Volume 142 — Kentucky Reports

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

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

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

<p>Jury Trial — One Cannot Avoid by Bringing Action in Equity — Ejectment. — A party cannot avoid a trial by jury by bringing his action in equity, unless he is authorized by law to bring it there.</p> <p>. The evidence showing appellee to be in the actual possession of the land, claiming it as his own, the action should have been in ejectment.</p>

<p>Lands — A-ction lor Damages for Injury to ' Possession — Former Opinion. — An action to quiet title cannot be maintained by parties who show no title, and such an action should be dismissed following as it does the reversal of an action -for damages to (possession where it was held that the one in possession had the right to maintain the action for damages. Instead of the present action, the former action should have been redooketed and proceedings had under the former opinion. (Hall v. Deaton, et al. 32 K. 34).</p>

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

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

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

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

<p>1. Insurance — (Marine Insurance — Unseaworthy Vessel — Conditions in Policy — Waiver.—The steamer “Gracy Childers” had three insurance policies against loss by fire, “whenever she is 'in safety and in a seaworthy condition,” the policies containing this additional clause: “This policy shall be null and void while -said vessel shall be unseaworthy except while proceeding to a port for repairs.” Also this warranty: “and that at all times at least two competent watchmen shall be employed, one of whom shall be on duty all the time.” It is admitted that the steamer was unseaworthy and had been condemned by the U. S. Inspectors, in 'March, 1909.. On application of the insurance companies to cancel the policies, the owners replied: “That they had determined to have th? vessel repaired either at Paducah, Ky., cr Mound City, 111., and will b6faln the work in the next lew days, as soon as we can arrange with the officials, therefore we desire to let the policies remain in force.” To this letter appellants responded on March 10, 1910: “We learn from your favor of the 9th inst. that it is your intention to have the steamer Gracy Childers docked and all necessary repairs made within the next few1 days, either at Paducah, Ky., or Mound City, 111. Agreeable to your request we will continue to allow the policies to remain in force.” A fire occurred on June 16th, 1909, by which the vessel was slightly damaged. The insurers paid the loss, $07.89. The steamer burned at Paducah, September 3rd, 1909.</p> <p>2. Waiver — Absence of Watchman. — Held. (1) That if it be conceded that appellants knew on June 16th, 1909, that the steamer had been repaired and was then out of commission it was in no sense a waivci of the condition in the policy as to the future,j and no agreement to waive indefinitely the seaworthy clause. (2) There were not two watchmen employed as required, nor was one watchman -kept in duty all the time. Upon the facts disclosed the judgment should have been for defendant.</p>

<p>1. Insurance — Accident Insurance — Loss of Capacity for Labor — ( ■Notice — Final Pro of,si — Time.—The insiunanjCie in this cas© was against loss of labor or rather of the capacity for labor. Appellant, ©loaded dm ¡bar of ,a recovery that Insured had ¡niot given it notice “as early as it was reasonably possible, of the disability occasioned by the paralysis, and the claim was abandoned under, tbe terms of the policy, and that insured did not furnish affi.rm.a-, tive final proof at all, of the disability caused by the paralysis. The court sustained a demurrer to the pleas. Held, it may he conceded that where the policy requires the giving of notice of injury or illness, and specifies a certain time within which the notice must he given, the condition will he enforced. What the parties to the contract have themselves writtten down in it, as an essential ingredient of a basis for a claim under it may he regarded by the courts as the essence of the contract, for it may not he assumed that the parties would have entered into, the en-. gagement otherwise.</p> <p>2. Indemnity — Total Disability. — 'Neither paralysis nor its duration for 52 weeks gives the insured a claim for indemnity. The paralysis must ihe so severe as to have wholly incapacitated the insured from labor. Then in addition the paralysis must have developed, ©r from tih© beginning mluistl have been -a total paralysis of the limlbs, “whereby the assured shall entirely los© their use.” Until ■there is a total paralysis of tbe two limbs and it is apparent that it is permanent there is no ground for a claim under tbe policy. ■</p> <p>3. Final Proofs — Waiver—Initial Notice. — The provision of the policy as to final proofs was waived by the company’s denial of all liability when the initial notice was g’ven to it.</p>

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

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

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

<p>1. -Master and Servant — Damages—Action for — Recovery.—Appellee, .wiililie employed as fomemani in appellant's cair tarn and yard iu Lexiugitiou iKy., fell tat© a pit and was .seriously .and pieiuniahenUy injured for which he sued .appellant and recovered a judgment for i$4,OOO.'O0 in damages, from which judgment this appeal is prosecuted.</p> <p>2. Same — Assumption of Risks. — Held, that while the servant assumes ail the risks inieid’eint to his em.ploymi.ent (he .does not assume such risks as arise out of the master’s negligence.</p> <p>3. Same — Burden of Proof. — It is well settled in this State that the burden is on .the master to show that the servant took the risk with knowledge of the danger and that he failed to use ordinary care for his own safety, hut for which he would not have been injured.</p> <p>4.' Same — Question fo.r Jury. — Whether appellee’s injuries resulted from his failure to exercis© ordinary ©are in approaching the pit into which he fell, was a question for the jury, as was the question of assumed risk, and whether the appellant’s servants in moving the ear in appellee’s absence, exposing the pit into which he fell, and thus ©neatiing such a 'Change of conditions maide it dangerous for him to approach the car, were guilty of negligence.</p> <p>5. Physical Examination — ¡Right to Demand. — Where a plaintiff in a damage suit for injuries received has the arbitrary right to demand a physical examination, is a matter addressed to the sound discretion of the trial court, and on appeal its ruling will not De distobed unless it is made to appear that there was an abusej of such discretion.</p> <p>6. Excessive Damages — Evidence.—A verdict awarding a plaintiff $4,000.00 in damages for injuries sustained will not be set aside as excessive where the evidence of the witnesses, including twoi physicians, shows they were of a serious and permanent character. (</p>

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

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

<p>1. A city o; dinance making it unlawful for any person. to smoke cigarettes in tbe city is an unwarranted restriction upon tñe right' of the citizen to regulate his own personal habits, and is void. ;</p> <p>2. A person who is arrested and fined under a void ordinance' enacted in Die attempted exercise of the police power, cannot recover damages from the city for his arrest.</p>

<p>1. Ma»cer and Beiv&nt. — The master is not liable to a servant, who in the ordinary course of his employment receives injuries as a| result ef his failure to exercise ordinary care for his own safely.' To authorize a recovery there must be a breach of duty on the part of the u: aster.</p> <p>2. Rule 38 ef the Court. — The attention of attorneys is called to rule] S3 of the ©ouir,t, providing! tlhlat '"iwtarewer a ease .cited or referred ■to by counsel in -brief or argument has been published in the Kentucky Reports, which is the only official publication of the decisions of this Court, attorneys must cite, refer to and use thej Kentucky Reports and no other publication.” Its observance is) requested, and -will be appreciated by the Court.</p>

<p>1. Eminent Domain — Condemnation for Branch Railroad. — Private) ■property cannot be taken for private purposes. It is only when) the taking will be necessary for a public use that the power of eminent domain can be exercised. Land cannot be condemned toj enable a railroad to build a branch from its main line to a factory) or business enterprise solely for the convenience and benefit of the latter however great an advantage the branch might be tq it.</p> <p>2. Private Corporation — Test of Right to Condemn Land. — The busi- . ness in which a corporation is engaged cannot add to or take) from its right to condemn. The test to be applied in every case is — 'Will tihie piropietnty taken ,he for a piulbMc ns'e and mecessiairy for such use?</p> <p>3. Burden of Proof. — The burden is upon the private corporation) seeking to coindiemin land) to establish) that the property sought to be taken will be needed for a public use. j</p> <p>4. Construction of Statute. — Section 769 of the Kentucky Statutes, authorizing railroad companies to build spurs, switches and tracks,) does not give railroad companies the rig'ht to take private property] for private purposes without the consent of the owner. It wasj only intended to enable railroad companies to acquire by consent or !by icomdieanmatioe in a proper state of case property upon which it might construct and operate a branch road. |</p> <p>5. Pecuniary Interest of Private Individual is not Conclusive Thatj Improvement Will be for Private Purpose. — The fact that a single) industry is vitally interested in and will receive special benefit) from the establishment of a branch road, does not deprive the improvement of the public character necessary to authorize condemnation proceedings. j</p> <p>6. Public Use — Wnat is. — An improvement need not be used by on necessary to the use of the public generally, or any considerable number thereof; the constitutional requirement will be satisfied if all the public desiring to use it have the right to do so upon! the same terms and conditions, although only a few may choose) to avail themselves of the opportunity.</p> <p>7. Public Use — Length of Road. — Nor is the length of the road on the places between which it runs an essential inquiry.</p> <p>8. Particular Facts. — Of each case must be looked to in determining! whether or not the use is for the public and will be necessary. (</p> <p>9. Railway Company Cannot Discriminate Between its Patrons. — It must serve.all alike, and cannot give any exclusive privileges or ■preferential rates.</p> <p>10. Dedication to the Public. — Where the owners of a distillery in. whose premises a branch road will terminate testify that the pun-, lie may have the right of ingress and egress over the property toj the station or facilities that may be provided on their premises' for the reception and delivery of freight, this will be treated asj a dedication by the owners of the distillery to the public for this; purpose.</p> <p>11. Advancement of Money by Private Corporation to Build Road.— The fact that a corporation interested in the construction of branch road agrees to lend to a railroad company the money to build it, does not deprive it of its public character.</p>

<p>Pleading — Inconsistent Defenses. — In' an action on a note executed to tbe defendant by a corporation of which he is treasurer, and endorsed by defendant to plaintiff, wherein it is the contention ofl the defendant that he signed the note in his official capacity for the sole purpose of binding the corporation, and that he was Induced by the fraud of the endorsee and others to endorse the note? in his individual capacity he may plead both non est factum, and' fraud, it. being apparent from his whole pleading that he intended to deny the execution of the note only in the capacity of an individual. Oe may alsio rait thie same timie plead payment and accord and satisfaction, no two of the defenses being so inconsistent in fact that the proof of one would dispose of the other-</p>

<p>1. Verdict — ¡Mental or ■phyisicail ¡Suffering — ¡Damages—'Adequacy— Disteretioni of Jury. — [Where a recovery ils sought stalely for mental or physical pain or suffering, or where the action is to recover damages for tine death of a pension, and) there is no evidence uipon ■which to base an 'opinion as to the pecuniary loss buffered by ‘his or her estate, the verdict of the jury will not be disturbedl upon the sole ground! that lit is inadequate.</p> <p>2. The assessmeiut of the amoimt o(f damages in oases of this sort is ¡peoiuliarlyt mtWto the discretion of the jury.</p>

<p>■Laud! — ©ale .of Iby IC'o.nrt — QNPerW Trial — iG-rourndis Therefor — Time in. which to be Made. — 'Section 344, Civil Code, provides that “if ©rounds for a nerwi trial are 'dfeeoveredi after the term at which the verdict or decision is rendered, the application may be made in a petition filed with! the 'clerfc not later, than the .second term after the dlisioovery,” and1 Section '340 provides that “aocidient or surprise, Which ordinary prudence 'could not have guarded against, are grounds for a new trial.” Held, where, in a sale of land made in ÍS04, a deed was made iby rnistahe s'o as to include land not intended to be sold, and whilclh had been held adversely by another for o'ver thirty years, the court properly granted a new trial four years after the sale, an]d -set the sale aside and .directed another sale by proper calfsi and boundary of .the land really sold.</p>

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

<p>heal Property — Action for Injury to — Person in Possession has Right to (Recovery. — 'One in, possession] of real property has a right) to recover for an injury to 'his possession, and is entitled to maintain siulch action, although be does not sboiw title from the Commonwealth, nor fifteen years, open, notorious, adverse possession.</p>

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

<p>Criminal Law — Withdrawal of Plea of Guilty. — Where a defendant under Miiictimienit for murder is induced, hy the fear that he will ibe hung hy a mob, to enter a plea of guilty, and in, accordance ■with his ipleu is found guilty, matees a motion for a new trial in seasonable time the verdict should be set asidle and the defendant allowed to enter a plea of not guilty.</p>

<p>Patents — Action to Enjoin Issual of by Auditor. — This case is similar to and controlled by, the opinion in Bryant, et al. v. James, Auditor, 188 Ky., 4712.</p>

<p>1. Will — Residuary iClams-e — ¡General—-Particular.—-A residuary clause in a -will miay ifoe either general or ¡particular. It is general when the language us-eld by the testator is broad enough to pass all un-di-spos-ed of .property- of Whatever kind or nature, it is particular when, from the language used-, it is apparent that the testator intended to limit the property ¡covered by it to the -residuum oí -certain specified properties.</p> <p>2. (Same. — A residuary 'clause giving to A “the money left of the sale of stack,” is ©articular in its nature,- and would not cover the proceeds of real estate.</p> <p>3. ¡Real Estate — 'Proceeds)—Title.—A (bequest of the proceeds of certain real estate does not ©as® the title to the land to the beneficiary, (but 'Only entitles him to the proiceeds thereof. It is personalty.</p> <p>4. Real Estate — When Adeemed. — When the ©roceqdis of -real estate are bequeathed to designated, persons, the bequest is not adeemed by a sale of the land hy tlhe testator, so long as the money realized from the sale can be traced: out and identified.</p> <p>5. Same. — (Slight .changes in personal property during the life of the testator (do not operate to adeem the bequest so- long as the property remains in kind or specie and can he identified.</p> <p>6. Same. — The proceeds of land bequeathed, which is afterwards sold by the testator, andi invested) in mortgage or land) notes-, is ' not adeemed so long as the money realized from the sale can be traced and identified. But where such) proceed® are invested in other lands, the bequest Is adeemed.</p>

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

<p>Wills — ¡Construction.—Where the testator has an imbecile boy ¡and -devises to -a trustee tibe sum of ¡¡¡¡3,000 to Ib-e used for clothing and supporting the imbecile hoy duxinlg his life, -and then provides “it is my ¡wOl that ¡whatever sumí otf said $3,-00'9 may ¡be left be distributed equally sjniong bis • ¡brothers and sisters, &e.,” it is evident that the testator- had in mind the welfare of the boy and 'contemplated that the corpus of tbe trust ¡fund might ¡be used for tbe reasonable support and comfort of the boy.</p>

<p>1. An agreement not to sue one of two joint tort feasors does not release tine other, although the one with whom the agreement is made is the party primarily liable.</p> <p>2. Where tbe defendant gives i'n evidence a ¡part of a conversation with bis agent, the plaintiff may show all that was said in ¡tbe conversation, although the statements of the agent would not otherwise ibe° coimip'eitent evidence oigainsit the 'defendant.</p> <p>3. A retraction signed! by an agent after the transaction was closed is not evidence against the principal, although, published in its paper at 'tihie plaintiff’s request, and! the -court -should! tell the jury that no damages may !be allowed for- the publication &o -made -of the retraction.</p>

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

<p>3. Guardian and Ward! — 'Action ,'by Ward1. — In an 'aotriom .by a ward against heir guardian, and! Ms sureties ¡to recover money which it is alleged! the .guardian reoeiiveidl and failed to account for evidence .examined and held that ilt flailed' to. ghdw that any ¡properly of the ward’s came into his hands.</p> <p>2. Deed — Collateral Attach. — In such an action a deed from the ward’s father to her mother can not (be collaterally attacked for the purpose of showing that the property iconveyeid ,by the deed in fact 'despended to, the ward suibóeiot to. the mother’s dower rights.</p> <p>3. (Wife’s 'General Personal Estate — ¡Reduction to Possession by iHuisIband. — Under the law in force at the time of the transaction in controversy the general personal estate of the wife became the-property of the husband when reduced1 to possession by Mm.</p> <p>4. [Contract for Ward’s Beneifit. — Where the ¡guardian with hi® own money contracts with .a third party toi take the war® into, his family and care for and educate her as one of his own .children, and the third! party 'faithfully perform® the contract no right of .action lies m flavor of the ward! against the contracting party.</p>

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

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

<p>1. M'unicilpia'l Oompioratious — iSlíre\ett Crossings — Unsafe Condition— Injury to Pedestrian — Burden of Proof. — (Appellee sued this City of (Louisville for damages for .personal injury caused, as alleged', by falling on a street crossing that was in an unsafe condition. ■Held, that the city does not insure the safety of its streets, and it is not reasonable to place upon it the ibumdlen of maintaining at .all times every street crossing and .side wallt in a perfect condition, dt is only inequiredl to be reasonably safe for usie as a footway for ipedestrians. That .which! is .customary may be regarded' as .ordinarily .safe, land! thiat is the standard.</p> <p>2. Evidence — Continuity of Conditions — Relevancy.—Evidence tending to show a continuity of conditions from thie time of the injury to that of the suit, and the evidence of the exact conditionsi at .the time of the suit wias relevant ag tending to prove the exact -condition at the time of the injury. ¡</p>

<p>1. Intoxicating Liquior.s — Local Option Oomtest. — Whene tflie petition for a local option 'election is filled' om the sarnie day that thie order •calling the election is made, the election will he void.</p> <p>2. Notice of Contest. — If a statement of thie ground© ¡of contest is filed with the county cíenla within ten days after the election, and! ■a copy thereof dleliverodl to the county judfee, .and a notice that •tbe 'giroundis of contest .bav>e tom so filed is .piuibliSbadl in"tbe manner prov-idiedi in section ©906 'Of tibe 'Kientacilsy IStetiuities, it will be suffieiiient.</p> <p>3. Estoppel ;of 'Oontesbants. — IBei'sonis w.ba partflcipate in a local option election are not estopped to contest it .</p>

<p>Alley-ways — Subdivision of Lots — Use of Alleys — Common Use of Adjacent Owners. — Tbe owners of a lot fronting 150 feet on G-. Avenue, by 200 feet on 28tb street, caused it to be laid- off into sevien lots, each frootting on 128th street, five of tbenu biaving a fronitagie of 30 feet 'each, and twio of them 26 feet each. An alley or pasiswiay 10' feet widfe was cut off -tbe back end of these lots, leaving 'each lot 140 feet in depth. Appellant (bought the twio 26 feet lots and! appellees thie other five. AP.P&1larat Ibuilt a stable on the alley in tibie neiair of bis lots and then iclosed it to tbe use of tbe other lotoiwmiers. AM the owners, including appellant, bought with tbe understanding that the passwiay was retained for tbeiir common use. Tbe deed to one of the appellees made after appellant’s deed refers to the alley as follows: “Then southwardly along said line of :28th street 30 feet arudl extending (back weistwardly of 'that wMItib. thiroughout, -between lines parallel with 'G-airlanid! avenue 140 -feet to a .private alley 1-0 feet -wide heretofore established -by first party for the use and -benefit .of the property owners abutting thereon.” Held, the the language plainly shows a dedication of the alley for the use and 'benefit of the ,property owners.</p>

<p>1. Continuance — Motion Therefor — Affidavit Filed — Discretion of Count. — An affidavit filed in support of a motion, tor a continuance because of the absence of a 'Witness, must show, first, the exercise of due diligence to procure the witness’ attendance; second, what thie absent witness, if present, wouildl swear to, -and third that the affiant believes it to (be true. When an affidavit meeting thieisie ireguirements is filed! ilt is the duty of the count tó granit a continuance, unless opposing counsel consent that the affidavit be ¡read as thie deposition of the absent witness. When isnchi consent is given the matter rests in the sound 'discretion of the court as to whether or not the continuance will he granted1; iand unfless it el'eariy appears 'that hi© discretion has been abused the rulings of the trial 'court 'Will not be 'disturbed -upon appeal.</p> <p>2. Negligent Operation of IStreet 'Car — Instructions to Jury. — Where a recovery is sought for injury received due to the negligent oper¡artiion of a street car, it is not error for thie court to instruct the jury that, in approaching a public crossing where the presence of pedestrians might be expected, it ¡was thie duty of the motonmiani to keep a lookout.</p> <p>S. iSame. — Where an instruction is asked: upon a 'given point and refused, if the .same idea is presented! in an instruction given, no ground! of complaint is afforded.</p> <p>4. Excessive Verdict. — A. verdict, tboujgb. large, or even excessive, will not ib,e set asid© lipón that ground' alone, unless it i® made to appear that it couldi not have been founded upon the evidence, andi must Ibie- the resiulit of either caprice, 'passion or prejudice.</p>

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

<p>1. (Forme® (Appeal! — Hies Judicata. — ¡Tire opinion upon a former appeal is tibe tow of tibie ©ase upon a .second) appeal.</p> <p>2. Corporation Officer® — 'Clapaciityi bo Malsa Contnact.-H'Wibjeii'e tlie prasideet of a 'corporation was mentally incapable of mialdnig a contract, but -only signed it after tbe terms bad been agreed upon and put in writing under tbe direction of tbe secretary, treasurer and manager, tbe contract was binding upon tbe corporation.</p> <p>3. ¡Right to Rely Upon Incapacity oí Officer. — In order that a ¡coonporlation may rely upon the mental incapacity of its officer o.r agent to mate a contract on (behalf of the corporation, it must be clearly estalMiishied that the oontraottinig agent did not, at the timie the contract was entered into, have sufficient capacity to hnow and um-derstand what ¡he was 'doing.</p> <p>4. Suibmifobinig Issue to Jury — (Necessity Of. — Where -there is 'any evidence upon a question in issue, it is error not to submit that question to the jury; but where there is a total failure of evidence to support a given proposition it is error to submit that proposition to the jury.</p>

<p>1. Written Rutes — fCnnsitruetion for .this Ooumt — Caution—Significance of Green; Flag. — The icomstnuietion of written ¡rules is generally for the court; iso In construing rule 212(6 it was for the court to say whether the iconditions shown, justified its application, as well as to dielfine ¡rule 26 which signifies that a green flag on the ¡side of a track means ‘caution. The court should so have instructed 'the jury.</p> <p>2. Negligence — Redíales® Disregard of Life. — It was gross negligence, evidencing a reckless disregard of the lives of those ahead on the track, for the engineer of the train to dash at such high speed around a curve and through outs onto a track, disregarding the caution signal placed for his guidance and which he admits he ¡saw. Therefore an instruction allowing punitive damages was proper.</p> <p>S. Verdict — Bill of Exceptions — Agreement of Attorneys. — Where the (bill of .exceptions shows that the amount of -the verdict rendered was agreed to (by the attorney® representing hoth parties, who ashed the court to allow the jury to sign it as their verdict, one of the parities- will not he heard to say that the nominal verdict, in fact its own 'ajgreemeint, was the result of .passion or prejudice on the part of the jury. The verdict, ¡so made, is as hindiing as would he a consent judgment.</p>

<p>Husband and Wife — Divorce—Immoral Conduct of Wife. — Evitemos ©onsiidloretd ini tibiis ©as© a>nidl hieMi thiat (by reason of lewd and lascivious icomduiet of hi© wife and tine ©orntractiom 'by her of a loathsome disease, the ¡plaintiff was entitled to a dSyomc© from her andl to ¡have the .title to a tract of land restoiredi to him whioh he hadl convoyed to hetr by reason, of her marital- relation to him.</p>

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

<p>1. Reyeaue and Taxation — AS'S'cssmienib of ¡Lien Notes. — It made Iby statute tbie duty of tibe ¡person who -appear® of ¡record to be ■tibie -owner of a lien note to ¡asses® tihle same for taxation. But if, ibiefone the us©eS'Si!njg period! this note bias ¡been assigned, and it satisfactorily appears that the assignee has listed it for taxation ■andi pal'd tibie taxes- tlhiereon, thie assignor will not foe liable for the tax, although the record idioes not siholw the assignment.</p> <p>2. Auditor’s Agent. — 'Wlho institutes .proideedi-nlg® and is defeated is Balble for tihe eoisits of the action.</p>

<p>Appeal from the Mason Circnit Court.</p>

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

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

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

<p>1. Personal Injury — Action for — Sufficiency of Evidence. — -In an action for damages for personal injuries, evidence examined and held1 sufficient to sustain a verdict in favor of plaintiff. > 1</p> <p>2. Instructions — Permanent Injury — Prejudicial Error. — An instruc- . tion authorizing a recovery for permanent injury in the absence of evidence tending to show that the injuries were permanent, is not prejudicial where it is apparent from the size of the verdict that the jury awarded only a sum sufficient to compensate the plaintiff for her mental and physical suffering.</p>

<p>1. Land — Title Thereto — Adverse Possession — Limitation—'Champerty. — The evidence in this action shows that at the time appellant bought the land in controversy it was in the actual adverse possession of another, and that it has been in the adverse and uninterrupted possession of appellee and those under whou^ he claims for more than fifty years, and therefore appellant’s action is barred both by the statutes of limitation and champerty.'</p> <p>2. Pleading — 'Denying Evidence of Title — Redundancy.—Where, in an action for title to land the answer denied plaintiff’s title to the land, or to any part thereof, and averred title in himself, this, was sufficient without a denial of the mere evidence of the alleged title, such evidence so pleaded being redundant or irrelevant mat-, ter not required by the rules of pleading to be traversed.</p>

<p>Contracts — Action to Compel Specific Performance — Will—Takes Effect Immediately Before Death, of Testator. — The judgment enforcing specific performance of the contract, whereby appellees, 1 as -executor of the will of Francis Bernet sold appellant a lot; of ground was proper. Although the lot was devised the testator by the will of his wife, pursuant to a power to so dispose of it, conferred by a deed made subsequently to the execution of her will, the devise passed to him a valid title to the lot, as under sections 4845 and 4889, Kentucky Statutes, the will of the wife with reference to the real estate devised and the power of appointment exercised took effect as if executed immediately before the death of the' testator, a contrary intention not appearing by the will.</p>

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

<p>A drummer sent in to bis bouse an order wbicb be bad taken. The bouse,on receiving tbe order,wrote tbe customer a card saying that tbe order was at band and would receive prompt and careful attention, also thanking tbe customer for it, and hoping to merit future favors. On tbe same day the bouse rejected the order and’ sent it to tbe drummer to return to tbe customer, on the ground that be bad no authority to make .the sale. Tbe drummer returned tbe letter to the bouse, asking tbe bouse to send it to the customer. This the bouse did eight days after tbe order was received. Tbe customer insisted that bis order had been accepted. Heldj that there was no acceptance of tbe order, and that the bouse was not liable in damages for refusing to fill It I</p>

<p>1. Contract — Counterclaim—Instruction.—Plaintiff sued to recover, the contract price of certain timber sold to defendant. Defendant claimed that plaintiff sold him certain timber in addition to that described in the petition, and that he had been enjoined from cutting a portion of the additional timber and from removing a portion which he had already cut.' Held, that an instruction authorizing a recovery on the defendant’s counterclaim for only the/ standing timber, was erroneous, as defendant, if his • contention) was. proper, was entitled to recover not only for the standing, timber, but also the .timber which he had cut and had been enjoined from removing. I</p> <p>2. Evidence — Where plaintiff claims that he sold defendant the tim-I , ber within a certain boundary, and the defendant claims that plaintiff sold him the timber from a larger boundary, evidence .to the effect that plaintiff agreed to select a certain party to point out the boundary and did appoint such party who pointed out the boundary, to defendant’s agent who branded the trees within the boundary so pointed out, is admissible as bearing on the question of what timber was actually sold.</p> <p>3. Liquidated Claim — Interest—The law is now well settled that a liquidated claim, whether oral or written, carries with it interest from the time it was due, in the absence of any agreement to the contrary.</p>

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

<p>1. Militia of the State — Power of Governor to ’Order Into Active Service. — The Governor of the State has the authority to order into active service the militia of the State at any time or place that he deems their presence necessary. He need not wait before ordering them out to be requested so to do by the local civil authorities. j</p> <p>2. Militia — Power of the Governor to Direct Operations. — When the militia are ordered out, the Governor may direct and control their movements through military channels independent of the local civil authorities, or he may, if he chooses, direct the militia to report to any local civil officer and receive directions from him</p> <p>3. Decision of the Governor not reviewable. — There is no limitation upon the power of the Governor to order into active service the militia or to direct into what locality they shall go or operate. He is to be the judge of the necessity for military intervention, and the courts have no authority to interfere with his action.' The fact that this power may be abused is not sufficient to deny the granting of it.</p> <p>4. Duty of the Governor to Preserve Peace and Quiet and see That the Haw is Executed. — The Governor is charged by the Constitution and law with the duty of preserving the peace and quiet of the State, and to protect the life and property of its citizens; and to accomplish this end may use all the military forces of the State.</p> <p>5. Governor acts as a 'Civil Officer. — In ordering out and controlling the military, and not in his capacity as commander-in-chief of the army of the State. j</p> <p>6. Military Subordinate to Civil Authority. — The military cannot in in any state of case take the initiative or assume to do anything independent of the civil authorities; and it must be at all times subordinate to the civil apthorities. <</p> <p>7. Liability of Soldier for Violation of Law. — A soldier, like a civilian,, is' liable to suit and prosecution in the civil and criminal courts) of the State the same as any other citizen if he violates any of the laws of the State; and the fact that he does so in obedience! to the orders of his superiors, will not furnish him any protection</p> <p>8. Soldiers Have Powers of Peace Officers. — A soldier in active serv-1 ice, whether acting under the orders of his superior officer or1 some civil officer of the State, has the same power as a policeman) or sheriff to make arrests, disperse disorderly gatherings and preserve the public peace. i</p> <p>9. A Soldier’s Disobedience to Military Orders. — if a soldier is ordered by his superior officer to do an unlawful act, that is an act that a peace officer might not do, he must take the risk of refusing to obey the command or subject himself to suit or prosecution1 in the civil courts if he does. !</p> <p>10. Peace Officers — Powers Of. — The militia, acting as peace officers,1 have the right to arrest any person who has committed a felony; or is committing in their presence an act that constitutes a public offense, and the right to disperse, control and suppress riots or unlawful assemblies or bodies of men acting in concert for the purpose of, or that will have the effect of, intimidating, threatening, alarming, disturbing or injuring any person or molesting or destroying .any property, with all the force and power necessary, to accomplish these ends.</p>

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

<p>1. Railroads — Train With Loose Piece of Iron Attached lo It — Negligence — Absence of Reasonable Diligence. — Where a train was sent out with a loose piece of iron attached to it, or if it was discovered, or could have been discovered by the-exercise cf ordinary care after the train was out by those in charge of it, it was negligence to permit it to be moved in that condition, aud it was their , duty to make reasonable inspections for the purpose of ascertaining this fact, if it existed, and if they failed to do this it was negligence.</p> <p>2. Same — The train was undien the mjanagemenlt of appellant’s servants and the injury to appellee caused by a piece of iron falling from it and striking him under the circumstances- detailed would not have happened had those in charge of the train exercised reasonable care. .</p>

<p>Lands — Verbal Agreement to Buy — Statute of Frauds. — A verbal agreement for the purchase of land is in violation of the statute and not enforcible. (See Statute of Frauds and Perjuries, Kentucky Statutes, Section 470.)</p>

<p>Bill of Exceptions — Dismissal of Action. — Where an action was dismissed and there is no bill of exceptions showing why it was dismissed, the action of the trial court will be presumed to have been correct. 1</p>

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

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

<p>Lands — Passways—Belonging to Land Passes With it Unless Reserved. A right or appurtenance belonging to land passes with the land unless expressly reserved, and the fact that one has another outlet can not militate against his right to use -the one that was established and in use at the time he became -the owner of théland. \</p>

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

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

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

<p>Husband and Wife — Action by Wife for Enforcement of Written Contract — Divorce—Attorney's Fee. — Where in an action to enforce a contract made with her husband and for a divorce, the wife, by the judgment got more by the enforcement of the contract than she would have secured by way of alimony, and the judgment for divorce being a mere incident to the judgment enforcing the con•tract, which was the principal and controlling thing sought in the action, the fact that she was granted a divorce did have the effect of giving the case the character of an action for divorce and aliimony so as to bring it within the- terras of section 900, Kentucky Statutes, which provides that the husband in that character of action shall pay the costs.</p>

<p>1. Municipal Corporations — Contracts.— A municipal corporation is not bound by the acts of its agents coming within the apparent scope of their power and authority; their authority to act must be explicit; it must clearly appear, and its existence will not be presumed.</p> <p>2. (Same — No Implied Contract. — The fact that a municipal corporation received the benefit of a contractor’s work does not create a contract by implication on the part of the city to pay for said work.</p> <p>3. Same — Damages for Breach of Contract. — Where a contractor reconstructed a street under a written contract and received the contract price therefor from the city, he can not afterwards sue the city for damages for the increased cost of labor and materials used in executing the contract.</p> <p>4. Contracts. — A party to a written contract will not be permitted to execute his part thereof and then claim rights in opposition to the contract, in the absence of fraud, accident or mistake practiced upon him in its execution.</p>

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

<p>Frauds — Statute Of. — 'A verbal agreement made between two persons, by wbicb one of them is to furnish the money to buy land and the other is to have a specified interest in it, is not within the statute of frauds. i</p>

<p>1. Contracts — Restraint of Trade — Reasonable Restriction. — Where defendant sells to plaintiff Ms livery and undertaking business together with his good will and agrees not to engage in the same business within fifty miles of the place where the business is located for a period of ten years, and it appears that the restriction is necessary for the protection of plaintiff from competition at the hands of defendant, the restriction as to time and place is reasonable, and such contract is not void because in restraint of' trade.</p> <p>2. Injunction. — Where the seller in violation of Ms agreement again engages in the same business with another party within the restricted territory and within the time forbidden by the contract, the purchaser may enjoin them from continuing the business.</p>

<p>1. Local Prohibitory Act — Amendment.—It was within the power of the Legislature to amend the local prohibitory law in force in Breathitt county by prescribing the method of procedure, the quantity of liquor to be sold aud the penalties to be imposed. This it did by section 2558a which, by the express terms,- applied not only where the sale of liquor has been prohibited by a vote of the people, under the local option law, hut also where it has been prohibited by special act of the General Assembly.</p> <p>2. Indictment — Proof.—In a prosecution for a violation of the local option law it is not necessary either to allege in the indictment or to prove that the defendant does not come within a class excepted from the provisions of the law. The Commonwealth makes out its case by showing a sale where the local option law is in force. In order to escape punishment the defendant must then show that he is one of the excepted class.</p>

<p>1. Children — Employment in Violation of Statute — Certificate.—Subsection 11, section 331a, Kentucky Statutes, providing that no child under sixteen years of age shall be employed at sewing belts, &c., absolutely prohibits the employment therein designated, and the certificate provided for in the other sub-sections will not authorize the employment of any child under sixteen years of age in any of the capacities enumerated in said sub-section.</p> <p>2. Purpose of Statute. — The purpose of the statute was to protect children not only from the dangers necessarily incident to their employment, but from injuries that might result from their own carelessness and childish acts, in other words the purpose of the statute was to prevent their being exposed to danger.</p> <p>3. Liability of Employer. — ‘Plaintiff in violation of the statute was employed to work at a mangle in a laundry. She was standing by the mangle Waiting for the signal to commence work. She placed her hand near the driver at the rear of the mangle, and her hand was caught and injured. Held, that it is immaterial that she wasi not actually engaged at work at the time, or that she placed her hand on a part of the mangle where she was not required to work. As the statute was designed to prevent such an accident, her employment in violation of the statute was the proximate cause of the injury. i</p>

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

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

<p>Attorney and Client — Compromise Agreement After Judgment— Claim as to Pee. — In an action against a book company for tbe violation of its contract with tbe State, a judgment for $10,-000 was recovered, but a compromise was effected with the ■company by the School Superintendent and his actorney by which a nole of $2,200 was accepted in satisfaction of the judgment, and at the suit of the successor of the school superintendent that compromise was set aside and canceled, and the book company compelled to pay the $10,000 judgment. Held, that in an action to recover a fee for his services in the original action, the attorney for the superintendent was not entitled to any fee. When he permitted his client to barter away the judgment for a paltry sum, less than one-fourth of it, upon terms of uncertainty as to payment,, he was himseif guilty of neglect of duty, and the lower court should have instructed the jury in accordance with this view of the law.</p>

<p>Personal injury — Action for Damages— Instructions.— Plaintiff, a ■passenger on defendant’s train, claimed that after tbe station was announced and tbe train began to slow up, be left the car and took a position on tbe steps of tbe car preparatory to alighting therefrom, and was thrown from the train by an unusual and unT necessary jerk. In addition to denying tbe allegations of the petition, defendant pleaded contributory negligence. Held, that dnj instruction which told the Jury that tbe defendant was liable In) damages for any injuries sustained by plaintiff while aboard defendant’s train was error. Held, also that an instruction whichj told the jury that defendant, had the right after the station was announced and the train began to slow up, to leave the car and go upon the platform, was likewise an error. Whether or not plaintiff exercised ordinary care for his own safety in leaving the car and in taking a position upon' tke platform or steps, and while remaining upon the steps, was a question, not of law, hut of fact, to he determined by the jury under proper instructions.</p>

<p>Malicious 'Prosecution — Action For — Plea of Estoppel. — One who'entered a plea of guilty in a prosecution for a breach of the peace and was fined $100 and sentenced to fifty days in jail under a promise that if she did confess her guilt and a judgment was rendered against her it would be suspended and never collected, and afterwards on appeal she was again tried and acquitted, is not estopped from bringing a suit for malicious prosecution against one whom she alleged in her petition knew she was not guilty, and that she entered the plea of guilty under his direction while in jail. i</p>

<p>1. Railroads — Farm Crossings — Duty to Repair — Sale Condition For Traveling. — Tbe duty of a railroad company to maintain crossings in reasonably safe and fit condition for travel, obtains as to all wbo bave a legal right to use tbe crossing, and tbis includes those rightfully traveling to and from the farms to which the road is an appurtenant. !</p> <p>2. Same — Absence of Agreement — Duty of Railroad to Repair. — The same principle which requires those operating railroads to maintain the crossings on public highways applies to private passways as well, in the absence of an agreement between the parties to the contrary. ^</p> <p>3. Public and Private Crossings — Reasonable Safeguards — Grades— The railroad company must be the judge of the grade on which it builds and maintains its tracks, as well as of such reasonable safeguards at crossings as will protect the public using the railway and those using the crossing. .</p> <p>4. Crossings — Neighborhood Repairing — Inexpediency.—It would be most inexpedient to allow the public or neighborhood travelers to interfere with the tracks and grade thereof at crossings by attempting such repairs on them as they thought proper.</p>

<p>Street Railways — Injury to Pedestrian — Question of Negligence — Contributory Negligence of Appellant. — Appellant alleged that be was damaged by the negligence of the appellee, Louisville Railway company, in striking him with one of its cars in passing a car from which he had just alighted, by which be was greatly injured upon bis head and other parts of his body. The jury upon bearing the evidence returned a verdict for the appellee on the ground of con-contributory negligence on the part of appellant. Held, it is sufficient to say that there was evidence from which the jury had the right to determino whether, appellant’s injuries were causrd hv the negligence of appellee’s servants or by appellant’s own negligence, and the instructions being correct and not objected to, the finding of the jury will not be disturbed.</p>

<p>Logging Contract — Delivery of Logs into tbe River — Submission t-Jury — Finding of Jury. — This was a contract to deliver certain logs in Pucketts Creek, a tributary of Cumberland River which, were accepted and paid for. Afterwards appellee was hired by appellant to run all its logs out of Pucketts Creek into the river. 419,000 feet of logs were run out of the creek during the existence of the contract. Appellant refused to pay for the logs that it had bought from appellee on the ground that it had construed the contract to be that he was to deliver his logs into the river. The question whether such was the contract was submitted to a jury who found that it was not. Held, we agree with the jury on the evidence. j</p>

<p>1. Continuance — Diligence.—In the absence of diligence shown for a continuance, it is not error to try an accused person at the the same term at which he was indicted.</p> <p>'2. Misconduct of Bystander. — The misconduct of a bystander in shaking hands with and speaking to the jurors, during a recess of the court, and urging them to “give him the fair deal, give him justice,” was. not -prejudicial to the accused — the court having promptly rebuked the offender in the presence of the jury.</p> <p>3. Instructions. — When the instructions gave the law as to murder, voluntary manslaughter, killing in sudden heat and passion, and the right of self-defense, accompanied with a proper definition of malice, and the usual instruction to acquit in case of reasonable doubt of guilt, it was unnecessary, under the facts of this, case, to give a further instruction defining appellant’s rights in case he acted under a provocation which was necessarily calculated to excite his passion beyond the power of self control.</p>

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

<p>1. Statutes — Revision of Previous One — Construction—Presumption —Omitted Clause — Inference.—In construing statutes not only the language used must be looked to, but where it is a revision of a previous one on the same subject it is proper to examine the old as well, to see what change, if any, has been made. It must be presumed the legislature meant something in making the change. So where an entire clause relating to a particular one of a class of subjects has been, omitted, it is a reasonable inference that it was not intended that the omitted clause should lie embraced in the terms of the statute.</p> <p>2. Licensed Peddlers Notes — Endorsement—Meaning— Intendment —Assumption.—In the Act of 1906 (“Revenue and Taxation") omitting the clause as to venders of patent rights, was intended to conform to the decision of the court, so as to require only licensed peddlers to have their notes endorsed “Peddlers Notes," -as required by Sec. 4223, Ky. St. So the phrase in sec. 4216, “anything not hereinafter specially exempt,” means anything to sell for which a license is required by section 4215. This construction gives some meaning to the legislative action. The converse would be to hold that nothing was intended by it. That we ought not to assume. j</p>

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

<p>Surety Companies — Indemnity to and Release Of — Liability on Bonds. A surety company is not entitled to demand indemnity for liability from its principal unless it is so stipulated in the contract of suretyship, and it can not obtain a release after the expiration of the term of the officer for whom it became surety- Can a surety company demand indemnity or release without tendering back the compensation received?</p>

<p>Revenue and Taxation — When and Where Estate of Decedent to be assessed by Personal Representative. — While the estate of a decedent is in the hands of a personal representative for settlement and distribution, it should be assessed for taxation by him at the domicile of the decedent, whether it be in or out of this State. The heir or devisee can not be required to list for assessment his interest while the estate is in process of settlement by the personal representative. This rule applies to the estates of non-residents as well as residents. j</p>

<p>1. Newspaper Publication — Action Against Paper for Libel — Establishment of Truth of Matter — Complete Defense. — In an action against a newspaper for an alleged libelous publication, the establishment of the truth of the matter complained of is a complete defense.</p> <p>2. Good Faith of Publication — Substantially True — Peremptory Instruction. — Where the article complained of was published in good faith and with the belief that it was true, and the evidence showed' it to be substantially true, the defense was complete, and thei plaintiff was entitled to a peremptory instruction.</p>

<p>.Homicide — Trial—Conviction—Exceptions to . Instructions. — On the trial of a defendant convicted of homicide the following instructions were given against the objection of the defendant:</p> <p>“The words ‘with malice,’ as used in the instructions herein, denote! a wrongful act intentionally done, and by the term ‘aforethought,’ as used in instruction No. 1, is meant a predetermination to do théj act, however suddenly or recently formed in the mind, before thei act is done.”</p> <p>■“If the jury believe, from all the evidence to the exclusion of a reasonable doubt, that at the time and place, with the weapon, and in the manner set forth in instruction No. 1, the accused, Virgil Potter, did without malice, in sudden heat and passion, or in sudden af•fray, where it was not in his own apparent necessary self-defense, kill and slay Romie Reed by striking and wounding him upon his-..head, body, arms, limbs or person of him the said Reed, with a .; hatchet, and from which striking and wounding the said Romie Reed did die within a year and a day thereafter they will find him in that case guilty of the crime of voluntary manslaughter, an offense included in the indictment, and may fix his punishment for» a. term in the penitentiary of not less than two years nor more than twenty-one years in the discretion of the jury.”</p> <p>“If the accused, Virgil Potter, struck and wounded Romie Reed in his apparent necessary self-defense, then the- jury should find the accused not guilty, for the law allows, in the necessary self-defense, such means as are necessary, and in the selection and use of the means the accused was necessarily permitted to exercise his own judgment, and could act from appearances so that he acted reasonably; and if at the time the accused struck, wounded and killed Romie Reed, if he did so, he believed, and had reasonable grounds to believe, that he was in imminent danger of great^ bodily harm, whether it endangered life or not at the hands of said Romie Reed, unless he resorted to the means used, then the use of the means was justifiable, and the jury should find the accused not guilty,” Held, upon full consideration we are of the opinion that the instructions fairly submitted to the jury the case of the Commonwealth, and the defense of the accused, and when this is done the ends of the law are satisfied-</p>

<p>1- Railroads — Gross Negligence — When Recovery for — Ordinary Negligence- — As to 'employes in a different department of the service,, ordinary negligence may be, and frequently is, held sufficient to-justify a recovery, but as between employes associated together a' different rule is applied, and in such cases no recovery can bet h-sd except the negligence be gross.</p> <p>2- Same — Verdict Authorized by the Evidence. — While the jury were■authoi-ized by the instructions to award punitive damages if they found the negligence gross, they allowed only for compensation,, and for this reason the question as to whether the instruction was authorized is not passed upon.</p>

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

<p>1. Sheriffs — Taxes—Distilled Spirits — Act 1904 — Repealed by Act of 1906- — Under tbe act of 1902 tbe sheriff was the collector of taxes; on distilled spirits- The legislature by the act of 1904 made the county clerk collector of such taxes. In 1906 the legislature passed a new revenue act omitting the act of 1904, and reenacting the act of 1902. Held, that the act of 1906 was -a complete act with reference, to revenue and taxation and was intended to and did repeal the act of 1904, and that under the act of 1906 the sheriff is the proper officer to collect taxes on distilled spirits.</p> <p>2- Fees — Payment to Wrong Officer — No Bar to Action by Officer Entitled Thereto. — Where the county clerk is not authorized to collect taxes on distilled spirits, or to receive commission taxes so1 collected, the payment of such fees by the county to the county clerk will not discharge the county from liability to the sheriff who was ready, willing and able to collect such taxes.</p>

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

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

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

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

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

<p>1. Where land is held adversely, the fact that the claimant is insand does not stop the running of the statute cf limitation, unless the* insanity existed at the time his cause of action accrued, and if it existed when his cause of action accrued, and continued for fifteen years, the disability was removed by his death, and the •action was barred in three years thereafter, although his heirs were under disability at the time.</p> <p>2. Thirty years adverse possession bars an action regardless of disability.</p>

<p>1. Corporations — Sale -of Stock — Right to'Sue Director for Deceit-— The purchaser of stock from a director of a corporation, who was induced to purchase by reason of representations made by the director as to the value of the stock, may sue to recover the difference between the actual and represented value of the stock; and if the director knew or by the exercise of reasonable diligence could have known that his representations were false, he will be liable.</p> <p>2. Corporations — Duties of Director. — The director of a corporation is required to exercise such diligence to understand the condition of the corporation as an ordinarily prudent man would use in the management of his own business under similar circumstances. ■</p>

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

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

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

<p>Landowner — Permissive' Use by Brother— Adverse Possession — SaleChamperty- — Where the owner of a tract of land permitted his-brother to live on it, cultivate and rent out portions of it to whom he pleased and after the brother’s death his widow was given permission to live on it, her occupancy was not adverse to, but was under the owner and the sale of the land by the owner was not champertous.</p>

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

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

<p>1. Roads and Passways — Regulation by Fiscal Courts — Power Conferred by statute. — Under section 4748b Kentucky Statutes, providing that “all turnpikes and gravel roads * * * shall become public roads and maintained by the fiscal courts, which may provide for keeping them up as directed under the general road law, . it may adopt other rules for their repair and management-” Held, this -section clearly confers the power exercised by the fiscal court in the management and maintenance of the r-oads thereof. I</p> <p>2- 'Statutory Provisions — Amendments—-Since the cases of Pulaski County v. Sears, 117 Ky., 249, and Boyd County v. Arthur, 118 Ky., 932, and Vaughn v. Hulett, 119 Ky., 380, were decided, the legislature -so amended section 18,45, Kentucky Statutes, upon which ■they were rested, as to- authorize members of the fiscal court to serve upon committees in directing road work and provided compensation for such committee work as might thus -be performed by them. ' j</p> <p>3- Commissioners — Letting out Bids for Work. — Under -section 1889, Kentucky Statutes, providing that “the fiscal co-urt shall appoint three commissioners in each magisterial district who shall let out the work in thei-r districts to the lowest and best bidder with the privilege of refusing all bids-” Held, that when considered in connection with the remainder of the act of which it is a part, relates to the disposition of surplus funds in certain counties which could not be expended under the direction of the fiscal courts.</p>

<p>Where a deed as originally written, had in it the name of J. W. James, as grantee, but his name was erased, and the name of his wife, M. B. James, was written in the deed when he delivered it to the cl-erh for record, and he declared that the land belonged to his wife, the presumption á's that the deed was altered before its delivery.</p>

<p>1. Road Supervisors — Salary—Allowance by Fiscal Court — Man- . damns. — Under tbe practice in this State mandamus is the proper remedy to compel action on the part of the fiscal court in the matter of requiring it to allow a road supervisor the salary alleged to be due him for his services.</p> <p>2- Same — Discretion of Fiscal Court- — Under section 4313, Kentucky Statutes, providing that the fiscal court in counties where the roads are worked by taxation may appoint, or refuse to appoint, a supervisor of roads. 'Held, that by the use .of the word “may” the legislature intended to leave the matter to the discretion of the fiscal court, and it may, or may not, appoint such supervisor in their discretion.</p> <p>3- Same — Vacancy—When to he Filled. — A fiscal court can only appoint a supervisor of roads at or during a regular term, even to fill a vacancy, and the authority conferred hy section 4313, Kentucky. Statutes, upon the county judge to appoint such officer, can be exercised byi him only when a vacancy exists, and the fiscal court is not holding a regular term, the appointee to fill the vacancy •till the next regular term of the fiscal court.</p>

<p>1. Instruction — Eight to Peremptory. — Where a railroad freight •brakeman was knocked from the top of a box car and injured by, an over-head tunnel-gauge situated half a mile from the tunnel and unprotected by a. “telltale” or other device to notify thé¡ ■ brakeman of the presence of "the tunnel gauge, the trial court did not err in overruling defendant’s motion for a peremptory instruc-i tion-- - j</p> <p>2. Same — Damages.—Where the damages awarded are not more, than strict compensation, the verdict will not be set aside, although the jury were instructed that they might, in their discretion, award punitive damages if they found the negligence was gross. I</p> <p>3. Instructions — To be Eead as a Whole! — An instruction must be read as a whole; and if, when so considered, it fairly and fully presents the question at issue to the jury, their verdict will not be disturbed.</p>

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

<p>In Court of Appeals.</p>

<p>1. ■ Where a railroad conductor turns the switch himself, ana negligently has a car backed on the wrong track, the company is none the less liable becausé he turned the switch himself instead’.'of directing one of his men t-o turn it.</p> <p>2. A judgment will not be reversed for a blank accidentally left in one instruction, after the dollar mark, when neither of the par: ties asked the court to fill the blank, and on the whole case the defendant was not prejudiced by the omission. . .</p>

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

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

<p>1. Bailroads — Duties and Liabilities Wben Engine is Standing at Crossing. — It is not necessary that an engine should be removed further from a crossing than is required to leave it free for travel, unless it should be brought to the attention of the trainmen that it is necessary to permit the use of the crossing; and in such a ease they should remove it as far as they can with due regard to' the safety of the train and the persons connected with or on it.</p> <p>% Same. — When an engine is stopped clo e to a point -where a public road crosses a railroad, it is the duty of the persons in charge of the engine to exercise reasonable care consistent with the safety of the persons and property on the irain to prevent unusual or unnecessary noises to be made by the engine, whether they see or do not see a traveler with a horse on a nublic road approaching the crossing; or, if they do see one, without reference to whether his horse is frightened or not-</p> <p>3. Same — Wthen an engine is'standing near a crossing that the public have a right to use, the presence of travelers on it must be anticipated; and if the engine is permitted by those in charge of it to make unusual or unnecessary noises, unless the safety of the persons or property on the train require it, and the lu-rse of a traveler is frightened thereby, the company will be liable, unless it be that the traveler is guilty of such contributory negligence as would defeat a recovery.</p> <p>4. Traveler — Duty Of. — When a traveler approaching a crossing near which an engine is standing, knows that it is making noises aikd letting off steam, and he is apprehensive that if he attempts to cross his horse will become frightened, he should not attempt to do so, without notifying in some way the persons in charge of the engine or train that he desires to cross. And if they can, by the exercise of reasonable care, and with safety to persons and property, prevent the noises, they should do so. But if this can not be done, the traveler must remain in a place of safety or take the risk of attempting to cross.</p>

<p>Deed — Construction—A conveyance to one and the heirs of her body creates an estate tail at the common.law, which, hy our statute, is converted into a fee simple. i</p>

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

<p>Beal Property — Sale For Reinvestment — Owned by Father for Self and Infant Children. — 'Where it is made to appear that a house and lot owned by a father and his minor children, in the city of Louisville, produced no income above taxes, insurance, &c., and had become dilapidated, it was proper for the father to bring an action to have it sold and the proceeds used to repair a building on the father’s farm in the country. The court had a right to order this sale even though it had no power to reinvest the proceeds in improving other property under section 491 of the Civil Code, providing tha-t real property may be sold for reinvestment of proceeds in other real property. I</p>

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

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

<p>Sale — Fraudulent Representations. — Appellant sold his farm to appel- ' lee for certain cash consideration and for eight shares of stock in a local corporation, claiming that appellee fraudulently represented that the stock was a dividend paying stock, whereas it was practically worthless. Appellant brought this suit to recover the value at which the stock was taken. Held, that the evidence was insufficient to sustain the charge of fraud.</p>

<p>Where a vendor of real estate knows that it is to be used by the purchaser for residence purposes, and that conditions exist which, a man of ordinary prudence would know, render the property unfit for a residence, he is liable to an action for damages for fraud where he fails to disclose the condition, although he may not in' fact intend to commit a fraud upon the purchaser. i</p>

<p>1. Nuisance — Measure of Damages- — Where the improvement that produces the injury or nuisance complained of is permanent, the measure of damage is the depreciation in the market value of the property; but if the improvement is temporary in Its cnaracter- and such a one as that it may be readily remedied, removed on abated, the measure of damage is the depreciation in the rental value of the property, if it be rented out, or, if it is occupied by the) owner, the damage to its use and occupation.</p> <p>2- Limitation — Successive Actions. — In actions to recover damages, for a permanent improvement that is a nuisance, the action is barred in five years from the time the improvement is made, and all damages for past, present or future injury must be recovered in) one action. But, where the thing that creates the nuisance is temporary in its character,, successive actions may be brought for the injury caused by it. |</p> <p>3. Recovery for Temporary Nuisance to Time of Trial — Practice.—! When an action is brought to recover damages for a temporary nuisance, and it is in existence when a trial is had, the plaintiff should file an amended petition setting out the continuance of the nuisance and may recover damages up to the date of thel trial- But if he fails to file an amendment, and the instructions, do not confine the jury to any particular time, their verdict will be treated as a finding of damages up to the date of the verdict.)</p> <p>4. Witnesses — Re-examination Of — Practice.—If during the trial the, judge rules that a certain line of examination is proper and the witnesses are examined in accordance with his ruling, and hei afterwards discovers that his ruling was erroneous, the witnesses) may be re-introduced and examined along the lines held by the judge to be proper.</p>

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

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

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

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

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

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

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

<p>Municipalities — City Prison — Nuisance.—A city is not liable to the owner of a lot adjacent to its city prison because the property, by reason of the prison, is rendered less desirable for a residence. If the prison is oadly kept the keeper is liable for his negligence, but ihe city is not. A city prison is not per se a nuisance.</p>

<p>1. Land — Inducing Another to Buy — Ignorance of Rights — Relative Rights. — Where one in ignorance of his rights induced a third person to buy land, the latter also being ignorant of the true state of facts and relying on the statements and inducements made by the former, will be protected in a subsequent dispute between the •two as to whether the land was, in fact, the property of the one inducing (the purchase at the time.</p> <p>2- Call Patents — Absence of Corners — Discrepancy.—If nothing else appears in a “call’ patent — .that is, one whose comers are all stakes but one, or where the lines were not run out and marked at the time except a discrepancy between the figure made by platting the patent calls and the surveyor's plat, it is not proof of a mistake in the patent. It is apt to be a mistake in the surveyor’s plat- j</p> <p>3. Surveyor’s Plat — Corners and Distances. — A surveyor’s plat is of equal dignity with his other certified work, but not superior. The correct running of a patent, where there is but one visible corner, is to follow the calls, courses and distances, and closing the last line so as to make a complete survey.</p> <p>4- Quieting Title — Possession of Plaintiff. — In an action to quiet title to land where the evidence shows that the plaintiff was not in ■the actual possession of the land a judgment dismissing the petition was proper.</p> <p>5. Two Innocent Persons — Misrepresentation of Oné. — The maximiis where one of 'two innocent persons must suffer, he alone should' suffer who brought about the condition by his misrepresentations;</p>

<p>1. Actions — Agreed Settlements — Absence of Fraud -or Mistake — - Duty of Courts. — A court of equity, in the absence of an allegation, and proof of fraud or mistake, will not aid a party to an action toj violate an agreed settlement of a matter in controversy made out) of court and which he voluntarily made with the other parties -to*the action.</p> <p>2. Vexatious Litigation) — Unnecessary Costs — It is the po-l-'cy of thei law and duty of the courts to prevent vexatious litigation involving decedent’s, estates and to protect such estates from- the payment of unnecessary costs.</p>

<p>Railroads — Shipping Cattle — Mixed and Unclassified Negligence — Liability of Appellant for Injury. — The Louisville & Nashville R. R Co. contracted for itself to carry a car load of cattle over its own line to Cincinnati and there deliver them to the B- & O- S. W. Rj R. .Co., and at the same time contracted as agent for the B. & Oj S- W. R. R. Co. that it would, after receiving the cattle at Cincin-< mati, carry them safely to Baltimore. Held, under such a contract the appellant B. & O. S. W. R- R Co. would be no more liable fob any negligence in handling the cattle in the stock yards at Cincinnati in the absence of proof that it controlled the stock yards ■or that the cattle were reloaded there by its agents, than it would be for the negligent handling of them by the L. & N. R. R. Col.,1 before they reached Cincinnati, or before they started from Mays-; ville. Nor can any liability of appellant B- & O- S. W. R. R. Co.j be predicated on the fact that it received the cattle in a mixed; condition and carried them to Baltimore without grading and clasn sifying them, for it would not be presumed to know that they had; been mixed, or that they were not loaded on the cars at Cinein-i nati as they were by appellee himself at Maysvillo, Kentucky.</p>

<p>1. Telephones — Contract—Sale of Plant. — The owners of the Mays-; ville Telephone plant made a written contract with B to sell him the plant for $50,000 in the stocks and bonds of the new company which he proposed to organize. There was a debt of $21,000. against the telephone company. This debt was to be settled so that the new company would take the property free of debt; and; to this end B agreed to. furnish the $21,000 to the owners with) which they were to pay the debts and turn over to him $21,000 of the stocks and bonds of the new company. The new company was., organized and took over the property, but did not furnish the $21,000. Held that when the telephone company pays the debts it will be entitled to the $21,000 of stocks and bonds which were to-be delivered to B.</p> <p>2. Principal and Surety. — Where the sureties give a new note of; their own, and take up the note of their principal, they may main-i tain an action against the principal for the money, although they] have not paid their own note, and this they may do although the old note was attached to the new note as collateral. ■</p> <p>3. Directors — Payment of Debts, — 1The directors of tbe company having paid -off .some of tbe debts in anticipation of B’s complying with-bis agreement, may recover from tbe telephone company for the-amount'so paid' on its debts.</p>

<p>1. Contract — Signing Without Reading — Effect.—Where the defendant signs a contract without reading it he is hound by it in the absence of misrepresentation as to it.</p> <p>2. Same — Express Warranty — Merger of Oral Agreement — Wherá a'tliresiier is sold under' an express warranty in writing, .the writing merges any previous oral agreement, and the rights of the parties must be determined from the writing: '■ ; ' " ' ' ' \</p> <p>3.--' Subsequent Agrr-ement-^CountfercIaim. — Where the defendant re-/ lies on a subsequent agreement by the maker of the machine.to ■ put it in order, and it is shown that it did come and work oh 'the ' 'machine, and he expressed himself satisfied, and made no further complaint, he can not rely upon a counterclaim based on the fail- [ ure of the maker to put the machine in order. • ¡' ¡</p>

<p>Inheritance — Investment -of Proceeds — Reasonable Time. — The head oí a family who inherits a share in an indivisible tract of land has s reasonable time to procure a sale of the land, and the investment of the proceeds of his share in a homestead, and a year or eighteen months is not an unreasonable time for thiá purpose where he is a convict in the penitentiary.</p>

<p>1. Carriers — Duty and Liability Under Separate Coach Law. — If the conductor of a passenger train permits a passenger to be or remain in a coach or compartment set apart for passengers of the other race, the company -will be liable for any act of misconduct or violence committed by such passenger to the injury of a passenger rightfully occupying the coach or compartment,</p> <p>2. “Conductor” or “Manager.” — The statute imposes upon the conductor or. manager of passenger trains the duty of observing its provisions, and the company will not be civilly liable for the failure of brakemen or porters to compel obedience to the statute-</p> <p>3. Conductor — Duty of. — When a conductor knows or has information that a passenger is in a coach or compartment set apart for passengers of another race, he should as soon as practicable and within a reasonable time remove him,</p> <p>4. Brakemen and Porters. — It is the duty of brakemen and porters to require passengers to obey the law, but the company will not be civilly liable for their failure to do so if as soon as practicable and within a reasonable time after having notice that the statute is violated they give such information to the conductor.</p> <p>5- “Conductor” or “Manager.” — These words are used interchangeably and mean the person who has charge of the train-</p>

<p>Negligence — The owner of a’ team of horses is not liable in damages-to a person who receives injuries by being pressed between the ■ wagon wheels and the wall of-a house-while the team is being-backed out of a passway, when the injured person knew that the wagon was being backed and negligently placed himself in a position where he might be injured.</p>

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

<p>Lands — Action to Quiet Title — In an action to quiet title, the question was, whether or not two adjoining landowners established a certain conditional line- Held, upon an examination of the record that the evidence- sustains the finding of the' chancellor that the conditional line had been established.</p>

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

<p>1. Deeds — Sale of Lot for Manufacturing Purposes — Provision as to Termination of Business — Change in Character of Business.— Where a lot was conveyed with a provision in the deed that in the event the vendee or his assigns cease to do a manufacturing business the lot shall at once become for sale, the vendor having first call on purchase and shall have credit for $500.00 on purchase price, Heir', that a change in the business of manufacturing wood alcohol to that of an extensive saw mill business was allowed by the deed. It did not require a continuation of the manufacture of wood alcohol, but only required a manufacturing Business without specifying any particular Kind.</p> <p>2. Same — Evidence of Intention of Maker of Deed. — Proof showing the intention of the maker of a deed is only admissible when the language of the deed is ambiguous-</p>

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

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

<p>1- I,and — Sale -of — Written Contract — Signed by Vendor — Validity.— A written contract for the sale of land is enforcible against both parties to it if signed by the vendor. The vendor holding the title is the party to be charged by such contract within the meaning of the statute of frauds, and an action against the vendee for the purchase money may be maintained, although he did not sign the written contract</p> <p>2. Assignment of Title Bond — Validity—Acceptance.—The law permits the assignment of a title bond by the vendee and does not require a written acceptance of the assignment by the assignee. Both the vendor and assignor are bound to perform the contract and each is Bable to the assignee for its breach.</p>

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

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

<p>Appeal — (Finding of Fact by -Chancellor — ¡The finding of a chan- •' cellor on an issue of fact will not be disturbed upon appea1, if tbe truth of the matter is in doubt, and the evidence in favor of his finding is as strong as the evidence against it.</p>

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

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

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

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

<p>‘1. Guardian and Ward — Action Against Heirs at Law of Guardian— Date Limitation Must be Computed From. — in an action against the heirs at law of a guardian to recover on a settlement as guardian, limitation must be computed from the date at which money came into the guardian’s hands, and more than thirty-two years having elapsed from that date until suit was brought, the action was properly dismissed.</p> <p>2. 'Same — Husband of Ward — Marriage of Ward — Right of Action of Husband against Guardian. — Under the statute in force at the time of the marriage of 'the ward (1875), she was entitled to demand a settlement on the part of her guardian, and her husband had a right of action against-the guardian, and limitation ran against him from the date of that settlement.</p>

<p>1. Railroads — Killing Person at a Crossing — Instruction in Action for Damages — Dangerous Crossing — Knowledge of Deceased- — In an action for damages against a railroad company by the administrator of one who was killed at a railroad crossing an instruction was; given to the jury that it was -the duty of the deceased in attempting to cross the track to use that degree of care that an ordinarily prudent and careful person would use in undertaking to cross over -the track under like or similar circumstances, and that if the jury believed that the crossing was unusually dangerous and deceased knew it, -then it was his duty to exercise such increased care to avoid injury to himself as was commensurate with the increased danger. Held, this instruction did not require the deceased to exercise increased care for his own safety, in going over the crossing unless he knew it to be unusually dangerous- It did not put upon him the burden of exercising care to discover this fact.</p> <p>2- Negligence of Trainmen — Failure to Give Signals. — -Where the negligence that resulted in the death of plaintiff’s decedent was the failure of those in charge of the railroad train to give the proper •signals or warning of its approach to the crossing, and if those in charge of the train failed to meet the requirements of the law and discharge their duty in this particular the company is answerable for such injuries as resulted.</p> <p>3. Same' — Character of Negligence- — Where a train that killed deceased at a railroad crossing was approaching the crossing under the usual rate of speed at which freight trains travel, and according to the evidence of appellee failed to give the usual signals of its approach, this was not gross hut ordinary negligence.</p>

<p>Taxation — Capital Stock oí L. & N- Railroad Company. — In a proceeding by Revenue Agent H. L. Anderson -to assess tbe capital stock of the D. & Nl Railroad Co., Held, that stock in the railroad:, company is invested in its various properties; real estate, track,, rolling stock, supplies and material used in maintaining and operating the road. In addition it may have large credits carried as. cash or invested in securities, and these, together with such-, items of account as may be owing it go .to make up the real value-of the stock. In addition to these properties the company in its report is- required to show its earnings, gross and net, and in fixing-the value of the stock these items may likewise be taken into consideration. If the company reports, as the law directs, and fairly ■and correctly answers the specific questions propounded, and gives an account -of all other assets and the Board of Valuation- and Assessment considers said report in making its assesment, then any property which'was given in said report can not be omitted property. If the various items bere sought to be taxed were-in fact considered by the Board of Valuation and Assessment in. arriving at the value of tlie stock of the company it would manifestly be unjust to the company to sustain appellant’s contentior. for this would in effect be imposing upon it double taxation to the extent of the value of the property described in the statement. We conclude that as the appellee, L. & N. R. R- Co., had complied with the statute as to its report, and the Board of Valuation and Assessment had not at the date of the institution of this proceeding acted uuon said report or fixed the assessment of appellee company for the year 1908 appellant was without authority to institute 'the proceeding. The chancellor correctly so held.</p>

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

<p>Schools — Colored Children — Constitutional Provision. — Under section 187 of the Constitution of Kentucky providing for the maintenance of separate schools for white and colored children the words "colored children” include all children wholly or in part of Negro blood, or having any appreciable mixture thereof. Children who are of Negro blood to the extent of one-sixteenth are therefore colored children and not entitled to attend schools maintained for white children.</p>

<p>1. Principal and Agent. — Where real estate is placed in the hands ■of an agent for salé, if is'his duty to deal fairly and honéstly with his principal, and to gét for the property that has been placed in his hands the best price obtainable-</p> <p>2- Liability of Agent for 'Misrepresentation or Fraud. — If a real estate agent by misrepresentation or fraud procures bis principal to sell tbe property in bis bands for a less sum tban be.bas been offered for it, be will be liable to his principal for the loss sustained by his conduct.</p>

<p>1. Electricity — Duty and Liability of Electric Companies- — It is the duty of electric light companies to use the highest degree of care and skill known which may be used under the same or similar circumstances, to so insulate or protect its wires as to make •them free from danger to those who may bo brought in contact with them.</p> <p>£ Action for Pain and Suffering. — The personal representative of a person who dies as the result of personal injuries received several days before his death, has the right to bring an action for the pain and suffering of the deceased between the date of the injury and the death, or an action for the loss sustained on account of the destruction of his power to earn money occasioned by his death.</p> <p>3. Damages. — An award of $6,750.00 in an action for pain and suffering, where the deceased lived six days after he was injured, is not so excessive as to justify the conclusion that it was the result of passion or prejudice-</p> <p>4. Photographs as evidence- — A photograph that presents an accurate picture of objects and things relevant to the matter under investigation may be introduced as evidence.</p> <p>5. Assumption of Risk. — A lineman of a telegraph company, in ascending one of its poles, on which were also strung electric wires, does not assume the risk of injury received by reason of coming m contact with the electric wires, unless he knows, or by the exercise of ordinary care could know, they are not properly insulated. He owes no duty of inspection or examination, and is only obliged to exercise ordinary care to prevent injury to himself.</p> <p>6. Application of Principles. — A lineman of a telegraph company in the performance of -his duties on one of its poles on which was strung wires of an electric company, came in contact wiih the exposed -and uninsul-ated. end of a heavily charged1-wire, receiving a shock that resulted in his death. Held, under the facts his personal representative was entitled to recover damages.</p>

<p>Decedents’ Estates — Claim for Board, Nursing and Attention During Deceased’s Life — What ■ Claimant for Payment Must Show.— Where one owes another a moral obligation that would influence Him to render personal services, such as nursing and attention in his last illness, the party rendering such services can not recover therefor unless he shows, either that they were rendered under an express contract by the terms of which he was to be paid for, or that at the time they were rendered the party rendering them expected compensation, and the party receiving them expected to pay therefor.</p>

<p>1. Corporations — Holding Real Estate — Limitation.—A corporation whose charter has expired, and which is doing no business except to wind up its affairs, is not within the purview of Section 192 of the Constitution, and the time it so holds real estate is not to-be counted in the five years limit under that section.</p> <p>2. Escheat — Action For — Limitation.—An action to escheat property is not -an action on a liability created by statute, but is an action to recover real property and is not barred until fifteen years after the cause of action accrues, where the corporation ceases to-do business but continues to hold the property.</p>

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

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

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

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

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

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

<p>1. Graded Common Schools — Fourth Class Cities. — A city of the fourth class may hy vote of the people establish a graded common school in lieu of the school provided for by the act governing cities of the fourth class*</p> <p>2. Election Ordered. — An election for this purpose may be ordered by the mayor, the order being directed to the sheriff and the officers of election being appointed by the. sheriff.</p> <p>3. Boundary — Outside the City. — When the city has established a graded common school by an election held for that purpose, the ■boundary of the district may be extended so as to take in territory outside the boundary of the city.</p> <p>4. Finding of Trustees — Annexation—Presumption.—Where the ■trustees make & finding that a majority of the legal voters have consented to the annexation of the territory, the presumption is that they did their duty, and that their finding is correct-</p>

<p>1. Land Patents — Mistake in Copy. — When two official copies of a patent are filed, and it is evident there is a mistake in one of them as to the date of the survey, the court will look to the survey to see what is the true date.</p> <p>2- Settlement — Outside the Lap. — Where a settlement is made without the lap, no adverse possession is gained as to land within the senior patent-</p> <p>3. Adverse Possession — Agreement of Parties. — When a part of a senior patent is enclosed under an agreement with the patentee to hold as his tenant, the occupant is not in adverse possession, though he may so hold for years.</p>

<p>Dentist — Construction of Statute. — Under section 2643a of the Kentucky Statutes, it is unlawful for a dentist to practice dentistry under the name of any company, association ’ or corporation, unless it has been in business under one name for fifteen years or more and the dentist has been in its employment under such name for fifteen years or more.</p>

<p>1. Master and Servant — Personal Injuries — Unsafe Horse. — If the-servant is injured by the vicious conduct of an unsafe and dangerous horse owned by the master, the master will be liable in damages if he knew, or in the exercise of ordinary care, could have-known the qualities of the horse, and the servant was not guilty of such contributory negligence as would defeat a recovery.</p> <p>2. Evidence oí Habits of Horse. — In such, a- case it is competent to show the bad -habits of -the horse both -before and after the -injury-complained of; and the reputation of the horse is -also admissible as evidence.</p>

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

<p>1. Schools — Graded Common Schools — Change of Site. — Where title to the lot described in the petition for the establishment of a graded common school district can not be acquired, and the building thereon is unsafe and unsuitable for the purpose, the board of trustees may take the necessary steps to provide for a new site, as near as practicable to the site described in the petition.</p> <p>2. Same — Boundary.—Where the boundary of a district is fixed so as to follow the dividing- lines between certain well known farms, such description is sufficient.</p> <p>3. Bonds — Election Returns — To Whom Made- — Where the question' ' of issuing bonds by a graded common school district is submitted-at an election held pursuant to section 4481, Kentucky Statutes, the election returns may, be properly made to and .canvassed .by the board of trustees. , ......</p>

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

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

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

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

<p>Appeal from Jefferson Circuit Court ■ ’(Second Chancery Division). .</p>

<p>1. Witnesses — Credibility—Question For Jury. — The credibility of the witnesses is for the jury, and the court will not set aside a verdict on the ground that it is against the evidence because the jury believed one- witness rather than another.</p> <p>2. Witness From Another State — Compelling Attendance. — The court is without power to compel the personal attendance of a witness ■ from another State, and may properly decline to enter an order to that effect.</p>

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

<p>1. Personal Injury — Sufficiency of Evidence. — In approaching a crossing plaintiff’s horse wag frightened by one of defendant’s trains and she was thrown from her buggy and injured. She claims the statutory signals were not given. Held that the finding of the jury in her favor upon this question is not flagrantly against the evidence.</p> <p>2. Physical Examination by Order of Court — Where plaintiff in an action for damages for personal injuries claims a disturbance of her menstrual period and the falling of her womb as the result of her injuries, and there is no evidence upon this point except' ■her own statements, and the defendant is thus powerless to introduce any evidence to the contrary because her condition is not apparent, the ends of justice will best be subserved by the court’s ordering, if properly applied for, a physical examination by a competent physician.</p> <p>3- Special Damages — Loss of Time — Pleading-—Special damages, such as loss of time, et al., must be specifically pleaded, and unless so pleaded no recovery can be had therefor.</p>

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

<p>1. Evidence — Previous Difficulty. — Upon a trial for murder, it is permissible for the accused to show a previous difficulty between himself and the deceased, in which the deceased was the aggressor.</p> <p>2. Evidence — Previous Statement to Stow Intent. — An engagement of tbe accused to visit a neighbor who lived near the deceased, and made previous to the homicide, is admissible for the purpose* of showing the object of the visit, and to negative the claim that' the accused went there for the purpose of finding the deceased.</p> <p>3. Evidence — Character of Deceased- — Former specific acts of crime on the part of the deceased are rightly rejected as having no connection with what took place at the time of the homicide-</p> <p>4- Instructions. — Where one instruction properly and fully gave the law of self-defense, it -was error to give another instruction, which limited that right.</p> <p>5. Challenges to Jurors — Review of Questions not Shown by Record. — The act of the circuit judge in giving the Commonwealth six peremptory challenges in a prosecution for felony, instead of limiting it to five as provided by section 204 of the Criminal Code of Practice, can not be reviewed where the ruling of the court is not shown by the record.</p> <p>6. Jury — Discharge of — Discretion of Trial Judge. — The length of time a jury should be held for deliberation with the view of finding a verdict, and the grounds that will be sufficient to justify the court in discharging them when they fail to find a verdict, rests' largely in the sound discretion of the trial judge-</p>

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

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

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

<p>Contracts — Rescission.—Plaintiff sold defendant certain timber on four tracts of land. Defendant failed to comply with bis contract. Plaintiff sued to enforce bis claim for purchase money. Defendant claimed that plaintiff had no. title to the timber on certain ■tracts, and was unable to comply with his contract and asked that the petition be dimissed- Subsequently by amended answer he agreed to waive plaintiff's inability to comply with the contract, ■and elected to take and pay for the timber on one tract- At the same time he asked the return of a certain cash consideration paid on the timber in case the court was of the opinion that the contract should be rescinded. Held that the court’s action in rescinding the contract of sale and returning to defendant his money with interest gave defendant what he asked for, and did substantial justice ’ between the parties.</p>

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

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

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

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

<p>1. s.;Railrpads^njury to Easafthger^Action • for'.Daihíáges-^vidence Admissible. — One suing for damages for injuries by being thrown from .or falling from a railroad train should have been permitted-to describe the nature and extent of his injuries, the length of i time he was prevented from laboring, with items of expense for medicine or medical treatment, nursing, etc., but should not be permitted to state in gross the sum which he estimated he had been damaged by reason of his injury, as this was a matter addressed to the sound discretion of the jury.</p> <p>2. Ejection of Passenger — Subsequent Climbing on Rear Platform— Rights Acquired Thereby. — Where one was ejected from a railroad train he was no longer a passenger, and when he climbed upon the steps of the rear platform and concealed himself under the l drop cover, his relation to the company was not that of a passen- , . ger, but a trespasser,, and the company- then-owed him no duty : except to prbféct him from injury "after his presence was discovi ered.</p>

<p>Policeman — Dismissal From Position — Action for Damages Against City. — Appellant complains that he was improperly dismissed from the position' of policeman of the city of Louisville by the Board of Public Safety and brought this suit to recover his sal- ! ary. Evidence considered and held that the lower court did not : err in dismissing appellant’s petition.</p>

<p>1. Municipal Corporations — License Fees. — The courts are reluctant • to interfere with the discretion vested' in municipalities in respect to the amount of the license fee it may demand for the sale of an article and will not interfere with the action of the municipal authorities unless it clearly appears that their action is arbitrary, unreasonable and oppressive-</p> <p>2. License Fees — -Police Power. — When the police power can be invoked as authority to control and regulate the sale of &n article, the right of control and regulation may be carried to such an extent as to prohibit the sale of it.</p> <p>3. License Fees — When May Not be Prohibitive. — When the police power can not be invoked to control or regulate the sale of an article, and the authority to levy a tax upon its sale grows alone out, of the right to impose license fees for revenue purposes, the tax. can .not be fixed at a prohibitive rate-</p> <p>4. Presumption in Favor of Ordinance. — The presumption is always-in favor óf the legality and reasonableness of an ordinance enacted in pursuance of legislative authority; and when it is assailed upon the ground that it is illegal, unreasonable or oppressive, the person complaining should point out specifically in what respect it.is unreasonable, unequal or oppressive as applied to the-facts of the case relied upon by him.</p> <p>5. “Soft Drinks” — Definition of. — “Soft drinks” include all non-intoxi- . ca:ing beverages, but are commonly understood to mean such bev^riges as 'contain a small per cent, of alcohol but not a sufficient quantity to produce intoxication when drunk, in the largest practicable quantity- In this State the words are generally used! in reference to beverages containing a' small per cent, of alcohol! thát are sold in places where there was formerly sold intoxicating; ' liquors, and may be said to have come into popular use with the.abolition of the saloon.</p>

<p>1. Accusing one of Crime — Affidavit Charging — Issual of Warrant— Discharge of Accused From Custody — Action for Malicious Prosecution — When one Should be Excused for Instituting Prosecution.— Where one had probable cause to and did believe from all the facts within his knowledge that, one had committed a -public offense and such knowledge was based upon sufficient evidence to lead a person of ordinary judgment and reasonable discretion to believe the.one charged had committed the crime, then he should be excused from making the affidavit and causing the warrant of arrest ■to be issued, and it was not necessary that the guilt of the person should be established to enable the -one procuring the arrest to succeed in an action against him for malicious prosecution.</p> <p>2. County Attorney Dead at Time of Trial. — While a defendant in an action for malicious prosecution could not testify as to being advised by the county attorney before procuring the warrant of arrest because that officer was dead at the time of the trial, it appeared that the warrant was in the handwriting of the county attorney, and the jury had the right to infer from this fact that the county attorney was advised of the facts before he wrote the affi davit.</p>

<p>1. Municipalities — Liability for Obstruction on Sidewalk. — In order to hold a city liable for an injury to a pedestrian caused by his falling over an obstruction on a sidewalk, it must be shown that by exercising ordinary care the city, its officers or agents, could have known of the existence of the obstruction and removed the danger.</p> <p>?. Notice — When to be Imputed to the City — Notice of an obstruction upon a sidewalk will not be imputed to the city where the obstruction is of recent origin, or is in anywise concealed-Notice — When Question of Law. — Whilst generally the jury should determine, as a question of fact, whether a city had such notice, yet, where the facts are undisputed, and but one reasonable inference can be drawn from them, it becomes a question for the court to decide.</p> <p>4. Peremptory Instruction. — Where the obstruction had remained upon the sidewalk for thirty hours, the' trial court properly overruled defendant’s motion for a peremptory instruction.</p>

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

<p>Separate Coach Law — Insults by White Passengers to Colored Passengers- — Appellant, a colored passenger, was in the coach for colored passengers. A white passenger came into the apartment, •threw some water on the floor and took a seat behind appellant. The conductor came into the coach and notified the white passenger to leave. At the time the white passenger was not boisterous, or disorderly, and readily acquiesced in the conductor’s suggestion-The conductor then went to the ladies’ car to take up tickets. He had previously told appellant if any white men bothered her to let him know. While he was gone the white passenger returned and insulted appellant- Held that as the conductor and no one else knew of the white passenger's presence in the colored apartment the company was not liable under the separate coach law. Nor was it liable under its general duty to protect passengers. The person complained of was not guilty of any disorderly or boisterous conduct in the presence of the company’s employes, nor did he indicate in any manner that his condition was such that unless restrained or ejected from the train he might offer insult or violence to other passengers.</p>

<p>1- Appeals — Criminal Law — Opinion—Conclusiveness.—The opinion on a former appeal is conclusive not only of all matters actually decided, but of all matters presented by the record and which should have been decided.</p> <p>2. Instructions — Self-Defense—Defense of Another. — An instruction on self-defense and the defense of another is not erroneous when otherwise proper, merely because it omits from the instruction directed by this court to be given, after the words “Then you ougnt to acquit the defendant upon the ground of self-defense,” the ' words “Or the defense of another and apparent necessity therefor.” The jury being authorized to acquit the accused at all events it is immaterial’ that one of the grounds upon which they could do so was omitted.</p>

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

<p>Municipal Corporations — -Police Officer — Illegal Discharge — Recovery of Salary. — Where a policeman is illegally discharged, and the roster of policemen is subsequently filled, he can not recover salary after the roster is full except from the time that he in a direct action for that purpose establishes his right to the office- In such a case it will not be necessary for him to sue every member of the force, but only those who are appointed after his illegal discharge.</p>