Volume 145 — Kentucky Reports

<p>1. Master and Servant — Infant Servant — Dangerous Employment.— Under Section 831a Ky. St., an infant under sixteen years of age may not be allowed to adjust a belt to machinery, and all dangerous set screws must be guarded wher© practicable.</p> <p>2. 'Same — Death, 'of Servant — (Liability of Master. — The master is liable for the death of an infant under sixteen who was caught by a dangerous unguarded set screw, in the course of his employment in the master’s factory.</p>

<p>License to 'Retail Liquors — Refusal of License Board to 'Grant.— A municipality is not liable in damages for the abuse of a discretion on pant of its license board’in failing to grant a license to retail liquor, and where the applicant appeals-to the Circuit Court and the judgment of the license board is reversed, and the city then appeals to the 'Court of Appeals, and executes a supersedeas hond, and the judgment is affirmed, neither the city nor the surety is liable for toss of profits which the applicant would have made had it not been for the ineffective appeal, for the execution of the supersedeas did not have the effect of imposing a liability where none existed.</p>

<p>Appeals from Fayette Circuit Court, .</p>

<p>Deeds — Where a 'Grantee Returned Deed to Himself and Had Deed Executed to Daughter — Estoppel.—'Where a' grantee returned a deed executed to him and had another executed to his daughter which she had recorded, such a transaction was in fraud of his creditors, but binding by' estoppel so far as he was concerned and his children occupied no better position than he did. In view of this the petition of another child upon his death to sell the land ¡Sor a division of the proceeds was properly dismissed.</p>

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

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

<p>1. Infant’s Real Estate' — S'ale of. — Under section 490 of tbe Code tbe court -has no jurisdiction to order a sale of indivisible real property in an action brought by tbe widow against an infant wbo owns tbe property subject to the dower right.</p> <p>2. Sale Under Section 490 of the Code. — Under section 490 of tbe 'Code, tbe estate must be vested, be in possession and owned jointly, before St can be sold upon 'the petition of one of the owners.</p>

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

<p>1. Contracts — Agreement to Purchase 'Canned Goods — Refusal to Receive Shipment — Action for Damages — Evidence.—Under a contract for the sale by a grocery broker of certain canned goods to a wholesale grocer which the latter refused to receive, an action was brought by the broker to recover the amount, less the contract .price that he .solid the goods for; ■ The issue was as to whether the ’contract had been changed by the use of a label other than the one to be used on the cans. Held, That the reading of a letter from the broker’s agent to him stating that the purchaser ■under the contract wanted a certain label on the theory that in writing the letter the agent of the broker was acting as the representative of the wholesale .grocer who contracted for the goods, was error. In writing the letter the agent was reporting to his firm the results of his efforts to induce the acceptance of another brand, and in doing this he was the representative of his firm and not the grocer who contracted for the goods.</p> <p>2. Measure of Damages. — 'In such an action the measure of damages would be the difference between the contract price and the fair market value of the goods upon the date when the seller took post session of them.</p>

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

<p>Contracts’ — ¡Sale of Malt to Brewery — Option for Additional Quantity — Meaning of Word “Needed.” — Where a brewery contracted for 6,CH00 bushels of malt for use in its business and took an option on 2,009 bushels more if needed, the grain company contracting to furnish the malt was ’Under obligation to furnish the .additional 2,000 bushels only in the event it was- needed by the brewery in its business.</p>

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

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

<p>1. ¡Land' — Division.—The law favors a division of land rather than a sal© for division, and a sale will no.t be ordered unless substantial injustice will be done by a partition.</p> <p>2. Sam© — Partition.—iWthiere the owners of one-fourth of a tract ask its partition, and to cut off to them oné-fourth of the land will not substantially injure the owner of the remaining three-fourths, a partition will he ordered.</p> <p>3. Joint Tenant — Improvements.—In making partition, a joint tenant who has erected improvements will be allowed that part of the land on which are his improvements when practicable.</p>

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

<p>1. Tax Sale — School Taxes — Sale by -Sheriff — 'Presumption of Atffibtority. — Where the sheriff sells property for school taxes, th-e presumption is that he was authorized to do so, and the burden is upon the party -attacking the sale lto show the contrary. -</p> <p>2. Invalid Sale — Purchaser—Lien .Section 40&6 Kentucky Statutes.— ■Where a tax is void because of irregularities, the purchaser is -entitled, under Section 4036, Kentucky Statutes, to a lien on the ■property fo-r the amount of taxes and costs paid by him, for which the property is -liable with interest from the time of payment.</p>

<p>Homestead — Fraudulent Sale by Step-son — -Action to Set Sale Aside.— A judgment having been obtained by a step-son to sell a tract of land in which his step-mother owned a homestead, by his assuring her that he did not intend to deprive her of a home and expected her to remain there in the future as in the past; and he having thus had the land sold and taken out a writ of possession and deeded the land to another; on her petition showing these facts, the judgment and sale should be set aside. ■</p>

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

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

<p>1. Land — Rights of Purchaser "When Written Contract for Sale of is Rescinded. — When a written contract for the sale of land is rescinded, the purchaser although he may never have been in the ■possession is entitled to a lien for the purchase money paid.</p> <p>2. Land — Rights of Purchaser Under Parol Contract — Limitation.— A purchaser of land by parol, in possession, has a lien upon the property he is in the possession of to re-emburse him for the amount paid under his parol contract, and the statute does not run against his right to recover the purchase money until the vendor refuses to execute the contract by a conveyance; but, when the vendor refuses to execute the contract, the statute begins to run, and the right to recover the purchase price is barred in five years from that time.</p>

<p>Personal Injury — Action for Damages — Instructions.—Where a child was hurt by being struck with á shovel of coal by appellee’s driver in unloading coal on its father’s premises, an instruction that it was the duty of defendant’s driver delivering coal to exercise ordinary care to discover plaintiff’s peril, was erroneous, there being no evidence to show that he discovered the peril of the child. It was not the driver’s duty to keep, a lookout, hut his duty to avoid injuring any one whose presence he discovered.</p>

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

<p>Master and Servant — Dangerous Place to Work — Inexperienced Boy— Injury — Recovery.—An inexperienced boy, 17 years old was employed to work in a machine shop and was directed by the foreman to oil certain machinery up near the roof of the shop which was from 20 to 35 feet high and in doing so fell and was severely injured. He recovered $750 in damages and the company appeals. Held, that the boy had no warning that the situation was dangerous, that the lower court properly instructed the jury and the verdict is not excessive.</p>

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

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

<p>1. Indictment — Accessory.—Under section 1128 of tbe Kentucky' Statutes, an accessory before tbe fact is liable to tbe same punishment as tbe principal, and may be tried and convicted although the principal be not taken or tried. Tbe principal actor, tbe aider and tbe abettor and tbe accessory before tbe fact, are all principals in tbe first degree, and are equally guilty, and may be so accused and convicted. 1</p> <p>2. Same. — In the sáine indictment a person may, in one count, bo charged as the principal actor, and in another count with being present, aiding and abetting in the commission of the crime.</p> <p>3. Threats. — Upon the trial of a person charged with murder, previous threats made by him against the deceased are admissable in evidence.</p> <p>4. Principal and Accessory — Instructions.—Where a principal would be entitled to an instruction as to self-defense, the accessory is entitled to an instruction as to his defense by the principal, since, in order to convict the accessory, the guilt of the principal must be first established.</p> <p>6. New Trial — What May Be Reviewed. — Under section 281 of the Criminal Code of Practice as amended by the Act of 1910, the rulings of the court on motions for a new trial in a criminal case are subject to exception, and any error of the court in refusing a new trial may be reviewed on appeal.</p>

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

<p>Public Schools — Children Admissible. — A child, who lives with her aunt, making her permanent home there under an agreement between her father and the aunt by which the father surrenders control of the child to the aunt, is entitled to free admission to the public school in the district in which the aunt lives.</p>

<p>1. Ferry — Notice.—Where an applicant for a ferry franchise posted a notice that he would apply for a ferry between points on the river where a ferry then existed, and these facts appeared in his notice, it was insufficient to authorize the court to grant an original ferry license; and, as there was no attempt to show under section 1820 of the Kentucky Statutes, that the established ferry, which was within a city,could not properly do all the business, or that public convenience greatly required a new ferry, the ferry franchise was properly denied.</p> <p>.2 Ferry — Reservation of in Sale. — Where the owners of the land to (which the ferry was appurtenant, laid it out into city lots and dedicated that portion of the land which bordered on the river to the city for wharf pur'poses, and reserved the ferry rights, the grantor retained the fee in the wharf and the ferry right that was appurtenant thereto.</p> <p>3. Same — Abandonment of. — Where ferry rights were granted by •different counties, bordering upon opposite sides of a river, and those portions of the two counties which contained the ferry were subsequently incorporated into a newly created county, and the owners of the ferries had their ferry rights recognized and recorded in the county court of the new county, it was not an abandonment of their original ferry.</p> <p>4. Same — Lease of Ferry Rights Without Consent of County:— Where a statute requires the sale or lease of a ferry right to be made only with the consent of the county court, and such sale or lease is made without the county court’s consent, the ferry franchise is not thereby forfeited or revoked. It is merely revocable by the county in a direct proceeding for that purpose.</p> <p>'6.. 'Same — -Costs.—Where the opposers to the granting of- a ferry claim to own an existing ferry between the same points and are made parties to the proceeding, and successfully contest fthe mover’s right to a ferry franchise, they are entitled to their costs against the unsuccessful mover.</p>

<p>Firing Blast — Frightening Horse — Liability.—One who fires a blast on bis own premises near a blacksmith shop is not liable to the blacksmith for an injury received from a horse frightened by the report, although it had been customary for those operating the quarry to give the blacksmith notice when blasts were to be fired.</p>

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

<p>Demurrer to Pleading — Facts Admitted. — Tbe opinion of tbe court on a demurrer to a pleading ■which admits tbe truth of the facts alleged, applies only when on final hearing the facts are as alleged.</p>

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

<p>Title Bonds — Sufficiency of Description. — Where the description in a title bond is sufficient to identify the property, it is valid. It is not necessary that the writing should contain a survey of -the land, but merely should be such as will serve to identify it.</p>

<p>1. License — Revocation—City of First Class — Sufficiency of Evidence. — In a 'proceeding by a city of the first class to revoke a liquor license, evidence examined and field that tfie License Board did not abuse its discretion.</p> <p>2. License Board — Independent Tribunal. — Tfie license of a city of tfie first class, is an independent tribunal created by law to determine whether or not a liquor license should be revoked, to this end it may hear evidence and determine for itself tfie question without regard to a conviction or aquittal in tfie criminal courts, 1 subject however to tfie limitation that it must not arbitrarily abuse its discretion, a question which tfie courts will determine on appeal.</p>

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

<p>Will — Life Estate — Power of Disposition — Limitation Over Valid.— Testator devised all of his property to his wife “to be hers absolutely to do with as she pleases during her lifetime,” with limitation over of anything that remained at his wife’s death. Held, that the wife took a life estate with general power of disposition, and that the limitation over was valid, and therefore effective as ■ to any property undisposed of by her.</p>

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

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

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

<p>1. Personal Injury — Action for Damages — Sufficiency of Evidence.— In an action for damages for personal injuries, evidence examined and beld sufficient to take tbe case to tbe jury and to sustain tbe verdict.</p> <p>2. Instructions. — Where tbe master directs a -servant to wipe off a machine, and assures him that it will not be put into operation for some time, and the servant relying upon this assurance undertakes the! 'work and is injured because tbe machine was negligently started, be may recover for bis injuries, and it was not error to refuse to qualify the instruction given by adding tbe words “unless tbe danger was so obvious that a person of ordinary prudence would not have undertaken tbe work, for with tbe machine not in operation, there was no danger at all.</p>

<p>1., Contract — Alteration—Defense—Special Plea. — Tbe. defense that a writing has been altered after its delivery by the insertion of words , in it, must be specially pleaded; it cannot be shown under a denial as to the effect oi the writing.</p> <p>2. Probable Alteration. — There being no issue as to the genuineness 'of the writing, the court cannot consider 'evidence merely going tó show that the writing wás probably altered.</p> <p>3. Tontine Policy — Paid Up — Surplus.—Under a tontine policy providing that- at the end of the tontine .period, the .insured would be entitled to a paid up policy and a ¡surplus of $544 in cash, the company cannot show that the surplus was $171, and thus defeat a recovery for. $544. . . ,N ....</p>

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

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

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

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

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

<p>Purchase of Lot — Specific Performance — Action for — Pleading.— Upon an appeal from a judgment decreeing specific performance of a contract where there is no brief on the part of appellants, and the court is not advised as to the grounds relied upon for a reversal, the petition stating a good cause of action, and that • being the only question for consideration, the judgment must be affirmed.</p>

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

<p>Automobiles — Injury to Boy on Street — Action for Damages — Negligence of Both. Parties — Offset.—The plaintiff, a boy 14 years old, was struck by an automobile on a street in the city of Louisville, fracturing his leg, for which he sued the owner for damages. The court instructed the jury that “both the plaintiff and defendant were under the duty to exercise ordinary care, and if both were guilty of negligence there can be no recovery — one negligence offsets the other.” Held, the court meant, so far as the plaintiff was concerned and we cannot say the words were misleading, for the weight of the evidence is to the effect that the automobile was proceeding at a reasonable rate of speed and that warning of its approach was given, but that plaintiff, who was intent on his play, did not heed the warning but rushed suddenly in front of the machine at a time and place when the chauffeur was utterly powerless to prevent the accident.</p>

<p>Damages — Action for Wrongful Taking of Goods- — Evidence—Punitive Damages. — In an action for damages for tke wrongful taking of property, tke question was wketker tke property was taken as ckarged, and tke evidence being suck as to take tke case to tke jury, a verdict for $250.00 will not be disturbed. Tke weatker was cold, tke tkings .taken were all appellee kad, and tke jury was ' authorized to award tke damages sustained, but further damage in tke way of smart money.</p>

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

<p>1. Divorce — Restoration of Property. — Upon tbe granting of a divorce each of the parties should be required to restore to the other any property then held which was obtained from the other by reason of the marital relation.</p> <p>2. Same — Judgment Not Reversible. — A judgment granting a divorce cannot be reversed.</p>

<p>1. Master and Servant — Coal Mines. — It is the duty of the master or mine owner in constructing the track in the coal mine to make it reasonably safe for drivers in the mine in the discharge of their duties, and while exercising ordinary care for their own safety.</p> <p>2. Master and Servant — Duty of Master. — The master is not bound to provide for his servant instrumentalities that are absolutely safe, but he must provide for them instrumentalities reasonably safe; that is, the master must use ordinary care in providing these instrumentalities, and make them as safe as ordinary care would make them.</p> <p>3. Damages. — Where the servant was caught between the car and the wall of the mine, on a curve of the track leading from the entry to the main track, and was slightly injured by being bruised and skinned, but had no bones broken, and received no apparent permanent injuries, a verdict for $600.00 damages is excessive and will be set aside.</p>

<p>1. Corporations — Sale of Shares of Stock — Validity of a Question for the Court. — The validity of a sale of shares of stock in a corporation is a question of law for the court.'</p> <p>2. Same — Seller Cannot Raise Question of Power to Buy. — Where the owner of stock in a corporation sells it to another corporation which is incapable under the law of acquiring the stock, the seller cannot thereafter raise the question of the buyer’s want of power to buy.</p>

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

<p>1. Master and Servant — Liability of Servant to Third Persons. — We do not recognize any distinction so far as the accountability of the servant is concerned between the acts of misfeasance and nonfeasance. If a servant performs in an unlawful manner an act that results in injury to a third person, or if a servant fails to observe a duty that he owes to third persons, and injury results from his fault of commission or omission, he is liable in damages. Eesponsibility attaches to him as an individual wrong-doer, without respect to the position in which he acts or the relation he bears to some other person. It is the fact that the servant is guilty of a wrongful or negligent act amounting to a breach of duty that he owes to the injured person that makes him liable.</p> <p>2. Same — Servant Not Liable for Defects in Machinery Furnished by thei .Master. — A servant is not responsible to third person for defects in machinery or implements that he is merely employed to work with under the direction of the master. If the things furnished by the master are defective or unsafe, the liability for the injury attaches to him-and not to the servant. Therefore, a railroad engineer is not personally liable in an action for damages brought by a fireman who was injured by a defect in an engine furnished by the master.</p> <p>3. Removal of Actions — Motion to Transfer, When May be Made.— When it appears during the trial, or at the conclusion of the evidence for the plaintiff in an action against a resident and nonresident defendant that there is a failure of proof against- the resident defendant, the non-resident defendant may when this condition arises renew a motion to transfer on the ground of fraudulent joinder previously and in due time made.</p> <p>4. Same — Fraudulent Joinder — Test of. — The fact that the trial court direct a verdict in favor of a resident defendant does not conclusively determine the right of the non-resident defendant to removal. This court will consider the whole record, and if upon an inspection we should be of the opinion that the trial court erred in determining that no case was made out against the resident defendant, we will hold it was'error to transfer the case. We would also hold that the order of removal was improper, if it appeared from the record that when the petition was filed the plaintiff had evidence reasonably sufficient to make out a case against the resident defendant, although he might for any reason be unable to produce it at the trial.</p> <p>5. Fraudulent Joinder — Good Faith, Question of Fact. — The good faith of the plaintiff in joining a resident defendant is a‘ question of fact to be determined by the record and not by the words the pleader may use in stating his cause of action. It will be presumed, until the contrary appears, that the plaintiff in good faith believed he had a cause of action against the resident defendant, but this presumption must give way when it is conclusively shown on the trial that no case has been or could at any stage of the proceedings have been made out against the resident defendant.</p>

<p>1. Action — Common Law — Transfer to Equity. — In an action for damages for breach of contract to deliver staves, issues and evidence examined and held to involve accounts so complicated and such detail of facts as to render it impracticable for a jury to intelligently try the case, and that the case was properly transferred to ■equity under the provisions of subsection 4, section 10, Civil Code.</p> <p>2. Sale — Subject to Buyer’s Inspection — Improper Inspection — Mistake — -Fraud—Seller’s Remedy. — Where staves are sold subject to . the buyer’s inspection and classification, the seller may not refuse to comply with the contract of sale because of a mistake of judgment on the part of the buyer’s inspector, but may recover damages equal to the difference between the value of the staves as graded, and their value if properly graded. If, however, the inspection and classification are fraudulently made, the seller may without incurring liability refuse to comply with his contract.</p>

<p>1. Land — Sale—Parol Contract — Vendor and Vendee — Possession.— Tlie vendee in a parol contract for the sale of land holds under his vendor. His possession is not adverse unless he in fact holds adversely and in such a manner as to apprise a person of ordinary prudence that he is holding the land adversely and not under his vendor.</p> <p>2. Vendee in Possession — Lien for Purchase Money — Rent.—When the vendor does not comply with the oral contract the vendee in possession is entitled to a lien on the land for the purchase money with interest, and should he charged with rent on the land considered. without reference to his improvements, from the time that the parol contract was disaffirmed by the vendor, and possession of the land was demanded.</p>

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

<p>1. Damages — Action for — Absence of Evidence as to Wbat Caused Injury — Peremptory Instruction. — In an action for damages for injury sustained in a coal mine, where it was impossible to determine from the evidence of plaintiff wbat caused the car to leave the track at the time of the injury, the court was warranted in bolding that the plaintiff bad failed to make out bis case.</p> <p>2. Sam,e — When Case Should be Taken Prom Jury. — No rule is better settled by the decisions of this court than that, under such circumstances, it is the duty of the trial judge to take the case from the jury.</p>

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

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

<p>Rents — Death.—Personal Representative — Heirs—Devisees—In a Ion? line of cases this court has held that upon the death of the owner of land the right to the rents vests not in his personal representatives, but in his heirs or devisees unless the owner leaves a will which provides to the contrary. Held, that the same rule applies to an administrator with the will annexed.</p>

<p>1. United States Marshal — Authority to Make Arrest — Power to Burn House in Which Person sought is Concealed. — The United States Marshal has the same power in making an arrest as the sheriff under the State statute, neither has power to burn a house in which the person sought to be arrested is concealed, and he and his friends resist with arms the entry of the officer or his posse into the house.</p> <p>3. Insurance Against Fire — Burning House by Officer in Making Arrest. — Release of Insurance Company. — The house having been burned under such circumstances by order of the marshal the burning was unlawfully, but it was not the result of the riot, and the Insurance Company is not released from liability under a clause of the policy exempting it from liability when the loss was caused directly or indirectly by riot or by order of any civil authority.</p>

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

<p>Apportionment Warrant — Paying by Mistake — Voluntary Payment— Cannot Recover in Action Against City — Reason of Rule. — One who voluntarily paid an apportionment warrant which he was not entitled to pay cannot recover the amount so paid in ■ an action against the city, the reason of the rule being that the city makes other contracts and assumes other obligations on the idea that these matters are all settled, and sound policy requires that the loss should fall on the taxpayer who has acquiesced in the assessment and voluntarily paid the money father than litigate the right. This case was concluded by Brand v. City of Louisville, 111 Ky. 56.</p>

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

<p>1. Carrier of Live Stock — Delay.—A carrier of live stock is bound to respect and yield to tbe authority of the federal statute, which prohibits it from keeping live stock on its cars for a greater period than 28 hours without stopping at least 'five hours for feed and water, and a State law which prohibits the running of freight trains on Sunday; and any delay caused by an obedience to these statutes is a necessary incident to the prudent and proper management of the carrier’s business, for which it is not liable.</p> <p>2. Same — Negligence.—Where mules are received in good order, and are delivered at their destination in a bruised and injured condition, the burden is upon the shipper to show, by affirmative evidence that the injury to his mules was due to the negligence of the carrier; it is not to be left to a mere guess as to how the injuries were brought about.</p>

<p>1. Cities — Streets—Adverse Possession. — An action by a city to recover a part of a street or other public easement is not barred by an adverse possession of thirty years unless notice in writing is given the city as provided by section 2546, Kentucky Statutes, and this is true although the adverse possession began a few years before the enactment of that statute.</p> <p>2. Same. — A city may show the acceptance of a street by proof of its long use by the city and the public as a street.</p> <p>3. Same — River Front. — -Where a town is plotted off fronting a river and a street is laid off next to the river, the ground between the street and the water’s edge, passes to th'e town as a public easement unless reserved in some way, although the width of the street as stated on the plot, would not reach to the water’s edge, but only to the top of the bank.</p>

<p>1. Landlord and Tenant — Advancements to Tenant. — Tbe landlord wbo makes advances to a tenant upon an agreement that be shall have a lien upon tbe crop of tbe tenant tberefor may after 120 days from tbe end of tbe term, enforce bis common law lien.</p> <p>.2. Lien Creditors — Attachment Levy. — A lien creditor may take out a general attachment and levy it upon tbe property upon which be has a lien. Tbe case of Garr Scott & Co. v. Lyons, 99 Ky. 672, is overruled.</p>

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

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

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

<p>1. Intoxicating Liquors — Sale of in Violation of Law — Sufficiency of Evidence. — In a prosecution for a sale of intoxicating liquors in violation of the local option law, evidence examined and held sufficient to sustain a conviction.</p> <p>2. Instructions. — In a prosecution for a violation of the loqal option law, the court, besides other instructions told the jury that if they believed from the evidence to the exclusion of a reasonable doubt that the'defendant, Guy Woods, sold any whiskey to Ben Campbell ' and that said whiskey was the property of the defendant, Laswell, or of the defendant and said Woods, or that the said Laswell was ■ interested in the said whiskey, or in the profits of its'sale and that it-was sold with his consent then such transaction was in law a sale by defendant Laswell. Held, that this instruction, together with other instructions given properly presented the law of the ■. case.</p>

<p>1. Intoxicating Liquors — Local Option Law — Violation of — Prosecution — Sufficiency of Evidence. — In a prosecution for the • sale of intoxicating liquors in violation of the local option law, evidence examined and beld sufficient to sustain a conviction.</p> <p>2. Instructions. — In a prosecution for selling intoxicating liquor in violation of the local option law, the court instructed the jury that if the defendant took the money of the prosecuting - witness, whether the. money of the witness, or of another, and therefore delivered whiskey to witnes, such transaction was in law a sale of the whiskey, unless the jury believe from the evidence that the defendant merely, as an accommodation to the prosecuting witness, or to those whose money witness delivered to defendant, took said money and procured said whiskey for witness from another and further believed from the evidence that the defendant was not the owner of the whiskey nor of any interest therein, and was not a sharer in the profits of its sale, and was not acting as clerk or agent of the seller of said whiskey. ' Held, that this instruction, together with the other instructions given properly presented the law of the case.</p>

<p>1. Railroad- — Lookout—Negligence.—Tbe failure of those in charge of. an engine to give reasonable warning of its approach or to maintain a reasonable lookout when the engine is backed in the dark without adequate light upon it at a point in the yards much frequented where the presence of persons on the track should reasonably be anticipated, is negligence for which the company is answerable to one thus run over by the engine.</p> <p>2. Contributory Negligence.- — -One who sits down upon a railroad track and goes to sleep is guilty of such contributory negligence that he cannot recover although there was negligence on the part of those in charge of the train if his danger was discovered too late to avoid injuring him.</p>

<p>Husband and Wife-r-Action for Alimony. — A wife may maintain an action against ber husband for alimony where he has permanently abandoned her although the abandonment has not continued long enough to entitle her to a divorce.</p>

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

<p>1. Judgment — Final Order. — A final judgment or order is such, an . order as at once puts an end to the action; it must not merely decide that one of the parties is entitled to relief of a final character, but it must give that relief by its own force, or be enforceable for that purpose, either without further action-by the court, or by process of contempt.</p> <p>2. Appeal From Interlocutory Order. — An appeal lies to this court only from a final order; an appeal taken from an interlocutory order will be dismissed.</p> <p>3. Judgment — Subsequent Proceedings are Void. — Where the rights of the parties have been litigated and finally disposed of, the trial court has no jurisdiction or authority to permit further pleadings to be' filed, or to take proceedings thereunder; and such subsequent proceedings, including the judgment, are mere nullities.</p>

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

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

<p>1. Judgment — Instruction—Reversal—Evidence.—A judgment will not be reversed for an instruction which did not prejudice the substantial rights of the adverse party under the evidence.</p> <p>2. Land — Boundary—Corners—Instructions.—One corner of a patent is of no more dignity than another. But an instruction giving prominence to tbe beginning corner of the patent is not prejudicial where this corner was agreed upon and the controversy turned on other corners.</p>

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

<p>Appeal from E still Circuit Court.</p>

<p>1. Insurance, Life — Effect of Questions and Answers in Application.— The insured, as a general rule, is bound by the answers he makes to questions in the application for insurance; and if the answers are both material and untrue, the collection of the policy may be defeated, although the applicant may have answered in good faith and without concealment or fraud.</p> <p>2. Same — Knowledge or Belief of Applicant as to Truth of Answers.— If an answer is material and untrue, and relates to some transaction or act that the applicant at some time had knowledge of, the fact that he may have forgotten it when the application was prepared will not save the insurance, if its collection, is resisted upon the ground that the applicant made material and untrue answers. But if the applicant is asked if he had a certain disease, and in good faith ¡answers No, and there is no evidence that he ever knew or had information that he had had such disease, the fact that his answer is literaly untrue will not defeat the collection of the policy.</p> <p>3. Instructions. — When there is evidence showing that the insured when he applied for insurance made answers to material questions that he must have known were untrue, it is proper to instruct the jury to find against the company “unless the jury shall believe from the evidence that said answers or some of them at the time the answers to said questions were made were substantially untrue, and that the defendant acting reasonably and naturally in accordance with the practice usual among life insurance companies under similar circumstances would not have accepted said application and issued the policy sued on if the substantial truth had been stated in said answers, in which event the jury will find a verdict for the defendant, even though the jury shall believe that said untrue answers or any of them, if any such there was, were not made with the knowledge of their fálsity or with the intention to mislead or deceive the defendant company.”</p>

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

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

<p>Land — Action to Quiet Title — Evidence.—In an action to auiet title and for damages for trespass, evidence examined and held that the conditional line between the lands had been agreed on and established between the vendor of appellee and his brother before the purchase by appellant, and that appellee is the owner and in possession of the land in dispute.</p>

<p>1. Evidence — Weight—Finding of Chancellor. — T¿e court gives some weight to the finding of the chancellor and will not, reverse his • finding on the credibility of the.-witnesses or where the truth is doubtful, but it'will consider the 'sufficiency of the evidence for itself, and where the truth is not doubtful will give judgment according to the right of the whole matter. ' ■ ■ .</p> <p>2. Dam in Creek — Injury to Land — Equity.—H., in order to make a road across a creek made a fill in the chahnek and built an obstruction below to hold the fill. This threw the water against the op- , posite bank and B. to-protect his land, made a.like, dam .on that 1 side. H. brought suit against B. to reqpire him. to remove his dam on the ground that it injured.his road. Held, that .as,he who seeks equity should .first do equity, the court should regjjire, both H.. and B. to remove from the channel of the creek all obstructions that they placed in it. " ,</p>

<p>Office — Deputation—-Sale of — Provision of Statutes — Section 3740.— An agreement by a candidate for sheriff before a party convention to appoint one of his opponents to a deputyship at a fixed salary in consideration of the latter’s withdrawal from the contest and assisting him in securing the nomination and election, is not a sale of the office of sheriff, or a deputation thereof within the meaning of section 3740, Kentucky Statutes. • • -</p>

<p>1. Evidence — Sufficiency of. — Where one p.erson attacked another, and there was a conflict in the testimony as to whether the person attacked, stabbed and killed the other during the fight, or subsequently stabbed him after the fight was over, there was sufficient evidence to sustain a verdict finding the accused guilty of murder.</p> <p>2. Newly Discovered Evidence. — A new trial will not be granted upon the ground of newly discovered evidence, where the new evidence is accumulative merely, and the accused fails to show that he has exercised diligence for the purpose of obtaining said- evidence upon the original trial.</p> <p>3. . Trial — Continuance.—An accused will not be heard to say that he was forced into a trial, when he was represented by competent and able counsel, and no motion was made for a postponement of the - - trial.</p>

<p>1. Deed — Reformation, of. — Where a person, by mistake, executes one • of two deeds, when he intended to execute the other deed, the remedy is by a reformation of the deed so as to make it comply with the intention of the grantor, and not by a recession of the instrument. »</p> <p>2. Reformation of Deed. — A person who seeks to reform a deed on the ground of mistake, must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable, continued concurrently in the minds of all the parties down to the time of its execution; and he also must be able to show exactly and precisely the form to which the deed ought to be brought.</p> <p>3. Same. — In reforming a writing, a court of equity exercises one of its highest and most delicate functions, and it should not undertake so important a duty unless the evidence is full, clear and satisfactory.</p> <p>4. Same — Conflicting Evidence. — Where the evidence is conflicting to such an extent that there is great difficulty in determining the weight of it, the finding of the chancellor will not be interfered with by the Court of Appeals.</p>

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

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

<p>1. Land — Division—Homestead.—The law favors the division of land rather than its sale for division of the proceeds, and this rule is especially applied in the case of a homestead which will not be sold, unless the land is not divisible without great diminution of its value.</p> <p>2.' Homestead — Improvement.-—A homestead may be allotted in a tract of 177 acres of land worth $1,500 or $2,000,where the improvements on it are of value only $300 and no peculiar facts exist rendering a sale necessary.</p>

<p>1. Insurance — Life Insurance — Contract—Place Where Made. — An insurance policy is not a New Jersey contract because the policy was issued in New Jersey, when the contract -was made and to be performed in Kentucky.' ‘ ' '</p> <p>2. Same — State Where Made. — A New Jersey statute regulating the amount of insurance that may be issued on a life has no application to a contract made'in Kentucky, the statute having no force beyond the State of New Jersey, and not being referred-to in the policy. . .....</p> <p>3. Industrial Insurance — Plea.—Under., a clause of a policy forbidding industrial insurance beyond, a certain amount, a.plea is bad which merely avers that there was insurance beyond this amount on the life of the insured, and not averring that there was industrial insurance beyond the amount.</p>

<p>Í. Employe — -Discharge of by Employer Because of False and Malicious Statements of Another — Pleading.—In an action by an employe to recover damages' alleged to have been sustained as a result of his discharge, his petition setting out that he was discharged as a result of the false and malicious statements made by Probst to his employer, relative to the manner in which he had discharged his duties, stated a cause of action. . ‘</p> <p>2. Actionable Wrong — Unlawful Interference With One’s Right to Labor. — It is an actionable wrong to unlawfully interfere with one’s right to labor, and it is unlawful to-malte to an employer false and malicious statements concerning the manner in which the employe discharges his duties.</p>

<p>1. Limitation — When Mere Traverse of Plea is Sufficient. — When suit is brought on a note more than fifteen years after its maturity, but there are credits endorsed on the note that take it out of the statute, and the answer denies the payment of the credits and pleads the statute of limitations, a mere traverse of the plea of limitation is sufficient. But if there were no credits on the note, and the plea of limitation was interposed, it would be necessary to set up in a reply matters sufficient to avoid the plea, as, that the payor of the note had promised to pay it, or for some other reason had estopped himself from pleading the statute.</p> <p>2. Evidence — Entries on Books. — Entries on the books of a bank, made ill the ordinary course of its business, and which show that various credits endorsed on a note w.ere in fact paid at the time the credit was endorsed, are competent evidence.</p>

<p>Action to Quiet Title — Where Defendant Exhibits no Title. — Where the plaintiff, in an action to quiet title, exhibits a perfect title to the land, and is in possession at the time he institutes the action, and the defendant exhibits no title, the judgment should be for the plaintiff, (See Young v. Pace, et al., this day decided).</p>

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

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

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

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

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

<p>Local Option — Sale of Whiskey — Delivery.—The sale is made where the bargain is closed, and the property delivered to the purchaser; so where whiskey by the direction of the purchaser is delivered to another to bring to him at his risk the sale is made at the place where the whiskey is so delivered to the agent.</p>

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

<p>Husband and Wife — (Death of Husband — Land 'Owned by Wife— interest of Husband. — In an action against the purchaser of property at a decretal sale owned by Johnson and wife, the husband having died and the count having refused to revive the action in the name of his heirs or personal representatives upon the ground that if he had any interest as tenant by the curtesy, his death, in view of his wife having survived him, terminated such interest. Held, That the ruling of the lower court was correct</p>

<p>Claim and Delivery — Action for Damages — Dismissal Without Prejudice. — No recovery can be had for damages on a bond executed in an action for claim and delivery, where the action is dismissed without prejudice for want of prosecution on motion of the defendant, and no return of the property is adjudged in that action and no judgment rendered for damages for its detention.</p>

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

<p>1. Foreign. Corporation — Fraudulent Transfer of Stock Actionable in This State. — A foreign corporation doing business in this 'State •to whom its stock has been fraudulently transferred by a nonresident debtor, may be sued in this State by a creditor to set aside the fraudulent transfer.</p> <p>2. Prospective Dividends — Liability to Attachment. — A dividend until’ declared has no existence. Prospective dividends which have not been declared cannot be attached under section 439 of the Code of Practice.</p> <p>3. iSltock of Non-resident Debtor — Attachment by Creditor. — Stock held by a non-resident debtor in a corporation created under the ■laws of Delaware but having ics chief office and doin,g all its business in Kentucky, may be attached in Kentucky by a creditor in an action brought under ‘Section 439 of the Code on a return of no property found.</p>

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

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

<p>1. iSlander. — IThere is a marked distinction between slander and libel; many things are actionable when written or printed and ¡published, which would not be actionable if merely spoken, without averring and proving special damage.</p> <p>2. Label. — 'Any written or printed publication which tends to degrade or disgrace the person about whom it is written or printed, or which tends to render him odious, ridiculous or contemptible in the estimation of his friends, or acquaintances, or the public, is libelous.</p> <p>3. 'Slander. — Words are slanderous, or actionable per se, only in case; where they are falsely spoken, and (1) impute the commission of a crime involving moral turpitude for which the party might be indicted and punished; or (2) impute an infectious disease likely to exclude him from society; or (3) impute unfitness to perform the duties of an office or employment; or (4) prejudice him in his profession or trade; or (5) tend to disinherit him. In all other cases spoken words are either (a) not actionable at all; or are only actionable (b) on proof of special damage.</p> <p>4. 'Slander. — It is not slanderous per se to say of another, “.He is a damn negro and his mother was a mulatto.”</p> <p>5. Slander — Special Damages. — in an action for defamatory words not actionable per se, plaintiff cannot recover unless the proof shows that the special damage alleged is the natural, immediate, and legal consequence of the charge, and due exclusively to the publication by defendant. The special damage must flow from impaired reputation; it must be a loss of a pecuniary •character, or the loss of .some substantial or material advantage.</p> <p>6. Slander — Special Damage. — Where a petition states that the defendant falsely spoke of and concerning the plaintiff, “he is a damn negro and his mother was a mulatto,” and that as a direct and proximate result of said false, statement he was permanently deprived of the association of a young lady of one of the best families of the neighborhood, .and of all other young ladies of like families; that his standing in a social and financial way was greatly damaged; that he was no longer permitted to associate with the best people of the neighborhood, .and that said false and malicious statement degraded and reduced .his character and reputation in the estimation of his friend's and the public generally, and rendered him odious, ridiculous and contemptible, it did not state a case authorizing tne recovery of special damages.</p>

<p>1. 'Statute of Frauds — Parol iS'ale of Land — 'Endorsement by Vendor of Check — Memorandum or Ratification in Writing. — ¡The endorsement by vendor of a check drawn by vendee <purporting to be given “for 'lot” purchased by iparol contract, is not a signing by the party to be charged, and is not, therefore, a sufficient memorandum or ratification in writing to take the case out of the statute of frauds.</p> <p>2. Same — (Rescission—(Lien of Purchaser. — Upon rescission of a parol contract for the sale of land, the vendee will not be entitled to a lien for improvements contracted or paid for, but not placed upon the land nor for loose lumber stacked upon the land, but will be permitted to remove the lumber.</p>

<p>Judgments — Action to Set Aside — Presumption.—In an action to set aside a judgment rendered in a former action, the presumption is that the circuit court ruled properly in the former action, and this presumption will prevail where all the record in the former action is not produced.</p>

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

<p>1'. Deeds — Construction of. — The object in construing a deed is to ascertain the intention of the parties, and especially that of the grantor; and, it is well settled, that deeds must he construed so as to effectuate, if possible, the intention of the .parties, or of the grantor, unless inconsistent with settled rutes of law, or of some principle of law, or in violation thereof, or in violation of some rule of property, or there are expressions in the deed which positively forbid it, or render it impossible.</p> <p>2. Same. — Where a father conveyed a tract of land to his four living children of his first marriage, naming and describing them as “his heirs, .and all his heirs hereinafter of the s'econd part”; and after the description of the land the deed contained a .provision that it “includes the full and entire part of the parties of the second part of my real estate and personal property, that is, they are never to receive .any more from my estate, either before or after my death,” the children of a subsequent marriage took ■ no right, title or interest in said land, under said deed.</p>

<p>Railroads — Personal Injury — (Damages1—Action For. — In an action for damages for personal injuries, evidence examined and held that t'ñe verdict is flagrantly against the evidence.</p>

<p>Cities — Suit ior Taxes — Limitation.—Under tbe act governing cities nf tbe first class taxes may be sued on within five years after August 20 of tbe year for which they were levied, and this is true although tbe property may have been alienated after its assessment.</p>

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

<p>Turnpike Company — Liability of, When Part "of Road Is Within City Limits. — If a turnpike company makes a valid contract with a city, by which it surrenders to tne city the control of so much of its road as lies within the city limits, the city and not the turnpike company is chargeable with the maintenance of so much, of the road. On the other hand, although a part of the road is within the city limits, yet if it is a part of the turnpike road, and the'company charges and collects tolls for travel thereon, the turnpike company is liable under the statute for failing to keep it in repair.</p>

<p>Larceny. — Evidence examined, and held sufficient to authorize the jury to 'find the appellant guilty.</p>

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

<p>Cities — Streets—Permitting Street to Become and Remain in Unsafe Condition — Knowledge—Injury to Person Falling Into Hole. — The plaintiff charges that the city negligently permitted its street to become and remain in a dangerous condition, and the evidence showed that the city had knowledge of such condition; in crossing the street she fell into á hole and was severely injured. Held, It is ' the duty of a city to maintain its streets in a reasonably safe con- . dition for public travel is one it cannot delegate to another so as to avoid liability from injury resulting from their defective condition. The evidence showing that plaintiff .suffered great pain, preventing her from doing work and that the injury is permanent and she will be a cripple for life, a verdict for $5000.00 was reasonable, and in the absence of an error prejudicial to appellant’s substantial rights, the verdict will not be disturbed.</p>

<p>1. Contract With Teacher of Public School. — Where a teacher had a contract with the Division Board of Trustees to teach the public school for a term of six months, and the school was discontinued after six weeks, because the school house had been destroyed by fire, the teacher can not recover the salary for the remainder of the term during which the school was not taught.</p> <p>2. School Fund — Pay of Teachers. — Under section 4?07 of the Kentucky Statutes, as amended by section 4505, the public school fund can be paid out to teachers by the county superintendent of schools only when the school has been legally taught, and that fact has been certified by the Chairman of the Board of Trustees.</p> <p>9. Public Schools — School Houses. — Under sub-sections 9 and 11 of section 4426a of the Kentucky Statutes, the building, improvement, equipment and renting of school houses must be done by the County Board of Education; the County School Superintendent . has no authority over those matters.</p>

<p>1. Personal Injury — Action for Damages — Dangerous Machine — Instructions. — Plaintiff was injured while feeding an embossing press, • attached to which was a “trip” used to prevent embossing when the sheet was improperly placed. Though an experienced feeder on other machines she had had no experience in operating the machine which injured her. There was a safe and a dangerous way of handling the “trip.” Held, that as she was .put to work by defendant’s foreman without being warned of the danger as to the handling of the-trip, it cannot be said as a matter of law that she was guilty of contributory negligence.</p> <p>2. Samé — Defective Machinery. — Evidence that parts of a machine not connected with or responsible for plaintiff’s injury were defective, should not be considered.</p> <p>3. Evidence — Catalogue—Cross Examination.- — It is improper to permit a witness on cross examination to read an extract from a manufacturer’s catalogue describing the machine at which plaintiff was injured, even though the witness admits that the description, with certain exceptions, is correct, and where the language read contains the statement, “to operate the Curtis press a pressman and feeder are required. Both can be taught their respective duties in from ten days to two weeks, &c,” thus supporting plaintiff’s claim that experience was necessary in order to enable the feeder properly to handle the press, the admission of the evidence was prejudicial error.</p>

<p>1. Railroads — Personal Injury — Action for Damages — Peremptory Instruction. — In an action for damages for personal injury against a railroad and its engineer, the evidence shows .that the plaintiff, an employe, upon finishing his work, started ior his home, across the tracks in the railroad yards at a time and place' where the presence of persons on the track should have been reasonably anticipated, and that before stepping upon the track where he was injured he saw an engine standing still, and' just as he stepped upon the track the engine was suddenly started without warning of any kind, and injured him, and there is no evidence to the contrary, an instruction directing a verdict in favor of plaintiff was proper.</p> <p>.2. Verdict — Excessive.—In an action for damages for personal injury, evidence as to extent of plaintiff’s injuries examined and a verdict for $8,750.00 held excessive.</p>

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

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

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

<p>1. Breach of Contract — Pleading.—It is a well recognized rule that where a petition in an action for a breach of contract sets up an improper measure of damages, it is not ground for demurrer.</p> <p>2. Verdict — Where it Justly Determines Controversy — Errors—When to be Disregarded. — Where the verdict justly determines the controversy, errors committed .by the lower court, which under other circumstances would justify a reversal, should be disregarded.</p>

<p>•1. Murder, Indictment for — Conviction of Manslaughter — Killing of Wife — Evidence of Ill-treatment — Competency of. — Upon the trial of appellant for the killing of his wife, tbé admission of evidence as to the ill-treatment, by him of his. wife, and of bruises found, after her death, upon her body, and the evidence of the physician as to what appellant told him following the homicide, was competent, serving as it did to illustrate the state of feeling toward his wife at the time of the killing, as well as the motive with which his act in shooting her might have been done.</p> <p>2. Conflicting Evidence — Instructions.—While the evidence was conflicting, it was all properly allowed to go to the jury, and the instructions were in substantially correct language upon murder, voluntary manslaughter, involuntary manslaughter, and accidental killing.</p>

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

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

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

<p>Estate — Identity of Claimants — Finding of Chancellor. — On a question of identity turning on the credibility of the witnesses, the court will not on appeal, disturb the chancellor’s finding supported by the circumstances.</p>

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

<p>1. Insurance, Life — Construction of Application. — Where an application for insurance, and a receipt given for the first premium provided that if the application was approved the insurance applied for would be in force from the date of the medical examination, the approval of the application was under the facts of this case necessary to complete the contract.</p> <p>2. Same — Medical Examination, When Completed. — Where a medical examination is made that shows the applicant not to be a desirable risk, and it is agreed between him and the examiner that the medical report shall be retained until he can submit to another examination, no medical examination within the meaning of the application has been made.</p> <p>3. Same — Application—Construction of. — An application and receipt given for the first premium that state that the applicant will stand insured from the date of the application, if it is accepted, will not be construed to mean that he is insured from the date of the application until it is rejected or approved.</p> <p>4. Same — Application Only a Proposal, Not a Contract. — An application for insurance is merely a proposal, and does not become a contract between the parties until it has been accepted.</p> <p>5. Same — Application—Effect of Delay in Acting Upon. — It is the duty of an insurance company to act with reasonable promptness upon applications for insurance; but if the application whenever acted upon would have been rejected, the delay of the company will not make it liable. If, however, action upon an application that would have been approved is unreasonably delayed, and it is rejected solely because the applicant has died the company cannot escape liability on the ground that it did not accept the application.</p> <p>6. Same — Medical Examiner Agent of the Company. — When a Medical Examiner holds the report of his examination after he has been directed by the applicant to forward to the company, he will be treated as holding it as agent of the company, and the company will be chargeable with any consequences that follow from his neglect in forwarding it.</p>

<p>Decedents’ Estates — Action to Surcharge Settlement of Administratrix. — In an action to require an administratrix to pay back a small sum alleged to have been paid her in excess of commissions to which she was entitled, evidence examined and held that the amount claimed" is too small to authorize the reversal of the judgment, and moreover, there is no equity in appellant’s claim for the further reason that he withheld from the administratrix the sum of ?67.50 to which he was not entitled.</p>

<p>1. Murder — Indictment—Must Not Omit Word Feloniously. — In an indictment for murder the omission of the word, feloniously, renders it fatally defective.</p> <p>2. Instructions — Self Defense. — An instruction on self defense is defective that leaves to the jury to determine whether the danger was imminent. The jury should be told that the accused had the right to act if it appeared to him, in the exercise of a reasonable judgment, that he was in danger of losing his life, or suffering great bodily harm at the hands of deceased. *</p>

<p>Surety on Bond — Protection of the Law — Disclosures Relative to Employees Reliability — Presumption of Surety. — Where the surety on a bond for the payment of money wants the protection of the law, he must give the obligee an opportunity to make disclosures relative to any fact touching his employees honesty and reliability, to the best of his knowledge, and until such opportunity is given it must be conclusively presumed that the surety is satisfied to act upon his own initiative, or on such information as the obligee gives him, and in such case the surety may not escape liability on the ground that the obligee failed to disclose to him information possessed by tbe obligee at the time, which if given, would have increased the risk of the surety and possibly prevented him from signing, the bond.</p>

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

<p>1. Corporations — Rights and Liabilities of a Foreign Corporation. — A foreign corporation that comes into this State for the purpose of transacting business, subjects itself to all the laws of this State applicable to domestic corporations, and is. not entitled to enjoji in this State any privileges, rights or immunities that a domestic corporation cannot enjoy.</p> <p>2. Same — Foreign Corporations — Conflict of Laws. — Whatever privileges, rights or exemptions may be conferred upon a foreign corporation by the State in which it is organized, they do not attach to it in this State when it comes here for the purpose of transacting business, unless under our laws domestic corporations have the same privileges, rights and immunities. •</p> <p>3. Same — Foreign Corpofhtions — •Effect of Dissolution of. — When a foreign corpors tion that has been engaged in business in this State has dissolved hy the voluntary act of its stockholders, the laws of this State applicable to domestic corporations that have been dissolved in this way continue applicable to it. A foreign corporation may have been dissolved in the manner and form provided hy the laws of the State of its organization but it will remain subject to the laws of this State for such period of time and for such purposes as domestic corporations are subject under the laws of this State.</p> <p>4. Same — Action Against, After Dissolution. — Under section 561 of the Kentucky Statutes, the existence of home corporations, and foreign corporations transacting business in this State, is continued after their dissolution for the purpose of enabling them to wind up their affairs and settle up their business; and for this purpose they may not only sue but be sued in contract or tort in their corporate name and capacity.</p> <p>5. Same — Process—Service Upon Officer of Dissolved Corporation.— In an action brought after the dissolution of a corporation, upon a demand created before it was dissolved, process may he served upon the same person upon whom process could have been serve.d before the dissolution.</p>

<p>1. Guardian and Ward — Management of Ward’s Estate. — A guardian must use in tbe management of his ward’s estate such diligence and good judgment as a man of ordinary prudence would usually use in his own affairs.</p> <p>2. Renting Ward’s Land For Part of Crop. — A guardian may rent out his ward’s land for a part of the crops instead of a money rent if he has reason to believe that this is for the best interest of his wards.</p>

<p>1. Equitable Defense — Trial at Law. — When an answer presents an equitable defense and the plaintiff does not ask that the action be transferred to equity, he cannot complain on appeal that the case was tried at law and not in equity.</p> <p>2. Written Contract — Plea—-Failure of Consideration. — In a suit on . a written contract to recover money, the defendant may plead a failure of consideration, and that a part of the agreement was omitted from the written contract by mistake.</p> <p>3.- Lessor — Failure to Keep Property in Repair. — At common law the lessor is not bound to keep property in repair during the time covered by the lease but if he agrees to do so, and does not keep the property in repair, the tenant may abandon it, and terminate the contract when the property becomes unfit for the purposes for which it was intended.</p>

<p>1. Insurance- — Fraternal Society — By-laws—Admissibility of Application for Insurance. — A fraternal society which is under the supervision of a supreme council and secures members through the lodge system exclusively and pays no commissions, no,r 'employs any agents except in the organization and supervision of the work of the local council is exempt from the operation of section 679, Kentucky Statutes, requiring the application, constitution, by-laws, &c., of the society to be contained in or attached to the contract of insurance, before they can be received in evidence, and the fact that the organizer or officers of the local council issued certificates of membership without initiating the applicant, or were guilty of other irregularities in the organization of the council, in violation of the by-laws and rules of the company, did not have the effect of changing the character of the company, and of making it any the less a fraternal society within the meaning of the statute.</p> <p>2. Same — Application—Answers to Questions. — The applicant for membership in a fraternal society may contract that his answers shall be true to the best of his knowledge and belief, and in such a case the law will not add anything further to his undertaking.</p> <p>3. Verdict — Sufficiency of Evidence. — In an action on a certificate of membership in a fraternal society where the company sought to defeat a recovery on the ground of false and fraudulent answers in the application, evidence examined and held sufficient to take the case to the jury and to sustain a verdict in favor of plaintiff.</p>

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

<p>1. Charitable Trust. — Where the owner of land conveyed it to the Master of a Masonic Lodge íór the purpose of a lodge room, Baptist church and a graveyard, thfe deed created a valid trust for charitable purposes, certainly in so far as it provided for a churcli and a graveyard, and the successive Masters of the lodge held the property in trust, and could not sell any part of it in violation of the trust.</p> <p>2. Trust — -Right to Sue. — Where a trust for charitable purposes has been created, the grantor, or any beneficiary, having an interest in the subject of the gift, has the right to enforce, by legal proceedings, a faithful execution of the beneficent objects of the founder of the charity.</p> <p>3. Trust Property — Sale of. — Property held in trust for a charitable purpose under a deed which does not contain a power of sale, can only be sold under section 324 of» the Kentucky Statutes for re-investment in other property, under the same conditions and for like purposes.</p>

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

<p>1. Criminal Law — Carnal Intercourse With Female Under Sixteen Years — Evidence of Other Acts — Practice.-—Under an indictment for having carnal intercourse with female under sixteen years, the Commonwealth may introduce evidence of several acts of intercourse, but should be required to elect before the trial begins which one of the acts it will r|dy on to secure a conviction, and evidence of the other aojs' is only admissible in corroboration.</p> <p>2. Same — Duty of Court to Admonish Jury as to Effect of Other Acts. — When evidence is introduced that the accused has committed the crime on more than one occasion before the finding of the indictment, the court should at the time admonish the jury thay they cannot convict the accused for the commission of these corroborating acts, and that the evidence relating to them is only admitted for the purpose of corroborating the evidence to show the defendant guilty of the crime the Commonwealth has elected to try him for.</p> <p>3. Same — Instructions.—The court should also in the instructions confine the consideration of the guilt or innocence of the accused to the act selected by the Commonwealth, by pointing out that they must believe that he committed this act before they can find him guilty.</p>

<p>Fiscal Courts — Right to Employ Jailer as Custodian of Public Buildings — Objection by County Court. — Under Kentucky Statutes, section 198, the fiscal court of a county has the right to employ the jailer of the county as the custodian of the public buildings, court house, jail, &c., and to pay him a reasonable compensation for his services, and if the county judge is not satisfied with the action of the fiscal court he should have taken an appeal from the order of said court as is authorized by the Statute.</p>

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

<p>Land — Action to Quiet Title — Failure to Prove Title. — In an action to quiet title brought pursuant to section 11, Kentucky Statutes, failure to prove legal title either by record, or adverse possession, will defeat a recovery.</p>

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

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

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

<p>1. Railroads — Laborers Moving Cars — Notice.—It is not necessary - that each, laborer engaged in unloading a car on a side track should be notified that the car is to be moved; it is sufficient that such notice be given as would reasonably apprise all of them of the fact.</p> <p>2. Peremptory Instructions — Question :for Jury.' — When there i& any evidence the question is for the jury and a peremptory, instruction should not be given.</p> <p>3. Laborers — Unloading Cars of Crushed Rock — Care 'of Trainmen. — Where it was customary for laborers unloading cars loaded with ■ crushed rock to remain on the cars when moved, and the trainmen knew this, and only notified them to move the wagons away, it was incumbent upon the trainmen to use ordinary care for their safety.</p> <p>4. Same — Risk Taken. — But if the trainmen notified the laborers to get off the car then by remaining on it contrary to directions, they took the risk.</p> <p>5. Coupling Cars — Bump—Absence of Care. — A bump made in coupling cars to make the company liable must be not only unusual and unnecessary but of such violence as to show a want of ordinary care in handling the train. .n</p>

<p>1. Life Insurance — -Premium—Provisions of Policy. — Under a policy issued before .tbe adoption of section 659, Kentucky Statutes, tbe rights of the policy holder who fails to pay a premium must be determined 'by the provisions of the policy, although -a change in 'the non-forfeiture provisions of ’ the' policy was made after the passage of the statute.</p> <p>■2. Extended Insurance — Reserved Surplus. — The fact that a life insurance company reserved 20 per- cent, of its surplus annually in declaring dividends, does not. entitle the policy holder to-extended insurance because of this fact.</p> <p>3. Reducing Rates — Statute Not Retrospective. — A life insurance company may reduce its rates, and this does not affect policies previously issued. The statute is not retrospective.</p>

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

<p>Jurisdiction — Amount in Controversy — Sham Pleading. — The plaintiff in an action cannot confer jurisdiction on this court by the mere statement that he has been damaged exceeding $200.00, when the body of his pleading and the facts therein stated that constitute the cause of action show that he has not been damaged in that amount and under no circumstances could recover that sum if he should have judgment for all that the averments of the petition show him entitled to. There must be a real controversy between parties, involving an amount sufficient to give this court jurisdiction before an appeal will lie.</p>

<p>1. Railroads — Duty to Licensee on Tracks. — It is the duty of a railroad company when moving an engine and cars upon its tracks, where the presence of persons using the tracks as a matter of right or as licensees must be anticipated, to give warning of the approach of the train, to operate it at a reasonable rate of speed, and to keep a lookout. This care is not only exacted at places where the public have a right to use the right of way and tracks, but is also exacted at points on its road in cities, towns ana populous communities where the public generally have been in the habit of using with the knowledge and consent of the company its tracks and right of way.</p> <p>2. Same — Duty Where Licensees use Tracks, Not Always the Same.— It does not follow from the fact that licensees with the knowledge and consent of the company use its tracks and right of way during certain hours of the day or during the entire day, that they will be used in the same manner during the night or that the company owes in day and night the same degree of care.</p> <p>3. Same — Distinction Between Duty to Person Using Tracks as a Matter of Right and as Licensees. — There is a distinction between the duty owing by a railroad company at all times during the day and night and under all circumstances at places Where travelers have a right to be, as on public crossings, and the duty it owes on its private premises and yards, set apart by it for its own use and business. 1</p> <p>4. Same — -Duty of Company Varies at Places Where Public Have Not the Right to Be. — When a railroad, company permits large numbers of the public to habitually travel its tracks and right of way, it must take care not to injure them; but this undertaking only embraces those periods in which the public is in the habit of using the premises, and does not apply, at all times.</p> <p>5. Same — Person Who is injured Must Show Company Owed" Him Duty — Where a person claiming the rights of a licensee is injured, he must show that the public was in the habit of using the tracks at the time he was injured. It is not sufficient to show that the public used this place at other times in the day or night.</p> <p>6. Same — Trespasser—Duty to. — There is no duty of lookout or warning due to a trespasser. The company is only required to exercise care to save him from injury after his peril is actually discovered.</p> <p>7. Same — Lookout Duty — Sufficiency of. — When the lookout is required, it means such a lookout as will be effective for the purpose intended and reasonably sufficient to discover the peril of persons on the track, as well as to stop the engine or train as soon as it can be done by the exercise of reasonable care, when warning or notice of the danger is given.</p> <p>8. Same — Lookout in the Night — Sufficiency of — Backing Engine.— Where an engine is backing in the night, there should either be a light on the end of the tender, ór brakeman stationed there with a lantern, or a brakeman with a lantern walking in front of the moving engine. The fact that the engineer may be keeping a lookout is not sufficient.</p> <p>9. Contributory Negligence. — Where a person who is injured goes upon the track so close to an approaching engine that injury to him could not have been averted by those in charge of the train if a reasonable lookout had been observed, he cannot recover.</p> <p>10. Intoxicated Person — Bights of, When Injured. — If a person by reason of intoxication fails to exercise such care for his safety as might be ordinarily expected of a sober person of ordinary prudence, and by reason of such failure is injured, he cannot recover.</p>

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

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

<p>Criminal Law — Homicide—Conspiracy to Murder — Sufficiency of Evidence.' — In a prosecution of several defendants jointly indicted for murder committed in pursuance of and during tbe continuance of a conspiracy to commit tbe crime, evidence examined and beld sufficient to sustain a conviction.</p>

<p>1. Land — Title to — Fraudulent Erasure of Grantee’s Name from Deed — Insertion of that of Another. — In an action alleging that the name of the grantee in a deed was fraudulently erased and that of his son entered instead of it, the evidence supporting such allegation, the count properly reformed the deed so that the proper owners might be given possession of the land.</p> <p>2. Same — Purchaser tinder Such Deed — That Purchaser Paid Value and Had No Notice Not Material. — Where no title, legal or equitable, passed by a conveyance to the purchaser, for the reason that the title was in another person than the vendor,', the fact that the purchaser paid value and had no notice is immaterial.</p>

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

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

<p>Criminal Law — Confederating—Sufficiency of Evidence. — In a prosecution under section 1241a, Kentucky Statutes, for banding and confederating together, for .the purpose of intimidating another, evidence examined and held insufficient to sustain a conviction,</p>

<p>1. Schools — County Board of Education — Dismissal of Teacher — Action for Damages. — For unlawful dismissal a teacher may maintain an action for damages against the County Board of .Education, but the extent of its liability is the amount of salary due under the contract and where on appeal to this court it appears that the amount due is only $132.50, the appeal will -be dismissed.</p> <p>2: Same — Division of District. — An educational division of a district not being incorporated, cannot be sued, but the trustees of such division may be sued.</p> <p>3. Misjoinder — Parties Defendant — Motion to Elect. — In an action for damages by a teacher for unlawful dismissal, the County Board of Educational and the trustee of the school may not be joined as parties defendant where the action against the trustee -is based on his personal -tort in locking the school house door and preventing the teacher from teaching. In such a case a motion to elect- is proper.</p>

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

<p>Statutes — Conflict Between Special and General Acts. — Where a special act passed- before the adoption of the present constitution gave the sheriff as compensation for collecting a railroad tax that must be treated as a part of the tax collected for county purposes, greater compensation than is allowed by the general law for collecting the county revenue, the special act although not expressly repealed was repealed by implication, and the sheriff is only entitled to receive the compensation authorized by the general law.</p>

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

<p>1. Gifts — Right of Donee to Testify After Death of Donor. — The donee cannot testify after the donor’s death against his executors to establish the alleged gift.</p> <p>2. Same — Where Gift Becomes Complete. — The gift is not complete where the donor tells the donee that he has placed ten bonds in his box in the safety vault of the bank for her, and that his exr ecutor would deliver them to her after his death, adding that he had given them to her.</p> <p>3. Same — Enforcement as a Parol Trust. — Nor can such a gift be enforced as a parol trust, no ten bonds being found in the box answering the description given.</p>

<p>Master and Servant — Injury to Servant — Verdict—Knowledge by Servant of Danger. — A verdict in favor of the servant on account of injuries received in falling through an open hatchway will not be disturbed on the ground that the servant must have known of the danger, where under the evidence for him the facts do not charge him with such knowledge, although the facts shown by the defendant’s evidence would do so, the jury having credited his witnesses rather than the witnesses for the defendant.</p>

<p>Tobacco Contract — Pooling Tobacco — Breach of Contract — Action for Damages — Recovery Denied. — Appellee pooled his crop of Burley tobacco at a price to be fixed by the appellant Society for like grades, in default of which he agreed to pay said Society as liquidated damages, 20 per cent of its value for the benefit of the Society. He failed to deliver it, but shipped it to Louisville and sold it on the brakes for $329.24 net. In an action by the Society for damages for the breach, held, that appellee by his wrongful act deprived himself of whatever benefit that might have accrued to him under it, and subjected himself to the penalty of damages for its breach, and also deprived himself of whatever benefits that might have accrued to him in the way of stock subscriptions and subjected himself to the* penalty and damages for its breach, and these damages are recoverable not in performance of the contract, but because it was not performed.</p>

<p>Written Contract — Alteration Thereof — Issue As to Genuineness. — The defendant cannot show an alteration in a written contract without putting in issue its genuineness.</p>

<p>1. Wills — Beneficiaries—Consideration by Testator — Children or Grand-children. — Where a testator in making his will instead of naming his grand-children (though a number of them were then living), he invariably deals with them in groups and to stand in the place of the deceased child who otherwise would have been his devisee; held, it is manifest that he intended to deal with classes rathér than individuals when considering the offspring of his children, no grand-child is named while each child is named. Held, that his children and not his grand-children were the beneficiaries of his will.</p> <p>2. Advancements — Consideration Thereof. — Advancements unless charged in the will can be considered only in the distribution of undevised estate.</p>

<p>This case is reversed for the reasons set out in another case between the same parties decided this day and is remanded for the entry of judgment in conformity to the principles in the opinion mentioned.</p>

<p>Gift — Diamond Ring — Lover to Affianced — Objection by Mother — Death of Husband — Suit by Administrator to Recover Ring. — A husband prior to marriage, gave to his intended wife a large diamond set in a heavy gold band, as a finger ring, which on account of her youth her mother objected to her wearing or keeping, and caused it to be returned to her husband. He gave it back to her and wrote to her that if her mother persisted in her objection he would wear it until they were married when he would have it made into a brooch for her. He lived only a short time after their marriage, and 'after his death his administrator sued to recover the ring from his widow. Held, the evidence shows the gift, that he wore it after the marriage is not enough to indicate that it was given back to him.</p>

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

<p>1. Acknowledgment to Deed- — -When Cannot be- Assailed by Parol Testimony. — Where an acknowledgment to a deed is made before a proper officer, his certificate as to when and how it was acknowledged cannot be assailed by parol testimony contradicting it, or that the clerk failed to explain it to the wife.</p> <p>2. Same — -Action to Cancel Deed — Evidence.—In an action to cancel a deed and notes on the ground .that their execution was procured by threats of a criminal prosecution, evidence examined and held that the execution of the deed and notes was voluntary and in consideration of a debt owing to the company to which they were executed.</p>

<p>Cities — Constructing Sewer in Street — Damages to Adjacent Cellar-Recovery Denied — In an action by plaintiffs against tbe city of Covington, Kentucky, for damages to tbeir property in the construction of a sewer in tbe street which they claim flooded their cellars, held, that measured by the rule laid down in the case of Ewing v. City of Louisville, 140, Kentucky 726, the injury of which they complain is in fact of a temporary character that could be reniedied by cleaning the sewer, and the instructions of the court on thé measure of damages authorized the jury to give plaintiffs all they were entitled to under the pleading.</p>

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

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

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

<p>Pees of Commissioner in Judicial Sale. — Under section 1740 of tlie Kentucky Statutes, which empowers the court to allow the commissioner a fee not exceeding $5.00 for each additional tract of land sold under the same decree, the court has no authority to allow the extra fee, where the tract of land, consisting of 11,000 acres, was composed of 64 separate tracts, each of which was described, .the tracts, however, being contiguous, and having ¿11 been sold to the same person at one time.</p>

<p>Contract — Reformation ■ of — Mistake—Recovery of Money. — In an action to reform a contract on the ground of mistake, and to recover money paid by mistake, evidence examined and -held to sustain the finding of the chancellor denying the recovery.</p>

<p>1. Specific Performance — Contract for Sale of Land — Plea that Contract was not Binding — Evidence.—In an action to enforce specific performance of a written contract for tbe sale of land, a plea by the purchaser that the contract was signed with the agreement that it was not to be binding, must be supported by clear and convincing evidence, and where the evidence fails to come up to this requirement, the finding of the chancellor against such plea is proper and will not be disturbed.</p> <p>'2. Same — Delivery—Agent.—A delivery of a contract for the sale of land to the vendor’s agent is sufficient.</p> <p>3. Deed — Tender.—When the contract of sale provides for the delivery of the deed not later than June 20th,' a tender on June 21st, is sufficient, w'here the vendor’s agent called at the purchaser’s home on June 20th with the deed and searched for him all afternoon, and was unable to find him, though he was in the vicinity of his home, and it appearing that time was not of the essence of the contract.</p> <p>4. Principal and Agent — Parol Authority — Sale of Land — Agency of Husband. — Where husband and wife are joint owners of a tract of land, and the husband is authorized by his wife to sell the land, a contract between him and the purchaser and signed by him alone without disclosing his agency, will bind them both, as his agency and authority may be established by parol evidence.</p>

<p>Held, that the original opinion in this case decided November 5, 1910, should have been reversed and that the judgment of October 26, 1910, was properly affirmed. -As both appellants and appellees won in part and lost in part, only one-half of the cost of the transcript of the appeal should be taxed as costs and paid by appellee. Judgment of October 26, 1910, is affirmed and judgment of November 5, 1910, is reversed and cause remanded for proceedings consistent with our former opinion.</p> <p>Note by Reporter — Original case decided October 3, 1911. See Advance Sheet No. 3, page 250 (Vol. 145).</p>

<p>1. Courts — Special Terms of Circuit Courts — Constitutional Law.— Tbe constitution does not mention special terms of the Circuit Court, but this fact does not furnish any reason why the legislature should not make provision for them. The well established principle controlling State legislation is that the legislature has authority to pass such laws as are not prohibited by the constitution.</p> <p>2. Same — Special Terms of Circuit Court. — The legislature in section 964 of the Kentucky Statutes gives to the circuit judge, or the judge holding the regular term, the right to order a special term whenever it is necessary to transact the business of the court. There is no limitation imposed by the statute upon the authority conferred.</p> <p>3. Same — Presumption That Special Term is Necessary. — The presumption is that a special term will not be called unless in the judgment of the judge it is necessary for the transaction of the business of the court; and, this presumption cannot be overcome by showing that a case set for a special term might be disposed of at a regular term, or that the court docket was not so crowded as to make the calling of a special term necessary.</p> <p>4. Same — Courts of General Jurisdiction. — The Circuit Court is a court of general jurisdiction, and the presumption of validity follows all orders and judgments made and entered by it, except in cases in which the statute has expressly pointed out that certain facts must appear in the record before it can have jurisdiction.</p> <p>5. Evidence — Non-expert Witnesses in Criminal Cases. — Non-expert witnesses who have qualified themselves by observation of and association with the accused are competent to express an opinion as to his soundness of mind at the times they had opportunity to and did observe his traits of character, although they may not be able to express an opinion as to the condition of his mind at the immediate time of the act under investigation.</p> <p>6. Same, — -Non-expert witnesses who have qualified themselves to speak may in addition to expressing an opinion as to the soundness of mind of the accused, express an opinion as to whether or not he had mind enough to know right from wrong.</p> <p>7. Insanity — “Paranoia,” a species of insanity, is not so singular an ailment as that no person except he be versed in diseases of the mind is qualified to speak concerning it.</p> <p>8. Same — Legal Test of Non-responsibility. — In every case where in- . sanity is a defense', the accused is allowed the widest latitude in bringing before the jury the peculiarities of the particular affection he is suffering with; but, when he has done this, he mtist submit to the inexorable test that it is only mental unsoundness or mental disease that will save him from the consequences of his act.</p> <p>9. Same — Moral Insanity. — We do not recognize moral insanity as an ■ excuse for crime. The insanity that will excuse violations of the law must be. the result of mental disease.</p> <p>10. Criminal Law- — -Insanity—Instructions.—An instruction that the law presumes every man sane until the contrary is shown by the evidence, and, before a defendant can be excused on the ground of insanity the jury must believe from the evidence that he was at the time of the killing without sufficient reason, to know what he was doing or' had not sufficient reason to know right from wrong, -or that as the result of mental unsoundness he had not then sufficient will power to govern his actions by reason of some insane impulse which he could not resist or control is proper.</p> <p>11. Criminal Law — Instructions—“Malice aforethought.”- — It is usual and proper in cases in which the facts authorize an instruction !.' iipon the subject .‘of> capital púnishment and the degrees of the offense, to define in the instructions the words “malice afore- ■ thought,” but the omission of these words, in a case in which the evidence shows the defendant to be guilty of murder or nothing, is not prejudicial.</p>

<p>Municipal Corporations — Duty of City Marshal in Respect to Collection of Taxes — Estoppel.—It is the duty of the marshal in a city of the fifth class under section 3629 of the Kentucky Statutes to collect as promptly as he can and within the time and manner provided by law, the taxes placed in his hands for collection. But when the city council appoints a committee, which takes possession of the tax books and refuses to return them to the marshal the council is estopped by the act of its committee from seeking to hold the marshal responsible for uncollected taxes that he might have collected except for its action.</p>

<p>1. Carrier — Express Company. — A regulation of an express company, by wbicb it distinguished its principal or larger offices from those kept in smaller towns, by .keeping a night agent in the larger offices, and closing the smaller offices after business hours, and in delivering freight after office hours consigned to an office which is not a night office, carried the freight to the nearest night office, where it was held until the next day, and then carried to its destination, is a reasonable regulation, and will be upheld.</p> <p>2. Instruction: — It is error to give an instruction based upon facts which, although probably true, have not been supported by 'testimony tending to establish those facts.</p>

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

<p>1. Appeal from Quarterly to Circuit Court — Reduction of Judgment— Costs of Appeal. — When the defendant appeals from a judgment against bim in the quarterly court, and succeeds in the Circuit Court in reducing the judgment, it is within the discretion of the Circuit Court to adjudge against him the cost of the appeal.</p> <p>2. Same — Filing Amended Petition — Discretion of Court. — On an appeal from the quarterly court to the Circuit Court the Circuit Court does not abuse a sound discretion in allowing an amended petition to' he filed on the trial which merely increases the amount of the recovery and changes in no way the character of the action. .. ■</p> <p>3. Same — Recalling Witness — Discretion of Court. — The Circuit Court has a discretion as to allowing a witness to be recalled and a judgment will not be reversed for'his refusal to’ allow a witness recalled unless there is an abuse of discretion.</p>

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

<p>1. Schools and School Districts — Vesting Title of Property, Discretion of Trustees. — Under section 4484, Kentucky Statutes, the • county court and Board of Trustees of the Seminary have a discretion and where they do not consent that the county seminary property shall vest in the graded common school district, the court will not control their judgment as the statute confides to them the determination of what is best for- the educational interest of the county.</p> <p>2. Same — Statutory Provisions — Use by High School. — Where they do not consent the property passed under section 323 Kentucky Statute for the benefit of the common .schools of the county, and upon the petition of the county authorities, may be adjudged to the use of the county high school.’</p> <p>3. Same — Reversion to Original Owner. — Section 323, Kentucky Statutes does not affect property which reverts to the original owners, it only acts upon the property of the society, but where there is no reverter the property passes under this section.</p>

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