cause of action.</p> <p>2. Negligence — Actions—Allegations—Contributory Negligence— Necessity of Negativing. — In an action for negligence, plaintiff need not negative his own negligence.</p> <p>3. Negligence — Actions'—Proof—Variance.—Where the .petition alleges certain .specific'acts of negligence, other negligent acts cannot he relied on.</p> <p>4. Railroads — Injuries to Persons on Track — Actions—Sufficiency of Allegation — Negligence.—Allegations that, while plaintiff was on a railroad bridge, he was negligently run over by defendant’s engine, because of the negligence of its servants in operating .the train, 'sufficiently alleged negligence to entitle plaintiff to recover upon showing that defendant discovered his peril in time to avoid the injury.</p> <p>5. Pleading — Allegations—Conclusions—Validity of Conveyance. —In a personal injury action against two railroad companies, allegations that the conveyance by one of them of the control' and possession of its road to .the other road, which was a foreign corporation, was ultra vires and void under Const, section 203, prohibiting any corporation from alienating its franchise, ,so as to relieve it from any liability incurred in the use of such franchise, and section 211, prohibiting foreign corporations from acquiring real estate, etc., in this state, without incorporating herein, were insufficient to show that the conveyance was void, being a mere conclusion.</p> <p>6. Railroads — Companies IJable for Injuries. — Where one of two railroads, against whom, an action was brought for injuries on a bridge, had conveyed its road to the other before the accident, it was -not liable for the injuries.</p>

<p>'1. 'Taxation — Railroads—"Railroad Property.” — Const. 1891, section 182, declares thait nettling in the Constitution shall prevent the General Assembly from providing by law how railroads and railroad property shall be assessed, and how taxes thereon shall be 'Collected. Held, that where a bridge was owned .and used by a railroad company, it constituted “railroad property” within such section, (though it was also used for the accommodation of teams, street, cars, and 'foot passengers.</p> <p>2. Same — Vacation of Tax — Issues.—'Whether a railroad company was entitled to own and maintain a bridge used not only for its trains, but also f-qr 'pedestrians, street cars, and a wagonway, could not be determined oil an appeal from an assessment of such bridge to the railroad company by a county board of equalization, instead of by the State Railroad Commission.</p> <p>3. Sanie- — Railroad Property — Assessment—Power to Make.— 1 Acts 1877-78, p. 82, c. 764, required the assessment of railroad property by a state board of -equalization, which power was vested in a railroad commission by Act April 19, 1882, (Laws 1881-82, p. 66, c. 790). Const. 1891, section 182, provides that nothing therein contained shall prevent -the General Assembly from providing by law how railroad property shall be assessed, and, until otherwise provided, the ■present law on the subject shall remain in force, and Aclis 1906, p. 139, c. 22, requires the president and chief officer of every railroad company and all railroad bridge companies owning or operating a bridge spanning a river constituting the boundary of the state, to return to the Auditor of Public Accounts the total length of the railroad, including the length thereof beyond the limits- of -the state. Held, that w-here a railroad owned and maintained a 'bridge as a part of its railroad system, such bridge was assessable for taxation by tbe Railroad Commission, and not by the local authorities of the county in which it was located.</p>

<p>1. Election — Void Election — Failure to Give Notice. — One who is in possession of an offilce under a valid appointment need •nor have his right determined by the contest board, to entitle him. to hold against one whoi claims Ithe office under a void election.</p> <p>2. An .election for circuit judge was void where Hiere was. no • notice of the election, and the voters were in ignorance .that the offilce was to he filled, only 94 persons out of a ito.tal of about 12,000 voting, and those -persons voting by means of slips stuck on the official ballots.</p>

<p>1. Judgment — Enforcement—Execution— Subjection of Unliquidated Demand — Assumpsit—Measure of Damages — Transfer of Action. — Under Civil Code Prac., section 439, providing thait the .plaintiff in an execution returned “No property found,” may institute an equitable action “for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to 'the satisfaction of the judgment,” plaintiff may subject any claim of the debtor against another on which an action of assumpsit would lie at common law.</p> <p>2. Where .the purchaser of one of two adjoining lots went upon the other lot and took sand therefrom with the consent of the vendor, both .supposing that it was on the lot purchased the vendor's remedy is an action of assumpsit, .to recover the value of the sand taken, .the mistake being mutual.</p> <p>3. The measure of damages in such .an action is not the damage to the lot by the excavation, or what it would cost to fill it up, hut the value of the sand converted.</p> <p>4. Under Civil Code Prac. section 12, a defendant in an equitable action may have the action transferred to the ordinary docket for the trial of any issue concerning which he is entitled lo a jury trial.</p>

<p>1. •Criminal Law- — .Recovery of Pine by Penal Action — -Partial Repeal of Local Liquor Law — Capias Pro Fine. — U-nde-r Cr. ■Code Practice, section 11, ipro-viding that “a public offen-se of which the only punishment is a fine, may be prosecuted ■by a penal .action in the name .of the Commonwealth of Kentucky,” a fine for the offense of selling liquor in violation of a local law may be recovered in a penal action, there being no- requirement in the general local option law which now .controls as to the penalty to he inflicted and the proceedings for its recovery, that the proceeding shall be by indictment.</p> <p>2. As to the .penalty to be inflicted and the proceeding for its recovery, all local prohibitory liquor laws have been superseded by Ky. St. sections 2557, 2558, .part of the general local option law.</p> <p>3. Under Cr. Code Prac. section 301, a capias pro fine may be issued upon a judgment for a fine rendered in a penal action.</p>

<p>CASE 46 — ACTION BY COMMONWEALTH AGAINST BLANTON FOR ROBBERY.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit judge.</p>

<p>CASE 47. — CONTROVERSY BETWEEN D. C. POINT'S, AS GUARDIAN OF BADIE R. FRANK, AND HIS SAID WARD, AS TO HIS LIABILITY AS GUARDIAN —</p> <p>Appeal from Grant Circuit Court.</p> <p>From the judgment Points, as guardian, took a cross-appeal.</p>

<p>CASE 48. — ACTION BY WILLIAM FUHRMAN AGAINST JOHN REBHAN FOR FRAUDULENTLY SHIPPING AND SELLING A LOT OF CATTLE BELONGING TO PLAINTIFF AND CONGEALING THE MONEY RECEIVED, $840.</p> <p>Appeal from Jefferson Circuit Court (Law and Equity Division).</p> <p>Judgment committing appellant to jail for contempt in refusing to pay a certain sum of money into court as ordered, and lie appeals.</p>

CASE 49. — ACTION BY LILLIE NORRIS, WIDOW AND ADMINISTRATRIX. OF ALBERT S. NORRIS, DECEASED, AGAINST JOHN E. WILLIAMS FOR A SETTLEMENT OF HER ACCOUNTS Appeal from Bracken Circuit Court. Prom the judgment ordering a sale of-the land of the decedent to pay his debts, she appealed.

<p>1. Vendor and Purchaser — Rescission—'Chancing Bargain. — The purohaser of .a 'Supposed onyx mine is not entitled to a re scission, though the stone turned out to be limestone, as both parties understood that the result of a test was un certain, and the purchaser knew that if the stone proved in advance to be onyx he could not purchase it for the price paid.</p> <p>2. While the rule is that equity will relieve against a contract made by mutual mistake, where the consideration has failed, this doctrine has no application to what is called a “chancing” bargain like that in this case.</p>

CASE 51. — PROSECUTION AGAINST THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILROAD COMPANY FOR -SUFFERING A NUISANCE ON ITS • PREMISES. Appeal from Jessamine Circuit Court. Allegations in an indictment for suffering a nuisance held to be sufficient, with directions to overrule appellee’s demurrer thereto.

<p>1. Vendor and Purchaser — Breach of Warranty — Eiviation— Measure of Damages. — The purchaser may recover' damages for a breach of the covenant of warranty, where a strip of land has been taken as part of -a ¡street, though under a judgment rendered in an -action brought by him, -and not against him, especially .as the action was brought by him on the -advice! of the vendor's attorneys, and they appeared and ¡assisted in ¡the argument on hi® behalf.</p> <p>2. The fact that there had been a former judgment in favor ■of the vendor in an -action between him and the city as to ■the strip of ground in -controversy, constitutes no defense to the action for breach of warranty, as that judgment was pleaded, in the acti-o-n brought by the purchaser -against the -city; and if there were other facts -tending to show that the judgment was -a biar to -the city’s claim, -they should' have been proved by -th-e vendor when notified -by th-e purchaser to protect -his title.</p> <p>3. Where -the successful claimant -entered upon the land, and ¡thus forced the purchaser to bring an acti-o-n to test his ¡title, the purchaser ¡may recover th-e -costs -of that action, including -a reasonable -atto-rn-ey’-s fee in -an -action, on the covenant of w-arranty, as if he had been evicted in an action brought against him, ¡especially when- he brought 'the action to .test hi-s title ou advice of the vendor’s attorneys.</p> <p>4. The purchaser cannot recover -the -co-sits -of -an unsuccessful appeal from the judgment under which he was- -evicted where ■the appeal was not taken at the vendor's request.</p> <p>5. Where a strip, 30 feet wid-e, was taken from the front of the lot purchased, in opening -a -street, the jury 'should have been instructed, in -an ¡action -by the purchaser an the vendor’s covenant of warranty, that, -they should. -consider the entire tract, including the -strip taken, to be o-f value of $4,500, the consideration paid, and disregarding all enhancement of the property from the widening of the -street, ■should determine from the evidence how much less the remainder of th-e tract, after the -strip taken had b-een opened as a -street, w-ais worth, than -the whole tract was worth, including the -strip-, and without the street being opened, this difference, with interest from the time the city took possession, being the proper measure of recovery.</p>

<p>CASE 53. — ACTION BY MAGGIE HAYS AGAINST B. F. MEYERS TO RESCIND AN ALLEGED FRAUDULENT CONTRACT POR THE SALE OF LAND.</p> <p>Appeal'from Metcalfe Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 54. — ACTION BY J. T. .NELSON, &C., AGAINST .THE ILLINOIS. CENTRAL R. R. CO. POR DAMAGES IN FAILING TO DELIVER PLAINTIFF A OAR-LOAD OF COTTOiN SEED MEAL AND HULLS, ACCORD-. ING TO CONTRACT</p> <p>Appeal from Hardin. Circuit Court. .</p> <p>Judgment for plaintiffs' and defendant appeals.—</p>

<p>1. Master and Servant — Injury -to Servant — Contributory Negligence. — An experienced lineman, -engaged in transferring telegraph wires from old poles to new ones, was injured in consequence of the breaking of an old pole he had climbed. The defect in the pole was not so obvious that the danger in climbing it could be detected without an examination. The foreman had inspected the pole and directed -the lineman to climb it. Held, that the lineman had 'the right to rely on the foreman’s inspection, and he was not guilty of contributory negligence in climbing the pole without examining it.</p> <p>2. Samé — Evidence—Admissibility.-—Where, in an- action against a telegraph company for injuries to a lineman in consequence of the breaking of an old pole he had climbed, the company claimed that it was the duty of the lineman to inspect the pole to ascertain whether it was safe to climb it without ■being braced, it had the right to prove by the lineman that an inspection of the -pole would have disclosed its dangerous condition.</p> <p>3. Same — Instructions.—Where, in an action against a telegraph company for injuries to a lineman in consequence of the breaking of a -pole he bad climbed, the issue was whether it was the duty of the lineman or of the company to inspect the poles-, the court should charge that if the lineman undertook to inspect the poles, and that an ordinary -careful inspection would have disclosed the fact that the -pole was unsafe, a verdict for defendant should be found, while, if the lineman depended on the inspection made iby the foreman, who directed him to climb the pole, and he obeyed the direction without a-n- inspection, a verdict should be found for the lineman.</p>

<p>CASE 56. — ACTION BY GEORGE C. GRADDY AGAINST THE SOUTHERN RAILWAY CO. IN KENTUCKY.</p> <p>Appeal from Woodford Circuit Court.</p> <p>Judgment for plaintiff and defendant appeals.—</p>

<p>1. Insurance — Transfer of Policy — Consent of Company. — Where the title to insured property is tranferred, without the consent of the company, it is not, liable to the transferee of the property for loss occasioned to the property unless it consented to the transfer.</p> <p>2. Agent — Revocation of Authority of — Notice.—The same character of notice is required to inform the public of the revocation of an agency ,as is necessary to give information of the dissolution of a partnership. A distinction is made as to the character of the notice between persons who dealt with the agent before the revocation and persons dealing with him after the revocation.</p> <p>3. Agent — Revocation of Authority. — Where one who has been acting as a general agent of an insurance company, but whose agency has been revoked, consents to the transfer of a policy, and the parties to the transfer do not know of the revocation of his agency, and the company has not given such notice of the revocation of his authority as is necessary to put the' public upon notice, it will be bound by his acts.</p>

<p>CASE 68 — ACTION BY R. C. BROWNING- AGAIN-ST J; C. hOVITT, AND W. B. CROLEY AGAINST M. B. JONES.—</p> <p>Appeals from Whitley Circuit Court.</p> <p>From tbe judgment both parties appeal.</p>

<p>CASE 59. — ACTION BY J. S. JACKSON, SR., AGAINST TOBIAS ■ STEGER.</p> <p>Appeal from McCracken Circuit Court.</p> <p>Prom the judgment both parties appeal.</p>

<p>CASE 60. — ACTION BY HENRY VOGT MACHINE COMPANY AGAINST PENNSYLVANIA IRON WORKS COMPANY.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p> <p>Judgment for plaintiff and defendant appeals.</p>

<p>(.ASE 63. — ACTION BY W. M. WISDOM, BT AL. AGAINST NIOHODS & SHEPHERD COMPANY.</p> <p>Appeal from Todd Circuit Court.</p> <p>Judgment for plaintiff and defendant appeals.—</p>

<p>CASH 62. — ACTION BY MRS. SUSAN McGREWS EXECUTOR AGAINST T. J. CONGLETON AND ANOTHER</p> <p>Appeal from Franklin Circuit Court.</p> <p>Judgment for defendants and plaintiff appeals—</p>

<p>1. -Contracts- — Agreement for Benefit of Third Person — Infants.— Where so-mle of the owners of land subject to a mortgage agreed that -on the sale- of the land under -decree of court one of them should bid in the property for the benefit of -all, the fact that one of the -owners, who wa® not a party to the contract, was -an -infant -and incompetent to contract, -did not preclude him from sharing in the benefits of the agreement.</p> <p>2. Frauds, Statute of — Contracts Relating to Realty. — A .parol contract between joint owner® of real property, whereby one is to bid at .a public -sale thereof for (the benefit of all, is valid.</p> <p>S. Trusts- — Creation—Constructive Trust.- — -Where joint owners of land subject to -a mortgage agreed that .at .a public salle of the land one of them/ wa® to bid the same in -for the benefit /of the others, except the mortgagee, the purchase by su-ch one under the agreement -created a trust by operation of law for the benefit of all the owners, enforceable at the suit of any or all of them; and it was not material that -the purchaser was not paid in advance -the others’ proportion of the money to .purchase the property.</p> <p>4. Same — Statute of Frauds — Estoppel.—Constructive trusts are not within the statute of fraud®, -since they are bottomed on the doctrine of -estoppel and the operation of an estoppel is never -affected by the statute of frauds.</p>

<p>CAS 64. — ACTION BY B. R. DOUGHERTY AGAINST THEODORE WEICK.</p> <p>Appeal from Kenton Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 65. — ACTION BY THE COMMONWEALTH FOR THE USE OF. THE TAXPAYERS OF NICHOLAS COUNTY AGAINST ARTEMICIA RATLIFF’S EXECUTORS.—</p> <p>Appeal from Nicholas Circuit Court.</p> <p>From the judgment both parties appeal..</p>

<p>CASE 66. — ACTION BY W. H. TIPTON AND OTHERS AGAINST THE CITY OF SHELBYVILBE AND OTHERS.</p> <p>Appeal from Shelby Circuit Court.</p> <p>From the judgment of, dismissal, plaintiff appeals.</p>

<p>CASE 67. — ACTION BY T. J. PATTERSON AGAINST S. M. BURGESS & CO.</p> <p>Appeal .from Edmonson Circuit Court.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Officers — -Term—Determination.—.Where -two school trustees ■were -elected iat the- -same tim-e to fill a tw-o and- a three year fe-r-m-, and the statute indicated- no method of -determining which trustee was elected far -the longer term, an -agreement between the trustees-ele-ot was -a proper method o-f ¡deciding the question, and the fact fhalt -one -of the trustees received ¡a larger number ¡o-f votes did- not entitle him to- the longer t-enni.</p> <p>2. Schools and ¡School Districts — Trustees—-Election and Qualification — Record of Election by C-o-unty Superintendent.— Where a school trustee was- elected- to -a -three-year term as trustee, and his -election was -certified to the -coun-ty superintendent, it was not invalidated -by the latter’s failure 'to record his election as being for the three-year term.</p>

<p>Railroads — Contributory Negligence — Instructions.—This was an action prosecuted against appellee for damage's alleged to have been -cáused by negligence in -backing its freight train over a -watchman at ¡a crossing in the city of Louisville and killing him. It being alleged that the negligence consisted in the failure iof appellee to provide a hraikemun on the rear iof the train to -prevent injury to the watchman. Held — That the watchman was guilty of contributory negligence in failing to avoid the approach of the train, as it was his duty to look out for the approach of trains, and the company owed -him no duty to place a brakaman ion the train to prevent injuring him. -An instruction authorizing the jury to award damages only in the event they believed that appellee was guilty of gross negligence was not prejudicial as a peremptory instruction to find for defendant should have been given.</p>

<p>1. Conveyances — Delivery of Deed. — Appellant executed a deed of conveyance for some lots to appellee, and recited that the -consideration was paid, hut it was agreed that the deed should be attached to thie draff ito he delivered to the purchaser upon the payment of the draft. The draft was protested for non-payment. Afterwards a creditor of appellee ©ought to ©ubj-eclt the lots to the payment of the dieht. Held, ■that ©aid lots are not subject to the payment of the debts of .appellee, as there had been no delivery of .the deed, and appellant is entitled to a ¡cancellation of same.</p> <p>2. 'Construction of Statutes — Liens.—Section 2358, Kentucky Statutes, providing that .a vendor -can assert no lien for unpaid purchase money 'against creditors on account ,of failure to ¡state what part of the consideration remains unpaid, ■ has no application where there has been no delivery of the deed.</p>

<p>CASE 71. — ACTION BY LEWIS C. POPE AGAINST THE NEW YORK LIFE INSURANCE CO.</p> <p>Appeal from Bracken Circuit Court.</p> <p>Prom the judgment the defendant appeals.</p>

<p>CASE 72. — ACTION BY ANNA MONTGOMERY AGAINST THE KENTUCKY & INDIANA BRIDGE CO.’S RECEIVERS.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Division).</p> <p>From the judgment defendants appeal.</p>

<p>CASE 73 — ACTION BY DAY & CONGLETON LUMBER CO. AGAINST MACK STRADLER & 00., IN WHICH OTHER PARTIES W1ERE BROUGHT IN.</p> <p>Appeal from Wolfe Circuit Court.</p> <p>Prom the judgment Day & Congleton Lumber Co., Appeals</p>

<p>Parties to Action's — 'Sale of Infant’s -Real Estate. — An action for a sale of an infant’s real estate for re-investment under isub-sectron 5 of iseotiom 589, Civil Code, was instituted by the guardian against ithe infant. This -action was not instituted by the statutory guardian, no,r was the -bond required by section 493, Civil Code, executed. The sale of the infant’s land under this proceeding was, therefore, void. A istrict 'Oamplianoe with the provisions' of the statute is necessary to 'divest the title of infant’s 'in land.</p>

<p>CASE 75. — ACTION BY RAY BAUM, &c„ AGAINST .1. C. TURNER AND OTHERS FOR DAMAGES FOR SEIZING CERTAIN PERSONAL PROPERTY UNDER AN ATTACHMEdNT—</p> <p>Appeal from Bell Circuit Court.</p> <p>Prom the judgment the plaintiff, Baum, appeals—</p>

<p>CASE 76. — ACTION BY E. B. WOOD AGAINST C. F. GARRISON ON A CONTRACT A'S LANDLORD AND TENANT.</p> <p>Appeal from Payette Circuit Court.</p> <p>Judgment for plaintiff and defendant appeals—</p>

<p>CASE 77. — ACTION BY KRAUTH, &c., AGAINST HAHN, &c., TO ' RECOVER A STRIP OF LAND.</p> <p>Appeal from Muhlenberg Circuit Court.</p> <p>From the judgment plaintiffs appeal</p>

<p>CASE 78. — ACTION BY CHARLES PHILLIPS’ ADMINISTRATOR AGAINST THE LOUISVILLE WATER COMPANY FOIR DAMAGES FOR CAUSING THE DEATH OF PLAINTIFF’S INTESTATE.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch.)</p> <p>Judgment for plaintiff and defendant appeals—</p>

<p>CASE 79 — ACTION BY F. P. CAREY AGAINST W. B. SAM. UEiLS & 'CO., FOR DAMAGES SUSTAINED IN OPERATING A DISTIDDERY.</p> <p>Appeal from Nelson Circuit Court.</p> <p>Judgment for defendants and plaintiff appeals—</p>

<p>CASE 80. — ACTION BY D. A. GLENN AGAINST ELIZA GOR-MAN AND ANOTHER TO 'SUBJECT CERTAIN PROPERTY TO HIS JUDGMENT.</p> <p>Appeal from Kenton Circuit Court.</p> <p>Judgment for plaintiff and defendants appeal—</p>

<p>CASE 81. — ACTION INVOLVING A CONSTRUCTION OP THE WILL OP DAVID IRVINE, DECEASED.</p> <p>Appeal from Madison Circuit Court.</p> <p>Judgment holding that the devisee was vested with a fee simple title to the land.</p>

<p>Contracts1 — Champerty and Maintenance. — A contract by a pen 'son who is of no relationship to parties who desire to contest a will with an attorney to share his fee in case of success in consideration of 'his procuring the attorney to be employed and assisting him in looking up Witnesses, is illegal and prohibited' by Ithe statute against champerty and maintenance. While an attorney may be liable on- a contract for assistance rendered him in preparing on 'attending to a case, such contract which is contingent m success will mot be enforced.</p>

<p>1. Vendor and Vendee. — '"Warranty as to Numlber of Acres. — A vendor who conveys a tract of land with a general warranlty as containing .thirty-three and one-half ames, more or less, when the survey made by a competent surveyor under his direction, showed the boundary to contain only twenty and one-half acres, is bound to make good the deficiency.</p> <p>2. Improvements To Be Taken into Consáderalbion in Valuing the Compensation for Deficiency. — Ordinarily where there ■ is a deficiency in the quantity of ground ’sold, the purchaser will he entitled to compensation for the deficiency according to the average value of the whole tract, hut in view of 'the fault that in this case the vendee got all thie improvements in the way of houses, etc., which it wias ‘oontemiplated he should receive at the date -of his purchase, they constitute an important element in the value of the tract, and it was not error ito take this fact into consideration in fixing the value of the deficiency in the land.</p>

<p>CASE 84 — ACTION BY ELLA ROUSE AGAINST THE LANG-DON-CREASY CO. FOR DAMAGES FOR PERSONAL INJURIES.</p> <p>Appeal from Grant Circuit Court.</p> <p>Prom the judgment the defendant appeals.</p>

<p>Insurance — Waiver of Payment of Premium — Instructions.—In this action to recover the amount of loss on a policy of fire insurance issued by appellant, it was pleaded in defense that 'appellant was net liable for the loss ¡on account of the failure of appellee to pay the premium when due, as agreed, In reply appellee pleads a waiver by the agent of 'the prompt payment 'and a waiver of the forfeiture of the policy. Held, that appellee’s proof failed to -show a waiver of prompt payment, and the court should have given, a peremptory instruction to find for defendant. Appellee can not avail himself of the defense of sickness os preventing prompt payment of the premium. It is a well-settled rule -of law that where the law itself creates a duty the non-performance of ■it will be excused by 'an unavoidable accident previous -to its performance. But ’this principle has no 'application ito a ease where a person has created a charge or obligation upon himself by an express contract. In the latter ease he will not be permitted to excuse himself therefrom by pleading ■an act of God rendering performance impossible.</p>

<p>CASE 80. — ACTION BY JOHN SMITH AGAINST O’DANIEL AND WIFE POR MALICIOUS PROSECUTION.—</p> <p>Appeal from Marion Circuit Court.</p> <p>From the judgment defendant appeals.</p>

<p>CASE 87. — ACTION BY JENNIE MOSS KEiNNINGHAM AGAINST THE EXECUTOR OF HE® FATHER JAMES L. KENNINGHAM, DECEASED, TO RECOVER A LEGACY</p> <p>Appeal from Whitley Circuit Court.</p> <p>Prom the judgment the executor appeals.</p>

<p>1. Bills and Notes — -Statute of Frauds. — P. .purchased a lot of -ground for which h-e executed three piwchia-se-mioney notes, and a -deed was made conveying |to 'him the pronea-t^. reserving -a lien on the lot to secure same. P. -sold- the lot to appellant, and in -the d-eed recited that appellant assumed -and agreed to pay -the lien notes. The appellee, as assignor of the notes, brought this action to -enforce lth-e lien -and for personal judgment -against both P.' aird appellant. Two of the -defenses -set up in -appellant’s answer were: First, that under subsection 4, section 470, Kentucky Statutes, he -was not personally liable -for th-e debt of P., -as he had -signed no writing agreeing to pay -same; and, -s-econ-d, that under •subsection 7, -section 470, Kentucky Statutes, he wa-s not liable u-po-n an agreement not (to -be performed within a year, a® isame was not in writing signed by (him. Demurrers were sustained -to tooth of these defenses. Held, that the first defense is insufficient, as a 'promise made to the debtor to pay his creditors’ debts based upon a sufficient 'consideration, is enforceable. The second defense is also insuffijcient, as it was executed by one party within the year and the statute is only applicable to eases where the contract is executory as to both parties.</p> <p>2. Statute of Limitation — Estoppel.—The third defense is that ■appellant is not liable, as the cause of action accrued more than five years prior to the institution of the, action. Held, that the acceptance of the deed containing the reservation of a lien to secure the notes of P. estopped 'appellant from denying the existence of the lien as against the land, and the law will imply a promise on his part to .pay them. But as 'the promise was not evidenced by a writing signed by him, the five years’ statute of limitation afforded a 'complete bar to recovery.</p>

<p>CASE 89. — ACTION BY THOMPSON, &c., AGAINST BROWN-LEE, &c., TO WIND UP THE AFFAIRS OF A MINING CORPORATION.</p> <p>Appeal from Laurel Circuit Court.</p> <p>From the judgment Thompson, etc., appeal — ■</p>

<p>1. Escheat — Title to Real Property. — Where a railroad company ■provided the money to .purchase land not necessary for its legitimate 'business, and caused the title to he .conveyed to a dummy corporation created at its instance, whether the stockholders thereof and those of the railroad company were the same or not, if the railroad -company in reality held the title, the land was subject to escheat, under Const, sec. 192, ■and Ky. St. 1909, sec. 507 (Russell’,s St. ;sec. 2153), providing that no corporation shall hold or own real estate not necessary to its legitimate business for more than five years under penalty of escheat.</p> <p>2. Corporations — Charter—Right to Hold Land. — A corporation authorized t.o “purchase, hold, lease, sell, convey, and otherwise use, manage, and dispose” of real and personal property wherever situated in the United States was empowered to hold real estate for a reasonable time only, and not indefinitely, in violation of Const, sec. 192, .and Ky. et. 1909, .sec. 567.</p> <p>3. Escheat — 'Corporate Powers — Holding Real Estate — Dummy Corporation. — Where a railroad company organized a dummy corporation to hold lands belonging to 'it, to evade Const, ■sec. 192, and Ky. St. 1909, sec. 567, prohibiting corporations, on penalty of escheat, from holding real property not necessary to their legitimate business for more than five years, the powers of such dummy corporation were immaterial', so far as the State’s right to escheat the property was ■concerned.</p> <p>4. Escheat — Right of Corporation to Hold Real Estate — 'Statutes. — Ky. St. 1909, sec. 507, providing that no corporation shall hold or own real estate not necessary for its legitimate business for more thau five years under ¡penalty of escheat, deals -with a situation existing five years next preceding the time the statute is invoked, and has no reference to the future.</p> <p>5. Escheat — Power of Corporations to Hold Real Estate — Petition. — Where the Commonwealth 'Claimed that a railroad company had incorporated a holding company, to which certain real estate had been conveyed which was not necessary for the railroad company’s business, in violation of Ky. St. 1909, sec. 567, prohibiting a corporation from holding such real-estate for more than five'years under penalty of escheat, a petition for escheat, alleging that the property was not necessary at ■ the time the petition was filed, hut failing to allege that it was not necessary at any other time, nor that the railroad company had for five years held the property, either in its ■ow.n name or in the name of the holding company, and that the property was not necessary for its legitimate business for ■that period, was fatally defective.</p>

<p>CASE 91.—ACTION BY H. E. BURGESS AGAINST GEORGE I. COX FOR SPECIFIC PERFORMANCE OF A CONTRACT FOR THE SALE OF LAND.</p> <p>Appeal from Pike Circuit Court.</p> <p>Judgment for plaintiff and defendant appeals.</p>

<p>' 1. Injunctions — Notice—Restraining Order — Intention.—An injunction is granted only after notice. Failure to give notice renders the order of injunction void. A restraining order is intended to maintain the status quo until tlie parties -may by due notice bring the question whether- the injunction should he granted before an officer authorized to grant it.</p> <p>2. Same — Distinction—Irreparable Injury. — The distinction between restraining orders and injunctions is, that the former are issued only when, owing to some threatened immediate injury that would he irreparable, it would be impracticable to give notice of an application for '-an injunction.</p> <p>3. Same — Power of Appellate Judge. — A judge of the Court of Appeals has not the power to grant an injunction in any case.</p> <p>4. Same — Dissolution—Modification—Motion to Reinstate — Wihen an injunction is dissolved or modified by the court before final judgment, or by a circuit judge, the plaintiff may apply to a judge of the Court of Appeals to reinstate it (Civil Code, sec. 297), or when an injunction has been granted or continued by interlocutory order, th-e party may apply to a judge of the Court of Appeals for its dissolution or modification. (Civil Code section 296, sub-section 2.)</p> <p>5. Same — Authority of Circuit Courts- — Appeal.—A temporary -restraining order -may be set aside or modified by the court or by any -circuit judge, but .not by any other tribunal or official. Nor is there an appeal from the judgment of the court,- or of the circuit judge from any interlocutory judgment modifying or dissolving a temporary restraining order.</p> <p>. 6. Same — Ancillary Remedy — Action at Law.' — An order of injunction, exceiJt it is granted as a final judgment, is ancillary to the 'principal action, and may he granted in an action at law as well as in an equitable action.</p>

<p>1. Insurance — Policy Payable to Stranger Having no Insurable Interest — Misrepresentations.—In an action to recover the amount of a policy of life insurance on the life of B , appellant ■alleged, as defenses, that the insured made false and fraudulent answers to questions propounded in the application as to the condition of his health, and as to’ the disease which had caused the death of his mother and other members oi his family, and that he conspired with P. to have the policy issued ■under an agreement that P., who had no insurable interest in his life, should have the benefit of the policy, which was a speculative contract and obnoxious to public policy. On the trial the proof showed that P. paid the first premium to the agent upon the assurance from the insured that he did so at his request. Afterwards an .agreement was made between P. and the insured that if F. .paid the premiums and a certain amount to parties designated by the insured at his death, that he could have the benefit of the policy. In this State the rule is well established that no one can enforce a policy of insuranee upon the life of another without having an insurable interest in the life of such person, but it is equally well settled that the contract of insurance is not violated by the designation of a person prohibited by law from being the beneficiary. The only interest of the stranger in such case is the right to have repaid to him moneys advanced to pay the premiums, and all the overplus oí tne fund belongs to the beneficiary who ■had an insurable interest in the life of the insured. The policy ■recognizes the right to change .the beneficiary and assign the policy, besides, under the laws of New York, policies are assignable to persons having no insurable interest in the life of the insured. ■</p> <p>2. Instructions — Fraud—Appellant offered no instruction on the question of fraud, and, therefore, can not complain on appeal of the action of the court in failing to give instructions.</p> <p>3. Evidence. — This court is not disposed to consider the question 'as to the verdict being against the weight of evidence when it is apparent from the .record that .part of the evidence heard on the trial is not embraced in the record.</p>

<p>1. Deeds — Land Conveyed, to Which Grantor had no Title.— The mere fact that a deed includes land' which the -grantor had a right 'to 'convey, did not vest his vendee with -either title or possession of land -which had not a valid legal title, although both contracts are covered .by the deed.</p> <p>2. Outstanding Title. — Where a party has had land i-n possession for more than the- statutory period., one wrongfully entering thereon can not defend his own wrong by showing- that there is an outstanding title in another, with whose title he has no connection.</p> <p>3. Presumption in Favor of Judgment. — After a lapse of twenty years it will be conclusively presumed in a collateral proceeding that the ordinary preliminary steps had been taken, particularly where the he-i-rs of the party affected by the judgment, which conveyed land, lived upon an .adjacent tract of land, -acquiesced in the judgment.</p>

<p>1. Adverse Possession — Streets.—Under Ky. St., 1903, sections 2,546, 2547, providing that limitations shall not basin to run in respect to actions by the city for the recovery of any -street until written notice to the council by the party in possession that the possession will be adverse, etc... the easement of a public highway must exist in the city during the period of adverse holding to prevent the running of the statute.</p> <p>2. Dedication — Dedication of Streets — Acceptance—Necessity.— The dedication of streets to be effectual roust be accepted by the municipality, and, unless accepted, the streers are not technically highways, and tlie adverse possession of them for the statutory period bars a right of the city to accept and opon them.</p> <p>3. Adverse Possession — Streets.—An owner platted his farm situated outside the limits of a city, and laid off the land into lots and. streets. A purchaser of the premises inclosed them with a fence, erected improvements worth over $200,000. and more than 15 years after the purchase the boundaries of a. city were so extended as to annex a part of the premises. There was never any acceptance of the streets by the county or city authorities. Held, that the city could not open the streets as indicated by the plat; limitations barring such right.</p>

<p>CASE 96. — ACTION BY MRS. MILLIE M’HARGUE AGAINST JARVIS L. JACKSON AND OTHERS TO RECOVER THE PRICE OF CONSTRUCTING A SIDEWALK.—</p> <p>Appeal from Laurel Circuit Court.</p> <p>From the judgment plaintiff appeals.</p>

<p>1. Judges — 'Disqualifiication — Bias — 'Object-ions'— Sufficiency. — In libel lor charging that plaintiff .published a forged letter, defendant moved that the regular judge vacate the bench and allow a special judge to preside, and filed an affidavit to support the motion, stating that the regular judge could not afford defendant an impartial trial, because he had openly stated his belief that the letter defendant claimed was forged was genuine, and had been in frequent communication with the plaintiff concerning its publication in plaintiff’s paper, out of which the alleged libelous publication herein arose, and was politically antagonistic to defendant, and had political bias and enmity toward it, and becar.se he had personally taken part in a recent political campaign out of which this suit arose -and ■ made speeches for the candidate whom defendant opposed, a-nd that the campaign was one 'of great bitterness, and the judge had become so prejudiced against defendant that he could not hear the case impartially. Ky. St. 1902, section 9G8, provides that if either party shall file his affidavit that the ■judge will not afford him a fair and impartial trial, or will not impartially decide an application for -change of venue, the •parties may by agreement select an. attorney to preside. Heidi that under the rule requiring the affidavit to state the fa'cts necessary to show that the trial judge will not afford the litigant an impartial trial defendant’s affidavit was sufficient, and ■the trial judge erred in refusing to vacate the bench.</p> <p>2. Same. — Under Ky. St. 1903, section 968, it is only necessary that the affidavit allege such facts which, if true, show that the trial judge will not, or may not, afford the litigant an impartial trial.</p> <p>3. Appeal and Error — Harmless Error. — When a litigant files an affidavit requesting a change of venue or of judges, and states therein sufficient facts to entitle him to the relief under the statute, the fact that the record does, not in fact show any subsequently occurring error prejudicial to the complaining party does not excuse the trial court’s refusal to vacate.</p> <p>4. Constitutional Law — Right to Justice — Foundation of Doctrine. —It is of the utmost importance, not only that every person should have a fair and impartial trial, but should hay e no just grounds of suspicion that he has not had such a trial, and to this end an impartial jury and an unbiased judge are absolutely essential.</p> <p>NOTE BY REPORTER. — This case of Rager v. L. & N. R. R. Co. is reported ¿n Vol. 187 CECy. Reports, on page 811, and by error of the reporter the opinion is attributed to Hon. Wm. Rogers Clay, Court Commissioner, and the case following, viz: .Smedley v. Commonwealth, is reported in volume 138 Ky. Reports on page 1, and by like error of 'the reporter is attributed to Judge Hobson.— Both of these cases were decided by Judge Settle, and are inserted in Vol. 139, so as to correct the error of the reporter.</p> <p>T. R. M’BEATH, Reporter.</p>

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

<p>1. Embezzlement — Nature of Offense. — Embezzlement is a statutory crime.</p> <p>2. Indictment — Requisites.—An indictment for embezzlement which alleged that accused received and had iu his custody ■a specified sum of money which was the property of the (State; ‘that the money was icollecteidl by Mm 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 Ky. St. 1909, section 1205, punishing for the misappropriation of property of the State, though it did not give the names of any of the persons of whom 'accused ¡collected- money for the State,' nor aver on what account nor the. amounts received of them.</p> <p>3. Indictment and Information — Bi-11 of Particulars. — Where the facts alleged in an indictment, alleging that accused embezzled money of th-e 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 known 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 ground1 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. — - Th-e 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>O. Criminal Law — 'Continuance—Grounds-—Unpreparedne-sis for Trial. — Where accused showed that he .had been confined in a lunatic -ásylum without opportunity to- -consult ba. counsel and without ability to assist in the case] and that during the short interval 'betw-eon his discharge from the asylum and the beginning of the trial his counsel was so constantly engaged in the trial of other cases as to render it impossible to give his ease, 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.” — Ky. St. 1909, section 905, providing for criminal terms of the .circuit ¡court of a county and for -civil terms thereof, divides t-he circuit court of the county imo criminal and civil terms, and white the one circuit judge of the judicial district embracing the county presides at both the criminal and civil terms, he is without jurisdiction to Ly a ¡criminal case at a -civil term or to try a civil .action at a criminal term, the wor.d-s, “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, and1 the word, "civil term,” applying to a term at which civil business is disposed of -and controversies • ¡co]gnizaible at liaw 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 inquest of lunacy, held at the same term of court at which the trial occurred, was admissible.</p> <p>9. On Petition for R-ehearing — Statutes—Special Law — Terms of Court. — Kyi St., section 965, in so far as it- undertakes to .divide the terms of the circuit court of MicCr-acken county into civil teims and criminal terms, is violative of Constitution, Sec. 59, sub-See. 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 — Effects of Partial Invalidity — Terms of Court. — The invalidity of a provision in Ky. St., Sec. 965, dividing the1 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 he disposed of.</p>

<p>1. Fraudulent Conveyances — Setting Aside1 — Actions—Pleading ICtoimpLaitmb — Sufficiency!.—Im ondlem to set ‘aside unite; time statute, a iconveyanicie of property ¡by a debtor, miada with! intent to defraud future creditors, -such! icfflediitor© mlust ihoitih .allege and ©movie time fraudulent intent.</p> <p>2. Same — Rights of Grantee — Credit for Purchase Money.— Where ;botih the grantor and grantee of land were ’guilty of actual fraud as to creditors of the former i.n the transaction the grantee was not entitled, on the setting aside of the conveyance, to a return out of the property of the purchase money paid 'by him.</p> <p>3. Same — Sufficiency of Evidence. — In an action to set aside a conveyance as fraudulent as to creditors of the grantor, the grantor’s son-in-law, to whose wife the conveyance was made, testified that on 'the day of the execution thereof the grantor said to him that he desired to go to a certain city to he treated1 for 'an abscess, and for that reason desired to sell ou-t; that thereupon the selling price of $2,000 was paid over on delivery of the deed; that the money was the proceeds- of the son-in-law’s savings for several years; that he had kept the same in his wife’s trunk most of the time. He lived within five miles of a city in the banks -of which he frequently had had money on deposit, was used to hanks -and expressed no fear of the banks being unsafe, .stating that he kept the money in the trunk to avoid .payment of taxes on it. Although the grantor’s medical treatment required a small sum, the conveyance covered everything he had. The son-in-law testified that he paid the money over to the grantor at the cm-niy e. erk’s office, but one of his witnesses stated that the money was paid at home. During the time the son-in-law kept nnomey in the trunk he was under otolágation® to .pay off a mqrígage on the conveyed premises of $1,000, drawing -interest at 6 per cent. It also appeared that immediately after completing the transaction the grantor left.the state and that his when-'louts were unknown. Held, sufficient to show acturJ f'-'ud in the conveyance.</p>

<p>¡CASE 101. — ACOTOiNi ¡BY J. G. ¡ROLWNiS AGAINST THE LOUISWLILE TIDMEIS -CIO.</p> <p>Appeal from Bell Circuit Court.</p> <p>Judgment for defendant and plaintiff appeals.—</p>

<p>CASH 100. — iPRlOlSEOTTIDON BY CCIMMONIWEALITHI AGAHNfST CIUROTS- JEÍTT POR. MJORODER.</p> <p>Appeal from Harrison Circuit Court.</p> <p>Defendant convicted and appeals.</p>

<p>Trusts — Authority of Trustees — Mortgage—Protection of Trust Estate — Where testamentary trustees were authorized by the will to do all things necessary for the proper care of the property, and given ail necessary .powers to accomplish the objects of the trust, they had authority to give a mortgage on the trust estate to secure mioney advanced, with which to make a settlement with those who had instituted a contest to establish the invalidity of the 'will, where an adjudication of invalidity would result in the beneficiaries ol the trust receiving nothing.</p>

<p>1. Married Women — Actions—Prosecution in Husband’s Right— Judgments — Entry After Constructive Service — Refunding Bond. — Under Civil Code Practice, Sec. 34, suh-Sec. 4, providing that a wife who is ¡deserted by her husband may bring or defend for him any action which he might bring, or .defend, with the same powers which he would have, a deserted wife who intervenes in a suit, claiming as a homestead, 'in her husband’s right, land on which she is living with her children, may appeal from a judgment disallowing her claim.</p> <p>2. Under 'Civil Code Practice, Sec. 410, providing that before judgment against a defendant constructively /summoned, and who has not appeared, a bond shall be executed, conditioned to restore any money or property obtained under such judgment, if it is vacated or modified on defendant’s motion, it is error to render a judgment -ordering a sale to satisfy liens on the household of a defendant constructively served, and not appearing, in the absence of proper refunding bond. ■</p>

<p>CASE 105. — ACTION 'BY THE COMMONWEALTH O'E KENTUCKY AGAINST CALEB POWERS.</p> <p>Appeal from Scott Circuit Court.</p> <p>Prom the judgment Caleb Powers appeals.</p>

<p>1. Appellant's Petition for Modification Overruled — Appellee’s Petition for Modification Sustained. — So much of the opinion heretofore delivered as held that the contract, which was the subject of this suit, was to end upon -thirty days notice prior to- April 12, 1912, is withdrawn as is also the -statement that no damage can he recovered for its breach accruing after ■thirty day-s from the filing of the answer in this case.</p> <p>2. Present Holding of the -Court. — W-e now hold that appellant understood by -the contract to maintain a telephone -exchange at Lebanon with such subscribers as it might obtain, and with such as it might -hayo during the term- of the contract ap-pellant was to have the privilege of connecting with their telephones for the use of its -patrons in -sending and receiving messages. But appellant -failed to maintain -an exchange at Leba-non and its failure is the sam-e so far as appellee is -conce-rne-d, as if it had refused to -put in the ex- . change at all or to afford an opportunity to the p-ublic -at Lebanon to becom-e its patrons.</p>

<p>Parent and Child — Action by Latter for Car© of Parent — Contract! —Pleading.—In 'this action to recover for services rendered) in cai’ing for their father during his latter years, the petition1 was properly dismissed because it was not alleged that there| was a promise on the part of the parent to pay for the services. While the services were necessary, under the repeatedj decisions of this court, in the absence of an express contract there can be no recovery for them. j</p>

<p>CASE 108. — ACTION BY VIRGINIA CROOKE AGAINST THE EXECUTRIX AND HEIRS .AT LAW, &c., OP W. S. HUME, DECEASED.</p> <p>Appeals from Madison Circuit Court.</p>

<p>1. Railroads — Shipment of Stock — Pleadings, Proof, InstruiH tions. — In this action by appellee against appellant for injury^ to a horse in shipment, the only issue made by the pleadings* outside of the extent of the injury, was as to whether it wasj received by the horse in being removed from the car, or inj being caused to jump from itbe platform to the ground, and the trial judge refused to instruct.upon this point, and madej the case turn upon an issue which was not raised by eitherj pleadings or proof. This was error.</p> <p>Z'. Same. — Appellee was entitled to recover, if at all, for an injury which was the direct cause of the accident, and in order to ascertain the extent of the injury, it would he competent •to show the condition of the horse immediately after the accident and following it down to the date of the trial.</p>