Volume 147 — Kentucky Reports

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

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

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

<p>1 Evidence. — A witness who testifies' to an important transaction may be allowed to relate briefly the reasons why he remembers the occurrence, although the relation of these extraneous facts or circumstances may have no connection with the subject matter under investigation. But this rule should not be extended * ic persons who are not parties to the transaction, as their testimony would encumber the case with evidence of third parties having no direct relation to the issue in controversy and would direct the attention of the jury to matters having no connection with the ease.</p> <p>2. Railroads — Liability for Misinformation Given by Telegraph Operator to Section Foreman. — Where it is shown to be customary for section foremen to get information from the company’s telegraph operators as to the time of trains, the company will be liable if a section foreman is hilled or injured as a result of incorrect information given to him by the telegraph operator as to the time of a train.</p> <p>Same — Duty to Avoid Injury After Discovering Peril. — It is 'iha 3. duty of those in. charge of a railroad train, to exercise ordinary care to avoid injury to a person on the track after his peril is discovered.</p>

<p>1. Burley Tobacco Society — Bourbon County Board of Control— Action Against Railroad for Destruction of Warehouse Caused by Sparks from Engine — Power of Society and Board Over Tobacco Pooled — Power to Prosecute Suit — Parties.—The Bourbon County Board of Control, by its articles of incorporation, is empowered to assist the growers of Burley tobacco to receive remunerative prices on tobacco before it is finally sold by the society, and is ■authorized to place tobacco pledged with it under control of the Burley Tobacco 'Society for sale upon such terms and conditions as may be provided between the Board of Control and t'he farmers who have pledged their tobacco with it. The tobacco destroyed by fire originating from sparks from the railroad company’s engine was in the custody of the Burley Society, and its branch, ■ the Board of Control; they were the proper custodians of it, and under their contract with the growers they were warranted in ¡taking such steps as were necessary to protect the interests of the growers. Therefore, the Society and the Board not only had ample power to prosecute the suit to recover for the alleged negligent destruction of the tobacco, but it was their duty to do so. The addition of the names of the individual members of the pool by the amended petition was not necessary, and the court might with propriety have sustained the motion to strike these names from the record as parties plaintiff, but his failure to do so was not prejudicial error, for the right to sue being in the society and the board, this right was not lessened or abridged by making these individuals parties.</p> <p>2. Same — Refusal to Transfer to Equity. — The' cause of action being perfect in the society and board it was immaterial whose par-, ticular crops were burned, and the trial court did not err in refusing to transfer to equity, or to permit the second amended answer, making additional parties, to be filed.</p> <p>3. Illegal Trust or Combine — Restraint of Trade. — As the charge was not made that the Burley Society is attempting to raise the price of tobacco above its real value, it certainly was not acting in violation of any law of this ’State in accepting the pooled tobacco un'cler the terms of the pooling contract and handlin|g¡ and holding it as it was at the time of its destruction.</p>

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

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

<p>1. Alteration in an Instrument — Absence of Proof — Presumption.— It is presumed in tbe absence of proof to the contrary that an alteration in an instrument apparent on its face, was made before delivery.</p> <p>2. Deed — 'Liability—Good Faith. — A deed made pursuant to a title bond acquired before tbe liability was created is not fraudulent. Nor is a deed fraudulent where tbe transaction was in good faitb and bad before tbe liability was fixed on tbe debtor.</p> <p>3. Debtor — Exemptions—'Housekeeper.—Tbe debtor is entitled to bis exemptions as against a debt due tbe county and tbe county cannot complain of a sale by an attorney of bis law library worth less than $500, be being a bona fid'e housekeeper with a family.</p> <p>4. 'Purchase of Property — Intended Fraud. — A purchase of property at its full value will not be held fraudulent unless it is shown that fraud was intended.</p> <p>5. 'Homestead — Conveyance by Debtor.-rThe county cannot complain of a conveyance by a debtor of bis homestead or in satisfaction of tbe purchase money notes on it to the value of tbe property.</p> <p>6. Employer and Employe — Payment in Advance. — An employer has tbe right to pay bis employee in advance and the chancellor will not prevent him from so doing in order that tbe employees earnings may be subjected to bis debts.</p> <p>7. Husband' and Wife — Rights of Creditors. — A creditor cannot require a husband to renounce bis wife’s will and the husband takes only under the statute although tbe wife may devise him nothing by her will.</p>

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

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

<p>1. Commissioner— Report — Exceptions — Judgment — Reversal. — A ■judgment confirming a commissioner’s report will not be reversed as to findings which were not excepted to, tbe chancellor not 'having,had- an opportunity to pass on tbe errors complained.</p> <p>2. Improvements — Enhancement of the Value of the Land — Timber ■Used for Improvements. — In an action to recover land and for an accounting the defendant should not be chained with the value of timber cut from the land and used in making permanent improvements on the land, ns this item is necessarily included in deter-i mining to what extent the improvements have enhanced the value of the land.</p>

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

<p>Railroads — Obligation of Agents to Passengers — Failure to Validate IReturn Tickets — Liability.—Appellee purchased from tbe I. C. R. R. Co. at Central City, Ky., -at a reduced rate, a round trip excursion ticket to Knoxville, Tenn., via tbe L. & N. R. R. line. Returning be was denied passage from Louisville to bis borne in Central City, and brought this suit to recover for his expense, a days loss of time and for bis mortification, and1 humiliation and recovered a verdict for $250.00. From this verdict tbe railroad ' company appeals. Held, There is an affirmative obligation upon a railroad passenger laid upon him by the contract into which ¡he enters to take his ticket to the agent at the turning -point, in order that it may he validated for the return journey, hut when once he has presented it to the agent and given him to understand that he is entering upon his return journey the -cftity devolves upon the agent to see that the validating is done properly. At this point the passenger has discharged -his full duty -and is not to suffer because of the carelessness, inattention or ignorance of the agent placed in charge of the other side of the contract.</p>

<p>1. Judgment — Action to Set Aside — Insurance Commissioner — Service of Summons — Notice.—In an action by an insurance company to set aside a default judgment rendered against it on the ground that the Insurance Commissioner failed to notify it of the pendency of the suit; that prior to the institution of the action it had ceased to do business in this State, and notified the Commissioner that it had withdrawn from the State. Held, the petition stated a good cause of action and the demurrer to it should have been overruled.</p> <p>2. -Same — The failure of the Insurance Commissioner to notify the company of the pendency of the suit was such “unavoidable casualty or misfortune” as entitled the company to a new tTial.</p> <p>3. Same — Service of Process — When Complete. — Service of process is not completed by the mere delivery to the commissioner of a copy, but it is complete only when he has sent the summons by mail to the company at its principal office.</p> <p>4. Same — Provision of Statute. — The statute requiring that the copy of the summons served upon the commissioner should be promptly forwarded by mail to the principal office of the company is mandatory, and if it is not complied with the service is not good.</p> <p>5. New Trial. — A litigant is entitled, upon proper application, as provided by the Code to have a new trial granted to him when it is made to appear that, 'having a good defense to an action, he is prevented by unavoidable casualty or misfortune from attending the trial and presenting his defense.</p>

<p>1. Courts — Fiscal Court. — The fiscal court is a court of limited 1ur- ■ isdiction, and its powers are confined to the authority conferred upon it by statute.</p> <p>2. . Same — Power to Grant Franchise. — The fiscal court h$s no authority to grant a franchise that obstructs or affects in. any way the use of the streams of the county. The water courses of a county are not under the control of the fisc,al court except at such points as their use may be necessary in the construction and maintenance of the highways of the county.</p> <p>3. Same — Legislature May Confer Authority On. — The legislature may confer upon fiscal or other courts or agencies the right to make such use of the water courses as may be useful in the development of the State, but until the legislature does confer this power the fiscal court is without authority to exercise it.</p>

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

<p>Corporations — Holders of Stock in Need Not List for Taxation When Corporation Has Paid Taxes Due — Action by Auditor’s Agent.— In an action by the Auditor’s Agent to tax certain shares of stock as the property of Dennis M. Long’s estate; Held, That whether franchise or non-franchise in nature, need not list nor pay taxes upon their shares of stock when the corporation in which the stock is held has paid all taxes due from it, and assessable against it, upon its property located in the State of Ken- , tucky, whether that property be realty, personalty, tangible or intangible, or franchise in nature.</p>

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

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

<p>1. Negligence — Punitive Damages. — In an action under section 6, Kentucky Statutes, to recover for tbe death of a person by reason of tbe negligence of tbe defendant, no instruction as to punitive damages should be given, unless there is evidence showing recklessness or indifference to the safety of others.</p> <p>2. First Appeal — Opinion—Law of the Case. — The opinion on the first appeal is the law of the case and under the same evidence the jury should be instructed as therein directed. i</p>

<p>Contracts — Finding of Chancellor. — Upon a disputed question of facr, involving the validity of a contract, we will not disturb the finding of the chancellor when it is supported by the weight of the evidence.</p>

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

<p>1. Contracts — Advertising for Realty Company — Action to Recover for Services Rendered — Question of Fact — Evidence.—In an action to recover of a realty company for services rendered in advertising for tbe company, tbe issue was purely one of fact, and was properly submitted to the jury under instructions of which there is no complaint. Held, That the finding of the jury is not clearly- and palpably against the weight of the evidence and is not subject to review.</p> <p>2. Damages Not Excessive.- — The sum at which the jury assessed the value of the services is not so large as to indicate that it was the result of passion or prejudice.</p> <p>3. Evidence — Party Cannot Complain of Testimony Upon an Issue Raised by it. — A party cannot complain of testimony admitted upon an issue put into the record by it.</p>

<p>Passways — Permissive Use. — A passway will be regarded as permissive where it has been so treated by' both tbe parties, although it has been used for a great many years, and where the use is permissive, no right is acquired however long the use may be continued.</p>

<p>•Street Cars — Injury to Motorman — Emergency.—A servant of the company employed for other duties who undertakes to run a car as motorman at the request of the motorman, can only recover for an injury received while so running the car if an emergency in fact existed rendering it necessary for him to take the place of the motorman. He cannot recover if he only had reasonable ; grounds to believe that the emergency existed when in fact there was no emergency.</p>

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

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

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

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

<p>Lease — Covenant Not to Sublease Without Written Consent— When Subleasing From Acts of Lessor — Estoppel.—Notwithstanding covenants in a lease, providing that the lessee should not sublease the property or allow it to be put to any other use than that allowed by the lease, without the written consent of the lessor, where, as in this case, it is made to appear that the subleasing of á part of the leased premises resulted from and was procured by the representations and acts of the lessor, it was properly held that she is estopped to complain that such subleasing of same was not consented to by her in writing.</p>

<p>1. Actions — Pleading—Instructions.—In an action for damages for the failure to deliver an engine within a reasonable time, and for loss of sales of beer, whiskey, and the loss, of use of whiskey license, an instruction directing the jury that they might find for the plaintiff the value of the beer, whiskey, and the value of the use of the Government license was error, there being neither allegation nor proof that the defendant knew the purpose for which the boat was to be used.</p> <p>2. Contracts — Delivery—Abisence of Stipulation as to. — Where a contract contains no stipulation upon the time of delivery, the law implies a reasonable time.</p>

<p>Principal and Agent — (Parol Contract to Sell Land — Validity.—A contract between tbe principal andi tbe a^ent authorizing tbe agent ■to sell tbe land of tbe principal, may be in parol; and tbougb in writing may be varied by -a subsequent oral agreement between them, by which the agent’s commissions were changed and the time within which he was to sell the property was extended.</p>

<p>1. Master and Servant — Negligence—Withdrawing Case From Jury. —The rule is well settled that it is only where from the plaintiff’s evidence it cannot be determined whether the injury resulted from some negligence of the employer or other cause, and that the probability in the one case is equally as strong as m the other, that the court is warranted in withdrawing the case from the jury.</p> <p>2. Instructions. — While the instructions should have told the jury that no recovery could be had unless the plaintiff relied upon the promise to supply him a new match board, the jury was not mislead by the failure of the court to incorporate this idea in the instruction.</p> <p>3. Evidence — Physician’s Bill. — It is competent, when a physician has testified as to the character, nature and extent of an injurv, to ask him the amount of his bill and whether or not it has been paid, for the purpose of showing bias and affecting his credibility upon this, point.</p>

<p>Lunatic on Train — Frightening Passenger — Liability.—There can be no recovery of damages by a woman who was frightened on the cars by a lunatic in the charge of an attendant, when thene had been no previous conduct of the lunatic sufficient to put the carrier on notice that her presence on the cars endangered other .passengers.</p>

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

<p>1. 'Insurance — (Life—Death From Violation of Daw — Self-Defense— Instructions. — In an action by the widow of a man who was hilled to recover on a policy of insurance issued on his life, the defense being that he was the aggressor in the difficulty and came to his death while violating the law of the State, it is error to instruct the jury on self-defense when there is no evidence on which to -base such an instruction.</p> <p>2. 'Same. — In such ,an action, evidence examine^ and proper instructions directed to be given.</p> <p>3. Same — Evidence—-Judgment Acquitting Slayer. — In a civil action by the widow of a man who was hilled -to -recover on an insurance -policy issued on his life, the judgment of -an examining court acquitting -the man who killed him, can not be regarded as evidence tending to sustain the 'defense -that -decedent was the aggressor, and therefore -when killed, was engaged in violating the law of the State.</p> <p>4. Evidence — Affidavit by Plaintiff for Peace Warrant Against Decedent. — -In an action by the widow of a man who was killed :to recover on an insurance 'policy issued on bis life, -the defense being that decedent when killed Was violating the law of the State, an affidavit made by plaintiff two day-s before the homicide, for the purpose of obtaining a peace warrant -against decedent, and containing nothing tending to show -decedent’s state of mind towards his slayer, is not admissible -as evidence.</p>

<p>Actions — Damages—'Personal Injury — Falling Into Elevator — Instructions — Evidence.—In an action against the owner of a 'building ■by one of the occupants for an injury resulting from a fall into an elevator shaft, the issue was as to whether the owner had control of the hallways and elevator for the common use of the tenants. The instructions were nearly erroneous. If appellant ¡had reserved the hallways and elevator for the common use of his tenants, their quests 'and customers, he was required by law to use reasonable care to Keep them in reasonably safe condition. If the elevator was closed .and appellee opened it and thus brought about his fall, he was guilty of contributory negligence to such an extent that his right to recover is barred. If appellant had made the elevator reasonably safe and some one without his Knowledge or consent rendered it unsafe, and he had not had-time, before the injury, to discover and remedy its unsafe condition, by the exercise of ordinary care, he is not responsible for the injury. Otherwise he would be.</p>

<p>Contracts — 'Evidence—Pleading.—In an action to recover upon a contract for sawing timber, evidence examined and beld that the per«mptory instructions to find for appellees was proper. "WMle tlie evidence shows appellant sustained a loss between certain dates and made out a case for tbe recovery of sucb damages, be did not plead sucb loss and ask damages for it.</p>

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

<p>Appeals — Two on Same Transcript — Costs Divided. — When two appeals are prosecuted on tbe same transcript only one transcript fee should be charged, and this should be divided between the parties using the transcript; and where only one-fifth of the transcript related to one appeal, only one-fifth of the transcript fee should be taxed on that appeal.</p>

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

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

<p>1. Local Option — Election.—Tbe law contemplates tbe county as tbe primary unit, but whenever it contains a city of the first, second, third or fourth class, the city may, by taking a separate vote within the city on the same day when the vote is taken in the county, segregate itself from the county, into, and become a separate unit; but, if under such a county vote the city fails to avail itself of its right to take a separate vote upon the ■ same occasion, it is bound by the vote of the county, as a whole.</p> <p>2. Local Option — Election—City May Become Separate Unit. — Where the several precincts, which made up an entire county, had become “dry” by virtue of separate elections held in the several precincts under special local option laws in force prior to the enactment of the present laws upon that subject and no election had been held thereunder in the county as a whole, a city of the fourth class in said county may, upon a proper petition, hold an election to determine whether spirituous, vinous or malt liquors shall be sold within the city, although no election be held on the same day by the county, as a whole.</p> <p>3. Local Option — Election—Void Election Not To Be Counted.— . Where the statute provides that elections under the local option laws shall not be held oftener 'than once in three years, a former election which had been declared void by the courts is not to be considered in estimating the time when another election may be held.</p> <p>4. Local Option — Election^-(Form of Question Submitted. — Where the question as presented by the ballot, read, “Do you wish the prohibition law now in force in the city of Nicholasville, by virtue of the election held September 20, 1906, to become inoperative?” the form of the question was not so misleading, contradictory or confusing as to .affect the result of the election, or render it invalid.</p>

<p>1. Trespass to Try Title — Action—Patents—Conflict—Adverse Possession. — Where two patents conflict, the junior paitent holder can acquire title by adverse possession against one in possession under the elder, to the interference only by taking actual, physical possession of all lands within the interference, and holding it actually, adversely and continuously for the statutory period.</p> <p>2. Same — Adverse Possession. — One living on a tract of land to which he has title, arid which is outside the claim of another, can not obtain adverse possession of the land within the latter’s elder patent by marking off a boundary and taking a deed from some one to it, without putting anything on the land to give the owner notice of an adverse claim; the owner being in constructive possession.</p> <p>3. Same — Conditional Line — Evidence.—In an action of trespass to try title, evidence examined and held insufficient to show the establishment of a conditional line.</p> <p>4. Judgment — Conclusiveness—Estoppel—Different Subject Matter. —A judgment in a former action of trespass to try title where a peremptory instruction was given against the plaintiffs because ■the evidence showed that the timber was cut from land not embraced in their deeded boundary, will not estop them in a subsequent action between the same parties from claiming a different tract of land which is embraced in their deeded boundary.</p>

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

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

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

<p>New Trial — Petition, for — Special Judge — Objection to Too Late.~ Where tbe record in a case was under submission before a special judge, but before judgment was rendered, tbe act of the legislature imposing upon the various judges of the Circuit Courts the duty of presiding in cases where the regular judge was unable to sit, became effective, no objection having been made by appellant when the judge took the case under submission, and none having been made until after he had made known what his decision would be, appellant’s complaint that he had no authority to render judgment comes too late, and whatever right he might have had was waived by his silence.</p>

<p>1. Husband and Wife — Righit of Wife as Against Creditors to Land Paid for by Her, But Deeded to Husband in Violation of Trust.— When tbe wife gives1 ber money to ber busband and be invests it in land, taking tbe title to bimself, although it may have been agreed between them that tbe title should be taken to ber, ber claim will be subordinated to that of tbe creditors of tbe busband who are attempting to subject tbe land to tbe payment of debts created while tbe title was in tbe busband and without knowledge of tbe equity of tbe wife. When tbe wife permits tbe busband to take ber money and invest it in bis name, she occupies no better position so far as the creditors of tbe busband are concerned than would a stranger who bad followed a like course of dealing.</p> <p>2. Trusts — Rights of One Paying Consideration When Deed is made to Another — Construction of Section 2353, of tbe Kentucky Statutes. — This statute is only intended to assist persons paying tbe consideration to reclaim the property while it is in tbe possession of tbe person who took tbe deed to bimself in violation of a trust or without tbe consent of tbe person paying the consideration, or .while it is held by a volunteer or a purchaser with notice of tbe trust, and when tbe rights of creditors in good faith or without notice have not intervened.</p>

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

<p>1. Master and Servant — Personal Injury — Pleadings.—Where a servant was injured by reason of an unusual and unnecessary jerk given to a cable that run oyer a mast pole, causing the mast pole to break and hit the servant, and the petition charged that the accident was due to the defective condition of the mast pole and to the fact that an unusual and unnecessary jerk of the machinery caused it to break, the plaintiff may recover upon proof of either act of negligence.</p> <p>2. Same — Assumed Risk. — The servant does not assume risks that follow from negligent acts on the part of the master. His assumption of risk does not cover conditions that grow out of the failure of the master to exercise ordinary care to protect him from danger. He only assumes risks incident to ordinary conditions that are free from negligence on the part of the master.</p> <p>3. Same — Act of Servant to Escape Injury When Placed in Peril by Negligence of Master. — If .the, servant is suddenly and unexpectedly placed in ,a position of immediate danger, and in an effort to avoid it he exercises ordinary care and prudence and does what an ordinarily prudent man would have done under the circumstances* he will not be guilty of contributory negligence, although he did not adopt the best means for his escape or made an error of judgment as to the best course to pursue in trying to avoid injury:</p>

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

<p>1. Wills — Character of Estate Devised — Intention of Testator. — The question in this case is whether a specific devise of a store house and two lots by the will of a testator to his son, Clarence, vested in the latter merely a life estate therein, instead of the fee as in a specific devise of real estate to another son, Elbert and a general devise of certain other real estate to the two sons jointly. While the language of that part of the will devising specific property to Clarence apparently differs from that used in the devise of specific property to Elbert, and also the joint devise to the two sons, it is obvious from the language, of the will as a whole that it was the intention of the testator to put the two sons on an equal footing with respect to the porperty devised them, respectively. That is that in the event of the death of either son before that of the testator, the children of the one so dying, should take under the will what would have been received by the father if living. Therefore, under the will, Clarence took the fee to both the property devised him alone and that devised him and Elbert jointly, subject to be defeated by the happening of his death before that of the testator, 'and in the latter event the property will go to his children.</p> <p>2. Same — When May Be Defeated by Happening of Contingency.-— Where an estate is given by will which may be defeated upon the happening of a contingency, and there is no other period apparent or intended, in which the event shall occur, it shall refer to an event happening within the- lifetime of the testator.</p>

<p>1. Action Upon Foreign Judgment — Validity of Summons and Return — Due Process. — In this action brought by appellees in this State upon a judgment in personam recovered against appellants in a Massachusetts Court of competent jurisdiction, it appearing from the record: 1st. That the service of summons upon which the Massachusetts judgment was rendered is valid under the laws of that State; 2nd. That such summons and service constituted “due process” within the moaning of the constitution, it was properly given full faith and credit by -the Circuit Court of this State 'in which» the judgment appealed from was rendered.</p> <p>2. Residence — Sufficiently Established in Massachusetts. — The evidence was sufficient to -establish the fact that appellants’ residence was in Massachusetts and in the counity thereof in which the judgment against them was rendered, at the time of its rendition and when summons was served upon them.</p>

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

<p>1. Banks and Banking — Embezzlement by Cashier — Contract of Indemity. — The facts in this case show that the parties to this contract of indemnity intended that the bond of the cashier and four continuation certificates should constitute one continuous contract, and appellant obligated itself in the sum of $15,000.00, io pay the hank for any embezzlement or larceny committed’by the cashier that might be fixed by any renewal of the contract. Tbe four letters in the case show that the original bond and the four renewal certificates were to constitute one contract.’</p> <p>2. Continuation Certificates — Annual Premium. — The fact that appellant issued to appellee four continuation certificates ea,ch covering a period of one year beginning, March -15, 1905, is also evidence of the fact that the parties intended that the original writings and certificate should constitute one contract, covering a period of five years. The bond was kept alone in a manner similar to an insurance policy, that is by the payment of annual premiums.</p> <p>3. Bank Officials — Expert Examination. — At the time appellant issued this insurance it knew that the bank was what is called a' “county hank,” and that its officers were men who probably could not give the accounts an expert examination and it is presumed that it understood the answer to the question to mean that it would give the accounts the best examination .they could.</p> <p>4. Duty of Officials — Intent in Making Overdrafts. — It was the duty of the bank officials to give notice to appellant of any act of McConnaghy that indicated fraud or dishonesty on his part, that was likely to involve a loss upon it, and as he concealed his fraudulent acts by forging notes and crediting his overdrafts by the apparent proceeds of the notes, it is now clear that he had an evil intent when he drew the overdrafts.</p>

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

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

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

<p>Appeals — Dismissal of — Superseded Judgment- — Ten Per Cent. Damages. — Upon the dismissal of appellant’s appeal from a judgment for damages, because the transcript was not filed in time, the motion for ten per cent, damages against the appellant upon the supersedeas was properly sustained, -appellee being entitled to his judgment for the ten per cent, damages against appellant as a matter of right. See section 764, Civil Code of Practice.</p>

<p>1. Telephone — Personal Injuries from Falling Wire. — While driving at night on a turnpike appellee’s wagon bed was caught by a fallen telephone wire which threw it to the ground and upon him, thereby causing him great bodily injury. Held, 1st. The law imposed upon appellant the duty to exercise ordinary care in keeping its poles, wires and appurtenances in such a condition as would render their presence upon and along the turnpike reasonably safe to persons traveling thereon; and there being evidence that its negligence in permitting its poles and wires to be and remain in a defective and unsafe condition, caused the falling of the wire across the turnpike whereby appellee was injured; and there being no evidence that appellee was guilty of contributory negligence, the trial court properly refused the peremptory instruction asked by appellant at the conclusion of the evidence.</p> <p>2. Verdict Not Excessive. — The verdict of $1,250.00 is not excessive, it 'appearing from the evidence that appellee’s injuries consisted of a broken rib, bruised hip and badly sprained back, and that the character of these injuries together with his age make it probable that he will never be restored to his usual health.or 'Strength.</p>

<p>1. Wills — Construction of. — Where the testator gave his estate io his widow for life, and at her death to his two sons and two grandsons in equal portions, the remaindermen each took a vested estate, and upon the death; before the widow; of one of the grandchildren, his parents were entitled to his share under the statute of descent and distribution.</p> <p>2. Payment of Debts Due by Life Tenant. — Debts contracted by the 'life tenant, a widow, as well as her funeral expenses should be paid out of her individual estate and are not chargeable against the estate of her husband.</p>

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

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

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

<p>1. Contracts — Construction of. — In construing a contract the court will look to the whole instrument, and the words of one clause will he read in the light of the other provisions of the contract.</p> <p>2. Intention to Supersede Prior Contracts. — Where on the whole contract it appears that it was intended to supersede prior contracts between the parties, the word “bonus” in a contract between a city and a street railway company will he construed to include sums which under previous contracts the company was to pay for the enjoyment of its franchise.</p> <p>3. Written. Contracts for Money — Interest Allowed. — Interest will be allowed on money due under a written contract and not paid wbon due.</p> <p>4. Installment Not Sued for. — An installment not sued for in an action may be recovered in a subsequent action.</p>

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

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

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

<p>1. Electric Cars — Outside City Limits — Signals.—When outside of the city limits and not upon a public highway electric cars may be run at any speed desired which is not so great as to render unavailable the ordinary signals of the approach of the car, and at such places the motorman is not required to ring his gong from time to time as he runs.</p> <p>2. Person Walking Between the Ties — Care Required. — There being evidence that a person walking between the ties might have been seen by the motorman by ordinary care in time to avert the danger to him, the jury should not be instructed peremptorily to find for the defendant.</p> <p>3. Instruction to Jury — Rights of Person on Track. — When a jury after being out for some time, return to the court room and ask the court to tell them whether the place where the injury occurred was private property or a public highway, it was error for the court to instruct the jury that the plaintiff- had a right to walk where he was without telling them what the defendant’s rights were.</p>

<p>1. Master and Servant — Injury to Servant — Action for Damages— Instructions. — Where an employer had put up a toilet room for the use of his employes, and had thereby given them the opportunity, the invitation and the right to use it in connection with their work in the factory, it became, so far as all legal obligations were concerned, a part of its place of work; and the duty of the employer to furnish the employe a reasonably safe place to work applied as well to the toilet room as to any other part of'the factory.</p> <p>2. Same — Want of Care — Evidence.—Where a thing which causes the injury is shown .to be under the management of the defendant, and the accident is such as ‘in the ordinary course of things does not happen if those who had the management of it used proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from a want of care.</p>

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

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

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

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

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

<p>1. ¿Pleading. — The want of knowledge or information as (to appellee’s ownership of coupons sued on, made in appellant’s answer, -did not present an issue. Section 113, subsection 7, Civil Ctode, only allows denial upon want of knowledge or information when the facts attempted to he thus put iu issue are not presumptively within the pleader’s knowledge. As the coupons are payable to bearer, tbe holder’s ownership of them- was presumptively known to appellant by reason of its possession of them, and therefore, could not be put in issue by such a form of denial.</p> <p>2. -Coupons — Payable to Bearer- — Pass by Delivery. — -Coupons -as well as the bonds from which they are detached, if payable to bearer at a fixed time and place, .pass by mere delivery without endorsement of any kind; and it is not necessary that the holder of coupons in order to recover on them should own the bonds1 from which they are detached,</p> <p>3. Appellee might have availed itself in conjunction with one -third in interest of the holder’s of bonds, of a clause in the mortgage given to secure the bonds and coupons, requiring the trustee named in the mortgage to -foreclose it for their benefit. But this remedy is not exclusive, and did not prevent appellee :as holder of coupons belonging to some of the bonds, from enforcing their payment by means of a personal judgment against the mortgagor.</p>

<p>Land — Ownership—Sale for Taxes — Void Judgment — Reimbursement —Improvements.—'This is a controversy between plaintiff and defendant as to the ownership of .certain lands alleged to have been purchased at a .commissioher’s sale for taxes but it is conceded that at the time of said sale the real owner of the land was not a party to the suit and had no notice thereof. Held, that the judgment enforcing the lien for taxes and all proceedings thereunder were void and passed no title to the purchaser. Fields however, having paid to Walker the taxes assessed' against the •land for 1896 with interest and penalties, appellant should reimburse him with interest, and if appellee has made valuable improvements thereon he .should be allowed for same less the reasonable use of the land.</p>

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

<p>Automobiles — .Negligent Operation by Son of Owner — Injury to Child on Bicycle — Liability of Owner of Automobile. — The appellee, a child twelve years of age, while riding on a bicycle on the highway was run down and dragged by an automobile, the property of the appellant which at the time was being operated by appellant’s son in taking his .sister and some visiting ladies a pleasure trip. In an action by the child against the father of the son who was operating the automobile for damages, Held, that the father had provided his family with this car as a means of recreation and amusement, and the son in the use of the oar was not performing an independent service of his own, but was carrying out what, within the spirit of the matter was the business of the father, and for this reason the father was liable for his son’s act, and a verdict for $2,000 in damages is affirmed.</p>

<p>Apportionment Warrant — Action to Enforce — Where Improvement Exceeds Cost of Dot. — In an action to enforce a lien in satisfaction of an apportionment warrant, the evidence showing the cost of the improvement to he in excess of the value of the lot, the action was properly dismissed as to the lot owner.</p>

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

<p>Land — Action for Trespass — Adverse Possession — Evidence not Snffi«ient to Establish. — In an action for trespass to land, evidence examined and 'held that it shows a want of title or right of possession. The sporadic cutting of timber for fence posts as far bade as 1857, and again in the sixties, cannot be accepted as such acts of ownership as rise to the dignity of adverse holding.</p>

<p>Actions — iParties to — Pleading—Material Man’s Lien — Agreement Not to Assert. — Markham was a contractor to build a hospital, and1 Meyer his sub-contractor. The latter purchased of appellant certain supplies, and Markham being indebted to Meyer in the sum of $592.00, entered into a contract with appellant, it agreeing not to assert a material man’s lien, to hold subject to payment to appellant that amount of money due Mteyer. In an action by appellant against Markham 'to compel the payment of the §592.00, Held, That Meyer was not a necessary party and the court erred in sustaining a demurrer to the petition. Under the agreement appellant was not required to look to Meyer, and he was not a necessary party so far as appellant was concerned.</p>

<p>I. Summons — Service of — Parties.—Where a summons designated the plaintiffs by their firm name rather than that of the individual members 'composing the firm, and the defendants appeared, the summons served every purpose that it was intended by the ■Code it should.</p> <p>2. Same — Place of Service. — -A transitory action having been brought in Pike County and 'one of the defendants being served there, the plaintiff had a right to send an alias summons to an adjoining county for the other defendant, such proceeding being expressly authorized by section 80 of the Code.</p>

<p>1. (Residence — What Constitutes. — One may have a residence in a boarding house as well as in a rented building or in property owned outright.</p> <p>2. Husband and Wife. — Divoroe Proceedings — -Evidence of Home ■Life. — Under our rule of evidence allowing neither 'husband or wife -to testify in divorce proceedings it frequently happens 'that no accurate insight into their home life can be obtained and we are therefore furnished but fragmentary evidence of their marital woes.</p> <p>3. Absence of Companionship. — The evidence in this case shows that the husband instead of treating 'his wife like a -companion seemed to look upon her as a tool or piece of machinery brought into the house to a-d-d to 'his pleasure.</p> <p>4. Dictatorial Conduct of Husband. — The evidence shows that lie declined to furnish her a -means of -conveyance in order that she ■might return the calls of her lady acquaintances who lived too far away for her to walk conveniently, although it is shown that he was worth from $20,000,00 to $40,000.00 and a -business that produced annually from $2,000.00 to $3,000.00 besides. He was domineering and dictatorial in his treatment of her and was oblivious to the fact that the -one thing needed by her was -some evidence that he loved and cared for 'her.</p> <p>5. -Same — ¡Separate Maintenance. — In this action the wife is not seeking a divorce but is seeking a separate maintenance which the chancellor is authorized by the statute to grant, where from the evidence it appears that the best interests of the parties require it ¡even though a .cause for absolute divorce may not have been made out.</p> <p>6. Support of W-ife and Child — Allowance.—The chancellor should have allowed her at least $'100.00 a month for the support of herself and infant child, and this sum may he increased as the child grows older and its wants and necessities require it to he paid ■upon the first of every month.</p>

<p>1. Railroads — Injury to. Stock — Action for Damages. — In an action for 'damages against a railroad for injury to a horse alleged to have been 'Causea b/y negligence in operating the train, evidence examined, and held sufficient to support a verdict , in favor of the ■plaintiff.</p> <p>2. Same — Estoppel.—Where the carrier pleads that the shipper is estopped to recover any sum in excess of that stated in the bill of lading on the ground that 'he fraudulently represented the value of the horse for the purpose of obtaining a lower freight rate, it is the rule that although the carrier may not know the exact value of the horse, yet if it knows that it is worth more than the value stated by the shipper, no estoppel will arise in its favor.</p>

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

<p>Mechanics’ Liens — Action- to Enforce — Provision of Statute — Dealers in Material Furnished.- — In an action to enforce a material man’s lien on a building for roofing used on it, it is not a defense that the contractor who purchased it was himiself a dealer in the same material. Section 2463, Kentucky Statutes, giving a lien to any person furnishing material for -a building, it does not matter that ¡the contractor, subcontractor, architect of authorized agent is himself a handler of the same material as that furnished by the person asserting the lien, or that he furnishes some of -the material used in the building, if he is also the contractor in the construction of the building.</p>

<p>1. Land — Adverse Possession — Intervening Land. — A man living on one tract of land is not in adverse possession of another tract which is separated from him by intervening lands held by others.</p> <p>2. Continuous Possession Por Statutory Period. — Adverse possession must be continuous 'and title will not be acquired where on all the proof it appears that the defendant did not far the statutory-period, claim the land as his own.</p>

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

<p>1. Infants — Contracts By. — Where an infant has conveyed land for a reasonable price, representing at the time that he was of age, and has thereby induced the grantee to part with the consideration, the trade being fairly made, and the grantee having no notice that the grantor was under age, the infant will he bound by his deed.</p> <p>2. Same. — The rule denying relief to an infant is not restricted in its operation to his misrepresentations; it applies equally to his fraudulent concealments concerning his infancy.</p> <p>3. Infants — Estoppel.—Where one deals with an infant, knowing him to be an infant, the latter is not estopped from relying upon his infancy in avoidance of the contract; but, when an infant, by reason of his personal appearance, family surroundings and business activities, leads one, who, in good faith deals with him, coupled with a misrepresentation or fraudulent concealment concerning his infancy, and not knowing his infancy, to believe that he is of age, the infant will be estopped from maintaining an action to avoid his executed contract.</p>

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

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

<p>Attorney and Client — Authority to Compromise Client’s Case. — An (attorney at law has no authority to compromise his client’s case, but if he does compromise it without authority securing the dismissal of two suits against his client, as well as a suit brought by his client, the client must promptly disaffirm the transaction after he learns of it, and will not be heard to complain after a delay of three years.</p>

<p>1. Amended Pleading — Refusal of Court to Pile. — Not Made Part of Record by Order of Court or Bill of Exception.- — An amended petition which the court refused 'to be filed, unless made a part of 1 the record by an order of court or a bill of -exceptions cannot be considered an appeal.</p> <p>2. Actionable Negligence — Dragging a Boy on Train — Refusal to . Allow to him Get -off — Injury Causing Death. — It is' actionable negligence for those in charge of a railway train to drag a thirteen year-old boy upon a railway car and to refuse to let him get off when he undertook to leave, and in jerking him when he attempted to leap off, which caused him to fall under the wheels and was thereby so injured as to cause his death.</p>

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

<p>Estates — Settlement of — Trustee—Action to Surcharge Settlement of. — In an action to surcharge the settlement of a trustee, evidence examined and held that the lower court did not err in finding that the trustee had accounted to appellant for all that was due him. In addition to the evidence heard, the judge of the lower court went to the Clerk’s office and found an additional settlement, made six years after the one upon which this action is founded, and his finding in this case is entitled to more weight than is usually ascribed to a judgment of a lower court.</p>

<p>1. Passways- — Permissive Use — Changing Character of Use — -Notice. —The law is well settled that the permissive use of a passway for any number of years does not deprive the owner of the land of the right to close it at any time, and when ¡the use is originally acquired by permission the character of the passway is established, and such use continues to be permissive until something is done bringing notice home to the owner of the land that the character of the use has been changed.</p> <p>2. Same-Uninterrupted Use for Many. Years — Presumption of Grant. — It is only where a claimant has had an uninterrupted use of a pas'sway for a great number -of years that a grant will be presumed.</p>

<p>1. Criminal Law — Indictment—Arson—Houseburning.—An indictment that in the accusative part charges that the crime is arson, but in the descriptive part shows that it is the statutory offense of houseburning' and not the common law offense of arson, is good on demurrer.</p> <p>2. Criminal Law — Indictment—Essential Requisites of. — -An indictment should .contain the name of the party charged, the offense charged, the county in which it was committed, and a statement of the acts constituting the offense in ordinary and concise Ian- ’ guage.</p> <p>3. Criminal Law — Indictment—Sufficiency of. — An indictment may contain more than is necessary or it may be phrased in inapt words, or the sentences be ungrammatically -expressed or the spelling not good; but, if when considered as a whole the charge is stated with sufficient clearness and certainty to enable the accused to know what he is charged with, and to enable the court to pronounce judgment, no error in form of expression will make the indictment had.</p> <p>4. Criminal Law — Indictment—To be Considered as a Wholes — In considering the sufficiency of an indictment it will be read as a whole; and if when so read it substantially conforms to the requirements of the Code in respect to material and substantial matters, it will be a good indictment.</p> <p>5. Criminal Law — Arson—Houseburning.—Arson at common law was the burning of a dwelling house of another or some outhouse used in connection therewith; and this common law offense is punishable under Section 1167 of the Kentucky Statutes, providing that “if any person shall be guilty of arson he shall be confined in the penitentiary- not less than five nor more than twelve years.”</p> <p>6. Criminal Law- — -Pleading—Technical Rules of, Now Obsolete.— The strict rules that prevailed at common law, and for many years in this State, have been superseded by a more liberal practice.</p> <p>7. Criminal Law — Reversible Error. — Under Section 340 of the Criminal Code, a judgment of conviction will not be reversed except when upon a consideration of the whole case the court is satisfied that the substantial rights of the defendant have been prejudiced. It is not every error of law on the record that will justify a reversal.</p> <p>8. Criminal Law — Reversible Error. — This Code provision embraces all errors assigned, without regard to what part of the proceeding or trial they occur in. Every error relied on is to be subjected to the test — did it prejudice the substantial rights of the accused; if it did, a new trial will be ordered, if it did not, an affirmance will follow.</p> <p>9. Criminal Law — Arson—Description of Property.- — If in any ease it should be made to appear from the affidavit of the accused that the indictment did not accurately advise him of what property was burned, the court should require the Commonwealth to furnish a bill of particulars.</p> <p>10. Criminal Law — Arson—Ownership -of Property. — The fact that the ownership of property was laid in the real owner and not in the lessee was not material, as an error in describing the ownership of property is not generally important.</p>

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

<p>Land — Action in Ejectment — Title—Evidence.—In an1 action- by appellant to -eject appellee from a tract of land which he claims-to own, the judgment was properly for appellee, it appearing from the evidence that he had a better title than appellant. Appellant claims title by reason of an assignment of Morgan, w-hose surety he was, Morgan having purchased it at commissioner’s sale of some lands of Bentley, deceased, but appellee was in possession at the time of the sale and was claiming under ■ a title distinct from that of the Bentley estate.</p>

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

<p>1. Process — Quashing Return Thereon. — No complaint having heen made on the first appeal of the case as to the action of the court in refusing to ‘quash the return on the process, the objection cannot be made -on a second appeal where the case was considered on the first appeal on the merits.</p> <p>2. Life Insurance — Interest in Policies. — A statute of Illinois providing that life insurance companies organized under the act shall not write policies payable to a beneficiary who has no insurable interest, has no extra territorial effect and does not apply to policies written in Kentucky.</p>

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

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

<p>Motion for Writ of Prohibition from Jefferson Circuit Court.</p>

<p>1. Railroads — Pullman Company Building Cars — Defective Brake-staff Painting Over Defect — Liability for Injury to Employe of. Railroad Company. — The Pullman company built for the Cincinnati, New Orleans and Texas Pacific Railroad Company a car with a-defective brakestaff and painted over the defect. A brakeman of the railroad company was injured by reason of the defective brakestaff and the failure of the railroad company x.o' inspect the car after it received it. The' brakeman sued both companies. The court instructed the jury peremptorily to find for the Pullman Company and the jury returned a verdict against tbe railroad company. Tlie railroad company then brought suit against the Pullman Company for the amount which it had to pay under the judgment. Held, That the proceedings in the brakeman’s suit are not a bar to an action by the railroad company against the Pullman Company, they not being adversary parties in that suit.</p> <p>2. Same. — The Pullman Company may be required to pay the railroad company what it was required to pay the brakeman; the brakestaff being defective and known to be defective when the car was delivered or the defect being such that the Pullman Company should have known it, its negligence being the primary cause of the trouble.</p>

<p>Land Held in Trust — Parol Agreement — Enforcement of Sale Bond.— Two old ladies who owned two-fifths of a- farm that was ordered to be sold for division, made a verbal agreement with the husband of a niece that if he would buy the farm and let them live there as long they lived, he should have their part Of the purchase money. He bought the farm, they went his security on the sale bonds, and continued to live on the farm under the agreement. After the death of one of them, her personal representative took out an execution on the sale bonds coming to her. Held, That the purchaser held the land in trust for the two old ladies under the parol agreement and that the personal representative of the one who is dead cannot enforce the sale bonds after she received the full consideration she agreed to accept in satisfaction of the bonds.</p>

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

<p>Voluntarily Paying Debt of Another — No Recovery Can Be Had Therefor. — As a general proposition one who voluntarily pays for another a debt or obligation owed by the other, without the request of that other, or who expends money on account of another without the consent of that other, cannot recover the money laid out, and this upon the principle that no man can of his own volition make another his debtor.</p>

<p>Lands — Homestead and Dower Rights — Election to Take Homestead— Forfeiture of Dower. — Where a widow failed from the death of her husband, in 1877, to 1893, when she conveyed the property, to ask to have dower assigned her in it, it is presumed that she elected to take a homestead interest, and having but a homestead interest, by her sale and conveyance, she forfeited or lost this right, and the heirs at law of her 'husband, as soon as' the homestéad right of the widow was lost to her, were entitled to the possession thereof, for she having a right to the use of the property only so long as she chose to exercise it, her sale of it being an abandonment of this right, her purchaser acquired nothing by reason of his purchase.</p>

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

<p>1. Pleadings — Purpose Thereof — Damages Recoverable — Changed Conditions During Trial. — The purpose of pleadings is to bring the parties to an issue, and it would be manifestly unjust to permit a party to sue for special damages of $100.00 and then during the progress of the trial to amend and seek $600.00 damages without giving the opposing party an opportunity to meet this changed condition.</p> <p>2. Excusing Juror — Right of Court. — A court did not err in excusing a juror on its own motion whose brother had a suit pending at the same time against the same company.</p> <p>.3. Jurors — Rights in Considering Evidence. — Where a jury had the plaintiff and his witnesses before them-, and saw the way and manner in which they testified, -this court is not prepared to say that under the evidence as we read it, the jury was not entirely warranted in accepting the defendant’s theory as correct.</p> <p>4. Erroneous Instruction — Not Prejudicial. — This court will not reverse a case because an erroneous instruction was given when it appeared that it was not prejudicial.</p>

<p>Railroad — Interstate Commerce Law — Act June 18, 1910 — Freight Rates — Excessive Rate Not Enforceable. — Under the Interstate Commerce Law, section 6, as amended by the act of June 18, 1910, the courts have uniformly held that the carrier in the shipment of freight must charge the tariff rate, neither more nor less, and that where an excessive rate has been charged even •though the arrangement had been entered into with the shipper for a cheaper rate, such agreement would not be enforced, it being the purpose of the law making power to put all shippers upon an absolute equality.</p>

<p>1, Contracts — Specific Performance — Mutual Agreement. — It is elementary that specific performance of a contract will not he decreed except upon a completed contract. “There can he no contract unless the minds of the parties have mutually agreed, and specific performance will he denied when this requisite is lacking. Equity requires a clear, mutual understanding and a positive' assent on the part of each party.”</p> <p>2. Courts — Compelling Specific Performance. — To authorize a court of equity to exercise its jurisdiction compelling the specific enforcement of a contract it must be reasonably certain as to its •subject matter, its stipulations, its purposes, its parties and the circumstances under which it was made.</p> <p>3. Specific Performance. — A specific performance cannot be decreed of a contract to give or renew a loan which does not specify the terms for which it is to be given or renewed.</p> <p>4. Leasing Real Estate — Obligation of Contracting Parties. — It is not enough that there should he a writing signed by the grantor merely stating that he proposed to lease certain premises upon terms to be mutually agreed upon, but the memorandum relied upon must contain the terms, that is, it must furnish the evidence of the terms of the lease, the time it is to begin, the conditions upon which it is to be executed, the various provisions setting forth the respective rights, duties and obligation of the contracting parties. These things are of the very essence of the contract and they must necessarily be reduced to writing in order to take the case out of the statute.</p>

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

<p>1. Interest Coupons — Action on — Promise to Bay, Independent of Original Bond — Limitation.—While the coupon in controversy was based on tbe original bond, the promise to pay is independent of the bond, therefore, the statute of limitation will apply to the interest coupon as there was nothing presented to prevent its running, and as fifteen years is the limitation fixed by our statute with reference to such papers, the interest which fell due more than fifteen years before this action was brought was barred. Each coupon is a distinct and separate demand and bears interest from the date of maturity.</p> <p>2. Interest Coupons — When Lost — How Interest Paid. — Where a coupon was lost and appellants were compelled for their own protection to hold the money (no bond having been given to indemnify them), it would be inequitable !to compel them to pay interest on interest.</p> <p>3. Bonds, Coupons — When Lost. — Duty of Court in Action on. — The lower court should render a judgment for each remaining coupon to the date of maturity of the original bond, and also a judgment for the amount of the bond.</p>

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

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

<p>Indictment — Sufficiency of Allegations. — The indictment in this case being for a violation of section 3915, Kentucky Statutes, (known as the anti-trust act of May 20, 1890,) before its amendment by section 3941a, Kentucky Statutes, (known as the Farmers’ Pooling Act of March 21, 1906), it was only necessary that it should charge and describe, as it did, the offense denounced by the first section (3915), viz: That appellant entered into and became a member of a pool, trust, combination, &c., to fix and control the price at which harvesting machines were to be sold in Spencer county. So, it wais unnecessary for the indictment to allege that by means of the combination charged appellant actually raised the price of harvesting machines above or depreciated them below their real value; or that it sold such machines at a price or prices above or below their real value. Therefore, the ruling of the Circuit Court in sustaining the demurrer to the indictment was error.</p>

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

<p>1. Slander — Words not Actionable. — The words “He took five*of my ¡big steers from my .pasture and left five scrub steers in their place I can’t keep any sheep a't all, and will have to go out of the sheep business; X had 45 sheep and have only 26 left, and Gilbert got them. Gilbert .sold Stewart Jones a steer belonging to me, and it was a good one, and left a scrub steer in its place,” are not actionable per se. ■</p> <p>2. Slander — Words Actionable Per Se. — Words that clearly and unequivocally import that the person accused is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment, are actionable per ®e.</p> <p>3. Slander — Words Not Actionable. — Words that in their usual and ordinary meaning as commonly understood do not clearly import the commission of a punishable crime involving moral turpitude, are not actionable per se, and cannot be made actionable by an innuendo.</p> <p>4. Slander — Innuendo.—Tbe innuendo in slander pleading is an averment setting forth the meaning the pleader believed should be given to the words charged, but it cannot enlarge the meaning of the words or give to them an actionable quality they do not possess.</p> <p>5. Slander — Special Damages. — Words, although not per so actionable, that are spoken concerning the business, office or profession of another, if they impute dishonesty or unfitness or incompetency may be made the basis of an action to recover special damages for an injury to the person in his business, trade or calling.</p> <p>6. Slander — Inducement.—Words that standing alone are not susceptible of a criminal meaning, but that are spoken under surroundings or circumstances that import to them such a meaning may be made the basis of an action, if all the extrinsic facts and circumstances relied on to impart to the words an actionable quality are stated in the petition.</p>

<p>1. Land — Action to Recover — Condemnation by City — Acts of City Not Inconsistent With Purpose for Which Property was- Condemned. — In an action to recover certain real estate from the city of Louisville which it had acquired by condemnation proceedings for wharf purposes, Held, That the alleged purpose of the city to sell it to the Sinking Fund Commissioners was not inconsistent with the purpose for which the property was condemned, because the ordinance authorizing the conveyance to the Commissioners said that they “are to hold said property upon ■the saíne trusts and for the same purposes as it is now held by the city.” Nor was the lease-hold granted by the city for railroad operations an abandonment of the property for the purpose for which it had been condemned, for' the lease provided that it was subject to the city’s right to use the land for a wharf, basin, or landing.</p> <p>2. Land — Government’s Wall of Masonry. — The building of the wall of masonry by the government between the property and the river does not make it physically impossible to use the property for the purpose for which it was condemned, for the same power that put the wall there can remove it.</p> <p>3. Same — Acts Complained of — Do Not Amount to Forfeiture. — The acts complained of as above indicated do not amount to a forfeiture by the city of the right to use the property- for the purposes for which it was condemned.</p>

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

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

<p>Railroads — Action for Special Damages — Loss of Crops — Negligent Construction of Embankment — Rule as to Recovery. — In actions for overflow of land, where the structure is permanent and properly built, a single recovery must be had for all damages; where a structure unlawfully or negligently built, though intended to be permanent, recurring recoveries for such improper or negligent construction, may be had as the injuries occur, and for a temporary structure, recurring recoveries may b© had as the injuries occur, and whether the original construction was unlawful or negligent, is a question for the jury.</p>

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

<p>This case is affirmed upon the authority of Madisonville, Hartford & Eastern Railroad Co. v. Graham, this day decided.</p>

<p>Insurance — Fraternal Society — Beneficiary—Wife—Divorce.—In the case of fraternal societies, the right of the beneficiary to the proceeds of the certificate depends upon the relationship sustained by the beneficiary to the member at the time of his death, unless the charter and by-laws of the society otherwise provide, and the right of the wife who is designated as the beneficiary in the certificate to the proceeds thereof is defeated by an absolute divorce.</p>

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

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

<p>1. Landlord and Tenant — Sub-Tenant.—Where the owner leases ground and the tenant sub-lets to another, the sub-tenant occupies no better position than his immediate lessor, and the same state of facts that would justify a cancellation of the lease as to the original tenant, would be grounds for its cancellation as to the sub-tenant.</p> <p>2. ■ Same — Acceptance of Rent — Ratification of Sub-Lease. — Where • the owner of ground leases to a tenant who sub-lets' to another, and the lease was canceled, the mere receipt of rent by the owner from the sub-tenant, after the cancellation of the leaise, is not conclusive of the owner’s intention to acknowledge the sub-tenant’s tenancy under the lease. Whether the acceptance of the money was an acknowledgment of the tenancy under the lease or of an entirely different tenancy, is a question for the jury, and in its determination, tile jury may consider all the facts and circumstances attending the transaction.</p> <p>3. Same — Forcible Detainer — Instructions.—In an action of forcible detainer, instructions examined and held not prejudicial.</p> <p>4. Same — Forcible Entry and Detainer; — Evidence.—In an action of forcible detainer, evidence examined, and held to support a verdict in favor of the plaintiff.</p>

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

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

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

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

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

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

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

<p>1. Judgment — When Will Not be Reversed — Evidence—Notice.— A judgment will not be reversed for tbe admission in evidence of a letter press copy of a letter without notice to the adverse party to produce the letter or proof that it is lost, when upon the trial the adverse party practically admitted receiving the letter, and the admission of the evidence on the whole case was not prejudicial to his substantial rights.</p> <p>2. Evidence — Copy of Telegram. — The copy of a telegram which is delivered to the sendee may be given in evidence by him without producing the written message which the sender delivered to the telegraph company.</p> <p>3. Note — -Endorser—Surety When Cannot be Held. — Under the negotiable instrument act, one who endorses a note cannot be held liable as surety on it unless he indicates in his endorsement by appropriate words his intention to be so bound.</p>

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

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

<p>1. Torts — Peremptory Instruction. — Where the plaintiff sued for damages for injuries caused by being struck by an elevator while he was at work on the elevator shaft, and the proof being contradictory and conflicting as to whether he was guilty of negligence, the trial court properly overruled defendant’s motion for a peremptory instruction, and submitted the case to the jury.</p> <p>2. Negligence — Master and Servant. — Where the relationship of master and servant does not exist, a person operating an elevator owes a duty to exercise ordinary care to avoid injuring other persons who may be working for a different employer in the construction of the building in which the elevator is operated.</p> <p>8. Damages- — Amount for Jury. — Where the testimony is conflicting as to the -extent and character of the damage received, it is for the jury to fix the amount of recovery; and its finding will not be interfered with unless it be so excessive as to leave the impression that it was the result of prejudice or passion.</p>

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

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

<p>Appeals — When Damages Awarded on Dismissal. — Ten per cent damages may be awarded where an appeal is dismissed for want of jurisdiction.</p>

<p>Local Option — Giving Whiskey to Neighbor for Sickness Not Unlawful. — The local option act does not make unlawful the giving of whiskey by one person to another in local option territory; and where a neighbor as a kindness lets another neighbor have some . whiskey for a sick child, the law is not violated, although the whiskey is in fact returned subsequently,' there being no agreement, expressed or implied, that it should be returned.</p>

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

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

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

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

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

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

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

<p>Appeal from Warren Circuit Court.</p> <p>1. Personal Representative — Suit Against. — Under section 3847 of the Kentucky Statutes, a personal representative cannot be sued within six months after his qualification, except to settle the estate; but an action for the settlement of an estate may be brought as soon as the representative qualifies.</p> <p>2; Decedent’s Estate — Right to Sue for Settlement. — Under section 428 of the Civil Code of Practice, a suit to settle the estate of a decedent can be brought only by the representative, legatee, distributee or creditor of the decedent.</p> <p>3. Decedent’s Estate — Suit to Settle. — The petition in an action to settle the estate of a decedent, brought pursuant to section 429 of the Civil Code, must state the nature and value of the prop, erty, both real and personal; and,.if it wholly fails to state the nature and value of 'the property in such a way as to identify it, and merely refers to the property in such general terms as not to bring the estate within the control of the court, the petition is insufficient, and a demurrer will be sustained thereto.</p> <p>4. Decedent’s Estate — Settlement Suit. — Where an action merely ■; seeks an accounting by the administrator, and does not satisfy the requirements' of section 428 of the Civil Code' of Practice, which regulates the bringing of actions to settle a decedent’s estate, the action is not a settlement suit within the meaning of the Code, and cannot be brought within six months after the qualification of the personal representative; to call it a settlement suit wilPnot make it so.</p>

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

<p>1. By-laws and Buies Adopted by Public Bodies. — Force and Effect of. — Where a .public .corporation pursuant to legislative authority enacts rules and by-laws for Its government in the conduct of the ,- public affairs committed to its care, these by-laws have the force r - and effect of statutory regulations, and are binding upon the public body as well as all persons deáling with it, although such persons may have no notice of the existence of the by-law.</p> <p>2.. Public Corporations — Persons Dealing With, Must Take Notice ' of Powers of. — Persons dealing with a public corporation are bound at their peril to know that contracts made by the officials of such corporation are made in the mode pointed out in the act creating the body, and a contract not so made is not binding ■ or enforcible.</p> <p>3. Public Corporations — Effect of Rule Requiring Advertisement for . • Bids. — Where a by-law adopted by a public corporation pursuant to statutory authority provided that no contracts exceeding $500.-00 should be made, except after advertisement, this by-law was .mandatory, and a contract attempted to be made by the corporation without advertising in the manner provided by the by-law was void.</p> <p>4. Mandamus. — Under section 477 of the Civil Code, the writ, of mandamus is only allowed against an officer who fails or refuses to perform some duty imposed upon him by law. It was not intended to aid a plaintiff in the enforcement of a mere contract right or to take the place of the other remedies provided by law for the • adjudication of disputed claims.</p>

<p>1. Deeds — Voluntary Deed for Charitable Purposes — Reverts to Grantor When Purpose of Conveyance Pails. — Although a deed contains no provision- to the effect that, in the event the property shall cease to be used for the purpose for which it was granted it shall revert to the grantor, such provision- was not necessary, for the conveyance being a voluntary one for charitable purposes, it would automatically revert to the- grantor when, the purpose for which, the conveyance was 'made had failed.</p> <p>2. Deeds — Abandonment of Property. — The trustees to whom the property had been conveyed, had torn* down aid removed the building and disposed of the property, so there was not only a failure of the purposes for which the conveyance was made, but an abandonment of the property by the trustees of th-e several churches named in the conveyance. The chancellor correctly held that the heirs at law of the donor were entitled to the property. <•</p>

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

<p>1. Equity, Court of, May Lay Out Streets. — A court of equity may lay out streets in land ordered to be -sold and a street may be dedicated by proceedings in sucb an action, though hot expressly ' ordered.</p> <p>2. Pleading — Omitting Word in Caption. — The omission of the word counterclaim in the caption of an answer is not ground for demurrer.</p>

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

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

<p>1. Attorney and Client — Agreed Fee — When May Recover Whole Fee. — (An attorney who is employed at an agreed fee, may recover the whole fee, although subsequently other attorneys are employed to assist him in the case, unless there is an agreement that his fee is to be reduced.</p> <p>2. Attorney and Client. — An attorney employed upon a fee contingent upon his winning the case is entitled to his whole fee where he wins the case on all that was in issue.</p> <p>3. Judgment — -When Will Not Be Reversed — Instruction.—A judgment will not be reversed for a misleading instruction where upon the instructions as a whole, the meaning is clear, and the verdict of the jury shows they were not in fact mislead.</p>

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

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

<p>Interest — Where One Holds Money Subject to Order of Court — When Chargeable with Interest. — Where a person is claiming money as his own and is permitted to collect it and retain it as his own, and is only required to hold it subject to the court’s order in case it turns out that he is not entitled to it, the presumption arises that he retained and used the money as his own, an<i he is chargeable with interest.</p>

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

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

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

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

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

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

<p>1. Criminal Law- — Where Evidence Creates But Mere Suspicion of Guilt — Peremptory Instruction. — ¡Upon the trial under an indictment where the evidence creates but a mere suspicion of guilt on the part of the accused, and this suspicion was dispelled by the evidence in his behalf and as a whole, a peremptory instruc- . struction directing the acquittal of the accused should be given.</p> <p>2. Peremptory Instruction. — The «trial court has the same right and authority to give a peremptory instruction in a criminal case that he has in a civil proceeding.</p>

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

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

<p>1. Corporations — ¡Forfeiture of Franchise. — Where & lighting com-, pany had -a franchise ¡to furnish a city and its inhabitants with gas, and was. not to furnish gas to persons outside of (the city, the franchise- will not be forfeited for misuser upon the general and-vague allegation that the corporation has been furnishing gas to unnamed persons residing outside of the city, without specifying any definite acts of misuser.</p> <p>2. Pleading — Right to Sue — Party in Interest. — Where a gas company made a contract with a city to furnish gas.to the city and its inhabitants at a certain price, and the gas company overcharged the gas consumer, the right to recover the overcharge is in the gas consumer and not in the city.</p> <p>3. Corporations — Forfeiture of Franchise. — Where a corporation had a franchise to furnish artificial gas to a city and its inhabitants, and -the city subsequently passed -an ordinance for the sale ,. of a franchise to furnish natural gas to the city and its inhabitants, and provided therein that the purchaser of the natural gas franchise might make a contract with the old company to : use its pipes and -mains in distributing the natural gas under the new franchise, and that such a use of the mains and pipes should • .not operate as a forfeiture of its charter for non-user, the action of the city is a waiver of the original franchise provisións that required the corporation to furnish artificial- gas.</p>

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

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

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

<p>1. Criminal Law — Violation of Antitrust Statute — Evidence of Sal©. —The fact that a sale of the prohibited articles was, made in the county in which the prosecution is pending may be shown indirectly or by circumstantial evidence. In other words, by that character of evidence that in ordinary penal actions would be sufficient to establish the existence of any material fact. Evidence that the goods were purchased by merchants in Todd . county, and delivered to them in Todd county, was sufficient to show that the sales were "made in Todd county, in the absence of convincing proof to the contrary.</p> <p>2. Criminal Law — ¡Evidence as to Sal© at Price Above its Real Value. —(Evidence examined • and held to sustain the charge that the articles were sold by the company at prices greater than their real value.</p> <p>3. Criminal Law — Evidence to Show Cost of Article. — Evidence of the cost of putting an article on the market and selling it is entitled to as much weight as evidence of the cost of the manufacture of it in determining the price at which the article should be sold; and so, in ascertaining whether or not an article is sold above or below its real value, the cost of sale as well as the cost of manufacture should be taken into consideration.</p> <p>4. Criminal Law — Value of Article — -Instruction.—dt is not error in a prosecution under the anti-trust statute to refuse to instruct the jury that they should consider the improved condition of the machine in arriving at its value.</p>

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

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

<p>Railroads — Member Train Crew Subjecting Himself to Danger — Not in Place Where His Presence Should Have Been Anticipated — Former Opinion Law of Case. — Where a member of a wrecking crew put himself in a place of danger, knowing the train often started without signal, he subjected himself to danger which he knew was imminent, and under such circumstances it cannot he claimed for his estate that he was in a place where his presence should have been anticipated.</p>

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

<p>Judgment — Affirmance Of. — Allowance of Ten Per Cent. Damages.— The court has no discretion as to awarding ten per cent, damages under the statute, and where a superseded judgment has been affirmed ten per cent, damages must be awarded although ten per cent, damages has been awarded and paid on a prior appeal from the same judgment which was dismissed.</p>

<p>1. Criminal Law — Evidence of Former Difficulty. — It is competent to prove the fact that there had been a previous difficulty between the accused and the deceased, but not the details of the difficulty.</p> <p>2. Trial — Exception to Ruling Necessary. — In order that a ruling of the circuit court may be reviewed by the Court of Appeals, it is necessary that an exception be taken thereto at the time the ruling is made.</p> <p>3. Trial — /Misconduct of Attorney. — The misconduct of an attorney in the argument of the case can not be reviewed where no objection was made to the conduct, at the time.</p> <p>4. Trial — Misconduct of Counsel Must be Shown by Bill of Exception. — Where there was a failure to object to the misconduct of counsel, at the' time, the alleged misconduct can not be brought before the court by affidavits filed in support of a motion for a new trial; such misconduct can only be shown by the bill of exceptions, and that the objection was taken at the time of the alleged misconduct.</p> <p>5. Appeals in Criminal Cases. — Section 281 of the Criminal Code of Practice, as amended by the Act of 1910, does not authorize the Court of Appeals in reviewing a criminal case upon its merits, to take into consideration rulings of the trial court to which no objection was made at the time.</p> <p>8. Appeal and Error in Criminal Cases. — The amendment of 1910 to section 281 of the Criminal Code of Practice was not intended to change or enlarge the powers of the circuit court in the trials of criminal cases; it only enlarged the powers of the Court of Appeals by giving it the right to review the case upon the merits, and reverse it if the verdict was not sustained by sufficient evidence. The amendment merely gives an additional ground of review; it in no wise abrogates the method of presenting the ground.</p>

<p>1. Lands — Disputed Line — Title.—jin this action involving the title to a small parcel of land claimed by each of the parties to be included within the boundary of his deed, as appellee’s is the elder title and appellant’s deed calls for and to run with appellee’s land, the only legal way of determining the controversy was to properly locate appellee’s line called for by appellant’s deed. This the circuit court did by adjudging that the line in controversy ran from a buckeye tree, marked as a corner, standing near a spring on Baugh branch, to a double chestnut oak, also marked as a corner, on the top of an adjacent ridge, which included within the boundary of appellee’s deed the land in dispute.</p> <p>2. Same — Judgment—Evidence.—As it is not apparent from the record that the judgment of the court thus locating the line is contrary to the weight of the evidence, the judgment will not bo disturbed.</p>

<p>Local Option — Indictment for Sale of Liquor in Prohibited Territory— Sale in Indiana. — Under an indictment charging the sale of liquor in local option territory, where the seller was a resident of Indiana, and delivered to a carrier of whiskey who transported it and delivered it to the purchaser at Brandenburg, this State, it was error to adjudge the defendant guilty. The essential element of the sale having occurred in Indiana, there was no violation of the local option laws of this State.</p>

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

<p>1. Actions — When May Be Dismissed Without Prejudice — Infants. — After a case has been submitted on the merits, the plaintiff may not as a. matter of right, dismiss the action without prejudice, but the court may in its discretion, allow the action to be dismissed without prejudice where the infant defendants were not properly before the court and no report had been filed by their guardian ad litem.</p> <p>2. Same. — Where the action is allowed to be dismissed without prejudice, a counter-claim filed in their name when they were not' properly before the court, and were not represented by their guardian or guardian ad litem, should also be dismissed without prejudice. <■</p>

<p>Lessor and Lessee — Lease—When May Be Cancelled. — The lessor may have a cancellation of a lease for an asphalt mine where by the terms of the lease there was no other consideration for it than the payment of 10 cents a ton for the asphalt taken out and the lessee had ceased to operate the mine and had done no work on it for seven years.</p>

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

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

<p>Attachments — Specific Attachments — What Affidavit and Proof Need Not Allege. — Unlike the affidavit and proof required in order to procure the issual of and sustain a general order of attachment, the affidavit and proof for a specific attachment need not allege that the property is about to be sold, concealed or removed from the State with a fraudulent intent to cheat, hinder and delay creditors. The ends of the law are satisfied when the allegation is made and supported by proof that the property is about to he sold or concealed or removed from the- State.</p>

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