Volume 144 — Kentucky Reports

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

<p>Homicide-^Aetion' for Damages — Liability of One, Who, Contrary to Law, sells Intoxicating Liquors Producing Intoxication — A merchant, who, contrary to law sells intoxicating liquors to one who While intoxicated thereby hills another, is not liable in damages for the latter’s death.</p>

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

<p>¡Lands — Title-Adverse Possession — 'W(bat Must be SboWn — In order to establish title by adverse possession, it must clearly appear that the claimant .has occupied the land openly, adversely and notoriously for a period of fifteen years or more continuously, claiming same to a -well defined or marked boundary line.</p>

<p>Damages — Hidden Danger — Abstence- of Warning — Heading—In 'an ■action to recover damages by a person invited upon the premises and not warned of a hidden danger, the facts imposing the duty should 'be stated, and there oan be no recovery in such a case -under an allegation that the plaintiff was on the premises-as a servant of the defendant, when in fact he had not been employed and was there seeking employment.</p>

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

<p>1. Bill of Exceptions — Record—The fact that papers were used in a jury trial may be shown by an order filing them as parts of ithe record, or by incorporating ‘them into a bill of exceptions. If neither course is. taken they can not be considered upon appeal.</p> <p>2. .Same — Oral Evidence — Where oral evidence is heard in an equitable action, it must be made a part of the record by a bill of exceptions as in ordinary, actions, in order for it to he considered on appeal.</p> <p>3. New Trial — Necessity Eor — Where an issue out of chancery is tried by a jury, it is governed by the same rules that govern trials in ordinary actions; and, in the absence of a motion fpr ■a new trial, nothing is presented for review upon appeal except the sufficiency of the pleadings to support the judgment.</p> <p>4. Costs on Counterclaim — Where part of a debt is contested by a counterclaim, and the plaintiff succeeds in recovering any part of the disputed item-, he should he allowed his costs growing out of the issues made by the counterclaim.</p>

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

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

<p>Ejectment — Evidence examined and conclusion «reached that the land sought to 'he recovered in the ejectment action was not embraced in -a mortgage executed by the grantor of the plaintiff .before the land described in the petition was conveyed to her.</p>

<p>Settlement' — (Facts Known — Unsubstantial Enror — A settlement made between tbe parties when they 'both (knew -the facts will not be disturbed for an error which was. not .substantially prejudicial, the settlement being substantially right.</p>

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

<p>Garnishment — Process—Service—Jurisdiction—Venue—This suit was brought by the Bank oí Lockport in Henry -County against appellant and Owen County to -garnishee any money that might be due appellant (defendant) by Owen County. Summons was served on appellant, Jackson, in Henry County, in which county he resided. He moved, -to quash the return on- the summons, which was overruled. He then demurred to the jurisdiction and this plea -being insufficient he declined -to plead further. Held, on appeal that appellant was -p-rtoperly hef-ore the court upon the summons served on h-im in O-wen 'County and for this reason we do not pass upon the -question of the validity of the service upon him in Henry County.</p>

<p>J. Married Woman.— Accomodation Endorser — Liability — Under section '2127, Kentucky (Statutes, a married woman’s estate can not be subjected to the payment of a draft on which she was an accommodation endorser, unless such estate shall have been set apart for that purpose by deed or mortgage or other conveyance. 2. Money Paid Under Mistake of Law or Pact — Recovery—Where a married woman pays a draft on which she is an accomodation 'endorser under the mistaken belief that she is liable thereon, she may recover the amount paid.</p>

<p>1. Bills and Nates — Purchaser Buying Without Knowledge of Infirmity — Although the purchaser of a note buys it without knowledge of its infirmity, still if his agent who made the purchase for him, knows of the infirmity, he takes it subject to the defense which the maker had against the original holder.</p> <p>2. Holder for Value — Pleading—The holder can not rely on the fact that ithe person from whom' he bought the note was a holder for value, when he does, not rely on this in his pleading.</p> <p>3. Conditional Execution — Recovery by Purchaser — A note ■ being executed upon a condition, and the purchaser’s agent having notice of the condition when he bought the note, there can be no recovery on it by the purchaser where the original holder could not have recovered if he had retained the note.</p>

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

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

<p>1. Bes Judicata — A judgment of a court having jurisdiction of the subject matter and of the parties, is, as a general rule, final and 'Conclusive, not only as to the matters actually litigated and decided therein, but also as to all matters necessarily involved in the litigation, and which might have been litigated therein.</p> <p>2. Counterclaim — Defense—Whenever recoupment is sought, the party entitled to it may interpose it either as a defense, or lie may bring a new or cross-action, and generally it is optional with him which course he will adopt. A defense must be presented-, or it is lost; a counterclaim may -be withheld under section 17, of the Code of Practice, for a separate action.</p> <p>3. Matter of Defense to First Action Can Not be Made Ground for a Separate Action — Where judgment goes against the defendant, and he afterwards sues the plaintiff on a claim which he might have presented in the first suit, but did not, if the facts which he must establish to authorize his recovery are inconsistent with ■the facts on which the plaintiff recovered in the first action, or, are in direct apposition, to them, the former judgment is a bar. If the way to his own recovery lies through a negation of the facts alleged by the plaintiff, that negation must be made good when the facts are first set up; for afterwards he can not deny what the judgment affirms to be true.</p> <p>4. ¡Res Judicata- — If the -determination of a question -is- necessarily involved in the former judgment, it is a bar to a -subsequent action, and it -is immaterial whether the question was actually litigated, or not.</p>

<p>1. Tax Sale for Excessive Amount — A tax sale for anything more than is lawfully chargeable against the property is a sale without jurisdiction, and is void.</p> <p>2. Same — The maxim de minimis non curat lex will not be applied so ¡as to prevent a slight excess from invalidating a tax sale.</p> <p>3. lies Ju'dicata — Bar—The failure of the holder of .a tax-title to maintain his ¡suit in ejectment does not prevent him from asserting his lien given by section 4036, of the Kentucky Statutes, for1 that part of the tax paid by him and for which the property was liable.</p>

<p>1. Lunatic — Ability to Attend Court — Under -Section 2157 Kentucky Statutes, tbe affidavits of twio regular practicing physicians residing in -another State, may be received to show -that tbe condition -of tbe lunatic is such that it would be unsafe to bring him. into court.</p> <p>2. Same — Domicile—ffinqu-est—Oonsfirhctive Process — A -lunatic whose domicile is in this State, but who is confined in an asylum in another State, hi-s estate being here, may be the subject of an inquest in thi® State upon -constructive process.</p> <p>3. Action- to Sell Land — Necessity for Process — When an action is brought to sell land because it is indivisible under Section</p> <p>490 of the Code, if the committee of the lunatic flies an answer ashing a sale of the property on fcehalf of the lunatic, it is unnecessary that process .should he served upion the lunatic.</p>

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

<p>1. Mutual Combat — 'Damages—When a combat is by mutual consent, and each, .of th'e antagonists makes the danger to himself necessary .by the attack he makes on the other, neither can re- ' cover .damages for the injuries 'sustained. G-oldnamer v. O’Brien, approved.</p> <p>2. Verdict — Surplusage—A verdict of the jury finding that neither the defendant nor the plaintiff Is entitled to any damage, and that each parity pay his cost, is mot void, the part .relating to cost being merely surplusage, should be rejected.</p> <p>8. Judgment — .Correction of Verdict — When the court does not en- ■ ter the proper judgment upon a verdict, this may be corrected on appeal without motion for a new trial.</p> <p>4- Failure of Recovery — 'Costs—'When the plaintiff -in an ordinary action does not recover, he must -pay ¡the cost.</p>

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

<p>Appeal from G-arrard Circuit Court.</p>

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

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

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

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

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

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

<p>1. Submission — Affidavit to Set Aside to Take ’Proof — Want of Diligence — An affidavit for setting aside an order of submission, to enable a party thereto to take her proof, which fails to i disclose the names of the witnesses whose depositions she proposes to take, the facts to which they would testify, or what diligence had -been used to procure their depositions, presents no legal grounds for setting aside the order of submission, where between the time of ¡completing the issues and' the submission of the case there was an interval of five months dur- ■ ing which the opposing party took his proof and appellant had ample time to take her proof if she had any.</p> <p>2. Amended Petition — Averments—'Consideration—Conclusion of Pleading — An averment in an amended petition that a certain deed relied on by the party complaining was without any consideration, is a mere conclusion of the pleader, when no facts are alleged showing a want or failure of consideration. ■</p> <p>3. Incumbrance on (Land- — -Removal—Perfecting Deed — -Held, it is patent from the record that appellee received through the deed made him by W, -G>. a good title to the land in controversy subject to the mortgage lien of and that his second purchase of the laud in satisfaction of the lien debt of S. and of its -conveyance to him by the commissioner, removed the only incumbrance upon it and perfected the title he acquired under the deed from -W. G.</p>

<p>1. Praud — Recovery of Goods — When one who is insolvent obtains goods from another, with the intention of not paying therefor, the seller may reclaim his goods as having been obtained from him by fraud.</p> <p>2. Same — iBona Fide Purchaser — Ohe who has bought goods -from another, who had theretofore obtained them through fraud, can defend his title thereto only upon the ground that he was a ibona fide purchaser of the goods for value, and without notice of the fraud practiced by his vendor in obtaining them. All three elements must exist in behalf of the last purchaser; if any one be missing, his rights are inferior to the rights of the original seller.</p> <p>3. Appeal — Finding of Fact by 'Chancellor — It is a rule of this court not to disturb the judgment of the chancellor on the facts, where the evidence is conflicting, and the mind is left in doubt as to the truth.</p> <p>4. 'Conversion — Liability For — 'Where a hank loaned money and took warehouse receipts for goods in storage as security for the loan, and in selling the pledged goods it also sold goods which were not embraced in the warehouse receipts, the bank f is liable for conversion for selling the goods which were not embraced in the warehouse receipt.</p>

<p>1. Intoxicating Liquors — Illegal ¡Sale — ‘Acts of Bar. Tender — ‘LiabilV ity of Owner of Saloon — The owner of a saloon who entrusts the conduct cf the business to a bar tender, who violates. the law by selling liquor on Sunday, will not be permitted to escape liability on the ground that he did not know of. or authorize acts of the bar tender.</p> <p>2. License — Revocation—Abuse of Discretion — It is not abuse of-discretion for the license board of a city of the first class to revoke the license of a saloon keeper whose bar keeper entrusted with the conduct of the business violates the law by selling liquor on Sunday, although the owner claims that he did not know of or authorize the bar keeper’s acts.</p>

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

<p>1. Deeds — Words of Purchase — In. conveying land by deed where the words “bodily heirs” and “children” are used synonymously .they are not words of limitation, 'but words of purchase.</p> <p>2. Deed to Daughter — 'Life Estate — 'Remainder to Children — A conveyance of land by a father and his wife, to their daughter reciting that “the parties of the first part” in consideration of love and respect they have for their daughter, Josephine, and her children, have this day, bargained and sold * * * and convey to the parties of the second part, a certain tract of land, describing it, to have and to hold unto the said Josephine and ber ¡bodily 'heirs, ¡passed a life estate in the land to Josephine and a remainder in fee to her children.</p> <p>3. Note — Consideration—'Dismissal of Prosecution — ¡Notes executed by a mother in consideration of the dismissal of a prosecution for embezzlement against her son was a compounding of a felony and, therefore, an unlawful contract and are not enforceable.</p>

<p>Decedents’ Estates — Indebtedness of — Authority to Borrow Money Sufficient to Pay Debts — In an action by a trustee of a decedent’s estate asking authority of the chancellor to borrow money to pay off the indebtedness of the estate, evidence examined and held the plan is to the advantage of the estate, and the trustee is given opportunity to pay off same and avoid a sale of the farm, and the judgment of the chancellor so directing was proper.</p>

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

<p>1. Street Railways — Action Against — Injury to Pedestrian by Throwing 'Bundle of 'Papers by Employe — Evidence—I-n an action by appellant who in crossing a street was struck and injured by a bundle of papers thrown by lone of appellee’s employes, it appearing that the employes had not been instructed to carry the papers, but that they carried without compensation, except one or more papers which they received for doing it, it was incompetent for these witnesses to testify that they had not been instructed to carry the papers, but as the jury found against the company, the introduction of this testimony was not prejudicial.</p> <p>2. Special Damages — Instructions—If the plaintiff- had desired an instruction on the subject of special damages, she should have asked for it, and, having failed to ask for it, can not now complain -because it was not embodied in the instruction given.</p>

<p>1. Infant — Contracts—'Disaffirmance—Where an infant executes his note in payment for land, he may upon arriving at the age of twenty-one years, disaffirm the transaction, and such disaffirmance may be properly made to, and suit for canceling ithe note may he brought against, the payee’s administratrix.</p> <p>2. Tender of Deed — Necessity—’Where the infant upon the day after he arrives at the age brings suit to cancel the note and to reeind the entire transaction, a judgment canceling the note and divesting the infant of title to the land will not be reversed because before filing tbe suit he failed to tender to the proper'title holder® a deed to the land, the effect of the judgment being to vest the title in those parties who would have succeeded to the title had there been no- such transaction.</p> <p>2. Venue — A suit against the payee’s administratrix to cancel a note on the ground of infancy may be properly brought in the county where -the administratrix resides and is served with process.</p> <p>4- Motive — The motive of one who disaffirms a contract on the ground lofi infancy, can not be inquired into.</p>

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

<p>L Mines — Application of Statute — The statute imposing certain duties upon the owner, agent, lessee, etc., of mines, applies where there are eight or ten men working i n the mine in the daytime, and a like number at night, and the main entry has been worked for a distance of 3©0 feet and two side entries for a distance of about 220 feet, notwithstanding the fact that no coal is being •mined and marketed.</p> <p>2.' Owner- — Liability-—The owner and operator of a mine can not relieve bimiself of the duties imposed by statute for the protection of human life, by contracting the work at so much per yard to parties who hire, pay and discharge their own employes.</p>

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

<p>Manslaughter — Indeterminate Sentence — On the trial of this case the jury found appellant guilty of voluntary manslaughter and fixed his punishment at confinement in the penitentiary for an indeterminate period not less than two nor more than twenty-one years. Held that the evidence authorized ithe verdict.</p>

<p>1. Boundaries — Dost 'Corners — It is a primary rule in establishing the lost corners of a survey to go to known corners and reverse the calls.</p> <p>2. Same — The order in which the surveyor gives the lines and corners in his certificate of survey is of no importance; to find the position iof the survey by reversing the courses is as lawful and persuasive, as by following the order in the certificate of survey.</p> <p>3. 'Same — That construction is to prevail which is most against the iparty claiming under an uncertain survey, since it is his duty to show and establish his corners.</p>

<p>1. Special Judge — Authority—A special judge appointed to try a -case because of the disqualification of the regular circuit judge, has1 authority to hear and determine all questions involved so long as the regular judge is disqualified from' acting, • and the special judge is not. superseded by the appointment of another special judge.</p> <p>2. Judgment — Necessity for Holding Court — While the sjpeeial judge may take the papers in a ease to another county and there consider the -case, and prepare a judgment, he can not render judgment in a -case without holding court either at a regular or special term, and a judgment rendered without court being held is void.</p> <p>2. Order ¿Book — -Signing Judgment — ¡Where the regular judge is disqualified from acting, the order book containing the judgment must be signed by the special judge, a signing in blank before the judgment is entered is not sufficient to give validity to the judgment.</p> <p>4. Execution — Amendment—Sheriff—Homestead—A sheriff is without -power to amend an execution by inserting the names of the -parties plaintiff. A defective execution can be amended only in open court upon motion and after reasonable notice to the parties to be affected. Before selling land under an execution, the sheriff should set apart to the debtor his homestead therein,</p> <p>t. Execution Sale — Void Sale — A sale of more land than is necessary to pay the execution debt is void, where the sheriff failed to ask for bids on a -basis of who would take a less number of acres than the whole tract and pay the debt.</p>

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

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

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

<p>1. Dand — Injury Thereto — Action by Real Representative — Where the owner of land, dies before a wrong is done whereby the land is injured, the right of action for the injury is in his real representatives.</p> <p>2. Parties to Action — Omission of Name in Caption — An infant •toeing made a party plaintiff in the -body of the petition, and his name having been omitted from the caption by a clerical error, the judgment in favor of the plaintiff will -not- he reversed for the defect which -was not aptly presented to the circuit court toy a demurrer apprising the other party of the defect relied on.</p> <p>3. Railroads — -Construction—Damming Water on Land — Measure of Damages — Where a railroad is so constructed as to dam up the water upon the land above the line of the railroad, the measure of damages is the depreciation in the reasonable market value of the land -by the obstruction of the water.</p> <p>•4. (Instructions — Inaptly Expressed — Reversal—A judgment will not he reversed for instructions which are inaptly expressed if under the evidence it is clear the jury could -not have been mis- ' ' led toy them-.</p>

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

<p>1. 'Criminal Law — Indictment—counts—An indictment may charge the commission of the ouense iu different modes and manners, and in as many counts as the pleader desires to present it;- and when an indictment is thus drawn, presenting sufficiently in each count every aspect of the Case in which from the evidence ■before the -grand jury the crime might. have been committed, the accused may be convicted upon evidence showing his guilt under any of the counts.</p> <p>2. Conspiracy — Evidence Sufficient to Show — When a band of armed and disguised men assemble at night for the purpose of executing a felonious act, the mere fact of their assembling is sufficient to show that it was pursuant to an agreement previously formed.</p> <p>3. Conspiracy — Liability of Conspirators — Where a band of armed and disguised men assemblea at. night for the purpose of whipping members of a family, anu while engaged in this undertaking a member of the family is shot and killed by one of them whose name is unknown, the shooting may fairly be said to have been embraced within th ¡ pur ose of the conspiracy, and it is not necessary to show tha„ t ie killing was contemplated by the conspirators.</p> <p>4. Instructions — When ¡Self Defv’se, Instru-tion Not Necessary-Instructions should not be given unless they present some theory of the case that is supporte by evidence; and when there is mo conceivable theory upon which an instruction upon the law of self -defense would be justifiable, it should not be given.</p> <p>5. Instructions — 'Harmless Error — Although instructions (may not correctly state the law of the case, yet if the substantial rights of the accused are not prejudic d it will not constitute reversible error.</p>

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

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

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

<p>1. Homicide — Husband Killing Wife — Trial—'Affidavit for Continuance — Absence of Witnesses — On the trial of a busband for murder by stabbing bis wife, a continuance was asked by defendant because of the absence of the matron of the Orphans’ Home to which the children of the parents were sent after the death of their mother, in which it was stated in the affidavit that the children’s grandmother visited them often while at the home, and coached and advised them what their testimony should be, so as to convict their father, and that she was antagonistic to ■him and had created a prejudice in the mi-nds of the children which the Commonwealth’s attorney agreed should' be read as the deposition of the matron, Mrs. 'Davis. Held that this was a matter in the discretion of the court.</p> <p>2. Same — Jurors—Acceptance—Challenges—On the trial of a murder case the Commonwealth accepted 12 qualiled jurors, F. being one of them and appellant challenged five or six and the panel ■was again filled and accepted hy the Commonwealth, and again ■passed to appellant who challenged one of the new men and offered to excuse OF. by a peremptory challenge, and the court refused to allow him to do so. Held this was correct.</p> <p>3. Statement of Accused to 'Policeman — 'Competency as Evidence— On the trial of a husband for killing his wife, testimony was given that the accused said to a policeman that he had tried to kill his wife before. Held, this statement being made freely, without duress, was competent to show motive and the state of the husband’s feeling toward his wife.</p> <p>4. Murder Instruction — 'Sufficiency of Evidence — (Where the testimony shows that the husband killed his wife by stabbing her in the neck and chest, while she was begging him not to kill her, the court on the trial was authorized to .give the murder in- . struction.</p>

<p>1. Judicial Sales — Mortgage Lien — Postponement of 'Sale — Where the mortgage debt is a large one and no interest has been paid thereon for two years, it is not an abuse of discretion on the part of the 'Chancellor to refuse to postpone the sale of the mortgaged property merely because if divided into lots and sold at some indefinite time in the future it might bring a larger sum.</p> <p>2. Inadequacy of Price — ¡Mere inadequacy of price is not in itself sufficient to justify the setting aside of a judicial sale.</p> <p>3. Won-resident 'Bond — A judicial sale is in no wise affected by a failure to execute bond to two non-resident defendants where any one of them entered her appearance to the action and it is admitted that the other had no interest in the property ordered to be sold.</p> <p>4. Pleading — ¡Refusal to (Pile Amended Answer — -It is not error to refuse the filing of an amended answer which simply pleads an admitted fact and also asserts that the mortgage debt bears five per cent, interest instead of six where the judgment is amended ; ’ so as to bear interest at the rate claimed in the amended answer.</p> <p>5. Notice — 'Wiant of — Where a party gets what he asks, he is not ■prejudiced by want of notice.</p>

<p>1. Building of 'Court House — Suit to Enjoin Tax For — It was not error for the circuit .court to refuse, at the suit of a taxpayer, to enjoin the collection of a tax of ten cents on each $1'C0.(M) worth of assessable property in Mercer County levied by the fiscal .court to erect a court house; it being undenied that the present court house, built in 1'8T7, is in such a condition of .decay as to render its further use imminently dangerous to the lives of the people of the county.</p> <p>2. Although the levy made by the fiscal court for all purposes amounted to sixty cents on each ¡¡¡lOO-OO' of taxable property, as ten cents .of such levy was to pay on an old railroad debt contracted by the county before the adoption of the present state constitution, the exclusion of this item being permitted by section 1'57 of that instrument, the total remaining levy, including the ten cents for erecting a new court house, was only 5¡0 cents on the Il'OO.'OO, which brought it within the limit fixed by the constitution.</p> <p>3. Manner of Creating Fund — The fiscal court might have created' a fund for immediately erecting a court house by a sale, of bonds as authorized by sections 1872-0.875 (inclusive) 'Ey. Stats.; ¡provided authority to issue such bonds had been given by assent of two thirds of the voters of the county voting at an election held by its order, as required by section 157, ¡Constitution, and section 1880 'Ky. ¡Stats. 'But instead of taking that course, the fiscal court adopted, as it had the right to do, the method authorized by an act of the legislature, of March 21, 1910', ,and allowed by section 157 'Constitution of simply levying and collecting annually, a tax of ten cents on the fl'OO'.OO. This method, though equally legal, is more tedious than the first, as it does not permit the work of erecting the court house to 'be commenced until a substantially sufficient fund shall have been accumulated for its completion.</p>

<p>1. House Breaking — 'Mere Breaking With Intent to Steal Sufficient to 'Constitute Offense — Under section 1164 Ky. ©tats., the mere 'breaking into a warehouse with a felonious intent to steal therefrom property of value, is sufficient to constitute the offense of house breaking without property actually having been taken, and while appellant did not steal anything of value while in the building, according to the evidence, this was due to his arrest before the larceny could be accomplished.</p> <p>2. Instructions — An instruction submitting to tbe jury tile question of whether appellant was guilty of a mere breaking into the building, and therefore of only a trespass-, was not authorized by the evidence.</p>

<p>1. Indictment — Dentists—An indictment charging one with unlawfully and wilfully practicing dentistry without haying a certificate of qualification registered in the county of his residence as required by the Act of 1893-, or in the county in which he practiced dentistry as required by the Act of 1904, is insufficient, if it fails to state that said dentist had obtained his certficate subsequent to the passage of either of said Acts.</p>

<p>Municipalities! — Unsafe Street — Sufficiency of Evidence — In an action against a city for damages for personal injuries alleged to have resulted from- a failure on the part of the city to keep its sideWalk in a reasonably safe condition for public travel, plaintiff testified that she fell into a hole in one of defendant’s streets; that she could not see the hole because of the grass growing around it, and that there was grass growing in the hole from top to bottom. Held, that this evidence was sufficient 'to authorize the submission of the case to the jury on the question whether or not the hole had existed long enough for the city to have known of its existence by the exercise of ordinary care.</p>

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

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

<p>1. Adverse Holding — Where a Party prior to 1850 was shown to have enclosed and occupied a portion of a city’s street and to have continued in such possession thereof for twenty or twenty five years, this was sufficient proof of an adverse holding in the absence of evidence to the effect that hi® holding was amicable.</p> <p>2. Adverse Possession — Acceptance of Deed — Abandonment—A party holding land adversely does not abandon such holding by the ■acceptance of a deed the plain purpose of which was to vest the grantee with title to the land so adversely held.</p> <p>3. Petition — Defect—Cured by Verdict. — Where the petition asserts • damages to land claimed to have been enclosed and held adversely to a city, failed to istate that it had been so held for a period of fifteen years' .prior to the passage of the Act of 1873, requiring written notice of an adverse holding of a city’s streets, alleys or other public easements, but the evidence heard without objection showed such adverse holding-for over fifteen years, and the .question of adverse holding for a period of fifteen years ■was properly submitted to the jury and decided in favor of plaintiff, the error in the petition was cured by the verdict.</p>

<p>1. ¡Costs — The costs in .a proceeding in this court against the Judge of a court to obtain a writ of prohibition are to be paid by him personally when adjudged against him.</p> <p>2. 'Set-off — It is the duty of the Sheriff having in his hands an execution in favor of the plaintiff against the defendant and an execution in favor of the defendant against the plaintiff to proceed with his writs as in other cases unless the judgments are set off by the proper court.</p>

<p>■1. 'Corporations — Reorganization—Suit by 'Stockholder to Set Aside —Appellee finding itself in an involved financial condition effected a reorganization to the plan of Which appellant, a stockholder did not .consent and instituted an action to set it aside. Appellant •by answer pleaded facts showing a re-organization necessary if, the company was to continue in business at all, and that the plan adopted was agreed upon by all the stockholders and parties in interest save appellant. Held, that there is no charge of fraud or unfairness upon the .part of any of the officers or directors of the company, and the plan of re-organization was all that could be done under the circumstances to save the business from wreck and ruin. Biy reason of the re-organization appellant’s stock has 'been given a value which it did not ■hav'e, and no ground of complaint is afforded him because .perchance those who made the re-organization .along the .lines adopted possibly may ultimately realize a profit out of the venture.</p> <p>2. ¡Same — There being no fraud, and the negotiations looking to the re-organization having been conducted, not by the directors, but by the stockholders themselves, the chancellor correctly held that appellant was not .entitled to the relief Sought.</p>

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

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

<p>1. Judicial Sale — Purchase For 'Owner — 'Parol Proof — Parol proof may he heard to show that the purchaser at a judicial sale bought the property in trust for the owner.</p> <p>2. Purchase For Owner — Admission of Purchaser — "Where property was sold at a judicial sale for much less than its value and the ■purchaser often afterwards admitted that he had bought the property in trust for the owner who remained in possession as before, the judgment of the chancellor requiring the purchaser to execute the trust will not be disturbed.</p>

<p>Gaming — Operating Gaming Machine — 'Question for Jury — Appellant was indicted for operating a game of chance or contrivance known as a bird cage, .and on the trial was found .guilty and given an indeterminate sentence in the penitentiary. Held, that the court should have told the jury that if they believed from the evidence that the 'bird cage was a machine or contrivance used for gambling, and that it was operated by the accused, then they should find him guilty.</p>

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

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

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

<p>Appeal — Insufficiency of Record — 'Quashing of Summons — Where, in a suit against a foreign corporation, the summons is quashed on the ground that the person on whom it was served was not a chief officer or agent of the corporation within the meaning of the Code, the record brought to this court should show either ■by order of court, or by bill' of exceptions that it contains all the affidavits, or other evidence heard upon the motion to quash. In the absence of such a showing, it will be^ .presumed that the evidence heard was sufficient to justify the conclusion reached by the court.</p>

<p>1. 'Personal •Injuries — Finding of Jury — Evidence—Bite of Dog— In an action for damages resulting from the bite of a dog, evidence examined and held that the verdict of the jury in favor of the defendant is not flagrantly against the evidence,</p> <p>i. Same — Where Wife Had Nto Interest in Dog — 'Where husband and wife are alleged to be the owners of a dog that bit and injured plaintiff, and are jpintly sued, evidence of a statement made by the wife that the dog would bite that way; that it had bitten her niece, was properly withdrawn from the jury when it developed that the wife had no interest in the dog, and the court for that reason directed a verdict in her favor.</p>

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

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

<p>Tbe court may compel by injunction tbe removal of a fence built by •tbe defendant on Ms own lot to deter tbe plaintiff from prosecuting tbe action against bim to obtain an injunction requiring bim to move from the land certain dog kennels wMcb be maintained there.</p>

<p>1. Under Section 4711a, Kentucky .Statutes, there are two limitations upon the amount to- be drawn hy a sanatorium from the iState: (1) It must not -exceed twenty per cent, of the cost of -erecting and equipping the sanatorium -or an enlargement of it; (2) it must not exceed $350 annually for each -bed maintained in the sanatorium for patients.</p> <p>2. The amount which hasi been expended by the sanatorium in maintenance i® not to be -considered in estimating the twenty per cent, although the plant has been enlarged.</p> <p>3. It i® not necessary that a bed -should be -occupied -continuously; if the bed is- maintained -in good faith for patients it may be counted.</p>

<p>1. A note held by a married woman passes at her death to her personal representative and her husband cannot sue thereon.</p> <p>2. The statute of limitation continues to run after her death and if her personal representative does not Qualify until the right of action is barred, he can maintain m> action thereon.</p> <p>3. An action prosecuted by those who have no power to< sue does not stop the running of the statute.</p>

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

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

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

<p>Fraudulent Conveyance — Action by Creditor to Set Aside — Dower.— In tbis action by a creditor to set aside as fraudulent a voluntary conveyance made by a creditor, shortly before bis death, of , Ms property, real and .personal, in Kentucky, Illinois' and Texas, to his wife. Held, 1st., That the circuit court properly set aside tÜe deed as to the Kentucky property and subjected it to the payment of appellees’ debts. 2nd. It was not error for the court' ’■ to - refuse appellant dower out of the proceeds of the Kentucky lands, as she admittedly received under -the deed from her hus» , band, and in fraud of his creditors, in lands situated in Illinois and Texas, and the proceeds of sale of part of the Texas lands, an amount largely in excess of the value of her dower in the Kentucky lands. 3rd. Although the judgment of the circuit court did not set aside the deed as to the Illinois or Texas lands because they were territorially without its jurisdiction, it did hold the deed fraudulent as to the husband’s creditors, and that appellant had paid nothing for any of the lands, therefore, as the court had jurisdiction of her person and of the Kentucky lands in wMch she was claiming dower, it was but equitable that it ■ should compel her -to account for what ¡she received from a sale of part of the Texas lands in adjusting her claim to dower in the Kentucky lands; especially as it was apparent -that if the deed should be set aside as- to the Illinois -and Texas lands, in actions hereafter brought in those States, there would still be enough left of those lands to satisfy appellant’s dower therein.</p>

<p>1. Statutes — Directory or Mandatory — That portion of the school act ' of March 24th, 1908, now embodied in the Kentucky Statutes as ■sub-Section 8 of Section 4426a, which requires- the Board of Edu-' ■cation -to locate .the first county high school to "be established in ■ the county, at the county seat, provided there is not already existing in the -county seat a high school -of the required grade,. ■is directory in its terms, and not mandatory.</p> <p>2. Statutes — Duty of Trustees' — It is the duty of the Board of Edu-. . cation to follow the istatu-te; hut if, in carrying out the directions of a statute, which i-s- directory only, they fail to comply strictly with its provisions, their acts are not void, hut are irregular only.</p> <p>3. Tax Levy. — In levying a school tax under Sub-section 9 of Section 4426a of the Kentucky Statutes, .the fiscal court has no authority or power to limit the use of the tax -so collected to some particu-. lar territory or part of the county; and such attempted limitation upon the use of the school fund is ineffectual for any purpose.</p>

<p>Islands — Riparian Rights of — In those jurisdictions, including Kentucky, which hare adopted the common law rule that carries the title of riparian owners to the middle thread.' of the stream, an island, 'separately granted by the Commonwealth, and without any right or conflicting claim shown by the owner of the mainland, has all the riparian rights' that • attach to a mainland.</p>

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

<p>Sale — Action to Set Aside — Fraud.—In an action to set aside a sale on the ground oí fraud, the finding oí the chancellor who was on ¡the ground, knew the witness and heard them testify, will not he disturbed where upon the whole case the evidence i® conflicting and such as to leave the mind is doubt.</p>

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

<p>1. Contracts — Stranger—Parol.—In an action to recover articles of personal property, or their value which it is alleged were consigned to an agent on written memorandum of sale, and that he, in violation of his authority, either pawned or sold to defendant, ■the defendant not being a party to the writing, may show by parol evidence that the contract of the parties is different from what it purports to be on the face of the writing.</p> <p>2. Limitation, — Action for Specific Recovery of Personal Property.— An action for the specific recovery of personal property 'is not barred until the expiration of five years after the cause of action accrues.</p>

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

<p>1. Lost Instrument — Action On — Indemnifying Bond. — Section 7, Civil Code for the tender of an indemnifying ¡Bond, Before action is Brought upon an instrument transferable By delivery merely, applies only to such instruments as Bills of exchange, or negotiable paper, which the holder takes free of defenses good Between the original parties.</p> <p>2. Bills and Notes' — -Holder in Due Course. — The holder of a note payable to order and not endorsed is not a holder in due course.</p>

<p>1. Appeal — Death of Party — Revivor—Plea of Limitation — Dismissal of Appeal. — Where a party dies and there is a revivor of the action in the name of his real representative before judgment in his favor, an appeal granted in this court on a statement designating in one case as appellant, and in another as appellee, did not constitute a valid appeal as against hi® real representatives. Nor is an appeal where the statement designates one of the real representatives as executor of the deceased party, effective as to such real representative in his individual capacity. In ¡such a •case the real representatives may be made parties to the appeal by the filing of an amended statement designating them as parties appellee, but if the statement be not filed until the lapse of two years after the rendition of the judgments below, a plea of limitation will be sustained, and the appeal dismissed.</p> <p>2. Amended Statement. — Permission to file an amended statement making the real representatives of the deceased parties appellee, does not deprive them of the right to rely upon the plea of limitation.</p>

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

<p>Title — Action to Quiet. — In an action to quiet title, evidence examined and held to support the finding of the chancellor.</p>

<p>1. Vendor and Vendee — Contract of Sale of Land — Statute of Frauds. —A contract for the sale of land describing it as “her Muddy Creek farm,” the farm embraces 113 acres,” is not void under the statute of frauds for insufficiency of description.</p> <p>2. Specific Performance — Tender.'—Where the vendee offers to comply, but the vendor refuses to convey and announces her purpose not to carry out the contract her contract amounts to a waiver of a proper tender of the purchase money.</p>

<p>1. Monopolies — Criminal Prosecution. — Under the anti-trust laws the gist of the offense consists in the trust or combination enhancing ’ the price of an article it sells above the real value or in depreciating the -price -below the real value.</p> <p>2. Monopoly to Fix or Regulate Prices. — It is- not unlawful for -a monopoly, trust or combination to fix,' regulate -or control -prices provided it does not increase above or depreciate below its real value the article upon which it fixes a price.</p> <p>3-. Evidence — -Sufficiency of to Show Combination or Monopoly to Fix Prices. — When the Commonwealth show® by direct or ' cir- - cumstantial evidence that two or more independent concerns are ■selling the same ax'ticl-e in competition with each other, and that it was being sold at a price fixed by each, and it further shows -that the several concerns so engaged formed a combination or ■trust for the purpose of selling the article, and thereafter it was •sold by a central agency, this will be sufficient to establish the combination to fix prices.</p> <p>4. Evidence — Presumption of Purpose to Fix Prices. — When the formation of the trust or monopoly is shown, it will be presumed to have been organized for the purpose of fixing, controlling and regulating prices.</p> <p>5. Evidence as to Wlhen Monopoly Was Formed. — It is not necessary that the Commonwealth should prove that the combination was entered into within a year -before the finding of the indictment. It will be sufficient to show that it was entered into previous to the indictment and was in existence within one year before the indictment was returned.</p> <p>6 Evidence That Combination Was Entered Into Where Prosecution is Pending. — It is not essential to guilt that it -should be shown that the combination was entered into in the county in which the prosecution is pending, if it is established by sufficient evidence that the combination was entered into in some other county, State or country, and in -pursuance of such combination articles- sold by the parties to it were sold in the county where the prosecution is pending within a year next preceding the indictment.</p> <p>7. Evidence of -Sales Above Real Value — Burden of Proof. — When the Commonwealth has -shown the combination to fix or control prices, evidence of an advance in prices by the -combination under -substantially the -same market conditions that existed before the advance i-s sufficient to sustain a verdict of guilty in -the absence of evidence that the advance was- justified by market condition® or corresponding increase in the cost of production.</p> <p>8. Evidence to- Rebut Necessity for Advance in Price. — -Wjhen the accused offers evidence to justify the advance in price, the Commonwealth -should be allowed to show that the advance was not attributable to market -conditions or increased cost -of labor and material.</p> <p>9. Incorporation — Evidence of. — Incorporation -may be shown by the certificate required by -Section 4545 of the Kentucky Statutes to ■be filed 'in the office of the Secretary of State, or by parol or other evidence.</p> <p>10. Former Acquittal or Conviction. — A prosecution for violation of the anti-trust law® may be had in each county in which the offense, is committed, and this prosecution may be followed by others in each county if the offense is again committed subsequent to the first indictment.</p>

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

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

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

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

<p>One who carnally knows hi-s -half-sister is as. much -guilty of incest, as ¡though she were a sister of the .full hlood.</p>

<p>1. Wills — Finding of Jury — Evidence Considered Undue Influence— Testators Capacity to Make a Wüll.-^This court will not be justified in directing a reversal in a will case because the jury refused to accept certain facts and circumstances proven, as an evidence of undue influence, when considered in .connection with the other evidence offered in support of the testator’s capacity to tmiake a will according to a fixed purpose of his-own.</p> <p>2. Inducement of Testator to Make a Will — Unbiased Mind. — It is needless to enter at length upon a consideration of -the question as to what induced the testator to make the will in the way and manner in which he did, or why he preferred some of the natural objects of hisi bounty to others, for, while it is not such a will as iwe should have made, a jury under proper instructions has found that it was the product of the free and unbiased mind of the testator who at the time was competent to make a will.</p> <p>3. Verdict — ¡Supported by Evidence. — There -being evidence -to sup- ■ port the verdict, unless the court erred to- the prejudice of the substantial rights of the contestants in some of .the particulars herein enumerated, the verdict must be approved and the judgment affirmed.</p>

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

<p>This is a companion case -to that of Pythian Wells against the same • defendants, this day decided. Held in this case that in an action toy a father .against an employer of his infant son for an injury to the son in not providing him a safe place to -work. Held, it was not necessary to allege in the petition that William Morris had ' authority from the appellee to direct or permit Pythian Wells, the son, to assist in washing the tub. This allegation was not necessary, as the petition was- good without it.</p>

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

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

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

<p>1. Contract — Breach—Petition.—A petition is bad which does not show a breach of the contract sued on.</p> <p>2. Guaranty — Action—Petition—'Demui'rer.—In an action on a guaranty that a certain judgment would be paid, the petition not showing that the judgment was unpaid, the demurrer to it was properly sustained.</p>

<p>1. ©ale Place to Work — Negligence of Master. — “It is the duty of the master to .provide his servant with a reasonably safe place in which to work and with reasonably safe machinery and appliances with which to perform the services required by his employment and whether the employes, charged with the duty of inspecting and keeping it in repair were the superiors of the servant or merely his fellow servants, if they failed to exercise ordinary care to see that the machinery and appliances with which he had to work, were reasonably safe and suitable for his use, such failure constituted negligence for which the master was liable in damages if the servant was injured by such negligence.</p> <p>2. ¡Risk Assumed by Servant — Primary Duty of Master. — While it is true that the servant assumes the risk necessarily incident to his employment, the risk thus assumed must be considered with reference to the .primary duty of his employer to furnish tools; and in fact all other instruments, means and agencies necessary to be used in the prosecution of his business, reasonably safe and secure for the purpose used. ^</p>

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

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

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

<p>Jury Trial — -Absence of Conflict in Testimony. — Where there is no substantial conflict between the testimony of the parties, there is nothing to submit to the jury.</p> <p>Timber Contract — Statute of Frauds. — A parol contract for the sale of timber in contemplation of its immediate severance from the land is within the present Statute of Frauds, and no damages may be recovered for its breach, but the party who has received ' the timber under the contract, will be required to pay for it at the contract price.</p>

<p>Physicians — Inability of Person Who Gratuitously Furnishes an Incompetent One.- — A .person or company employing a physician, who by its directions renders gratuitous service, is not liable for his specific acts of malpractice, if reasonable care in his selection is exercised to secure the services of a competent and skillful physician., unless after his incomp etency or unfitness becomes known or in the exercise of reasonable care should have ¡been known, he is retained.</p>

<p>1. Master and Servant — Liability of Master for Wrongful Discharge of Servant Before Term Expires — Construction of Contract. — A contract engaging. a servant “for a term of three years, or as long as he performs his duties in a successful or satisractory manner” does not authorize the master to discharge the servant within the 'term because he is dissatisfied with his service or unless the servant fails to perform .his duties in a good, efficient and workmanlike manner.</p> <p>2. (Same — ¡Sufficiency of Petition by the Servant to Recover •Damages.. — -A petition setting up the contract, and its breach by the master, and averring that the servant was able, ready and willing to perform- his part of the ¡contract, and that he had been unab’.e to obtain employment after bis discharge although he had endeavored to do so, stated a good cause of action.</p> <p>6. Action by Servant, When May Be Brought. — An action by a servant to recover damages for a wrongful discharge may be brought at any time after the discharge; he need not delay until the end of the term; hut he can only bring one action, and in this must recover all the damage to which he is entitled, including that accruing before the trial as well as that which will accrue between the trial and the expiration of the contract,</p> <p>4. (Measure of Damage. — The damage to which a servant is entitled is the difference between the contract compensation and the amount he has earned or that he could earn by the exercise of reasonable diligence to find employment.</p>

<p>Contracts — '.Claim oí Town Marshal for Services [Rendered — Limitation — Provision of Statute. — In an action by a Town Marshal upon ian allowance by the trustees of the town, to recover tne amount allowed, no warrant ¡having been issued for the payment of the ■cláim, it was error for the lower court to adjudge that the claim was barred by the five year statute of limitation, such claim being included in the class of action provided for in section 2514, Kentucky Statutes which allows the action to he commenced within fifteen years.</p>

<p>Judgment on Recognizance — When Court has not Power to Set Aside. — The Circuit Court has no ¡power to set aside a judgment rendered on a recognizance or bail1 bond after the day upon which it was rendered.</p>

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

<p>Injunction — Refused.—Where an injunction has been 'refused in the circuit court, a preliminary injunction will not be granted by the Court of Appeals before a hearing of the ease by that court, suspending the 'building of an addition to the court house.</p>

<p>Appeals — ¡Transmission.—Th© 'Court of Appeals will not require the clerk of th© circuit court to transmit to this court the original papers of a case when an inspection of the papers is not necessary to a decision of the appeal. It will only require such bulky parts of the record transmitted as are so large that to copy them would cause great cost and delay.</p>

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

<p>1. Attorney — Suspension 'From Practice — Supersedeas.—Where an attorney was ordered to pay bis client $275, and suspended from practice until the money was paid, a supersedeas of so much of tbe judgment as suspends bim from practice wi'ln be discharged. Tbe supersedeas should be of tbe whole judgment so that tbe bond will protect tbe client.</p> <p>2. Appeal — itedocketed by Appellee. — The appellee may file an authenticated copy of tbe record in this court and have tbe case placed on tbe docket just as tbe appellant might do.</p> <p>3. 'Error in Transcript — Slupply by Certiorari. — Where a mistake is made by which a part of tbe record is omitted from the transcript, the omitted part may be supplied either by tbe filing of an additional record or by obtaining in this court a certiorari directing tbe clerk to copy it and transmit it to this court.</p>

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

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

<p>1. Aruitration and Award — Mere Agreement or Attempt to Arbitrate — Subsequent Action of One Arbitrator and Umpire.— Where there is a mere agreement to arbitrate, or an attempt at arbitration, the subsequent action of one of the arbitrators and the umpire to consummate the attempted arbitration by an award, is unauthorized and illegal.</p> <p>2. Same — Notice.^-One -arbitrator and umpire are without authority to consummate an arbitration, or to make an award in'the absence of the other arbitrator and without notice to him. ■ -</p> <p>3. Same — Umpire.—Art umpire is one called into the arbitration, to act only after a disagreement between the arbitrators, and while his opinion and judgment as to the points of disagreement must control and determine the award, he has no right in the absence of one of the-parties, and one-of the arbitrators, to act alone upon mere information, from the other party and arbitrator as to what the points- of disagreement -were.</p>

<p>1. Agency — 'Right of Agent to 'Sell Principal’s Goods for His Own Debt. — Where the agent is intrusted with goods to sell for his principal, he has no right to sell or deliver .them in payment of his own debt.</p> <p>2. Principal and Agent — Ratification of Unauthorized Act. — One of' the essential 'elements for the basis of a ratification of an unauthorized act hy an agent is, that the contract, must have beep made in the name of and in behalf of the principal.</p> <p>3. Agency — Estoppel.—Where the principal first brought suit against his agent for the price of the goods, and subsequently brought another suit against the agent’s vendee for the possession of the property, the principal is not estopped to prosecute the suit against the agent’s yendee hy having- theretofore brought’ his suit against the agent for the value of the property, since the vendee of the agent has in no wise been misled by 'any act of the principal.</p> <p>4. Estoppel — Pleading of.' — Estoppel is not a favorite doctrine and cannot he proved under a general denial. To become available as a defense it should be -pleaded.</p>

<p>1. Railroads — Waiting Room — Indictment—¡Sufficeney—Bill of Particulars. — 'An indictment for tbe offense of failing to provide a convenient and suitable waiting room and keep it in decent order and repair, that follows substantially the language of the statute (sec. 772 Ky. Statutes) is sufficient, and no 'bill of particulars may be required.</p> <p>2. Evidence. — In a prosecution under section 72.2, Kentucky Statutes, evidence of preparation to construct a new depot is not admissible.</p>

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

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

<p>Hands — Agreement to Convey — Statute of Frauds — Insufficient Descriptions. — Tire evidence as to what lands are the subject of the contract must be 'contained within the contract. The writing, or memorandum must afford the means of identification; and unless it does, it is within the 'Statute of Frauds. Where no words are used in the writing to give a starting point, nor the description sufficient to authorize parol proof to aid in identifying the land, the writing is within the statute.</p>

<p>Evidence — Testimony of an Accomplice. — Tlie testimony of an accomplice to the effect that the defendant helped him co stead a •box of o-ranges Ss sufficiently corroborated when it appears that the wrappers around the oranges which were stolen, were found in the defendant’s possession and the evidence oh this subject is sufficient to go to the jury when the possession of the wrappers is not explained by the defendant and the jury is warranted from a comparison to ¡find that the wrappers which- the defendant ■had were of the same lot as those remaining in the box.</p>

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

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

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

<p>1. New Trials — Error of Court in Granting May (Be Reviewed. — In an ordinary action, when the trial court sets the verdict aside 'and grants a new trial, the party recovering the verdict may except to the ruling, prepare his hill of exceptions and transcript of the evidence, and prosecute an 'appeal to this court.</p> <p>.2 New Trials — Discretion of Court in Granting. — The granting of new trials is a matter 'largely within the discretion ¡of the trial -court, and unless it appears that this discretion -has been abused it will not be interfered with; and this practice goes to the extent that the judgment granting 'a new trial will not be disturbed, (although this court may foe of the opinion that if the judgment had not been set aside it would affirm it.</p> <p>3. Acceptance of Satisfaction of Second Judgment Does Not Bar Appeal from Error in ¡Setting Aside First Judgment. — When the 'first verdict is set aside by the trial court and a, new trial granted, if the plaintiff recovers a judgment on the second trial for a less amount than lie obtained on tbie first, be may accept satisfaction of tbe second judgment and prosecute an appeal to this court from tbe error in setting aside tbe first; and if tbis court sustains bis contention, it may direct tbe entry of tbe first verdict, to be credited by tbe amount paid on tbe second.</p>

<p>1. Intoxicating (Liquors — 'Sale of in Violation of Law, Evidence of Guilt. — In prosecutions for violations of tbe liquor laws it does not ¡require very ¡convincing evidence to sustain a verdict of guilty, and that a jury lias passed on tbe question we will not disturb its finding if there are any facts or circumstances upon which it can reasonably ¡rest.</p> <p>2. Same — ¡Procuring for Accommodation. — 'One who solely for the accomodation of another and with his money buys whiskey for him, and who is not the agent of the seller and has no interest, direct or indirect, in the whiskey sold, is not guilty of a violation of the local option law.</p> <p>3. Same — Instructions.—'Under an indictment for selling liquor in violation of the local option law, the court may instruct the jury ■that the defendant is guilty if he sold whiskey owned by himself or that he .procured it from another as the agent of such other person.</p>

<p>Action in Equity — 'Chancellor's Finding — Evidence.—In an action enforce ia vendor’s Hen, 'evidence examined and held to support tbe chancellor’s finding that the purchase money had been paid.</p>

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

<p>1. Trustee — ’One 'Suing As — Cestui Que Trust Not Named in Peti-‘ tion.— It was error for tbe 'circuit court to sustain a demurrer to the petition of tbe trustee in an action of trespass to realty on the ground that tbe petition did not contain tbe name of tbe cestui gue trust.</p> <p>2. -Same. — Under section 21 of tbe Civil -Code of Practice, -one suing as trustee is to be regarded as the trustee of ian express trust.</p> <p>3. S'ame — Word “Trustee” Descriptive. — Where the petition does not show that any -other person owns or has an interest in tbe lands in controversy, tbe word “trustee” used in -connection with his name as plaintiff should be treated as merely descriptive of tbe person.</p>

<p>1. fOrrmirual Law — Sufficiency of Indictment. — An indictment against a railroad company for maintaining a public nuisance, in permitting an overhead bridge to become dangerous, and which alleges that the company built the bridge over the right-of-way of the railroad in order to maintain a public ¡highway across it. : and that the bridge was necessary in order to restore the highway ¡ to the condition it was in before the railroad was cut through the highway, sufficiently connects .the railroad with the bridge ■alleged to have been allowed to become unsafe.</p> <p>2. 'Former 'Conviction. — A former conviction of a railroad company under ani ordinance lof a town ¡of a misdemeanor for permitting ■ its bridge to be and remain dangerous, is not a bar to a subsequent indictment for permitting the same bridge to becomfe ana remain dangerous.</p> <p>3. Sam©. — ¡Section 158 of the ¡constitution, ¡which provides that a conviction or ¡an acquittal under a municipal ordinance ¡shall constitute ¡a bar to another prosecution for the same offense refers to statutory offenses and does not embrace the case of a nuisance, i which is ia common law misdemeanor only.</p>

<p>Appeal from Kenton Circuit Court,</p>

<p>Infant Remaindierm'anj — -Deibts of Life Tenant — Application of Corpus of Estate to Payment of. — Where an estate is devised to one for' life with remainder to his infant children, the chancellor has no power to apiply the present cash value of the life tenants interest on any portion of the estate to the payment ¡of the life tenants debts.</p>

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

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

<p>Roads and Passways — Improper Use Thereof. — In a penal action under Kentucky Statutes, section 4325, to recover a penalty against a citizen for damaging a pubilc turnpike road by unusual and unnecessary use thereof in hauling heavy timbers thereon, it is not necessary to allege or prove that the road was, when or before the damage was done, a good road. The object of the statutes is to protect the roads of the State whatever may be their condition, from such unusual use as would maternally damage them.</p>

<p>Surveyor of Comity — Fiscal Court 'May Employ Civil Engineer in ■Place of. — Under section 4672a of ttie Kentucky Statutes, tlie right to perform certain services belongs to ¡the office of the county surveyor, hut this fiscal dourt may in. the exercise of a Sound discretion employ another surveyor or a civil engineer to perform these services.</p>

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

<p>Affirming Upion tbe Evidence. — In an action for tbe recovery for in-juries to a boy who was run over by a train, while several witnesses contradicted the boy as- to the circumstances, the jury evidently believed the boy, and as it was a matter for their determination the judgment will not he disturbed.</p>

<p>Action for Personal Injuries — Evidence—Master and Servant. — In an action for injuries sustained while tearing down an. old building there being no evidence to show that the construction company-doing the work knew of any danger connected with it that was not knioiwn to the appellant, or which by the exercise of ordinary care .could not have been known to him, he is not entitled to ■ • recover.</p>

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

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

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

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

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

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

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

<p>1. (Right to Jury Trial. — Where the court, upon its own- motion, transferred an action at law, to the equity docket, and the order failed to show that appellant had objected thereto, and he, upon ■ a Subsequent day, moved the court to have his objection noted to the order of transfer, but never prosecuted said motion to a determination by the court, but proceeded to prepare the case in equity, and asked the court to try the same, his motion to have (his objection noted of record wild be treated as waived, and- the transfer as having been made without objection.</p> <p>2. Jury Trial — When to be Asked. — Where an action has been transferred to the equity docket without objection, and the 'appellant prepared and tried his -case in equity, it is too late to thereafter aSk a jury trial1.</p> <p>3. Evidence — 'Use of Stenographer’s Transcript. — (Where the official stenographer had made and filed a transcript of the testimony ' given in a former jury trial, and' the court subsequently trans- ■ fexred the case to the equity docket, and referred it to' the 'Commissioner to report under the evidence in the record, and such other 'evidence as might he offered, the order was brtoad enough . to embrace the proof contained in the stenographer’s transcript; )and, as the order was not, objected to by appellee, he could not complain that the commissioner used the 'transcript as a part of the proof.</p> <p>4. (Practice in Equity Oases. — Wlhere the court made an order diKecting- the use, as evidence, of the stenographer’s transcript of a former jury trial, the party objecting to the reading of suchi , proof in evidence should file exceptions thereto, as in other cases, in order to raise the question of ■ its admissibility.</p>

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

<p>Railroad Stations — Maintaining Water Closets at Stations. — ¡Liability for failure under the statute requiring railroad companies -n Kentucky “to provide suitable and convenient waiting rooms and water closets at all depots in cities or towns and maintain them >in decent order and repair,” where the evidence shows that for as much as four days one of the compartments of appellant’s privy was permitted by it to remain in a foul condition and unfit for use, the ease was property allowed to go to the jury and their verdict of guilty being sustained by the evidence it will not be disturbed.</p>

<p>1. Master 'Commissioner — Official Bond — Sureties—.Liability.—Sureties on tbe official bond of a Master Commissioner, are not liable for a defalcation, occurring -after, the expiration of the term- for which the 'bond was given.</p> <p>2. Sureties — Extent of ¡Liability.^Sureties on the bond -of a Master 'Commissioner, are liable only for the amount of the defalcation and interest, together with the costs of the action in which their liability is established. They -are not liable to one aggrieved by the defalcation for costs incurred by him in separate and independent actions-.</p>

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

<p>1. Cities — Land Plotted Into 'Streets and Lots. — The owner of a tract of land having plotted it into streets and lots and filed the plot in the clerk’s office and sold off the lots according to the plot, is not entitled to the land plotted as one of the streets, if the street should not be opened at this point, but the title is in the abutting lot owners to the center of the street as plotted.</p> <p>2. Same. — If a block that is so plotted is 33 feet longer than it is plotted, the excess belongs to the lot owners after sixty years, and cannot be regarded as unsold land.</p>

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

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

<p>Municipal Corporations — Classification of License Fees. — An ordinance providing that all licenses shall be issued for a period of one year dating from January first, .and that a person obtaining a license issued' after the first of January and before the 'first of July should have a rebate for the months in the year that have expired before the license was issued, but that .a person ¡obtaining .a, license after the first of July should pay for Six months, no matter at what time between the first of July and the first of December the license was granted, is upheld as a proper 'exercise of power.</p>

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

<p>Franchises — Omitted from Assessment- — Cities of Second 'Class.— -Suit to Recov-er Taxes. — By the -amendment to -charters -of cities of second class, embraced in section 14, chapter 106, Acts of 1910, franchise taxes -omitted from assessment by a street railway company, may be -sued for and recovered in a direct action by the city.</p>

<p>Railroads — Knowingly iSiuffering Passengers on Train Affected With Contagious Disease. — No liability should attach to. a railroad company for carrying on its train a person affected with measles or other contagious disease in t'he absence of evidence that the officers or servants in charge of the train 'had .some ¡knowledge or notice that a passenger thereon, was afflicted with such disease and failed to exercise ordinary care to prevent contagion ■to other passengers on the brain.</p>

<p>Building -Ghu-roh — Services of Architects. — The congregation and officers of the iCresoent 'Hill Presbyterian ’Church decided to build a new church, employed ¡an architect who prepared plans • . and specifications therefor, estimating the cost including oak : pews, hot air ¡heating 'apparatus-, electric light wiring, fixtures, etc., and including architect fees, lot carpet, organ, etc. Finally ■the church -decided to indifinitely' postpone the building of it. The architects estimated the cost at $14,500-, including their fees and brought this -suit for their services estimating their bill at 3% per cent of the lowest ¡bid for the 'construction of the building which was $17,833. This the church refused to pay. They recovered a verdict for $574.15 from which verdict and judgment the church h-as appealed. .Held, that the architects were entitled to a reasonable compensation for -their services which the jury fixed at .'$574.15.</p>

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

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

<p>1. Liquor Licens&r-fWirit of (Prohibition — Appeal—’Jurisdiction.—A writ of prohibition will not be awarded in the court of appeals requiring the circuit judge to take jurisdiction of an appeal where the amount in controversy is less than the minimum (fixed in the statute, simply because undue advantage was taken <o'f the defendant in the trial..</p> <p>2. (Same — Constitutionality of Appeals. — The statute fixing $25.00, as the minimum of appeals in criminal cases from the judgments of the police court in cities of the third1 class, is not unconstitutional, although appeals are allowed from judgments of justices of the peace where the amount of the fine is i$BO.OO.</p>

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

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

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

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

<p>Appeal from1 McCracken Circnit Court.</p>

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

<p>1. Contract in Restraint of Trade. — A contract in partial restraint of trade will ¡be upheld when it is an incident to and is in support of another contract, or sale, ih which the covenantor has an .interest which is ' in need of protection.</p> <p>2. Same — A contract in restraint of trade will be enforced only when the restraint is no more extensive than is reasonably required to protect the interest of the party in whose favor it is given, and is not so large as to interfere with the interests of the ipublic.”</p> <p>3. Same. — A contract, the sole object of which is to restrain competition, is void.</p> <p>4. Siame — 'Injunction.—Where a laundry owner sold certain portions of his machinery to a competitor and agreed to abandon, within a prescribed territory, the class of business which had been done with the machinery which he had sold, he will be .enjoined from doing that character of work.</p>

<p>1. Verdict Again-s-t the Evidence. — Where the verdict -of a properly instructed jury is flagrantly ’against the weight of the evidence, it will Ibe set aside for that reason.</p> <p>2. Evidence — Surveyor’s Plat.^-Th-e plat is a necessary ¡part of the -s-unveyo-r’s report required by law, ¡and it is, therefore .proper evidence in ascertaining the position of the land described in. the .patent, and what is included within its boundary.</p> <p>3. Boundary- — Locating ¡S-urvey. — In loctating a survey all the -proof as to the marked lines and corners, the original location of the patent as shown by the original survey and plat, -and the quantity of land called for, should be taken into- consideration. Course and ■distance must give way to marked and -established lines or corners found on the ground, and the quantity called for is entitled to less weight as evidence than course and distance; (but, in determining the -proper location of a patent, all the -evidence -should Ibe considered.</p>

<p>Action Upon Note — Error of Commissioner In Applying Payment— Pleading — Prayer for.General Relief. — In an action upon a note, white judgment was not asked for batanee due, under the ©rayer for general relief, the court had the right to .render judgment therefor, and appellants, upon their own motion, had the ease referred t'o the commissioner with directions to ascertain and report the state of accounts, but where the commissioner applied a sum as credit which should not have been applied, it wias error to render judgment in accordance with his settlement.</p>

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

<p>Actions — Equitable Relief — Subsequent Action for Damages — Claims Not Single 'Cause of Action. — Claims for injunctive relief and for 'damages do not constitute a single cause of action. 'While a court of equity, after taking jurisdiction to grant equitable relief, might have retained jurisdiction to assess damages, it does not follow that both claims constitute a single cause of action, or that the ■plaintiff was compelled to 'present both in the same petition.</p>

<p>Lands — Sals of — JSetting Aside ‘Sale — Death of Purchaser’s Wife Not Sufficient Ground to Set Aside Sale. — If tbe changed condition in the purchaser’s family had been brought about Iby any act or mis- . conduct on the part of the litigant to be benefited by the confirmation of the sale, the chancellor would be justified in setting the sale aside. Naturally the chancellor would sympathize with the purchaser in the loss of his wife, but this would not justify him in relieving the purchaser .of the obligation to take the place under his. bid.</p>

<p>1. Written. -Contract — Merger of Piarol. — When a written contract is entered ,'in-to, -the -previous p-aroil negotiations are -merged in the writing, and may not be -shown to vary its terms- in the absence of fraud or mistake.</p> <p>2. 'Stave Contract — Quality—Jury Question. — Under ,a -contract -for the sale -of first -cl'ais-s- staves, the -purchaser Ib-eing authorized to hold fo-r the seller lall ¡second class- ¡starves or culls shipped to him in any -car, it is a question for the jury whether th-e staves- -so refused -by the purchaser were in fact second class or culls.</p>

<p>1. ’Mines and Mining — Injury to Miner — Action by tor Injuries — De- • tense Interposed. — In ian action for injuries sustained while at work in a coal mine, by coming into contact with, poisonous gases, the defense was that the mine was leased to M. who had employed apipellee to. work in the mine. Held, that it appearing that appellee was injured by poisonous gases in the mine, the presence of which, was caused by the failure of appellant, or. those in charge of the anine, to obey the statutory regulations for proper ventilation, the trial court did not err in refusing to allow the lease to M, to 'be read to the jury, and did not err in refusing to give the peremptory instruction ia,sked for by appellant.</p> <p>2. Same — Contributory Negligence. — While there was a contrariety of evidence as to whether appellee was guilty of contributory-negligence in resuming his work in the mine when he did, it was .such as to authorize the submission of the case to the jury.</p>

<p>1. Carrier of Passenger® — Negligence.—'Where a bratoeman on a passenger train opened tbe -door .of tbe car and called out tbe .station, and tbe train slackened its speed and stopped in tbe ■usual' time, these facts constituted an invitation to tbe passenger to alight when tbe train came to a stop, .and were circumstances from which tbe jury might well infer negligence upon tbe carrier’s part, if the passenger was injured in attempting to alight.</p> <p>2. Carrier of Passengers — Negligence—Peremptory Instruction.— Where tbe hrakeman opened tbe door and called out the station, and tbe train slackened its speed and stopped at a railroad crossing, and the passenger went on to the platform of the car about the time the car -started with a severe jerk, and the passenger fell or was thrown from the platform and killed, it was error for the trial judge to peremptorily instruct the jury to find for the defendant.</p> <p>3. Negligence — How Determined. — 1When -the question arises upon a state of facts on ■which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot he determined until one or the other of these conclusions has h-een drawn by the jury. The inferences to be drawn from tbe evidence must either he certain and incontrovertible, or they cannot be passed upon by the court, but should be left to the jury.</p> <p>4. Negligence. — Negligence cann-ot he conclusively established by a state of facts upon which fair minded men may well differ.</p>

<p>1. Peremptory Instruction — Refusal to Give. — A judgment will not -be reversed for the refusal of -the court to instruct the jury peremptorily to find -for the -defendant if the 'defendant’s proof -showed the necessary facts to make out -a -cause of action.</p> <p>2. Automobiles — Injury Therefrom — -Signals.—A -person who- ini due time sees an automobile, cannot -complain that it did not give notice of its approach to a street intersection, and no instruction!, 'should Ibe given in s-ucb event authorizing & recovery for the, failure to give the proper -signal -of its approach to the inter-sect-ion.</p> <p>3. Same — Collision—Injury to Third Person. — If two automobiles collide -to the injury of a third person, and both are in fault, each is liable to such third person; hut if only one is at fault he alone is liable:</p>

<p>1. Land — Adverse Possession. — A vendee' who has not received bis fleed but encloses the land and lives mpon it, is in adverse possession as to the others, though, his possession may not ibe adverse to his vendor.</p> <p>2. Judgment) — (Doubtful Question — Conflicting Evidence. — The Chancellor’s judgment on a disputed question of fact will not be reversed where the evidence is conflicting and the truth of the matter is doubtful.</p>

<p>1. Land Warrant — Failure to Register in Land Office. — 'One wbo enters land under a county court land warrant executing a bond for tibe amount 'due for tbe land and does not pay for tbe land or register bis survey in the land office within tbe time given in the statute legalizing the proceeding, loses all rights under tbe survey.</p> <p>2. Land Patent — 'Failure to Issue in Land Office. — A patent issued ¡more than fifty years afterwards on tbe land warrant and survey is void and may be attached in a suit for tbe land, tibe patent showing on its face on 'what papers it was issued.</p>

<p>Instructions. — In ;an action, for damages for injuries to a horse, the instructions examined and held to have properly presented the law of the case.</p>

<p>1. Railroads — Maintaining Stock Pens. — It is incumbent upon the railroad company to maintain reasonably sufficient stock pens; that is, such as a reasonably prudent person would believe sufficient to confine stock under usual ¡and ordinary conditions there.</p> <p>2. Injury to Stock Escaping. — -There is some evidence that horses are injured in escaping from a ¡stock pen when they were ¡sound before they escaped and appeared injured afterward®, the wounds 'being such as might be inflicted by the spikes 'at the stock pen, ¡and the spikes showing that the horses had been snagged upon them.</p> <p>3. Same — Measure ¡of Damages. — The .measure of damages is the difference in value ia,t the place of delivery of the horses in the snagged condition, and what it would have been if they had not been snagged.</p>

<p>Fences as Division Line. — Where a fence has been recognized by the parties as the division line between their lands, each holding, claiming, cultivating and controlling the land up to the fence on his side for more than fifteen years, the fence will he treated as the division line between the parties ¡although it may not he in fact the true line dividing the lan'd.</p>

<p>Appeal from Magoffin Circuit Court:</p>

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

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

<p>Banks — 'Action by Bank Upon Note — Consideration.—In an action by a bank to enforce a lien upon certain property to satisfy a note, there being a good and valid consideration moving from the husband and wife to the bank in the execution of the mortgage, the chancellor properly directed a sale of the property to satisfy the -debt.</p>

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

<p>1. Cross Examination — Extent—Discretion of Court. — The circuit court bias a wide discretion, as to the extent to which cross-examination. may be carried, and a judgment will not 'be reversed unless •there is a palpable abuse of discretion in the allowance of the cross examination.</p> <p>2. 'Instructions — Item of Damage — Omission.—The jury having found that there was no contract between the .plaintiff land the defendant, it is not reversible error that the court omitted from his instructions an item .of damages on which the jury could not have found for the plaintiff unless they had found that there was ¡a contract between the plaintiff and the defendant.</p> <p>3. 'Contract — Evidence—Relevancy.—The question being whether there was a contract between the plaintiff and the defendant for certain work done Iby her as a member of the family, the fact that tile plaintiff mad© a contract witb tLe bead oí the Saanily for the worK, -and paid the head of the family for it, the payments toeing made with the .Knowledge of the plaintiff land without objection by her, is relevant on the question whether there was a contract between the plaintiff and the defendant.</p>

<p>1. ¡Liens — Repairing Machinery — Claim Against Assigned Estate for Repair of Machinery.— A 'claim for the repair of machinery -which was necessary in order to enable ia contract for the construction of sewers to be carried out was properly allowed, the service rendered 'being such as a mechanic’s, lien could have been asserted for. The man who' renders this .sort of service is as much entitled to the benefit of the statute as the man who hauls lumber to a place ■where a building is being erected.</p> <p>2. Same. — The form of the bond executed is such that it is not necessary for those who furnished labor to the contracting company to first establish a mechanic’s lien.</p>

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

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

<p>Franchise — Assessment—¡State Board of Valuation, and Assessment — * Intangible Property — County Assessor. — The State Board of valuation and assessment wias the proper authority to assess the franchise of the Southern Pacific Company for the year 1906, an'd as that board was required in fixing the value of the franchise •to take into consideration the ¡bond® and other intangible property, the assessor of Jefferson County, where the home office of that company is located, was without authority to assess the company on its Ibionds.</p>

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

<p>1. Decedent’s Estate — Action on Note — Flea of Non Est Factum— Limitation — No Consideration — In an action upon a note executed by a testator and to subject land to its payment, the defense interposed by the administrators, with the will annexed, was 1st, non est factum; 2nd, no consideration; 3rd, the statutes of seven and fifteen years’ limitation — Held, That as to the defense of non est factum, the burden of proof was on appellee, but that as to the other grounds of defense, it was upon appellants.</p> <p>2. Same — As the decedent paid the interest on the note to a date two years after its maturity limitation began to run from the date of the payment of the interest, instead of from the maturity of the note, and as the action was brought before the expiration oi the fifteen years- from the payment of the interest, it was not barred by the statute.</p> <p>3. Same. — The action was not barred by Section 2-5'29,” Kentucky Statutes, which provides that a personal representative cannot ne sued after seven years from the date’of his making a final settlement, the proof showing that the one settlement made by the personal representatives was not a final settlement, and, moreover, that there could not be, under the testator’s will, a final settlement of the estate before the death of his widow, which occurred only a few weeks before the institution of appellant’s action, though more than seven years after the one partial settlement was made by the personal representative.</p>

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

<p>1. "Wills — Property Subsequently Acquirer! — A will made before property is acquired applies -to property thereafter acquired which was owned ¡by the testaitor at her death.</p> <p>2. ©am© — Married Women — Separate Estate. — A married woman’s wiH mad© in 1892 is valid as t© property conveyed to her since the act of 1894, as under that act the conveyance vested in her a separate estate.</p>

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

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

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

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

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

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

<p>1. Conveyances’ — Action to Set Aside — Burden of Proof. — In an action by the children of a deceased grantor to Set ¡aside a conveyance made to -his illegitimate son on the ground that the grantor did not have capacity to ¡doonteact at the time the deed was executed; that it w.as without consideration .and that its execution was procured by fraud on the part of the grantee, the burden of proof was upon the plaintiffs, and the evidence failing to support their contention, the conveyance was properly upheld.</p> <p>2. Consideration.- — -The evidence shows that the conveyance was based on a sufficient consideration. The ‘$-30.00 constituting the -cash payment was much less than the aggregate amount laiptpellee had furnished his father, and the obligation imposed upon to support his father was, -of itself, a good, as well as a valuable consideration.</p>

<p>1. PasS-way — Use Under Claim of BJigbt. — Where a land owner uses a pass-way over the adjoining land of another under a ¡claim of right, and not merely by permission, for a period of 15 years or more, such use ¡ripens into an easement that the law will protect.</p> <p>2. Pass-way — When Destroyed by Union of Estates. — An easement of a pass-way is not destroyed or ¡extinguished by the- union of the • dominant and servient estates, unless the fee in both is acquired and united in the same person.</p> <p>3. Pass-way — Use of by ¡O'wner of -Servient Estate. — Where the owner -of th-e servient estate becomes the tenant of the owner of the dominant estate, and uses the pas-s-way, he was exercising that right as tenant and not as owner ¡of the servi-ent estate.</p> <p>4. F'ass-way — Presumption of. — The us-e of a pass-way over the land ’ of -another for 4-0 years -creates the p-resumption of a grant, and the burden is on the land owner to show that the use w-as merely -permissive.</p> <p>5. -Pass-way — Buying with Notice of. — Where one buys land having ’ " a'pass-way -over it in the form-of a-plainly marked road, he will be charged with notice of the obvious fact that there w-as -a p-ass- , ' way over the .land, and. he. consequently made the purchase sub- ■ j-ec-t to the incumbrance ¡which was then • an appurtenant to' the ' land.</p> <p>6. Pass-way — Permission to Use Same. — The mere fact that the owner of the servient estate never gave, and the persons using the pass-way never asked, permission, is not in itself sufficient to overcome the presumption in their favor arising from the long continued use of the way."</p> <p>7. Damages — Measure of for Obstructing Pass-way. — The measure of damages for the obstruction of a pass-way is the diminution of the value of the use of the property during ibhe time the obstruction continued.</p> <p>8. Testimony — Order of Taking. — Under sub-section 4 of section 317 of the civil code, the trial judge, for good reasons, and in furtherance of justice, may permit piiaintiff to introduce evidence in chief after the defendant has closed1 his case; and, under sections 59-2 and 59® of the Code, the trial judge -may regulate the order of the proof so as to expedite the trial and enable the tribunal to obtain a (dear view of the whole evidence, with as little annoyance to the witness, and as effective for the abstraction of the ‘truth, as may he. This discretion will not he interfered with on appeal unless abuse thereof is manifest.</p>

<p>A judgment will not be reversed on the mere credibility of the witnesses.</p>