Volume 148 — Kentucky Reports

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

<p>1. Appeal and Error — Counterclaim—Issue Not Submitted — ¡Error— ' Prejudicial. — Where in .an action by plaintiff to recover balance of salary claimed to be due, the defendant relies upon a subsequent oral contract reducing plaintiff’s salary, and also pleads a counterclaim, based upon such oral contract, for overpayments, and the issue whether or not there was such oral contract is submitted to the jury, and the jury finds against the defendant, failure of the court to submit the issue on the counterclaim is not prejudicial.</p> <p>2. Same — Judgment—Reversal.—A judgment will not be reversed for the failure of the trial count to instruct the jury on an issue not made by the pleadings and upon which no instruction is offered.</p>

<p>1. Criminal Daw — Affidavit ior Continuance When Discretion ot Court Not Abused. — The statute allowing the affidavit ior continuance to be read as the .deposition of the absent witnesses is constitutional and the discretion of the court to require the state- : ments of the affidavit to be taken as true, is not abused where no facts are sh-own warranting the conclusion that the proper effect of the testimony of the witnesses cannot be obtained without their presence in court.</p> <p>2. Evidence. — Statements of the defendant shortly before the homicide tending to show malice are competent as evidence although the deceased is not named in the statement.</p> <p>3. New Trial — ¡Newly Discovered Evidence. — Motion for new trial on the ground of newly discovered evidence should be supported by the affidavit of the witnesses that they will so state, or by some other evidence than the affidavit of the defendant; and a new trial Will not be granted for newly discovered evidence which is merely cumulative.</p>

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

<p>Schools — Act Regulating Control of Louisville Schools — Removal of Employe — Pleading.—In . an action hy an employe of the Louisville 'School Board, charging that the Superintendent of Schools had prevented his discharging the duties of the office, the demurrer to his petition was properly sustained. It did not allege that after the hoard had perfected its new method of administration, fol-I lowing the amendment of the law, it had retained him, nor does it show when, the new order had been effected, and it must be assumed that his continuance was but" temporary during the change of systems.</p>

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

<p>1. ■ Deed — Cancellation—Duress—Mentar Incapacity — Evidence. — In •an action by a wife to set aside a deed on tbe ground of duress and mental incapacity, evidence examined and held to sustain a finding in favor of tbe defendant.</p> <p>2. Deed — Duress—'Cancellation—Bona Fide Purchaser for Value.— Tbe title of a bona fide purchaser of real estate for value and without notice, is not affected by the fact that the grantor, a married woman, was under duress imposed upon her by her husband at the time the deed was executed and acknowledged.</p> <p>3. Deed — ¡Duress—Cancellation—Unreasonable Delay — Ratification.— Where the purchase price of land is paid to the husband-, and by him, with his wife’s knowledge, expended for the benefit of the family, and shortly after the conveyance they move from .the property, and the purchaser erects valuable improvements thereon, ¡and the wife delays for over seven years to bring suit to avoid the deed on the ground of duress imposed upon her by her husband, this will amount to a ratification of the deed.</p> <p>4. Deed. — Cancellation—Fraud.—In the absence of other circumstances tending to show fraud, the mere fact that the grantor executes and acknowledges a deed to the purchaser’s father, though he believes the purchaser is the grantee therein, will not amount to a fraud upon the grantor, where the grantor receives the benefit of the full purchase price.</p>

<p>Appeals — One Appellant Cannot Have Relief Against Co-Appellant.— One appellant cannot Rave relief against a co-appellant. If one appellant 'desires relief against another party, Re should make him an appellee to the appeal, or take out a separate appeal against him which may be done on the same record.</p>

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

<p>1. Husband and Wife — Divorce—Restoration of Property. — Under section 425 of the Civil Code, providing in substance that every judgment for divorce shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained from or through the other during marriage, and that any property so obtained without valuable consideration shall be deemed to have been obtained by reason of marriage, if it appears that money or property has been received by the husband or wife from or through the other, the presumption arises that it was obtained by reason of marriage. Nor do the circumstances under which the property was given have any weight in determining whether it shall be restored. It is not material whether the parties were living together happily or not, or what was the state of their marriage relation.</p> <p>2. Husband and Wife — Property Given to Settle Property Rights of Wife. — If the husband and wife have separated, or are in the act of separating, and growing out of this condition the husband gives to his wife property in settlement of her property rights, the property so given will not be treated as having been obtained by virtue of the marriage, and will not be ordered to be restored in a subsequent judgment of divorce unless there are strong equitable reasons why it should be done.</p> <p>3. Husband and Wife — Action by Wife, After Divorce, to Recover Property Obtained During Marriage. — Where the husband during marriage gives to the wife property, and afterwards during the marriage relation takes it from her, she cannot in an independent action after the divorce is granted recover the property, unless it be shown that it was given to her in settlement of her property rights.</p>

<p>Wills — Other Estate Than. That Described in Will — Treated as bn- ■ . disposed of Estate. — Where a testatrix owned real estate other than that described in the will, and failed to make disposition of it, it must he treated as undisposed of estate, and as to it, she died intestate.</p>

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

<p>1. Railroads — -Intoxication of Passenger — Compelling Passenger to Leave Train — Submission to Jury. — As there was some evidence, though slight, conducing to prove that appellant was wrongfully compelled by appellee’s conductor to leave the train upon which he attempted to ride as a passenger the case, upon such evidence and that of appellee conducing to prove that the conductor refused to receive him -as a passenger because he was intoxicated, was properly allowed to go to the jury under the instructions given by the court which contained all the law of the case.</p> <p>2. Instructions — Punitive Damages — Evidence.—The refusal of the trial court to give an instruction authorizing the recovery of punitive damages was not' error, as the evidence wholly failed to «how that unnecessary force wap used by appellee’s servants in requiring appellant to leave the train; or that their conduct or language toward appellant was violent, insulting or oppressive.</p> <p>3. Punitive Damages — Evidence—Question for 'Court. — (Whether there is any evidence in a given case to justify the assessment of punitive damages, is for the determination of the trial court.</p>

<p>Wills — Rule of Construction — Irreconcilable Discrepancy in Clauses of Will — Last Clause Will be Enforced. — It is a well recognized rule of construction that, where there is an irreconcilable discrepancy between two clauses of a will, the last clause in place in the will will be enforced, and the preceding clause in conflict with it will be annulled.</p>

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

<p>Bill of Exceptions. — The stenographer’s transcript containing the necessary matter may be filed as a bill of exceptions.</p>

<p>Bill of Exceptions. — A bystander’s bill of exceptions must be filed where the judge who presides at the trial dies before the bill is made up.</p>

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

<p>1. Contracts — Construction by the Parties. — Where the parties- to a ■contract of doubtful meaning have given it a particular construction, that construction will generally ,be adopted by the court in giving effect to its provisions.</p> <p>2'. Specific Performance — (Extension of Time. — When the vendor has himself been instrumental in producing the delay in the performance of the contract, or has given countenance thereto by lying back, the effect thereof ought not to be solely applied to the purchaser; and in such a case he will be given a reasonable extension of time to perform his part of the contract.</p> <p>3. Specific Performance — Rents.—When a contract for the sale of land is specifically enforced, the title to the land vests in the purchaser as of the date of performance called for by the contract; and from that date the purchaser becomes the owner of the land and entitled to the rents thereof, and is liable for the charges against it.</p>

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

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

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

<p>1. Costs — Judgment for — Cannot be Rendered Against Commonwealth in Action Unsuccessfully Prosecuted Against It. — iAs section 885 Ky. Stats.' provides that “If tbe Commonwealth shall be unsuccessful in any case prosecuted in her own right, no judgment; for costs shall be rendered against her,” it necessarily follows that, a judgment for costs cannot be rendered against her in favor of a plaintiff in an action successfully prosecuted by him.</p> <p>2. Same. — In such case the plaintiff must be taxed with costs incurred by him, but not with the costs incurred by the Commonwealth.</p>

<p>1. Wills — Construction of. — A testator providing that certain grandchildren should be excluded “except as hereafter men-, fioned,” they take no interest in any property thereafter devised unless they are mentioned in the devise.</p> <p>2. Wills. Property not devised will be distributed under the statute.</p>

<p>1. Deed — Delivery.—Where a deed is executed and acknowledged by tbe grantor, and left in tbe possession of a bank, and $500 of the purchase money is paid, and notes for tbe deferred payments are also in possession of the bank, and tbe purchaser has been placed in possession of tbe property, tbe presumption, in tbe ab: sence of evidence to tbe contrary, is that tbe bank is tbe agent of both parties, and tbe delivery of tbe deed to tbe bank is sufficient to vest tbe purchaser with an interest in tbe land which she could mortgage.</p> <p>2. Vendor and Purchaser — Mortgage of Record — Notice.—-A purchaser of land from one having an unrecorded deed therefor, .with knowledge of such deed and tbe fact that the vendor had been put in possession of tbe land, and bad paid a part of the purchase price, takes subject to a mortgage of record, executed by bis vendor after tbe latter acquired title.</p>

<p>1. Criminal Law — Evidence of Particular Crimes. — It has been- settled by repeated decisions of this court that it is not proper to inquire of a witness about particular crimes or offenses against tbe law that be has been charged with.</p> <p>2. Criminal Law — (Discretion of Court as to Arguments. — The time that shall be allowed'counsel for the accused in criminal cases' for argument is a matter largely in the discretion of the trial judge, and unless it clearly appears that this discretion was abused, it will not amount to reversible error.</p>

<p>1. Mineral and Timber Contracts — Implied Condition. — Where a grantor conveys his interest in the minerals and timber on a large body of land, and the only consideration he is to receive is a per cent, of the net profits derived from the property conveyed when it is manufactured and sold by the grantee, the law will imply an agreement upon the part of the grantee to begin the development of the property within a reasonable time although there is no condition of this kind in the contract.</p> <p>2. Mineral and Timber Contracts — Construction of. — A writing, although it may purport to convey the fee in timber and minerals, will be treated as a lease obliging the grantee to begin opera- • tions within a reasonable time, if the condition of the parties and the circumstances surrounding the execution of the paper make it necessary that this should be done to protect the rights' of the grantor and it appears that this was the intention of the' parties.</p> <p>3. Mineral and Timber Contracts — Abandonment.—Where a contract for the'sale of timber and mineral interests imposes upoA the grantee the duty of developing the estate conveyed within a reasonable time, the failure of the grantee to begin operations within a.reasonable time may he treated by the grantor as an abandonment of the estate on the part of the grantee, and the grantor may peaceably enter and take possession.</p> <p>4. Mineral and Timber Contracts — Remedies of Grantor. — Where the grantee fails to perform the conditions of the contract, the grantor may bring a suit for specific performance or a cancellation of the contract, hut these remedies do not preclude him from treating the contract as abandoned by the grantee and peaceably taking possession of the premises.</p> <p>5. Contracts — Reasonable Time for Performance of Conditions, What is. — A reasonable time for the performance of conditions in a contract is a question of fact to he determined by all the circumstances of the case. No fixed rule can he laid down.</p> <p>6. Contracts — Consideration Entitled to Weight in Construction of.— In determining whether a paper was intended by the parties to he a conveyance in fee or only a lease under which the grantee must begin operations within a reasonable time, there is no feature entitled to more weight than the one relating to the consideration and the manner of its payment. When the consideration has been fully satisfied, and the grantor has parted with his title, the construction that the fee has been conveyed will prevail; hut if the consideration is only a per cent, of the profits to he realized from the development of the estate conveyed, the court in an effort to do justice will construe the contract as a lease.</p> <p>7. Contracts — Construction of. — In the interpretation of contracts, it is admisible to look into the situation and condition of the parties and the circumstances surrounding them at the time the instrument was executed, as an aid in arriving at its proper construction.</p>

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

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

<p>1. Criminal Law — Homicide—Continuance—Absent Witnesses— Affidavit for Continuance. — On a trial fpr homicide, affidavit for continuance on account of absent witnesses examined, and held to show diligence on tbe part of defendant in attempting to secure tbeir attendance, and that as their testimony was material, the court erred in failing to permit the affidavit to be read as their deposition.</p> <p>2. Same — Absence of Witness on Occasion to Which His Testimony Relates — Argument of Commonwealth’s Attorney. — Where an affidavit for a continuance is read as the deposition of an absent witness, it is never proper for any attorney representing the Commonwealth to attempt to prove, or to argue, that the witness, if present in court, would not, as a matter of fact, so testify; but it is not improper for the Commonwealth to show, or for the attorney for the Commonwealth to comment on the fact, that the evidence shows that such witness was not present on the occasion to which his testimony relates.</p> <p>S. Commonwealth’s Attorney — Improper Argument. — While every man’s innocence or guilt should be determined by the jury from the facts of the particular case, and no man should ever be convicted or made to suffer a severer punishment merely because of the prevalence of crime in the community, it has always been considered as within the limits of legitimate argument to insist on the jury doing its duty for the purpose of preventing bloodshed and crime.</p>

<p>1. Actions — Recovery of Personal Property — Counterclaim—(Evidence. — In an action to recover certain items of personal property by a lessee wbicb be claimed bad been adjudged to bim in a former action, but wbicb tbe lessor bad wrongfully withheld from bim, evidence examined and held that tbe verdict in favor of tbe lessee upon tbe counterclaim of the lessor in which it pleaded that tbe lessee was indebted to it in a much larger sum in excess of tbe property claimed, was error, and as there was no evidence of a substantial nature upon wbicb tbe finding of tbe jury as to the counterclaim can be based, tbe trial judge should have awarded tbe appellant a new trial.</p> <p>2. Equity — Transfer of Action. — In view of tbe complicated state of accounts, the case should be transferred to equity with tbe right given to file additional pleadings.</p>

<p>1. Wills — What Not Evidence of Mental Unsoundness. — The fact that one believes in spiritualism is not an evidence of unsound mind.</p> <p>2. Insane Delusion. — A belief founded upon evidence, however unsatisfactory that evidence may be to some other mind, which measures it to test its sufficiency, is not an insane delusion.</p> <p>3. Wills — Influence of Occult Power — Evidence—Peremptory Instruction. — There being no evidence in the record showing that the will was written, or induced by the exercise of occult power, or that the gift was not the act of a sound mind, the peremptory instruction directing a verdict sustaining the will .was proper.</p> <p>4. Wills — Undue Influence. — It is well established that an influence sufficient to invalidate a will must be such as to destroy the testator’s free agency and as to induce him to do against his will, • that which he would otherwise not do.</p>

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

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

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

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

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

<p>I.. Wills — Where Will Directs Sale of Estate — Executor Acts Upon- . Authority of Will, Rather Than Judgment. — Where a will directed the estate of. decedent to be converted into money and the exe_ . cutor to distribute, the same, the executor is necessarily clothed with the power to sell, ánd a purchaser under such a sale acquired, a good and suffcient- title to the property which the executor .conveyed him. And where the executor in an action for a ; settlement of the estate, was ordered to sell certain real estate, ' : which he" did, he acted, not upon the authority conferred by the " judgment, hut rather upon the authority conferred by the will, ■ ' and- it was not necessary that the sale, when made, should have been reported to the court at all.</p> <p>2. Trustee — Appointment of — Parties.—When application is made - " for -the- appointment of a trustee for the purpose of carrying out the provisions of awill, it is the duty of the court to select some ■ , competent person, but it is not- necessary, that ’ all having an interest in the trust fund should join in the application for the appointment of a trustee, or should be parties to the proceeding.</p> <p>3. Trustee — Power to Sell Conferred by Will. — The power of a trustee to ■sell- real estate is conferred by the will, and not by the - order Of court appointing him. Therefore, in appointing a trustee • to fill a vacancy, it was not necessary that the order should conier'power of conveyance .this having been conferred by the will upon the original trustee. ' .'</p> <p>4. Specific Performance — Deed Tendered. — The deed tendered passed an. absolute .fee simple title to the property described and spe-ci£c..performance of the' contract.was properly decreed.’</p>

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

<p>1. Municipal Corporations — Construction of Water Plant — Ordinance. — In an action to test the validity of proceedings authorizing and directing an issue of bonds for the construction of a water system, the record shows that in all essential particulars the ordinance met the requirements of the statute.</p> <p>2. Constitutional Provision — Indebtedness of School Board — Not to be Treated as Part of Indebtedness of City. — It is complained that the indebtedness of the school board together with the amount of the proposed bond issue for the construction of the water plant would make the total indebtedness of the city exceed that authorized by the Constitution, but while the indebtedness of the school board must be finally met by a tax levied upon all the property in the city, its bonded indebtedness is a lien upon the school property alone, and in estimating the indebtedness of the city in order to determine whether a proposed bond issue would be within the constitutional limit, the bonded indebtedness of the school board is not to be treated as a part of the indebtedness of the city, and excluding this indebtedness appellee in issuing the proposed bonds is not acting in violation of section 158 of the Constitution.</p>

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

<p>1. Contracts — Action to Enforce Mortgage Lien on Piano — Counterclaim — Practice.—In an action in the Jefferson Circuit Court by appellant to enforce a mortgage lien for damages on a piano, to which appellee filed a counterclaim and sought the cancellation of certain notes, the action was filed in equity, but was transferred to the common law docket for trial upon the common law issues. A jury trial was had, resulting in a verdict on the counterclaim, and upon the return of the case to the chancery court judgment was entered accordingly. Appellant complains of the general order of transfer and contends that only certain specific questions of fact should have been certified and that the verdict should have been in the nature of answers to these questions. Held, That the procedure in the common pleas court was proper, and the submission of the issues by instructions for a general verdict instead of asking for specific answers at the hands of the jury to certain specific questions of fact was proper.</p> <p>2. Instructions — Loss of Profits. — Before appellee could lay any claim for loss of profits in the way of earnings she would have received in teaching her pupils had appellant not removed the piano, she must affirmatively show that she made an effort, and was unable to obtain a piano elsewhere with which to carry on her business. The fact that she was unable to teach any given pupil for a time does not mean that she should be paid for the ' loss of that pupil.</p>

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

<p>1. Indictment — False Swearing — Demurrer to - Indictment. — ¿An indictment against appellant for false swearing under section 1174 Ky. Stats., having failed to allege that he, at the time of giving the alleged false testimony, knew it to be false, is fatally defective, and' his demurrer thereto should have been sustained.</p> <p>2. Indictments — Indeterminate Punishment — Verdict Erroneously ■ Fixing Punishment — Duty of Trial Court. — Although under the ' statute providing indeterminate punishment in felony cases, it is the duty of the trial court, after the return of a verdict of guilty, to enter judgment fixing the punishment, if the verdict of the jury, in addition to finding the defendant guilty, should erroneously fix his punishment, the error will not invalidate that part of the verdict declaring his guilt, provided judgment fixing his .punishment as required by • the statute is duly rendered by the court.</p>

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

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

<p>1. Trial — -Misconduct of Counsel. — Great latitude is always allowed counsel in making tlieir arguments to the jury; but that latitude can not, and ought not to be extended so as to permit counsel to go outside of the record and bring to the attention of the jury matters which have no- bearing whatever upon the questions in issue, and which are conveyed to their notice for the sole purpose of inflaming their passions and exciting their prejudices.</p> <p>2. Instructions — To Be Offered in Writing. — Under sub-section 5 of section 317 of the Civil Code of Practice-, an instruction asked by either party to an action must be reduced to writing, so that the instruction as asked shall be in writing. An oral request of the court to instruct the jury upon a designated point is an insufficient request; and the failure -of the court to comply therewith, will not b*e reviewed by the Court of Appeals.</p> <p>3. Instructions — Written Request for — Not Applicable to Peremptory Instruction. — The requirement of sub-section 5 of section 317 of the Civil Code of Practice, that requests for instructions by either party must be made in writing, does not apply to a request for a peremptory instruction, since an instruction of that character does not present to the jury any point of l^,w, but takes the case from the jury’s consideration.-</p>

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

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

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

<p>1. Murder — Jurisdiction—Offense Committed in Ohio, hut Death Resulted in Kentucky. — In a prosecution for murder where the evidence showed the poison was administered in Ohio, hut that death resulted in Kentucky, the trial judge correctly held that he did not have jurisdiction and properly sustained a demurrer to the indictment.</p> <p>2. As the wrong was done in Ohio, it was a completed transaction so far as the defendant was concerned, and according to the well recognized rule that the crime is committed .at the place where the act is done which results in the injury or death, the prosecution must he conducted at the place where the act is done, and not where the death occurred.</p>

<p>1. Bonds — Municipal—Validity—Suit to Test — Judgment—Conclusiveness. — In an ex parte proceeding by a city to test the validity of a bond issue, the judgment is conclusive not only of all questions actually raised and decided, but of all questions affecting the validity of the bonds which might have been raised and decided.</p> <p>2. Cities — Second Class — Ordinances—Necessity for Publication— Section 3045 Kentucky Statute’s — The provision of Section 3045, Kentucky Statutes, being a part of the charter of cities of the second class, that “the ordinances shall be published in like manner before they are in force” is mandatory, and an ordinance, unless published, is invalid.</p> <p>3. Bonds — Cities of the Second Class — Authority to Issue — Chapter 106, Acts 1910 — Chapter 107, Acts 1910 — Proceeds—How Used.— By virtue of authority conferred by Chapter 106, Acts 1910, a city of the second class has power to issue street improvement bonds, which were authorized by vote of the people taken in 1909, but the proceeds of such bonds can be used only for the purposes mentioned in Section 3096, Chapter 107, Acts 1910.</p>

<p>1. Railroads — Death of Section Foreman — Voluntarily Putting Himself in Place of Danger — Negligence.—Where a section foreman, placed himself between two dead cars for the purpose of requesting the agent not to lock the depot until he could get some material out of it later in the evening, and was so situated between these cars that those in charge of a moving train could not see him, and it appearing that there was no necessity for his going between these cars and remaining there, and that he could have delivered the message while standing between the tracks opposite the opening between the cars as well, if not better, than by going between them, he was guilty of such negligence as prevented a recovery by his administrator for his death, caused by being run over by the moving train.</p> <p>2. Railroads — When Not Under Obligations to Take Special Precaution to Avoid Injuring Person. — The law is well settled both in this State and elsewhere that a railroad company is not under obligation, in moving its engines and cars in its own switchyard, to take special precautions or give special warnings to avoid injuring any unauthorized person who may, for his own convenience, go therein, until the presence of such person in a situation of danger has been discovered.</p> <p>3. Railroads — When No Recovery Against for Injury of Person Can Be Had. — /Where one, whether employe, licensee or trespasser, is injured while attempting to pass between standing cars, without invitation, express or implied to do so, there can be no recovery, unless those in charge of the train, after his peril is discovered, fail to exercise ordinary care to avoid injuring him.</p> <p>4. Railroads — Evidence.—The uncontradicted evidence showing that deceased voluntarily went between these cars, and thus exposed himself to the danger which resulted in his death, and that the act was neither called for nor necessary in the discharge of any duty he owed the company, the trial court properly held that his administrator was not entitled to recover in an action against the company for his death.</p>

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

<p>1. Wills — Construction of — Intent of Testator. — In the will in contro- ■ yersy the testator declared his intent that the interest of each of his children who. survived him should he 'absolute. At the time ' of his death they were, and are yet alive, and the chancellor : properly adjudged them the fee simple, the absolute estate.</p> <p>2; -Wills. — The further provision of the will disposing of his property absolutely to his twin brother in case of testator’s death, no issue surviving, establishes as well his purpose to fix the time of his death as -.the end of all defeasances or contingencies.</p>

<p>1. Deed — Mistake—-Reformation-—Evidence.—In an action to reform a deed on the ground of mistake, evidence examined and held sufficient to support the finding of the chancellor in favor of plaintiffs.</p> <p>2. Same — Pleading.—Though, in an action to reform a deed, mutual mistake of the parties be not pleaded in terms, yet if the facts pleaded sliow a mutual mistake, the petition will support a judgment in favor of plaintiffs.</p> <p>3. Limitation — Deed—Mistake—Reformation—-Possession by Vendees. — Where a deed, by mistake, does not correctly describe the property granted, it may be reformed, and limitation is not a bar to such correction when the vendees have been in possession of the land.</p>

<p>1. Railroads — Emission of Sparks from Engine — (Negligence—^Instructions. — Where, in an action against a railroad company fot the destruction of appellee’s house and part of the contents by fire, caused by the alleged negligence of appellant in allowing sparks to escape from its locomotive, instructions which told the jury to find for the appellee if they believed from the evidence that the fire resulted from the appellant’s negligently equipping its locomotive with an insufficient spark arrester, or frofn its negligent management or operation of the locomotive, sufficiently submitted to the jury the issues of fact to be determined by them.</p> <p>2. Railroads — Evidence.—While it was error for, the trial court, to sustain appellee’s objection to a question from appellant’s counsel to a witness, which asked him to tell the jury whether or not the spark arresters on its locomotives were the best appliances known to science, in practical use, for the prevention of escape of sparks from locomotives, the error wás not prejudicial, as the witness, notwithstanding ’ the exclusion of the question by' the ■ court answered it, and the answer was not withdrawn from the consideration of the jury. , • •'</p> <p>3. Judgment — When Should Not Be Reversed. — A judgment should not be reversed by the Court of Appeals, even for error, unless it appears from the record to liave prejudiced some substantial right of the party complaining.</p>

<p>Contracts — Action to Recover Land — Contract to Care of Another— Pleading. — .Catherine McAlister entered into an arrangement ■with, appellant to give him her farm if he would move to her home and take care of her as long as she lived. He undertook to carry out the arrangement, but in about three years she sold it to appellee. In an action by appellant, against appellee seeking a recovery of the land, and to recover for the rental value of it during the eight years appellee had held possession of it, a demurrer was properly sustained to the petition. It was a verbal agreement and appellant’s only remedy was an action against Catherine McAlister to recover for the reasonable value' of the services he had rendered in caring for her.</p>

<p>1. Insurance — Parol Contract. — ¡An action may be maintained arid recovery bad on a parol contract of 'fire insurance, if trie, evidence shows the subject matter of the risk insured against, the amount of insurance, the rate of premium, the duration of the risk, and the company that is to issue the policy.</p> <p>2. New Trials — (Newly Discovered Evidence. — When a party desires to obtain a new trial on the ground of newly discovered evidence; he should in addition to his own affidavit stating the reasons why the evidence was not procured, and its materiality, file the affidavit of the. proposed witness, setting out what he would tes, . tify to if introduced as a witness.</p>

<p>1. Master and Servant — Negligence—Evidence.—Where a boss orders a laborer to go to one end of a tobacco hogshead and move it in one direction and while the laborer is doing this, the boss and another laborer move the hogshead in the opposite direction so as to injure the laborer, there is sufficient evidence of negligence to take the case to the jury, the circumstances being such that the boss must have known that to move the hogshead as he did would be to endanger the other laborer.</p> <p>2. Master and Servant — Negligence—Question for Jury. — When a servant is ordered to do a certain thing, he has a right to assume that the boss giving the order will not do anything to endanger him, and the question of contributory negligence on his part is for the jury.</p> <p>3. Instructions. — When on a trial both parties ask instructions presenting the same view of the law of the case, neither can complain on an appeal, of an instruction presenting the view of the law which he asked himself.</p>

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

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

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

<p>1. Peremptory Instruction — When Proper. — A peremptory instruction for the defendant is proper only when, after admitting every fact shown by plaintiff’s evidence to be true, as well as all reasonable inferences that can be drawn therefrom, the plaintiff has failed to establish his case.</p> <p>2. Personal Injuries — Trespasser.—As to trespassers upon its track, a railroad company is only liable in damages for injury inflicted by its train where it is shown that the danger to the injured party was discovered in time for the injury to have been avoided by the exercise of reasonable or ordinary care on the part of those ' in charge of the train.</p> <p>3. Railroads — Duty to Trespassers. — It is incumbent upon a trespasser on a railroad track to keep out of the way of trains. It is not incumbent on the railroad company to keep a look-out for trespassers at places where the presence of persons on the track is not to be anticipated, and it owes him no duty until his presence on the track is discovered by those in charge of the train.</p> <p>4. Same. — It is the duty of the engineer in charge of a train, after he discovers a trespasser upon the track, to use ordinary care in the exercise of all reasonable means at his command, consistent with the safety of the train, to avoid injuring the trespasser.</p> <p>5. Trespasser on Railroad Track. — The engineer of a train has the right to assume that a trespasser on the track will use ordinary care for his own safety, and the engineer is only required to take such precautions to. avoid injuring the trespasser as might be reasonably expected of a man of ordinary prudence, situated as he was, and acting on this assumption.</p>

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

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

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

<p>1. Eviction — Void Writ — Elements of Damage. — A tenant who is evicted, and whose household goods are placed out on the public highway, may recover for mortification and humiliation of feeling as these are elements of compensatory damages.</p> <p>2. Damages — Pleading—General > Allegation — Mortification and Humiliation. — As mortification and humiliation are damages which necessarily and generally result from an unlawful eviction a recovery may be had therefor under a general allegation of dam- ' ages.</p> <p>3. New Trial — Order Granting — Error.—While the trial court is vested with a broad discretion in granting a new trial, yet if he grants a new trial solely on the ground of an error of law, which, as a matter of fact, is not an error, and the other grounds relied upon are not sufficient to justify his action, it is error, under such circumstanc.es, to grant a new trial.</p> <p>4. Appeal and Error — New Trial — Error in Granting — Final Judgment — Appeal—Practice.—Where there is a verdict for plaintiff, and the trial court grants a new trial, and plaintiff excepts thereto, and there is another trial resulting in a verdict and judgment for plaintiff, it is the proper practice to move to set aside the last verdict and judgment, and substitute in lieu thereof the verdict on the former trial, and an appeal from the last judgment will bring before this court for review the propriety of the court’s action in granting a new trial.</p> <p>5. New Trrial — Improperly Granted — Substitution of Verdict for Verdict on Last Trial. — Where there is a verdict in favor of plaintiff, and a new trial granted, and the plaintiff recovers a less sum on another trial, this court, on appeal, will direct that judgment be entered on the first verdict instead of the last verdict, if the trial court erred in granting a new trial. ■</p>

<p>Criminal Law — When Judgment Suspended in Felony Case — Appeal—> Filing of Transcript. — When the defendant in a felony case is granted an appeal and files the transcript in this Court, the judgment is suspended on the filing of the clerk’s certificate as provided in section 336 of the Criminal Code although the circuit ceurt refused to enter an order suspending the execution of the judgment.</p>

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

<p>1 Municipalities — Not Bound to Inspect Poles of Public. Service Corporation. — A city is not bound to inspect tbe poles of a public service corporation and this rule applies though, the city used the pole for years before the company took charge of it.</p> <p>2. Municipalities. — A city is bound to keep its Streets reasonably safe and is liable for an injury from the fall of a dangerous pole if it knew of the danger and it knows the danger where the facts known to it would apprise a man of ordinary prudence of the danger.</p> <p>3. Municipalities. — Neither the city nor the company is liable where the fall of the pole was caused by the strain of the reel on a fire hose wrapped around the pole by a fireman, this being a use for which the pole was not intended.</p> <p>4. Appeal — When Record Not Incomplete. — A record is not incomplete because a pole exhibited to the jury on the trial is not brought to the Appellate Court.</p>

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

<p>1. Taxation — Assessment of Land. — Under the assessing statute, as well as under the prevailing custom, farming land is valued — not by the tract or body, but by the acre; and as the taxpayer is presumed to know the number of acres that he owns, it is his duty to state the fact; and if he reports a less number of acres than he owns, the surplus may be assessed as omitted property.</p> <p>2. Taxation — Assessment of Land — Omitted Acreage. — The presump-, tion is that the tax payer has only valued the number of acres that he has assessed, and consequently when he seeks to avoid taxation on omitted acreage, it is incumbent upon him to establish by the most convincing evidence that the omitted acreage was taken into consideration in fixing a valuation on the acreage listed, and that the value fixed was a fair value for th* entire body, although it contained a greater number of acres than was specified in the assessment.</p> <p>S. Taxation — ¿Assessment at Fair Value, Although Number of Acres Understated. — If the taxpayer understates the number of acres owned by him, but the value fixed on the number of acres assessed is a fair value for the entire tract owned, and he can show this by convincing evidence, the acreage omitted should not be again assessed.</p> <p>4. Taxation — Evidence as to Value of Land. — The value of land for assessment is its1 cash value estimated at the price it would bring at a fair voluntary sale; and witnesses should be asked questions that will develop this value; but they may be asked other pertinent questions for the purpose of illustrating the theory upon which they based their opinions as to its assessible value.</p> <p>5. Taxation — Bank Deposits of Non-resident. — Where at non-resident is carrying on business in this. State, money that is sent here from its home office in another State and put on deposit in a bank in this State for the sole purpose of defraying current expenses of its business, is not subject to taxation in this State.</p> <p>6. Taxation. — Bank Deposits of Non-resident. — Money that is derived from the business of a non-resident in this State, and that is placed on deposit in a bank here, is subject to taxation; and so is the money of a non-resident that is permanently on deposit in this State, or that is in the custody of an agent or fiduciary within this State, who manages and controls it by lending it out, investing it, collecting the interest, and the like.</p> <p>7. Taxation — (Bank Deposits of Non-resident. — If it were shown that the practice of sending out of this State money derived from business done in this State, and the returning to defray expenses of money to take the place of that sent out, was a device or scheme to evade the tax laws of this State, the money sent here to pay expenses would .be subject to taxation.</p> <p>8. Taxation — Sufficiency of Levy for Fiscal Court. — A levy by the fiscal court “to defray current expenses, such as salaries, maintenance of paupers, building of bridges, working of road's” is a sufficient compliance with section 180 of the Constitution.</p> <p>9. Taxation — Validity of Levy Does Not Affect Assessment. — The validity of a levy can only be assailed when it is sought to collect taxes under it; and where the only question involved is the right to assess property, the validity of the levy is not to be drawn into question.</p>

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

<p>1. Carriers — In Forwarding Goods, Initial Carrier Agent of Connecting Carrier — Contract.—In forwarding goods over its connecting lines, the initial carrier is the agent of the connecting carrier; so the connecting carrier is, in every instance, hound hy the contract made hy the initial carrier with the consignor.</p> <p>2. Carriers — Shipment of Corpse — Delivery to Connecting Carrier — ■ Plea of Want of Knowledge of Contract. — Alcorn, while in the service of the United States Army died, and by an arrangement with the representatives of the Government, the Wells Fargo Express Company undertook the delivery of his body to his family in Kentucky, the charges to be paid by the Government. At Cincinnati the corpse was delivered by the Wells F'argo Company to appellee and the latter transported the body to a station in Estill County but refused to deliver it until the charges were paid. In an action against it by the father for damages, it pleaded that it did not know of the contract made with the initial carrier and that it paid the charges of the initial carrier and added its own charges to that account, and that in holding the corpse it acted under the direction of the initial carrier. Held, The court erred in peremptorily instructing the jury to find for defendant upon the last trial. It likewise erred in setting aside the verdict for the plaintiff upon the first and second trials, for the defense interposed by the defendant upon neither trial was good upon demurrer. In admitting a breach of the contract of shipment, the only question is the amount of damages to which the plaintiff js entitled.</p>

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

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

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

<p>1. Principal and Surety — Deposit in Bank — Application of — Defense of Surety.- — The fact that the principal in a note had money enough on deposit to his credit in the bank to which the note was payable, at the time the note fell due and that the bank did not apply it to the payment of the note, is no defense for the surety, when the money was deposited for the payment of certain designated creditors.</p> <p>2. Surety — When Not Released. — The surety on a note is not released by the creditor lending the debtor another sum of money and taking from him a mortgage on all his property to secure the loan and another unsecured debt held by the creditor.</p>

<p>1. Attorneys’ Fees — Will Contest — Allowance.—On appeal from a judgment fixing fees of counsel for propounders in a will contest: Held, that the allowances made by the chancellor were reasonable.</p> <p>2. Attorneys’ Fees — Allowance by Chancellor. — On appeal from a judgment fixing the fee of an attorney for defending a fraud suit and a suit for back taxes against the executors, and conducting a suit for the construction of the will and settlement of the estate, and for services in advising the executors as to the management of the estate; held, that an allowance of $7,500 is unreasonable, and that the fee for such services should be fixed at $3,500.</p> <p>3. Executors — Fees—Extraordinary Services. — On appeal from a ■ judgment fixing the allowance of the executors at 5 per cent, and also allowing.them $1,000 for extraordinary services in defending the will and in prosecuting and defending other suits affecting the estate: held, that in view of the size of the estate, the character of the investments and the ease with which it could be distributed, an allowance of 5 per cent is. sufficiently large to cover all services, ordinary and extraordinary, performed by the executors.</p> <p>4. Attorneys’ Fees — Will Contest — Contribution by One Benefited by Litigation Contrary to His Wishes. — Where a will, under which one and his children are devisees, is contested contrary to his wishes, he cannot be compelled to contribute to the payment of the expenses of the litigation, even though he be personally benefited thereby.</p>

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

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

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

<p>1. Attorneys — Fee ol Guardian Ad Litem — Allowance of Fee. — In fixing an allowance to a guardian ad litem or corresponding attorney, the court should take into consideration the character of the litigation, the value of the estate, the nature, duration and extent of the services performed, the responsibility resting upon the attorney, and the result of his efforts.</p> <p>2. Same. — When the duration of service is spoken of, it does not mean the number of years that the litigation may have been permitted to remain in court, but the length of time which had been given by counsel in preparation for the trial of the case.</p> <p>3. Same. — In fixing the fee of a guardian ad litem, the court must decide concerning the value of the services rendered • without reference to the opinions of parties or other witnesses, and in an action where the interests represented by the guardian ad litem ' approximated $150,000, and the litigation covered a period of- six months, an allowance of $3,000 by the chancellor is held reasonable and his finding will not be disturbed.</p>

<p>1. Corporations — Cash Dividend — When Income Belonging to Life Tenant. — A dividend by a corporation out of the earnings or profits, which may be taken in cash or applied in payment of the increase of stock to which the stockholder is entitled to subscribe, is a cash dividend, to be treated, so far as it represents profits accumulated after the creation of the trust for a life tenant and remainderman, as income belonging to the life tenant, and not to the remainderman.</p> <p>2. Same. — A dividend of stock representing profits accumulated since the creation of a trust of stock for a life tenant and remainderman, will go to the life tenant, and not to the remainderman.</p> <p>3. Same — Merger of Banks — Dividends Going to Life Tenant. — That a cash dividend declared out of the earnings or profits on bank stock amounting to a large percentage of the par value of the stock, is made as an incident of a merger of the bank with another, and for the purpose of adjusting the assets of the two institutions that a merger may be accomplished, does not take it out of the rule that cash dividends 'are to be regarded as income going to the life tenant, where the capital and required surplus of the bank remain unimpaired.</p>

<p>1. Master and Servant — Action for Injury Received in Sister State. —Where a servant sues' a master in the courts of this State for an injury received in another State, the rights and liabilities of the parties are controlled by the laws of the State where the injury occurred.</p> <p>2. Master and Servant — Fellow Servants. — Under the laws of Tennessee the engineer and fireman on a train are fellow servants, and neither can recover from the master for injuries received as a result of the negligence of the other.</p> <p>3. Master and Servant — Rules for Government of Employes — Penalty for Disobedience. — An employe wbo is injured as a result of his disobedience of a reasonable rule promulgated by the master for the government of his employes, cannot succeed in a suit against the master to recover damages for the injuries received.</p>

<p>1. Judgment — Collateral Attack — Warning Order. — When a judgment is attacked collaterally thirty years after it is rendered, it will be presumed that the warning order in the action was-made upon a proper affidavit, although none appears in the record, now.</p> <p>2. Warning Order — Presumption as- to. — When in 1872 a warning order was made and no action was taken under it and in 1880 another warning order was made, it will be presumed that when the second order was made a sufficient showing was made to' warrant the court in entering the order.</p>

<p>1. Action to Recover Timber — Evidence.—In an action to recover the price of certain logs, a statement s.ent out by the defendant showing that it received the logs and the amount of' them, is competent evidence, although the logs were credited on the statement to another person.</p> <p>2. Instructions- — -Form—-When Reversal Will Not Be Had. — When the real issue in the case has been fairly submitted to the jury by the instructions of the court, a reversal will not be had on account of the form of an instruction on a matter which had no effect on the result of the trial.</p>

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

<p>1. Guardian and Ward — Attorneys—Employment by Guardian — Lien for Fee. — A guardian has the power to employ an attorney to bring suit for the recovery of the ward’s real estate, and the attorney is entitled to a lien on property recovered for a reasonable fee.</p> <p>2. Infants — Action Against — Process—Action to Set Aside Judgment — Appearance—Judgment.—Though in an action against in- . fants to enforce a lien on their real estate, they be not properly served with process, yet if they and their guardian file an action to set aside the judgment entered in .such action, and the actions are consolidated and heard together, their appearance is entered, and being before the court, they are bound by any judgment thereafter rendered.</p> <p>3. Depositions — Infants—Proof Upon Interrogatories — -Section 574, Civil Code. — Where a deposition is to be read not only against infants, but against their guardian, who is a party to the proceeding, Section 574 of the Civil Code - does not require such depositions to be taken upon interrogatories.</p> <p>4. Judicial Sales — Purchase by Commissioner — Bona Fide Purchaser for Value. — Where the master commissioner, through the intervention of a third person, purchases the property sold by him, the sale is not void, but merely voidable, and will not be set aside where the property has passed into the hands of an innocent purchaser for value without notice.</p> <p>5. Commissioner’s Deed — Civil Code, Sections 397 and 399 — Failure to Recite Names of Parties — Title.-iA master commissioner’s deed passes to the grantee the title of all the parties to the action and the title of the grantee is not affected by the failure of the deed to recite the names of the parties to the action, as the provision- of Section 399 of the Civil Code, providing that this he done, is merely directory and not mandatory.</p> <p>6. Champerty — Judicial Sale — Possession hy Defendant. — Where defendants in an action have been divested of title hy a judgment of " a court of competent jurisdiction, their possession of the property thereafter is not adverse, and a deed made hy the purchaser to a third party while they are in possession is not champertous.</p>

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

<p>1. Insurance, Life — Payment of Premiums — Proof of Disability.— Where a life insurance policy provided that the premiums thereon would be paid by the company if the insured should become wholly disabled after one full annual payment had been made, and before a default in the payment of any subsequent period he should furnish satisfactory proof of his disability, the insured had a reasonable time after the default in the payment of the second premium in which to furnish proof of his disability.</p> <p>2. Insurance, Life — Disability of Insured — Proof of — Reasonable Time in Which to Furnish. — ¡Where the insured had the right to have the company pay the premiums upon his policy upon furnishing proof of the insured’s disability within a reasonable time after default in the payment of the premium, proof of disability furnished within seven weeks after such default was furnished within a reasonable time.</p> <p>S. Waiver of Proofs of Death. — An absolute denial of liability on the part of an insurer is a waiver of proofs of death or disability.</p> <p>4. Proof of Disability — F’ailure to Furnish — When Will-Not Forfeit Policy. — A failure to furnish proof of disability within the period called for by a life policy does not forfeit the policy, since the ■ furnishing of the proof is, at most, a mere condition precedent to the right to sue, and .the proof, may be subsequently furnished, before suit brought.</p>

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

<p>1. Railroads — Mistake in Issue of 'Excursion Ticket — Threat to Eject Passenger Who was Compelled to Borrow Money from Stranger to Pay Pare — (Action for Damages — Instructions—Verdict.— A Passenger bought the right of transportation from Evansville, Ind. to Chicago, 111., and return, the contract calling for return passage not later than July 15. The selling agent made a mistake in furnishing the passenger a ticket providing July 12, as the last day. In an action against the railroad company fpr damages for being awakened by the conductor upon her return and compelled by him to pay her passage after being subjected to the humiliation of having to borrow the money from a stranger before whom she was forced to appear only partly clad, it cannot be said that a verdict for $750.00 compensatory damages is unreasonable, and the conduct of the conductor was such as to justify the instruction upon which the award of $250.00 punitive damages was given.</p> <p>2. Railroads — Defense Interposed by. — The defense that had the company transported the passenger upon the expired ticket it would have been guilty of an infraction of the Interstate Commerce Law is not meritorious. The passenger was the beneficiary of no rebate, nor special privilege, but had bought and paid for certain transportation at a certain price, the price at which every other traveler desiring like service could have bought it, and no offense was' committéd by tbe railroad in entering into tbe contract.</p> <p>3. Railroads — Instructions.—While tbe instruction complained of was not a correct statement of tbe law, it was in favor of and not against appellant. The appellee was entitled to have the jury instructed upon her rights with relation to the railroad company, and not upon the somewhat narrower relation of the conductor’s duty upon the erroneous ticket contract.</p>

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

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

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

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

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

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

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

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

<p>1. Wills — Construction of — “Dying Without Issue.” — Where a testator in. one clause of his will gave absolutely to a grandchild certain described property, and in a codicil provided that in case of her death without issue the estate devised should go to his heirs, the words “dying without issue” refer to the death of the devisee without issue during the life of the testator.</p> <p>2. Wills — -Construction of — Vested Estate Favored. — The law favors the vesting of estates. In cases of doubt, it favors a fee rather than a less estate. And an estate once given in fee will not he defeated by a subsequent provision in the instrument limiting it to a smaller estate, unless the language of the instrument or the intention of the testator requires it.</p>

<p>Land — Contingent Remainder. — Where A. conveyed land to B. for the life of A., provided that B. performed certain conditions mentioned in the deed or else forfeit the estate to A., and further provided that after the death of A. the land should go to C., C. took a contingent remainder that depended upon the performance hy B. of the conditions imposed upon him. And when as a consequence of the failure of B. to perform the conditions imposed, he forfeited the estate for life or for any cause surrendered it the estate in remainder likewise terminated.</p>

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

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

<p>1. Master and Servant — Servant at Work Outside of Contract. — A plumber doing work by contract is the servant of the owner, when doing with his authority work outside his contract, such as digging a hole in the sidewalk.</p> <p>2. Municipal Corporations — When Property Owner Liable to City— Personal Injury. — The property owner is liable to the city where he has a hole dug in the sidewalk and a person injured thereby recovers against the city.</p> <p>3. Municipal Corporations — Notice—When Judgment Against City Conclusive Against Property Owner. — When the property owner has notice of the suit against the city, the judgment in that case against the city is conclusive against him.</p>

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

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

<p>Deed — Character oí Estate Devised — Action Upon Note. — In an action upon a note executed for part of the purchase price of land, the defense was that a life estate instead of the fee only passed on the conveyance to the grantors. Held, The use of the words “his heirs” in the latter part of the habendum clause shows that the grantor was to take the property in fee and that his heirs were to. take by descent from him. The word “heirs” as used in the deed was one of limitation and not of purchase.</p>

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

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

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

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

<p>1. Street Improvement — Assessment For. — An assessment for a street improvement of $47.25 on a lot worth $100 is not spoliation and the property may be subjected.</p> <p>2. Ordinances — Publication—Validity.—In towns of the fifth class an ordinance published by being posted in three public places in the town is valid and in force.</p>

<p>1. Land — Verbal Division Invalid — When Will Ripen Into Valid Title. — Although a verbal division of land is invalid, under the statute of frauds, nevertheless, if it is followed by fifteen years continuous and exclusive possession, it ripens into a valid and enforcible title.</p> <p>2. Appeal — Cross Appeal Only Granted by 'Court of Appeals. — A cross-appeal can only be granted by the Court of Appeals; a cross-appeal granted by the circuit court cannot be reviewed in the Court of Appeals.</p>

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

<p>Tax Deeds — Conditions and Prerequisites. — iWbere tbe only irregularity, in a sale of land for taxes, is a discrepancy between tbe quantity actually sold and that reported sold by tbe sheriff, tbe quantity actually sold being ascertainable from tbe officer’s report of sale, tbe sale was valid, and tbe purchaser thereat is entitled to a conveyance to him by tbe Auditor of tbe actual number of acres sold.</p>

<p>Board of Health — Allowance to Member of for Services Rendered — ■ Services Not Performed in Manner Required by Statute — When Such Official Not Required to Refund Money Paid Him. — Where a member of a health board performed services in the matter of fumigating and quarantining for the prevention of contagious diseases that neither the county board nor the State Board of Health directed, but acted in the exercise of his own judgment, it is not a sufficient reason to require him to refund the money allowed him as -a compensation after an allowance by the fiscal court, although the fact that he was not so directed might have been a defense if made at the time the allowance was made. In such a case the courts will not compel the official to pay back the money and allow the public to enjoy the benefit of its expenditure.</p>

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

<p>Damages — Verdict Awarding Excessive, Set Aside. — In an action to recover damages for personal injuries, where it appears from the evidence that the complaining party was not seriously or permanently injured, a verdict assessing the damages at $4,300 will be set aside upon the ground that it was given under the influence of passion or prejudice.</p>

<p>Memoranda Opinion. — Affirming case.</p>

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

<p>Taxation of Turnpike Companies. — Under section 4095 óf tke Kentucky Statutes, tke franchise of turnpike companies should he assessed and the tax apportioned by the county board of supervisors to the taxing districts which are entitled to any portion of the franchise tax. But the county court may, under section 4241 of the Kentucky Statutes assess as omitted property the franchise of a turnpike company that has been omitted from assessment; and when an omitted franchise is so assessed by the county court, the board of supervisors may apportion the tax due the taxing districts on the omitted franchise as assessed by the county court.</p>

<p>Purchaser — Not Required to Pay for Defective Goods — Defects Not Discoverable by Ordinary Inspection. — The purchaser of goods in a stock in merchantable condition will not be required to pay for such goods as are worthless although he accepted them when invoiced to him, the defect in them not being discoverable by an ordinary inspection and being unknown to him.</p>

<p>,1, Religious- Societies — Assessment of Property Owned by — Exemptions — Constitutional Provision.- — -Where property owned by a church organization is not actually used for religious worship and r is not used as a parsonage, nor occupied as a home by the minister, it does not come within the provisions of. section 170 of the Constitution which exempts property of religious organizations from taxation.</p> <p>2. Same, — The lot not being used for the purpose contemplated in section 170 of the Constitution, the action of appellant to obtain relief from taxation was properly dismissed.</p>

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

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

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

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

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

<p>1. Vendor and Purchaser — Warranty—Remedies of Purchaser— Equity. — Where a purchaser, in possession of lands under a general warranty deed, has been damaged by reason of total or partial failure of title, he may maintain an action in equity, for the loss sustained, against the purchaser, who has been guilty of fraud, has removed his property from the State, has become insolvent or a non-resident.</p> <p>2. Parties. — In such action, holders of outstanding claims affecting the title, are necessary parties, in order to determine the fact and amount of damage.</p>

<p>Fraudulent Conveyances. — Property will not be restored to a grantor wbo bimself conveyed it or bad another to convey it for tbe fraudulent purpose of defeating bis creditors. Tbe court will keep its bands off — not lending any aid or assistance to either of them— leaving tbe parties in tbe position they placed themselves'.</p>

<p>1. Appeal and Error — Former Opinion — Conclusiveness.—Where on a former appeal, the judgment in favor of the defendant is reversed for error in one of the instructions, and for a failure to submit to the jury one of the issues relied on, and the propriety of giving an instruction on contributory negligence was not raised or decided, and the court did not direct what instructions should be given on another trial,. the opinion is not conclusive of the right of the defendant to an instruction on contributory negligence.</p> <p>2. Instructions — Contributory Negligence — Error.—Where there is a plea of contributory negligence, and evidence tending to support the plea, the refusal to give an instruction on contributory negligence, offered by defendant, is prejudicial error.</p>

<p>Homicide — Evidence—Failure of Record to Show Exceptions Were Taken. — Appellant having been jointly convicted with another for the murder of Jim Mays, and his punishment fixed at confinement' in the penitentiary for life, has not furnished any reason for reversal of the judgment; the record failing to show that exceptions were taken either to the instructions or the rulings of the court complained of. Consideration of the evidence •' by this court fails to sustain his complaint of the failure of proof; while the evidence was in large part •circumstantial, considered as a whole, it authorized the verdict.</p>

<p>1. Larceny — Receiving Stolen Goods — Horse Stealing — Principal in Asportation. — P. having stolen a horse in Tennessee and brought it to Kentucky and delivered it to defendant who sold it in Kentucky and divided the money with P., and all this being done pursuant to a prior agreement between P. and the defendant, the defendant is a principal in the asportation in Kentucky and may he convicted as such.</p> <p>2. Overruled Cases. — The case of Able v. Commonwealth, 5th Bush, 698 is overruled.</p>

<p>1. Land — Action of Trespass to Try Title. — This being an action of trespass to try title appellee’s right to recover had to be determined by the true location of an agreed line established by her vendor and that of appellant, more than twenty years before the institution of this action; and it being reasonably apparent from the evidence that the timber cut by appellant was upon appellee’s side of the agreed line in question, and that her vendor and appellant’s vendor recognized and maintained the agreed line for more than twenty years and as long as they owned the lands respectively, the verdict-and judgment were authorized on these grounds.</p> <p>2. Land — Champertous Deed. — As, according to the evidence, appellee was in actual possession of the land by enclosure, from which the cutting of timber was done, at the time appellant acquired title to the land owned by him through the purchase and deed from his vendor, the latter’s deed, in so far as it can be said to cover any part of the land in controversy, was champertous and void under section 210 Kentucky Statutes which provides that “All sales or conveyances, including those made under execution, of any lands, or the pretended right or title to the same, of which any other person, at the time of such sale, contract or conveyance, has the adverse possession, shall be null and void.”</p>

<p>1. Bill of Exceptions — Stenographer’s Transcript Not, Approved by Circuit Judge Insufficient. — A bill of exceptions is necessary to bring to the Court of Appeals questions as to the correctness of the rulings of the trial court. A transcript of the testimony certified by the stenographer and not approved by the circuit judge, or filed by an order of that court, is insufficient.</p> <p>2. Bill of Exceptions — Absence of — Presumption.—In the absence of a bill of exceptions it will be presumed that the trial court ruled correctly.</p>

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

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

<p>1. Public Administrator and Guardian — Order Appointing — What Need Not Show — Infants.—Under section 3905 of the Kentucky Statutes, which authorizes the county court to confide to the public administrator and guardian, the care and control of the persons and estates of all minors, in case it shall appear that such minor has no testamentary guardian, and no one will apply for' or serve as such by the appointment of the court, it is not necessary to its validity that the order confiding an infant’s estate to. the public administrator and guardian should show upon its face that the minor had no testamentary guardian, or that no one, would apply for or serve as such by the appointment of the court.</p> <p>2. County Court — Jurisdiction—Appointment of Guardian. — The-county court in matters of probating wills and appointing executors and guardians, has general and exclusive jurisdiction, and the appointment of the guardian will be treated as valid until it is affirmatively shown that the court did not have jurisdiction to make the appointment.</p> <p>3. County Court — Jurisdiction—Collaterally Calling in Question. — . The proceedings of the county court in matters of probate and administration are not conclusive as to the jurisdiction of the' court, and such jurisdiction may be collaterally called in question where the proper averments are made; but, in such cases the. onus is upon the party raising the issue, to show the want of. jurisdiction.</p> <p>4. Infants — Suit by Adult Joint Owner to Sell Real Estate of Infant., —Under subsection 2 of section 490 -of the Civil Code, a court of equity has jurisdiction at the suit of an adult joint owner against the infant joint owners and their statutory guardian, to sell real estate owned by them, in which they also have a right of homestead.</p> <p>'5. Homestead — Coercive Sale — Exemption From — Right of Owner to Dispose of Homestead. — Section 1702 of the Kentucky Statutes, which exempts from coercive sale for debt a homestead not exceeding $1,000.00 in value, places no limitation upon the right or power of the owner of the homestead to dispose of it, whether such owner be sui juris or not.</p>

<p>Office and Officer — Board -of Alderman — Qualification of Member as City Treasurer — Appointment of Successor — Question Whether Vacancy, — Where Coyne, a member • of the Board of Alderman, during his term, was elected city treasurer, and on the 30th of December, (the 31st being Sunday), took the oath of office, executed bond and designated the city depository, the appointment thereupon by the Mayor of Taylor as a member of the board to succeed Coyne was void, for the taking of the oath and execution of the bond while qualifying Coyne to enter upon the discharge of the1 office of Treasurer, he had not accepted that office within the meaning of the statute so as to operate to vacate his office of alderman.</p>

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

<p>1. Personal Injuries — Action for — Peremptory Instruction — Evidence. —In an action for personal injuries, evidence examined and held that there was no evidence of negligent operation of the car by which appellee was injured, nor any fact from which such negligence could be inferred, and the motion of appellant for a peremp- . tory instruction should have been sustained.</p> <p>2. Evidence — Introduction of Defendant's Evidence Did Not Cure Error in Refusing Peremptory Instruction.- — In the introduction of defendant’s testimony it did not make out plaintiff’s case, and the error of the trial court -in refusing the peremptory instruction was not cured by the introduction of defendant’s evidence.</p>

<p>1. Criminal Law — Bigamy—Indictment for — Sufficiency of Indictment. — Where an indictment for bigamy gave the name of the alleged first wife, the date of the first marriage, and the State where it occurred, it sufficiently apprised the defendant of what he had to answer without charging the precise county in which the marriage occurred.</p> <p>2. Jury — Defendant Should Have Right to Individually Examine in Felony Case. — While under section 281 Criminal Code this court cannot review the action of the trial court in refusing the defendant the right to examine the jurors separately, the defendant in a felony case should have this right as it is important to him that he have an opportunity to discover facts which might support a challenge for cause, or might afford him a right of peremptory challenge.</p> <p>3. Bigamy — Evidence of First Marriage. — There was not a failure of proof of the first marriage. It was not denied, and the record introduced was an original, not a copy needing the customary statutory authentification of the registration of the original according to the laws of the sovereignty where the original was recorded.</p> <p>4. ■ Bigamy — Sanity of Defendant — Finding of Jury. — The question of the state of defendant’s mind was submitted to the jury, and their verdict of guilt was a finding that he was of sound mind at the time of the marriage in Illinois.</p>

<p>1. Specific Performance — Decree for Does Not Go as Matter of Course — Contracts.-—A decree for the specific performance of a contract for the sale of real estate does not go as a matter of course, but is granted or withheld according as equity and justice seem to demand in view of all the circumstances in the case.</p> <p>2. Specific Performance. — Courts of equity will not interfere to decree a specific performance except in cases where it would be strictly equitable to make such a decree.</p> <p>3. Specific Performance — Title Bond — Deed with Reservation Not Contained in Bond.: — in an action to enforce the specific performance of a contract to purchase a tract of land where the transaction was conducted by agents of the buyer -and seller, the title bond executed containing no reservation of an acre of ground where a burial ground was situated, and the agents conducting the transaction knowing nothing about the reservation, the declination of the purchaser to take the land with the reservation of the acre in the deed was justifiable, and it would be unjust to enforce a specific performance of the contract in view of the purposes for which the land was bought and the position of the part reserved in the deed.</p>

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

<p>1. Appeal and Error — Instructions.—Instructions not contained in tlie bill of exceptions, or made a part of the record by order of court, will not be considered.</p> <p>2. Malicious Prosecution — Defense—Advice of Counsel. — Advice of counsel is not a defense to an action for malicious prosecution unless all the facts bearing upon the guilt or innocence of the accused which the prosecutor knows, or could have ascertained by reasonable inquiry, are fully and fairly disclosed to counsel.</p>

<p>1. Fire Insurance Policy — Cancellation and Surrender. — Where the insurer, through its agent, and the insured agree to the surrender and cancellation of her policy upon reinsurance in another company, liability under said policy terminates upon the deposit, by the insured, of the policy in the mails, accompanied with notice that the insured did not desire a renewal of her insurance in another company.</p> <p>2. Trial — Peremptory Instructions. — Where from the evidence, 'it is undisputed that the insured, before the loss, mailed said policy to the agent of the insurer, with check for premium' earned to that date and notice of her desire not to reinsure; and that she herself had procured other insurance on the same property, equal in amount to that in the policy surrendered, the only reasonable conclusion is that the insured intended to surrender her policy for cancellation, and the court was authorized to direct a verdict for the insurer.</p>

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

<p>1. Personal Injury — -Action For — Failure of Plaintiff to Make Out His Case — Master and! -Servant. — The employer must furnish the laborer a reasonably safe p-lace in which to perform' his work, and if the employer furnishes the employe an unsafe place to labor, -which he, the employer, knew was unnsafe, 'he is responsible for the injury received) by reason of the unsafe place. In an action for personal injury, under the above rule, the plaintiff failed, to . make out his case; but the defendant introduced its foreman who directed the work of appellee, who testified that the place where appellee was placed to work was dangerous, and1 this left the issue as to the character of the place to the jury. While the trial court might with propriety have sustained appellant’s motion for a peremptory instruction, it -did not -do so.</p> <p>2. Verdict — Question for Jury. — The verdict cannot be said to be excessive. The physicians differed, as to the permanency of the injury and this was a question for the jury.</p>

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

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

<p>Banks — Assignment for Benefit of Creditors — Notes Delivered to Depositor — Action to Compel Return of Notes — Promise of Cashier to Guarantee Deposits — Pleading.—In an action by an insolvent bank’s assignee to recover certain notes a depositor bad obtained from it, the answer alleging that his deposit was received as a special deposit, the cashier having assured the depositor that if the bank failed, he would return the deposits, or deliver securities to him of the value of the deposits, Held, That appellant was not guilty of actual fraud, but was only guilty of violating section 1910, Ky. Stats., in obtaining a preference over other creditors,- but as the time for redress under this section had past, the court erred in sustaining a demurrer to the answer, for by that ruling the court in effect applied the principles of the statute, which the court was without authority to do after the lapse of six months from the delivery of the notes.</p>

<p>1. Deeds — Construction of. — In the construction of deeds the intention of the grantor as gathered from an inspection of the entire instrument will control.</p> <p>2. Deeds — Construction of. — Under a deed conveying land to Nancy J. Justice and her heirs “to have and to hold the same together with all the appurtenances thereunto belonging unto the party of the second part, her heirs and assigns forever” * * * with a habendum clause reading “this land is deeded to Nancy J. Justice during her life and after her death to go to her children,” the grantee took a life estate only.</p>

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

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

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

<p>1. Railroads — Intra-state Shipments. — Where one sells and contracts to deliver to two railroads, ties f. o. b. cars Louisville, and contracts with a carrier to transport the ties from points within the same state to .the point of destination, the shipments are intra-state shipments, .notwithstanding the fact that the purchasing railroads intended when the ties were shipped, to send them, and actually did sénd them, to points outside of the state as company material, and under an arrangement to which neither the shipper nor the carrier transporting the ties was a party.</p> <p>2. Payment — Mistake—Recovery.—Where a shipper sells ties under a contract with the purchaser to pay the freight thereon and deduct the amount from the purchase price, and the ties are intra-state shipments, and the purchasers by mistake pay the inter-state rate on the shipments instead of the intra-state rate, which is lower than the inter-state rate, the shipper may recover the difference from the transporting carrier.</p>

<p>1. Railroads — Action Against for Destruction of Property Caused by Emission of Sparks from Engine — Evidence—Competency of.— In an action against a railroad company for damages caused by emission of sparks from its engine, the testimony of witnesses generally upon their observation as to the height and distance sparks are thrown is competent and admissible to throw light upon that issue.</p> <p>,2. Railroads — Emission of Sparks from Engine — Evidence—Submission of Question to Jury. — Although an improved spark arrester was used the fact that sparks had been seen flying in large showers into a field and had as well been seen to set fire to a fence alongside the railroad, was sufficient to take the ease to the jury, and to authorize them to believe that these facts evidenced that the arrester was out of proper order, or was improperly adjusted.</p> <p>3. Railroads — Spark Arrester — Instructions.—The jury could not have been misled by the phraseology of the instruction complained of, for the wording of the instruction made it clear to the jury that the appliance alone necessary was the single appliance constituting a spark arrester.</p>

<p>1. New Districts — Creation by Legislature — Officer in Old District. ■ — Tbe legislature in creating a new district cut off two counties in wbich the Commonwealth Attorney of each of .these districts resided, and provided that the Governor should appoint and commission a Commonwealth Attorney for the new district. Held, That the act is valid, and that the Commonwealth •Attorneys of each of the old districts continue in their old districts as Commonwealth Attorney and have a reasonable . . time after the act takes', effect to change their residence.</p> <p>2. New Districts. — Commonwealth Attorney not entitled .to act In neither of them is entitled to act as Commonwealth. Attorney in the new district. . . .</p>

<p>1. Judicial Districts — Legislative Act Creating — Cutting off County in Which Commonwealth’s Attorney Lived. — The legislature in creating a new judicial district, having cut off the county in which the Commonwealth Attorney of one of the old districts lived, provided that he should be the Commonwealth Attorney of the new district. Held, That the Commonwealth Attorney is entitled to serve out his term as provided in the act.</p> <p>2. New District — What Legislature May Provide in Creating. — The legislature in creating a new district may provide such details as are necessary to carry the act into effect without confusion in the public business.</p>

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

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

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

<p>Appeals From Mason. Circuit Court.</p>

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

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

<p>Appeals — An Appeal by tbe Commonwealth in a case of felony cannot be placed on tbe docket for that term, when tbe transcript is filed during tbe term.</p>

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

<p>■1. Principal and Surety — Presumption—Relation as Surety May be Shown. — Where the names of two or more persons appear to an obligation it will be presumed, unless a different relation is shown by the language of the writing, that all are principals; but in an action on such an instrument any of them may, without an allegation of fraud or mistake therein, allege and show that his relation thereto is only that of a surety.</p> <p>2. Surety — Apparent Obligor — Defense that He Signed as Attesting Witness. — If, however, an apparent obligor, when sued as a surety upon .the instrument, seeks to avoid liability on the ground that he only signed it as an attesting witness, but by the fraud of the payee, or mistake on his part, was induced to write his name to the instrument in such a way as made him an apparent surety therein, he must allege in his answer and prove such fraud or mistake.</p> <p>3. Surety — Whether Signing was as Surety or as Attesting Witness. — The only issue in this case between appellant and appellee being, whether the latter signed the contract sued on „ as surety for its performance or in the capacity of attesting witness; and the jury having found he was only an attesting ■witness, we cannot disturb the verdict as there was evidence to support it.</p>

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

<p>1. Judicial Districts — Creation of New Districts — Constitutional Provision. — Under section 138 of the Constitution the legislature cannot make a county a judicial district where it contains less than 40,000 inhabitants, or does not contain a city of 20,000.</p> <p>2. Judicial Districts — Population—Question of. — Under that section the population is not determined from the last enumeration, but the question is what is the population in fact, and this is not simply a legislative question, and the court will not sustain the act if there is not in fact the required population.</p>

<p>1. Judicial Districts — When Act Creating Unconstitutional. — An act of the Legislature giving a county two circuit judges when its population is under 75,000 is unconstitutional.</p> <p>2. Unconstitutional Act — Judge Appointed Under — Is Defacto Officer. — The judge appointed under an unconstitutional act, good on its face, is a defacto officer, and his acts are valid as to third persons, but he is entitled to no compensation.</p> <p>3. Judicial Districts — Objection to Act Creating on Account of Lack of Population. — An objection to an act on the ground of lack of population must be made seasonably, and if not made until the court has become a recognized part of the State government will not be heard.</p>

<p>1. Master and 'Servant — -When Relation Exists. — Where a foreman, in the prosecution of his master’s business with which he was entrusted, in an emergency called to his assistance a third person, who acted under his directions, the foreman had implied authority to procure such assistance as the emergency required, and such third person is not a volunteer, but a servant, although no compensation was promised or expected.</p> <p>2. Master’s Liability for Injuries to Servant — Tools, Appliances and Methods of Work. — It is the duty of the master to exercise ordinary care, to furnish tools and appliances adequate and sufficient for the reasonably safe conduct of his business, and to adopt and use reasonably safe methods of work; and, upon his failure so to , do, he is responsible for resulting injury to an employe, who is himself without fault.</p>

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

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

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

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

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

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

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

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

<p>1. Forcible Detainer — Failure of Warrant to Show Relation of Landlord and Tenant — Interlineation in Statement. — In a trial of a writ of forcible detainer the warrant was quashed because it did not show appellant was a tenant of appellee, but the latter was permitted to interline in the statement of his case so as to show the tenancy. Held, That while the interlining was somewhat irregular, it did not affect the substantial rights of appellant, and by it he was fully apprised of all the charges against him.</p> <p>2. Judge — Acting Within Scope of Authority Not Liable in Action for Damages — Defective Pleading. — A judge acting within the scope of his jurisdiction is not liable in an action for damages for any opinion he may deliver as such, nor for any rule or action he may take for the proper conduct, of the business of his court, and the petition failing to charge that the matter in the forcible detainer case was beyond his jurisdiction, and not charging the county judge with malice, corruption or impurity, a demurrer to it was properly sustained.</p> <p>3. Verdict. — The verdict reciting that defendant is found guilty is sufficient. It was a question of forcible detainer; there was but a single issue, and the verdict was sufficiently responsive.</p>

<p>1. Instructions — Ordinary Care and Negligence — Definition of. — In an action against a street railway company for personal injuries, an instruction telling the jury that “By ordinary care is meant such care as is usually exercised by ordinarily prudent persons, and by negligence is meant the absence of ordinary care,” there should have been added tbe qualifying clause “of like or similar conditions.” Tbe standard of ordinary care varies with varying circumstances — tbe greater tbe danger tbe greater tbe care, tbe less tbe danger the less tbe care.</p> <p>2. Street Railways — Action Against For Personal Injury — Instructions. — An instruction excusing tbe railway company only upon condition that tbe plaintiff “knowing of tbe approach of tbe car,” attempted to cross the track, was highly prejudicial to it.</p>

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

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