Volume 151 — Kentucky Reports

<p>1. Municipal 'Corporations — «Public Ways or Streets — Establishment of — Assessment Districts. — A private way, although highly improved and, in appointments, equipped as well as most of the public streets of the city, cannot, in the absence of evidence of its dedication to the public as a street, and its acceptance or recognition by the city as such, be held to be a public way or street; and the presence of such private way in territory contiguous to an improved street does not have the effect of defining such territory into squares by principal streets, for the purpose of assessment for the cost of such improvement.</p> <p>2. Municipal Corporations — Public Improvements — Assessments for Benefits ,and Special Taxes — Assessment Districts. — Under the charter of first class cities, where the territory adjacent to an improved street was defined into squares by principal streets, on one side only, the district on the side not so defined subject to assessment for the cost of the improvement, must he of a depth equal to that on the side that is defined into squares by principal streets.</p> <p>3. Same — «Property Subject to Assessment. — All the real estate, within the assessment zone for the cost of the improvement of a street, should be made to bear its proportion of such cos't.</p> <p>4. Same — 'Lien—Warranty.—The statute, under which streets in first class cities are improved, providing that the lien for the cost of such improvement shall exist from the date of the apportionment warrant, the vendor in a general warranty deed, executed and delivered before such date, for property within the assessment zone, is not liable on his warranty, for such property’s proportionate cost of the improvement.</p>

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

<p>Continuance — Discretion of Circuit Court in Granting. — The circuit' court has a discretion in the matter of granting a continuance which will not be reviewed unless abused. (For original opinion, see 150, Ky. 129.)</p>

<p>1. Evidence — Admissibility of. — On a trial for rape it was not error to deny the defendant tbe right to read as evidence the affidavit for the warrant of arrest, both of which charged the accused with taving taken and detained the .prosecutrix against her will and consent with the intention of having carnal knowledge with her.</p> <p>2. Ttape — Evidence—Sufficiency of. — The court properly instructed the jury as to what constituted rape, and the prosecutrix testified that accused had “intercourse” with her, &c. Evidence held sufficient to meet requirement of instruction.</p> <p>3. Verdict — Evidence.—Evidence examined and found sufficient to support the verdict fixing the death penalty.</p>

<p>1. Land — Sale of at Suit of Infants by Statutory Guardian — Provision of Code. — Real estate owned by infants, subject to the widow’s dower, may, if indivisible and the widow consents to accept in money the value of her dower as fixed by the court according to her life expectancy, be sold at the suit of the infants by their statutory guardian» for a division of the proceeds, as provided by section 490, subsection 2, Civil Code, »as in such case the property is a vested estate, jointly owned and in possession, as thereby defined.</p> <p>2. Same — Right of Infants Not Affected by Widow’s Joining a? Plaintiff. — The right of the infants to a sale of the property is not affected by the widow’s joining with them as a plainciff in the action; as she thereby merely assists them to accomplish an end to which she could assent, or equally assist, if made a defendant.</p> <p>3. Same — Distinguishing Case from Others Cited. — The opinion distinguishes the case from that of Fullenweider v. Johnson, et al,, 145 Ky., 19, and other eases therein cited, in which sales of real estate, similarly owned, were not allowed under section 490, subsection 2, Civil Code, at the suit of the life tenant alone.</p>

<p>1. Land — Vested Estate Jointly Owned by Two Persons — Action for Sale of — One Owner Infant — Indivisibility of Property.— Where a lot is owned jointly by two persons, one of whom is an infant, is in their possession and a vested estate, is indivisible and both joint owners will be benefited by its sale, the sale was authorized by section 490, subsection 2, Civil Code, at the suit of the joint owner and the statutory guardian of the infant.</p> <p>2, Same. — While the lot is eighty feet wide, and on first blush might seem to be subject to an advantageous division into two lots of forty feet each, it is in a small town, remote from business or residential centers, and practically a suburban lot. In view of which facts the property is indivisible in the meaning of the Code provision.</p>

<p>1. Conveyances — Relation of Confidence and Trust — When Conveyance Will Not Be Set Aside as Fraudulent. — Where there exists between two persons a relation of confidence and trust, by which one exerts such an influence over the judgment of the other as to subvert the latter’s will and independence, a conveyance by the latter to the former will be set aside as fraudulent, upon seasonable complaint.</p> <p>2. Conveyances — Voluntary Conveyance — Burden of Proof. — When such relationship is shown, and a voluntary conveyance beneficial to the grantee, the burden of proving that in that transaction the other mind acted freely and of its own volition, is on the person benefited.</p> <p>3. Conveyances — 'Conveyance in Consideration of Services Rendered —When Will Not Be Set Aside. — Where a bachelor, seventy-five years of age, conveyed a tract of land to his nephew in consideration of services theretofore rendered the grantor by his nephew, the conveyance will not he set aside after the grantor’s death at the suit of his heiis;at»!aw upon the ground that the conveyanc® Was impliedly fraudulent,</p> <p>4. Conveyances — Confidential Relation — Implication of Fraud. — The mere fact that the grantor was the uncle of the grantee in a deed does not show such confidential relations as will raise an implication iof fraud having been practiced upon the - uncle in making the deed to his nephew.</p>

<p>1. Assault — Actit® For — Son Assault Demesne — Plea of. — A plea of son assault demesne is in tbe nature of a confession of the assault charged, and an avoidance thereof by showing that the plaintiff assaulted the defendant, and that the injury complained of grew out of the assault by the plaintiff upon the defendant.</p> <p>2. Pleading — Confession and Avoidance. — It is a rule that every pleading by way of confession and avoidance must give color, and rely on some new matter by which that apparent right is defeated, which, as a term of pleading, means, it must admit an apparent right in the opposite party, and rely on some new matter by which the apparent right is defeated.</p> <p>3. Pleading — Forms of Abolished by Code — Substance of Common Law Rules Remain. — Although forms lof pleading have been abolished by the Code of Practice, the substance of the common law rules of legal procedure remains, except where they conflict with the spirit of statutory regulations upon the subject tof pleading and practice.</p> <p>4. Pleading — Confessions and Avoidance — When Defective. — If a pleading purporting ¿o be by way of confession and avoidance does not import a confession of the traversed allegations, it is defective and insuffleient.</p> <p>5. Pleading — Plea of Son Assault Demesne — Burden of Proof.— ■ Where there is a plea of son assault demesne, the burden of proof is upon the defendant; 'but, where the defendant merely traverses the allegations of the petition, or, in addition thereto, pleads distinct and separate matters by way of justification or excuse, but which do not amount to an assault, the burden is or the plaintiff to make out his case.</p>

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

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

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

<p>1. Mines and Mining- — Shaft Mine — Personal Injury. — 1(J a shaft mine there were two elevators operated in the shaft, and the shaft in which these elevators ran was in the maun entry of the mine, and the miners in going from one side oí this entry to the other were compelled to pass through the elevator shaft. The elevators were run without warning or notice tor signal, ánd a miner, in going through the shaft, was caught toy the descending elevator and injured. In an action by him to recover damages— field, that in failing to have a passageway on the side of the elevator shaft through which the miners could go, the mine owner was negligent in failing to lurniph the miners a reasonably safe place in which to work.</p> <p>2. Master and Servant. — Assumed Risk.-^-In accepting employment the servant, assumes the risk of such accidents as may happen to him in the ordinary and customary course of his employment, but he does not assume any risk of accident or injury caused by ■the failure of the master to exercise ordinary care to furnish him a reasonably safe place in which to work.</p> <p>3. Master and Servant — Safe Place to Work. — The duty of the master to furnish the servant a reasonably safe place is' not confined to the precise spot in which the servant works but includes the places to and from which he may be required to go in perform-i lg his dut’es.</p> <p>¡1. Negligence — Evidence lof Subsequent Improvements or Repairs.— In an action to recover damages tor injuries sustained in an unsafe p-iace it is not competent to show that subsequent to the injury the unsafe place was repaired.</p>

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

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

<p>1. Master and Servant — Trial—Peremptory.—The evidence of an injured servant that, in the use of an unsafe tool, he had some question as to its safety, but used it, relying upon the assurance by the master of its safety authorized the submission to the jury the question of contributory negligence 'of the servant in the use of the implement.</p> <p>2. Master and Servant — Masters’ Liability for Injuries to 'Servant— Tools — Care Required. — A master cannot, in the use of dynamite, direct an inherently dangerous method of handling it, whereby injury results, and escape liability therefor by disclaiming knowledge of the dangers attendant upon such method.</p> <p>3. Master and Servant — Pleading.—Where a -tool is not obviously unsafe, a plea of the failure of the master to furnish to the_ servant a safe tool is sufficient to sustain judgment, without the further plea of a reliance by the servant on the assurance Iby the master of the safety of the implement.</p> <p>4. Master and Servant — Instructions.—-An instruction to the jury to find for the defendant, if they believed that, notwithstanding the assurace of the master that the tool was so obviously unsafe that a man of ordinary prudence would not, under the circumstances, use it, while it should have been more explicit, fairly presents the ' law of the case.</p>

<p>1, Deeds — Requisites and Validity. — Deeds, to be effective, must by tbe maker, be signed, acknowledged, and delivered to the grantee.</p> <p>2, Deeds — Requisites—Distinguished From Other Dispositions of Property. — If an estate, created by an instrument, vests during the life of the maker, the instrument is a deed; if the estate is ¡operative only upon the death of the maker, it is a will.</p> <p>3, Executors and Administrators — Real Property — Sale—Power Under Will — Title of Purchaser. — A sale and conveyance of real estate by the executor is authorized by the will; and his deed therefor t'o the purchaser passes the fee simple title to .the land.</p>

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

<p>1. Timber — Sale of — Time Specified For Removal — Right of Purchaser to Remove. — The sale of standing timber on a certain tract of land, to be removed in a given length of time, is a> sale of only so much of the timber as is removed within the time, or within a reasonable time thereafter if the purchaser is prevented from removing it by act of God, or of the seller, or by some unforeseen misfortune or casualty over which he has no control.</p> <p>2. Timber — Sale of — Removal Within Specified Time — Impossibility of Removal. — Where the purchaser of standing timber, to be removed within twelve months from May 19, 1910, delayed the removal of the timber until the latter part of November, during which time the timber could easily have been removed, he cannot complain of the fact that he was prevented from removing the timber by act of God or by some unforeseen misfortune or casualty over which he had no control, because during the winter months and the early spring of 1911 the roads became practically . impassible on account of extraordinary rain.</p> <p>3. Timber — ¡Sale of — Specified Time for Removal — Interference by Seller. — Where there is a sale of standing timber on May 19, 1910, to be removed within twelve months, a remark by the seller to one of the purchasers’ drivers during the month of January, 1911, and at a time when defendants claimed that the roads were so muddy and impassible that they could not haul to advantage, to the effect that he “would not haul through the mud” is not a sufficient interference on the part of the seller to excuse the purchasers from the necessity of removing the timber within the ■time specified by the contract.</p>

<p>Assessment 'of Property — Board of Supervisors — Assessment Void When Made Without Notice. — An assessment made by the Board of Supervisors withiout notice to the taxpayer as provided hy the statute, is void.</p>

<p>1. Damages — Injury From Concurring Causes — Rule as to Recovery— Negligent. — It is a well settled rule of law that if an injury is the result of concurring causes, for one of which only the defendant is responsible, he must answer; or where the injury is the combined result of negligence and accident, the negligent party must answer, unless the injury would have happened if he had not been negligent.</p> <p>2. Damages — Failure to Insulate Telephone Wire — Destruction of Building — Evidence—Lightning Arrester. — In this action by appellant to recover damages for the destruction by fire of his store building and contents, caused, as alleged, by appellee’s negligence in failing to properly insulate its telephone wires where they entered the building, which, it was further alleged, allowed an electrical current of unusual force imparted to the wires by lightning Outside the building, to pass into same and ignite it. Held: That as the evidence failed to show the wires were strucfe by lightning, it did not appear that the negligence of appellee in failing to insulate its wires where they entered the building, was the proximate cause of the fire; therefore, the giving of a peremptory instruction by the court, at the conclusion of appellant’s evh dence, directing a verdict for appellee, was not error.</p>

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

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

<p>1. Carriers — Passengers — Evidence — Peremptory Instruction. — Question for Jury. — In an action against a street railway company for injuries to a passenger while entering a car, alleged to be due to the sudden starting of the car, evidence examined and held that the question of negligence and whether or not plaintiff was injured was for the jury.</p> <p>2. Witnesses — Credibility—Manner of Testifying. — The jury in weighing the testimony of a witness, may consider his demeanor and appearance, and from these and other circumstances may conclude that the witness is not worthy of credit, and disregard his entire testimony.</p> <p>3. Carriers — Passengers—Injuries—Negligence.—If a car be moved while a passenger is upon the steps of the car, and before he has had a reasonable opportunity to reach the platform and he is thereby injured, he is entitled to recover, whether the car is moved by an ordinary and usual, or an unusual and unnecessary jerk; on the other hand, where a passenger has had an opportunity to reach the platform of the car, the company is not liable unless the car is started with an unusual jerk, except in those cases where the passenger is old, feeble, crippled, or in a condition which makes it reasonably apparent to those in charge of the car that he needs unusual care and precaution for his protection.</p> <p>4. Carriers — Passengers — Injury — Pleading — Instructions.—In an action against a street railway company for injuries to a passenger, alleged to have been caused by a sudden and unusual jerk of the car before plaintiff had been given a reasonable opportunity to fully board and enter said car, an instruction telling the jury that if they believed from the evidence that while plaintiff was in the act of boarding the car, and before she g5t to a place of safety on the car, those in charge of the car started the car suddenly and with an unusual jerk, and she was thrown thereby against the car, or any part thereof, and injured thereby, the law was for the plaintiff and they should so find, was proper.</p> <p>5. Carriers — Passengers—Contributory Negligence — Instructions. — • In an action for damages for injuries to a passenger while entering a car, evidence examined, and held that an instruction on contributory negligence was not prejudicial.</p>

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

<p>1. Judgment — Taking As Confessed Allegation of Pleading — Modification of Opinion. — As the opinion apparently conveys the meaning that an order taking as confessed the allegations of a pleading cannot be set aside 'by the c.ourt at a subsequent term, except in the manner provided by the Code for vacating a judgment, it is modified by withdrawing the statement susceptible of such meaning.</p> <p>& Judgment — Interlocutory Order — Setting Aside. — Such an order, being merely interlocutory, can be set aside by the court at a subsequent term. What was intended to be said in the opinion was, that no cause was shown by the record for the setting aside of the order pro confesso at the subsequent term. The conclusion reached in the opinion on the merits of the case is adhered to. (For former opinion, see 149 Ky., 482.)</p>

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

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

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

<p>Husband and Wife — Alimony.—Where tbe husband has provided his wife with as comfortable a home as his circumstances will permit and at a place where his business requires him to be, if the wife is not content to live in th© home he has provided and goes to live with her parents, she is not entitled to alimony.</p>

<p>1. Damages — Contributory Negligence — Instruction.—In an action for damages, it was not error to refuse an instruction on contributory negligence, as there was no evidence to support it.</p> <p>2. Limitation — Plea of. — The plea of limitation was not sustained, as the injuries complained of occurred within five years before the institution of the action.</p> <p>S, Sewers — Overburdening and Constructing — Negligence.—It is negligence for a city to overburden a sewer and to fail, when constructing a sewer, to provide it with sufficient catch basins.</p> <p>4. Damages — Recovery by Life Tenant — Criterion.—A life tenant has a right to recover for damages to the life use of property, when occasioned by negligence. The criterion of such a recovery is the depreciation of the rental value of the property while rented and the depreciation in the value of its use while used, together with the value of her time and money spent in repairing the property.</p> <p>5. Instructions — Criterion of Recovery — Verdict—Evidence.—While the instruction complained of did not state the proper criterion of recovery, the error was prejudicial to appellee and not appellant, therefore, as it appears the verdict is supported by the evidence, and appllant’s substantial rights were in no way prejudiced, the case will not ,be reversed.</p>

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

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

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

<p>1. Mechanics’ Lien — Subcontractors and Materialmen — Amount and Extent of Lien. — Subcontractors and materialmen, who have proceeded as the statute directs, have liens for work done and material furnished in the 'erection of a building, in accordance with the plans and specifications therefor, for the amount of their respective claims, with no limitation except that the total shall not exceed the contract price, as agreed between the owner and principal contractor.</p> <p>2. Mechanics’ Liens — Enforcement—Defenses—Set Off and Counterclaim. — Payment of the contract price, in whole or in part, by the owner to the principal contractor is no defense to lien claims of subcontractors and materialmen. Damages, due to variation from the requirements of the specifications as to labor and material, may be ascertained and set off against the demands of those lien claimants, whose labor or material so varies.</p> <p>3. Mechanics’ Liens — Evidence—Weight and Sufficiency. — Evidence examined and held sufficient to support finding and judgment in favor of the lien claimants.</p> <p>i. Jury — Right to Trial By — Equity—Particular Proceedings. — Proceedings to enforce mechanics’ liens, being purely equitable, the refusal to transfer case to ordinary docket for trial of issues of fact, presented in defense to the demands of the lien claimants, was not a violation of the constitutional guaranty of the right of trial by jury. The right, thereby secured, refers only to such right as existed at common law.</p> <p>5. Appeal — Review—Harmless Error. — A ease will not be reversed for error, not affecting the substantial rights of the complaining litigant.</p>

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

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

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

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

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

<p>1. Wills — Settlement of Accounts by Executor — Suit to Quiet Title —Character of Estate Taken Under Will. — A decedent provided in her will for a division of her property between .her two sons devising to one in trust, but providing that upon the death of either before final distribution of the estate without leaving bodily heirs, his portion should vest in the survivor, and providing a certain disposition in the event both died without bodily heirs. In 1898 the executor made' a final settlement of his accounts, and in a year or two the son to whom his part of the estate had been left absolutely, died unmarried and without issue. In an action by the surviving son, whose part of the estate was left in trust, alleging that appellants were claiming an interest in the land which had been conveyed in trust by the will, asserting in himself a fee simple title, and praying to have his title quieted and to be adjudged the owner, Held, That the surviving son took a defeasible fee in the property, subject to be defeated only by his death with a child or children surviving him, and that appellants took no interest whatever under the will of the testatrix. The contingency in which appellants were to take the property did not occur and cannot occur for the estate has been finally settled, and no further provision having been made for the reversionary interest, as to it decedent died intestate, and this was inherited by the two sons, and appellee having taken a- life estate and inherited the reversion, took a defeasible fee therein, subject to be defeated only by having a child or children living at the time of his death.</p> <p>2. Wills — Sale of Land for Reinvestment. — It appearing that but little income is derived from it, and that the proceeds could be advantageously reinvested in Louisville where appellee lives, a sale and reinvestment of the trust estate was properly ordered, the title to remain in a trustee and held under the provision of the will.</p>

<p>Appeal — Order Sustaining Demurrer — Final Order. — An order that sustains a demurrer to an amended petition, but goes no further, is not a final order and no appeal lies therefrom.</p>

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

<p>1, Executory Gift — Promise to Forgive Debt — When Gift Not Perfected. — A promise by a payee to forgive a debt, the promisor being under no legal obligation to do so, is but an executory gift, and so long as the transaction remains executory, and the promisor retains the evidence of indebtedness, either in person or through his agent, the gift is not a perfected one, and no property passes to the promisee.</p> <p>2. Executory Gift — (When Paper Inoperative to Remit Interest — ■ Will — Gifts Inter Vivos. — Where a creditor delivered to her agent a letter, directing him to thereafter collect interest upon only part of a debt owing by a debtor, the paper was inoperative to remit any interest due on the note, since the letter did not operate either as a will or as a gift inter vivos.</p> <p>3. 'Contribution — Action—When Recovery Inures Equally to (Benefit of Others. — Where one person had prosecuted an action at. extra expense and trouble, and the recovery inures equally to the benefit of others, they will be required, as a condition to sharing in the recovery, to contribute their proper proportion of the expense, including attorneys’ fees, which are to be paid out of the recovery.</p> <p>4. Contribution — One Taking No Part in Successful Will Contest Must Contribute to Expense of Contest. — Where the devisee under a will stood indifferent between the parties contesting the will, and took no part therein, but was benefited by the contest, which was successful, he will be required to contribute to pay the fees of the attorneys for the successful contestants.</p>

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

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

<p>Master and Servant. — Where an experienced servant, while rowing a boat, pulled it too close to the revolving wheel of a steamer, thereby causing it to upset, resulting in his death, the master cannot be hela liable for the failure of his foreman, who was in the boat, to warn or instruct the servant of the danger, when the evidence shows that the foreman did not know anything about rowing the boat or give any instructions as to how it should be rowed or the course which should be taken, and the accident happened too quick to be averted by a warning.</p>

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

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

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

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

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

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

<p>1. Wills — .'Construction, oí — Former Action — -‘Destruction of Records —Judgment—Proof of — -Sufficiency of — 'Res Adjudicata. — In an action by several joint owners against the others to sell a tract of land on the ground of its indivisibility, where the widow of one of the former owners asserts title as the devisee of her husband, who acquired title from one of his brothers who died, and asks for a construction of the brother’s will, evidence examined and held to sustain the finding of the chancellor that in an action pending prior to the time the courthouse was burned, the question of the construction of the brother’s will was before the court, that her husband was a party to the action and that the court adjudged that her husband took only a defeasible fee in the property devised by the brother, and that this judgment was res judicata as to the questions involved.</p> <p>2. Dower — Husband and Wife — Defeasible Fee. — The wife is entitled to dower in land in which the husband has a defeasible fee.</p> <p>3. Husband and Wife — Devisee of the Husband — Dower—Election—■ Defeasible Fee. — The election of a wife to take under the will of her husband does not prevent her from asserting dower in land in which her husband had only a defeasible fee, and which he had no right to dispose of by will. '</p> <p>4. Defeasible Fee — Waste—Liability of Owner. — The owner of a defeasible fee is not liable for waste at common law, and even if he be liable for damages for equitable waste, a question not decided, he is not liable in the absence of evidence showing that in cutting the timber he was guilty of a wanton and unconscientious abuse of his rights, or of doing that which a prudent man would not do with his own property.</p>

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

<p>1. Policemen — Action Against Policeman for False Arrest — Arrest Without Warrant. — In this action for an alleged false arrest brought against a police officer and the sureties in his official bond, the defense presented by appellees’ answer being that appellant’s arrest was made by the officer for an offense committed in his presence, which, if true, authorized the arrest without a warrant: Held, That in the absence of a bill of exceptions containing the instructions ana evidence given and introduced on the trial, the appellate court will not disturb a verdict in favor of the officer and his sureties, if such verdict is supported by the pleadings.</p> <p>2. Policemen — When May Make Arrest Without a Warrant. — A policeman of the city of Louisville, like any other peace officer, can make an arrest without a warrant only, where a public offense is committed in his presence, or he has reasonable grounds for believing that the person arrested has been guilty of a felony.</p> <p>3. Policemen — Arrest by Without a Warrant — 'Provision of Statutes —Construction of. — A provision of section 2885, Kentucky Statutes, declaring that policemen of cities of the first class, “may with or without a warrant,” arrest persons guilty of offenses against the laws or ordinances of such cities, was not intended to, and does not, give further power to peace officers or vary from the general law, even if it could constitutionally be done.</p>

<p>1. Receivers — Management of Trust Estate. — A receiver must use ordinary care in administering his trust and is liable for rents he negligently fails to collect.</p> <p>2. Receiver — Management of Trust Funds — When Chargeable With Interest. — Where he mingles the trust funds with his own or uses them personally, he may be charged with interest.</p> <p>3. Receivers — When Will Not Be Allowed Compensation. — Where he is negligent or is guilty of misconduct, the court may in its discretion allow him no compensation for his services.</p>

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

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

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

<p>1. Limitation — Application of Payments — Right of Creditor.— Where a creditor holds several notes against a debtor and the debtor makes a general payment on the notes without directing its application to any of them, the creditor may apply it to any of the notes that are not barred by limitation, or distribute it as a credit on all of them, if none of them are barred, and thereby cut off the antecedent time on all of the notes to which the payment was applied as a credit.</p> <p>2. Limitation — Mutual Accounts — Rights of Creditor to Make Application of. — When the creditor owes a claim or demand to the debtor he cannot, without the consent or direction of the debtor, apply what he owes as a credit on the note or demand he holds against the debtor, and if he makes the application without the direction or consent of the debtor it will not interrupt the running of the statute of limitation. The debtor has the right to control the disposition that shall be made of his debt and to apply it as he pleases, and this privilege cannot be taken out of his hands by the mere act of another person.</p> <p>3. Payment — Application of Payment to Barred Note. — Where a debtor owes a creditor several notes and he makes a payment without directing its application to either of the notes, the creditor may apply it to whichever one he pleases, except that he may not apply it as a part payment of, or as a credit on a note that is barred by limitation. The presumption will be, if no direction is given by the debtor, that he intended the payment to be applied as a credit on subsisting, enforceable debts against him.</p> <p>4. Payment — Right of Debtor to Direct Application of. — The debtor has the exclusive right, in making a payment, to direct the particular debt, he desires it applied to, and this direction the creditor must observe.</p>

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

<p>1. Landlord and Tenant — Defective Premises — Injury to Tenant — ■ Evidence — Admissibility.—In an action for damages by tbe tenant against tbe landlord for injuries alleged to have resulted from defective premises, evidence of tbe statement of an employe of the landlord’s agent to tbe effect that a 'former tenant said to him “I told you someone was going to get hurt” is not admissible, but where such evidence is elicited on cross-examination by the defendant, without objection and exception, and without a motion to exclude same from the consideration of tbe jury, its admission is not ground for reversal.</p> <p>2. Landlord and Tenant — Defective Premises — Injury to Tenant-Action for Damages — Instruction.—In an action for damages against a landlord for personal injuries alleged to have been sustained by tbe tenant by reason of defective premises, an instruction authorizing a recovery if tbe landlord, at tbe time of renting tbe premises, bad “sucb notice as would cause a reasonable person to act upon it” of tbe defective condition of tbe premises, and with sucb notice, concealed sucb defective condition from the tenant, is erroneous, it being susceptible of the construction that it was tbe duty of tbe landlord to use ordinary care to inspect the premises.</p> <p>3. Landlord and Tenant — Defective Premises — Injury to Tenant— Action for Damages — Knowledge—Notice—Instruction.—While in an action for damages against tbe landlord for personal injuries alleged to have been received by tbe tenant by reason of defective premises, tbe landlord is not liable unless, at tbe time of tbe renting, be has knowledge of the defective condition and conceals it from the tenant, yet tbe knowledge of tbe landlord is not limited to sucb knowledge as be acquires by tbe use of bis senses alone. If tbe landlord or bis agent is notified that the premises are in a dangerous condition, and tbe notice thus received is sufficient, under all the circumstances, to apprise a person of ordinary prudence that tbe premises are in a dangerous condition, then sucb notice will be regarded as knowledge, and tbe court should so instruct tbe jury.</p> <p>4. Landlord and Tenant — Defective Premises — Injury to Tenant— Action for Damages — Knowledge—Notice—Instruction.—Where in an action for damages by a tenant against a landlord for personal injuries alleged to bave resulted from defective premises, there is evidence tending to show that tbe tenant knew of tbe defective condition, or could Rave discovered same by a reasonable inspection, it is error to authorize a recovery without submitting this phase of the case to the jury.</p>

<p>1. Pleading — Plea of Accord and Satisfaction — Sufficiency of Pleading. — In an action to recover a balance due upon a contract, the rejoinder of the defendant to the plaintiff’s reply being in effect but a restatement of the matter set out in the answer as amended, a surrejoinder was not necessary to complete the issue, the answer and reply perfecting the issue of accord and satisfaction set up in the answer,</p> <p>2. Contracts — Plea of Accord and Satisfaction — Bar.—Appellee upon receipt of a 'shipment of spokes from appellant sent the latter its check for a sum less than it had agreed to. pay. Appellant returned the check to appellee stating that he would not accept it, asking that the spokes be returned to him, or a check sent according to invoice, and enclosed check to cover the freight on the spokes if they were shipped to him. Appellee, thereupon, again sent the check to appellant, which he cashed and sued it for the balance of the contract price. Held, That the letter accompanying the check upon its return to appellant was not such as was calculated to apprise him of the fact that it was intended as a payment in full. The facts show the minds of the parties had not met, and the trial court erred in holding as a matter of law that the cashing of the check under the circumstances constituted a bar to the right of appellant to prosecute his claim for the balance due under the contract.</p> <p>3. Tender — Statement Accompanying Tender. — The tender of a sum less than the contract price, in settlement of a disputed claim, must be accompanied with a statement, not which may be understood by the creditor as intended to be in full settlement and satisfaction of the claim, but which must be so understood by him,</p>

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

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

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

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

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

<p>On Motion from McCreary Circuit Court to Reinstate Injunction.</p>

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

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

<p>1. Mines and Mining — When Coal Is Mined Over Boundary Line— Measure of Damages — Where coal is mined over the line honestly and in good faith from a mistake as to where the line runs, the reasonable royalty paid for coal is the measure of damages.</p> <p>2. Evidence — Introduction of Plot as Evidence — -When Not Competent. — A plot which is not shown to be correct is not competent as evidence, or sufficient to sustain a judgment.</p> <p>3. Appeal — Pleading Not Part of Record. — -An amended answer which is not made’ a part of the record by an order of the court or bill of exceptions, cannot he considered on appeal.</p>

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

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

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

<p>1. Escheat — Railroad Corporation — Section 192, Constitution.— Where the evidence shows a past and present proper and legitimate use of real estate for railroad purposes, or a reasonable necessity for its future use, it is error to escheat land of a railroad on the ground that it is held contrary to section 192 of the Constitution. In the absence of evidence showing a present legitimate use of such property or a reasonable necessity for its future use, a judgment of escheat should go.</p> <p>2. Escheat — Railroad Corporation — Section 192, Constitution. — Where a reasonable necessity for the future use of property is shown, the fact that the property in the meantime is rented to the owner of a lumber or coal yard, not only for the convenience of such owner, ■but to enable the company to handle the traffic more conveniently and at less expense, will not of itself authorize a judgment of escheat.</p> <p>3. Escheat — Railroad Company — Property 'Company — Ownership of Stock by Railroad — Action of Escheat — 'Subsequent Distribution of Stock Among Stockholders of Railroad Company — Effect on Action. — Where a railroad company organizes a property company to which it conveys certain real estate, and owns and holds practically all the stock of such company, it will be regarded as the real owner of the property thus conveyed to and held by the property company, and the subsequent distribution of the stock of the property company among the stockholders of the railroad company will not defeat an action of escheat brought prior to tbe time of such distribution.</p> <p>4. Escheat — Railroad Corporation — -Section 192, ¡Constitution — - Pleading. — In an action for escheat, it is not necessary in the petition to negative the idea of the reasonable necessity -for the future use of the property by the corporation. It is sufficient to describe the property and to allege that it had been held for a longer period than five years and was not proper or necessary ■ for carrying 'on the legitimate business of the corporation.</p>

<p>Electricity — Dangerous Instrument — Liability of Owner for Injury Thereby. — The owner of a dangerous instrument is not liable for an injury occasioned thereby, if it is located in a place that is not attractive and inviting to children and other persons and where they do not pass or congregate with the knowledge of the owner, or where it cannot be reasonably anticipated that they will pass or congregate.</p>

<p>1. ¡Legislative Act — Sufficiency of Title — Purpose of Act to Validate Contract — Employment of Attorney by Attorney General — Constitutional Provision. — Appellant was employed by tbe Attorney General to prosecute a suit in favor of tbe State against Bacon, a printing contractor, to recover a certain sum improperly collected by tbe contractor, and as a result of tbe litigation, judgment for $24,000.90 was recovered. At the 1912 session of tbe General Assembly in order to validate tbe contract it passed an act permitting appellant to sue tbe State for a fee of not exceeding $500.00 for tbe services performed. Held, the act throughout is dealing with the single subject of permitting appellant to get from the Commonwealth a fee to which he, in justice is entitled, and tbe mere fact that tbe act in addition to authorizing him to sue, went further and validated :an incomplete contract between him and tbe State, is not in violation of either tbe letter or spirit of section 51 of tbe 'Constitution; it is merely dealing with two aspects of tbe same general subject, namely, tbe authority to sue, and tbe validating of a contract which is an incident to tbe authority to sue.</p> <p>2. Legislative Act — Legalizing Invalid Act of Officer of Commonwealth — Constitutional Provision. — By the provisions of subsection 13 of section 59 of tbe Constitution tbe Legislature by express inference is given authority to validate as against the Commonwealth, the unauthorized on invalid acts of its officers or agents, and the act in question, tafeen and read as a whole, cannot be interpreted in any other way than to legalize tbe incomplete contract between appellant and the Attorney Gen-, eral.</p> <p>3. Legislative Act — Enforcement of Invalid Contract — (Permissible for Legislature Under the General Title to Deal With ¡Subject of Act in All Its Phases. — The enforcement of the invalid contract between appellant and the Commonwealth, was the sub-’ ject of the act, and it was permissible for the Legislature, under the general title, to deal with all phases of it.</p> <p>4. Legislative Act — Auditing Claim Against Commonwealth— Constitutional Provision. — The claim that the act undertakes to audit or ¡allow a private claim against the Commonwealth, which, is prohibited by section 58 of the Constitution, cannot be maintained; the purpose of the act was to permit appellant to sue the State and to validate an incomplete contract with the Attorney General, and it shows on its face that after the allowance of the claim hy the circuit court, the same was to be audited and a warrant issued by the Auditor.</p>

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

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

<p>1. Land — Unconditional Parol Gift — Adverse Holding — Permissive Holding. — Where there is an unconditional parol gift of a well defined body of land, accompanied by an actual possession for 15 years or over, with claim of ownership, such possession ripens into title, and the donor cannot recover the land. If, however, one enters upon land ‘by the owner’s permission, expecting that the owner will give it to him, then such possession is not a hostile holding.</p> <p>2. Land — Action to Quiet Title — Finding of Chancellor. — In an action to quiet title to a tract of land, based on adverse possession under an unconditional parol gift, evidence examined and held to sustain the finding of the chancellor that plaintiffs held the land by permission of the donor, and their holding was not adverse.</p>

<p>1. Wills — 'Contest—Evidence.—Where the evidence is conflicting on the subject of the capacity of a testator to make a -will, the verdict of the jury, finding that the paper offered for probate, is not his will, "will not he disturbed.</p> <p>2. Jurors — Waiver of Right to New Trial for Disqualification — Challenge. — If a party knows that a juror is disqualified, or knows from answers made by a juror examined touching his qualifications, that he can be disqualified by giving him information that the juror is, at the time, ignorant of, but that will certainly'be developed on the trial, and he fails to challenge the juror, or refrains from asking him questions that he knows will disqualify him, he will be estopped, after an adverse verdict, to obtain a new trial on the ground that the juror was disqualified to sit in the case.</p> <p>3. Wills — Contest—Evidence.—Where witnesses are examined fully as to their qualifications to give an opinion as to the soundness of mind of a testator and are permitted to say that, in their opinion, he was competent to make a will, it is not error to refuse to permit the witnesses to say whether, in their opinion, the testator was of sound or unsound mind.</p>

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

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

<p>1. Wills — Directing Sale of Real Estate — When Interest of Each Child Treated as Legacy in Money Payable from Proceeds of Real Estate. — If a will contain a direction to the executor to sell the real estate devised at the death of a life tenant and divide the proceeds equally among the testator’s children, the latter take a vested remainder in the estate devised. But the interest of each child will be treated as a legacy in money, payable from the proceeds of the real estate when sold following the death of the life tenant.</p> <p>2. Wills — Construction of — Where Land is Directed to be Sold and Turned Into Money — When Conversion Into Money Takes Place.— It is a well settled rule in the construction of wills that where land is directed to be sold and turned into money, courts of equity in dealing with the subject will consider it personalty, and, treat its conversion into money as having taken place immediately after the death of the testator.</p> <p>3. Wills. — The interest of a remainderman under such a will, being merely an interest in money, could not be subjected to an execution levy and sale in favor of a creditor of such remainderman, either before or after the death of the life tenant.</p>

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

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

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

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

<p>1. Contracts — Action Upon Contract for Sale of Engine — Failure to Comply With Promise to Deliver Engine — Pleading.—In an action by appellee to recover the contract price of an engine, sold and delivered appellant, and to recover in addition the freight charges, appellant by answer and counterclaim admitted its purchase of the engine and indebtedness therefor, as well as the freight charges, but alleged that the engine was purchased on March 2nd, 1911, with a definite understanding on the part of appellant that the engine should be delivered by appellee to appellant on board ears at Cincinnati, March 5th, 1911, for immediate transportation to appellant’s place of business in Whitley County, this state; but that appellee did not comply with its' promise to deliver, and did not in fact deliver the engine until March 20th; and that during the delay of fifteen days appellant could not carry on its business of manufacturing staves because of the absence of the engine, and bjr reason of deterioration in value of stave timber, loss to it of the value of use of the engine, and loss of certain profits which would have been made by use of the engine, and that it was damaged in the sum of $1096.50. The answer and counterclaim further pleaded that appellant was unable to carry on its business without the engine and was unable to procure another engine to take its place; that in response to its frequent requests of appellee to forward the engine it would promise to do so, but failed to comply with such promises until it had sustained a loss of fifteen days’ time from its business. Held, Taking as true the averments of the answer, which should be done in passing "upon the demurrer to it, it must be concluded that the time fixed for delivery of the engine was of the essence of the contract, and this being true, the delay of fifteen days in the delivery, unexplained by anything appearing in the record, constituted a breach of the contract on the part of appellee, which entitled appellant to recover such damages as may have directly resulted to it therefrom, and it, therefore, follows, that the lower court erred in sustaining the demurrer to the answer and counterclaim and in rendering judgment for the price of the engine and freight charges, and dismissing the counterclaim.</p> <p>2. Contracts — Circumstances Under Which Made — Damages Contemplated by Parties. — It is apparent from the averments of the answer and counterclaim that the special circumstances under which the contract was made were communicated by appellant to appellee at the time of the purchase of the engine, and that any delay in its delivery would result in a loss of profits to appellant, and this being true, it may well be said that the damages complained of were such as the parties reasonably contemplated would result- from its breach.</p>

<p>1. Pleading — Discretion of Court in Filing Pleading During Trial— Injury the Test in Such Cases. — The discretion of the trial court in filing pleadings during the trial is a broad one, and unless it has been abused, this court will not reverse upon that ground. If the defendant was not prejudiced by the ruling, the circuit, court did not abuse its discretion, since injury must be the test in such cases.</p> <p>2. Pleading — Filing Amended Rejoinder after Evidence Heard— When Not Ground for Continuance. — The ruling of the trial court in allowing an amended rejoinder to be filed after all the evidence had been heard, and traversing a plea of contributory negligence, was no ground for a continuance, where it did not appear that the ' defendant had been surprised or misled to its prejudice. ■</p> <p>3. Carriers — Ejecting Passenger Who Has No Ticket — Refusal To Pay Fare — Life Must Not Be Imperiled. — A carrier has the right to eject a passenger who has no ticket, and refuses to pay his fare; but this right must be exercised in such a manner as not to imperil the life of the passenger, or subject him to danger or bodily harm.</p> <p>4. Carriers Ejecting Passenger — Exercise of Ordinary Care — Physical Condition of Surroundings. — In exercising the right of ejection by a carrier, reasonable and ordinary care should be employed. In determining whether such care has been exercised, all the circumstances should be considered, such as the physical condition of the person ejected; th^ time, whether in daylight or late at night; the condition of the country, whether thickly or sparsely settled; the place of ejectment, whether near to or remote from dwellings of any character, including stations; and the character of the weather, whether pleasant or inclement.</p> <p>5. Verdict — Negligently Causing Death — When Verdict- Not Excessive. — A verdict for $9,000.00 for negligently causing the death of a healthy man, 32 years of age, and earning $50.00 a month, is not excessive.</p>

<p>1. Trusts — Creation of — No Certain Dorm Required iu — Parol Proof.— There is no certain form required in the creation of a trust. In the case of personal property or choses in action, trusts may be proved by parol. If the declaration be in writing, it is not essential, as a general rule, that it should be in any particular form; it may be eouehed in any language which is sufficiently expressive of the intention to create a trust.</p> <p>2. Trusts — What Raises a Trust — Any agreement or contract in writing, made by a person having the power of disposal over property, whereby such person agrees or directs that a particular parcel of property, or a certain fund shall be held or dealt with in a particular manner for the benefit of another, raises a trust, in a court of equity, in favor of such other person against the person making such agreement.</p> <p>3. Trusts — Creating Trust — When Will Not Be Treated as Invalid for Want of Consideration. — Where the author of a gift retains the legal dominion over the subject of the gift in himself, but fully and completely declares himself to be trustee of the property for the purposes indicated, he will be treated as a trustee, and the object of his bounty will be given the benefit of the trust. In all such cases the declaration of trust is considered in a court of equity as equivalent to an actual transfer of the legal interest in a court of law, and if the transaction by which the trust is created be complete it will not be treated as invalid for want of consideration.</p> <p>4. Trusts — Divestiture of Equitable Title. — A complete divestiture of equitable title may be produced by a clear and unambiguous declaration to that effect, although a further disposition of the legal title was still in contemplation.</p> <p>5. Trusts — Creation by Legislature of Library Association — Transfer of Books and Property to New Library — Termination of Trust by New Library at Will. — Where a Library Association, created by an act of the legislature for tbe purpose of furnishing a library to the people of a city, subsequently transferred all of its books and personal property, and the rents of its realty, to a public library, owned and controlled by the city, for a period of 99 years, the Old Library Association merely holding the legal title for the use and benefit of the New Library Association, the Old Library Association- thereby made itself a trustee of a dry or passive trust, which the New Library Association might terminate at will, by requiring a transfer to it of the legal title..</p> <p>6. Trusts — Continuation of — Termination.—A trust will not be continued merely that the trustee may continue to receive compensation from it. If the cestuis desire its termination it will not be maintained for the benefit of the trustee.</p> <p>7. Escheat — Property of Library Association — When Not Subject to Escheat. — Where the legal title to property is held by one library association in trust for the use and benefit of another library association, which took over the duties of the first association, and continued to use the property for library purposes, the property is not subject to escheat upon the ground that the first named library has ceased to use its property for library purposes, since the equitable title to the property is in the successor or active library association, which continues to use it for library purposes.</p>

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

<p>Witnesses — Credibility of — Inference of Jury from Circumstances— Intoxicating Liquors — Verdict.—The jury may infer from the circumstances that the defendant was directly or indirectly interested in the sale of whiskey in violation of the local option law, where Ms defense is that he procured it for another simply for accommodation, and the verdict of the jury refusing to credit Ms testimony will not be disturbed on appeal, as the credibility of the witnesses is for the jury.</p>

<p>1. Bills and Notes — Defense That Married Woman Was -Surety— Pleading. — The defense that a married woman was a surety in a note is not available unless pleaded.</p> <p>2. Bills and Notes — Liability of Married Women. — A married woman who borrows money is liable on the note given for it although she borrowed it for the use of another.</p> <p>3. Contracts — Suit on Written Contract — Insanity as Defense — Inquest. — When in a suit on a written contract the defense is made that one of the defendants was of unsound mind when it was executed, it is not necessary that the court should hold an inquest but the issue may be tried on the evidence taken in the ease.</p>

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

<p>1. Municipal Corporations — Legislature without Power to Create a City. — The legislature had no authority to create a city or' to convert a taxing district into a city of the fifth class, as it only has power to assign incorporated cities and towns to the class in which they belong.</p> <p>2. Constitutional Law — Delay Does not Affect Eight to Attack an Invalid Act Creating a Municipal Government. — A citizen and tax-payer of a city had the right more than two years after the city was organized to bring a suit attacking its creation as being in violation of the constitution.</p>

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

<p>1. Assignee — Eight of Foreign to Sue in this State. — A non-resident assignee of a non-resident assignor, who qualifies in another state, may bring an action in this state to recover assets due his assignor without executing a bond, if the foreign assignment is one that would be valid if made in this state and is not prejudicial to the rights of any creditor residing in this state.</p> <p>2. Vendor and Purchaser — Bight of Vendee to Becover for Deficit in Quantity of Land. — Where land is sold in gross and not by the acre, if the vendor represents that the boundary contains a designated number of acres and the vendee relies on the representations, and it develops that there is a deficit of more than ten per cent in. the quantity of land, the vendee may recover the value of the deficit.</p> <p>3. Vendor and Purchaser — Criterion of Beeovery for Deficit in Land. —In a suit by a vendee to recover for a deficit in the quantity of land sold, the criterion of recovery is the value of the deficit in the boundary, estimating the deficit at the price paid per acre for the boundary contracted for.</p> <p>4. Vendor and Purchaser — Bight of Vendor to Becover Interest. — In an action by a vendee to recover for a deficit in the quantity of land, he should have interest on the amount recovered from the date of the payment of the purchase money to the vendor.</p>

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

<p>1. Fraudulent Conveyances — Action to Subject Wife’s Property to Husband’s Debt — Limitation—Fraud.—In this action brought March 30, 1910 to subject to the payment of appellant’s husband’s debt, two lots, one conveyed to her October 1, 1894, the other April 21, 1902, upon the ground that they were deeded to her to defraud his creditors, the statute of limitations of five years barred the creditor’s right to attack or set aside the deeds on the ground of fraud.</p> <p>2. Fraudulent Conveyances — Action to Subject Wife’s Property to Husband’s Debt — Improvements—Liens—Erroneous Judgment. — As it was alleged and proved by the appellee creditor, however, that the husband within five years next before the institution of the action, in fraud of his creditors, made valuable and lasting improvements on one of the lots at his expense, the property, to the extent its value was thereby enhanced, would have authorized the judgment subjecting it to appellee’s .debt after satisfying other prior liens for which its sale had been adjudged, but for the fact that appellant’s husband owed her rent on the lot during the years of his use of it, and for money she had furnished him by giving a mortgage on the lot, an amount largely in excess of the enhanced value given it by the improvements erected thereon by the husband; in view of which the judgment subjecting the lot to the payment of appellee’s debt was error.</p> <p>3. Fraudulent Conveyances — Action to Subject Wife’s Property to Husband’s Debt — Weissinger Act — Failure of Creditor to Show Fraud. —As under the statute of 1894, known as the Weissinger Act, the wife has the same right to own property, make contracts and earn money as the husband, it is no longer necessary in an action by the husb'and’s creditor to subject to the latter’s debt property held in her name, for the wife to allege affirmatively that the property which stands in her name is her separate estate. The statute makes it so, all that the wife has to do is to deny the allegations of the fraud. If the creditor fail to show the fraud, he cannot subject her property to the husband’s debt.</p>

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

<p>1. Municipal Corporations — Streets—Defective or Dangerous Condition — Personal Injury — Action for - Damages — Res Ipsa Loquitur•— In an action for damages for personal injuries alleged to have resulted from dangerous and defective condition of the streets of a city, the doctrine of res ipsa loquitur does not apply.</p> <p>2. Municipal Corporations — Streets—Defective or Dangerous Condition — Personal Injury — Action for Damages — Peremptory Instruction. — In an action for damages against a city for personal injuries alleged to have resulted from the dangerous or defective condition of the streets, evidence examined and held insufficient to authorize a submission of the ease to the jury.</p>

<p>Appeal — Motion to Advance. — A case will not be advanced, though the parties consent, unless it involves a question of public interest, or irreparable injury will result from the delay, or the law gives the ease priority.</p>

<p>1. Land — Name of Person in Whom Assessed — Tax Sale — Purchaser at — Liens.—Land should he assessed in the name of the person owning the first freehold estate therein, and if it is assessed in the name of one holding it as his agent, a sale for the taxes will not give the purchaser title to the property hut only a lien on it . for the amount of his hid.</p> <p>2. Land' — -Tax Sale — Purchaser at — Title.—The purchaser at a tax sale acquires only the title of the person against whom the land was assessed, and where land is assessed in the name of the agent of the life tenant, the title of the remainderman is not affected by the sale.</p>

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

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

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

<p>Wills — Construction of. — The testator disposed of certain pieces of his property as follows: “I give and devise to my son, James S. Kalfus, for and during his life, and after his death in fee simple to his children or grandchildren if there should he any living at his death (but if there be none living at his death, the same Shall pass to his brother and sister and their children or their grandchildren, if there should be any living).” Held: The sister, at the time of her death, owned the fee simple in the property thus devised, as both of her brothers died before she did and left neither children nor grandchildren.</p>

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

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

<p>Wills — Construction of. — A testator in clause two of Ms will devised to Ms daughter, Sarah, the fee in sixty acres of líjnd, subject to the payment of a specified sum of money. In clause four he provided that i? Ms daughter, Sarah, should die without issue before her husband, the husband should have a life estate, and at his death the property should revert to the heirs of the testator.</p> <p>Held: that clauses two and four must be read together, and when sc read the intention of the testator was to'give Ms daughter the fee provided she did not die without issue before the death of her husband, and the daughter took the fee, subject to be defeated by this contingency,</p>

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

<p>1. Criminal Law — Trial—Admissions to Prevent Continuance— Effect of. — Statements, contained in an affidavit for continuance on account of absence of a witness, and admitted as the deposition of such witness, being incompetent as evidence, were properly refused to be permitted to be read to the jury.</p> <p>2. Forgery — Offense.—To constitute the offense .of uttering a forged check, the check must be a forgery and be also put into circulation.</p> <p>3. Forgery — Evidence—Weight and Sufficiency. — Evidence examined and held sufficient to support verdict of guilt of the charge of uttering a forged check.</p>

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

<p>I. . Contracts — Sale of Pumpkins — Refusal of Purchaser to Accept— Subsequent Sale to Purchaser — Estoppel.—Where plaintiffs sold to defendants ten carloads of pumpkins, six of which defendants received and paid for, and four of which defendants refused to accept and pay for, and plaintiffs then directed their agent at the place of delivery to sell the pumpkins upon the best terms he could get, and the defendants then purchased the pumpkins from such agent at a reduced price, plaintiffs are not estopped by such re-sale to assert a claim for damages growing out of defendants’ breach of the original contract.</p> <p>2. Contracts — Sale of Pumpkins — Breach—Action for Damages— Instruction. — Where defendants purchase ten carloads of pumpkins and receive and pay for the first six carloads, they are not entitled, on the ground that some of the pumpkins in the first six carloads were not sound and merchantable, to rescind the contract of sale and refuse to accept the remaining four carloads, if, as a matter of fact, the latter are sound and merchantable.</p> <p>3. Contracts — Breach—Action for Damages — Sufficiency of Evidence. —In an aetion for damages for a breach of contract for the purchase of pumpkins, evidence examined and held sufficient to sustain a finding by the jury in favor of plaintiff's.</p>

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

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

<p>1. Primary Elections — Canvassing and Certifying Beturns. — Although the statute under which the State primary election of July 1st, 1911, was held, does not in terms provide that the votes cast in such primary in each county shall be canvassed, and the result certified, by the county committee of the . party holding the primary, a fair interpretation of its provisions permits that meaning to be given it, where the duty of canvassing the votes, certifying the results and making proper returns thereof, to the State Central Committee is placed upon the county committee of each county by a resolution of the State Central Committee.</p> <p>2. Primary Elections — Indictment Charging .False Certification of Be-turns — Forgery—Defective Indictment. — An indictment which charged appellee with the crime of forgery by making, as chairman of the Democratic Committee of Scott County, a false and fraudulent tabulation and certification of the votes cast at the State primary election of July 1st, 1911, in the Turkeyfoot precinct of Scott County, was fatally defective because of its failure to allege that in performing the duty of canvassing and certifying the vote out of which the forgery grew, appellee acted in pursuance of a duty imposed and power conferred upon him by action of the Democratic State Central Committee. In view of the absence from the indictment of this essential allegation, the action of the circuit court in sustaining the demurrer filed by appellee to the indictment was not an error,</p>

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

<p>1. Husband and Wife — Action for Alimony — Cross Action tor Divorce —Evidence.—In an action for alimony by the wife and a cross-action by the husband for divorce, evidence examined and held sufficient to justify a finding in favor of the wife.</p> <p>2. Husband and Wife — Attachment—Claimant—Evidence.—In an action for alimony by the wife against the husband, where the property of the husband is attached and his brother claims the property by purchase from the husband, evidence examined and held insufficient to sustain’ his claim.</p> <p>3. Land — Purchase by Father for His Children — Deed—Delivery to Father — Sufficiency of Delivery. — Where a father purchases land from third parties, and takes the title to his children and puts them in possession, a delivery of the deed to the father is sufficient to vest title in the children, though the deed be not put to record.</p>

<p>1. Criminal Law — Trial—When Due Diligence' not Used. — The defendant having been held over at an examining trial on August 10 to answer in the circuit court, and having been indicted on September 13, when the case was set for trial on September 17, due diligence was not used when no subpoenas were taken nut until September 16 for witnesses living in another county.</p> <p>£. Judgment — When Judgment of Conviction Will not be Reversed.— A judgment, for conviction will not be reversed for an error not affecting the substantial rights of the defendant on the whole case.</p> <p>3. Witnesses — Exelusion of Witness’ Answer — When Judgment Will Not Be Reversed. — A witness having gone beyond the question that was asked him, and the court by its charge to the jury having practically excluded this part of the answer, a judgment of conviction will not be reversed for this cause as it must be assumed that the jury obeyed the instructions of the court.</p>

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

<p>Deeds — Conveyance by Husband and Wife of Wife’s Land to Third Person Who Conveyed to Husband — Intention as Shown by Instrument. — A husband and wife united in a deed conveying all of her interest in a tract of land to a third person, and he on the same day conveyed it to the husband, the purpose of the transaction j being to vest in the husband all the interest of the wife in the land. Held: That although the wife’s interest is described in the deed as one-fourth, when in fact she owned one-half of the land, the' husband takes her whole interest, the intention of the deed, as shown 'by the whole instrument, being to vest in the husband all the interest that the wife had.</p>

<p>Deeds — Construction—Conditions and Restrictions — Dee Simple. — la a deed conveying real estate, the use of which, was therein expressly - restricted to “school purposes,” such restriction where the grantor received full value therefor, was not induced, to make the conveyance in order that the property should be used for school purposes, and did not insert any provision for its reversion, upon cessation of use for that purpose, is a covenant merely and not a condition subsequent; and the deed vested the grantee with fee simple title to the property thereby conveyed.</p>

<p>Wills — Construction—Estates Created — Conversion Into Eee Simple.— Any limitation in a will, which, prevents the vesting of an estate, for a period beyond the life or lives in being, and twenty-one years and ten months thereafter, is in violation of the statute against perpetuities, inoperative and void; and has the effect to create a fee in the last person, who, under said statute, is authorized to take it.</p>

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

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

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

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

<p>1. Municipal Corporations — Street Construction — Ordinance Requiring —Dedication and Acceptance of Street — Action for Death Caused by Defective Street. — As Monon Avenue was opened and constructed by the Monon Eailroad Company as a street by virtue of an ordinance of the City of Louisville and as a condition of the Eailroad Company’s use of Fourteenth street, between Main and Market streets, for laying its tracks and operating its trains; and the city since its construction, has controlled it as a street and permitted it to be used as such by the public, it cannot escape liability for the death of a person caused by its negligence in failing to keep the street in a reasonably safe condition for the use of the travelling public, upon the ground that it had not been formally accepted as a street by it. The dedication and acceptance of the street were sufficiently shown by the ordinance requiring the railroad company to open and construct the street, and the city’s control of it since its construction.</p> <p>2. Municipal Corporations — Ordinance Eequiring Bepair of Street— Duty to Keep in Bepair. — The fact that the ordinance requires the Monon Eailroad Company to keep the street in repair, did not relieve the city of liability for an injury to a person resulting from the failure of the railroad company to do so. The obligation of the municipality to keep its streets in reasonably safe condition for public travel is imperative and a duty of which it cannot relieve itself, by attempting to shift the work of maintaining the streets upon another or others.</p> <p>3. Municipal Corporations — Defective Street — Action for Death of Person — Negligence.—If, as alleged in the petition and appellee’s evidence conduced to prove, her intestate, because of the defective and unsafe condition of Monon Avenue, was thrown to the ground from a wagon, loaded with a piano, and killed, appellant was liable in damages therefor, unless the intestate was at the time in charge of the removal of the piano and in control of the. wagon and driver, and his death was caused by the. negligence of the driver in permitting a wheel of the wagon to drop into a hole in Monon Avenue; in which event the negligence of the driver, being imputable to the intestate, would prevent a recovery.</p> <p>A Municipal Corporations — Evidence—Negligence—Question of Fact —Instruction.—As there was some evidence- tending to show that the intestate was in charge of the removal of the piano and in control of the wagon and driver; and also some evidence to show that his death was caused by the negligence of the driver, the trial court should have submitted these two questions of fact, with the other issues of fact in the case, to the decision of the jury; and upon another trial of the ease will do so under the additional instruction set out in the opinion.-</p>

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

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

<p>Contracts — Fraud—Evidence.—In an action by the widow of an intestate to invalidate on the ground of fraud a settlement made with her by the purchaser of the intestate’s real estate, and based on a contract between her and the intestate’s children, evidence examined, and held insufficient to sustain the charge of fraud.</p>

<p>1. Insurance, Life — Contracts—What Law Governs. — Where an application for life insurance, procured in this State by an agent of a foreign insurance company, was forwarded to the home office, and the policy issued thereon was returned to the agent for conditional delivery, the policy so delivered is a Kentucky contract and is governed by the laws of this State.</p> <p>2. Insurance, Life — Contracts—Definition of Terms. — As used in life insurance, “net value” of a policy is the “reserve,” or that part of the annual premiums, paid by the insured, which, according to the American experience table of mortality, must be set apart to meet or mature the company’s obligations to the insured, under the policy. “Dividend Additions” means paid-up insurance added to the original policy, and originated in the practice of issuing and appending to the original policy, a policy payable at death, for such an amount as the unused part of the dividend apportioned to the original policy would purchase, at a single premium.</p> <p>3. Insurance, Life — Construction.—Where a policy of insurance is susceptible of a dual construction, that construction most favorable to the inspred will be adopted. •</p> <p>•4. Insurance, Life — Settlement.—The settlement of life policies, on which the premiums are in default, must be in accordance with the terms of the statute regulating such policies, unless the policy itself provides for a settlement more favorable to the insured than the statute, in which event the rights of the parties are determined by the contract.</p> <p>5: Insurance, Life. — Where, by the terms of a life policy, upon the cessation of premium payments, the insured was entitled to extended insurance from date of default for such time as the excess of reserve; over the indebtedness of the insured, if any, to the company, would purchase, at the then age of the insured according to»'the company’s present published table of single premiums, the amount of such single premium cannot be augmented by any dividends, or by any part of the company’s surplus, -in the absence of any stipulation in the policy so providing, but is limited to the “reserve” less the indebtedness of the-insured to the company, if any; and, if not sufficient to carry the insurance beyond the date of the death of the insured, no recovery can be had -on the policy.</p>

<p>1. Intoxicating Liquors — Local Option Election — Petition for Election • — Sufficiency of. — A petition for the holding of a local option election, -within a city, is sufficient, if signed by a number of legal voters residing in said city, equal to twenty-five per cent of < the legal voters therein, as shown by the last preceding city election, without regard to whether the petitioners reside in one or more of the precincts of said city.</p> <p>2. Intoxicating Liquors — Local Option Election — Contest—Evidence.— Evidence examined and held insufficient to support the charge of such bribery, fraud, intimidation, force or violence as to invalidate the election.</p> <p>'3. Opinion — When Decisions on Questions of Law not Overruled in.— Decisions on questions of law cannot be overruled by loose expressions of the court, used in the eourse of opinions in later cases in which such questions were not considered, or before the court.</p>

<p>■Execution — Sale Under — Purchaser of Encumbered Property — When Action Must Be Brought to Enforce Lien Acquired. — The plaintiff in an execution having purchased at the execution sale, property incumbered by a mortgage, acquires only a lien on the property for hi3 I debt with interest at 10% until paid, and must bring an action to enforce his lien within five years, the liability being one created by statute, although the mortgage has not matured and is unsatisfied.</p>

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

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

<p>.Wills — Construction of — Intention of Testator — Character of Éstate Passed by Will. — A testator devised tbe land upon which he resided to his wife for life, and* directed that at her death it should be equally divided between his surviving children, and further provided that if any of the children should die previous to his wife’s death leaving issue of the body, then such child .or children should occupy the place of the deceased parent. Clause 3 directing that the remainder of his estate, after having provided for his wife, be divided equally among his five children, naming them, and clause 4 being but an amplification of clause 3. Held, that the fee in the dower was elearly intended to be divided equally among those of his children who were living when his wife died, the period when they were to come into possession and enjoyment of this part of the estate, and in an action for the construction of the will the chancellor erroneously adjudged that the children took under the will a defeasible fee.</p>

<p>1. Indictment — Error in Statement of Accusative Part — When Does not Render Defective. — The fact that the ofEense in the accusative part of the indictment is stated to be “getting money under false pretenses” instead of “obtaining money by false pretenses” according to the wording of the statute, does not render the indictment defective, the offense being properly set out in the descriptive part of the indictment.</p> <p>S. , Indictment — Words or Phrases — Horse—What Included in Word.— The word “horse” in an indictment' includes both the male and female.</p> <p>3. Witnesses — When Horseman May Testify As An Expert. — A horseman who is not a surgeon may testify as an expert that a mare is gill-flirted.</p> <p>-4. Indictment — Evidence Sufficient to Sustain. — Proof that the defendant obtained $75 in cash is sufficient to sustain an indictment that he received $75 in'lawful money.</p> <p>5. Indictments — False Pretenses — When Within Statute. — A false pretense made in a horse trade is within the statute, if the same false pretense, made in any other transaction, would be within it.</p>

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

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

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

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

<p>Constitutional Law — Issue of Bonds for the Building of Court House — * Submission of Question — Notice—Order of Fiscal Court for Execution and Sale of Bonds — Validity of Election — Creation of New Indebtedness. — Where the question of a bond issue for the building of a new court house was submitted, to-wit: “Are you in favor of an appropriation of $75,000.00 for the building of a new court house in Shelbyville, Shelby County, Kentucky,” and at the election two-thirds of those voting on the proposition voted in favor of it,, and there was a literal compliance with the provisions of the statutes, it must be assumed that the voters of Shelby County knew that they had not on hand in their treasury as much as $75,000.00, to be used for the erection of a court house, and that they, therefore, understood that they were in fact voting to create a new indebtedness. The submission, therefore, in the form presented will be treated as sufficient to’meet the requirements of section 157 of the Constitution, although it would have been much plainer and a more satisfactory compliance with the Constitutional provision if submitted in such form as to indicate more clearly to the voters that they were voting upon a question of creating a new indebtedness.</p>

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

<p>Appeal — Jurisdiction—Amount in Controversy. — Where in an action by plaintiff to enjoin defendant from preventing plaintiff from using a right of way to. a branch on defendant’s land, and to recover damages for being deprived of that right, the question of the right of way is settled by compromise, and there is a verdict and judgment in favor of the defendant on the question of damages, this court is without jurisdiction to entertain an appeal by plaintiff, where the • amount of damages asked is only $100.</p>

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

<p>Street Railroads — Action Against for Personal Injuries — Verdict—Evidence. — In an action against a street railway company for injuries to a passenger on its car resulting from the impact of tlie car with a telephone pole, tlie evidence showing that the life of appellee had been practically wrecked and tkat ske was converted from a strong, kealtky woman into a kelpless invalid, it cannot be said tkat tke verdict for $2,500, as compensation for ker injuries, is excessive.</p>

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

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

<p>Appeal — Jurisdiction—City of First Class — Fine of $25 — Section 347, Criminal Code — Section 2922, Kentucky Statutes. — From a judgmeat imposing a fine of $25 for a violation of an ordinance of 3 city of the first class, no appeal lies to this court.</p>

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

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

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

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

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

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

<p>1. Assessment of Property — Listing by County Board of Supervisors — Failure of Duty Upon Part of Does not Bender Assessment Invalid. — Under section 4128 of the Kentucky Statutes, any informality or irregularity upon the part of the County Board of Supervisors in the execution of their duties, and any failure of duty on their part, does not render an assessment invalid.</p> <p>2. Statutes — What Constitutes Mandatory Provision in — Directory Provision. — A mandatory provision in a statute is one, the omission to follow which renders the proceedings to which it relates illegal and void, while a directory provision is one, the observance of which is not necessary to the validity of the proceeding; and whether a particular statute is mandatory or directory, does not depend upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.</p> <p>3. Statutes — Construction of Section 4125, Ky. Stats., — Section 4125 of the Kentucky Statutes, which requires the County Board of Supervisors to keep a record of its proceedings, is directory, and not mandatory.</p> <p>4. Assessment of Property — Failure of Assessor to Assess Bank Property — Listing by Board of Supervisors — Action Final — When Question Cannot be Raised by Sheriff. — Where a bank failed to file with the County Assessor the detailed statement required to be filed by section 4092e of the Kentucky Statutes, and the Assessor failed to assess the property of the bank, and the County Board of Supervisors subsequently listed it for taxation, as property omitted by the Assessor, the action of the Board of Supervisors is final, and the question of its assessment cannot be again raised in a proceeding by the Sheriff under section 4241 to list it as omitted property, although the valuation fixed by the Board of Supervisors was less than the real value of the property listed.</p>

<p>1. Statutes — Construction ©f Statutes — Statutes Passed at Same Session of Legislature — Buie as to Construction of. — The rule that statutes in pari materia should be construed together, applies with peculiar force to statutes passed at the same session of the legislature; it is to be presumed that such acts are imbued with the same spirit, and actuated by the same policy, and they are to be construed together as if parts of the same act.</p> <p>2. Statutes — Statutes . Passed at Same Session of Legislature — ■ . How Construed. — Where two statutes are passed at the same session of the legislature, they should be so construed, if possible, as to harmonize; and force and effect should be given to the provisions of each; if, however, they are necessarily inconsistent, a statute which deals with the common subject-matter in a minute and particular way will prevail over one of a more general nature; and, of two inconsistent statutes enacted at the same session, that will prevail which takes effect at the later date, unless there is some other circumstance to show a contrary intention.</p> <p>3. Statutes — Conflicting Acts Passed at Same Session of Legislature — One Containing Emergency Clause. — .Where two conflicting acts upon the same subject-matter were passed at the same session of the legislature, and were approved on the same day by the Governor, and their conflict is such that they can not be harmonized and stand together, and one of them contains an emergency clause, and the other does not, the one containing the emergency clause must be taken to overcome the other.</p> <p>4. Statutes — Conflict of Acts — Pact of Emergency Clause — What It Tends to Show. — The fact of there being an emergency clause tends to show that the subject-matter of the act was more clearly and pointedly before the legislature than tne subject-matter of the other act.</p> <p>5. Constitutional Law — Section 179 Applies to Private Corporations.— Section 179 of the Constitution, which prohibits the general assembly from authorizing any city to appropriate money for any corporation, association or individual, except for the purpose of constructing or maintaining bridges, turnpike roads or gravel roads, applies to private corporations, and does not apply to public corporations, which are merely government institutions, created by law, for the administration of the public affairs ox the community.</p> <p>6. Corporations — Public Corporations Subject to Legislative Control— Control Loes not Arise in Contract — Property of not Subject to Taxation. — A public corporation is subject to legislative control, without any reference to the consent of the persons who control it; it does not originate in contract, while a private corporation does so originate, and the instrument creating a private corporation can not be altered or amended by the lawmaking power without the consent of the members who compose it, unless such power is expressly reserved. On the contrary, public corporations are mere creatures or instrumentalities of the State, and are subject to governmental visitations and control, and their property is not taxable, while that of a private corporation is taxable.</p> <p>7. Corporations — Public Library — Corporation Created for Management of is Public Corporation. — A corporation created under a general law for tbe management of a public library supported by taxation, is, in no sense, a private corporation; it is a public corporation existing at the will of the legislature.</p> <p>8. Constitutional Law — Appropriation of Part of School Fund for Library Purposes — Violative of Section 180 of Constitution. — A provision of a statute which appropriates for library purposes, three per centum of the net amount raised for common school purposes violates section 180 of the Constitution, which requires that every ordinance which levies a tax shall specify the purpose for which the tax is levied, and that it can not be used for any other purpose.</p> <p>9. Constitutional Law — Statute Requiring City Council to Annually Levy Special Tax for Support of Library — Violative of Section 157 of Constitution. — The provision of a statute which requires the general council of a city to annually and perpetually levy a special tax for the support of a public library, violates section 157 of the Constitution, which provides, among other things, that no city shall be authorized to become indebted, to an amount exceeding, in any year, the income and revenue provided for such' year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose.</p> <p>10. Constitutional Law — Public Library — City Council May Make Annual Appropriation for Support of. — Section 157 of the Constitution, does not, however, prohibit a city council from making an appropriation out of the annual revenues for the support of a publie library.</p>

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

<p>1. Billa of Lading — Delivery of is Symbolic Delivery of Property Itself. — The delivery of a bill-of-lading, like the delivery of a warehouse receipt, is a symbolic delivery of the property itself; it has the same effect as the delivery of the property, and a transfer of the bill-of-lading by the person in possession thereof, has the same effect and force as a transfer of the property by the same person.</p> <p>S. Bills of Lading — When Draft Attached Property Does not Pass Until Draft is Paid. — The general rule is, that where there is a consignment of goods to the seller, his agent, or order, and the bill-of-lading is forwarded to the seller’s.agent, with draft attached, to be delivered to the buyer on payment, the seller thereby manifests an intention to preserve his property in the goods, and the property does not pass until the draft is paid.</p> <p>3. Bills of Lading — When Tender of is not Necessary — Waiver- of Tender. — No tender of the bill-of-lading is necessary when the contract has been definitely repudiated by the buyer, as by a refusal to accept delivery if tendered, since such action upon the part of the buyer will be treated as a waiver of the required tender.</p> <p>4. Bills of Lading — Waiver of Tender of. — Where a buyer rejected goods consigned to the seller upon the ground that the goods y were not merchantable, he thereby waived a tender of the' bill* of-lading.</p>

<p>1. Streets — Dedication and Acceptance of — How Shown. — It ia not necessary that there should be a formal record of the dedication or acceptance of a public way by municipal authorities before it can be treated as a street. The dedication of land to public use as a street and its acceptance may be shown by the long continued use of it by the publie as a street, and by the acts of authority exercised over it by the municipality, evidencing the fact that it regards it as a street. Where it is shown that for many years a public way has been regularly patrolled by the police of the city as one of the streets of the city, and that the city granted an ordinance giving to a railway company the right of way over it, these evidences of authority and control on the part of the city sufficiently show its acceptance as a street.</p> <p>2. Railroads — Railroads Occupying Streets — Duty to the Traveling Public. — Railway companies that ¡have been privileged to lay tracks and run engines and trains in streets are obliged at all times of the day and night to anticipate the presence of travelers on the street and to take such precautions as may be reasonably sufficient to avoid injury to them. When it is established that the place at which an accident to a traveler occurred was in a street, there is no need to show the use by the public of the place at the time of the accident any more than at any other time, as the right to the use is the same at all times of the day and night.</p> <p>3. Railroads — "Plying” or "Running Switch” — Negligence to Make in Public Place. — The practice of making a "running” or "flying switch” has been uniformly condemned by the courts as a menace to human life and a reckless disregard of the rights of the traveling public, and when a railway company turns loose so dangerous an agency as a car in the night-time, not attached to an engine, at places where the public have the right to go, it takes the whole risk of any harm that may be done to one of the public by its reckless and negligent act, unless it may happen that the negligence of the injured party will excuse it.</p> <p>4. ' Eailroads — Lookout Duty — What is Sufficient. — The lookout that is contemplated by the law means a lookout that will enable the party keeping it to discover, in the exercise of reasonable care, the presence of persons on the track in time to give them warning of the danger and to prevent injury to them by the application of the brake or the other means at hand. A brakeman sitting on the top of the car at night cannot well discover persons on the track or give warning or resort to any means to save them, and consequently his presence is not a compliance with the lookout duty; nor does a lantern sitting on top of the car furnish sufficient light to warn persons about the track of the presence of the car or give notice of its movements.</p> <p>5. Eailroads — Railroad in Street — Care to be Exercised by Traveler.— A traveler in a public street must exercise ordinary care to look out for the approach of trains and to keep out of their way, but when he sees an engine pass, it is not lack of ordinary care to assume that it is not followed by a car running of its own momentum.</p> <p>6. Evidence — Eaet that a Person was Killed by a Train May be Shown by Circumstantial Evidence. — Where a person is found dead' by the side of a track and there is no eye-witness to tell how he was killed, the manner in which he came to his death, as well as the negligence of the company, may be established by circumstantial evidence.</p>

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

<p>Partnership — Action for Settlement — Appeal—Finding of Chancellor.— In an action for a settlement of a partnership, evidence as to certain items in dispute examined and held to sustain the finding of the chancellor. As to other items, evidence examined, and held in view of its conflicting character and of the fact that upon a consideration of the whole case the mind is left in doubt, and it cannot be said with any reasonable degree of certainty that the chancellor erred in his conclusions with respect thereto, hi» finding will not be disturbed.</p>

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

<p>1. Damages — Lowering Grade in Street — What Witness Should State in Such Action. — In an action by a property owner against the city to recover damages to his property from the lowering of the • grade of the street, a witness should not be asked how much the " property had been damaged by the lowering of the grade, but should be required to state what was the fair market value of the property just before and just after the grade was changed.</p> <p>2. Damages — Measure of Recovery. — In such a ease the measure of recovery is the difference, if any, caused by the grading of the street, between the fair market value of the property, just before it became known that the work would be done, and just after the work was done.</p> <p>S. Damages — Injury to Property from Lowering Grade of Street-Measure of Recovery. — It was incumbent on the plaintiff to exercise ordinary care to prevent injury to the property, and no recovery'may be had for a loss which might have been avoided by ordinary care; and if a part of the loss might have been avoided at a reasonable expense in adjusting the property to the changed conditions, the reasonable cost of so doing is. the measure of recovery for such loss.</p>

<p>Escheat — Railroad Corporation. — In view of the peculiar facts of this case, that part of the opinion escheating lot No.' 9, is withdrawn, and cause remanded with directions to permit parties to take additional proof with respeet to lot No. 9.</p>

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

<p>Estates — Identity of Claimants — Question of Identity — Relationship-Evidence. — The question of the identity of appellant, and his. relationship to the intestate, is one of fact and evi- ' denee examined and held that appellant established the relationship between himself and the intestate, as claimed in his pleadings, and the judgment against him is reversed with directions to so adjudge the relationship; but as there may be other heirs, at law of the intestate, before there is a final disposition of the case, the other heirs, if any, should be brought before the court. (See Burgess, et al. v. Walker, et al., 145 Ky., 559.)</p>

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

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

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

<p>1. Master, and Servant — Master’s Liability for Injuries to Servant— Methods of Work. — A railroad company is liable to its employe, who, while uncoupling a ear for the purpose of making a running switch, in the usual and customary way, was, as the result of a violent, unusual, and unnecessary jerk of the train, caused by the engineer in charge, thrown from the ear and injured.</p> <p>2. Appeal — Review—Verdict—Sufficiency of Evidence to Support.— Evidence of a violent, unusual, and unnecessary jerk, held sufficient to support verdict for plaintiff.</p> <p>3. Trial — Taking Case from Jury — Questions of Law or Fact. — Where a witness has made statements out of court, inconsistent with his testimony given on the trial, the credibility of the witness is for the jury.</p> <p>4. Negligence — Contributory Negligence of Servant — Operation of Railroads. — Where the equipment of ears was such that, under ordinary conditions, it was not necessary for the flagman to go between the ears to uncouple them, yet, if the conditions or circumstances are such as would probably make it necessary for him to go between the ears to uncouple them, the question of contributory negligence of the servant, in so doing, should be submitted to the jury under proper instructions.</p>

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

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

<p>1. Infants — Real Estate of — Sale of Remainder Interest for Repairs and Improvements not Allowed. — Where real estate was devised to the father for life, with remainder to his children, the court had no jurisdiction^ in a suit by a creditor of the father front whom money was borrowed to make repairs and improvements on the property, to order a sale of the remainder interest of the infants. All that could be subjected to the payment of the debt was the estate of the life tenant, and the fact that the life tenant, and also the trustee appointed by the will to take charge of the estate for the benefit of the life tenant and the remainderman, with authority to pay to the life tenant the income, executed a. mortgage to the creditor, did not enlarge his rights..</p> <p>2. Infants — Real Estate of — Sale or Mortgage of Under Section 498 of the Coder — Under section 498 of the code, the circuit court has jurisdiction to direct the trustee to sell or mortgage infants' laud, but in all such actions it must be averred and proved that such sale or mortgage would le beneficial, and the proceeds of the sale, if a sale is made, must be paid into court for re-investment, and the proceeds realized from a mortgage, if one is directed to be made, must be paid into court and appropriated by the court in the construction of permanent improvements.</p>

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

<p>1. Action — When Common Law Action Cannot Be United With Equitable Action. — A common law cause of action against part of the defendants cannot be united in the same petition with an equitable cause of action against all of them.</p> <p>2. Action — Refusal of Plaintiff to Elect.Which He Will Prosecute.— When the plaintiff refuses to elect which cause of action he will prosecute, the court may strike out one of them.</p> <p>3. Action — When Motion for Beeeiver Properly Overruled. — When the cause of action seeking the appointment of a receiver is stricken out, the motion for the appointment of a receiver is properly overruled.</p>

<p>‘Appeal from Adair Circuit Court.</p>

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

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

<p>1. Foreign Law — Action for Damages Controlled by Law of State where Accident Occurred. — The right to recover damages for personal injuries or for death, caused by the wrongful act of another in Tennessee, is controlled by the law of Tennessee.</p> <p>2. Action — Abatement of Under Tennessee Statute. — The right of action for personal injuries or death caused by the wrongful act of another in Tennessee, does not abate under the law of Tennessee by the death of the person injured, but passes to his widow, and in case there is no widow, to his children or to his personal representative for the benefit of his widow or next of kin, free from the claims of creditors.</p> <p>3. Action — Action for Injuries and Death May be Joined Under Tern nessee Statute. — Where a person’s death is caused by the wrongful act of another in Tennessee, and suit is brought for damages, as provided by the laws of Tennessee, the party shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased for the personal injuries, and also the damages resulting to the party for whose use and benefit the right of action survives from the death consequent upon the injuries received.</p> <p>A Joinder of Actions — Tennessee StatuLe. — Where a person was injured in Tennessee by the negligence of another, and he brought an action in Kentucky under the Tennessee law for personal injuries during his lifetime, and subsequently died, and the action was revived in the name of his administrator, it was proper to permit the widow to file her petition in said action, for damages for the death of her ^husband, and to recover jointly with the administrator a judgment for the personal injuries and the death of her husband.</p> <p>5. Negligence — Contributory Negligence Under Tennessee Laws.— Under the laws of Tennessee, remote contributory negligence on the plaintiff’s part will not bar his recovery of damages for per-, sonal injury, but will reduce his damages according to the amount of the contributory negligence; but, if both plaintiff and defendant are guilty of direct or proximate contributory negligence, the . negligence on the plaintiff’s part will bar his recovery.</p> <p>6. Evidence — Mortality Tables. — The mortality tables showing the. expectancy of life are admissible in evidence in actions to recover' damages for personal injuries, or for death, for the purpose of showing that the plaintiff’s capacity to earn money has been impaired or destroyed.</p> <p>7. Master and Servant. — Safe Place to Work. — The rule which makes it the duty of the employer to furnish its employee a safe place to work, is usually applied to a permanent place of work, and not-to such places as a room in a coal mine, which is constantly shifting and being transformed as the direct result of the employee’s labor.</p>

<p>1. Municipal Corporations — Obstruction in Street — Action for Personal Injuries Resulting Prom — Instructions.—In an action against a municipality and a property owner for injuries resulting from an obstruction in a street, tbe obstruction being in tbe nature of gravel placed on tbe sidewalk for repairs of a bouse pursuant to a permit from tbe city for tbe making of repairé, an instruction was not erroneous which advised the jury that appellee, Vogt, “bad a right to make sueb use as was reasonably necessary of tbe street or sidewalk for tbe purpose of placing material for such improvements of her property,” with tbe qualification, “but in doing so, it was her duty not to place tbe gravel so as to make tbe sidewalk not reasonably safe for pedestrians to travel.” Nor was it error to submit tO' tbe jury whether the gravel was so placed on tbe sidewalk and allowed to remain there, as to make tbe street unsafe for pedestrians, where all the- material facts, including the size,' location and shape of the gravel pile, and the question whether it was lighted at all, ■were all in issue in the pleadings, and the evidence as to each of them in conflict.</p> <p>2. Municipal Corporations — Obstruction, in Street — Action for Personal Injuries Resulting From — Instructions—Warning of Obstruction. — The sufficiency of the warning in the particular case is left to the jury, and at all times it must be sufficient to warn the public of the dangerous obstruction, by whatever means may be required. The instruction complained of properly required all necessary means to be used.</p> <p>3. Streets — Obstruction of — Introduction of Ordinance and Permit.— There is no reason why appellee, Vogt, who was charged with placing and permitting to remain on. the street a dangerous obstruction should not be permitted to justify her use of a part of the street by the introduction of the ordinance and permit.</p>