Volume 152 — Kentucky Reports

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

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

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

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

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

<p>Appeal from Letcher Cir-cnit Court.</p>

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

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

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

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

<p>1. Deeds — Delivery of- — Intention tbe Buie. — Tbe question of tbe delivery of a deed is generally one of intention of tbe parties, and it is essential to a valid delivery that there should be some act or declaration from which an intention to deliver may be inferred. Neither express words, formal delivery, nor a manual delivery of the instrument to the grantee is required, it being sufficient, if it is apparent either from the words or acts of the grantor, that it was his intention to treat the deed as his, and to make a delivery of the same.</p> <p>2. Deeds — Recording Prima Facie Evidence of Delivery and Acceptance. — -The recording of a deed is prima facie evidence of delivery to, and acceptance by, the grantee, and may, when coupled with other circumstances showing the intention to deliver the instrument to him, operate as an absolute delivery.</p> <p>3. Deeds — Recording Without Knowledge of Grantee Not Operative as a Delivery. — The fact that a person has executed and recorded a deed, where it is done without the knowledge or assent of the grantee, will not, of itself, operate as a delivery to the latter; ‘nor will the mere delivery of such an instrument, for the purpose of having it recorded, if done without the knowledge of the grantee, constitute a delivery to him.</p> <p>4. Deeds — Acceptance of. — The acceptance of a deed need not be by formal or express words to that effect, but may be by acts, couduet, or words of the parties showing an intention to accept.</p> <p>5. Deeds — When Delivery Implies Acceptance. — The delivery of a deed implies its acceptance by the grantee, in the absence of fraud, artifice, or imposition.</p> <p>6. Deeds — Presumption of Acceptance. — Where the grantor has executed a deed, by signing it, completely acknowledging it, and causing it to bo lodged for record, and recorded in- the proper office, a prima facie case of delivery is made, but such acts raise no presumption of an acceptance by the grantee, unless a clearly beneficial interest is conferred.</p>

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

<p>1. Damages — Punitive Damages — Punitive damages in a case of personal injury are not authorized unless there is some evidence tending to show that defendant acted maliciously, wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others.</p> <p>2. Damages — Personal Injury — Street Railway Companies — Punitive Damages — Instruction.—In an action for damages for personal injuries caused by a street-car coming in contact with the plaintiff’s wagon, evidence to the effect that the night was dark and the motorman could not see very far ahead, that just prior to the accident he was looking towards the rear, and that the car was Tunning “pretty fast" or “at almost full speed" is not sufficient to warrant a punitive damage instruction.</p>

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

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

<p>1. Homicide — Evidence—Sufficiency.—On a trial for homicide, evidence examined and held sufficient to justify a verdict of murder.</p> <p>2. Homicide — Courts—(Jurisdiction.—Where the deceased is shot in one county, the court of that county has jurisdiction of the offense, it matters not where he may have died.</p> <p>3. Homicide — Death Within a Year and a Day — Evidence—Sufficiency. — Where appellant was indicted for murder on May 2, 1912, and tried during the month ef October, 1912, and there was evidence to the effect that the shooting took place “in last April past,” and that the coroner held an inquest over the body of the deceased before the trial and gave as his opinion that he died from a gunshot wound, the evidence was sufficient to show that deceased died within a year and a day from the time he was shot.</p>

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

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

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

<p>1. 'Deeds — Construction of. — Where a deed describes the land conveyed by the grantors therein as: “All their part and interest in a certain tract of land in Pike County lying just below the mouth of Shelby Creek; it being the farm owned by Jackson Ford at the time of his death. This conveyance is to convey all our interest in said farm as heirs at law of Jackson Ford, deceased,” the instrument must be understood as conveying all the interest of the grantors in the farm owned by Jackson Ford at the time of his death, although the farm consisted of two adjoining patents of fifty acres each; one lying a few hundred yards and the other a quarter of a mile from the mouth of the creek.</p> <p>2. Deeds — Description of Land. — The words, “lying just below the mouth of Shelby Creek,” constituting in part the description of the land contained in the deed, do not limit the conveyance to the fifty-acre tract of the Jackson Ford farm lying nearest to the mouth of Shelby Creek, but also includes the remoter fifty-acre . adjoining tract, which, with the one nearer the mouth of Shelby Creek, composed the one and only “farm owned by .Jackson Ford at the time of his death.”</p> <p>3. Deeds — Locating Surveys — identity of — Buie.—Lands are frequently described, particularly in the older patents and deeds of this State, as lying or situated upon water courses, or north, south, east or west thereof, which are only in the vicinity of such water courses and, in many instances, several miles therefrom. So, it is sufficient in locating surveys so described, to identify them as situated in proximity to or in the neighborhood of the stream named. The rule is, of eoures, otherwise, where the survey is described as beginning on, calling for or running with the stream, as in that case the location of the survey must be determined by that of the stream.</p> <p>4. Deeds — Claimant of Land Under Unrecorded Deed. — A claimant of land cannot acquire title under a recorded deed as against others asserting title thereto under an older unrecorded deed, where such claimant at the time of obtaining his deed had notice of fha existence of the prior unrecorded deed, or the grantees in thei unrecorded deed were then in the actual possession of and claiming to own the land; their right thereto in the latter event being protected by the statute of champerty.</p> <p>5. -Land — Action Involving Title. — In this action involving the title to a part of the Jackson Ford farm appellees were properly adjudged to be the owners of the land, (1) because of the superiority of their title over that of appellant; (2) because of their actual adverse possession of the land for more than fifteen years, prior to the execution of the deeds under which appellant claims title, and also prior to the institution of the action.</p>

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

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

<p>Taxation — Spoliation.—The rule in regard to spoliation is, that it is only where the cost o£ the improvement equals the value of the property sought to be taxed, that the enforcement of the lien for the improvement amounts to spoliation. If the cost of the improvement does not equal the value of the property sought to be taxed, the court will uphold the assessment, and enforce its collection.</p>

<p>1. Homicide — Indictment for Murder — Instructions—Where Refusal to Give Self Defense Instruction Not Error — Evidence.—Upon the trial of appellant, jointly indicted with Martin and Wade, charged with the murder of deceased, there being no evidence that deceased at the time of the assault upon him attempted to use any violence, or that he had a weapon of any kind, or assumed any menacing attitude, and the denial of appellant that he had any part in the difficulty, or that deceased struck him or attempted to, precludes the idea of self-defense, and the lower court properly refused the instruction upon it.</p> <p>2. Homicide Refusal to Give Self Defense Instruction — Introduction of Affidavit for Continuance Filed at Previous Term. — As to the contention that *the affidavit offered in evidence by the Commonwealth filed for a continuance by appellant at a previous term of the court, required the giving of an instruction upon self defense, it is sufficient to say there was no exception by appellant to its introduction, it was only introduced for the purpose of contradiction, and under the express direction of the court could be considered for no other purpose.</p> <p>3. Homicide — Motion for New Trial — Alleged Newly Discovered Evidence. — There being no contention that the paper alleged to have been signed by deceased contained anything different in substance from what was testified to by appellant’s two witnesses, its introduction was properly refused. It could have had no different effect from the testimony of the two witnesses, and for that reason was not newly discovered evidence, but would have been merely cumulative.</p> <p>4. Argument of Counsel — Objection to — When Bill of Exceptions does ' not Contain Language Used. — There is no merit in the contention that the Commonwealth’s Attorney made improper use of defendant’s affidavit for continuance, for the bill of exceptions does not show what language he used, or in what way he used the affidavit, or that objection was made at the time, or that the lower court had its attention called to it, or was given an opportunity to pass upon the alleged conduct of the Commonwealth’s Attorney.</p> <p>5. Trial — Motion to Discharge Jury — Review—Code Provision. — In response to the contention that the trial court erred in overruling the motion to discharge the jury, it is sufficient to say that under the provisions of Section 281, Criminal Code, even since the amendment of 1910, this court is without power to review rulings of the lower court upon such motions.</p> <p>6. Homicide — Excitement in Community — Absence of Controlling Effect of Upon Jury. — While there was a good deal of excitement in the neighborhood where the homicide occurred,' at the time, th« fact that it occurred in October, and appellant was not tried until the following May, it is improbable that the excitement could have had any controlling or unusual effect upon the verdict of the jury.</p>

<p>Homicide — Aiding and Abetting in Homicide — Evidence—Sufficiency of — (See Lawson v. Commonwealth, this day decided). — Upon tbe trial of appellant who «was jointly indicted with Thomas Lawson for the murder of deceased, the evidence shows that appellant was conveniently near to aid Lawson in Ms expressed purpose to ‘ ‘ get ’ ’ deceased and that be and Laws on were acting in concert. His own evidence establishes Ms guilt, ’and was sufficient to sustain tbe verdict against Mm.</p>

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

<p>1. Criminal Law — Appeal—Indictment—Section 120, Criminal Code — Section 281, Criminal Code. — Under Section 281, Criminal Code, tbe failure of the trial court to set aside .an indictment on the ground that it did not contain the names of the witnesses who testified before the grand jury, as provided by Section 120, Criminal Code, is not subject to exceptions and cannot be reviewed on appeal.</p> <p>2. Appeal — Former Opinion — Conelusiveness.—The rule that the decision on a former appeal is the law of the ease and binds not only the trial court but the Court of Appeals applies not only to civil but to criminal eases as well.</p>

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

<p>1. Statutes — Construction of. — Statutes, highly penal in their nature, must be strictly construed.</p> <p>2. Conspiracy — Civil Liability — Actions—Evidence.—Evidence held to fail to establish a conspiracy by defendant, with others, either unlawfully to detain plaintiff or to cause disobedience to writ of habeas corpus issued on application of plaintiff.</p> <p>3. Habeas Corpus — Jurisdiction.—A writ of babeas corpus cannot lawfully be directed to a police judge, who has not the actual custody of, or is restraining, the person in whose behalf application for the writ is made. Such officer, for disobedience to the writ, is not subject to the penalty imposed by section 409, Criminal Code of Practice.</p> <p>4. Judgment — Causes of Action Barred — Identity of Cause of Action.— An action for the statutory penalty, imposed for disobedience to a writ .of babeas corpus, wbicb writ is, in fact, but a copy of an original writ, is barred by an action, between tbe same parties, for a penalty, for alleged disobedience to said original writ.</p>

<p>Homestead — Exemption in Proceeds of Indivisible Property — Reasonable Time to Assert Claim to — Property Received by Gift or Devise. — A debtor, who is entitled to a homestead, and who has received by gift or devise indivisible property, may assert, as against a creditor, his right to an exemption in the proceeds of the property when it is sold. In such a state of ease the debtor has a reasonable time in which to assert his homestead exemption in the fund and may wait until after the creditor has sought to subject it.</p>

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

<p>2. Bills of Lading — Transfer of — Bights of Transferee. — The transfer of a bill of lading is nothing more or less than a constructive delivery to the transferee of the goods mentioned in it. The transferee, with the bill of lading in his possession, has, in the eyes of the law, the possession of the goods until they are delivered to the consignee, but he is not to be made responsible for any violation of the contract between the buyer and the seller, or for any failure of the carrier to discharge its duty.</p> <p>2. Bills of Lading — Transfer of to Secure Draft — Bights of Transferee. — The transfer of a bill of lading attached to a draft that has been discounted, with the bill of lading as collateral security, does not make tke transferee either a guarantor or a warrantor of the quality or quantity of the goods, or impose on him the duty of undertaking that they will be delivered in good order. If they do not come up to the contract, the buyer must look to the seller for compensation or recoupment, and if they are damaged in transit by the fault of the carrier, he must look to the earlier for indemnity.</p> <p>A Bills of Lading — Bight of Consignee Who Pays Draft with Bill of Lading Attached, to Damages for Breach of Contract. — In paying the draft and taking possession of the goods the right of the buyer to enforce compliance of his contract by the party with whom the contract was made is unimpaired, and to the party with whom the contract was made he must look for damages for its breach. He cannot attach the money he has paid for the draft, or sue the owner of the draft for damages for a breach of the contract, although the goods are not of the character or quality for which he contracted.</p>

<p>1. Contracts — Ordinary Services by 'Member of Family — Presumption — Extraordinary Menial 'Services ¿Covering Period of Years.— While for ordinary personal services or for extraordinary services rendered in an emergency and for a brief period of time by a daughter-in-law' to her father-in-law, who lives with her and her husband, an express contract to pay must be shown by stricter proof than in other cases, yet for extraordinary and menial services in waiting on an intestate who was unable to control his bowels and who suffered from syphilitic gangrene, for a period of several years, where it was impossible to get anyone else to render the service, the rule requiring stricter proof of an express contract does not apply.</p> <p>2. Contracts — Extraordinary and Menial Services by Daughter-in-law —Evidence—Sufficiency.—In an action by a daughter-in-law to recover for extraordinary and menial services rendered to her father-in-law, evidence examined and held sufficient to sustain a verdict in her favor.</p> <p>3. Contracts — Extraordinary and Menial Services by Daughter-in-law — When Verdict for $3,600 Not Excessive. — In this action by a-daughter-in-law against the estate of her father-in-law to recover for extraordinary and menial services rendered to her father-in-law during a period of five years, evidence examined, and held" that a verdict of $3,600 was not excessive.</p>

<p>1. Statutes — Construction of. — In construing.statutes, technical definition of words, used therein, will be rejected, if such definition tends to defeat, rather than effectuate the legislative purpose.</p> <p>2. Materialmen’s Lien — Liens of Laborers and Materialmen on Bail-roads — Section 2492, Ky. Stats. — Construction of (See 150 Ky., 557, for original opinion). — Under section 2492, Kentucky Statutes, any man, who under contract, either express or implied, labors for or furnishes material, supplies or teams, to any suboontraetoi engaged in the construction or improvement of any canal, railroad, turnpike or other public improvement in this Commonwealth, is entitled to the benefit of the lien provided in said section, and it is immaterial, whether such subcontractor took his contract from the original employer, original contractor, or a subcontractor under him.</p>

<p>BfJJe and Notes — Endorser May Be Sued Jointly With Maker — Jurisdiction. — The endorser of a note may be sued jointly with the maker, and if the endorser is served in the county where the suit is brought the court has jurisdiction although the maker resides in another county, and is served there, and the endbrser went to the county where the suit was brought for the purpose of the process being served on him there pursuant to an agreement with the plaintiff that he would do so.</p>

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

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

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

<p>Eailroads — Action for Damages Because of Ejectment from Train— Pass to Skipper of Stock — Custom—Pleading.—It appears there is a custom which permits the owner under some shipping contracts to accompany his stock, but appellee :s allegation in his petition that under the law he had a right to a pass was a pure conclusion, and he having failed to set up any custom giving him the right, or the nature of the contract under which he claimed the right, the demurrer to his petition in his action for damages for his ejectment from the train should have been sustained. Had the petition been good, under the provisions of section 131, Civil Code, its allegations were so variant from the facts shown in evidence, as that there .was a total failure of proof.</p>

<p>1. Land — Action Under Section 499, Civil Code, for Division of Land —Pleading.—In an action nnder section 499 of the Civil Code for a division or partition of land field jointly, while the petition is uncertain as to the relief desired, as amended it contains all the material allegations necessary to a partition, and is a substantial compliance with the provision of the Code.</p> <p>S. Land — Action for Division of Land — Description—Pleading—Exhibits. — While it would have been much better for the plaintiff to have described the land in the body of his pleadings, the description contained in the deeds filed with his pleadings will be regarded as sufficient.</p>

<p>3. Railroads — Crossiug—.Personal Injuries — Action for Damages— Contributory Negligence. — In an action for damages for personal injuries, evidence considered and held that the question of contributory negligence was for the jury.</p> <p>2. Railroads — Crossing—Personal Injuries — Action for Damages— Instructions. — Where in an action for personal injuries at a crossing the court told th'e jury that if the crossing was especially dangerous it was incumbent upon plaintiff to exercise increased cafe, commensurate with the danger, the instruction was not erroneous in that the jury were not told that if the danger of going over the crossing that day was more than ordinarily increased, greater care was required of the plaintiff; for in determining whether or not plaintiff exercised proper care for her own safety, the jury had the right to take into consideration the circumstances and conditions surrounding plaintiff.</p> <p>3. Railroads — Crossing—Personal Injuries — Action for Damages — Instructions. — Where in an action for damages for personal injuries at a crossing, the instructions imposed upon the railroad the duty of giving reasonable warning signals of the approach of the train, the instruction was not erroneous in failing to fix the place at which the signals should be given.</p> <p>4. Railroads — Crossing—Personal Injuries — Action for Damages — Instructions — Measure of Damages. — An instruction on the measure of damages allowing a recovery for physical pain and suffering eaused by “plaintiff’s miscarriage and premature birth of said son,” is not misleading on the ground that it separates one injury into two elements of damage and authorizes a recovery for both, since every man of common sense knows that a miscarriage and the premature birth of a son are practically one and the sama ¡</p> <p>5. Bailroads — Crossing—Personal Injuries — Action for Damages— Misconduct of Counsel. — In an action for damages for personal injury, misconduct of counsel examined and held not to be prejudicial error.</p> <p>6. Bailroads — Crossing—Personal Injuries — Action for Damages— Verdict: — Excessive.—In an action for damages for personal injury, evidence considered and a verdict of $3,000 held not excessive.</p>

<p>Municipal Corporatious — Telephone Companies — Injury to One from Falling Over Guy Wire — Duty of Telephone Company to Exercise Qrdinary Care — Instructions.—If the property owner leaves a space outside of his enclosure for a sidewalk, and the space so left is in fact so used as a public sidewalk that it was by such use practically a part of the highway, it was ineumbent on the telephone company in stretching a guy wire between the sidewalk and the carriage way, to use ordinary care that the way should be reasonably safe for the public use.</p>

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

<p>>1. Insurance, Life — Non-payment of Premiums — Lapsing of Policy-Note for Previous Premiums. — Tbe fact that the company treated as a subsisting obligation a note given for a previous premium, did not prevent the policy from lapsing upon the non-payment ef a subsequent premium, the policy so providing.</p> <p>®. Insurance, Life — Non-forfeiture Clause — Extended Insurance — Eule as to. — Under a non-forfeiture clause provided for extended insurance if there is no indebtedness to the company, the indebtedness must be deducted from the surrender value, and if the indebtedness to the company is equal in amount to the surrender value, there is nothing to apply to extended insurance;' and this rule applies although the indebtedness may not be secured by a lien on the policy.</p> <p>3. Insurance, Life — Surplus—Pleading.—An averment that under the laws of Kentucky there was a sufficient surplus to have carried the policy beyond the death of the insured, is a statement merely of a conclusion of law.</p> <p>4. Insurance, Life — JPaid-up Insurance Provided for by Statute.— Under the statute of Kentucky paid-up insurance, not extended insurance is provided for, and the amount to be applied for this purpose must be not less than two-thirds of the reserve on the original policy.</p> <p>5. Insurance, Life — tíollection of Earned Premium. — An insurance company may collect an earned premium without waiving the forfeiture of the policy, on account of the non-payment of a subsequent premium.</p>

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

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

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

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

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

<p>Costs — On Appeal — Unnecessary Matter in Eeeord. — Where a party successful on appeal, caused the elerk of the lower court, by failure to give him specific directions, to copy into the transcript depositions, which were immaterial to the issue on appeal, the costs incurred by their being made a part of the record must be borne by said party.</p>

<p>1. Judgment — Motion to Set Aside and File Answer. — When judgment Will Not be Disturbed. — When .judgment by default haa been entered and a motion is made to set aside tbe judgment and file an answer, no reason appearing wby tbe answer was not filed in time and tbe proof being conflicting on tbe merits, tbe judgment of tbe circuit court will not be disturbed, an abuse of discretion not appearing.</p> <p>2. Appeal — Answer Tendered Cannot be Considered On Appeal Unless part of Record. — An answer wbieb is tendered and refused to be filed cannot be considered on appeal, unless it is made part of the record by order of court or bill of exceptions.</p> <p>3. Judgment — When Improper to Enter Second Judgment — Clerical Misprision. — Where a judgment has been entered, it is improper to enter a second judgment against tbe defendant; but tbe entry of tbe second judgment is a clerical misprision which may be corrected in tbe circuit court by motion on reasonable notice.</p>

<p>1. Wills — Reasons of Testator for Unequal Distribution — What Contestees May Show. — A testator having set out in his will the reasons which actuated him for making an unequal distribution of his property between his children, the contestees of the will may show that the facts so recited were true, it being always allowable to place the jury in the light of the circumstances of the testator when he made the will.</p> <p>3. Instructions — Not duty of Court to Give Whole Daw in Civil Case. —In a civil case it is not the duty of the court to give the whole law of the ease and a party cannot complain that an additional instruction was not given, if he did not ask it on the trial.</p> <p>3. Wills — Undue Influence — Jury Should Find Against any Clause if Obtained by — Instruction.—The jury may be instructed that they should find against any clause of the will if it was obtained by undue influence, but the failure to give such an instruction is not prejudicial where the attack is made on the will as a whole.</p>

<p>1, Municipal Corporations — Construction of Sewers by Third Class City — Health and Property- Eights. — A city of the third class has authority to adopt and construct a system of sewers, but it cannot in doing so produce conditions that are injurious to the health or property rights of persons residing in or contiguous to the city.</p> <p>2. Municipal Corporations — Drainage—City not Liable for Damages from Natural Drainage — Liable for Damages Caused by Pollution of Stream. — The city is not liable in damages to the owners or occupants of lands lying upon or contiguous to a creek, within or near its corporate limits, for the emptying therein of surface waters which flow through natural drains or courses from the city’s territory. But is liable in damages for the drainage into the creek from sewers of the city of human excrement and other filth which pollute the waters of the creek to such an extent as to render them unfit for stock water and so poison the surrounding atmosphere as to endanger the health of residents on and adjacent to the stream or interfere with the reasonable use of their homes. In such ease the measure of damages is the diminution in the value of the use of their homes and of the waters of the creek as stock water, during the continuance of the pollution of the stream.</p>

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

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

<p>Minerals — Action to Be Adjudged Owner of — Bights of Way Over Surface — Title—Evidence-—Sufficiency of. — In an action by appellant praying to be adjudged the owner of the minerals in certain described land and for reasonablé rights of way over the surface, it being manifest from the language of the deeds that she was invested with title to all the minerals, the lower court erroneously adjudged appellee entitled to them. The evidence shows that the minerals were embraced in the conveyances from the time of the execution of title bond from Bice to Bingham, in 1860, down to the conveyance to appellant and she is entitled to be adjudged such owner and for such rights of way over the surface as may be necessary for their removal.</p>

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

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

<p>1. Wills — Construction of. — Tbe testatrix by the fourth clause of her will, devised certain land to the five daughters of K; by the eighth clause she devised certain other land to the son of K, and the remainder of her land equally to the six children of K; by the ninth clause she devised all the residue of the estate of every kind to the six children of K; by the tenth clause she directed that all the property which the six children of K take under the provisions of the will, shall be invested in real estate and held under certain trusts. Held: That the tenth clause refers only to the personalty which was in the hands of the executors, and not to the land which had been specifically devised.</p> <p>S. Wills — Construction of — The Law Favors Vesting of Estates. — * The law favors the vesting of estates, and that construction will bó adopted in a ease of doubt under which the estate vests. C. W. NESBITT, for appellant.</p>

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

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

<p>1. Specific Performance — Nature and Grounds of Belief — Inadequacy of Bemedy at Law — Injunction—Contracts.—A court of equity has jurisdiction to enjoin a breach, and thus indirectly compel specific performance, of a contract, notwithstanding a covenant therein to pay liquidated damages upon its breach, if, from the contract and the circumstances surrounding its execution, it appears that the performance of the contract was intended and not to give to the covenantor the option either to perform or to pay the stipulated damages, and also that the remedy at law is inadequate.</p> <p>8. Contracts — Construction—Pooling Contract. — The purpose of a clause in a pooling contract, providing for liquidated damages upon its breach, is to secure the performance of the contract and not to give the option to pay the damages and violate the contract.</p> <p>3. Contracts — Parties Proposal and Acceptance — Evidence of Agreement — Principal and Agent — Batifieation.—A party, claiming to act as agent for the owner of a crop of tobacco, signed the owner’s name to a card giving the number of acres of tobacco grown, delivered it to the agent of a pooling society with the request that he pin it to a pooling contract, stating at the time that the owner wanted to pool his tobacco. These acts were ratified by the owner by notice to the society that he wanted to pool, and by circulating the report throughout his neighborhood that his tobacco had been pooled. Evidence shows that the owner had pooled his tobacco.</p> <p>4. Trial — Bejection of Evidence — Competency.—-In action for specific performance of contract and plea of non est factum evidence that the owner of tobacco had circulated the report that it had been pooled in order to prevent its destruction by supposed night riders was properly rejected.</p>

<p>1. Escheat — Constitutional Provision — Construction of. — The purpose of section 192 of the constitution, inhibiting corporations from holding real estate, not necessary for carrying on their business, is to prevent corporations from buying up large and valuable tracts of land, not for any use eouueeted with their business but for speculative purposes or for the purpose of removing minerals and timber thereon from the market for the time being.</p> <p>2. Escheat — Property Subject to — Corporations—Lands—Eight to Hold. — A corporation may take title to, and hold for a period longer than five years, real estate, without the same being subject to escheat, if such holding is for a proper, legitimate, and necessary use of the corporation in the conduct of its business, although such use may not be actually exercised within five years after the acquisition of the property.</p>

<p>1. Bills and Notes — Accommodation Endorser — Who Is — Notice to of Dishonor of Paper Necessary. — An accommodation endorser is one who signs his name to paper without any consideration therefor, and for the sole purpose of giving credit to some other party to the paper, and to hold an accommodation endorser liable it is necessary that the paper should be presented for payment, protested for non-payment, and notice of its dishonor given to him.</p> <p>2. Bills and Notes — Accommodation Endorser. — Where the payee of a bill signed his name on the back of it and afterwards, and before the delivery of the paper, a third party, for the sole purpose of giving the payee credit, signed his name under that of the payee, and the bill so endorsed was discounted by a bank at the instance qf the payee, the party who endorsed the note was, under the law merchant, as well as Tinder the present Negotiable Instruments Law, an accommodation endorser in the legal and technical sense of the words, and not a surety, maker or guarantor of the paper.</p> <p>3. Bills and Notes — Circumstances That Will Excuse Presentment for Payment and Notice of Dishonor to an Endorser. — The circumstances that will excuse the presentment of commercial paper for payment and the giving of notice of its dishonor to parties entitled to notice, will be sufficient when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence, or is due to some condition beyond the control of the holder that makes the giving of notice impracticable or impossible.</p> <p>4. Bills and Notes — Circumstances That Will not Excuse Presentment for Payment and Giving of Notice — Facts Stated. — The payee of a bill two days before its maturity delivered to the bank holding the paper his check for the amount of the bill, which the bank accepted in payment of it and surrendered the bill to him. In due course, and four days after the maturity of the paper, the bank on which the cheek was given, protested it for nonpayment and at once notified the bank that had accepted the cheek in payment of the bill, and this bank on the same day notified an accommodation endorser of the bill of the non-payment of the cheek. The accommodation endorser had no notice or information of the transaction by which the bank accepted the check and surrendered the bill until he received notice of the dishonor of the eheck. Held: that the fact that the cheek was worthless did not excuse the presentment of the bill and notice of its dishonor, and the endorser was released by the delay in giving him notice, which could have been given to him on the day the bill matured or the following day.</p> <p>5. Bills and Notes — Promise by Endorser to Pay After Being Be-leased for Want of Notice not Binding. — The promise of an accommodation endorser to pay a bill from the payment of which he has been released by the failure to give him due notice of its dishonor when it is without consideration, is not binding on him and creates no new liability.</p> <p>6. . Bills and Notes — Liability of Endorser not Increased by Fact that Failure to Give Notice did not Cause Him Damage. — The fact that an endorser has not suffered any damage because of the failure to give him notice in due time of the dishonor of the paper does not affect his liability or make him responsible when otherwise he would not be.</p>

<p>1. Carriers — Of Live Stock — Liability for lujuries to Stock in Course of Carriage — Burden of Proof. — Where live stock is not accompanied by the owner or his agent, and it is injured in transit, it is incumbent upon the owner to show that, the stock when delivered to the carrier was in good condition, and when received from the carrier was in a damaged condition. Thereupon the burden shifts and it devolves upon the carrier to show that the ears in which the stock were shipped were in good condition and suitable for that purpose, were handled with reasonable dispatch, and were not subjected to any rough or improper treatment during the journey, and the carrier must in addition satisfactorily account for the injured condition of the stock, and unless the carrier can show that such injury was due to some inherent vice of the animal, the fact that it was injured will be accepted as prima facie evidence of negligence on its part.</p> <p>2. Evidence — Opinion Evidence. — A witness who is familiar with the method of carrying stock by railroad and who is an experienced stock man, may give his opinion that- stock delivered to a carrier in good condition and received in bad condition were injured by improper handling in the course of their carriage.</p>

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

<p>1. Wills — Construction of. — Tbe testator by his will bequeathed to the children of bis deceased son, a piece of land, providing that tbeir mother should have possession of tbe property as long as sbe lived and that after ber death, it should be equally divided between tbe children or their heirs. Held: That the children took a vested interest under the will which will not be defeated by tbeir death in the life time of their mother.</p> <p>2. Wills — Word “Heirs” Word of Limitation and Not of Purchase. — The word ‘ ‘ heirs ” is a word of limitation, not of purchase, and will be so read unless there is enough in the will to show that the testator used the word in another sense.</p>

<p>1. Judicial Sales — Purchaser at — When Eule of Caveat Emptor Does Not Apply To. — The rule of caveat emptor does not apply to the purchaser at a judicial sale before confirmation, and he will not be required to take the property where the title is defective if he properly presents the matter by exceptions to the sale.</p> <p>2. Judicial Sales — Purchaser at — Defective Title. — The purchaser makes out a prima facie case of defective title when he shows that the title is vested in a.third person.</p> <p>3. Appeal — When Eeeord of Another Suit Cannot Be Considered on Appeal. — The record of another suit, though copied into the transcript, cannot be considered on appeal if it was not considered in the circuit court, or made part of the record.</p>

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

<p>1. Contracts — Negotiations Conducted by Letter — Acceptance—When Contract Complete. — Where negotiations with a view of making a contract are conducted, by letter, the contract is complete,* when a distinct written offer made by one party is unconditionally accepted by an answer from the other party dispatched by mail, or otherwise, within a reasonable time after the letter containing the offer is received.</p> <p>2. Contracts — Offer to Sell Must be Accepted as Made. — It is elementary law that an offer to sell must be accepted as made, and that an acceptance in different terms, or upon other conditions, amounts only to a counter offer on the part of the buyer, which the seller may accept or rejeet at his pleasure.</p> <p>3. Contracts — Offer to Sell Imposes no Obligation Until Accepted According to Terms — Rejected. Offer — Subsequent Tender of Acceptance. — It is also the law that an offer to sell imposes no obligation on either party until accepted according to its terms; and a proposal to accept or an acceptance upon terms varying from those offered, is a rejection of the offer and ends the negotiation, unless the offer is renewed or the proposed modification accepted; moreover, an offer which has been rejected cannot be revived by the subsequent tender of an acceptance of it.</p> <p>4. Contracts — Customs and Usages in Interpretation of — Uniformity. — A usage or custom of trade to be a guide in the interpretation of contracts, must be uniform, reasonable and generally known. No custom or usage, however well established can be incorporated into a contract if it is inconsistent with the clear intention of the parties. An expressed exclusion is not necessary; it is sufficient that the custom is excluded by necessary implication.</p>

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

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

<p>I Wills — Simultaneous Execution by Father and Son — Parol Contract at Time of Making — Subsequent Marriage of Father. — Where a father and son acted in concert in making tkeir wills, and at the time entered into a parol agreement tkat tke father should will tke land devised him by Ms son equally to tke tkree ckildren of anotker deceased son, tkey being tke only keirs, except tke' wife of tke fatker, wko subsequently died, an enforcible parol trust was created to tke extent of embracing tke land devised by tke son, and to tkis extent tke contract skould be enforced, but it would be inequitable and unjust to tke surviving widow and infant ckild to fully enforce tke contract as tke rigkts of neitker of tkese parties kad intervened at tke time it was made, but tke annulling of tke will by tke subsequent marriage did not extinguisk tke trust in so far as tke devise by tke son is concerned.</p> <p>2. Wills — Subsequent Marriage and Subsequent Will — Anulling of Will Did Not Extinguisk Trust. — Wketker tke original will was annulled or not by tke re-marriage, it was annulled by testator’s later will, but tke annulling of tkat will did not extinguisk tke trust created by the contract between the father and son, and any effort tkat tke fatker may have made to dispose of the property by will wkick he merely held in trust, was of no avail.</p>

<p>Contracts — Estoppel—Peremptory Instruction. — Where-plaintiff claims a contract with defendant whereby he was to receive $75 a month and 30 cents an hour for extra time over 10 hours a day, and sues for the difference between the amount due on that basis and the amount -actually received, and admits that about a week after the alleged contract was made, he agreed to an arrangement whereby he was to receive 30 cents an hour for all time, both regular and extra, and kept his own time and received payment on this basis for a period of 12 years without protest or demand, his conduct precludes a recovery, and the trial court should have directed a verdict in favor of the defendant.</p>

<p>1. Executors and Administrators — Where Property in Hands of Taxable. — Property in the hands of an executor during the settlement of the estate and before the time for distribution, is taxable in the hands of the executor at his official residence.</p> <p>2. Executors and Administrators — Official Besidence for Purpose of Taxation. — The official residence of the executor for the purposes of taxation is at the residence of the decedent, if in this State; or where he qualifies, if the decedent was a non-resident of the State.</p>

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

<p>Contracts — Action for Breach — Pleading—Complaint.—In an action fov alleged breach of two covenants of a contract, viz: to advance the necessary advertisements to get the best results; and "to endorse paper of covenantee to the extent of $1,500, to be secured by bottling works, which must be in good running order and worth $1,500 before endorsement is made, the complaint, failing to point in what particular the covenant to advertise was not complied with, or the methods used did not meet its requirements, or to show that other or additional means of advertisement were requested, or that complaint was made that the form or character of advertisement used was insufficient orto allege, that when request to endorse the paper was made, the plant was in running order and then worth $1,500, does not state a cause of action.</p>

<p>1. Liens — Street Improvement — Limitation—Lis Pendens. — Tbe cause of action to enforce a lien for tbe cost of street improvement accrues when tbe improvement is accepted by tbe council, and is barred in five years unless an action is brought within that time to enforce tbe lien. If such an action is brought the lien will be kept alive against tbe owner of tbe property at tbe time tbe improvement was made, as well as against other parties to tbe action, until final judgment; but if tbe property is conveyed, after five years from tbe date, when tbe action accrued, to a purchaser for value without actual notice of tbe lien, and who is not a party to tbe action, be will be released by tbe fire-year statute of limitation, unless tbe lis pendens notice provided for in section 2358-A of tbe Kentucky Statutes is filed.</p> <p>2. Liens — Street Improvement — Purchaser for Value Without Notice.— A purchaser for value without actual notice of the. pendency of an action to which be is not a party, is not chargeable with notice of tbe ordinance creating tbe lien, 'or tbe pendency of tbe action unless tbe plaintiff in tbe suit files a lis pendens notice.</p>

<p>1. Street Eailroads — Eights of Passenger Who Bides on Step of Crowded Car. — A person who is compelled to ride on the step of a car because there is no sitting or standing room inside the ear, or comfortable standing room on the platform, is nevertheless a passenger, and the company owes him the same high duty of exercising care to protect him from danger that it does passengers who are seated in the car.</p> <p>2. Street Eailroads — Liability of Company for Injuries to a Passenger Eiding on the Steps of the Car. — Where a passenger on a street car, on account of its crowded condition, is compelled to ride on the steps, the company is liable in damages for injuries sustained by him as a result of its negligence at a time when he is exercising ordinary care for his own safety.</p> <p>3. Street Eailroads — Eights of Passenger Who Boards Car Knowing He Must Eide on Steps. — When the inside of a ear is so crowded with passengers that there is no sitting or comfortable standing room, and the rear platform is equally crowded, a passenger, who stands on a step of the ear exercising care for his own safety, cannot be said to have voluntarily assumed a place of danger or to be guilty of negligence in law.</p> <p>A Street Eailroads — Liability of Company for Accepting Passenger Who is Compelled by Crowded Condition of Car to Eide on Steps.— When a company accepts a passenger on a ear, and he is compelled to ride on the step because he cannot, without pushing and crowding other passengers, get standing room on the platform or elsewhere, he is entitled to the same protection as if seated in the car, and the company is charged with the duty of taking notice of the danger, if any, that attends his position, and must exercise corresponding eare to protect Mm from accident. When the ear stops to receive passengers who are permitted to board it, although it may be so crowded as to make it necessary that they should ride on the steps they will be treated as having been invited to enter the car, and as having been accepted as passengers.</p> <p>5. Evidence — Expert Evidence as to Probable' Permanency of Injuries. — There are many cases in which an expert cannot say with absolute certainty whether an injury will be permanent or not, alalthough in his opinion and best judgment it will be, and so when witnesses qualified to express an opinion give it as their best judgment that the injuries are permanent, the court may submit this issue to the jury.</p>

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

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

<p>Si. Verdict — Contradictory Evidence — When Court of Appeals Will Not Disturb Finding of Jury. — When the evidence is contradictory, the Court of Appeals will not disturb the finding of a jury upon the ground that the verdict is against the evidence, unless it be palpably and flagrantly so, or clearly shows that the jury were mistaken, or were influenced by passion, prejudice or corruption.</p> <p>3. Instructions — Party Cannot Predicate Error in Instruction Given at his Request. — A party cannot predicate error in an instruction given at his'own request, or in one of the same effect, given by the court.</p> <p>(5. Federal Question — When Will Not Be Reviewed by Court of Appeals. — A federal question suggested for the first time in the oral argument of the motion for a new trial, but which was not mentioned or raised in the pleadings, instructions, or grounds for a new trial, will not be reviewed by the Court of Appeals.</p>

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

<p>Bills and Notes — Action Against Endorser — Defenses—Negotiable Instruments Act. — In an action against the endorser óf a note, having waived protest -in the face of the instrument, by subsection 111 of the. Negotiable Instruments Act, he is deemed to have also waived notice of presentment and dishonor. The' objection that appellee will be estopped because he did not prosecute with diligence a right of action against the maker, did not present a good defense, for as between appellee and the endorser it was not primarily the former’s duty to enforce collection against the maker.</p>

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

<p>Deeds — Construction of — Limitation as to Dying Without Descendants.— Under a deed by which the property is conveyed to A for life with remainder to A’s son, B, at her death; and if he dies without descendants to go to C; at the death of A, B takes the land in fee simple, the limitation as to his dying without descendants being confined to his death in the life time of his mother.</p>

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

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

<p>1. Contracts — Admissibility of Parol Evidence to Affect Written.— A written contract cannot be altered or added to or subtracted from by prior or contemporaneous, verbal agreements, in the absence of fraud or mutual mistake, but where a written contract is procured by fraud and misrepresentation, this may be shown by parol evidence to defeat or modify the contract.</p> <p>2. Contracts — Sufficiency of Parol Evidence to Affect Written. — When a party to a written contract undertakes to alter or modify or avoid its effect upon the ground that it was procured by fraud or misrepresentation or mistake, the burden is upon him to show the existence of the facts and the conditions upon which he relies to defeat the writing, and unless the evidence is clear and convincing, it will not be regarded as sufficient to overcome the writing, in which it is presumed the parties set forth the entire engagement between them.</p> <p>3. Contracts — Damages for Breach of Warranty When Only One Part of Article Worthless — Evidence.—When a buyer of an article, consisting of two or more separate, distinct parts, seeks to defeat the collection of the purchase money by the defense that the article does not fulfill the warranty made in connection with the purchase because one of the parts is worthless, the seller should be allowed to show the value of the worthless part as well as the value of the sufficient part.</p> <p>A Contracts — Damages for Breach of Warranty Because One Part of Article Worthless, Although Other Parts Are Sufficient. — If the only defect in an article is confined to a separate distinct part of it, and this part can be supplied by a part that would fulfill the warranty, the seller ought to be allowed to supply the defective part and thereby minimize the damage, or the buyer ought not to be allowed to recover more in damages than will enable him to supply this defective part.</p> <p>5. Contracts — When Buyer. Entitled to Rescission for Defect in One Part of Article Purchased. — If an article purchased is worthless because of a defect -in some material, substantial part of it that cannot be supplied without purchasing the entire article, the purchaser is entitled to a rescission of the contract, if it was procured by fraud.</p>

<p>1. Contracts — "When Party Estopped to Say He Did Not Know Contents of Paper He Signed. — It is a general as well as a sound rule that a party who is in the full possession of his faculties and who is able to read, will not be heard to say that he did not know the contents of a paper which, he signed and whieh he had ample opportunity to read and understand.</p> <p>2. Contracts — When Party Not Estopped to Attack Contract He Signed. — When the evidence shows that the complaining party relied upon the representations made to him by the party producing the paper as to its content's, and the conditions surrounding him are such that a person of ordinary prudence could not be said to be negligent in failing, to read and understand for himself, he will not be estopped to question its validity by the faet that he trusted to his adversary.</p> <p>3. Contracts — Signed on Sunday — When Not Void. — The mere faet that a contract is signed on Sunday does not affect its validity if some essential thing in connection with it, or that is necessary to make it effective between the parties, is done, or remains to be done on some other day.</p> <p>4. Contracts — When May Be Avoided on Ground of Fraud or Lack of Capacity to Understand — Instructions.—If a party at the time he signs a contract is imposed upon and deceived, and in faet defrauded, he has a right to assail its validity, although his mind is not enfeebled, and if his mental condition is such that he cannot know or understand the contents of the paper, this likewise furnishes him a good reason for attacking its validity, and an instruction that a party cannot avoid a contract unless it appears that he did not know its contents and was also mentally incapable of understanding them, is erroneous.</p> <p>5. Master and Servant — Duty of Master to Keep Appliances in Repair —Liability for Failure. — When the duty of inspection does not devolve on the servant, and when he is not required to look out for defects and make repairs, it is the duty of the master to exercise ordinary care to furnish him with reasonably safe fixtures and appliances to work with.</p>

<p>1. Pleading — Traverse—Sufficiency of. — Affirmative matter of a reply, in effect an affirmative traverse of a defense set up in answer, needs not be controverted.</p> <p>2. Insurance, Life — Actions on Policy — Burden of Proof — Question for Jury. — Where it is admitted, that the application for insurance was accepted, the premium paid, and the policy issued and delivered to the applicant, the burden is upon the insurance company to establish its defense; and where the evidence on the issue presented is conflicting, the question is for the jury.</p> <p>3. Insurance, Life — Avoidance of Policy for Misrepresentation or Fraud — 'Matters Belating to Person Insured — Habits—Words and Phrases. — The word “practice,” with reference to intoxicants, when used in an application for insurance means “custom,” “habit,” and if the applicant’s use of intoxicants has not been so frequent as that he can be said to have acquired the habit of using intoxL cants, a jury would be warranted in finding that his answer in the negative to a question as to his practice in the use of intoxicants to be true.</p> <p>4. Insurance, Life — Health and Physical Condition of Applicant. — In the absence of any fact, from which it could be inferred that applicant for insurance knew or had reason to believe that he was suffering ’from any disease at the time of the application, the contention that his answer that “I am in good health” is untrue must fail.</p> <p>5. Insurance, Life. — The untruth of an answer that applicant had not been treated for inebriety is. not shown by evidence that he had' taken the Keeley treatment, in the absence of proof of what' the treatment was taken for.</p> <p>6. Insurance, Life — Action on Policies — Weight and Sufficiency of Evidence. — Evidence held to support the verdict of the jury in favor of plaintiff.</p>

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

<p>1. Mortgages — Execution of New Note to Assignee — Assignment of Mortgage — Validity.—Where a husband borrows money from a bank, and he and a surety execute a note therefor, and he and his wife execute and deliver to the surety a mortgage on his land conditioned not only to indemnify the surety, but to secure the payment of the debt, and he then borrows the money from another bank for the purpose of paying the original note, and executes a new note therefor, with the agreement and understanding that the new note is simply a renewal of the original note, ’and the surety assigns to the second bank the mortgage in question, with the agreement that the second bank is to take his place as mortgagee, the mortgage is not discharged, but the assignment is valid, and vests in the second bank an enforeible lien against the property mortgaged,</p> <p>g. Homestead — Mortgage—Relinquishment of Homestead — Assignment of Mortgage Without Wife’s Consent — Effect on Homestead. — The assignment by the mortgagee of a. mortgage on the property of the husband, in which the wife has united for the purpose of relinquishing her homestead right, though made without the wife’s consent, is valid, since under the mortgage the property was liable for the payment of the debt, and the assignment did ,not have the effect of imposing any additional liability or burden on the wife. In such a ease the widow and infant children of the decedent are not entitled to a homestead as against the assignee of the mortgage.</p> <p>3. Appeal — Judgment—Clerical Misprision. — Where a judgment is rendered on a note for more than is claimed by the amended petition to be due, the mistake is not one for which a reversal may be had, but is simply a clerical misprision, which may be corrected on motion below.</p>

<p>El. Statutes — Construction—Delating to the Same Subject Matter. — . A special act must be, if possible, so construed as to harmonize it with a prior enacted general law upon the same subject.</p> <p>O. Courts — Courts of Limited or Inferior Jurisdiction — County Judges' —Criminal Jurisdiction. — The legislative purpose, as expressed in. section 1073, et seq., Ky. Stats., was not to enlarge the criminal' jurisdiction of county judges but to transfer to them from the circuit court a jurisdiction which it had previously acquired, but which they might have acquired; a county judge, therefore, is without jurisdiction to try one confined in jail, and unable to give bail, under a warrant issued on an indictment charging him with an offense, the maximum punishment for which exceeds a fine of $100.00 or imprisonment for fifty-days, or both.</p>

<p>Carrier and Passenger — Unlawful Arrest. (For Syllabus see L. & N. E. E. Co. v. Byrley, 152 Ky., 35.)</p>

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

<p>1. Street Railroads — Action Against to Recover for Personal Injuries— Collision of Cars — Evidence—Question for Jury. — In an -action against a street railway company to recover for personal injuries alleged to have been sustained by the negligence of its servants in permitting the collision of two of its ears, the question was one for the jury; and as there was practically as much evidence tending to show that appellant was not injured by the collision as that she was so injured, there is as little ground for setting aside the verdict in appellee’s favor on the ground that it is flagrantly against the evidence, as there would have been for setting it aside on that ground had it been in appellant’s favor.</p> <p>2. Verdict — When Verdict Should Be Set Aside. — It is only when there is no evidence to support the verdict, or it is flagrantly against the evidence that it should be set aside.</p> <p>3. Argument of Counsel — Complaint of Misconduct of Counsel. — In view of the failure of appellant to make specific denials of the testimony of a physician that he had treated her for complaints similar to these with which she then suffered, counsel-for appellee had the right to comment thereon in argument in the language employed by him, and his statements were within the bounds of legitimate argument.</p>

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

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

<p>1. Contracts — Defenses—Inconsistent Pleadings. — Where plaintiff sues on a copy of a contract purporting to guarantee performance thereof by William H. Humphreys, and defendant guarantors pleaded that they did not execute such a contract, and plaintiff subsequently filed the original contract, which showed that the principal obligor was Jasper R. Humphreys, but his name had been changed to William H. Humphreys, an amended answer setting up the fact that the alteration was made and the name of William H. Humphreys signed to the contract after defendants had signed it, and without their knowledge or consent, is not inconsistent with the original answer.</p> <p>2. Contracts — Guaranty—Evidence—Sufficiency.—In an aetion to recover on a contract of guaranty, evidence examined and held sufficient to sustain a finding in favor of the defendants.</p> <p>3. Contracts — Guaranty — Material Alteration — Notice — Inquiry.— Where defendants signed a contract guaranteeing performance by the party of the second part, and the name of the party of the second part was written in the contract, the fact that a blank space was left for the signature of the party of the second part did not give to the party to whom the contract was delivered, or anyone else, implied authority to sign as party of the second part any other name than that indicated in the body of the contract as the party of the second part, and notice of the alteration of the name of the party of the second part was sufficient to put the party guaranteed on inquiry as to whether or not the alteration was made before or after the contract was signed by the guarantors.</p> <p>4. Contract — Guaranty—Material Alteration — Instruction.—.Where defendants signed a contract of guaranty, purporting to guarantee the performance of a contract by Jasper B. Humphreys, party of the second part, and after signing it, and without their knowledge or consent, the name of Jasper B. Humphreys was erased and the name of William H.. Humphreys inserted in lieu thereof, and also signed to the contract as the party of the second part, the alteration is material, and defendants are not liable thereon, and an instruction to this effect is proper.</p>

<p>2. Master and Servant — Duty to Warn and Instruct Young or Inexperienced Servant. — When a young or inexperienced servant is employed in an occupation attended with danger, and when there is a safe as well as a dangerous way of doing the work, it is the duty ef the master to instruct the servant as to the safe method of doing the work.</p> <p>2. Master and Servant — Assumed Risk. — A young or inexperienced servant, employed in dangerous work, does not assume the risk of injury to himself if the master fails to instruct him how to work so as to avoid injury.</p>

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

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

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

<p>1. Contracts — Obligation for Payment of Money at Certain Place— Place of Performance. — An obligation for the payment of money at a certain place is a contract to be performed there within the meaning of seetion 72 of the Code.</p> <p>2. Counties — County Not Corporation Within Meaning of Seetion 72, Civil Code. — A county is not a corporation within the meaning of seetion 72 of the Code, although it has issued bonds pursuant to the legislative authority.</p>

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

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

<p>Petition for Writ of Prohibition.</p>

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

<p>Streets — Contract for Eeeonstruetion of Street — Guaranty of Contractor —Action Upon Guaranty — Finding of Chancellor. — In an action by appellant against a contractor and his surety,-in which a judgment is sought on a guaranty for certain street construction, it being agreed that should it be the opinion of the court that it is the duty of the appellees to remedy the admitted defects done under contract with the city, they will proceed to do so under the supervision of the Board of Public Works, and pay costs of the action; but that should it be determined that appellees were not required , to remedy the defects, the action should be dismissed at appellant ’a costs, Held: That the finding of the chancellor is concurred in .that the condition of the street is due to expansion of materials, that under the specifications no other result could have been reasonably expected, and the city failed to show that appellees in any way failed to live up to the specifications.</p>

<p>1. Taxation — Cities of Fourth Class — Collection of Taxes by Suit— Sections 3544 and 3546, Kentucky Statutes. — Under sections 3544 and 3546, Kentucky Statutes, a city of the fourth class has the right to bring suit for the collection of taxes due on real estate even though the city collector fails or refuses to pursue the other remedies provided by statute.</p> <p>2. Taxation — Municipalities—Power to Compromise Claims for Taxes— - Section 52, Constitution. — Under section 52 of the Constitution, a municipality has no power to make a compromise releasing á taxpayer, in whole or in part, 'from the payment .of any taxes that have been levied and assessed.</p> <p>3. Assessments — Description of Property — Sufficiency.—A description in an assessment is sufficient if the property can with reasonable certainty he located from the description given.</p> <p>4. Assessments — Sufficiency of Description. — In ah action by a city of the fourth class to collect certain taxes by suit, descriptions contained in the assessments examined and held sufficient.</p> <p>5. Taxation — Suit for Taxes — .Right to Amend Description for Purposes of Judgment. — While in an action for the collection of taxes on real estate the city may not amend its pleadings for the purpose of .correcting the assessment, it may amend and give a more accurate description of the property assessed and sought to he sold, for the purpose of basing a judgment thereon.</p>

<p>1. Municipal Corporations — Ordinances—Judicial Notice of — Judicial notice must he taken of the ordinances of cities of the first class.</p> <p>2. Municipal Corporations — Opening of Public Way — Presumption— Burden of Proof. — When the municipal authorities of a city declare in a regular way that it is necessary that a public way be opened, the presumption will he indulged that this is for the benefit of the ■public, and the burden of proof in the action to condemn. the property, is upon the .property holder.</p> <p>3. Municipal Corporations — Action to Acquire Right of Way — Measure of Recovery. — In such an action the measure of recovery is not what the property is worth to the defendant, or how much his business will be injured by the 'taking of the property; the measure of recovery is the fair market value of the thing taken, considered with reference to the remainder of the property, and the purposes for which it may be' used.</p> <p>4. Municipal Corporations — Opening of Public Way — Condemnation Proceedings — Pleading.—In such a proceeding, the petition should accurately define the .property sought to be condemned, but where it fails to do this, and the property to be condemned is accurately defined by the proof introduced on the trial without objection, and is so defined in the judgment of the court, the error is harmless, the defendant’s substantial rights not being prejudiced.</p>

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

<p>Fraudulent' Conveyances — Action to Subject Wife’s Property to Husband’s Debt — Burden of Proof. — In a suit by a creditor of the husband to set aside as fraudulent a deed made ‘by the husband to the wife, the burden of proof is upon the creditor to show the fraud in the 'transaction.</p>

<p>1. Specific Performance — ¡Plaintiff May Have Judgment for What He Is Entitled to, Although. He Asks More. — If the plaintiff in a suit for specific performance is defeated in part he may nevertheless have what he shows himself entitled to. He has the right to sue for the enforcement of the contract as he understands it, and is entitled to recover the whole or such part of the thing in controversy as the facts show him entitled to.</p> <p>2. Specific Performance — Delay in Setting Up Fraud as Defense— Effect of. — A party who claims to have heen defrauded in the execution of a contract must assert this defense within a reasonable time after a suit has been brought against him to enforce the contract, or within a reasonable time after he has discovered the fraud, or else he will he deemed to have waived his right to rely on the alleged fraud in the execution of the contract.</p> <p>3. Lis Pendens Notice — Failure of Clerk to Index or Do His Duty Does Not Prejudice Eight of Party Filing. — 'When a lis pendens notice is sufficient in form and is filed in the proper office, the •party filing it will be protected, although the clerk may fail to discharge his duty in connection with it. The statute does not impose upon the party filing the notice the duty of seeing that it is properly indexed.</p>

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

<p>1. Municipal 'Corporations — Torts—Defects in Streets — Notice of.— Knowledge thereof on the part of its superintendent of streets is notice to the city of a defect in its street, 'Causing injury. Notice of a defect in a street is notice of that condition of things which constitutes a defect, although the city authorities may not regard it as a defect.</p> <p>2. Municipal Corporations — Torts—Defects in Streets — Coverings to Dangerous Places — Care Required. — Where a city places catch ¡basins in Its streets, it owes to the traveling public the duty of so fastening the coverings to such basins that they may be passed over in safety; and, after notice that such coverings are defective or loose, so that they are liable to be pulled or knocked from their position, the city permits them so to remain, without effort to remedy such condition, it does so at its peril.</p> <p>3. Municipal Corporations — Torts—Defects in Streets — 'Sufficiency, and .Safety of Way — Negligence.—’So long as catch basins in streets are constructed upon reasonable grades, the coverings thereto made of substantial material, and are ’held firmly in position, the city is not negligent either as to their construction or their maintenance. s</p> <p>4. Municipal Corporations — Torts—Defects in Streets — Action For Injuries — Question For The Jury. — In an action against a city for injuries to a traveler, the questions of notice to the city and negligence on its part held to be for the jury.</p> <p>fi. Municipal Corporations — Instructions.—In- an action against a city for injuries by a traveler being thrown from his vehicle, the wheel of which ran or fell into a catch basin, inasmuch as the evidence showed that the superintendent of streets knew of the defect causing the injury, the city was not prejudiced by the failure of the court to specify, iu his instructions, the officers of the city to whom such notice should be brought home.</p>

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

<p>1. Insurance, Life — Pacts in Regard to Sickness and Death of De- , ceased — Evidence of Physician .as an Expert — Question-tfor Jury, — The proof for the •plaintiff showing certain facts in regard to the sickness and death of the deceased, a physician may he asked as an expert what in his opinion on these facts was the cause of the death of .the deceased; hut he should not be asked to give his opinion on all the evidence as to what-was the cause of the death, as this was a question for the jury.</p> <p>2. Evidence — Testimony of Physician as an Expert — Teaching of Medical Authorities — Reading Prom. — When a physician gives his •opinion as an expert, he may, on cross examination, be asked as to the teachings of standard medical authorities on the question, and paragraphs from a standard medical work may 'be read to him as part of the question; but only a standard work should be allowed to be read.</p> <p>3. Evidence — Expert Testimony — Question for Jury. — There ' being evidence by experts that a wrench or a blow might cause the injury complained of, the court did not err in submitting both questions to the jury.</p>

<p>1. Contracts — Action for Fraud and Deceit — Pleading.—'Upon the trial of an action brought by appellant, advertising manager and agent of the Baptist Boole Concern, against appellee for damages for fraud and deceit alleged to have been practiced by it in effecting a sale of certain shares of its worthless stock through appellant, Held, it not appearing from the petition that appellant was a party to the contract in his own right, or that appellees had any knowledge of his contract with the Book Concern as to the manner in which he was compensated hy it for services rendered by him as the manager of its advertising department, but appearing that the advertising contract was made by appellees with the Book Concern through appellant, as the latter’s agent, and that the delivery to appellant of the stock to pay for the advertising was required by the Book Concern because of its contract with appellant, with which appellee had nothing to do, the right of action for such damages was and is in the Book Concern and not in appellant, who was its mere agent in making the contract, and the demurrer to the petition was properly sustained.</p> <p>2. Contracts- — Real Party in Interest — Section 21 Civil 'Code. — The contract not coming under any of the exceptions mentioned in section 21 of the Code, as it was made in the name of the Baptist Book Concern by appellant as its agent, the Book Concern and not the agent must bring the action; and the claim of the latter to a part of the damages sustained must be adjusted 'between him and the Book -Concern after the recovery of same.</p>

<p>1. Indictment — Appropriating Property in Custody of Common Carrier — 'Sufficiency of Indictment. — The indictment charging appellants with the crime of appropriating property in the custody of a common carrier, based upon Section 1201b, Ky. Stats., substantially follows the language of the statute and is not open to the objection that it charges two offenses. The allegations of a conspiracy have no rightful place in the indictment, for the conspiracy was not necessary to the commission of the offense, and all that is charged as to the conspiracy is mere surplusage.</p> <p>2. Indictment — Appropriating Property in Custody of Common Carrier — Name of Consignee or Owner — Sufficiency of Indictment.— The statute does not require that the name of the consignee or owner of the property thus feloniously taken from the possession of the carrier and appropriated shall he stated in the indictment. It is sufficient that it was feloniously taken from the carrier .in the manner charged and appropriated by the taker.</p> <p>8. Criminal haw — Evidence of Confinement in House of Reform.— Upon the trial of three persons jointly charged with appropriating the property of a common carrier, it was not error to pemit the Commonwealth to prove by one of them, on cross examination, that he had been convicted of an offense that compelled him to be confined in the House of Reform.</p> <p>4. Instructions. — 'One who is tried for a criminal offense cannot complain of an instruction that made a conviction more difficult than, the law required.</p> <p>5. 'Criminal Law — Appropriating Property in Custody of Common 'Carrier — Indictment For — Sufficiency of Evidence. — Upon the trial of three persons charged with appropriating property in the custody of a common carrier, it cannot he said that the verdict of conviction is flagrantly against the evidence.</p>

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

<p>1. Schools and School Districts — Election of Teacher — When Mandamus Will Die For Failure to Elect. — When a teacher, nominated and recommended in writing by the sub-district trustee, possesses the necessary qualifications, and no reasonable objection is offered to bis election, it is the duty of the trustees composing the Educational Division Board to elect him, and for a failure to do so, mandamus will lie.</p> <p>2. Schools and School Districts — Objections to Election of Teacher —Rejecting Nomination of Teacher — When 'Courts Will Not Intervene. — When an election is held by the- Educational Division Board, any member thereof may, either orally or in writing, offer objections to the election of ¡a teacher -who has been nominated by a sub-district trustee; and, if said objection toe reasonable, the courts will not interfere with the discretion of ¡the Board in rejecting the nomination.</p> <p>3. ¡Schools and School Districts — Objection to Teacher — What Will Justify Rejection of Nomination. — An objection to a nominated teacher, that he had not given satisfaction in his work during the previous year, and that a majority of the patrons of the school were opposed to him, is a reasonable objection, which will justify the action of the Board in rejecting the teacher’s nomination.</p>

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

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

<p>5L. Instructions. — An instruction not complained 'of in grounds for new trial cannot be complained of on appeal.</p> <p>2, Instructions — Not Incumbent to Give Whole Law in Civil Case.— In a civil ease it is not incumbent on tbe circuit judge to give the whole law of the case, and -a judgment will not he reversed for an instruction that was not ashed, which would not have effected the result.</p> <p>3. -New Trial — Evidence.—The fact that a new trial was granted in another action between third persons is not competent evidence.</p>

<p>1. Counties — Government and Officers — Appointment of Employes— Stenographers. — Section 331e, subsection 17, Kentucky Statutes, authorizes a county court judge in counties having a city of the first or second class to appoint a stenographer to his court, and to fix his salary at not exceeding $60.00 per'month.</p> <p>2. Counties — Officers—Liability For Official Acts — Action—(Pleading —Petition.—In an action to recover from an employe of the county court, and members of the fiscal court and the county judge, the amount paid to such employe by the fiscal court, upon the ground that such appointment was invalid, the appointment and compensation of such employe being authorized. by statute, the petition, failing to allege that such compensation was not paid out of a fund especially levied and collected for that purpose, does not state a cause of action.</p>

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

<p>Brokers — Contract Giving “Exclusive Privilege’’ to Sell — Effect of.— Where the owner of a farm placed it in the hands of real estate agents under a contract giving them the “exclusive privilege’’ of selling the land within a year, he put it out of his power to sell the land himself within this time, and having sold it within a few months after the contract was made, and at a time when the ¡brokers were making diligent efforts to sell, he became liable to them for the amount of the commission stipulated in the contract.</p>

<p>Taxation — Situs of Intangible Personal Property — 'Power of Legislature to Fix Situs — Constitutionality of Sections 4020 and 4023, Kentucky Statutes, Fixing Situs of Intangible Personal Property at Residence of Beneficial Owner. — The Legislature has the power to fix the situs of intangible personal property for the purposes of taxation, and neither Section 4020, Kentucky Statutes, fixing the situs, of such property at the residence of the real or beneficial owner, and not at the residence of the fiduciary or agent, having custody or possession of same, nor Section 4023, providing that an administrator, executor, trustee, committee, curator or agent, residing, in the State, shall not be liable for taxes on intangible personal property where the real or beneficial owner of such intangible personal property held by them or any of them, reside outside of the State, is unconstitutional,</p>

<p>3. Counties — Government—County Board — Jurisdiction of. — The fiscal court is a court of limited jurisdiction or powers, and has no right or power to appropriate or expend county funds without statutory, authority therefor.</p> <p>2. Counties — Government—Appointment of Agents or Employes — > Action. — An order of the fiscal court appointing a clerk or auditor for said court is unauthorized by statute :and void; and the amount paid to such appointee may be recovered of him 'by the county.</p> <p>3. Counties — Officers—Liabilities For Official Acts — Action—Pleading — Petition.—In an action to recover of the members of the fiscal court and the county judge the .amount ipaid to an employe of the fiscal court, appointed without authority of law, the petition failing to allege that such employe was paid out of funds levied and collected for a purpose other than paying him, does not state a cause of action against such officers.</p>

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

<p>1. - Executors and Administrators — Action by Upon Note — Advancements. — iln an action by an administrator upon a note of $1,000.00 executed to his decedent by her daughter, the circuit court properly refused to enforce its payment; the note being wholly without consideration from the decedent and executed by the daughter, who had never received an advancement from her mother, in pursuance of an agreement with a brother and sister, each of whom had been advanced $1,000.00, by their mother, and on account of their conveying her their respective interests in sixty acres of land in which the mother held a life estate; it being agreed that the note should be held by the mother as evidence . of an advancement of the amount thereof to the maker out of the estate left by her father, to make her equal with the other children who had received from the estate like advancements.</p> <p>2. Executors and Administrators — Action by Upon Note — Evidence—• .Section 606, Subsection 2, 'Civil Code. — The testimony of the ■brother and sister was competent to prove the agreement nnder which the note was executed by the maker. Section 606, subsection 2, Civil Code, only excludes a party in interest from testifying .for himself concerning any verbal statements of transactions with, or acts done by a decedent.</p>

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

<p>1. Judgment — Res Judicata. — In order for a judgment to he a bar to a subsequent suit the former judgment must have been rendered in an action between the same ¡parties, or those in privity with them.</p> <p>2. Limitation — When Arrested by Suit. — An unsuccessful action of ejectment leading to no change of possession does not arrest the ¡running ¡of the statute of limitations.</p> <p>3. Limitation — WTien Arrested by Judgment. — The mere recovery of a judgment will not, of itself, stop the running of the statute of limitations; there must he an actual change of possession hy virtue of the judgment to stop the running of the statute.</p> <p>4. Adverse Possession — When Broken. — Temporary breaks of fences or inclosures, relied upon to constitute adverse possession, ’will not stop the running of the statute of limitations if enough of the fence or inclosure remains to give notice of the extent of an adverse claim, or if there is still an.actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of all others.</p> <p>6. Writ of Possession. — An officer has no -authority under á writ of possession, to dispossess one who was not a party to the action from which the writ issued, and who had possession under one who was not a party thereto.</p> <p>5. (Land — Patents—'Interferences.—Where two patents interfere in , part, and before possession- is taken under the senior patent of any part of the land within- its boundary, the junior patentee 'enters upon the land within the interference, with the intention ’ of taking possession thereof, his possession will be construed to be eo-extensive with the interference, and will not be confined to . his fence or close; and a subsequent entry -by the senior patentee outside the interference will not give him possession .of any part thereof or divest the junior patentee of his possession. ,</p>

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

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

<p>1. Sureties — Release of — Alteration of Instruments. — A surety who seeks to be released from a written contract on the ground that it was altered by agreement between the obligee and the principal obligor, after he signed it, must aver that the alteration was made without his knowledge or consent.</p> <p>2. .S.ureties — Alteration of Instruments. — An immaterial change in a farming contract not affecting the substance of it, will not release the surety.</p> <p>3. Instructions — (Not Embodied in Bill of Exceptions Cannot Be’Considered on Appeal. — Instructions which are not embodied in the bill of exceptions or made part of the record cannot be considered on appeal. The failure of the court to define fully the measure of damages, is not ground for reversal where under the evidence it was not prejudicial.</p>

<p>Deeds — 'Construction of. — Under a deed in which A and'her heirs are parties of the second part and the property is conveyed to the parties of the second part, their heirs and assigns, to have and to hold unto the parties of the second part, their heirs and assigns forever, A takes the land in fee simple, the word “heirs” being a word of limitation not of purchase.</p>

<p>1. 'Mechanics’ Liens — Act of 1910 — Sufficiency of Notice. — A notice that fails to specify the amount for which a lien is claimed is insufficient under the mechanics’ lien law as amended by the Act of 1910.</p> <p>2. Mechanics’ Liens — Act of 1910 — Sufficiency of Notice. — 'Under the mechanics’ lien law as amended by the Act of 1910, requiring notice in writing to the owner of the property or his authorized agent “immediately after the last item of said material or labor is furnished,” the word “immediately” is used in the sense of “promptly,” and -a. notice given eight days after the last item of material or labor is furnished, is not sufficient.</p> <p>3. Mechanics’ Liens — Act of 1910 — Sufficiency of Notice. — Where a sub-contractor, after the completion of his contract, returns to the building and makes certain repairs not called for by his contract, and which he was under no obligation to make, merely for the purpose of enabling him to give the notice required by the Act of 1910, in order to acquire a lien, a notice .pursuant ■ thereto, though, given in due time, is not sufficient.</p>

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

<p>1. Principal and Agent — Existence of Relation — Implied Agency-Trades Unions. — The relation of principal and agent between members of a trade union and its officers is not to be implied from the fact that such officers are the agents of the union.</p> <p>2. Trades Unions — Agreements—Nature of — Customs and Usages.— An agreement between a labor union and an employer of labor is not a contract but a usage, which the employer intends to adopt and maintain, for the time therein stipulated, in the conduct of his. business.</p> <p>8. Contracts — Construction—/Terms Implied. — Where an employer has agreed with a labor union to adopt and maintain for a limited ’ time certain rates of pay and regulations governing its employes of a particular craft, an employe, entering the service of such employer during the time such usages are in effect, and assents to them, or if they are so generally known as to justify the belief that he knew them and he made no express contract in conflict with such usages, they are a part of his contract as if fully incorporated therein.</p> <p>i. Contracts — Rescission.—A contract for personal service for an indefinite period of time may be terminated by either party, for or without cause.</p> <p>6. Contracts — Action for Breach — Pleadings—Petition.—In an action for breach of contract for personal service for an indefinite period, a petition which seeks to recover only for time lost after the contract had been rescinded by the discharge of plaintiff, does not state a cause of action.</p>

<p>1. Carriers — Racks in Cars to Hold Packages — Liability for Package Palling Out of. — Trainmen are required to exercise, ordinary care to protect passengers from being injured by packages falling out of racks, and when a package that is placed in a rack is of such! size or character as to reasonably attract the attention of careful, prudent persons, and to put them on notice that it may fail, the company will be liable to a passenger injured by the package falling out of the rack if its servants have had reasonable opportunity to discover its presence.</p> <p>2. Carriers — Measure of Duty in Regard to Construction of Racks. — . It is the duty of a carrier to exercise the highest practicable degree of care in the construction of racks used in passenger cars so as to make them sufficient for the purpose intended, and if a rack in which a small package is placed is so constructed as that the ordinary movement of the car will cause it to’ fall out of the rack, it is a question for the jury to say whether or not the carrier exercised the required degree -of care in having in its car this character of rack.</p>

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

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

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

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

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

<p>1. Appeal — Motion to Dismiss — Amount of Judgment and Counterclaim — Sufficient to Give Jurisdiction. — While the judgment was-for only $140, the amount of it and the counterclaim combined is sufficient to give this court jurisdiction, and the motion to di3-. miss the appeal will be overruled.</p> <p>2. Instructions — Action to Recover Net Profits — 'Pleading.—In an action for the recovery of net profits which plaintiff claims he would have made had he -been permitted to complete a contract for concrete work, the .pleadings .presenting ¡but the single issue of profits, an instruction authorizing a recovery upon a quantum meruit for the value of that part of the work which he actually did, was erroneous.</p>

<p>1. New Trial- — Newly Discovered -Evidence — Injury to Young Married Woman Believed to Result in Barrenness — Subsequent Birth of -Child. — -In an action by a young married woman against a railroad company for damages for injuries while a passenger on one of its cars which resulted in an operation that, in the opinion of her physicians and that of the surgeon appointed by the company to examine the plaintiff and ascertain the extent of her Injuries, rendered her barren, a verdict was rendered in ber favor for $7,000.00. -In June following the trial in December, she gave birth to a child, and thereafter the railroad company filed its action setting up this fact, and asked for a new trial of the former case. Held, a new trial was properly granted.</p> <p>?. New Trial — When New Trial May Be Granted After Judgment— A party may he granted a new trial after judgment a-gainst him where he subsequently discovers clear and unmistakable evidence that the vital and uncontradicted testimony upon which the judgment against him was based, was untrue.</p> <p>3. New Trial — Newly Discovered ‘Evidence — When New Trial Should ¡Be Granted. — Where the newly discovered evidence is of such a conclusive nature as that it would with reasonable certainty have changed the verdict, or materially reduced the recovery, a new trial .should be granted if it is satisfactorily shown' wHy. tlj£ same w.as. not discovered and produced at the trial. ' ‘ 1 , .</p>

<p>1. Board of Education. — Officer of Insuring Property of 'Board — Section 3223 Kentucky Statutes. — When an officer of the Board of Education in a city of the second class, acts as agent for an Insurance company, and insures the property of the hoard in his own company, receiving a commission out of the premium, this is a violation of Section 3223 Ky. Stats., and subjects, the officer to removal.</p> <p>2. Board of Education — Power of to Remove Clerk. — The Board of Education has power to remove its clerk although the offense was committed during a former term, and he had since 'been reelected for another term.</p> <p>8. Board of Education — Removal of Clerk. — The Board of Education under 3223 Ky. Stats, may remove the clerk and it is unnecessary that he should he proceeded against ¡before the Board of Aldermen.</p>

<p>1. Street Railroads — Crowding of Cars — Liability for Injury to Pas» sengers. — When a carrier permits its car to become so crowded, with passengers as that those wishing to alight at a station can not.do so without pushing and crowding a passenger, who does not' desire to alight, to such an extent as to cause him to he thrown or shoved from the car, it will he liable in damages.</p> <p>2. Street Railroads — Degree of Care to be Exercised with Respect to Passengers. — A street car company as a carrier of passengers must exercise the highest degree of care practicable and consistent with the proper conduct of its business to insure their protection from injury while being carried, and this duty extends to and embraces everything that may happen during the carriage that .the carrier can prevent by exercising this high degree ot care.</p> <p>3. Street Railroads — When Not Liable For — Injury Caused toy (Misconduct of Passengers in Getting Off Car. — A street railroad company is' not to toe held liable for a wrong done or an injury inflicted toy the act' of a passenger that could not toe reasonably anticipated toy the servants of the .carrier charged with the duty Of ¡protecting its passengers from injury, and if a passenger, in .alighting from a not overcrowded car, should push or shove another .passenger, causing him to sustain injury, the carrier will not be liable. ' r • •!</p> <p>ií. Street Railroads — Overcrowded Car — Injury to Passenger toy Crowds Getting Off. — When a carrier permits a car to become overcrowded with passengers, it assumes the obligation of exercising the highest practicable degree of care to prevent a passenger from being injured toy the pushing and crowding of other passengers at points where it may reasonably expect large numbers of passengers to get off, and is chargeable with knowledge of the habits of crowds of passengers and their indifference of the rights of others when they are in a hurry to 'get off at terminal or transfer points established toy it.</p> <p>5. Trial — Misconduct of Jury. — Where a jury, after considering a case, came into open court and stated to the judge that they had agreed to find a verdict hut could not agree upon the amount, and were then directed by the judge to further consider the case, thi3 publicity toy the jury of what happened in the jury room was improper, tout as it does not appear that the parties to the suit had any connection with it or that the.rights of the complaining party were prejudiced, it is not grounds for reversal.</p>

<p>3. . Railroads — Operation—Injuries to Persons on Tracks — What Law . Governs — Question for the Court. — In an action in this State for injuries occurring in a foreign State, the rights and liabilities of the parties are to be determined by the laws of such foreign State; and it is the duty of the court to decide, from the evidence, What the law of the foreign State, applicable to the issues, is.</p> <p>2. Railroads — Operation—Injuries to Persons on Tracks — Care Required^ — Under the laws of the State of West Virginia, a person using a railroad track for a foot path for his own convenience, elsewhere than at a lawful railroad crossing, and injured by a raVroad train, while so doing, cannot recover of the railroad company, unless it be guilty of wanton or gross negligence.</p> <p>3. Railroads — Operation—Injuries to Persons on Tracks — Action— "Sufficiency of Evidence. — In an action for personal injuries, occur* ring in tbe State of West Virginia, evidence lield insufficient to authorize the submission of the question to the jury as to whether defendant was guilty of gross negligence.</p>

<p>Estoppel. — When a party having a lien on land states to a contemplated purchaser that he will release his lien on the land, and on the faith of the statement the purchaser buys the land, the party having the lien will be estopped from enforcing it to the prejudice of the purchaser.</p>

<p>1. New Trial. — An order granting a new trial will not be reversed unless it appears that the circuit court aibused its discretion.</p> <p>2. Separate Coach Law — Equal Protection to White and Colored Persons. — The separate coach law applies with like effect to both white and colored passengers, and colored passengers are entitled to the same redress as white passengers tor injuries growing out of its violation.</p>

<p>1. Divorce — Alimony—Abandonment.—While a judgment oí divorce improperly granted to the husband cannot be reversed, such all-mony may be'adjudged to' the wife as on tbe whole case she ought' to-receive.- ,</p> <p>B. Divorce — Alimony—Abandonment by the Husband. — Where tne overwhelming weight of the evidence shows that the husband ¡ abandoned the wife, she is entitled to alimony, though the husband have no property, if, as a matter of fact, he is able-bodied and'capable, of earning wages.</p>

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

<p>1. Contracts — Breach of. — Under a written contract H. leased to T. a saw mm until such time as T. could by its use in sawing logs pay. himself for certain attachments he added to the mill and which were to remain a part thereof and become the property of H. After using the mill a sufficient time to pay himself for the attachments he had added to it, T. abandoned the mill and removed therefrom the attachments and appropriated them to his own use. Held: That in so doing he committed a breach of the contract with H.; and as the latter had in the meantime sold: the saw mill, including the .attachments added by T., "to the appellant and at the same time assigned to it the lease contract with T., appellant as such owner of the saw mill and assignee of the contract had the right to maintain this action against T. for the breach of the contract, committed by him; therefore, the 'Circuit Court erred in sustaining a demurrer to the petition.</p> <p>2. Contracts — Assignability of. — The contract was clearly assignable, as it could have been as well performed by one person as another. It is well settled that a written contract is generally assignable, unless forbidden by public policy or the contract itself, or- its provisions are such as to show that one of the parties reposes a personal confidence in the other, which he would have been unwilling to repose in any other person.</p> <p>3. Contracts — Breach of — Measure of Damages. — The measure of damages for the breach of the contract alleged is the difference in the value of the saw mill, without the attachments wrongfully removed by T. and what it would be worth with same attached and belonging thereto.</p>

<p>Insurance, Life — Action to Reform Policy — Judgment .Should Conform • to Contract. — Where one successfully seeks to have a life insurance ¡policy reformed so as to conform to the true or original contract, the judgment should conform to the contract; it cannot add to the contract an obligation not made, or make a new contract for the parties.</p>

<p>1. Homicide — Evidence—Unsatisfactory character of — Instructions— Self Defense Instruction. — Upon the trial of appellant, who with Wadlington and Magness was charged with the murder of Dallas, he was found guilty of murder and his punishment fixed at confinement in the penitentiary for life. This was his second trial, the jury having disagreed upon the first trial. The evidence is unsatisfactory. All the parties were more or 'less under the influence of liquor at the time. Wadlington and appellant each admitted' having done the killing. On the first trial appellant testified that he had done it and relied upon self defense, but at the last trial he stated that his former statement was made because he had a good defense, and Wadlington did not, and that the latter did the shooting. All the circumstances show that appellant was attempting to avoid trouble between Wadlington and deceased; no motive, is shown except in Wadington and no threat except in him. There is some additional evidence upon self defense, though of an unsatisfactory character.</p> <p>2. Although requested by appellant to give the whole law of the case the lower court declined to give a self defense instruction. Held, That while appellant testified that he did not shoot deceased, the ' jury might have believed that he did shoot him, and yet might have believed from all the facts and circumstances that he had shot him in self defense. Under such circumstances he was entitled to an instruction upon self defense.</p> <p>3. Homicide — Instructions.—The rule has been uniformly followed in. this court that where no eye witness is introduced, the court should give in the instructions the law applicable to murder, manslaughter and self defense, so that the jury might find from all thacircumstances the state of fact that existed.</p>

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

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

<p>j. Criminal Daw — New Trial — When Granted in Criminal Case Parties Placed as Though There Had Been No 'Previous Trial.— When a new trial is granted in a criminal case, it places the parties where they were before the trial was had, and the defendant may be re-tried, as though there had been no previous trial of the case.</p> <p>2. Criminal Law — Instructions—Must Be Read As A Whole — Self-defense. — The instructions of the court must be read as a whole, and it is not essential ttoait self defense should be referred to in the first instruction in a case of homicide, where the proper instruction is given on self-defense.</p> <p>3. Appeal — Bill of Exceptions — On Appeal Facts Determined From. —The court must determine the facts from the bill of exceptions, and reverse or affirm the judgment according to the facts. It is not bound iby the conclusion of the circuit judge on the facts as shown by the bill of exceptions.</p> <p>4. New Trial — When Grounds for Cannot Be Considered on Appeal. —|A ground for new trial set up at the ensuing term, after the motion for new trial had been overruled at the previous term, cannot be considered on appeal.</p>

<p>Criminal Law — When Judgment of Conviction Will Not Be Reversed —Evidence.—A judgment of conviction will not be reversed on the ground that the evidence is insufficient to support it, unless the verdict is palpably against the evidence, land this rule applies. to circumstantial evidence no less than direct evidence.</p>

<p>1. Railroads — Duty of Lookout and Warning — Instructions.—An instruction telling the jury that it was the duty of the persons in charge of an engine that was moving at a point where the duty of lookout and warning was required to keep a lookout was not prejudicial, although there was no direct evidence that they were not keeping a lookout. An instruction may be based on physical facts and circumstances as well as on direct and positive testimony, and from circumstances the jury have a right to conclude that the lookout duty is not maintained, although the uncontradicted evidence of the employes shows that it was.</p> <p>2. Verdict — May Be Against Numerical Weight of the -Evidence and Tet Not Palpably Against the Evidence. — We have frequently ruled that we will not interfere with the finding of a jury on a question of fact merely because their finding is not supported by as -much evidence as is heard in opposition to it. It -does not follow necessarily that because the verdict of the jury is against the weight of the evidence that it is palpably against the evidence.</p>

<p>1. Trial — Continuance—.Discretion of Court. — Whether or not a continuance shall ¡be granted in a civil case is left largely to the discretion of the trial judge, and this discretion will not be interfered with unless it affirmatively appears it was abused.</p> <p>2. Trial — Continuance—Absent Witness. — Where a continuance is asked on account of the absence of a witness, the court, where reasonable diligence has been used, should permi, the affidavit, of what the absent witness would state, to be read as a deposition.</p> <p>3. Trial — Continuance—Witness Out of Jurisdiction. — Where a witness who is employed by the party -asking a continuance had agreed to be -present but was -prevented by illness, it was error not to permit an affidavit, of what he would state, to be read as his deposition, as the employer had a reasonable right to expect his attendance.</p> <p>¡4. Master and Servant — Discharge of Servant. — Contract giving Master Right to Determine ¡Grounds of Discharge. — Where a contract of employment gives the master the right to be the final judge of whether or mot the servant performs the conditions of the contract, if the servant commits a breach of the contract, the master will not be liable for discharging him, although the breach he was guilty of might not, in the judgment of a -court ¡or jury, be sufficient to justify a discharge. When the contract gives to the master the right to pass final judgment on the sufficiency of the breach, and the breach has been committed, the judgment of the master as to its sufficiency to justify discharge cannot be interfered with.</p>

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

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

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