Volume 150 — Kentucky Reports

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

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

<p>1. Wills — Investment in Bonds — Obligation by Executor — Assignment of Executor — Action by One of tbe Heirs — Interest in Bonds —Defense—Plea of Limitation. — McGoodwin died in 1883 directing ¡his executor, among other things, to invest, a sufficient sum of money in bonds to yield an annual income of $500.00' to be paid to his widow. The investment was made and the income paid as directed to the time of the assignment of the executor for the benefit 'of his creditors, though in the meantime the bonds were sold by him in the interest of a business venture, but without his mother’s objection. By another clause it was provided that at the death of his wife the real estate and personalty, including the money directed to be invested in,bonds, should be equally divided among his six children; and that for this purpose the real estate could be sold and conveyed toy the executor. On January 16, 1894, the executor executed snd delivered to appellant, one of the heirs, his obligation agreeing to pay her $1,500.00, being one-sixth of the annuity fund provided by the will, the obligation to be due at the death of his mother, at which time the fund should be distributed equally' to the six heirs. Subsequently, he executed a deed 'of assignment of all his property to Milliken in trust for the benefit of his creditors.</p> <p>Following the death of the widow, the assignee brought his action for the settlement of his trust estate, and appellant filed her separate action against him upon her claim for the $1,500.00, seeking to have her claim adjudged a preferred claim under section 74 Ky. Stats. Milliken interposed the defense that appellant had acquiesced in the sale of the bonds and in the trustee’s use of the money, and that the execution of his obligation to her worked an alteration of her relation and that her position now was that of an individual lor general creditor, 'and upon the trial the court held with the assignee, and refused to allow the claim as a preferred claim under the statute. Held, That there is no pleading by the assignee of any state of fact such as would suffice to work an estoppel against appellant. It is not shown that the position of the creditors was altered to their hurt by any action of appellant, She sued within five months after the death ol' her mother, and the right to her to sue and the obligation upon her to sue were not contemporaneous until the death of her mother.</p> <p>Same — Action by Wife — Question as to Joinder of Husband— Weissinger Act. — As to the question as to whether the appel-. lant could maintain the action unless her husband should join with her, having ¡been' married before the passage of the Weis-, singer act, the claim not having been reduced tO' the pos-session of the husband, she could sue for it without the husband’s joining with her.</p>

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

<p>1. Land — Action to Recover — Champerty—Possession—Former Appeal. — An incl'osure is not generally necessary to sustain the character of possession necessary to sustain the champerty statute. Where one is a mere intruder the invocation of the champerty statute should be allowed only to the extent of his inclosure. (For a statement of facts, see 141 Ky. 328; 144 Ky. 352.)</p> <p>2. Same — Grants From Commonwealth — Evidence.—It was not error for the trial court to refuse to admit in evidence grants from the Commonwealth tending to show that the mainland opposite the island had been patented by the Commonwealth prior to the grant of the island, as the title granted to the mainland ultimately descended to B. who became the owner of the middle part of the island now owned by appellee, and in a division of B’s land, his mainland and island land descended to appellee.</p>

<p>Judgment — Revivor—Death .of Appellee After Submission — Practice— "When the appellee dies after submission the judgment of affirmance relates back to the submission. No revivior in this court is necessary. The judgment may be - revived in the circuit court under title nine of the Code, or if necessary the action may bé revived in that court under title eleven.</p>

<p>Appeal — Motion to Dismiss — Order of Revivor — When in Time. — An order of revivor is in time when it is made in one year from the end of the term at which it might be first made.</p>

<p>1. Insurance, Life — Action Upon Policy — Instructions.—In -an action ' upon an insurance policy, an instruction was erroneous which permitted the jury to exercise their own beliefs as to what might be naturally and reasonably in accord with the practice usual among life insurance companies, in the absence of evidence upon which the jury might act. The jury must determine the matter, not from their own standard, but from the -practice of those engaged in that business, and that practice- can only be developed to the jury by evidence.</p> <p>2. The jury should have been instructed upon issues and practices of which there was evidence, and not otherwise.</p> <p>3. Judgment — Offer to Confess Not Deemed Admission. — Under the provisions of section 640, Civil Code, an offer to confess judgment is not to be deemed an admission of the cause of action, or amount to which the plaintiff is entitled, nor to be given in evidence upon the trial.</p>

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

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

<p>Stockholders — Right to Rescind Contract for Purchase of Stock — When a person has been induced by the fraud and misrepresentation of the officers of a corporation to purchase its stock and executes his' notes therefor, he may maintain an action to rescind the contract and cancel the notes if the corporation is solvent, but if it is insolvent and proceedings have been instituted to wind up its affairs a stockholder who has been guilty of any laches will not be allowed a rescission to the prejudice of creditors of the corporation.</p>

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

<p>Warranty — Action Upon and For Purchase Price of Mules. — In an action to recover the purchase price of a mule, and for its Keep from the time of. its purchase, evidence .examined and held that the plea of warranty is not sustained, and the verdict in favor .iof the defendant is not flagrantly against the weight of the evidence.</p>

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

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

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

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

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

<p>1. Railroads — Trespasser on Track — Duty of Railroad Towards. — A railroad company ordinarily owes no duty to a trespasser until bis peril is discovered, and is not liable for any injury to him, unless, after bis peril is discovered, tbe injury could have' been avoided with proper care. This rule has been applied in all cases where the injury occurred in tbe country. On the other band, in cities and towns where tbe population is dense, and from the number of persons passing, tbe danger to life is great, a different rule applies; and, in such localities it is tbe duty of those operating a railroad train to moderate tbe speed of tbe train, to give notice of its approach, to keep a lookout, and take such precautions as tbe circumstances demand for tbe proper security 'of human life.</p> <p>2. Railroads — Question as to Exercise of Care by Traveler.— Whether a traveler exercised such care as may be ordinarily expected lof tbe common run of persons, is a question depending on a number of circumstances, to each of which different men may give different weight, and is a matter peculiarily for the jury. ■ •</p> <p>3. Railroads — Rule requiring .Servants to Keep .Lookout. — In- order for a plaintiff to bring bis case within tbe rule that requires tbe servants of a railroad company to keep a lookout, and give timely signals and warnings of tbe approach of its trains, it is incumbent upon tbe injured person to show that tbe place of tbe accident was a place where tbe presence of persons on tbe track was to be expected; and that fact may be shown by tbe extent of tbe use made by tbe public of the crossing at tbe scene of tbe accident.</p> <p>4. Railroads — Warnings and Signals of Movements of Trains. — A railroad company should give reasonable and timely signals and warnings of tbe movements of its trains; and this duty is to be measured and made applicable to any particular case by tbe circumstances of that case. If tbe crossing is-a public one, and in a place where tbe presence of people upon tbe track may be expected or anticipated, it is tbe duty of tbe railroad to give timely signals and warnings, regardless of tbe fact that tbe crossing is in an unincorporated town.</p> <p>5. Railroads — -Public Crossings — Lookout At — Ordinary Care. — In moving cars over a public crossing in a city or town, a railroad company must keep a lookout for persons using its track as a foot-way, and give reasonable signals and warnings of tbe movements of its cars when approaching said place, and to run. its cars and trains at such speed as ordinary care for tbe safety of such persons requires.</p> <p>6. Railroads — Signals—Knowledge of Approach of Train. — Tbe object of signals of. tbe approach of a train is to notify persons of its coming; and, if a person, in fact, knows of tbe approach of a train, be cannot complain that signals of its approach were not given, as required by law.</p>

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

<p>1, Land — Sale of — Consideration—Compromise—Mistake.—It being apparent that the transactions between appellant and appellee ending in a sale and conveyance by the former to the latter of his interest in several parcels of real estate, owned by them jointly, resulted in a compromise of the disputed matters entering into the consideration to be paid for such interest; and that the amount paid was the consideration arrived at by the compromise, neither party will be heard to complain that there was a mistake in the adjustment of the matters in dispute between them settled by the compromise.</p> <p>2. Court of Equity Will Not Disturb Compromise. — A court of equity will not disturb a settlement resulting from a compromise, where, as in this case, it is made to appear, that the parties were upon equal terms;' each cognizant of his rights and on the alert to protect them.</p>

<p>Appeal from'Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Fir$t Division).</p>

<p>Personal Injury — Street Railroads — Action For Death. — Instructions.— "Where in an action by the administrator of a child to recover damages for his death, the court, by Instruction No. 1, authorized •a recovery for a failure on the part of the motorman to keep a lookout, or to operate the car at a reasonable rate of speed, or to have the car under reasonable control, or to exercise ordinary care generally to avoid injuring persons using the street, and by Instruction No. 2, told the jury to find for the defendant if they believed from the evidence that the decedent suddenly or unexpectedly ran on defendant’s track in front of the moving car, and by reason of which, and as the sole cause thereof, and not on account of any negligence on the part of defendant’s motorman, in charge of said car, as defined by Instruction No. 1, the decedent was run over and killed by said car; held, that the two instructions considered together properly presented the rule that in order to excuse the company upon the ground that the person injured came upon the track so close to the car that'the motorman, in the exercise of ordinary care, could not have stopped it in time to prevent the injury, the car must have ibeen operated at a reasonable rate of speed.</p>

<p>1. Bills and Notes — Purchase of Overdue Note — Negotiable Instrument Law. — Where one buys a promissory ntote after it is overdue, it becomes, under section 58 of the negotiable instrument law, subject to the same defenses as if it were non-negotiable.</p> <p>2. Service of Process — Joint Defendants — Jurisdiction.—Where one of several defendants is properly served in the county where the suit is brought, the court thereby obtains jurisdiction against the other defendants who were served with process in a different county.</p> <p>3. Finding of Chancellor. — Where the proof is conflicting, and the mind is left in doubt as to the truth, a judgment based upon a finding of fact by the chancellor will not be disturbed.</p>

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

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

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

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

<p>1. Trial — Continuance.—Where the defendant is a non-resident, and suffering from a permanent disease, and, upon the filing of a physician’s affidavit, the case is continued by Consent, on account of defendant’s inability to attend the trial, and at the succeeding term, is continued by the court for the same reason, and he is ruled to prepare for trial at the next term of court, it is not error to refuse a continuance at that term upon affidavits showing that he is suffering from the same disease, and is unable to attend the trial or give his deposition, in the absence of a showing in the affidavits of a reasonable probability of his recovery, and of his being able either to attend trial or give his deposition within a reasonable time.</p> <p>2. Witnesses — Husband and Wife — Section 606, Civil Code. — Under section 606, Civil Code, -where the wife does not testify, the husband, in an action which might have been brought by her if she had been unmarried, may testify. If he he the agent lof his wife, he may also testify to any matter connected with such agency.</p> <p>3. Evidence — Letter—Genuineness—Prejudicial Error. — To permit the introduction of a letter, where its genuineness is not proved, is not prejudicial error, where the letter has no material bearing upon the real question in issue.</p>

<p>1. Insurance, Life — Sick Benefits — What Necessary to Entitle Holder of Policy To. — Under a policy providing that a member shall be entitled to sick benefits for the actual time he is necessarily and continuously confined and totally unable to follow his vocation it is not necessary that the member should be confined in bed. It is sufficient that he is so confined as to be totally unable to follow his vocation.</p> <p>2. Insurance, Life — By-laws—Not Attached to Policy. — Under section 679, Kentucky Statutes, the by-laws of the association not attached to the policy or incorporated into it can not be considered, it not appearing that the association is one of the societies excepted from the operation of the statute.</p>

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

<p>■ 1, Fraudulent Conveyances — Evidence—Burden of Proof — Weight and Sufficiency. — Fraud will not be presumed, but must be provee by such evidence as would justify a jury in finding it as a matte: of fact; and the burden of establishing fraud rests upon him wh( charges it, even where confidential relationship is shown to exis between the alleged colluding parties, but in such cases the cour will scrutinize most closely their transactions.</p> <p>2. Fraudulent Conveyances — Badges of Fraud — Particular Instances. —Tbe following circumstances are not indicia of fraud: Where bankrupt debtors worked and labored, whether with or without compensation, on the farm of an alleged colluder, their sister, who had but little, if any, capital in the beginning, and who had only a small interest in said farm, but from the operation of which, through the efforts and knowledge of farming of the bankrupts, she realized large profits; where the debtors, without capital of their own, bought and sold livestock for the account of their sister, it being established that the money in such trans-</p> <p>; actions was furnished and received by her; where a messenger from the sister, bearing to the owner of a farm a written proposal to buy it, boastfully insinuated that he was furnishing the money for the purchase price; where only the mere fact of Confidential relationship is shown .to exist between th© alleged colluding parties; where the debtors took the benefit of the -bankrupt law, not being advised or -counseled by their sister so to do; or, where there is a defective memory of- an alleged colluding party in testifying, when, in so doing, he is compelled to rely on recollection as to facts of transactions occurring at -remote dates.</p> <p>3. Bankruptcy — Bankrupts—Work and Labor — Rendition and Acceptance — Compensation.—Bankrupt debtors have the right to give away their labor, or to dispose of it ion any terms acceptable to them and satisfactory to their employer.</p>

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

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

<p>1. Wills — Devise to Southern Presbyterian Church — In Aid of Mountain Districts of Kentucky — Creation of Fund For Fixed Purpose. —A provision in a will that a certain sum be invested in good paying stocks, and the interest used each year in "employing evangelists for the purpose of bringing precious souls into God’s kingdom — helping struggling churches and for any other purpose the Synod sees fit to use it in the Mountain districts of Kentucky,” the bequest being to the treasurer of the Synod of the Southern Branch of the Presbyterian Church in the State of Kentucky, created a fund lor a fixed and definite purpose to be administered by a designated trustee.</p> <p>2. Wills — Construction.—Bach phrase of the provision is to be considered in relation to the entire provision, and the general meaning of each phrase restricted by its associations; and if there is a main purpose apparent, each phrase is to be subordinated to it. The purpose of the testator is clear. He created a charity definitely fixed and certain, the doing of Kentucky Mountain evangelistic work.</p> <p>3. Wills — Charitable Gifts — Maxim of Interpretation. — It is an established maxim of interpretation that courts look with favor on charitable gifts, uphold them when it can be done consistently with established rules of law, and protect them from assault. (See Ky. Stats., section 317.)</p>

<p>1. Banks — Act of President — Authority—Piower to Subordinate Bank’s Lien. — Where a bank’s president has for a number of years managed the affairs of the bank, released liens ánd executed. deeds and mortgages on behalf of the bank, with the knowledge and acquiescence of its directors, he has authority on behalf ¡of the bank .to unite in a mortgage releasing one lien and subordinating another to the lien of the mortgagee.</p> <p>2. Banks — Liens—Mortgages—Vendor’s Lien — Priority.—Where a ibank holds two lien notes on a debtor’s property, and procures him to apply to an insurance company for a loan, to discharge one of the notes, and unites in- the mortgage for the purpose of releasing its lien as to one of the notes and subordinating to the mortgagee’s lien its lien as to the other note, and -the application sets out certain taxes and expenses to be paid out of the loan, but it turns out that there are additional taxes which are a lien on the property, and additional expense?, such as the fee for recording the mortgage, and fee for making abstract, which are paid by the local attorney with the knowledge and consent of the bank’s president, and the bank accepts the net proceeds of the loan, and applies .it on one of the notes, the bank’s acceptance is subject to the covenant in the mortgage subordinating its lien, and its lien is inferior to the lien of the mortgagee, both as to the expenses and taxes stated in the application, and the additional expenses and taxes paid with its knowledge and consent.</p>

<p>Equity — When Contract for Specific Performance Will Not Be Enforced.- — -A court of equity will not enforce specific .performance of a contract between a person and his foster mother by whom he had been raised from infancy when the contract was made on the day he became twenty-one years of age and while he was still -under the influence of his foster mother, the contract not being for his benefit.</p>

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

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

<p>1. Evidence — 'Hearsay.—Where the vital fact in a case, was how far a train was from a land slide into which it ran when the land slide occurred, it was not competent to permit an employe of the company to testify as to information given to him shortly before the land slide occurred conducing to establish that when it occurred the train that ran into it was some distance away, although the person who gave the information was dead at the time of the trial.</p> <p>2. Evidence — Hearsay Rule. — When conversations are properly excluded because they are hearsay, then every material act that the witness did that had it sole origin in the hearsay statement made to him should likewise be rejected, because if a witness could relate what he did on- the faith of hearsay statements the whole of what occurred might as well be admitted, as any person of ordinary intelligence could readily supply the excluded conversation by inferring that the witness would not have acted as he did if the excluded statements had niot been made to him.</p> <p>3. Evidence — Hearsay Rule. — The reason for rejecting hearsay evidence is that something which should have come from an original witness is sought to be put in at second-hand by one to whom it has been told without the (opportunity of confronting or cross-examining the person whose repeated statements the witness is testifying to.</p> <p>4. Trial After Peremptory Instruction Is Directed to Be Given.— When there is a re-trial after a peremptory instruction has been [ directed by this court, if the evidence is the same, the trial court Should give a peremptory instruction, but if on -the second trial the evidence is materially different from what it was Ion the first j trial, the case should go to the jury.</p>

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

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

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

<p>1. Master and Servant — Third Person — Injury to — Negligence—Sufficiency of Evidence. — In an action by a third person against a : . master to recover damages for .personal injuries alleged to have resulted from the negligence of the master’s servants, evidence examined and held sufficient to sustain a verdict in favor of the plaintiff.</p> <p>2. Verdict — Damages—Excessive.—In an action for damages for personal injuries, evidence examined and a verdict of $5,000 held not excessive.</p> <p>3. Master and Servant — Third Person — Injury—Negligence of Servants — Liability of Master — Degree of Care. — Where a contractor’s servants and his employer’s servants are engaged in the common work of constructing and placing an air compressor, the employer’s servants attending to the making of the excavation and the construction of a templet to be placed thereon for the purpose of fixing in the proper position the bolts and nuts to be fitted in the compressor, and the contractor’s servants attending to the construction of a concrete base into which the bolts and nuts are to be fitted below, it is the duty of the contractor’s servants to use ordinary care to avoid injuring one of his employer’s servants, if they know, or by the exercise of ordinary care could know, that he was in the excavation; and for a failure in this respect the contractor is liable.</p> <p>4. Evidence — Hearsay.—A message passing from one person to another, without evidence that the sender sent the message, and that the message so sent was actually delivered to the person claiming to have received it, is mere hearsay, and is not rendered admissible by evidence to the effect that the person receiving the message usually received messages in that way.</p>

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

<p>1. Judgment — When Erroneous Instructions Not Prejudicial, Will not Be Reversed. — Where it is apparent that an erroneous instruction was not .prejudicial, the judgment will not be reversed.</p> <p>2. Negligence — No Recovery Allowed When Failure to Exercise Ordinary Care. — One who has been injured by the negligence of another, must use ordinary care to effect a cure; there can be no recovery for damages that might have been avoided by the exercise of such care.</p> <p>3. Jurisdiction — Objection to Must Be Made in Time — Waiver.— An objection to the jurisdiction must be made in apt time, or it will be waived, where there is not a want of jurisdiction, where there is a mere irregularity in the proceedings, or where the objection is to 'be the form and not the substance.</p> <p>4. Jurisdiction — Question of — I-Iow Question of to toe Decided. — The question of jurisdiction is always open for determination, and is to be decided as regards the nature of the thing in ciontroversy by the character of the suit, without reference to what defenses exist; and, when the jurisdiction is dependent upon questions of fact, it is for the jury, under proper instructions, to determine the question.</p> <p>5. Jurisdiction — Evidence Conflicting as to Submission to Jury.— Where, in an action for personal injury, the issue as to the venue ■ was made by a traverse, and the evidence was conflicting as to ■which of two counties the plaintiff was in at the time of the injury, the question of jurisdiction should be submitted to the jury by a proper instruction.</p>

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

<p>1. 'Contracts — Purchase of Malt for Distillery. — Where a distillery purchased several carloads of malt for use in. its business of making whiskey, received it, and used it before making complaint, it should pay for the malt notwithstanding the provision in the contract that it should be satisfactory, and notwithstanding that it was discovered to be unsatisfactory at, the time and when the distillery used it.</p> <p>2. Contract — Provision Omitted from Contract — Negligence—Mistake. — A party should not be permitted to take advantage of what was omitted from a' contract if it was omitted by its own negligence. - . .</p> <p>3. Contracts — Trade Custom — Intention of Parties. — The contract under which the malt was sold was explicit as to how it was to be tested, and although there may be a’ trade custom allowing its use before complaint,- such trade custom cannot foe permitted to contradict the express agreement of the parties, and testimony as to the admission of the trade custom, was incompetent and should have been excluded.</p>

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

<p>1. Negligence — Leaving Open Cellar Door in Pavement. — It is negligence per se to leave open cellar doiors in a much frequented pavement, no precautions being taken to protect tbe bole, tbougb a lantern was being filled to be lighted and put over tbe bole wbicb bad been open only a few minutes.</p> <p>2. Negligence — Contributory Negligence Question For Jury. — Tbe question of contributory negligence is for the jury where the plaintiff could have seen tbe hole if she bad looked, but was looking up at a show window.</p> <p>3. Negligence — Witnesses—What Witness May Testify in Action Against Gas Company For Injury From Falling Into Hole — Expert Testimony; — A witness may testify ¡that there was light enough for the hole to be seen, or as to what light there was. This is not expert testimony.</p> <p>4. Evidence — Evidence For Oneself Inadmissible. — The act§ and statements of plaintiff to the physicians examining her, under an order of court cannot be proved by her, as this would allow her to make testimony for herself.</p>

<p>1. Venue of Actions. — Under section 72 of the Civil Code, providing in part that an action upon a contract may be brought in the county in which the contract “is to be performed,” a contract which contemplates or provides that it may be performed in many counties- or in more than one county, does not confer jurisdiction upon any of the counties in which it may he or may have been in part performed.</p> <p>2. Venue of Actions — Meaning of the Words “To Be Performed.”— ; The words to be performed in section 72 of the Code mean that the contract must be performed, or agreed to be performed, in all its essential features in'one county, and where the contract is to be partly performed in several counties and not completely performed in any particular county the venue of the action does not lie in any of the counties in which the contract might or may have been in part performed.</p>

<p>1. Landlord and Tenant — Repair of Leased Premises. — Unless tbe contract of lease otherwise provides the tenant takes the premises as he finds them, and the landlord is under no obligation to . make repairs that will make the building more useful or comfortable.</p> <p>-2. ’ Landlord and Tenant — Liability of Landlord For Negligence in Making Repairs. — Although a landlord is under no duty to repair the premises, yet if he undertakes to do so and performs the work in such a negligent manner as to damage the tenant, he will be liable to the tenant for the loss sustained by his negligence.</p> <p>3. Landlord and Tenant — Independent Contractor. — If the landlord voluntarily undertakes to repair the leased premises and employs a contractor to do the work, he will be liable to the tenant for damages sustained by the negligence of the contractor, although the tenant may have consented to the making of the repairs and the contractor may have been what is usually called an independent contractor.</p>

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

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

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

<p>1. Appeal — Right of Review — Interest in Subject Matter. — A judgment will not be reversed on an appeal, prosecuted by parties who have no interest in the subject matter of the litigation.</p> <p>2. Deeds — Construction—Fee Simple. — Where, upon .consideration of a deed as a whole, there is doubt as to what estate the grantor intended to convey, it will be .construed to pass to the named grantee the fee to the land therein described.</p>

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

<p>1. Wills — Construction.—'Undef a devise by a testatrix to her children “or unto such of them as survive me, for and during their natural lives, with remainder to the child or children of any of such as may leave issue upon their death, share and share alike,” the interest of one child that dies does not pass to his surviving brothers, so that the survivors or survivor hold the entire life estate until the last one dies, but passes in remainder to the •deceased child’s child or children.</p> <p>2. Wills — 'Construction — Intestacy — Presumption Against. — Under the well recognized rule of construction that where a will is susceptible of two constructions, the law will place on it that construction which disposes of the entire estate, considered in connection with the particularity with which the testatrix devised •and bequeathed bonds and stocks, furniture, ornaments, etc., thus showing her intention to devise all of her property, a devise by testatrix of “any other land on Meadow Creek, County of 'Green, State of Kentucky, I die possessed of” includes a tract of land adjoining other tracts in which the testatrix has an interest, and lying near Meadow Creek, though separated from it by a narrow river.</p> <p>3. Kents — Action for. — In an action to recover rents, held that the chancellor fixed the rental value an acre too high, in view of the fact that all of the land could not he cultivated from year to year. and in view of the further fact that the rental so fixed was more than 100% increase over the rent as fixed toy the parties themselves in a former lease.</p>

<p>1. Acts — 'Construction of — Legislative Purpose. — A .proviso will not be read as inconsistent with tbe body of tbe act and tbe legislative purpose apparent from the act as a whole.</p> <p>2. Acts — Act Repealing Prior Act — 'Policemen’s Pension — Transfer to New Roll. — An act repealing a prior act under which pensions were granted, and abolishing such pensions, but providing that such ¡pensions may be transferred to the new roll if the beneficiaries would be entitled to pensions under the new act, in the judgment of the board, gives the board a discretion as to what pensions shall be transferred to the new roll.</p> <p>3. Pensions — No Vested Right to a Pension — Recall of Bounty.— There is no vested right to a pension and the legislature may, at any time, recall its bounty.</p>

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

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

<p>1. Pleading — Definiteness at Common Law — Code Provision. — At common law a pleading was sufficiently definite if it stated tbe facts with such, certainty as would enable tbe opposite party, and tbe court and jury, to understand tbe ground relied on by tbe pleader in support of bis claim or defense; and tbe Code provision is to the same effect.</p> <p>2. Pleading — Uncertainty of — When Demurrer Better Procedure.— While indefiniteness or uncertainty in a pleading should usually be presented by a motion that tbe pleading be made more definite and certain, a demurrer is the better procedure, where tbe uncertainty is such that the pleading states no cause of action or defense.</p> <p>.3. Pleading' — ¡Sufficiency of — ¡Construction Against Pleader. — In determining the sufficiency of a pleading, it will 'be most strongly construed against the pleader’.</p>

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

<p>1. Druggist — Action Against for Damages — Alleged Mistake in Sale of Medicine — Death of 'Child — Instructions.—In an action against a druggist for damages upon the ground that he sold bichloride of mercury instead of calomel and santonin, which when administered to a child, death resulted, an instruction making the right to recover depend upon death resulting from the administering of .the poison was all that the plaintiff was entitled to, and he cannot complain than instruction offered by him predicated upon the same basis, but somewhat different in terms, was refused.</p> <p>2. Instructions — Giving After Argument. — Where the plaintiff had asked an instruction that it would have been error to refuse, it cannot be said that the court abused its discretion or prejudiced the substantial rights of the plaintiff in giving an instruction after the defense attorneys and one of .plaintiff's attorneys had con- . eluded their argument, the plaintiff’s case having been presented by .a skilled lawyer who doubtless obtained the full benefit of it for his client after it was given.</p> <p>3. Druggist — Action Against for Death of Child — Evidence.—In an action against a druggist for the death of a child the defense being that the child died of typhoid fever, testimony conforming to the effect of the poison upon one who had typhoid fever was properly admitted.</p> <p>4. Evidence — Exclusion of. — A party cannot complain of the exclusion of evidence which his own objection caused to be excluded.</p>

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

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

<p>Corporations — Purchaser of Stock — Dividends—Fraud.—A purchaser of stock in a corporation who draws the dividends on his stock for two years canmot have his stock subscription rescinded for fraud of the corporation as to its creditors inducing the subscription although he lived in England and in fact knew nothing of the insolvency of the corporation before it failed.</p>

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

<p>1. Promissory Note — Action on Lost Note — Pleading.—It is essential that a petition on a lost note should aver that the note was lost without fraud on the part of the plaintiff lor those under whom he claims. But, where there was no objection to the petition and on tbe trial the facts as to the loss of the note were proved without objection, tbe defect in the petition is cured by the verdict and judgment.</p> <p>2. Promissory Note — Action on Lost Note — When Bond Should Be Given. — The bond required by section 7 of ’the Civil Code should be given before the action is brought, where the hote is transferable by delivery, merely, but a judgment will not be reversed if tbe bond was given before judgment.</p>

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

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

<p>1. .Street Railroads — Action. Against For Personal Injury — Instructions. — In an action against a street railway company for personal injuries, the petition alleging that while the boy was upon the car he was thrown, fell or jerked from the car by the wanton and gross carelessness of the defendant, its agents and officers, it was not error to permit the jury to find for the plaintiff if they believe he was upon the car with the knowledge or consent of the officials in charge, nor was it error to allow a recovery for the wrongful acts of the conductor as both the conductor and motorman were officers and agents of the company in charge of the car.</p> <p>2. Same — Evidence—'Verdict.—It cannot be said that the verdict is flagrantly against the weight of the evidence.</p> <p>3.. Same — Verdict—Not Excessive. — All of boy’s foot except a part of the heel had to be amputated and this caused the muscles to become atrophied thus diminishing the size of the leg.</p>

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

<p>Appeal — Absence of Transcript — Limitation of Review. — Where there is no transcript of tbe evidence in-the record, the only question to be determined is whether or not the pleadings support the judgment.</p>

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

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

<p>Criminal Law — Murder—Conspiracy—Evidence—Weight and Sufficiency. — Evidence examined and held sufficient to support verdict lof conviction.</p>

<p>1. Indictment — Feloniously Breaking Into Dwelling. — An indictment . . for feloniously breaking into a dwelling house with intent to steal and stealing articles of value therefrom, 'Charges but a single offense, although it alleges both a breaking with intent to steal ana an actual stealing. The stealing is merely evidence of the intent with which the breaking was done.</p> <p>2. Same — Instructions.—Under 'such an indictment it was error to instruct the jury as to grand and petit larceny, neither being a degree of tbe offense of bouse breaking charged in tbe indictment.</p> <p>3. Same — Former Acquittal. — The fact that appellant bad been previously tried and acquitted under an indictment for feloniously breaking into a store bouse, which tbe proof showed was tbe same bouse described in tbe second indictment as a dwelling ■house, did not constitute a bar to bis prosecution under tbe second indictment for feloniously breaking into the dwelling bouse, tbe two offenses being distinct and separate offenses as defined by sections 1162-1164 Ky. Stats., and neither a degree of tbe other.</p> <p>4. Same — Former Acquittal — Bar.—In order to constitute a former acquittal or conviction a bar to a second prosecution, it is essential that tbe first indictment or information should be such that tbe accused might have been convicted under it on proof of tbe facts by which tbe second is sought to be sustained.</p>

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

<p>1. Adultery — What Constitutes — Meaning of Statute. — Section 2133 of the Kentucky Statutes, which provides that if a wife voluntarily leave her husband and live in adultery, she shall forfeit ■her dower right and distributable share in her husband’s estate, does not mean that she must constantly live with one man in adultery during her abandonment of her husband, to forfeit her right of dower or distributable share; but, if she admits any man or men to her periodically, or whenever it is convenient, or opportunity is afforded, during said abandonment, such conduct constitutes a living in adultery within the meaning iof the statute.</p> <p>2. Adultery — Rule as to Evidence of Paramour. — The rule is, that while the testimony of the alleged paramour may be considered in determining the fact of adultery, it is liable to grave suspicion, and should be acted upon with extreme caution.</p> <p>3. Finding of Chancellor. — Where the question at issue is one purely of fact, the decision of the chancellor, who knew the parties, the witnesses, and their standing in the community, will not be disturbed.</p>

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

<p>1. IRoad Engineer — Appointment of — Qualification—Injunction to Protect in Office — Construction of Statute — -Appellee was appointed road engineer1 by the county judge who attempted to proceed under section 48, chapter 110 of the 'Acts of 1912, 'but only two of the six magistrates voted to ratify the appointment, the remaining four not voting. Appellee gave bond and qualified, and following a controversy as to his appointment he sought an injunction against the county judge and fiscal court to -prevent their interference with the discharge of his duties, and upon a hearing the injunction was granted. Held, the record is silent as to whether the four members not voting had ¡an opportunity lof expressing their will, and it cannot be inferred from the- order entered that such opportunity was afforded them. It was necessary after the county judge made the appointment to extend to the four magistrates present an opportunity to express their will. Their silence is not to .be assumed to be a consent within the meaning of the -statute, which -provides that he shall make the appointment “by and with the consent of the fiscal court.”</p> <p>2. The county judge’s second effort to appoint, no consent of the fiscal court being -shown, is no more valid than the first.</p> <p>3. Same — Refusal of IFlscal ¡Court to ¡Consent.- — While it is not necessary to consider here what reasons might be sufficient to sustain the refusal of the fiscal court to consent to any 'particular appointment which might -be made by the county judge, they cannot -by their own arbitrary refusal to -consent, defeat the filling of the office.</p> <p>4. ¡Same — 'Appointment not in Accordance With Statute — -Dissolution of Injunction. — -The record failing to show that the plaintiff was ever appointed in the way demanded by the statute, the order granting the .injunction was erroneous and it must be dissolved.</p>

<p>1. Witnesses — When Testimony of Accepted as True. — The rule that the testimony of a witness must be accepted as true applies only when the witness is unimpeached and there is no evidence to the contrary.</p> <p>2. Misconduct of Counsel — Bill of Exceptions. — Misconduct of counsel in their opening statements and closing arguments to the jury cannot be considered unless shown by bill of exceptions.</p> <p>3. Stock — Transfer—Undue (Influence — Action to Set Aside — Instructions — Assumption of Fact to be Decided.- — Where in an equitable action to set aside -a transfer of 'stock ion the ground of undue influence, the question is submitted to the jury for a special finding -of fact, an instruction'submitting the question in the form “Was the transfer, etc., obtained by M. J. Bannon from his father to himself by the use or exercise of undue influence over his father, Patrick Bannon, Sr.?” does not assume that the transfer was obtained.</p> <p>4. Stock — Transfer—Action to Set Aside — -Instruction—Error.—In an equitable action to set aside -a- transfer of stock on the ground of unsoundness of mind and undue influence, the issues being equitable and -not legal, and the verdict of the jury -being only advisory, the judgment of the chancellor confirming the special finding of ' facts by the jury will not be reversed on the grtound that the instructions submitting the questions to be decided did not indicate where the burden of proof lay.</p> <p>5. Husband and Wife — Husband a Witness — Admissibility of Transactions Had and Statements Made in His Presence. — Wihere the husband is a witness for his wife not on the ground of agency, but on the ground that she did not testify, and the action was one which she might have brought -as a single woman, the mere fact that he is a witness for his wife does not clothe him with the power to represent her to the extent of rendering admissible transaction's and statements (occurring in his presence which would have been admissible if occurring in the presence of his wife.</p>

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

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

<p>1. Municipal Corporations — ¡Duty in Respect to Bridge That Is (Part of Street. — It is the duty of a city to exercise ordinary care to maintain in a reasonably safe condition a bridge and the railing thereon that constitutes a part of the street in the city.</p> <p>2. Negligence — ¡Contributory Negligence — Instructions. — Although ■the answer in an action to recover damages for personal injuries asserts that the plaintiff was guilty of contributory negligence, the court should not instruct on this issue unless there is evidence to support it.</p> <p>3. Negligence — Proximate Cause. — When the1 jury are instructed that they cannot find a verdict for the plaintiff unless they believe from the evidence that the injury he received was the direct result of the unsafe condition of a bridge, we cannot say as matter of law the defects in the bridge were not the proximate cause of the injury when the evidence upon this point was conflicting.</p>

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

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

<p>Contracts — Insurance of Tobacco by Owner of ¡Land — Destruction of Tobacco — Claim of Tenant for Part of Insurance — Pleadings— Evidence. — In an action by tenants against tbe landlord for half of tbe insurance .paid for the loss of tobacco, the verdict in favor of the tenants will not be disturbed. While the policy was taken out by the owners of the land, the evidence of the tenants supports their contention as to their interest in the policy, and the pleadings and proof are sufficient to uphold the agreement made between the parties as to the interest each should have.</p>

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

<p>1. Fiscal Courts — 'Courts of ¡Record — Orders Not Subject to Collateral Attack — Proceeding in Fiscal IC'ourt Attacking Its Orders.— The petition of appellant through its county attorney, seeking to have vacated and set aside certain orders of the fiscal court, was properly filed in the fiscal court, as that court is a court of record, and its orders not subject to collateral attack.</p> <p>2. Fiscal Courts — Proceeding to iSet Aside 'Orders — Pleading.—The petition of the county attorney charging that fraud had been practiced in allowing claims in that the (fiscal court suppressed the reading of minutes showing allowances to its own members is sufficient to apprise the parties interested of the ground of attack upon its judgments. ■ '</p>

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

<p>From Whitley Circuit Court.</p>

<p>1. 'Schools and School Districts — Graded Common School Districts— Establishment of — Approval of Trustees. — Under section 4464 of the Kentucky .Statutes, which requires the approval of a majority of the trustees of any common school district, included wholly or partly within the boundary of a proposed graded common school district to the establishment of a graded common school, ¡such approval of the trustees is ¡a condition .precedent to the authority of the county judge to establish a graded common .school district and school; and, without their approval the' county judge has no jurisdiction to enter an order calling ¡an election to take the sense of the voters as to the establishment of the district and the voting of a tax to erect and maintain the school building.</p> <p>2. Schools and ¡School Districts — Graded Common ¡Schools — (Petition — Approval by Majority of Trustees in Office. — Under section . 4464 of the Kentucky ¡Statutes, which provides that the proposition to establish ¡a graded common school district and school ¡must be approved in writing on the petition to the county judge, by .a majority of the trustees of any common school district affected by the establishment of the graded common school, the petition must be approved by a majority of the trustees of the common school district in office at the time the petition is filed.</p> <p>3. Schools and School Districts — Petition to Establish — Filing of— Jurisdiction of County Judge. — Where a petition to the county judge to establish a graded common school district and school under section 4464 of the Kentucky Statutes, was signed by a trustee of a common school district during his term of office, .but was not filed with the county judge until after the trustee’s term of office had expired, the county judge was without- juris- , diction to make an order calling an election to take the -sense of the voters as to the establishment of the district, and the voting of a tax to build and maintain the school building.</p>

<p>1. Contracts — Sale of Personal Property — Executory Contracts to Sell — Right of Buyer. — Where an executory contract to sell personal property provides that the buyer shall exercise his rignt to tafee the property within one year from the date of the contract, the buyer had the right to fix the time of delivery at any time during the year, but not afterwards; and, upon his failure to exercise his right within the year, the seller is not liable in damages for failing to deliver after the expiration of the year.</p> <p>2. Contracts — 'Personal Property — Executory Contract to Sell— Offer of Sale — Acceptance of. — Where an executory contract for the sale of personal property required the buyer to exercise Ms right to buy and to pay for the same within one year, and he failed to do so, the seller did not waive the conditions of the contract by sending the buyer an invoice for the property after the expiration of the year. An offer to sell must be accepted as made; an acceptance in different terms, or upon other conditions, amounts only to a counter-offer on the part of the buyer, which the seller may accept or reject at his pleasure.</p>

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

<p>1. Taxation — Assessment of Omitted Property — Proceeding by Revenue Agent Against Warehouseman — Indefiniteness of Statement — Dismissal of Action — Omission of .Name of Owner. — In a proceeding by a revenue agent to assess as omitted property certain property in the hands of a warehouseman, it was not error for the circuit' court to require the statement to be amended ¡by giving the names of the owners of the property in the possession of the warehouseman, and as the revenue agent refused to amend the statement, the proceeding was properly dismissed.</p> <p>2. Same. — Under section 4020 Ky. Statutes, such property is subject to assessment for taxation, if it has not been listed nor the taxes paid, but by the provisions of 4060 Ky. Statutes, the statement containing the description and value of the property proposed to ,.be assessed .must give the name and place of residence of the owner, his agent, or attorney.</p> <p>3', Same. — It is only property omitted from taxation ¡by' the owner or"person charged with the’duty of listing it, that the revenue agent may cause to be listed. and taxed. And unless the statement contains the names of the owners of the property it cannot be identified as property omitted from "taxation, for it is essential to know the names of the owners in order for the court to ascertain whether or not the property has been listed and taxed, and if the names of the owners are not given, a cause of action is not stated.</p>

<p>1. Bills and Notes — Joint Obligor — Indemnity Against Loss Arising Upon Advances — Contract to Prize Tobacco. — Appellant having contracted with appellees to advance money to tobacco growers, who had employed appellees to prize their tobacco, with the understanding that appellees would make drafts upon appellant for the sums advanced, accompanied by the notes of the (borrowers signed or endorsed by appellees, the liability of the latter upon the drafts and notes is that of a joint obligor or an undertaking to indemnify' appellant against loss' arising from advances they induced it to make upon the tobacco of farmers which they had contracted to prize.</p> <p>2. 'Same — Dishonest Transactions of Partner. — The fact that James involved the firm of Swan and James by dishonest transactions, did not relieve Swan of liability to appellant. Appellant cannot 'be made to suffer loss by reason of Swan’s misplaced confidence in James, or the latter’s violation thereof.</p> <p>3. Same — Attorney’s Fee — In Nature of Penalty Against Public Policy. — Appellant, cannot, however, recover of appellees a fee for the services of its attorney in this case, although so stipulated in the notes sued on and recoverable under the laws of Tennessee, as it has been repeatedly held in this jurisdiction that a provision in a note, as to the payment of an attorney’s fee for bringing suit thereon, is in the nature of a penalty and against the public policy of the state.</p>

<p>1. Insurance, Accident — Action Upon Policy — Notice—Incapacity of Insured to Give Notice.- — Where an accident policy required notice to he .given of an injury within fifteen days from the date of the' accident, the mental incapacity of the insured the last nine -days avoided the effect .of the failure to give the notice during the lucid days. (Maryland Casualty Co. v. Burn's, 149 ~! Ky. 550.)</p> <p>2. Same — When Notice Not Necessary — Waiver of Notice. — While the insured was irrational, the company denied liability under the policy, and after that denial notice was not necessary. A denial of liability is a waiver of notice.</p> <p>3. -Same — Disability of -Insured — Partial Activity — Continuity of Accident. — When insured, incited by his desire to be at work, was permitted by his physician to go, under caution, to his work, land after three days, again went to bed for months of illness, it cannot be said that these three days of partial activity, while ■blood poisoning was developing, broke the immediacy and continuity of the accident.</p>

<p>Weights and Measures — (Fiscal Court — Inspector of Weights and Measures — Chapter 90, Acts of 1910 — Apparatus—(Duty of Fiscal Court to Furnish — Mandamus.—After the appointment of an inspector of weights and measures as provided by Chapter 90, Acts of 1910, it is the plain and positive duty of the fiscal court to provide such inspector with weights, measures and balances, and such other apparatus as will enable him to make the necessary tests, and for a failure to do so, mandamus will lie.</p>

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

<p>1. Railroads — Duty in Furnishing Cars to Shippers. — A railroad company is under a legal duty to maintain sufficient cars and equipment to meet the normal demands of the traffic, and to be able to furnish to shippers, when seasonably requested, the number of cars needed. If it fails in this respect it may be required to •respond in damages to .any shipper who has suHSred loss thereby, but is not liable in case there is an unprecedented and unexpected press of .business that could not be anticipated.</p> <p>2. Railroads — Duty in Furnishing Cars to Coal Mines. — A railroad company cannot discriminate against or show any preference to any coal mines on its line lof road but it must treat all alike: It must also supply itself with a sufficient number of cars to meet the normal demands of the coal trade during the fall and winter months when this trade is the heaviest. The fact that a railroad company may have an adequate supply of cars to meet the demands of the trade if it was equally distributed during all the' months in the year, does not fulfill its duty. It must have a sufficient supply to meet the demands lof .the trade during the busy months, although its supply may be greatly more than is needed during the slack months.</p> <p>3. Railrioads — Duty in Furnishing Cars to Coal Mines — Instructions —Measure of Damage. — The measure of damage that may be recovered from a railroad company for its failure to furnish cars to ■a coal mine is the reasonable difference in what it actually costs to mine and place the coal on the market less the, value of the coal in the ground, and what the coal that could have been mined wiould reasonably sell for on the market, and in addition the actual expense incurred and wages paid out and other expenses necessarily incurred during the time the mine was idle on account of the failure to obtain cars.</p> <p>4. New Trial — Petition to Obtain on Ground of Newly Discovered Evidence. — When a new trial is sought, under section 344 of the Code it must appear from the petition that the ground upon which it was asked was not discovered until after .the expiration of the term at which the trial was had. If the ground is discovered during the term the application for a new trial must be made in the manner pointed out by sections 340 and 343 of -the Code.</p>

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

<p>1. Bridges — Authority of 'County to Collect Tolls on Bridge. — There appears to be no authority, express or implied, authorizing a county to collect tolls on a bridge in a county, and while it might be best for counties to have power to erect bridges and collect tolls, at least until they are paid for, they ¡have no right to do so in the absence of an act of the legislature conferring' such authority.</p> <p>2. Same — Laches—Plea as Applied to Public Property.- — The plea of laches and acquiescence constituting equitable estoppel cannot be made to apply to uses of public property.</p>

<p>Insurance, Life — Action to Recover Upon — Character of Policy— Question as to Fraud in Issuance — 'Evidence.—Where, in an action upon a policy of life insurance, the defense is that it was obtained by fraud, and it appears that the insured made neither a written nor an oral application for the insurance, and it is nowhere .shown that he made or concealed any statements to induce the issual of the policy; and that the policy is not of the character embraced in sections 639 and 679 of the Kentucky 'Statutes, which sections it ¡appears were sought to be avoided in its issual, the judgment upholding the policy was proper.</p>

<p>1. Sales — Personal Property — When Title Passes. — Where articles of personal property-, complete in themselves, are sold and actually delivered to the purchaser, the title passes, though the property may not be paid for, and the contract ,may involve the sale of other property which is not delivered.</p> <p>2. Landlord and Tenant — Lien—Superior to Other Liens.- — A landlord’s lien -on the property owned by the ¡tenant is superior to all other liens except valid liens created before the property was carried on the premises, and valid liens are such as are acknowledged and recorded -as provided in section 496, Kentucky Statutes.</p> <p>3. Sales — Possession—Validity—Section 1908, Kentucky Statutes.— Where possession does not in good faith accompany the property, and there is no transfer lodged for record, the resale by the purchaser of personal property to the seller is, under section 1908, Kentucky Statutes, void as to his creditors, including the landlord whose lien had attached.</p>

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

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

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

<p>1... {Bills and Notes — Alteration of Note — Evidence—Question of Pact. — As a defense to an action upon a note, it is insisted that “Pt.,” (abbreviation for president) was added to the name of the payee in the body oí the note after its execution and delivery. If true this was such a material alteration of the note as would have operated to discharge the makers, especially the appellant, as surety, from liability, if the alteration was without their knowledge or consent, but the issue as to the alteration, is one of fact which the jury alone had the right to determine, and their finding will not be disturbed, as it cannot be said to be flagrantly against the evidence.</p> <p>2. Instructions — Rejection of Instruction ¡Not Prejudicial "When Em- ' braced in Instructions Given. — The instructions are substantially . correct and presented all the law applicable to the issues of fact, and appellant cannot complain of the refusal of the court to giv9 an instruction, which, while correctly stating the law, was embraced in the instructions given by the court.</p>

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

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

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

<p>Landlord and Tenant — Action by Tenant for Injury to Goods Caused by Falling Wall — ¡Power of Tenant — Tenant Relieved of Obligation to Restore Wall — Provision of Statutes. — In an action by a tenant against bis landlord for injuries caused by a falling wall resulting from an excavation by an adjoining owner, Held, that if tbe excavation was being done improperly, or if tbe method of shoring up tbe wall, was insufficient, tbe tenant in tbe injured building bad every right to judge of tbe character of tbe work that tbe landlord bad, and could have done every act of prevention which tbe landlord could have done, and it is not right that tbe landlord should be held liable for a failure to do tbe very thing which tbe tenant might have done.' Likewise, tbe landlord could not recover .upon a counterclaim, since by tbe provisions of section 2297 Ky. Stats., tbe tenant is relieved of any obligation to restore the wall, there being no provision in tbe lease for repair upon such a casualty.</p>

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

<p>Wills- — Devise to Wife — Remainder to Heirs — Death, of Heir in Lifetime of Widow. — Under a will 'by which the testator devised all his property to his wife for life with remainder at her death to his heirs at law, the heirs at law take a vested estate at the death of the testator, which is not defeated by the death of the heir in the lifetime of the widow.</p>

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

<p>1. Husband and Wife — Parents of Wife May Keep Her in Their House and 'Advise Her as to Her Relations With Husband — Action by Huslband for Damages. — The parents of a wife may lawfully take and keep her in their house, and may lawfully advise her as to her relations with her husband, acting in good faith on reasonable ground's and in the honest desire to promote her welfare and happiness, and they are not liable for doing any of these things unless they acted wrongfully and maliciously and not in good faith on reasonable grounds.</p> <p>2. Same — 'Pleading—Parental Privilege. — An answer which shows that the defendants are the parents of the wife, and denies malice, is sufficient to present the question of parental privilege.</p> <p>3. Judgment — Reversal—Evidence—Absence of Avowal. — No reversal can be made for the refusal of- the court to admit evidence in the absence of an avowal of what the witness would state.</p> <p>4. Husband and Wife — Evidence of Occurrences Prior to Marriage.— Where the husband and wife had lived together harmoniously for six years and there was no trouble between the husband and the wife’s family, evidence as to what had occurred before they were married is inadmissible in an action for alienating the wife’s affections growing out of a difficulty then arising between the husband and the wife’s family.</p>

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

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

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

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

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

<p>Appeal f/om'Breathitt Circuit-Court.'</p>

<p>1. Gas — Company Not Insurer of Pipes — Ordinary Care. — A gas company is not an insurer of its pipes, and is only required to use such care as a person of ordinary prudence handling a like agency would ordinarily use.</p> <p>2. Gas — -Exercise of Ordinary Care — Question for Jury. — Where the ipany is not an insurer of pipes, and is only required to use ply plugged up the pipe at the end without cutting off the igas, it was a question for the jury whether or not in the exercise of ordinary care, it should have inspected the pipe in eight months, the -pipe -being practically a part of its system of mains.</p> <p>3. Drunkenness — -Evidence—Competency.—'Proof that a person- was drunk two or three hours after an accident, is competent as a circumstance tending to show that he was drunk at the time.</p>

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

<p>1. Personal Injuries — Action for — -Collision of Fire Engine With Wagon — 'Governmental 'Function — Negligence—-Pleading. — The contention of appellant that as the maintenance of a fire department is a governmental function, it is not liable for injury caused toy a runaway fire engine, even if a defect in the street caused or contributed to the injury, Cannot apply in an action, where neither in the pleadings or proof liability is sought to be made to depend upon the negligence of the fire department employes in charge of the engine, but the right of recovery is based upon the negligence of the city in permitting holes to be in the street, where the injury occurred, which rendered it unsafe for public use, and that the defects in the street caused the engine to collide with ■the wagon with the resulting injury.</p> <p>2. -Same — -Submission to Jury — Evidence.—While no expression of opinion is given as to the weight of the evidence, the appellee’s evidence was such as to entitle plaintiff to have the case submitted to the jury, and the trial court did not err in submitting it to them.</p> <p>3. Argument of -Counsel. — The denunciation of counsel in argument to the jury of the -governmental function doctrine was reprehensible, if indulged in, but it does not appear from the record that the objection to it was addressed to or ruled on by the court, and the -complaint cannot be considered.</p> <p>4. Instructions — Duties of Appellant in Respect to Streets — ¡Negligence of Employes. — -Upon the trial of an action for damages for Injury -resulting from the collision of a fire engine with a wajjon. upon a street,’ an -instruction was erroneous which failed to limit the use of the street to the needs of ordinary travel. In other words the jury was not advised that appellant was not required to keep the ■ street in .such condition as would make it reasonably safe for the use of runaway teams, and it should have been advised ’ that the ■ city was not responsible in damages for the ■negligence of the employes in its fire department.</p>

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

<p>1. Appeal — Motion for Extension of Time to File Transcript— ■Motion in .Vacation — Custom.—It bas been the long established custom of this court to treat an application, made in vacation, for extension of time to file a transcript, as sufficient to maintain the status quo until the court, duly in session, shall have had opportunity to pass upon the motion.</p> <p>2. Jeopardy — Plea of Former Jeopardy. — A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon indictment or information, which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. Although a jury had been sworn .to try appellant under a former Indictment, the indictment‘was dismissed upon the motion of the Commonwealth’s Attorney who conceived the indictment insufficient. The trial court did not err in refusing the plea of former jeopardy.</p> <p>3. Homicide — Where Two Persons Both Shot Deceased in One Encounter. — Where two persons hoth shot deceased in one encounter, the law will not stop to 'measure which wound is the more ■serious, and to speculate which actually caused the death.</p>

<p>1. Appeal — To Inferior -Courts — Dismissal of — -Practice.—On an appeal to an inferior court, the court to which the appeal is prosecuted -may dismiss the appeal because'it was not taken in time; or because it was not taken in the manner provided in the code, or because the court had no jurisdiction of the appeal, and may -also dismiss the appeal upon motion of the appellant, if the appellee is not before -the court, but if the appellee is before the •court, section 730 of the civil code controls.</p> <p>2. Appeal — To Inferior Courts — Effect of Dismissal.- — When an appeal is dismissed because not taken in the time or manner prescribed in the code, or because the court had no jurisdiction of the appeal, or upon motion -of the appellant, the effect of the dismissal is to leave the judgment appealed from in full force and- effect in the court in which it was rendered.</p> <p>3. Appeal- — -To Inferior Courts — Dismissal of Action. — If the court to which the appeal is taken in due time and manner has jurisdiction, the court has no authority, without the consent of the appellee, or until there has -been a trial, to dismiss the action, as this would have the effect of defeating the party who had recovered judgment in the lower court.</p> <p>4. Appeal — Dismissal of “-Case” — Effect of. — The dismissal of a casé pending on appeal is in effect a dismissal of the action.</p>

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

<p>1. Corporations — General Manager — Powers of. — The powers of a general' manager of a corporation, who is authorized by resolution “to transact all kinds of business” for the corporation, are ■confined to such business matters as relate' to the affairs of .the corporation in the conduct of the business it is carrying on, and he has no authority to sell the property of the corporation or to bind the corporation by a paper agreeing to pay a stipulated sum to a third party who assisted in making the sale.</p> <p>2. 'Corporations — Ratification of Unauthorized Act of Agent. — Although an agent of the corporation may act without authority; if his act was one that the corporation might have directed him in advance to do, it may subsequently ratify his act and thereby bind the corporation to the same extent as if it had directed it to be done.</p> <p>3. Corporations — Ratification—-Acquiescence.—As a general rule a corporation must act through its board of directors acting as a body, and its ratification of unauthorized acts is usually done at a regular meeting, but there may be ratification without corporate action by acquiescence or failure to disaffirm an unauthorized act, and where the unauthorized act is beneficial to the corporation, and it accepts the 'benefits, slight evidence will be required to establish ratification by acquiescence, but where the corporation does not derive any benefit from an unauthorized -act, or when it is doubtful if it has derived any benefit, and no third party or innocent party has suffered a loss, evidence of ratification by acquiescence must -be clearly shown.</p> <p>4. Corporations — Knowledge Necessary to Ratification by Acquiescence. — 'Ratification by acquiescence can only arise when the party acquiescing has full knowledge -of the facts relating to the act attempted to be ratified or holds such relation to the thing-that knowledge will be presumed.</p>

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

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

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

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

<p>1. Master and Servant — Laborer Employed by Job Not iServantlnjury to Infant. — A painter wbo is employed by tbe job to do some painting is not a servant of the employer, and tbe latter is not answerable for tbe painter’s failure to watcb over an infant, ■when be goes away and tells tbe painter to lock up when be is through.</p> <p>2. Master and Servant — Injury to Infant — Liability.—A person who tells an infant to wash his clothes in gasoline and burn the gasoline, giving him no warning of the danger, is liable to the infant for the injuries he thus receives,, if he had reason to know that the infant would be in danger in doing this.</p> <p>3. Instructions — Willful Neglect Instructions. — Willful neglect instructions should not be given unless there is evidence showing wantonness, malice or recklessness.</p> <p>4. Instructions — Contributory Negligence Instructions. — A contributory negligence instruction .should be given in the case of a boy ten years old where it was shown that he was warned of the danger and had intelligence sufficient to understand it.</p>

<p>1. Highway — Obstruction in — Public Nuisance — When Party Hindered May Abate. — If one places an obstruction in a public highway, anyone who is incommoded thereby, may remove it; but, unless he has occasion to make use of the highway, he must leave the public injury to be redressed by the public authorities! It is the existence of an emergency which, justifies the interference of the individual; and, generally speaking, whenever a public nuisance obstructs the exercise of a private right, the party hindered may abate the same, exercising due care in doing .so.</p> <p>2. Contributory Negligence — Absence of Evidence — ¡When Instruction ¡Upon Unnecessary. — Where there is no evidence tending to show the plaintiff was 'guilty of contributory negligence, no instruction should be given upon that subject; but, if such an instruction is given, and; it is apparent that th© verdict was not rested upon such ■ instruction, the judgment will not be reversed on that account, where it is apparent the instruction was not prejudicial.</p> <p>3. ¡Negligence — ‘Where One Not Liable for Injury. — Where the plaintiff left his horse and wagon standing, upon the street unattended, and the defendant’s servant led the horse and wagon across the street in order to permit defendant’s snow play to pass upon its track, th© defendant was not liable for an injury to the wagon, unless its servant was negligent in removing the wagon.</p> <p>4. Verdict — ¡When Sufficiently Definite. — In a suit, for damages, a verdict which reads, “We the jury, do not find the defendant ■guilty,” was sufficiently definite and specific to authorize the court to enter a judgment thereon in behalf of the defendant.</p> <p>5. Juror — When Not Disqualified by Reason of Kinship. — A juror is not always disqualified in a suit by or against a corporation merely because he is related to some of its stockholders. If the interest of the stockholder is so small as to be infinitesimal, and not to amount to a real interest in the controversy; or, if the juror was ignorant of the fact that his relative was a stockholder, the kinsman will not be disqualified as a juror.</p> <p>8. Juror — 'Former Employment by Corporation — Qualification.—The fact that a juror and his two brothers had theretofore been employed by the defendant corporation, did not disqualify the juror from subsequently serving in a suit for damages against the corporation.</p>

<p>Equitáhle Actions — Finding of ¡Chancellor. — In an action of trespass to try title, evidence examined and held that the chancellor’s finding should have heen in favor of plaintiffs.</p>

<p>1. Executors and Administrators — Care of Funds in 'Hands of. — It is • tbe duty of a ¡personal representative to use sucii care to make ■the funds in Ms bands interest bearing, as a person of ordinary prudence would use in handling bis own funds.</p> <p>2. Executors and Administrators — -When Not Charged With Interest. • — After two years from bis qualification, tbe executor will not Ibe 'Charged with interest on tbe funds in bis bands if be in fact received no interest, and by ordinary oare could not have earned it by reason of tbe fact that be bad to keep tbe money to meet pending litigation against him.</p> <p>3. Executors and Administrators — Use of Ordinary Care — Question of Fact. — Tbe judgment of tbe circuit court on a question of fact whether tbe executor used ordinary care will not be disturbed on doubtful evidence.</p>

<p>1. Municipal Corporations — Division of Property into Lots Fronting on Avenue — ¡Responsibility of City for Condition of Avenue. — When property in a city is divided into lots fronting on an avenue, the ¡purchasers of the lots are entitled to the avenue as a way, but the city is not responsible for the condition of the avenue unless it accepts it as a public way.</p> <p>2. Telephone Companies — Injury to 'One From Falling Over Guy Wire — Question for Jury. — A telephone company putting a guy wire on an avenue between the avenue and the side walk, although the sidewalk is within the property line, is liable to one injured by falling over the guy wire, if it was so placed ;as to render the way unsafe for travel; and this is a question for the jury.</p>

<p>Dying Declarations — When Statements Not Admissible As — (Homicide. — Where it appears that the deceased, at tbe time he made tbe statements offered as bis dying declaration, expressed any hope of recovery or used any words indicating that be bad not surrendered all expectation of living, bis statements are not admissible as a dying declaration, although tbe declarant may have been fatally wounded and death may have ensued shortly after tbe statements were made.</p>

<p>1. Wills — Meaning of Word “Money.” — Where a testatrix, who had money, bonds, note and real estate, gave to her husband all of her “money;” and to her husband and child all of her real estate, making no mention of either the note or bonds, which constituted the principal part of her estate, the word “money” will be construed to embrace the note and bonds, in order to carry out the intention of the testatrix.</p> <p>2. Wills — (Presumption Against Partial Intestacy. — When a person makes a will disposing of his estate, the presumption is that he intended to dispose of his entire estate and did not purpose dying intestate as to any part of it.</p> <p>3. 'Money — Meaning of Word. — The word “money,” in its usual and' ordinary acceptation, means a circulating medium, such as gold', silver or paper money, and this meaning should ordinarily be given to the word.</p>

<p>1, ¡Street Railroad® — -Action) Against for Damages Occasioned by Assault — Instructions.—In -an action against a street railroad company for damages resulting from.' an alleged assault, tbe instruction was erroneous; first, because it told the jury the Conductor had a light to assault the passenger if he used abusive language; second, because it told the jury that the conductor had a right to use more force than was necessary if the passenger was the aggressor; third, .because it failed to state that the conductor’s acts should be governed by the exercise of a reasonable judgment under the circumstances; fourth, the words, “was the aggressor” should have been omitted and the words, “if the plaintiff first assaulted the conductor,”- used in their stead.</p> <p>2. Street Railroads — Wise v. ¡South 'Covington & Cincinnati -St. Ry. Co., 17 K. D. R., 1359 — -Modification of. — The opinion in that case is modified to the extent indicated in the opinion.</p> <p>3. Street Railroads — Measure of Damages — Instructions.—An instruction upon tlie .measure of damages authorizing the jury to find exemplary damages if they believed the injuries were wantonly and maliciously inflicted is sustained by the authorities in this State upon the subject.</p> <p>4. iStreet Railroads — Action for Assault by Conductor — Burden of Proof. — The petition alleging that the conductor made the assault while acting in the¡ scope of his employment, and the answer denying this, the burden was upon appellant.</p>

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

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

<p>1. Railroads — Pleading.—Appellee should have been required, as moved by appellant, to make his petition more specific by alleging the name of the station at which his injuries were received, and the amount expended by him in procuring surgical treatment and medicines, in effecting a cure.</p> <p>2. Railroads — Declaration of Bystander — Rebuke of Porter by Conductor — Res Gestae. — The declaration of a bystander made to the conductor that appellee would not have been injured but for the failure of the train iporter to have with him a lantern when appellee alighted from the train; as well as the rebuke for not having a lantern given the porter -by the conductor at the same time were incompetent as substantive evidence. As both were made following the starting of the train from the station after appellee was injured and its backing to the station for the conductor to make inquiry as to the extent of his injuries, they were too remote in point of time from the happening of the accident, to constitute them a part of the res gestae.</p> <p>3. Instructions — Pleading.—Instruction No. 1 was radically wrong, as it allowed the jury to find for appellee by way of special damages, compensation for the loss of time from the date of his injury down to the date of the trial; and for expense incurred in procuring surgical treatment in effecting a cure, without limit as to amount; whereas the petition alleged only two months’ loss of tíme, and failed to fix any amount of expense incurred for effecting a cure. Moreover, the instruction erroneously allowed a recovery for the permanent impairment of appellee’s ability to earn money and, in addition, for diminution of his power "to pursue the course of life he might otherwise have done.” As the petition failed to allege that appellee was permanently injured, or that his power to earn money had been permanently impaired (one of which should have been alleged), no recovery should have been allowed for the impairment of such power; and in advising the jury that they might compensate appellee for any diminution of his power “to pursue the course of life he might otherwise have done,” the instruction erroneously introduced into the case, what the jury must have regarded, an independent element of damages, not included in that part of the instruction which authorized a recovery for the impairment of his ability to earn money.</p> <p>4. Instructions. — The opinion indicates the proper instructions to he ■given on another trial in lieu of instruction No. 1, referred to.</p>

<p>1. Damages — Action for Malpractice — Special (Damages — Absence of (Plea — Instructions—Pleading.—In this action brought by appellee against appellant, a -physician, for malpractice, no special damages were claimed, nor were general damages arising out of any 'permanent injury to her person alleged; the only grounds of damage alleged! ¡being physical and mental suffering, and “impairment of her health and strength,” to which the recovery, was by the instruction as to the measure of damages confined. Held, the instruction was fatally defective; the words “impairment of her health and strength” as used in the instruction were calculated to make the impression on the jury that they were equivalent in meaning to ¡the words — permanent impairment of her power to earn money; although damages on that account were not claimed in the petition, nor was the recovery of such damages authorized -by any of its averments, or by the evidence.</p> <p>2. Same — instructions.—On another trial ¡the instruction as to the measure of damages should limit the recovery to compensation to appellee for the physical and mental suffering caused her by appellant’s neglect or unskillful treatment.</p> <p>3. Same — -Pleading—Instructions.—She may, however, if she so elects by an amended petition allege permanent injury or the permanent impairment of her -power to earn money caused by appellant’s negligence and also special damages, such as loss of time and expense incurred in effecting a cure; in which event, and there is proof to sustain them, the court may include these elements of damage in the instruction defining the measure of recovery.</p>

<p>1. Litigant — Motive of Cannot Affect Legal Rights. — It is a well settled rule of law that the motive of a litigant cannot affect his legal rights, since his rights are to he determined by the facts and the law, regardless of his good or bad motive in asserting them.</p> <p>2. Jurisdiction — Joinder of Nonresident Corporation and Servant— Removal of Action. — The fact that a plaintiff in a suit for damages in a State court joined a nonresident corporation and its servant ■as defendants, for the purpose of preventing a removal of the "action to the Federal Court, does not affect the right of the plaintiff to hold the case in the State court, if the servant was a proper defendant.</p> <p>3. Jurisdiction — Fraudulent Joinder — Nonresident Corporation — Waiver. — If, after hearing the evidence in the State court, the nonresident corporation defendant conceived that the evidence sustained its charge of fraudulent joinder, it was its duty to renew the motion to remove, and tender its bond anew; and, if it failed to do so, it waived any right it may then have had to remove the case to ¡the federal court.,</p> <p>4. Mines and ¡Mining — Injury to Miner — Peremptory Instruction.— Where a coal miner left the room where he was employed at the direction of the boss driver, and went to another room in the mine to get tools of 'his own, which the mine through its boss driver had promised to deliver to the miner, ,and, while on his way to get his tools he was injured' by the falling of the roof of the mine, the trial court properly declined to give a peremptory instruction for the defendant.</p> <p>5. Mines and 'Mining — Action Against Owner of Mine and Servant.— In a suit against a ¡mine owner and its servant for negligently injuring a miner, where the evidence tended to show that one of the defendants was guilty, and the other not guilty of negligence, the trial court properly instructed the jury that they might find against one defendant, and for the other defendant.</p> <p>6. Mines and! Mining — Action Against Owner of Mine and Servant— Judgment Against Owner — May Assert Against Servant. — Where, in ¡a suit against a miné owner and its servant for negligently injuring a miner, the jury finds against the mine owner and in favor of the servant, the mine owner may recover from the servant whose negligence was the sole cause of the injury, whatever sum it may have paid the miner under the judgment against the company. The judgment in favor of the miner against the mine owner does not preclude the mine owner from asserting its claim against its servant for causing the damage.</p> <p>7. Personal 'Injury — Measure of Damages — In actions for personal injury the measure of the damage includes, (1) compensation for pain and mental suffering; (2). expense in nursing and medical attendance; (3) time lost, and (4) if the injury has lasting effects, permanent diminution of earning capacity.</p> <p>8. ‘Personal Injury — Imports Pain and Suffering. — Personal injury imports pain and suffering, and to sustain a substantial verdict therefor they need not be proved.</p> <p>9. Verdict — Where Not Excessive. — Where a coal miner had both ’ legs broken, resulting in the amputation of one of them, accompanied by a long confinement and intense pain and suffering, a recovery of $5,125.00 damages is not excessive.</p>

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

<p>1. Carriers — Shipment of (Lambs — Clerical Error. — The proof for the plaintiff showing that 247 lambs were shipped in P. C. C. & St. L. car 658165, proof for the defendant was admitted accounting for P. C. C. & St. L. car, 658135 containing the same number of lambs shipped at the same time iby the same consignor to the same consignee; Held on appeal it will be presumed that the figure “3” was a clerical error for the figure “6.”</p> <p>2. Carriers — Shipment of Lambs — Loss by H|ot Weather — Act of God. — A carrier is not'liable for a loss on lambs by reason of the intensely hot weather and beyond its control, weather conditions being tbe act lof God.</p> <p>S. Carriers — (Loss of Live ¡Stock. — The carrier is not liable for a loss on live stock due to the inherent nature, weakness or vice of the stock.</p>

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

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

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

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

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

<p>1. Wills — Interest of Husband in Wife’s Property — Action to Sell Interest in Real Estate Received as Devisee of Wife. — Where the will of a wife in which her husband joined provided that “at the death of either of us leaving the other surviving shall take, hold and enjoy all the real and personal estate of the decedent whatsoever that such decedent may be possessed of at the time of the death of such decedent in trust for the use and benefit of our children and heirs at law then living,” a present interest in the property was devised to the children from which the father’s interest was inseparable.</p> <p>2. In an action to sell the interest in real estate which the husband received under such will, a demurrer was properly sustained to the petition.</p>

<p>1. (Land — Adverse Possession of — Effect of Deed to. — When a person claiming by adverse possession has a deed of record which describes the boundary by natural or artificial objects so that it can be run by a surveyor, and he makes an actual settlement, or enclosure within the boundary this will carry his possession to the extent of the boundary described in the deed.</p> <p>2. Land — Evidence of Adverse Possession of. — Evidence of adverse possession for the statutory period, examined and held to authorize the verdict of the jury.</p> <p>3. Boundary — When Call Will Not Reach Natural Object — Duty of Surveyor to Change Calls So As to Reach Natural Objects. — When a given call will not reach a natural object called for, it is the duty of the surveyor to change the calls so as to reach the natural object, and in an action for trespass, the calls of the deed not closing, instructions embodying this view of the law were properly given.</p>

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

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

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

<p>1. Turnpike Companies — Indictment Against — Judgment — When •Cannot be Assailed Collaterally. — The Clark and Montgomery Turnpike Company having been indicted in the name of the Clark and Montgomery Turnpike Road 'Company, and having appeared and defended the judgment is not void' and cannot be assailed collaterally.</p> <p>2. Judgment. — When One Bound By Although Not a ¡Party. — One who defends an action in the name of another is bound by the judgment although not a party to the action.</p> <p>3. Judgment — When One Will Not Be ¡Heard to 'Set Up Invalidity.— A person who was not a party to the action but acquiesced in the judgment, treating it as valid, and induced another to pay out money upon the assumption that the judgment is valid, will not be heard to set up the invalidity of the judgment to the prejudice of the person so misled.</p>

<p>Insurance, Life — When Not Presumed Insurance ¡Was Intended for a Loan. — -A son insured bis life for tbe benefit of bis mother in tbe sum of ■$1,000, and afterwards borrowed from ber $1,000. Tbe insurance having been created first it will not be ■presumed that tbe insurance was intended as a security for tbe loan in tbe absence of proof to this effect.</p>

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

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

<p>1. Landlord and Tenant — Pleading—Distress Warrant. — As the petition, as amended, states a cause, of action, -which, if supported by evidence, -would entitle appellant to recover damages of the landlord for wrongfully procuring the issuance of a distress warrant, and of the latter and the officer who received the writ, for the wrongful seizure and sale of her property thereunder, the judgment of the circuit court sustaining the demurrer and dismissing the petition was error.</p> <p>2. Landlord and Tenant. — The procurement of the distress warrant, and seizure and sale of appellant’s property thereunder, were wrongful, if, as alleged in the petition, there was no rent due the landlord from the tenant, or the property was not Subject to distraint for rent.</p> <p>3. .Landlord and Tenant — Restraint of Tenant’s Property — Provision of Code. — Where property is illegally seized under a distress warrant, the tenant may, as provided 'by section 33, civil code, sue to recover the specific property and obtain an order of delivery for same, or he may prevent its sale and discharge the levy, by executing a bond as allowed by section 653, civil code, 'and present his defense to the writ, when the landlord moves for judgment on the bond, as provided by section 654 civil code. As the remedies mentioned are merely cumulative, the tenant may waive them; and if the property was distrained or sold without •good cause for suing out the distress, bring an action for damages , under sections 7-2312, Kentucky Statutes, against the party suing out the distress; or he may bring a common law action for damages against the latter, and the officer executing the writ, for the illegal seizure and sale of the property</p>

<p>1. Appeal — Jurisdiction of Court of Appeals Over Judgments from In. ferior Courts — Premature Appeal. — The Court of Appeals has appellate jurisdiction only over final orders and judgments of inferior courts; if the order appealed from is interlocutory merely in its nature, the appeal is premature and- will be dismissed.</p> <p>2. Judgments — What is Pinal Judgment. — A final judgment or order is such an order as at once puts an end to the action by declaring the plaintiff has either entitled himself, or has not, to recover the remedy sued for; it disposes of the merits of the case, and settles the rights of the parties under the issues made by -the pleadings, or disposes of the case and puts the parties out of court.</p> <p>3. Judgment — 'Sustaining Demurrer to Petition — Not Pinal Order.— An order which sustains a demurrer to a petition, and goes no further, is not a final order.</p>

<p>1. Process — Constructive ¡Service — Jurisdiction.—It is a well settled rule of construction that in all proceedings upon constructive service, the provisions of the Code of Practice regulating the same must he literally followed; nothing short of a substantial compliance with every prerequisite will give the court jurisdiction in such cases.</p> <p>2. Process — Constructive Service — When Judgment Will Be Treated as Void. — The record must show upon its face that, the provisions of the Code as to constructive service have been substantially complied with, or the judgment thereunder will be treated as void and inoperative.</p> <p>3. Process — Warning Order — When Affidavit for Insufficient. — An affidavit for a warning order which stated that the “defendants are non-residents of this ¡State, and now residing with their mother, in Dayton, Indiana,” without stating that the affiant believed them to be then absent from the State of Kentucky, was insufficient to authorize the making of a warning order, and tne same was void.</p>

<p>Divorce and Alimony — Alleged Dewdness of Wife — Evidence.-—In an action for divorce and alimony tbe judgment 'granted tbe divoree and allowed alimony to tbe amount of $2,000.00. Tbe busband appeals, seeking to get rid of tbe alimony, and tbe -wife cross appeals, seeking to obtain larger alimony. Tbe husband bad property of from $15,000.00 to $18,000.00. Tbe alleged lewdness of tbe wife was not sufficiently proved, but in view of tbe evidence her recovery was properly limited to $2,000.00 -and tbe attorney’s fee allowed her was fair.</p>

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

<p>1. Witnesses — Credibility of for Jury — New Trial. — The credibility of the witnesses is for the jury and a new trial will not ibe granted because the jury believed one .set of witnesses rather than another, if the verdict is not palpably against the evidence.</p> <p>2. Office and Officer — Presumption Officer Did His Duty. — It is presumed that the officer 'did his duty and this presumption is not overcome where it appears 'that what was said between the sheriff and a bystander was not in the hearing of any of the jury sent to view the premises.</p>

<p>1. Land — Sale and (Reinvestment- — Provisions of Will — Pleading.—In this action by life tenants for tile sale of devised real estate for reinvestment, in which infant remaindermen were made defendants, properly summoned and represented iby guardian ad litem; it appearing tbat tbe -will with respect to the land devised, forbids -the sale by one of the life tenants — a deaf mute — of his interest therein, but manifests no intention on the part of the testator to prohibit the sale by the other life tenants or the remaindermen, of their respective interests therein, or to prevent a court of equity from decreeing a sale of the land, including -the interest of the deaf mute, for reinvestment of the proceeds in other real estate, and the necessity for the -sale and reinvestment being manifest from the evidence, the granting of the prayer of the petition was not error.</p> <p>2. Land — Sale of for Reinvestment — -Provision of Will — Provision of -Code. — In the absence from the will of language mating it reasonably certain that the testator intended to forbid a sale of the land by a court of equity for reinvestment during, the term of one of several life tenants, such intention will not be presumed from the mere fact that such sale is forbidden to such tenant himself; therefore subsection 1, section 492, Civil Code, did not deprive the court of power ¡to decree thq sale.</p>

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

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

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

<p>Wills — Construction, of. — The testator by his will devised a farm to his two sons, R. and S. jointly, providing that they should pay his estate each $500.00; and that if !R. died without children, his share of the farm should revert to the estate. By a codicil to the will he , provided that IR. and S. should have the farm equally and jointly and should be released from paying $500 as required, by the will. By a second codicil he devised to R. an outlet thirty feet wide through his home farm. Held, that under the will and codicils R. takes hi-s half of the farm, in fee simple.</p>

<p>Insurance, Fire — Unpaid Installment (Note — ¡Demand of Payment of— Forfeiture of 'Policy — ¡Waiver.—-Although the policy of fire insurance provides that it shall not be in force while any installment note executed for a part of the premium remains due and unpaid, . the company iby demanding unconditionally the payment in full of a past due note waives the right to insist on the forfeiture of the policy and is liable for a loss although it occurred before its letter making the demand, reached the assured.</p>

<p>1. Railroads — Personal Injury — Degree of Care Required of Children. — A child is only required to exercise such care as children of his age, experience and discretion ordinarily exercise under the same or similar circumstances. They are not held to the same degree of care as adults are, and the degree of contributory negligence that might defeat a recovery on the part of an adult will not excuse an injury to a child.</p> <p>2. Railroads — 'Duty to Public at Crossings. — A railroad company is required to exercise such care in the movement of its trains at public crossings as will afford reasonably sufficient protection to the public, and it must take notice of the location, the use and the character of public crossings, and exercise that degree of care at each of them that may be necessary to perform its legal duties. A larger measure of care is required at some crossings than at others, but at each crossing the company must exercise such a measure of care as.will afford reasonable protection to the public.</p> <p>3. Railroads — Evidence of Use of Crossings. — For the purpose of showing the measure of duty the railroad company owes, and the notice of this duty it will be presumed to have, evidence may 'be introduced to show the character of the crossing, the conditions - existing, and the use of it by the public, not only at the time of the.accident under investigation, but for a reasonable time before.</p> <p>4. Railroads — 'Crossings—Watchmen—-When Not Sufficient Protection at. — At some crossings a watchman who performs his duty might relieve the company from the other duties of lookout, warning and reasonable speed, but at a dangerous crossing in a populous city one watchman is not sufficient protection at hours of the day when the crossing is used by crowds of school children.</p> <p>5. Railroads — Crossings—Pushing Cars. — It is gross negligence to push cars, without any person in control of them,- over a street crossing at a time when school children are using it; although the crossing may he protected by a watchman.</p> <p>6. Negligence — Cross Negligence — Punitive Damages. — In personal injury cases when the act that causes the injury complained of is intentionally or maliciously done, or the injury is the result of a careless or wanton disregard of the rights or safety of others on the part of the wrong-doer, this is gross negligence, and entitles the injured party to punitive damages.</p>

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

<p>1. Schools and School Districts — Selection oí Site for Schoolhouse • — Change of Site. — A board of education selected a site for the building of a schoolhouse a few hundred yards away from the old site, but a lew months afterwards, and about the time the work on the house was to .begin, .by an order changed the site, selecting the old oiie. Held, there is nothing in the statutes to prevent the board from changing its mind and rescinding the order for the building of the house. The intention which existed for a few months to change the site, did not have the effect of itself to abandon the old site. The house on the old site was still in use and the site was never changed.</p> <p>2. Schools and School Districts — Ownership of Property by School Board — Conflict of Acts. — While section 4437a, Ky. Stats., seems in conflict with section 4426a, the latter section provides that the county board of education has the power to purchase, lease or rent school house sites, and it appears that the board had such title .as would authorize it to construct the building in controversy.</p> <p>3. Schools and School Districts — Selection of Site — Discretion of Board. — The evidence examined and held that it cannot be said that the board of education abused its discretion in its selection of the site of the old house.</p>