Volume 146 — Kentucky Reports

<p>1. Mortgages — Security for Advancements. — A mortgage given in good faith, for a specified sum, as security for future advancements, is valid to the extent of the amount specified.</p> <p>2. Same — Unrecordahle Mortgage — Who Cannot Take Advantage of It. — One who is not a subsequent purchaser for value, without notice of the mortgage, cannot take advantage of its being an unrecordable instrument. While the mortgage was not acknowledged as required by the statute, and was not given force because it was recorded, it was good as between the parties to it.</p> <p>3. Same. — Proper acknowledgment was not necessary to make the' mortgage valid as against an outstanding equitable lien, as the mortgagees had no notice at the time they took it.</p>

<p>Appeal from Boyd Circnit Conrt.</p>

<p>1. New Trials — Jurors.-—The fact that a juror is a third or fourth cousin of one of the members of an incorporated board that is a party to an action, will not entitle the losing party to a new trial, although he did not discover the relationship until after the verdict.</p> <p>2. Same — Finding of a Properly Instructed Jury. — This court will not disturb the finding, of a properly instructed jury, where there is sufficient evidence to support the verdict.</p>

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

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

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

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

<p>1. Local Option — Section 2557b, Kentucky Statutes — Offense of Haying Intoxicating Liquor in One’s Possession for tbe Purpose of Sale in Local Option Territory. — It is not necessary to sustain a conviction under section 2557b, Kentucky Statutes, for tbe offense of having spirituous, vinous or malt liquor in ones possession for tbe purpose of selling same in territory where tbe local option law is in force, to allege and prove that tbe defendant bad such liquor in bis possession for tbe purpose of furnishing ’ or seelling it to another, for the ipunp'oste of sale by 'the latter in local option territory; tbe defendant is guilty if be have such liquor in bis possession for tbe purpose of selling it himself in territory where tbe local option law is in force.</p> <p>2. Former Conviction. — A conviction for selling spirituous, vinous or malt liquors in local option territory is not a bar to a prosecution for having such liquors in one’s possession for tbe purpose of selling them in such territory, where tbe evidence shows that tbe defendant had in bis possession for tbe purpose of sale other whiskey than that sold to the prosecuting witness and for tbe sale of which the defendant was previously convicted.</p>

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

<p>Husband and Wife — Alimony and Maintenance — Action For. — In an action by a wife against her husband for alimony and maintenance for herself and children, evidence examined and held sufficient to entitle her to the relief sought.</p>

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

<p>1. Lands — Assessment—Failure to List and Pay Taxes — Forfeiture— Old Land Grants. — In a proceeding brought pursuant to sections 4076b, to 4076k, Kentucky Statutes, to forfeit lands for a failure to list them for taxation, a forfeiture will, not be decreed of the land owned by the claimant in excess of that listed by him where he in good faith listed for three óf the years embraced by the statute all the land that he believed he owned, and the State officers accepted the assessments and he paid the taxes thereon.</p> <p>2. Same — Litigation of Title with Commonwealth. — In such a proceeding the defendant will not be required to litigate his title in any respect other than that of a forfeiture for non-listing for taxation, or non-payment of taxes, but the Commonwealth may show that those through whom the defendant claims forfeited the lands because of their failure to list or pay taxes thereon.</p>

<p>• Contract — Ante-Nuptial-—-Fraud.—In an action by a Widow against ber husband’s administrator to set aside an ante-nuptial contract, evidence examined and held to sustain tbe chancellor’s , finding that the plaintiff was not induced to sign the contract by fraud or overreaching on the part of her husband.</p>

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

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

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

<p>Party "Walls — Agreed Division Line — Raising Wall Rights of Parties As to Water Coming Against the Wall. — H. & J. being the owners of adjoining lots in a town and being-in doubt as to where the dividing line between them was, entered into a written contract by which it was agreed that J should build a party wall on an agreed line; that the center of the wall should be the line between them; that either one might have the' right to raise the wall, and if he did so, should provide for taking off the water. H after the wall had been built, built on his lot using the wall on the first story as the wall of his building and letting the joist into the wall; but he did not build upon the brick wall. He set the studding of the second story on the joist and built up a wooden wall by the side of the brick wall. Held, that the wooden wall is practically an extension of the brick wall and that H should provide for taking off the water coming against the wall.</p>

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

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

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

<p>1. Master and Servant — Personal Injury — Excavation—Assumed Risk- — 'Question for Jury. — An inexperienced servant employed to undermine and remove earth, from the side of a hill, does not assume the risk of injury from a fall of earth occasioned by its having been loosened by means of dynamite, unless he knew of this fact or the dangerous condition of the earth was so obvious and patent that a person of ordinary prudence situated as he was would have known it. Whether or not such condition existed held to be a question for the jury.</p> <p>2. Same-^-Negligence — Failure to Warn. — -A master who assigns an inexperienced servant to the work of undermining and rerpoving earth from the side of a hill is guilty of negligence if he fails to warn the servant of the fact that the earth had been previously loosened by means of dynamite, unless the servant knew of this fact and of the danger incident thereto, or the dangerous condition of the earth was so obvious and patent that a person of ordinary prudence situated as he was would have known it.</p> <p>3. Depositions — Exceptions—-Amended Certificate — Section 587, Civil Code. — Where exceptions to a notary’s certificate attached to a deposition are sustained, and pursuant to leave given the certificate is amended, it is necessary for the party opposing the introduction of the deposition, to file exceptions to the amended certificate, or give notice that he will insist on his original exceptions, within the time prescribed by section 587, Civil Code; otherwise such exceptions will not be considered.</p>

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

<p>False Pretense in Horse Trade — Intent to Deceive — Question for Jury. — A false pretense in a horse trade that the horse is sound, if knowingly made with intent to deceive, and calculated to de- ■ ceive the person to whom it is made, is indictable under the false pretense statute, and whether the pretense was calculated to deceive the person to whom it was made is a question for the jury.</p>

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

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

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

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

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

<p>1. Appeals in Criminal Cases. — A writ of error does not lie in behalf of the Commonwealth to reverse- an acquittal of the defendant unless the right is expressly given by statute; but it is competent, by statute, in the absence of express constitutional prohibition, to allow an appeal or writ of error to the prosecution in criminal cases.</p> <p>2. Constitutional Law — Former Jeopardy. — The statute giving an appeal to the Commonwealth in penal actions and indictments for misdemeanors which subject the defendant to a fine only, and authorizing a new trial after the reversal of an acquittal in the trial court, is not in conflict with the constitutional provision that no person shall, for the same offense, be twice put in jeopardy for his life or limb.</p>

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

<p>Criminal Law — Affidavit for Continuance — Sufficiency of. — An affidavit for a continuance stated that a subpoena had been issued for a witness, and delivered to the sheriff, who did not have time to execute it, but did not show when the subpoena was issued or when it was placed in the hands of the sheriff, it also set out that an absent witness was served with' a subpoena but did not state that summary process to secure his attendance was asked: Held, the affidavit did not show,such diligence on the part of the defendant as entitled him to a continuance,' as the court permitted the affidavit to be read as the deposition of the absent witnesses.</p>

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

<p>General Demurrer Sustained — Dismissing Petition for Want of Jurisdiction Void Judgment. — Tlie Circuit Court dismissing an action for want of jurisdiction, and also holding the petition insufficient on general demurrer, the judgment dismissing the action for want of jurisdiction being affirmed, so much of the judgment as held the petition insufficient on demurrer is void, as the court had no jurisdiction of the subject matter.</p>

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

<p>1. Contract — Manufacturing Castings — Duration of Contract. — A manufacturer offered on May. 29, a dealer to make and furnish to him for a year such castings as he needed. The offer was accepted on June 10 with certain modifications which were agreed to on June 12; Held, that the contract was for a year from Juné 12, and for castings to be made and delivered before June 12 of the next year.</p> <p>2. Writing — Contracts—Parol Evidence — Lost Paper. — To admit parol evidence of the contents of a writing which is in the papers of the party offering the evidence, it must be shown that diligent search has been made for it, and that the difficulty of finding it is sufficient to warrant the court in concluding that the paper is lost'.</p> <p>3. Failure to Get Goods — Criterion of Damages — .Evidence.—A witness should not be allowed to state generally bow much be bas been damaged by tbe failure to get certain goods, no criterion of damages being indicated, but be should be required to state facts and give tbe amount of damages under tbe proper criterion of damages.</p>

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

<p>Inheritance Tax — Non-resident of County — Jurisdiction of County Court. — Under the inheritance tax laws, the county court in a county where the deceased did not reside and where he had no real estate is without jurisdiction of a proceeding instituted under the act.</p>

<p>1. Statute of Limitations — New Promise — Sufficient Acknowledgment. — To imply a promise to pay, there must be a clear and express acknowledgment of a present existing debt.</p> <p>2. Same — Evidence—Acknowledgment.—In an action to recover bal- . anee due for legal services, based upon a promise to pay made within five years of the institution of the action, evidence examined and held insufficient to show an acknowledgment of the debt from which the law would imply a promise to pay.</p>

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

<p>1. Infant — Next Friend — Power to Employ Attorney and Contract for Fee. — The next friend of an infant may employ an attorney to institute an action to recover damages for personal injuries re* ceived by the infant, and may enter into a contract fixing the com* pensation to be paid, subject to the limitation that the fee agreed upon shall be a reasonable one, and this is a question for the court.</p> <p>2. Attorney — Fee—Reasonableness of' — In a contest between an infant and an attorney employed by the' next friend of the infant to represent the infant in an action for damages for personal Injuries, evidence examined and held that the fee charged by the attorney was reasonable.</p>

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

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

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

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

<p>1. New Trial — Grounds for. — Where a new trial was asked because the verdict was excessive, and not sustained by and was against the weight of the evidence, and was contrary to the evidence, and was not sustained by .sufficient evidence, it sufficiently presented a ground for a new trial under sub-section 4 of section 340 of the Civil Code, which authorizes a new trial for excessive damages appearing to have been given under the influence of passion or prejudice.</p> <p>2. Appeal — Second Appeal. — Where the facts on the second trial are the same as on the first trial, there being no substantial change in the testimony, and no materially new evidence introduced, the opinion upon the former appeal is the law of the case; and the judgment having been then reversed because the verdict was palpably against the evidence, it will be reversed for the same reason upon the second appeal.</p>

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

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

<p>1. Bills and Notes — Action Thereon — Allegations.—A petition on a note or other written contract must either set out the contract in its words, or in its legal effect. The allegation that the defendants executed a note is insufficient.</p> <p>2. Same. — The allegation that the defendant countersigned a note is insufficient to show that they assumed any liability upon it.</p>

<p>Roads — Effect of Change or Alteration in, on Status of Old Road — Reversion. — "Where the location of a road is changed, the change in its location in and of itself operates as an abandonment of the old road without any order of court to this effect, and the land occupied by the old road reverts to the owner of the land over which it ran, and he may close it.</p>

<p>Fraudulent Conveyance. — A conveyance without consideration is void as to existing liabilities, but not as to debts thereafter created.</p>

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

<p>Banks and Banking — Collateral—Agreement by One Bank to Collect for Another — Failure to Remit — Insolvency of Collecting Bank— Distribution of Assets — Preference.—Where a savings bank discounts a note secured by collateral which it agrees to collect and ‘ apply on the note, .and then sells and discounts the note to another bank,- and • collects the collateral and fails to remit, the relation between the' two banks is that of debtor and creditor merely, and the bank at which the note is re-discounted is not entitled to a preference over other creditors in the distribution of the assets of the savings bank upon its becoming insolvent.</p>

<p>1. Appeals in Bastardy Cases. — Under section 978 oí the Kentucky Statutes, the Commonwealth may .prosecute an appeal to the Circuit Court from a verdict and judgment of the county court, which acquitted and discharged the defendant on his trial under a bastardy warrant in the county court.</p> <p>2. Constitutional Law — Former Jeopardy. — Section 978 of the Kentucky Statutes, which allows an appeal to the Commonwealth to the Circuit Court, after the defendant has been acquitted of a bastardy charge in the county court, does not violate the constitutional provision, which declares that “no person shall, for . the same offense, be twice put in jeopardy for his life or limb.”</p> <p>S. Bastardy Proceedings. — The proceedings in a case of bastardy, cannot be considered as a criminal prosecution, neither is the order for the maintenance of the child in the nature of a penalty; it is a civil proceeding, although it proceeds in the name of the Commonwealth, and under the statute, the offender is subject to arrest.</p>

<p>1. Will — Construction.—Testator’s will contained the following provision : “I have deeded to my son, Henry Duff’s heirs about 136 acres of land in the bend of Slate above Howard’s Mill and $25 worth household goods, it being his full share of my whole estate except what is mentioned hereafter.” ■ Later on testator directed certain property upon the happening of certain events to he divided equally between “all my heirs.” In two other instances he directed certain property to he divided equally between “all my heirs including Henry Duff’s children;” Held, that the testator plainly indicated that he intended Henry’s part of the estate should go to Henry’s children, and by necessary implication excluded Henry from participating in the devised estate as one of the testator’s heirs. '</p> <p>■2. Same — Undevised Estate — Exclusion of Child. — A father can not - exclude a child from participation in his undevised estate by giv- , ing him certain property by deed or will declaring that it is all of his estate that he ■ intends the child to have, hut can only do so by disposing of his entire estate.</p> <p>3. Advancements — Where a testator ■ declares in his will that certain property which he had deeded to the children of one of his sons was in full of that son’s part of the whole estate, such gift is not a mere gratuity to the testator’s grandchildren, but is in effect a gift to' the son, and should be charged as an advancement td the son in the distribution of the undevised estate.</p>

<p>1. Contracts — Specific Performance — Agency.—When a writing was signed by A authorizing B to sell his land to C, and to buy for him C’s land, the writing when signed by C constituted B the agent of both parties.</p> <p>2. Same — Sufficiency of Petition — Tender of Title and Defects therein. — A petition that tenders a performance of the contract according to its terms is good, although it may not aver that the-plaintiff had a good title, as it is encumbent upon the defendant if he wishes to question the title to point out the defects, if any, that exist.</p> <p>3. Same — Description of Land — When Sufficient. — A contract proposing to sell “my farm known as the Jno. Baskett home farm,” although it did not contain any other description of the land, was not void under the statute of frauds. If a writing contains such a description of or reference to the land as that it may be identified by parol evidence it will be sufficient.</p> <p>4. Samé — Time to Bemove Defects in Title. — Ordinarily, time will be allowed the vendor to remove defects in his title, and specific performance will be decreed, although the title may not be good when the contract is made or the suit brought, if it is good when the decree is entered; and, if time is not of the essence of the contract the court will permit the vendor if he can do so within a' reasonable time to supply the defects in his title so as to comply with his contract.</p> <p>5. Same- — Liens Upon Land of Vendor — Effect of. — If there are liens upon the land of the vendor that he is seeking to compel the vendee to accept, and they are less than the amount of the purchase price that the vendee has agreed to pay, the existence of the liens will not furnish a reason for not enforcing the contract, as the liens can be discharged out of the .money due by the vendee.</p> <p>6. Same — Offer of Vendor to Release Lien and Tender Good Title— Effect of. — -When there is a lien on the land of the vendor, which he offers to remove, he need not do so until the vendee expresses a willingness to take the title freed from the lien or the court indicates that he will compel him to do so if the lien is released.</p> <p>7. Same — Discretion of Court in , Ordering Specific Performance. — : The discretion vested in the court in cases seeking the specific performance of contracts is not an arbitrary but a sound judicial discretion controlled by established equitable principles. There is no more reason why a valid executory contract should not be enforced than there is why any other valid contract should not be enforced.</p>

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

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

<p>Automobiles — Action Upon Warranty — Evidence—Witnesses Not Experts. — In an action by the purchaser of an automobile against the company, upon a warranty, while the witnesses that appeared for the plaintiff were not expert machinists, they had all had some experience in handling machines like the one complained of, and it was proper to allow the jury to hear and accept their testimony for what it was worth.</p>

<p>1. Soda Fountain — Sale, .of — Warranty—Offer to Return. — The purchaser of a soda fountain, which is not constructed according to the warranty under which it is sold, is not obliged to offer to return the fountain, but may retain it, and sue for damages on the warranty.</p> <p>2. View of by Jury — Discretion of Court. — The court has a discretion as to ordering the jury to view the thing in dispute. He did not abuse a sound discretion in refusing to order the jury to view a soda fountain. .</p> <p>S. Warranty — Action on — Criterion of Recovery. — In an action on a warranty on a sale of a soda fountain, the proper criterion of recovery is the difference between the fair value of the fountain as it was and as it would have been if constructed according to the warranty.</p>

<p>Carriers — Liability of. — It was a custom between a grain company and the railroad company that cars loaded at the "elevator in La-tonia should not be routed from there, but taken over to the yards in Covington and there routed, a bill of lading being given in Latonia in the usual form showing that the car was to be taken to a certain track in Covington. Held, that the cars were at the risk of the carrier and held as carrier from the time they were delivered to it at the elevator and the bill of lading given, where the car was lost before it reached the Covington track, although the final destination of the car was then unknown.</p>

<p>The Interest on a Judgment for $22,000 Recovered by the Plaintiff Against the L. & N. R. R. Co. with -Damages Which was Appealed to and Affirmed in the U. S. Supreme Court must be Counted at Six Per Cent, from its Rendition Until Paid, but no Interest Must be Counted on the Ten Per Cent. Damages. — M recovered a judgment against the L. & N. R. R. Co. for $22,000 on September 7, 1906. The railroad company appealed to the Court of Appeals. The judgment was affirmed with ten per cent, damages on May 13, 1908. On May 21, 1908, the railroad company appealed to the United States Supreme Court, executing a bond that it would prosecute its writ of error to effect and pay all damages and cost if it should fail t9 make good its plea. The Supreme Court on May 21, 1910, affirmed the judgment of the Court of Appeals, but did not award damages. Held, that the interest on the judgment for $22,000 must be counted at 6 per cent, from its rendition to the time it was paid, and no interest is to be -counted on the 10 per cent, damages.</p>

<p>Account — Action Upon — Evidence.—Williams sued Justice upon an account and tlie latter interposed an answer, set off and counter claim which, the court dismissed and rendered judgment on the account sued on. Held, that the evidence justified the finding of the chancellor.</p>

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

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

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

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

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

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

<p>Pleading. — Where an itemized account is filed with the petition as a part of it an answer denying the total of the items is not good. The defendant must deny each individual item which it is desired to controvert.</p>

<p>1. Master and Servant — Personal Injury — Action for Damages— Peremptory Instruction. — In an action for damages by a servant against the master for personal injuries alleged to have been due to the negligence of the master, evidence examined, and held insufficient to take the case to the jury.</p> <p>% Same — Defective Appliance — Evidence.—Where it is the duty of the servant to open the doors of a cupola in a foundry by using a long, hooked iron pole to pull one end of a vertical iron bar supporting the doors from off the wedge on which it is resting, and the doors hang and do not open in response to such pull, this fact can not be regarded as evidence of any defect in the doors, vertical bar or other appliances, as it is much more probable that the doors hung because of an insufficient pull than because of any defect in the appliances..</p> <p>3. Pleading — Specifying Negligence. — Where the plaintiff specifies the negligence relied upon, he can not recover on' any other ground.</p> <p>-.4. Same — Assumption of Risk — Known Hazards. — Where a servant knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he can not recover .merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.</p>

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

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

<p>Appeals — Jurisdiction—Reduction of Judgment. — Where the amount of the judgment was reduced by the lower court to $150.00, this court is without jurisdiction, and the appeal must he dismissed.</p>

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

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

<p>Tavern License. — The law vests a large discretion in the County Court in granting or refusing a tavern license; and where the evidence is conflicting, the judgment of the County Court refusing a tavern license will not he disturbed.</p>

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

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

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

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

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

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

<p>Limitation — Action t>y Personal Representative. — Under Section 2526 of tide Kentucky Statutes, providing in substance that if a person entitled to bring an action dies before tbe expiration of tbe time limited for tbe commencement thereof, and it survives, it may be brought by bis representative after tbe expiration of that time if commenced within one year after bis qualification, tbe death of the person entitled to-bring tbe action at any time before tbe expiration of one year from tbe time limit for its institution' does not stop tbe running of tbe statute; but if be dies within one year before the time limit expires, then tbe action may be brought by bis personal representative after tbe expiration of the time limit if it is commenced within one year after bis qualification.</p>

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

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

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

<p>Insurance, Accident — Action for Loss of Leg. — In an action against an insurance company, under a policy of accident insurance, for the loss of a leg, the weight of the testimony supports the plaintiff’s contention that the loss of the leg resulted from injuries received on the occasion of a fire in a coach of a train, and not from a former injury as the company contended, and under the provision of Section 756, Civil Code, there being no error affecting the substantial rights of the 'company, the judgment recovered upon the policy must be affirmed.</p>

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

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

<p>1. Deeds of Persons of Unsound Mind. — The contract of a person of unsound mind, like that of an infant, is not void, hut is voidable only.</p> <p>2. Same. — The fact that a person has been properly adjudged to be of unsound mind is conclusive evidence that such was his condition at the time of the inquest; but it is only prima facie evidence of his condition at the time of a subsequent sale and conveyance; and being a mere presumption, it may be repelled by oral testimony.</p> <p>3. Same. — Although a grantor was of unsound mind at the time he executed a deed, that fact can not divest his grantee or the subsequent purchasers of title to the land unless they had, at the time of the conveyance to them respectively, notice that the original grantor was of unsound mind at the time he made the deed.</p>

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

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

<p>1. Wills — Testimentary Capacity — Scintilla Rule — Undue Influence.— ■ In a contest over the will of John Murphy, deceased, although the evidence was conflicting as there was at least a scintilla ■tending to show the want of testamentary capacity on the part of the testator, and considerable evidence tending to .show undue influence emanating from the chief devisee, which caused the ■ testator to make the will', the case was properly allowed to go to the jury.</p> <p>2. Same — Question for Jury. — As undue influence is generally em- • ployed surreptitiously the evidence by which it is established is in a very large degree, circumstantial, and the question of undue influence is especially one for the jury.</p> <p>3. Same — Burden of Proof — 'Evidence.—The burden of proof upon ■ the issue of undue influence is upon the contestants of the will, . but it may be established by a simple preponderance of the '. evidence; and in a will case, where the grounds of contest are mental incapacity and undue influence, the evidence is necessarily allowed to take a wide range, and every fact and circumstance that may throw light upon either of these facts, is admissible.</p> <p>4. Verdict — Not Flagrantly Against the Evidence. — As the verdict of tlie jury was not flagrantly against the evidence, the refusal of the trial court to grant a new trial was not error.</p>

<p>1. Children Born Out of Wedlock, Legitimized by Subsequent Marriage of Parents. — Children who are not horn in lawful wedlock, but after birth their mother married their reputed father who claimed and treated them as his children as long as he lived, under the statute this conduct legitimized them.</p> <p>2. Deeds — Conveying Title — Statutory Provision — Notice to Purchaser. — Under section 496, Kentucky Statutes, providing that “no deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration without notice thereof, as against creditors, until such deed shall be acknowledged or proved according to law and lodged for record,” does not require the deed to be actually recorded before it will operate as constructive notice to purchasers.</p> <p>3. Same — Legal Lodgment for Record. — One whose deed to land was found in 1907, contained a memorandum thereon made by the clerk in 1847, that the deed was recorded and the page of the record on which it was recorded, conclusively shows that she . had legally lodged it for record, and when she took it from the office she had the evidence of its having been properly recorded, , and she was not required to look at the record hook to ascertain whether it had been recorded. She had a right to assume that it had been.</p>

<p>1. Wills — Devise in Trust — Character of Estate Devised. — In this case a devise by an uncle of a tract of land to eaich of two nephews, in trust for the support of themselves,, their wives and children, and at their deaths to become the property of the children, and be divided- between them, only gave their nephews equally with their wives and children the right to the occupancy of, and a support from, the lands, during the nephews^ lives.</p> <p>2. Inseparable Interest — Cannot be Subjected to Debts. — The nephews have no separable interest in the lands that can be subjected by a trustee in bankruptcy to the payment of their debts.</p> <p>3. Pleading — Effect of Failure to Deny Allegation. — As the answers of the nephews and guardian of the children alleged that no profit is derived from the land over and above a support for the wives and children, and such allegation is not denied, the Circuit Court properly accepted its truth as confessed.</p>

<p>Constitutional Law. — Section 3766b, Kentucky Statutes, whicb empowers oil and gas companies to exercise the right of eminent domain by condemning land for pipe line purposes is not unconstitutional.</p>

<p>1. Principal and Surety. — Where a surety signs a bond guaranteeing the official good conduct of one who purports to be a public official, he will not be heard to say that his principal was not such official.</p> <p>2. Same — Release of Surety. — Mere indulgence of the creditor to his debtor will not release a surety. But if the creditor extend to the principal the right' to pay at some future definite time, however short, without the consent of the surety, the latter is released.</p>

<p>1. Principal and Agent — Real Estate Broker. — Where a real estate broker undertakes to furnish a purchaser, he is bound to act in good faith in presenting a person who is ready, able and willing to perform his part of the contract, according to the terms proposed; and, if he does furnish such a purchaser, he is entitled to his commission for making the sale.</p> <p>2. Same — Abandonment of Contract — Quantum Meruit. — Where a real estate broker opens negotiations for the sale of land to a possible purchaser, but the seller withdraws the property from •the market before the sale is completed, the broker, although he can not recover his commission under the contract, he may, nevertheless, recover damages upon a quantum meruit fob the value of his services rendered up to that time.</p>

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

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

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

<p>1. Appeals from County Courts to Circuit Courts. — Where the party appealing from the judgment of a county court produces to the clerk of the circuit court within sixty days thereafter, a certified copy of the judgment of the county court, and the amount of costs, as required hy section 724 of the Civil Code, the appeal is taken in time.</p> <p>2. Court Records — Correction. of. — The record of the clerk showing the date upon .which the transcript for an appeal was filed, should not he changed or corrected, in the absence of fraud, accident or mistake.</p>

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

<p>1. Municipal Corporations — Ordinances—Record of by Clerk. — The statute provides that the common council shall cause to he kept “a complete and correct journal of its proceedings,” but tbis does not necessitate the recordation in full of ordinances. An entry on. the journal that will show fairly and intelligently what the council did will be sufficient.</p> <p>2. Same — Special Meetings of Council — Notice of. — The statute provides that the mayor may call special meetings of the council “but in the call he shall designate the purpose of same, and no other business shall be considered.” An ordinance directing a street improvement had its final passage at a special meeting, the notice of which given by the mayor said it would be called “to consider ordinances.” Held: This notice was not sufficient under the statute to authorize the council to adopt a street improvement ordinance.</p> <p>3. Same — Special Meetings — Requirement as to Notice Mandatory.-— The provision of the statute requiring notice of special meetings is mandatory, and nothing short of a substantial compliance with it will satisfy the statutory .requirements.</p> <p>4. Same — Special Meetings — Notice.—In the absence of the character of notice contemplated by the statute, the council has no power to transact any business at a special meeting. The sufficiency of the notice is a jurisdictional fact that lies at the very bottom of the validity of everything that the council does . at a special meeting. It gets its authority to attend to business from the notice and from no other source; and can only do such things as the notice designates will be brought to its attention.</p> <p>5. Same — Notice—Sufficiency of. — It is not necessary that the notice should designate accurately or in detail the character of business that will be brought before the council, but neither should the purpose of the statute be defeated by a loose construction that would leave it without meaning or effect. As practically ■all the business transacted by the council is in the form of ordinances, a notice that “ordinances will be considered” is not sufficient to authorize the consideration of any ordinance.</p>

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

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

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

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

<p>Evidence — Finding of Pact by Chancellor. — Where the evidence is conflicting, and the -weight of it supports the finding of the chancellor upon the facts, his judgment -will not be disturbed.</p>

<p>1. Undue Influence — Presumption.—It will be presumed that a deed was obtained by undue influence where the grantor was in feeble health, the grantee had acquired a dominating influence over him, the deed was inconsistent with the oft expressed intentions of the grantor previously made, and gave the grantee, who was one of his children, a great advantage over some of the others, it appearing that the father, who was the grantor, loved all his children and wished to treat them all with equality.</p> <p>2. Verdict of Jury — Advisory.—In an action in equity to set aside a deed the verdict of the jury to whom the case is submitted is only advisory to the chancellor, and he may disregard it, and give judgment as to him seems right on the whole case.</p>

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

<p>Timber — Action for Timber Cut — Deeds—Instructions.—In an action for the value of timber cut and removed from land, the evidence examined and beld that tbe verdict is flagrantly against it. An instruction was confusing which quoted two or three calls- of the deed and told the jury if they believed appellant cut and removed the timber from across any of these lines, they would find for the • appellee. Upon another trial the court will ascertain from the testimony the line or lines over which appellee claims the timber was cut, and tell the jury that if they believe the line or lines are located as claimed by appellee and that the timber was cut over all, or either of them, they will find for appellee, but if located as claimed by appellant, and he did not cut any timber over any of them, they will find for him.</p>

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

<p>1. Indictment — Demurrer Sustained to — Resubmission to Grand Jury —Relates Back to Date of Original Indictment. — Ordinarily where a demurrer is sustained to an indictment with leave to resubmit, the case it at once presented to the grand jury and a new indictment returned, in which event the indictment so returned relates back to the date upon which the original indictment was returned.</p> <p>2. Same — When Grand Jury Not In Session When Demurrer is Sustained. — But when the grand jury is in session when the demurrer is sustained, it is left to the court as to whether or not a grand jury shall be summoned for that special purpose or the case passed to the next regular sitting of the grand jury.</p> <p>S.Separation of Jury — Provision of Code — Failure of Judge to Keep Together Not Reversible Error. — Section 244, Criminal Code, means that the jury shall not he permitted to separate after they have been accepted by both the Commonwealth and accused, and the failure of the judge to keep them together when they had not been accepted by the accused could not be treated as reversible error.</p> <p>4. Rape — Character of Prosecutrix — Evidence.—On the trial for rape, it is admissible to prove the bad character of the woman alleged to have been assaulted, the authorities agreeing that “a woman . of bad character would be more apt to give her consent to criminal intimacy than one of good character.”</p> <p>5. Same — Evidence of Good Character Rebuts Idea of Consent.— Where the accused charges that the act was doiie with the consent of the prosecuting witness, if it can be shown for her that her reputation for chastity and morality is good, this tends in a degree to rebut the idea that she would consent to such an act.</p> <p>6. Same — Evidence.—It is apparent from the evidence that the prosecutrix was an ignorant girl, that her opportunities had been poor, her education neglected and her ideas of propriety far from exalted. The examination of a physician showed evidences of the assault, and the evidence indicates that the accused diabolically set about to accomplish it.</p> <p>7. Consent — Provision of Statute — What Constitutes Rape. — The statute does not require that the woman shall either object or resist, but simply provides that if the act is done without her consent and against her will, it is rape. Consent will not be presumed by mere silence, and this is especially true where the prosecutrix has been frightened or terrorized by the accused. It is both unnatural and unreasonable that the prosecutrix should consent. She says she offered no resistance because she was afraid to. Surely, the ends of. justice would not require that she should be beaten into submission or choked into silence before she could claim that she was an unwilling victim of accused’s lust.</p> <p>8. Province of Jury. — It is peculiarly the province of the jury to determine the question of guilt or innocence of the defendant, and there being abundant evidence to support the finding of the jury, the judgment must be affirmed.</p>

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

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

<p>Shipper — Bill of Lading — Assigning His Rights — Cannot Prosecute Appeal. — The shipper under a hill of lading, haying assigned his rights to another, is not the real party in interest in a suit against the carrier on the 'hill of lading, and cannot prosecute an appeal in his name alone from a judgment dismissing the petition, where he sued for the benefit of the assignee, alleging that the assignee was entitled to any judgment that was rendered in the action and the assignee did not appeal.</p>

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

<p>1. Deeds — Construction of. — -In construing a deed the intention of the parties, as appears from the whole deed, must control; and, if the intention appears, technical- rules of construction will not he applied if they lead to a • different result. If the granting clause and the habendum clause are irreconcilable, and the other parts of the deed do not make it apparent which the grantor intended should control, the granting clause will prevail; but, if both parts of a deed may well, stand together, consistent with the rules of law, they will be construed to have that effect, rather than be held repugnant.</p> <p>2. Deeds — Construction of — -“Children” Used for “Heirs.”- — Where it is apparent from the instrument that the word “heirs” is used in the sense of “children,” as where they are used interchangeably, the term “heirs” will be read as meaning “children,” and construed as a word of purchase and not of limitation.</p> <p>3. Same. — In this case, where the deed named “Elizabeth Dye and her children” as “party of the second part,” and the granting clause conveyed “to the party of the second part, her heirs and assigns,” and the habendum clause was “to the party of the second part, her heirs and assigns forever,” Elizabeth Dye took a life estate with remainder to her children.</p>

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

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

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

<p>1. Banks — 1/iability on Forged Check. — Where a bank, -without knowledge of the fact that it is forged, accepts a forged check as a deposit, and places the amount of it to the credit of a depositor who is innocent of any wrong-doing, it creates by this act the relation of debtor and creditor between itself and the depositor, and authorizes the depositor to draw checks against it for the amount of the deposit, and it cannot refuse to pay checks so drawn after it has discovered that the check was a forgery.</p> <p>2. Same — Rights of Innocent Holder of Check Given by Customer.— When a bank by its course of dealing-with a customer authorizes him to issue checks on it, it will be estopped to say after such checks have come in good faith into the hands of innocent holders that the customer did not have any money to his credit, and for this reason decline to pay the checks. Especially should this principle obtain when to permit the bank to make this defense would cause a bona fide holder of the customer’s check to lose the amount of it.</p> <p>3. Principal and Agent — Fraud of Agent.- — -The act of an agent in accepting in satisfaction of a debt due his principal a check that he knows has been obtained by means of a fraud practiced oh the bank on which it was drawn, will not estop the innocent principal from recovering from the bank the amount of the check which has been turned over to the principal by the agent.</p>

<p>1. Stale Board of Control — Removal by of Asylum Superintendent— Power of Board to Remove Employe. — It was not contemplated by tbe Constitution that a board for charitable institutions, board of health or a similar board could be prevented from hearing and determining whether its employes should be discharged, and in an action by such an employe against a board to enjoin it from removing him, a demurrer was properly sustained to a supplemental petition alleging that the board had no power to remove him.</p> <p>2. Same — Power of Legislature. — The legislature had the right to enact the statute with reference to the removal of such employes, and it could have authorized their removal without any investigation or causes shown.</p>

<p>1. Trial — Equitable Action — Submission—Section 364, Civil Code.— An equitable action is properly submitted for trial, when the pleadings were completed more tban four months before the term.</p> <p>2. Same — Continuance.—In an equitable action, affidavit for continuance and counter affidavits examined, and held that the trial court did not abuse its discretion in refusing to grant a continuance.</p> <p>3. Judgment — Pleading—Proof.—Where the allegations of the petition are denied, and plaintiffs introduce no proof to sustain them, judgment for the defendants is proper.</p>

<p>1. Judgment — Effect to Be Given To. — In the case of a judgment rendered by a domestic court of general or superior jurisdiction, wbicb is attacked in a collateral proceeding, there is a presumption, which can only be overcome by positive proof, that the court had jurisdiction, both of the person and the subject-matter, and proceeded in the due exercise of that jurisdiction.</p> <p>2. Judgment — Presumptions In Favor of.- — In the support of the judgment of a court of general jurisdiction, as against a collateral attack, it will be presumed, unless it is expressly shown to be contrary, that legal and proper process was issued in the action, and that it was duly and regularly served upon the defendant.</p> <p>3. Limitation Against Mining Rights. — Possession of the surface of land does not give possession of the mining rights which had been theretofore sold; on the contrary, such possession presumes that the holder of the surface was only a trustee for the benefit of the owner of the mining rights, and limitation in such a case will not run in favor of the owner of the surface against the owner of the mining rights.</p>

<p>1. Municipal Corporations — Liability for Torts. — In matters pertaining to tbe conduct of charitable, reformatory, penal, and other public institutions supported by taxation, an action will not lie against the municipal, or other corporation, or body, that manages and controls them, for the tort or negligence of the agents or servants in their employment.</p> <p>2. Municipal Corporations — Governmental Function. — There are two general principles underlying the administration of government of municipal corporations; the one is that a municipal corporation, in the preservation of peace, public health, maintenance of good order, and the enforcement of the law for the [safety of the public, possesses governmental functions, iand represents the State; the other is where the municipal corporation exercises those powers and privileges peculiarly for the benefit of the corporation. Under the former the city is not liable for the malfeasance, misfeasance or nonfeasance of its officers; but under the latter, it is liable.</p> <p>3. Municipal Corporations — Exercising Governmental Function.— The “Commissioners of Sewerage of Louisville,” a corporation created for the purpose of constructing certain sewers in the city of Louisville was, while erecting said sewers, acting in a governmental capacity as an arm of the government, and not in its private capacity for the benefit of the corporation, and was not liable for injuries to a laborer caused by the negligence of its superintending officers.</p> <p>4. Right of Action Given by Constitution and Statute. — Section 241 of the Constitution, and section 6 of the Kentucky Statutes, which give the right to recover damages for the death of a person, were not intended to give a right of action against a municipal corporation for the death of a person occurring as the result of an act done in the performance of a duty which the municipality owed to the public, and the doing of which was but the exercise of power purely governmental.</p>

<p>1. Railroads — Negligence—Persons Using Track. — A railroad company in running its train through, an incorporated town of 900 inhabitants at a time and place where the presence of persons on its tracks may he reasonably anticipated, at the rate of from forty to forty-five miles an hour, is guilty of negligence.</p> <p>2. Same — Deaf Person — Crossing track Where Passing of Trains May Be Reasonably Anticipated — Contributory Negligence. — It is the duty of a person crossing a railroad track at a place where the passing of trains may be reasonably anticipated, to use ordinary care to learn of the approach of a train and keep out of its way; and if such person be totally deaf, ordinary care requires him to use his eyes, the only means by which he can ascertain the approach of the train. If he fail to do so, and is thereby injured, he is' guilty of contributory negligence that will preclude a recovery, even though the railroad may have been guilty of negligence in running its train at too high a rate of speed.</p> <p>3. Same — Evidence—Peremptory Instruction. — In an action for damages for the death of a person killed while crossing a railroad track, evidence examined, and held that the trial court properly directed a verdict in favor of the defendants.</p>

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

<p>Master and Servant — Accidental Killing of Trespasser t>y Servant— Liability of Master. — In an action by the administrators of J. M. Strader, deceased, who was .unintentionally 'killed by an employe of the defendant company, in firing a gun in the direction of a trespasser who was shooting ducks on a lake claimed by ap-pellees, Held, that whether the shot was fired in protection of the master’s property, or of the work then on hand, is not the material issue. The company is not chargeable with any putative knowledge of the use of deadly weapons by its employes. It had given no authority for their use, nor can such authority be implied by a single use of a rifle. The evidence does not connect the master’s knowledge or authority and the use of deadly weapons in the remotest degree, and the court should have peremptorily instructed the jury to find for the defendant. Neither by direction nor by implication have the plaintiffs shown that the water company authorized the use of a deadly weapon or to kill trespassers, nor have they brought their case within the qualifying principles of an unlawful act done in connection with or resulting from an act lawful or rightful in its inception.</p> <p>Whole court sitting, Judges Nunn and Carroll dissenting.</p>

<p>1. Auditor’s Deed — Prima Facie Evidence 'of Title. — An Auditor's deed for land made to tbe purchaser at a sale made by the Auditor’s agent in cases where the land has been sold by the sheriff and bid in by the State, is prima facie evidence of title in the purchaser, and a petition which sets out such a deed is. sufficient, although it does not set out the steps leading up to the sale.</p> <p>2. Same — What Necessary to Overcome Officers Return. — To over come the officer’s return that the taxes were unpaid, the proof must be clear and decisive. It is not overcome by proof which does not satisfactorily account for the tax receipt being missing.</p> <p>3. What Owner of Property Must Show. — The owner of the property must show that any step necessary to a valid sale was not taken. The rule as to what is necessary is the same now as heretofore.</p> <p>4. When Sale Void. — When land is sold for taxes for two years and only one year’s tax is advertised, the sale is void.</p> <p>5. Pleading. — A specific allegation in an answer as to how the sale was advertised, not being specifically controverted by the reply, must be taken as true.</p> <p>6. Same — Lien.—When a sale is set aside, the purchaser should be adjudged a lien on the land for the taxes he paid with interest and cost and a blank as to the amount in the petition is not fatal where the subsequent proceedings show the amount.</p>

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

<p>1. Former Appeal — Law of Case — Evidence.—Tbe opinion delivered on the former appeal is the law of the case, and the evidence in one aspect of the case on which it was held that the case should go to the jury being the same as on the former trial, the court properly refused to instruct the jury peremptorily to find for the defendant, although on another matter the evidence was different.</p> <p>2. Verdict. — The verdict of a jury will not set aside as palpably against the evidence although -it may be against the weight of the evidence.-</p>

<p>Former Appeal — Law oí Case — Burden of Proof. — Tlie opinion on the former appeal is the law of the case, and it having been then determined that there was but one issue in the case, and that the burden of proof on this issue was on the defendant, the Circuit Court properly so held on the second trial ofthe case under the same pleadings.</p>

<p>1. Railroad — Crossing Accident — Licensees.—Where there was a foot crossing in front of a passenger depot, over which from 25 to 75 people each day had crossed for many years, this use put upon the company the duty of lookout, warning and reasonable speed in the operation of its trains in reference to this crossing.</p> <p>2. Same — Duty as to Lookout, Warning and Speed. — Where the duty of lookout, warning and reasonable speed is required, it is negligence to omit the observance of either.</p> <p>3. Same — Foot Crossing in Front of Depot — -Warning.—Where the use by the public generally -of a path across the tracks in front of a depot was such as to put upon the company the duty of anticipating the presence of persons on the track at this place, the fact that its station whistle was sounded several hundred feet from the depot was not sufficient warning to persons on this crossing.</p> <p>4. Same — -Contributory Negligence — Effect of. — Although a railroad company may be guilty of negligence, yet if the injured party is guilty of such contributory negligence as that except for his negligence the accident would not have happened, he cannot recover.</p> <p>5. Same — Contributory Negligence — -Question for Jury. — Where a traveller approaching a public crossing stopped and looked for a train, when one hundred feet from the crossing, but did not afterwards stop or look or listen while walking towards the track- and he was struck by a passing train at the crossing, he was not guilty of such contributory negligence as would defeat a recovery.</p> <p>6. Same — Duty of Traveller at Crossing. — The stop, look and listen rule does not prevail in this State, hut it is the duty of travellers approaching a crossing to exercise ordinary care to discover the approach of trains.</p>

<p>1. Railroads — Peadings—Negligence.—In an action against a railroad company by a passenger who was injured by the derailment of a train, it was competent to show the general condition of the track at the place of the accident under an averment in the petition that the train was negligently operated.</p> <p>.2. Same — Negligent Operation — What is. — Negligence in the operation of a train is not necessarily confined to the condition of the engine and cars or to the speed at which the train is run, or to ■ the mariner in which it is loaded. It is negligence in the operation of a train to run it at a high rate of speed over defective tracks; and, under a charge of negligent operation, it is competent to show the condition of the track in connection with the speed of the train at this place.</p> <p>3. Same — Evidence—Inspection of Place After Accident. — -Where the location of an accident is shown by marks on the ties and in other ways, it is permissible for witnesses to describe generally the condition of the track at the place several days after the accident, when it is shown that the conditions were the same as those existing when the accident occurred.</p> <p>4. Evidence — Non-expert Witnesses — Opinion.—Persons who qualify themselves to give -evidence may describe to the jury the physical appearance and condition of a person before and after he was injured; but it is not competent for these witnesses to testify what the injured party told them his condition was or to express an -opinion that1 from his appearance he was in bad health.</p>

<p>New Trial — Casualties Unavoidable. — This action was brought under sub-sections 4 and 7 of section 518 of the Civil Code, to set aside a former judgment. Held, that the court erred in refusing to continue the case in the absence of the regular judge of the court, and in the absence of the appellee, which were certainly casualties that could not be avoided. The lower court properly set aside the judgment and awarded a new trial.</p>

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

<p>1. Railroads — Grade Crossing — Contract to Provide and Maintain— Damages — Evidence.—In an action for damages by tbe owner of land against a railroad company for violating its contract to construct and maintain a grade crossing, evidence examined and beld to support tbe finding of tbe jury to tbe effect that the contract had been violated, and to justify tbe amount of damages awarded.</p> <p>2. Same — Measure of Damages. — For a failure to provide and maintain a grade crossing, the measure of damages is .what it will reasonably cost to construct and maintain such crossing, and such damages as may have directly resulted up to tbe time of trial, from tbe -inconvenience of not having the crossing.</p>

<p>Wills — Estate Devised. — Where a testator devised his property to his ■widow during her life, and after her death one share of said property was given to testator’s daughter for life, and at her death same should go to her children, the daughter took'a life-estate only in her share of her father’s estate, and her deed conveying her said interest carried only her life interest therein.</p>

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

<p>1. Finding of Chancellor — Rights of Parties. — Held that the Chancellor had the entire record before him and in our judgment reached a wise and just conclusion as to the rights of the parties and we will not disturb his finding.</p> <p>2. Attorney’s Fees. — Only one attorney’s fee is ever allowed to be taxed under the statute.</p> <p>3. Allowance of Alimony. — In ascertaining what is a just sum to be allowed as alimony the question of fault, of aggravation, morality and sundry like considerations must be weighed by the Chan'cellor in the exercise of his sound judgment.</p>

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

<p>Telephone Companies — Liability for Failure to Deliver Messaged— A telephone company is a common carrier of intelligence, and is liable for failing to deliver a message that it agreed to and received compensation to deliver.</p>

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

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

<p>Divorce — Power to Set Aside Judgment During Term. — The court has the power to set aside a judgment of divorce iat the term at which it is entered, if it is satisfactorily made to appear to the court that the condition of the parties has not changed since the judgment was entered, or, in other words, if it is shown that neither of the parties has married. But, in the absence of some ■satisfactory evidence in the form of affidavit or otherwise that the condition of the parties has not changed since the judgment of divorce was entered, the court has no authority even during the term to set aside a judgment granting an absolute divorce-</p>

<p>Misjoinder of Actions — One for Tort and One for Breach of Contract — Election Required. — In the original ■ petition plaintiffs sought to recover damages for obstructing a passway they claimed .across the land in controversy. This was an action in tort. In :an amended petition they sought damages for failure on the part ' 'of the railroad company to. maintain the grade crossing provided for in the deed conveying the right. of way, this being one of contract. The court correctly held that there was a misjoinder and required plaintiff to elect which cause of action they would prosecute.</p>

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

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

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

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

<p>1. Settlement of an Estate — Equities Between Children and Grandchildren. — This appeal involves the settlement of an unfortunate family difference. The equities between the children and grandchildren of Dr. C. J. Graves must be determined from several deeds, wills and contracts appearing in the record. The testimony shows that Cora Page executed certain papers when she did not understand what her rights were.</p> <p>2. Purposes Expressed in Will — Pair Agreement. — The equities be-' tween these parties require that the purposes expressed in the will of Dr. Graves he carried out. Appellee possibly sustained a loss by her surrender of this contract and appellants possibly lost something by coming to the agreement, but it was reasonably fair and the parties should be made to abide by it.</p> <p>3. Mortgagee in Possession — Limitation Not Available. — Dr. Graves was a mortgagee in possession and it would be unreasonable to say that if he had been alive at the time this action was brought, and it had been against him that he could have successfully' pleaded the fifteen year statute of limitations or laches and his heirs and devisees occupy the same position he would have if living.</p>

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

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

<p>1. House Breaking — Opening Screen Door — 'Felonious Intent— Stealing Shoes. — The opening of a screen door, which was closed, though not fastened, .and taking a pair of shoes from the store which appellant thus entered, being done with felonious intent, constituted a breaking into the store house within the meaning of 'Section 1164, Kentucky Statutes.</p> <p>2. Same — What Constitutes Breaking — Breaking implies force, but the slightest force is sufficient. The lifting of a latch, the turning of a knob, the picking of a lock, or opening with a key, or pushing open a closed door though it is neither latched, bolted, nor locked, the. hoisting of a window, is an actual breaking within the meaning of the statute.</p>

<p>1. 'County Clerk — [Appropriation of Funds ¡by — Action Against Surety —Defense of Surety — 'Plea of Accord and Satisfaction — Pleading ■ — 'Demurrer.—In an action brought by the ¡McCracken County Fiscal Court, to recover of the surety of a former County Court Clerk the amount of certain forged' warrants upon the County Treasurer, the proceeds of which he received and converted to his own use, the surety could not upon a plea of accord and satisfaction defeat a recovery by showing, that it had by a previous payment to the Fiscal Court of a large amount of delinquent taxes which tihe clerk had received for the redemption of real estate sold for taxes and converted to his own use, compromised all demands owingi hy that officer .to McCracken county.</p> <p>2. Same — Peremptory Instruction — -Constitutional Provision. — The trial court did not err in peremptorily instructing the jury to disregard the surety’s defense of accord and satisfaction, as the evidence conclusively showed that only the amount of delinquent taxes received and converted hy the clerk was paid hy the surety in the settlement relied on by the latter, and Section- B2, Constitution, forbade the acceptance hy the Fiscal Court in settlement of its demands against the clerk, of any .amount short of his entire indebtedness to the county.</p> <p>3. Same — Receipt Given hy County Attorney — Mistake—Appellee Entitled to Show Mistake — Evidence.—The receipt given hy the County Attorney at the time the delinquent taxes were paid by the surety, being of no greater dignity than a receipt in any ■ordinary business transaction, appellee vías properly allowed to prove the mistake contained in its recital that all other indebtedness of the clerk to the county was also included in the settlement.</p>

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

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

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

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

<p>1. Master and Servant — Injuries to Third Persons — Independent Contractor. — ¡Where the operation of a “splash dam” necessarily creates a nuisance and involves a trespass upon the lands of another, and the injury is not the result of the negligent manner in ■which the dam is operated, the owner of the idam can not escape liability on the ground that he had employed an independent contractor to operate the dam.</p> <p>2. ¡Same — Damages—Excessive.—In an action for damages for injury to land resulting from the operation of a splash dam, evidence examined, and held that the damages awarded by the jury are not excessive.</p>

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

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

<p>1. Appeals — 'Dismissing Appeal — Failure to File Transcript — Provision. of Code. — This appeal is dismissed because of the failure of appellant to file, as required by Section 336, Criminal Code, a transcript of the record in the clerk’s office of this court, within sixty days after the trial court’s judgment was rendered.</p> <p>2. Same — Provision of Code Mandatory — Extension of Time for Filing Transcript. — The provisions of Section 336 are mandatory; and if, as claimed by appellant, his failure to file the transcript within the required sixty days after the judgment, wasi 'because of the inability of the clerk of the Circuit Court 'to copy the record within that time, appellant’s remedy was to ask of this court an extension of time beyond! the .sixty days for filing the transcript, which he did not 'do</p>

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

<p>1. Negligence — Pleading—Where, in a suit for personal injuries, the ■plaintiff specifies the acts of which the alleged negligence consists, he can not, upon the trial, avail himself of any other acts of negligence; he is confined to the specifications of his petition.</p> <p>2. Negligence — Fellow Servant — Assumed Dish. — A servant cannot recover from the master for injuries inflicted by the negligence of a fellow servant in the same grade of employment engaged in the same field of labor, and associated or working with the injured servant, however gross the negligence of the fellow servant may be.</p> <p>3. (Negligence — Contributory Negligence. — Where a workman was sent into a building to warn the occupants not to come out of the front door for ffear that they might be injured by a stone that was about to be thrown from the top of the building, and the messenger himself immediately returned and came out of the forbidden-door, and was struck and killed! by the falling stone, he was guilty of contributory negligence, and cannot recover damages for his injury.</p>

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

<p>Criminal Law — 'Where. Two 'Persons Wounded; fey Same Shot, Conviction for Shooting One, Not Bar to Prosecution for Shooting the Other. — The conviction of appellee, under an indictment for shooting at 'and wounding Marion -Stewart, was not a har to his prosecution under another indictment for shooting and wounding ' Robert Caywood, although both were wounded at the same time, and by one and the same bullet from a single discharge of ap-pellee’s pistol.</p>

<p>1. Vendor Holding Unrecorded Deed — -Estoppel to Kescind Trade.— 'The vendor who holds an unrecorded deed, having procured his vendee to accept a deed from his vendor promising to destroy the deed he held, is estopped to set up his deed against his vendee. But the latter having abandoned his purchase and received from the vendor the price he paid upon an agreement to rescind the trade,' is estopped after long delay to set up his 'deed against the vendor; and the estoppel against the estoppel sets the matter 'at large.</p> <p>2. Vendee — Consideration Returned — Estoppel to Recover Property. —A vendee who has abandoned his purchase and received back the consideration will -not be allowed to recover the property .after the lapse of many years and a change in.the value of the property. . ' . .</p> <p>3/ Infancy as a. 'defense must be pleaded.</p>

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

<p>Cities — Maintaining a Workhouse — Liability to One Injured'. — a city acts in its governmental capacity in maintaining a workhouse and is not liable to one who is injured in one of its streets iby a fragment of rock thrown from the quarry ait the workhouse hy the negligence of those operating' the quarry.</p>

<p>1¡ Personal Representative — A’ction—Revivor—Service of 'Order of 'Revivor — Waiver.—If during the pendency of an action, the defendant dies, -and the .action is revived in the name of the ©xecutor, a failure to serve the order of revivor on the executor is waived by the latter’s appearing and making, defense.</p> <p>2. Same — 'Judgment—'Verification of Claim — Kentucky Statutes, Sections 3870, 3872 and 3874. — ■'While it is not proper to render judgment against a personal representative until the claim has been verified as required by Sections 38701, 3872 and 8874, Kentucky Statutes, the question can not be raised for the first time on appeal to this court.</p> <p>3. Contract — Consideration—(Real Estate Broker — Commission.— (Where the owner of real estate places it in the hands of an agent for sale at the price of $2,500.00, and agrees to pay him a commission of 21-2 per cent, of that sum, and the agent secures a purchaser at the price of $2,800.00' and reports this fact to the owner, and the owner then agrees to pay the agent an additional commission of $300.00, or all the excess over the price fixed toy the owner, such promise is without consideration and imposes no legal liability. In such a case, however, the agent, if entitled to recover at all, may recover a commission of 2 1-2 per cent on the entire purchase price that the purchaser agrees to pay.</p> <p>4. 'Same — 'Performance—Pleading—Evidence.—In an action by an agent to recover commission for effecting a sale of real estate which the owner refused to consummate, it is necessary in order to recover both to allege and prove that plaintiff furnished a purchaser who was ready, willing and able to perform his part of the contract according to the terms agreed upon.</p>

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

<p>1. Criminal Daw: — Self Defense Instruction. — Where a father and his two son® were indicted for the offense of maliciously shooting and wounding, upon the trial of the -sons, an instruction upon self defense w-as erroneous which limited the right of one who fired the shot to act in defense of his own person, whereas, he had the right to act, not only in his own, but in defense of either of the other -two, if it appeared to him, -in the exercise of -a reasonable discretion, that death or -great bodily harm was about to be inflicted upon him or either of the other, two.</p> <p>2. Same — Court Should Give Whole Law of Case. — Tt w-a-s incumbent upon the court to give to the jury the whole law of the case, and -appellant was not required to offer any instructions, or to object to any instructions as given.</p>

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

<p>Note — Action U.pon — Plea of No Consideration — Evidence.—Appellant executed a note for $350.00' to B. who .endorsed it to the ILouisville Woodstock Co., which endorsed it to appellee bank bfefore maturity. In an action against appellant by thé hank; he interposed the plea of no Consideration, and filed a letter from a stockholder and employe of the Woodstock Company to him stating that “We ■have purchased from the Franklin Bank, certain notes and claims amongst which is a note of $350.00 of yours, which will he turned ■over to us Tuesday, which will be returned to you.” Held, there is not the slightest testimony in the record that the hank authorized, or had any knowledge of.the letter, or that the person writing it had any authority to represent the hank in the surrender of the note.</p>

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

<p>1. Land — Constructive Possession — Rights of Junior and Senior Patentees. — There cannot he at the same time two persons in the constructive possession of the same body of land, and where 1 there is a junior and a senior patent to the same land, the con- ' «tractive possession follows the older title, and this ’ -possession cannot be defeated ;by the junior title holder except by actual entry -and possession on the interference.</p> <p>2. Adverse Possession — What is Not. — The mere assertion of ownership, accompanied by occasional entries for the purpose of cutting timber and the payment of taxes, does not constitute adverse possession, no matter for how -many years this -character of ownership continues.</p> <p>3. ¡Same — -Against the Commonwealth. — As the -statute provides that -limitation runs ag-ainst the Commonwealth, its right of entry can only be defeated by the same kind of adverse possession that .would defeat the title of a patentee holding by constructive possession. The acts necessary to start -and keep the statute in motion against the individual are necessary -to start and keep it in motion against the Commonwealth.</p> <p>4. Adverse Possession by Adjacent Title Owner. — Where A. owns a tract -of land, which he conveys to B. in connection with another adjoining tract that -he 'does not own and that is -covered by -a senior patent, tbe fact that the d-eed described both tracts as one boundary -did not have the effect of placing -B. in the -adversa possession of the land to which A. -had no title, if B. continued to reside on the land to which A. h-as title, and never had physical adverse possession of the adjacent land. In other words, -a man who is living on a tract to which h-e has title and which, is outside of the plaintiff’s claim, cannot obtain adverse possession of land within the plaintiff’s older patent by simply taking a d-eed to it and continuing to live outside of the lap.</p> <p>¡5. Adverse Possession — Ownership of Land, How -Obtained. — Ownership- of land in this State -can only be obtained in two ways, (1) by what is -called a paper title, -and (2) -by adverse -possession.</p> <p>6. S-ame — ¡Elements -of. — Adverse possession cannot be sustained by intentions. It can only rest on physical acts, such as will give to the real owner of the land notice that some other person is in possession of it.</p> <p>7. Limitation Against Commonwealth. — In the absence of statutory -authority, limitation does not run against the S-tate; but, in 1856 the general law of limitation was -made -applicable to the Commonwealth, and this -statute, now Section 2523 of the (Kentucky Statutes, has been in force .since that time.</p> <p>8. ¡Patents — Issual of — (Effect of, on -Limitation. — If the statute of limitation is put in motion against tbe Commonwealth 'before a patent is issued, the is-sual of the p-atent does not -stop the running of the statute, if the patentee only -holds by -constructive possession. The constructive possession of the patentee does not place him in any better position than the Commonwealth occupied -before it issued the patent.</p> <p>y. Parent for Land Previously Patented, Void. — Under the statute every entry, survey or patent made on issued is void, so far as; it embraces land previously entered, surveyed or patented.</p>

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

<p>1. Deed by Debtor to Wife — Valuable Consideration — Effect as to Creditors. — A conveyance made for a valuable consideration by a 'debtor to bis wife will not be set aside at tbe instance of creditors whose debts were subsequently created unless tbe deed was in fact executed with, a fraudulent intent to cheat or delay creditors.</p> <p>2. Jurisdiction — Several Creditors — Separate Judgments.' — ¡Separate judgments in favor of several creditors, each for less than $200, where one creditor has no interest in thg judgment in favor of the other, and the amount recovered is less than $200, are not within the jurisdiction of this court.</p> <p>3. Debtor in Bankruptcy — Discharge—Fraudulent Conveyance. — A discharge of the debtor in bankruptcy will not defeat an .action .brought against him to set aside a fraudulent conveyance more than foul months before the institution of the bankruptcy proceeding, but it will prevent a personal judgment against him in the action.</p>

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

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

<p>1. Insurance Commissioner — Authority to Examine Insurance Companies. — Section 762, Kentucky Statutes confers upon the Insurance Commissioner the power to examine an insurance company, (a) If be believes it to be in an unsound condition, (b) If be believes it is violating the law. (c) Whenever he deems it prudent for the protection of policy holders.</p> <p>2. Same. — The fact that the Insurance Commissioner is without power to establish insurance rates does not prevent him from examining into the condition and business of an insurance company on any of the grounds indicated, for, though himself without power to regulate rates, if the examination discloses that the insurance company is one of an association of such companies engaged in violating the law by suppressing competition in rates, he may and should report that fact to the Attorney General or General Assembly for such action as may be needful to remedy the evil.</p> <p>S. Same. — If the inquisitorial power possessed by the Insurance Commissioner may be exercised in examining the condition and business of a single insurance company or its agents to ascertain whether it has violated the law, or because the protection of the policy holders requires such examination, it may also be exercised by him, on like grounds, in making an examination of an association of insurance companies, or an association of the agents of such companies.</p> <p>4. Same. — As the appellee, Board of Fire Underwriters, arbitrarily . fixes rates of insurance and its membership is composed wholly of the agents of insurance companies benefitted thereby, and the expense of maintaining the association, compiling its books, surveys and other records, is paid by the insurance companies, and such books, surveys and other records are used in conducting the business of the insurance companies, the Insurance Commissioner has the right to make the examination of such books. surveys and other records as demanded by bim, and appellee should have submitted them to such examination.</p>