Volume 149 — Kentucky Reports

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

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

<p>1. Deeds — Construction of. — In construing a deed, tlie intent, when it is apparent and not repugnant to any rule of law, will control technical terms, since the intent and not the words is the essence of every agreement; and, in the exposition of deeds the construetion must be upon tbe view and comparison of tbe whole instrument, and with the endeavor to give every pari of it meaning and effect.</p> <p>2. Deeds — Character of Estate Conveyed. — A deed which, in its caption, described a married woman and “her heirs” as the party of the second part, and in the granting clause conveyed the estate to “the party of the second part, their heirs and assigns,” which was to be held “unto the party of the second part, their heirs and assigns forever,” the married woman took an estate in fee. •</p>

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

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

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

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

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

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

<p>1, Railroads — Action Against for Personal Injury — Instructions.— Appellee while riding in Gossett’s wagon, believing appellant’s train would run over him, jumped from the wagon and fell so that two of its wheels passed over him. In an action against the appellant for the injury, an instruction offered by appellant that made appellee responsible for the negligence of Gossett was properly refused.</p> <p>2. Peril — When One Placed in by Negligence of Another. — When one is placed in a position of peril by the negligence of another and is compelled to chose instantly what to do to save himself, if he chooses, as a person of ordinary prudence would have chosen in such a position, and is injured he has a right to recover, notwithstanding the fact that if he had made a different choice he would not have been injured.</p>

<p>1. Indictments — Filing Away — Order Defined. — An order filing away an indictment is, in effect, to continue indefinitely or dispense with the prosecution.</p> <p>2. Indictments! — Courts—Authority.—The court is without authority to dispense with the prosecution of a crime, where the indictment is good on demurrer; and, it was in "error in ordering an indictment filed away, at the request 0f the prosecuting witness and her relatives.</p> <p>3. Indictments — Prosecuting and District Attorneys — Powers and Duties. — It is the duty of the Commonwealth’s Attorney, or in his absence, the county attorney, to prosecute all violations of the criminal and penal laws within his district, and he is without power to dispense with prosecutions, unless his reasons therefor are reduced to writing, signed by him, presented to and approved by the trial court, spread upon the order book, and an order entered in accordance therewith.</p>

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

<p>Homicide — Verdict of Guilty — Sufficiency of Evidence.- — On a prosecution for homicide, evidence examined and held insufficient to sustain a verdict of guilty.</p>

<p>1. ¡Schools — Acts Relating to Government oí. — The act approved March. 24, 1908 (Acts 1908, >p. 133; c. 56; Ky. St. 1909, Sec. 4426a), relating to the government of the •common schools of the State, applies only to the territory of the .county lying outside of any graded school district.</p> <p>2. Same — 'Separate Schools for ¡Colored Children. — The act approved March'24, 1908 (Acts 1908, p. 133, c. 56; Ky. St. 1909, Sec. 4426a), relating to the government of the common schools of the 'State, requires a -school organization and' districting for -colored -children entirely separate and apart from that ¡provided for white children, both schools, however, -being under the -control and management of the -County Board of Education.</p> <p>3. Same. — Where a common school district for colored children embraces within its boundary a -graded school district for white -children,' the County Board of Education may erect a common -school building for colored children within that portion of the territory of the -common school -district for -colored children, -which also lies within the boundary of the graded school -district for white children.</p>

<p>1.Railroads — Injury to Trespasser — Duty Toward — Rule as to Such. Duty in City and Country. — A railroad company ordinarily owes no duty to a trespasser until his peril is discovered, and it is not liable for an injury to him, unless after his peril is discovered the injury to him could have 'been avoided with proper icare. This rule has been applied in all cases where the injury occurred in the ¡country; ¡but in cities and towns, where the population is dense, and from the number of persons passing the danger to life is great, a different rule applies; and, in such localities, it is the duty of those operating a railroad train to moderate its speed, give notice of its approach, keep a lookout, and take such precaution as the circumstances demand for the proper security of human life.</p> <p>2. Railroads — Use of Track by Public as Passway — Duty to Keep Lookout. — Where the track and switch yard of ¡a railway company was frequently and habitually used by the public as a foot-way, with the knowledge and acquiescence of the railway company, ¡andi was a place where the presence of persons on the track was reasonably to be anticipated, it was- the duty of those in charge of the engine used in switching cars on the tracks to keep a lookout for persons using the track as ¡a footway, and to give reasonable signals and warnings of the movements of the ¡cars.</p> <p>3. 'Railroads — Use of Track as Passway — Evidence—Submission to Jury. — Where the tracks ¡and yard of a railroad company were within the corporate limits of a ¡city having 3,000 inhabitants, and ten witnesses testified that they bad repeatedly seen residents of the town use the railroad tracks as ¡a passway, there was sufficient evidence to authorize the submission to the jury of the question whether such passway was sufficiently general to bring it within the rule above announced.</p>

<p>1. Pleading — Joinder of Actions. — An action against the County Board of Election Commissioners to compel them to canvass the returns and issue plaintiff a certificate of election cannot be joined with an action against the incumbent of an office to recover the office.</p> <p>2. Election — County Attorney — Vacancy—Want of Notice — Ignorance of Voters — Void Election. — An election to fill a vacancy in the office of bounty attorney is. void where there was no notice of the election, and the voters were in ignorance that the office was to be filled, and only seven persons in the entire county participated in the election, by writing on the ballot the name of the office and the name of the person they desired to vote for.</p>

<p>1. Contracts — Personal Service — Action to Recover for Breach of.— In a suit to recover damages for the breach of a contract for personal services, the plaintiff must allege, not only the breach, but an effort on his part to secure and a failure to obtain other employment during the period which would have been required for the performance of the contract sued on.</p> <p>2. Contracts — (Mines and Mining — What is not a Contract for Personal Service. — A contract, whereby the plaintiffs agreed to “mine and prepare ready for the wagons,” all the flúor spar in a specified 'portion of a mine, and to leave the collar around the main shaft, and to timber up the ground in a substantial manner, using timbers oif good quality sufficient to hold the ground except in cases of accident and from the rotting of the timbers, and to furnish everything neessary for the mining operations, is not a contract for personal services, since it contemplated that the plaintiffs could have employed others to do the mining called for by the contract.</p> <p>3. Contracts — Mines and Mining — Measure of Damages. — Where a mineowner contracted with a miner to do certain mining at a stipulated price per ton, and subsequently refused to permit the miner to carry out the contract, the miner’s measure of damage for a breach of the contract was the reasonable profit which he would have realized over and above the cost to him, of the mining called- for in the contract.</p>

<p>1. Life Insurance — False and Material Answers in Application. — If an applicant for life insurance makes false and. material answers in his application, it will defeat the policy; and, the question whether or not the applicant has been rejected for insurance, is material to the risk, and the answer if false will avoid the policy.</p> <p>2. ¡Life Insurance — Soliciting Agent is Agent of the Company. — An agent who solicits insurance will toe treated as the agent of the company, and not the insured, notwithstanding a provision in the policy that he is acting as the agent of the insured; and, if • such agent writes false answers to the questions propounded to the applicant, or by misleading .statements induces the applicant to make false answers, when the applicant is acting in good faith and without any intention to deceive, the company will be estopped -to rely upon the answers to defeat the policy.</p> <p>3. (Life Insurance — Examining Physician Agent of the ¡Company.— The physician appointed by the company to examine the applicant is its agent and not the agent of the applicant, notwithstanding a clause in the -policy providing that he shall be the agent of the applicant; and if such physician writes false answers to the questions propounded by the examiner’s report, or toy misleading statements- induces the applicant to make false answers, when the applicant is acting in -good faith and without any intention to deceive, the company- will be estopped to rely upon the answers to defeat the policy.</p> <p>4, Life Insurance — Acceptance of Premiums After Knowledge of Material and False Answers in Application. — If after an insurance company has accepted an application and issued a policy thereon, it discovers that there are false and material answers in the application that would defeat the policy, and after obtaining this ¡knowledge it continues to demand and receive premiums, it will (be estopped to rely on the falsity of the answers to defeat a recovery on the policy.</p> <p>5. Life Insurance — By-laws not Attached to Policy. — By-laws of an insurance company that are not attached to or a part of the policy ■are not admissible as evidence against the insured.</p>

<p>1. Gas — Right of Way for Pipe Line — Condemnation Proceeding In County Court — Appeal to Circuit Court — Damages.—In an action by appellant to condemn land for its gas pipe line; on an appeal by it to the circuit court .from a judgment in the county court, the amount recovered by the owner of the land being greater in the circuit court than it was in the county court, judgment was properly entered in the circuit court, in his behalf for the larger, sum and costs in that court, credited by the amount ■paid by appellant in satisfaction of the judgment recovered in the county court.</p> <p>2. Same — «Evidence that Pipe Lines Burst or Produce Explosions.— ."Wthile it is not held that the evidence to the effect that gas «pipé lines sometimes burst or produce explosions is incompetent, appellant seems to be responsible for the admission of Sucb testimony here; but, although the measure of damages in a case like this does not include fear, the evidence should not have been excluded for that reason.</p> <p>3. .Same. — Such testimony is competent on the ground that explosions might result in injury to the adjacent land or premises of appellee and thereby constitute a part of the incidental damages recoverable.</p> <p>4. Depositions — Omission to Read Before Closing Appellant’s Evidence — 'Refusal to Allow Reading at Close of Appellee’s Evidence — Prejudicial Error. — Where by oversight the depositions of four of appellant’s witnesses were not read at the taking of its evidence, it was prejudicial error to refuse it the right to read them upon the conclusion of appellee’s evidence.</p>

<p>Taxation — Proceedings by Auditor’s Agent to Tax Certain Properties of Berea College — Constitutional Provision — Exemption.—In a proceeding to tax certain properties of Berea College, namely, a laundry, printing department, water works system, supply store and other properties operated in connection with the institution, the evidence shows that each of these' institu* tions is (maintained either for the purpose of industrial training, arid education for the young men and women in attendance at the school, or to afford them some means of livelihood, or to supply, as in case of the water works plant, a’ necessary physical ánd bygenic adjunct of the institution as a cleanly dwelling place. The gain which comes from these institutions is not gain in the commercial sense, ¡but is turned into and becomes a part of the general income of the institution’s purely educational side, and for its purely educational purposes. Held, the record 'brings this school as to the assets named, within that class exempt from taxation ¡by section 170 of the Constitution.</p>

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

<p>1. ‘Tax .Sale — Sheriff’s Deed — EViden.ee of Title — Kentucky Statutes, Section 4030. — In a contest between the purchaser at a tax sale and a taxpayer, or anyone claiming under him, a sheriff’s deed, under Section 4030, Kentucky Statutes, is prima facie evidence of title in the .purchaser by virtue of the tax proceedings.</p> <p>2. Lands — ¡Action of Ejectment to Quiet Title and of Trespass to Try Title — Tax Sale — Sheriff’s Deed — Effect of as Evidence. — In an action of ejectment; or of trespass to try title, or to quiet' title, between a purchaser at a tax sale and a third party, not the taxpayer, or claiming through the taxpayer, a sheriff’s deed is not prima facie evidence of title in the person in whose name the property was sold, and does not dispense with the necessity of proving title in such person.</p>

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

<p>This case is decided upon the authority of Hodge v. Bryan, the opinion of which is this day delivered.</p>

<p>1. Practice — Pleading.—Under section 90 of tlie. Civil Code, the plaintiff is not entitled to any relief except that specifically prayed for, -when no defense is made, but when defense is made, he may recover under a general prayer for relief, what the evidence shows he is entitled to.</p> <p>•2. Action Upon Note — Defense of Payment — Finding of Chancellor. ■ — In an action upon a note, the evidence showing that an amount in excess of it had been paid, the finding of the chancellor setting aside a former judgment and allowing judgment for the excess is upheld.</p>

<p>Mines and Mining — Action for Personal Injuries — Opinion in Similar Case. — For an examination of the questions involved in this case, see Interstate Coal Co. v. Baxavenie, 144 Ky., 172. As to the contention that the verdict is excessive, the evidence examined and held that a verdict in appellee’s behalf for $2,500.00 is not too large.</p>

<p>1. Instructions. — In instructing the jury, it is not improper to assume as true a fact admitted by the pleadings.</p> <p>2. Real Estate Agent — Suit for Commissions — Evidence.—Where one is employed by the owner of a farm to write a letter to the purchaser recommending the farm, and to assist in making a sale to him, remarks in disparagement of the farm made by the agent prior to his contract of employment are not admissible in evidence.</p> <p>3. Same. — In a 'suit by a real estate agent against the owner of a farm for commissions for services in assisting in the sale, contracts made by defendant with other real estate agents are not admissible to show the kind of contract he made with plaintiff.</p>

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

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

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

<p>1. Court — Discretion of in Refusing to Order Jury to View Premises. — The discretion of the court is not abused when he refuses to order the jury to view the premises though in the city where the court sits, the evidence not being conflicting as to their condition.</p> <p>2. Verdict. — A verdict will not be disturbed as excessive simply because the amount is liberal, or more than this court would have favored.</p> <p>S. Municipal Corporations — Drainage of Lot. — An open drain having been filled under an arrangement between the city and the owner; after the lot has been filled and improved the city has no right after many years to take out the pipes and make an open drain through the lot as it was originally especially after it has passed into the hands of a bona fide purchaser.</p>

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

<p>1. Criminal Law — False Pretenses. — A local insurance agent can be convicted of obtaining money under false pretenses by falsely representing to his company that the policy it had issued was the only insurance on the property destroyed, when he knew there, was other insurance on the property that had been collected, and the company did not know this fact, and, induced by the false statements of the agent the company was influenced to settle the loss.</p> <p>£ Criminal Law — Insurance Agent Obtaining Money by False Pretenses — Double Insurance. — Where a policy provided that if there was other insurance on the property, it should be void, the knowledge of the agent that there was other insurance will not bar the company from the right to rely on the clause in its policy to defeat the recovbry of the insurance when the agent in pursuance of a conspiracy and to practice a fraud represented to the company that there was no other insurance on the property: The fraud of the agent and the property owner will take the case out of the rule charging the company with notice of the knowledge of its agent.</p> <p>3. Criminal Law — Indictment—False Pretenses — Counts in Indictment. — An indictment for obtaining money under false pretenses that charged in one count that its agent entered into a conspiracy with a property owner to defraud the company, and in pursuance of this conspiracy falsely represented after the property was destroyed by fire that there was no other insurance on it, and in another that he presented to the company a false estimate of the cost of replacing the loss purporting to have been signed by a carpenter, and yet in another assisted the property owner in procuring an affidavit that there was no other insurance, was not objectionable on the ground that it charged three distinct offenses.</p> <p>4. Criminal Law — Indictment—Separate Counts. — An indictment may set out in separate counts the different modes and manners in which the offense charged was committed.</p> <p>5. Criminal Law — False Pretenses — Instructions.—Under an indictment charging that the accused committed in three different ways and by three different methods the offense charged, it was proper to instruct the jury that if they believed he was guilty of the offense charged in either of the counts that they might find him guilty.</p>

<p>1. Wills' — Estates Tail — Common Law Rule as to Creation of Not in ■Force in This State. — The common law rule that under a devise to A. for life with remainder to his issue an estate tail is created, which under the statute is converted into a fee, is not in force in Kentucky, and under such a devise A. only takes a life estate.</p> <p>2. Wills — Infant’s Right to Probate Will — Limitation.—A proceeding by an infant to probate a will is not barred- until ten years after his disability is removed, though other devisees may be of age and be barred by the statute.</p> <p>3. Contracts — Specific Performance. — The court will not decree specific execution of a contract where the vendor’s title is imperfect and may be defeated by the probate of a will.</p>

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

<p>1. Partnership — Accounting.—In an action by the representative of a deceased partner, not to rescind a contract, executed almost fourteen years before, purporting to be a dissolution of tbe partnership and retirement of decedent therefrom, but for an accounting and distribution of the partnership assets, an accounting will be denied where, by reason of the long delay, the change of conditions and loss by defendant of evidence, the court cannot do full justice to the parties'.</p> <p>2. Equity — Laches and Stale Demands — Following Statute of Limitations. — Laches is a question of fact, to be determined by the circumstances of each case. Equity will refuse to enforce a stale claim, though it i's not barred by the statute of limitations, where changed conditions would place defendant in a disadvantageous position, and delay will not be excused, either by aversion of plaintiff to litigation or by the fact that defendant’is a fiduciary or trustee, where defendant has repeatedly refused to recognize plaintiff’s rights.</p>

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

<p>1. Boundaries — Description—Relative Importance of Conflicting Elements. — Where a located corner, called for, is a natural object, both course and distance must yield, if necessary, to reach the corner.</p> <p>2. Boundaries — Location of Corners — Evidence, Ascertainment and Location. — Where the first and second corners of .a survey are agreed upon, the third and fourth being in dispute, the fourth called for as “a poplar in a low gap” refers to a poplar in the low gap in the ridge mentioned in the calls of the survey, and not to that in a depression in a spur leading off from the ridge. The fourth corner being established, the third is located at the intersection of the lines run from the second corner, according to the course called for, and along the reverse call from the fourth.</p> <p>3. Boundaries — Establishment by Agreement. — To establish title to an agreed boundary line, the land must be owned by the parties to the agreement, and possession to the agreed line must be taken and held for such time as will support title by adverse possession.</p> <p>4. Trespass — Actions—Right of Action. — In an action for trespass, plaintiff must show himself the owner of the land on which alleged trespasses were committed, or fail in his action.</p>

<p>1. Schools — Right of County Superintendent to Recognize Trustees. —When the right to the office of trustee is contested, the county superintendent may, as directed in section 4436 of the Kentucky Statutes, recognize a trustee among the contestants until the dispute has been settled.</p> <p>2. Schools — No Appeal Lies From Order Recognizing Trustee.— When the county superintendent has recognized a trustee among contestants for the office, no appeal lies from his order of recognition to the Superintendent of Public Instruction; and neither the Superintendent of Public Instruction nor the State Board of Education has the right to determine in case of contest who is entitled to the office of trustee. This right is confided to the courts.</p> <p>3. Schools — Powers of Superintendent of Public Instruction on Appeal. — Under section 4396, Kentucky Statutes, giving an appeal to the Superintendent of Public Instruction from the finding of . the county superintendent on a question affecting the administrative duties of officers and teachers, the Superintendent of Public Instruction has the right to decide question of administrative detail relating to the management of the schools or the manner in which the officers or teachers are performing their duties.</p>

<p>1. Sureties — Co-obligors—Payment of Judgment — Execution Against Co-surety or Co-obligor — Motion to Quasb — Kentucky Statutes, Section 4666. — Where a surety or obligor pays off tbe judgment and has execution issued tbereon against bis co-surety or co-obligor, and tbe execution defendant claims tbat tbe execution is for a larger amount than his proper part, bis remedy is by motion to quasb, or a proceeding to enjoin tbe execution, or by both if necessary to protect bis rights.</p> <p>2. Same. — It is error ,to quash, an execution issued against a co-surety or co-obligor in favor of a surety or obligor who has paid the judgment and taken an assignment thereof, without first determining the respective liabilities of .the parties. . Where a motion is made to quash the execution, the court will hear and determine the question of liability. in a speedy and Summary way. If it appear that the execution is for the proper amount, the execution will go as issued; if it appear that it is for an amount in excess of the execution defendant’s proper part, the execution will be quashed, to the extent of the excess only.</p>

<p>Appeals. — The presumption that the Circuit Court ruled correctly is not overcome where the appellant files an incomplete transcript not made out on a schedule filed pursuant to Sec. 737 of the Civil Code.</p>

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

<p>1. Carriers — Live Stock — Duty as to Transportation. — Where a carrier accepts live stock for shipment, it is its duty to provide for it good and suitable cars; to transport it with reasonable dispatch; and not to subject it to rough or improper treatment during the journey.</p> <p>2. Carriers — Live Stock — Liability.—Where death or injury occurs to live stock in transit, the carrier is liable if loss or damage is due to human agency; it is not liable, if due to inherent vice of the animals or to natural causes.</p> <p>3. Carriers — Live Stock — Action for Loss or Damage — Evidence— Burden of Proof. — In a suit for damages for death or injury to live stock in transit, the burden to show negligence of the carrier is on the plaintiff, where he or his agent or representative accompanied the shipment; where shipment is in exclusive control of carrier, plaintiff must show condition of stock at time of delivery to and at time of its receipt from the carrier, and if death or injury occurred, the burden shifts and the carrier must account for the loss or injury.</p>

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

<p>Criminal Law — Error in Refusing Peremptory Instruction — Evidence. —Appellant complains of a verdict and judgment convicting Mm of the crime of obtaining money by false pretenses. Evidence examined and held insufficient to establish his guilt, therefore, the trial court erred in overruling his motion, made at the conclusion of the evidence, for a peremptory instruction directing the jury to find Mm not guilty.</p>

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

<p>1. Railroads — Negligence.—It is not negligence per se for a passenger to step from a moving train.</p> <p>2. Personal Injuries — Action for Damages — Second Trial — Instructions. — Where, upon the second trial of a suit for damages for personal injury, the evidence is practically the same as it was upon the first trial, and the trial court correctly gave the instructions directed by the opinion in the first appeal, a verdict for substantially the same sum as the first verdict, will be affirmed.</p>

<p>1. Bonds — Bond for Good Behavior — -What Not a Breach of Bond.— Where a person under arrest is required, under section 382 of the Criminal Code of Practice, to give a bond to keep the peace or for his good behavior, a conviction of the principal in the bond of an offense not amounting to a felony, and not involving a breach of the peace, is not a breach of the bond.</p> <p>2. Bonds — Bond for Good Behavior — When Cannot Be Forfeited. — A bond to keep the peace can be forfeited only where there has been a conviction of the principal of an offense which is either a felony, or a breach of the peace which imports violence or injury to an individual or his property; a mere breach of the public peace and order is not a breach of the covenants of the bond.</p> <p>S. Bond — What Does Not Constitute Breach of Peace Bond.— Where a person under arrest charged with confederating with others for the purpose of intimidating and alarming others, and for cruelly and inhumanly beating and bruising a third person, was required to give a bond to keep the peace and be of good behavior for a year, his subsequent conviction under a warrant issued by the judge of the county court charging him with having “committed the offense of a breach of the peace by being disorderly, by insulting Marion Etling and wife'Lidia Etling, discharging deadly weapons and shooting a dog,” for which he was fined $25.00, did not constitute a breach of his peace bond under section 391 of the Criminal Code of Practice, which provides that a peace' bond will be broken by a judicial conviction of the defendant of an offense involving a breach of the peace, within the period specified in the bond.</p>

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

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

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

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

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

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

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

<p>1. Railroads — Master and Servant — Passenger—Liability of Railroad For Assault On and Abuse . of Passenger by Conductor While Insane. — A railroad company is liable in compensatory damages to a passenger who is assaulted, abused and insulted by a conductor, while acting within the scope of his employment and engaged in attending to the company’s business, even if he ‘be insané at the time.</p> <p>2. Railroads — Verdict—Excessive.—In an action for damages by a passenger for being assaulted, abused and insulted by a conductor evidence examined, and held that a verdict of $600 is not exces-. sive.</p>

<p>1. Insane Persons — County Court — Inquest—Failure of Record to Show Jurisdictional Facts. — An inquest held by a county court, when the circuit court was not in session in the county, adjudging one to be of unsound mind, is not void because the record of the proceedings fails to show that the circuit court was not in session in the county at the time the inquest was held.</p> <p>2. Jurisdiction — Record Silent — Evidence Aliunde of Jurisdictional Facts. — Where the record of a county court in inquest proceedings is silent as to jurisdictional facts, such facts may be shown by evidence aliunde.</p> <p>S. Counterclaim — Process—Insane Person. — Where a devisee under a will is a lunatic, and he and his committee and other devisees bring an action to sell certain real estate under subsection 2, section 490,. of the Civil Code, and also to require the executrix to settle the estate, and subsequently, by amended petition, makes one holding a mortgage on the property a, party defendant, and such defendant files an answer and counterclaim to the amended petition, setting up its mortgage lien, such pleading is a proper counterclaim against the plaintiffs, including the lunatic and his committee, and service of process thereon is not necessary to bring the lunatic and his committee before the court on such pleading.</p>

<p>1. Railroads — Rates—Discrimination.—Where a railroad fixes its own rate for a certain service, it will not be- heard to say that the rate is a proper one for certain shippers, and below the cost of the service and therefore confiscatory, as to others who are similarly situated and entitled to the same service.</p> <p>2. Commerce — Interstate—Burden on — Intrastate Shipments — State Constitution and Laws. — To require a carrier to obey the State Constitution and laws with reference to purely intrastate shipments, does not impose an unreasonable burden upon the interstate commerce business of such carrier.</p>

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

<p>Trespass to Try Title — Finding of Chancellor — Evidence.—In an action of trespass to try title, evidence examined and held sufficient to sustain a finding in favor of defendant.</p>

<p>1. Damages — Action Against Physician — Pleading.—In an action hy a patient against a physician, an allegation that an operation was negligently performed may be united with an allegation that it was performed without the patient’s consent.</p> <p>2. Same — When Operation is by Patient’s Consent. — In such an action the operation is by the patient’s consent where though no express consent was given the physician understood and from the plaintiff’s words and conduct had reasonable grounds to understand that she consented to it.</p> <p>3. Same — Reasonable Grounds. — Reasonable grounds, on such as would warrant a person of ordinary prudence to so understand under the circumstances.</p> <p>4. Instructions — Loss of Health. — An instruction authorizing the jury to find for the plaintiff such á sum as would compensate plaintiff for her loss of health is erroneous.</p> <p>5. . Damages — Measure of Recovery. — The measure of recovery is such a sum as will fairly compensate her for her pain and suffering, if any, and the permanent impairment, if any, of her power to earn money, which were the natural and proximate result of the operation being performed unshillfully or without her consent, if it was so performed.</p>

<p>1. Railroads — Action for Personal Injury. — A detective for a railroad company, who goes in between cars standing on a sidetrack, without notice to a switching crew then using that track, and i9 hurt while there when they had no reason to anticipate his presence, cannot recover of the railroad company for his injury.</p> <p>2. Railroads — What is not Negligence. — An unusual or unnecessary bump of the cars is not negligence as to one to whom no duty of care exists, nor is failure to keep a lookout a ground of complaint where a lookout would have been unavailing.</p>

<p>1. Railroads' — Action Against for Personal Injury — Evidence—Peremptory Instruction. — In an action by a passenger to recover for an injury caused by a sudden jerk of tke train, a peremptory instruction should not -be given where there was evidence that the jerk was violent and unusual.</p> <p>2. Proximate Cause of Injury — Competency of Evidence. — In such an action proof that the injury brought about a miscarriage followed by a cancer was competent, it being a question for the jury whether the injury was the proximate cause of the cancer.</p> <p>3. Judgment — When Will Not Be Reversed for Refusal to Give Instruction. — A judgment will not be reversed for the refusal to give instructions which were practically embodied 'in those given by the court, or which could not have affected the result.</p> <p>4. Railroads — Safety of Passengers — Exercise of Care. — It is the duty of those operating a railroad train to use for the safety of the passengers the utmost care exercised iby prudent and skillful persons in the management of railroad trains.</p>

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

<p>■Ejectment — Recovery of Intruder — Proof of Possession Sufficient.— ’ ' While the general rule is that the right of the plaintiff to rpppver in ejectment rests on the strength of his own title, yet as against an intrusion by a stranger without title or color of title on a. peaceable possession, such possession alone is sufficient-to main- . tain the action. ' .</p>

<p>Deeds. — A deed to A. for life and then to 'bis issue or descendants-creates under the 'statute not an estate tail, but a life estate in A. and a fee in bis children or descendants. (For original opinion, see 148 Ky., page 565.)</p>

<p>1. Bankruptcy — Fraud—Claims That Are Not Released by Discharge. — Judgments in actions for fraud are not released by the discharge of the judgment defendant in bankruptcy.</p> <p>2. Bankruptcy — Judgment in Action for Fraud. — Whether or not a judgment was obtained in an action for fraud is to be determined by an- inspection of the entire record in the case in which the judgment was rendered; and, where there is a trial ¡before a jury, unless it appears that the jury was influenced to render the verdict upon which the judgment was based by evidence of fraud on the part of the judgment defendant, the discharge in bankruptcy will satisfy the judgment. And where there are several issues submitted by the instructions to the jury, on some of which a verdict could have been found in favor of the plaintiff, without involving the defendant in fraud, it will not toe presumed that the jury based their verdict upon the fraud of the defendant.</p> <p>3, Fraud — Definition of. — The character -of fraud necessary to save a demand from the operation of the bankrupt act is positive fraud, or fraud in fact, involving moral turpitude or intentional wrongdoing, and not implied fraud, which may exist without imputation of had faith or immorality.</p>

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

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

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

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

<p>Appeal. — If the record for any cause is not filed in time, and the ' time for filing is not extended by the Court of Appeals the appeal must be dismissed. ' . ■</p>

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

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

<p>1. Criminal Law — Separate Coacb. Act — Section 795, Kentucky Statutes — Evidence—Rejection of — Prejudicial Error. — Where, under an indictment for violation of the separate coach act (Section 795, Kentucky Statutes), the real issue was whether or not the coach lor compartment contained signs in plain letters indicating the race .for which it was set apart, it was not prejudicial error to reject evidence of a conversation between the conductor and a passenger which tended merely to show that the coach was intended for colored people.</p> <p>2. Same — Statement of Trial 'Court — Prejudicial Error. — Where on a trial for violation of the separate coach act the court, in excluding •certain evidence, stated that the real issue was whether or not the cards were up indicating the race for which the coach or compartment was intended, this statement was not prejudicial error in view of the fact that the Commonwealth sought a conviction mainly on the ground that such cards were not up, and the further fact -that the entire issue was submitted to the jury by proper instructions.</p> <p>3. Verdict — Sufficiency of Evidence — -Credibility of Witness — Question for Jury. — Where a witness for the Commonwealth testifies to one state of facts, and a witness for the defendant testifies tio' the contrary, it cannot be said that the verdict of the jury is flagrantly against the evidence merely because the witness for the Commonwealth maltes statements in regard to other matters contrary to the testimony of other witnesses, as such statements affect only the credibility of the witness, and that is a question for the jury.</p>

<p>1. Nuisance — Wien House is Disorderly. — In order to sustain a prosecution for maintaining a common nuisance in a bouse, it is not essential that such disorder 'be shown as would disturb tie peace of the neighborhood. It is a disorderly house when the acts done there, from time to time, are contrary to law.</p> <p>2. Local Option — Prosecution for Violation of Law — When Jury’s Binding of Guilty Will Not be Disturbed. — In prosecutions for selling liquor in violation of a local option law, it does not require very convincing evidence to sustain a verdict of guilty; and, when a jury has passed on the question, itp finding will not be disturbed if there are any facts or circumstances upon which it can reasonably rest.</p>

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

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

<p>1. Seduction — Whether Prosecutrix Knew Defendant was a Married Man — Evidence.—In a prosecution for seduction the proof showing defendant was a married man and being conflicting whether the prosecutrix knew this, the defendant is entitled to the benefit of the reasonable doubt on the whole case.</p> <p>2. Seduction — In Prosecution For, Court Should Define. — In such a prosecution the court should define seduction and a failure to do so is error where this is material.</p> <p>3. Seduction — What Necessary to Constitute Offense. — To constitute the offense the prosecutrix must be at the time of the intercourse, and must have been for a reasonable time theretofore a woman of chaste conduct. Former unehastity will not defeat the prosecution if for a reasonable time before the act complained of, she had led a virtuous life.</p>

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

<p>Criminal Law — Statements Made by Deceased Shortly Before Death— When Inadmissible as Dying Declaration. — The statements ot appellant’s husband as to his having been poisoned, made shortly before his death, were properly excluded by the trial court, as they were incompetent as a part of the res gestae because not connected with sufficient closeness to the taking of the poison by deceased; and also incompetent as dying declarations because not made by' him under the belief or expectation of approaching dissolution. It is the impression of almost immediate dissolution, not the rapid succession of death, in point of fact,' that renders the testimony admissible as a dying declaration; therefore, where it appears that the deceased at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually resulted in an hour afterwards, the declaration is inadmissible. On the other hand, a belief that he will not recover is not in itself sufficient unless there be also the prospect of almost immediate dissolution. In addition to their incompetency on the grounds indicated, deceased’s declarations were also incompetent because they were mere expressions of opinion, and not statemnts of fact.</p>

<p>1. Streets — Establishment ¡of Street Instead of Old Road — By proper authority the city of London having converted a public road within its limits, upon which appellants’ lots fronted, into a macadamized street and in doing so abandoned the use of part, but at no point more than the whole, of the old road bed in front of the lots, appellee, their grantor, by actions in ejectment against appellants, severally, sought to recover such part of the old road bed as lies between their lots and the new street, upon the ground that its abandonment as a -public highway entitled him to same. Held. — (1) That as the deed by which appellee conveyed the lot described them as fronting and abutting on the old road, and the street was substituted for the old road, its construction and establishment by the city operated to include the abandoned road bed in appellants’ lots, respectively, and extend the boundaries thereof' to the edge of the street.</p> <p>2. Streets — Claim to Roadway — Estoppel.—The fact that the old road was at the time appellee conveyed appellants’ lots an established public highway, and that the deeds, called to run with same, not only vested in the grantees .the grantor’s title to the ground included in the road bed to the center thereof, subject to the public easement, but likewise passed to them the use of the entire highway as an appurtenant easement; and when the street was established in lieu of the old road, it became an appurtenant easement to appellants’ lots of which they would be deprived if appellee’s claim to the abandoned road bed between the lots and the street were sustained. So both upon the ground »f necessity and by the warranty expressed in the several deeds by which he conveyed the lots owned by appellants, appellee is estopped to claim any part of the abandoned road way.</p>

<p>Title — Action to Quiet Title. — In an action to quiet title an allegation of possession is necessary to be made and sustained, and where there is a failure of any proof of the essential element of possession, such an action cannot be maintained.</p>

<p>Evidence — Books of Account in Criminal Cases. — In a prosecution for having the possession of liquor for sale in local option territory, it is competent for the Commonwealth to show by the books and records of an express company or other common carrier the quantity of liquor delivered to the accused and the date of its delivery; but, it is essential that the entries on the books or records should 'be proven by the testimony of the agent, clerk or servant of the express company or common carrier who delivered the goods and made the entries, unless the person who made the entries is dead or beyond the jurisdiction of the court or for other good reasons his evidence cannot be procured.</p>

<p>1. Judgment — When A Bar. — Whether or not the dismissal of an action will operate as a bar to another action depends upon the ground on which the dismissal is based. If the dismissal was upon the merits of the case, the judgment will be a bar; otherwise, not.</p> <p>2. Judgment' — When Not A Bar — Facts.—Where A. sued B. upon a claim, and pending the suit A. assigned the claim to C. who satisfied it, and thereafter the action was “dismissed settled” by the attorney for A., the order of dismissal will not be a bar to an action by C. against B. to collect the claim.</p>

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

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

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

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

<p>1. Attorney and Client — Contracts by Attorneys for Compensation.— Where a contract of an attorney with his client, for compensation, contains two distinct undertakings, viz.: one, for a contingent fee; the other, for a stipulated minimum fee, if the client should settle his claim without his consent, and prohibiting the client from so settling, the former undertaking may be enforced, but the latter, being void as against public policy, cannot be enforced.</p> <p>2. Attorney and Client — Lien of Attorneys for Compensation. — Where defendant in a litigation settled with the claimant, he is liable to the attorney of the claimant for such fee only as may be provided for under the valid provisions of his contract for compensation.</p>

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

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

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

<p>Attorneys’ Pees — Compromise of Client with Litigant. — Where appellees had sued appellant to recover for personal injuries sustained by an infant, under a contract with his next friend for a sum equal to fifty per cent of the recovery, and on the day the case was to be tried, the next friend, who was the infant’^ father, qualified as his guardian and executed settlement papers, in an action by the attorneys against the defendant for the^r fee, not upon the contingent fee contract, but upon a quantum meruit, held, that in addition to ihe recovery pnder the contract, if their contention is true as to the boy’s contract for permánent services, they are entitled to receive one-half of the boy’s contract for that, and they are entitled to have this view given to the jury in an appropriate instruction, in view of this theory lof the parties’ rights being brought out by defendant’s answer, and issue joined upon it.</p>

<p>1. Insurance, Dire — Representation by Agent — When Binding Upon. 1 Company — Parol Agreement. — The general rule is that such an assurance on the part of the agent as the agent gave here that the assured could take out additional insurance, is binding upon ' the company in the assured’s ignorance lof any limitation of the' agent’s powers; and such agreement, or consent of tbe agent, or , the bringing home of knowledge to the agent, may be done in i parol, and need not be in writing.</p> <p>2. Insurance, Dire — Rights and (Liabilities of Member of Mutual Company. — Although it was a mutual company, the insured occupied an entirely distinct and independent relation to it. There is no reason why the parol contract, through its agent, should ' ' not be as valid and binding as in the case of a stock company. .</p>

<p>1. Judgment — Entry of ion Order Book — Signing by Judge — Necessity For. — It is essential to the validity of a judgment that it should be entered on the -order book and signed by a judge.</p> <p>2. Attachment — Forthcoming Bond — Section 214, Civil Code — Judgment Sustaining Attachment — Necessity For. — A judgment sustaining the attachment is a condition precedent to the right to maintain an action on a forthcoming bond, executed pursuant to Section 214, Civil Code.</p> <p>3. Forthcoming Bond — Action On — Absence* of Judgment Sustaining Attachment — Dismissal—Bar.—An order dismissing an action on a forthcoming bond based on a judgment sustaining the attachment, but not signed by a judge, will be treated as an order dismissing without prejudice, and will not bar another action on the judgment when properly signed.</p>

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

<p>Appeal from Jefferson Circuit Court (Criminal Division).</p>

<p>1. Criminal Law — Application for Change of Venue — Discretion of Trial Courts. — The exercise of the discretion by the trial court in refusing a change of venue will not be reversed unless it ap- ' pears from the record that this discretion has been abused.</p> <p>2. Criminal Law — Continuance—Discretion of Trial Court in Refusing. — Where no facts' were shown to sustain the statement of the affidavit for a continuance that the proper effect of the testimony of the absent witnesses could not ibe had without their per- ' sonal presence, it cannot 'be said that the court abused a sound discretion in refusing to grant the continuance.</p> <p>3. Criminal Law — Separation of Jury During Trial. — Where the of- • fense upon which accused was being tried was not a capital of- : ■ fense, it was within the discretion of the trial court to permit the jury to separate during the trial.</p> <p>4¡. Criminal Law — Formation of Jury — Action of Trial Court Is Not Subject of Review. — The action of the trial court in accepting as jurors those who had formed or expressed an opinion, even had it been set out in the bill of exceptions, as it is not, is not subject to review.</p> <p>5. Criminal 'Law — Credibility of Witnesses. — The credibility of the witness is for the jury, and this court will not disturb a verdict because the jury believed one set of witnesses rather than another. The verdict must be palpably against the evidence or it cannot be disturbed.</p> <p>6. Criminal Law — Carnally Knowing Female Under Age of Sixteen— Testimony of Misconduct with Others by Prosecutrix — Evidence to Sustain Conviction. — Upon the trial of appellant on the charge of carnally knowing a female under the age of sixteen years, the trial court properly limited the testimony as to the misconduct of the prosecutrix with others to its evidential effect upon the ■ question of her veracity. There is no error of law in the record, and the testimony by the prosecutrix is such as to sustain a conviction.</p>

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

<p>1. Instruction — Refusal to Give Peremptory Instruction — When Not Error — Submission to Jury. — The refusal of the trial court to give a peremptory instruction directing appellant’s acquittal, was not error; as there was evidence tending to show him a guilty participant in the larceny charged in the indictment, which authorized the submission of the case to the jury.</p> <p>2. New Trial — Failure to Exercise Diligence. — The refusal of the court to grant a new trial on the ground of newly discovered evidence, was not error, as it is not apparent that the newly discovered evidence would, upon another trial, have a preponderating influence upon the verdict of the jury. It is apparent that ■ reasonable diligence on the part of the appellant would have enabled him to obtain the alleged new evidence at the trial in which hé was convicted.</p>

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

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

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

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

<p>Appeal — Finding of 'Chancellor — Conflicting Evidence. — Where the evidence in an equitable action is conflicting, and upon a consideration of the whole case the mind is left in doubt, the finding of the chancellor will not foe disturbed.</p>

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

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

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

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

<p>1. Land — Owner Laying 'Out Building Lots — Dedication of Streets. —Where the owner of land lays it out in building lots, streets and alleys, and exhibits a map of it, which defines the lots, streets and alleys, though the streets and alleys are not yet actually opened, and sells the lot as 'bounded by such street oi alley, this is an immediate dedication of such street or alley to the use of the purchaser and to the public.</p> <p>2. Same — Street—Where a Subdivision Leaves Open Strip of Ground for Street — Not Allotted to Any Heirs — Dedication.— Where, in an action for that purpose, land was subdivided by commissioners, and a space fifty feet in width was allotted to none of the heirs, but was left open as a street, a subsequent trustee was without power to convey it, or any interest in it, and one purchasing it having full knowledge of the existence of the street, cannot claim it as an innocent purchaser.</p>

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

<p>1. Land- — Action to ¡Secure Possession of — Notice—Execution Sale.— A notice, used as the basis of a proceeding under section 1689 of the Kentucky Statutes, to secure possession of a tract of land sold under execution, is sufficient if it follows the form prescribed by that statute.</p> <p>2. Land — Fraudulent Conveyance of — Against Whom May Action for Possession Be Prosecuted. — Where the owner of land joined in a scheme, whereby his land was fraudulently conveyed to another, a proceeding under section 1689 of the Kentucky Statutes to secure possession of the tract of land from the ¡original owner may ¡be prosecuted against the original owner and the tenant of his fraudulent vendee.</p> <p>. 8. Land — Creditor Claiming Lien — Notice.—Section 2358a of the Kentucky Statutes, which requires a creditor claiming a lien on land to file a notice of his lien in the county court clerk’s office in order to prevail against a subsequent purchaser, applies only to cases where the subsequent purchaser is a purchaser for value and without notice of the pre-existing lien.</p>

<p>1. Insurance, Accident — Action— Evidence — Sufficiency. —In an action on an accident insurance policy resulting in the death of the insured, evidence examined and held sufficient to sustain the finding of the jury.</p> <p>2. Same — Notice of Accident — Stipulation of Policy — Validity of.— Where an accident policy provides for notice to be given the company within ten days after the accident occurs, the insured himself, if he survive the accident, should give the contract notice within the specified time, unless his faculties be so impaired, or he should be so circumstanced that the giving of such notice is impossible; but in case of his death, the beneficiary has ten days after acquiring knowledge of the existence of the contract to give notice, or if the right of action devolve upon a personal representative, he has ten days after his qualification, and after acquiring such knowledge, to give the notice. If the company has notice, there is no necessity for further notice by the beneficiary.</p>

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

<p>1. Criminal Law — Confederating and Banding Together for a Felonious Purpose — Repeal of Statute. — Section 1223 of the Kentucky Statutes, relating to the subject of persons unlawfully banding together to do some felonious act, was repealed by section 1241a of the Kentucky Statutes.</p> <p>2. Criminal Law — Indictment for Statutory Offense. — Under an indictment for a statutory offense, if the indictment contains averments not necessary to constitute the offense under the statute, it is not essential that the Commonwealth should introduce evidence to prove the unnecessary averments.</p> <p>3. Criminal Law — Instructions for Statutory Offense. — Under an indictment for a statutory offense, it is only necessary that the instructions should describe the offense as it is described in the statute. It is not required that the instruction's should contain surplus words used in the indictment.</p> <p>4. Criminal Law — Evidence of Statutory Offense. — Although an indictment for a statutory offense may contain averments not necessary to describe or constitute the offense, it is only necessary to sustain a conviction that the Commonwealth should prove the commission of the offense described in the statute.</p>

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

<p>1. Wills — Limitation Over in a Chattel Interest — When Use of Article Means Its Consumption. — While formerly there could be no limitation over of a chattel interest, the rule has been so changed that such a limitation over hy will is good, 'but when the use of the article means its consumption, the limitation over after the life estate is void, and the widow taking such an estate in the property that would he consumed by its use, her administrator with the will annexed is entitled to it.</p> <p>2. Wills — Interest on Money in Bank — Owner of Property the Use of Which Meant Its Consumption. — The devisee was entitled under the will to such property as would he consumed hy its use, such as interest on money in bank; and what she could make by her own efforts in the use of the property devised £8 her.</p>

<p>Contracts — Vendor and Purchaser — Construction and Operation — Intent of Parties — Extrinsic Circumstances. — The object of construction is to arrive at the intention of the parties, to be gathered from language used in the contract. Where- ambiguity exists resort may be had to extrinsic circumstances to ascertain the intent. The terms “lumber not less than six feet in length” -and “trash,” as used in a contract of sale of all lumber six feet and more in length, in certain buildings and pens, for the consideration in part to wreck the buildings and remove the trash, do not, in their 'ordinary meaning, include a spur track on the same lot with the wrecked buildings; and, inasmuch as at the preliminary negotiations no mention was made of the spur track, such terms cannot be -construed to include it, and it did not pass to the purchaser under the contract.</p>

<p>Judgment — Will Not Be Reversed Merely Because Weight of Evidence Is On One Side. — A judgment will not be reversed merely because the weight of the evidence is on one side. In order to justify a reversal on this ground, it must appear that the verdict is flagrantly against the weight of the evidence, or that it was the result of fraud, passion or prejudice. (For former opinion, see 142 Ky., 814.)</p>

<p>Action — Finding of Chancellor — Sufficiency of Evidence. — In an action by a building association to foreclose a mortgage lien, and in a contest between tbe defendant and a bank, over the title to a certificate of deposit issued by the building association, evidence examined and held sufficient to sustain the finding iof the chancellor in favor of both the building association and the bank.</p>

<p>1. Insurance, Fraternal — By-laws—Change of Beneficiary. — Where under by-laws of the order the member has the right to change the beneficiary, the latter’s rights are subject to be defeated by a change properly made.</p> <p>2. Same — When Change of Beneficiary Will Be Upheld. — Where the member has done all that is required of him under the by-law to change the beneficiary, and the order will not he affected, the change of beneficiary will he upheld, though a new certificate had not been issued and the by-law provided that the change should not he made until this was done.</p>

<p>Dower — Where Wife Does Not Join, in Deed — Husband Owning Other Land at Death — How Dower Assigned. — Where the husband sells land without warranty, his wife not joining in the deed, and he dies owning other land, the widow cannot be required to take her entire dower out of the land falling to the heirs, but should be assigned her dower separately out of the land that was sold and the land descending to the heirs.</p>

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

<p>Finding of Chancellor — Sufficiency of Evidence. — In an action on two due bills, where the defendant pleaded fraud • and also counterclaim for an amount in excess of the due bills, evidence examined and held sufficient to sustain the finding of the chancellor in favor of plaintiff.</p>

<p>Sinking Fund — When Sufficient tinder Sec. 159 Constitution. — A sinking fund is sufficient under section 159 of the Constitution when the amount raised by taxation when added to the interest that may be reasonably realized on it is sufficient to pay off the bonds at maturity.</p>

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

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

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

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

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

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

<p>Land — Sale of Under Section 490 Civil Code — Regularity of — Vested Estate. — Where a wife became the owner of land prior to the act of 1894, and died after the passage of the act, leaving her husband and two children, and the husband sold his life estate, claiming it to be only one-third, to W. and the older child, upon arriving at age also sold his interest to W., in an action by W. against the other child, the court correctly held that the life estate purchased had merged into the fee purchased from the son. While the husband owned a life estate in the whole of the property, the act of 1894 not applying,’ he had a right to renounce his rights under the old statute and surrender to his children the property given them by the act of 1894, and the presumption that he did this is conclusive as he sold to W. .a third interest, and admitted in his pleadings that this constituted his entire interest.</p>

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

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

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

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

<p>1. Conveyance — Equity Will Niot Cancel Executed Conveyance Unless Ground For Apparent. — Canceling an executed conveyance is the exercise of a most extraordinary power in courts of equity, and when asked for on any ground, it will not be granted, unless the ground for its exercise most clearly appears.</p> <p>2. Vendor and Purchaser — Buyer Need Not Disclose Knowledge That May Lessen or Enhance Value of Article. — A persoñ may, witn perfect honesty and propriety, use for his own advantage, the superior knowledge of property he desires to purchase, that has been acquired by skill, energy, vigilance, and other legitimate means; and, in the ordinary business and commercial affairs of the world, he is not under any legal obligation to disclose to the person he is trading with, the reasons that influenced him to desire the property, or his views as to its value, or the sources of information at his disposal. Nor need he disclose the knowledge that he has concerning the circumstances or condition that • may depreciate (or enhance its value.</p> <p>3. Contracts — What Not Such Fraud As To Authorize Rescission. —When the parties are dealing at arm’s length, and there is no relation of confidence or trust between them, and no representation or statement made that would have a tendency to deceive or mislead, and there are no 'special circumstances imposing a duty to speak, mere silence or the nton-disclosure of facts in the possession of one of the parties will not amount to such fraud as would authorize a rescission of the contract, or justify a refusal to specifically enforce it.</p> <p>4. Vendor and Purchaser — Statements of Value of Property — When Representation Actionable. — Although statements of the value of property are ordinarily considered as mere expressions of opinion, and are therefore not actionable, the rule is otherwise where the misrepresentation relates to some specific, extrinsic fact which materially affects the value; and, in such case, if the fact is peculiarly within the vendor’s knowledge, and the statement is made with knowledge of its falsity, or what the law regards as the equivalent thereto, and with the intent that the purchaser should act in reliance thereon, which he does to his injury, the representation is actionable.</p> <p>5. Fraud — Laches—Negligence.—A person who is injured by fraud must be prompt in seeking redress, and he must prosecute his suit with diligence. Laches and negligence are always discountenanced. Nothing can call a court of equity into activity but conscience, good faith, and reasonable diligence, and when these are wanting the court is passive, and does nothing.</p> <p>fr. Limitation — When Action May Be Barred by Laches. — If a person fails to bring his suit until after the expiration of the period prescribed by the statutes of limitations, he is necessarily barred from maintaining his action; but he may, nevertheless, in certain actions in equity, be barred by laches, if he delays for a period much shorter than the statutory period of limitation, to bring his case promptly, or to prosecute it diligently.</p> <p>7. Laches — Wihat Is Laches — Estoppel.-—Laches, in legal significance, is not mere delay, but delay tha-t works a disadva-ntege to another. So long as the parties are in the same condition, it matters -little whether one presses a right promptly or slowly, within ' limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in-good faith, become so changed that he cannot be restored to his former state, if the rights be then enforced,, delay becomes inequitable and operates as an estoppel against tne assertion of the right.</p> <p>8. Land — Sale of — Rescission of Contract — Mistake of Seller — Fraud of Purchaser.- — -Where a sale of land was -made at a given price per acre, and the deed, through the fraud of the purchaser, and the mistake of the seller, contains more land than it recites is conveyed, or is pa!id for, these facts constitute no ground for a rescission of the contract, since there is no allegation of insolvency laid against- the purchaser, and the seller has an adequate remedy at law.</p>

<p>Practice — Dismissal- of Action — Clerical Misprision — Absence of Motion in Lower Court to- Vacate Judgment. — Where 'a -demurrer to an answer was overruled on February 20; 1909, and the case stood without any preparation by the defendant until February 5, Í910, and when the court finally dismissed the action, the plaintiff had never filed, nor offered to file a reply, the rendition of the judgment of dismissal was- a clerical misprision, which, under section 763, Civil Code, this court cannot review, the plaintiff having made no motion in the lower court to vacate the judgment.</p>

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

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

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

<p>1. Election's — Canvassing Returns — Location of County Seat— Powers of Board Ministerial. — Under the act creating the county of McCreary providing for a board to canvass the returns of an election to locate the county seat, the powers of the board are purely ministerial, or mathematical; they have nto power to sit as a board of contest, although the act provides that the place securing the highest number of legal voters shall be the county seat.</p> <p>2. Elections — Canvassing Board — Enjoining From Sitting As Contest Board. — The circuit court properly enjoined the board from sitting as a Contest board and they were not prejudiced by so much of the order as fixed a day for them to meet and count the votes.</p>

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

<p>1. Homicide — Motion for Change of Venue — Evidence on Motion.— ' Upon the trial of a motion for a change of venue, evidence examined and held that it cannot be said that the lower court abused its discretion in refusing the change of venue. Moreover, the trial of defendant was by a jury from Nelson County, and it appears that the surroundings were such as that a fair trial was afforded him.</p> <p>2. Trial — Discretion of Trial Court — Rebuttal Witnesses — Evidence in Chief. — It is well settled that a trial court has a right to exercise a reasonable discretion in admitting testimony in chief by rebuttal witnesses.</p> <p>3. Criminal 'Law — Wound of Appellant — Evidence.—The Commonwealth had a right to show upon the trial of appellant that the wound exhibited by him was received in a manner other than that claimed by him.</p> <p>4. Criminal Law — Argument of Counsel — Improper Argument of Commonwealth’s Attorney. — Where the trial in every other respect was fairly conducted and it appears that no other verdict could have been rendered, the case will not be reversed on account of improper argument.</p>

<p>1. Infants — Action to Sell Land of For Education and Maintenance— Summons Upon. — In an action under section 489 of the Civil Code for the sale of a remainder interest in land for the maintenance and education of infants, the judgment authorizing the sale was erroneous for the reason that they were over the age of fourteen years and no summons was. served upon them.</p> <p>2. Same. — There is no authority to sell infants’ real estate for education and maintenance when the parents are able to educate and maintain them.</p>

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

<p>1. Master and Servant — Question of Relationship — Question One of Fact — Evidence.—Whether or not the relation of master and servant exists in a given case, is a question of fact, or of mixed law and fact, and is to be proved, as any other like question; and, any evidence tending to prove or disprove the relationship is admissible, its weight and sufficiency being left to the jury, under instructions of the court.</p> <p>2. Master and Servant — Test 'as to Relationship. — The real test by which to determine whether a person is acting as the servant of another, is to ascertain whether, at the time when the injury was inflicted, he was subject to such person’s orders and control, and was liable to be discharged by him for disobedience of orders, or misconduct.</p> <p>3. Master and Servant — Mode of Payment. — Where a mining company employed R. to mine coal at a given price per ton, and R. employed C. to assist him, and the mining company, as an accommodation to R., paid C’s. wages put of R’s. money, the mode of payment did not make C. an employe of the mining company within the meaning of an employer’s liability policy which insured the mining company against damage caused by injury to its employes.</p> <p>4. . Master and Servant — Mode of Payment Not Decisive of Relationship. — The mode of payment is a circumstance in solving the question whether the relation of master and servant exists, but it is not decisive of that question.</p>

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

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

<p>1. Contracts — Made to Settle Disputed Claim — Consideration.—A ' contract made to settle a disputed claim asserted in good faith after the parties had taken legal counsel and each fully understood the facts, is not without consideration, although the claim was one which would not have sustained a recovery, if suit had been brought.</p> <p>2. Contracts — Previous Contract — Court Cannot Go Into Rights of Parties Under. — In a suit on a contract to recover the balance of the consideration where the defendant by his counterclaim simply seeks to recover what he had paid under the contract on the ground that the contract' was invalid, the court cannot go . into the rights of the parties under a previous contract, the contract sued on having been made in settlement and compromise of these matters.</p>

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

<p>Railroads — Trespasser on Track — Wlhere No Recovery Can Be Had For Death of. — Those operating a railroad train have the right to presume that a trespasser seen walking on the track will get off, and are required to take no steps to check or stop the train until -his conduct is such as to show he is unconscious of the train’s approach, and will not get off the track; and where a trespasser on becoming aware of the train’s approach runs down the track instead of stepping off and because of this is killed, it being too late to stop the train, no recovery can be had.</p>

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

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

<p>1. Insurance — Accident Indemnity Insurance — Notice of Accident — ■ Effect of Failure to Give. — Where a policy of indemnity insurance provided that the company should be immediately notified of any accident, failure to give such notice within a reasonable time will defeat a recovery on the policy. Failure to give notice within a reasonable time cannot be excused on the ground of mistake, which was the result of negligence or inattention.</p> <p>2. Insurance — Accident Indemnity Insurance — Delay in Giving Notice of Accident — Facts.—Where the owner of a building had insuranee against accidents, in two companies, on elevators in the building, and gave notice of an accident to the wrong company, and did not discover the mistake which was due entirely to negligence or inattention for about ten months after the accident, the notice was not given within a reasonable time, and the fact that the delay was caused by mistake did not excuse the giving of the notice.</p> <p>3. Insurance — Accident Indemnity Insurance — Failure to Give Notice of Accident. — Where the failure to give notice of an accident is due to misfortune, casualty or other meritorious circumstance, the company may be held liable although the notice was not given within a reasonable time in the ordinary meaning of the words “reasonable time.”</p>

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

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

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

<p>Contract — Action on Logging Contract — -Evidence.—In an action on a logging contract, evidence examined and held that the amount of recovery fixed by the judgment of the lower court is reasonable. The allowance by the court to appellant on such items as sappage, damage to logs in drifting, undelivered timber, and for-expenses incurred, appears to be reasonable and upon the whole record there seems to be- no reason to disturb the judgment.</p>

<p>1. Domicile — Definition and Classification. — Domiciles are of origin and of choice. Domicile of origin is the place of one’s birth, or such other locality, to which it may be changed by his parent or guardian, during his minority. Domicile of choice is that selected by a person tio displace his former domicile.</p> <p>2. Taxation — Domicile of Choice — Acquisition of. — The acquisition of a domicile of choice requires, not only the intent to abandon the former domicile and to establish a residence in a new locality but aíslo an actual abode therein for a time, however short. Wher.e a resident of this State, intending to abandon it and take up a permanent residence in Texas, left on the 9th of September for point of destination, going by easy stages, reaching there Septemher 24th, his abandonment of his former domicile and his acquisition of the new one were incomplete and ineffective until September 24th; hence, personal property, in his possession on September 15th, was properly listed for taxation in this State, as of that date.</p>

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

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

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

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

<p>1. Judicial Sales — Commissioner’s Deed — Approval by Court — Failure to Endorse Approval — Section 398, Civil Code — Evidence.— That part of section 398 of the Civil Code providing that a conveyance ;by a commissioner shall not pass any right until it has been examined and approved by the court is mandatory, but that part providing that the approval shall be endorsed on the conveyance and recorded with it is only directory; hence, the failure of the judge to endorse his approval on the deed does not render it invalid, or deprive it of its recordable character, where there is a judgment in the action' reciting that the deed has been examined and approved by the court. In such a case the deed, together with the order showing that the deed has been examined and approved by the court, is sufficient to make out a prima facie case of the regularity of the deed, and to authorize its introduction as evidence lof title.</p> <p>2. Judicial Sales — Commissioner’s Deed — Failure to Recite Names of Parties — Section 399, Civil Code. — A failure to recite in a commissioner’s deed the names of the parties whose title is conveyed, does not render the deed invalid.</p> <p>3. Trespass to Try Title — Judgment in Favor of Persons Not Parties — Joint Owners — Title to Only Four-fifths- — Judgments for Full Amount. — Where plaintiffs show that they are joint owners only of an undivided four-fifths of a tract of land, it is error to adjudge them entitled to the full amount of damages assessed by the jury in an action of trespass to try title, and to adjudge that they and. others who are not parties to the action are joint owners of the land in controversy.</p>

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

<p>1. Railroads — Removal of Action — Plea in Abatement. — Following the refusal’ of the Lewis Circuit Court to remove this action to the United States Circuit Court for the Eastern District of Kentucky, upon appellee’s petition, they filed a transcript of the record in the United States Circuit Court and moved that Court to order it filed and docketed therein, which order was granted and a rule awarded against appellant to show cause why he should not be compelled to make a deposit of money with the clerk to cover costs, as required by the rules of procedure in that court. Before the Federal Court had determined whether the cause was a removable one, appellant appeared in that court and, without moving to remand it to the State Court, caused the action to be dismissed by the Federal Court without prejudice. Notwithstanding its dismissal in that Court, appellant attempted to proceed with its prosecution in the State court; thereupon appellee filed in the action in the State court, • supported by the record from the Federal court, an answer in the nature of a plea in abatement, to which appellant demurred and the demurrer was overruled.</p> <p>2. • Railroads — Removal of Action — Demurrer—Plea in Abatement— Jurisdiction. — The demurrer to the plea in abatement was .properly overruled. As, under the circumstances, the jurisdiction to determine whether the case should have been remanded to the State court, vested alone in the Federal Court and the action was pending in that court at least for the determination of that question, if for no other purpose and appellant dismissed the action in that court before that question was determined, the order of dismissal did not operate to revive the action in the State Court. Having thus finally disposed of the case in the Federal Court, without prejudice to a future action, appellant’s remedy was to reinstitute the action in the State court.</p>

<p>1. Corporations — Compliance With Franchise — Action to Compel.— A mandamus cannot be awarded against a private corporation to compel it to comply with its franchise, tout it may ¡be compelled to do so by a mandatory injunction.</p> <p>2. Corporations — Construction of Clause in Franchise. — Where one clause of ,a franchise fixes a price for electric lights “for private and commercial lighting,” and another clause fixes a price for electric lights “in private residences” the two clauses, when read together, mean that the price fixed for lights in private residences controls in all private residences and that the other price controls for all private and commercial lighting not in private residences.</p> <p>3. Corporations — Breach of Franchise — What Must Be Shown to Establish. — In order to show a breach of the franchise the plaintiff must show that his house is a private residence to entitle him to the flat rate fixed in this clause.</p> <p>4. Corporations — Electric Light Company — Keeping Lights For Definite Time. — Where, under a franchise, it is the duty of the electric light company to put in lights free of cost to consumers when demanded, the company has no right to refuse to put in lights unless its charges are prepaid for the lights and the plaintiff need not show that he agreed to keep the lights for any de'finite time.</p>

<p>Deeds — When One Will Not Be Relieved From the Deed — Conveyance to Children — Action to Cancel Deed. — A woman, who at the request of her brothers made a deed to her children of her property retaining a life estate in herself, when she was about to marry again, will riot be relieved from the deed (which she deliberately made) after she was divorced from the husband, who it was found would waste her estate.</p>

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

<p>1. Land — Action to Quiet Title. — Where, in an action to quiet title, the defendant sets up the boundary which he claims and prays that his title to it be quieted, he cannot complain that the court settled the whole controversy which he ashed to be settled although the plaintiff did not show that he was in possession of the land.</p> <p>2. Land — Location of Line — Finding of Chancellor. — The chancellor’s conclusion on the location of a line will n'ot be disturbed where the evidence is conflicting and the truth of the matter left in doubt.</p>

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

<p>Deeds — Execution and Delivery of. — -Evidence examined and beld not to show that tbe deed tbat was tbe basis of tbe action was executed or delivered.</p>

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

<p>1. Revenue and Taxation — Railroads—Assessment—Omitted Property — Proceeding to Assess — Section 4078, Kentucky Statutes.— In a proceeding to assess as omitted property certain property •of a railroad company, it must affirmatively appear in tbe petition or statement that the report required by section 4078; Kentucky Statutes, was not made, or if made, was not in accordance with the statute, and did not include the property sought to ¡be assessed.</p> <p>2. Revenue and Taxation — Assessment—Railroads—Section 4079, Kentucky Statutes — Report Required By — ¡Lines Operated, Owned, Leased or Controlled. — In making the report to the Auditor required by section 4079, Kentucky Statutes, the length of the lines controlled by stock ownership, though operated by their own organizations, should be included, as such stock ownership constitutes control within the meaning of the statute. As such lines are required to Ibe reported, it is proper for the Board of Valuation and Assessment to consider them in fixing the franchise of the controlling company.</p>

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

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