Volume 141 — Kentucky Reports

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

<p>1. Master and Servant — Injury to Servant — 'Pleading—Amendment— Sufficiency — Grounds for Continuance. — In an action for damages by an employe engaged in drilling holes in the ground, in which dynamite wa,s used to fire off the holes at a certain depth, to facilitate the boring, in which one of the employes was injured hy the explosion of the dynamite left in the hole the previous day without plaintiff’s knowledge, an allegation in the petition ■that “the injury caused the plaintiff much physical 'and mental ■pa'in and suffering, and as plaintiff believes permanently injured the use of his left hand,” when traversed -was sufficient to sustain the verdict, the amended petition added nothing to the issue which had- been joined between the parties, and made no cause for a continuance of the case.</p> <p>2. Personal Injury — Occurring in Another State — Common Law Remedy. — In an action in this State for damages for a personal injury, where death does not result, where the proof shows the injury occurred in another State, a common-law cause of action is shown, and it may be maintained in this State and -a recovery had on the presumption that the common law of the State where the injury occurred is the same as i-t is here, unless the contrary appears.</p> <p>3. Negligence of Boss — Injury to Servant — Use of Dynamite. — Where the boss in charge of hands engaged in boring holes in the ground had put dynamite in one of the holes which he knew or should have known had not exploded, and on the next day, with this knowledge, he put men to work drilling in the holes, they having no information that one of them had dynamite in it, and by ■reason of his negligence in putting them to work in this unsafe place, one of them wais injured by the explosion of the dynamite, the boss by such act neglected a duty which the law imposed, and for this negligence the master is answerable in damages to •the one injured.</p> <p>4. Personal Injury — Permanent Injury to Thumb — Damages Awarded. — Where in an action for a personal injury the evidence shows that plaintiff’s thumb wais maid© .stiff and shrunken and the power to grasp anything with that hand is practically destroyed, and the testimony of the physician who treated him was to the effect that his injury was permanent, an award of $1,400.00 by ithe jury was not excessive.</p>

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

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

<p>Trusts — .Wills.—A testatrix by ber Will gave to her grandchild certain property which she directed should be held in trust for her benefit during her life, giving the trustee with her consent the power to sell property and -e-invest the proceeds, and also giving her authority to dispose of the property by will, declaring that if she failed to so disipóse of it, it should pas© under the law of descent and distribution. In this action, the prayer of the devisee to have the trustee discharged and -the property surrendered to her in fee, is denied. ¡</p>

<p>1. Automobiles. — Automobiles have the right to use the highways ¡of the State on an equal footing with other vehicles, but drivers ■of these machines must observe the 'duties imposed upon them by statute, and-, in 'addition, exercise ordinary care for the safety of travelers on the highway; and if they fail to 'do so, and an accident occurs as the proximate cause of. such failure, the injured party may recover damages.</p> <p>2. Contributory Negligence. — Where the driver of a frightened horse attempts to pass an automibile that stopped when the fright of the horse was discovered, he will be guilty of such contributory negligence tas will defeat a recovery, unless the evidence shows that there was no other reasonable course that he could pursue, and that the negligence of the driver of the automobile -placed him in the position of peril.</p> <p>3. Application ¡of Principle to Pacts. — Appellee, who was driving a •restive horse, turned off the road for the purpose of • quieting his ■horse, and about the same time the driver of the automobile discovering the fright of the hors©, ¡stopped the machine some distance a.way. The horse becoming more unmanageable, the appellee undertook to force him by the standing machine, and in the attempt was thrown out of the vehicle. Held, .that he could not recover.</p>

<p>1. Rights of Way — Application to Railroads — Presumption of Grant— Use for Public Purpose. — There is necessarily a distinction between a railroad right of way and -the property of .a private person, as to the presumption of a grant of land used by another. A private person .holds Ms land for Ms private purposes; tho railroad holds its right of way for public purposes. When a railroad has taken a right of way, either b‘y condemnation or by purchase, on the -ground that it is necessary for the business of the road, it is not presumed that it has granted to others property that was required for public purposes.</p> <p>2. Same — -Permissive Use of Right of Way — -Effect.—It is a matter -of common knowledge that in tMs country persons walk over and along railroad tracks at many points, and that the -railroads permit this .so long as it does not interfere with their business. But this merely permissive use -oí their rights -of way and -tracks, gives such .persons no l-egal right to a passw-ay over them.</p>

<p>Land — Locating Boundaries — Corners Control — Original Surveys — Acquiescence Therein. — In determining what land is included in a deed, the court must, if it can, determine where in fact the parties originally located the different comers. The actual location of the corners control. It is hard to -believe that if ithese surveys which were made when all the .parties were living who located the line, had not been made to the -point -at which the corner was actually -located, the location of the line would have been acquiesced ass it was. Uncertainty may now exist as to the true location of this corner when all the men -are 'dead who located it, -although there was no uncertainty at the time the old ■surveys in question were made, and under al-1 the facts we conclude that the circuit court p-roperly entered a judgment in favor of Green. The location of the corner acquiesced in when those were living who knew the facts shouud not be disturbed .after their death, where, .many years have elapsed and time has. obscured much that was then well known.</p>

<p>Married Women — Procuring Sale of Husband’s Land — Estopped from Claiming Title in Herself. — Where it is .shown by the evidence that a married women procured a sale of land to be made to another by her husband’s trustee for her husband’s benefit, who ■had been adjudged a bankrupt, she is estopped to contest the title so created, although she may in fact have had the title and was not a party to the bankrupt proceedings. A married woman may be bound by estoppel the same as a man.</p>

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

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

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

<p>Hu-sband and Wife — Action by Creditor of Deceased Husb'and- to Set Aside Deed to Wife. — In ian action (by a creditor of a deceased bus-band to set aside- a conveyance made by him to his wife, on the ground that his debt was created prior to the conveyance; Held, that the husban-d could not h-ave h-ad the conveyance to his wife set aside in his favor if he had undertaken to do so, and it will not be pretended that the court intended by the loose language used, to deprive her of a property right in favor of her husband, without affording her an opportunity of defending the case as to him. This being true, the conveyance as to him w-a-s valid, and his subsequent creditor has no cause to complain of it and no right to set it aside.</p>

<p>1. Railroads — Damages to Trespasser on Railroad Bridge — Hot Water Escaping from Engine.- — Where appellee was- walking across a railroad bridge, to save toll, instead of using a foot bridge m-ade for pedestrians, and without fault of the engineer in charge of -a railroad engine standing at the end of the railroad bridge, he was severely scalded by hot water escaping</p> <p>• -from -said engine by the jostling off of the inspirator thereof; Held, that the railroad company was. under no duty towards a trespasser to keep its engines in -a reasonably safe condition so far as throwing hot water and steam was concerned, and he icanno-t complain that the engine was out of repair in this regard.</p> <p>2. Trespasser on Track — Discovered Peril — Care Required. — Appellee being a trespasser on the track, in order to entitle him to recover damages, he must show a failure on the ¡part of appellant to exercise ordinary care to- abstain from hurting him after his peril wias discovered, and this- he failed to do.</p>

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

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

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

<p>Courts — Justices’ Courts — Jurisdiction—Warrant for Misdemeanor— Selling Liquor — Failure to .State Name of Purchaser. — Section 330, Criminal Code, provides: “No written information nor</p> <p>, pleading shall be required in prosecutions in Justices’ courts.” Police courts have the same jurisdiction as Justices’ courts, under section 143 of the Constitution and section 2912, Ky. Statutes. Where a defendant was tried under a warrant from •a police court for selling liquor without a license and a fine of $30 was imposed, and upon appeal to the Circuit Court the fine was fixed at $100.00. Held, upon, appeal to this court, that the defendant cannot be excused on the ground that the warrant from the police court failed to state the name of the person to whom the liquor was sold.</p>

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

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

<p>1. Municipal Corporations — Street Improvement — Sidewalks— Reconstruction — Property Owner. — Ky. St., 'section 2835, provides that “tbe -cost of making -side walks, including -curbing, Whether by original .construction or reconstruction, shall be apportioned to the front foot as owned by tbe parties respectively fronting said improvement.” Held, that the Legislature evidently intended to require that tbe property bolder should bear -tbe burden whenever it should become necessary to improve- a sid-e walk, and by section 2834, a lien is expressly reserved fp-r the construction or reconstruction of side walks.</p> <p>2. Ordinances — Title—Notice to Property Owner. — Under -an ordiI nance of tbe -general council of the city of Louisville, entitled, ‘ ' “An ordinance to improve a portion of the side walk on -both</p> <p>sides of Breckinridge street between H. & C. streets from tbe i- east -curb line of H. street to tbe west curb line of C. street, with brick pavement,” the title to the ordinance was sufficient notice to tbe -property owners thereon that said improvement was to be made, and they could not complain that they were deceived or misled ib-y fits title.</p>

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

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

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

<p>Deed to Land — .Quantity Conveyed — Evidence Considered — Conclusion. — The question in this cáse is whether a 50 acre or a 60-acre tract of land was conveyed to appellant. Held, that upon a careful reading of the deeds, and of the testimony of the-surveyors who testified for appellant, taken in consideration with the vague and uncertain testimony of the witnesses who testified for appellee, we are satisfied that the land conveyed to appellant was the 60 acre tract, and not the 50 -acre tract, as* claimed by appellee. In each of the deeds in the chain of title from Isaacs to Wtells and in the deed from Wells .to Baker one of the boundary lines is, “thence west with the ridge to the old fifty acre survey made by James Isaacs.” This description negatives- the idea that there was an attempt to convey the James Isaacs’ 50 acre survey.</p>

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

<p>1. State Militia — Captain—Compensation Same as Paid to Captain of U. S. Army. — In a matter of compensation to a captain of tbe State militia, tbe only .compensation provided by tbe statute for active service with troops, also in active service under order of tbe .governor, is, that be shall recover the same per diem paid to a captain of the United States Army.</p> <p>2. Same. — In thus 'adopting a salary scale, the Legislature did not divest itself of .any power it possesses; on the contrary, it acted in pursuance of the authority given it by section 221 of the Constitution, which provides that “organization, equipment and discipline of the militia shall conform as nearly as practicable to the regulations of the government of the armies of the United States.”</p>

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

<p>1. Mineral — Includes Diamonds — Deed to Land Conveying All the ■Mineral Thereon. — It is conceded .that diamonds are a mineral, and where a deed to land conveys “all the mineral thereon,’’ these general words aptly include every kind of mineral found on the land, and the grantee is entitled to the .precious stones fo-und no less than he would be if he had found platinum or radium, which are perhaps more precious than diamonds.</p> <p>2. Deeds — Grantor and Grantee — -Construction.-—A deed is to be construed against the grantor rather than the grantee, because the grantor selects his own words, and where in a contract he conveys all the mineral on a tract of land, the ^ourt must enforce the contract according to the natural meaning of the language used.</p>

<p>Injunctions — Action on Bond — Damages Recoverable on Dissolution. It is universally held that damages on an injunction bond are recoverable on the dissolution of the injunction, and generally the damages are deemed to include counsel fees incurred in defending the injunction. It is equally well settled that all ■ damages naturally resulting from a wrongful injunction, may be recovered; this means pecuniary loss suffered hy defendant in the injunction, which resulted from the- wrongful restraint If he incurred court costs, expenses of traveling, including railroad fare and hotel bills, in short, any expenditure of money necessarily had in order to procure a dissolution of the injunction may he recovered upon the bond. We apprehend ihe correct' rule to be, to allow such sum as would he a reasonable compensation on the injunction proceedings within the total sum paid as counsel fees in the case, hy defendant. All damage caused by the operation of the injunction are covered by the bond; so where it is alleged that hy reason of the injunction the sale and delivery of .property has -been delayed or defeated, whereby the property has in the meantime depreciated in value or become lost, such loss, being regarded as. .occasioned by the injunction, may be .properly included in estimating the damages incurred. The taxable costs incurred on the injunction are always recoverable as damages resulting from it when it is dissolved. j</p>

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

<p>1. Municipal Corporations — License and Franchise Taxes. — The charter of the city of Louisville authorizes the city council to levy a franchise tax or a license tax upon corporations and persons for the privilege of doing business in the city. But, under this authority, both a franchise tax and a license tax cannot be exacted for the same time. The council may impose either, but not both. i</p> <p>2. License Taxes — Double Taxation. — Where a city imposes a license or franchise tax for the privilege of doing business in tbe city, it 'cannot levy a license tax upon an agency or instrumentality indispensible to tbe conduct of such business, as this would be in effect imposing a double tax for the .privilege of doing business,</p> <p>3. License Taxes — Double Taxation. — But the right or the privilege to do or carry on a business is one thing, and the agencies or instrumentalities by or through which it is carried on may be another. And if the agencies or instrumentalities are not indispensible to the conduct of the business, then they are subject to a license tax, and such ,a tax will not amount to double taxation.</p> <p>4. License Taxes — Double Taxation. — Where a person or corporation pays a license tax for the privilege of doing business in a ■city, and in carrying on the business -uses vehicles that are not indispensible to the conduct of its business, it may be required 'to pay 'the tax levied by an ordinance upon all vehicles in use in 'the city.</p> <p>.5. Application of Principle. — The Adams Express Company obtained a license authorizing it to do business in the city of Louisville. In the conduct of its business it delivered in its wagons packages in certain parts of the city, and in other parts it did not. The city sought to tax the wagons under a general vehicle tax. Held, that it had the right to do this, as- wagons although used in the business, were not indi-spensi'ble to carrying it on.</p>

<p>1. Res Adjud.icata.- — 'Wihere a person claiming to own land brought an action in ejectment to recover it, and -a judgment was rendered dismissing this action after it had been prepared for trial on i-ts merits, the judgment being unmodified and unreversed, is -a bar to a subsequent suit in equity to recover the same land.</p> <p>2. Burden of Proof. — Where a party seeks -to avoid the effect of a judgment .upon the ground that he was not -a party to the action in which.it was rendered, and this is put in issue, the-burden i-s upon him to show that he wias not before the court when the judgment was rendered.</p> <p>3. Partial Record. — When an appeal is -prayed in the Court of Appeals, and notice of the schedule is not served upon the adverse party as required hy section 737 -of the Code, and only a partial record is brought up, we will presume that the omitted -part sustains the judgment -appealed from.</p>

<p>1. School Districts — Conflict in Boundary — Right 'to Railroad Tax. —mis action involves tho location of the 1'ne between tbe Kuttawa Common School District No. 29, and the Eddyville Graded Common School District No. 8, and the right to the taxes on the railroad which runs between them. ■ The Eddy-ville d'strict was created by an act approved March 5, 1874, and tho boundary of the Kuttawa district No. 8 was fixed by an act of March 31, 1886, as follows: “To include within said district the farms of Willis B. Machen and Wm. B. Jones, and hereafter, Lick Creek shall be the line between said district No. 29 and Common School District No. 8, from the bridge near the railroad depot wp to tbe Jones farm, iand the Ch. & O. R. R. shall be the line of said districts on the south.” Held, tbe plain purpose of tbe act was .to add Ito the Kuttawa district the Machen farm and the Jones farm. The act does no.t refer to the raTroad right of way, but the railroad itself. The railroad is the line, and is no more in one district than in the other. The line between the districts is the center line of the railroad; that is, .one half of the railroad lies in one district, and one half in the other.</p> <p>2. Construction of Statute — 'Contemporaneous Construction. — It is insisted for appellant that as the Eddyville district has for a number of years collected and used the railroad tax without objection on the part of the Kuttawa district, the court should follow the contemporaneous consitrucltion of 'the statute by the •parties. But tee construction of the statute is for the court, and where tbe language is not ambiguous a resort to its construction by ethers is improper. Nothing more appears than the failure of the trustees of the Kuttawa district for some years to assert teeir right. By this the district lost its claim so far as it is barred .by limitation, 'but the mere inaction of the trustees will not be given any greater effect. 3. Non-Action of Trustees. — ©drool trustees are not ordinarily learned in the law or acquainted wliili the rules for the construction of statutes, and their mere non-action should not 'prejudice the district by working a change in its boundary. .</p> <p>4. Errors Corrected. — The circuit court properly held that so much of the railroad as is in Jones’ farm is in the Kuttawa district exclusively, and such as lies between the Jones farm and Lick C'ree-k, is in lt.he Eddyville district exclusively. He also properly he’d that the railroad is the line between the two districts on the south, but erred in holding that any part of it between Lick Creek and Knob Creek is exclusively in the Kuttawa district. By the act the railroad is the line between the two districts from one creek to the other. But that the Eddyville school may not suffer by reason of the mistake made by the trustees, the amount now due it will, if they so desire, be ordered paid in equal installments, due in one, two, and three years with interest.</p>

<p>City Attorneys — Rights and Duties — Advisor of City Council 'and Other City Officials. — The city attorney is the lawful (head of the legal department of the city .of Louisville. As such, it is his duty to attend to all of .the litigaltion of the 'City, and to advise the mayor, the general council and the other city officers of their duty, when required. These duties cannot be tafeen from .him ox transferred to another. While it is within the .province of the general council Ito appoint assistants 'to the city attorney, .they must foe his .assistant®, do what he directs, and can (be clothed wiith no authority to give opinions or act in any wise independent of him. It is the right of the people to 'have the municipal .officers, from .the mayor, who is at the head of the executive department of the city to the lowest official, advised as to 'their legal duties by the .city attorney, and not .by other officer or .offiteexs whom the general council may choose to create or appoint.</p>

<p>1. Municipalities — Ordinance Extending City Avenue Across Railroad Track — Objection by Railroad Company. — The city council of Douisviilie at the request of taie hoard of public works in 1907, passed an ordinance fixing the grade or Roberta Avenue, and directed .that it be extended across the D. & N. R. R. track and co-nneoted with Frankfort Avenue; the Frankfort Avenue •being .three feet higher than the railroad track, and nineteen feet therefrom; to which the railroad company objected, and filed a petition for ¡an injunction, to which a demurrer by the city was sustained and the railroad company appeals. Held, it is well settled that an ordinance cannot be assailed as invalid merely ¡because it may be considered as unreasonable, or as working a hardship in particular cases. In other words, what .the Legislature expressly authorizes cannot be set aside by the courts .because they deem it unreasonable.</p> <p>2. Legislative Power — Ordinance in Pursuance Thereof. — But when •the power to legislate on a given subject is conferred, and the mode of its exercise is not .prescribed, then an ordinance passed in pursuance ¡thereof m/ust be a reasonable exercise of the power, or it would be pronounced invalid.</p> <p>3. Same — Power to Declare Ordinance Void. — It is only in extreme cases that the power to declare a municipal ordinance passed ¡pursuant ¡to legislative ¡authority void on the ground that it is unreasonable, arbitrary and oppressive.</p>

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

<p>1. Elections — -Special Elections — -Question. Submitted — Sale of Whiskey in Local Option City — Contest.—Tie following question was submitted to tbe voters of tbe city of Niebolasvill-e, a city of the iourttli class, on February 15, 1910: “Do you wish the prohibition law now in force in the city of Nicholasville by virtue of an election held Sept. 20,1906, to 'become inoperative and the sale, baiiter or loan of spirituous, vinous or mjalt liquors in said city he permitted?” There was a majority of thirty-five votes in favor of the sale of 'such liquors. On a contest of the election, Held, that while the proposition .submitted is longer than it ■should have -been, and is not as clearly stated as ¡lit might have been, we cannot ®ay thalt it was calculated to and did affect the result of flhe election.</p> <p>2. Registration of Voters — 'Time Fixed. — The failure of ithe county judge to fix the time for a special registration for said election on a day not les® than five days prior to Ithe election, rendered the election void under Ky. Statutes, section 1495, providing that: “Registrations prior to special ©lections shall ¡be held not less than five days prior to the election.”</p> <p>3. Failure ¡to Present Certificate at Poll — Effect.—If a voter votes at such an election without presenting or offering to present his certificate of registration, it follows, under the language of the statute, that hi® vote cannot be counted, and where it appears that about two-thiirds of the voters voting at the election, had no right to vote under the statute, the election under such circumsi'aneeis' cannot be upheld.</p>

<p>1. (Railroads — Injury to Brakeman — Action for Damages — 'Allegations —'Sufficiency.—In an action toy a brakeman agiainst a railroad company for damages, be alleged that through the gross negligence and carelessness cf 'the defendant, its agents and servants superior in authority to (him, he was thrown upon the track of appellant, and run over toy several cans and the engine. Held, that under those general allegations appellee could prove and recover for any gross negligence 'committed toy positive acts, or for an omission of any act by any or all of appellant’s agents in charge of the train upon which, appellee was employed, who were superior in authority to appellee.</p> <p>2. Engineer -CHe'ck'ng Train — -Absence of Signal. — Appellee was by order of the conductor, and in (the line of his duty upon the ends of and between two gondola cars for the purpose of riding one in on the house track, and his position was known to the conductor and -engineer; the train wiais- being mioMed at the rate of nine or fen miles an hour, and the engineer was without any signal from hhe -appellee, and, in violation of hi-s duty the ■engineer checked the -train upon a signal from the conductor, by re-a-son of which -appellee received the injuries sued for. Held, the .proof shows that the engineer had no right to check, the movement of the train without first receiving a signal from the head ¡brafcenmn, -and for the injuries (thereby received appellee was -eniiitl-ed to recover damages.</p> <p>3. Head Brakeman- — Assumption -as to Duty of Engineer in Giving Signal. — Appellee, who was head brakeman on. .the train, had a right to 'assume that -the engineer would -perform his duty -and not cheic-k -the engine until he gave him the -signal; therefore, as he had -a right to rely upon -the fidelity of the engineer, he could act with les-s caution than would have been incumbent on him otherwise.</p> <p>4. Instructions — Errors Set Out. — The court erred to the prejudice of 'appellee in the first instruction by confining his right to recover to the theory that he was performing the duty referred to by order of the -conductor alone. The court should have added, "-or if he was performing labor at -the time in the line of .his duty -as head brakeman, and the -engineer knew that fact and that he was situated between the -ears.” The engineer was guilty of gross negligence when he suddenly checked the movement of like train wnthout any warning, -to, or knowledge on the piant of appellee that he was going to do so.</p>

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

<p>Appeal from Kenton Circuit Court (Criminal Branch, Common Law and Equity Division).</p>

<p>1. Banks — Assessment to (Restore Impaired Capital. — The Secretary of State is authorized by section 586 of the Kentucky Statutes to order a bank to make good by assessment of t)he stockholders any impairment of its capital stock; . and, under this authority, -he is invested with a large discretion as to the amount of the assessment, and this discretion will not be interfered wilth, unless abused.</p> <p>2. Assessment of Shareholder®. — When so directed toy the Secretary of State, the board of directors of a bank are authorized to assess against the shareholders the • amount ordered to .toe paid by the Secretary of State, and ithis assessment they may enforce the collection of in an action against the shareholder if he fails or refuses ¡to pay.</p> <p>3. Assessments — Lien Upon Stock. — An ¡assessment made by the •board of directors is a lien upon the stock of the shareholder. If the assessment is nolt paid, the bank may sell the ¡shares of stock of the delinquent shareholder to pay the assessment.</p> <p>4. Assessment — Lien Upon Stock in Hands of Pledgee. — Every shareholder takes and holds hi® stock in a bank subject to the right of the hoard of directors to enforce a Lien upon lit for the purpose of restoring the impaired capital ¡of the bank, and this lien may be enforced against the stock in the hands of a pledgee for value.</p> <p>5. Application of Principle. — The board of directors of a bank, in pursuance of an -order from the Secretary of Start©," assessed the shares Ito make good the impairment of the capital stock, and adopted a by-law giving it a lien upon the stock to make good the assessment, .providing that if the assessment was not paid the stock would be sold to satisfy it. Before this assessment was ordered, a shareholder had pledged his stock to another -person, who was so holding it. Held, that the lien of the bank is superior to the lien of the pledgee.</p>

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

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

<p>Local Option Laws — In Force art the Time of the Adoption of the -Constitution — Continue in Force. — By a special act approved January 24th, 1890, ithe General Assembly submitted to ¿he people of Boyle county the question -of prohibiting the sale of intoxicants in the county and provided that if the vote wa;s against the sale it should remain in full force until set aside iby a majority of ithe votes of ‘the county at another election, as provided in Ithe act. The election was held, and the act was put in force. After this the neiw Constitution was adopted, and the present local option law was enacted pursuant to it. Section 27 of section 3490, Ky. St.,- regulating -cities of Ithe fourth class, among other things, provides-: “The -council shall have power hy ordinance to license or -permit, regulate or restrain, the sale of all kinds of liquors within ¡the limits of th-e city.” Appellee was arrested for selling on December 7, 1909, a pint of -whis-key in Danville, Boyle county, Ky., and fried and convicted in the police court and fined one hundred dollars and forty days at hard labor. On -appeal, the circuit court held 'that the local option law was not in- force in Danville. Whether the local option law is in force in Danville is the only question to be determined. Held, the act governing citiesi of the fourth ¡class is a general law of the State. The act of 1890, section 27 of section 3490, Kentucky Statutes, was- a -special act applicable only to Boyle county. The general rule is that a general law does not repeal a previous special act, hut -that the two will be read together. This rule was -applicable under the present 'Constitution in the case of Louisville v. Louisville Water Co., 105 Ky. 754, where it was held that the charter of'ithe Loui-sville Waiter Co. was not affected by the act for the government of a city of the first class. It was also u-pheld in 'Murph-y v. 'City o-f Louisville, 114 Ky. 764, where It was held tbalt a general act regulating revenue and taxation did not re-repeal an act exempting cities of the first and -second class from ithe operation of the -previous act, and we are constrained to hold that local option acts prohibiting the sale of. intoxicants ■were not repealed (by the -general laws for the government of th-e citie-s of the State pursuant to 'the Constitution, but that on the contrary, the clear intent -of the Constitution, as well as the -clearly ex-pres-s-ed will of the Legislature, was thalt the local prohibitory laws should remain -in force until vo-ted .out by the people -themselves. We therefore conclude that the local option law is in force in Danville, and -that section 3490, Ky. St., had no effect upon a local option act in citie-s where iit was in force. Thi-s is ordered to be certified to the circuit court as the law of the case.</p>

<p>Hand — Title Conveyed — (Bower of Appointment — Ratification and Re-affirmance of Deed. — 'Robert Wickliffe devised at his death in 1859 ¡a tradt of land known as “Ellers,lie,” containing 58 acres, to his son-in-law, Wimi. Preston, in trust for his daughter, Margaret Wickliffe Preston, for life, with (power of appointment in his daughter by last will, in default of which it was to descend other children or their descendants. During his life-time Mrs. Preslton conveyed i-t to Caroline H. Thornton. Mr.s. Preston died in 1898, leaving a will, which was duly probated, by .which she ratified and re-affirmed the conveyance of the property to her daughter, Mrs. Thornton. Held, that ratification and reaffirmance of the deed by Mts. Preston must be considered as an appointment under the power derived from Robert Wickliffe, and Mrs. Thornton was 'the owner of the property in fee simple, and site and ber husband had both the right and power to convey a valid title therein in fee simple.</p>

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

<p>1. 'Corporations — Contracts—Impairment By Subsequent Legislation — Option—'Amemdimienfe—Repeal of Charter. — To make the ruling that the charter of a corporation constitutes a contract ■between it and 'the State which the State eanno.t impair by subsequent legislation, the Legislature by the act of 1856 provided as follows: “All charters and grants of or to corporations enacted or.- granted since the 4th of February, 1856, and all other statutes- shall he subject to amendments or repeal, at ithe will of the Legislature, unless a contrary intent he therein plainly expressed, provided that whilst privileges .and franchises so granted may he changed or repealed, no (amendment ■or repeal shall impair other rights previously vested.” (Ky. iSt. 1987.) Held, if there wias a valid contract made in 1885 'by which Ithe city was bound to renew the contract if it did not exercise its option to purchase the plant, the plaintiff could not thereafter impair this contract, for by the 'Constitution, of the United iStaltes no State may impair the obligation of a contract.</p> <p>2. Same — Impairment of Valid Contract. — The State can no more impair the 'Obligation of a contract 'by subsequently adopting a new 'Constitution than it could hy subsequent legislative action. 'The case Itherafore comes .to this': Was there a valid and enforceable contract between the city and water company, obligating the city ito renew the contract for .another term of 25 years when it did not exercise its option to purchase Ithe plant?</p> <p>3. Same — ‘Charter Requirements — iStipulations.-—The water company hy its 'Charter was bound to -serve ihe city -on reasonable term®. Tbe council acting for -tbe city could only demand of the waiter company the services contemplated in its charter on ■reasonable terms. 'So when tbe panties made the -stipulation that they would renew the contract for 25 years longer on terms mutually agreed on- at the time, it necessarily meant Ithat the agreement was to be made on reasonable .terms. The parties having at the end of 25 year® agreed upon reasonable term® and the city being bound by its contract to renew, the property right of the water company to such renewal was. not taken away or affected hy the provisions of .the present Constitution of -the State subsequently adopted.</p>

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

<p>1. Carriers of Dive Stock. — Where live stack are injured Iby reason of defects in a car, -the carrier will -be liabte for the damage sustained.</p> <p>2. Same — Waiver.—Where a shipper ordered a car for a particular purpose, which the carrier agreed 'to furnisih, but substituted in place of it a defective and insufficient car for the purpose intended, the shi-pper did not waive Ms right to recover damages by shipping the 'Stock in the car that was furnished.</p>

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

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

<p>1. Railroads — Lawful Use of Its Property — Damages Recoverable— Limitation. — The railroad is a permanent structure and the property owner must know that as the business of itlhe road increases the trains will increase. It has the right to use its tracks for its 'business as it iqQreases, and its lawful use of its property canned give rise >to a fresh cause of action, and the ■rule bias (been laid down that an action by an adjoining property owner to recover damages for injury to his property by reason of the prudent construction and operation of the. railroad is ■barred in five years after the railroad is (built -and begun to be operated.</p> <p>2. Loud Noises — Evidence of Negligence. — The mere fact that -the operation of trains is accompanied with loud noises and other things usually incident to the operation of such trains, is no evidence tlhat they were negligently operated.</p> <p>3. Pleading — 'Formal Defects — Cured by Evidence. — The rule is that formal defects in a plea are cured by the verdict and judgment where no objection wras made to the pleading in t(be trial court and the evidence on the whole case was heard on the merits.</p> <p>4. Cod-e Provision. — The court must in every stage ef an action disregard any error or defect in 'the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed by reason of such error or defect. Section 134, Civil Code.)</p>

<p>Corporaüons — Acts of President and Secretary — Ratification ' by Stockholders — 'Effect.-—Where a corporation -had -sold its stock ■decided Ito go out of business, tb-e directors having ceased to act, and th-ere being no officers except the president and secretary to perform the duties pertaining to its management, the president -and secretary h-ad the right and authority, and it was the duty and within the -power of these two officers to- settle demands against the -corporation for its toi-ts, and this being -known to the -s-boick-holders and they suffered it, it was a ratification of the act of the officers, and the corporation is bound ¡by -such act.</p>

<p>1 Accomplice in Felony Case. — An accomplice in a felony ease is one of several equally concerned in the commission of the felony, or one connected in some way with the erim-e charged.</p> <p>2. Same — Buying Lottery Ticket — Indictment — Trial — Witness— Competency — Statutory Provisions. — While one may be indicted for 'buying a lottery ticket, under Ky. S!t., section 2575, under section 2579, Ky. St., a buyer of a lottery ticket or any device in the nature of a lottery ticket, shall be a competent witness in any prosecution against the seller, and it shall ¡be no exemption to said buyer that his testimony may criminate himself, .but no such testimony given by the witness shall be used against him in any prosecution except for perjury, and he shall be discharged from all liability for any offense so necessarily disclosed in his testimony.</p>

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

<p>Former Trial — Unauthorized Instruction Given- — -Not Applicable ito Case — Contradictory to Other Instruction's. — On -the former ■trial of this case (see 130 Ky., p. 68), the courit gave the following instruction, to which objection’is made: “The court instructs the jury that it is conceded in this action that the decedenlt, J. P. O’Neal, was initiated into the order -of defendant, and that he paid his social dues, and his dues to insure him until his application for the -certificate sued on could (be accepted or rejected by the offi-cens of- -the defendant. And the count instructs th-e jury that ■ the defendant had a reasonable time, after the -payment of -said dues and the making of said application in which to accept or reject .the said application for the certifícate sued on; and if the jury should believe from the evidence that the defendant failed to pass said application or to accept or reject it Within said reasonable time, and, after the expiration of such reasonable time for the defendant to accept or reject such application, the deceased died before his application Ihad been rejected, then, and in that event, the law is for the plaintiff, and the jury should so find, although they might -believe that there was never but one certificate issued, to-wit; the one of .September 28, 1904.” Held, -there w-as nothing in the petition or amended petition authorizing the giving of this instruction. Besides', if there had been, it would have been contradictory .to the matter set up authorizing the other ■instructions.'</p>

<p>Breach of Promise to Marry — Pleading—Evidence—Instructions— Trial — Verdict.—In an action by an unmarried woman against her professed lover to whom she was engaged when she was 20 years of age and whom 'she had known from her infancy, for breach of a marriage contract, the plaintiff recovered a judgment for $1,500.00 in damages. It is insisted that the jury should have been peremptorily instructed to find for the defendant because the plaintiff failed to show a promise made by one ana accepted by the other. Held, there is no ground for such an instruction if plaintiff’s testimony is to be believed, and her testimony was confirmed by her mother, and by certain letters from defendant which she introduced in evidence. The defendant introduced his witnesses and offered to prove by them, to impeach her character as a witness, that the character of the plaintiff and her mother was bad in Tennessee five years before the trial. They had lived in Kentucky for five years and there was no effort to show their character was bad, at the time of the trial, with those among whom they lived. He did not plead her bad character as a bar or reason why he had broken his promise. He only denied the promise. The case was fairly submitted to the jury by the instructions. 'She was very poor and in humble circumstances. He was a man of means and position. His mother was opposed, to the marriage. Held, that the case was fairly submitted to the jury by the instructions. The court told the jury to find for the plaintiff if the contract of marriage was made or confirmed within a year before the filing of the suit, and to find for the defendant if it was not so made. This was the only issue in the case for the defendant had married another woman thereby putting it out of his power to marry her.</p>

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

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

<p>1. Guardian and Ward — Selection of Guardian by Infant — Common Law Rule. — No good reason can be given for allowing one boy to select his own guardian because the occasion arises after he is 14 years old, and denying to another the same right because some county judge has selected a guardian before he reached' fourteen. The object of the common law rule was to give the ■minor a chance to have a guardian who would be at least personally agreeable to .him and therefore when he . reached the age of discretion he was permitted to supersede any former guardian and nominate one of his own choosing. The same reason exists now 'as did then; and while the language of the statute is not as clear as it might have been made yet we think its' reason and spirit require that it should be construed .as not changing the common law rule except to this ‘ extent; after the infant has had one choice he cannot supersede a guardian of his nomination by another unless the guardian be removed for causes set out in the statute.</p> <p>2. Statutory Provisions — Approval of County Judge — Statutes authorizing the minor to choose his own guardian after arriving at the age of 14 do not commit this important matter to his unrestrained choice, but the county judge has a supervisory direction ■over his choice, and unless the guardian selected by the infant meets the approval of the county judge he may require the minor to make another, and so on, until the selection meets the approval of the judge.</p>

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

<p>1. Deeds — Validity—Absence -of Words of Conveyance — Correcting Former Deed. — It is not necessary that a deed to land should contain words of conveyance. It is sufficient if it contains other words of equivalent meaning, and when the writing recites the making of a former deed, and then sets out that it is made to correct and make good -the former deed, this is all that is required.</p> <p>2. Same — Cardinal Rule of Construction.- — It is a cardinal rule of consiruction to give -some force if possible to every stipulation of a contract.</p>

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

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

<p>1. Lands — Action in Ejectment — Patents—Island—Title— Instruc- : tions. — Where the mainland hordering upon, and the islands in</p> <p>a river, are separately .surveyed and .patented, neither the grantee of' the mainland nor the grantee' of an island can claim beyond the calls of his entry patent.</p> <p>:2.. Same- — In such a case the grantee of the island takes title-only to it and such land as may have been 'added to it by accretion. 3. Same. — It follows, therefore, that the court in this action of ejectment did not err in holding.th.at appellant’s title papers do not cover the land in controversy, or in refusing .an instruction ¡based .upon the, idea that he was-a riparian, owner, there being a continuous stream, when the water is reasonably high,separating, his land from appellee’s.</p>

<p>1. -Cities — 'Ordinances—Bonds for -Street Improvement — Submission , to Vote of City — Validity of Ordinance. — By an ordinance duly and regularly passed by tbe general council, and approved by the .-mayor, the city of Newport provided for -the issue and sale of $100,000 worth of its -bonds for street improvement- purposes. Prior to the passage of -this ordinance, two-thirds of the voters voting at an election held for that -pur-pose, in compliance with -section 157 of the Constitution, voted in favor of the issue of these bonds. Thereafter a question arose as to the right of -the city to issue that amount of -bonds, the claim being made that it would increase the city’s indebtedness beyond the constitutional limit. In a suit instituted and submitted to the circuit judge, he held tlhe -ordinance valid, and -the -city appeals. Held:—</p> <p>2. Cities of the second class are not permitted -to incur an indebt edne-38, including -existing indebtedness, exceeding in tbe aggregate ten per cent of tbe assessment next before fthe last assessment, previous to incurring the indebtedness. It is shown that the assessment for the city for the year 1909 was $13,-209,357 When the ordinance was pas-s-ed, the limit which the city could incur, therefore, was $1,320,935.70. At that date the indebtedness of the city after deducting the amounts in the sinking and sewer funds, i-s -shown to have been $1,160,977.54. At that time tbe indebtedness of tbe Board of Education was $95,000. If tbe indebtedness of tbe Bo-ard of Education is -to be treated as an indebtedness of the city, tbe city wo.uld not be authorized to incur an additional indebtedness in excess of $64,958.15, for -this amount would bring its -total indebtedness up to ten per cent of the assessment of the -previous year. Held, while it is true that the indebtedness -of the Board of Education must he finally met -by a tax levied upon all of the property in the city, it is equally true that its bonded indebtedness is secured by a lien upon the school property. Evidently the Legislature did not place this construction upon section 158 of the Constitution, but in making -provision to meet the requirements of section 183 of the 'Constitution it authorized the ■school boards of cities of the second class to incur an indebtedness of not exceeding two per cent of the taxable property of the district, if the needs of the school so required, without regard to the city’s financial condition. This was the plain legislative intent, and there being no constitutional provision denying to the Legislature this right, the act should be "upheld.</p>

<p>1. Insurance, Life — Application—Statements by Applicant — False Statements — The information given by the applicant voluntarily in his application for a policy .of insurance when false and known by him to be false will render the policy void, if the .company relied, upon the correctness Of the statements as it had a right to do, and issued the policy in good faith.</p> <p>2. • Examination by Physician — Mistake of Physician — False statements of Applicant. — The -mistake of .the medical examiner in re- ■ porting the applicant a good risk affords no excuse for the false statement of the applicant in his application as to the condition of hi-s health and as to his family history. For the correctness of the answers to these questions he alone was responsible, and though the physician to whom he made the statements failed to discern the presence of any ailment which might affect the risk, still the company was entitled to the truth in regard to the questions asked, in order that it might determine from such information -whether it desired the rislt.</p> <p>3. Same — Evidence—Misrepresentation.—In view of the strong case of misrepresentation shown by the record on the part of. the applicant, a peremptory instruction should have been given the jury to find for the insurance' company.</p>

<p>1. Voluntary Manslaughter Under Indictment for Murder — Conviction — Indeterminate Sentence — Under an indictment for murder appellant was found by verdict of the jury guilty of voluntary manslaughter. By .sentence and judgment of the court his punishment was fixed at confinement in the penitentiary at hard labor “for an indeterminate period of time not less than two nor more than twenty-one years.” Held, That as there was evidence conducing to prove the homicide unnecessary and there was no prejudicial error in any ruling of the trial court, the verdict and judgment should not be disturbed.</p> <p>2. Same — Dying Declaration — Competency of — -Hearing and Passing Upon in Presence of Jury. — While it the safer practice for the trial court, in determining whether evidence as to dying declarations is competent, to hear and pass upon its competency in the absence of the jury, yet in allowing it in this case in their presence, no error was committed, in view of the painstaking care of the court in excluding from the consideration of the jury what was incompetent.</p> <p>3. Same — Remarks of Commonwealth’s Attorney in Argument.- — The remarks of the Commonwealth’s Attorney in argument to the jury, objected to, were not prejudicial in view of the admonition of the court to the jury not to consider them.</p> <p>4. Same — New Trial — Refusal of — Newly Discovered Evidence. — No error was committed by the court in refusing appellant a new trial upon the alleged newly discovered evidence snown by the affidavits filed, as the new evidence was merely cumulative and suoh as by reasonable' diligence could have been produced on the trial.</p> <p>5. Same — Indeterminate Sentence Act — Board of Penitentiary Commissioners — Regulating of Sentence By. — Neither the act of March 7. 1910, under which the indeterminate ip-unishment adjudged against appellant was inflicted nor the act of March 16, 1910. under which the Board of Penitentiary Commissioners may regulate his imprisonment between the minimum and maximum limits fixed by the judgment of conviction, is unconstitutional. The act first mentioned does not deprive the defendant of his right of trial by jury, nor encroach upon the powers of the judiciary. Section 7 Bill of Rights, Constitution, only guarantees the right of trial by jury as according to the ancient or common law mode and at the common law the jury only determined whether the defendant was guilty; punishment in the-case of a verdict of guilty being fixed by judgment of the court. So in -permitting the jury to determine the defendant’s guilt or innocence, the act conformed the trial to the requirements of the Bill of Rights. The act does not encroach upon the powers of the court for the court fixes the punishment after the verdict of guilty, which cannot be less than the minimum nor more than the maximum term provided by the statute. j</p> <p>C Act Does Not Confer Arbitrary Power. — The act defining the powers of the Board of Prison Commissioners does not confer upon it arbitrary powers. The act gives the Board authority to parole the convict, and following such parole to discharge him after the minimum term of imprisonment shall have been served, provided, his behavior has, during his imprisonment conformed to the standard, of conduct fixed by the act. The powers given the Board to discharge the convict short of the maximum term of imprisonment is no more unconstitutional than is the power to parole, which it has long exercised and the power to do so neither interferes with that of the Governor to commute the punishment of the convict, or pardon him. "When the act provides that no person shall be eligible to parole except on certain conditions, it necessarily means that those who- comply with the conditions shall be eligible to parole, and that the duty of granting such parole to a person entitled thereto, the Board of Prison Commissioners may be "required, in a proper state of case, to perform. ;</p>

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

<p>Life Insurance — Provisions of F'olicy — Evidence Heard — Finding of the Jury. — On December 28, 1909, appellant issued to Lindley Buckler a policy of insurance on -his life for $205.00-in which his wife was named as beneficiary. On April 27, 1909, Buckler and his wife had appellee Davis, a creditor, substituted as beneficiary in place of Mrs. Buckler. On July 26, 1909, seven months after the delivery of the policy Buckler died. Appellant refused to pay Davis the insurance and he sued to recover it. The jury returned a verdict for Davis and the company appeals. The policy provided: ‘'This contract shall not be -operative or in force unless the first weekly premium has been paid and the assured is alive and In good health upon the date and delivery -hereof.” Appellant pleaded that the insured was not in good health upon the date and delivery of the policy. Appellee filed with his petition what purported to he a copy of the application and medical examination. This on motion of appellant, was stricken from the files. As the application was not attached to the policy the court properly sustained the motion. Two or three witnesses testified that Buckler looked all right and seemed to be in good health and was able to do good work. Dr.</p> <p>Munsey, who had been the insured’s physician for a number of years and who was introduced by appellee, testified that he attended Buckler between June 11, 1907 and March 25, 1909, that he had hemorrhage of the lungs on June 11, 1907, and his lungs were not healed when he saw him again on October 8, 1907; that he attended him January 13, 1908, which was two weeks after the delivery of the policy, and he was then in the same condition as he was before — suffering from tuberculosis. Dr. Wilson testified that he examined Buckler June 10, 1909 and he was then in an advanced stage of tuberculosis and in his opinion he had had it at^ least a year and a half or two years prior to the time of examination. Miss Robbins, a witness for appellant, and one of the trained nurses at the Anti-Tuberculosis Dispensary testified that Buckler was in a very advanced stage of consumption when received at the •hospital and in his condition indicated he had had the disease at least as far back as December, 1908, when the policy was issued. Held, that inasmuch as there was no pleading and no testimony tending to show that the insured was not in as good health when the policy was delivered as when the application was made, the appellant had failed in its defense. j</p>

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

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

<p>Municipalities — Ordinances—Licenses on Bill Posters — Failure to Obtain — Penalty.—Appellant was fined in the city court oí Louisville for a violation of what is commonly known as the Bill Posters’ Ordinance requiring them to have a license before doing qusiness in the city. Held — The word “non-resident” as used in the ordinance means one who does not live within tlie corporate limits of the city of Louisville. This is a wise and necessary provision; without it, persons who lived without the city could by sending their agents into the city carry on the business for which the payment of a license is required without the possibility of tbe ordinance being enforced against tliem. To avoid this sort of fraud, the ordinance provides that the agent of the non-resident proprietor if he carries on the business within tlie city -shall be responsible in the same manner as if he were the proprietor. The appellant must be presumed to know the law.</p>

<p>Master and Servant — Dangerous Place to Work — Ignorance of Servant —Liability of Master. — It is the duty of the master to use ordinary care for the safety of his servant. He cannot with impunity send him into a .place of danger when he knows the danger and knows the servant is ignorant of it. When the ■foreman of the master in charge of the men whose orders the servant was required to obey sent the servant to work in a dangerous place, he, in doing so, represented the master and if in such case the servant was hurt, not knowing the danger, the master liable.</p>

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

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

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

<p>Personal Injury — -Hazardous Place to Work — Knowledge of Person Injured — Assumed Risk. — The rule .appears to be well settled that where one accepts a hazardous .employment knowing of the dangers with which it is surrounded, he is- -presumed to assume the risks ordinarily incident to that business. Applying this rule -to the case at bar, appellant in accepting the employment and undertaking -to discharge the duties assigned him at the place wherq He -was stationed near the pit, is in no condition to complain tie-cause the pit was not covered. It has uniformly been held that employes in accepting employment of this character assume the risks ordinarily incident thereto. ¡</p>

<p>Bills and Notes — Limitation.—In an action in the courts or this State upon a promissory note, executed and payable in the State of Ohio, and placed upon the footing of a 'bill of exchange by the. laws of that State, the five-year Kentucky statute of limitation-, presents a complete defense where the cause of action accrued! more than five years -before the institution of the action.</p>

<p>Vendor and Vendee — Rights of Parties Under Verbal Contract. — A verbal contract for the sale o.f land is not enforclble by either party, but when the vendee under such a contract pays a part or all of the purchase price to the vendor, he is entitled to recover from the vendor the money so paid with interest in the event the vendor refuses to complete the contract by a conveyance, but should be charged with the value of timber taken from the land. ■</p>

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

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

<p>1. Land — Boundary—Ascertainment of Boundary — Evidence of Old Citizens. — In this action to locate the boundary of two tracts of land, one of 50 and one of 30 acres, which had been located and surveyed about the years 1850 or 1851 by one Phipps, the trial court ordered a survey which disclosed that neither survey was actually run out on the ground where it was taken up. Held, that the courses and distances of the survey made by the trial court, and the corners now standing are in accordance with the claim and settlement of Phipps. Old people acquainted with the lines when Phipps lived there, testified that the course adopted by the trial court’s order was the true course.</p> <p>2. Correction of Mistake — Known Marked Corners. — It was the duty of the trial court to correct those mistakes by ascertaining the facts as to the true location of the lines and corners by making a new survey so as to ascertain the facts — known marked corners controlling all other evidence.</p>

<p>Executors — Commission—Money Collected from Principal on Which tlie Executor is Surety. — An executor ought not to be denied his commission on money collected from the principal because he, the executor, may be liable thereon as one of the sureties.</p>

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

<p>Indeterminate Sentence Law — Pee Former Opinion of Wilson v. Commonwealth, 141 K.y., 341. — Tn the case of Tildón Wilson v. Commonwealth, decided December 16, 1910, we held that the Acts in question known as the “Indeterminate Sentence” law are not unconstitutional, and in that conclusion the entire uourt concurred. As the opinion in that case is conclusive of every question discussed in the case, we adopt it as our opinion in this case. See Acts 1910, pages 22 and 61. ;</p>

<p>1. Vacant and Unappropriated Lands — Disposal of by County Courts. —Only vacant and unappropriated lands are subject to disposal by tbe county courts. (See. 4702, Ky. St.) ,</p> <p>2. Surveying — Succession of Entry — Passing of Title. — By Section 4704, Kentucky Statutes, the surveyor is required to survey the entries in the succession, in the point of time, in which the same are made. Neither the entry nor the survey passes the legal title from the State, but they vest an inchoate right in the entrant upon wMch subsequent legal title and rights may be erected, as well as withdraws from further appropriation the land so designated. j</p> <p>3. Fraud in Procuring Title — Recovery by State. — It may be conceded that lapis once entered or even surveyed or patented may be recovered by the Commonwealth for fraud practiced in their procuration.</p> <p>4. Action to Recover Land — Strength of Title. — In an action to recover land the plaintiff must recover on tho strength of his own title and not on the weakness of his adversary’s.</p> <p>5. Location by Ancestor — Rights of Heirs. — The heirs of one who has died after locating a survey of vacant land may perrect the survey 'by having a patent to issue, if there be no valid defense by the State. I</p>

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

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

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

<p>1. Corporations — Dividends.—Stockholders who have received dividends that the corporation was not authorized io pay may be required in an action brought by a receiver of the corporation to return them.</p> <p>2. Stockholders — Right to rescind contract for purchase oí stock.— When a person has been induced by the fraud and misrepresentation of the officers of a corporation to purchase its stock, he may maintain an action to rescind the contract and recover back the money paid for the stock, if the corporation is solvent; but if it is insolvent, and proceedings have been instituted to wind up its affairs, a stockholder who has been guilty of any laches will not be allowed a rescission to the prejudice of creditors of the corporation.</p> <p>3. Receiver of Corporations.- — The receiver or assignee of a corporation stands in the shoes of the -corporation, -and any defense that the shareholder could make against the corporation, or any action he could bring against -it, he may make or maintain against the assignee or receiver.</p> <p>4. Set Off — Right of Creditor of an Insolvent Corporation.- — When a shareholder or other person is sued to recover a debt by a receiver of an insolvent corporation, he may set off against the claim any debt due to him by the corporation when it went into liquidation.</p>

<p>1. Promissory Note&emdash;Wliat Daw Controlled By.'&emdash;A -promissory note executed, prior to the passage of the new Negotiable Instrument Act is controlled by the law then in force.</p> <p>2. Signing on Back&emdash;Assignor when to be Treated as.&emdash;Per son signing his name upon the back of a promissory note is to be deemed and treated as an. assignor unless in writing a different purpose be expressed, or the note can be legally placed on the footing of a bill of exchange.</p> <p>3. Baches&emdash;Release of Assignor.&emdash;Failure of the holder to bring suit at the term of court next ensuing after, the maturity of the note and to prosecute the maker to insolvency with due diligence, will release the assignor unless the latter prevented the bringing of the suit by promising to renew or otherwise misleading the holder. But a promise to renew made 'after the assignor has been released by the laches of the holder is without considera Lion, and will not estop the assignor from relying upon the laches of the •holder.</p>

<p>Wills — Action £or Construction — Action of Court — Appointing a Receiver. — One A. H. Anderson died a resident of Clark county in May, 1909, leaving a will winch was probated and this, action was brought by the executor for a proper construction thereof and for the advice of the court. Held, where it appeared to the court that testator left a residence which had become delapidated and uninhabitable and several thousand acres of land lying in three different counties, with no one residing thereon, the court properly appointed a receiver to take charge of and rent out the land so that the devisees might realize something from it while the matters at issue, if any ever existed, might be tried and adjusted.</p>

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

<p>1. County Assessor — Indictment Against — Neglect of Official duty — Sufficiency of Indictment. — An Indictment against Charles Huff charges that “he as Assessor of Carter county unlawfully failed and neglected his official duty as Assessor in that he failed and neglected to assess Tandy Giles for taxation for the years 1907 and 1908, the said Giles being at the time a resident of Carter county and owning property therein subject to taxation.” Held, there is no .pretense that the indictment is good under Sec. 3748 Ky. Statutes. Nor is there any charge of wilful neglect.</p> <p>2. Jurisdiction of Offense Charged. — Conceding that the indictment is good under Sec. 4076a, provided “the Assessor shall for any failure of his duty under this law where no other penalty is provided, be fined in any sum not less than $25 nor more than $50,” which we do not decide, we have no jurisdiction of the appeal because the highest penalty named is $50.</p>

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

<p>1. Intoxicating Liquors — Selling in Local Option Territory — Prima Facie Case Made Out. — Defendant, D. S. Harris was indicted in the Estill Circuit Court for selling whiskey in violation of the ■ local option law, and on the trial he was convicted by the jury. Held, a prima facie case was made out by the evidence and it was properly left to the jury. The rule is well settled that where there is any evidence to support a verdict it will not be disturbed on appeal.</p> <p>2. Oral Instruction — When Allowed. — Oral instructions may be given by the trial court where both parties consent thereto.</p>

<p>1. Deeds — Ambiguity on 'the Face — Cured by Parol Evidence. — The general rule is that where an ambiguity is patent on the face of the deed it cannot be cured by parol evidence, but that where there is no ambiguity on the face of the deed and the ambiguity is shown by parol evidence it may be removed by parol evidence.</p> <p>2. Same — Sale of Trees — False Description — Identity of Thing Sold. — In this case the deed shows that Cornett sold Herman certain trees marked H. H. standing on his land. Then, in describing his land, he, by mistake, omitted one tract. A part of '■ the description in the deed is false, but the deed shows that certain trees marked H. H. on Cornett’s land, were sold to Herman, and. so the 100 acre tract belonged to Cornett ■and the trees on this tract were in fact counted and marked, the description of the trees themselves in the deed must control the erroneous 'description of the tracts of land. It is 'simply a case where it is shown by parol evidence that a part of a description of the thing sold in the deed is false, but where the actual identity of the thing .sold is shown without doubt, the false part of the description may be disregarded.</p>

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

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

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

<p>1. Obstructing Public Justice — Preventing Witness from Appearing Before Grand Jury. — The course of public justice must not.be impeded. The question in this case is not a contempt of the court or an abuse of its process, but the obstruction of justice. He who knows that another will be a witness or has reasons to know it, and, so knowing causes the witness to absent -himself for the purpose of preventing his testimony, is guilty of obstructing justice. although the witness may not have been subpoenaed, or his 'testimony if given, would not have been important. The law does not tolerate that its proceedings shall be stifled, and the running off of a witness to stifle a prosecution i.s none the less an offense because it is done before the grand jury is impaneled.</p> <p>2. Same. — Grand Juries are impaneled to-inquire into offenses committed in their counties. If persons may with impunity, spirit away the witnesses before they can be legally summoned, the effectiveness of grand juries may be practically destroyed. Those who conduct gaming houses, and the like, may anticipate that the grand jury will investigate these matters and if they spirit away the witnesses just before the grand jury meets, legal prosecutions may thus be stifled. Tne obstruction o£ legal justice was a misdemeanor at common lavf, and the spiriting away of a witness from testifying was always regarded as a phase of the-offense.</p>

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

<p>1. Pleading — Inconsistent Pleas. — Under section 113 of the Civii Code a pleading may contain .statements of as many causes of action, legal or equitable and of as many matters of estoppel and avoidance, legal or equitable, total or partial, and may malee as many traverses as there may be grounds for, in behalf of the pleader. But if a party file a pleading which contains inconsistent statements, or statements inconsistent with those of a pleading previously filed by him, he may under this section be required to •elect which one of the inconsistent pleadings he will rely upon.</p> <p>2. Pleading — Rule for Testing Inconsistency of. — Two or more pleas may be made, if all of them may be shown to he true, and are inconsistent only when the proving of one necessarily disproves the other. It is only when a plea is a direct and unequivocal contradiction, in fact as well as in law, or another plea that the pleas will be inconsistent.</p>

<p>Oil and Gas — Condemnation of Land for. — Section 3766b of the Kentucky Statutes authorizing the condemnation of land for the purpose of conveying oil or gas, and constructing, maintaining and operating necessary pipe lines, machinery and appliances lived in connection therewith, is constitutional.</p>

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

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

<p>Contract — 'Sale of Lot — Description—Possession of Vendor — Acquiescence of Vendor. — This is a controversy over the sale of a lot on which to build a church which is claimed to he void for uncertainty. Held, the words, “one lot with a blacksmith .shop thereon,” sufficiently described the property sold when the contract was executed, by the vendees taking possession thereof and holding it with the acquiescence of the vendor.</p>

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

<p>Homicide — Deliberate Killing of Unarmed Man — Preparation and Waiting for His Victim. — On the trial -of defendant for homicide, the evidence showed that appellant armed and -placed himself in a porch of a house where he was staying, to await the passing of deceased; that when he appeared appellant ancosted him in insulting terms, advanced on him and shot him four times, repeating the shots after he fell, killing him at once; -and an immediate examination of deceased showed him to be unarmed.</p>

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

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

<p>1. Fiscal Courts — Allowing Claims Against the County — Acts Ministerally. — The Fiscal Court is an auditing body acting ministerially, in allowing claims against the county. Wlhen a claim is presented to it, it passes upon the fact whether its consideration has been received on the county’s behalf and whether the price charged is that previously agreed on or that allowed by law. That body then determines whether to approve ’and allow it.</p> <p>2. Appeals to Circuit Court — Validity of Claim — Pleadings Oral or Written. — The matter of appeal to the Circuit Court from an order allowing a claim i-n the Fiscal Court is a summary simple method of trying the dispute between the claimant and the county whether the claim is a valid’demand, and its just demand .against the county. The pleadings may be oral or written and the matter is tried anew in the Circuit Court just as if there had never been ’any action by the Fiscal Court. The same is true if the county appeals.</p> <p>3. Fees Allowed — By Whom Paid — Personal Expense of Claimant.— The County Judge is .required before entering upon the discharge of his official duties, to execute bond before the Circuit Court Clerk of the county, to he filed in the 'County Clerk’s office and ■there noted of record. The Sheriff -is required to execute various ■bonds at the beginning and at certain intervals through his term. The revenue bond is required to be recorded in the County Clerk’s office. Nowhere is it said that the county shall be liable for the fees for recording or noting any of these bonds. If they are to be charged for, it would seem to -be an incident of the qualification of the officials and be a personal expense of their own.</p> <p>4. County Clerk — Claim for Services Rendered — Remuneration—Exofficio Services. — There is no provision for -the .paying of the fees charged or any fee to the County Clerk for copying the names of delinquent tax payers or for recording the County Treasurer’s ■settlement. If he is required to do the work and no remuneration is expressly allowed for it, it is ex-officio, and for such services th statute provides the officer is not to be paid (Sec. 1749 ICy. St.)</p> <p>5. Fiscal Courts — Speaks by its Records — Limited Powers. — 'Tbe Fiscal Court speaks only by its records. The absence of a record either ordering the work to be done or agreeing to accept and pay for it after it was done, is conclusive against the claim for the services, however valuable they may have been. It has time and again been declared that a county is but an integral part of the State’s political government; that the fiscal court is a body of limited powers; that to bind the county by contract it can do so only in the manner and for the matters expressly allowed by statute.</p> <p>6. Clerks of County Courts — Allowance Rejected. — There is no •provision in the Statute allowing clerks for copying a list of persons having license for use of the jury commissioners, and the court did not err in disallowing these items.</p> <p>7. Same — Payment ¡by Beneficiary of Service Rendered. — The clerk is not allowed to charge the county a fee of 25 cents or any sum for qualifying election commissioners, and superintendent of schools or recording his bond or for noting nominations for school trustee or for an order for making examination. All of these are ¡to be paid for if paid at all by the persons for whom the services are rendered.</p>

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

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

<p>Appeal from Kenton Circuit Court. (C. C. Law and Equity Division).</p>

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

<p>3.Railroads — Liability for Misinformation Furnished by a Depot Agent to Passenger. — An agent of a railroad company in charge of one of its passenger stations at which tickets for the transportation of passengers are sold, has authority on behalf of the company to agree with and furnish informat’on to persons who desire to become passengers, that its train not scheduled to stop at a designated station will stop there for the purpose of permitting them to get on or off, and the company will be bound by his representations, unless it is shown that the person to whom he made them knew that they were not within the power or authority of the agent, or unless the ticket upon its face funrches advice sufficient to put a reasonably careful and prudent person upon notice that the information furnished or the agreement made by the agent is incorrect or in excess of his authority.</p> <p>2. Powers cf Depot Agent. — When a railroad company has established a place on its line of railroad, or elsewhere, at which tickets may be bought for transportation upon its line of road, it thereby invests the agent in charge of its business with the implied authority to furnish all reasonable information relating to the transportation of passengers and concerning the movement of passenger trains, and with the power to bind it by agreements made by him or information furnished by him within the line of his duty. And it is within the line of his duty to give information and make representations in reference to the rights of passengers holding tickets that he sells to them. The public has the right to go to such an agent for information concerning the movement of trains upon which they desire to take passage and they have the right to rely upon the statements made by him concerning such matters.</p> <p>3. Railroads — Liabilities for Information Furnished by Depot Passenger Agent. — Where a passenger agent of a railroad company agreed that a certain train would stop at a designated place, and on the faith of this information the traveler purchases a ticket and takes passage cn the train inquired about, he may recover damages from the company for the failure of the tram to stop at the designated station and let him off.</p> <p>4. Railroads — Rules and Regulations for the/Operation of Trains. — • Railroad companies have the right to establish reasonable rules and regulations for the operation of their trains, and within reasonable limitation to designate the stations at which they will stop to receive and discharge passengers. And if a traveler in the the absence of an agreement or arrangement, or without acting upon information furnished by the company, takes passage upon a train that is scheduled not to stop at a designated station, he ■cannot maintain an action if it fails to stop at such station.</p> <p>5. Railroads — Measure of Damage for the Wrongful Ejection of Passenger. — A passenger who is wrongfully ejected from a train is en- ' titled to recover compensatory damages; and in addition thereto, exemplary damages, if hi-s ejection is accompanied with insult or abuse on the part of the train employes or their conduct or manner is violent or threatening.</p> <p>G. Right of Members of a Party to Exemplary Damages. — Where, in the wrongful ejection from a train of a number of passengers at the same time, the conductor acts in an abusive, insulting or threatening manner towards some of them, only those to whom he was insulting, abusive or threatening have the right to recover • exemplary damages. Others of the party towards whom his conduct was not objectionable are only entitled to compensatory 'damages.</p> <p>7. Passenger — Rejection of. — Whether the act of the couductor in pushing a passenger out of a car or from the train entiPe the passenger to exemplary damages depends very largely upon the circumstances surrounding the parties at the time. Under some- circumstances it might be rude and offensive to push a passenger who was being ejected by the conductor; under other circumstances, the conductor might not be using more force than was reasonably necessary to eject the passenger from the train. A conductor in ejecting a passenger has the right in a decent orderly way to take hold of the person of the passenger for t‘he purpose of requiring him to leave the train, if he refuses otherwise to do so.</p> <p>8. Instructions — Separation of Conpensatory and Exemplary Damages. — In cases in which trial courts deem it proper to instruct the jury to allow exemplary as well as compensatory damages,' the jury should be instructed to find separately the amount of damages awarded lor -each.</p> <p>9 . Damages — Remitter.—When the amount allowed for compensatory and exemplary damages is separately stated, and this Court is of the opinion that exemplary damages should not be awarded, it may direct this item of damage to be remitted and direct a judgment to be entered for the amount allowed as compensation.</p>

<p>1. Actions for Personal Injuries — What 'Sufficient for Plaintiff to Allege — Injury Resulting From Negligence. — In actions tor personal injuries, resulting from negligence, it is sufficient for the plaintiff to allege in general terms, that the injury complained of was occasioned by the carelessness and negligence of the defendant. It is not necessary to state the circumstances with which the infliction of the injury was accompanied, in order to show that it had been occasioned by negligence.</p> <p>2. Same — Master ’and Servant — Rule Applies to all Classes of Cases. —The rule announced above where a recovery is .sought for an injury resulting from’ a breach of duty, applies in all cases whether the parties stand in the relation of master and servant toward each other or not.</p>

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

<p>Corporation — Acts of Agent — When Binding — Evidence.—lu an action involving the title to standing timbar, claimant, in his chain, of title, introduced a written contract -of sale' of a corporation signed by its agént. At the same time he introduced evidence to the effect that the corporation had for a1 number of years been engaged in buying and selling land and standing timber, and' that its business was and had been conducted by the agent whose name was- signed to the contract. Held, that/ the Contract of .sale was properly admitted as evidence of title on the ground that where' a corporation by a uniform course of dealing with the public, has held the agent out to the public as possessing the power to act for it in a certain capacity, and-the agent makes a contract pursuant to his apparent authority, the corporation will not he permitted to repudiate the contract, for a uniform -courseof dealing is equivalent to actual authority in the absence of actual knowledge on the part of the party dealing with the agent of any limitation of the agent’s authority.</p>

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

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

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

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

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

<p>Railroad — Ringing Bell at Crossings. — Section 786, of the Kentucky Statutes, which requires, every railroad company to cause the bell on the locomotive engine to ,be -rung and the steam whistle to be sounded at a highway crossing, applies to interurban electric railroad companies, which, by section 842a, of the Kentucky Statutes, have been placed under the same duties and responsibilities, so far as is practicable, that are imposed upon railroads generally.</p>

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

<p>1. Telephones — Erection—Resolutions of City — Absence of City Ordinance — Acquiescence of City — Validity.—On April llth, 1881, the City Council of Frankfort adopted a resolution for permission of the----■— Telephone Company to erect telephone poles on different streets in the city and to carry it across the City Bridge. On this authority the Telephone Co. erected its poles, established an exchange • and began business on January 16th, 1881. On July 28th, 1887, it sold out to the Bast Tennessee Telephone Co. of Ky., -a corporation organized under the laws of this State. It is now insisted for the city that the resolution of April llth, 1881, is void because the permission is granted to ----Telephone Co., and because given by resolution and .not by ordinance. Held, that the grantee haying taken possession under the resolution and held it for a number of years with the acquiescence of the city the objection to the form of the resolution now comes too late.</p> <p>2. Rights — Assignable—Assent Inferred. — For the same reason no objection can now be made on the ground that ¡the right granted •was not assignable. The assignee having held under the resolution for more than 20 years by acquiescence of the city, cannot now object that the right was- not assignable. Assent may be inferred as conclusively from subsequent conduct as from expressed evidence of a prior consent.</p> <p>3. License — Withdrawal by Grantor — Construction of Resolution.— One who takes under a license, although he may spend money on it, makes the investment with the knowledge that the license may be withdrawn -by the grantor. The resolution of a municipal council will not be extended beyond the fair meaning of the words used, and made to include things to the detriment of the public not fairly within the language used.</p> <p>4. Revocation of License — Notice—New franchise. — While the-'council may revoke its permission it can only do so where, a» here, extensive improvements have been made upon the faith of it, upon reasonable notice, giving the grantee a reasonable opportunity to remove his property from the .premises or to acquire a new" franchise.</p> <p>5. Liability of Grantor — Doing Business Without License — The grantor 'being rightfully in possession cannot be fined for doing business without buying a franchise or for charging more for its phones than is allowed to a purchaser of such a franchise, and 90 days is a reasonable notice under the circumstances.</p>

<p>1. Railroads' — Action for Personal Injuries — Failure to Give Signals —Evidence—(.See 1B5 Ky. Rep-ts. page 76, for opinion on First Appeal). — In this action for damages for the death of appellee’s intestate who was killed by one of appellant’s trains, the evidence considered and held that the failure to give the -signals was -established by the weight of the evidence, and also -that the jury had safe ground for concluding that the train could have been stopped, after the engineer first saw the deceased, in time to have prevented it from striking him.</p> <p>,2. Same — Denial of Engineer — Contradictory Evidence With Reference to Stopping Train. — Though the engineer testified- that he could not have stopped the train in time to have prevented killing deceased, appellee had the right to prove by other witnesses that the point in which he, in testifying, admitted he first saw 'decedent, was a .sufficient distance from the place where he was-killed to have enabled the engineer to realize his peril and by the exercise of ordinary care, prevent the train from striking, him.</p> <p>2. Instructions- — Appellant Estopped to Complain of Them. — The instructions- conforming in every respect to the instructions directed on the former appeal t-o be given, and the evidence being substantially the same on both trials-, the appellant is estopped to-complain of the instructions on thi.s appeal.</p>

<p>Setting Aside Order for Fraud. — The breach of an agreement to consent to the court’s allowing an attorney a fee to which it had been theretofore adjudged he was not entitled, can not operate as a fraud upon the procurement of that previous order which had disallowed the fee- j</p>

<p>1. Local Option Law — Presumption of Physician. — Where a local option law (section 25B8, Ky. Stats.), provides that a druggist may sell liquor only upon a prescription written, signed and dated by a physician, the failure of the physician to d.ate the prescription invalidates it, and a sale thereunder affords, no protection to the druggist.</p> <p>2. Same — Date of Prescription. — The druggist can not supply the omission of the physician to date the prescription, and an endorsement of the date thereon by the druggist does not validate the| prescription so as to protect the druggist from prosecution under the local option statute.</p>

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

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

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

<p>1. Actions lor Personal Injuries — Evidence.—Upon this appeal from a judgment awarding 'appellee $400.00 for (personal injuries, tlhe only ground urged for a reversal is that the verdict is contrary to and not supported by the evidence, but as there was some evidence to support appellee’s cause of action, the case was properly allowed to go to the jury, and there being no error on {he part of the trial court prejudicial to the rights of appellant, tíre verdict cannot be disturbed.</p> <p>2. Same — Negligently Inviting One Into Situation of Danger. — One after negligently inviting another into a .situation of dager, had no right to inflict upon such .person injury to extricate her from such danger.</p>

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

<p>1. Taxes — Collection of — What Must Appear in an Action to Enforce. —Before a -collection of a tax can be enforced, it mast appear that it has been authorized by the Legislature, and as the Constitution requires the purpose to be stated In the enactment levying the tax, that mu-st be complied with; there must also appear an assessment of the property and a time when and -a person to whom the payment can be legally made.</p> <p>2. Same — Duty of Fiscal -Court to Specify Purposes of Tax. — The fiscal court is under the duty to specify the purposes for which the tax is to be applied. The Constitution s-o requires for the -protaction of the public and if the fiscal court failed to .so specify, it did no-t relieve the county of its obligation for its debts, nor relieve the tax payers of their .d-uty and liability to provide th-e means of discharging the county’s indebtedness whenever a valid procedure was adopted for their protection.</p> <p>3. Same Pleading — Appeal.—Whether a pleading is termed an amended or supplemental petition is not material on appeal</p> <p>4. Same — Penalty and Interest. — The tax was not -payable until the levy was made in -conformity to the Constitution, hence there should not be either penalty or interest against the taxpayer until ■after he has refused after the perfected order to pay.</p>

<p>.1. Deeds — Attorney and Client — Competency of Attorney to Testify as to the Information Obtained From Deceased Client- — In this action to recover a strip of land conveyed by appellant’s decedent, upon the trial it was competent for the attorney wlio wrote the deed to testify as to what he knew from other source«: what he had before him in drawing the deed, and the fact that he did not know of and take into consideration a division of the land to which the decedent was a party. •</p> <p>2. .Same' — Not Voluntary or Deed of Gift. — The deed showing a meritorious consideration, and not being attacked, is evidence that it was not voluntary, or a deed of gift.</p>

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

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

<p>1. Pleading — Action Upon Warranty. — In this action for a rescission of a contract and for damages upon a warranty, the affirmative matter of the answer and counter claim was not controverted, either by reply or of record, and this being true the averment as to the warranty, the unsoundness of the horses, the breach of warranty and the damages alleged to have been sustained, should have 'been taken .by the trial court as confessed.</p> <p>2. Same. — Where the facts alleged in respect to the breach of war- . -ranty show ¡an implied promise to repay plaintiff the value of the mare, the failure of the latter to deny these allegations rendered it unnecessary to offer evidence as to such damage. (See sub-section 4 of section 126 Civil Code of Practice.)</p>

<p>A deed of a married woman for a consideration recited as paid, though joined in by her husband, which, was not acknowledged or recorded, is void.</p>

<p>1. Contracts — Verbal Merged Into Written. — TheGaw presumes that) all preliminary conversations leading up to a written contract have teen inserted in, or rejected by, the written contract, and .that it expresses the final and completed agreement of the parties.</p> <p>2. Same — Cancellation.—The cancellation of an executed contract is an exercise of the most extraordinary power of a court of equity, which ought not to be exercised except iñ a clear c.ase, and never for an .alleged fraud, unless the fraud be made clearly to appear.</p> <p>3. Same1 — Fraud.—In order to justify a court in rescinding for fraud •a written contract formally entered into, the evidence of fraud in its procurement by either party should be clearly established. The court will not lightly set aside a contract made under such circumstances.</p> <p>4- Same — Knowledge of Vendor. — Where the party seeking the rescission of a contract for the sale of timber, had lived upon the property for thirty years, and had every opportunity to acquaint himself with the amount of the timber upon his land, he is charged with the knowledge which he necessarily would have obtained if he had prosecuted the examination with diligence.</p> <p>5. Same — Acting Upon Knowledge- — Where each party examined the timber and was acting for. himself in the transaction, the seller had no right .to rely upon the representation made by the buyer ■as to the number of trees standing upon the land-</p> <p>6. Representation — Not Relied On. — Where the seller of timber did not rely upon the representation of the buyer as to. the number of trees standing upon the .seller’s land, the seller has no right to complain if the buyer misrepresented the number of trees.</p>

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

<p>Perjury — Jurisdiction of State Court. — Perjury committed in testifying before a United States Commissioner, in a trial before him, is •an offense against the United States and within the exclusive jurisdiction of its courts, and can not be punished in the courts of the State.</p>

<p>1. Rape — Instructions.—In a prosecution for rape, where the evidence for the Commonwealth shows that the rape was committed, ■and the testimony of the defendant is to the effect that no assault of any kind was committed on the prosecuting witness, it is not necessary to instruct the jury upon the law of the degrees of the offense.</p> <p>2. .Courts — Special Terms — Grand Jury and Trial at. — The circuit judge may call a special term whenever in his judgment the business requires ,it; and at such special term he may empanel a grand jury and try at such term persons who are indicted .thereat.</p> <p>3. Continuance. — The purpose of granting a continuance is to give the accused an opportunity to present some evidence in his behalf that he could not obtain or introduce if required to try at the term the motion for a continuance is made, or to enable him to employ and advise with counsel needed in his defense whose employment or advice he could not secure unless the continuance is granted, or to give him opportunity to discredit, impeach or contradict testimony that might be offered for the prosecution; and unless it appears that a continuance would improve the condition of the accused in some of these particulars, it is not error to refuse to grant the motion.</p> <p>4. Change of Venue. — The statutorjr requirement that the affidavit for a change of venue shall be accompanied by the affidavits of two other persons is indispensible to the sufficiency of the application; and the court is no+ required to consider the application unless accompanied by th-ese affidavits.</p> <p>5. 'Change of Venue — Discretion of Court. — The granting of a change of venue is enti>rel3r within the sound discretion of the court; and -unless it appears that this discretion is abused, the failure to grant the change will not be reversible error.</p>

<p>1. In an action on an insurance policy, the defense being that the assured negligently or willfully set the house afire, there is not a failure of proof where there is no direct evidence that he set it afire. This may be inferred from circumstances, and the jury's-verdict will net be disturbed, where the circumstances are not satisfactorily -accounted for.</p> <p>2. When a mistake is made in a deposition the party complaining must move for its correction when discovered. He can not take the chances of a verdict -and complain if the verdict is against him-</p> <p>.3. Statements of the plaintiff may be proved as -admissions by him-The court -should not caution the jury that such statements could only b-e considered by them for the purpo-se of discrediting his testimony.</p>

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

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

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

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

<p>Contracts — Action Under — Evidence.—In this action to recover a balance alleged to be due under a contract for machinery, the case is made to turn upon the credit that should be given the respective witnesses, and upon a consideration of the entire record it cannot be, said that the chancellor did not do justice between the litigants.</p>

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

<p>Action by County Attorney to Recover Money Paid to County Clerli Upon His Voucher. — In this action by the County Attorney to recover for Harrison county money paid to appellant’s decedent upon-a voucher issued to himself as County Court Clark. Held, that the county had no right to maintain this action in the Circuit Court for the reason that such an action is a collateral attack upon a fiscal court record. If the county conceives that a fraud has been practiced upon it, it must overthrow the fiscal court record in a direct proceeding before it can recover from the estate of the clerk, or :his bondsmen the money which he received under the order.</p>

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

<p>1. Writing Purporting Sale — Failure to Designate Property, Wfliere property intended to be sold is in no wise described in the writing, and is only indicated therein by the word “it” such writing contains nothing from which it may 'be known what property was meant by the word “it” and is not enforcible.</p> <p>2. Sale of Land — Identification in Writing — Validity.—To compel a specific enforcement of a contract for the sale of land, where the land to be sold is in no manner identified in the writing, would be simply to enforce a verbal contract for the sale of the land.</p>

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

<p>Deeds — Undue Influence in Execution — Evidence.—In an action to set -aside -a deed because of undue influence and want of consideration, the evidence examined and held, That Conley, who executed it, was not capable of executing the deed, and that he acted' under duress at the- -time of its pretended- execution.</p>

<p>1. Indictments — Names of Witnesses not Planed at Foot of — Failure to Place Does not Invalidate. — The statute requiring Ibe names of the witnesses to be placed at the foot of the indictment is directory and should be complied- with,, but a failure to comply with it neither invalidates the indictment, nor prevents the introduction of witnesses whose names do not .so appear.</p> <p>2. Same — Trial of one for Rape — View of Premises by Jury— Refusal of Trial Court to Permit. — Upon the trial oE appellant for rape, it does not appear that the trial court abused its discretion in refusing to permit the jury to view the place where the crime was alleged to -have been committed. The lower court seems to have been of opinion that it was not necessary, and there is nothing in the record to show that .he was wrong-in that conclusion.</p>

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

<p>1. Nuisance. — Is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.</p> <p>2. Nuisance in Operation of Mine. — The fact that a mine is carefully and prudently operated does not relieve the owner from liability for injuries done to the land of others by the acts of the owner in placing slack, copperas ¡and other deleterious substances on his land in such a way as that they will wash upon the adjacent land, injuring its fertility.</p>

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

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

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

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

<p>Taxed Attorney’s Fee&emdash;"Criminal Cases&emdash;To Whom Paid.&emdash;The only provision for a taxed 'attorney’s fee in a criminal case is section 354 Criminal Code, and under it the fee is for the benefit of the attorney general, and by section 117-a, Ky. St., now goes into the State Treasury.</p>

<p>Special Attorneys — Employment to Represent the State — Agreed Compensation — Fixed by the Governor — Approved by Attorney' General — Emergency Shown. — Under " suib.-seqticm 5 of Section 112-15 Ky. Stt-ats., providing: “The Attorney General and his assistants ¡shall attend to all litigation and business in or out of this State, required of Mm or them under this act or other existing law ¡or laws hereinafter enacted, and ’also any litigation or business that .any State officer may have in connection with a growing out of his official- duty, and no state officer, board of trustees or the head of any department or institution of the State -shall have authority to employ or'to be represented by any other counsel or attorney-at-law, ünless an om-ergeney arises which in the opinion of the Attorney General requires the employment of other counsel in order to prop-eriy protect the intere-st of the -Commonwealth, in which event the Attorney General shall in writing setting forth the rea-son for such -employment, request -the Governor to employ such additional counsel, Before -such -employment said written request -shall he filed in the office of the Secretary of -State, and -shall 1)3 a public record; and a copy thereof -shall be retained and kept on file in the office of the Attorney General. Before sucb. counsel is employed Ms fee and compensation shall be agreed upon and fixed by written, contract by the Governor and said counsel, subject to the approval of 'the Attorney General; find copies thereof shall toe kept on file in the office of the Attorney. General and the Secretary of State.” Held, the object of this statute was to do away with the practice of employing special counsel as attorney’s to represent the interest of the Commonwealth in the courts, and to require 'the Attorney General to take charge of and. attend to all matters of litigation in which the Commonwealth is or may be a party in. interest, whether in courts of civil or criminal jurisdiction,, in or ‘out of the State, except where it is made the duty of the Commonwealth’s or county attorney to represent the State, or an emergency such as subsection 5 contemplates, might arise, would require the Attorney General to employ special counsel.</p>

<p>Appeal from Kenton Circuit Court (Common-Law and Equity Division).</p>

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

<p>1. Appropriation for Care of Public Buildings: — Under section ?>94S of the Kentucky Statutes, -which requires the Fiscal Court of a county to make an annual appropriation to care for, and light and heat the court house, clerk’© offices, jail and other public building© at the ©eat of justice, the appropriaüm should include the expense necessary to eare for, and to light and heat the halls and all the offices in the court house that have been set aside for, and are used by the county officers in the discharge of their official duties.</p> <p>2. Not to include services otherwise paid for. — But such an appropriation required by section 3948, should- not include rhe expense ■of -services for which compensation is provided -by other sections of the statutes.</p>

<p>1. Right to Appeal. — A party cannot appeal from a judgment which 'gave him all the relief he ashed in his petition.</p> <p>2. Decision of Question not Before the Court. — A provision of a judgment which expressed an opinion’ upon an academic question not before the court, was not binding upon any one, or prejudicial to appellant’s rights.</p> <p>3. Appeals — .Cross Appeals. — Where both parties were granted an appeal by the-circuit court, and the appellees neither prosecuted: their appeal nor took a cross ■ appeal in the Court of Appeals, the error assigned by their appeal will not be considered.</p>

<p>1. Carriers — Dufy of, to Intoxicated Passenger. — The mere fact that a ¡passenger is drinking or under the influence of liquor is not enough to put upon trainmen the extra duty of giving to him more care than to other passengers. This measure of duty is only demanded when the condition of the passenger is such that he is helpless or incapable of taking care of himself. If a -passenger on account of intoxication that does not produce helpiess-ne-ss o-r incapacity is rendered less capable than he would otherwise be of protecting himself from accident or injury, or his condition induces him to become more indifferent to his safety, he must yet tafee the consequences of his own recklessness, and the company wiil'l not he charged with the ■d-uity of taking especial care of him.</p> <p>2. Intoxicated Passenger — When Duty to Protect Arises. — Trainmen are not obliged to anticipate that a passenger who is under the influence of liquor will rmneoessaffily expose himself to ■danger; nor are they under a duty to exercise more, than ordinary care to discover whether passengers are dnimc or sober. It is only when their attention is directed either by observation or information to the helpless condition of a passenger, or when by the exercise of .ordinary care his condition could he discovered, that they are under a duty to exercise reasonable care to protect him.</p> <p>2. Vestibule doors on cars.. — It is not negligence under all circumstances for a carrier to fail to equip its cars with vestibule doors or leave these doors, open.</p> <p>4. Equipment of Cars with Air Brakes. — The fact that the air brakes on a passenger car are defective will not warrant a recovery -on the part of an injured passenger unless ir is shown that the condition of the brakes was the proximate cause of his injury.</p> <p>5. Application of Principles to Pacts. — A partially intoxicated passenger, in . obedience to notice that his ¡station had been reached, started to leave the train, when it was .suddenly stopped on a trestle before reaching the station. When he stepped out on the platform he was informed by the conductor that the train was standing- on a trestle, and directed' to go hack in the car, but in place of so doing, remained on the platform and in some manner fell off, receiving injuries from which he died. Held: that under the circumstances 'the company was not liable.</p>

<p>Waste. — A tenant is not guilty oí waste wlio repairs and alters an old building so as to add materially to its value, when the alterations do not change the character of the building in such a way as to make if impossible to restore the building to its former condition at the expiration of the lease.</p>

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

<p>Contracts — Conveyance of Land — Consideration the Care of Aged Aunft and Uncle — Faitee to Perform — Abandonment olf Contract. — Appellant entered into a contract with his aunt and uncle to care and .provide for them during the remainder of their lives in consideration of their conveyance to him .of two. small tracts >of' land. He performed his .contract for about three months, when lie abandoned it and left the old couple. He. sold a few acres off one tract, abandoned claim to the remainder and ' said that he had been well paid for his services. His- aunt and uncle made a similar contract with appellee who performed it and upon their death appellant brought this action to recover . ■ the land and damages for withholding possession of it from him. • . Held, that tbe deed conveying him the land should be can-celled and the title of appellee quieted thereto.</p>

<p>Insurance Life — Action Upon Policy — Evidence—Instructions.—In an action upon two policies of insurance, where the defense wihich the company offered was made to turn upon whether or not the question in the application with reference to the- insured’s association with a person having tuberculosis, was true and the verdict .upholding the policies being supported by the weight of the evidence, and the instructions correctly stating the law, the judgment must be affirmed. Under the instructions the jury could not have found for the plaintiff if they had found that any one of the answers to the questions referred to was untrue.</p>

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

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

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

<p>Husband and Wife — 'Reduction by Husband of Wife’s Estate — Prior to Act March 15, 1894 — Effect.—Where a husband reduced the general estate of his wife to his possession, prior to the married woman’s act of March 15, 1894, he was. not under legal obligation to reimburse her for it, and his subsequent promise to do so, was therefore without a valuable consideration and was not enforeible. The fact that he invested the money in certain real estate is immaterial. It was his money under the law, and the land became his. His parol agreement to convey the land to her was void and being voluntary was void as to his creditors.</p>

<p>1. Slander — Evidence—Repetition—Animus.—Repetition oí siander is allowed to he .proved, not as evidence that the words charged and sued for were spoken nor to permit a recovery for the subsequent .statements, but as evidence of the animus of the defendant. Malice can be proved only by circumstances .generally, and this character of evidence is receivable upon that score.</p> <p>2. Action for 'Slander — Relevant Evidence — Reputation of Plaintiff. — In an action for slander it is a relevant inardry as to What the reputation of the plaintiff was before the words were spoken, the purpose not being to affect his credibility as a witness in the pending suit hut because it is a subject matter of •the suit, but in such action the defendant cannot introduce evidence of his own general character where .he is not impeached ■by evidence of had character.</p> <p>3. Same — Corrupt Purpose of Witness. — Tile crime of faise swearing or perjury involves a wilful corrupt misstatement of a fact which may he either that the witness testifies to a fact as true which he knows to be untrue, or so testifies to a fact as being witlijn his knowledge when he knows that it was not. It is the corrupt purposes of the witness in every instance that' is the basis and essential ingredient of the crime.</p> <p>4. Innocent Mistake in Evidence. — Innocent mistakes in evidence are not criminal and constitute neither perjury nor false swearing. “The offense consists in swearing falsely and corruptly without probable cause of belief, not swearing rashly or inconsiderately according to belief.”</p>

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

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

<p>The testator devised his home place to his wife for life providing that if his afflicted son, Michel, survived his mother, he should have-the land on account of his afflictions; that he wished his son, Marcus, to stay on the farm with Michel and manage it the best he could to make a living for Michel and himself, adding that if Marcus took -car-e of his brother, Michel, at the death of Michel,. Marcus should have everything both real and -personal belonging to Michel. Michel survived his mother. Held, (1) Tha.t Michel took the land for life with remainder to Marcus if Marcus took care of Michel as provided in the will. (2) That Marcus taking care of Michel as provided in the will was a condition precedent to the vesting of the -estate in him and that Marcus must show that he had done so to be entitled to the land after Michel’s death.</p>

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

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

<p>1. Husband and Wife — Gifts of Personal F'roperty — Writing Required — Acknowledged and Recorded. — Ky. St., Sec. 2128 provides: “A gift, transfer or assignment of personal property between husband and wife shall not he valid as to third persons unless the same be in writing and acknowledged and- recorded as chattel montages are required by law to be acknowledged and1 recorded, but the recording of such writing shall not make valid any such gift, assignment or transfer which is fraudulent or voidable as to creditors or purchasers.” Held, the object of the: statute in requiring gifts or transfers of property between ’husband and wife to he in writing and acknowledged and recorded, is to 'Compel the giving in that way of notice thereof to creditor» and purchasers and also others that might have an interest in the property transferred.</p> <p>2. Oral Gifts — When Allowed — Third Persons. — There is nothing •in the statute that prohibits tbe husband from making an oral gift of personal property to his wife, or the wife to the husband. It is only where third persons are concerned that the statute requires the gift to be made in writing and that it be acknowledged and recorded. A daughter of the donor, having only an expectancy in his estate, is not a third person in the meaning of .the statute.</p>

<p>1. Where a party to the suit dies his death is suggested of record, and the action is revived against his devisee, a judgment subsequently entered is void as agains'- his heir at law, who was not a party to the action.</p> <p>2. Limitation does not run against the remainderman during tlie life of the life tenant, although the person in possession holds adversely believing himself the absolute owner of the property.</p> <p>3. 'The remainderman is not bar.red by laches where he -simply remains quiet under circumstances not requiring him to speak.</p> <p>4. A joint owner o-f land who improves it believing it all to belong to hi-m, will, wher-e the property is indivisible, and a sale must be made for division, be adjudged out of the price the amount -which his improvements added to the price of the property.</p>

<p>Master and Servant — Dangerous Place to Work — Injury to Servant— Liability of Master — Question for Jury.- — The general rule is that when a master directs an employe to enter a dangerous place to labor and the -employe complies with the order and is injured he can recover from the master unless the danger was so-obvious and imminent that an ordinarily prudent person would not have -undertaken the wor-k even though ordered -by the master, to d-o so. This is a question for the jury to determine.</p>

<p>Real Property — Action to Recover — Title of the Plaintiff. — In an action to recover the possession of real property, if the title of the plaintiff is put in issue, he cannot succeed unless he exhibits such a title of record or by adverse possession as will show him to be the owner of the property and entitled to its possession. The fact that his adversary has no title will not help his •case.</p>

<p>Appeals from Kenton Circuit Court (Crim. Com. L. & E. Division).</p>

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