Volume 143 — Kentucky Reports

<p>A junior patentee entering first within the lap is in possession to the hounds of his patent, and his possession will not he broken by the subsequent entry of the senior patentee without the lap; hut if the entry of the senior patentee is within the lap, the possession of the junior patentee will then he confined to his close.</p>

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

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

<p>1. A servant who receives an injury by reason of the fact that the place where he was directed to work was not reasonably safe, if this was known to the master, and could hav« been remedied by ordinary care, may recover for his injury, although the particular injury that he received might not reasonably have been anticipated, where it should have been anticipated that the condition was not reasonably safe for the work assigned him.</p> <p>2. The refusal of the court to give an instruction on accidental injury was not prejudicial where the court instructed the jury that the plaintiff could not recover if the injure was the result of one of the ordinary hazards of the business.</p> <p>3. When the life tables are introduced the court should, when requested, tell the jury what the tables show, and for what purpose they are admitted, but it is unnecessary to introduce evidence as to what the tables show.</p> <p>4. A verdict of $7,000.00 is not excessive where the plaintiff has lost one eye, and the other is seriously affected by reason of which he has been compelled to give up his business at which he was earning $3.00 a day and the plaintiff was 23 years old.</p>

<p>1. Contested Elections — Integrity of Ballots.- — The ballots, when their integrity is established, are the best evidence as to the result of an election, and where the bag containing the ballots themselves show they have not been tampered with, will not be rejected. merely because of some chisel marks on the box, it not appearing that the marks were made after the election, and the box otherwise indicating-, that it had not been opened.</p> <p>2... Pleading — Omission From Petition Supplied by Answer. — A neces: sary averment being omitted from the petition but having been supplied by the answer, the defect is cured, and. wili' be disregarded on appeal.</p>

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

<p>Appeals — Second Trial — Former law Governs. — On the second trial of a case the evidence being the same as on -the first trial the former opinion is the law of the case, that question being no longer an open one in the second appeal.</p>

<p>1. Elections — Registration—Removal of County Seat. — Where a registration only shows 98 votes more than the registration the previous year, one of the issues of the election involving the removal of the county seat, there is little force in the contention that the increase in the registration furnished strong or sufficient evidence that voters illegally registered, or votes were illegally cast, the voting population numbering only about 1,000.</p> <p>2. Same — Designation of Names on Registration Books. — Where a city is irregularly laid out, many persons not living on any street, ■houses being generally .un-nrumibered, and many of them reached by aReysi -or inlet®, it te weill-nigM impossible to correctly desi-ignate on the registration book® the places of residence of the voters.</p> <p>3. Same- — In such a state of case an occasional failure by the registration officers to designate on the registration books opposite the name of the registered' voter the place of his residence as required by the statute, should not invalidate the registration, or give cause for rejecting such votes-</p> <p>4. Same — Use of Money in Elections — Improper Use of — Must be Positive Proof of to Set Election Aside. — While the improper use of money in elections is- to: be deplored, should be prevented. Courts can not, upon mere suspicion, declare an election void merely because money may (have been, appropriated for some sort of use therein. There must in such case be some tangible, positive proof that it was: corruptly used, to- justify a court in declaring an election void'.</p> <p>5. Same — Evidence.—Held that in these actions the evidence is not sufficient to set the election aside and declare it void. Appellants do not claim they were elected, and the alleged irregularities and frauds relied upon are not such as to warrant the court to declare the election void.</p>

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

<p>1. Murder — Question oí Sanity of Defendant — Evidence.—Upon an appeal from a judgment upon a verdict for murder, the weight of the evidence is to the effect that the defendant was sane, and besides the jury had the opportunity of seeing him, hearing him testify and watching his demeanor during the trial.</p> <p>2. Same — Instructions.—None of the instructions are -objected to, but it is urged that as the defense did not rely on self-defense it was error to instruct on that point. Held that perhaps it was, but it was a harmless error, so far as it affected any substantial right of the accused.</p>

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

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

<p>1. Judgments — Motion to Open for Fraud — Allegations.'—In an action to open a judgment on the ground that it was obtained by fra.ud, the plaintiff must allege the facts constituting the fraud. It is not sufficient to aver simply that the judgment was obtained by fraud.</p> <p>2. Same — Mistake of Plaintiff, — A judgment will not be opened because plaintiff himself made a mistake if he was not misled by the defendant.</p>

<p>Wilis — Bequest to Children of A. — Includes all Children of A. Living, and all Afterhorn Children of A. — At common law a bequest to a class was held to embrace all in the class at the time the bequest was to take effect, but where there was a postponement of the payment of the legacy until a period subsequent to the death of the testator every person answering to the description at the time fixed for the division was held entitled to participate as one of the class. In this State, however, the common law rule has not been followed, and it is held that a bequest to the children of A. would, in the absence of a contrary intention expressed in the will, include not only the children of A. living at the death of the testator, hut all such as might thereafter he horn to him.</p>

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

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

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

<p>1. Railroads as Common Carriers — Duties of. — In the discharge of its duties to the public as a common carrier, a railroad must use for the public convenience all the tracks set apart by it for the transportation of freight, and treat without favor or discrimination all persons- offering to it freight for carriage.</p> <p>2. Sam-e. — A common carrier may hold itself out to the public as being -a carrier of certain articles; and if it is only engaged in the carriage of the specified- articles, it is not under any obligation' to carry other things.</p> <p>3. Same. — No length of time or manner of treatment or habit of -dealing will discharge a common carrier when- requested from the obligation -to furnish to the .public the service it is.engaged in performing.</p> <p>4. “Yards and Terminals.” — A railroad company may for its convenience in the handling, storing and distribution of its cars and freight, have yard facilities' including switches, spurs and side tracks, and it will not he obliged as a common carrier to transport from one point to another in such yards freight for the convenience of shippers.</p> <p>6. Spur Tracks to (industrial Establishments. — A railroad company owes to establishments connected with its line of road by spur tracks the same duty that it does to establishments situated immediately upon its main- line of road. It is under the same obligation to furnish .facilities for the transportation to one as it is to the other. It must serve all alike.</p> <p>7. Yards or Switching Limits — Limitation Upon Right to Establish.' — A railroad can not arbitrarily and without any relation to the use to which it is- put, designate a part of its track or system as yards or switching limits, and assert that it owes.no duty as a carrier in this district except such .as it may choose to assume, It can not classify or divide its trackage into parts and say that on one part it is a carrier and on another it is not.</p> <p>8. -Rates 'Carrier May Charge.- — When a carrier publishes a rate it will charge for a certain service, it must furnish to all persons demanding this service the same rate.</p> <p>9. Same. — -If a carrier has no established rate that covers the service requested, it must fix a reasonable rate for such service.</p> <p>10. -Classification of Freight. — A carrier has the right to classify freight and makes a reasonable difference in its charges for different kinds .of freight.</p> <p>11. Measure of Damage for Failure of Carrier to Haul Freight at Its Established Rate. — A person -sustaining loss by the failure of a carrier to transport freight tendered to it at its stipulated rate may recover any amount lost to him -on account of contracts made on the faith of -this rate.</p>

<p>A city may, upon reasonable notice, revoke a bare license to a telephone company to erect poles in the streets of the city. (See original opinion East Tenn. Tel. Co. v. Board of Councilmen of City of Frankfort, 141 Ky. 588.)</p>

<p>1. Under section 2557b, subsection 2, Ky. St., the defendant may be punished if he has in his possession spirituous, vinous or malt liquors in local option territory for the purpose of selling them.</p> <p>2. An attested copy of the record on the collector’s book showing that the defendant has paid the tax as a retailer of spirituous, vinous and malt liquors required by the laws of the United States, may be put in evidence to show that the defendant has a license from the United States. (See original opinion Anderson v. Com., 142 Ky. 446.)</p>

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

<p>1. The deed of an infant cannot be avoided where he accepts the consideration after he is of age, and sells it.</p> <p>2. A deed will not be set aside on the ground that it was obtained by undue influence when it was acquiesced in by the grantor during his life, and was first complained of after his death, more than five years after it was made.</p>

<p>A merchant who sell» goods to a tenant upon a verbal agreement that the tenant’s crops shall stand good for the account, has no lien on the crops as against a purchaser from the tenant, though he had notice of the verbal agreement.</p>

<p>1. Husband and Wife — Common Law Disability — Renewal by Statute-Right to Sue Each Other. — Kentucky Statutes, Sec. 2127 to 2143 inclusive, removes from the wife all disabilities of coverture imposed by the common law in the matter of contracting with other persons including the husband, subject to the restrictions specified in the statute, and empowers her to sue and be sued as a single person, and she may sue the husband or be sued by him as she would sue or be sued by any other person.</p> <p>2. Sale of Land Jointly Owned — Not Susceptible of Partition. — If the wife can sue the husband or the husband the wife to recover a debt, manifestly no obstacle stands in the way of either suing the other to obtain through a court of equity the sale of real property of which they are the joint owners, it being made to appear that the property is not susceptible of division and that the sale cannot be effected by agreement of the parties.</p>

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

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

<p>1. Foreign Judgment — Pleading.—In pleading a judgment of another State rendered by an inferior court against a non-resident defendant, the petition is sufficient when it alleges that the court was a court of competent jurisdiction, and had jurisdiction both of the subject matter and the parties.</p> <p>2. Validity of Judgment. — The validity of a judgment of another State must be determined by the law of that State.</p> <p>3. Tennessee — Law of. — Under the proof in this case, an attorney has the power to submit to arbitration matters pending litigation, and even if he exceed his authority, a judgment rendered in pursuance of such arbitration, will be valid until set aside in an action by Bill of Review.</p>

<p>1. Special Judges. — Chapter 3 of the Act of 1910 creating Special Judges and entitled “An Act to provide for holding Circuit Court and the trial of cases therein when from any cause the Judge shall fail to attend, or if in attendance, can not properly preside,” applies to Circuit Courts having a continuous session and two judges.</p> <p>2. Same — Reappointment of — Where a Special Judge has tried a case under the appointment of the Governor under the Act of 1910, he is functus officio and can not subsequently retry the case under the original appointment.</p> <p>3. Same. — The Act of 1910 requires a separate notification and appointment of a special Judge by the Governor for each extra service by the Special Judge in holding a court or trying a case.</p> <p>4. Same — Powers in Vacation. — A Special Judge, appointed under the Act of 1910, may make such orders or perform such acts, in vacation, for the completion of his records or the enforcement of his judgments that a regular judge may make in vacation; and this power will continue until the next term, or until he shall have been superseded by the return of the regular judge (if he has failed to serve by reason of his absence), or by the designation of a different Special Judge by the Governor.</p> <p>5. Same — Powers after Expiration of Term. — When a Special Judge has given time beyond the term to file a bill of exceptions he may, at a special term called by him, approve and file the bill; or, he may do this at the next regular term when he has, at the previous term, so given time.</p>

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

<p>Action for Death of Person — Wrongful Sale of Liquors — Negligence— Knowledge of Seller — Provision of Statute — Notice.—In an action for damages for the death of one caused by the use of intoxicating liquors alleged to have been illegally sold, while the sale was contrary to law, it may have been intended for a purpose beneficial to deceased, and in the absence of an allegation that it was made for the purpose of injuring him, or with knowledge that he intended to drink enough to produce injury or death, or that the seller had reasonable grounds to believe that .deceased could not be safely trusted with whisky, it cannot be said that the act of making the sale was wrongful in the sense in which the word is used in the statute, and no cause of action was stated under Section 6, nor was the notice provided for in Section 1307' given, and the giving of that notice is a condition precedent to the successful prosecution of such an action.</p>

<p>Inheritance — Adopted Child — Right to Inherit Rests Upon Contract Which Cannot be Extended to Kindred. — An agreement entered into in adopting a child is an agreement personal to those entering into it and it cannot be extended so that the child may inherit from others. All inheritance laws are based upon blood relationship, whereas an adopted child’s right to inherit rests upon a contract, and therefore only to those persons who are bound by it.</p>

<p>1. Land — Action to Recover — Pleading.—In an action for the recovery of land where the answer merely put in issue the plaintiff’s claim of title, a statement of facts in which a judgment in another action was sought to be avoided had no place in the reply.</p> <p>2. Same — Refusal to Permit Amended Petition to be Filed. — The refusal to permit an amended petition to be filed cannot be considered on appeal where the amendment is not made a part of the record.</p>

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

<p>Appeal — Order of Arrest — Vocation of. — Where the defendant in an action is arrested pursuant to Section 153, Civil Code, and upon application made pursuant to Section 157, the order of arrest is vacated and the defendant discharged from custody, no appeal lies.</p>

<p>1. Ordinances — Construction of Sewers^ — Bonds—Provision fis to Payment of Interest — Subsequent Ordinances. — While the initial ordinance providing for an election to vote an issue of bonds to construct a system of sewers did not provide for raising annually by taxation an amount necessary to pay the interest on the bonds and provide a sinking fund to retire them at maturity, the adoption of such an ordinance subsequent to the election and before the issue of the bonds was a substantial compliance with the law.</p> <p>2. Same — Vote Necessary Upon Question of Incurring Indebtedness.— This Court has repeatedly held that the meaning of Section 157 of the Constitution is that the assent of two-thirds of the electors whose votes are cast on the question of incurring an indebtedness is all that is necessary.</p> <p>3. Notice — Publication of Ordinance. — The publication of the ordinance having been made before the bonds were issued, the statute was substantially complied with, and it is not material that the last ordinance had not been published before the action was commenced to determine the validity of the election and the bond issue under it.</p>

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

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

<p>Highways — Obstruction oí — Liability of Telephone Company for Erecting Poles Therein. — Where a telephone company obtains authority to erect its poles along a public highway, it will not be liable in damages for injuries sustained by travelers coming in contact with the poles, unless they are placed in the traveled part of the road or so near thereto as to interfere with or obstruct public travel.</p>

<p>1. Evidence. — Under subsection 2 of Section 606 of the Civil Code of Practice, which precludes one from testifying for himself concerning any verbal statement of, or transaction with, or any act done by one who is dead when the testimony is offered to be given, a plaintiff will not be permitted, to tell of conversation® with one who has since died, concerning the location of the boundary line .between his o'wn farm, and- the farm of the defendant.</p> <p>2. Same — Under subsection 2 of Section 606 of the Civil Code of Practice, a defendant will not be permitted to testify that -her deceased husband, from whom she acquired title, claimed to the extent of the boundary .shown by his deed, which embraced the land, in dispute.</p> <p>3. Same. — Subsection 2 of Section 606 of the Civil Code of Practice does not, however, prohibit the sons of the defendant from testifying in behalf of their mother, the owner of the land, that their deceased father haU claimed to the extent of the boundary shown by his. deed, which embraced] the land in dispute.</p> <p>4. Boundaries — Lost Corner or Line. — A lost corner or line of a boundary may be found by extending the line from the known or proven corners of the courses called for, until they come together; and the point of intersection is the lost corner.</p> <p>5. Same. — In determining boundaries, natural and permanent objects control courses and distances; courses and distances must yield to well-known objects called for.</p> <p>6. Declarations as to Boundary. — Declarations by the owners of land accompanying the act of possession, whether in disparagement of the declarant’s' title or otherwise qualifying his possession, if made in good faith, are admissible as part of the res gestae.</p> <p>7. Division Line by Parol.- — A division line between adjacent land owners need not be in writing to be valid or enforcible.</p>

<p>Where a city oí the’ first, second, third or fourth class has become a separate unit, and the remainder of the county another unit, then voters in one of the units have no voice in determining whether the sale of spirituous liquors shall be allowed in the other unit.</p>

<p>A legatee, accepting liis legacy under a will which provides that the legacy shall be in full of all interest in the estate, accepts the will and is hound by his election, although the will may be afterwards contested and held invalid.</p>

<p>1. An appeal lies from a judgment under an indictment for a common nuisance requiring the defendant to take down a- building although the amount of the fine imposed is less than $50.</p> <p>2. A city ordinance providing' a penalty for an obstruction of a street or alley is not a bar to a common law prosecution by the 'Commonwealth for nuisance.</p> <p>3. A building over an alley which does not substantially interfere with its use by the public is not a nuisance although it may be a ■purpresture.</p> <p>4. A permit from the city council is void where it is granted subject to the approval of two members of the council who were not present, although they afterwards approved it privately, and though minutes of -the meeting were approved by the council at its next meeting.</p> <p>5. A member of the .council who is interested in a permit can noi vote thereon; and if there is no quorum without him a quorum is not present. j</p>

<p>Dog Tax — Failure to Pay — A tax .payer who fails to pay Ms dog’ tax after he has listed the dog with, the assessor is not liable to a fine under subsection 7 of section 68a Kentucky Statutes.</p>

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

<p>Appeals from Monroe Circuit Court. (Three Cases.)</p>

<p>Railroads — Fires—Negligence-—Sufficiency of Evidence- — In an action against a railroad company for damages for the negligent burning of a barn, evidence examined and held sufficient to support the verdict. |</p>

<p>1. Life Tenants. — Suffering Waste. — A life tenant may not suffer the eacate to decay or go to waste for want of necessary repairs, any more than he may injure its value hy acts of voluntary waste.</p> <p>2. Same. — -Extent of Waste. — Cost of Repairs. — The duty of the life tenant is tto- leave the property In reasonable repair at the end of his term, and ttuis' ü'uty keeps pace with the life of the tenancy, and when the court comes to enforce this duty the inquiry is not when th© waste occurred or how long It has been permitted to run, but what is the extent thereof, and what sum will be ■required to make 'the necessary repairs.</p>

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

<p>Raili'cad. — Freight Charges. — Connecting Carriers. — Rates Fixeu ■by Daw. — In an action by A. B. Morton against the Chesapeake & Ohio Ry. Co. to recover 'alleged overcharge on shipments of freight from points in Kentucky to stations on the line of the Grand Rapids & Indiana Ry. Co. Held it is immaterial to 'plaintiff how the items of expense are charged or divided as between the several connecting carriers, iso long as they are kept within the schedule tariff rates. These rates are fixed by law and both parties are bound by them if, with the charge of the Bridge Co. added, the expense of the shipment do not exceed the ‘tariff rates.</p>

<p>Railroad Ties — Action for — Number substantially Agreed on- — In this action to recover for railroad ties which were piled in ricks at a railroad station and which had been repeatedly counted and the number substantially agreed on. Held that there is nothing in the record to show that the lower court erred in the judgment rendered and it is 'therefore affirmed.</p>

<p>Detinue. — Action to Recover Staves'. — Verdict and Judgment. — In an action in Detinue in ■which, the plaintiff had an order of delivery to recover 15,000 staves the jury returned this verdict: “We, the jury, agree and find for the defendants George Burns, Isaac Daniels and Levy Morris all the amount of these staves. George Allen, Foreman.’’ Upon which the court rendered a judgment ' that the appellees were the owners of the staves in controversy and that their value when taken was $250-00. Held that the court erred in assessing the value of the staves in this action. .</p>

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

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

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

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

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

<p>Testimony — Inconsistent.—The finding of the jury against a railroad company for the value of stools killed by one of its trains will not be disturbed on. a-ppeal, where the testimony of the railroad men as to how the stock was killed was not consistent ana was contradicted by other circumstances.</p>

<p>1. Titles — Action to Quiet. — An action to quiet title cannot be maintained where it appears that the plaintiff had conveyed to the defendant by warranty deed the land in controversy, the deed vesting in the defendant all the defendant’s title to the land, unless reformed for mistake.</p> <p>2. A verbal promise by tbe defendant to neconvey the land is not enforcible.</p>

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

<p>1. Graded Common Schools — Bond Issue — Vote as to Whether Bonds Should he Issued — Notice—'Printed Posters — Whether the posters giving notice of the holding of an election to submit a bond proposition in aid of the building of a graded common school building were printed' from the original manuscript prepared by the 'trustees, or whether they authorized the printing of their names and adopted them as their signature, in either case' there wag a substantial compliance with the statute which requires that the election notices be signed by the trustees.</p> <p>2. Same — Appointment of .Tuidge and Clerk by Other Trustees— Acted Under Color of Appointment — Dees Not Render election Invalid — While the appointment of the judge and clerk of the election was illegal, they possessed the necessary qualification, were ably sworn, and properly performed their duties, and in view of these facts there is no reason for declaring the election invalid. They acted under color of appointment and in good faith without knowledge of the illegality of their appointment, and their acts and services were recognized and accepted in good faith by the other officers and voters as if their appointment had been legally made.</p>

<p>,1 Petition; Sufficiency" of. — A petition, ‘which alleges that a 'tele phone company was engaged in the business of delivering rues'•sages for compensation, and that plaintiff was using a telephone oí said company and had been so using it for more than ten years, and that the telephone company had injured plaintiff's business by fraudulently giving his customedsi the telephone number of a rival in business when they called for plaintiff’s telephone number, states a cause of action for general damages.</p> <p>2 Same; Making More Definite and' Certain. — Where a petition sufficiently states a cause of action for general damages for fraudulently giving a rival’s telephone number to customer® who called for the plaintiff’s telephone number!, it was error to require the plaintiff to make the petition more definite and specific so that it would show the dates upon which plaintiff’s telephone was closed, or the dates upon which the 'telephone com pany made the fraudulent telephone connections, or the names of the ¡parties who called for plaintiff’® telephone, hut were connected with the rival’s telephone, or the names of plaintiff’s customers whose business had been transferred to the rival in business, or the precise dates of said transfers.</p> <p>3. Pleadings — Damages.—Modern systems of procedure require pleadings to he intelligible, rather than nice; and when the facts which constitute the cause of action import damage, a formal allegation of the precise nature of the injury suffered is net necessary; such facts beeing stated, the natural or proximate damages are recoverable without further allegation.</p> <p>4. Nominal Damages. — Nominal damages are always recoverable in breaches of contract, and generally in tort, even though no •actual damages be proved.</p> <p>5. General Damages. — For an injury to a right of substantial value involving the deprivation of the use of property, genera! damages are always recoverable.</p>

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

<p>Infancy — Piteo of to Devoid Deed — Finding of 'Chancellor — Sufficiency of Evidence. — In ian action to avoid a deed on fh® ground of infancy, evidence examined and' held sufficient 'to sustain the finding of the chancellor that plaintiff was of age when the deed was made.</p>

<p>1. .Parties to Action — When the papers of a suit Rave 'been destroyed in tne burning of tne courthouse, a person ¡who .signs an agreement that a substitute petition shall take the .place of the original petition, and is referred to in the agreement as a party to the action, will be presumed to have been a party to the action from tne beginning.</p> <p>2. Jfixecutors — Preferred 'Creditors — Where the executor’s accounts have been settled in an action brought by him for that purpose, ■ a preferred creditor .can not thereafter maintain an action ■against him to recover (money paid by him on claims not preferred.</p>

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

<p>instructions. — A party can not complain that the court failed to instruct the jury in the manner they should have heen, when no instruction was offered presenting the view of the case contended for. Nor will a party he heard' to complain of an instruction that is substantially the same as one offered by himself.</p>

<p>.Lands — Option for' ‘Sale of — Subsequent Sale of Mineral Rights— Evidence. — In an action to compel the conveyance of land, the evidence examined and held that the writing sued on was not¡ a bond hut an option for the sale of the land and that as no steps were taken by the .plaintiffs to avail themselves of their rights, under it until long after it had expired, H. and others who subsequently purchased the mineral rights acquired a good title to them.</p>

<p>Raiinads — Work and Repair Shops — Exemption from Taxation — Re iMovall of Stoops — Abandonment of Old Stoops — 'Following its refusal to pay taxes for local purposes. on> its new work oud ma chine shops on the ground that by an ordinance of appellee city they were exempt from taxation toy the city for five years, this litigation .between, appellant and appellee arose. Appellant had long maintained its shops in Louisville, tout abandoned them for want of sufficient ground, and disposing of its machinery, or the greater part of it, built new shops' in another part of -the city. Held, That the question is no-t analogous, to the case known as the Menigel case for in that case the old company had gone out, of business before the new corporation was formed. The new business in that instance was in reality as much a new (business j .... i - as if the old had never existed.</p> <p>•in tnis ioase the appellee city has not acquired any new tousiness in the Sense of the exempting ordinance; it has merely the exchange or ,substitution of a new and enlarged shop. The stat"\ute evidently contemplated the bringing in to the city a business that had met, theretofore,'existed, and that was not accomplished here.</p> <p>The record .showing that appellant definitely contemplated building its new shops and that plans were prepared year® before the exempting ordinance was ’enacted, and that the 'business is tout t'he substitution of an enlarged for an old shop, the claim of exemption can not Ibe sustained</p>

<p>Question of Fact — Upholding Finding, of 'Chancellor — The questijn 'being purely one of fact, and the weight of the evidence supporting it, the finding of the chancellor is affirmed.</p>

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

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

<p>1. False Swearing — Evidence—Sufficiency Indicating . Action. — In an action, charging one with false swearing the indictment suffi ciently indicating the action in which the false testimony was given, the defendant being sworn but onoa' oould not have been misled as to the testimony referred to.</p> <p>2. Reputation of Witness — Commonwealth May Carry Back Con-nectedly. — Where the Commonwealth showed the character of a witness to be had at the time, it may show- that it is not only ¡bad where he lives, but bad' -in the county from which he came. I</p> <p>8. -Commonwealth’® -Attorney — Examination. By. — Objection to Them Sustained. — Where the abjection to two questions asked by the Commonwealth’®' Attorney were promptly sustained, it can'not be said- that appellant was prejudiced: by them.</p>

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

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

<p>Costs — Motion to Correct Taxation of Cost — Filing Copies of Briefs— Taxation of Cost .for One Copy — The copies of a brief intended for distribution among the judges of the Court of Appeals are not such papers as the statute refers to, and' the clerk in taxing the cost should only tax cost for filing the brief, and not for each copy, and where a brief is filed for both the original and *cross> appeal, the service for filing it should he taxed hut once.</p> <p>*On a cross appeal a tax of $2.00 is not to be .paid and an attorney’s fee is not to be taxed - i</p>

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

<p>1. Cities — Ordinances—Assessment of Property — Repeal by Implication Not Favored. — The act of 1902 does not repeal the ordinance of the City of Newport, under the act of 1893, requiring' notice to a taxpayer where the assessment of his property is raised above ■that of the previous year. Repeal by implication is not favored.</p> <p>2. Same. — An assessment of property above that of the previous year without notice ito the taxpayer as provided by the ordinance is invalid and will not be enforced as a valid ‘assessment so far as the assessment of the previous year was not raised'.</p> <p>3. .Same — Notice—Board of Equalization. — In such a case the assessor will he required to reassess the property on notice to the taxpayer, .and the Board of Equalization will he required to meet and pass on it; though the time for this fixed in the 'statute has passed. Statutes fixing the time when public officers shall act being in such matters only directory.</p>

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

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

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

<p>1. Revenue and taxation — Assessment of distiller’s storage accounts-—Distillers that sell whiskey, and issue warehouse receipts therefor, charge for storing the whiskey five cents per barrel per month as long as the whiskey remains in the bonded warehouse. This claim -for storage is a lien upon the whiskey and is property of value, subject to assessment and taxation.</p> <p>2. Revenue agents — Sufficiency of description of omitted property.— The statement filed by the revenue agent must describe the property so thait it may be identified; and charge that the taxpayer ■owns the property sought to be assessed and that he has failed to list’ it for taxation. •</p> <p>S. Articles or- things that must be assessed. — Only such property of ■ value can be taxed as-is-embraced, in the schedule of assessable . property, etc.</p> <p>,4. “Property” — Meaning of. — The term “property” embraces every species of valuable right and interest, including real and personal property, easements, franchises and hereditaments; and, as used in the revenue statute, it includes everything of value that a person owns that is or ma.y he the subject of sale or exchange, or that when offered for sale will bring some price.</p> <p>5. Accounts — Property.-—Any existing enforcible, collectible demand that one person has against another, or against property upon which it is a lien and out of which it can he collected, is property-</p> <p>6. Same. — It is not necessary to constitute an existing account or evidence of debt property that the owner of it should' have a right to enforce its collection from some particular person or that some particular person should have assumed an obligation to pay it. JS!or is the fact that the demand is not d’uie of controlling importance. The fundamental question in ascertaining and determining whether it is property of value, is — has the owner of it the legal right ¡to enforce its collection and is it collectible?</p> <p>7. Same. — The fact that the value of the account may he destroyed before it is collected does not affect the right to assess it at its value while it is an existing demand and before the contingency arises that deprives it of its value.</p> <p>8. “Account” defined. — An account is an existing -enforcible or collectible claim or demand, not evidenced by writing signed by the person to be charged, and that arises out of or originates in a contract express- or implied; but, it is not indispensable -to the existence of an account that it should he owing by a particular person if in fact it is a sum of money arising hut of a business transaction that a designated person has a legal -right to collect and that is a claim against or lien upon property of value out of which it can he collected.</p> <p>9. Articles of property that are assessable. — The statute in a list of descriptive items mentions the articles of property that -are 'subject to taxation, and then provide® that all other property not ¡mentioned- in these items shall hi stated in a separate column; and so, when any item of properw is not embraced by one of the descriptive items in the schedulfe, it is assessable -under the item “value of all other property noi mentioned above.”</p> <p>10. Storage accounts not income or rent. — Storage accounts that are assessable at the assessing period are accrued and not accruing accounts; and it is the earned and accrued charge that is the subject of assessment and no-t the storage that may be earned in any succeeding year.</p> <p>11. Contemporaneous construction of statute. — The rule of contemporaneous construction can only be invoked when it is made to appear that there has been in fact a construction given to a statute by public officials charged with its construction and- execution, and this construction has been acted upon for a series of years in administering the law so construed.</p> <p>12. Situs of personal property for taxation. — Storage accounts due-by a foreign distillery corporation that owns and operates distill■eries in this State at which these accounts originated, ana that manages and controls the distilleries by its agents in this State, and that retains in this State the whiskey upon which there is a lien for the storage, have a situs for taxation at its place of business in this State.</p>

<p>Timber — Interruption of Removal Of — Diligence—Measure of Damage. — Where T, by ithe erection of a fence interrupted the removal ■of appellant’s timber upon the idea that its contract for removing it had expired, the measure of damages was what would have been received for it in the market, provided reasonable care was taken in delivering it, and what was received for it after it was released by T. If this diligence was used and the price fell, appellant is entitled to 'this loss in damages, but if it could ■have been disposed of without loss, appellant is entitled to nothing, and an instruction should have expressed this measure of damages.</p>

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

<p>1. Street Railways — Duty oí Those in Charge of Car — Whajfc Incumbent Upon Passenger in Attempting to Leave Car. — Upon ■being notified that a passenger desires to -leave it, .those in charge of a car should stop it and keep it stationary a -sufficient length of time for the passenger to leave it in safety, and if they fail to do so, the act is- negligent -and the company is answerable in damages. On the other hand, it is incumbent upon the passenger, in attempting to leave the car, to exercise ordinary care for his safety, and if he fail to do -so, and injury results, there can he no recovery.</p> <p>2. Plea of Contributory Negligence — Instructions—Under its plea of contributory negligence the street rail-way -company was entitled to have the jury instructed that if the plaintiff was injured while -attempting to get off the car -before it had stopped, the company was not liable.</p>

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

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

<p>Mines andi Mining — Coal Mines — Held—That as the Tennessee Statutes of 1908, under which appellee sued, relieved the mine owner of liability for the negligence of the mine foreman, and appellee •failed to introduce in evidence an amendment to that Statute passed in 1907, which does make the mine owner liable for the foreman’s negligence, the court should have peremptorily instructed the jury to find for appellant. The record cannot Ib'e amended in this court -by affidavits showing that proof of the amended aot was made on the trial, hut that the court, reporter failed to make it so appear in the hill of evidence. — Held—As the Tennessee Statutes reauires that in operating a coal mine it is the duty of ifcbie owner thereof for the protection of the miners employed therein to supply the .mine with not less than 85 cubic feet of pure air per minute each man, and not less than 500 cubic feet of pure air to each animal employed therein the jury should, on another trial, be so instructed instead of using the 'general expression that it is the owner’s duty to at all times keep all working places in the mine supplied .with pure air.</p>

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

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

<p>Malicious Prosecution — Action—Advice of Counsel. — Peremptory Instruction. — Where in an action for malicious prosecution the evidence shows that the defendant fully and fairly disclosed to counsel all the facts hearing on the guilt or innocence of the accused which he knew or could have ascertained by reasonable diligence, and he ithien upon advice of counsel and in good ■faith -instituted the prosecution, -such -advice constitutes a complete defense, and the defendant is entitled, to a peremptory instruction.</p>

<p>1. Deed — Infancy of Grantor — Misrepresentation.—An infant representing himself to be of age, and thus inducing a third person to buy his land and accept a deed for it, is estopped to rely upon his infancy when the grantee in the deed had no notice of his being an infant and was in fact misled by his assertions</p> <p>2. Judgment — Question of Fact — Belief of Chancellor. — The judgment of the chancellor on a question of fact will not be disturbed because he believed the witnesses for appellee rather than the witnesses for appellant. ,</p>

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

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

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

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

<p>L Decedent’s Estates — Division of Land — Devisees Cannot Refuse to Comply "Wiitlx Provisions of Will. — The devisees under a will cannot refuse to comply with its provisions with reference to the division of -a farm simply because by doing so the d evises are rendered less valuable to them..</p> <p>2. Infant’s Real Estate — Sale of. — There is no provision or authority in law for making a sale of infant’s real estate as a part of or in conjunction with other land in which the defendant has no interest.</p>

<p>.Laws of Foreign State — Must tie Proven — Reversal for Substantial Errors. — We do not take judicial knowledge of the law of another State. What -is the law of another State is a fact to be shown byi the evidence and we must decide the case upon ithe evidence in the record. A judgment should not be reversed except for substantial errors.</p>

<p>Appeal — Reversal—Second Trial — Verdict for Plaintiff — New Trial. —When on appeal to this court a judgment is reversed because the verdict is palpably against the evidence, this is the law of the ease; and if on another trial there is again a verdict for th'e plaintiff on the same evidence’, a new trial will he granted.</p>

<p>Municnpaiities — indebtedness Incurred — 'Constitutional Limitations —©ale of Bond's. — It is not apparent from the allegations of the petition that the existing indebtedness of the' city of Glasgow or that the new indebtedness that will be incurred by the sale of the bonds to pay such existing indebtedness exceeded or will exceed the limitations imposed by sections 157 — 159 of the-Constitution; we must conclude that the appell'ee city has not in the matter of incurring either indebtedness, violated the Constitution.</p>

<p>1. Evidence — ¡Stenographer's Notes. — The ordinary method of proving what a witness swore to on a former occasion is to introduce some person who heard the evidence when given by the ¡witness •and who (remembers it, or remembers the substance of i't. The statute relating to the appointment of official stenographers has not materially changed the ¡practice in this respect.</p> <p>2. Same. — A stenographer’s transcript of evidence mlay' he proven and read by him as evidence of what a -deceased' witness testified to on a former occasion, provided' he ¡testified that it was taken down accurately by him at ¡the trial and is correctly transcribed'; but other evidence is also receivable to substantiate or to rebut ■the fact that .the said witness d-id. so testify.</p> <p>3. Same. — The alight of a stenographer to use the transcript of his notes of evidence given by a witness up'on a former occasion does not depend upon the record of -the county court as to the appointment of a ¡stenographer by that court for -that occasion, or upon the fact that the county court record should show that there had been an examining trial at which the testimony was given.</p> <p>4. Witnesses — Order of Testimony. — ¡Sections 221, 222 and 223, of the Criminal 'Code of Practice, which require the Commonwealth to first introduce its evidence in support of the indictment, and that the defendant shall subsequently offer ¡his evidence in sup- . ¡port of his defense, do no.t provide a hard and fast rule applicable to all cases. The judge has a discretion to control the order of the testimony, and ¡that discretion will not he disturbed unless it appears that the accused has been ¡prejudiced by the change in the order of admitting .the testimony. /</p> <p>5. Same — Impeachment of. — A witness who testified' for .the Commonwealth concerning a statement made to him by the accused ' ¡at the ¡time of Ms arrest, at which time the witness claims he had) no ¡piistol, may be impeached by showing that he had a pistol a very short time 'before, when he heard of the arrest. }</p> <p>6. Instructions. — ¡Where the accused had on several occasions spoken of the deceased in language that showed a hostile feeling towards the deceased, and had at the time of the killing invited the deceased out to the sidewalk, where he immediately shot and killed him, it was not improper for the court to instruct the jury that the defendant could not justify ithe killing on the grounds of self defense and apparent necessity if he sought out the deceased for ■the purpose of engaging in a difficulty with him and killing him.</p>

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

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

<p>Motion to Dismiss Action — Refusal—Bringing New Action — Effect of Delay — The plaintiff having entered a motion to dismiss an action without prejudice with a view to bringing a new suit, and the court having refused to allow the action to he dismissed •until reversed on appeal, the time elapsing after Ifche plaintiff moved to dismiss the action, and until it was dismissed, is not to- he counted in the time allowed hy the statute for bringing an action. The new suit having ibeen brought within the statutory time •omitting the period referred to, is in time.</p>

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

<p>1. Municipalities — Form of Government — Conflict with. Constitution —An act providing a commission form of government for cities of tho second c-iass does not violate section 51 of the Constitution because the old law under which the cities are now governed is not re-enacted and published at length with the new act-</p> <p>2. 'Provisions of Act — 'Germain .Subject — All the provisions of the act being germain to the government of the city the act does not relate to more than one subject and this subject is expressed in the title.</p> <p>3. Special Legislation — The act is not special legislation but applies to all cities of the second class although one city may put it into operation and another may not.</p> <p>4. Constitutional Provision. — Regulating Local Affairs — The act is not void under section 60 of the Constitution because enacted to take effect upon the approval of the voters of the oity, the Legislature 'being authorized to pass acts of this character as to the regulation of itheir local affairs by counties, cities', towns and other municipalities.</p> <p>5. Legislative and Executive Functions — Legislative and executive functions may be vested by statute in municipal officers.</p> <p>6. Election of City Officials — The Constitution does not require cities to be divided into wards and the Legislature may provide for officers to he selected from the city at large.</p>

<p>1. Surety on Official Bond — Liability of — A surety, who executes a statutory bond for a public officer to enable Mm to discharge the-duties of bis office during tbe term for which be is appointed or elected, is not liable for bis- acts after the expiration of bis term.</p> <p>2. Official Bond — Approval or Acceptance of — It is not essential to the validity of a bond executed- by a public official that it should be accepted or approved by tbe official designated by statute to do so'.</p> <p>3. 'Fraud — Statute of — A ip-arol agreement entered into between a surety and an officer at tbe time of tbe execution by tbe surety of a bond tbe officer is required to give, that tbe surety will remain bound for the acts of the 'Officer if he is appointed for another term, is within tbe .statute of frauds and unenforcible.</p>

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

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

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

<p>Appeals — Affirming Upon Evidence — This appeal presenting a question of fact, the record showing that a fair trial was had in the court below upon the issues raised', the verdict of the jury will not he disturbed.</p>

<p>Municipalities — 'Dangerous Side-walks — (Liability oi 'City for Injury to One Falling Tbereon When Wet — Held, under the testimony in this case, we .cannot say that the walk in question was obviously dangerous. All .such .sidewalks' are more or less dangerous when wet, but that is not a condition which would render a city liable in damages to -persons who fall thereon' and injure themselves.</p>

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

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

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

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

<p>1. ■ Action — Finding of Chancellor' — Plaintiff was employed ¡by defendant 'to purchase ■ grass seed. He 'brought this action to recover. commissions, money expended at the instance and request of defendant and for the reasonable value of a certain quantity of grass seed sold by him and delivered to and accepted by defendant. The oase was transferred 'to equity and t-he chancellor found for plaintiff. Held, upon an examination of the evidence ■that it fully supports the finding of the chancellor.</p> <p>2. Pleading — Failure of Proof — W|here a party employed to purchase .grass seed for another does purchase a large quantity of seed, ' and pays for it with the latter’s money, ¡but at the same time purchases seed in small quantities and from numerous parties, and •pays for same himself, and then consigns the seed to the third party as so much seed sold and delivered, and the other party ' is acquainted with the facts and accepts 'the seed and fails to pay for them, and the former then brings suit on a quantum valabat, for so much seed sold.and delivered, the party 'accepting the seed will not be relieved of liability on the ground of failure of proof, because, technically considered, the facts tend to ¡show a case of money expended) at his instance and request rather than a sale and delivery.</p>

<p>Though the 'bill of exceptions is ’delayed, by appellee, the appeal will be dismissed with damages, if the record is not filed in ■time, unless the time is extended.</p>

<p>1. Guaranty — Notice of Acceptance. — On an absolute guaranty, notice of acceptance is unnecessary.</p> <p>2. Sureties — Signing Blank Bond 'Before Signed 'by Principal- — Liability — Tbe sureties signing a blank bond before it was signed by tbe 'principal, and delivering it to bim. to sign and' return to the obligee, are bound when be so signed and- delivered it, although- tbe vice president of tbe obligee then .prat bis name in a blank left for that purpos.e, and' notice of -acceptance was not given the sureties.</p>

<p>Tile opinion on tlie former appeal is the law of the case, and it .Raving 'been then determined what relief the plaintiff was entitled to- no other relief can now be granted.</p>

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

<p>Fraudulent Conveyance — Slight evidence of undu e influence and mental incapacity will be sufiicient to authorize the chancellor to set aside an unnatural and unreasonable conveyance made by a fatb er in which he gave without adequate consideration to one of his two chilaren his entire estate.</p>

<p>i. Judicial Saje to Satisfy Judgment for Uncontested Fart of Lien Debt — 'Where a part of a lien debt is contested, and a .part not, it is not error to render judgment for the unoontested part. But the land in lien should not he solid until the pant in controversy has ibeen adjudicated, to the end that only one sale may be necessary. If, however, the whole of the land i® sold -to pay the judgment for the uncontested part, and a judgment is afterward® rendered in favor of the lien holder for the contested ■part, he cannot again, subject the land .although it may have been bought by .the judgment debtor.</p> <p>2. 'Costs on ¡Counterclaim' — Where part of a debt is contested by a counterclaim, and the plaintiff In the action succeeds in recovering any part of the disputed item, he should be allowed his costs growing out of the issues made iby the .counterclaim.</p>

<p>Cities — Constructing Catch- Basins — Coverings Therefor — {Discretion of City — The material of which coverings for catch ibasins- shall he made, such as street crossings, side-walks, etc., is a matter that is left m the sound discretion of the city authorities, and when they adopt a plan for the construction .of catch ¡basins and the coverings thereof, which is not inherently dangerous, and maintain them in a reasonably safe condition they have discharged their duty to the traveling ,public.</p>

<p>■Fraudulent Conveyance Alleged — Failure of Proof — GSharge not Supported -by the Proof — In this action to set aside an alleged fraudulent conveyance of land held that fraud is never presumed hut like any other fact must (be proven. The facts shown fail to support the charge that a fraud was perpetrated upon appellants and the lower court correctly so held.</p>

<p>1. Life Insurance — 'Contract—Modification by Verbal Statements— Alleged Mistake — "Failure to Read 'Contract — It is well set! led that written instruments cannot be altered .or mod< fled 'by any verbal statements or representations of either party in the absence of fraud) or mistake in their execution, and the failure to Tead them does not constitute a mistake within the meaning of the wordl as here used.</p> <p>2. Waiver of Contract — Retaining First -Annual Premium — Peremptory Instruction Approved — The- contract of insurance as set out in the application 'and- receipt -being a ¡binding one and the company not having waived it 'by retaining the $3.-00 paid -on-the -first annual premium, a reasonable- time -and un-til it could be ascertained whether the applicant was going to get well, there was nothing for the- court to submit to tbe jury and the peremptory ' instruction was proper.</p>

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

<p>liana — 'Condemnation Proceedings — Evidence—In -proceedings to assess -damage» for -land taken in condemnation proceedings, it is error to permit evidence ^o the effect that the building of a road would o-pen up -a highway for tramps who would lodge in the owner’s house, or that passing trains would frighten horses and cattle, as siuch elements of damages are too remote and speculative.</p> <p>2. 'Measure of Damages — Instructions—It is error to ,give instructions authorizing a double assessment for certain elements of ■damaíge. .</p>

<p>Railroads — Failure to ‘Block Frogs — (Under -a statute imposing a penalty on. a -railroad; company lor failing 'to block a frog it can. not be punished) for failing to block a guard rail, though, curved out at the ends leaving a space where a block might ■he placed.</p>

<p>Gaming — .Conducting Poker Game for Compensation — Admission. o£ Guilt Under Promise of Immunity — Trial and Acquittal — 'Appellant was tried and. .convicted for feloniously -setting up a game of cards known as poker for compensation and his. .punishment fixed at confinement in the ipenitenti-ary for a .period- of from o-ne to th-ree years-, and a -fine of $500.<)O and costs and was -adjudged infamous and forever disqualified fro-m suffrage -or from holding an office of trust or profit, under Kentucky .statute, .section i960. Appellant, upon being introduced as-, a witness, before the' grand jury, at first refused) to answer the questions on. the -ground that his testimony would -be self-incriminating; wtheraupon the lattorney for the Oonumonwealth told him' in the presence of the grand jury that no testimony he might give would he used against him in any prosecution -except for -perjury or fal-se «wearing. • Upon this assurance he testified fully as- to all m-atter-si charged in the indictment which was found' against him the next day. Section 19-73, Kentucky iStatu-te provides: “In any prosecution for a penalty agains-t .gaming it shall be no exemption for -a witness that hi® testimony may incriminate himself, h-ut no such testimony .given toy the witness shall he used against h-im. in any prosecution -agains-t him- except f-o-r false swearing -or .perjury.” Held that the appellant was -entitled to an acquittal b-y virtue -of section 1973 of the statute, -supra, and having 'been refused a dismissal of the indictment by the court on -his motion before trial, he was clearly- entitled on the trial to a peremptory instruction directing his acquittal on his' plea of abatement.</p>

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

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

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

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

<p>Bills and Notes — Agreement to Discount Note — An agreement between the debtor and' the creditor before a note was due, by which the latter agreed to discount the note to the former, and he agreed to buy i-t at that price, the money to -be paid and the note delivered on a d'ay fixed in the agreement, is valid.</p>

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

<p>1. Trespass — Land—Title—Abandonment, of Lease — W-her-e an action few trespass was sought to -be defeated .because the title papers were not found in the record, it being evident that the land belongs 'to appellee, it will be presumed that such facts were before the lower court as authorized the judgment for the trespass. Code Provision — Substantial Rights of Parties — The Civil Code provides that no judgment shall be reversed for an error or defect which -does not affect the substantial right® of the parties.</p>

<p>1. Instructions — Should submit to the jury the issues made by 'the pleadings, and no other. Where the petition against a street raii. way company sought a recovery in damages ior the negligent starling of a car after it had stopped to allow the plaintiff to alight and before she had time" to do so, it was error to instruct the jury in effect that the plaintiff might recover if she attempted to alight from the car before it stopped and while it was running ■at a slow rate of speed.</p> <p>2. instructions — Waiver of Error' — -A party cannot complain that the court erred in giving an instruction if he offered one similar to the one given.</p>

<p>Affirmed — On authoriy of L. & N. R. Co. v. Vaughan’s Transfer Co . 123 S. W., 253.</p>

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

<p>Promissory Note — Accommodation Endorser — Waiver of Diligence in •Bringing Suit — A written waiver m a body of a note, of diligence in bringing suit, becomes a part of the 'contract, and is a waiver of diligence, it matters not how the -right thereto may arise: therefore an accommodation endorser even if entitled 'to the benefit of Section 4668 Ky. St. giving to sureties and others the right to give written notice to the creditor -requiring him to -sue at the next term -of the court 'thereafter (a question not decided) hy becoming a par-ty to the note containing such waiver, thereby waives the right conferred by the Statute.</p>

<p>Action for False Arrest — Pleading—Evidence—In an action for false anrest, while the answer presented a defense, it was denied by •reply and no evidence was offered in support of 'the allegation® ot it-he answer, and under these facts, the action of the trial court in giving the jury a peremptory instruction to find for appellees was erroneous.</p>

<p>Contracts Made in Another State — Construction in this State — It is held in this State that in construing contracts made and to be performed in another state the law where the contract is made and to be performed, controls.</p>

<p>1. Cities — Water Front — Wharf Privileges — Landings—Cities are not required to reserve the most convenient and suitable place for stamboats to land during high ■water, but so long as they retain of its water front ,a plaee sufficient to afford steamboats a reasonably suitable 'and convenient place to land, the owners thereof may not complain.</p> <p>2. Same — To deny to a city the .right to lease out portions of its water front in order that the owners of boats might during high water prefer these places as landings would be to place an unreasonable restriction upon the city authorities in the control of -the water front.</p>

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

<p>1. De facto- Officers — Acts in Collateral- Proceeding — How feecog-nizdd — It is- a -well' recognized--rule' that- the' 'acts -of -a- de -facto ' '"Officer' will 'ndt, in: a .collateral -proceeding,- be declared Void.</p> <p>2. Vote in. City Council — Effect—The vote of one who acts as a -de faato member of a city council -is as effectual .for all legal pur-_ poses as those of a councilman de jure.</p> <p>3. Parliamentary Custom — Not Recognized' by Courts — When the ■rule obtains that a ctiy council must complete all business before going out, it is because such rule has been adopted as a matter ■ of parliamentary custom and not followed as a matter of law, ■and the courts are not required to recognize all parliamentary rules that may.be adopted by a body of legislative functions.</p> <p>4. Cities — Street® and Sidewalks — Discretion in Building — -The question of whether the streets or sidewalks of a city should he repaired, changed or improved, is a matter that addresses itself solely to the discretion of the common council of the city, as is the further question as to what the character 'and extent of the work should be, and the courts will not interfere with tbe exercise of such discretion.</p>

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

<p>1. Damages — When, not Excessive — Where a child three 'and a half years of age is severely injured by a fall, occasioned by a hole in the platform of a railroad station into -which the person carrying ■the child had stepped and fallen in descending from the car, a verdict of $5,000.00 damages is not excessive-</p> <p>2. Instructions — When an instruction offered by a party is refused ¡because it does not correctly present the law upon the question 'attempted to be covered thereby, it is- the duty of the court to prepare and give a proper instruction upon that point. But where the court has given an instruction in the terms ashed by a party, lie, having obtained all he asked, cannot complain that the court has not gone further than he asked by giving other instructions, although it might properly have done so-</p> <p>8. Appeal — Review—An error of the trial court which was not assigned as a ground for a new trial there-, cannot he considered upon appeal.</p> <p>4. Infants — Negligence not Imputed to — In -an action brought for the benefit of an infant who has ¡sustained! injuries through the negligence of another, negligence on the part of the parents or those .standing in loco parentis in failing to do some subsequent act to preserve -the infant’s life or health, will not he imputed to the infant nor bar a recovery by him.</p> <p>5, Punitive Damages — Punitive damages are recoverable only where the defendant ha® acted wantonly, or recklessly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations.</p>

<p>Homestead — Infant—An infant is not entitled to a homestead in land which his father acquired; -before his death, in the absence of any evidence showing that his father either occupied the land, or intended within a reasonable time to occupy it.</p>

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

<p>County Clerks — General Alphabetical Cross Index — Duty—Section 51.) of Kentucky Statutes — Under section 513 Kentucky 'Statutes it is 'the duty of the County Court Clerk to keep a general alphabetical cross index of all instruments lodged for -record in his office.</p>

<p>1. Criminal Law — Jury de me-dietate linguae — Is one composed half of aliens and: half of citizens; and it is provided in s'ection 2254 of the Kentucky Statutes that such a jury may he directed by the court-'</p> <p>2,, Alien — night of, to Demand Jury de Medieiate Linguae — Discretion of the court — An alien is not entitled as a matter of right' to such a jury, but the trial judge may in his discretion order one upon the request of an alien charged -with crime; but, whether he does so or not is entirely within his discretion, 'and hi® refusal to order such a jury would not in any case be rever-sdble error.</p> <p>S. “Trial by jury” defined — When a person is -put upon" hfe trial in a court- -presided over by a jud-ge, who directs -the proceeding, and before a jury -composed of twelve men, and they -all agree upon the verdict, the accused has- had a -trial by a jury according to the ancient mode, and cannot complain that any constitutional right has been denied him merely because the qualifications i of the jurors or the manner of their selection differs from what it was at common law or is changed fiom time to tíme to make the system more efficient.</p> <p>4. Jury Commissioners — Duties of — Challenge to Panel — Practice— Presumption — It is the duty of the jury commissioners to write the names of the jurors on slips of paper and place 'them in the cylinder or wheel; and if this service is performed, by clerks or others, it is ground of challenge to the panel. But a motion to discharge a panel because the jurors were not properly selected ■ by the commissioners must be .supported by affidavit or other proof that the commissioners did not properly discharge their duty — the presumption that they did is not to be overthrown by a mere motion, unsupported by affidavit or -proof.</p> <p>5- Circumstantial Evidence — Whei<e the -Commonwealth must establish the guilt of the accused, if at all, by circumstantial evidence alone, a wid'e range -must necessarily be allowed in the examination of witnesses, and every relevant fact and circumstance that tends to connect the accused with the commission of the offense may be submitted to the jury for their consideration.</p> <p>6. Evidence — Duty of Court to Pass upon Competency of — It-is the duty of the court to pass upon the competency of the evidence, and to.determine for himself whether the evidence offered should be paimitted to go to the jury; but, it is admissible in some instances -for the court to instruct the jury at the time concerning the purpose for which evidence i-s admitted and leave it to them to say whether or not it is applicable to the issues.</p> <p>7. Instructions — Verbal admonitions of the court made during the progress of the trial in reference io questions of evidence, are not instructions- within the meaning of the Code provision requiring all instructions to be in writing. The Code refers to instructions -that are given at the close of the evidence.</p> <p>5. Evidence — Right of Accused to Inspect Articles Proposed to .be Offered as Evidence by the Commonwealth — It is not encumbent . upon the Commonwealth to submit -before 'trial for the inspection or examination of - the accused articles in possession of the Commonwealth that it proposes to introduce as incriminating evidence against him; but it is proper to give -the accused and his counsel full and free opportunity to examine them during the trial.</p> <p>9. Confessions — Where ■ statements are made out of court by the ’ accused that might he construed to incriminate him, although" it may not clearly appear that they were confessions, it is not error for the trial court to instruct the jury upon the subject of ' confessions. ■</p> <p>10- “Public Trial” — The constitutional right to a public trial does not mean that all of the public who desire to be present .shall have opportunity to do so, or that the trial judge may not without favor or discrimination limit tlfe spectators to the capacity of the room in which the trial is had; and, where the orderly conduct of the trial requires it, the court may have policemen or officers stationed at convenient plajees to preserve order, and limit admissions to the court room to persons holding tickets of admission.</p>

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

<p>1. Master and Servant — It is the duty of a master to exercise ordinary caro to furnish reasonably safe places for his servants to work.</p> <p>2. Unprotected Machinery — It was negligence to have, in a factory where gills were employed, an unprotected rapidly revolving shaft that was liable to catch the clothing of employes, when it could have been protected by a casing or guard without impairing its efficiency or interfering with its operation.</p> <p>3. Servants' — Who Are — When a person, who occupies the relation of servant, employs with the consent and approval of the master another to assist him in the performance of the duties he is discharging fo.r the master, the relationship of master and servant is thereupon created between the master and the person so employed, although -tT e person .so employed may he compensated ■by and be under the immediate control of the person employing him.</p> <p>A Evidence — The fact that a girl of sixteen testified that sln> knew a revolving shaft was dangerous, did not .bar her right of recovery when it further appeared from her evidence that she did not know or appreciate the tendency of .suck machinery to create a draft that would draw or twist her apron or dress about it.</p>

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

<p>Attorney at Law — Partnership—'Contingent Fee — Refusal of One Part* ner to Sue — Action toy other Partner — In this action the court instructed the jury “that if they believe from the evidence that the defendant Company agreed with the firm of Bach & Patrick, or with J. J. C. Bach, to pay them the sum of $1,500.00 in settlement of their contingent fee in the cases'named in the .pleadings and proof, they will find for the plaintiff, otherwise they will find for the defendant.” The jury found for the appellee Patrick and appellant company claims there is not evidence to support the finding. Held that Bach was a necessary party to the action, but as he refused to become a plaintiff, his partner did right in mailing him a defendant.</p>

<p>1. Life Insurance — The constitution of a fraternal life insurance company, and the laws in force at the time the policy is issued,fix the right's of -the parties thereunder, and control the disposition. of the fund.</p> <p>2. Same — Beneficiary—Where a beneficiary named in a policy of life insurance dies leaving issue, the policy being in 'the nature of a testamentary disposition, the issue of the deceased beneficiary takes the parent’s .share under section 4841, which provides that the issue of a devisee or a legatee under a will shall take under similar circumstances.</p> <p>3. Same — 'Beneficiary—Section 4841 of the Kentucky Statutes, however, does not control where the deceased beneficiary leaves no . issue; but, in such a case, the fund goes under section 655 of the Kentucky 'Statutes to- the legal representative of the deceased •beneficiary.</p> <p>4. Same — Insurable Interest — A son has an insurable interest in the life of hi® father.</p>

<p>1. School Trustee — Vacancy—Where' the poll sheet of an election to choose a District School Trustee d.s stolen beyond recovery shortly before the close of the polls, and the election officers fail to certify the result of the election for that reason, a vacancy exists ■which can be filled by the appointment of the County School Superintendent.</p> <p>2. Vacancy in Office — Appointment of Trustee — An" appointment may be made within a reasonable time before a vacancy actually exists, to take effect when it occurs, Ifit ‘he made by the authority that would have the right to make the appointment when the vacancy does occur.</p> <p>3. Same — A person cannot be appointed presently to fill a vacancy when there is no vacancy, hut he can he appointed to fill a vacancy that will shortly occur, his appointment to take effect when it does occur.</p>

<p>1. Judgment — Not Void — Collateral Attack — Conclusiveness—A judgment of a court having jurisdiction of the subject matter of the action and of the parties, is not void, and cannot be collaterally attacked; and until vacated or reversed, is binding upon all parties and their privies.</p> <p>2. Married Women — Conveyance—Under the law in force in 1883, a married woman could not convey her rear estate by simply uniting in a writing with her husband. It' was necessary that 'her husband should have theretofore conveyed, or that he should unite with, her in a deed, and that she acknowledge it before. a proper officer upon privy examination.</p>

<p>Land — Sale in Gross — 'Deficiency—Innocent Mistake — Where there is a deficiency of 12.5 acres in a tract of land sold in gross as 100 acres more or less, a recovery may he had for the deficiency, it being above 10 per cent., the vendor and vendee having both labored under an innocent -mistake as to the quantity of land in the tract.</p>

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

<p>1. I. and — Ownership—Answer Alleging Ownership — Good After Verdict — An answer not traversing the allegations of the petition that the plaintiff is the owner of the tract of land sued for, ■but alleging that the defendant is the owner of a portion of the tract specifically described in the answer, is good at least after verdict.</p> <p>2. Pleading — Variance—Materiality—It is not a material variance that a part of the land described in the defendant’s answer lay oufside of the .plaintiff’s boundary.</p> <p>3. Adverse Possession — Marked Boundary — Possession—The person in possession of land adversely without color of title claiming to be a well defined and marked boundary, -there being no entry under the senior patent, is in possession to the extent of his ■marked boundary, and not confined to his close.</p>

<p>Railroads — ¡Building Insufficient Culvert — Damage to Land by Overflow of water — Appellees sued in this ‘action for damages to- -theit land and crops -by reason of an insufficient culvert to carry tbs water from bbeir land in the construction of the railroad. Ap-pellee sued for $576.00 damages and recovered a judgment for $30-0.Off and the railroad company appeals. Held that there is no substantial error to the -prejudice of appellants’ rights and the judgment is affirmed.</p>

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

<p>Liens — Material .Men’s 'Liens — Action to Enforce — Evidence—In this action to enforce a material men’s lien, evidence examined andi held insufficient, and the judgment denying the lien should ha affirmed.</p>

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

<p>1. Idiot — Definition of- — An idiot is a person who has -been from birth or infancy deficient in mental capacity, and destitute of the ordinary intellectual powers.</p> <p>2. Idiot — Carnal Intercourse With — Sufficiency of Evidence — Confession of Accused' — IWIhere a person is indicted for having carnal intercourse with an idiot he may be convicted on evidence of -his confession of guilt, when there is 'Other evidence independent of the confession showing- that , the idiot had a child about nine months after the accused had intercourse with her. The birth of a child is in itself evidence of the commission, of the crime, and in connection with the confession will warrant a conviction.</p> <p>3. Confessions — 'Proof that a 'Crime was Committed — If there is evidence independent of a confession that the crime charged has been committed it is not proper to instruct the jury that a confession will not warrant a conviction, unless accompanied with other proof that such an offense was committed. It is not essential that there should he other evidence than the confession that the accused committed the offense, if there is other evidence independent of the confession that the offense was committed.</p> <p>4. Continuance — It is not error to refuse a continuance on account of the absence of witnesses when the evidence of the absent witnesses would be merely cumulative.</p> <p>5. Trial Judge may -Request Jury to Make Verdict. — Trial judges may advise juries who are apparently unable to agree upon a verdict of the importance of coming to an agreement and request them to do so; but he should not by threat or entreaty attempt to coerce a verdict or exert his authority to force an agreement, nor should he under ány circumstances or in any manner indicate the character of verdict that the jury should return.</p>

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

<p>1. Intoxica'tir^'Liquors — Soliciting Orders For — No Statute Placing Penalty Therefor — There is no statute in this State placing á penalty upon- .persons who solicit orders for intoxicating liquors.</p> <p>2. 'Same — The. record- showing that the sale- and delivery complained • of were made in Jefferson county and not. in iClay, no. law was vio. lated and the prosecution was properly dismissed.</p>

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

<p>1. Boards of Health. — Powers—A hoard of (health is an instrumentality of government created for -convenience and invested with such power as will enable it to protect the general health of the ■people of the 'State, -County or Community over which it is given jurisdiction.</p> <p>2. Same — Right of Quarantine Citizens — Fairly viewing the evidence the acts of appellees in closing appellant’s store, disinfecting her goods and in requiring her to elect whether she would return to her home in Kuttawa, or he' for a stated time quarantined in an isolated place in Kddyville, were reasonable and lawful measures adopted by them as members of the County Board of. Health for the suppression of an extraordinary outbreak of smallpox, and were rendered unavoidable by appellant’s conduct in violating the regulations established by appellee’s acting as the local board of health, in causing her child to be carried from the infected town of Kuttawa to EJddyville and depositing his probably infected clothes in her -store.</p> <p>3. Same — Jurisdiction—Liability -for Damages — It seems- to be well settled that a health officer who by statute is authorized to take -action for the- prevention of -the spread -of disease i-s not liable for injuries resulting from such reasonable and customary measures as he may in good faith adopt or direct for that purpose with regard to persons -or -matters subject to his jurisdiction.</p>

<p>1. Insurance Premiums Paid in Fraud of Creditors — Wlhere an insolvent husband overdraws 'his account in bank, and uses the money in payment of premiums upon a 'policy of insurance upon his own life payable to his wife, the bank can recover the ■premiums so paid, from the wife, -under 'Section ‘654 of the Kentucky Statutes, which provides that an- amount of the -policy equal to the premiums so paid shall inure to the creditors where the premium is paid with intent to defraud a creditor.</p> <p>2. Same — Fraud—Wlhere a husband, while insolvent, obtains money from a bank by overdraft and uses- it -to pay .premiums -upon a policy upon his own life which is payable to his wife, the law imputes to him the natural -result of his act which' is, in law, fraudulent as -to his creditors, although not shown to -have been actually so.</p> <p>3. Same — The use -of money so obtained, in paying premiums upon his wife’s policy, was, -to that extent, an unlawful diminution of his estate and an unjust enrichment of her estate, and is constructively a fraudulent act within the meaning -of Section 6'54 of the Kentucky -Statutes.</p>

<p>1 Counties — Fiscal Courts — Abdication of Powers — The fiscal court > of a county can not abdicate the powers conferred upon it by law, and invest a committee of private citizens with authority to .prescribe the plans and specifications for bridges and fix the amount of money to be expended, and make the expenditure a liability upon the county.</p> <p>2. Relief — While in such cases, the county is under no liability to pay, it will not ibe permitted to retain the bridges and not pay for them; but the contractor will be given the right to remove the 'bridges and ail the material furnished in .their construction.</p>

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

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

<p>1. Municipalities — Improvement Ordinance — Statute Authorizing —Validity—A provision of an ordinance relating to street improvements enacted .by the general council of a city of the second class pursuant to “An act to amend and reenact section» 3094, 3006, 3097, 3098, 3099, 3100, 3101, 3102, of the Kentucky Statutes, relating to the control and improvement of streets, public ways; landings,' wharves, grounds and sidewalks in cities of the second class,” being chapter 107, Acts 1910, containing the following: “Nor shall any error in the proceedings of the general council exempt any property from the lien for, or payment of, such taxes after the work has been done and accepted as provided by this section, but the general council or the courts in which suits are pending shall .make such corrections, rules and orders tó do '’justice to all parties concerned; and in no event shall the city be liable for any part of the cost of such improve^ ments, except as provided in section 309 6” is valid.</p> <p>2. Street Railways — Improvement Taxes — 'Section 3096, Acts 1910— authority of General Council — Validity of Ordinance — 'Classification — Under section 3096 of 'Acts of 1910 (See Chapter 107, Acts 1910, page 306) the General Council of a city of the second' class may, independently of any contract or requirement of the-company’s franchise, require a street railway company to beav its reasonable and proportionate part of a street improvement, and assess the cost on all its property assets and franchise.</p> <p>3. The fact that the cost of a street improvement is made a lien only-on the abutting property of those owning land abutting the improvement, while as to a street railway, it is made- a lien upon all its property, assets and franchise, does not render such provision of the ordinance or act void, on the ground of unreasonable discrimination. The relation of a street railway to the-streets is so different from, that of the abutting .property owners, there is no -reason why street railways may not be classified -so-far as street improvements are concerned, upon an entirely different h-asis from t-hat of the abutting property owners,</p> <p>4. Installment Plan — Provision of Act and- Ordinance Cutting off Defenses- — Constitutionality—Where the ordinance and the- Act pursuant to which it is enacted, provides that the property owner may pay on the installment .plan, and that -bonds may then be issued, but attaches as a condition to this right that the property owner shall agree in writing that he will make no objection to any illegality or irregularity in the proceedings, ancf that he shall not thereafter be permitted to set up any defense-whatever agai-nst the payment of the -taxes, and that he shall be estopped from questioning the validity of the bonds, such provision is not violative either -of the Constitution of Kentucky or of the 14th Amendment to the Constitution of the U-nited States, in that it deprives the taxpayer of his day in court, and consti-frutes a taking of .property without due process of law. Unless the taxpayer petitions for the right to .pay on the installment plan he may contest and have his day in court.</p> <p>5. The installment plan is for his benefit. It lightens his burden. R is within the power of the Legislature to say, “If you avail yourself of this .liberal plan adopted for your benefit, you must accept the plan with the 'conditions attached.”</p> <p>6. General 'Council — Action—Conclusiveness—It is within the province of the Legislature to make the general council the judges of the necessity for the improvement, and also to provide that their determination of the question whether or not the work has been done in accordance with the contract shall be conclusive except in case of fraud or collusion on the part of that body, in view of the fact that ample notice is provided- for a» well as- ample opportunity for -the taxpayer to be heard.</p>

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

<p>Rand — Patent Line — Location—The judgment of the 'Chancellor locating the line of a patent will not he disturbed on doubtful evi- " dence.</p>

<p>Master and Servant — Injury to Servant — -Safe -Place to Work — In 3 suit by a servant against the master to recover for an injury on the .ground that the master did not furnish the servant a reasonably .safe 'place to work, the .petition is no-t sufficient unless it is averred that the master knew or by ordinary care should have known that the place was unsafe and that the servant did not know of the danger.</p>

<p>Homestead — Abandonment—Lunatic—Subjection of Homestead to ■Claim of State — A lun-atic who at the time -of his commitment to the asylum has a homestead, does not lo-se his right thereto by reason of his confinement in the asylum or the death of ¡his wife and the marriage and departure of his children. And the homestead can n-ot be subjected to tbe payment of the State’s claim for -his maintenance, -even though it he made to- ap-pear that the lunatic is incurable and wil-1 never be able to -occupy the homestead.</p>

<p>Wills — 'Condition Imposed by — Performance by Devisee — The testator provided in bis will that “At the expiration of five years from the recording of this- will, if my son shall have been sober, discreet and 'moral in habit for the last two preceding years of said flv® years, then and in that event he thus behaving shall have the right to take possession and .control of his bequest herein, but not otherwise.’’ As the evidence showed that the son had been sober, discreet and moral in habit during the period .mentioned in the will, he was entitled to take possession of the devised estate.</p>

<p>1. Master and Servant — Furnishing Unsafe Tools to Servant to Work With — Injury to Servant — This action was brought by appellant to recover damages for the loss of an eye which he claimed was caused by the negligence of his master the ap-pellee on account of certain tools being in -an unsafe and dangerous condition, and while appellant was 'holding a steel rail as directed by his foreman, which was being cut, -a piece of steel flew from one of the defective tools used by the other employe nnd struck him in Ohe eye, destroying the sight.</p> <p>2. Trial — Refusal of Court to Submit Case to Jury — The testimony shows that a cleaver furnished by appellee’s foreman to the hands to work with, was in a bad condition, and there</p> <p>. is nothing in the record indicating that any care was taken to furnish reasonably safe or suitable tools. Held that as there was testimony tending to show that the steel which entered ' appellant’s eye came from the cleaver the case should have been submitted to the jury.</p> <p>Nesjligeiice of Master — Responsibility to Servant — The Negligence in this case, if any, consisted in the furnishing by the ■master of defective and unsafe tools to the servant with which to work. It is the duty of the master to furnish his employes reasonably safe and fit tooig. with which to labor, and this duty cannot be delegated to another servant so as to relieve the • master from responsibility.</p>

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

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

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

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

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

<p>Bills and Notes — Endorser—Notice—Under the Negotiable Instrument act,, ithe endorser is .released unless notified in writing of the non-payment' of the note at maturity. The petition must show notice was given or excuse its not being given. .</p>

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

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

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

<p>Municipal Corporations — Police Power — Ordinance—Under the police power a municipal' corporation can prohibit the sale of those drinks only which are harmful and deleterious to the public, or public morals. Therefore, an ordinance that prohibits' the sale of harmless drinks is an unlawful interference with the 'liberty and property of the citizen and is void.</p>

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

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

<p>1. Bills and Notes — An unconditional- promise in writing to pay to tlie order of a specified person or dearer a certain sum of money at a fixed time is -a negotiable instrument.</p> <p>2. Defenses That May he M-ade Against Holder for Value — The maker .of a negotiable note, although it may have been procured by fraud or execution without consideration cannot assert these defenses against a party who takes the note for value and without notice of the vice in the paper.</p> <p>3. Holder for Value — Collateral Security — A party who takes a negotiable note as ¡collateral security is a holder for value to the extent of his lien, but defenses available against the payee may be made against the holder after his lien is satisfied.</p> <p>4. Forged Signature — Confers no rights on a party who acquires .the paper under or through such .signature, and he cannot enforce the collection thereof unless- the party against whom the note is asserted is- -estopped to make the defense that the signature was forged.</p> <p>5. (Contract Between 'Payee and Purchaser — The terms of the contract under which the purchaser of a negotiable note acquire® title to it from the -payee cannot be -changed by the maker of the note, although it might be to his interest to do so.</p>

<p>Subrogation — If A. iis obliged to satisfy ■ a demand asserted against him by B., he cannot -look to C‘. for re-imbursement unless -B. could have done so.</p>

<p>Wl)s — Want of Capacity — Evidence—Affirmance of Judgment — Pro-■usion of Code — In an action to set aside a will on the ground of mental incapacity and undue influence, the evidence examined and held that it is to the effect that testator was fully compe tent to make the will and it is to the effect that no undue influence was exercised over him at the time and before the making of the will. Section 13'4¡ Civil Code requires this Court to affirm a judgment unless an error 'prejudicial to the substantial rights of the appellant was committed .by the lower court, and there being no error of this character the judgment must be affirmed.</p>

<p>Appeals — Question, of Fact — Affirmed On the Evidence — 'This appeal involving merely a question of fact is affirmed on the evidence.</p>

<p>'Principal .and- Surety Action Against Surety — Bond of Surety. Surety’s Liability — In an action upon & bóhd executed by the ’ holder of a stock of goods sought to be recovered, the defense was made tha the" aiction -could not be -Maintained ¡because the judgment was not for- the return of the property, but for' its value. EGeld, That while’this -defense might have -been made by • , the original defendant, .it cannot in,this- action 'because the liability of the surety is measured by the terms of lts/bond and that was to perform the judgment of.the court. It obligated itself to -perform the judgment of the -court and that, judgment was tUdt tne defendant should pay the plaintiff $1,000.00. with interest and costs.</p>

<p>Conveyance — A-cbion to Set Aside — Mental Capacity — Question of Fact — In an action to set aside a conveyance on the ground that the vendor did not have sufficient mental capacity to make the deed. Held that the question is one of fact and the judgment of the chancellor canceling, the deed is 'affirmed.</p>

<p>1. Insurance — Fire Insurance — Evidence—Competency—Statement of Agent — No Allegation of Fraud — When, in a policy o.f insurance •a.stock of merchandise kept for sale is’insured, it is not competent to show that the agent of the insurance confpany said 'when the policy was applied fop,. that things not kept for sale might he considered as part of the stock, there being no allegation of fraud or mistake in the written contract.</p> <p>2. Proofs of Loss — Failure to Furnish — The Company haying retained the proofs of loss sent by the assured without objection, and not having required further proofs, cannot -complain that the assured did not furnish sufficient proofs of losd.</p>

<p>1. Indictment — Uttering Forged Writing — An indictment for utter-ling a forged writing must state the acts constituting the uttering and not the forging of it. It is immaterial who committed the forgery or how it was done. The acts constituting the uttering are the gravamen of the offense.</p> <p>2. Same — An indictment for uttering a forged paper must set forth an instrument, which, if true, would' he of ,some legal efficacy, since otherwise it has' no legal tendency to defraud.</p> <p>3. Same — Affidavit—An affidavit subscribed' by the affiant below the name and certificate of the officer before whom the affidavit was made, has no apparent legal efficacy, under section 551 of the Civil Code of Practice, which requires that every affidavit shall be subscribed by the affiant, and the certificate of the officer or person before whom it is made shall be written separately following the signature of the affiant.</p>

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

<p>1. Injunction — Motion for Supersedeas — Final Judgment — Code Provision — An injunction granted by the final judgment in an action may be superseded only in the way pointed out by Section 747 of the Civil Code. A supersedeas obtained not as provided in that section does not affect the injunction, and after the expiration of twenty days, this court is without power to allow a bond to be given and a supersedeas of the injunction to be obtained.</p>

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

<p>1. Escheat of Land Owned by National Banks — Land acquired by a national bank, that is not proper or necessary for carrying on its legitimate business, and that has been held by it for a longer period than five years, is subject to escheat.</p> <p>2. National Banks — Are created by Congressionel legislation, and the State has no power to enact laws concerning .them that will j; in any manner interfere' with their efficiency or frustrate the purpose of .their creation. But as the national banking act only permits national banjks to hola real estate not necessary in the conduct of their business for five years, the .protection ‘afforded by Congress ends when the five years expires .and thereafter the 'State law® ‘become operative, and land held for a longer time than five years is subject to escheat under the constitution and .statute of the State.</p>

<p>1. Pleading — Specification of Negligence — 'When the pleader specifies, in wliat tlie negligence consists, fie is fiound fiy his specifications and cannot introduce evidence supporting otfier elements of ■negligence outside of those particularly relied on.</p> <p>2. Evidence — Failure of Proof — When the evidence on 'behalf of the plaintiff shows that the defendant was not guilty of the acts of negligence relied on in the petition, the court should instruct ■the jury to return a verdict for the defendant.</p> <p>3. Railroads — Grossing Signals — Travelers on a highway parallel with the railroad are entitled to depend upon the fact that crossing signals will be given at the proper place, and such a traveler who has sustained injury by the negligence of the persons in charge of the engine in failing to sound crossing signals may recover damages caused by such negligence if he can connect his injuries with the negligence.</p> <p>4. Crossing Signals. — As the statute requires the persons in charge of the engine to ring the bell or sound the whistle continuously ■or alternately from the time the crossing signal is' first given until the crossing is reached, it is not- negligence to sound the whistle during this time, unless it can be shown that the persons in charge of .the engine discovered that sounding the whistle was causing a horse being ridden or driven on a parallel highway to become frightened.</p> <p>5. Traveler on Highway — Duty of Trainmen as to — Persons in charge of an engine are not required to exercise care to discover the condition of persons traveling on a highway parallel with the rail-road, and so .they are not required' to -observe'care towards such persons until their peril is discovered.</p>

<p>■Wrongfully or Unlawfully Disposing of the Property of Another — ■ Owner’s Right to Sue — 'Where one has been wrongfully or unlawfully deprived of his property, he may sue for the property and damages for its taking or he may sue for its value at his option, and ,the right to treat the property as if sold to the wrongdoer is universally recognized when the property has been sold by the wrongdoer and converted into money.'</p>

<p>1. Contract by the Herald Publishing Co., Owning and Publishing the Louisville Herald, with the National Circulation Co., a Corporation Promoting Schemes ior Increasing the Circulation of Newspapers — Held: That the contract as written expressed the real intention of the parties, for while in its letters and pamphlets, appellee stated what its usual guarantee was, it also stated that it would give any kind of guarantee wanted by appellant. With this .information before it the appellant, represented in the execution of the contract by .business men of capacity and experience, we must conclude that the guarantee embodied in the contract while not in terms the usual guarantee given, was such as was entirely satisfactory .to it.</p> <p>2. Guarantee — The guarantee as provided in the contract was, that the money taken in on new subscriptions and classified advertising, would equal the cost of prizes and the sum paid for commissions. In the absence of this guarantee under the contract appellee would have been entitled to $1,613.86, as commissions, but because of the guarantee the chancellor scaled its commission to $1,229.72, so that its commissions and the cost of prizes exactly equaled the total receipts from new subscriptions and classified advertising. This finding is correct according to both the letter and spirit of the contract.</p>

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

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

<p>1. Evidence — Finding of Jury — Where -one witness testifies one way, and another witness to .the contrary, it .can nbt he said that there is no evidence to sustain the verdict or that the finding of the jury is flagrantly against the evidence.</p> <p>2. Instructions — Bill of Exceptions — The court can pot pass upon the sufficiency of instructions when they are not set out in the bill of exceptions but are referred to only by number, as it has no means of knowing what the instructions contain.</p>

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

<p>Appeal fr.om Jefferson Circuit Court</p>

<p>Deed — Life Estate — Reversion—Under a deed 'by which, the property is conveyed to the grantee her heirs and assigns forever, and this is followed by a stipulation that the grantee is. only to hold the land for life, and that at her death it is to revert to the grantor’s children, the ¡grantee takes only a life estate, as the court will look to the whole instrument in determining its meaning. .</p>