Volume 140 — Kentucky Reports

<p>Appeal from Trigg Circuit Court.</p>

<p>1. Step-father — Debauching Step-child — Trial—Absent Witness — • Motion for Continuance. — On the trial of a step-father, 72 years old, for the carnal Knowledge of his. step-daughter, under 16 years of age, the court properly refused to allow the defendant’s affidavit for a continuance to be read, of a nonresident witness, where no diligence was shown to secure her attendance, and no reason given for his failure to tahe her deposition.</p> <p>2. Refusal of Child to Testify — Commitment to Jail — Solitary Confinement. — On the trial of a step-father for having carnal knowledge of his 16 year old step-daughter, the court properly'committed her to jail when she refused to answer the question as to the defendant’s guilt, and properly ordered her baby to be taken from her, and placed her in solitary confinement when she persisted in her refusal to answer.</p> <p>3. Credibility of Witness- — Question for Jury. — On the trial of a step-father charged with having carnal knowledge of his 16 year old step-daughter, the credibility of the accused and his victim is for the jury, and -the court will not on appeal disturb their finding unless palpably against the evidence.</p>

<p>Appeal from. Shelby Circuit Court.,</p>

<p>Rape — Flea oí Guilty by Advice of Counsel. — On a plea of guilty in a rape case by a boy of 16 on a girl of 8 years of age, where the jury fixed the death penalty. Held, that the defendant being represented by an attorney of high standing, who advised bis client to plead guilty and take the chance of getting a life imprisonment; there having been hung juries on two previous trials, the verdict will not be reversed.</p>

<p>1. Rape — Infant Girl under Eight Tears of Age — Evidence of Infant —Capacity to Testify' — Question fo r Jury. — On appeal of a man convicted of rape on a girl eight years old, where the child testified to appellant’s guilt, and he denied it, no one else being present, the jury who heard the evidence and saw the witnesses are the best judges as to who Vas telling the truth.</p> <p>2. Infant Witness — Knowledge of Right from Wrong — Credibility for Jury. — The law recognizes no exact period of time at which infants are allowed to testify. Whenever it is apparent that a witness knows right from wrong and recognizes that punishment from God will follow falsehood, then he or she is permitted to testify, and the jury authorized to give such credit thereto as they may think it deserves.</p>

<p>Tins is an action for a sale of tbe land of W. R. Dewees, deceased, and a division of tbe proceeds among Ms heirs. The land was divided and sold in two tracts, one of 154.72 acres, and the other 91.62 acres. By mistake, a deed was made by the Commissioner to the purchaser of the large tract for 158 acres instead of 154.72. This deed was ordered to be corrected, and.a deed made -to tbe purchaser for 154.72 acres, to which he excepted and appealed. Affirmed.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>Appeal from Lee Circuit Court.</p>

<p>Appeals — Absence of Record — No Motion for New Trial — No Bill o£ Exceptions — Dismissal.—Where the record shows that no appeal was taken or prayed in the lower court from the decision of the trial court during the term or at any time, and no record filed in the clerk’s office of the Appellate Court within sixty days after the decision in the 'lower court was rendered, no motion for a new trial made, nor any bill of exceptions filed or any transcript of the evidence tendered or filed in court or attested by the trial judge, there is nothing to appeal from, and the appeal should be dismissed.</p>

<p>.Fire Insurance — Conditional Sale of Property — Subsequent Conveyance — Rights of Insured. — In an action by W. M. Duncan against the German Fire Insurance Company- on a policy of insurance on a hotel building known as the Galt House, in the city of Lawrenceburg, in February, 1909, which had been conveyed by Duncan to the United States for a postoffice. Held, that the execution and delivery of a deed to the United States, just prior to the fire, did not have the effect of divesting appellee Duncan of his title. In making the deed he was simply complying with . a contract he had theretofore made. The title did not pass until the deed was finally accepted by the United States. The transaction was not consummated until after the fire. Neither the conditional contract of sale npr the deed executed and delivered to the United States District Attorney, had the effect of divesting 'appellee of the beneficial ownership of the property at ihe time ■of the fire so as to avoid the policy of insurance.</p>

<p>1. Malicious Cutting — Verdict—Omissio-n of Word “Guilty” — Effect. • — On tire trial of one indicted for maliciously cutting another with ; intent to kill, the jury rendered this verdict: “We, the jury, do agree and find the defendant one hundred dollars and six months in jail and work.” Held, that the failure of the jury to say in the verdict that defendant was “guilty” did not render the judgment of conviction invalid.</p> <p>2. Defective Verdict — Failure to Object — Waiver.—The rule is well settled in this state that if a verdict is not 'as specific as desired the correct practice is, before the jury, is discharged to have ■them reform it. 'Allowing a jury to be discharged without objection and without a motion to have them correct or extend their verdict, will be deemed a waiver of formal defects in it.</p>

<p>1. Appeals — Belief of Court on Former Appeal — Effect on Second Trial. — 'The fact that on a former appeal this court did not believe there was a total failure of proof of defendant’s guilt, is binding upon the court in the same case on a second appeal, the same facts appearing.</p> <p>2. Peremptory Instruction — Test—Evidence Sufficient to Establish Guilt. — The test whether a peremptory instruction should he granted, is not whether the court from all the evidence may believe, even beyond a reasonable doubt, that the defendant is not guilty, hut whether there is any evidence in the record conducing to establish his guilt.</p> <p>3. Second Trial — Death of Witness — Proof of Evidence on • First Trial — Competency.—On a second trial of a criminal case, the defendant will not he allowed to prove by one who was present at the former trial, facts tending by contradiction to impeach an important witness for the prosecution who had died since tlie first trial.</p>

<p>In a prosecution against defendant for selling beer without a license, the evidence showed that he sold a liquid, called Dr. Fizz, that looked like beer, smelt like beer, foamed like beer, and tasted like beer. Appellant had a special tax license to sell spirituous, vinous and malt liquors and so did the manufacturer. The jury-found the defendant guilty. Held, that the finding was correct.</p>

<p>Homicide — Seeking a Difficulty — Intention to Kill Deceased — Instructions Given. — On tke trial of this case the court instructed the jury: . “If the jury believe and .find frc-m the evidence beyond a reasonable doubt that the defendant, armed with a deadly weapon, sought out the deceased for the purpose of engaging in a difficulty with him for the purpose of killing or injuring him, and, with the intention of bringing on a difficulty, used profane or insulting language to deceased, and did thereby bring on the difficulty in which deceased was killed, and willingly engaged in same up to the time he fired the fatal shot that took deceased’s life, then defendant cannot justify on the ground of self-defense and apparent necessity, unless -the jury should believe that the defendant had abandoned in good faith his intention to so bring on a difficulty for said purpose (if they believe he had such intention and did so) and withdrew in good faith from the conflict. * * *” Held, that the instruction was proper.</p>

<p>Appeal from Kenton Circuit Court (C. C. L. & E. Division).</p>

<p>1. Action on Note — Set-off—Allegations—Conclusions of Law — In an action on a note secured by a lien on land which the payee had transferred to another party, the defendant cannot plead as a set-off, that at the time of the transfer of the note the owner was indebted to him in certain amounts greater than the sum sued for, as such allegation is a mere conclusion of law, no facts being set forth showing how such indebtedness arose or that it is valid, or that it was a subsisting debt at the time the answer was filed.</p> <p>2. Pleading — Intendment Against Pleader. — The rule is elementary that every intendment is taken against the pleader, and in the absence of an allegation that the debt was still due and owing at the time the answer was filed, the conclusion is that it was not a subsisting debt when the action was instituted.</p> <p>S. Same — Pleading Counterclaim. — An answer pleading a set-off or counterclaim is demurrable which fails to state in the caption that such set-off or counterclaim, as the case may be, is relied ■on and failing to do so, under subsection 4 of section 97 of the Civil Code, he is not entitled to a judgment thereon.</p>

<p>Intoxicating Liquors — Sale in Local Option Territory. — In a prosecution against one for soiling whiskey in local option territory, the evidence showed that a fifteen-year-old brother, who was living with defendant, made the sale, and that defendant had a large quantity of whiskey in bottles stored in an old out-house, from which the sales were made. Appellant introduced no evidence. Held, that the jury' evidently did not believe that a boy under 16 years of age was carrying on such an illegal business without the knowledge and permission of his elder brother. •</p>

<p>Telephone Companies — Effort to Adjust Debts — Construction of Con•tracts — -Finding of Chancellar.- — 1This is a controversy between the Maysville Telephone Company against Walter Matthews and others, and E. L. Barter, of Ohio, who proposed to organize the Central Home Telephone Company and buy the Kentucky companies. Evidence considered, and held .that under the agreement made, appellants were to get $21,000 for their ■property in money and $29,00'0 in stocks, and bonds of .the new ■company, and that chancellor properly refused to reform contract.</p>

<p>Appeal from Edmonson Circuit Court.</p>

<p>Appeal from Wayne Circuit Court.</p>

<p>Appeal from Wayne Circuit Court.</p>

<p>Lewdness — Permission of Owner of Premises — Indictment.—In an indictment accusing certain named persons- with, lascivious, indecent, disgusting and vulgar conduct by having sexual intercourse with each -other in -a certain house with the knowledge and approval of the owner -thereof, evidence was admissible that such acts were committed on the premises outside the dwelling house, in the barn, orchard and yard. ;.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>Appeal from Larue Circuit Court.</p>

<p>Deeds — Father to Son — Alienation by Son — Reasonable Restriction— Validity. — A deed made by a father to his son for three surveys of land contained the following habendum clause: “Conditioned that the party of the first part reserves .unto himself the full control ■of said property during his natural life, and all the rents, profits and proceeds thereof, that are necessary for maintaining the party of the first part during his life, and conditioned further that the party of the second part shall not have power to sell, grant or convey said lands during 'the life of the party of the first part, but shall after the death of the party of the first part; be seized of an indefeasible title to the lands herein described forever.” Held, that this is a reasonable restriction upon the alienation by the son, whom the father evidently intended to protect, by preventing him from disposing of the property until he arrived at an age of more mature judgment. '</p>

<p>Bent — Judicial Sale — Eight to Rent — Understanding of Purchaser.— It is a well settled general rule in this State that the purchaser at a judicial sale is entitled to the possession of the property purchased when the sale is confirmed, and entitled to the rent from that date, but to this rule there is an exception, that if the purchaser buys the property with the understanding that he ’is not to get possession until a specified time after the sale, he will not be entitled to it before the time designated.</p>

<p>Sheriffs—Collection of. Taxes—Separate Funds—Commission Allowed. —Section 1729 Ky. Statutes provides that the sheriff shall receive fpr collecting the county levy 10 per cent, on the first $5,000, and 4 per cent, on the remainder. Section 4426a provides that for collecting the county school and high school district taxes the sheriff shall receive the same compensation as for collecting state and county revenue. Held, all taxes collected by a county constitute one fund and in estimating the .sheriff’s commission he is allowed commission on them as a single fund.</p>

<p>Judicial Sales — Infants’ Land — Failure to Appoint Guardian Ad Litem — Absence of Evidence. — In obtaining a judgment of sale for division of the proceeds among tbe owners of 90 acres of farming land, one-seventh belonging to two infants jointly, and six-sevenths to Mattie Roete, the whole tract appraised, at $500.00 and 'at the sale brought $1,50.00, to which exceptions' were filed. Held (1), that while it is the better practice to file the affidavit required by section 38 of the Code, prior to the appointment of a guardian ad litem, showing that the infant defendants had no guardian residing in the state, the failure so to do is -not a reversible error. (2) As the whole tract contains only 90 acres and appellant’s interest therein is one-fourteenth, it was not necessary to introduce evidence to show that the laud was indivisible without materially impairing its value.</p>

<p>1. Lunatics — Voidable' Contracts. — The contract of a, lunatic is not void, it is only voidable.</p> <p>2. Lunatics — Judicial Sale of Land — Joint Owners — Validity of Proceedings. — Cattie Willis was adjudged a lunatic, and E. B. Mason was appointed as ber committee. An action was brought by her to sell a city lot jointly owned by ber and, her sister Lula, and for a division of tbe proceeds in which action Lula joined, the lot being indivisible. The sale was made, by tbe master commissioner, Lula became tbe purchaser, and paid tbe money into the court and received tbe deed. Held, that tbe judgment and proceedings were binding on the lunatic, the commonwealth ■having been made a piarty to the suit.</p>

<p>Railroads — Injury to Passenger — Alighting from Train — Instructions to the Jury. — In an action by a lady passenger against the L. & N. R. R. Co. for damages for injuries in alighting from its train, in which she recovered $5,000 in damages, the court instructed the jury that it was the duty of the defendant to exercise the utmost care which careful and prudent persons are accustomed to exercise under like circumstances to carry the plaintiff and to stop long enough to allow her a reasonable opportunity to get off, and it was the duty, of the employes in charge of the train to exercise a like degree of care in assisting her to leave the train. Held (1), that the carrier does not contract to render a passenger personal service or attention in alighting from a train. (2) The court should have told the jury that the carrier was under no obligation to assist the'plaintiff in alighting from the car, but when the flagman undertook to assist her, it was his duty in doing so to exercise that degree of care that may reasonably be expected of a prudent person under like circumstances, and that if she accidentally twisted her foot in .stepping -from the car and so fell without being negligently jerked from it by the flagman, they should find for the defendant.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Contract — Breach—Action For Damages — Counterclaim—Appeal and Cross Appeal. — Jn this action by the American Radiator Co. against R. J. McKee & Others for damages in failing to comply with their contract in the construction of a large building in Richmond, Ky., at a cost of about $19,000.00 in which the plaintiff recovered damages for the amount of his claim, subject to certain credits, and McKee, &c., were allowed $500.00 damages on their counterclaim from which judgment both parties appeal. Held, .that the evidence is such as to leave the mind in doubt and for that reason the finding of the chancellor will not be disturbed.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>1. Pool Tables — License to Operate — Refusal of City Council to Issue — Authority of City Council. — In an action against the Clerk, Treasurer, Mayor and members of the City Council of a city of the fifth class for a judgment requiring them to issue a license • to the applicant authorizing him to operate pool tables therein, alleging that “he tendered to them the license fee of $200.00 fixed by the city ordinance, and which they refused to issue,” to which action a general demurrer was sustained- in the lower court. Held that under subsection 4, of section 3637 Ky, St., part of the charter of cities of the fifth class, the granting of such license is under the exclusive control of the city council.</p> <p>2. Constructive Refusal to Issue License. — The allegation of the refusal of the city council to grant the license amounts to a mere constructive refusal based upon the refusal of the Mayor either to refuse the money tendered or to issue the license.</p>

<p>1. Personal Injuries — Running Away of Carriage — Injury of Passenger — Damages Recoverable. — On tbe trial of this case in which a lady passenger recovered $1,000.00 damages against a transfer company for injuries sustained by her by the running away of the horses in. a carriage in which she -was riding, held that whether she was thrown out or jumped out, she was, under the facts shown, entitled to damages.</p> <p>?. Unsafe Team — Knowledge of Driver — Presumption.—Unless the driver knew that his horses were gentle and would stand without being held, it was his duty to have hold of the reins or to have hitched them. There being no evidence that the horses were gentle, the presumption is they were not.</p> <p>3. Excessive Damages — Finding of Jury — Compensation.—Damages in a case like this, it is practically impossible to estimate the sum that should be awarded as compensation, and so- where the plaintiff has -suffered injury and the award is not so. large as to appear excessive at first blush, or to be the result of passion or prejudice op the part of the jury, this court will not interfere with the finding.</p>

<p>Appeal from Caldwell Circuit Court.</p>

<p>Action for Injury — Failure of Proof — Peremptory Instruction. — The facts of this case are fully stated in the opinion delivered upon a former trial which may be found in 118 S. W. 342. As Jones’ whole case was grounded upon the proposition that his failure to inspect the car was due to the failure of the company t& fur nish him an assistant, it was necessary that he should clearly show that such failure deprived him of the .opportunity to carefully inspect the car. Upon this vital point there is a failure of proof and the court properly instructed the jury to find a verdicii for the defendant company. ■ .</p>

<p>Lien Notes — Premature Action Thereon. — Appellant' insurance, .company in 1900 loaned to Muscovalley $3,500.00 for which M. executed his note payable in ten years with interest payable annually Noy. 1, evidenced by coupon notes, each for one year’s interest secured by mortgage on 500 acres of land. M. sold 100 acres of the land to Mrs. K. and as part payment she assumed the payment of the mortgage note. In 1909 Mrs. K. died testate, devising $6,000.00 to her daughter and the balance of her estate to her son George. In an action by appellant against the administrator and devisees of Mrs. K. to collect the interest, held that it does not appear from the pleadings, in either the original or amended petition that default has been made in the payment of the principal debt or any installment of interest; that appellant was not entitled to collect its debt and interest until either the one or the other or both become due. This action, however, will not bar appellant’s right when default is made in the payment either of principal or interest as provided for in the mortgage and' note, to make proper proof of the claim and demand of the administrator and to sue thereon in case payment is refused. Judgment affirmed.</p>

<p>Appeal from McCracken.Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>1. Opium — Statute Regulating Sale of by Druggist, Upheld. — Section 2630 ¡of the Kentucky Statute® providing that the sale of opium and other poisons by retail, without a physician’s prescription, and subjecting the druggist to a penalty, unless the sale is for a legitimate purpose, is not void for uncertainty.</p> <p>2. Police Power of the State. — It is competent 'for the legislature under the police power to impose reasonable restrictions upon ■the .sale of drugs and poisons.</p> <p>3. Penal Statutes — Sufficiency.—A penal statute creating an offense must be sufficiently plain and exact to enable persons of ordinary intelligence to understand its provisions. Its mandate should be so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.</p> <p>4. Penal Statutes — Construction.—Every penal statute should be given a reasonable construction — one that will effectuate the legislative intent in its enactment; and if it describes the offense in language that can be understood by persons of ordinary intelligence, it will not be declared invalid on the ground of uncertainty. The established rules of construction do not require that the sufficiency of penal statutes should be measured by a technical standard that would impair their efficiency and make their enforcement difficult, if not impossible.</p> <p>5. Same. — When words aré used in a penal statute that have both a popular and a trade or technical meaning, and as used in the statute they have reference to .a trade or profession, these words in construing 'the statute should he given .their meaning as understood hy the trade or profession to which they apply.</p> <p>6. Same. — The construction of words and phrases in a statute is usually for the court; but if they are susceptible of two meanings, depending on .the state of facts it is attempted to apply them, to, the court may instruct the jury in the words of the statute and leave them to find from the evidence whether it has been violated.</p> <p>7. Retail. — The word “retail” means the sale of commodities in small quantities or parcels.</p> <p>8. Sale of Drug by Retail. — The sale of opium and other poisons, in the absence of a prescription, unless the seller in good faith exercises reasonable care to satisfy .himself that the purchaser intends to use the drug for a legitimate purpose, subjects the seller to the penalty denounced hy .the statute.</p> <p>9. Expert Testimony. — Druggists and physicians may testify as experts upon the question of whether or not a sale of opium or other poison hy retail is for a legitimate reason.</p> <p>10. Classification in Statute. — The fact that the statute is confined to sales hy retail, and does not apply to sales hy wholesale, is not an unreasonable classification. There is a well defined distinction between a sale of goods by retail and wholesale, and it was competent for the legislature in the exercise of the police power and to accomplish the purpose intended to make it a penalty to sell the prohibited article by retail without mentioning its sale in wholesale quantities.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from Scott Circuit Court.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>SecíJon 2557, Ky. St., provides that any person who- shall barter or loan, directly or indirectly, any liquors in local option 'territory, shall be fined, &c. * * * Subsection 2 of Section 2557 B, provides that it shall be unlawful for 'any person to sell, give, procure for, or furnish to another any spirituous, vinous or malt liquors for the purpose of selling them in local option territory, shall be fined not less than $50, nor more than $100, and imprisonment, &c. Held, this court has repeatedly decided that one who purchases liquor for another in local option territory, with money furnished by the latter, and who has no interest in the liquor, is not guilty of a violation of the local option law.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Accidental Injury. — Sinclair, a section hand, while engaged in company with other section men, in pulling out an old tie to replace it with a new one, was injured by a pick in the hands of one of the other men; Held, that under the facts the injury was accidental and there can be no recovery.</p>

<p>Appeal from Barren Circuit Court.</p>

<p>Appeal from Christian Circuit Court.</p>

<p>1. Wills — Devise for Life¡--Remainder to Third Person — Restriction —Dying Without Children. — Where an estate is devised to one for life with remainder to another, with the provision that if the remainderman should die, -then to a third person, ithe words “dying without children or issue,” are restricted to the death of ¡the remainderman before the termination of the particular estate.</p> <p>2. Same — No Intervening Estate — Defeasible Estate. — If, however, .there he no intervening estate, and no other period to which the words “dying without issue” may be reasonably referred, they are held to create a defeasible fee which is defeated by the death of the devisee at any time without issue then living.</p>

<p>1. Telephone Companies — Duty and Liability Of in Furnishing Telephone Service. — A telephone company is a common carrier, engaged in a public service, holding itself out to the public in consideration of certain fees exacted, as able, ready and.willing to enter into contracts that will place persons in direct communication with each other and enable them to talk one to the other.</p> <p>2. Same — When Contract Is Entered Into. — Whenever a person, desiring the service, pays the stipulated price, or it is sought under an arrangement that will enable the company to .collect the usual charge, a contract is entered into between the person desiring the service and the company, by which the company obliges itself to furnish the required service, and failing to do so may be compelled to respond in damages.</p> <p>3. Same — Payment of Service Fee. — It is not necessary that the service fee should be paid by the person sending the message, or that the contract to pay it should be entered into by him. If the fee is paid, or an agreement to pay it is made'with a person accepted by the company as responsible, the contract to render the service is as valid as if the fee had been paid in advance by , the sender or sendee. . ' " '</p> <p>4. Same — Rights of Non-Subscriber Using Subscriber’s Telephone.— If a regular subscriber for telephone service agrees that if a non-subscriber uses his telephone he will pay the fee; and he permits the non-subscriber to use it, he is liable for the service fee, and the non-subscriber using it occupies the same attitude as the subscriber. If the subscriber could recover for a breach of contract, so can the non-subscriber.</p> <p>p. Same — Not Obliged to Render a Gratuitous Service. — A telephone company is not obliged to render gratuitous service; and being under no duty, there is no liabilty upon its part for failing to do that which its duty to the public does not require it to do.</p>

<p>Appeal from Spencer Circuit Court.</p>

<p>Appeal from Warren Circuit. Court.</p>

<p>Appeal' from Meade Circuit Court.</p>

<p>1. New Trials — Newly Discovered Evidence — Cumulative Evidence— Impeaching Witness. — A new trial will not be granted on account of newly discovered evidence which is merely cumulative, or which only tends to discredit or impeach an opposing witness.</p> <p>2. Same. — It is a fundamental rule that a new trial will not be granted for newly discovered parol evidence if it be doubtful whether it would have any preponderating influence upon another trial.</p>

<p>On -the trial of an action for trespass-to a field of land, tbe court instructed tbe jury that if they believed from the evidence that plaintiff had been in -the actual, open and notorious possession of the land, holding and claiming it against -the defendant and all the world for 15 years before the institution of the action, they must find for her, and if they further believed from the evidence that the trespass was done in a wanton, malicious, highhanded and oppressive manner, they might in their discretion award punitive damages. Held, this was a correct statement of the law, and an award by the jury of $300.00 in damages was not excessive.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Signature to Note — Genuineness Thereof — Evidence Considered. — The question in this case is whether the note sued on fo-r $1,500.00 alleged to have been signed by the deceased wife of the plaintiff m payment of money owing by her to him. Held, that witnesses familiar with and who knew the characteristics of her writing, and friends with whom she had corresponded, all declare the signature genuine, and there being no incentive for him to have forged the signature, we think the note is genuine, th-o-ugh the special circuit judge who tried the case in the lower court held it was not genuine.</p>

<p>Appeal from Marion Circuit Court.</p>

<p>1. Land — Action in Ejectment — Strength of Plaintiff’s Title — Weakness of Adversary’s. — To recover land in ejectment, the plaintiff must rely on the strength of his own title and not on the weakness of his adversary’s.</p> <p>2. Deed — Adverse Possession of Another — Champerty.—A deed to land which at the time was in the adverse possession of another, is champertous and void as against the possessor thereof.</p> <p>3. Contract for. Land — Writing—Held Not Binding. — A letter was written by an heir to another heir of a lot, that he wanted to buy the lot, to which she replied that she would as soon he would have it as any of the rest of the heirs, and would sell it to him. Held, there was nothing in this correspondence to bind either of the parties in any way.</p>

<p>Appeal from Carter Circuit Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>Appeal from Trigg Circuit Court.</p>

<p>Appeal from Woodford Circuit Court.</p>

<p>Appeal from Lee Circuit Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>Appeal from Clinton Circuit Court.</p>

<p>Appeal from Mercer Circuit Court.</p>

<p>Appeal from Greenup Circuit Court.</p>

<p>Appeal from Clark Circuit Court.</p>

<p>Schools and School Districts — City Schools — Board of Education— Authority to Levy Tax. — The Legislature of Kentucky by placing the public schools of third class cities in the hands of boards, did not mean that either the city, the general council, of the courts should control them; it meant to make the boards of education entirely independent. To that end it made it the duty of the general council to levy a tax sufficient to meet the boards’ demands, not to exceed the limits prescribed by* law..</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>Appeal from Lincoln Circuit Court.</p>

<p>1. Indictments — Necessary Allegations.— An indictment must charge in the accusative part the public offense which it is intended ito present, and in the descriptive part must state the facts which, if established by the proof, constitute the offense charged.</p> <p>2. Same. — An indictment must be direct and certain, (1) as to the party charged, (2) the offense charged, (3) the county in which the offense was committed, and (4) the particular circumstances of the offense charged if they be necessary to constitute a complete offense. (Crim. Code, section 124.)</p> <p>3. Several Offenses — Election of Prosecuting Attorney. — When the •same act may constitute either of several offenses, it is at the election of the prosecuting attorney, or if an indictable offense, at the election of the grand jury, to determine which of the offenses the accused will be put on trial for.</p> <p>4. Seduction Under Promise of Marriage — Abandonment.—An indictment charging that the accused willfully abandoned a female under 21 years of age, whom he had seduced under promise of marriage, within three years after the marriage, is not good in this state, as it does not state in what county the seduction occurred, or ¡that it occurred in this state.</p> <p>5. Same — Filing Away or Dismissing Indictment — Re-instatement— Re-indictment. — Two courses are open to the commonwealth in prosecutions for seduction when the accused marries the girl he seduced, — one is to continue the indictment on the docket for three years, or to file it away with leave to re-docket upon notice; the other is to dismiss it, and if within three years after •the marriage cause arises for resuming the prosecution, such as abandonment, to re-indict the defendant. That the former indictment was dismissed without a trial or without his- being placed in jeopardy under it, is not a bar to a subsequent prosecution for the same offense. A prosecution is suspended when the indictment is dismissed without a trial and judgment on the merits, and it may be renewed by re-indicting the accused.</p>

<p>Appeal from Washington Circuit Court.</p>

<p>Surety — Discharge Of. — When there is placed in the custody of the surety, as a part of the agreement with the creditor by which the obligation of suretyship is assumed, property or securities o'f the principal, to be held by the surety as indemnity, and the creditor directs the surety who is holding the property or securities for the -purpose mentioned to deliver or surrender the same to the principal, the surety will be released to the extent ■of the value of the property or securities so delivered or surrendered.</p>

<p>1. Judicial Sales1—Setting Aside.—Although inadequacy of price alone is not a sufficient reason for setting aside a judicial sale, yet if there is coupled with it facts indicating that irregularities were practiced by the purchaser or officer making the sale, or that by misiortune or mistake the owners of the land were prevented from being present, the court will readily seize either of these circumstances and make it grounds for setting aside the sale.</p> <p>2. Same — Conditions Should Not Be Imposed Before Setting Aside Sale. — When a judicial sale is set aside for good cause, it should be done without -attaching any conditions to the order, such as requiring the persons who make the motion to give bond that • they will start the bidding at a specified sum at the re-sale; but, if a bond is voluntarily tendered, conditioned that the bidding at a re-sale will be -started at a certain sum, the court may receive it, and so' order the re-sale, and hold the bondsmen liable on their promise.</p> <p>3. Fixing Uip-set Price. — The court may also when iit -seems proper and right, fix a price below which the -property cannot be sold.</p>

<p>Wills — Right of Devisee to Renounce Provision of. — Under section 2067 of the Kentucky Statutes a devisee, including the husband, may disclaim within the time provided in the statute a devise for his benefit; but the right of election is personal to the devisee and cannot be exercised by any other person for him or after his death by his personal representative; unless the devisee is an infant or person of unsound mind, and if he is, the court may during his life and within the time allowed renounce the devise if it is to -the interest of ¡the infant or person of unsound mind to do so.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>1. Judgment .on Demurrer — Intendment—Pleading.—After judgment on demurrer tbe intendment of tbe law is in favor of the court’s action; hence a failure to allege in tbe pleading every fact necessary to support a right contrary to the judgment, is taken against the pleader.</p> <p>2. Land — Void Sale — Recovery of Purchase Money — Lien—Possession — Consideration.—Although a parol contract for the sale of land is void, the vendee in such sale had the right to recover the purchaes money from his vendor as for money had and received. Equity would not require him to surrender his possession until the purchase money was repaid to him, and he was entitled to a lien on the land until he was reimbursed. His lien grew out of the fact of his having paid the money and being in possession. The possession was essential to the existence of the lien. The lien existed solely as the creature of equity, the chancellor refusing to lend his aid to enforce the vendor’s legal rights until he had done equity by restoring the consideration which he- had received upon his unenforceable agreement.</p> <p>3. Resulting Trust — Implication of Law — Presumption of Agreement. — At common law, where the consideration for land was .paid to one person and the title taken to a third, being a stranger in relation to the person paying the consideration, the person taking the title holds it in trust for the person making the payment. The presumption is -that there was an 'agreement to that effect, and a trust in behalf of the one paying the consideration resulted which attached to the land, and is denominated a resulting trust, and is raised by implication of law and presumed always to have been in the contemplation of the parties.</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>1. Railroads — Fires—Injury to Crops — Defective Spark Arrester— Evidence of Other Fires — Competency.'—In an action against a railroad company for damages to the crops of the plaintiff who lived on the railroad line, alleged to have been set out by sparks from the railroad engine, proof of fires occurring three and four months previously along the railroad line was properly excluded by the court as being too remote to be of any assistance to the jury in determining the issues presented. The court did not err in permitting appellee to show that there were other grades on its line of road steeper and heavier than that adjacent to- appellant’s field, where no fires had occurred prior to the time complained of.</p>

<p>1. Criminal Law — Misconduct of Counsel in Argument. — It is error for tile commonwealth’s, or other attorney, in argument to stale facts of an evidential uature in the case not in evidence before the jury.</p> <p>2. Same — Duty of Trial Court. — When the commonwealth's, or other prosecuting attorney, violates the rule forbidding improper argument and bringing into the case facts of an evidential nature not proven before the jury, upon objection by the accused, the trial court should reprimand offending counsel and admonish the jury, and where the offense is such as that the probable effect of the improper statement cannot probably be remedied by the court’s 'admonition, the court should direct the jury to be discharged, the defendant consenting, and a new trial ordered.</p> <p>3. Same — Misconduct of Juror. — When the court was made aware that a juror in violation of the court’s admonition, had suffered a relative of the accused to approach him during the trial and to discuss with him the case on trial, H is the duty of the court to bring the fact to the knowledge of counsel in the case. If the prosecution elects to bring evidence of the fact to the jury as evidence, as other evidence is introduced in the case a, ";nst the accused, it must show that accused was party or privy to the improper conduct, when the whole matter will be for the jury as to the effect of the transaction as illustrating the guilt or innocence of the accused. If no evidence on that point is in- • trodueed before the jury, the court should, not suffer it to be commented on in their presence. The offenders may he tried for contempt in the presence of the jury, or not, as the trial court in its discretion may adjudge.</p> <p>4. Improper Argument — Effect of Ccrart’s Admonition. — A statement in argument by the prosecuting attorney that “an outraged populace is appealing to you to do your duty in the case,” was improper. Where the court rebuked the offending counsel and. charged -the jury to disregard the statement, the effect of the misconduct of counsel was cured.</p>

<p>Appeal from Clay Circuit Court.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>Venue — Actions—Transitory Actions — Damages on Injunction Bond.— An action for damages on an injunction bond, under sections 62 to 77, Civil Code, is transitory and must be brought in the county in which the defendants reside..</p>

<p>Parent and Son — Loss of Son’s Services — Dangerous Employment— Knowledge of Parent — Recovery of Damages. — Where a father manumits his infant son or consents to his employment in a saw-mill, he cannot recover damages for loss of his son’s services by reason of an injury to him in the saw-mill.</p> <p>(The evidence in this case shows that the father not only knew of, but requested the defendant to employ his son at the mill.)</p>

<p>Fraternal Orders — Forfeiture of Right to Benefits In. — Where the bylaws of an order provide that the widow of a member shall not be entitled to death benefits if his death was caused or produced by the use of intoxicating liquors, this by-law of the order may be pleaded as a defense to an action against it to recover benefits.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Tavern License — Privilege of Retailing Liquors — Application Refused. —In an application by one for a tavern license, with, the privilege to sell liquors by retail, where 'the applicant admitted in his examination as to his qualification to engage in the business that he had been selling whiskey during the previous six months and for several years prior thereto without a license, the county court had a right to conclude that he would not keep an orderly house, and properly refused to grant him a license, and the circuit court on appeal properly upheld the judgment of the county court.</p>

<p>Appeal from Marion Circuit Court.</p>

<p>Witnesses — Demeanor—Credibility—Number—Weight.— The demean- or of a witness often throws great light upon his credibility, and the verdict of a jury having the witness before them is rarely disturbed simply because the number of witnesses on one side' is greater than on the other. It is the familiar case where one witness swearing positively to a fact as to which he could not he mistaken if truthful, is believed by the jury rather than several witnesses who, though equally sincere, might he easily mistaken. Witnesses are to be weighed, not counted, and verdicts will not be set aside on mere numerical weight of evidence unless supported by circumstances.</p>

<p>Appeal from Knox Circuit Court.</p>

<p>Land — Life Tenant — Improvement—Personal Charge Against Remainderman. — The rule in this state is that a life tenant cannot expend money or labor in improving land and charge it on the estate in remainder or make it a personal charge on the remainderman, and 'the fact that the .tenant supposed he had an absolute . title to the property does not prevent the application of the rule.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Ohio Circuit Court.</p> <p>1. Option Contract — Action to Enforce — Properly Rights — Coal Privileges. — In an action to enforce an option contract for coal privileges on a tract of 250 acres of land, with the right of mining and removing all the coal underlying it, and the right for a pass-way for other coal on other land, for which appellant declined to accept a conveyance tendered by appellee on the ground that it was not underlaid with any coal of workable and merchantable quantity and quality and that it was subject to overflow during high water so that the mine could not be worked; Held, that the contract being in reference to a property right or privilege in the land which might or might not in the future prove to be valuable, it would support an action to enforce it, nothing else appearing.</p> <p>2. Same — Resistance—Substantial Pacts — Burden.—If the enforcement of a contract is resisted, it must be upon some substantial fact which, when established, would show the chancellor that that, which was otherwise an enforceable agreement was, because of the facts proven, not enforceable in equity, inasmuch as to enforce it in the light of the facts proven would be to work a manifest injustice. The burden of showing the facts necessary to arrest the plaintiff’s right of action under the contract was upon the defendant, the- contract on its face appearing to be fair, and the facts relied on must be made to 'appear from the preponderance of all the evidence in the record.</p> <p>3. Facts to Be Shown — Conflicting Evidence — Burden -of Proof.- — Appellants contend that the vein of coal found is not workable because the surface of -the land is below high water, and the vein too near the surface to be mined. On that score, the evidence is conflicting. The burden of .proof was -on the appellants, and they have -failed to show it. It was within their power to show the exact .situation. This they did in such manner as to be not conclusive or even reasonably so. They so' conducted their explorations as to leave the matter in doubt, and they ask the court upon that doubt to relieve them fro-m their performance of the contract. The plaintiff made -out a prima facie case; the defendants failed to establish the facts upon which their defense is based. The judgment for the defendant was right.</p>

<p>Appeals from Lee Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p>

<p>1. Non-resident Defendants — Allegation of Petition- — Bonds for Costs — Estoppel.—An allegation in tlie petition that the defendant was a resident of Simpson county, Kentucky, will not estop the plaintiff from showing the real facts as to his residence, and when he resides out of this State may require him to give security for costs.</p> <p>2. Same — Unfair Discrimination. — Sec. 744 of the Code providing that the “appellant may be required to give security for costs as plaintiff in civil actions may be so required,” is not unconstitutional as an unfair discrimination between non-resident defendants who appeal, and resident defendants.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>1. Fiscal Courts — Appointment to Office by — The fiscal court has no power to appoint one of its members to any office, place or position. And the fact that the appointment is made a few days before the member assumes the duties of his office, and that the services to be performed, as well 'as the compensation to be allowed, will be under the control of a new fiscal court, of which he is not a member, does not change this rule.</p> <p>2. Bridge Commissioner. — The fiscal court may at any time remove a bridge commissioner appointed under authority of sections 4329 and 4330 of the Kentucky Statutes, and appoint another in his place.</p> <p>3. Void Appointment Cannot Be Ratified. — A void appointment -made by the fiscal count cannot be ratified by the subsequent acts of the court.</p>

<p>1. Adverse Possession by Junior Title Holder. — To enable a junior title bolder to hold by adverse possession 'a tract of land embraced by a senior title, it is necessary that be should actually O'ccupy the land and remain in actual possession con-Unnously for fifteen years, claiming the same to a well-defined boundary. The fact that be resides on and has actual possession of an adjacent tract will not give him adverse possession of the tract covered by the senior title, although he may claim to own it in connection with his other land.</p> <p>2. Constructive Possession Follows Title. — The owner of the legal title to land is in the constructive possession of it although he 'may never actually occupy it; and this constructive possession cannot be defeated by -adverse possession, unless it be an actual occupancy of the land.</p>

<p>Appeal from Ohio Circuit Court.</p>

<p>Tlie question in this case is as to the commission of appellee for •securing certain advertising matter for the Western Recorder. Held that if the contract as made was entered into by mutual mistake and did not express their true agreement it was proper for the chancellor to reform it.</p>

<p>Appeal from Boyd Circuit Court.</p>

<p>Contract — Unloading Coal From Cars on Track — Damages for breach — Appellees claim they made a contract with appellant tc unload all the coal received by the appellant company at Lexington, within a certain time named, at 14 cents per ton. Appellant contends the contract only embraced the coal then , standing on its tracks ready to be unloaded, estimated at 500 cars. Held that the question of law growing out of the facts proven were fairly given to the jury, a careful reading of the record convinces us that the verdict and judgment awarding appellee $2,000.00 damages were warranted both by the facts and the law.</p>

<p>1. Libel — Necess'áry Allegations — Subjecting Defendant to Ridicule. —A writing is libelous if it subjects tbe person referred to, to odium or ridicule or tends to subject him to obloquy.</p> <p>2. Special Damages — Loss -of Employment. — In an action for libel, no special damage can be recovered such as a loss by the plaintiff of his agency for an insurance company, in the absence of an allegation of such loss and damage.</p> <p>3. New Trial — Motion Overruled — Additional Grounds Piled. — Where a motion for a new trial was made by the defeated party on the day after the verdict which was overruled, but no order was entered, the court properly allowed additional grounds to be filed on the next day, based upon accident and surprise preventing the defendant from appearing and defending.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from Jessamine Circuit Court.</p>

<p>1. Railroads — Acquiring Real Estate — Actual Use — Liability to Es-cheat — Prevention by Litigation. — A railroad may acquire real estate for the purposes of right of way before it has actual use for it, and may hold it without such use for five years without liability to escheat. But there should not b'e estimated as part of the dormant period such time as the corporation was prevented by litigaton from occupying the land for the purpose for which it was acquired.</p> <p>2. Corporation — Needless Inactivity in Use of Land — Constitutional Provision. — Section 192 of the Constitution was aimed at needless inactivity in a corporation’s ownership of land, it being intended that the corporation must put it to the use for which it was acquired and allowed by the charter, or to dispose of it so that somebody else might put it to some proper use.</p> <p>3. Same — Inaction from Force of Law — Effect.—When, however, the corporation is not inactive from choice of conduct or because of its negligence, but from the force of law,.the evil which it was intended to remedy does not in that case exist.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal's — Consideration by Appellate Court — When Reversible — Error Reasonably Clear. — It is the duty oí this court to reverse a chancellor on a question oí fact only when it ia reasonably clear from the evidence that an error had been committed, and in all cases where there is grave doubt, to affirm.</p>

<p>Standing Timber — Sale by Written Contract — Removable in Five Years — Enforceable by Assignee. — A written contract for . the sale of standing limber in which the owner gave the purchaser five years in which to remove it from the land, is assignable for a valuable consideration, and passes the title thereof to the assignee, with the right of removal within the five years.</p> <p>KAST-I & HASH, CHESTER A. BACII and GRANNIS BACH for appellant.</p>

<p>Standing Timber — -Sale—Error in Deed — Equipoise- Evidence — Affirmed. — In this action for the sale of -standing timber, in which it is alleged that there was an error in the deed as to the exclusion of certain timber thereon, Held, that the evidence is so nearly equipoised that we -decline to disturb the judgment for appellees.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Appeals from Owen Circuit Court.</p>

<p>Appeal from Marshall Circuit Court.</p>

<p>Appeal from McCracken Circuit Court.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from. Jefferson Circuit Court (Chancqry Branch, Second Division).</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Appeal from Jefferson Circuit Court’ (Common Pleas Branch, Second Division).</p>

<p>1. Counties — County Officers — Indebtedness to County — Limitation of Action. — A commissioner, upon appointment of the Laurel county court to make a settlement with tbe county treasurer, found that the county was indebted to him in the sum of $5.02, which was then paid to him by the sheriff. Later, after the death of the treasurer, an action was ’brought by Laurel county against his executor to surcharge the settlement, claiming a large sum was due the county. Held, that 'such settlement can not be attacked after the lapse of more than ten years thereafter, and the fact that the commissioner, in making the settlement, relied on the treasurer’s hooks, does not detract from its binding force.</p> <p>2. Settlement by County Officer — Action to Surcharge — Statutory Period. — Where a county treasurer made a final settlement of his accounts and satisfactorily accounted to the county for the balance found to be due in his hands, his position of trustee, - if such it may be called, thereupon ceased and he thereafter occupied the position of creditor only, and the county having failed to surcharge the settlement within the statutory period, cannot thereafter do so.</p>

<p>Appeal from Henry Circuit Court.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p>

<p>Contract — Sale of Timber — Conflicting Evidence — Finding of Chancellor Affirmed. — In this controversy for the sale of certain growing timber, including an engine, boiler, and saw-mill, with tools... machinery, bellows, anvil, blacksmith tools, one yoke of bulls, ■four yoke of oxen, and a wagon, for $3,300, on which $1,090 was paid and balance secured by lien; Held, that while the weight of the evidence, numerically considered, may be with appellants, yet all the circumstances tend to> corroborate appellee and his witnesses. As the whole matter is one about which men might honestly differ, it follows that there is a sharp conflict in the evidence. A careful reading of the record, however, convinces us that the finding of the chancellor for the appellee is correct, and the same is affirmed.</p>

<p>Guaranty — Sale ol Roofing — Action for Damages — Question for Jury. —In an action to recover'$639.08, the price of roofing to cover a tobacco barn stored with tobacco, which was guaranteed to. last as a perfect roofing for five years, and which had leaked and spoiled the tobacco, for which damages was claimed, which guaranty was denied, I-Ield the evidence abundantly shows that appellant’s agent, who made the sale gave a verbal guaranty that it would last for five years, and the trial court was authorized to submit to the jury the question as to whether or not the guaranty was given . and broken.</p>

<p>Contract — Collecting Claims — Failure to Allege Fraud or Deception. —-Appellee instituted this suit against appellant to recover $1,200, which it alleged appellant had collected -through E. E. Paine-, agent for appellant, against the L. & N. R. R. Co., and to require him to surrender a balance of the claim of $2,200, not collected, which he refused to surrender. Held, w-e can see no reason for appellant -avoiding its contract with appellee made in 1909, because there was a mistake committed in the contract with Paine in 1908, unless it was. shown that the contract made with appellee was obtained by fraud or deception, “ which i-s not alleged.'</p>

<p>Appeal from Fayette Circuit Court.</p>

<p>Railroads — Crew Using Push Car — Injury to Trespasser on Track— Failure to Stop Car — Liability.—Where a trespasser who. was deaf, was seen walking on a railroad track ahead of a push car on which a railroad crew was conveying a load of rails at the rate of four lo six miles an -hour, the crew was not required to stop their car unless they had reason to believe that the man was unconscious of his danger.</p>

<p>Appeal from Boyle Circuit Court.</p>

<p>Witnesses — Impeachment—Statements in Deposition.-rA witness cannot be impeached as to statements made in his deposition unless lie was asked if he did not at a certain time and place in the presence of certain persons make statemerijis inconsistent with his deposition.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>1. Debtor and Creditor — Payment—Application—Innocent Third Person — Notice to Creditor. — In order to deprive the creditor of the right to apply a payment where the creditor 'does not direst the application, it must appear that the money of the innocent third party can be traced through the debtor to ‘the creditor, and the creditor must know that he is receiving the third person’s money, or there must be facts sufficient ‘to put him on notice.</p> <p>2. Equities of Parties — Knowledge of Creditor. — The equity of a property owner cannot affect the material man when it is unknown fto him, and he acts innocently in crediting a payment ihy the contractor on a prior debt.</p>

<p>Appeal from McCracken Circuit Court.</p>

<p>1. Contracts — Written 'Contracts — Intention of Parties — Failure to Express — 'Misapprehension or Mistake. — The rule is well settled in this State that where the true 'intention of the parties to a contract is not expressed by the writing to which it is reduced, it is competent for the parties to allege and prove that the real contract between them, by mistake of the .draftsman, had not been reduced to writing, and it is immaterial whether the mistake is due to a misapprehension as to the effect of the words used, or to a mistake in any other respect.</p> <p>2. Mistake — Ground For Relief — Fraud of Other Party. — A mistake on one side is ground for relief when such mistake is caused by fraud of the other party.</p>

<p>Appeal from Payette Circuit Court.</p>

<p>Appeal from Letcher Circuit Court.</p>

<p>Appeal from Daviess Circuit Court.</p>

<p>Appeal from. Marshall Circuit Court.</p>

<p>1. Personal Injuries — Street Railway Companies — Instruction.—In an action against a street railway company to recover damages for personal injuries, tbe motorman is only required to exercise ordinary care with tbe means at his command to stop tbe car in order to prevent a collision, and it is error to instruct tbe jury that tbe motorman is under a duty to stop tbe car without adding “if be can do so in tbe exercise of ordinary care with the means at bis command.”</p> <p>2. Same. — It is not reversible error for the trial court in civil cases to fail to give instructions that are not requested.</p> <p>3. Pleading — Special Damages — Instructions.—The petition in an action to recover damages for personal injuries averred that the plaintiff had and would expend $50.00 for medical treatment, and had lost time of the value of $48.00. These items constituted claims for special damages, and 'the jury in the instructions should have been limited in the assessment of damages on account of medical services and time lost, to the sum claimed in the petition.</p> <p>4. Damages — Special and General — Pleading.—It is not essential to the statement of a good cause of action that the pleading should state in detail 'the items of damage that the plaintiff has sustained by reason of the injuries complained of. The pleader may in a -general way describe the negligence, and the nature and extent of the injuries; but if it is desired to recover, in addition to general damages, special damages as for lost time and expenses incurred in effecting a cure, the pleading must state the amount sought to be recovered for special damages and the' instruction should limit the recovery on this account to the amount mentioned in the pleading.</p> <p>5. Special Damages — Pleading—Instructions.—If when the petition is filed or when the trial is had the plaintiff does not know the total amo-unt that he will have to expend in effecting a cure, or the value of the time he will lose, he -should state an amount large enough to cover the sum that he will expend, or lose, on this account, and if the evidence justifies it the jury should be directed to award such a sum, not exceeding the amount claimed as will compensate him for the amount expended or that may thereafter be expended in effecting a cure, and for the time lost, and that will he lost.</p> <p>6. Special Damages — -Lost Time. — When a recovery of special damages is sought for lost time there may he a recovery for lost time without reference ito whether the injury is permanent or temporary; and it may be in addition to the amount that is allowed for permanent or temporary impairment of the power to earn money, hut it should end when 'the allowance for impairment begins.</p> <p>?. Special Damages — Lost Time. — Impairment of the Power to Earn Money. — In actions for personal injuries, there may be a recovery for time wholly lost as well as for the partial impairment of the power to earn money from the time the injured person is able to earn some and until a complete cure has been effected.</p> <p>8. Special Damages — Lost Time. — When it is sought .to recover for lost time, as well as for the impairment of the power to earn money, the jury should he Instructed that if they allow for lost time and also allow for the impairment of the power to earn money that the allowance for impairment of the power to earn money should begin when .the allowance for lost time ends.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>1. Nuisance — Draining Water in Cellar oí Dwelling — Damages Recoverable — Temporary Structure in Street. — In an action by the owner of a dwelling against a city for damages by flooding her cellar with water in negligently constructing a drain pipe across the street adjacent thereto, the correct measure of damages is a sum sufficient to restore the property to its condition prior to the injury and to compensate the owner for the diminution in the value of the use of the property during the continuance of the nuisance up to the filing of the petition. Then if the temporary structure is not thereafter removed and the property is ■ again injured, the owner may again recover.</p> <p>2. Same — Permanent Structure- — Measure of Damages. — If, however, the structure is permanent, not only must all damages, past, present and contingent, be recovered in one action, but they accrue when the structure is completed, or at least when the first injury is occasioned, and the measure of damages is the difference in the market value of the property before and after the injury.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).</p>

<p>1. Fraudulent Conveyance — Incompetency of Vendor — Question of Fact — Finding of Chancellor. — This is an action to set aside an alleged fraudulent conveyance 'by reason of the mental incompetency of the vendor. Held, that the mental incompetency of the vendor at the time of her conveyance is one wholly of fact, and it has always been our rule where the evidence was practically equiponderant to refuse to set aside the chancellor's finding of facts. He being on the ground and presumptively knowing the witnesses, his opinion is entitled to great weight at our hands.</p> <p>2. Evidence — Weight—Weakness of Mind. — We do not attach much weight to the fact that the alleged imbecile was permitted to consummate a contract of marriage with J. M. Lawson. If her weakness of mind was such that she could be overreached and defrauded out of her land, we see no' reason why she should not also be inveigled into a contract of matrimony.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>1. Contracts — Construction of. — When there is no charge of fraud or mistake in the execution of a contract, it must be construed according to its terms, and when it is not susceptible of more than one fair and reasonable construction, its interpretation is a question of law and it becomes the duty of the court to construe it according to its terms as written.</p> <p>2. Contracts — Construction of. — In the construction of all contracts, the intention of the parties making the contract if it can be arrived at from a consideration of the instrument, must control; and in aid of what the parties intended, it is admissible in the construction of many contracts that are on their face free from ambiguity to consider their situation, and the circumstances and ■•'onditions surrounding them at the time the contract was entered into — not for the purpose of modifying or enlarging or • . curtailing its terms, hut to shed light upon the intention of the parties; and the intention of the parties,thus gathered will prevail unless it does violence to the meaning of the contract as written.</p> <p>3. Deeds — Limitation as to Uses. — A condition or limitation in a deed restricting or limiting the particular uses of the property-conveyed is valid, but may be waived or abandoned by subsequent conduct of the grantor.</p> <p>4. Railroad Depots — Restriction Concerning Location of. — Conditions in a contract providing that a depot shall be located at a particular place, and prohibiting the location of depots at other, places within the prescribed distance, are invalid as against .public policy, upon the ground that railroad companies owe duties to the public that might require the erection of depots within the prescribed limits, an-d if the prohibition was sustained the duty owing to the public could not be performed.</p> <p>5. Facts Stated and Application of Principle Made. — A conveyed to B a lot for railroad purposes that lay between his residence and the terminus of one of the principal streets in a city. From the residence down this street there was a fine view of the •street and the river at the other end of the street. In the deed it was-stipulated that depots for freight and -passenger -purposes should be erected upon either side of the street, so as not to obstruct the view from the residence down the street to the river, but there was no prohibition in the deed against the erection of a depot at a place that would obstruct this view. Held, that the deed prohibited the -erection of a depot that would obstruct >the view and that A might maintain an action to recover damages for breach of the contract; and that m interpreting the contract it was competent to consider the situation and conditions surrounding the ¡parties at the time it was entered into.</p>

<p>1. Schools — Employment of Teachers. — Educational Division Boards arc not required in order to comply with the law to inquire into the eligibility of a teacher who presents a certificate authorizing her to teach in the public schools. They have the right to assume that the certificate would not be granted by the Board of Examiners unless the person holding it was eligible.</p> <p>2. ■ Same. — No person without a certificate to teach is eligible to the position of teacher in a common school.</p> <p>3. Teachers — Employment of — Compensation.—It is the duty of the board to enter into a written contract in the manner provided by law with teachers, which contract shall provide the compensation the teacher is to receive; and a contract in which the compensation is not agreed upon is not a valid and enforcible contract. But, it is the duty of the board, or the chairman thereof, to prepare a contract in due form for the signature of the teacher.</p> <p>4. Teachers — Employment of. — The board can only employ teachers at a regular or called meeting, when a quorum is present in person, and a majority of the board must vote for the teacher who is employed. If the superintendent is present at the meeting, at which a tie arises, he may then cast his vote and make a decision; .but if he is not present, the board may certify to him the facts, and he can notify in writing the board of his decision.</p> <p>5. Mandamus. — The Division Board that employed H. as a teacher consisted of eight members. Four voted for H. and four voted for B. The fact of a tie vote was brought to the attention of the county superintendent, who voted in favor of H., and directed the board to enter into a contract with her. The chairman of the board refused to sign the contract, and H. brought a suit for mandamus against him to compel him to sign the contract. Held, that an action for mandamus would lie, and that the chairman could not make the defense that the contract tendered by H. was not in proper form, as it was his duty to prepare a proper contract.</p>

<p>Appeal from Owen Circuit Court.</p>

<p>Criminal Law — Burglary'—Breaking into Smokehouse and Stealing Therefrom.— Under Ky. St., section 1162, providing “if any person shall feloniously break into any dwelling house or any part thereof, or any outhouse belonging to or used with a dwelling house, and feloniously take away anything of value, he shall be confined in the penitentiary not less than two nor more than ten years,’’ where one’s dwelling house was burned near his smokehouse in which he kept his meat stored, and he was compelled to move his family into another .dwelling two or three hundred yards away from the smokehouse and outside of the same enclosure, the breaking into the smokehouse and stealing meat therefrom' was burglary, or housebreaking, as the case may be.</p>

<p>Appeal from Kenton Circuit Court (C. C. L. & E. Division).</p>

<p>Manslaughter — Threats by Deceased — Proof of — Instructions—Intimation as to Character of Deceased. — In a -prosecution of a de- ' fedant for manslaughter, it is relevant for him to prove that the deceased was dangerous and violent; -that he had previously assaulted accused with a deadly weapon, had laid in wait for him and threatened his life, which matters are to be considered by the jury in determining whether accused had reasonable grounds to believe, and did believe, he was in danger of his life. But it is not the law nor should it be intimated in the instructions, that a bad man, however lawless a character he is, may be killed on sight by any one whom he had previously threatened or assaulted. Self-defense, or necessary defense of another at the time of the killing, is the only legal excuse for taking life.</p>

<p>1. Wills — Decedent’s Estates — Control of Courts of Equity. — A court of equity will interfere at -the instance of the parties in interest for the benefit of the estate of a- decedent, and prevent-the trustee from doing that which is calculated to defeat the purpose of the trust.</p> <p>2. Same. — In construing a will, the whole will must be read together, and in construing the will in controversy two ideas stand out prominently: (1) the testator intended his estate to go ■to 'his own blood;' (2) to make provision for his son, James, and James’ children.</p> <p>3. Same. — In the devise to his daughter, he is careful to provide that the estate shall return to his own blood in case either-of them should die Without issue or -their children should die in infancy childless.</p> <p>4. Same. — While the present wife of testator’s son, James, may have a meritorious claim against her husband for alimony (they having separated), her claim is against her husband, and she cannot subject to it anything but his own property. Her husband may ■pay her -out of what belongs to. him, but he cannot pay her out of what belongs to his children.</p> <p>5. Same. — While the testator intended to provide for his son, he ■plainly intended to protect his son’s children against his son’s improvidence.</p>

<p>Improper Argument to Jury —Damages Asked- — Failure to- Embrace in Bill of Exceptions. — Tbe .appellate court cannot 'consider a -complaint of an alleged improper argument of counsel on a trial where the alleged improper argument is not embraced in the bill of exceptions.</p>

<p>Appeal from Henry Circuit Court.</p>

<p>1. Bail bonds — Remission—Discretion of Court — Judicial Discretion. —Under section 98 of the Criminal Code providing, “If before judgment is entered against the bai-1 the defendant be surrendered or arrested, the court may in its discretion remit the whole or part of the -sum specified in the bail -bond.” Held, that the discretion conferred by this section is a judicial ione, and not an arbitrary one, but its exercise will not -be controlled unless ■palpably abused.</p> <p>2. Same — Purpose of Bail bonds. — The purpose of requiring bail-bonds is not 'to enrich the treasury, hut to secure the administration of justice, the primary object being to punish the -criminal. The bond is allowed to- be given for the convenience of a person not yet proven to be guilty, and to protect the State against the expense of keeping such persons in. jail.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>Appeal from Lawrence Circuit Court.</p>

<p>Appeal from Warren Circuit Court.</p>

<p>Appeal • from Leslie Circuit Court.</p>

<p>This indictment is identical, except .as to the na.m>e of the defendant, with the casé of Commonwealth v. Henry Vaughn from, the same court, decided by Judge Hobson on the same day, which opinion is 'adopted as the opinion in this case.</p>

<p>Appeal from. Green Circuit Court.</p>

<p>Insurance — Fraternal Insurance — Policy -on One Killed in a Figbt— Question of Liability of Insurer. — Thomas J. Kesterson was a member of a secret fraternal society under the supervision of a supreme body, which insures its members through the lodge system exclusively. The members are called “guests” and the insurance is called a “covenant,” which covenant provided that if a guest was convicted of a felony * * * or shall die in consequence of a duel or combat, except in self-defense * * * the covenant shall be void. Kesterson was killed in a fight with R. R. Rogers, and in an application by his widow for the insurance the society by its answer alleged that “he came to his death when he was violating or attempting to violate the law in that he was attempting to. take the life or to do great bodily ' harm to a fellow man, R. R. Rog-ers, and * * * was killed by said Rogers, and by said act violated his covenant.” -A demurrer was sustained to the answer. Held on apmc-al, that the demurrer was properly sustained. If the insurer would avail itself of a condition of the policy excusing it from liability it must plead the facts eo as to bring the case within the excepted clause. From all that appears in the answer, Kesterson may have been attempting to defend himself from Rogers when the latter took his life, and in such an event he was not violating the law.</p>

<p>Appeal from Campbell Circuit Court.</p>

<p>Appeal from Breathitt Circuit Court.</p>

<p>Appeal from Graves Circuit Court.</p>

<p>Appeal from Hart Circuit Court.</p>

<p>Appeal from Taylor Circuit Court.</p>

<p>1. Indictment — Dismissal—Failure to Refer to Grand Jury — Final Order — Reinstatement.—When an indictment is dismissed unless the matter be then referred to the grand jury it is a final order in that case. After the term at which the order is entered the court has not the power to set it aside. Should the court or the prosecution desire to retain control of the case -after the term, it may be done by an order filing it away to be redocketed on motion of tbe commonwealth, but without such reservation an unconditional dismissal is an end of that case. If therefore the commonwealth desires to reinstate the prosecution it may do so by procuring another indictment or by a warrant of arrest sworn out before an examining magistrate.</p> <p>2. Same — Subsequent Indictment — Trial Thereunder. — The order dismissing the indictment though a final order does not bar another indictment or prosecution. Indeed until tbe defendant is put in jeopardy under an indictment we know of no practice, that would estop the commonwealth from indicting him and trying him upon a charge of the crime.</p>

<p>Absence of Motion and Grounds for New Trial — Affirmed.—Where appellants motion and grounds for a new trial have not been made a part of the record, and are not before us the only question to be determined is whether or not the pleadings support the verdict. Of this there can be no doubt.</p>

<p>Appeal from Garrard Circuit Court.</p>

<p>New Trial — Delay in Entering Judgment — Agreed Order for Division of Land. — Where .the -proof is conclusive that a case had -been submitted to the court at the May term of ‘the court, which then tried it out and announced the judgment it would render, but at the request of the attorney of the other par-ty, -the court agreed to hold u-p his, judgment -so as to give- him an opportunity to- buy out his sister’s interest in the land in controversy, when at the next term it was ascertained that h-e had not bought his sister's interest, the court -properly entered a judgment directing a division of the land as agreed at the former Ma-y term-, and .dismissed appellant’s motion for -a new trial.</p>

<p>Elections — Bribery of Voter — Construction of Statutes. — Subsection 15 of section 1585 Ky. St., provides that “any 'person or persons who 'Shall unlawfully attempt >to prevent, or prevent, another from casting his ballot, or shall attempt to intimidate any person or voter so as to prevent him from casting his ballot, shall be deemed guilty of a felony, &c.,’’ applies to and includes all forcible interference with the voter, and any device in which the freedom of the election is destroyed, but does not include acts done with the consent of the voter. Section 1586, Ky. St., provides that “any person guilty of receiving a bribe for bis vote at an -election * * * shall be fined from $50 to $500, and excluded from office and suffrage.” Held, it cannot be presumed that the Legislature intended that it should be a misdemeanor if -a man bought a voter to vote in a certain way, but that it should be a felony if he bought him not to v-ote at an election.</p>

<p>Appeal .from Pike Circuit Court.</p>

<p>Timber — Boundary of I,and Taken From — Title—Possession.—In a controversy over the ownership of timber cut from a certain tract of land which is claimed by another party; Held, that in ascer- ■ taming the boundary of a tract of land, the call® as given in the ■patent' or deed, under which it is claimed, must give way to the actual facts as shown by a survey of the land. Where it is shown by the survey that the land in dispute is not within the boundary claimed, and as the claimant or its tenants never had possession or claimed any land not within its patent or deed boundaries, it has no title to nor interest in the timber in dispute taken therefrom.</p>

<p>Appeal from Hardin Circuit Court.</p>

<p>1. Office and Officer — Compensation o£ County Attorneys — Charige During Term. — Under section 161 of tile Constitution providing that “the compensation of any city, town or municipal officer shall not be changed after his -election or appointment or during his term -of office,” the compensation of a county attorney may be fixed after his election if not fixed before, but when once fixed cannot be changed so as to affect the .then incumbent.</p> <p>2. Same — Increase or Decrease of Official Duties.- — If the compensation is a salary, it must remain the -same throughout his official term whether the scope o.f his official duties have been increased or decreased. If it be fees, then the same scale of fees mu-st prevail for the same service — whether his official duties have been increased or decreased and if new duties are imposed with fees attached, the incumbent w-hen the change is made cannot charge for the new duties.</p> <p>3. Same — Constitutional Provision — Compensation Defined. — The Constitution does no-t prohibit the Legislature from- changing the duties of public officers- — either adding to them or taking from them — but it does forbid changing their compensation. By compensation, is meant pay for doing all that may be required of the official.</p>

<p>Appeal from Carter Circuit Court.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Appeal from Pulaski Circuit Court.</p>

<p>Appeal from Boone Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Intoxicating Liquors — Delivery by Carrier in Local Option Territory to Licensed Druggist. — Under section 2569 a, Ky. St., making it “unlawful to carry spirituous liquors ¡nto local option territory, providing that this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods in unbroken packages in quantity not to exceed five gallons at one time,” it is not a violation of the law for a carrier to deliver to a honafide licensed druggist, in a local option town, five gallons of liquor at one time — two gallons of .brandy and three gallons of whiskey, in the original packages as shipped from the distillery.</p>

<p>1. Fire Insurance — Representation of Insured as to Ownership of Property — Knowledge of Agent of Insurer. — If, in seeking to recover on a fire policy on a house which was burned, the insured was without title to the property, the statement or representation in 'the policy that she was the owner thereof, however honestly made, was untrue, and under the provision of the policy, operated to invalidate it, unless as alleged by her, the agent of the -company -who issued the -policy was fully advised of her want of title, and with such knowledge delivered to her the policy, in which event she would be entitled to recover on the p-olicy to the extent of such insurable interest, if any, as she may have in the property.</p> <p>2. Same — Statutory Provisions — Sale of Property for Taxes. — Under the Statutes, the title to -property purchased by the State for a tax, upon the failure of the, -owner to redeem it -by paying the tax for which, it was sold, with the added interest, penalty, and costs of sale within two years from the date of sale vested in the 'State absolutely, and while as further provided 'by the Statutes, the State may be divested of the title thus acquired, it can be done only by a -sale of the property through a revenue agent of the State Auditor’s appointment, and a deed from the Auditor to the purchaser.</p>

<p>1. Taxation — Contract for Sale of Coal Lands — Liability to Taxation. —Where one by a written contract agreed to -pay $90,000.00 for 1,900 acres oí land, including a railroad track, coal lands, cars, houses, store, goods, and all the equipment belonging or appertaining to said mine, though the owner’s title to the land was de.fective, and while it cost him $5,000.00 to perfect his title, the contract was clearly subject to taxation as .personal property.</p> <p>2. Same — Conflicting Statutes — 'Amendment—Appeals.—The provisions of sections 4241 and 4260, Ky. St., as they now appear in the Statute, as to appeals, are manifestly inconsistent. The rule applicable where there are inconsistent provisions in a Statute, is 'thus stated in 26 Am, & Eng. Ency. of Law, page 619: “Where there is an irreconcilable conflict between different parts of the same act, the last in the order of .position must control,” this rule must prevail where an amendment is made to an old Statute. The Legislature in making the amendment evidently had its attention directed especially to appeals in this class of cases, and intended to put 'them upon the same plane as other civil cases and to give'the circuit court jurisdiction to hear the whole matter anew as m other civil cases appealed from the county court.</p>

<p>1. Homicide — Officer Killing Prisoner Trying to Escape — Character of Offense Committed.. — Where an officer has arrested one for a misdemeanor who attempts to escape from him, the officer had no right to shoot him to prevent his escape. To determine whether the officer’s act in shooting and killing a prisoner trying to es'cape from him was murder, voluntary manslaughter, involuntary manslaughter, or accidental killing, the distinction between them must he carefully borne in mind.</p> <p>2. Same — Intention to Kill. — It is not necessary that there should be an intention to kill to constitute voluntary manslaughter when one shoots another with a deadly weapon. If the shooting is intentionally done, and the defendant knew or had reason to know that to shoot as he did would endanger the life of another, and acts recklessly of his safety, an intention to injure may be inferred.</p> <p>3. Same. — .Recklessly Killing Another. — Where one recklessly kills another with a deadly weapon, malice may be implied. It is not necessarily implied. The question is for the jury on all the facts of the homicide.</p> <p>4. Same. — Where an officer had a prisoner in custody, who- ran away from him, and he drew his pistol in an effort to frighten the prisoner into- stopping, and undertook to shoot over his head, and had reason to know that to shoot as he did would endanger the prisoner’s life, and shot recklessly and without -malice, and thereby killed him, he is guilty of voluntary manslaughter. But if he did not intend to shoot at the prisoner at all, and the pistol ■was discharged involuntarily by reason of his stumbling, then the act would he an accident if the officer -was not negligent in carrying the pistol as he did. If he did not exercise reasonable care in handling his pistol and from this cause fired the shot, he was guilty of involuntary manslaughter, though he did not intentionally fire the shot that killed the prisoner.</p> <p>5. Same — Reasonable Care. — If the officer exercised reasonable care in his effort to -capture the prisoner who had escaped from him, and the pistol was accidently fired when the officer did not intend to fire it, and the prisoner was thus shot, 'this was accidental killing and the defendant should be acquitted.</p> <p>6. Same. — Reasonable care is such care as may he reasonably expected of a person of ordinary prudence under like circum -stances. Reason to know ,a fact is such as would apprize a person o-f ordinary prudence of it.</p>

<p>1. Intoxicating- Liquors — Interstate Commerce — Jurisdiction.—¡Whiskey is a recognized article of commerce, and where it is transported from, another State to Kentucky, the transaction was one of interstate commerce and within the exclusive jurisdiction of Congress.</p> <p>2. Same — Whiskey Ordered from Kentucky. — Shipped from Indiana— Regulated by Interstate Commerce. — Where whiskey was shipped from Evansville, Indiana, to Kentucky, on an order from one residing in- Kentucky and paid for by a check accompanying the order, and transported by a common carrier between the two States, the transaction was one of interstate commerce, and sections 1306 and 1307 regulating the sale of whiskey in this State is, as applied to the 'transportation of liquors from one State to another, an unconstitutional regulation of interstate commerce.</p>

<p>Intoxicating Liquors — Response ito Petition or Rehearing — (For •original opinion see 140 Ky. page 38.) — The principle announced in this case is that where whiskey, brandy, wine or beer is sold in prohibition territory, it will be presumed that the liquids are intoxicants within the meaning ot the statute, but where other concoctions or mixtures, the intoxicating effect of which is not known or established, are sold, then the fact that they are intoxicants is material to the guilt of the defendant; and this fact must be alleged and proved before he can he found guilty.</p>

<p>Appeal from Taylor Circuit Court.</p>

<p>Taxation- — Assessment of Property — Proper Designation--Failure to Pay Taxes. — Under Ky. St., section 2986, providing in part that: “No mistake in, or omission of, the right name of the- owner or holder of land or improvements liable to be assessed under this act, shall impair any assessment thereof, if -such land be designated in said book by its corresponding number and block on said map, or if such improvements he th-ere designated by the number and block of the land on which it rests;” Held, that the assessment in this case is a valid -one and is a lien on the property, as appellee does not pretend that it has paid the taxes or any part thereof, or that the assessment was for 'too large a sum.</p>

<p>Appeal from Jefferson Circuit Court. (Common Pleas Branch, Third Division.)</p>

<p>1. Taxation of Omitted Property for Municipal Purposes. — A city oE the fourth class may under section 3542 of tlie Kentucky Statutes assess restrospectively property -that has been omitted from assessment.</p> <p>2. Mistaken Belief that Property Is Not Within the City Does Not Work Estoppel. — The fact that the city authorities were under the mistaken impression that a residence was outside the city limits and for this reason did not assess it for taxation, did not estop the -city from assessing it as omitted property when it discovered that the residence was in fact within the city limits.</p> <p>3. Uniform Taxation.- — The same rate of taxation must he levied upon all real and personal property within the limits -of a city, without reference to i1s location, -or whether it derives much or little benefit from streets, lights, police and fire -proteiction and other municipal advantages.</p> <p>4. Burden -on Taxpayer 'to Show Illegality o-f Tax. — When a taxpayer -resists the collection of taxes, he m-ust point out in -his pleading the particular grounds relied on and establish their existence by evidence. The city is not required to introduce any evidence until 'tbe taxpayer has made -out a case that will overcome the legal presumption that the proceedings by a city or taxing officer are regular. And this rule applies to an attack on the validity of a tax u-po-n the ground that i't exceeds the constitutional limit.</p> <p>5. Sufficiency of Notice and Assessment. — A resident of the city in September 1906 sold real estate under a contract providing that if a stipulated amount was paid on November 15th, 1906, that the contract should be 'binding, and the purchaser be'c-ome bound to pay $100,000.00, for which he was- to execute five notes for $20,000.00 each. The purchaser paid the amount specified on November 15tb, and the $100,000.00 was properly assessed against 'the vender, although the notes were not in fact executed until a few days after the assessing period.</p>

<p>Appeal from Lyon Circuit Court.</p>

<p>1. Master and Servant — Negligence—Pleadings.—Under a petition charging that a brakeman was injured through the gross negligence of the agents and servants of a railroad company superior to him and in charge of the train, he can recover for any negligent acts of the engineer, whether they consist in failing to stop in obedience to a signal or in running the trian at too -high a rate of speed.</p> <p>2. Evidence — Statements Out of Court. — Where the fireman on the trial testified that he did net receive or transfer to the engineer a signal,' statements made by him out of court to the effect -that he had received and transferred the signal could be received only for the purpose of contradicting the fireman and not -as substantive evidence, and they would not of themselves be sufficient to warrant the jury in finding that the fireman had received and transferred the signal.</p> <p>3. Evidence — Rules of the Company. — Where the rules of the company are printed or written, the printed or written rules should ■he introduced if obtainable, as they are the best evidence of what the rules are. But, a railroad company may have rules that are not written or printed, and if so, parol evidence as to such rules is competent.</p> <p>4. Instructions Authorized By Former Opinion. — Where this court in an opinion directs the lower court to give certain instructions, the trial court should give .t’he instructions indicated if the evidence is the same in substance as the evidence on the trial from which -the appeal was prosecuted. But if new issues are made or new facts appear on a re-trial, the court may give such suitable instructions concerning them as are necessary ;and proper.</p>

<p>1. Criminal La>w — 'Carnally Knowing a Female Under the Age oi Consent. — It is necessary to sustain a conviction under section 1155 of thie Kentucky Statutes making it a crime to nave carnal knowledge of a female under the age of sixteen years or an idiot that there shall he some evidence of penetration, however slight. .</p> <p>2. Attempt to Commit Offense. — Under an indictment for carnally knowing an infant female, or an idiot, the accused may be convicted of an attempt to commit the offense if the evidence is not sufficient to -show that he is guilty of the principal offense.</p> <p>3. Penalty For Attempt. — Unless there is some other punishment imposed by statute, an attempt to commit a crime is a misdemeanor and punishable by fine, or imprisonment in the county jail, or both, in the discretion of the jury.</p> <p>4. Attempt to Commit Statutory or Common Law Offense. — Under an indictment for a statutory or common law offense, in the absence of a statute punishing the attempt, the accused, the evidence justifying it, may be found guilty of an attempt to commit the offense.</p> <p>5. Attempt Defined. — An attempt -to commit a crime is an act done in part execution of the criminal design amounting .to more than mere preparation but falling short of -the actual consummation, and possessing except for a failure to consummate all the elements of the substantive crime.</p> <p>6. Attempt, Degree of Offense. — Sections 262 and 264 of the Criminal Code authorize the conviction of the accused of the attempt to commit a statutory or common law offense .under an indictment for the principal offense.</p> <p>7. Common Law Prevails in This State. — The common law of England, and acts of parliament in aid thereof, is in full force in this State, except where it has been superseded by -statute or is contrary to the public -policy of the State.</p> <p>8. Common Law. — When there is a wrong to be punished, or a right to be redressed, and no statute law of this State can be found -that will afford the punishment or offer the remedy, -if there can be found in the common law a principle that is applicable, its aid may he invoked and under it the wrong punished or the right redressed.</p> <p>9. Assault With Consent of Person Assaulted. — If the person assaulted, as in .the case of a'female under the age -of consent, is incapable of consenting, the consent of the assaulted party will not save the assailant from punishment, although as a general rule a punishable assault can only take place when it is made against the will or without the consent of the person assaulted.</p>

<p>Appeal from Lyon Circuit Court.</p>

<p>Attachment Bond — Action Thereon — Necessary Allegations for Recovery. — In an action by A. L. B. and J. D. B.’s Aclmr. against W. to recover the value of certain timber cut from the land of A. L. B. and J. D. B. an attachment was sued ¡out and levied upon certain timber cut from the land of appellees. To secure the release of the property attached, W. and appellants, TJ. S. F. & G. Co., executed to the plaintiffs a bond that W. would perform the judgment o>f the court in that action. The attachment was sustained and judgment rendered and affirmed and execution 'returned “no property found.” Afterwards A. L. B. and J. D. B. brought suit against appellant, U. S. F. & G. Co:, on the bond, alleging that judgment was obtained and that neither W. nor any one for him had ever paid the judgment. Held, ¡these allegations were sufficient to show a breach of the bond without alleging in terms that the condition of the bond was broken.</p>

<p>Land — Conflicting Claim® — Compromise Settlement — Valuable Consideration. — An agreement of compromise based upon a .settlement in good faith of a disputed claim for land between the parties, has a valuable consideration to support it, and the oourt .properly enforced the compromise. Few compromises of law suits would stand if settlements fairly made could be -set aside when one of the parties afterwards learned that he Lad a 'better case than he supposed he had. This is one of the chances that* litigants take when they compromise. Where there is no conceaiment, no fraud, a settlement will not be disturbed because one of the parties afterwards finds out that he might have obtained a judgment more favorable to him by trying out the case on the merits.</p>

<p>Appeal from Jefferson Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Second Division).</p>

<p>Criminal Law — 'Prosecution for Murder — Evidence—Peremptory Instruction — Error in Giving. — It is now well settled in criminal cases that if there is a-ny evidence tending to connect the accused .with the commission of the crime it is -the duty of the trial court to submit the case to the jury. Applying this rule to the case at bar we are of the opinion that the peremptory instruction should not have been -given. Where one witness testified that he saw the accused and three other men take deceased to a point near the railroad and one of them strike him over the head with something and then saw them carry him to a spot near where his body was afterwards found, while the testimony -of this witness when considered as a whole is far from satisfactory and in many respects unreasonable, still it i-s some evidence, and the jury, not the court, is the .proper judge of the weight -to which it is entitled. On this testimony the case should have -gone to the jury.</p>

<p>Appeal from Nelson Circuit Court.</p>

<p>Appeal from Grant Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court •. (Common Pleas Branch, First Division).</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from Floyd Circuit Court.</p>

<p>Appeal from Caldwell Circuit Court.</p>

<p>Appeal from Whitley Circuit Court.</p>

<p>Appeal from Hopkins Circuit Court.</p>

<p>1. Schools — Graded School Election. — The -petition requesting the county judge to order a graded school election should be filed in open court, and entered upon the order hook of the county court 'as of the -day it was filed. The fact that the petition was endorsed “Piled,” and entry of its filing made on the Docket Book and the Minute Book, do not -meet the requirements of section 4464 of the Kentucky Statutes.</p> <p>2. Record Books of Court. — The docket book and minute book are record books of the county court, h-ut they are not the ones in which are recorded the orders of the court. Each county court has an Order Book, and in this book the acts and doings of the court are preserved and authenticated by the signature of the presiding judge. When we speak of the orders of the court, we have reference to the Order Book uot the Docket Book or the Minute Book.</p> <p>3. Nunc Pro Tunc Orders. — The generé, rule is that when an order ■or direction of the court has been omitted by inadvertence or mistake oh tbe part of the judge or clerk and there is .record evidence showing that all the steps necessary to have the omitted order or direction entered were duly made and taken, and by a reference to this record the court without a,ny other evidence can see what judgment or order was intended to be entered, it may from this record evidence enter as of the date when it should have been entered a nunc pro tunc order.</p> <p>4. Nunc Pro Tunc Orders — -Application of Rules. — Where the petition calling a graded common school election was endorsed “Piled,” and an entry of it. made on the Docket Book and the Minute Book, hut no reference to it was made on the Order Book of -the court, the court may from this evidence, at a subsequent term enter on -the Order Book an order showing that the petition was filed, and such order will he as effective as if entered on the day it should have been.</p> <p>5. Order Calling Election. — It is not necessary that the order of court calling the election should give the names of any of the petitioners, although it is usual to do so.</p> <p>6. Boundary of District. — That the boundary of the district is indefinite will not affect the validity of the election if the boundary can be ascertained with reasonable certainty.</p> <p>7. Boundary. — Where the boundary of the district was intended to embrace common school district No. 39, the fact that by mistake territory outside of the district was included in the boundary, will not affect the result qf the election when no person in this territory participated in the election. But, neither persons nor property in such territory can be taxed.</p> <p>8. Certificate of Election Officers. — The certificate of [he election officers should show the time and place at which the election was held and the purpose for which it was held, and the number of votes cast thereat; but, in considering the sufficiency of the certificate, the order of the court calling the election, the report of the sheriff describing his acts, and the report of the election commissioners may be read in connection with and as a part of the certificate of the election officers, and reference may be had to all these orders and reports for the purpose of ascertaining whether or not the certificate of the election officers is a compliance with the statute.</p>

<p>Appeal from Bell Circuit Court.</p>

<p>1. Railroads — Killing Child at a Crossing — Insufficient Warning — Contributory Negligence. — The rule is that notwithstanding the statute requires the use of a whistle and bell at crossings, if the conditions are exceptionally dangerous other and additional means must he used. It is not true that if an engineer at a dangerous crossing gives ever so much warning he may then go on and kill people who do not take heed. At a station so near a city as that it is practically a part of the city if the use of the whist’e or bell are not sufficient to give notice of the approach of a train thereto then it is the duty of the railroad company and those operating its trains to use such other means to prevent injury to persons using it, as in the exercise of a reasonable judgment might he deemed necessary. In this case where a girl nine years old was killed by a train at a crossing, whether the killing was negligent was a question of fact for the jury. If a'child of that age does not know or by reason of its age could not be expected to know the danger in crossing ■the track then it ought not to he charged with negligence. In such a case the question of contributory negligence was properly for the jury.</p> <p>2. Life Expectancy — Power to Earn Money — Excessive Verdict-Question For Jury. — A girl 9 years old has an expectancy of living 39 years longer. Her expectancy is her’s, not her father’s, though her services belong to him until she is 21 years oí age. A jury does not award compensation for her labor. It is the destruction of her power to earn money, a power which is her’s alone. We cannot say that a verdict of $6,000 was too great a value or even enough. Certain it is that it does not strike us as being so excessive as to indicate passion or prejudice on the part of the jury or excessive at all.</p>

<p>Appeal from' Ballard Circuit Court.</p>

<p>1. Estates — Settlement—Improvements by Trustee — Effort to Sel Aside Certain Expenditures — 'Knowledge of Parties. — In the matter of the settlement o£ the estate of J. B. Wilder, deceased, who had hut two children, both of whom were dead, each leaving children surviving, where it was sought to set aside certain - expenditures made by the trustee in the improvement of the real estate, belonging to the estate. Held, it may he conceded and we hold that it was not proper to make permanent improvements or additions to the capital of the estate at the expense of the income, such as the addition of a story to a house, or building a house on an unimproved lot, but when such work has been done and the expense incurred the parties now complaining who were then sui juris, and were parties to the action and represented by skilled counsel, there is every reason for treating each settlement made by the trustee when approved and confirmed by the court as final concerning the matters disposed.of by it, and the court should refuse to open up these settlements on the grounds, if no other, that the complainants have not been deligent in pressing their demands.</p> <p>2. Tardy Claimants — Changed Views. — Equity will not aid such tardy claimants, nor encourage such speculation. They will not be heard to say that it was all right then, when, so far as appears, they desired that course to be pursued, and years afterwards say it is not all right now, and have the whole matter opened up and recast, to suit their changed views.</p> <p>3. Estates — Payment of Taxes, &c„ Out of Income of Estate. — Appellants want the insurance and taxes prorated between capital and income, or, as they express it, between the life tenant and remainderman. Whatever may he the rule on that subject in the absence of express direction in the will or instrument creating the estate, it is noted in this instance the will expressly requires the estate to be kept intact, devises it to a trustee whom it charges to pay out of the income, taxes, assessments, insurance, repairs and expenses. The net income only is given to the grandchildren. The testator had the right to charge his estate with these items and did so. Therefore, it is proper to pay them out of income, and this includes assessments for street improvements, counsel fees, commissioner’s fees, abstractors and the like, were also paid, and other items charged to income, which was' right. They are expenses incurred" in the manage-meat of the trust. The testator directed them to te paid out oi income.</p>

<p>3. Railroads — Killing Person on Track — 'Action 'Therefor — 'Habits of Deceased for Drunkenness — Competency of Evidence. — In an action against a railroad company for damages by tbe administrator of a man killed on its track, it was competent for the defendant to show that the deceased was drunk at the time he was killed, but what his habits were for -sobriety was immaterial. Evidence that deceased was of sober habits was competent upon the question of his earning capacity and for this .purpose it must ordinarily be introduced in chief and not in rebuttal, and when it is so introduced the court should instruct the jury that it is to be considered for that purpose only.</p> <p>2. Same — Lookout Required at Street Crossings. — In operating a railroad train it is the duty of those in charge thereof to keep a reasonable lookout for persons using a street crossing to give notice of the approach of the train thereto, by ringing the bel far enough away to give reasonable warning of its approach, and in using the railroad at a street crossing it is the duty of a person to use such care as may usually be expected of a sober person to learn of the approach of the train and keep out of its way. and if he fails to exercise such care and 'but for this he would,not have been struck the railroad company is not liable.</p>

<p>Appeal from' Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Lyon Circuit Court.</p>

<p>1. Intoxicating Liquors — Saloon-Keepers-—Selling Liquor on Sunday —Legal Excuse. — 'While there is evidence in this case tending to show that appellants had theretofore kept their saloon closed on Sunday, and had never before been guilty of violating the Sunday law, and only did so after insistance upon the part of the purchasers that -they were going to the country to spend the day, this did not present any legal excuse for violating the law.</p> <p>2. Same — License Board — Authority to Revoke License. — It is only where the License Board in granting, refusing or revoking a license, arbitrarily abuses the discretion vested in it by law, that the courts will interfere with its action.</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>1. Escheats — Statutory Provisions — Municipal Corporations — Unclaimed Estates. — Section 1606 of chapter 44, Ky. St., relating to escheats and escheators, provides in part “that part of estates lying or found in this State not disposed of by will, of persons who have died or may hereafter die without heirs or distributees entitled to same * * * or who * * * has not claimed the same, or shall not claim the same within eight years after such death, shall vest in the Commonwealth, subject to the debts and liabilities of the decedent.” Section 2971 of the chapter, relating to Municipal Corporations, provides in part that “So much real, personal or mixed property in the city which from alienage, defect of heirs, failure of kindred, or other cause shall escheat to the Commonwealth, shall vest in the board (of education) for the use of the public -schools. Said board may in the name of the -Commonwealth for the use and benefit of the city, by its President or other officer to be designated by it, enter upon and take possession of said property, or sue for and recover the same by an action at law or in equity, and without office found The board shall -sell and convey -such property by warranty deed or otherwise.”</p> <p>2. Same — Constitutional Provisions. — The validity of section 2971 is assailed by counsel for the Commonwealth in this action, (1) because it is a violation of -section 60 of the Constitution, and (2) because although it is conceded that the estates of persons who die intestate without heirs, escheat to the State, that the property or its proceeds -so escheated should go into the State Treasury for the benefit of the State at large, and it is competent for the Legislature to declare that property so -escheated shall be given to any specific fund or devoted to any particular purpose.”</p> <p>3. Delegated Power — Executive Boards. — Held, that the State has by Statute delegated some of its -sovereign power to the school ■board to be exercised by it in its own behalf. Whenever the State governs by the aid of such governmental agencies as executive boards it must needs grant to them some of its power which, as the -sovereign, it has the right to exercise itself, and this is a legitimate grant.</p>

<p>Appeal from Jefferson Circuit Court (Chancery Branch, First Division).</p>

<p>Appeal from Laurel Circuit Court.</p>

<p>Appeal from Allen Circuit Court.</p>

<p>Taxation — Coal Yards and Coal Wagons — Discrimination in Occupation Tax. — A man who runs a coal yard in a city and pays a tax of $35.00 a year on his coal yard and wagon, would be unjustly discriminated against if one who lires just outside the city limits could by plying his wagon in the city do the same business free from any fax on his wagon, where the city ordinance requires coal wagons, not in connection with coal yards, to pay a tax of $5.00 each per year.</p>

<p>1. Land — Action in Ejectment — Title 'Shown by Plaintiff — Fifteen Years Actual Possession. — The rule is well settled that, a plaintiff in ejectment must recover on the strength of his own title. He may do this in two ways: First, by showing a paper title from the Commonwealth; Second, by showing that he and those under whom he claims have been in .the open, notorious, actual, continuous, peacable and adverse possession of the property in controversy for a period of fifteen years. To acquire a title in this way, the adverse possession must not only be actual, but so continued as to have furnished a cause of action every day during the whole period.</p> <p>2. Same — Entry Under Title — Possession Acquired. — One who enters on land under a patent, deed or title bond, claiming to the extent oí the boundaries of the patent, etc., becomes possessed of the land so far as it is not adversely held by others.</p>

<p>Contract — Building Nine-Sstory House — Value of Carpenters’ Work— Damages for Delay — Finding of Lower Court Affirmed. — In an .action for damages for violation of a contract for work and labor in doing the carpenters’ work on an eleven-story building for ihe B. & N. R. R. Co., at Ninth & Broadway streets in the city of Louisville, which was let to the Standard Construction Company, and a portion of the carpenters’ work was sublet to ¡the appellee at the price of $9,688.00, the lower court found -from ■the evidence tftat the delay in the work was caused by appellants failure to furnish the material as it had agreed to do, and found a balance in favor of appellee of $2,370.00 as the balance due him for labor on the building at the. contract, one cent in damages for being deprived of the privilege of .completing the contract, and $3,880.00 for his claim for extra work, from which judgment •appellant appeals. Held, the lower court found from the evidence that the delay in the work was caused by appellant’s failure to furnish the material as it had agreed to do. Bach party introduced a great amount of evidence upon this point, and it is difficult to determine which had the preponderance, and therefore we are unwilling to disturb the finding of the lower court thereon, and its finding is therefore affirmed.</p>

<p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p>

<p>• Appeals — Jurisdiction—-Amount in Controversy. — Wthere on appeal in •a divorce case appellant asked an allowance of $250 for -her attorney, and w-as -allowed $100, -clearly th-e amount in controversy is only $150. together wi-th an uncertain amount in costs, which cannot be considered on th-e question -of jurisdiction. As -the question -of divorce was decided on a former -appeal, and there is nothing hefor-e the court now -but a judgment for money, the amount in controversy being less than $200, exclusive of interest and costs, it follows .that appellee’s motion to dismiss the appeal must prevail. i</p>

<p>Appeal from Kenton Circuit Court (C. C. L. & E. Division).</p>

<p>Appeal from Fayette Circuit Court.</p>